Canadian Mining Companies and Domestic Law Reform: A Critical Legal Account

Abstract

This article offers a critical legal account of law reform efforts undertaken by activists in Canada from 2005 to 2012 in relation to the resource extraction activities of Canadian companies operating abroad. The relevant reform proposals are reviewed in terms of three periods. In the first, federal advisors made proposals that attempt to reconcile private and public approaches to regulation. In the second, the federal government responded with a corporate social responsibility policy predicated on volunteerism. This policy is unprecedented in that its central concern is the presumed risk that civil society concerns present to Canadian companies. In the third period, Members of Parliament tabled private members’ bills representing very different private and public approaches to regulation. This article analyzes each of these reform projects in terms of the regulatory vision it presents and the conception of the state, the corporation, and civil society that it advances. This allows for a preliminary step toward considering how the private or public nature of the legal forum might shape activists’ legal strategies and articulations of the problem. In this regard, contractual and investment rationales were ironically dominant in the public regulation proposals advanced by Canadian activists, creating a certain disjunction between their broadly stated human rights objectives and the market-based sanction or method chosen as a means for achieving these objectives.

Keywords: Canadian mining abroad, critical legal studies, law reform, human rights activism, private law regulation, public law regulation, corporate social responsibility