Jack Caldwell - Mining Engineer - Robertson GeoConsultants

In 2010 I blogged about Anvil Mining and events in the Congo. In brief Anvil Mining was accused of providing aid to soldiers of the national government; the soldiers were out of control and deaths ensued. I received this comment a short while back of my original posting.

Jack, in response to your blog on Anvil, I would like to add the following comment.

1. The uprising in the village Kilwa was by a group calling itself the Revolutionary Movement for the Liberation of Katanga (MRLK) which was calling for the secession of the Katanga Province from the rest of the Democratic Republic of Congo. It was not about cutting off “supply lines” to Anvil’s Dikulushi copper-silver mine 54km to the north of Kilwa. The incident at Kilwa was investigated by the United Nations (who had 17,000 troops in the country at the time) and the World Bank, which was involved in providing the project with political risk insurance. The World Bank was a strong supporter of the company in the aftermath of this terrible event and would clearly not have been had the company acted inappropriately.

2. There is documented evidence that Anvil’s vehicles were requisitioned, and Anvil did not call for “government aid in flushing out the rebels”, as the NGOs suggest.

3. Anvil was dual listed on the Australian Stock Exchange (ASX) and the Toronto Stock Exchange (TSX). Its main listing was on the TSX but it had its head office in Perth, Australia. This is neither uncommon nor remarkable.

4. Anvil has been cleared of any wrong-doing in three jurisdictions so far; in Australia by the Australian Federal Police; in the Supreme Court of Western Australia; in two court hearings in Quebec, Canada; and by a military court in the DRC. The CAAI action is expected to fail as well.

5. In response to your query, Anvil has never received “any money, help assistance etc from the Canadian government”. This can be verified with the Canadian Government.

6. Anvil could not reasonably have anticipated that human rights abuses would follow the requisition orders in October 2004. Remember, Anvil had had a presence in Zaire/DRC since 1995 and naturally there had been interaction between the company and the armed forces without there ever being an incident of this kind.

7. Anvil had to comply with the instructions of the Congolese authorities, just as any company or civilian has to comply with authorities during states of emergency, such as armed insurrection, war, rioting and so on. This is no different to any other country in the world. It is DRC law that allows for the requisitioning of equipment by government officials.

8. Anvil was a trendsetter in the post-conflict DRC; when it established the Dikulushi mine in 2001/2 it voluntarily placed 10% of the profits from the operation into a trust for social development initiatives in the region of its operation. This 10% contribution to the local community was enshrined in the Mining Convention signed in 1998. Anvil went on to develop a further two mines, at Mutoshi near Kolwezi and at Kinsevere near Lubumbashi and between 2002 and 2012 had spent well over $20 million on social development projects, such as the establishment of water wells, the building of schools, clinics, grain storage centres, community centres, farming projects and so on. It also became involved in establishing internationally accepted protocols and invited independent audits on the way in which it operated (security, human rights and so on). Work that Anvil did in conjunction with the World Bank after the event became guiding documentation for the mining industry which the World bank put up on its website.

A the time of the incident, Anvil was a Canadian company headquartered in Australia. Although the details are murky. It appears that in 2005 the company rented opened an office in Montreal for its VP of Corporate Affairs and his secretary. The Anvil Mining has since been sold to a Chinese mining company for nearly $1.3 billion. It now belongs to the Chinese mining company Minmetals Resoures Ltd, whose headquarters are in Australia.

Yet in March of this year, I read the following:

(Ottawa) The Canadian Association Against Impunity (CAAI) has today filed an application with the Supreme Court of Canada on behalf of Congolese families. The families are seeking leave to appeal the Quebec Court of Appeal’s decision to dismiss a human rights case against the Canadian corporation Anvil Mining Limited.

The appeal will decide whether victims will be able to hold Canadian companies accountable in Canadian courts, for their involvement in serious human rights violations committed abroad.

In November 2010, families of the Congolese victims, through the CAAI, filed a class action against Anvil Mining accusing it of having provided logistical support to the Congolese army who raped, murdered and brutalized the people of the town of Kilwa in the DRC. According to the United Nations, an estimated 100 civilians died as a direct result of the military action, including some who were executed and thrown in mass graves. Anvil Mining provided logistical support but claims it was requisitioned by the authorities and denies any wrongdoing.

In January, the Quebec Court of Appeal overturned an earlier decision of the Quebec Superior Court that found that Quebec had jurisdiction to hear the case, and that the victims would fail to get justice elsewhere – either in the Democratic Republic of Congo or in Australia, where Anvil Mining previously had its head office.

“All our attempts to seek justice have been fruitless”, said Adèle Mwayuma, whose two sons were executed during the massacre. “Canada is my only hope for holding someone responsible for the murder of my children,” she continued.

“We truly believe that Canada is our last resort and are asking the Supreme Court to give us the opportunity to challenge the Quebec Court of Appeal’s disregard of the abundant evidence proving that access to justice in other countries has proved impossible,” said CAAI president Patricia Feeney.

“My father has not lived to see justice delivered,” said Dickay Kunda, whose father, a policeman, was badly beaten and tortured while in military custody. His 22-year old sister, Dorcas also died after being raped by soldiers. “But after more than seven years, we now look to the Supreme Court of Canada for justice.” he added.

Here from the blog Conflict of Laws is a detailed discussion of the progress of this case through the Canadian courts:

Professor Genevieve Saumier of McGill University has written the following analysis of a recent Quebec Court of Appeal decision which might be of interest in other parts of the world. The case is ACCI v. Anvil Mining Ltd., 2012 QCCA 117 and it is available here (though only in French, so I appreciate my colleague’s summary). I am grateful to Professor Saumier for allowing me to post her analysis.

In April 2011, a Quebec court concluded that it had jurisdiction to hear a civil liability claim against Anvil Mining Ltd. for faults committed and damages inflicted in the Democratic Republic of Congo where the defendant exploits a copper mine.

The facts behind the claim related to actions alleged to have been taken by the defendant mining company in the course of a violent uprising in Kilwa in the Democratic Republic of Congo in October 2004 that caused the deaths of several Congolese (the number is disputed). In essence, the plaintiff alleges that the defendant collaborated with the army by providing them with trucks and logistical assistance.

The defendant, Anvil Mining Ltd, is a Canadian company with its head office in Perth, Australia. Its principal if not its only activity is the extraction of copper and silver from a mine in Congo. Since 2005, the company has rented office space in Montreal for its VP (Corporate Affairs) and his secretary. It is on the basis of this connection to the province of Quebec that the plaintiff launched the suit there. The plaintiff is an NGO that was constituted for the very purpose of instituting a class action against the defendant, for the benefit of the victims of the 2004 insurgency in Congo.

The defendant contested both the Quebec court’s jurisdiction and, in the alternative, invoked forum non conveniens to avoid the exercise of jurisdiction. At first instance, the court held that it had jurisdiction over the defendant on the basis of its establishment in Quebec (the office in Montreal) and that the claim was related to the activities of the defendant in Montreal (the two conditions for jurisdiction under 3148(2) Civil Code of Quebec given the foreign domicile of the defendant). Interpreting this second conditions broadly, the court held that the VP’s frequent visits to Congo and his activities to attract investors in Quebec were linked to the defendant’s activities in Congo and therefore to the claims based on those activities.

In rejecting the alternative forum non conveniens defense to the exercise of jurisdiction, the court considered the other fora allegedly available to the plaintiffs, namely Congo and Australia. A claim had already been made before a Congolese military court but it had been rejected. The plaintiff claimed that the process before the Congolese court, competent to hear the claim, was in breach of fundamental justice for a number of reasons. As to the Australian court, the plaintiff claimed that an attempt to secure legal representation in that country had failed because of threats made by the Congolese regime against both the victims and the lawyers they were seeking to hire in Australia. The Quebec court accepted this evidence and held that the defendants had failed to show that another forum was more appropriate to hear the case, a requirement under art. 3135 C.C.Q. It appears that the plaintiffs had also presented an argument based on art. 3136 C.C.Q. (“forum of necessity”), but since jurisdiction was established under art. 3148 and forum non conveniens was denied, the court decided not to respond to the argument based on forum of necessity. Still, the court did state that “at this stage of the proceedings, it does appear that if the tribunal declined jurisdiction on the basis of art. 3135 C.C.Q., there would be no other forum available to the victims,” suggesting that Quebec may well be a “forum of necessity” in this case.

Leave to appeal was granted and the Quebec Court of Appeal reversed, in a judgment published on 24 January 2012. The Court of Appeal held that the conditions to establish jurisdiction under art. 3148(2) C.C.Q. had not been met. As a result of that conclusion, it did not need to deal with the forum non conveniens aspect of the first instance decision. This made it necessary to deal with the “forum of necessity” option, available under art. 3136 C.C.Q. The Court found that the plaintiff had failed to show that it was impossible to pursue the claim elsewhere and that there existed a sufficient connection to Quebec to meet the requirements of article 3136 C.C.Q. In other words, the plaintiff had the burden to prove that Quebec was a forum of necessity and was unable to meet that burden.

The reasons for denying the Quebec court’s jurisdiction under art. 3148(2) C.C.Q. are interesting from the perspective of judicial interpretation of that provision but are not particular to human rights litigation. Essentially the Court of Appeal found that the provision did not apply because the defendant’s Montreal office was open after the events forming the basis of the claim. This holding on the timing component was sufficient to deny jurisdiction under 3148(2) C.C.Q. The Court also held that even if the timing had been different, it did not accept that there was a sufficient connection between the activities of the vice president in Montreal and the actions underlying the claim to satisfy the requirements of the provision.

The reasoning on art. 3136 C.C.Q. and the forum of necessity, however, are directly relevant to human rights litigation in an international context. Indeed, one of the challenges of this type of litigation is precisely the difficulty of finding a forum willing to hear the claim and able to adjudicate it according to basic principles of fundamental justice. In the Anvil case, the victims had initially sought to bring a claim in the country where the injuries were inflicted and suffered. While the first instance court had accepted evidence from a public source according to which that process was tainted, the Court of Appeal appeared to give preference to the defendant’s expert evidence (see para. 100).

The Court of Appeal does not quote from that expert’s evidence whereas the trial judge’s reasons contain a long extract of the affidavit. And while the extract does not include the statement referred to by the Court of Appeal, it does include a statement according to which an acquittal in a penal court is res judicata on the issue of fault in a civil proceeding based on the same facts.

The obvious alternative forum was in Perth, Australia, where the defendant company had its headquarters (and therefore its domicile under Quebec law). There too the victims had sought to bring a claim but were apparently unable to secure legal representation or pursue that avenue due to allegedly unlawful interference by the defendant and government parties in the Republic of Congo. While the first instance judge had accepted the plaintiff’s evidence that Australia was not an available forum, the Court of Appeal quickly dismissed this finding, without much discussion.

Finally, the Court of Appeal returned to its initial findings regarding the interpretation of art. 3148 C.C.Q. to conclude that there was, in any event, an insufficient connection between Anvil and Quebec to meet that condition for the exercise of the forum on necessity jurisdiction. The court did not consider that under art. 3136 C.C.Q. it is unlikely that the timing of the connection should be the same as under 3148(2) C.C.Q. given the exceptional nature of the former basis for jurisdiction and the likelihood that the connections to the forum of necessity could arise after the facts giving rise to the claim.

The decision of the Court of Appeal in Quebec is disappointing in so far as its interpretation of the forum of necessity provision in the Civil Code of Quebec is quite narrow, particularly as regards the condition of a connection with Quebec; moreover, its application of the provision to the facts of the case deals rather summarily and dismissively with findings of fact made by the first instance judge without sufficient justification for its rejection of the evidence provided by the plaintiff and relied upon by the trial judge. Given the nature of the claims and of the jurisdictional basis invoked, it was incumbent on the Court of Appeal to provide better guidance for future plaintiffs as to what type of evidence will be required to support an article 3136 C.C.Q. jurisdictional claim and to what extent trial court findings in relation to such evidence will be deferred to in the absence of an error of law.