Building the Case for a Home-State Grievance Mechanism: Law Reform Strategies in the Canadian Resource Justice Movement

  • Charis KamphuisEmail author
Part of the Interdisciplinary Studies in Human Rights book series (CHREN, volume 3)


The vast majority of mining companies operating globally are Canadian. For nearly two decades, social justice advocates systematically documented the concerns of mine-affected communities in relation to Canadian operations in developing countries, producing a significant body of empirical work that described not only the nature of the social conflicts associated with Canadian companies but also the mechanisms whereby the Canadian government provides companies with political, economic and legal support. Beginning in 2005, activists, policy makers, industry leaders and international human rights bodies participated in a sustained debate over the appropriate Canadian regulatory responses to these issues. This chapter analyses the strategies of law reform advocates between 2000 and 2017 to critique Canadian policy and the overseas conduct of Canadian extractive companies. It gives special attention to the 2016 law reform proposal from Canadian civil society, the draft Business & Human Rights Act. The strategies profiled here are of special interest because they resulted in a significant, if not unexpected, breakthrough in early 2018 when the Canadian government announced a globally unprecedented new grievance mechanism: the Canadian Ombudsperson for Responsible Enterprise. The discussion is of interest to those concerned with law’s potential (and limitations) as an instrument of social justice in the global economy, and particularly for communities affected by foreign resource extraction.



This chapter was supported in part by the work of the Justice & Corporate Accountability Project (JCAP). Thank you to Lavinia Floarea and Heather Hall for research assistance and to the organizers of the 2017 Thompson Rivers University (TRU) Arts Colloquium (Canada) and the 2016 Human Rights in the Extractive Industries conference at Goethe-University (Germany) for the opportunity to discuss some of the materials presented here. This paper also benefited from conversations with Shin Imai, Ruth Buchanan and Robert Wai. Any errors are my own.


  1. Augenstein D, Kinley D (2015) Beyond the 100 acre wood: in which international human rights law finds new ways to tame global corporate power. Int J Hum Rights 19(6):828–848CrossRefGoogle Scholar
  2. Barton BJ (1993) Canadian law of mining. Canadian Institute of Resource Law, CalgaryGoogle Scholar
  3. Brown S (ed) (2012) Struggling for effectiveness: CIDA and Canadian foreign aid. McGill-Queen’s University Press, MontrealGoogle Scholar
  4. Coumans C (2012) Mining and access to justice: from sanction and remedy to weak non-judicial grievance mechanisms. UBC Law Rev 45(3):651–690Google Scholar
  5. Daniel C, Wilde-Ramsing J, Genovese K, Sandjojo V (2015) Remedy remains rare. An analysis of 15 years of NCP cases and their contribution to improve access to remedy for victims of corporate misconduct. OECD Watch, AmsterdamGoogle Scholar
  6. Deneault A (2015) Canada: a new tax haven (trans: Browne C). TalonBooks, VancouverGoogle Scholar
  7. Drache D (ed) (2001) The market or the public domain: global governance & the asymmetry of power. Routledge, LondonGoogle Scholar
  8. Global Witness (2016) On dangerous ground: the killing and criminalization of land and environmental defenders worldwide. Global Witness, LondonGoogle Scholar
  9. Gordon T, Webber JR (2016) Blood of extraction: Canadian imperialism in Latin America. Fernwood Publishing, Nova ScotiaGoogle Scholar
  10. Hughes EL, Kwasniak AJ, Lucas AR (2016) Public lands and resources law in Canada. Irwin Law, TorontoGoogle Scholar
  11. Imai S, Mehranvar L, Sander J (2007) Breaching indigenous law: Canadian mining in Guatemala. Indigenous Law J 6(1):101–139Google Scholar
  12. Inter-American Commission on Human Rights (2015) Indigenous peoples. Afro-descendent communities, and natural resources: human rights protection in the context of extraction, exploitation, and development activities. OAS, Washington, D.C.Google Scholar
  13. Kamphuis C (2012) Canadian mining companies & domestic law reform: a critical legal account. German Law J 13(9):1456–1486Google Scholar
  14. Kamphuis C, Gardner L (2019) Effectiveness framework for home-state non-judicial grievance mechanisms. In: Manirabona A, Vega Cardenas Y (eds) Extractive industries and human rights in an era of global justice. Lexis Nexis, Toronto, pp 75–100Google Scholar
  15. McGee B (2009) The community referendum: participatory democracy and the right to free, prior and informed consent to development. Berkeley J Int Law 27(2):570–635Google Scholar
  16. Organisation for Economic Co-operation and Development (2011) OECD guiding principles for multinational enterprises 2011 edition. OECD Publishing, ParisGoogle Scholar
  17. Seck SL (2011) Canadian mining internationally and the UN guiding principles on business and human rights. Can Yearb Int Law 49:51–116CrossRefGoogle Scholar
  18. Seck SL (2012) Home state regulation of environmental human rights harms as transnational private regulatory governance. German Law J 13(12):1363–1385CrossRefGoogle Scholar
  19. Simons P (2015) Canada’s enhanced CSR strategy: human rights due diligence and access to justice for victims of extraterritorial corporate human rights abuses. Can Bus Law J 56(2):167–207Google Scholar
  20. Simons P, Macklin A (2014) The governance gap: extractive industries, human rights, and the home state advantage. Routledge, New YorkCrossRefGoogle Scholar
  21. Spiro PJ (2013) Constraining global corporate power: a short introduction. Vanderbilt J Transnatl Law 46(4):1101–1118Google Scholar
  22. Walter M, Martinez-Alier J (2010) How to be heard when nobody wants to listen: community action against mining in Argentina. Can J Dev Stud 30(1):281–301CrossRefGoogle Scholar

Copyright information

© Springer Nature Switzerland AG 2019

Authors and Affiliations

  1. 1.Thompson Rivers UniversityKamloopsCanada

Personalised recommendations