Canada and the geopolitics of mining interests: a case study of the Democratic Republic of Congo

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The very process of global governance widely escapes the reach of nation-states and national communities. Its binding influence is even more obvious on the African continent, where many states are commonly described as weak, failed or collapsed. Boaventura Santos De Sousa defines ‘globalisation’ as the process by which a particularistic entity manages to expand its influence and power beyond its frontiers, and consequently manages to acquire the capacity to designate as ‘local’ a condition which it captures. According to this perspective, ‘localised globalism’ is characterised by transnational practices that have a binding impact on the local context, which is therefore restructured in order to meet the outsiders' strategic imperatives. Another form of globalisation, designated as ‘cosmopolitanism’, occurs when transnationally organised allies use the existing norms of the global governance system to serve their shared interests (De Sousa Santos 2008).

The liberalisation of the natural resources sector in Democratic Republic of Congo (DRC) is at the very heart of the globalisation process which is transforming the political economy of the Great Lakes region, thus mediated by the international financial institutions (IFIs) and their conditionalities. Concomitantly, as Béatrice Hibou argues, the DRC state, just like many other countries on the continent, is characterised by a criminalisation of the state largely maintained by cronyism, clientelism and criminality. This process has been deepened by structural adjustment and its correlated economic liberalisation and privatisations of public offices associated with IFI loans (Bayart et al. 1997).

Today, 75% of the extractive industry multinationals – mainly juniors of exploration – are hosted in Canada or registered on the Toronto Stock Exchange (TSX). According to the Ontario Ministry of Northern Development and Mines, in 2006 more than 50% of the world's mining companies were listed on the TSX and more than 80% of the global mining industry's investment financing was raised there. The market value of those companies is about Can$380 billion. This concentration of mining companies in this one jurisdiction is not fortuitous: during the last two decades Canada has constituted itself as a legal haven for the extractive industry (Deneault and Sacher 2011).

In the context of a multipolar world, this article will analyse how Canada is positioning itself as an ‘extractive industry power’ by focusing on a Congolese case study, with the aim of reinforcing our understanding of the industrial and financial mechanisms of unequal globalisation.

Canadian mining interests and Congolese geopolitics

Notwithstanding the heavy drain on funds by Mobutu's oligarchic regime, public mining offices were, until the 1990s, among the rare means of development for the export-oriented Congolese economy. Both the Société Générale des Carrières et des Mines (Gécamines) and the Société minière du Bakwanga (MIBA) were in this regard very lucrative for the state budget. At the end of Mobutu's regime, the IFIs pressed the kleptocrat to accelerate the political and economic liberalisation of Zaire. His ‘control never ceased to irritate the great transnational mining corporations’ (Baracyetse 1999, p. 10).¹ Responding to the pressure of the IFIs, Mobutu finally agreed to privatise these public bodies. Among the dozens of foreign corporations that started negotiating with the regime, some were Canadian²: Lundin Group, Banro, Mindev, Barrick Gold, South Atlantic Resources and Anvil Mining.

Meanwhile, the Western bloc's traditional allies were surprisingly and progressively defecting from Mobutu, either strategically, or as a result of the influential factors reconfiguring a multipolar world. Between 1989 and 1994, the Canadian foreign aid budget devoted to Congo reduced to one-thirtieth of its former size, thereby paving the way for a growing subjection of the country to multilateral donors and direct political or economic intervention (Audet et al. 2008). During the preceding decade, over Can$140 million have been channelled to Mobutu's regime – an amount from which at least Can$16 million would have directly contributed to support this internationally renowned corrupt government (Engler 2009).

Parallel to the trend of substantive claims for democracy, the Alliance des Forces Démocratiques pour la Libération du Congo (AFDL) led by Laurent-Désiré Kabila organised a rebellion in the bush, supported by Rwanda, Uganda and backed by the United States.

At the end of 1996, breaking with its diplomatic habit of discretion, the Canadian UN Ambassador Robert Fowler pressed the international community to give Canada the leadership of a multilateral humanitarian intervention force in the eastern part of the DRC (Hay 1999). The resolution setting up the United Nations Mission in DRC (MONUC) was only adopted in 1999; before this point, the United States objected to any multilateral intervention. The instability actually seemed better to serve the strategic and economic interests of the two Anglo-Saxon allies: ‘in reality, all diplomatic agencies are waiting for the end of Mobutu's regime, while counting on the damages being limited’ (Willame 2010, p. 83).³

Illegal exploitation by foreigners started with this first war of liberation in 1996. The collapse of Congolese political authority and its administrative system was inviting for neighbouring country elites, as well as for a wave of ‘new businessmen’ speaking English, both of which commenced their operations in the war economy of the eastern DRC. Rwandans and Ugandans developed a strong sense of the accessibility of natural resources. Meanwhile, some embassies and cooperation agencies of developed countries facilitated the purchase of those illegal minerals (United Nations Security Council 2001, 2002).

The coincidence between the AFDL's long march on Kinshasa, the mapping of rich concessions, contracts signed with foreign mining companies and the illegal mineral trade flows (Figure 1) is troubling. As the AFDL conquered the capital, Western companies had financed and furnished logistical help to the new facilitator of their interests and his regional allies. As is common knowledge since the publication of the 2001 Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth in the Democratic Republic of the Congo:

the role of the private sector in the exploitation of natural resources and the continuation of the war has been vital. A number of companies have been involved and have fuelled the war directly, trading arms for natural resources. Others have facilitated access to financial resources, which are used to purchase weapons. Companies trading minerals, which the Panel considered to be ‘the engine of the conflict in the Democratic Republic of the Congo’ have prepared the field for illegal mining activities in the country.

(United Nations Security Council 2001, section 215)

Figure 1.

Conquest of Kinshasa. (a) Route taken by the AFDL. Source: Cros and Misser (2006); and (b) Flows of regular trade and looting in Central Africa. Source: Braeckman (2009).

Even before he had official access to power, Kabila had concluded one-sided contracts (contrats léonins) (Lutundula 2006) with numerous foreign societies. Chasing away Europeans' interests, the companies that entered the country during this turning point were mainly Canadian and American:

Often these leaders are paid by businessmen, political dignitaries, local and foreign, to ensure the security of the mines, the concessions, and the industrial perimeters of agro-commercial plantations. Their desire for peace is conversely proportional to their will for personal enrichment and their money-mindedness.

(Blanc 2001, p. 36)⁴

The United Nations pleaded for a ceasefire and the withdrawal of all foreign forces without it being accompanied by strong measures from its members.

In this regard, numerous public or parliamentary inquiries,⁵ official reports and public documents⁶ pinpointed the highly problematic presence of Canadian companies at that time of the conflict. Eight Canadian companies have been cited by the United Nations Panel of Experts as having participated in one way or another in the looting of Congolese resources during the war.

The following are examples as set out in Alain Deneault et al.'s Noir Canada: pillage, corruption et criminalité en Afrique (2008). One month before they arrived in Kinshasa, the Kabila clan signed three contracts with First Quantum Minerals (FQM) for the Kansanshi and Lonshi mines in Katanga, worth Can$1 billion. According to the Lutundula Commission (2006), the Lonshi concession was given to the Canadian company without any counterpart. FQM is alleged to have proposed a thin US$100 million to the Congolese state, and in particular, cash payments and shares for some public officers. Between 1997 and 2001, the value of its stocks on the Vancouver Stock Exchange (VSE) grew from zero to close to US$140 million. Since the mid 1990s, when the Foreign Affairs Minister and former conservative Prime Minister Joe Clark became the company's special advisor on Africa, FQM has become more active in many parts of Africa.

The Tenke-Fungurume mine concession was awarded by Mobutu in 1996 to the Vancouver-based Lundin. But after the AFDL victory in Lumumbashi, the Canadian company, via its Eurocan subsidiary, guaranteed its investment with Kabila by signing a new agreement on the exploitation of this very promising concession of cobalt and copper. Meanwhile, the Consolidated Eurocan Ventures stock rose from Can$0.20 to Can$3.50. The former Canadian Prime Minister Jean Chrétien was at that time representing Tenke-Fungurume Mining, a joint venture with the Congolese state.

In exchange for logistics and armaments to Kabila, Dan Gertler's International Diamond Industries received the monopoly on the marketing of diamonds for an eight-month period, before the World Bank and the International Monetary Fund (IMF) demanded the suspension of the agreement. In 2003, its Montreal-based subsidiary Emaxon signed a new contract with the MIBA, at 50% of its real value, authorising the Canadian company to market 88% of the diamonds.

The Toronto-based Kinross was less fortunate in its attempts to negotiate with Kabila. It had to conclude a partnership in the tax haven of the British Virgin Islands with the Belgian Georges Forrest who ‘used his position in the elite network in an attempt to control the mining sector in the Democratic Republic of the Congo’ (United Nations Security Council 2002, section 45).

When Kabila tried to renegotiate these excessively unfavourable contracts, his authority was threatened in some parts of the Congolese territory. Headed by AMFI, some of these companies had changed sides and renegotiated with whoever was on the ground, their only criteria being their ability to secure their property: ‘several mining companies had been cited for having financed military operations in exchange for advantageous contracts in the east of the DRC: [the Canadian] Barrick Gold …, the Australian Russel Ressources [sic] …, the Austrian Krall, the Canadian Banro American Ressources’. (Braeckman 1999).⁷ Deneault et al. (2008) add that ‘AMFI, Banro, Barrick, Mindev and, in the petroleum sector, Heritage Oil by their presence rekindle conflicts, when they are not fueling them’ (Deneault et al., p. 108).⁸

Anvil is an Australian company incorporated in Vancouver, registered on the TSX and managed from Montreal. First Quantum was its majority shareholder when, in October 2004, the Mouvement révolutionnaire pour la libération du Katanga (MRLK) forcibly occupied the Kilwa concession that was operated by the firm. At that time, Anvil provided trucks, drivers and other logistical support to soldiers of the Congolese Army sent at Kilwa to subdue the MRLK. The company would be thus complicit with the national army, itself allegedly responsible for the murder of 73 persons including 28 summary executions.

Among the last contracts examined in the 2009 report of the Committee for the Review of Mining Contracts in DRC (2009) was the Kingamyambo Musonoi Tailings (KMT) project. The Congolese government was pressured by the Canadian Ambassador in the DRC, Sigrid Anna Johnson, backed up by Hillary Clinton, to review its decision to cancel the contract involving Vancouver's FQM (Vivien et al. 2009). The sovereign conclusion of the Review Committee was decisive on the outcome of this contract: cancellation. This mining project is potentially one of the most lucrative in the world.

During the same period, international creditors of the Paris Club were meeting in order to evaluate the terms of a new agreement with the IMF. Canada was the only one of the 19 countries present to exercise its veto against the conclusion of an agreement. It required the government to improve its business climate and to reconsider the decision of revising the KMT and the Banro contracts (Le Potentiel 2009a). The KMT case was a major Canadian issue during the G20 summit held in Toronto in June 2010 (Le Potentiel 2010).

Since autumn 2009, World Bank President Robert Zoellick has been exerting his influence on DRC authorities to uphold the Kingamyambo Musonoi Tailings contract between the Congolese state, FQM and the International Finance Corporation (IFC), the World Bank agency working with the private sector. Since 2005, the World Bank has been a 7.5% stakeholder of the project, as it has invested US$5.9 million (Le Potentiel 2009c). Currently, as the DRC government has stripped FQM of its mining permit, it is unclear whether the Canadian corporation will suspend its lawsuit against the state for US$4 billion, almost half the level of the DRC's public debt (Le Palmarès 2009).

In October 2009, the IMF was winning its long struggle against the famous ‘Chinese contract’ signed in 2007. This unequal agreement provided for a US$9 billion investment in the mining sector (Le Potentiel 2011). Since the Congolese state had to give a guarantee on the investment, the IMF considered the Chinese contract too risky for the debt burden. The IMF warned the DRC that it might have to renounce its new loan agreement as well as the external debt relief that the country had been awaiting since 2003 (Vivien and Millet 2009).

If the Chinese investment was far from ideal, above all it bypassed the Bretton Woods institutions and their conditionalities, which are strong components of unequal globalisation mechanisms. Canada has played a major role in developing the model regulations implemented in the new generation of the IFIs' mining codes. The advantages of these mining codes are almost exclusively conferred on the industry at the expense of state budgets, economic sovereignty, populations and the environment.

Framing a global climate for mining investment

During the 1990s, as a fundamental conditionality of structural adjustment, the indebted countries rich in mining resources were asked by the IFIs to adopt new mining laws and regulations. These programmes are designed in order to implement macroeconomic structural reforms that are supposed to favour the entry of foreign capital and investments and consequently, economic growth. The participation of the state in the mining sector is discouraged. Withstanding this pressure for privatisation of the mining sector in order to reduce the budgetary deficit was one of Mobutu's greatest acts of resistance in the economic field.

After Laurent-Désiré Kabila's death in January 2001 and the renewal of the peace process, his son, Joseph, was designated his successor. In his first public declaration, Joseph Kabila announced his wish to break radically with his father's politics by announcing his intention to reform the monetary system and liberalise markets in the near future. He promised to adopt new regulations regarding natural resources (Braeckman 2001). After an absence of 10 years in the DRC, the IFIs were returning in 2001 (Mazalto 2004).

As one of the Multilateral Investment Guarantee Agency (MIGA) administrators, Canada participates in decisions over whether project should be approved. In 2005, MIGA awarded US$13.6 million to a project in the DRC. Anvil was amongst the principal operators of this project. At the time it received these funds, serious allegations of war crimes circulated regarding the corporation's involvement in the massacre of Kilwa (Canadian Network on Corporate Accountability 2007). The Association of Congolese Jurists and Law Students of Canada has for years been trying to instigate criminal procedures against the Montreal firm regarding this alleged complicity. In response to such allegations, ‘Anvil confirmed that it provided “logistical assistance” to the Congolese armed forces, but claimed that its vehicles were “requisitioned” and that it effectively had no choice but to comply. In June 2005, Anvil issued a press release denying the accusations in the complaint’ (OECD Watch 2005).

Following this return of the IFIs, three new codes – a mining code, a forestry code and an investment code – were drawn up under the auspices of the World Bank and the IMF within the scope of the Emergency Multi-sector Rehabilitation and Reconstruction Project. According to Marie Mazalto (2004) from the Research Group on Mining Activities in Africa (GRAMA), the plethora of stabilisation and reflationary policies introduced by the World Bank Project particularly transformed the Congolese economic framework. It was marked by extremely rapid implementation, deep involvement by the IFIs, and the lack of contribution from national agencies in policy formulation, even if the proper application of the reforms remains the responsibility of the DRC.

The Pretoria negotiations of 2002 resulted in the signature of the Global and Inclusive Agreement, which marked the first step towards international recognition of the end of the war and the advent of relative peace in the Great Lakes region. This agreement provided for the establishment of a Constitution of Transition and a government formed with a broad coalition of representatives from different factions, who were former enemies. The responsibility to adopt and implement the World Bank's mining code fell to this unelected transitional government of the National Assembly (Mbelu 2007).

The new Congolese mining code is presented as the third best in Africa, as regards advantages conceded to investors. Its tax regime is comparable with other mining states such as Ghana, Mali or Tanzania. Within its provisions, the role of the private investor is as shareholder, operator and taxpayer. The role of the state is restricted to the promotion and regulation of the mining sector. The former code of 1981 required mining operators to serve the general interest of the Congolese people: consequently, the state had the power to impose on the foreign companies some national development obligations (infrastructure, services to communities, etc.). The new code transfers to the company the responsibility to design and implement those types of initiative according to their own standards (Mazalto 2004). It will be seen that this voluntary social responsibility is exactly what Canada promotes for its industry.

Tax rates are set at around 4%, customs fees on imports are reduced and none is required on exports. These rates are largely insufficient to break with the structural outward orientation of the Congolese economy and reinvigorate an articulated and sustained path of self-development. Furthermore, a major proportion of those revenues escapes the public treasury – US$1.5 billion over 18 months, according to the Congolese Interministerial Commission of Audit and Good Governance (Le Potentiel 2008). The administration's failure to fulfil its mandate is attributable not only to prevarication; but also to the structural inability of the state to fulfil its administrative duties as a result of the profound institutional changes required by the IFI.

Moreover, mining operators – and Canadian projects in Congo in particular – are often managed from tax havens and other offshore jurisdictions. This means that their activities are not contributing substantially to the budget of any state. According to the Lutundula Commission, this would have been the case for most of the Canadian corporations active in the Congo: Kinross-Forrest Ltd was registered in the British Virgin Islands; the Montreal-based Emaxon was managed from Panama; Lundin Group's subsidiaries are located in the Cayman Islands, and so on (Deneault et al. 2008).

Canada has historically been one of the main contributors to the Bretton Woods organisations and was one of the first Western countries to have promoted and financed the IFI structural adjustment programmes. It shares its office in the IFIs with Ireland and a collection of British dependencies and notorious Caribbean tax havens: Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St Kitts and Nevis, and St Lucia, as well as St Vincent and the Grenadines (Department of Finance Canada 2008). Within the process of framing the new generation of mining reforms that are implemented worldwide, the extractive industry, three-quarters of which is located in Canada (Department of Foreign Affairs and International Trade Canada (DFAIT) 2009), joined the World Bank as the institution consulted 80 companies (Campbell 2004). Regarding the new investment climate in Africa, Denis Lagacé claimed, at the Mining Procurement Seminar held in Montreal in 2007, that Natural Resources Canada was the only non-African actor participating in this work (Lagacé 2007).

Under the provisions of the new Congolese code, the Gécamines saw close to 2800 km² of its concessions as well as 37,000 km² of its exploration zones privatised. Only 1500 km² are left in the public sector (Congo Indépendant 2009), from what was some years earlier one of the largest companies of its kind in the world. In a recent study, the Belgian researcher Yan Gorus estimated that 85% of Katanga's territory had been ceded to private mining interests (Le Potentiel 2009b). The land registry office is less generous: it estimates the proportion at approximately 53% (ibid.). From 2005 until recently, Canadian attorney Paul Fortin held the position of Gécamines General Manager (La Prospérité 2009).

The Canadian International Development Agency (CIDA) (2005) contributed approximately Can$10 million to the 2006 electoral process support programme. Most observers pointed out major irregularities, but Canada preferred to present these elections as a complete success. In general terms, some experts critical of Canadian aid express their disapproval of this kind of cronyism:

the Canadian International Development Agency (CIDA)'s support for the development of Canadian private investments in the African mining sector […] can be summarized as follows: it prepares the ground. [… The companies] thus have easy access to the country's geological data, saving time and money, and within governments find individuals trained in Canada, or by Canadians, who favour Canadian companies and Canadian know-how.

(Kazi Aoul 2000, p. 9)⁹

Natural Resources Canada and Industry Canada congratulate CIDA for the ‘effectiveness of its services and programs regarding its facilitating role in opening business opportunities in the mining industry’ (Natural Resources and Industry Canada 1999, p. 7, cited in Keita 2007).¹⁰ The conditionalities associated with the injection of new money in the form of multilateral or bilateral aid within the indebted mining countries such as the DRC are thus helping large-scale industrial capital to open markets, while serving their own needs. Therefore, it contributes to the nexus of profoundly unfair conditions of ‘free’ economic competition. On the global financial spectrum, Canada is promoting its ‘comparative advantage’ as a legal haven for the extractive industry. Canadian administrative and diplomatic delegations have shown in the past that they have no intention of approaching the companies for explanations of the serious allegations in circulation.

Canada as a legal haven for the extractive industry

As rightly noted by Jean-Claude Willame, in the DRC,

the big transnational corporations were eclipsed, giving way to second rank ‘investors’ sometimes more motivated by speculation than production, or even to more or less mafia groups carrying out ‘coups’ and short-term benefits in the context of an increasingly delinquent state.

(Willame 2010, p. 136)¹¹

Canada's stocks encourage speculation, and junior exploration companies are calling out for them. Internal Canadian jurisdiction is designed to serve as a legal haven for global mining industries, and this is why we find more than 70% of the world's exploration and exploitation-mining corporations registered on the TSX, even if their capital is from abroad.

Canada's permissiveness in the extractive field has its origins in the colonial history of the country. Its connivance with tax havens has also historical reasons. Canadian banks have predominated in the Caribbean since the early twentieth century, and in 1970, the Canadian presence in the Caribbean was estimated at 60 to 90% of bank ownership. Profits are kept in those offshore jurisdictions, and Barbados is now the preferred tax haven of prosperous Canadians. Canada itself, like other former colonies whose economic growth was made possible through the exploitation of a dominant primary industry, has developed a certain savoir-faire around its mining sector since the nineteenth century. The mining legislation in Quebec and Ontario is the result of an historical power struggle between settlers and First Nations peoples, resulting in today's highly sophisticated and institutionalised system of rights to access mineral resources, which mean that companies can acquire mining rights that take precedence over nearly all other land uses. Environmental neglect, disregard for indigenous rights, and a meagre contribution from this sector to national treasuries are examples of bad habits acquired by the mining industry over time (Deneault and Sacher 2011).

In many circumstances Canadian diplomacy has shown that it intends at all costs to protect its industry, while arguing that it is the Canadian middle-class assets it is defending. The Canadian government has clearly sent the message that it does not intend to trouble the companies operating abroad regarding political or legal matters. One example of this attitude was in an interview with the First Secretary of the Canadian Embassy in Guatemala, broadcast by Radio Canada on 13 February 2005, regarding the actions of the company Glamis Gold over its lack of consultation with indigenous communities affected by the gold mine and the role of the Embassy. The First Secretary stated:

It's not just the company that we are trying to defend … It's not just a Canadian company. We are talking about thousands of Canadians who have invested on the Toronto Stock Exchange, [which] has provided the funding, the capital, enabling … Glamis Gold to carry out operations here in Guatemala. … We also have a duty to see [that] they do not lose their investments.¹²

This statement is symbolic of Canada's general diplomatic position. Indeed, Canada does not investigate companies as long as the allegations have not been substantiated (Drohan 2003), but as the responsibility to substantiate them should fall to the country that hosts the headquarters of the multinational – i.e. Canada – they never are substantiated.

Canada offers the industry a series of distinct advantages, and its TSX strongly favours speculation, and significant tax advantages – up to 150% tax relief for shareholders, in some cases in the province of Quebec – are granted to financial investments in the field of mining. According to the Canadian Ministry of Northern Development, Mines and Forests, 80% of the planet's financial investments in mining originated in Toronto, with annual trade worth Can$380 billion. Toronto is the world financial centre of risk capital, which characterises the mining industry. A huge amount of Canadians' assets (retirement funds, insurance and public funds) are invested specifically in mining company shares because the government uses fiscal instruments to promote investment in this particular industry (Deneault and Sacher 2011).

The very serious allegations concerning the role of Canadian mining companies in the Great Lakes region are reported in numerous credible and public documents published around the world. This information has been collected and analysed in Noir Canada (Deneault et al. 2008). The only positive recommendation the authors make in relation to these allegations is that Canada should set up a public inquiry on the presence of its companies in the DRC:

We do not claim to base these allegations which we summarise on anything other than the works that made them in the first place. … It would be inappropriate to require a group of authors without funds to go beyond what has already been set out on all these issues by those who took the time and trouble to [highlight these allegations] in their respective efforts. It is in this sense that we make our only request to the public authorities: … that is, to establish a commission, the independence of whose members would be entirely above suspicion, to undertake an assessment of the effects of political, industrial and financial investment in Africa …¹³ (Deneault et al. 2008, p. 14).

Instead, the three authors of Noir Canada – Alain Deneault, William Sacher and the author of this article – and their publisher, Écosociété, are facing two lawsuits on charges of defamation, filed by Barrick Gold and Banro Corporation for a total amount of Can$11 million.¹⁴

When the United Nations pressed the Canadian Ambassador to take action against the companies involved in the Great Lakes conflict, Canada answered that the Organisation for Economic Co-operation and Development (OECD) guidelines were only voluntary, not compulsory (Engler 2009). To the recommendations proposed by the Roundtable process set up in 2008 on the stake of the mining enterprises' social responsibility, Canada answered in its Corporate Social Responsibility Strategy for the Canadian International Extractive Sector (DFAIT 2009) that it intends actively to promote this soft-law principle of voluntary responsibility in regional development banks. Moreover, it intends to integrate it in its free-trade agreements, such as those signed with Peru or Columbia, two mining states within which Canadian mining activities are far from reaching widespread approval by the population.

In its interim report of 2006, the United Nations Secretary-General's Special Representative on Business & Human Rights, John Ruggie, states that

the extractive sector – oil, gas and mining – utterly dominates this sample of reported abuses with two thirds of the total. … The extractive industries also account for most allegations of the worst abuses, up to and including complicity in crimes against humanity. These are typically acts committed by public and private security forces protecting company assets and property; large-scale corruption; violations of labour rights; and a broad array of abuses in relation to local communities, especially indigenous people.

(Economic and Social Council, Commission on Human Rights 2006, section 25)

If we exclude the relative gains permitted under the Alien Tort Claims Act, a 1789 American law which extends the universal competence to civil libel, the actual state of international law – still less Canadian law – does not offer satisfactory responses to the gravity of those cases involving mining companies.

Notes on contributor

Delphine Abadie holds an MA in International Studies on the impact of structural adjustment on the increasing economic inequality in Senegal. She is currently completing a doctorate in political philosophy in which she makes a critical diagnosis of the role attributed to the transnational corporations in the prevailing theoretical models of cosmopolitanism and global governance.

Acknowledgements

I would like to thank my former colleagues of Ressources d'Afrique, William Sacher and Alain Deneault, for the close intellectual working relationship we enjoyed. I am grateful to Colette Braeckman, Bruno Teissier and Aden (Brussels) for their permission to reproduce the maps figuring in this article. Special thanks go to all the Congolese people who have shown us their support since the legal charges were made against us. Their support has made the struggle worth the price.

Notes

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Footnotes

Son ‘contrôle n'a jamais cessé d'irriter les grandes transnationales minières’.

We understand to be Canadian three kinds of interests: (1) the companies that have their head office in Canada, hence responding to Canadian law; (2) the corporations registered at the TSX or in another Canadian city; and (3) the Canadian investors active in structures registered elsewhere in the world, particularly in a tax haven.

‘en réalité, toutes les diplomaties attendent la fin du régime de Mobutu en escomptant que les dégâts seront limités’.

‘dans bien des cas, ces dirigeants se font également rétribuer par des hommes d'affaires, des notables politiques, locaux ou étrangers, afin d'assurer la protection de mines, de concession, de périmètres industriels de plantations agro-commerciales. Leur désir de paix est donc en relation inversement proportionnelle à leur volonté d'enrichissement personnel et leur esprit de lucre’.

United Nations Panel of Experts on Illegal Exploitation of Natural Resources and Other Forms of Wealth in Democratic Republic of Congo; Congolese Lutundula Commission; All Party Parlamentary Group on the Great Lakes Region (UK); Spanish Trial against APR/FPR; United States House Representative's Cynthia McKinney's Hearings on DRC before the Subcommittee on International Operations and Human Rights of the Committee on International Relations House of Representatives, etc.

Among others, articles by known and respected journalists such as Colette Braeckman, Dominic Johnson and Wayne Madsen; documents by international NGOs such as Human Rights Watch, Amnesty International and Global Witness. Among Congolese representatives, the United Nations Development Programme worker Mbaya J. Kankwenda, as well as the former Zaire ambassador to Israel, Honoré Ngbanda Nzambo, link the Canadian corporations to the economic predation occurring in the war era.

‘plusieurs sociétés minières ont été citées, pour avoir financé des opérations militaires en échange de contrats avantageux dans l'est de la RDC: [la canadienne] Barrick Gold […], I'australienne Russel Ressources […], l'autrichienne Krall, la canadienne Banro American Ressources’.

‘L’AMFI, Banro, Barrick, Mindev et, dans le domaine pétrolier, Heritage Oil ravivent par leur présence les conflits quand elles ne les alimentent pas.’

‘l'appui de l’Agence canadienne de développement international (ACDI) au développement des investissements privés canadiens dans le secteur minier en Afrique […] peut se résumer comme suit: elle prépare le terrain. [… Les entreprises] ont ainsi un accès facile à l'information géologique du pays, économisant temps et argent et trouvent, au sein des gouvernements, des individus formés au Canada ou par des Canadiens ayant un a priori favorable aux entreprises et au savoir-faire canadiens'.

‘l'efficacité des services et des programmes [de l'agence] pour ce qui est d'ouvrir des possibilités de faire affaire à l’étranger dans le domaine minier'.

‘Les grandes multinationales se sont éclipsées pour faire place à des “investisseurs” de second rang, parfois plus motivés par la spéculation que la production, voire à des groupes mafieux réalisant des “coups” et des bénéfices de très court terme dans le contexte d'un État de plus en plus déliquescent’.

‘Ce n'est pas seulement l'entreprise qu'on est en train de défendre, […] on ne parle pas seulement d'une compagnie canadienne, on parle de milliers de Canadiens qui ont investi à la bourse de Toronto [ce] qui a donné finalement le financement, le capital, avec lequel peut opérer […] Glamis Gold ici au Guatemala. […] On a un devoir aussi de voir [à ce] qu'ils ne perdent pas leurs investissements’.

‘Ces allégations dont nous faisons la synthèse, nous ne prétendons pas les fonder au-delà des travaux qui les ont avancées. […] Il ne serait pas convenable d'exiger d'un collectif d'auteurs sans financement d'aller sur tous ces sujets au-delà de ceux qui les ont déjà péniblement mis au jour dans leurs efforts respectifs. C'est d'ailleurs en ce sens que se formule notre seule requête auprès des autorités publiques, […] soit d'instaurer une commission dont l'indépendance des membres serait au-dessus de tout soupçon pour faire le point sur les effets des investissements politiques, industriels et financiers en Afrique […]’.

These lawsuits are a serious threat to the freedom of expression necessary to public debate. The threat of another legal action from Barrick Gold has forced Vancouver-based Talonbooks to postpone publication of Deneault and Sacher's Imperial Canada Inc. (2011) about the Canadian mining industry. We consider these methods to be Strategic Lawsuits Against Public Participation (SLAPP). They take the form of a civil libel suit, launched against an individual or organisation taking a stand in the context of a public issue: the eventual success of such a suit is derived not so much from winning a case in court, but from the process itself, which aims to intimidate the defendants and place such a heavy financial burden on them that they are forced into silence. Resorting to SLAPPs is anything but rare in Canada, since reputation clearly prevails over freedom of speech according to many jurists. For example, in 2009 some academics from the United States objected to holding a Scientific Conference in Canada, fearing they could be sued by lobbies and even by the government if they expressed a point of view contrary to theirs (Ballivy 2008; http://slapp.ecosociete.org).