Anvil Mining lawsuit (re Dem. Rep. of Congo)

Copper minePour la version française de ce profil, cliquez ici.

In October 2004, the town of Kilwa, Democratic Republic of Congo (DRC), was the site of fighting between the Congolese Armed Forces (FARDC) and a small group of rebels.  The armed forces launched the attack to take control of the town following a short occupation by the rebels.  During this fighting, the soldiers committed serious human rights violations against civilians, including summary executions, arbitrary arrest, rape and torture.  Anvil Mining operated the Dikulushi copper mine near Kilwa.  Witnesses alleged that Anvil Mining provided transportation (planes and vehicles) to the Congolese Armed Forces during this event.

After MONUC (UN Mission in DRC) and other national and international NGOs investigated the incident, DRC prosecutors launched investigations of their own.  On 12 October 2006, a military prosecutor charged certain FARDC soldiers with breaches of international humanitarian law, and accused three Anvil Mining employees of facilitating the abuses by placing vehicles at the disposal of the army.  Anvil Mining denied any direct involvement in the killings.  It argued that the allegations against its employees were “unfounded and without merit”.  The company did confirm that its vehicles and planes were used in the operation, but it said that they were requisitioned “under the force of law” by the security forces.

On 12 December 2006, the Lubumbashi military high court started to hear the case.  Towards the end of the trial, the military prosecutor indicated that there was insufficient evidence of intent to establish that Anvil Mining or its employees had been complicit in war crimes.  On 28 June 2007, the court acquitted 12 defendants, including the three employees of Anvil Mining.  The court also found Anvil Mining “not guilty”, notwithstanding the fact that Anvil Mining had not formally been tried.  The court took the view that no summary executions had occurred in Kilwa, but that people had been killed during “fierce” fighting between the rebels and the army.  In December 2007, an appeal against the court’s judgment was denied.

In addition to Anvil Mining’s operations in DRC, the company also has offices in Australia and Canada.  Following a complaint filed by lawyers representing Kilwa villagers, in September 2005, the Australian Federal Police launched an inquiry into the actions of Anvil Mining to establish if there was evidence of the company’s complicity in war crimes and crimes against humanity.  The inquiry was closed in August 2007 following the acquittal of the Anvil Mining defendants in the DRC lawsuit.

In November 2010, the Canadian Association Against Impunity (an association representing survivors of the incidents in October 2004) launched a civil class action against the company in the Quebec Superior Court.  The plaintiffs alleged that Anvil Mining was complicit in the human rights violations that occurred in Kilwa in 2004.  In late April 2011, the Superior Court of Quebec ruled that the case may proceed to the next phase.  The judge found that the case had sufficient links to Quebec in order to establish the court's jurisdiction to hear the case.  On 24 January 2012 the Quebec Court of Appeals reversed and dismissed the case.  The appeals court ruled that it lacked the necessary legislation to allow the case to proceed.  The plaintiffs appealed this dismissal to the Canadian Supreme Court on 26 March 2012.  On 1 November 2012, the Canadian Supreme Court announced that it would not hear the plaintiffs' appeal.

- "Supreme Court won't hear appeal in Congo massacre case", Canadian Press, 1 Nov 2012
- "Congolese raise mining lawsuit in Supreme Court", Canadian Press, 26 Mar 2012
- "Canadian mining company accused of complicity in Congo massacre", Maclean’s [Canada], 8 Nov 2010
- "Aust mining company cleared of war crimes charges", ABC News [Australia], 28 Jun 2007
- "Multinational company on trial in Katanga", International Justice Tribune, 22 Jan 2007
- "African tribunal cites Canadian company for role in massacre", Canwest News Service, 17 Oct 2006
- "AFP investigates Anvil Mining over human rights abuses (transcript)", ABC local Radio [Australia], 19 Aug 2005
- "The Kilwa Incident Transcript", ABC Four Corners [Australia], 6 Jun 2005

Anvil Mining:
- [PDF] Anvil and its Employees Acquitted in Kilwa Incident, 28 Jun 2007
- [PDF] Anvil Mining Congo receives notification from Congolese Military Court in relation to the Kilwa incident in October 2004, 18 Oct 2006
- [PDF] Anvil Confirms That Allegations Are Unfounded, 23 Aug 2005
- PDF] Anvil Confirms Denial of Unfounded Allegations, 21 Jun 2005

Rights & Accountability in Development (RAID), Global Witness, Action Contre l’Impunité pour les Droits Humains (ACIDH), Association Africaine de Défense des Droits de l’Homme (ASADHO/KATANGA): 
- [DOC] No justice in Canada for Congolese massacre victims as Canada's Supreme Court dismisses leave to appeal, 1 Nov 2012
- [PDF] Congolese massacre survivors to pursue justice at the Supreme Court of Canada, 31 Jan 2012
- [PDF] “Significant step forward in holding Anvil Mining to account”: Statement by The Canadian Association Against Impunity regarding the ruling of the Superior Court of Quebec, 29 Apr 2011
- [PDF] Kilwa Trial: a Denial of Justice – a chronology, October 2004-July 2007, 17 Jul 2007
- [FR] [PDF] Le Procès de Kilwa : un Déni de Justice – Chronologie, Octobre 2004-Juillet 2007, 17 juillet 2007
- Dikulushi copper/silver mine in the DR Congo

- United Nations: High Commissioner for Human Rights concerned at Kilwa military trial in the Democratic Republic of the Congo, 4 Jul 2007
- MONUC: Report on the conclusions of a special investigation into alleged summary executions and other human rights violations committed by the Congolese Armed Forces (FARDC) in Kilwa on 15 October 2004 (English Translation by Rights & Accountability in Development (RAID)), Sep 2005

- Supreme Court of Canada Case Information [court documents]
- [FR] Cour d'Appel de Québec: Association Canadienne Contre L'Impunité c. Anvil Mining Limited, 24 janvier 2012
- [FR] Cour Supérieur de Québec: [PDF] Association Canadienne Contre l'Impunité c. Anvil Mining Limited - Jugement, 27 avril 2011

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Author: Gwynne Skinner, Robert McCorquodale, Olivier De Schutter & Andie Lambe

"第三大支柱: 讓跨國公司侵犯人權行為的受害者獲得司法救濟", 2013年2月

“獲得司法救濟項目”(A2JR)設立的目的是確認並分析美國、加拿大和歐洲在該領域存在的阻礙…在開發該報告過程中我們進行了詳盡的現狀分析,結論顯示國家普遍沒有承擔為企業境外侵權行為的受害者提供有效司法救濟的義務。受害者在尋求救濟時仍然面臨著眾多的阻礙,有時還出現尋求救濟的途徑被完全堵死的情況。雖然相關國家在立法、法庭程序、人權保護和法律傳統方面存在著差異,但在所有司法制度下都存在著阻礙受害者尋求救助的情況。在一些案例中,這些阻礙被成功地克服,其原因往往是:律師採用了全新的訴訟方案;受害者有足夠的耐心;有著敏銳洞察力的法官願意受理此類維權訴訟。國家必須制定強硬、一致的政策,重申受害者的人權重於企業的經濟利益。企業侵權人權行為的受害者,無論侵權行為在何地發生,都有權獲得全面、有效的司法救濟。為實現上述目標,每一個國家都應該審視司法制度中的存在障礙,並考慮採取行動加以消除,特別是考慮本報告提出的相關建議...

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Report
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Author: Gwynne Skinner, Robert McCorquodale, Olivier De Schutter & Andie Lambe

"第三大支柱: 让跨国公司侵犯人权行为的受害者获得司法救济", 2013年2月

“获得司法救济项目”(A2JR)设立的目的是确认并分析美国、加拿大和欧洲在该领域存在的阻碍…在开发该报告过程中我们进行了详尽的现状分析,结论显示国家普遍没有承担为企业境外侵权行为的受害者提供有效司法救济的义务。受害者在寻求救济时仍然面临着众多的阻碍,有时还出现寻求救济的途径被完全堵死的情况。虽然相关国家在立法、法庭程序、人权保护和法律传统方面存在着差异,但在所有司法制度下都存在着阻碍受害者寻求救助的情况。在一些案例中,这些阻碍被成功地克服,其原因往往是:律师采用了全新的诉讼方案;受害者有足够的耐心;有着敏锐洞察力的法官愿意受理此类维权诉讼。国家必须制定强硬、一致的政策,重申受害者的人权重于企业的经济利益。企业侵权人权行为的受害者,无论侵权行为在何地发生,都有权获得全面、有效的司法救济。为实现上述目标,每一个国家都应该审视司法制度中的存在障碍,并考虑采取行动加以消除,特别是考虑本报告提出的相关建议...

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Report
20 March 2015

New guide for funders: "Advancing human rights accountability for economic actors"

Author: Daria Caliguire, SAGE Fund - Strengthening Accountability in the Global Economy

"Advancing Human Rights Accountability for Economic Actors: An introductory field guide for funders", Jan 2015

Advancing Human Rights Accountability for Economic Actors - credit:  SAGE F und – Strengthening Accountability in the Global Economy

[This guide provides]...an overview of a select set of strategies that seek to hold economic actors (primarily non-state actors) accountable to human rights obligations. We hope that this mapping:

  • Introduces an important body of work, issues and approaches to donors and others with an interest in learning more
  • Highlights some key opportunities for support and impact
  • Begins a conversation in the field among donors and activists, spurring additional strategy development, field building and investment

...This guide is a reference for funders seeking a broad overview of efforts to hold economic actors – corporations, development finance institutions, and others – accountable to human rights obligations within the larger field of human rights and the global economy. It provides an introduction to some of the field’s complex range of institutions, actors, and approaches… [It] examines more traditional human rights strategies that focus on enforcement as a means of advancing accountability, rather than engagement...

Contents [include]...

State of the Field: Focus on Enforcement
   1. Multi-Stakeholder Initiatives: Movement toward Binding Agreements
      Binding Agreements and Worker-Driven Social Responsibility

   2. International Standard-Setting: Renewed Momentum for Binding International Obligations
      United Nations Guiding Principles; International Treaty on Business and Human Rights

   3. Development Finance Safeguards: New Push for Strengthened Standards

   4. Accountability Mechanisms: Need for Compliance and Remedy
      OECD Guidelines for Multinational Enterprises; IFI Complaints Mechanisms; ECA Complaint Mechanisms

   5. Regulatory Regimes: Gaining Traction with Disclosure and Due Diligence...

   6. Legal Strategies: Constructing Accountability and Access to Remedy
      Corporate Liability; Access to Remedy; Extra-Territorial Obligations 

Emerging Issues: Rise of Private Finance; Fiscal Policy and Financial Regulation; Increasing Influence of BRICS; Trade and Investment Agreements; Climate Finance

A Call for Donor Action: Regulation; Legal Strategies; Field Building

[refers to Vale, Coca-Cola, Dinant, Posco, Pacific Rim; lawsuits against Lahmeyer, Nestlé, Argor-Heraeus, Anvil Mining (now part of China Minmetals), HudBay Minerals]

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Article
15 August 2014

Lawsuit against Hudbay in Canada may open new avenue to claims for abuses committed abroad, says commentary

Author: Sebastian Rosemont, Foreign Policy in Focus (USA)

"Seeking Justice in Canada: Hitting Mining Companies Where They Live", 12 Aug 2014

...[T]he harsh reality is that Guatemalans have little to show for their efforts to secure their rights through their country’s court system...Facing dim prospects in Guatemala, these three cases have been brought as a joint suit against Hudbay Minerals [in Canada]...This is the first one to win a judge’s approval to move to the trial stage...There are several legal obstacles for bringing a case to Canada. The company defendants typically argue that Canadian courts lack jurisdiction...Or they might say that the case ought to be heard in the country where the alleged offence took place...Or they might claim that whatever happened was unpredictable...People in countries with weak judicial systems now have at least the possibility to seek justice in...Canada. If the verdict goes in favor of the plaintiffs, a new transnational understanding of rule of law will emerge...[Refers to Anvil Mining, Cambior, Copper Mesa, Compañía Guatemalteca de Níquel, Hudbay Minerals, Tahoe Resources]   

 

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Company response
12 May 2014

Mineral Commodities (MRC) response

Author: Mineral Commodities (MRC)

[Business & Human Rights Resource Centre invited MRC to respond to a reference to an OECD complaint alleging abuses related to indigenous peoples' lands in South Africa.] [A]n OECD complaint was raised against MRC in early 2013...[T]he company engaged co-operatively and fully with the relevant authorities and, after a proper and comprehensive review, the matter was not progressed. While we do not agree entirely with the rationale treasons you have given for this, the point is moot and we shall not offer any further comment on this aspect...Suffice it to say therefore that the company has consistently demonstrated transparent and substantive compliance with local and international laws and norms in furtherance of its proposed mining projects and that the claims lodged against the company lack sufficient foundation for any regulator or court in any jurisdiction in which the company operates to pursue further. In the light of this, a point must be reached when the credibility and / or motive of the complainant and not the complaint should receive greater scrutiny.

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Article
28 April 2014

National Action Plan on Business and Human Rights for Australia – Briefing paper

Author: Human Rights Law Centre

As a non-permanent member of the UN Security Council, a candidate for the UN Human Rights Council and a wealthy, stable middle power, Australia is well-placed to play a lead role in the implementation of the UN Guiding Principles on Business and Human Rights. However, while the Australian Government co-sponsored the UN Human Rights Council resolution endorsing the Guiding Principles, it has not yet formally incorporated them into national law and policy. The primary way in which governments around the world are driving and guiding implementation is through the development of National Action Plans on the implementation of the Guiding Principles (NAPs). This briefing paper provides background on the Guiding Principles and outlines the case for the development of an Australian NAP. It draws on the experience of other states and on the significant work of UN bodies, civil society organisations and National Human Rights Institutions that are working to promote coherent and effective practice in the implementation of the Guiding Principles.

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Article
2 December 2013

II UN Forum on Business and Human Rights

Author: Conectas Human Rights

[Tricia] Feeney, the executive director of the UK-based NGO Rights and Accountability in Development...warns that the second Forum on Business and Human Rights of the UN is under a serious risk of being more of the same, frustrating the expectations of organisations that have not turned away from the mission of building an international forum of dialogue on the subject…To Mrs. Feeney, the creation of accountability and grievance mechanisms should always be present in the debate… Ecuador’s proposal for work to begin on an internationally binding instrument for corporate-related human rights violations…is important in so far as it shows that many governments share NGO concerns about the lack of legal accountability for serious corporate-related human rights violations…

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Article
1 December 2013

[PDF] The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business

Author: Gwynne Skinner, Robert McCorquodale, Olivier De Schutter & Andie Lambe

The Access to Judicial Remedy (A2JR) Project set out to identify and analyze the barriers in the United States, Canada, and Europe…The detailed mapping exercise undertaken in the development of this Report shows that States are generally not fulfilling their obligation to ensure access to effective judicial remedies to victims of human rights violations by businesses operating outside their territory. Victims continue to face barriers that at times can completely block their access to an effective remedy…These barriers have been overcome in only some instances…Victims of human rights violations by business, wherever the violations occur, are entitled to full and effective access to judicial remedies. In order to provide this, each State should examine the barriers in their jurisdiction and consider the range of actions they can take to alleviate them, and in particular, the recommendations contained in this Report…[Refers to Alstom, Amesys (part of Bull), Anvil Mining (part of China Minmetals), Barrick Gold, Bull, Cambior, Cape PLC, Chevron, Chiquita, Daimler, DLH (Dalhoff Larsen & Horneman), Drummond, ExxonMobil, HudBay Minerals, Monterrico Metals (part of Zijin), Shell, Talisman, Texaco (part of Chevron), Thor Chemicals, Unocal (part of Chevron), Veolia Environnement (formerly Vivendi), Veolia Transport (part of Veolia Environnement), Walmart, Zijin]

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Article
28 November 2013

How about a SLAPP for your trouble?

Author: Sudeep Chakravarti, Livemint.com (India)

Strategic lawsuits against public participation, or SLAPP, is one of several retaliatory mechanisms increasingly used against defenders of human rights…The Resource Centre discusses these and other matters and provides a global situation report in its 2013 annual briefing on corporate legal accountability…Its…list of case studies…contains recent and ongoing accusations and legal debates of various kinds of human rights violations…attributed to a total of 52 companies across the world. It is of little surprise that human rights lawyers and activists would get SLAPPed about, as it were, or face the legal weight of businesses that far outweigh their own. The stakes, both in perception and finance, are immense…[T]he briefing adds directional value by flagging issues that it expects will affect this space…This is happening, and will happen, in countries where infractions and crimes are perceived as being committed; and in countries where such businesses are headquartered or invested…[Refers to adidas, Anvil Mining (part of China Minmetals), BASF, China Minmetals, Daimler, Danzer, Dow Chemical, Ford, Lonmin, Shell, Tate & Lyle, Union Carbide (part of Dow), Vedanta Resources, Vinci]

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Article
30 October 2013

TIMELINE: Canada's Mining Controveries

Author: Liam Barrington-Bush & Jen Wilton, TheTyee.ca (Canada)

From Papua New Guinea to Guatemala, mining ventures directly or indirectly financed and owned by companies registered in Canada have been associated with controversy in the communities in which they operate. Business-friendly laws have made Canada the preferred legal residence for three-quarters of the world's mining companies. But many of those companies actually operate in developing countries whose legal systems inspire little confidence, even among their own citizens. Violent attacks ranging from assault to murder have been reported from scores of communities near Canadian-operated mines in Latin America, Africa, Europe and elsewhere. Company spokesmen typically blame such events on murky 'pre-existing' conflicts…Here, a short history of some of the industry's best documented controversies of recent years…[Refers to Anvil Mining (part of China Minmetals), Barrick Gold, Blackfire Exploration, China Minmetals, Excellon Resources, Gran Colombia Gold, Hudbay Minerals, Nevsun Resources, Pacific Rim, Tahoe Resources]

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