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The exploitation of natural resources profoundly reconfigures social relations wherever it occurs. While intrinsically linked to development models specific to colonial and neo-colonial dynamics of appropriation and plunder, the term “extractivism” refers to “those activities which remove large quantities of natural resources that are processed (or processed only to a limited degree), especially for export.”[1] Large-scale extractive projects, in particular, deeply impact the myriad of relationships that exist between humans and nature, from local environments to global climate.[2] In fact, the scale of negative impacts associated with extractivism around the world is such that it is considered one of the main contributors to human rights violations associated with the private sector.[3] In Canada, academic research and public policy approaches concerning extractivism and human rights have largely been structured around the concept of “Corporate Social Responsibility” (CSR).[4] On a more global scale, they have been structured around the field of “Business and Human Rights” (BHR).[5] Broadly speaking, policy prescriptions emanating from both arenas tend to focus on the tension between the teleological imperative of human rights and a sense that globalization undermines States’ authority. While some advocate for stronger extraterritorial jurisdiction, others promote CSR as a palliative for what they perceive as the inherent limitations of law.[6] Indeed, the argument suggesting that the voluntary nature of CSR is incompatible with the imperative nature of human rights[7] is increasingly challenged by a common assumption that both can converge.[8] This more pragmatic and optimistic approach argues that CSR regimes establish synergistic relationships with legal rights protection regimes.[9] However, this hypothesis remains controversial. Though some empirical research indeed suggests relations of synergy,[10] other contributions emphasize that the relationship between CSR and legal human rights regimes can also be characterized by interference or contradiction.[11] The problem is compounded by the fact that contemporary governance of the extractive sector is characterized by an entanglement of normative regimes of very different types. This includes State, Indigenous, and international legal regimes[12]; private CSR regimes, standards, certification schemes and algorithms[13]; knowledge systems circulating through networks of “global cities” and academic institutions[14]; and metadiscourses articulating different moral economies around the notions of “progress,” “development,” “buen vivir,” “sovereignty,” “self-determination,” “reconciliation” and so on.[15] For these reasons, greater attention needs to be paid to the complex relationships among these regimes regarding, for example, the protection of human rights, including Indigenous peoples’ right to self-determination (in extractive contexts). We find heuristic value in conceptualizing this complex web of relationships as a “normative ecosystem.” In this article, we define the “extractive normative ecosystem” as the result of the interaction between any norm, discourse, or policy that determines the outcome of extractive encounters with local communities. The ecosystemic perspective, in our view, allows for a better assessment of the constant evolution of CSR and BHR because it analyses the interaction between rules and norms according to their use and potential effects rather than their stated purpose or finality. How can we better assess the latest changes in Canada and Europe regarding business-related human-rights harm? We suggest that an ecosystemic approach de-reifies codified rules and norms while simultaneously recognizing the importance of norms that are often overlooked when it comes to CSR and BHR, such as Indigenous legal regimes. It allows researchers and policymakers to understand normative practices currently used in the extractive sector.[16] The article has four main sections. The first outlines the theoretical implications of the ecosystemic paradigm within the critical socio-legal field. The second analyses recent developments in the field of Mandatory Human Rights Due Diligence (mHRDD) legislation in France and the Netherlands, and at the European Parliament and European Commission. This section shows that these normative developments already adopt an ecosystemic paradigm. The third section explores the challenges of operationalizing an ecosystemic approach to the extractive sector’s normativity and discusses how positivist applications of BHR norms may limit Canada’s action in this field. We conclude by underlining the relevance of an ecosystemic perspective for better understanding the actual challenges individuals and communities negatively affected by extractivism face, for example in relation to the environment, and opportunities for preventing these negative impacts.

I. Theoretical Implications of the Ecosystemic Approach

Globalization has upset the relationship between norms and power, calling into question the political hegemony modernity bestowed on States and law. This is not an original observation; however, it opens up a myriad of socio-legal questions. Putting methodological nationalism aside[17] calls into question the grounds for authority and legitimacy and makes it necessary to consider different conceptions of freedom and to interrogate the correspondence between norms and political communities in a multitude of social configurations.[18] The political function commonly assigned to law is the first thing to be called into question. In a paradigm where the State dominates, the image of the pyramid imposes a political imperative of coherence and hierarchization on the normative sphere.[19] In contemporary constitutionalism, coherence is intrinsically linked to societies’ democratic aspirations: it is through law that a society intends to determine itself. As for hierarchization, its purpose is precisely to place the fundamental values used to measure the legitimacy of all other norms at the top of the pyramid. The establishment of human dignity as a teleological imperative, for example, is reflected in the development of the human rights corpus.[20] Extrapolating from a domestic law perspective, the “protection of human dignity” might also, following Anghie, be “considered the ultimate goal of international law.”[21] Like other critical socio-legal approaches, we problematize the pyramid model on the basis of two complementary premises. The first is that the relationship between politics and law is intrinsically ambiguous.[22] Law is a means by which society can govern itself and be a democratic political community, a means by which constituted power can be held to its word and a tool to resist the arbitrary exercise of authority. But law is also the language of “Reason of State” and, as such, an “anti-political” tool.[23] Whether the “rule of law” plays an emancipatory role or serves as an anti-political tool in a given context is thus an empirical question, for both uses of the “rule of law” can coexist in the same society.[24] This ambiguous political function of the law has been widely explored and discussed in the field of International Law, particularly by Third World Approaches to International Law (TWAIL) scholars. We share TWAIL’s ontological sensitivity about “the colonial origins and legacies of international law”[25] and the seriousness with which they factor in systems of oppression affecting the Global South, such as “historically marginalized communities, race and political economy.”[26] We also share Eslava and Pahuja’s methodological proposal to think “ethnographically about the many […] sites in which international law operates today.”[27] According to these authors:

Once we consider this plethora of spaces – new ‘jurisdictions’ – in which international law is being materialized today, it becomes clear that we should not confine our interrogations to only those sites that present themselves as ‘international’. The increasing number of jurisdictional forms that are now being created or recreated, in the name of good governance, sustainability or economic competitiveness deserve detailed attention - one capable of linking the existence and operation of these spaces to the ways in which the current global order is unfolding in the everyday lives of people across the world.[28]

Considering the constant evolution of CSR and BHR initiatives, the different power relationship between the numerous actors involved in the extractive business and human rights field and the entanglement of normative regimes in Canada and elsewhere, we believe that “the linguistic openness of rights discourse leads to policy being determinative of particular interpretive outcomes.”[29] In this context, Koskenniemi insists on the fact that human rights, “like any legal vocabulary, is intrinsically open-ended[.] What gets read into it (or out of it) is a matter of subtle interpretative strategy.”[30] Without pretending to “speak for the subaltern,”[31] our ecosystemic perspective shares common objectives with Critical Legal Studies and TWAIL because it “provides opportunities for productive sociological analyses of the relational politics, structures and impacts of transnational human rights law, practice and discourse.”[32] The second premise is inspired by “pragmatic” approaches to global law[33] and uses the image of the ecosystem as a heuristic tool to analyze how different normative regimes interact with each other, regardless of their respective sources or formal status, and seeks to identify synergies or interferences between these systems.[34] The aim is therefore to see how “different norms or other normative instruments, whether public or private, fit together, complement (or counteract) each other, in a concerted or unconcerted, voluntary or incidental way, in order to produce regulatory effects.”[35] From an ecosystemic perspective, rather than being valued in terms of their respect for jurisdictional limits, institutions are called upon to act as “points of control.” Their actions can be valued on the basis of how they compensate for asymmetries between actors in the ecosystem, for example, or if they attach enforceable consequences to soft CSR instruments.[36] Indeed, looking for coherence in the normative tangle governing the global extractive sector would be futile: new justifications – outside of coherence and distinct from the values put forward by each normative instrument – must thus be outlined. While it is beyond the scope of this article to develop this aspect of our theoretical argument, it is useful to mention that our approach’s normative horizon is to examine the impact of different inter-normative configurations on the structuring of political communities. It therefore becomes important “to extend the spatial scope of studies of the international” by including “the small places, where international work is actually – materially – done”[37] such as extractive sites in Canada and sites Canadian companies operate elsewhere. This is an important point since, as radical legal pluralism scholars have argued, these political communities have no reason to be predetermined by jurisdictional frontiers.[38] Extraterritorial considerations are thus inherent to our ecosystemic perspective. It must be stressed, however that this does not imply that political institutions – States, for example – should not be held to account. Rather, as Frydman has argued, the political dimension of ostensibly apolitical forces is brought into focus:

By detaching the rule from its source and its order, we will undoubtedly be criticized for obscuring or even denying the link between the law and the power that imposes it, thereby [...] insidiously uncoupling law and politics. In reality, the opposite is true. […] [It perhaps gives] us a better idea of the forces, not only political, but economic and technical, that impose their hold on reality through the intermediary of norms.[39]

We aim to contribute to making such forces visible, outlining alignments of interests and identifying suppressed voices that an exclusively positivist approach would miss.

II. Mandatory Human Rights and Environmental Due Diligence Legislation: an Ecosystemic Perspective

Following the UN Guiding Principles on Business and Human Rights (UNGPs), governments have introduced legislative regimes to encourage or require companies to carry out human rights due diligence.[40] Indeed, the regulatory landscape for BHR “is growing increasingly complex as more countries introduce new laws and business actors evaluate soft law options. States, business organizations, NGOs, and other actors differ concerning which of these options they may prefer.”[41] According to Enneking these legislative initiatives fall into one of three categories:

  1. Mandatory disclosure legislation[42]

  2. Mandatory due diligence legislation[43]

  3. Duty of care legislation[44]

This emerging body of law, often referred to as Mandatory Human Rights and Environmental Due Diligence (mHREDD) legislation, illustrates the heuristic potential of the ecosystemic approach, as we will see with the following key examples.

A. France’s Law on the Corporate Duty of Vigilance

France’s Law on the Corporate Duty of Vigilance obliges French companies of a certain size to establish, publish and implement a vigilance plan that contains reasonable measures to identify the risks and prevent serious human rights violations and harm to the environment resulting from the activities of the company and in the whole value chain.[45] At the time of its enactment in 2017, it was the only law to incorporate corporate due diligence into domestic law.[46] According to Delalieux and Doquet, the logic behind France’s Law is clearly ecosystemic as it seeks “to harden existing corporate social responsibility (CSR) soft law mechanisms, considered as too weak” on their own.[47] The obligations set out in the Vigilance Law require companies to:

  1. Establish a vigilance plan;

  2. Effectively implement it; and

  3. Make a plan to effectively report to the public.[48]

Specifically, the “vigilance plan” must include:

  1. A risk map;

  2. Regular evaluation procedures regarding the situations of relevant subsidiaries, subcontractors and suppliers;

  3. Adequate actions to mitigate risks or prevent severe impacts on areas covered by core humanitarian principles;

  4. An alert mechanism regarding the existence or materialization of risks, established in consultation with the trade unions considered to be representative within the company; and

  5. A system monitoring the measures implemented and evaluating their effectiveness.[49]

The Vigilance Law envisages three sanctions in the event of a breach of obligations:

  1. A monetary fine or a possible periodic penalty payment as a result of an injunction;

  2. Civil liability; and

  3. The publication of the court’s decision on civil liability.[50]

There have been several evaluations of the law’s scope and the challenges related to enforcement since its entry into force in 2017. Experts and NGOs regret that the law only applies to a limited number of companies (between 150 and 300 according to various estimates).[51] The law focuses on large companies under the rationale that they are the only entities with enough resources and leverage to implement the duty of vigilance.[52] Experts also point out that “many companies are still in a learning phase” and that a “number of companies still approach the vigilance plan as a tick-box exercise.”[53] With respect to enforcement, the alert system has been triggered seven times and three cases have reached the courts since 2019. It was hoped that the court’s first decisions would provide indications on the effectiveness of law’s enforcement mechanism[54] but these decisions have not yet clarified the way in which the courts will treat such claims. However, the decisions highlight the “imprecise, vague and flexible” character of the notion of “reasonableness” imposed on companies and the importance of engagement with stakeholders in the elaboration and actualization of the due diligence plans to be implemented.[55] These decisions would seem to confirm critics’ concerns that asymmetries in actors’ capacity will undermine the law’s stated objective. While it seeks to harden corporate instruments, it also relies on civil regulation[56] for its implementation:

Most of the enforcement actions have been initiated by NGOs and trade unions. Playing that role is challenging, as these entities often have limited financial and operational capacity. Besides, this process can generate risks for human rights and environmental defenders. Several NGOs have been asking for the creation of an independent monitoring body to ensure the effective implementation of the Law. The General Council of Economy also noted […] the weaknesses in monitoring the Law’s implementation and suggested that a body of the French administration get access to confidential information centralized by the administration in order to promote compliance with the Vigilance Obligations.[57]

Despite these limitations, experts note that the Vigilance Law “has been integrated into domestic ‘hard law’[58] and has contributed to awareness raising within companies about the necessity of integrating human rights and environmental concerns within business activities and their supply chain.”[59] The French Law has served as a useful reference for an EU directive currently under discussion,[60] as we will explain below. First, however, we will highlight some initiatives from the Netherlands regarding mHREDD legislation. This will also help illustrate one of the dynamics of adaptation to an evolving normative ecosystem best captured by an ecosystemic approach.

B. The Netherlands: Dutch Child Labour Due Diligence Act

The debates on BHR in the Netherlands date back to the late 1990s. In 2014, the Dutch Social and Economic Council (SER) drafted nine covenants on International Responsible Business Conduct (IRBC-covenants) that were later concluded with different sectors.[61] According to Enneking:

One of the consequences of the Dutch government’s focus in its IRBC policy on concluding sector agreements – a regulatory instrument that is, in essence, consensus driven – has been that it has effectively held off concrete debate on the introduction of more binding measures in this context.[62]

As was the case in France, mHREDD legislation in the Netherlands was introduced under the logic of “hardening” these soft law mechanisms. In March 2021, the Bill for Responsible and Sustainable International Business Conduct was submitted to the Dutch Parliament; in December of the same year, the Minister of Foreign Trade and Development announced the government’s intention to develop binding national mHREDD legislation. In November 2022, the Bill for Responsible and Sustainable International Business Conduct was re-submitted to the Dutch Parliament, after a review by the constitutional advisory council.[63] The proposed Dutch Bill for Responsible and Sustainable International Business Conduct falls into Enneking’s categories of mandatory due diligence legislation and duty of care legislation. Indeed, according to the unofficial English translation, section 1.2 of the Dutch Bill on the duty of care for every undertaking stipulates:

1. Any undertaking that knows or should reasonably suspect that its own activities or those of its business relationships may have adverse impacts on human rights or the environment in countries outside the Netherlands must:

a. take all measures that may be reasonably required of it to prevent such impacts;

b. to the extent that such impacts cannot be prevented: mitigate or reverse them to the extent possible and, where necessary, enable remediation;

c. if such impacts cannot be sufficiently mitigated: refrain from the relevant activity or terminate the relationship in so far as that may reasonably be expected from the undertaking.[64]

This new legislation would replace a 2019 law that mandated companies importing goods or services to the Dutch market to conduct due diligence “with respect to the use of child labour in their supply chains.”[65] In comparison to the French Law, the 2019 Child Labour Due Diligence (CLDD) Act covers companies of all sizes from all sectors:

[t]he ambit of the CLDD Act’s main obligation to conduct due diligence is not limited to the activities of a defined range of companies; by consequence, it extends, in principle, to all business operations within the value chain […] The Duty of Vigilance Law has a more circumscribed ambit with regard to business operations to be covered in the vigilance plan that companies falling within its personal scope are required to draw up.[66]

In contrast with the French Duty of Vigilance Law, however, the CLDD Act does not contain any provisions relating to access to remedy for victims of child labour.

C. MHREDD at the European Parliament and European Commission

Making access to markets conditional on proper human rights due diligence can have extraterritorial impacts and modify the normative global ecosystem. Since 2020, the European Union’s (EU) commitment to introducing legally binding corporate human rights and environmental due diligence norms has generated great interest outside of Europe, and notably in Canada.[67] In 2020, following the European Commission Action Plan on Financing Sustainable Growth in 2018,[68] an important report on due diligence requirements through the supply chain was published that outlined different regulatory options at the EU level.[69] In February 2021, the European Parliament’s Committee on Legal Affairs adopted the legislative initiative report with recommendations to the Commission on corporate due diligence and corporate accountability.[70] In March 2021, the European Parliament issued a resolution to inspire the European Commission’s crafting of a mandatory due diligence and corporate accountability framework. Regarding the subject matter and objective, Article 1 of the European Parliament resolution mentions:

1. This Directive is aimed at ensuring that undertakings under its scope operating in the internal market fulfil their duty to respect human rights, the environment and good governance and do not cause or contribute to potential or actual adverse impacts on human rights, the environment and good governance through their own activities or those directly linked to their operations, products or services by a business relationship or in their value chains, and that they prevent and mitigate those adverse impacts.[71]

The European Parliament’s 2021 resolution adopted an ecosystemic perspective to highlight accountability and monitoring, stipulating that each: “Member State should designate one or more national competent authorities to monitor the application of the Directive and to disseminate best practice on due diligence.”[72] Following this resolution, on 23 February 2022, the European Commission adopted a Directive proposal on corporate sustainability due diligence with the aim of

foster[ing] sustainable and responsible corporate behaviour and [anchoring] human rights and environmental considerations in companies’ operations and corporate governance. The new rules will ensure that businesses address adverse impacts of their actions, including in their value chains inside and outside Europe.[73]

Regarding market access, the EU directive outlines objectives with regards to externalities, innovation, unfair competition, and loyalty.[74] Among the beneficiaries of these new rules, the European Commission mentions citizens, companies, and developing countries. For European companies and third country companies active in the EU, the Commission lists the following benefits: a harmonized legal framework in the EU, creating legal certainty and a level playing field; greater customer trust and employee commitment; better awareness of companies’ negative environmental and human rights impacts; better risk management and adaptability; increased attractiveness for talent, sustainability-oriented investors and public procurers; higher attention to innovation; and better access to finance.[75] On 1 June 2023, the European Parliament adopted amendments to the text the European Commission had proposed concerning the proposal for a EU Directive on Corporate Sustainability Due Diligence and the Directive will now enter into a round of negotiation with Member States.[76] This is relevant for other countries, including Canada, because the EU Directive “identifies, targets, and seeks to address important challenges associated with current efforts to enhance due diligence,” namely by applying the Directive to the entire supply chain. The Directive also emphasizes the need for remedies oriented towards those affected, as well as “the need for oversight bodies to monitor compliance that are empowered to directly apply enforcement measures.”[77] On July 25, 2024, EU Directive (2024/1760) on corporate sustainability due diligence entered into force.[78] Member States will now have to transpose the Directive into national law and communicate the relevant texts to the Commission before the end of July 2026. The rules will start applying to a first group of companies one year later, with full implementation planned for mid-2029.[79] Several European countries (e.g., Germany, Austria, Belgium and Norway) are already discussing relevant laws.[80] The above examples of mHREDD legislation illustrate the evolution of norms in this key area and, more specifically, how the adoption of an ecosystemic perspective allows for a better assessment of the constant evolution of CSR and BHR in specific institutional settings by focusing concretely on the use and potential effects of legislative initiatives.

D. Proposed MHREDD Legislation in Canada

Discussing and advancing mHREDD is not limited to Europe. In Canada, the Canadian Network on Corporate Accountability (CNCA),[81] a coalition of civil society organizations, has drafted a model mHREDD legislation. Although it does not target specific sectors, there is no doubt that the Canadian extractive sector’s global human rights record is an important reference. Canada plays a key role in the extractive sector. For decades, companies listed on Canadian stock exchanges (TSX and TSXV) have been raising between a third and a half of all mining capital worldwide, and a large proportion of the world’s publicly-traded mining companies are listed in Canada.[82] Since the 1990s, Canada has also generated normative innovations that explicitly focus on the governance of the extractive sector and its relationship to the law. These innovations come as much from the private sector[83] as from public action.[84] It is important to underline that the Canadian extractive sector has been “very successful at preventing the introduction of hard law measures to regulate its overseas conduct that may violate human rights.”[85] Canada has recently updated its BHR policy.[86] Review of this policy finds that despite some improvements, it remains “entrenched in a soft approach to ensuring that Canadian extractive companies respect human rights abroad.”[87] Even with the introduction of the 2022 Responsible business conduct (RBC) strategy, we still observe “the government’s current intransigence in moving beyond a voluntary self-regulation regime on HRDD.”[88] One example of this is the refusal to provide the Canadian Ombudsman for Responsible Enterprise (CORE) with the investigative powers necessary to compel documents and testimony from companies.[89] In 2024, the CORE made, for the first time, a determination that a Canadian extractive company was responsible for human rights violations committed abroad and recommended that official support for the company to be withdrawn. CORE also reiterated its demand that it be granted the above powers.[90] The Canadian government has yet to respond to these recommendations at the time of this publication. The CNCA argues that Canada’s long-standing promotion of voluntary CSR instruments fails to regulate Canadian companies’ behaviour abroad and that this constitutes a breach of Canada’s human rights obligations.[91] Its model legislation seeks to establish a corporate duty for companies that are incorporated, have a place of business or sell goods or services in Canada, and have a physical presence or otherwise carry out business in Canada to prevent human rights abuse and environmental harms. It requires companies to conduct due diligence and publicly report on the steps taken to prevent human rights and environmental harms and legislates significant consequences for companies that cause harm or fail to conduct due diligence.[92] The model legislation was introduced as a private member’s bill in Canada’s House of Commons in 2022 but did not reach a second reading.[93] It remains to be seen if this initiative will be taken up again.

In sum, several countries are moving towards stronger mHREDD norms and measures that will enhance standards and affect the terrain on which Canadian companies operate. Similarly, civil society groups will continue to push for necessary changes. There is a need to better understand what these normative developments may mean for local communities affected by the diverse actors involved in extractive projects. It is therefore important to decentralize the analysis of the current dynamics articulating international law and development[94] as they intersect with Canadian diplomacy and its promotion of CSR and BHR “solutions.” Exploring the operationalization of an ecosystemic approach to normativity going beyond mHREDD could be useful.

III. The Potential of an Ecosystemic Approach to Normativity Beyond MHREDD

In such an exploration of the operationalization of an ecosystemic approach, pertinent areas of concern and intervention might include areas such as those described below.

A. Supporting Grassroots Legal Practices

The fragmented way in which BHR norms are enshrined in different documents – some binding and others voluntary – has led to an apparent opposition between companies’ interests and States’ human rights obligations. In this context, affected communities’ grievances are primarily addressed by the project proponents’ CSR instruments, which are explicitly framed around the operators’ interests (however enlightened they may be) rather than furthering human dignity and rights.[95] Different forms of oppression affect communities opposing extractive projects and different factors shape their actions.[96] Understanding local movements’ actions, as well as their political underpinnings, is essential to supporting affected communities better.[97] It will also help enrich international and State law by incorporating legal practices that emerge from grassroots movements.[98]

B. Re-aligning Professional Ethics with Human Dignity and Rights in the Diplomatic Service

Addressing different institutions’ behaviour from an ecosystemic approach broadens analyses of extractive legal and political infrastructures, and requires studying them in practice and in the context of the development and application of norms. Among the actors and institutions that can have a significant impact on corporate behaviour and accountability are those involved in economic diplomacy, as they also shape foreign jurisdictions. In the case of Canada, for example, Canadian-listed companies have regularly benefitted from Canadian embassies’ diplomatic support. However, at times, this support ignores or contradicts human rights imperatives and related foreign policy objectives. Through access to information (ATI) requests,[99] a growing body of research suggests, as Szablowski noted, that Canadian “embassy staff tend to prioritize the economic interests of Canadian extractive firms and adopt industry perspectives” especially on the “illegitimacy of local concerns and protest.”[100] Between 2005 and 2017, for example, Canadian extractive investment in the Marlin gold mine in western Guatemala was met with opposition and resulted in attacks against human rights defenders. In this context, in 2010, the Canadian Embassy in Guatemala developed a political advocacy campaign in support of the Canadian mining company Goldcorp, then owner of the Marlin mine, to ensure that it could continue to operate. This support openly contradicted a legally binding order of the Inter-American Court of Human Rights that had granted protection measures to Indigenous human rights defenders opposing the Marlin mining project.[101] As a result, scholars recommend using the notion of “diplomatic liability” and including it in the “broader concept of home-state responsibility over the conduct of extractive companies” to consider diplomats’ institutional and individual responsibility. This would imply holding them accountable if they promote or engage in activities that result in human rights abuses.[102]

C. Transnational Litigation

Transnational civil litigation can bring important changes to the extractive normative ecosystem by enabling transnational fora to receive complaints that would normally have been considered in the host country’s national courts.[103] This creates new opportunities for the targets of human rights violations in situations where domestic courts are insufficiently independent of local governments or elites and where law enforcement is often involved in human rights violations related to extractive projects.[104] Transnational litigation has the potential to transform the implications of CSR policies, introducing real responsibility into what was meant as a merely rhetorical exercise. In the case of Canada, for example, transnational litigation has introduced a distinct interpretation of the parent company’s duty of care in jurisprudence, creating a propitious context for plaintiffs.[105] In Choc v Hudbay, Maya-Q’eqchi’ villagers were allegedly shot at by security personnel while protesting the Hudbay mining project in Guatemala. A Maya-Q’eqchi’ schoolteacher and activist was killed and many Maya-Q’eqchi’ women were raped. Hudbay’s motion to dismiss claims rested on the argument that a parent company does not owe a duty of care to those wronged by its subsidiary’s actions.[106] The Ontario Supreme Court, however, dismissed Hudbay’s motion and concluded that Hudbay Minerals had established a relationship of proximity between the two parties by publicly committing to CSR in Guatemala and by adopting the Voluntary Principles on Security and Human Rights.[107] According to the Court:

(33) The human rights implications of transnational corporate activity have received the attention of numerous international and intergovernmental organizations over the past few decades and have resulted in a range of voluntary codes of conduct developed in conjunction with multinational corporations. Such codes of conduct include the Voluntary Principles on Security and Human Rights, which were established in 2000 and elaborate norms for corporate conduct in the extractive industry when engaging public and private security forces to protect business interests in areas with a potential for violence or conflict. The Voluntary Principles call for a risk assessment of the human rights impacts of security forces and require corporations to screen and train security personnel and establish clear parameters for their use of force. Hudbay stated that this code guided their corporate conduct.[108]

The initial petition was filed in Canada in 2010. The case is ongoing. While the Canadian court’s recognition of a corporate duty of care towards affected communities is a positive step for the victims in Choc v Hudbay, this important development took place several years after the case started. Moreover, it only opens an avenue for the victims to continue pursuing justice. This particularly long and persistent struggle for justice is only one of many other struggles worldwide; States like Canada should be setting a positive example and advancing standards. The challenge of advancing such standards and effectively applying them to positively transform the adverse realities of so many victims affected by extractivism confirms the relevance of the ecosystemic perspective. It not only helps navigate the entanglement of normative regimes but also helps identify and measure their effectiveness. In such a context, an ecosystemic perspective grounded in the victims’ realities helps reveal the actual role of the normative instruments and the institutions in charge of applying them. It also shows how such laws and institutions create conditions that affect victims of corporate abuse, facilitating or worsening their search for justice, and identifies pertinent areas of intervention that could contribute to realizing environmental protections, human dignity and rights. For these reasons, the ecosystemic perspective merits far greater attention.

***

An ecosystemic analysis of different mHREDD unmasks the complexity of the norms at play when regulating the extractive sector. As shown with the French and Dutch laws, it is the arrangement of soft and hard rules that allows for the emergence of a normative framework that can enforce mHREDD rules in a more efficient manner. The ecosystemic approach points to the normative language that emerges when States apply regulatory rules to extractive companies. It also offers tools to understand mHREDD with an emphasis on the people who are affected by the extractive companies by placing the effects of these rules in context and in relation to other norms that are present in local contexts. The ecosystemic approach also connects mHREDD with other key issues like development and power dynamics between affected communities and State officials such as diplomats. With the shared objectives of developing more effective systems to protect the environment and human rights in relation to corporate practices, several countries (mainly in Europe) are developing stronger normative frameworks. However, these developments are still preliminary and fragile; some laws that have entered into force have already shown important limitations. Despite these challenges, the European cases are relevant examples to follow in implementing changes to the current Canadian mHREDD that could be beneficial to the populations affected by Canadian companies. Moreover, the growing recognition of Indigenous jurisdiction over ancestral lands in Canada and abroad[109] should push Canada to consider those norms in its BHR policy. Institutions such as the CORE must also adopt an approach that considers Indigenous norms and rights in their investigation of complaints against the extractive sector. In such a context, an ecosystemic perspective grounded in the victims’ realities helps reveal the actual role of the normative instruments and the institutions in charge of applying them. It also shows how such laws and institutions create conditions that affect victims of corporate abuse, facilitating or worsening their search for justice, and identifies pertinent areas of intervention that could contribute to realizing environmental protections, human dignity and rights.