The Federal CSR Counsellor Has Left the Building - Can we now have an effective ombudsman mechanism for the extractive sector?

Catherine Coumans Ph.D., Research Coordinator and Asia-Pacific regional program coordinator.

The Office of the Extractive Sector Corporate Social Responsibility Counsellor (CSR Counsellor) was announced with much government fanfare in October 2009 as a central “pillar” in the government’s “CSR strategy” for Canada’s extractive sector. The CSR Counsellor was to provide remedy for people who had been harmed by the overseas operations of Canadian extractive companies by mediating disputes.

On October 18, the CSR Counsellor, Marketa Evans, quietly resigned after four years in the position. No news release, no information about her departure on the official web site of the office. In four years she did not mediate any of the six cases brought before her, and none of the complainants received remedy.

For those who have followed the creation – and failures – of this office, Evans’ departure is a welcome chance to acknowledge the flaws of this mechanism and to create a more effective ombudsman’s office.

MiningWatch Canada and others were critical of the weak mandate of the Office of the CSR Counsellor from the start, and repeatedly detailed its shortcomings. Among other things, the CSR Counsellor was not mandated to investigate complaints, nor to report out on whether or not a company had breached the standards set by the Government of Canada.

The one service she could offer those who had been harmed by the actions of a Canadian mining company, dispute mediation, was contingent on voluntary participation of the company in question. As predicted, companies made use of the voluntary nature of the office to walk away from offers of mediation with no consequences.

Of six complaints filed, three ended before they began when mining companies Excellon Resources, McEwen Mining, and Silver Standard Resources turned their backs and walked out. Silver Standard’s recent snub seems to have been the final straw for Evans.

One case, against New Gold’s Mexico operations, remains open. Evans closed the final case received, against Golden Arrow Resources, at the end of September due to her stated inability to establish communications with the indigenous Argentinean complainants who sought better consultation by the company and respect for their right to Free Prior and Informed Consent for mining activities in their territory.

These cases highlight the most egregious aspects of the weak mandate and flawed process of the CSR Counsellor’s Office. Corporations hold all the power in this process. The mechanism puts complainants in the untenable position of having to rely on the very company that stands accused of having harmed them to decide if it is inclined to participate in mediation, to decide if it is interested in providing any kind of remedy, and, if so, the nature and size of the remedy it may decide to provide.    

Moreover, fruitless participation in the CSR Counsellor’s process further harms the weakest parties, the workers and indigenous and community representatives who put themselves in the hands of this mechanism to seek redress. These people have, at best, wasted their time and limited resources. At worst they have exposed themselves to further harm at home for sticking their necks out.

A particularly problematic case is that of Maître Lemine from Mauritania who brought forward community complaints about human rights and environmental abuses related to the operations of First Quantum Minerals. Having been convinced by the company that there was a project level grievance mechanism to which Lemine could turn, Evans sent him back to Mauritania to try his luck there first. MiningWatch has followed up on this case and found that no effective local-level mechanisms existed and Lemine is still seeking redress for the community for ongoing harm from the company’s operations.

The Mining Association of Canada (MAC) has appealed to the government to give the failed Office more time and more money. In an interesting twist of logic, Pierre Gratton, MAC’s president and CEO, places blame for the Office’s lack of effectiveness on “constant criticism” of its fundamental shortcomings. He downplays the most obvious factor in the Office’s downfall, the failure of mining companies, including a MAC member, to participate: Excellon Resources was the first company to walk out on the CSR Counsellor’s process. The company then joined MAC, but never took up the standing offer of the CSR Counsellor to come back to the table.

Just days after Evans’ side-door departure, twenty-three member organizations of the Canadian Network on Corporate Accountability launched the network’s “Open for Justice” campaign. The campaign calls for the establishment of an extractive-sector Ombudsman that is empowered to undertake independent investigations to determine if a company has breached guidelines and caused harm, and, if so, to make recommendations to the company and to the Canadian government in order to remedy the harm. The Ombudsman will make its findings public and could recommend the suspension of political, financial, and diplomatic support by the Government of Canada.

An Ombudsman’s office was first recommended by a joint industry-civil society report to the Government of Canada in 2007, and its key features were incorporated in John McKay’s narrowly defeated private member’s bill C-300. It is high time for the Government of Canada to create a truly effective, independent, and mandatory extractive-sector Ombudsman.

A version of this article appeared in the Ottawa Citizen on October 31, 2013 as: "Canada needs effective mining oversight".