The Ethics of Mining and Development

Hello there. Good afternoon, everyone, and welcome to our panel on the ethics of mining and development. My name is Eva Selenas. I am the managing editor here at the Canadian International Council and our website, Open Canada.

Um, so, hello to every, uh, reader and viewer who's watching live on the website now, um, and on social media. Uh, before I welcome our three fantastic panelists today, I want to say that, uh, this, this panel, in part, was inspired by, um, some recent discussions and features that have appeared in, in Canadian media and, and, and ongoing discussions. Um, most recently, the Toronto Star ran a three-part series looking at some brand new partnerships over the past couple of years, anyway, uh, between the Canadian government and the private sector, uh, mining companies, in the facilitation of aid programs. Um, meanwhile, just last week, the Canadian government was pushing its Corporate Social Responsibility strategy at PDAC, which is the annual mining convention here in Toronto. Um, they announced a new CSR counselor, for instance, uh, for a position that had been vacant since the end of, uh, 2013, and the initiative itself is only a few years old. Um, so it brings up a, a few questions and an interesting discussion around the ethics of, uh, these new partnerships, of, of mining and community development in general, and on, uh, CSR.

So, I'm really pleased to have these three panelists join us for this discussion, and we want to welcome questions and comments online. Um, if you're following, please use, uh, the Twitter hashtag, CIC Mining, and, uh, we'll take a few questions towards the end. So, without further ado, I will welcome our three guests today. Um, the first is Bob Fowler, who, uh, has worked for many, many years in the public service as a foreign policy advisor to several Prime Ministers. Um, he has, uh, he was the long, Canada's longest-serving ambassador to the United Nations, and he currently sits on The Advisory Board, uh, for CSR for Barrick Gold. So, welcome, Bob. Thank you very much, Eva.

Uh, Meg French is also with us, and she leads UNICEF's International Programming, which involves policy and, and advocacy work around child rights and the mining sector, and, uh, has done a lot of advocacy work, uh, on those issues. So, welcome, Meg. Thank you. And last but not least, we have Josh Shiner, who specializes in international human rights law and trade, and the intersection of the two. Um, and welcome, Josh. Thanks.

I want to put the, the first question to you, Bob. Um, and that's, I mean, it's, it's kind of a general question that often comes up when we have discussions around CSR, and in how much of it, uh, is an effort, when I'm speaking to the Canadian government specifically, an effort to promote Canadian companies abroad, and how much of it is part of this larger movement, uh, for more responsible mining?

Well, I doubt if I could give you any. You asked me how much, so I can't give you proportions or percentages. Um, I, I was, I was a Canadian public servant for 40 years, and mostly at, and I spent an awful lot of time promoting Canadian interests abroad, including Canadian investment, and, and Canadian products, and Canadian expertise. Um, the fact that the government is doing that now in slightly different ways is not surprising, nor, in my mind, um, is it, is it negative. Um, uh, I, I think there is perhaps a discussion to be had about, um, the, the seriousness with which the government of Canada takes, um, a rapidly evolving, um, international discipline with regard to, uh, human rights and business practices in the human rights context. Um, and I think it's probably fair to say that this is something that is very much in evolution. Personally, I would like to see the Canadian government take a much more forthright position, um, with regard to, um, the variety of emerging codes of conduct and guidelines that are out there and are constantly being elaborated. I, I would like to see Canada in a leadership position in those areas. I would like to see Canada more closely attuned with what we used to call in the UN context, but like-minded, that is the Nordics, and the, and the Dutch, and, um, sometimes the Germans, sometimes the Brits, um, in a much more aggressively forceful protection of human rights generally, across the board, um, uh, in areas that are looking into Corporate Social Responsibility.

So, um, that's say the government is doing things. I would certainly wish that the, um, uh, that the government had been a signatory to, for instance, the Extractive Industries Transparency Initiative. We're not even an implementing country, and I would wish it were otherwise. Um, that said, the government is spending an awful lot of money, um, promoting, uh, uh, the purposes of EITI, um, and, um, keeps sort of edging towards becoming a more important player in that, and with regard to the application of UN Guiding Principles and, and other codes of conduct. So, it's very much, I think, a work in progress. And, and you asked me about the Canadian government, so that's what I've been talking about. In many, in many contexts, in the CSR area, I think, um, the private companies and major companies are in advance of the government in terms of the commitments they're making and the activities they are engaging in throughout the world.

Well, Josh, you were at PDAC last week and you saw a lot of those private companies, uh, the discussions, anyway, that they were having, uh, around CSR and community development. What did, what were your takeaways from PDAC?

Um, you know, obviously CSR is part of a larger discussion around, um, human rights and environmental rights. And did you feel that, um, within the private sector, they were connecting those dots, uh, or, or was there any disconnect there?

There was some disconnect. Um, last week at PDAC, we heard from a number of people in the industry, all very well-intentioned people, um, I believe, with a strong commitment to corporate social responsibility, um, growing a more positive track record for the extractive industries in terms of their levels of community engagement and community relations. But where a gap exists, in my opinion, is between appreciating CSR from the community perspective and then CSR from the international legal perspective, from the overarching legal frameworks, uh, that set out norms, set out definitions of what human rights entail. I mean, it's all well and good for a corporation to pay respect to local customs and local traditions and ensure that they're going about their business that makes the community happy in that respect. But when we talk about human rights, we're talking about legal terms that come with legal definitions, and they bestow a certain set of rights, um, towards individuals and communities. And if we fail to appreciate the extent to which rights from a legal perspective, um, can interact with this, then I think we're doing ourselves a disservice. I gave the example last week that in Europe, the European Court of Human Rights has held that the right to the right to life can be infringed, um, if foreseeable harm arises, is from mistreatment of toxins at garbage dumps. And we're talking about mining companies, um, everyone in the extractive sector is pulling things out of the ground and using chemicals, and there's a lot of toxins and a lot of dirty things that need to be stored in place. And appreciating that there's a legal side to human rights that can have far-reaching effects on notions that might not necessarily at first engage with what they're doing on the ground, I think cheats them from an ability to, cheats them from the opportunity of truly appreciating their obligations in this area.

Thanks, Josh. Um, Meg, UNICEF has an interesting, um, role in, um, the intersection here between, um, these legal obligations and, um, your mandate. Um, and, you know, when, when do you partner officially with communities versus the private sector with the advocacy work? I guess maybe first, let's start with what, what have, uh, what has UNICEF been doing, um, with the private sector to, to advance child rights in, in mining?

So, UNICEF, um, I mean, it is, it is a decision to make, I mean, in terms of who you partner with, um, and, and so the decisions to work with the extractive sector, um, and, and I wouldn't put it as the community versus the extractive, uh, company in terms of the decision you have to make. You, you want to be working with both. Um, but really, what guides the work we do, um, is the best interest of children. So, that's the guiding principle through which we make decisions about who we are going to partner with, um, and any of the work that we do, um, in, in our work around the world. Um, and so when it comes to working with the private sector, and when it comes with to working with the extractive sector in particular, um, we're working through a set of principles called the Children's Rights and Business Principles. Um, and so these principles were launched about three years ago, and they set up, um, a series of different principles that companies should be looking at that extend across the workplace, the marketplace, the community, and the environment. Um, and what they do is ask, ask companies to use a child rights lens in their work, in assessing their practices, in assessing their policies. And so that's the work that we've been doing with the sector, um, is to, to show companies that they're working at some of the most vulnerable communities in the world, um, and the work they do has an impact on children, and it can be a negative impact, but it can be a positive impact as well. And if they use the Children's Rights and Business Principles, if they take this children's rights and they look at their practices, if they look at their grievance mechanisms, if they look at, um, their stakeholder engagement, their social investment, um, their environmental practices through a children's rights lens, um, they can identify where they're having a negative impact on kids and where there's the possibility to also have a positive impact and support their rights. And, and so that's, that's the guiding, that's what guides what we do.

And what kind of response have you had from, from the sector?

So, we've had a really positive response from the sector. I think particularly in Canada, um, I think Canadian companies are really looking at, um, how their work has a broader impact, um, on the environment around them, on the communities around them, um, and not just at the site level, but nationally as well. Um, and so we've had, um, interest in companies on the Children's Rights and Business Principles, um, and we've been working, uh, with some companies here in Canada on looking at grievance mechanisms, and we've done, um, some human rights impact assessments that involve children's rights, um, and we have companies that have started making decisions about their social investment based on the best interest of children and how they can have the biggest impact. Um, and what we see with that is that, um, it is, it's supportive of the work we do, um, and so the, the communities that we work with, and the governments that we work with, for that matter, um, I mean, not to say that, that, you know, everybody thinks that, that this is the right direction, um, for the work that we're doing, um, but what is behind the decision to work is, is a good, strong set of values about the best interest of children. Um, and so that motivator really helps support our decision to work with the extractive companies, because we need to work with everybody who has impact on children. We all have a responsibility to make a difference for kids, no matter whether or not we're governments, individuals, so civil society, or the private sector. And so, as UNICEF, as the agency responsible for children's rights, we know that we have a responsibility to work with the mining sector to make sure that they keep the best interest of children in mind as well.

Has that risked at all any of UNICEF's, um, impartiality on the ground? Say, the view from the communities' point of view?

We haven't had, um, any negative response, um, not to say it won't or can't happen, but at this point, um, we've really seen, uh, support for the work that we're doing, both, um, from communities, the government, and companies themselves.

Right. And Bob, hearing some of these partnerships, but also Meg mentioned, um, you know, the ability now, or the different mechanisms that are coming up for grievances, how have you seen the evolution of these, um, of the movement overall, but also, um, the ways in which, uh, we can hold either governments or, or, um, companies responsible? Are they working? Are, are they growing? Do you see this as a stronger movement, say, compared to 15 years ago when the Kimberley Process even was coming out and these talks were happening at a larger level?

Well, um, Eva, I think, as I told you, I spent my whole life sort of, um, in and around multilateral diplomacy, and usually things move at a pretty glacial pace in trying to develop new norms of behavior and, and principles and guidelines. And I, I am, I am amazed at what has happened, not, not over the last 15 years, but over the last five years even. It is remarkable. As Josh, um, and Meg have said, I mean, there is now an open, active, um, cooperation, not just dialogue, among civil society, the private sector, and governments to, to achieve, um, viable norms and guidelines in this area. And, and from my perspective, that dialogue has been remarkably non-acrimonious, remarkably cooperative. Now, I'm not saying there aren't, um, difficult issues, and there aren't people who would not view the dialogue the way I've just presented it, but I think most people, most players in the business from all three sectors, civil society, um, business, and government, would would agree that, um, remarkable progress has been made. I, I have the privilege of working with an old pal of mine, John Ruggie, who is a Canadian who, who was at Harvard and spent 10 years at the UN, and he's the guy who developed the The Guiding Principles, um, for, for business, uh, on human rights. And, and he, he, uh, he presented his findings on only four years ago, and already they are, in, in conjunction with other guidelines, most of them older, they are having a significant impact. In, in his guidelines, he engaged some of the issues, um, um, Josh was raising a moment ago. I mean, specifically, um, the whole dialogue between governments and business was was gummed up, was slowed down for a long time on the issue of who was responsible for monitoring human rights. Um, and the, and the business side said, wait a minute, human rights are fundamentally a government responsibility. And, and, uh, some governments in the world said, yeah, but citing the kinds of examples Josh mentioned a moment ago, that certainly doesn't absolve business from responsibilities in those same areas. And I agree completely. Uh, so principles basically, um, state that there is a fundamental duty on the part of governments to protect human rights, there is a corporate responsibility to respect human rights, and there is a significantly greater need to establish formal guidelines for remedies for victims, um, uh, who accuse businesses of violating human rights. And I think it's within that broad guideline that we're all working.

And one of the challenges, um, you know, that is very related to that, is the complexity of the supply chain in the mining sector. Um, and, um, this, you know, becomes even more crucial, uh, for communities who who live in a conflict zone, or, um, you know, where, where sometimes responsibility, in the past anyway, um, although it's still ongoing, can be passed off. Um, and we see initiatives, um, such as the Fairphone, um, which is this phone that's being developed, that has been developed, um, in Europe, um, that, um, tries to be as transparent as possible with its supply chain, and, uh, tracing all the way to the most responsibly mined, um, resources out of the Congo. So, Josh, I guess, when we speak to, uh, supply chain issues, have, have, is there a legal framework that can actually tie a company to, um, you know, somewhere that, uh, if they're working with, say, a, a, um, an armed group or a, a group, um, in a conflict zone, that can tie them, you know, three or four spots down the supply chain from them?

Sure. Um, we're seeing it right now play out in Canadian courts here in Ontario. There are Indigenous peoples out of Guatemala who are suing a Canadian minerals company, Hudbay Minerals, for negligence, for, uh, alleged human rights abuses committed by security forces that were employed by Hudbay, and not by Hudbay individuals, um, themselves. And when you read the pleadings, um, it's alleged that Hudbay knew or ought to have known the extent to which, uh, criminality or, or wrongdoing was a going on, and B, foreseeable to continue under, uh, the group that they had partnered with. And Hudbay had, uh, attempted to have, um, the case struck out, and that was rejected, um, by the Ontario courts. So, that will proceed. And just that loss on the motion to strike the pleadings is a significant step forward in, uh, letting corporations know that, notwithstanding the corporate structure, you can, um, be responsible for subsidiaries, for contractors, for people you connect with on the ground. And I think as this develops, we'll see people borrowing a lot from the doctrine of international criminal law, where you have this idea of command responsibility, where it's argued that commanders cannot absolve themselves for the wrongdoings of their troops, of people who fall under their command, no matter how far beneath them. You know, it's the buck has to stop somewhere, and you can't hide behind the corporate veil, uh, forever. And with the growth of the Ruggie framework and its endorsement, and the voluntary principles being endorsed, um, by more and more governments and international organizations, the idea that everyone is supportive of human rights and corporate, greater corporate social responsibility will help judiciaries and plaintiffs, um, put forward these arguments that, that argue that parent corporations need to be held responsible. Because look, they've come out and endorsed the Ruggie framework. The Canadian government has their CSR in the extractive industries, uh, program and individual that they've appointed to oversee this. So how can you now argue that, notwithstanding that, Hudbay, or it doesn't need to be Hudbay, it's everyone picks on them because they're the ones in the court now, but that X corporation headquartered in, let's even move provinces and say Calgary, you know, why are you, you can't absolve them because they've come out publicly, and their government has come out publicly and said, look, we support this type of behavior. And well, now we're not going to hold them accountable just because it was someone they signed a contract with to act on their behalf that was in fact violating those principles, and not the people in their office tower, uh, downtown.

I'm wondering if part of it, I mean, it is changing, but most of coverage of mining companies still happens within the business sections of our newspapers, um, you know, from an economic point of view. And Meg, you, you do, you know, essentially with your advocacy work, you know, part of it must be, um, storytelling and, and painting the picture that, you know, has that more, um, overall look at the situation. Where do you find, uh, gaps, if there are any, um, when you're relating these issues on, um, the obligations that companies have, the rights that communities have, and are those gaps different whether you're speaking with the private sector or say, versus your donors and the general public?

There are differences, but there's similarities. I, I think that the, um, what, what is missing in, in overall, in the understanding is the interconnectedness, uh, between social development and, and sustainable development, and sustainable mining, um, and how those two things are, are intersect. I think, um, when it comes to, uh, children in particular, um, you often, the response from, from anybody is usually, you know, to think first of all of child labor. Um, and so there are a lot of other rights issues, um, that are encompassed when we talk about children in mining. And so getting people to understand, um, from a, a public side, that children in mining doesn't just mean violations of rights, that there's there, that the, that the mining sector, um, can bring positive benefits to children and communities, is a gap that needs to be filled. And on the flip side, um, I think mining companies also need to understand that children aren't completely separate from the work that they do, that they do have an impact on that work, and that there are benefits to them of focusing on children in mining and supporting on the, and looking at the rights of children. Um, I think, uh, that it's going to take action. I think it, it needs real examples, more and more building on each other to show, uh, the potential, um, to show one that companies are serious, um, about looking at the work that they're doing, um, so that communities see the, see that, um, and, and understand, um, that they're starting to make a commitment to really address human rights violations, but also that they understand, um, their role in the community and their role as global citizens as well. Um, and I think that on the flip side for companies, it's really about saying, look at your, the life of a mine runs for a generation of children. You're watching a generation of children grow, and the, this is a generation of children that will be your future employees, that will be the future community leaders. Um, you know, this is the strength of the community, this is the strength of the nation that you're investing in. Um, and if you start focusing on children's rights now, making sure not to violate their rights, but also to support their rights, you're going to help with risk mitigation, you're going to help build your, your reputation, your enhanced reputation, and you're going to have a motivated workforce who sees that you value them and their children in the community that they're in. So, there's really a benefit to everyone if we can really understand that there will be challenges, and there is work to do, um, but that there is potential there for such good. And I think that that, um, echoes a lot of the arguments that, you know, it can be a win-win situation, that, you know, it's in everyone's interests. But, um, I guess the, the tricky part, uh, comes often down to is, um, whose interests come first, and, and whether the other interests are, um, just to, you know, appease those interests, or, or whether there, there's a genuine, um, effort to, to ensure that, uh, all interests are met.

And I, I want to give the last word to you, Bob, just, we, we did have a question come up, just very general, on on CSR, and, and whether it is, um, genuine, I guess. Um, and I'm wondering how we evaluate them, um, if, if there's multiple narratives often coming from the company, from the government, from, um, activists and communities on the ground, how do we evaluate those narratives and find, you know, what, what is working well?

Well, it's an extremely complicated question you're asking, and I think the shorter answer is, we don't have the answer to it. In other words, there is not yet, you know, the, the perfect matrix, the, the, the wonderful template that we can apply across the board to extractive industries working in extremely different, different circumstances all over the world. Um, that said, transparency is the name of the game. And, um, companies are being, and should be held accountable, not only to do the right thing out there, but to make clear that they are doing the right thing. And in their publications, and in their public appearances, to be held accountable to these emerging standards. Um, we, we have, we have thousands of companies in Canada operating around the world, some very, very small ones, some middle-sized ones, and some huge ones. Very often, the activities of a very minor company can garner a whole bunch of attention and sort of smear the industry. And standards are changing very quickly, and from my perspective, very happily, um, so that we are getting towards those templates, those standards, those guidelines. We're not there. That transparency must be the, the name of the game. And with transparency, I think we'll get the kind of, um, holding to account that you're looking for.

But allow me just to make, he wouldn't the kind of poana is comment at the end here, saying, let, let us not forget that we Canadians live in a very fortunate and happy country, essentially founded on the extractive industries, founded by foreign direct investors from Europe investing in a resource economy, which is ours, and we've done okay by it. Um, the, the official development assistance, which many people in this business continue to, uh, focus upon as the fundamentally essential vehicle for development, and, and I, for one, am constantly castigating our government for being insufficiently generous with respect to ODA, for lapsing hundreds of millions of dollars each year in a declining ODA budget, in, in a situation where measured against our peers, we really don't look very good. That said, other aspects of financial flows to developing countries are vastly more important. The most important among them is direct foreign investment. And in most cases, because they are developing economies, direct foreign investment goes into the extractive sectors. But that's what's creating economic activity in developing countries. That's what's generating jobs and generating tax revenue, which allow governments to govern.

Great. Lots to think about here, and, um, I'm sure this is a topic we will continue to discuss, uh, on opencanda.org, but, um, with the future features, guest contributions down the road. Um, so thank you so much to the three of you for joining us today, and to all of our readers and viewers who have joined us online, and we look forward to the next one. Thanks again.

Thank you. Thank you. Thank you.