Mining for Justice in Home Country Courts: A Canada-UK Comparison of Access to Remedy for Victims of Human Rights Violations

Abstract

In the absence of international law holding multinational corporations accountable, the only recourse available to many victims of human rights violations may be domestic tort law in the multinational’s home country courts. Existing barriers preventing access to this forum of last resort for victims from countries which lack adequate legislation or fail to provide access to local courts or justice, allow multinationals to operate largely with legal impunity. This paper will analyse and compare the court access available in Canada and the United Kingdom to foreign victims of human rights violations committed by mining companies based in these countries, as well as how these countries are meeting their obligations under the United Nations Guiding Principles on Business and Human Rights. As Canadian courts have the greatest potential to provide justice to the most victims and have been criticised widely for failing to do so, including by the UN, this forum will be the primary focus.Specifically, the history and current state of UK and Canadian legislation and case law is explored under which mining companies operate overseas, and the divergence of UK and Canadian courts on granting home court access and remedy. Particular attention is directed to key Canadian and UK court cases involving the mining sector and human rights in developing countries, with emphasis on the precedence setting Choc v. Hudbay rulings and the impact of this case on Canadian jurisprudence in the areas of forum non conveniens, parent company duty of care, doctrine of limited liability, and the application of international law. The paper recommends approaches Canadian lawmakers may pursue to guarantee access to Canadian courts for foreign human rights victims at the hands of Canadian mining companies, which includes eliminating forum non conveniens as a defence in human right cases, guaranteeing home court access in bilateral trade agreements, recognising international human rights law in Canadian courts, and removing the shield of the doctrine of corporate limited liability in human rights cases, especially where companies have knowingly established operations in areas of conflict or weak rule of law.