Canada’s National Contact Point final statement – B2GOLD and Notifiers X & Y
- On March 15, 2021, the Canadian National Contact Point (NCP) received a Request for Review (RfR) from Mr. Z, an agent representing Mr. X (Notifier) and Mr. Y (Notifier as associate to Mr.X) Footnote 1 . The RfR was filed against Canadian company B2Gold (Respondent) and its Nicaragua subsidiary, Triton Minera, concerning alleged illegal mining on Mr. X’s land.
- As per its procedures, the NCP Secretariat conducted an Initial Assessment and reviewed all the documentation provided by the Notifiers and the Respondent. On May 20, 2021, the Initial Assessment was submitted to the working group responsible to examine the RfR and formulate a recommendation to the NCP Committee.
- Based on the working group recommendation, the NCP concluded that while the submission was material in the sense that it referred to alleged breaches of specific provisions of Chapters III (Disclosure) and VI (Environment) of the OECD Guidelines, the Notifiers had not substantiated their allegations by providing the necessary information for the NCP to consider that the issues merited further examination. The NCP Committee came to the decision to not offer good offices as criteria II, IV, V, VI of the OECD Guidelines were not met.
The Request for Review and the Parties
- The Notifiers in this case are Mr. X, landowner of the property located in Nicaragua, and Mr. Y, business partner of Mr. X. B2Gold, the Respondent, is a Canadian mining company incorporated in British Columbia and based in Vancouver. It is a public company listed on both the Toronto Stock Exchange and the New York Stock Exchange. B2Gold acquired Central Sun Mining in March 2009. At the time of that acquisition, Central Sun was the indirect owner of Triton Minera, the Nicaraguan subsidiary. The acquisition took place after the two-year lease of the property in question expired in October 2008.
- The allegations brought forward relate to alleged illegal mining following the termination of the two-year lease which had previously given Triton Minera access to Mr. X’s property, mining concession and the right to perform mining exploration. The lease agreement was signed in September 2006 between Mr. X and Triton Minera.
- Although the OECD procedural guidelines and Canada’s NCP procedures do not contain any time limits to bring a case, the NCP notes that the issues raised occurred between 2010 and 2015. These are:
- Trespassing and illegal exploitation of the mining concession, property of Mr. X.
- Illegal extraction of ore from the surface of Mr. X’s property.
- Failure to undertake the environmental remediation of a sinkhole created by Triton Minera’s underground exploitation under Mr. X’s land.
- The Notifiers alleged that the Respondent violated the following chapters of the OECD Guidelines: Concepts and Principles (I); General Policies (II); Disclosure (III); Human Rights (IV); and, Environment (VI).
- The Notifiers asked the NCP to facilitate a dialogue between themselves and the Respondent for the purpose of resolving the issues raised in the RfR.
- The Respondent noted that the Lease had expired on October 19, 2008, that it contained a term expressly relieving Triton Minera from “all civil liability or damages in the event that Triton Minera decided not to buy in the agreed terms”, and that it sold its shares in Triton Minera to Calibre on October 15, 2019 and had no knowledge of events after that date
- The Respondent noted no claims against B2Gold or Triton Minera had ever been commenced in the Nicaraguan legal system relating to the property.
- The Respondent noted that legal actions in the Ontario courts were dismissed. Specifically, on July 28, 2016, the Notifiers filed a Notice of Action against B2Gold in the Ontario Superior Court of Justice. A series of legal proceedings in the Ontario courts followed, resulting in the Court of Appeal of Ontario dismissing an appeal (lodged in February 2017) on May 3, 2017.
Initial assessment by the NCP
- The Notifiers and the Respondent were each given the opportunity to provide clarification and supporting documentation that were taken into account to formulate the initial assessment. Both parties were also given the opportunity to comment on the substance of the initial assessment before it was submitted to the Working Group.
- The initial assessment evaluated whether the issues raised were bona fide and relevant to the implementation of the Guidelines, taking into account the criteria listed in the NCP Procedures Guide and the OECD Procedural Guidance. These criteria are cumulative, meaning that if the case fails to meet one or more criteria, it is not accepted:
- the identity of the party concerned and its interest in the matter;
The NCP notes: The Notifier X is presumably the owner of the land where the allegations have taken place and the Notifier Y has provided evidence that he is partner with Mr. X. As such, both of them appear to have a legitimate interest in this specific instance. It must, however, be noted that two other parties from the Nicaragua Resistance organisation claim ownership of the land, as indicated in an administrative decision issued by the Director of Mines on January 21, 2016.
- whether the issues are material and substantiated;
The NCP notes:
- The documentation provided does not support the allegation that the Respondent, nor any related subsidiary or sub-contractors, trespassed on the land of Mr. X and illegally extracted gold.
- The restraining orders issued by the courts in Nicaragua are not directed at the Respondent nor any related subsidiary or sub-contractors.
- To establish the likelihood that the volume of processed ore reported in the Respondent’s 2011 annual report did not solely originate from the Talavera concession (owned by B2Gold) would have required an investigation in 2011 and cannot be based on assumptions.
- The Notifiers claim that the Respondent has refused to dialogue with them to reach an agreement, however the NCP was provided with correspondence demonstrating the Respondent was prepared to purchase part of the land, therefore an exchange took place.
- The allegations of environmental damages cannot be substantiated with the pictorial evidence provided by the Notifier. As part of its regular assessment process, the NCP noted that these pictures were not supported with geographical positioning information. Also, as indicated in an administrative decision issued by the Director of Mines, on January 21, 2016, the April 2011 inspection did not reveal the existence of mining operations at the time. The NCP is not in a position to reassess regulatory or administrative decisions.
- whether there seems to be a link between the enterprise’s activities and the issue raised in the specific instance;
The NCP notes: There is a link between the Respondent’s activity and the issues raised.
- the relevance of applicable law and procedures, including court rulings;
The NCP notes:
- There is no documentation to the effect that the Respondent has contravened the applicable domestic laws of Nicaragua namely, the Mining and Environmental laws.
- On January 26, 2016, the Director of Mines of Nicaragua ruled that there was no linkage between Mr. X’s allegations and Triton Minera.
- The legal actions put forward by the Notifier in the Ontario courts resulted in the dismissal of the proceedings and dismissal of the Appeal.
- how similar issues have been, or are being, treated in other domestic or international proceedings; and,
The NCP notes: In the light of the legal rulings in Nicaragua and Canada, the NCP is of the view that an offer of good offices would not make a positive contribution to the resolution of the issues raised.
- whether the consideration of the specific issue would contribute to the purposes and effectiveness of the Guidelines.
The NCP notes: The NCP is of the view that an offer of good offices would not make a positive contribution to the resolution of the issues raised nor to the effectiveness of the Guidelines.
- the identity of the party concerned and its interest in the matter;
- The NCP concluded that while the submission is material in the sense that it refers to alleged breaches of specific provisions of Chapters III (Disclosure) and VI (Environment), the Notifiers have not substantiated their allegations by providing the necessary information for the NCP to consider that the issues merit further examination. The Canadian NCP Committee came to the decision that it will not offer good offices as criteria II, IV, V, VI have not been met.
- It is important to note that an NCP initial assessment is not a determination on whether or not the corporate behaviour or actions in question were consistent with observance of the OECD Guidelines, although the NCP can make such a determination at its discretion during an NCP process. The initial assessment is to determine whether or not the NCP considers that an NCP-led dialogue between the parties could be useful to resolve disputes related to the issues.
Annex A: Key timelines (2021)
- March 15, the NCP received a duly completed request for review from Mr. Z, the agent of Mr. X and Mr. Y.
- March 22, the NCP notified the respondent of the request for review.
- March 31, the Respondent’s external legal counsel contacted the NCP to request an extension on the deadline to provide the company’s input. Based on the volume of documents to analyse, the extension was granted until April 20.
- April 16, the NCP spoke with Mr. Y to clarify the allegations. It was therefore established that the specific allegations were: Illegal exploitation of the concession, illegal extraction of ore from the surface of the property and failure to undertake the environmental remedy of a sinkhole created by B2Gold’s underground exploitation.
- April 20, the NCP received the Respondent’s response.
- May 20, the initial assessment was submitted to the working group to analyse the case and formulate a recommendation to the NCP Committee.
- June 15, the NCP Committee approved the recommendation not to offer good offices.
- June 15, the NCP Secretariat communicated the decision to the parties.
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