The Defining Fight of Our Lives

(The following Beyond Aid piece appeared in The Tyee last week with a different picture and a slightly altered title but is otherwise unchanged.) 

There is a saying where Vidalina Morales de Gámez comes from, that you can live without gold but you can’t live without a glass of water each day.

Where she comes from is El Salvador’s Cabañas region, which for much of the last decade has been the scene of a struggle between Vancouver-based Pacific Rim Mining Corporation and those who oppose the planned El Dorado gold project they say threatens already scarce water supplies.

The National Roundtable against Metallic Mining in El Salvador (La Mesa) member found herself in Vancouver this past weekend, six years into her involvement in the fight, standing on the southwest corner of Dunsmuir and Howe, the place her opponents call home, demanding that they stay out of hers.

“For us, it’s so difficult to come here,” she told The Tyee just after megaphoning her message in Spanish to a crowd that organizers pegged at a little under 200. “But they come to our land with such ease and do what they want. It’s unbelievable.”

Taking the fight to Pacific Rim’s turf, even on a Saturday when the offices were closed, was a bittersweet experience for the 44 year-old mother of five. It was a release, she said, but there was also fear.

“I felt nervous because they are watching those of us who are on the frontlines. So there is fear because of what’s happened in our country.”

Among those happenings are the unsolved murders of three anti-mining activists, alleged death threats against others and a multi-million-dollar lawsuit brought before a World Bank arbitration panel by Pacific Rim against the government of El Salvador for refusing to issue the required environmental permits. That legal battle entered a new phase last week.

The buck stops here
Morales’s battle was just one of many providing the inspiration for Shout Out Against Mining Injustice, a two-day Vancouver event hosted by the Council of Canadians “aimed at exposing the appalling environmental and human rights abuses of Canadian mining companies.”

The list of speakers included representatives of mining-affected communities from Chile to Northern Ontario, as well as environmental and human rights activists, a member of parliament and a union boss.

As the name suggests, Shout Out Against Mining Injustice was not about finding a middle ground on which to meet mining companies. Instead, the focus was on building international solidarity among communities affected by Canadian mining projects, as well as with a wider set of environmental and human rights allies.

The day before the Pacific Rim protest, the event kicked off with a demonstration led by members of the Tsilhqot’in Nation outside the offices of Taseko Mines Limited, where the company hoping to establish the New Prosperity mine in B.C.’s Cariboo-Chilcotin region was holding its annual general meeting.

In addition to such direct action, there was much discussion of injustices ranging from alleged assassinations to the destruction of sacred indigenous sites. A recurring theme in such accounts, apart from the depiction of Canadian companies as ignoring the rights of poor and indigenous populations, was the sense — as with both El Dorado and New Prosperity — that even when a government initially says no to a project, the local population cannot rest easy.

Given that three-quarters of the world’s mining companies have their headquarters in Canada, Maude Barlow, the national chairperson of the Council of Canadians, called the struggle for responsible mining “the defining fight of our lives.” And a number of panelists spoke of the ways, through investments and pensions, that average Canadians contribute to and benefit from mining profits.

“Your resources fund these companies, so you are co-responsible for legal action against them,” said Silvia Quilumbango, president of the Ecuadorean environmental group DECOIN, which recently helped bring an unsuccessful lawsuit in an Ontario court against the Toronto Stock Exchange for complicity in alleged human rights abuses by the now-delisted Copper Mesa Mining Corporation.

Effecting change
But of course, courts can only dispense justice as defined by the laws they are charged with upholding. And these laws, according to Sack Goldblatt Mitchell LLP’s Steven Shrybman, are increasingly stacked in favour of corporations.

The main culprit, as he sees it, is the vast and growing global architecture of “pernicious” international trade agreements that have emphasized corporate rights over responsibilities during the past two decades. A “patchwork” of about 3,000 such deals designed to “circumvent the domestic judicial process” has essentially created a de facto multilateral agreement on investment, despite that proposed pact’s apparent defeat back in 1998.

According to Shrybman, there are three potential pressure points for grassroots efforts to push for greater corporate accountability in the extractive sector: the companies, the federal government and the courts.

He advised “monkey-wrenching any dispute that you can,” citing his fellow panelists’ calls for a public campaign to shame Pacific Rim into dropping its lawsuit against the government of El Salvador.

But as a lawyer, he favours a “more systemic approach” than simply going after individual companies. Because he believes that courts can be affected by “noise” from the population, he thinks average Canadians can help “re-energize” domestic courts to take on corporate abuses committed abroad. He pointed to last week’s filing of a lawsuit by a group of Ecuadorans against Chevron in an Ontario court as a positive sign, even though neither plaintiff nor defendant is actually Canadian.

As for the government, Shrybman argued the ideal course of action would be for it to repudiate international trade agreements. But failing that, he sees Burnaby-New Westminster MP Peter Julian’s proposed bill C-323 as a step towards redressing “the grotesque imbalance between the rights of corporations and the rights of the state.”

Culture shift
Julian was also in attendance at the conference to discuss his bill, which is modeled on the U.S. Alien Tort Claims Act (ATCA), an arcane 18th century law that has been resurrected in recent years by lawyers trying to hold corporations to financial account for their actions in other countries.

But Julian knows he is swimming against the tide with his proposal. With the conservative-leaning U.S. Supreme Court set to re-hear arguments in a lawsuit brought by Nigerian plaintiffs against oil giant Shell, the ATCA itself could soon lose its new-found potential as a tool for punishing overseas corporate wrongdoing.

More immediately relevant to the Canadian context is the current make-up of parliament. Julian said he was “vilified” by Conservatives for his decision to attend Shout Out Against Mining Injustice. Indeed, in the House of Commons on Friday, Fort McMurray-Athabasca MP Brian Jean said Julian “should be ashamed of himself…Attacking the natural resources sector, he is attending a Council of Canadians conference that actually opposes the mining industry and Canadian companies around the world. The member for Burnaby-New Westminster is spending his weekend attacking trade and our resource sector.”

As a result of the prevailing political climate, Julian said he is not planning to push ahead with his bill “in the next few months,” as he sees little prospect of passing it at present. Nevertheless, he ended his speech with a short, big promise: “We will achieve mining justice in Canada.”

For that justice to extend to her tiny country, Morales believes Canadians may need to change more than their laws.

“In El Salvador, we don’t have the luxury of just going to the corner store or mall to buy what we need. We have to produce it,” she said, looking out a window onto Vancouver’s industrial waterfront, as though she needed a reminder of Canada’s fixation on economic growth. “I think that people here often don’t realize that or open their minds to seeing the world in a different way.”

Latest Developments, March 20

In the latest news and analysis…

Mining tax
The BBC reports that Australia’s senate has passed a controversial 30-percent tax on coal and iron mining companies.
“The Australian government originally announced a 40% mining tax in May 2010, but that set off intense opposition from the mining companies.
That opposition was central to the Labor party’s decision in June to replace Kevin Rudd as prime minister with Ms Gillard.
She then negotiated a 30% tax with the mining giants.”

Libyan airstrike victims
Amnesty International’s Sanjeev Bery writes that NATO “has not fulfilled its responsibility to the survivors” a year on from the start of its military intervention in Libya.
“But scores of Libyan civilians who did not directly participate in the conflict were killed as a result of the airstrikes, and many more were injured.  In the four months since the end of the military campaign, NATO has yet to contact survivors or share information resulting from its investigations.

NATO officials have a duty to ensure that a prompt, independent, impartial, and thorough investigation is conducted.  They also have a duty to investigate whether NATO participants in the conflict violated international humanitarian law in striking Mustafa [Naji al-Morabit]’s home.
Finally, all victims of violations of international humanitarian law — and their families – must receive reparations.  The air strikes campaign may be over, but for civilian victims, the suffering continues.”

Ultrasound legislation
In a guest post on the Whatever blog, an anonymous physician calls for “a little old-fashioned civil disobedience” in response to proposed legislation in several US states that would make transvaginal ultrasounds mandatory for women considering an abortion.
“I do not feel that it is reactionary or even inaccurate to describe an unwanted, non-indicated transvaginal ultrasound as ‘rape’. If I insert ANY object into ANY orifice without informed consent, it is rape. And coercion of any kind negates consent, informed or otherwise.

Our position is to recommend medically-indicated tests and treatments that have a favorable benefit-to-harm ratio… and it is up to the patient to decide what she will and will not allow. Period. Politicians do not have any role in this process. NO ONE has a role in this process but the patient and her physician. If anyone tries to get in the way of that, it is our duty to run interference.”

Namibian genocide
Pambazuka News and AfricAvenir International present a collection of articles disputing the current German government’s claim that the country bears “relatively light colonial baggage.”
“Germany, which has done commendable remembrance work about the Holocaust, seems to have forgotten or deliberately buried its violent colonial past. A past that hides the first genocide of the 20th century, planned and executed by the Second Reich or Kaiserreich. A past that laid not only the foundation for racist theories and pseudoscientific medical experiments on humans – in this case Africans supposed inferiority was to be proven – but also produced, with its concentration camps in Africa, the blueprint for the later Nazi death camps. The way in which Germany tries to silence this past seems to prove Dr Theo-Ben Gurirab right when he assumes that the reason for this genocide not being discussed and treated like the Holocaust is mainly due to the fact that it was aimed against black people: ‘Germany apologised for crimes against Israel, Russia or Poland, because they are dealing with whites. We are black and if there is therefore a problem in apologising, that is racist.’ ”

Misguided assistance
In a New York Times op-ed, Ugandan journalist Angelo Izama opposes “increased military action” in Uganda and its wider region as advocated in the viral video Kony 2012.
“The locals never forgot that Mr. Kony’s nine lives were licensed by the politics of the posse that has been hunting for him. Some northern politicians accused the Ugandan government of criminal negligence or settling old political scores. Others, outraged by the conditions the government had subjected them to, sympathized with Mr. Kony. Most were simply tired of war and supported peace talks to end the conflict. If America backed an ambitious regional political solution instead of a military one, it is quite possible that the L.R.A. and other militant groups would cease to exist. But without such a bargain, the violence won’t end.
Killing Mr. Kony may remove him from the battlefield but it will not cure the conditions that have allowed him to thrive for so long.”

Undermining justice
Daraja’s Ben Taylor argues a settlement payment made by UK defence company BAE Systems to Tanzania without any admission of guilt may do more harm than good.
“There is no satisfactory conclusion for the people of Tanzania, where the investigation’s premature closure undermines the cause of justice and accountability. As Tanzanian media tycoon Reginald Mengi tweeted (in Swahili): ‘The radar money has been paid. Nobody has been prosecuted. They say there’s no evidence. Is the war on corruption just words?’ ”

Sharing racism’s burden
The City University of New York’s Gloria Browne-Marshall argues for the continued necessity of affirmative action ahead of a big test before the US Supreme Court later this year.
“America, like other nations, has a flaw in its societal fabric. In other countries, it may be religion, class, caste, color – here it is race. It is an American plight.
Ending affirmative action after only thirty years ignores the vestiges of the last 300 years. As Justice Sandra Day O’Connor explained in Adarand v. Pena, the ‘unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it.’ ”

Human rights chain responsibility
University of West England doctoral student David Kisiaky makes the case for a “contractual requirement on every relevant person and business in a supply chain to promote the respect and protection of human rights” as an alternative to the unbridled pursuit of profits.
“Several individuals and organisations including the UN now believe that one of the ways of rectifying such disparities [between the world’s rich and poor] is to require all businesses to adopt a moral legal culture which will ensure that human rights are respected ‘across their entire business operation, including their supply chains.’

There comes a time when our social order requires the formulation of new normativities. But above all, the implementation of new moral norms requires the authoritative force of positive law for the norms to have any meaningful and wide-reaching practical benefit to humanity.”

Latest Developments, March 5

In the latest news and analysis…

Justifying targeted killings
Talking Points Memo provides an excerpt of US Attorney General Eric Holder’s speech in which he explains the thinking behind the current administration’s growing habit of eliminating perceived threats extrajudicially.
“Some have called such operations ‘assassinations.’ They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”

Drones in the Philippines
American University’s Akbar Ahmed and Frankie Martin argue last month’s US drone strike in the southern Philippines – the first in Southeast Asia – has the potential to “further enflame” a conflict that has killed an estimated 120,000 over the past four decades.
“By unleashing the drones, the US has pushed the conflict between centre and periphery in the Philippines in a dangerous direction. If there is one lesson we can learn from half a millennium of history it is this: weapons destroy flesh and blood, but cannot break the spirit of a people motivated by ideas of honour and justice.
Instead, the US and Manila should work with the Muslims of the Philippines to ensure full rights of identity, development, dignity, human rights and self-determination. Only then will the security situation improve and the Moro permitted to live the prosperous and secure lives they have been denied for so long; and only then will the Philippines be able to become the Asian Tiger it aspires to be.”

Kiobel expanded
Bloomberg reports the US Supreme Court has expanded the scope of a human rights and corporate liability case involving Nigerian plaintiffs and oil giant Shell.
“When the justices heard arguments in the Shell case last week, they focused on whether the Alien Tort Statute allowed suits against corporations. Several justices, including Samuel Alito, suggested during the argument that they were more interested in considering contentions that the law can’t be applied overseas.
A ruling on the so-called extraterritoriality issue would potentially impose more sweeping limits on lawsuits, shielding corporate officers as well as the companies themselves.”

Beyond Kiobel
The Castan Centre for Human Rights Law’s Joanna Kyriakakis presents an overview of the issues at play in the Kiobel case, as well as future avenues for corporate liability advocates should the Supreme Court rule in Shell’s favour.
“Comments by plaintiff lawyer, Paul Hoffman, in a panel conversation the day after the hearing indicate that, whatever the outcome in this case, they will continue to pursue corporations implicated in human rights abuses through US judicial avenues. One option already noted would be to litigate individual corporate executives. In many respects, this option may be less appealing to the business world.”

Rich get richer
UC Berkeley’s Emmanuel Saez presents new figures suggesting these are good times for America’s “one percent”.
“In 2010, average real income per family grew by 2.3% but the gains were very uneven. Top 1% incomes grew by 11.6% while bottom 99% incomes grew only by 0.2%. Hence, the top 1% captured 93% of the income gains in the first year of recovery. Such an uneven recovery can help explain the recent public demonstrations against inequality. It is likely that this uneven recovery has continued in 2011 as the stock market has continued to recover. National Accounts statistics show that corporate profits and dividends distributed have grown strongly in 2011 while wage and salary accruals have only grown only modestly. Unemployment and non-employment have remained high in 2011.”

In defense of social unrest
In a Q&A with Inter Press Service, former UN Conference on Trade and Development head Rubens Ricupero speaks approvingly of how “dissatisfaction” drives history.
“I hope this movement demanding change will modify not only the internal economies of countries, in the sense of moving away from that market fundamentalism, but that it will also change the institutions that have represented that fundamentalist spirit.
And in order for that to happen, the central role has to be played by people around the world – not only in the (developing) South – who are aware of the problem, that it is not possible to continue with an organisation that foments the growth of inequality.”

World Bank non-leadership
Following close on the heels of Columbia University economist Jeffrey Sachs’s open application to become the next World Bank president, New York University’s William Easterly spells out how he would not run the international financial institution.
“I would not lead the World Bank by perpetuating the technocratic illusion that development is something ‘we’ do to ‘them.’ I would not ignore the rights of ‘them.’ If the New York Times should happen to report on the front page that a World Bank-financed project torched the homes and crops of Ugandan farmers, I would not stonewall the investigation for the next 165 days, 4 hours, 37 minutes, and 20 seconds up to now.”

Development gospel
Aid on the Edge of Chaos’s Ben Ramalingam argues the World Bank must stop being a “Development Church” that promotes economic dogma if its client countries are ever going to be “intellectually in the driver’s seat.”
“[Former World Bank staffer David] Ellerman argues that in the face of these Official Views, adverse opinions and critical reasoning tend to give way to authority, rules and bureaucratic reasoning shaped by the hierarchies within the organisation. Moreover, these Official Views “short-circuit” and bypass the active learning capability of national and local actors, and substitute the authority of external agencies in its place.”