Canadian Lawyer

OPINION right to life of persons." Very careful, all this, but, you might think, a little flaccid. What exactly is the "leverage" you as a lawyer are supposed to use to whip clients into line? Here are some of the tactics suggested by the guide. You could raise any issue of adverse human rights impacts. You could suggest your firm can provide advice. You could advise on measures to avoid/mitigate/remedy adverse impacts. (Doing these things, of course, would add substantially to billable hours, and that's always welcome.) Your firm could also consider whether to decline or withdraw services, but, says the guide, "in practice, the firm is only likely to decline clients in exceptional circumstances and will more regularly try to use its leverage to mitigate the risk of human rights impacts once in an active client relationship." All this is feeble stuff. And what world do the authors of the guide live in if they think this kind of dancing around is going to have any effect on hard-bitten businesspeople operating overseas, often in a hostile environment, who demand downto-earth advice from their outside counsel? This kind of discussion about international human rights might be okay in some obscure graduate seminar, but not in the boardrooms of, say, Canadian mining companies and their Bay Street law firms. Oh yes, Canadian mining companies. They operate in places like Mexico, Guatemala, Peru, Zimbabwe, the Democratic Republic of the Congo, Tanzania, and Zambia, all of which countries, to say the least, are known to have local human rights issues. There's no evidence their Canadian counsel are using "leverage" to promote the UN Guiding Principles. There is evidence some of these companies are implicated in serious local human rights violations. (Take a look at miningwatch.ca.) This past July, Choc v. Hudbay Minerals Inc. came out of left field. Justice Carole Brown ruled in Ontario Superior Court that lawsuits against Hudbay over alleged abuses at the company's Guatemalan project could proceed in Canada under Canadian law. (The merits of the claims have yet to be determined.) Amnesty International, an intervener, argued Canadian courts should be able to draw upon international norms and standards of conduct, such as the UNGP, in assessing domestic liability for overseas human rights abuses. The decision to allow the Hudbay case to go forward could change the Canadian international human rights calculus. Companies and their counsel may be called to account, not in the courthouses of Guatemala City and Kinshasa, but in Toronto and Vancouver. The UN Guiding Principles might suddenly become important. But maybe we shouldn't get too excit- ed. It was five years ago this past August that justice Ian Binnie told the Canadian Bar Association that Canadian businesses should pay attention to human rights abuses in developing countries where they do business. No one was listening then. Perhaps no one is listening now. Philip Slayton's latest book is Mighty Judgment: How the Supreme Court of Canada Runs Your Life. Follow him on Twitter @philipslayton. SPECIALIZATION IN BUSINESS LAW Part-time, Executive LLM program for corporate counsel and practising lawyers Taught by U of T Faculty of Law professors, together with top international faculty from MIT-Sloan School of Management and expert practitioners. TIME: EVENT: For more information, call 416-978-1400 or visit: http://www.law.utoronto.ca/programs/GPLLM.html Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. LLM_IH_Apr_13.indd 1 www.CANADIAN L a w ye r m a g . c o m October 2013 17 13-02-26 4:07 PM

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