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No Justice Anywhere

Supreme Court shuns survivors of Congo massacre linked to Canadian mining firm

by Arij Riahi

The victims of killings in the Democratic Republic of the Congo cannot obtain legal redress in Canadian courts for the actions of Anvil Mining. Illustration by Sam Bradd
The victims of killings in the Democratic Republic of the Congo cannot obtain legal redress in Canadian courts for the actions of Anvil Mining. Illustration by Sam Bradd

MONTREAL—A recent ruling has slammed the door on a group of Congolese people whose lives and families were destroyed thanks, in part, to a Canadian mining company.

In November 2012, the Supreme Court of Canada refused to hear a final appeal brought against Anvil Mining, Ltd by the Canadian Association Against Impunity (CAAI) on behalf of the victims of a 2004 massacre in the Democratic Republic of the Congo (DRC). The refusal thwarts an attempt to introduce a class action lawsuit against the Canadian company to hold it accountable for its actions during the killings. Critics worry that the decision, combined with the lack of legislative framework governing Canadian extractive activities abroad, may allow human rights violations to continue unchecked.

“The fact that a Canadian company like Anvil Mining cannot be brought into a Canadian court shows there is a problem of impunity in this country,” said Matt Eisenbrandt, a member of the Board of Directors of the CAAI, which represents four human rights groups. “Credible and detailed allegations were made that a Canadian company played an important role in a massacre of innocent civilians and there have not been any repercussions in Canada,” he said.

The events that led people from a remote Congolese village to the Supreme Court of Canada took place in the early hours of October 14, 2004, when a group of six lightly armed people entered the mining village of Kilwa, located in the Katanga province of the DRC. The armed group claimed to belong to the then-unknown Revolutionary Movement for the Liberation of Katanga. That afternoon, Alain Kazadi, their 20-year-old leader, stood in the village’s market and proclaimed the independence of Katanga.

That same day, the Canadian corporation Anvil Mining interrupted its activities at the Dikulushi mine, located 50 kilometres away from Kilwa. The village’s port is the sole point of export for the copper extracted from the mine. In a press release, Anvil called the decision to stop operations a “precautionary measure” taken in response to “some local conflict,” adding that it expected the situation to be quickly resolved.

Within 36 hours, a counterattack was launched on the village by the Armed Forces of the DRC. Government troops carried out a house-to-house search for the rebels. Summary executions, extortion and lootings took place during the operation, according to an investigation led by the United Nations Mission in the DRC. An estimated 100 civilians died.

Anvil Mining later admitted to assisting the Congolese Military during their deadly operation in Kilwa. The company confirmed to the UN Mission that it provided transportation for the soldiers and supplied them with food rations. In an interview with an Australian television channel in June 2005, Anvil’s Managing Director Bill Turner admitted the company also helped the military get to Kilwa.

Three of Anvil’s employees were brought in front of a Congolese Military Court for having “knowingly facilitated the commission of war crimes” in relation to the Kilwa events. Among them was Pierre Mercier, then Anvil’s General Manager in the Congo. All employees were acquitted. During the military proceedings, Mercier testified that the company’s resources were “requisitioned” by authorities. In short, he claimed employees had no control over the situation.

In November 2010, the CAAI filed an application in Quebec for a class action on behalf of the victims and their families. At that time, Anvil Mining’s Canadian headquarters was in Montreal. The group sought compensation from the company, alleging it had participated in human rights violations by providing the Congolese Military with logistical support.

To receive authorization to launch a class action lawsuit, the CAAI had to convince the Quebec provincial court that it had authority to hear the case, even if the events in question occurred in the DRC.

“The Superior Court initially ruled for us,” said Eisenbrandt in an interview with The Dominion. “But when the Court of Appeal issued its judgment, it ruled that Quebec did not have jurisdiction in the first place.”

Last November, two years after the initial proceeding, the Supreme Court of Canada denied the CAAI the possibility of an appeal. In doing so, it made final the decision of the Quebec Court of Appeal. As a result, the victims of the Kilwa killings cannot obtain legal redress in Canadian courts for the actions of Anvil Mining.

The Court of Appeal considered the connection between the events in the DRC and Anvil’s business in Quebec insufficient to allow a class action in the province. The Montreal office was created in 2005 to maintain relations with investors and stakeholders. At the time of the killings in 2004, however, Anvil’s Canadian office was in Toronto.

“Anvil’s activity in Quebec has no connection, directly or indirectly, to the ‘complicity’ in committing ‘war crimes’ or ‘crimes against humanity’ during the operation of a mine,” wrote Judge André Forget on behalf of the Court. “I am unable to establish a link between the alleged wrongdoing committed by Anvil’s leaders in October 2004 and an activity in Quebec that would have begun in June 2005.”

In its procedural documents, the CAAI also raised concerns about the ability to achieve justice within the DRC's judicial system. Under Quebec’s civil provisions, the courts can accept to hear a case if a fair and equitable trial cannot be reasonably expected outside of the province. Where recognized, the “forum of necessity” principle can be applied when a judicial system appears to be the only legal forum available to hear a dispute.

“The Court of Appeal ruled—quite incorrectly, in our opinion—that Quebec was not a forum of necessity because the case could still be brought in the Congo or Australia,” said Eisenbrandt. Anvil’s head office is in Perth, Australia. As for the DRC, the judges doubted that the victims of Kilwa had exhausted their legal options.

For the CAAI’s Eisenbrandt, the Supreme Court’s refusal to hear the Anvil Mining case exacerbates the problem of impunity. “With no government action to regulate the operations of Canadian corporations operating abroad, I worry that other companies will take this [decision] as a sign that they are free to cooperate with repressive foreign militaries,” he said.

His disappointment is shared by Penelope Simons, an Associate Professor at the University of Ottawa’s Faculty of Law. “I thought that this case had the potential to get past the jurisdictional hurdles and be heard on the merits,” she said in an interview with The Dominion. “We weren’t just talking about security forces killing one or two people; we were talking about a company’s complicity, admitted in certain acts and alleged in other acts, that would have amounted to war crimes.”

Since 1999, Canadian extractive companies have been involved in an average of 17 “humanitarian incidents” per year, according to a report by the Canadian Centre for the Study of Resource Conflict. Human Rights Watch (HRW) named the Canadian extractive industry as one of four areas of concern in its 2012 submission to the country’s periodic review by the UN Human Rights Council.

“Currently, Canada’s government does nothing to monitor, let alone regulate, the human rights practices of Canadian firms when they operate in other countries. This has led to numerous abuses,” read the HRW submission. “The Canadian government currently has no mandate to even investigate such situations, and no way of knowing how many similar problems Canadian firms might be involved in around the world.”

Simons, whose academic research focuses on corporate accountablity, also sees a governance gap at the international level.  “There is no direct international legal obligation on corporations to respect human rights. There is no clear obligation on states to regulate transnational corporations when they operate outside their jurisdiction in another country,” she told The Dominion.

Simons explained that the structure of mining corporations adds to the complexity of the problem. “It is completely legitimate under corporate law for a corporation to create a subsidiary that deals with a hazardous activity, and therefore protect the rest of the corporate group from that activity,” she said. “It is also very difficult to prove that the company in Canada is actually responsible for the acts of a subsidiary. They are considered separate legal persons.”

Given these difficulties, it seems unlikely that a single piece of legislation from the federal government will fix the multi-layered problem of corporate accountability. Until then, victims of human rights violations by Canadian corporations operating abroad will face daunting obstacles when seeking justice in Canada. In the Anvil case, the Court of Appeal did recognize the problem, calling the difficulty of obtaining justice “regrettable,” but maintained that the current legal framework does not allow for a different outcome.

Arij Riahi is a legally-trained writer based in Montreal. Arij is at www.twitter.com/arijactually.

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