Guest blog by Sarah Gale, Legal Advisor at Advisors for Conflict & Environment (ACE)
The international community remains concerned with the ability of transnational mining corporations to operate outside the law, with a lack of enforced accountability for violations committed. A culture of impunity has been perpetuated, partly due to jurisdictional challenges, and this must end. Canada is deeply implicated, based both on its stature as home of the largest number of mining companies and the preeminent centre of global mining finance, and its official policy and financial support for the industry. Canadian mining corporations that operate outside Canada and that violate domestic and/or international law and norms in the countries in which they operate must be held to account in appropriate tribunals. They must not be allowed to use complicated investment and corporate structures to raise jurisdictional challenges to such cases.
Banro Corporation, operating gold mines in the eastern regions of the Democratic Republic of Congo (DRC), serves as a case study for the need to find solutions to protect not only the diverse and sensitive eco-system of the region, but also the lives, dignity, and human rights of its people.
The Congolese Context
The eastern region of the DRC is an area rich in diverse ecosystems, culture, and mineral resources. It has also suffered significant levels of conflict and instability in recent decades, including a spillover effect from the Rwandan genocide in 1994 and a mass influx of refugees into the region, followed by the Congolese civil war of the late 1990s. Multiple armed conflicts are still present in the region, resulting in occasional outbreaks of violence. This adds an important dimension to the consideration of the responsibility of corporations working in areas of potential armed conflict and the application of international humanitarian law.
It is also important to understand that artisanal or small-scale mining is a broad phenomenon in the eastern DRC, with hundreds of thousands of people working in this sector. This activity in turn supports the economic activity of many communities, supporting livelihoods both directly and indirectly for a large portion of these regions. Artisanal mining supports activities such as transport, food catering, tool making, trade, and leisure activities. Any efforts to address problems in the mining sector in the DRC must take into consideration the significant number of livelihoods that artisanal mining supports, and the absence of secure, viable alternative livelihoods.
There is also an underlying tension in the relationship between artisanal miners and large corporate mining operators. Artisanal miners try to assert their traditional subsistence right to work the land, while corporate actors claim rights granted by government permits, leading to frustration and marginalization for the artisanal miners, who lack financial and technological resources, as well as access to information.
Banro Corporation is reported to have the largest combined land package of any gold mining company in the African continent. With 4 mining licences and seventeen exploration permits, Banro prospects cover 7500km2 in the Twangiza-Namoya gold belt in the DRC. Banro has had a tumultuous existence, with multiple challenges threatening the viability of the corporation, including recently coming out of bankruptcy proceedings. Banro first engaged in the region in 1996 with a subsidiary interest in a company which has since been liquidated, SOMINKI (Société Minière et Industrielle du Kivu). The company has had its assets frozen and seized during the Congolese civil war, as well as having undergone multiple attacks on its facilities by local militias, resulting in having to temporarily cease operations on various occasions. Banro continues to pursue operations despite these challenges, and is currently planning on opening two more mines in addition to the two already in operation.
Banro’s two operating gold mines are Twangiza in South Kivu province and Namoya in Maniema province. Twangiza is Banro’s oldest operating mine, with commercial production beginning in 2012, and in Namoya in 2015. In addition to incursions and incidents with armed groups, both of these operations have experienced significant clashes with the local population.
Two types of displacement/evictions have taken place as a result of Banro’s activities: indirect displacement, with people being put in a position of having to relocate due to mining and exploration activities; and direct displacement, with the forcible relocation of parts of a population. The term ‘forced evictions’ has been defined by the UN Committee on Economic, Social and Cultural Rights as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection,” and a violation of the right to adequate housing found in international human rights law.
Indirect displacement is likely to be more widespread than reports may reveal due to limited access to information on the reasons that individuals living close to mining areas may relocate. For example, take the case of Banro resuming its exploration in Twangiza in 2005. In this instance, the excavation by Banro disrupted the artisanal mining areas downstream. Water was redirected away from the artisanal mines, and forced the miners to either relocate or find alternate occupations in order to survive and earn livelihoods.
An example of direct displacement/eviction is from the Namoya operations in 2010, in an area called Katombwe. Investigative journalists reported that residents of a hillside where mining was to take place were relocated by force to an alternate location. According to the report, the site was chosen by an official from Kinshasa, with no consultation with local residents on a preferred location, and police came to their homes to force them to leave. Banro built homes, a market and a water system for the displaced community, as well as providing them with cash compensation. However, the provision of structures and money cannot justify or erase the forcible eviction of a group of people. Further aggravating the already traumatic scenario of being forcibly removed from one’s home, the new location chosen by the government official was barren, and crops that once grew in their fertile community no longer produced significant yields. This increased the community’s precariousness seriously diminished people’s food security and with it their resilience and ability to manage risk.
It is important to note as well that these claims, and those that follow, are based on information gathered from secondary sources and are not a comprehensive account of the entirety of the challenges faced by the local population.
Death of Community Members In Relation to Banro’s Activities
There have been reported cases of deaths due to the activities of Banro and a lack of safety precautions. This goes against international human rights law, which guarantees the right to life, liberty and security of person. Two documented examples are of rocks dislodged during the excavation process rolling down the hill killing community members living below the mine. In one case, it was the mother of a local pastor; in another, a 16-year-old girl. While Banro made a payment of $16,000 to the father of the 16-year-old girl who died, it claimed that there was no connection with Banro and it had paid simply out of good faith and sympathy.
Banro must be held accountable for creating a safe working environment both for workers on site as well as the surrounding communities. Indeed, Global Affairs Canada encourages Canadian companies operating abroad to follow the OECD Due Diligence Guidance for Responsible Business Conduct, which includes the necessity of adequate safety standards for the workplace.
Employment Conditions for Local Workers
Workers have a right to form unions and to express their demands and concerns for fair wages, a safe workplace environment, and other conditions. This is a right not only enshrined in domestic law in the DRC, but also in international human rights law. Despite this, Banro often hires subcontractors to organize daily workers, circumventing such requirements. Such practices reduce the ability of labourers to form meaningful unions and make demands such as safer working conditions or fair wages. This exposes them to low pay and abuse as they may be reluctant to stand up for higher wages and better conditions due to a fear of being fired, or simply not renewed as a daily worker.
If Banro hired such labourers directly it could provide meaning to the rights provided to workers in both international and national legislation. In the case that Banro continues to use such a system of subcontractors and daily workers, it should ensure that there is meaningful space for daily workers to express concerns and demands.
While other violations of human rights law may have been committed or may continue to be committed by Banro, these three examples are the ones most commonly repeated in published reports on Banro’s operations in the DRC. They represent the significant harm which communities and workers face as a result of the presence of Banro and other similar operations.
These violations have resulted in societal pressure between the local population and Banro, and may also be related to flare-ups in armed violence. This recently manifested in Banro having to halt operations at several of its mines in late September, 2019. Given the ongoing tension between artisanal miners and large corporate mines, at minimum, a respect for human rights would provide a space for meaningful exchange to begin. At present, the population is forced to respond to the company’s actions with protests, some turning violent, seeing no remedy for the violations reportedly committed against them.
Canada can, and should, provide an avenue for remedies of these alleged violations. There have been some recent successes in the courts, paving the way for corporations to be held liable for human rights abuses committed abroad; however, the legal precedent is not yet clear. For example, in the case of Tahoe Resources Inc. v. Adolfo Agustin Garcia, et al., the Supreme Court of Canada (SCC) denied Tahoe Resources’ application to appeal the decision by the B.C. Supreme Court, on the basis of forum non conveniens, to hear a civil claim for damages for injuries suffered during a protest outside the company’s Escobal silver mine in April 2013. While the plaintiffs settled out of court following this decision – resulting in a lack of legal claritydue to the absence of a judgment in the case itself – the case provides an indication that steps are being made in forging the path for the Canadian courts to act as an appropriate forum for seeking remedies for alleged violations of human rights committed by Canadian corporations and their subsidies abroad.
A case which may provide further clarity is currently awaiting a decision from the SCC: Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. This case will provide a clearer picture of the willingness of the courts to hear cases of human rights abuses committed abroad by Canadian corporations. The SCC decision will determine whether the case can proceed to trial in the Canadian court system, and whether customary international law can provide a basis for actionable torts. The case involves a claim by Eritrean refugees that Nevsun Resources violated international law on the prohibition of torture, slavery and forced labour in one of its Eritrean mines.
Similar to the cases above, it is likely that any potential claims against Banro on the above alleged violations would take the form of civil liability, given the nature of the acts and the less stringent standards of intent required. Such cases aim to provide a remedy to the harm suffered as a result of the alleged actions, in accordance with Canada’s international legal obligation to provide a remedy for violations of human rights law committed by third parties.
While there are indeed challenges in terms of justiciability and appropriate forum to hear the potential violations of human rights law alleged against Banro, this must not translate into an escape from liability. Canadian corporations, or those with a significant connection to Canada, must be held to account when they violate international law abroad, as they would be if the same act(s) were carried out on Canadian soil. If the case cannot be heard in the courts of the territory in which the violations were committed (including requirements such as independence of the judiciary, access to justice, etc.), these cases must be considered permissible in Canadian courts. If Canada wants to continue to be a leader in proclaiming the importance of human rights, Canada must take real steps to ensure the respect of human rights by Canadian companies both internally and abroad.
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 Council on Foreign Relations, ‘Violence in the Democratic Republic of Congo’ Global Conflict Tracker, https://www.cfr.org/interactives/global-conflict-tracker#!/conflict/violence-in-the-democratic-republic-of-congo
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 supra note 4.
 Sara Geenan, “Dispossession, displacement and resistance: artisanal miners at a gold concession in South Kivu, Democratic Republic of Congo”, Resources Policy, June 2014 at p.2.
 supra note 6 at p3.
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 supra note 8.
 supra note 10.
 Chantelle Kotze, “Gold Operation Revival Plan Takes Shape”, Mining Review Africa, 25 April 2019, retrieved at https://www.miningreview.com/gold/gold-operation-revival-plan-takes-shape/.
 supra note 9 at “Operations”.
 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 7: The right to adequate housing (Art.11.1): forced evictions, 20 May 1997, E/1998/22 at para 3.
 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) at Article 25; and UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3 at Article 11. These agreements have been ratified by both Canada and the DRC.
 supra note 6.
 Justin Scheck and Scott Patterson, “How a BlackRock Bet on African Gold Lost Its Luster”, The Wall Street Journal, 3 November 2015, retrieved at https://www.wsj.com/articles/how-a-blackrock-bet-on-african-gold-lost-its-luster-1446602000.
 supra note 16.
 supra note 16.
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 supra note 17.
 supra note 17.
 OECD Due Diligence Guidance for Responsible Business Conduct, OECD (2018).
 The Constitution of the Democratic Republic of the Congo, 2005, at Article 38.
 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3 at Article 8.
 Ben Radley, “The End of the African Mining Enclave? Domestic Marginalization and Labour Fragmentation in the Democratic Republic of Congo”, Development and Change, 1 (23), 2019 at p.18.
 supra note 27 at p.16.
 Cecilia Jamasmie, “Canada’s Banro halts Congo operations after militia attacks”, Mining [dot] Com, 27 September at 2019, retrieved at https://www.mining.com/canadas-banro-halts-congo-mines-declares-force-majeure-on-ongoing-violence/.
 Garcia v. Tahoe Resources Inc., 2017 BCCA 39.
 Hassan M Ahmad, “Courts are handcuffed on corporate human rights abuses abroad”, The Conversation, 14 August 2019, retrieved at http://theconversation.com/courts-are-handcuffed-on-corporate-human-rights-abuses-abroad-121546.
 Araya v. Nevsun Resources Ltd., 2016 BCSC 1856
 Amanda Coletta, “A Canadian company is accused of human rights abuses overseas. Can it be sued in Canada?”, The Washington Post, 24 January 2019, retrieved at https://www.washingtonpost.com/world/the_americas/a-canadian-company-is-accused-of-human-rights-abuses-overseas-can-it-be-sued-in-canada/2019/01/24/8e763642-1feb-11e9-a759-2b8541bbbe20_story.html.
 John Ruggie, “Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises - State obligations to provide access to remedy for human rights abuses by third parties, including business: an overview of international and regional provisions, commentary and decisions”, United Nations Human Rights Council, A/HRC/11/13/Add.1, 15 May 2009.