Canadian Mining Companies: A Study of Human Rights Violations in Guatemala

Abstract

In recent years, Transnational corporations have been accused of being involved in the violation of human rights and to address that issue the international community introduced some guidelines related to the responsible conduct of business but despite that development transnational justice remains one of the major issues in today's era. This study, therefore, aims at highlighting the international obligations these transnational corporations have under international law and their activities related to human rights abuses. The specific reference is made to the Canadian transnational corporations as Canada is playing a major part in the global mining industry and has been called out internationally for alleged human right violations done by its transnational corporations. Lastly, the emphasis is drawn on the case of choc vs hudbay and it critically examines the position of these companies with respect to human rights.

Keywords: Business Human Rights, Canadian Transnational Corporations, International law, Mining, Transnational Justice

Abbreviations

CSR
Corporate Social Responsibility
BHR
Business Human Right
FIPPA
Foreign Investment Promotion and Protection agreements
FPIC
Free, Prior, Informed consent
ICCPR
International Covenant on Civil and Political Rights
ICESCR
International Covenant on Economic, Social, And Cultural Rights
ILO
International Labour Organisation

ISO

International Organisation for Standardisation

NCP

National Contact Point
OECD
The Organisation for Economic Co-operation and Development
OEIGWG
Open-Ended Intergovernmental Working Group

UDHR

Universal Declaration of Human Rights
UNGPs
United Nation Guiding Principles on Business and Human Rights

UNHRC
United Nation Human Rights Council

## List Of Cases
Case Title
Page No.
Araya v. Nevsun Resources
Caal vs. HudBay
32-34
Choc vs. HudBay
32-34
Chub vs. HudBay
33-34
Garcia v. Tahoe Resources
Guatemala: Marlin-01/Sipacapa, 2014

## Chapter I: Introduction
Mining sector has significantly evolved around the world. However, mining activities have greatly affected human rights, majorly in the cases of Transnational mining, which means that where a mining company has incorporated its subsidiaries in another part of the world, all the affairs of these subsidiaries are controlled by their parent companies while sitting at home state, and that subsidiary is operating in another jurisdiction. In these instances, the home State Government does not interfere with the operations of these companies across the border, which results in violations of certain major rights that also include human rights. Moreover, where these transnational companies violate any right, then the issue arises as to who should be held liable for such action: the company itself; or the host state. This issue has been a great concern internationally and for that purpose the United Nation introduced United Nation Guiding Principle to tackle business human rights, which provides the states duty to protect, corporate responsibility to respect and access to remedies in cases where violation has been made by Transnational companies.

However, the concept of transnational justice is recognized by international law and recently Canadian courts has also accepted this approach and provided that Canadian companies can be held accountable for their human right abuses abroad, the two prominent cases are Choc vs Hudbay Minerals Inc and Nevsun resources Ltd vs Araya. It is reported that more than thousand Canadian companies are operating in developing states and there they have been subjected to controversies due to human right violations, environmental hazards, and illegal activities that are being performed in the name of extraction.

Canadian mining companies operating within its territory or abroad have become a center of attraction for the international media. Their operations have contributed greatly to the violation of human rights and turned it into a grave focal point for these abuses. Majorly, these Canadian companies take undue advantage of developing nation’s weak laws and legal regimes related to the mining sector. Moreover, the Canadian government has actively supported its mining companies, which are violating human rights abroad, instead of holding them accountable. Even it is supporting, protecting, and providing financial assistance to these mining corporations. Canadian mining corporations are operating in different countries and one of that is Guatemala. Concerning human rights violations, it is important to look into the activities of these corporations in Guatemala. The reason behind it is that for the very first time in many decades, it was the case from Guatemala, in which, such severe of human rights violations were brought before the Canadian court against Canadian mining corporations. Therefore, it extended the scope of transnational justice within the mining industry. Secondly, states like Guatemala are developing and have weak legal regime, so it is of paramount importance to highlight such activities and the impact of these transnational corporations as their operations have contributed to a number of social conflicts and violations under international human rights law. Some of the major cases that have come into view from Guatemala and the remarkable decision of Canadian Courts would be discuss, later.

The research will also provide in-depth analysis of the legal framework, applicable to Canadian corporations operating abroad and governmental policies. In addition to this, the flaws within the legal system of Guatemala are one of the other reasons for these violations for example, The Marlin mine was opened against the objections raised by indigenous communities, and no consent was obtained from them. However, Guatemala has ratified international convention, which states that for such projects consent of local people must be present. Still the Government took no action.
In an effort to address the concerns of corporate responsibility linked to the violation of human rights, Canada has taken a policy approach, named as corporate social responsibility (CSR) strategy. However, this approach itself provides support to these companies by backing them. Hence, it has to regulate the Canadian mining companies’ operations to ensure that they must not violate Canada's international human rights obligations. Furthermore, the Canadian government must review its legal obligations and standards to prevent human right violations in the mining sector and it requires a system that can monitor or regulate the conduct of its corporation's operating abroad.

Significance Of The Study

Human right violation at extra territorial mining site has become a major problem. Thherefore, this research would help the reader in understanding the insight issues related to the role of Canada in mining industries and their failed attempt in preventing human rights abuses in the mining activities abroad. This study also signifies the loopholes present in the legal framework of Canada and Guatemala. Moreover, this study aims to fill the gap in literature by providing in-depth analysis of business human rights in connection with the responsibilities associated to States and Transnational Corporations with reference to institutional voids (institutional voids means “the inability of many states to effectively implement and enforce regulation within their own territory and the weakness and inability of transnational regulation to address transnational challenges”). The concept, which was previously centered on the role of states in ensuring human rights, has recently begun to develop the connection between organizations and State. As a result, Human rights have become a responsibility and an obligation for companies and hence for that reason it is important to study the concept of transnational justice.

Purpose And Design Of The Study

Aims And Objectives

The research is carried out with the aim:
- To highlight the human rights abuses related to the mining industry in Guatemala.
- To evaluate and analyze the criminal activities associated with Canadian mining projects in Guatemala.
- To bring forth the brief overview of the current legal framework applicable to Canadian mining corporations operating abroad within the area of human rights
- To examine violation of business human rights in mining industries under international human right law.
- To identify the areas for the improvement of the Canadian mining corporation's performance related to human rights issues.

Research Questions

• What Transnational mining corporation means and how they operate internationally with regard to human rights protection and what legal obligations and responsibilities they have?
• What are the existing international standards related to Human rights accountability with reference to transnational businesses?
• What is the current situation regarding human right violations in Guatemala by Canadian mining companies?
• Is the Canadian legal framework effective in addressing the human rights violation in the extraterritorial mining sector?
• What are the gaps in Canadian policies and human rights legislations with respect to its transnational mining companies?

### Nature Of The Study
The research is of qualitative and descriptive nature. This research is based on analysis of primary and secondary sources. Primary sources are the Constitution of Canada, relevant national legislation, judicial decisions, and international instruments. Secondary sources includes documents or reports published by corporations, state and Non-governmental organizations, researchers and activists, academic debates, website material, unpublished reports, case laws, commentaries, conference papers, and article.

### Literature Review
Karen Dubinsky, Sean Mills and Scott Rutherford, describes the root cause for the human right abuses by Canadian companies abroad. It highlights that the Canadian policies are the major concern and issue for all these activities. It provides the historical relationship of Canada with Third world companies and tends to prove that this environmental damage, forced displacements and labor abuses are not only home state problems but it is more connected with Canada because it is generating revenue through these foreign subsidiaries.

Nathan Andrews, J. Andrew Grant, states about the role of Canada in the Extractive sector of Africa’s with an emphasis on its Corporate Social Responsibility (CSR). It provides how it has been promoting its business activities across the borders and extracting their natural resources. In addition to this, it provides how effective CSR have been so far and critique on foreign investment promotion and protection agreements (FIPPA). It states that this agreement is a powerful tool for these Canadian corporations operating abroad.

Isabel Feichtner, Markus Krajewski and Ricarda Roesch, provides the conflict and significant issues that arise in the extractive sector and how it has affected the basic rights of laborers, nearby communities, their families and others involved. It also provides how free, prior, Informed consent (FPIC) is being neglected in these places such as Guatemala. It moreover emphasizes the major issues these extractive sector projects cause and results in human right violations and international principles.

Henighan and others, examines the key challenges for the people of Guatemala with respect to their human rights and environmental rights. Moreover, it highlights the long-standing trials, war crimes that have emerged by the activities of foreign mining companies operating there.

Surya Deva and David Birchall, discuss about the controversial topics within the domain of human rights and business. Moreover, it has also highlighted the negative impact of foreign mining corporations on the indigenous people and briefly explains who they are. In addition to this, they also offer an in-depth analysis of one of the major case laws of Guatemala referred to as Choc v Hudbay Minerals. It also provides a contrast between the issues at home state and host state.

Susana C. Mijares Peña describes the role of Canadian mining cooperation operating abroad with a focus on the Canadian legal system, including international treaties and standards. She provided that Canadian and international legislation does not provide any mechanisms to prevent violation of human rights by its foreign subsidiaries. In that context she analyzed the Canadian court decisions which were based on human right violations by Canadian mining cooperation working abroad. The major case discussed is “choc v hudbay minerals inc” and it is considered to be a great opportunity for Canadian courts in order to protect international human rights.

Amnesty International, provides that human rights are being violated due to foreign mining cooperation in Guatemala especially by Canada. They also states about the communities that are being affected such as indigenous people and non- indigenous communities. It also specifies human rights violations under international human rights law and obligations that Guatemala has towards Canada.

Alain Denault and William Sacher, discussed the Canadian mining sector and argued on the subject that how Canada has become a major global mining industry. Moreover, they have shed light on different advantages that Canada offers to global mining firms. They have also discussed environmental and human rights violations by Canadian based mining companies.
Shin Imai, states that how the communities are being affected by these corporations. The author also shed light on the subject that a number of mines have been registered in Canada because of its weak accountability policies and the support the Canadian government grants to the abuser of human rights. The focus is made on the accountability policies that are present in Canada but not effective.

EarthRights International provides that Canada enable extractive companies to violate human rights. It highlights the problems that exist within the Canadian system. The problem is that for the violation of human rights and destruction of environmental rights there is no access to remedy available to the victims. Furthermore, the report also focuses on the flaws of Canadian policies, which were made to prevent these violations, such as National Contact Point (NCP) and Corporate Social Responsibility (CSR)
Robert Gerrity, has discussed Canada as a leading mining sector and rise in its industries. Moreover, he has also considered the human right violation by these industries and highlighted some of the major cases that have emerged. Besides this, he stated about the international obligation and challenges that are faced by the victims at the hands of foreign subsidiaries of Canadian mining corporations.

Luis Willems, states about the conflict between indigenous communities and mining in Guatemala from the perspective of human rights and under international law, how these Indigenous Peoples are protected. In addition to this, he states how international law is related to the indigenous communities that are being affected by mining in Guatemala.

Structure Of The Study

The research is divided into 6 chapters. The chapters will deal with the following headings;

## Chapter I: Introduction
This chapter provides the introduction related to mining and Canadian companies.

## Chapter Ii: Transnational Mining Corporations And Its Obligations Under International Law
This chapter focuses on Transnational mining and how it is operating, around the world. Moreover, it also deals with responsibilities of Transnational mining companies with respect to the international law and business human rights.

## Chapter Iii: Canadian Mining Sector
This chapter discusses how Canadian mining sector is operating globally and how Canadian mining corporations are violating human rights. It specifically discusses the right to health, rights of indigenous people with respect to their lands and consent.

## Chapter Iv: The Canadian Mining Industries In Guatemala And Human Right Violation
This chapter highlights the human right abuses in Guatemala and focuses on some of the Canadian mining corporations that are involved in it. In addition to this, it discusses the communities that are affected and reported incidences/cases of human right violation.

Chapter V: Effectiveness Of Canadian Legal Framework

This chapter analysis the legal framework of Canada and discuss whether it is effective in preventing human right violation. It also focuses on the loopholes that are present within their law and Canadian policies that contribute to human right violations.

Chapter Vi: Recommendations And Conclusion

This chapter focuses on possible solutions for preventing human right violation in Guatemala and how these transnational corporations can be held accountable for their actions or human right violations under domestic, regional or international law. It also provides remedies that are available to the victims.

## Chapter Ii: Transnational Mining Corporation And Its Obligations Under International Law
Mining is a process through which natural materials enriched with high concentration of economically valuable substances such as minerals and metals are extracted from the ground. This extracted material can be utilized for manufacturing diverse goods. Such material has varied usage in almost every field of life such as chemical industries, pharmaceuticals, automobile companies, ornaments and so and so forth.

Mining is as old as human civilization; for thousands of years, people have been extracting valuable and useful materials from the earth to support their way of life through mining. The process of mining is complex and requires laborious work. Explorations, with the passage of time have gain importance and have become more of business. The process of exploration by searching the minerals underground and identifying their usage has now become a task, which states normally assign to big companies to take care of. However, to conduct such operations, as prospecting and exploration-mining companies are required to obtain a license from concerned authority, which varies from state to state. Those minerals extracted from the earth are mixed with unwanted rocks, so these mixed rocks and minerals are carried away from the mine site together then it is further processed and refined in the home state or host state. Hence, the mining industry has emerged to be one of the most prolific sectors in the global space.

### Global Mining Industry
Worldwide extraction of minerals is growing at an extraordinary speed from the last few years, leaving social and environmental impact on all over the world. Various industries depend upon the supply of extracted minerals for the advancement of their business in the global market. Therefore, the mining industry is termed as a major economic sector worldwide and it is reported that in 2020, the revenue generated by forty major global mining companies amounted to almost 656 billion U.S Dollars. With economic growth, mineral development is also beneficial for the social sector majorly for developing countries. While on the other hand emerging economies for example the leading mining countries (such as China, India, or Canada) are becoming a global player in the mining industry with the production of valuable minerals.
Globalisation of the Mining industry has greatly influenced the global market with respect to global capital, production of global goods or minerals and most importantly global values. In addition to this it has also established global communication which means that any activity whether it's going to have positive or adverse impact, related to health, human rights or environmental rights, in certain mining areas will be immediately reported and communicated all through the globe. Despite all this growth, the main challenge that has emerged due to the globalization of the mining industry is the global values or shared values. It means that two or more countries are doing business at a global level and activities in one nation can effectively influence other nations at different levels. However, for the mining industry, Globalization has played a major role in deriving large profits through transnational actors that include mining corporations and international organizations.

### Transnational Mining
Worldwide, mining corporations are operating in two ways. Firstly, there are those companies, which operate within the country where it is domiciled. Secondly, those companies, which operate in other countries through their subsidiaries.
The latter is termed as Transnational Corporations. The proper definition of this term can be found under the paragraph 20 of the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights 2003, which states that these corporations are economic entities operating in two or more countries irrespective of the legal framework of their home country and the country where it operates. These are legal entities under private law with various regional implantations associated with only one main hub, which is responsible for the operation and management of these corporations.

These types of companies function as a parent company with its different subsidiaries operating around the world. It acts as a centralised unit for making decisions related to significant matters of its subsidiaries. These companies can be registered in one or more countries, including the nation where the parent company's real headquarters are situated, where its primary activities are held, and where it is established. It shares responsibilities, finance, resources, and ownership with each other. The expansion of the global market and trade liberalization has increased the number of these companies and it even expanded their operation to all countries.

Transnational corporations are majorly headquartered in developed countries, where they have their main branches. They often incorporate their subsidiaries in the developing or underdeveloped countries to take undue advantage from their weak legal and political systems. However, transnational corporations can be a source of development for these countries such as it creates job opportunities, development in infrastructure near site area, and forms a stronger economic foundation. On the other hand, these corporations also have negative impacts. That includes:

Environmental harm;
No development; as profits flow to foreign corporation rather than local enterprises;
No minimal investment is made on local’s or in that area,
Moreover no consideration is given to human rights,
In addition to this poor working environment is provided to labourers and no protection is provided to them,
Sometimes these corporations over exploit the natural resources.

Not only this, these corporations provide huge sums of funds to politicians, political campaigns, and governmental institutions of developing countries in order to influence its political and legal system. It also plays a major role in influencing international law or global trade laws. Even at times developed countries extend their support to protect the interest of these corporations in developing countries. Hence, these corporations are more powerful than any state with respect to economic force and inside connections. Additionally, these corporations control a major part of the world’s productive assets.

In addition to this, these companies are located in such areas where cheap labour can be available to them and on the other hand, developing countries need investment and job opportunities so they provide certain incentives to these companies such as tax-free zones, cheap labour, relaxations, flexible laws, etc in order to attract them. Unfortunately, as a result, the working class is exploited at the hands of these companies and when these states try to enforce strict legal regimes, and then transnational corporations move their companies to other developing States. Moreover, it usually operates in countries, which provide them with favorable conditions and have poor accountability mechanisms so that they do not have to face repercussions in case of any violation. Hence, for that reason these corporations have been majorly called out for human rights violations.

### Transnational Corporations And Business Human Rights (Bhr)
In order to regulate transnational corporations there must be a transnational law. Moreover, these corporations operate at such a large scale that it causes hindrance in holding human right violator’s accountable. However, it is important to note that these corporations are excluded from the obligations of upholding civil and political rights since it is the responsibility of the state to do so. On the other hand, these corporations have a direct effect on the cultural, human, social, and economic rights of the citizens of the host country. Transnational corporations may not have a positive obligation to protect the human rights of stakeholders and people in regions where they operate, but they have a positive duty to prevent any infringement of such rights .
However, with an increase in the number of violations, it is necessary to make these non-state actors responsible. From the past five decades, international organizations like the United Nation and other intergovernmental bodies have attempted to regulate these corporations in compliance with international law. There are some conventions and treaties at regional as well as at international level that deal with business and human rights. These includes, The Universal Declaration of Human Rights (UDHR), in its preamble clearly states about the direct obligation of every individual and organ of state to respect and promote human rights. Here the Transnational corporations being an organ of state are under obligation to protect such rights; International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, And Cultural Rights (ICESCR) also in their preamble states that every individual have to respect the rights of other individuals. Other conventions can also be applied to the corporations that include International Convention on the Elimination of All Forms of Racial Discrimination; the Convention against Torture and Other Cruel, Inhuman, Or Degrading Treatment or Punishment.
However, International human rights law apparently deals with States and their obligation concerning human rights violation and on the other hand, corporations are frequently involved in abusing human rights and avoiding liability. Due to this reason, BHR developed and introduced some of the international standards related to business and human rights to regulate transnational corporations universally. The standards that are universally accepted are listed below;

The Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises 1976, is composed of general recommendations provided by the state to the corporations to conduct their business in a responsible manner and according to the basic human right standards. It consists of non-binding principles related to business activities of corporations and encourages states to make regulations in accordance with the recognized international standards to deal with human right violations.

International Labour Organisation (ILO)

Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy 2022, is known as MNE declaration and it provides protection to the workers or employees at their workplace. It is the most comprehensive piece on the guidance of labour and employment policy and provides accountability measures for the companions who are involved in abusing the workplace human rights of a worker or employee.

The International Organisation for Standardisation (ISO), have laid down certain guidelines one of which is "ISO 26000" which basically states about social responsibility of the corporations with respect to the conduct of business. It provides that the companies need to act in an ethical and transparent manner for the purpose of welfare of society. In addition to that, it is a certified international standard.

The 2000 United Nation Global Compact, it encourages business to operate in compliance with universal human right law.

Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, is based on the idea that States have the primary duty to protect human rights but still the transnational corporation being the organ of society is under obligation to respect and uphold the principles of human rights. They have to use due diligence so that their activities do not violate anyone’s right whether directly or indirectly.

United Nation Guiding Principles on Business and Human Rights (UNGPs), It provides guiding principles for prevention of human rights violations committed in business operations and provides that these companies should make sure that they have an operative “grievance mechanism” system available to ensure that victims are being heard.

Moreover, in 2014 the UN Human Rights Council (UNHRC) passed a resolution to develop a binding treaty holding transnational corporations responsible for human rights abuses in its Agenda Item 3. However, none of these treaties or international standards is binding and generally considered as ‘soft law’.

### Legal Obligations And Responsibilities Of Transnational Corporations
In the field of business human rights the UNGPs is the most prominent set of norms, which has been widely accepted by the major institutions. However, efforts are being made to introduce a binding treaty for example the organisations and governments are drafting a treaty within an “Open-Ended Intergovernmental Working Group” (OEIGWG) to remediate transnational corporations for their human rights abuse. Notwithstanding, UNGPs was introduced by the United Nation Human Rights Council in 2011 and it consists of thirty-one principles, which are based on protection, Respect, and remedy. It also imposes certain legal obligations and responsibilities on these corporations as stated below;
State extraterritorial obligation: the principle 2 of UNGPs provides that all the business enterprises domiciled in any state must respect human rights throughout their operations and States should clearly set out what they expect from these corporations. Moreover, in its commentary it provides that states are not obliged to regulate the extraterritorial sector under this international human right law but they are not prohibited to do that. It depends whether that state wants to establish a binding duty on these companies or not to respect human rights. However, human right treaties suggest that the home state needs to regulate its business enterprises in order to prevent abuse of these rights in other jurisdictions.
Right to health: Another obligation on these corporations is the right to health as provided under principle 11 of UNGPs. It states that companies should respect human rights and it should establish code of conduct or policies to prevent or mitigate adverse human right violations attached to their activities or whether related to them either directly or indirectly.
Due diligence: Under principle, 17 to 21 UNGPs state about the principle of due diligence, in which it provides that there must be an assessment system for assessing actual and potential human right violations at the hand of these transnational companies. It further stated that action should be taken on findings, responses to be tracked and possible solutions to address these issues must be communicated.

Moreover, it has been stated by the International Labor Organization under its ILO Convention No. 169 that the government has to take prior consent from its affected indigenous people before granting a license to any mining company.

These were some of the major responsibilities associated with these companies; however, such guiding principles still cannot be effective in controlling human right abuse because of non-binding effects. For that reason, a number of corporations are involved in such violations and Canadian Transnational mining corporations are one of the prime examples.

### Transnational Corporations And Their Compliance With International Obligations
Mining is a process that requires due diligence, care, and protection related to health, environment and the rights of locals but Transnational Mining corporations don't take anything into account and are involved in major human right abuses. Majorly there are a number of Transnational Corporations which clearly disregards the international obligation with respect to Business human rights some of the major examples related to human right violations committed by these corporations are the case of South Africa’s Marikana mine, in 2012 number of miner’s were shot down by the south African police for holding a wildcat strike for the purpose of better living condition and wages against the Lonmin platinum mine but after eleven years of the mascare the victims are still awaiting for justice; moreover Chinese multinational corporation in Mozambican contributed to flash flood in 2015 and as a result it put the thousands of people at the risk of being washed; the copper and cobalt mines in Democratic Republic of the Congo, is also associated with human right abuses; and Canadian transnational mining corporations in Latin America, Peru, Guatemala and other states are also involved in these violations. Moreover, there are also numerous corporations that were involved in such activities but still they are not held accountable for their actions.

However, for a national court it is very difficult to enforce human right law against these corporations because of the private legal relationship or jurisdiction. However, there are few developed countries, which imposes criminal liability on these corporations but in State with weak rule of law it is impossible to hold account such legal entities because of legal barrier, lack of political independence of judiciary, lack of resources, lack of legal representation, and obstruction in the path of human right defenders. Hence, in developing countries, it has created vulnerability for local people facing human right abuse resulting from the activities carried out by these corporations that includes abusive transfer pricing, forced displacement of indigenous people and others. In many cases, the challenges to sanctioning and redressing such abuses in the nations where these companies are located is an insurmountable problem. As a result, a number of cases have emerged, wherein victims of human rights violations, committed by transnational corporations in developing and least developed countries, have filed lawsuits against the corporations in their home countries' domestic courts or in the courts of other developed countries where those corporations are also present but it has not always worked out. The other thing is that governments of these States not only allow but also actively assist corporations in human rights violations on their sovereign territory.

From that, it can be concluded, in developing States domestic law does not protect such rights and for that reason, it is important to have an international instrument that can hold these corporations liable for any sort of violation. For a case study it is vital to shed light on Canadian transnational mining corporations and their compliance with BHR.

Chapter Iii: Canadian Transnational Mining Companies

Within recent years, Canada has become home to seventy-five percent of mining companies and more than 60 percent of world mining corporations are headquartered in Canada. The reason behind headquartering is the favorable investment conditions, flexible policies, financial assistance, and security it provides to these corporations. Within Canada, Ontario, British Columbia, Alberta, Saskatwechan and Quebec are major mining producing Provinces. The mineral production value attributed to these mining is reported as 48.1$ billion dollars in 2019. Furthermore, the overall mining sector provided 5% of Canada's nominal GDP and it is placed in the top five countries for global production of about seventeen minerals/metals.

In Canada, mining activities are regulated by the provincial laws or according to the legal regime of the area in which that particular mining company is corporated. However, there are certain subject matters that are regulated by Federal laws such as tax regimes. For a purpose of mining in Canada, a company or entity has to obtain exploration rights from the relevant authority and after exploration of that property they need to obtain a mining license, lease and other related things for mining in that particular area. Mining lease permits a company to extract minerals from that particular area to which it applies. This is how these companies operate within Canada.

In addition to this, the companies that are registered or headquartered in Canada generally incorporate their subsidiaries in the other parts of the world to expand their business. These subsidiaries are controlled and managed wholly by their parent companies. In other words, it can be implied that a company headquartered in Canada, which is the parent company, decides the affairs of its subsidiary incorporated in another country and its fate, while sitting in Canada, which can greatly affect the host State. These companies are generally termed as ‘Transnational companies’, “that are controlled from their home State but operate all around the world in different countries”. In these instances, the home State Government does not interfere with the operations of these companies across the border. However, the government is not bound to regulate their actions but there is nothing that prevents them from doing so. About this, the host State and home State both have to be vigilant with respect to the actions of these parent companies and their subsidiaries.

### Expansion Of Canadian Transnational Mining Sector
Canadian transnational mining companies are expanding rapidly. As these Transnational Canadian based mining corporations are operating in about more than 96 of foreign countries as of 2019, it has declined because in 2018 these were operating in 100 of foreign countries. For example, within Latin America there are almost 41% of Canadian mining companies. These are also operating in countries like Africa, Guatemala, Argentina, Chile, Dominican Republic, Caribbean, Western Hemisphere, Ecuador, Brazil and Mexico. However, it is reported that Canadian mining Assets have declined within these countries and in overall foreign mining assets. In 2019, based on company type, the junior companies declined from 1165 to 1131 whereas, senior companies declined from 1.3% to $246 billion dollars. Some of these are merged and others are acquired by other foreign companies.

### Human Right Violations By These Companies
Canadian corporations are well represented in many Countries, they are involved in exploration, prospecting, and all activities related to mining. Some of these activities are viewed as less professional as compared to the Canadian standards and it is commonly accepted that these types of corporations have a defeatist track record when it comes to environmental and human rights issues. However, recently the activities of these corporations have been attributed to severe negative environmental and social repercussions in several States. For example, the activities of the Canadian based companies named as the Bonte Gold Mines Company and Golden Star Resources in Ghana, Africa, have had major negative consequences related to above-mentioned issues. Not only this, within recent years Canadian companies have been called out internationally for its transnational mining companies actions related to human right abuse, it seems that for them the compliance with international standards is of least importance. However, the Canadian government did introduce corporate social responsibility strategy for the extractive sector but no impact was seen. The companies are still involved in these activities. The major question is why a state cannot impose sanctions on the companies that do not respect human rights and how even a state can allow such companies to operate in any region. What is stopping them from cancelling their license despite the international uproar? It appears that they are aware of everything and letting it go for some reason; that might be the economic gain.

These companies are also involved in forced displacement of different communities for example at Bajo de la Alumbrera mine in Argentina; people were forced to leave their place because of environmental hazards such as death of animals, water issues and so on. These corporations are also involved in the criminalization of social protest. For example in San José del Progresso, Mexico, twenty-three persons were detained just for the reason that they spoke against the water contamination publicly. Most importantly, these mining companies adversely affect the economy of the host State. In addition to this, these are also involved in deaths and injuries to the mineworkers as well as those who speak up against the corporations. In El Salvador, there were very many murders reported, some of them were activists who opposed the operations at the mine site. There are many other human rights abuses, attributed to these foreign subsidiaries in different countries. In general, these Canadian transnational companies have been criticized for these abuses and it clearly emphasizes the importance of accountability mechanisms for such companies.

Chapter Iv: The Canadian Mining Companies And Human Right Violation In Guatemala

### Background
Guatemala is a state where number of mining corporations has taken an undue advantage of its internal conflicts. It is reported, that in 1960, there was a civil war, which was initiated, by the group of indigenous people, known as guerrillas, against its government and military. However, due to military alliance of America with the government these people had to suffer a lot. As a result, millions of people were killed, displaced, injured, burned alive and confined. After this whole fiasco, the focus of the government was to restore economy, so they adopted the “Neoliberalism” approach. This term refers to free market, which means that to reduce the price, removing, or lowering trade barriers, providing relaxations in laws, favorable environment to work and more importantly under this scheme private investors have more control as compare to the government. It draws a connection between political and economic situation of a State. However, for Guatemala, it did have attracted investors but along with that, it has created a way for human right violations. In addition to this, due to these flexible policies many state have invested in Guatemala and there are great number of transnational mining companies.

Canadian Mining Companies And Human Right Violation

In Guatemala, there are number of Canadian mining companies that include Goldex Resource Cooperation, Escobal mine owned by Goldcorp, Tahoe Resources, Sky resources (which was takeover by Hudbay minerals), Radius Gold, Nickel mine, Marlin Mine and Pan American Silver etc. These all companies have attributed to human right violations whether by themselves or through their subsidiaries. The most effected community from these activities is indigenous people, as they were almost half of the total population of Guatemala, according to the census of 2002. Not only this, these companies are accused of rape, killing, displacement, threat (psychological terror), robbery, environmental degradation, harassment, persecution and many more. Consequently, it can be seen that neoliberalism approach have clearly out lawed the system and providing free trade and relaxations can never boast the economy. However, some of the mines responsible for these violations are discussed below;

### Marlin Mine
Marlin mine operates to extract silver and gold in Guatemala and Montana Exploradora owns it, which is a subsidiary of Goldcorp Inc. Canadian Company. The area where this mine is located is home to more than fifty thousand people and majorly consists of Mayan indigenous people. This mine has been subjected to controversies since it has been formed. The reason is that no consultation or prior consent was taken from the people and they even did not aware them of the risk associated to the activities of mining. Some of the major violations are discussed below

Right of indigenous people
It includes consultation and forced land acquisition of these people. As no prior consent taken from the indigenous people and with that, it had risked the life and health of these people on stake. Several protests were done but the tension of conflict was not controlled. Even the UN Special Rapporteur on the Rights of Indigenous peoples in its report of 2011 provided, there was no such consultation from indigenous people for the establishment of mine as provided under the international standards. Moreover Human right Impact assessment under its report of 2010 stated that where such tensions are not controlled it can give rise to major issues and can result in human right violations. Moreover, there was forced displacement of indigenous communities and the security forces of company have even killed them in this whole process. The forced displacement is the violation of Article 17 of the ICCPR. Moreover, land acquisition process focused more on individual and does not specify about the underlying collective rights of indigenous people. In addition to this, due to the fear of mining related issues a survey was conducted in 2004, where 95.5 percent people were against the mining project because of the same reason.

Violation of Civil and Political Right
These mine officials and government have collectively violated the civil and political right of these people as well as of anti-mining protestors. There are several instances where people were shot dead by police, security guard, and army officials. For example, the security forces killed Raúl Castro Bocel, an indigenous farmer, during the protest in 2005 and many people were injured. Moreover, Alvaro Benigno was also shot dead by security forces of the company. In addition to this, death threat was given to protestors such as Álvaro Ramazzini, Madre Selva an environmental group and some other activists whose belongings were set on fire. In 2010, a local activist Diodora Hernández was also shot for raising his concern over negative impact of mining project on environment, which was a violation of article 7 of ICCPR; however, she survived but lost her vision and hearing ability. Even the communities of San Miguel Ixtahuacán were beaten, robbed and threatened for conducting protest on 28 February 2011, which was also violation of Article 21 of ICCPR. Including, Aniceto López (anti-mining protestor) and Miguel Ángel Bámaca (a public health promoter).
Environmental Degradation
Environmental degradation has resulted in the violation of right to health and safe environment. According to the water study conducted in 2010 by E-tech, it was provided, that there must be a monitoring of water sources and cleaning up process. Moreover environmental health experts in 2010, found out heavy metal materials in rivers downstream which was basically the waste of these mining companies. However, Inter-American Commission for Human Right, provided precautionary measures in 2010, which stated that marlin mine should be suspended until the matter related to environment and human right is, not investigated. Despite of that government took no action. The major problem for its determination is that the lack of data available with regard to right to health.

Labour
Marlin mine is violating major labour rights. As it is observed that there are weak policies with regard to harassment and there is lack of due diligence. Moreover, there is no proper awareness is available to the workers with respect to gender discrimination, safe and healthy working environment, poor job categories, remuneration policies, workplace issues, freedom of association, freedom to protest and collective bargaining etc.

Consequently, it also does not have a grievance mechanism that complies with international standards. A person who suffers from human right violation has to approach judicial courts in Guatemala or Canada to get justice. These activities are in violation of the international standards discussed earlier in chapter 2.

### Escobal Mine
The situation of human right violation is similar to that of Marlin mine. For example, with regard violence against land defenders, there is a case study as stated, in 2013; Tahoe Inc resources (now known as Pan American Silver Corp.) were granted the license for exploitation at Escobal mine. This news did not go well with the people of that area and they held a peaceful protest outside the mine area. To control the protest the private guards of the mining company opened rubber bullets and tear gas on the protestors, as a result, they had to suffer from several injuries. On the other hand, the situation goes out of hand and emergency was imposed in that area. After that more than three thousand police officers and soldiers were send to search for anti-mining leaders and about twenty of them were detained for unlawful assembly and attacking public authorities. However, some of them were released due to lack of evidence. One of the injured protestor was Mr. Garcia who later sued this company with seven others for human right abuses in 2014. Moreover, in 2021, an attempt to murder was made on Mr. González and other two were threatened for opposing mine.

### Mine’S At El Estor
Mine at El Estor has given rise to dispute and violence since its creation in 1960’s. In the same year a 40 year concession was granted to the Canadian and US based companies to operate in this region. After that in 1980, Skye Resources, a Canadian company, acquired it and named it “Compañia Guatemalteca de Niquel (CGN)”. However, in 2008, a Canadian Company, known as “HudBay Minerals Inc”, again acquired it. With that, it also developed a Fenix mine in the same region. However, now Hudbay minerals have no project in Guatemala but their violations related to human right abuses have been called out by the court of law.

Forceful Displacement
The first allegation against them is that they forcibly displaced indigenous people, such as Q’eqchi’ Mayan community, to acquire their land. In 2007, police and the military officers forcefully evicted these communities and even the houses of people were destroyed and burned.

Rape
It is reported that the Mayan community went back to El Estor and started to rebuild their houses but they were again forcefully evicted. In that whole scenario, about eleven women were gang rape, allegedly, by the police, military and security guards of the company. It is also reported that the security guards were in their uniform. Two of the women were pregnant at that time and they lost their unborn child. However, the company denied the rape charges and after that sky resources sold its nickel mine to Hudbay minerals.

### 4.2.3.4 Killings and Protests
In 2009, the communities held the protest against the company. It is reported that seven people were shot dead by the company guards, including, Adolfo Ich Chamán, who was Q’eqchi’ Mayan community leader. Another community member named as German Chub Choc was also shot but he suffered from major injuries. However, both cases went for litigation in the Canadian court system.

These companies have provided a grave picture of human right violations in Guatemala. They have even violated the civil and political right of these people by not allowing them to protest and with that, opening fire on them is cruelty. Not only these companies but also the government of Guatemala is also responsible for such acts. In some of the cases, Courts have given their stance and that will be administered.

Approach Of Courts On Human Right Violations

It can be observed that human right violation is the major issue associated with these mining companies and the government of Guatemala. However, there are some of the cases that were reported to courts of Guatemala and Canadian courts. In the beginning, there was the issue of extraterritorial obligation and courts were reluctant to try such cases but now recent developments have been made.

### Guatemalan Courts
With respect to prior consultation, the Guatemalan court has used narrow approach. For that the reference can be made to the Sipacapaca case, in which the court favored the indigenous people over the transnational mining, as it stated these people should be provided with right to information and consultation before granting any license. However, with respect to other human right violations Guatemalan court have been reluctant to grant remedy to the victims, on the basis of transnational obligation. For that reason some of the cases were moved in Canadian Courts. Moreover, the reason for this can be that there is a power imbalance between the state of Guatemala and these companies hence; there is no counter balance to these corporations.

### Canadian Courts
Previously the Canadian court have relied on three basic principles such as, jurisdiction, forum non convenience and lack of duty to care in order to avoid extra territorial litigation. Despite of that, the Canadian courts in the major cases of Choc vs. HudBay, Caal vs. HudBay and Chub vs. HudBay, did not relied on these principles and provided that Canadian court have authority to entertain the case of human right violation committed outside its territory by its any company. These were three different cases that were reported from Guatemala for grave human right abuses. The brief facts of these cases are that in the case of Choc vs. HudBay, the community leader Adolfo Ich, was killed by the security guards of the company while doing protest as discussed earlier. For that his wife Angelica Choc filed a lawsuit in Canadian court against the Hudbay minerals, while Caal vs. Hudbay refers to the eleven women including Margarita Caal Caal and Rosa Elvira who were ganged raped by the security officials, police and soldiers, and the last case Chub vs. HudBay was filed by German Chub who was shot by the security personal of the company during the protest. The case was filed against the three defendants, the first one was Hudbay Mineral, second was Sky resources (now known as HMI nickel), and third one was CGN.

### Arguments Presented By Respondents And Plantiff
The first argument presented by them was that being a parent company they have separate corporate personalities and they cannot get liable for the actions and negligence of its subsidiaries in foreign countries. They further extended that they does not owe any duty of care as a parent company for the activities of its subsidiaries. In addition to this they stated that, “that neither the plaintiffs’ propositions of direct or vicarious liability on the part of Hudbay are tenable at law”. In all the three stated cases the same arguments were raised majorly they focused on the principle of corporate veil and separate legal entity.

Plaintiff provided that the case is not primarily about corporate veil or piercing theories but it demands for direct liability for actions of Hudbay that have resulted in human right abuses. They further provided that negligence was based on the action and omission of Hudbay’s directions and was not a result of share’s, ownership or vicarious liability. In addition to this, they provided that Hudbay’s subsidiaries were directly supervised by it, so they should have shown corporate response towards all the conflicts going on in their respective subsidiaries related to Human right violations. However, only in the case of Choc, the plaintiff additionally pleads for vicarious liability for the offences of battery, assault, wrongful imprisonment, and death of victims.

### Decision Of The Court
Court considered all the principles argued by both parties. First, it provided that a separate legal entity can be disregarded and the corporate veil can be pierced where a company is completely managed and controlled by its parent company. Based on that, the court allowed this argument to proceed to trial. For duty of care it held that Hudbay does owe a duty of care to the affected people for the actions of its subsidiaries by applying the “Anns Test; Novel duty of care”. Moreover, the court established the direct liability of the parent company over the actions of its subsidiaries and allowed the case to proceed to trial. However, the case is in the discovery stage for several years.

### 4.3.5 Impact of the Case
This was the first case, which established direct liability of the parent company and set a precedent for other companies operating abroad. Hence, this case is considered a landmark in which foreign individuals who have suffered harm from the actions of Canadian companies operating in their respective area can proceed to trial in Canada. In this case, the role of transnational corporations and international law was thoroughly discussed and it was provided that parent companies do owe duty of care for the actions of its subsidiaries where a grave violation of human rights is alleged. To support this argument, they relied on international instruments such as OECD Guidelines for Multinational Enterprises, the United Nations Global Compact, the United Nations’ Protect, Respect, and Remedy: Framework for Business and Human Rights, the United Nations Guiding Principles on Business and Human Rights. They stated that under these instruments a company has to do risk assessment for prevention of human rights abuses and have to train the security personnel on the use of force, so on the basis of that these companies do owe duty of care towards these people.
In addition to this principle, It provided a way to the people who were suffering at the hands of these transnational Canadian companies and in Guatemala there are a number of Canadian mining companies that have attributed to human right violations whether by themselves or through their subsidiaries. These companies were accused of rape, unlawful killing, forced displacement, threat (psychological terror), robbery, environmental degradation, harassment, persecution from many years. Based on this decision Canadian courts have recently allowed a trial to proceed in cases of Araya v. Nevsun Resources and Garcia v. Tahoe Resources. The approach of Canadian courts towards this situation is substantial but it can be overruled at any time soon so there must be a proper and permanent form of legislation for these transnational corporations at both domestic and international level to avoid such abuses. The major problem is that these corporations do not exercise due diligence in the course of their work and clearly ignore the principle of corporate social responsibility and their respective countries do not impose any sanctions in the case of violations. However, despite of this development there are certain gaps that require to be fulfilled within the legal system of Canada. There must be enforcement and regulation of laws and policies that cover human right abuses committed by Canadian companies operating abroad.

Chapter V: Effectiveness Of Canadian Legal Framework

It is evident from the previous chapter that Canadian courts have adopted a wide approach with respect to transnational justice but if the Canadian laws are taken into consideration it can be seen that there is still a gap but efforts have been made to address these issues by introducing policies and recent laws.

### Human Right Legislation In Canada
In Canada at federal level the most important legislations related to human rights are said to be “Canadian Charter of rights and freedom (1982)” which is a part of Canadian constitution, the other one is “Canadian Human Rights Act” and there is also “Canadian Bill of Rights 1960”. With that, there is a Canadian Human Right Commission and tribunals that deals with the complaints or cases related to human right abuse. These all tend to provide protection to the citizens of Canada with respect to the abuse of their basic human rights. Not only this, there are many other provincial and territorial human rights legislations which are based on the same principles as that of the Human rights Act. According to the Rule of law index from the World Justice Project, Canada is ranked 12th across 139 countries for its protection of fundamental human rights. However, it is limited to the activities that take place within Canada. In addition to this, Canada has ratified a number of international human treaties as discussed earlier in Chapter 2 these include ICCPR, ICESCR, ILO, even the convention on forced labour (ILO 2020), and etc. In addition to this, for the purpose of business human rights the major international instruments are UNGP, OECD guidelines and Voluntary Principles for Security and Human Rights.

### Corporate Accountability In Canada
Canada does not have a proper mechanism that can allow the authorities to exercise their direct control over the Canadian companies that are operating abroad. However, in order to address these violations it introduced some strategies and policies in conformity with international law. These strategies are related to “Corporate social Responsibility (CSR)”. CSR strategy was first introduced in 2009 in order to promote social responsibility among the corporations with respect to the stakeholders. Moreover, it also established the Office of the Extractive-Sector CSR Counsellor. Then in 2014, CSR got revised and its main objectives were that the Canadian companies will comply with Canadian values and higher moral and ethical standards. After that in 2022, CSR strategy set priorities for the government of Canada related to responsible business practices of Canadian companies. The names of the respective CSR strategies are listed below:

2009 strategy is named as “Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector”

2014 strategy is named as "Doing Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad"

2022 strategy is named as “Responsible Business Conduct Abroad Canada’s Strategy for the Future”

Apart from that for the dispute resolution and promotion of responsible business conduct Canada has established Canada’s National Contact Point (NCP) under OECD guidelines. It has been working for over twenty years and provides services of facilitation and mediation on the issues related to labour, human rights environmental issues, and disclosure. Moreover, in 2018 Canadian Ombudsperson For Responsible Enterprise (CORE) was established in 2019 and became operational in 2021. The basic purpose of CORE is to promote the implementation of UNGP and OECD guidelines, advising Canadian companies and ministers on responsible business conduct, reviewing the complaints and in some instances can provide informal mediation services.
Other than that, there is Export Development Canada, which is a state agency that provides support to these companies that operate abroad by providing government backed loan, equity, and other guidance as well.

### Gaps In Canadian Legal Framework
Apparently, it seems that to establish transnational justice Canada did have complied with the recommendations of international organisations but there are still some gaps within its legal framework. The policies are out there but it does not impose sanctions on the companies, which is one of the major drawbacks. With respect to that, there are certain flaws within these Canadian policies and these are discussed below;

Corporate accountability is not properly addressed;
The person who suffered at the hands of Canadian companies, outside Canada, has to come all over Canada for a court hearing.
NCP and CSR Counselor do not have power to impose sanctions on the companies and it cannot provide any remedy to the victim. These are limited by the design.
Agencies also lack basic expertise of administrative and legal mechanisms as they are the major block between state and corporations but still they do not have knowledge of responsible business conduct.
Moreover, there is not a single case that has been mediated by a CSR Counselor. The reason is that it cannot force the company and in any instances, these corporations refuse to mediate.
In addition to this, the CSR Counselor does not have power to investigate the complaint nor can he verify whether the company actually breached the set guidelines or not related to human rights. Neither can he give any binding recommendations. It cannot even initiate a process without having an agreement with the company.
CORE also does not have authority to act independently or report publicly any human right abuse by a Canadian company and the same is the case with a CSR counselor as it is dependent on the government department. It also does not have authority to compel witnesses or documents. The major problem with regards to implementation is lack of evidence of a business case and lack of time and resources
In most of the cases bringing up a complaint to these institutions, gives rise to considerable risk to that person or human right defender and in result, he has to face retaliation as these corporations, government, and state agencies are internally connected. It also lacks effective remedy, which is a recognized international principle.

From the data available it cannot be assessed how effective CORE has been up till now but on the basis of theoretical approach it can be assumed that it can also be little ineffective. The reason is that there might some issues such as conflict of interest for example if CORE advises one company and for that company a complaint is put forward then to deal with that there is a possibility of conflict of interest. Secondly, the NCP has the same sorts of power so there is a chance that it might overlap with its functions. Moreover, since NCP has not been sufficiently effective and CORE is in the same line so there is possibility that it would also not be effective in protecting human rights.

## Chapter Vi: Recommendations And Conclusions
CONCLUSION

Under International and national law, Canada is under obligation to protect, respect and secure human rights but from the above study it has been observed that these laws does not extends to Canadian companies that operate abroad. The reason is that the existing rules/guidelines are voluntary in nature and does not impose sanctions or provide effective redressal mechanism to the victims. While on the other hand in Guatemala, the courts were also reluctant to hold the Canadian companies accountable for their human right violations and in Canada, the court used to reject the claim on the want of jurisdiction. However, recently Canadian courts shed light on these issues in the cases of Hudbay and Nevsun as it developed the customary international law in Canada and provided a way out for the claimant. However, the decision can be overruled anytime soon and for that reason there must be proper system or law that can prevent such violations. Moreover, to address that Canada also introduced corporate social responsibility however these were not effective enough up till and for that reason CORE was established. CORE is likely to play an important role in countering these issues but it does not seem effective enough. The only solution to these issues is to enact a proper legislation based on extractive sector’s responsible conduct of business and impose mandatory obligations on these companies and Canada being a global player needs to play as a home state in order to protect international human rights.

RECOMMENDATIONS
To prevent Human Right abuse there are some of the feasible recommendations for the government of Canada which are described below:
Recommendations for the Canadian Government
Government is a key player in protecting human right abuses and the most important action a government can take is to implement mandatory obligations of international human right standards. Secondly, it needs to work on bilateral relations with other countries to effect the improvement of human right abuses.
The Canadian Government should enact an involuntary piece of legislation on the responsible conduct of business in the extractive sector; however, two bills are pending in the Canadian parliament on the same subject matter but still not passed. There must be a law that can impose corporate duty on these transnational companies to prevent adverse human rights impacts.
The Canadian government should also ensure the right to an effective remedy through courts and non-judicial mechanism which is recognized as fundamental human right under many international instruments and some of those treaties are also ratified by Canada.
The Canadian government should also enact mandatory due diligence legislation to prevent, identify or mitigate the account of human right abuse and if enacted it would require Canadian companies to prevent human right violation throughout their global practice and supply chain.
The Canadian government should establish or make an existing ombudsperson (such as CORE) independent of the government in order to make it effective. Moreover, it should be provided with resources and power to carry out thorough investigation in case of human right abuses committed by Canadian companies outside Canada and report that directly to the action committee to impose sanctions on the related company.
Moreover, they must be provided with authority to make public recommendations for the purpose of relief and harm prevention and they should also have power to monitor the process of investigation to have transparency.
The Canadian government should also establish an independent agency within these organisations to ensure the implementation of recommendations provided.
To have a transparent process, these organisations or agencies must be granted with power to summon witnesses, their statements, and documentary evidence from the mining area where the desired company is located at their own motion or discretion as it is necessary for conducting a full and fair investigation.
In addition, these agencies must publish the assessment reports regarding the investigation process.
The Canadian government must monitor the working of these agencies and an annual report should be formed on their working. Then that report should be used to facilitate its activities to ensure fair accountability.
The Canadian government should also ensure coordination between NCP, CORE and CSR Counselor bodies, so that the mandate of their powers and function does not overlap with each other.
The Canadian government should establish a cell/body in all the countries where its companies are operating to directly evaluate the human right issues and have a check and balance on them.

Recommendations for the International Community
International bodies such as United Nation should pressurize transnational corporations to establish a code of conduct for the responsible practices of business within their body. It should also establish a human right wing within these companies to monitor such abuses and report that to concerned international organization.
International market should hold companies accountable, which are involved in such practices and the one’s which are reluctant in releasing their supply chain by blacklisting it or boycotting its product. This can further done by raising awareness among the consumers and the companies who have transparent supply chain must be encouraged.
The investors should engage with businesses and regulators to solve accountability gaps brought on by these companies. Encourage these parties in particular to exert their influence in accordance with international human rights legislation.
The investors should also foster an atmosphere that supports upholding corporate obligations to respect human rights throughout the company's supply chain and value chain, encourage businesses to include human rights issues in their business contracts.
There should be a support system for victims at international level like UNHCR that protects the victim’s interest and provide them with necessary resources, to redress his grievance.
Transnational corporation should also exercise due diligence and be diligent enough to make sure that its policies expressly forbid human rights abuses and should exercise routine checks to reject any possibility of human right violations.

References

Cases:
Choc v Hudbay Minerals Inc [2013] ONSC 1414 (Ontario Superior Court of Justice).
Nevsun Resources Ltd v Araya [2020] SCC 5, 1 SCR 82.
Araya v Nevsun Resources Ltd [2020] SCC 5, 1 SCR 82.
García v Tahoe Resources Inc [2017] BCCA 39.
Books and Edited Volumes:
Dubinsky, Karen, Sean Mills, and Scott Rutherford (eds), Canada and the Third World: Overlapping Histories (University of Toronto Press 2016).
Andrews, N, and JA Grant (eds), Corporate Social Responsibility and Canada’s Role in Africa’s Extractive Sectors (University of Toronto Press 2020).
Feichtner, I, M Krajewski, and R Roesch (eds), Human Rights in the Extractive Industries (Springer International Publishing 2019, Switzerland).
Henighan, S, and C Johnson (eds), Human and Environmental Justice in Guatemala (University of Toronto Press 2018).
Deva, S, and D Birchall (eds), Research Handbook on Human Rights and Business (Edward Elgar Publishing 2020).
Deneault, Alain, and William Sacher, Imperial Canada Inc: Legal Haven of Choice for the World's Mining Industries (Talonbooks 2012).
Mares, Radu (ed), The UN Guiding Principles on Business and Human Rights: Foundations and Implementation (Martinus Nijhoff Publishers 2011).
Willems, Louis, Mining and Indigenous Peoples in Guatemala: The Local Relevance of Human Rights (Master's thesis, University of Utrecht 2010).
Darimani, Abdulai, Impacts of Activities of Canadian Mining Companies in Africa (Third World Network-Africa 2005, Accra, Ghana).

Journal Articles:
Mijares Peña, Susana C, 'Human Rights Violations by Canadian Companies Abroad: Choc v Hudbay Minerals Inc' (2014) 5 WJ Legal Stud i.
Imai, Shin, 'The "Canada Brand": Violence and Canadian Mining Companies in Latin America' (2016) SSRN Electronic Journal https://doi.org/10.2139/ssrn.2886584.
Gerrity, Rory, 'Mining for Justice in Home Country Courts: A Canada-UK Comparison of Access to Remedy for Victims of Human Rights Violations' (2016) SSRN Electronic Journal https://doi.org/10.2139/ssrn.2882826.
Weissbrodt, David, and Muria Kruger, 'Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights' (2003) 97 AJIL 901.
Nandy, Debosmita, and Niketa Singh, 'Making Transnational Corporations Accountable for Human Rights Violations' (2009) 2 NUJS L Rev 75.
Muhammed, Muhammed Hamid, 'Transnational Corporations and Human Rights' (2021) 23(2) Global: Jurnal Politik Internasional 285.
Droubi, Sufyan, 'Transnational Corporations and International Human Rights Law' (2016) 6 Notre Dame J Int'l Comp L 119.
Imai, Shin, Leah Gardner, and Sarah Weinberger, 'The Canada Brand: Violence and Canadian Mining Companies in Latin America' (2017) 17 Osgoode Legal Studies Research Paper.
Schlewitz, A J, 'Imperial Incompetence and Guatemalan Militarism, 1931–1966' (2004) 17(4) International Journal of Politics, Culture, and Society 585.
Anaya, S James, 'Report of the Special Rapporteur on the Rights of Indigenous Peoples on Extractive Industries and Indigenous Peoples' (2015) 32 Ariz J Int'l & Comp L 109.
Vittor, Luis, 'Indigenous People and Resistance to Mining Projects' (2014) 13(2) ReVista (Cambridge) 50.
Imai, Shin, Ladan Mehranvar, and Jennifer Sander, 'Breaching Indigenous Law: Canadian Mining in Guatemala' (2007) 6 Indigenous LJ 101.
Reports and Other Documents:
Amnesty International, Guatemala: Mine Activists Beaten and Threatened (2011) https://www.amnesty.org/en/documents/amr34/002/2011/en/ accessed 30 September 2022.
EarthRights International, 'Canada Enables Extractive Companies to Violate Human Rights' (2017) https://earthrights.org/blog/canada-enables-extractive-companies-to-violate-human-rights/ accessed 30 September 2022.
The Mining Association of Canada, Facts and Figures 2020 (2020) https://mining.ca/documents/facts-figures-2020/ accessed 30 September 2022.
International Labour Organization, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (2022) https://www.ilo.org/publications/tripartite-declaration-principles-concerning-multinational-enterprises-and-3 accessed 29 September 2022.
International Organization for Standardization, ISO 26000:2010 – Guidance on Social Responsibility (ISO 2010) https://www.iso.org/iso-26000-social-responsibility.html accessed 29 September 2022.
United Nations Global Compact, UN Global Compact (2000) https://unglobalcompact.org accessed 30 September 2022.
United Nations Human Rights Council, Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, Res 26/9, UN Doc A/HRC/RES/26/9 (2014).
International Labour Organization, Indigenous and Tribal Peoples Convention, 1989 (No. 169) (adopted 27 June 1989, entered into force 5 September 1991).
Mining Association of Canada, Facts & Figures 2021 (2021) https://mining.ca accessed 30 September 2022.
Natural Resources Canada, Canadian Mining Assets 2019 and 2020 (2021) https://publications.gc.ca/collections/collection_2021/rncan-nrcan/M31-17-2021-eng.pdf accessed 30 September 2022.
Canadian National Contact Point, Final Statement on the Marlin Mine (2011) https://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/finalstat-marlin-declfinale.aspx?lang=eng accessed 30 September 2022.
Hufstader, Chris, 'Marlin Mine: Violence and Pollution Lead to Call for Suspension' Oct (2011) Oxfam America.
Guatemala: Marlin-01/Sipacapa (2005) https://www.cao-ombudsman.org accessed 30 September 2022.
Guide to Doing Business in Canada: Mining (2021) https://gowlingwlg.com/en/insights-resources/guides/2021/doing-business-in-canada-mining/ accessed 30 September 2022.

## Notes
- [2013] ONSC 1414 (Ontario Superior Court of Justice)
- [2020] SCC 5, 1 SCR 82
- Karen Dubinsky, Sean Mills, and Scott Rutherford (eds), Canada and the Third World: Overlapping Histories (University of Toronto Press 2016).
- N Andrews and JA Grant (eds), Corporate Social Responsibility and Canada’s Role in Africa’s Extractive Sectors (University of Toronto Press 2020)
- I Feichtner, M Krajewski, and R Roesch (eds), Human Rights in the Extractive Industries (Springer International Publishing 2019, Switzerland).
- S Henighan and C Johnson (eds), Human and Environmental Justice in Guatemala (University of Toronto Press 2018)
- S Deva and D Birchall (eds), Research Handbook on Human Rights and Business (Edward Elgar Publishing 2020)
- Susana C Mijares Peña, 'Human Rights Violations by Canadian Companies Abroad: Choc v Hudbay Minerals Inc' (2014) 5 WJ Legal Stud i
- Amnesty International, Guatemala: Mine Activists Beaten and Threatened (2011) HYPERLINK "https://www.amnesty.org/en/documents/amr34/002/2011/en/" "_new" https://www.amnesty.org/en/documents/amr34/002/2011/en/ accessed 30 September 2022
- Alain Deneault and William Sacher, Imperial Canada Inc: Legal Haven of Choice for the World's Mining Industries (Talonbooks 2012)
- Shin Imai, 'The "Canada Brand": Violence and Canadian Mining Companies in Latin America' (2016) SSRN Electronic Journal https://doi.org/10.2139/ssrn.2886584
- EarthRights International, 'Canada Enables Extractive Companies to Violate Human Rights' (2017) https://earthrights.org/blog/canada-enables-extractive-companies-to-violate-human-rights/ accessed 30 September 2022
- Rory Gerrity, 'Mining for Justice in Home Country Courts: A Canada-UK Comparison of Access to Remedy for Victims of Human Rights Violations' (2016) SSRN Electronic Journal https://doi.org/10.2139/ssrn.2882826
- Louis Willems, Mining and Indigenous Peoples in Guatemala: The Local Relevance of Human Rights (Master's thesis, University of Utrecht 2010)
- B Oberle and others, Global Resources Outlook 2019: Natural Resources for the Future We Want (2019)
- The Mining Association of Canada, Facts and Figures 2020 (2020) HYPERLINK "https://mining.ca/documents/facts-figures-2020/" "_new" https://mining.ca/documents/facts-figures-2020/ accessed 30 September 2022.
- David Weissbrodt and Muria Kruger, 'Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights' (2003) 97 AJIL 901
- Matthias Finger and David Svarin, 'Transnational Corporations and the Global Environment' (2010) Oxford Research Encyclopedia of International Studies
- Debosmita Nandy and Niketa Singh, 'Making Transnational Corporations Accountable for Human Rights Violations' (2009) 2 NUJS L Rev 75
- Muhammed Hamid Muhammed, 'Transnational Corporations and Human Rights' (2021) 23(2) Global: Jurnal Politik Internasional 285
- John Evans, Kirstine Drew, and SFDI, 'The OECD Guidelines for Multinational Enterprises Responsible Business Conduct in a Global Context' in Le pouvoir normatif de l’OCDE (Pedone 2013, Paris)
- International Labour Organization, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (2022) HYPERLINK "https://www.ilo.org/publications/tripartite-declaration-principles-concerning-multinational-enterprises-and-3" "_new" https://www.ilo.org/publications/tripartite-declaration-principles-concerning-multinational-enterprises-and-3 accessed 29 September 2022
- International Organization for Standardization, ISO 26000:2010 – Guidance on Social Responsibility (ISO 2010) HYPERLINK "https://www.iso.org/iso-26000-social-responsibility.html" "_new" https://www.iso.org/iso-26000-social-responsibility.html accessed 29 September 2022
- United Nations Global Compact, UN Global Compact (2000) HYPERLINK "https://unglobalcompact.org" "_new" https://unglobalcompact.org accessed on 30 September 2022
- David Weissbrodt and Muria Kruger, 'Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights' (2003) 97 AJIL 901
- Radu Mares (ed), The UN Guiding Principles on Business and Human Rights: Foundations and Implementation (Martinus Nijhoff Publishers 2011)
- United Nations Human Rights Council, Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, Res 26/9, UN Doc A/HRC/RES/26/9 (2014)
- Ibid
- Ibid
- International Labour Organization, Indigenous and Tribal Peoples Convention, 1989 (No. 169) (adopted 27 June 1989, entered into force 5 September 1991)
- Sufyan Droubi, 'Transnational Corporations and International Human Rights Law' (2016) 6 Notre Dame J Int'l Comp L 119
- Ibid
- Ibid
- Mining Association of Canada, Facts & Figures 2021 (2021) HYPERLINK "https://mining.ca" "_new" https://mining.ca accessed 30 September 2022
- Ibid
- Guide to Doing Business in Canada: Mining (2021) https://gowlingwlg.com/en/insights-resources/guides/2021/doing-business-in-canada-mining/ accessed 30 September 2022
- Natural Resources Canada, Canadian Mining Assets 2019 and 2020 (2021) HYPERLINK "https://publications.gc.ca/collections/collection2021/rncan-nrcan/M31-17-2021-eng.pdf" "new" https://publications.gc.ca/collections/collection_2021/rncan-nrcan/M31-17-2021-eng.pdf accessed 30 September 2022
- Abdulai Darimani, Impacts of Activities of Canadian Mining Companies in Africa (Third World Network-Africa 2005, Accra, Ghana)
- Shin Imai, Leah Gardner, and Sarah Weinberger, 'The Canada Brand: Violence and Canadian Mining Companies in Latin America' (2017) 17 Osgoode Legal Studies Research Paper
- A J Schlewitz, 'Imperial Incompetence and Guatemalan Militarism, 1931–1966' (2004) 17(4) International Journal of Politics, Culture, and Society 585
- Commission for Historical Clarification (CEH), Guatemala: Memory of Silence (1999) HYPERLINK "https://archive.org/details/357870-guatemala-memory-of-silence-the-commission-for" "_new" https://archive.org/details/357870-guatemala-memory-of-silence-the-commission-for accessed 29 September 2022
- Canadian National Contact Point, Final Statement on the Marlin Mine (2011) https://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/finalstat-marlin-declfinale.aspx?lang=eng accessed 30 September 2022
- S James Anaya, 'Report of the Special Rapporteur on the Rights of Indigenous Peoples on Extractive Industries and Indigenous Peoples' (2015) 32 Ariz J Int'l & Comp L 109
- Luis Vittor, 'Indigenous People and Resistance to Mining Projects' (2014) 13(2) ReVista (Cambridge) 50
- Amnesty International, Guatemala: Mine Activists Beaten and Threatened (2011) HYPERLINK "https://www.amnesty.org/en/documents/amr34/002/2011/en/" "_new" https://www.amnesty.org/en/documents/amr34/002/2011/en/ accessed 30 September 2022
- Chris Hufstader, 'Marlin Mine: Violence and Pollution Lead to Call for Suspension' Oct (2011) Oxfam America
- Ibid
- Guatemala: Marlin-01/Sipacapa (2005) HYPERLINK "https://www.cao-ombudsman.org" "_new" https://www.cao-ombudsman.org accessed September 30, 2022
- Shin Imai, Ladan Mehranvar, and Jennifer Sander, 'Breaching Indigenous Law: Canadian Mining in Guatemala' (2007) 6 Indigenous LJ 101
- Ibid
- [2020] SCC 5
- [2017] BCCA 39