Converging expectations at home and abroad
Occupational Health and Safety (OHS) is a core component of any Corporate Social Responsibility (CSR) strategy for Canadian mining companies, in Canada and abroad.
Domestically, occupational health and safety is governed by provincial and federal laws and regulations. In Ontario, occupational health and safety legislation establishes an “internal responsibility system” approach to regulation, necessitating the development of OHS management systems, including policies, procedures, training and other due diligence steps, with the objective of taking every precaution reasonable in the circumstances to protect the health and safety of workers. With the introduction into law of Bill C-45, OHS has also been addressed in the Criminal Code of Canada, creating the potential for criminal liability for injuries or deaths in the workplace.
For Canadian miners doing business abroad, particularly in countries that do not have an effective regulatory system, other standards beyond domestic laws may be relevant.
The Canadian Government’s CSR Strategy for the Extractive Sector (the “CSR Strategy”) endorses the International Finance Corporation (“IFC”) Performance Standards on Environmental and Social Sustainability (the “IFC Performance Standards”), which contain detailed expectations regarding OHS.
For example, IFC Performance Standard Two, Labour and Working Conditions, establishes an overarching obligation on adherents to provide a safe and healthy work environment, including management of physical, chemical, biological and radiological hazards, as well as gender specific threats, in the workplace.
This necessitates the identification of potential hazards in the workplace and taking steps, including incident investigation, to eliminate them. Where elimination is not possible, other steps are required to manage identified hazards, such as the use of personal protective equipment.
In addition, IFC Performance Standards compliant OHS management systems should address training, documentation and monitoring of OHS in the workplace. Compliance with the OHS elements of the IFC Performance Standards will also involve the application of “Good International Industry Practice” (GIIP), and the development of OHS management systems, which usually means the Environmental, Health and Safety Guidelines established by the World Bank (the “EHS Guidelines”). The EHS Guidelines provide a very detailed set of industry specific standards, including those dealing directly with mining operations.
In addition to the OHS specific provisions of IFC Performance Standard Two, IFC Performance Standard Four details additional standards for protecting Community Health, Safety and Security. This includes developing emergency preparedness and response plans, monitoring community exposure to hazards and disease agents and ensuring the management of security personnel vis-à-vis their interactions with the community.
Community security is also identified in the CSR Strategy as a human rights issue, addressed by other standards endorsed by the Government of Canada, namely the Voluntary Principles on Security and Human Rights and the Guiding Principles on Business and Human Rights.
These standards are, by virtue of the CSR Strategy, part of the Government of Canada’s CSR expectations for Canadian mining companies operating outside of Canada, particularly in developing countries. They are also reflected in international legal instruments such as the Occupational Safety and Health Convention, 1981 (No. 155), or the Safety and Health in Mines Convention, 19995 (No. 176), promulgated by the International Labour Organisation (ILO).
Importantly, mining companies seeking financing for their operations in emerging markets may be also be contractually required to comply with these standards by their financiers. This will be true where financing is provided by Equator Principles Banks, the IFC or certain Export Credit Agencies governed by the OECD Common Approaches.
Looking ahead, the application of such international standards could become the subject of disputes within Canada. This could occur through non-judicial grievance mechanisms such as the complaints process of the CSR Counsellor for the Extractive Sector or the Canadian National Contact Point for the OECD. There is also emerging case law in Canada that could conceivably see judicial claims for negligence against Canadian companies, concerning activities outside of Canada that lead to harm against foreign nationals. While such case law is far from settled, the possibility of such claims is sufficient to make the application of international standards by Canadian companies outside of Canada legally relevant.
While the benchmark for performance may be set by local law, international standards, or contractual terms, there is clear convergence towards industry best practices in OHS management no matter where a company operates.