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Torex Gold Resources Inc. is a Canadian gold mining company which trades on the Toronto Stock Exchange (TSX), is incorporated in British Columbia and has corporate offices in Toronto, Ontario. The Media Luna project is wholly owned by the company and located in the state of Guerrero, Mexico.

Summary

• On November 3, 2017, approximately 600 workers from Torex Gold’s Media Luna mining facility, located in the Mexican state of Guerrero, carried out a work stoppage to demand their right to be represented by an independent union of their own choosing. The workers alleged that the union at the facility, known to be unrepresentative and to use intimidation tactics, had been chosen for them by the employer without their prior knowledge or consent and did not represent their interests.^[2]
• A series of violent events ensued, endangering workers and community members protesting outside of the mine; four individuals, formerly employed by the company^[3] and associated with the worker struggle, were killed. Workers were eventually deterred from continuing to protest due to the fear of violent reprisals.
• On April 6, 2018, the company resumed operations before the labour dispute was resolved. To date, notwithstanding the protests of workers at the mine, the protection contract union continues to hold legal title to representation at the facility. Investigations into the four deaths remain unresolved.

The Detail

The state of Guerrero, Mexico has been highlighted as among the most dangerous states in the country.^[4] Violent deaths in this state, linked to Canadian mining companies, have been well documented.^[5] In the case of Torex, the Justice and Corporate Accountability Project reports five separate incidences of criminalization of protest between 2009 and 2015, including irregular arrests and violent attacks against opponents to the mine, and the alleged murder of an engineer said to have been doing business with the company.^[6]

Mexico is known to have a corrupt and anti-democratic labour relations system where protection contracts – bogus collective agreements – are signed between unrepresentative unions and employers often before any workers have been hired at a plant and therefore without workers’ prior knowledge.^[7] The Confederation of Mexican Workers (CTM) and other ‘official unions’ are considered to be company unions which represent the employers’ interests over the workers. One of the demands throughout the Canada-U.S.-Mexico Agreement (CUSMA) negotiations, which took place alongside the events in this case, was the need to strengthen Mexico’s labour standards. Ending the practice of ‘employer protection contracts’ was considered essential to promoting freedom of association and improving wages.^[8]

On November 3, 2017, approximately 600 workers from Torex Gold’s Media Luna mine participated in a work stoppage and protest to demand better wages and their right to choose an independent union rather than one imposed on them at the mine. The CTM ‘protection union’ at the facility was chosen by their employer, Torex Gold Resources Inc. without workers’ prior consent.^[9] Workers alleged that they were forced to sign the CTM union membership, and were threatened that they would lose their jobs if they refused.^[10] Torex’s Vice President admitted in an interview that the company had ‘engaged CTM’ before hiring workers.^[11] In response to this case study, the company said it “encouraged the matter to be resolved through a government sanctioned process for the Company [sic]’s workers to vote on their preferred union”.^[12]

Neighbouring communities who joined the protest argued that the company was failing to compensate them for its use of water^[13] and raised concerns about irregularities in how land had been acquired by the company from the original occupants.^[14]

Ten days into the work stoppage, the company had still not entered into dialogue with the workers. Instead, the workers were notified by representatives of the state and the Labour Secretary that they had to end the work stoppage before there could be dialogue with the company and relevant authorities.^[15] Meanwhile, Mexican authorities deployed 130 federal police officers at the mine,^[16] and a security check point was set up nearby.^[17] Despite these pressures, the protest continued.

On November 18, 2017, two brothers who had participated in the work stoppage, Victor and Marcelino Sahuanitla Peña, were shot and killed. Consistent with state authorities’ propensity to blame instances of political violence on gang activity, local police argued that the deaths were a result of an altercation between “rival militias” and therefore not related to the labour dispute.^[18] Torex Gold also asserted that the killings were unrelated,^[19] and that the two were not employees of Torex.^[20] However, three years later, the company admitted that the brothers, as well as two other individuals who were involved in the work stoppage and were subsequently murdered, were all former employees of the mine and likely targeted as a result.^[21]

While initially supporting the workers’ request for a union vote to take place,^[22] the company did not wait for the Mexican state to finalize a date or for the labour dispute to be resolved.^[23] On January 15, 2018, they reinitiated operations.^[24] The Mexican labour authorities, widely criticized for their bias toward the ‘official’ unions,^[25] like the CTM, did not fulfill their responsibility to set the date, despite holding two public hearings to this end.^[26] Less than two weeks later, on January 24, labour activist Quintin Salgado was killed. The week prior to his death, while on his way to a meeting with striking workers from the mine, he was beaten and threatened to stop his work advocating for new union representation.^[27]

Less than three months later, on April 6, 2018, Torex announced that the ‘illegal’ blockade had ended, noting that the next stage in the union dispute was to wait for the Federal Labour Board to designate a date for the vote to take place.^[28] To date, however, the CTM union continues to hold the union representation at the mine. According to the workers, organized crime, allegedly acting in support of the company, issued death threats if the stoppage did not end.^[29] On May 12, 2020, a fourth labour campaigner, Óscar Ontiveros Martínez, was allegedly murdered by organized crime near the Torex mine.^[30] The 29-year-old had been involved in the 2017 events and was considered to be a ‘promising figure’ in the Mexican labour rights movement.^[31]

In an email reply to a draft of this case study, a representative of Torex Gold said “we have a very positive and productive relationship with our employees and the CTM union” and that “operating responsibly is in the DNA of our Company; we would never condone, or be a party to, the kind of radical behaviour, threats and violence that the Company is accused of.”^[32]

Reaction from Canadian and international organizations

During the height of the work stoppage, international labour rights groups, including the United Steelworkers and UNIFOR, sounded alarms about the violence and their concern for workers’ safety. Letters were written to Employment and Social Development Canada’s Bilateral and Regional Labour Affairs office, to the Prime Minister and to the Minister of Foreign Affairs to intervene with the Mexican government. Various press releases and news coverage circulated. While the Government of Canada did communicate with Torex, Canada was unable or unwilling to undertake actions that would have led to the protection of workers’ right to freedom of association or to fully investigate the deaths or prevent ongoing violence.

What if…?

If mandatory human rights due diligence legislation was in place, what would be different for the workers at Torex Gold’s mine?

• Workers’ right to democratically choose their union representation would have been protected, and workers’ safety and lives could have been safeguarded.
• If those rights were not protected by Torex and lives were jeopardized, as was the case at the Torex facility, workers or their allies could have sought justice in a Canadian court.

How?

Throughout the operational life of a project, mining companies like Torex would have to identify and assess the human, environmental and labour rights risks at their operations, prevent and mitigate impacts to workers’ rights, and account for how they address those impacts.

• IDENTIFY and ASSESS: If Torex had undertaken an adequate risk assessment it would have identified:
  • The high risk of labour rights violations that may result from developing a relationship with a known ‘protection’ union
  • The high risk of violence and corruption in the state of Guerrero which create barriers to freedom of association and make the right to protest unsafe for workers
• PREVENT, MITIGATE, ACCOUNT FOR: Torex could have taken steps to ensure workers’ right to choose their union representation was respected and ensure the safety of its workers by:
  • Considering and documenting how it intended to ensure the protection of its workers and their rights given the risks of operating a mine in one of the country’s most violent states
  • Developing robust labour relations and freedom of association mechanisms that ensure the company effectively engages in ongoing dialogue with workers and that labour rights are protected
  • Incorporating an alert mechanism to notify the company of labour rights violations, and addressing any violations as soon as they are identified
• Justice could have been accessed for workers
  • If affected workers, labour unions, or human rights organizations had had effective access to remedy, they would have had the right to sue Torex in a Canadian court. The courts would assess the adequacy of Torex’s due diligence procedures and, if it was determined that Torex failed to follow through on its own due diligence measures or those measures were considered to be weak and ineffective, Torex would have been held liable for harm.

ENDNOTES

^[1] This case study profiles allegations of human rights abuse contained in publicly available reporting by reputable sources. The CNCA has not independently verified the allegations contained in each report cited here.

^[2] Morrow, Adrian. Deadly mine strike highlights accusations NAFTA used to exploit Mexican workers. Globe and Mail. November 24, 2017. https://www.theglobeandmail.com/news/world/deadly-mine-strike-highlights-accusations-nafta-used-to-exploit-mexican-workers/article37086706/ Accessed August 13, 2021.

^[3] Torex Gold. Torex Gold response to email request from Business & Human Rights Resource Centre dated May 26, 2020. Letter published on Business and Human Rights Resource Centre. June 1, 2020. https://media.business-humanrights.org/media/documents/df62efdbd9e31b49f00bd501630a98cdfb1e0389.pdf Accessed August 13, 2021.

^[4] Mining Watch Canada. Acute Human Rights Crisis in Mexico Must Become a Priority for Canada, Visiting Mexican Rights Advocates Say. October 17, 2017. https://miningwatch.ca/news/2017/10/17/acute-human-rights-crisis-mexico-must-become-priority-canada-visiting-mexican-rights Accessed August 20, 2021. Amnesty International Report 2016/16: The state of the world’s human rights. 2016. Pp. 249-252. https://www.amnesty.org/en/wp-content/uploads/2021/05/POL1025522016ENGLISH.pdf Accessed August 20, 2021; Kyle, Chris. 2015. Violence and insecurity in Guerrero. “Building resilient communities in Mexico: civil responses to crime and violence” briefing series. https://www.wilsoncenter.org/sites/default/files/media/documents/publication/Violence%20and%20Insecurity%20in%20Guerrero.pdf Accessed August 20, 2021.

^[5] Justice and Corporate Accountability Project. 2016. Violence and Canadian mining companies in Latin America. https://justice-project.org/wp-content/uploads/2016/10/the-canada-brand-report5.pdf Accessed August 13, 2021.

^[6] Justice and Corporate Accountability Project. 2016. Violence and Canadian mining companies in Latin America. P. 71. https://justice-project.org/wp-content/uploads/2016/10/the-canada-brand-report5.pdf Accessed August 13, 2021.

^[7] International Labour Organization. 2015. Individual Case (CAS) – Discussion: 2015, Publication: 104th ILC session. https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:3241939 Accessed August 17, 2021; International Trade Union Convention (ITUC). 2015. Mexico to ratify ILO Convention 98 on Collective Bargaining. https://www.ituc-csi.org/mexico-to-ratify-ilo-convention-98 Accessed July 17, 2021; Also, see Maquila Solidarity Network. Labour Justice Reform in Mexico: A briefing paper. 2017. https://www.maquilasolidarity.org/sites/default/files/attachment/Labour_Justice_Reform_Mexico_MSN_2017.pdf Accessed August 13, 2021.

^[8] United Steelworkers. United Steelworkers and Mexican Mineworkers Demand Justice for Murdered Protesters in Mexico. Press release. November 24, 2017. https://www.usw.ca/news/media-centre/articles/2017/united-steelworkers-and-mexican-mineworkers-demand-justice-for-murdered-protesters-in-mexico Accessed August 13, 2021; Morrow, Adrian. Deadly mine strike highlights accusations NAFTA used to exploit Mexican workers. Globe and Mail. November 24, 2017. https://www.theglobeandmail.com/news/world/deadly-mine-strike-highlights-accusations-nafta-used-to-exploit-mexican-workers/article37086706/ Accessed August 13, 2021.

^[9] United Steelworkers. United Steelworkers and Mexican Mineworkers Demand Justice for Murdered Protesters in Mexico. Press release. November 24, 2017. https://www.usw.ca/news/media-centre/articles/2017/united-steelworkers-and-mexican-mineworkers-demand-justice-for-murdered-protesters-in-mexico Accessed August 17, 2021; See also Morrow, Adrian. Deadly mine strike highlights accusations NAFTA used to exploit Mexican workers. Globe and Mail. November 24, 2017. https://www.theglobeandmail.com/news/world/deadly-mine-strike-highlights-accusations-nafta-used-to-exploit-mexican-workers/article37086706/ Accessed August 13, 2021.

^[10] Ocampo Arista, Sergio. Pobladores se suman a huelga de trabajadores de Minera Media Luna en Guerrero. La Jornada San Luis. November 12, 2017. https://lajornadasanluis.com.mx/nacional/pobladores-se-suman-a-huelga-de-trabajadores-de-minera-media-luna-en-guerrero/ Accessed August 13, 2021.

^[11] Morrow, Adrian. Deadly mine strike highlights accusations NAFTA used to exploit Mexican workers. Globe and Mail. November 24, 2017. https://www.theglobeandmail.com/news/world/deadly-mine-strike-highlights-accusations-nafta-used-to-exploit-mexican-workers/article37086706/ Accessed August 13, 2021.

^[12] Torex Resources. Email response to draft case study [“Torex reply”]. December 2, 2022. https://cnca-rcrce.ca/site/wp-content/uploads/2023/01/Torex-Gold-Response-to-CNCA-Case-Study-Dec-2_22.pdf.

^[13] United Steelworkers. United Steelworkers and Mexican Mineworkers Demand Justice for Murdered Protesters in Mexico. Press release. November 24, 2017. https://www.usw.ca/news/media-centre/articles/2017/united-steelworkers-and-mexican-mineworkers-demand-justice-for-murdered-protesters-in-mexico Accessed August 13, 2021.

^[14] Red Mexicana de Afectados por la Minería. Communiqué. Canadian Mining Company torex Gold Resources Inc; Archetype of Violence in Guerrero. October 4, 2019. https://movimientom4.org/2019/10/canadian-mining-company-torex-gold-resources-inc-archetype-of-violence-in-guerrero/ Accessed August 17, 2021.

^[15] Ocampo Arista, Sergio. Pobladores se suman a huelga de trabajadores de Minera Media Luna en Guerrero. La Jornada San Luis. November 12, 2017. https://lajornadasanluis.com.mx/nacional/pobladores-se-suman-a-huelga-de-trabajadores-de-minera-media-luna-en-guerrero/ Accessed August 13, 2021.

^[16] United Steelworkers. Letter to Chrystia Freeland, Minister of Foreign Affairs. November 23, 2017.

^[17] Red Mexicana de Afectados por la Minería. Communiqué. Canadian Mining Company torex Gold Resources Inc; Archetype of Violence in Guerrero. October 4, 2019. https://movimientom4.org/2019/10/canadian-mining-company-torex-gold-resources-inc-archetype-of-violence-in-guerrero/ Accessed August 17, 2021.

^[18] United Steelworkers. United Steelworkers and Mexican Mineworkers Demand Justice for Murdered Protesters in Mexico. Press release. November 24, 2017. https://www.usw.ca/news/media-centre/articles/2017/united-steelworkers-and-mexican-mineworkers-demand-justice-for-murdered-protesters-in-mexico Accessed August 13, 2021.

^[19] United Steelworkers. United Steelworkers and Mexican Mineworkers Demand Justice for Murdered Protesters in Mexico. Press release. November 24, 2017. https://www.usw.ca/news/media-centre/articles/2017/united-steelworkers-and-mexican-mineworkers-demand-justice-for-murdered-protesters-in-mexico Accessed August 13, 2021.

^[20] Torex Gold. Torex clarifies media misinformation. Press release. November 21, 2017. https://torexgold.com/news-and-media/news/torex-clarifies-media-misinformation/ Accessed August 19, 2021.

^[21] On June 1, 2020 Torex Gold responds to a Business and Human Rights Resource Centre in relation to the four killings, and states, “we presume that these four have been selected because they had a past employment relationship with Torex or with a contractor that worked on our site; however, we can assure you that these were criminal matters that were quite outside of our control.” Torex Gold. Torex Gold response to email request from Business & Human Rights Resource Centre dated May 26, 2020. Letter published on Business and Human Rights Resource Centre. June 1, 2020. https://media.business-humanrights.org/media/documents/df62efdbd9e31b49f00bd501630a98cdfb1e0389.pdf Accessed August 13, 2021.

^[22] Email correspondence between United Steelworkers and the Director of Bilateral and Regional Labour Affairs for Employment and Social Development Canada. November 17, 2017. Notably, it was the day after this agreement to request a union vote that the two Sahuanitla Peña brothers were killed.

^[23] UNIFOR. Third Torex Gold striker murdered in Mexico. https://www.newswire.ca/news-releases/third-torex-gold-striker-murdered-in-mexico-671133013.html Accessed August 13, 2021.

^[24] In its email response to a draft of this case study, the company claimed it had organized an off-site vote in December 2017 where 99% of employees voted in favour of ending the work stoppage. Full response: https://cnca-rcrce.ca/site/wp-content/uploads/2023/01/Torex-Gold-Response-to-CNCA-Case-Study-Dec-2_22.pdf. However, for a company to organize such a vote would immediately raise flags around credibility. For example, in Canada, votes are organized by unions or the Ministry of Labour. The serious allegations of worker intimidation and other threats to workers’ freedom of association profiled in this case study, if true, would further call into question the credibility of such a company organized union vote. See also Morrow, Adrian. Deadly mine strike highlights accusations NAFTA used to exploit Mexican workers. Globe and Mail. November 24, 2017. https://www.theglobeandmail.com/news/world/deadly-mine-strike-highlights-accusations-nafta-used-to-exploit-mexican-workers/article37086706/ Accessed August 13, 2021.

^[25] Independent Mexico Labor Expert Board. Interim Report: Independent Mexico Labor Expert Board. December, 2020. P. 7. https://www.usw.org/news/media-center/releases/2020/2020/IMLEB-Interim-Report-December-2020-Final-as-approved-12-14.pdf Accessed August 23, 2020.

^[26] Red Mexicana de Afectados por la Minería. Communiqué. Canadian Mining Company torex Gold Resources Inc; Archetype of Violence in Guerrero. October 4, 2019. https://movimientom4.org/2019/10/canadian-mining-company-torex-gold-resources-inc-archetype-of-violence-in-guerrero/ Accessed August 17, 2021.

^[27] UNIFOR. Third Torex Gold striker murdered in Mexico. https://www.newswire.ca/news-releases/third-torex-gold-striker-murdered-in-mexico-671133013.html Accessed August 13, 2021.

^[28] Torex Gold Resources Inc. The blockades have ended: full access to all company facilities restored. Press release. April 6, 2018. https://torexgold.com/news-and-media/news/the-blockades-have-ended-full-access-to-all-company-facilities-restored/ Accessed August 13, 2021.

^[29] Red Mexicana de Afectados por la Minería. Communiqué. Canadian Mining Company Torex Gold Resources Inc; Archetype of Violence in Guerrero. October 4, 2019. https://movimientom4.org/2019/10/canadian-mining-company-torex-gold-resources-inc-archetype-of-violence-in-guerrero/ Accessed August 17, 2021. The Mexican Network of Peoples Affected by Mining also alleges in this statement that organized crime, in support of the company, has operated in the area for years.

^[30] Arsenault, Chris. Canada not walking the talk on its miners’ abuses abroad, campaigners say. Mongabay. July 24, 2020. https://news.mongabay.com/2020/07/canada-not-walking-the-walk-on-its-miners-abuses-abroad-campaigners-say/ Accessed August 13, 2021.

^[31] United Steelworkers. July 9, 2020. USMCA: Enforcement or Bust. https://m.usw.org/blog/2020/usmca-enforcement-or-bust Accessed August 24, 2021.

^[32] Torex reply. https://cnca-rcrce.ca/site/wp-content/uploads/2023/01/Torex-Gold-Response-to-CNCA-Case-Study-Dec-2_22.pdf

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Feronia Inc., a Canadian private equity firm that filed for bankruptcy in 2020,^[2] was incorporated in the Cayman Islands, with head offices in Toronto, Ontario. It traded on the TSX-V.^[3] CDC Group – the UK government’s financial development institution (FDI) – was its majority investor along with investment from various other European and US FDIs. Between 2009 and 2020, it owned Plantations et Huileries du Congo (PHC), a palm oil company in the Democratic Republic of Congo (DRC).

Summary

• In 1911, as part of the colonial land grabbing process prevalent throughout Africa at the time, palm oil groves were usurped from the communities that fall within what is now the Lokutu, Yaligimba and Boteka plantations, in the Democratic Republic of Congo (DRC). Rights to use the land were conceded to Lord Leverhulme, founder of the PHC palm oil company and co-founder of Unilever, the global food company.^[4]
• Feronia benefited from this colonial legacy in 2009 when it purchased the rights to lease over 100,000 hectares of land from the DRC government, and when it acquired PHC as its subsidiary. 25,000 hectares of that land were used for palm oil production.
• A series of abuses have been reported over the lifespan of PHC, including during Feronia’s ownership, comprised of killings, intimidation, arbitrary arrest, wage theft and violations related to food security and to free, prior and informed consent,^[5] with no access to justice.
• A 2018 complaint submitted by communities and allies to the International Complaints Mechanism (ICM) of the German, French and Dutch development banks dragged on without resolution for more than three years during Feronia’s ownership of PHC, and led to reprisals against those who filed the complaint.^[6]
• Despite receiving numerous reports of ongoing violence and abuse that continues today,^[7] European development banks provided approximately $150 million in funding to Feronia between 2013 and 2020.

The Detail

For just over a decade, private equity firms^[8] and international development assistance have been funding large-scale land acquisition projects in Africa, like the palm oil plantations operated by Feronia’s subsidiary, PHC. Many of these projects gained access to land through the colonial model of land appropriation, and have operated in the midst of human rights abuses, violence, and community dissent. In many cases, local communities were not consulted and did not consent to the usurpation of their ancestral lands.^[9] Far from providing the purported solution to food insecurity and so-called ‘underdevelopment’ in the region, large-scale palm oil plantations and other industrial-scale projects have done little to decrease local communities’ food insecurity.^[10]

In 2009, Feronia acquired ownership of PHC,^[11] along with its associated land concessions.^[12] For over 100 years the plantations had been the site of violence and human rights abuses against workers and neighbouring community members, unjust labour practices and mistreatment of workers, environmental destruction, and rampant impunity – all of which contributed to profound mistrust of the company by impacted communities.^[13] For a decade or more, communities had made numerous written requests to the DRC government, PHC and the development banks that fund the company, asking for discussions to determine the conditions upon which PHC is permitted to operate on the land.^[14]

They have repeatedly questioned the legitimacy of the concessions licensed to Feronia when the company purchased PHC, and the lack of publicly available evidence of the boundaries of that land. When a land dispute in the Lokutu concession finally led to the intervention of provincial authorities in 2012, no record of the land title could be found in the provincial registry, and Feronia was only able to provide a certificate from 1955 that was found to be invalid.^[15] Nevertheless, Feronia continued to ignore community demands to negotiate the return of their lands.^{[16], [17]}

Feronia’s 2015 Social Impact Assessment Report referenced ongoing community grievances, concluding that they “appear to be a result of, and exacerbated by, ineffective communication between PHC management, their workforce, and non-worker communities.”^[18] While the report suggested the need for Feronia to improve stakeholder engagement, this did not happen. In 2015 and 2016, when Feronia reorganized its concessions into several smaller parcels, not only were communities not consulted, but the process was allegedly fraught with “irregularities.”^[19]

Prior to Feronia’s acquisition of the land rights – and then later, during its tenure as the owner of PHC – several people were killed or injured, reportedly at the hands of police, the military or PHC’s own private security:

• Residents of two communities located within the Lokutu plantation area allege that the company’s private security guard and national police killed four people between 1986 and 2007, including a child.^[20]
• In 2015, Jeudi Bofete Engamboi, a PHC worker, was called into the local police and brutally beaten for allegedly stealing a handful of palm oil nuts from one of the plantations. He died from his injuries the following day. When his wife and others came to protest, she was shot and killed. Reports of similar abuse and torture had also been denounced in previous years but never investigated.^[21]
• On March 16, 2019, the Congolese military shot at community members who had been demanding the return of their ancestral lands as well as legally owed wages for their work at the plantation.^[22]
• On July 21, 2019, Joel Imbangola Lunea, from the community-based human rights organization Réseau d’Information et d’Appui aux ONG en République Démocratique du Congo (RIAO-RDC), was killed while at one of the plantations, according to eyewitness testimony. In the months leading up to his death, several members of RIAO-RDC had been receiving intimidation related to their work supporting communities filing a grievance against the company.^[23] A PHC security guard was charged with the murder but was later acquitted after he was defended by a team of 32 company lawyers. Since Joel’s killing, several of his family members, including his wife, father, sister and her children, as well as his former boss, have also been killed.^[24]
• The level of tension and conflict surrounding the plantations has been exacerbated by the numerous arbitrary detentions of community members based on unfounded claims by police officers that they had stolen palm oil nuts from the company.

Impacted communities have been raising the alarm about the violence and conflict at Feronia/PHC for decades and, to date, have been unable to access justice for harms incurred.^[25] Throughout the time that Feronia operated the three plantations, the company and its major investors failed to take meaningful and swift steps to address the reported violence and killings. In 2013, the company received over $150 million from the European FDIs, despite persistent reports of human rights violations and the continued violation of free, prior and informed consent.^[26]

Instead of responding immediately to ensure that the purported violence associated with PHC was effectively investigated, and developing mechanisms to ensure any ongoing abuses were ceased, Feronia focused on developing its own non-binding environmental and social action plan (ESAP) in 2013.^[27] The ESAP was funded by the UK financial development institution, CDC Group, and was billed as a key component of CDC’s own due diligence process prior to investment in Feronia^[28] – three years later, CDC Group would come to own 67% of Feronia.^[29] In response to concerns raised by NGO reports and community members about the ongoing land conflict and violence, CDC released statements assuring that the ESAP would support improved engagement and environmental and social practices.^[30] Both Feronia and CDC Group also asserted that Feronia was working toward certification by the Roundtable for Sustainable Palm Oil (RSPO) – although they never did obtain certification^[31] – and that Feronia was adhering to the World Bank’s environmental and sustainability standards.^[32]

In 2018, community members, with the support of community organization RIAO-RDC, filed a formal complaint with the German development bank, DEG, one of Feronia’s major European investors,^[33] using the FDI’s Independent Complaints Mechanism (ICM). This was the second attempt at requesting formal mediation. One year prior, they had attempted to initiate a mediation process between the company and the communities, however the company walked out two weeks later.^[34]

A year after the complaint was submitted, the ICM proposed a ‘mediation outline’ which was agreed to by both parties. However, four years later, there was still no resolution or substantial progress.

Meanwhile, after the 2018 complaint was filed, community members faced increased repression and violence, including at the hands of police and company security guards,^[35] and in September 2019, several were arrested on bogus charges.^[36] During this time, Feronia restructured, and eventually filed for bankruptcy in 2020. This prompted a new mediation proposal from the ICM and, along with the outbreak of the COVID-19 pandemic, was the purported justification for further delays in addressing community demands for justice.^[37]

In 2020, Feronia’s remaining shares in PHC were acquired by another private equity firm, Straight KKM, based in Mauritius.^[38] Meanwhile, PHC continues to be the target of community demands and frustration, and community members continue to suffer violence and intimidation associated with the plantation. In the first three months of 2021 alone, two community members were brutally killed, allegedly by company security guards.^[39]

What if…?

If mandatory human rights due diligence legislation was in place, what would be different for the community members impacted by the ongoing land disputes and violence?

• Feronia would have had incentives to identify and assess the risk associated with ongoing community grievances about how PHC acquired the land and could have strengthened its stakeholder engagement plan to ensure it adequately responded to communities’ repeated requests to negotiate the conditions under which the company was authorized to use the land.
• If the company carried out effective human rights and environmental due diligence, it would have evaluated the high risk that the private security of its subsidiary, PHC, would continue to commit human rights abuses. It would have documented that risk in the company’s human rights and environmental due diligence reports, along with steps on how the company intended to mitigate ongoing abuses and prevent future ones from occurring.
• If Feronia failed to take concrete steps to mitigate or prevent further abuses, community members or human rights organizations that support them, such as RIAO-DRC, could have sought justice in a Canadian court, and Feronia would have had to account for and defend the steps it had taken since the abuses were first reported.

ENDNOTES

[1] ​​This case study profiles allegations of human rights abuse contained in publicly available reporting by reputable sources. The CNCA has not independently verified the allegations contained in each report cited here.

[2] Feronia Inc. Feronia Inc. Announces Court Approval of Restructuring Transaction. GlobeNewswire. September 10, 2020. https://www.globenewswire.com/en/news-release/2020/09/10/2091740/0/en/Feronia-Inc-Announces-Court-Approval-of-Restructuring-Transaction.html

[3] Sedar. Feronia Inc. Profile. https://www.sedar.com/DisplayProfile.do?lang=EN&issuerType=03&issuerNo=00025224 Accessed January 14, 2022. The company was backed by TriNorth Capital Inc, a Canadian hedge fund, and ‘venture capitalist’ Ravi Sood. See Arsenault, Chris. Exclusive: Taxpayer funds save Congo plantation paying workers $1/day. Reuters, November 12, 2014. http://news.trust.org/item/20141112163534-sptur/ Accessed January 16, 2022.

[4] RIAO-RDC et. al. 2021. Development Finance as Agro-Colonialism: European development bank funding of Feronia PHC oil palm plantations in the Democratic Republic of Congo. https://www.cidse.org/wp-content/uploads/2021/02/EN-Development_Finance_as_Agro_Colonialism_Feronia_PHC.pdf Accessed January 9, 2021; RIAO-RDC, AEFJN, Entraide et Fraternité, GRAIN, SOS Faim, UMOYA, urgewald, War on Want and WRM. Land conflicts and shady finances plague DR Congo palm oil company backed by development funds. Grain.org. November 2, 2016. https://grain.org/article/entries/5564-land-conflicts-and-shady-finances-plague-dr-congo-palm-oil-company-backed-by-development-funds Accessed January 23, 2022. See page 8, box 2.

[5] Africa Europe Faith and Justice Network, Terre Solidaire, CNCD, Entraide & Fraternité, FIAN Belgium, RAO. Large-scale Land Acquisition in Africa: Impacts, Conflicts and Human Rights Violations. Africa-EU Partnership 2021 Our Land is Our Life: Policy Brief. December 2021. https://www.cidse.org/wp-content/uploads/2021/12/EN-Land-Briefing-Feronia.pdf Accessed December 23, 2021.

[6] Africa Europe Faith and Justice Network, Terre Solidaire, CNCD, Entraide & Fraternité, FIAN Belgium, RAO. Large-scale Land Acquisition in Africa: Impacts, Conflicts and Human Rights Violations. Africa-EU Partnership 2021 Our Land is Our Life: Policy Brief. December 2021. https://www.cidse.org/wp-content/uploads/2021/12/EN-Land-Briefing-Feronia.pdf Accessed December 23, 2021.

[7] RIAO-RDC et. al. 2021. Development Finance as Agro-Colonialism: European development bank funding of Feronia PHC oil palm plantations in the Democratic Republic of Congo. https://www.cidse.org/wp-content/uploads/2021/02/EN-Development_Finance_as_Agro_Colonialism_Feronia_PHC.pdf Accessed January 9, 2021.

[8] GRAIN. Barbarians at the barn: private equity sinks its teeth into agriculture. Report. September 29, 2020. https://grain.org/en/article/6533-barbarians-at-the-barn-private-equity-sinks-its-teeth-into-agriculture Accessed January 20, 2022.

[9] RIAO-RDC et. al. 2021. Development Finance as Agro-Colonialism: European development bank funding of Feronia PHC oil palm plantations in the Democratic Republic of Congo. https://www.cidse.org/wp-content/uploads/2021/02/EN-Development_Finance_as_Agro_Colonialism_Feronia_PHC.pdf Accessed January 9, 2021; RIAO-RDC et. al. 2021. Development Finance as Agro-Colonialism: European development bank funding of Feronia PHC oil palm plantations in the Democratic Republic of Congo. https://www.cidse.org/wp-content/uploads/2021/02/EN-Development_Finance_as_Agro_Colonialism_Feronia_PHC.pdf Accessed January 9, 2021.

[10] Africa Europe Faith and Justice Network, Terre Solidaire, CNCD, Entraide & Fraternité, FIAN Belgium, RAO. Large-scale Land Acquisition in Africa: Impacts, Conflicts and Human Rights Violations. Africa-EU Partnership 2021 Our Land is Our Life: Policy Brief. December 2021. https://www.cidse.org/wp-content/uploads/2021/12/EN-Land-Briefing-Feronia.pdf Accessed December 23, 2021.

[11] RIAO-RDC et. al. 2021. Development Finance as Agro-Colonialism: European development bank funding of Feronia PHC oil palm plantations in the Democratic Republic of Congo. https://www.cidse.org/wp-content/uploads/2021/02/EN-Development_Finance_as_Agro_Colonialism_Feronia_PHC.pdf Accessed January 9, 2021.

[12] RIAO-RDC et. al. 2021. Development Finance as Agro-Colonialism: European development bank funding of Feronia PHC oil palm plantations in the Democratic Republic of Congo. https://www.cidse.org/wp-content/uploads/2021/02/EN-Development_Finance_as_Agro_Colonialism_Feronia_PHC.pdf Accessed January 9, 2021.

[13] Africa Europe Faith and Justice Network, Terre Solidaire, CNCD, Entraide & Fraternité, FIAN Belgium, RAO. Large-scale Land Acquisition in Africa: Impacts, Conflicts and Human Rights Violations. Africa-EU Partnership 2021 Our Land is Our Life: Policy Brief. December 2021. P. 6. https://www.cidse.org/wp-content/uploads/2021/12/EN-Land-Briefing-Feronia.pdf Accessed December 23, 2021.

[14] RIAO-RDC et. al. 2021. Development Finance as Agro-Colonialism: European development bank funding of Feronia PHC oil palm plantations in the Democratic Republic of Congo. https://www.cidse.org/wp-content/uploads/2021/02/EN-Development_Finance_as_Agro_Colonialism_Feronia_PHC.pdf Accessed January 9, 2021. P. 15.

[15] RIAO-RDC, AEFJN, Entraide et Fraternité, GRAIN, SOS Faim, UMOYA, urgewald, War on Want and WRM. Land conflicts and shady finances plague DR Congo palm oil company backed by development funds. Grain.org. November 2, 2016. https://grain.org/article/entries/5564-land-conflicts-and-shady-finances-plague-dr-congo-palm-oil-company-backed-by-development-funds Accessed January 16, 2022.

[16]Ibid.

[17] Oakland Institute, February 8, 2022. “New Investors Exposed Behind the Human Rights Crisis at the PHC Oil Palm Plantations in DRC.” Accessed March 11, 2022. https://www.oaklandinstitute.org/meet-investors-behind-phc-oil-palm-plantations-drc.

[18] Digby Wells Environmental. Feronia Environmental and Social

Assessment. Summary Report. 2015. https://feronia.com/uploads/2018-02-08/esasummaryreportenglish71268.pdf Accessed January 23, 2022. P. 46.

[19] KFW DEG. PHC (Feronia) / 18-002. https://www.deginvest.de/%C3%9Cber-uns/Verantwortung/Beschwerdemanagement/Feronia/ Accessed January 9, 2021. See pages 4, 5 and 9.

[20] RIAO-RDC, AEFJN, Entraide et Fraternité, GRAIN, SOS Faim, UMOYA, urgewald, War on Want and WRM. Land conflicts and shady finances plague DR Congo palm oil company backed by development funds. Grain.org. November 2, 2016. https://grain.org/article/entries/5564-land-conflicts-and-shady-finances-plague-dr-congo-palm-oil-company-backed-by-development-funds Accessed January 16, 2022.

[21] World Rainforest Movement. Feronia in the Democratic Republic of the Congo: Harassment, violence and oppression. Bulletin 223. September 21, 2017. https://wrm.org.uy/articles-from-the-wrm-bulletin/section1/feronia-in-the-democratic-republic-of-the-congo-harassment-violence-and-oppression/ Accessed January 17, 2022.

[22] Human Rights Watch. A dirty investment: European development banks’ link to abuses in the Democratic Republic of Congo’s palm oil industry. November 25, 2019. https://www.hrw.org/report/2019/11/25/dirty-investment/european-development-banks-link-abuses-democratic-republic#:~:text=(London%2C%20November%2025%2C%202019,in%20a%20report%20released%20today

[23] RIAO-RDC. Land defender violently killed by a security guard of a Canadian palm oil company in the DR Congo. Farmlandgrab.org, July 22, 2019. https://www.farmlandgrab.org/post/view/29061-land-defender-violently-killed-by-a-security-guard-of-a-canadian-palm-oil-company-in-the-dr-congo Accessed January 16, 2022.

[24] RIAO-RDC et. al. 2021. Development Finance as Agro-Colonialism: European development bank funding of Feronia PHC oil palm plantations in the Democratic Republic of Congo. https://www.cidse.org/wp-content/uploads/2021/02/EN-Development_Finance_as_Agro_Colonialism_Feronia_PHC.pdf Accessed January 9, 2021. P. 19.

[25] Africa Europe Faith and Justice Network, Terre Solidaire, CNCD, Entraide & Fraternité, FIAN Belgium, RAO. Large-scale Land Acquisition in Africa: Impacts, Conflicts and Human Rights Violations. Africa-EU Partnership 2021 Our Land is Our Life: Policy Brief. December 2021. https://www.cidse.org/wp-content/uploads/2021/12/EN-Land-Briefing-Feronia.pdf Accessed December 23, 2021; Plainte contre la Société PHC/Feronia à Lokutu. Letter to the Prime Minister of the DRC from the Indigenous communities of Basoko, Yahuma and Isangi. September 15, 2016. https://grain.org/media/W1siZiIsIjIwMTYvMTAvMjgvMTVfNDNfMTdfNjdfTG9rdXR1X0ZJTkFMLnBkZiJdXQ Accessed January 16, 2022.

[26] Africa Europe Faith and Justice Network, Terre Solidaire, CNCD, Entraide & Fraternité, FIAN Belgium, RAO. Large-scale Land Acquisition in Africa: Impacts, Conflicts and Human Rights Violations. Africa-EU Partnership 2021 Our Land is Our Life: Policy Brief. December 2021. https://www.cidse.org/wp-content/uploads/2021/12/EN-Land-Briefing-Feronia.pdf Accessed December 23, 2021.

[27] Feronia Inc. Our Progress. https://feronia.com/sustainability/view/our-progress Accessed January 15, 2022.

[28] CDC Group. A briefing on our investment in Feronia. November 21, 2016. https://www.cdcgroup.com/en/news-insight/news/a-briefing-on-our-investment-in-feronia/ Accessed January 15, 2022.

[29] CDC Group. A briefing on our investment in Feronia. November 21, 2016. https://www.cdcgroup.com/en/news-insight/news/a-briefing-on-our-investment-in-feronia/ Accessed January 15, 2022.

[30] Business and Human Rights Resource Centre. CDC Group response to report raises concerns about land grabs, inadequate consultations & compensation by Feronia & Unilever in DRC. Farmlandgrab.org, September 17, 2015, https://www.farmlandgrab.org/25324 Accessed January 15, 2022; and CDC Group. A briefing on our investment in Feronia. November 21, 2016. https://www.cdcgroup.com/en/news-insight/news/a-briefing-on-our-investment-in-feronia/ Accessed January 15, 2022.

[31] In its final November 23, 2020, press release on SEDAR, the company still states in the “About Feronia Inc.” section that the company is “working towards certification by the Roundtable for Sustainable Palm Oil

(RSPO) and is implementing IFC/World Bank standards for environmental and social sustainability” Feronia Inc. Feronia Inc. announces closing of restructuring transaction. November 23, 2020. Sedar.com.

[32] Feronia Inc. Feronia Inc. announces closing of restructuring transaction. Press release, November 23, 2020. Sedar.com.

[33] KFW DEG. PHC (Feronia) / 18-002. https://www.deginvest.de/%C3%9Cber-uns/Verantwortung/Beschwerdemanagement/Feronia/ Accessed January 9, 2021.

[34] RIAO-RDC. Land defender violently killed by a security guard of a Canadian palm oil company in the DR Congo. Farmlandgrab.org, July 22, 2019. https://www.farmlandgrab.org/post/view/29061-land-defender-violently-killed-by-a-security-guard-of-a-canadian-palm-oil-company-in-the-dr-congo Accessed January 16, 2022.

[35] Africa Europe Faith and Justice Network, Terre Solidaire, CNCD, Entraide & Fraternité, FIAN Belgium, RAO. Large-scale Land Acquisition in Africa: Impacts, Conflicts and Human Rights Violations. Africa-EU Partnership 2021 Our Land is Our Life: Policy Brief. December 2021. https://www.cidse.org/wp-content/uploads/2021/12/EN-Land-Briefing-Feronia.pdf Accessed December 23, 2021.

[36] RIAO-RDC et. al. 2021. Development Finance as Agro-Colonialism: European development bank funding of Feronia PHC oil palm plantations in the Democratic Republic of Congo. https://www.cidse.org/wp-content/uploads/2021/02/EN-Development_Finance_as_Agro_Colonialism_Feronia_PHC.pdf Accessed January 9, 2021.

[37] Feronia Inc. Feronia Inc. Announces Court Approval of Restructuring Transaction. GlobeNewswire. September 10, 2020. https://www.globenewswire.com/en/news-release/2020/09/10/2091740/0/en/Feronia-Inc-Announces-Court-Approval-of-Restructuring-Transaction.html Accessed January 16, 2022.

[38]Feronia Inc. Feronia Inc. Announces Closing of Restructuring Transaction. GlobeNewswire, November 23, 2020. https://www.globenewswire.com/news-release/2020/11/23/2131781/0/en/Feronia-Inc-Announces-Closing-of-Restructuring-Transaction.html Accessed January 23, 2022.

[39] Human Rights Watch. A dirty investment: European development banks’ link to abuses in the Democratic Republic of Congo’s palm oil industry. November 25, 2019. https://www.hrw.org/report/2019/11/25/dirty-investment/european-development-banks-link-abuses-democratic-republic#:~:text=(London%2C%20November%2025%2C%202019,in%20a%20report%20released%20today; Africa Europe Faith and Justice Network, Terre Solidaire, CNCD, Entraide & Fraternité, FIAN Belgium, RAO. Large-scale Land Acquisition in Africa: Impacts, Conflicts and Human Rights Violations. Africa-EU Partnership 2021 Our Land is Our Life: Policy Brief. December 2021. https://www.cidse.org/wp-content/uploads/2021/12/EN-Land-Briefing-Feronia.pdf Accessed December 23, 2021.

The post Case Study : Feronia Inc. – Violent deaths, criminalization and land grabbing appeared first on CNCA - RCRCE.

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The Marlin gold and silver mine is located in northwestern Guatemala straddling the municipalities of Sipacapa and San Miguel Ixtahuacán, San Marcos.^[2] Between 2005 and 2017, it was operated and wholly owned by Montana Exploradora, a subsidiary of Canadian mining company Glamis Gold Ltd.^[3] In 2006, it was purchased by Canadian mining giant Goldcorp Inc. Goldcorp’s headquarters were located in Vancouver and the company was registered on the TSX. Mine closure and reclamation began in June 2017,^[4] and the company was acquired by Newmont Corporation in 2019.

Summary

• Since receiving its first permit in 2003, the project received strong community opposition from the largely Indigenous Mayan population. Concerns raised at the local, national and international levels addressed the failure to consult the local population, deceptive public communications about the project, impacts on local water sources, and increased violence and conflict in the area around the mine.
• In 2010, the Inter-American Commission on Human Rights (IACHR), part of the Organization of American States, of which both Canada and Guatemala are members, called for the suspension of the mine; however, the Guatemalan government ultimately did not comply and Goldcorp continued to operate, despite ongoing opposition and mounting evidence of potential environmental contamination.
• According to well-documented allegations made in 2017 by the San Miguel Defense Front, an active community-based group, the mine’s operations have caused 10 water springs to disappear; 500 families’ homes to sustain cracks in infrastructure; and skin impacts in children from allegedly contaminated water.^[5] To this day, some community members do not have access to potable water.
• The mine closed in June 2017 with remediation efforts slated for completion by the end of 2020 and Newmont Gold officially leaving in 2026. Civil society groups report that at the time of the closure, Goldcorp had only completed 24 of the 42 recommendations for mine closure outlined in its own 2010 Human Rights Assessment,^[6] a clear example of the failure of non-binding human rights reporting mechanisms.
• Both Goldcorp’s and Newmont’s opacity related to the closure process and the lack of government oversight pose an ongoing risk to impacted communities, who have been left to deal with the long-term environmental impacts.^[7]

The Detail

In January, 2005, Raul Castro Bocel was fatally shot and at least 20 others injured when approximately 1,200 soldiers and 400 police officers opened fire on unarmed protesters.^[8] For 40 days, the protesters had been blocking the passage of mining equipment destined for the Marlin mine. It was clear that the government’s intention was to protect this investment, at all costs, while ignoring concerns about potential environmental harm from local opposition.

Communities reject Marlin mine

When Goldcorp Inc. acquired the Marlin mine in 2006, the project had already elicited a number of concerns from the largely Indigenous neighbouring population,^[9] including the Guatemalan government’s failure to consult the Indigenous population affected by the mine. In June 2005, the Municipality of Sipacapa held a plebiscite to address the lack of consultation, voting almost unanimously against the mine.^[10] Glamis Gold filed an injunction against the vote, which was denied; however, legal action initiated by the Ministry of Energy and Mines days before the vote resulted in a May 2007 Constitutional Court decision that the results were not legally binding and as a result insufficient to halt the mine’s operations.^[11] The Marlin mine therefore continued operating, despite local rejection, and for over a decade became a focal point for local and national opposition to Canadian mining in Guatemala.^[12] Violence and tension heightened especially between 2005 and 2011 resulting in at least four deaths and dozens of injuries. Given the high rate of impunity in the country, these incidents were never fully investigated.^[13]

Meanwhile, dozens of arrest warrants were filed against community leaders and protesters.^[14]

Formal attempts to raise concerns about the mine

As evidence of the mine’s potential harms on local water supplies mounted,^[15] community members and allies initiated a number of formal processes at international levels, including a complaint to the International Finance Corporation’s Compliance Advisor Ombudsman, in 2005;^[16] and a 2009 Request for Review with the Canadian National Contact Point for the Organization for Economic Co-operation and Development (OECD),^[17] among others. None of these processes, however, led to an independent investigation.

Finally, on May 20, 2010, the IACHR responded to a 2007 petition from 13 communities near the mine, which was then extended to additional communities. It called on the Guatemalan government to suspend the mine’s operations; implement a number of measures to prevent environmental contamination, and attend to health and safety concerns.^[18] Following a visit to Guatemala one month later, the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous People, James Anaya, urged the Guatemalan government to act on the IACHR’s guidelines and to conduct an investigation into allegations that the Marlin mine was adversely impacting Indigenous peoples.^[19]

In a move that sparked national and international outrage, the Guatemalan government ultimately decided not to adhere to the IACHR guidelines and refused to suspend the mine.^[20] The government justified its decision through an ‘administrative review’ that it conducted, which included an alleged review of 23 studies that were never made public – demonstrating a clear lack of transparency.^[21] For its part, Goldcorp had embarked on its own Human Rights Assessment (HRA) back in 2007, which was released three days prior to the IACHR’s response, on May 17, 2010. The HRA also called for a “halt” to activities, cited various human rights abuses and noted a “systemic failure to address grievances in the communities.”^[22] It also found that water quality reports from government regulators failed to provide conclusive evidence about the potential health impacts of the mine. Despite these findings, the company failed to implement various of the report’s key recommendations, in particular halting further land acquisitions, exploration, and mine expansion.^[23] Subsequently, in December 2011, the IACHR lifted its suspension order and instead required that Goldcorp adopt the necessary measures to ensure that the neighbouring communities have access to potable water.

Reaction from international and Canadian organizations

Since 2004, international organizations and solidarity networks have been closely following developments at the Marlin mine, raising countless alarm bells. In Canada, they have penned urgent actions^[24] to Guatemalan and Canadian officials, written reports, and met on numerous occasions with Canadian Members of Parliament and Global Affairs Canada staff in both Ottawa and Guatemala. Goldcorp’s own shareholders presented resolutions calling for the suspension of the mine in 2008 and 2011^[25] due to concerns related to the violation of the right to free, prior and informed consent and increased violence and environmental risks, and another one in 2012 calling on the company to increase its water remediation budget for mine closure from US$2 million to US$30 million due to concerns related to long-term health impacts on communities.^[26] None of these actions, however, deterred operations at the mine. In a response to a 2014 Amnesty International letter of concern regarding ongoing tensions, Goldcorp stated that the company did not believe “significant tension persist[ed]” and blamed any ongoing resistance on “outsiders” to the community and misinformation campaigns.^[27] Canadian organisations launched a judicial review seeking access to information regarding the role of the Canadian government in this saga.^[28]

What if…?

If mandatory human rights and environmental due diligence legislation was in place, what would be different for the communities impacted by GoldCorp’s Marlin mine in Guatemala?

• The company would have been legally required to respect community members’ right to free, prior and informed consent, to a healthy, safe and sustainable environment – including to potable water – and to be free from violence and bodily harm.
• If those rights were ignored by Goldcorp, community members and their allies could have sought justice in a Canadian court.
• Impacted communities would not have to rely solely on the possibility that the Government of Guatemala – itself subject to allegations of corruption – would finally be moved to provide compensation and access to potable water after years of local organizing. They would have had a legal right to access justice in Canada to make a claim for compensation for the harm they suffered.

How?

Goldcorp would have been obliged to put in place measures to ensure respect for human rights and the environment throughout its global operations and supply chains and to carry-out risk-based due diligence to identify, prevent, cease, mitigate and account for the risk of adverse impacts on the environment and human rights by its subsidiaries.

IDENTIFY AND ASSESS:

If Goldcorp had undertaken an adequate risk assessment it would have identified:

• the Guatemalan government’s history of systemic violence and discrimination against the Indigenous Mayan population, especially in relation to mining and hydroelectric projects,^[29] and therefore the high risk that the Guatemalan government would not properly consult the impacted communities prior to approving a mine permit and that operating the mine despite local opposition could lead to social unrest, violence and human rights abuses;
• that the lack of transparent environmental monitoring makes it difficult for communities to access information about the mine’s potential impacts, and access remedy for long-term environmental harm and health impacts; and
• it could have identified the need for an independent human rights impact assessment and ensured that any findings from similar key reports related to human rights and environmental impact were made available and accessible to impacted communities.

PREVENT, MITIGATE, ACCOUNT FOR:

Goldcorp would have had to take steps to ensure the prevention of serious negative impacts to the environment, human rights and the long-term health of communities surrounding its Marlin project, for instance by:

• using its leverage with the Guatemalan government to ensure communities were properly consulted according to international and customary law;
• establishing regular independent and transparent human rights and environmental monitoring and meaningful accountability mechanisms; and
• remedying harms that occurred by paying to repair damages allegedly caused by its subsidiary’s operations (e.g. the costs of repairs to homes, health treatments, infrastructure to provide access to potable water and/or to ensure safe and thorough closure procedures are instituted).

Goldcorp would have had to establish policies and procedures to mitigate future risk, including:

• ensuring the establishment of a monitoring and oversight body to ensure compliance with the recommendations of its own Human Rights Assessment process, or ensuring from the outset that the HRA was fully independent.

If Goldcorp failed to take concrete steps to prevent or mitigate abuses, community members or human rights and environmental organizations that support them could have sought justice in a Canadian court, and Goldcorp would have had to account for and defend the steps it had taken to prevent harm caused by its subsidiary.

The adequacy of Goldcorp’s due diligence procedures would be held to account, such as its:

• failure to halt operations in response to wide scale opposition that resulted in death, injury and other harms against the Indigenous population and community leaders;
• failure to put in place proper environmental safety measures despite significant evidence pointing to the risk of environmental harms including contamination of water sources and decreased access to clean water supplies and / or failure to halt operations if prevention and mitigation measures were insufficient; and its
• failure to establish reasonable mitigation measures such as proper mine closure and sufficient financial compensation to local communities for the costs of environmental remediation.

ENDNOTES

[1] ​​This case study profiles allegations of human rights abuse contained in publicly available reporting by reputable sources. The CNCA has not independently verified the allegations contained in each report cited here.

[2] In 2003, the Guatemalan government granted Montana Exploradora an exploitation license and the project received a USD $45 million loan from the International Finance Corporation (IFC). Construction began in 2004 and the mine began to operate in 2005.

[3] According to SEDAR, Glamis Gold was incorporated in British Columbia and Goldcorp Inc. was incorporated in Ontario.

[4] Newmont Gold. 2021. Stakeholder claims, events and Newmont responses: Human rights at Marlin mine, Guatemala. https://www.newmont.com/sustainability/Newmont-Responses/default.aspx Accessed August 28, 2021.

[5] FREDEMI. 2017. Petition regarding the Marlin mine. Maritimes-Guatemala Breaking the Silence Network. https://breakingthesilenceblog.com/2017/04/26/fredemi-petition-regarding-the-marlin-mine/ Accessed August 23, 2021.

[6] McVicar, Jackie. When you benefit from destruction: United Church Pension Board, Federal Government put economic inte. United for Mining Justice. https://www.unitedforminingjustice.com/single-post/2019/05/14/when-you-benefit-from-destruction-united-church-pension-board-federal-government-put-econ Accessed March 27, 2022.

[7] Kamphuis, Charis and Connolly, Charlotte. The two faces of Canadian diplomacy: Undermining International Institutions to Support Canadian Mining. Justice & Corporate Accountability Project. February 4, 2022. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4025474.

[8] Peace Brigades International. Metal Mining and Human Rights in Guatemala: The Marlin mine in San Marcos. https://www.peacebrigades.org/fileadmin/user_files/projects/guatemala/files/english/PBI-mining-human-rights-guate.pdf Accessed August 23, 2021. For a stunning image of the police and military protection afforded to the mining equipment, see page 8.

[9] MiningWatch Canada. Mayan Organisations and Supporters Demand the Closure of the Marlin Mine in San Marcos, Guatemala. March 27, 2006. https://miningwatch.ca/news/2006/3/27/mayan-organisations-and-supporters-demand-closure-marlin-mine-san-marcos-guatemala Accessed August 20, 2021.

[10] International Labour Organization. C169 – Indigenous and Tribal Peoples Convention, 1989 (No. 169). See article 15. https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169 Accessed August 20, 2021.

[11] Imai, Shin, Mehranvar, Ladan, and Sander, Jennifer. 2007. Breaching Indigenous Law: Canadian Mining in Guatemala. Indigenous Law Journal. Volume 6 (1). P.125. https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1803&context=scholarly_works Accessed August 23, 2021.

[12] W5. W5: Searching for gold at the end of the Guatemalan rainbow. CTV News. April 17, 2010. https://www.ctvnews.ca/w5-searching-for-gold-at-the-end-of-the-guatemalan-rainbow-1.502718 Parts II, III, IV. Accessed August 21, 2021.

[13] Amnesty International. 2014. Guatemala – Mining in Guatemala: Rights at Risk. P.12. https://www.amnesty.org/en/wp-content/uploads/2021/06/amr340022014en.pdf Accessed August 21, 2021; Abbott, Jeff. Something in the water: The lasting violence of a Canadian mining company in Guatemala. August 28, 2018. https://briarpatchmagazine.com/articles/view/something-in-the-water Accessed August 23, 2021; Amnesty International. Urgent Action: Mine activists beaten and threatened. March 3, 2011. https://www.amnesty.org/en/wp-content/uploads/2021/07/amr340022011en.pdf Accessed August 23, 2021; MiningWatch Canada. Violence Near Goldcorp Mine in Guatemala Underscores Need for Mine Suspension. March 9, 2011. Letter to Guatemalan government from the Coalition against Unjust Mining in Guatemala (CAMIGUA) https://miningwatch.ca/blog/2011/3/9/violence-near-goldcorp-mine-guatemala-underscores-need-mine-suspension Accessed August 23, 2021.

[14] Abbott, Jeff. Something in the water: The lasting violence of a Canadian mining company in Guatemala. August 28, 2018. https://briarpatchmagazine.com/articles/view/something-in-the-water Accessed August 23, 2021; Justice and Accountability Project. 2016. The ‘Canada Brand’: Violence and Canadian mining companies in Latin America. See Pp 59-61 for a comprehensive list of reported violence between 2005 and 2011. https://justice-project.org/wp-content/uploads/2016/10/the-canada-brand-report5.pdf Accessed August 20, 2021; Amnesty International. Urgent Action: Mine activists beaten and threatened. March 3, 2011, https://www.amnesty.org/en/wp-content/uploads/2021/07/amr340022011en.pdf Accessed August 23, 2021; MiningWatch Canada. Violence Near Goldcorp Mine in Guatemala Underscores Need for Mine Suspension. March 9, 2011. Letter to Guatemalan government from the Coalition against Unjust Mining in Guatemala (CAMIGUA) https://miningwatch.ca/blog/2011/3/9/violence-near-goldcorp-mine-guatemala-underscores-need-mine-suspension Accessed August 23, 2021; Amnesty International. Urgent Action: One mining activist shot, another threatened. July 10, 2021. https://www.amnesty.org/en/wp-content/uploads/2021/07/amr340082010en.pdf Accessed August 23, 2021.

[15] Moran, Robert E. Subject. CAO Marlin Mine Assessment: Technical Responses. September 28, 2005. MiningWatch Canada. https://miningwatch.ca/sites/default/files/marlin_cao_response_0.pdf Accessed March 27, 2022; Moore, Jen. Undermining human rights: A report back from northwestern Guatemala. MiningWatch Canada. December, 22, 2010. https://miningwatch.ca/blog/2010/12/22/undermining-human-rights-report-back-northwestern-guatemala Accessed August 30, 2021; Physicians for Human Rights. Toxic Metals and Indigenous Peoples Near the Marlin Mine in Western Guatemala: Potential Exposures and Impacts on Health. An expert scientific report. May 2010. https://phr.org/wp-content/uploads/2010/05/guatemala-toxic-metals-1.pdf Accessed August 19, 2021; E-tech International. Evaluation of Predicted and Actual Water Quality Conditions at the Marlin Mine, Guatemala. August 2010. https://static1.squarespace.com/static/52d71403e4b06286127a1d48/t/530d2ca6e4b0238c30f90539/1393372326990/Evaluation+of+Predicted+and+Actual+Water+Quality+Conditions+at+the+Marlin+Mine%2C+Guatemala+August+2010.pdf Accessed August 23, 2021.

[16] Compliance Advisor Ombudsman. Assessment of a complaint submitted to CAO in relation to the Marlin Mining Project in Guatemala. Office of the Compliance Advisor/Ombudsman International Finance Corporation/ Multilateral Investment Guarantee Agency. September 7, 2005. http://www.cao-ombudsman.org/cases/document-links/documents/CAO-Marlin-assessment-English-7Sep05.pdf Accessed August 23, 2021. The CAO’s assessment asserted that the communities were not at risk of experiencing either of these issues, although did call for additional assessment and monitoring and noted the lack of trust between the communities and the company.

[17] The NCP offered to provide facilitated dialogue between the complainants and the company; however, community members had clearly stated in their petition that they were not requesting dialogue given the lack of trust between the company and communities, they wanted an independent investigation. See Global Affairs Canada. May 3, 2011. Canadian National Contact Point for The OECD Guidelines for Multinational Enterprises. Final Statement of the Canadian National Contact Point on the Notification dated December 9, 2009, concerning the Marlin mine in Guatemala, pursuant to the OECD Guidelines for Multinational Enterprises. https://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/final_stat-marlin-decl_finale.aspx?lang=eng Accessed August 20, 2021; Coumans. Catherine. Mining, human rights and the socially responsible investment industry: considering community opposition to shareholder resolutions and implications of collaboration. Journal of Sustainable Finance & Investment. Vol 2(1). January 2012. P. 50.

[18] Inter-American Commission on Human Rights. Report No. 20/14 Petition 1566-07. Report on admissibility: Communites of the Sipakepense and Mam Mayan People of the Municipalities of Sipacapa and San Miguel Ixtahuacán, Guatemala. https://www.oas.org/en/iachr/decisions/2014/GTAD1566-07EN.pdf Accessed August 25, 2021.

[19] United Nations Human Rights Council. Report of the Special Rapporteur on the situation of human

rights and fundamental freedoms of indigenous people, James Anaya. Fifth session. A/HRC/18/35/Add.3.

http://unsr.jamesanaya.org/docs/special/2011-special-guatemala-a-hrc-18-35-add3_en.pdf Accessed August 17, 2021.

[20] Observatorio Latinoamericano de Conflictos Ambientales. El Ministerio de Energía y Minas desiste de suspender operaciones en Mina Marlin. July 20, 2011. http://www.olca.cl/oca/guatemala/mineras041.htm Accessed August 23, 2021; MiningWatch Canada. Guatemala defies human rights body, refused to suspend Marlin mine. August 4, 2011. https://miningwatch.ca/news/2011/8/4/guatemala-defies-human-rights-body-refuses-suspend-marlin-mine Accessed August 23, 2021. For alleged Canadian government involvement in swaying the Guatemalan government’s decision to suspend the mine see CNCA. Imai v. Canada: Access-to-information lawsuit concerning Canada’s intervention in human rights case against Goldcorp in Guatemala. Canadian Network for Corporate Accountability. March, 2021. https://cnca-rcrce.ca/site/wp-content/uploads/2021/03/JR-Backgrounder.pdf Accessed August 21, 2021.

[21] MiningWatch Canada. “FAQ Sheet: What you may not know about the Marlin mine in Guatemala.” May 2011. https://miningwatch.ca/sites/default/files/FAQ_What_you_may_not_know_about_Goldcorp_Marlin_Mine_in_Guatemala_May_2011.pdf Accessed August 19, 2021.

[22] On Common Ground Consultants Inc. Human Rights Assessment of Goldcorp’s Marlin Mine. Commissioned on behalf of Goldcorp by the Steering Committee for the Human Rights Impact Assessment of the Marlin Mine. May, 2010.
https://s24.q4cdn.com/382246808/files/doc_downloads/2020/09/OCG_HRA_Marlin_Mine_June_7.pdf Accessed August 24, 2021.

[23] MiningWatch Canada. “FAQ Sheet: What you may not know about the Marlin mine in Guatemala.” May 2011. https://miningwatch.ca/sites/default/files/FAQ_What_you_may_not_know_about_Goldcorp_Marlin_Mine_in_Guatemala_May_2011.pdf Accessed August 19, 2021; Coumans. Catherine. Mining, human rights and the socially responsible investment industry: considering community opposition to shareholder resolutions and implications of collaboration. Journal of Sustainable Finance & Investment. Vol 2(1). January 2012. Pp. 44–63.

[24] Maritimes-Guatemala Breaking the Silence Network. Urgent Action: Goldcorp’s Marlin Mine (San Marcos, Guatemala): Crackdown on Local Citizens Opposing Goldcorp’s “Marlin” Mine Escalates in San Marcos, Guatemala. July 4, 2008. http://breakingthesilencenet.blogspot.com/2008/07/urgent-action-goldcorps-marlin-mine-san.html Accessed August 21, 2021; MiningWatch Canada. Urgent Action: Shooting of Community Leader Opposing Goldcorp Inc.’s Marlin Mine in Guatemala; Threats Against Local Leaders Escalate. July 13, 2010. https://miningwatch.ca/blog/2010/7/13/urgent-action-shooting-community-leader-opposing-goldcorp-incs-marlin-mine-guatemala. Accessed August 21, 2021; Amnesty International. March 3, 2011. Urgent Action: Mine activists beaten and threatened. https://www.amnesty.org/en/wp-content/uploads/2021/07/amr340022011en.pdf Accessed August 21, 2021; among many others.

[25] Shareholder resolution submitted to Goldcorp Inc. on March 16, 2011. Available miningwatch.ca. https://miningwatch.ca/blog/2011/3/22/goldcorp-shareholder-resolution-asks-suspension-marlin-mine-guatemala. Accessed August 23, 2021. There was also a persistent, though unsuccessful campaign by groups such as Mining the Connections, a working group of the Maritimes Conference of the United Church of Canada Pension Board to divest from the company. See McVicar, Jackie. Practice what you preach: Maritime groups’ efforts key to United Church pension divestment from Goldcorp. Halifax Media Co-op. September 9, 2015. http://halifax.mediacoop.ca/story/practise-what-you-preach/33875.html Accessed August 23, 2021.

[26] MiningWatch Canada. Shareholders Say Guatemalans Should Not Have to Pay for Goldcorp’s Mess. April 17, 2012. MiningWatch Canada. https://miningwatch.ca/news/2012/4/17/shareholders-say-guatemalans-should-not-have-pay-goldcorps-mess Accessed March 27, 2022.

[27] Amnesty International. 2014. Guatemala – Mining in Guatemala: Rights at Risk. P.12. https://www.amnesty.org/en/wp-content/uploads/2021/06/amr340022014en.pdf Accessed August 21, 2021.

[28] https://cnca-rcrce.ca/issues-analysis/canadas-diplomatic-support/.

[29] Amnesty International. Guatemala: Human Rights Defenders at Risk. Amnesty International. November 1, 2004. https://www.amnesty.org/en/documents/amr34/019/2004/en/ Accessed March 27, 2022; For an overview of the first Canadian mine in Guatemala, INCO and the subsequent expulsion of and human rights abuses against the Maya Q’eqchi Indigenous population, see Nolin, Catherine and Stephens, Jaqui. We have to protect the investors: ‘Development’ and Canadian mining in Guatemala. Journal of Rural and Community Development. 5(3). 2010. Pp. 37-70.

The post Case Study : Goldcorp Inc.’s Marlin mine – Environmental contamination and human rights abuses appeared first on CNCA - RCRCE.

Case 3 of 6 ^[1]

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Summary

• In 2018, allegations of labour violations and forced labour at Malaysian factories owned by the world’s largest rubber glove producer, Top Glove,^[2] made international news. In July 2020, U.S. Customs and Border Protection (CBP) barred imports into the U.S. of goods linked to Top Glove. The agency said it “had found evidence of forced labour practices” at Top Glove facilities.
• In January 2021, it was revealed that at least 18 Canadian companies had imported into Canada Personal Protective Equipment (PPE) from Top Glove,^[3] despite the U.S. ban.^[4]
• In response to the U.S. ban, Top Glove committed to improving its labour conditions and stopping the use of forced labour. CBP lifted the ban in September 2021.^[5]
• In January 2022, allegations of forced labour linked to another Malaysian glove manufacturer, Supermax Corp., hit international headlines. CBP had barred imports from Supermax in October 2021, but its products were nonetheless being imported into Canada by Supermax Healthcare Canada, which had contracts with Public Services and Procurement Canada for distribution to Canadian healthcare facilities. Supermax says it has “remediated” the allegations that formed the basis of the U.S. ban and expects the ban to be lifted in the near future.^[6]

The Detail

Malaysia produces approximately 70% of the global supply of rubber gloves, including those used by Canadian hospitals and health care facilities during the COVID-19 pandemic.^[7] Reports of workplace injuries, excessive hours and cramped living quarters at Malaysian glove factories have been well documented by human rights organizations.^[8] Most of the workers at Malaysian glove factories are migrant workers from neighbouring countries who pay high fees to recruitment agencies to gain access to employment. A July 2021 study by the Modern Slavery & Human Rights Policy and Evidence Centre in the UK, which surveyed approximately 1,491 workers and carried out interviews with migrant workers, manufacturers and government officials, revealed that with the onset of the pandemic, pressure on workers to meet increased production goals and overall working conditions at factories worsened. This contributed to a range of abuses characterized as forced labour,^[9] as defined by the International Labour Organization’s forced labour indicators.^[10] These abuses include:

• factory management taking advantage of workers’ vulnerability, especially those with precarious migratory status;
• deception by recruitment agencies and employers about the terms of work contracts in relation to hours worked for the pay received;
• physical and sexual violence, intimidation and threats to deter workers from raising concerns related to high recruitment fees – which often leave workers with large amounts of debt – or other grievances; and
• workers’ passports being retained by the recruitment agency, making it impossible for workers to leave the country or produce proof of their migratory status if stopped by police.

Finally, during the pandemic, the situation at Malaysian glove factories worsened, with a marked increase in restrictions on movement, isolation, abusive working and living conditions, and excessive overtime.^[11]

Top Glove

In the case of Top Glove, Malaysia’s largest rubber glove producer, reports dating back to at least 2018 show migrant workers working excessive hours to pay off debts to recruiters. The company’s managing director at the time vowed to put a stop to this practice.^[12] Just over two years later, however, CBC Marketplace aired a special documenting insider footage of Top Glove workers’ ongoing dangerous living conditions, debt bondage, excessive work hours, abusive working conditions, and cramped living quarters where approximately 25 people sometimes shared a single room with a common bathroom.^[13]

In July 2020, U.S. Customs and Border Protection (CBP) banned goods produced by some of Top Glove’s Malaysian subsidiaries under the suspicion that their goods were being made with forced labour.^[14] In March 2021, CBP confirmed that it “found forced labour practices” in factories linked to Top Glove.^[15] A provision in the Canada-United States-Mexico Agreement (CUSMA), which came into effect in July 2020, makes it illegal for Canadian companies to import goods made with forced labour.^[16] However, according to Above Ground, Canada has not acted swiftly or effectively to address issues of forced labour in Canadian companies’ supply chains.^[17] Canada has failed to effectively enforce the new forced labour provision and Canadian companies continued to import gloves from at least one Malaysian Top Glove factory.^[18]

Since 2018, at least 18 companies, including Medline Canada and Superior Glove,^[19] have imported goods into Canada from Top Glove and its subsidiaries.^[20] In September 2021, the U.S. lifted its ban after confirming that the manufacturing giant had “addressed all indicators of forced labor identified at its Malaysian facilities.”^[21]

Supermax

In another case of alleged forced labour at a Malaysian glove factory, Canada continued to allow goods linked to Supermax Corp. to enter the country – despite a Withhold Release Order (WRO) issued by CBP in October 2021 which barred imports from this manufacturer.^[22] One of the buyers importing into Canada was Supermax Healthcare Canada, a company that supplies medical gloves to Public Services and Procurement Canada (PSPC), the government agency responsible for procuring medical equipment and supplies for Canadian health and essential service sectors.^[23] While PSPC ultimately put a hold on deliveries from Supermax Healthcare Canada and terminated its contracts with the company while the allegations at its Malaysian supplier factory were being investigated,^[24] the products themselves were never formally banned from entering Canada.^[25] According to Above Ground, Canada Border Services Agency (CBSA) has not effectively enforced its provision against importing goods made with forced labour. According to CBSA, the agency “may take enforcement action only in rare cases…[and] doesn’t plan to publicly report which companies are involved.”^[26]

Canada’s lukewarm response to this major human rights issue is concerning. It points to the government’s failure to ensure that Canadian companies carry out effective human rights due diligence throughout their supply chain. Canada’s approach to uncovering egregious human rights abuses in the supply chains of companies importing goods into Canada emphasises the need for a comprehensive and legally binding approach to ensure products made for Canadian markets – including lifesaving PPE – are not made using forced labour, or under other conditions that violate workers’ rights and safety.

What if…?

If mandatory human rights due diligence legislation had been in place, what would have been different for workers in Malaysian glove factories?

• It would not have been as easy for companies like Medline Canada, Superior Glove, and Supermax Healthcare Canada to overlook the conditions at the factories from which their glove shipments were imported.
• If those companies had carried out an effective human rights assessment prior to contracting those factories, they could have taken steps to assure that the factories were not using forced labour and upon discovering the use of forced labour, could have chosen to do business elsewhere.
• They could have also collaborated with other buyers to assert leverage on the factory to cease and mitigate its practice of forced labour, and to implement mechanisms to monitor and prevent future abuses.
• If the abuses continued to occur, workers and/or labour and migrant rights supporters could have brought a suit to Canadian courts alleging Medline Canada, Superior Glove and Supermax Healthcare Canada’s failure to take adequate steps to identify, evaluate, mitigate or prevent the abuses.

ENDNOTES

[1] This case study profiles allegations of human rights abuse contained in publicly available reporting by reputable sources. The CNCA has not independently verified the truth of the allegations contained in each report cited here.

[2] Beh Lih Yi. World’s top glovemaker vows clean-up as migrant workers toil in Malaysia factories. Reuters, December 6, 2018. https://www.reuters.com/article/us-malaysia-migrants-rights-glove/worlds-top-glovemaker-vows-clean-up-as-migrant-workers-toil-in-malaysia-factories-idUSKBN1O5146 Accessed January 22, 2022.

[3] CBC Marketplace. The truth about your lifesaving PPE. January 15, 2021. https://www.cbc.ca/news/marketplace/the-truth-about-your-lifesaving-ppe-1.5874589 Accessed January 22, 2022.

[4] Lee, Liz. Amid virus crisis, U.S. bars imports of Malaysia’s Top Glove over labour issues. Reuters, July 16, 2020. https://www.reuters.com/article/us-top-glove-usa/amid-virus-crisis-us-bars-imports-of-malaysias-top-glove-over-labor-issues-idUSKCN24H0K2 Accessed January 22, 2022.

[5] U.S. Customs and Border Protection. CBP Modifies Forced Labor Finding on Top Glove Corporation Bhd. Press release, September 9, 2021. https://www.cbp.gov/newsroom/national-media-release/cbp-modifies-forced-labor-finding-top-glove-corporation-bhd Accessed January 29, 2022.

[6] Email communication with representative of Supermax Corp. November 16, 2022.

[7] Szeto, Eric, Caitlin Taylor, and Asha Tomlinson. Hidden camera reveals ‘appalling’ conditions in overseas PPE factory supplying Canadian hospitals, expert says. CBC, January 15, 2021. https://www.cbc.ca/news/world/marketplace-overseas-personal-protective-equipment-manufacturing-working-conditions-1.5873213 Accessed December 27, 2022.

[8] Zsombor, Peter. Forced Labor Rising in Malaysia’s Rubber Glove Factories, Study Shows. VOA News, July 7, 2021. https://www.voanews.com/a/east-asia-pacific_forced-labor-rising-malaysias-rubber-glove-factories-study-shows/6207942.html Accessed January 22, 2022.

[9] Modern Slavery & Human Rights Policy & Evidence Center. Forced labour in the Malaysian medical gloves supply chain during the Covid-19 pandemic. Research Summary. July 2021. https://modernslaverypec.org/assets/downloads/Malaysia-research-summary.pdf Accessed January 29, 2022.

[10] International Labour Organization. ILO Indicators of Forced Labour. Special Action Programme to Combat Forced Labour. https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_203832.pdf Accessed January 22, 2022.

[11] Modern Slavery & Human Rights Policy & Evidence Center. Forced labour in the Malaysian medical gloves supply chain during the Covid-19 pandemic. Research Summary. July 2021. https://modernslaverypec.org/assets/downloads/Malaysia-research-summary.pdf Accessed January 29, 2022.

[12] Beh Lih Yi. World’s top glovemaker vows clean-up as migrant workers toil in Malaysia factories. Reuters, December 6, 2018. https://www.reuters.com/article/us-malaysia-migrants-rights-glove/worlds-top-glovemaker-vows-clean-up-as-migrant-workers-toil-in-malaysia-factories-idUSKBN1O5146 Accessed January 22, 2022.

[13] CBC Marketplace. The truth about your lifesaving PPE. January 15, 2021. https://www.cbc.ca/news/marketplace/the-truth-about-your-lifesaving-ppe-1.5874589 Accessed January 22, 2022.

[14] Lee, Liz. Amid virus crisis, U.S. bars imports of Malaysia’s Top Glove over labour issues. Reuters, July 16, 2020. https://www.reuters.com/arti

cle/us-top-glove-usa/amid-virus-crisis-us-bars-imports-of-malaysias-top-glove-over-labor-issues-idUSKCN24H0K2 Accessed January 22, 2022

[15] Reuters. U.S. Customs says forced labour used at Malaysia’s Top Glove, to seize gloves. Reuters, March 29, 2021. https://www.reuters.com/world/asia-pacific/us-customs-determines-forced-labour-malaysias-top-glove-seize-gloves-2021-03-30/ Accessed January 22, 2022.

[16] Government of Canada. Canada-United States-Mexico Agreement (CUSMA) – Chapter 23 – Labor. https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cusma-aceum/text-texte/23.aspx?lang=eng Accessed January 22, 2022.

[17] Above Ground. Creating Consequences: Canada’s moment to act on slavery in global supply chains. June 2021. P. 12-13. https://aboveground.ngo/wp-content/uploads/2021/06/Above-Ground-forced-labour-report-June-2021.pdf Accessed January 4, 2022.

[18] A review of U.S. import database Panjiva shows various Cana.)dian companies importing from Top Glove Sdn Bhd, whose parent company is Top Glove Corporation Bhd, according to Panjiva. (see Panjiva.com

[19] CBC Marketplace. The truth about your lifesaving PPE. January 15, 2021. See list at 15 minutes 16 seconds. https://www.cbc.ca/news/marketplace/the-truth-about-your-lifesaving-ppe-1.5874589 Accessed January 22, 2022. Above Ground. Creating Consequences: Canada’s moment to act on slavery in global supply chains. June 2021. P. 10. https://aboveground.ngo/wp-content/uploads/2021/06/Above-Ground-forced-labour-report-June-2021.pdf Accessed January 4, 2022. Also see Above Ground. Report finds high risk of slavery in Canadian supply chains, calls for stricter import controls and new due diligence law. Press release, June 2021. https://aboveground.ngo/report-finds-high-risk-of-slavery-in-canadian-supply-chains/ Accessed January 4, 2022.

[20] Above Ground. Creating Consequences: Canada’s moment to act on slavery in global supply chains. June 2021. P. 10. https://aboveground.ngo/wp-content/uploads/2021/06/Above-Ground-forced-labour-report-June-2021.pdf Accessed January 4, 2022.

[21] U.S. Customs and Border Protection. CBP Modifies Forced Labor Finding on Top Glove Corporation Bhd. Press release, September 9, 2021. https://www.cbp.gov/newsroom/national-media-release/cbp-modifies-forced-labor-finding-top-glove-corporation-bhd Accessed January 29, 2022. In an email response to a draft of this case study, a representative of Top Glove said the company’s “journey has been deeply meaningful” and that the company will “continue to improve and build on our achievements in the very important area of ESG [Environmental and Social Governance].” November 21, 2022.

[22] Replying to a draft of this case study, Supermax said it has “remediated” the allegations that formed the basis of the U.S. Withhold Release Order and expects the order to be lifted in the near future. With public pressure mounting, in January 2022 the company announced it would implement new policies to address forced labour in its supply chains, including improvements to living conditions and payments to workers who had been subjected to forced labour practices. See https://www.bursamalaysia.com/market_information/announcements/company_announcement/announcement_details?ann_id=3223610&fbclid=IwAR1NauW311ucV4i34LoyNB6m7PNbKyaev_179MvBJloTDwXnV5ILqoM6WvQ.

[23] Public Service and Procurement Canada. Supplying Canada’s response to COVID-19. March 10, 2022. https://www.tpsgc-pwgsc.gc.ca/comm/aic-scr/provisions-supplies-eng.html Accesed March 19, 2022.

[24] Public Service and Procurement Canada. Contracts with Supermax Healthcare Canada. November 10, 2021. https://www.tpsgc-pwgsc.gc.ca/medias-media/actualites-news/supermax-eng.html Accessed March 19, 2022; McGregor, Janyce. Canada terminates $222M PPE contract following forced labour probe. January 19, 2022. https://www.cbc.ca/news/politics/malaysia-nitrile-gloves-supermax-contract-terminated-1.6319190 Accessed March 19, 2022.

[25] Supermax Healthcare Canada Inc. Important details regarding the termination of the glove supply contracts between Supermax Healthcare Canada and the Government of Canada. CISION. January 19, 2022. https://www.newswire.ca/news-releases/important-details-regarding-the-termination-of-the-glove-supply-contracts-between-supermax-healthcare-canada-and-the-government-of-canada-813370570.html Accessed March 19, 2022.

[26] Above Ground. Report finds high risk of slavery in Canadian supply chains, calls for stricter import controls and new due diligence law. Press release, June 2021. https://aboveground.ngo/report-finds-high-risk-of-slavery-in-canadian-supply-chains/ Accessed January 4, 2022.

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The Porgera Joint Venture (PJV) gold mine is located in Porgera, Enga Province, in the highlands of Papua New Guinea (PNG). In 2006, Canadian mining company, Barrick Gold Corp. (Barrick) owned 75% of the joint venture, which it also operated. In 2007, Barrick increased its control over the PJV mine by moving to a 95% interest in the project.^[ii] The company trades on the New York and Toronto Stock Exchanges.

Summary

• Since 1990, this mine has been alleged to have long-standing and well-documented^[iii] environmental impacts on surface water related to the uncontained disposal of waste rock and tailings into adjacent river valleys, threatening neighbouring residents’ right to access clean water.^[iv]
• In 2005, as Barrick was preparing to acquire Placer Dome Inc. (Placer Dome) and its share in the PJV mine, Placer Dome admitted to eight killings of local villagers by mine security and police at the mine,^[v] and Barrick received evidence from a local grassroots human rights group^[vi] detailing several human rights abuses, including killings, torture, arbitrary arrest and beatings allegedly perpetrated by mine security and police. ^[vii] The abuses were also covered in the Canadian media just months after Barrick acquired Placer Dome.^[viii]
• After taking over the mine in 2006, Barrick was criticized by human rights groups for failing to appropriately acknowledge, investigate or address the excessive use of force by mine security and police guarding the mine, despite repeated reports of killings and beatings of men and boys, beatings, rapes and gang rapes of women and girls,^[ix] and house burnings.^[x]
• Eventually, in 2010, Barrick publicly admitted that the company had received detailed allegations of sexual assault perpetrated by mine employees;^[xi] however, the company’s response involved establishing a time-limited grievance procedure which has been criticized by human rights experts.^[xii]
• The company contends that “since the conclusion of the [grievance procedure], no further credible allegations have been received.”^[xiii] However, unaddressed allegations of human rights abuses continued to be documented and reported.^[xiv]

The Detail

Despite being a resource-rich country, approximately 40% of Papua New Guinea’s population lives in poverty. Instead of spurring meaningful economic development for local communities, the exploitation of natural resources, including gold mining, has fueled violent conflict and environmental destruction. Today, the country continues to be considered one of the most dangerous places for women and girls due to domestic violence, and impunity for high levels of police brutality is “rampant”.^[xv] It is within this context that Canadian mining giant, Barrick Gold, has continued to operate its PJV mine.

Since 2005, prior to Barrick’s acquisition of the PJV mine, the company has been informed on various occasions of well-documented cases of alleged human rights abuses, including sexual assault, rape and killings by private security and police forces and environmental destruction at Barrick’s PJV gold mine. Despite these initial warnings and subsequent reports of violence, it took five years for Barrick to respond publicly. The company’s response has been criticized as inadequate by human rights experts including the Columbia Law School Human Rights Clinic, the Harvard Law School International Human Rights Clinic and MiningWatch Canada.^[xvi]

Reports of serious human rights abuses

In November 2005, the PJV mine and the national police force signed a Memorandum of Understanding (MOU) to jointly guard the PJV mine, and emerging evidence of police violence was making clear what that ‘protection’ entailed for the safety and lives of the local population. On November 4, 2005, in the lead up to Barrick’s acquisition of the PJV mine from Placer Dome, a local group, Akali Tange Association, sent Barrick a letter^[xvii] warning of Placer Dome’s legacy of killings by mine security, including violence directed at local Indigenous Ipili and Engan villagers. The Akali Tange Association also sent a letter and a copy of its 2005 report to Barrick executives at the mine’s headquarters in Papua New Guinea’s capital, Port Moresby.^[xviii] The letter detailed 11 extra-judicial killings by mine security and police.

That same year, the government of Papua New Guinea initiated an official investigation into the deaths.^[xix] Finally, in an email interview in 2005, Placer Dome’s Patrick Bindon told the news outlet IPS that the mine’s security forces and police had killed eight people since 1996.^[xx] After the acquisition of Placer Dome in March 2006, Bindon went on to work for Barrick.

The foregoing suggests that news about the human rights violations was clearly public knowledge, yet Barrick carried on with business as usual.

Barrick remains silent despite testimonies and human rights investigations

For three consecutive years starting in 2008, Porgerans travelled to Canada to attend Barrick’s annual shareholder meetings and to tell the company’s Chief Executive Officer, the board of directors and the shareholders that PJV mine security and police were beating and killing men and boys and beating and raping women and girls.^[xxi] While in Canada, they also met with Canadian media, Members of Parliament and civil servants at Foreign Affairs, as well as with Barrick officials in Toronto, where Barrick’s head office is located.

Between 2008 and 2009, Harvard and New York University human rights investigators, who along with MiningWatch Canada^[xxii] had conducted extensive investigations including three fact-finding missions into the cases of rapes and gang rapes, sent three separate letters to Barrick.^[xxiii] The investigators requested to meet with the company to discuss the alleged violence and asked to receive copies of Barrick’s reports pertaining to the environmental and human rights impacts of the mine. Barrick’s response, however, was extremely limited. The company did not provide any information about specific killings or documents pertaining to the security structure at the mine.^[xxiv]

The researchers also shared the findings of this research in testimonies provided to Canada’s Foreign Affairs and International Development Committee in 2009^[xxv] and 2010^[xxvi] and in a legal brief that was tabled.^[xxvii] In response to the testimony in 2009, Barrick chose its words carefully, noting that “no cases of sexual assault [have been] reported to mine management” (emphasis added) and that “It is not possible for the [Porgera Joint Venture mine] to investigate an allegation it has never received…”^[xxviii] Barrick also seemed to question whether the women were raped, stating that if they had been, there were “numerous avenues” available at the mine for the women to have reported the abuse.^[xxix]

Subsequent testimonies by Harvard researchers poked holes in Barrick’s purported ignorance of the gang rapes and the killings arguing that there was ample evidence pointing to these abuses, including allegations of rape dating back to 2006, which should have prompted Barrick to carry out a thorough investigation – and that it would not have taken much effort to uncover evidence of the abuses.^[xxx] Finally, in late 2010, Barrick acknowledged the sexual assault allegations^[xxxi] by creating a short-term grievance mechanism that has been criticized by MiningWatch Canada,^[xxxii] human rights experts from Columbia and Harvard, ^[xxxiii] and Barrick’s own consultant BSR.^[xxxiv]

Similarly, despite the existence of witness statements, and autopsy and police reports,^[xxxv] to date, Barrick has not responded effectively to the allegations of killings by mine security against boys and men.^[xxxvi]

What if…?

If mandatory human rights and environmental due diligence legislation was in place, what would be different for the women and men who, for more than 15 years, have been denouncing grave abuses by public and private security forces at Barrick Gold’s mine in Papua New Guinea?

In cases such as Porgera that have faced longstanding allegations of violence by mine security and national police, due diligence assessments would identify and assess the likelihood of those abuses continuing, set out procedures to prevent the recurrence of those abuses and develop independent mechanisms to remedy harm done prior to the acquisition. If abuses continued, the company could be required to account for what it had done to address the abuses in a Canadian court of law.

• IDENTIFY and ASSESS: If Barrick had undertaken an adequate due diligence risk assessment prior to, and after the time of the acquisition of Placer Dome, it would have:
  • Taken seriously information about the legacy of killings by mine security that existed in the public record and that were shared directly with the company by the Akali Tange Association back in November 2005, when the grassroots human rights organization had tried to warn Barrick of serious human rights abuses at the mine.
  • Identified and assessed whether violence by security personnel was ongoing after Barrick acquired the project as reported in the media, by local human rights groups at the company’s own annual shareholders meetings, by civil society organizations such as MiningWatch Canada and by international human rights experts from Harvard and New York University.
• PREVENT, MITIGATE, ACCOUNT FOR: Barrick could have taken steps to prevent the recurrence of human rights abuses by its mine security by:
  • Withdrawing from the Memorandum of Understanding (MOU) with the national police force given the many allegations of human rights abuses and violence it has faced.
  • Developing and implementing effective training of mine personnel and establishing monitoring plans and practices to ensure that any violence at the mine site or related to the mine was identified immediately, independently investigated, mitigated and ceased.
  • Ensuring its complaint mechanisms were independent, safe and effective.
  • Carrying out stakeholder engagement with community members and in particular women to ensure they were aware of the company’s independent complaint mechanisms and how to access them safely.
  • Installing surveillance cameras in areas where rapes and other forms of violence were reportedly taking place.
  • Establishing a publicly available and independent complaint mechanism with clear steps for responding to, mitigating, and providing justice for complainants whose claims are found to be substantiated through an independent investigation.

How could justice be accessed for community members and workers?

If Barrick failed to prevent ongoing human rights abuses and failed to ensure access to justice and remedy for the men, women and children who had suffered violence and rape by mine security, those impacted by the violence, or their supporters, would have been able to file a civil suit in a Canadian court. The courts would assess the adequacy of Barrick’s due diligence policies and practices and, if it was determined that Barrick failed to follow through on its own due diligence measures or those measures were considered to be weak and ineffective, Barrick could have been held liable for harm.

ENDNOTES

[i] This case study profiles allegations of human rights abuses occurring between 2006 and 2010, contained in publicly available reporting by reputable sources. The CNCA has not independently verified the truth of the allegations contained in each report cited here. For a more detailed examination of the facts of this case, see MiningWatch’s comprehensive case study at https://miningwatch.ca/sites/default/files/porgeracasestudyjune2022.pdf.

[ii] The PJV mine started operating in 1990. In 2006, Barrick acquired Canadian mining company Placer Dome Inc. and therewith its 75% ownership and management control of the PJV mine. In April 2007 Emperor Gold Mine sold its 20% stake to Barrick. The remaining 5% was held by Mineral Resources Enga, of which 2.5% was owned by the Enga Provincial Government and 2.5 % was owned by Porgera landowners. In 2015, Barrick sold 50% of its share in Barrick Niugini Ltd. to Chinese-owned Zijin Mining Group, leaving Barrick with 47.5% ownership.

[iii] CSIRO Australia. 1996. Review of Riverine Impacts, Porgera Joint Venture. December; CSIRO Australia. 2001 (S.C. Apte). Tracing Mine-Derived Sediments and Assessing Their Impact Downstream of the Porgera Gold Mine. https://miningwatch.ca/sites/default/files/CSIRO_Report_2001.pdf; Shearman, P. 2001. “Giving away another river: an analysis of the impacts of the Porgera mine on the Strickland River system.” In B.Y. Imbun and P.A. McGavin (eds), Mining in Papua New Guinea: analysis and policy implications. Waigani: University of Papua New Guinea Press, pp. 173-191; Bun, Yati. 2001. Resignation from Porgera Environmental Advisory Komiti (PEAK). https://miningwatch.ca/blog/2001/4/27/yati-bun-resignation-porgera-environmental-advisory-komiti-peak; Coumans, Catherine. 2002. Placer Dome Case Study: Porgera Joint Venture. https://miningwatch.ca/sites/default/files/pd_case_study_porgera_0.pdf; Norwegian Council of Ethics: The Government Pension Fund – Global. 2008. Recommendation to the Ministry of Finance. https://www.regjeringen.no/globalassets/upload/fin/etikk/recommendation_barrick.pdf; Request for Review Submitted to the Canadian National Contact Point of the OECD Guidelines for Multinational Enterprises by Porgera Landowners Association, Akali Tange Association, MiningWatch Canada. March 2, 2011. https://miningwatch.ca/sites/default/files/OECD_Request_for_Review_Porgera_March-1-2011.pdf.

[iv] Request for Review Submitted to the Canadian National Contact Point of the OECD Guidelines for Multinational Enterprises by Porgera Landowners Association, Akali Tange Association, MiningWatch Canada. March 2, 2011. https://miningwatch.ca/sites/default/files/OECD_Request_for_Review_Porgera_March-1-2011.pdf; Columbia Law School’s Human Rights Clinic and Columbia University’s Earth Institute. 2019. Red Water: Mining and the Right to Water in Porgera. https://web.law.columbia.edu/system/files/private_file/red-water-report-2019_1.pdf.

[v] Burton, Bob. 2005. Canadian Firm Admits to Killings at PNG Gold Mine. http://www.ipsnews.net/2005/11/rights-canadian-firm-admits-to-killings-at-png-gold-mine/.

[vi] Akali Tange Association. 2005. The Shooting Fields of Porgera Joint Venture: Now a Case to Compensate and Justice to Prevail. A Compensation Specific Submission to the Porgera Joint Venture on behalf of Placer Dome Canada Inc, Durban Roodepoort Deep of South Africa and Mineral Resources Enga ltd. and the Independent State of Papua New Guinea: On the Unlawful Killings of Village Alluvial Gold Miners at the PJV Mine Site—Special Mining Lease (SML) and Lease for Mining Purpose (LMP) Areas. http://miningwatch.ca/sites/default/files/ATA_Case_Documentation.pdf.

[vii] Akali Tange Association. 2005. The Shooting Fields of Porgera Joint Venture: Now a Case to Compensate and Justice to Prevail. A Compensation Specific Submission to the Porgera Joint Venture on behalf of Placer Dome Canada Inc., Durban Roodepoort Deep of South Africa and Mineral Resources Enga ltd. and the Independent State of Papua New Guinea: On the Unlawful Killings of Village Alluvial Gold Miners at the PJV Mine Site—Special Mining Lease (SML) and Lease for Mining Purpose (LMP) Areas. http://miningwatch.ca/sites/default/files/ATA_Case_Documentation.pdf; Amnesty International. 2010. Undermining rights: forced evictions and police brutality around the Porgera gold mine, Papua New Guinea. London. https://www.amnesty.org/en/wp-content/uploads/2021/06/asa340012010eng.pdf; Request for Review Submitted to the Canadian National Contact Point of the OECD Guidelines for Multinational Enterprises by Porgera Landowners Association, Akali Tange Association, MiningWatch Canada. March 2, 2011. https://miningwatch.ca/sites/default/files/OECD_Request_for_Review_Porgera_March-1-2011.pdf; Columbia Law School Human Rights Clinic & Harvard Law School International Human Rights Clinic. 2015. Righting Wrongs? Barrick Gold’s Remedy Mechanism for Sexual Violence in Papua New Guinea: Key Concerns and Lessons Learned. http://hrp.law.harvard.edu/wp-content/uploads/2015/11/FINALBARRICK.pdf

[viii] See for example: Patterson, K. 2006. A deadly clash of cultures. The Ottawa Citizen, June 6, 2006. http://www.minesandcommunities.org/article.php?a=420

[ix] Request for Review Submitted to the Canadian National Contact Point of the OECD Guidelines for Multinational Enterprises by Porgera Landowners Association, Akali Tange Association, MiningWatch Canada. March 2, 2011. https://miningwatch.ca/sites/default/files/OECD_Request_for_Review_Porgera_March-1-2011.pdf; Columbia Law School Human Rights Clinic & Harvard Law School International Human Rights Clinic. 2015. Righting Wrongs? Barrick Gold’s Remedy Mechanism for Sexual Violence in Papua New Guinea: Key Concerns and Lessons Learned. http://hrp.law.harvard.edu/wp-content/uploads/2015/11/FINALBARRICK.pdf.

[x] Amnesty International. 2010. Undermining rights: forced evictions and police brutality around the Porgera gold mine, Papua New Guinea. London. https://www.amnesty.org/en/wp-content/uploads/2021/06/asa340012010eng.pdf.

[xi] Barrick response to Business & Human Rights Resource Centre. July 23, 2010. https://media.business-humanrights.org/media/documents/2772ca04d0ecbf5a0d979ec874dcdceb1ec44d09.pdf.

[xii] MiningWatch Canada. Letter to the UN High Commissioner for Human Rights, March 19, 2013, https://miningwatch.ca/sites/default/files/letter_to_unhchr_on_porgera_2013-03-19.pdf; MiningWatch Canada. 2019. Submission to the United Nations Working Group on the Use of Mercenaries.; Columbia Law School Human Rights Clinic & Harvard Law School International Human Rights Clinic. 2015. Righting Wrongs? Barrick Gold’s Remedy Mechanism for Sexual Violence in Papua New Guinea: Key Concerns and Lessons Learned. http://hrp.law.harvard.edu/wp-content/uploads/2015/11/FINALBARRICK.pdf; Jungk, Margaret, Chichester, Ouida, and Fletcher, Chris. 2018. “In Search of Justice: Pathways to Remedy at the Porgera Gold Mine.” Report. BSR, San Francisco. https://www.bsr.org/reports/BSR_In_Search_of_Justice_Porgera_Gold_Mine.pdf. In an email response to a draft of his case study [“Barrick response”] a representative of Barrick Gold characterized the remedy framework as a “comprehensive program”. The full response from Barrick Gold can be viewed here: https://cnca-rcrce.ca/site/wp-content/uploads/2023/01/Response-to-Canadian-Network-on-Corporate-Accountability-Porgera.pdf.

[xiii] Barrick Gold, response to a draft of this case study. December 2, 2022. https://cnca-rcrce.ca/site/wp-content/uploads/2023/01/Response-to-Canadian-Network-on-Corporate-Accountability-Porgera.pdf.

[xiv] MiningWatch Canada. Village Houses Burnt Down – Again – at Barrick Mine in Papua New Guinea; Violence Against Local Men and Women Continues Unabated. March 28, 2017. https://miningwatch.ca/news/2017/3/28/village-houses-burnt-down-again-barrick-mine-papua-new-guinea-violence-against-local; New CEO, Same Human Rights and Environmental Abuses at Barrick Mine Sites. May 7, 2019. https://miningwatch.ca/news/2019/5/7/new-ceo-same-human-rights-and-environmental-abuses-barrick-mine-sites; Barrick’s Porgera Joint Venture Mine – Neither Sustainable, Nor Development. Mark Ekepa, Chairman, Ipili Porgera Landowners Association; Jethro Tulin, Executive Director, Akali Tange Association; Catherine Coumans, MiningWatch Canada. April 2011. https://miningwatch.ca/sites/default/files/porgera_case_study_uncsd_april_12_2011.pdf; Request for Review Submitted to the Canadian National Contact Point of the OECD Guidelines for Multinational Enterprises by Porgera Landowners Association, Akali Tange Association, MiningWatch Canada. March 2, 2011. https://miningwatch.ca/sites/default/files/OECD_Request_for_Review_Porgera_March-1-2011.pdf.

[xv] Human Rights Watch. “Papua New Guinea: Events of 2020.” https://www.hrw.org/world-report/2021/country-chapters/papua-new-guinea. 2021.

[xvi] Columbia Law School Human Rights Clinic & Harvard Law School International Human Rights Clinic. 2015. Righting Wrongs? Barrick Gold’s Remedy Mechanism for Sexual Violence in Papua New Guinea: Key Concerns and Lessons Learned. http://hrp.law.harvard.edu/wp-content/uploads/2015/11/FINALBARRICK.pdf ; MiningWatch Canada. March 19, 2013. Letter to the UN High Commissioner for Human Rights, https://miningwatch.ca/sites/default/files/letter_to_unhchr_on_porgera_2013-03-19.pdf; MiningWatch Canada. Village Houses Burnt Down – Again – at Barrick Mine in Papua New Guinea; Violence Against Local Men and Women Continues Unabated. March 28, 2017. https://miningwatch.ca/news/2017/3/28/village-houses-burnt-down-again-barrick-mine-papua-new-guinea-violence-against-local; MiningWatch Canada. 2019. Submission to the United Nations Working Group on the Use of Mercenaries. https://miningwatch.ca/sites/default/files/submission_to_un_wkg_group_on_mercenaries_march_2019_final.pdf.

[xvii] Request for Review Submitted to the Canadian National Contact Point of the OECD Guidelines for Multinational Enterprises by Porgera Landowners Association, Akali Tange Association, MiningWatch Canada. March 2, 2011. P.13. https://miningwatch.ca/sites/default/files/OECD_Request_for_Review_Porgera_March-1-2011.pdf.

[xviii] MiningWatch Canada. “Human Rights Report Confirms Rapes by Security Guards at Barrick Mine in Papua New Guinea.” News Release. February 1, 2011. https://miningwatch.ca/news/2011/2/1/human-rights-report-confirms-rapes-security-guards-barrick-mine-papua-new-guinea; Akali Tange Association. 2005. The Shooting Fields of Porgera Joint Venture: Now a Case to Compensate and Justice to Prevail. A Compensation Specific Submission to the Porgera Joint Venture on behalf of Placer Dome Canada Inc, Durban Roodepoort Deep of South Africa and Mineral Resources Enga ltd. and the Independent State of Papua New Guinea: On the Unlawful Killings of Village Alluvial Gold Miners at the PJV Mine Site—Special Mining Lease (SML) and Lease for Mining Purpose (LMP) Areas. http://miningwatch.ca/sites/default/files/ATA_Case_Documentation.pdf.

[xix] In negotiations with Placer Dome and Barrick, the final focus of the PNG Government investigation was narrowed so much as to make the investigation pointless, according to the Akali Tange Association and MiningWatch Canada. See: https://miningwatch.ca/news/2006/7/10/papua-new-guinea-conducts-flawed-investigation-killings-barrick-mine. The report from this investigation was never made public.

[xx] Canadian Firm Admits to Killings at PNG Gold Mine. Bob Burton. IPS. Canberra, November 17, 2005. http://www.ipsnews.net/2005/11/rights-canadian-firm-admits-to-killings-at-png-gold-mine/.

[xxi] Barrick Gold’s Porgera mine in Papua New Guinea linked to grave human rights abuses, environmental impacts. May 12, 2008. https://miningwatch.ca/news/2008/5/12/barrick-gold-s-porgera-mine-papua-new-guinea-linked-grave-human-rights-abuses; Indigenous Leaders from Papua New Guinea, Chile Raise Serious Human Rights and Environmental Concerns Around Barrick Gold Operations. May 6, 2009. https://miningwatch.ca/news/2009/5/6/indigenous-leaders-papua-new-guinea-chile-raise-serious-human-rights-and-environmental; Backgrounder: Issues Related to Barrick’s Porgera Joint Venture Mine in Papua New Guinea

Violence perpetrated by Porgera Joint Venture’s security forces. May 17, 2009. https://miningwatch.ca/blog/2009/5/17/backgrounder-issues-related-barrick-s-porgera-joint-venture-mine-papua-new-guinea; Indigenous Leaders from Papua New Guinea Accuse Barrick Gold of Abuses. May 5, 2010. https://miningwatch.ca/news/2010/5/5/indigenous-leaders-papua-new-guinea-accuse-barrick-gold-abuses.

[xxii] Barrick’s Porgera Joint Venture Mine – Neither Sustainable, Nor Development. Mark Ekepa, Chairman, Ipili Porgera Landowners Association; Jethro Tulin, Executive Director, Akali Tange Association; Catherine Coumans, MiningWatch Canada. April 2011. https://miningwatch.ca/sites/default/files/porgera_case_study_uncsd_april_12_2011.pdf ; Request for Review Submitted to the Canadian National Contact Point of the OECD Guidelines for Multinational Enterprises by Porgera Landowners Association, Akali Tange Association, MiningWatch Canada. March 2, 2011. https://miningwatch.ca/sites/default/files/OECD_Request_for_Review_Porgera_March-1-2011.pdf.

[xxiii] Harvard Law School International Human Rights Clinic and New York University School of Law Center for Human Rights and Global Justice, Legal Brief: Before The Standing Committee on the Foreign Affairs and International Development (FAAE), House of Commons, Regarding Bill C-300, November 16, 2009. P. 29-30. https://miningwatch.ca/sites/default/files/Harvard-testimony-re-Porgera.pdf.

[xxiv] Harvard Law School International Human Rights Clinic and New York University School of Law Center for Human Rights and Global Justice, Legal Brief: Before The Standing Committee on the Foreign Affairs and International Development (FAAE), House of Commons, Regarding Bill C-300, November 16, 2009. P. 29-30. https://miningwatch.ca/sites/default/files/Harvard-testimony-re-Porgera.pdf.

[xxv] Coumans, Catherine. Testimony before The Standing Committee on the Foreign Affairs and International Development (FAAE), House of Commons, Regarding Bill C-300, October 8, 2009. https://www.ourcommons.ca/DocumentViewer/en/40-2/FAAE/meeting-32/evidence; Giannini, Tyler and Knuckey, Sarah. Testimony before The Standing Committee on the Foreign Affairs and International Development (FAAE), House of Commons, Regarding Bill C-300, October 20, 2009. https://www.ourcommons.ca/DocumentViewer/en/40-2/FAAE/meeting-33/evidence.

[xxvi] Giannini, Tyler and Knuckey, Sarah. Testimony before The Standing Committee on the Foreign Affairs and International Development (FAAE), House of Commons, Regarding Bill C-300, June 3, 2010. https://www.ourcommons.ca/DocumentViewer/en/40-3/FAAE/meeting-21/evidence.

[xxvii] Harvard Law School International Human Rights Clinic and New York University School of Law Center for Human Rights and Global Justice, Legal Brief: Before The Standing Committee on the Foreign Affairs and International Development (FAAE), House of Commons, Regarding Bill C-300, November 16, 2009. https://miningwatch.ca/sites/default/files/Harvard-testimony-re-Porgera.pdf.

[xxviii] 2010. Testimony of Sarah Knuckey, then of New York University School of Law Center for Human Rights and Global Justice. https://www.ourcommons.ca/DocumentViewer/en/40-3/FAAE/meeting-21/evidence.

[xxix] 2010. Testimony of Sarah Knuckey, then of New York University School of Law Center for Human Rights and Global Justice. https://www.ourcommons.ca/DocumentViewer/en/40-3/FAAE/meeting-21/evidence.

[xxx] Ibid; 2010. Testimony of Tyler Giannini of Harvard Law School International Human Rights Clinic. https://www.ourcommons.ca/DocumentViewer/en/40-3/FAAE/meeting-21/evidence.

[xxxi] Coumans, Catherine. 2017. “Do no harm? Mining industry responses to the responsibility to respect human rights.” April. Canadian journal of development studies 38(2):1-19. DOI:10.1080/02255189.2017.1289080.

[xxxii] MiningWatch Canada. March 19, 2013. Letter to the UN High Commissioner for Human Rights, https://miningwatch.ca/sites/default/files/letter_to_unhchr_on_porgera_2013-03-19.pdf; MiningWatch Canada. 2019. Submission to the United Nations Working Group on the Use of Mercenaries. https://miningwatch.ca/sites/default/files/submission_to_un_wkg_group_on_mercenaries_march_2019_final.pdf. In regard to the relationship between private military and security companies and extractive industry companies from a human rights perspective in law and practice. Coumans, Catherine. 2017. “Do no harm? Mining industry responses to the responsibility to respect human rights.” April. Canadian journal of development studies 38(2):1-19. DOI:10.1080/02255189.2017.1289080.

[xxxiii] Columbia Law School Human Rights Clinic & Harvard Law School International Human Rights Clinic. 2015. Righting Wrongs? Barrick Gold’s Remedy Mechanism for Sexual Violence in Papua New Guinea: Key Concerns and Lessons Learned. http://hrp.law.harvard.edu/wp-content/uploads/2015/11/FINALBARRICK.pdf. In its response to a draft of this case study, Barrick Gold characterized its remedy framework as a “comprehensive program”, and said that “no further credible allegations have been received” since the program was concluded in 2015. It went on to say that “any accusation received is treated seriously and thoroughly investigated with the appropriate authorities”. The full response from Barrick Gold can be viewed here: https://cnca-rcrce.ca/site/wp-content/uploads/2023/01/Response-to-Canadian-Network-on-Corporate-Accountability-Porgera.pdf.

[xxxiv] Jungk, Margaret, Chichester, Ouida, and Fletcher, Chris. 2018. “In Search of Justice: Pathways to Remedy at the Porgera Gold Mine.” Report. BSR, San Francisco. https://www.bsr.org/reports/BSR_In_Search_of_Justice_Porgera_Gold_Mine.pdf.

[xxxv] 2010. Testimony of Tyler Giannini of Harvard Law School International Human Rights Clinic. https://www.ourcommons.ca/DocumentViewer/en/40-3/FAAE/meeting-21/evidence.

[xxxvi] Jungk, Margaret, Chichester, Ouida, and Fletcher, Chris. 2018. “In Search of Justice: Pathways to Remedy at the Porgera Gold Mine.” Report. BSR, San Francisco. https://www.bsr.org/reports/BSR_In_Search_of_Justice_Porgera_Gold_Mine.pdf. Barrick has failed to implement the recommendations of this report to improve the grievance mechanism. See MiningWatch Canada. “Barrick’s Rhetoric Belies the Lived Reality of Communities at its Mines Around the World.” News Release. May 3, 2022. https://miningwatch.ca/news/2022/5/3/barrick-s-rhetoric-belies-lived-reality-communities-its-mines-around-world.

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