Introduction
The legal instruments associated with economic globalization, including foreign investment agreements, global markets, and trade agreements, have significantly facilitated foreign resource extraction and imbued it with particular geographic patterns. The majority of mining companies operating globally are headquartered in Canada, making it an important “home country” for companies.Footnote 1 At the same time, almost half of these Canadian companies’ activities take place in resource rich countries in Latin America, sometimes referred to as “host countries.”Footnote 2 The social conflicts that extraction often generates between local communities and foreign companies are increasingly transborder in that they may implicate home and host states, investors, non-governmental organizations (NGOs), lawyers, journalists, and researchers in multiple jurisdictions.
I use the term “transnational mining justice social movement” to refer to the alliances and coordinated practices that result when mine-affected communities search for legal remedies or law reform in collaboration with transborder networks. This article reflects on two of this movement’s key law reform projects in the last twenty years: Indigenous peoples’ right-to-consultation/consent legislation in Latin America and right-to-remedy legislation in Canada.Footnote 3 In undertaking this reflection, I draw on my experiences and observations accumulated over more than ten years participating in the movement, as a Canadian advocate, lawyer, and academic, who has also lived and worked in Latin America.Footnote 4 My participation in the movement has included academic publications alongside close work with civil society organizations in Canada and Latin America on legal cases, as well as advocacy for the law reforms and/or the underlying rights claims that I study here.Footnote 5
In the first part of the article, I refer to literature on social movements in order to identify the political and institutional aspects of the mining justice movement’s engagement in law reform activism as a means for changing the terms, conditions, and relations of neo-liberal globalization that characterize the dominant model of resource extraction.Footnote 6 Advocates and affected communities have argued that the state’s regulation of transnational mining is inadequate and that mining companies are not properly held to account for harm that may flow from their actions and operations.Footnote 7 They argue that companies are able to violate human rights and degrade the environment with impunity while unjustly accumulating enormous wealth. They believe that states and companies have repressed legitimate critiques of, and opposition to, these practices.Footnote 8 This compels them to employ a range of political and legal tactics, including a turn to law reform advocacy in an effort to address their concerns. While my social movement approach highlights the significance of the movement’s fundamental normative positions, it does not presume consensus on the goals or the appropriate strategies or tactics.Footnote 9
In the second part of the article, I examine the mining justice movement’s efforts to advance two related justice-oriented law reform agendas in both home and host countries. The first achievement builds on advances in the inter-American human rights system with a body of jurisprudence, first initiated in 2001, that recognizes Indigenous collective property rights, including in relation to resource extraction. As countless resource-related protests, blockades, and domestic lawsuits unfolded across the Americas, several Latin American countries passed national legislation beginning in 2011 that purported to codify Indigenous communities’ rights to free, prior, and informed consultation in relation to government decision-making about resource extraction.Footnote 10 The second, related achievement profiled here follows a similar temporal trajectory, albeit in the northern half of the Americas. In the late 1990s, the question of effective remedies for harms caused by Canadian resource companies overseas became a topic of discussion in Canada among federal public officials, and, beginning in 2005, it became the subject of a series of law reform proposals and federal policy statements. These efforts culminated in 2019 when the Canadian government created the Canadian Ombudsperson for Responsible Enterprise (CORE), a mechanism that purports to improve access to remedies for individuals and communities harmed by the overseas operations of Canadian companies.
While acknowledging these important achievements, my concern in this article is also with the limitations of these reforms (at least to date) from the point of view of the objectives of the mining justice movement and the advocates and communities who have pushed for these changes. After nearly twenty years of sustained and focused transnational activism on these issues, research and critical analysis indicate that the resulting law reforms fall short of generating material and meaningful improvements in the circumstances of the communities they seek to benefit. Given the powerful social and political mobilizations behind these reforms, this observation compels deeper inquiry and reflection in an effort to more fully conceptualize and explain these achievements and limitations.
With an analysis that brings my chosen case studies into conversation, I identify three key themes in the movement’s law reform outcomes that signal the persistence of problematic classical liberal and neo-liberal ideologies and legal forms.Footnote 11 These are: (1) a formal equality view of relations between companies, communities, and civil society actors (formalism); (2) a view of state and company obligations as voluntary/unenforceable (voluntarism); and (3) a view of the state as a private actor, solely or primarily concerned with promoting private economic interests, instead of as a public regulator acting in the public interest (privatism). To the extent that the movement has sought to address these three issues at the outset in its law reform proposals, it has been unsuccessful in influencing the final result, fashioned and approved by lawmakers.
In the third part of the article, I review the work of theorists across the disciplines of political science, law and society, history, and international relations who are similarly interested in examining how progressive political projects engage in legal activism in their efforts to create a more just society. I identify three frameworks that grapple with this issue: (1) pragmatism; (2) left critique / critical legal liberalism; and (3) counter-hegemony. Under the banner of each approach, the theorists reviewed in this section share a common interest in activists’ use of liberal legal constructs to pursue political projects built upon principles and values that are critical of some of liberalism’s foundational frameworks. This review of each approach is by no means comprehensive but, rather, represents a sampling of key concepts, priorities, and critiques.
My approach to each theoretical framework follows a similar method. I begin by summarizing the contribution of each author in order to identify key points of consensus and debate. With this foundation, I put each theoretical approach into dialogue with my empirical observations about the mining justice movement’s law reform efforts (described in the second part). The objective of this exercise is to draw insights from each approach in order to better understand the achievements and limitations that emerge from the mining justice movement’s twenty-year experiment with law reform-oriented activism. This article’s transnational lens on the movement’s sustained engagement with domestic law reform in Canada and Latin America offers an important opportunity to examine law’s potential as a tool in the pursuit of a more just global economic system. The successes of the activists studied here deserve recognition and celebration, while their setbacks warrant careful reflection. In conclusion, I reflect on the common themes and debates that cut across all three theoretical traditions, and I explore potential pathways forward in light of my reflection on the experiences, knowledge, and strategies accumulated by the mining justice movement to date.
Transnational Lawyering and the Social Movement Context
Social movement lawyers agree that one’s approach to lawyering must be informed by the nature of the actors and the issues at play.Footnote 12 This position stands against an approach that articulates the legal professional’s tasks and obligations in accordance with a generic set of standards and procedures, regardless of context. In their work on “cause lawyering,” Austin Sarat and Stuart Scheingold argue that conventional ideas of legal professionalism are challenged where a lawyer has a personal commitment to the cause underlying the legal work being performed.Footnote 13 They further assert that when “cause lawyers” begin to work for social movements, the departure from conventional approaches to lawyering becomes even more profound and complex.Footnote 14
Sarat and Scheingold rely primarily on the work of Charles Tilly to define a social movement in terms of its ability to generate a “sustained series of interactions between power holders and persons successfully claiming to speak on behalf of a constituency lacking formal representation.”Footnote 15 In Tilly’s conception, these interactions are notable for their capacity to make “publicly visible demands for changes in the distribution or exercise of power.”Footnote 16 Further, in his view, a social movement is also marked by its ability to mobilize public demonstrations of support for its demands. To this definition, Sarat and Scheingold add that social movements are “concrete and embodied” in the people, organizations, and actions that constitute them.Footnote 17 Social movements are also defined by their transcendence of any particular place, event, institution, or individual. Although interest groups (understood primarily as advocacy organizations) participate in, and act as conduits of, social movements, a movement cannot be reduced to these organizations.Footnote 18 Reading Tilly together with the work of political scientist Michael McCann, Sarat and Scheingold take the view that a social movement is an expression (a “collective voice”) of political protest and moral visionFootnote 19 that leads its participants to seek the social and political transformation of their society in the hope of creating a better society.Footnote 20
Drawing on the work of Sarat and Scheingold, it is clear that the actors, concerns, and legal strategies analyzed in this article constitute elements of a broader, and considerably consolidated, social movement, defined in part by its dissent from, criticism of, and/or protest against what are viewed as the unjust consequences of foreign mining activities in developing countries. This mining justice movement is made up of affected communities, faith groups, not-for-profit organizations, labour unions, lawyers, academics, and journalists, located in numerous countries in both the global North and South. No single group or community represents this movement, and groups work together through a series of overlapping and fluid networks. The advocacy and dissent tactics adopted by this movement include civil disobedience, media strategies, letter-writing campaigns, research and report writing, law reform efforts, litigation, complaints to domestic and international bodies, and various kinds of appeals directly to company executives or investors.Footnote 21 The interface between some of these tactics and the law is the precise focus of this study.
This diversity of tactics indicates that the members of the movement have specialized roles and a range of proximities to the issues. Mine-affected communities in the global South, including Indigenous communities, are on the front lines of the impacts of industrial mining. They often receive direct support from local civil society organizations, including not-for-profits, faith groups, and unions. These local groups bear witness to the concerns of mine-affected communities, provide information and resources, and assist in articulating communities’ objectives. Moreover, they often liaise with their civil society counterparts in a developing country’s capital city and/or in the global North, sharing information and developing research, communication, and advocacy strategies. Academics and journalists in both the North and the South are embedded in these civil society relations, with a specialized role due to their training in credible and independent research methods and their capacity to disseminate research and information to the public and policy-makers. Finally, lawyers in the global North and South may work with all of these groups, providing legal advice and translating communities’ concerns into legal claims that have traction with adjudicators, public authorities, and company executives.
In this way, this movement’s actors have been able to sustain interactions with both international and domestic law and policy-makers in multiple jurisdictions as well as in some cases with corporate executives. These interactions have led to a growing list of law reform initiatives in a number of domestic contexts, together with institutional policy and normative responses in diverse international and domestic arenas.Footnote 22 Moreover, these interactions, initiatives, and responses often overlap with the activities of other inter-related movements, including, most notably, those concerned with the intersection between transnational corporate activity and human rights more generally and with other specific industries or sectors, such as, for example, the garment industry. There is also considerable overlap between the mining justice movement and Indigenous peoples’ movements as well as with the environmental and labour movement, especially those elements concerned with other forms of resource extraction, such as petroleum and forestry.Footnote 23
In spite of the overlapping nature of these movements, it is possible to identify a discrete transborder movement specifically concerned with the impacts of industrial mining on communities in the global South and the capacity of these communities and their allies to dissent from these mining practices. This movement appears to coalesce more or less around a critique of neo-liberal globalization, along with a loosely shared moral vision, often articulated with one or more of the following concepts or principles: corporate accountability/responsibility, environmental sustainability, business respect for human rights, and Indigenous rights to consultation, consent, and self-determination. The movement’s central objective is to articulate and implement new ways of formulating the relationship between the corporation, the state (both host and home states), and affected communities in an effort to approximate socio-economic relations and environmental practices that are more just and sustainable. This article focuses on ways in which movement actors have pursued this vision and translated it into concrete legal and advocacy strategies that aim to support two specific rights claims: (1) Indigenous peoples’ right to consultation/consent in relation to resource extraction and (2) the right to remedy for corporate-caused harm in the resource extraction process and related activities such as security operations. As such, my approach here resonates with Sarat and Scheingold’s concept of law as a “useful site for articulating and advancing alternative visions of the good.”Footnote 24
Having characterized in general terms the actors, issues, and normative vision of the mining justice movement, the next step is to evaluate how this comes to bear on the movement’s engagement with liberal legal forms. For Sarat and Scheingold, lawyering with a social movement raises a fundamentally political question: “[W]hat [do] cause lawyers … do for, and to, a social movement[?]”Footnote 25 In this way, they conceive of lawyering as a political and social practice that will come to bear in some way on a political force (the movement) that is already in motion. In their view, law’s utility as a tool for social movements depends on the ability of the movement (and lawyers) to “politicize the law” by strategically exploiting the cultural resonance of rights and legality.Footnote 26
One contribution of this approach is its focus on the movement’s political processes outside of law. Sarat and Scheingold understand social movement lawyering as an essentially political practice, where law is a political resource used by social movements as part of a series of strategic choices in a broader political struggle. This undoubtedly resonates with experiences in the mining justice movement, where communities frequently resort to protest and/or civil disobedience when other channels fail and where specific legal arguments and lawsuits are only one part of a larger set of demands and justice concerns with respect to global resource extraction.
Yet this emphasis on politics outside of law highlights the need for its counterpart. In other words, a full exploration of the mining justice movement’s achievements and limitations requires a theoretical frame that not only captures the politics of how social movements use law in a broader political process, but that also recognizes that the identification and articulation of law by a social movement is itself a political act. In other words, the theoretical perspectives explored in the third part of this article all share a sensitivity to the ways in which lawyering with social movements involves making political and strategic choices both inside and outside of law. In the course of emphasizing the politicization of the law, Sarat and Scheingold seem to take for granted the fundamentally political question of the very content and form of the law. Although they insightfully point out that the lawyer’s effective exploitation of the cultural resonance of legality is crucial for the movement, this point nonetheless circles around equally crucial questions of what law, in what form, and with what consequences for the movement’s vision.Footnote 27
While it is undoubtedly true, as Sarat and Scheingold state, that social movement lawyering significantly involves responding to decisions made by the movement, this study of the mining justice movement reveals that it is not often obvious, especially in the transnational context, what “right” should be claimedFootnote 28 and what form of law should be deployed. As a movement turns to the law, complex decisions must be made regarding how to translate its moral vision into legal argumentation and legal processes. The mining justice movement does not simply seek to access established rights but, rather, is attempting to re-imagine the way that relationships are constituted and regulated in the global economy. Thus, while Sarat and Scheingold’s pragmatic concept of “politicization” is useful in that it calls attention to some of the choices made in a movement’s use of law as a political resource, it does only part of the conceptual work necessary to understand the translation of the movement’s moral vision into legal formulas and strategies.
At this juncture, it is important to once again recognize that opinions have certainly varied among mining justice movement participants about the strategic value of the specific law reform proposals analyzed here.Footnote 29 This highlights the comments above with respect to the political, internally contested, and complex nature of a social movement’s engagement with law. However, this disagreement does not detract from the fact that the proposals studied here are undoubtedly the most prominent developed by the movement over the last twenty years. They reflect a vision that has garnered broad civil society support at key moments, although the eventual state-controlled legal outcomes have been criticized by many movement actors.
In sum, then, two useful insights can be drawn from the work of Sarat and Scheingold. The first is the importance of characterizing the political context and the moral vision of a particular social movement. In response, I have made some general assertions about the mining justice movement. The second insight comes as a reminder to be attentive to the political decisions made by social movements outside of law, which includes the instrumentalization of law. In response, I have added that these decisions are often inextricable from political decisions made inside of law in relation to the form and content of the law to be deployed. This theme will be explored more fully in the third part of this article.
The Transnational Mining Justice Movement: Twenty Years of Law Reform Activism
As indicated, this article analyzes the mining justice movement’s use of litigation and law reform in two key areas. The first area captures an inter-related set of collective legal claims — namely, to communal property rights and Indigenous rights to consultation and consent — that aim to modify the terms and conditions of the state’s prerogative to privatize, and companies’ legal rights to exploit, natural resources. Several Latin American countries are currently leaders among developing countries in the area of constitutional Indigenous rights recognition and related law reform in the area of consultation.Footnote 30 The second area of legal activism refers to efforts to address the potential harm caused by a company’s overseas operations by advocating for the right to effective remedy and accessible mechanisms for redress in a company’s home country. In this area, Canada, as the most important home state for mining companies globally, has been the site of significant law reform debate and innovation on the topic of access to remedies.Footnote 31 Interestingly, law reform debates and new developments in these two areas have unfolded almost contemporaneously in Latin American and Canada.
The interconnections between these two areas of mining justice advocacy make this study all the more pertinent. These efforts have required the transnational mining justice movement to engage in legislative drafting of proposed new administrative and regulatory regimes in Canada and Latin America. In terms of related litigation efforts, lawyers in Canada have focused on bringing civil law claims, while efforts in Latin America have focused on constitutional Indigenous rights claims.Footnote 32 Taken together, these two areas of legal activism have typically involved framing the issues in relation to public international law and in terms of at least four fundamental rights claims: the right to property/land/resources, the right to consultation/consent, the right to free expression and association, and the right to remedy. More specifically, mining-related conflicts are often framed as struggles over the terms and conditions of property relations between companies and affected communities. The issue of control and distribution of land, resources, and wealth is often at the core of contestations over consultation/consent and the very meaning of these concepts. When expressions of critique or opposition to mining are met with repression or coercive practices, activists often frame the issues in terms of the right to free expression and protest. Finally, when social and environmental conflicts escalate and companies become perpetrators of, or are complicit in, harm, the movement has documented the problem of impunity and has invoked the right to remedy as the basis for fashioning novel transnational law regimes.
These inter-related rights claims, and the law reform efforts they underpin, are an important site of analysis because together they have constituted a dominant mode of political engagement by activists and local communities with the social justice issues raised by transnational resource extraction. In the remainder of this part, I draw on previous studies to synthesize and integrate my findings with respect to the strategies, challenges, and contradictions generated by activists’ invocation of the aforementioned rights in an effort to advocate for the law reforms referred to above. Not only does this involve distilling the content of these rights claims, but it also requires assessing the efficacy of these law reform strategies from the perspective of mining-affected communities, their justice concerns, and the aforementioned moral vision of the movement. Drawing on my findings in a larger body of work, I analyze the ongoing presence of problematic liberal and neo-liberal ideologies and legal forms in the state-controlled laws that have resulted from the movement’s efforts.
indigenous rights recognition and law reform in latin american “host” countries
The intensification and expansion of resource extraction in Latin America since the early 2000s has provoked opposition from many Indigenous peoples and affected communities. States and companies have not managed this opposition constructively, and Indigenous leaders and human rights and land defenders have often faced threats, violence, and repression.Footnote 33 Communities and whole regions have often concluded that they have no choice but to resort to protest and civil disobedience in order to defend their interests, environment, and livelihoods. Alongside this phenomenon, and in response to litigation, inter-American human rights bodies and Latin American constitutional courts began to recognize a range of Indigenous rights in relation to resource extraction.Footnote 34 Beginning in 2011, and typically in response to protest, a handful of countries in the region enacted Indigenous right-to-consultation legislation, often specifically focused on resource-related decision-making. These major achievements in the areas of judicial recognition and law reform represent a relatively rapid transformation of the normative landscape in the Americas in relation to Indigenous peoples, territory, and resources.
However, close and applied study reveals that these normative advances in Latin America in the areas of free, prior, and informed consultation/consent, collective property, and equitable compensation are precarious in practice, especially in relation to foreign resource extraction. One fundamental issue is that the recognition of these rights in constitutional and/or international law has for the most part ignored the question of how they might be claimed and enforced in practice.Footnote 35 Critically, rights recognition has not included related reforms to the procedural rules that establish the specific processes whereby Indigenous rights might be claimed and potentially enforced. This observation applies to both the inter-American legal system as well as Latin American constitutional law.
Inter-American human rights law requires Indigenous communities to exhaust internal remedies before bringing a petition to the Inter-American Commission on Human Rights or the Inter-American Court of Human Rights (IACtHR) against a member state. However, in practice, communities often find it extremely difficult to identify and/or access appropriate domestic remedies or pathways to remedies. If communities seek an exception to the exhaustion of remedies rule for the purposes of pursuing their claim in the inter-American system, they then incur the additional evidentiary burden of proving the lack, or inadequacy, of appropriate domestic remedies. If communities pursue their rights claims before domestic courts, among other obstacles, they will undoubtedly encounter generic constitutional procedures that are not designed to account for the historical, social, cultural, and economic contexts that inform Indigenous peoples’ rights violations. In turn, this affords the courts discretion to impose onerous and inequitable procedural requirements on Indigenous claimants. For example, there are often few, if any, legal safeguards to prevent courts from resorting to formal/strict interpretations of procedural rules like limitation period requirements, with the effect of blocking substantive analysis of Indigenous rights claims.Footnote 36
These deficiencies and oversights create serious obstacles for Indigenous peoples in Latin America who seek to assert their constitutional and internationally recognized rights in legal venues that are binding on their state governments: domestic courts and the IACtHR. In contrast to the intensity of the social conflict between Indigenous communities and resource companies, communities have brought relatively few cases to the courts, and even fewer have been successful. For example, while Indigenous communal rights to property and self-governing institutions have been recognized in Peruvian constitutions since the 1970s, it was not until 2008 that the Peruvian Constitutional Court issued its first Indigenous rights-related decision in a case where it recognized Indigenous peoples’ constitutional right to consultation. To date, almost every Indigenous right-to-consultation and right-to-property case decided by the Court has been brought as a challenge to national legislation by a group of NGOs or an association of Indigenous organizations. In other words, there are almost no cases to date where Peru’s Constitutional Court has issued a decision determining the rights claim of a specific Indigenous community in relation to a specific resource extraction project.Footnote 37
A similar pattern is observed in the inter-American system, which suggests that the absence of Indigenous communities as domestic litigants in their own rights cases is a regional/systemic issue. Between 2001 and 2015, approximately eleven Indigenous or Afro-descendant property and/or consultation/consent rights-related petitions against seven South and Central American member states were admitted, although not all have been the subject of decisions on the merits.Footnote 38 Not only is this less than one case a year for the entire region, but missing from this time frame are also many countries with large Indigenous populations, including Colombia, Peru, Brazil, and Mexico.
As such, a situation has emerged in which there is relatively widespread legal or constitutional recognition of Indigenous legal rights to communal property but comparatively few examples of these rights being invoked by specific communities in domestic legal proceedings. While a full examination of the reasons for this situation is beyond the scope of this article,Footnote 39 it is clear that the progressive international recognition and domestic constitutionalization of Indigenous rights in Latin America has not been accompanied by the development of accessible and equitable procedures for enabling claims brought by specific communities in relation to specific foreign-owned resource extraction projects.
Adding to the inequities and obstacles that Indigenous peoples encounter in accessing domestic and international courts for the purposes of making property and consultation/consent rights claims, a second fundamental issue arises from the experience across South America with the codification of the right to consultation in national legislation. This refers to the emergence between 2011 and 2015 of statutes in four Andean countries (Bolivia, Ecuador, Colombia, and Peru) that establish mechanisms and rules to govern state consultations with Indigenous peoples in relation to, inter alia, proposed resource extraction projects.Footnote 40 There is now an abundance of empirical research (field work) and positive law analysis that evidences the grave deficiencies in these statutes.Footnote 41 Indeed, the negotiations between Indigenous communities, their allies, and the state that led up to the creation of these statutes were fraught with political conflict, and, in some cases, communities and allies withdrew from the process in protest.Footnote 42
There is also broad consensus that consultation processes in the region, implemented pursuant to these laws and regulations, have failed to ameliorate profound power disparities and information gaps. This includes poorly designed processes and the lack of accessible and adequate information, together with inadequate or non-existent safeguards and oversight of agreements reached between communities and private or state actors. As such, there are few, if any, examples of consultation processes and resulting agreements that meet the standards required by international human rights law.Footnote 43 One sign that business as usual appears to continue in Latin America, in spite of the recognition of Indigenous peoples’ rights and related consultation legislation, is the reality of ongoing social conflict and violence that surrounds resource extraction in the region.Footnote 44 Moreover, there is an unfortunate compounding impact between the problems with consultation and consent/agreement legislation and the problem of inequitable and inappropriate procedural rules that function as gatekeepers to substantive judicial scrutiny of Indigenous rights claims. As described above, research indicates that legal and political conditions in many Latin American countries generate a serious risk that Indigenous communities may enter into agreements with state entities and/or resource companies in the absence of full information and knowledge of the meaning and significance of the agreement, without a variety of safeguards, and sometimes as a result of inappropriate or illegal tactics on the part of companies and/or state officials. When this occurs, communities may find it difficult or even impossible to resort to the courts to challenge inequitable consultation processes and/or illegitimate “agreements” due at least in part to the lack of appropriate procedural pathways to access the courts for Indigenous rights claimants.
This analysis signals that Indigenous rights recognition and consultation legislation have not necessarily resulted in the achievement of concrete and substantively positive results for affected communities. This article does not presume to explore all of the complex, multifaceted and contextual reasons for this. As indicated above, the analysis developed here is primarily conceptual in that it is narrowly focused on the content and form of the law reforms that have resulted from the movement’s activism.
In this regard, one relevant observation is the fact that these reforms have ultimately required Indigenous communities and their advocates to translate their concerns into the classical liberal legal frameworks of property rights and contract/free choice. When land is taken and agreements are broken or misunderstood, human rights law has required Indigenous peoples to package their justice concerns as alleged violations of procedural obligations to consult, of communal property rights, and/or of contractual obligations in relation to benefit agreements. Researchers have observed that in both the implementation of the right-to-consultation legislation as well as in the judicial interpretation of procedural rules that govern the admissibility of rights claims, existing laws have allowed state and company authorities to adopt a formal equality stance to circumscribe the scope of consultations or to preclude Indigenous rights claims alleging violations from being heard on the merits.Footnote 45
Added to this, right-to-consultation legislation to date has not included mechanisms that enable Indigenous peoples to effectively enforce resulting agreements with government or to challenge deficient consultation processes in the courts. In other words, the codification of the state’s obligations to recognize consultation rights and seek agreements has paradoxically left the effective enforcement of this obligation unaddressed. Importantly, this reality of weak or inexistent enforcement mechanisms for state actors is consistent with the standard treatment of company obligations to consult and respect Indigenous rights as a matter of voluntary or discretionary corporate social responsibility (CSR). Legislative advances in Latin America to date have not directly addressed the legal obligations of companies in relation to Indigenous peoples and their consultation rights. For example, the formation of industry—Indigenous agreements remains entirely unregulated.Footnote 46 These weaknesses in the regulation/enforcement of Indigenous peoples’ legislated rights to consultation vis-à-vis private and public actors exist in combination with the absence of appropriate procedural pathways for the judicial enforcement of Indigenous constitutional rights. When these gaps and deficiencies are viewed in combination, state and company obligations to consult Indigenous peoples and respect their land and natural resource-related rights are potentially rendered inaccessible and unenforceable in practice, even in the face of positive law recognizing these rights.
There is another common thread between the shortcomings of Indigenous rights principles and jurisprudence, as recognized by international human rights bodies and Latin American constitutional courts, and the creation of statutes that codify Indigenous consultation processes in the context of proposed resource extraction. The research cited in this part reveals that reform in both of these areas has insufficiently accounted for the significance of social context, power, and epistemology in determining how positive law becomes meaningful and emancipatory in practice. Judicial recognition and statutory reforms to date have not adequately contended with the problem of power and the reality of the long-standing and radical economic deprivation/exploitation, and the social and cultural domination, of Indigenous peoples at the hands of public authorities and private actors. This context has serious implications for how knowledge and agency are conceptualized within the legal constructs of property, contract, and consultation, which are fundamentally predicated on the presumption/possibility of free and informed choice (consent).
right-to-remedy “home” country law reform in canada
A second major area of law reform activism taken up by the transnational mining justice movement focuses on the responsibilities of capital-exporting “home states” to ensure that adequate remedies are available to those in developing countries who are harmed by their companies’ overseas operations. The discussion of law reform in Canada in this area first began in the late 1990s, intensifying after 2005, and is ongoing. The bulk of these discussions to date and various concrete proposals have focused on the creation of non-judicial state-based grievance mechanisms in Canada comprising administrative bodies created by the Canadian (federal) government and empowered to receive and investigate human rights complaints with respect to the overseas operations of Canadian resource companies.Footnote 47 Within the framework of international law, calls for this kind of mechanism have invoked the human rights concepts of the victim’s right to a remedy and the state’s duty to protect human rights.Footnote 48
Advocates have employed a range of strategies to support their argument that Canada should create this kind of grievance mechanism. This includes extensive empirical and documentary research to establish that Canadian mining companies are credibly linked to a range of human rights violations in connection with their overseas operations.Footnote 49 Advocates have further sought to uncover certain forms of Canadian government economic and political supports for companies that are the subject of serious allegations. Added to this, they have undertaken a variety of strategies to establish that existing remedies and mechanisms in Canada are inadequate.Footnote 50 Finally, advocates have brought these concerns to international human rights tribunals, which have in turn issued numerous statements that together establish an emerging consensus that Canada has a duty to ensure access to effective remedies in Canada for harms caused by its corporate nationals abroad.Footnote 51
Initially, the Canadian government responded by creating two different mechanisms, the Canadian National Contact Point (in 2000) and the Corporate Social Responsibility Counsellor (in 2009 and 2014), each with a similar mandate to receive complaints and mediate with the consent of the parties. The standards to which these mechanisms refer are non-binding, and they both lack the appropriate power to investigate, to make findings of fact, or to require action or remedy from any party. Numerous studies and international bodies have concluded that these two mechanisms are not effective in providing remedies for alleged harm, resolving conflicts, or improving the situation of mine-affected communities.Footnote 52
As a result, the mining justice movement in Canada proposed creating an ombudsperson with the power to fully investigate alleged human rights violations perpetrated by Canadian industries overseas. The proposed ombudsperson would be empowered to compel the participation of the respondent company (including through the production of documents), to make findings of fact, and to make these findings available to the public. The ombudsperson would also have the power to make recommendations, to the company with respect to reparations or other actions linked to remedies, as well as to government with respect to appropriate responses or policies, including potentially withdrawing financial and political support for a company found responsible for a violation. In this proposal, financial support referred to loans from Export Development Canada (EDC) (a Crown corporation), and political support referred to diplomatic support through embassies and trade officials. Significantly, in their proposal, civil society groups decided not to demand that the proposed ombudsperson have the power to enforce remedies or sanctions.Footnote 53 Thus, advocates made a strategic choice to orient their proposal towards strong investigatory powers and transparency provisions, with weak or no enforcement power. As such, the worst direct outcome for a company under the proposed regime would have been a negative final report and the loss of certain federal government supports. The company could have continued to operate in Canada under provincial law and therefore could have ignored the recommended remedies.
There was much celebration in early 2018 when the Canadian government publicly announced its intention to create the CORE with a number of key features that aligned with the civil society proposal. This was an extraordinary step forward after many years of government resistance and inaction. However, the status of this achievement quickly fell into question. Following this announcement, the government faced intense opposition from industry representatives who lobbied vigorously against the government’s planned approach.Footnote 54 After fifteen months of delay, in April 2019, the Prime Minister’s Office finally created the CORE through an Order-in-Council.Footnote 55 However, the details revealed that the government had stripped the CORE of all of the features that would make it effective. The CORE as created is not independent from government, has no power to compel the production of documents, and has no power to enforce remedies or sanctions.
Perhaps most shocking, the mandate of the new CORE included provisions that would have allowed companies to file complaints, and seek remedies, against civil society groups for “unfounded human rights allegations.” Unfortunately, this kind of provision is not new to Canadian policy in this area, as a version of it first appeared in the 2009 policy framework that informed the creation of Canada’s first Corporate Social Responsibility Counsellor.Footnote 56 While the government ultimately decided to remove this provision from the CORE’s terms of reference about six months later,Footnote 57 its decision to adopt such a provision in both the 2009 and initial 2019 versions of its framework is deeply troubling for at least two reasons.
First, there is strong evidence that companies are more than capable of availing themselves of existing civil laws available to seek remedies for unfounded allegations.Footnote 58 Moreover, it is well documented that companies are willing to abuse defamation laws to silence their critics.Footnote 59 Indeed, in recent years, several Canadian provinces have enacted legislation to address this problem.Footnote 60 As such, there is no basis for the government’s apparent conclusion that companies are suffering from inadequate remedies or access to justice problems vis-à-vis their critics. Second, the government’s decision to allow companies to use the ombudsperson to complain about human rights activists cynically contorts a mechanism whose ostensible purpose was to address the problem of inadequate remedies for human rights abuses perpetrated by transnational companies in developing countries. This contortion reflects a logic of false equivalence (or formal equality) between companies, on the one hand, and affected communities and human rights activists, on the other. This formalist approach negates the well-documented problem of corporate impunity and the economic, legal, and political power imbalance between corporations and those affected by their operations.
The extensive work of the mining justice movement in advocating for access to remedies in Canada has made a significant contribution to raising the profile of these issues, in conceptualizing law and policy responses, and in shaping the international law conversation. Notwithstanding these major achievements, at present, the outcome of these efforts is rather dismal. After nearly two decades of extensive research, numerous reports, strong statements from international human rights bodies, and significant debate and discussion at the federal level, including in Parliament and at parliamentary committee hearings, advocates have been unable to convince the Canadian government to create an effective home-state non-judicial grievance mechanism. In spite of election promises, and even public commitments once in power, federal political leaders have reneged and remained unwilling to create an investigatory body that is independent and has adequate power to acquire the relevant evidence, ensure that harms are remedied, and require government to halt support for problem companies. Civil society organizations were so appalled by the end result that, in 2019, they collectively resigned in protest from the government-created Multi-Stakeholder Advisory Board.Footnote 61
Like the Latin American case study referred to above, this Canadian case study forces the question of why the sustained advocacy and mobilization of this social movement over nearly two decades has thus far been unable to achieve law reform results that approximate its goals and vision. As before, this article’s analysis of this complex question is conceptual and by no means comprehensive. It does not even begin to flesh out and analyze the larger political, legal, and economic contexts that have impacted this outcome, such as, for example, the role of corporate lobbying.Footnote 62 At this stage, the discussion is limited to some narrow, albeit important, observations about the strategic and conceptual choices that advocates have made to date in their law reform efforts in Canada.
As mentioned, for the past decade, some proponents of corporate accountability have devoted significant effort to pursuing the idea of a Canadian federal agency empowered to receive complaints from alleged victims of human rights abuses in connection with Canadian resource extraction projects abroad. These advocates have argued that this agency, or ombudsperson, must be independent from government and must have the power to undertake mandatory and thorough investigations followed by public reporting requirements. Some advocates calculated that the Canadian government would be more likely to create an agency with these features alone, than one with additional enforcement powers. Likewise, they focused on advocating for an ombudsperson with the power to make policy recommendations to government, including for the withdrawal of financial and political support for problem companies. In this civil society proposal, the agency could pursue judicial review of government inaction in response to the ombudsperson’s recommendations.Footnote 63 These strategic trade-offs meant that the civil society proposed mechanism would have been weaker than Canada’s existing federal and provincial human rights bodies with a territorial focus.Footnote 64 The proposal also fell significantly short of the emerging international consensus on what is required for home-state non-judicial mechanisms to be effective in relation to the objective of remedying the harms that flow from transnational human rights violations.Footnote 65 Yet even this compromise proposal has not gained traction with the Canadian government and industry.
This summary helps isolate two defining characteristics of the pragmatic approach to law reform adopted by proponents of the ombudsperson proposal. The first is a pragmatic approach to regulation. As mentioned, some advocates intentionally avoided advancing proposals that included an agency with the power to enforce remedies and sanctions.Footnote 66 As a result, these proposals adopted a self-regulation or voluntary approach when it comes to remedy for harm. I refer to this as a pragmatic decision because many members of the movement are proponents of improving access to remedy and are highly critical of voluntary approaches, which are part and parcel of the neo-liberal economic arrangements that they oppose. Strategically, advocates hoped that strong provisions for getting to the truth and making it public (the power to investigate and to order disclosure, along with mandatory transparency with respect to findings) would generate sufficient public pressure on companies to follow a recommended course of action (that is, remedy). Thus, even though the civil society proposal included some mandatory features, it nonetheless also had some resonance with neo-liberal regulatory approaches, where attention is dedicated to transparency with the assumption that companies will voluntarily adjust their behaviour in response to public pressure.Footnote 67 For example, this is the same logic behind many industry-backed initiatives, like Publish What You Pay, the Extractive Industries Transparency Initiatives, or the Canadian Extractive Sector Transparency Measures Act, which all focus solely on transparency.Footnote 68
The second key feature of the civil society approach to the ombudsperson is its concept of the relationship between the state and the private sector. Recall that the sole sanction component of the civil society proposal was the potential withdrawal of state financial and political support for a specific company. While this certainly reflects one dimension of the current relationship between the Canadian state and Canadian companies, a wider view reveals that this relationship also manifests in the Canadian state’s role in constituting foreign investment markets and in enabling and facilitating the industry itself.Footnote 69 For example, the Canadian state (federal and/or provincial) has a role in enabling the formation of companies in Canada through corporate law; establishing the terms according to which companies raise capital through securities law; determining the rules that govern the taxes they owe the public through corporate tax law and tax treaties; providing companies with privileged access to foreign government decision-makers through services provided by Canadian embassies and the larger foreign service; and establishing the rules that govern companies’ foreign investments through investment law and treaties. This list highlights some of the areas where the Canadian state takes a range of positive steps to shape and enable the market and the industry.
This also helps put civil society’s focus in its law reform proposal on political support, through special services provided to companies by the Canadian foreign service, and on financial support, through preferential loans and insurance provided by Canada’s export credit agency (EDC), into context.Footnote 70 The focus on withdrawing political and economic services as the sole form of regulatory sanction tacitly accepts the state-company relationship as a direct bilateral relationship, similar to the logic of private contract, where the state appears to operate as a private contracting party instead of as a public regulator. This is not to say that these contractual relationships do not formally exist or are not relevant — indeed, EDC support is issued pursuant to a contract and, more recently, Canadian diplomatic support also requires companies to sign an agreement called an integrity declaration in exchange for various support services (in which the company is referred to as the government’s client).Footnote 71 The point here is to highlight that civil society’s approach to public regulation has attempted to infuse this contractual relationship with certain human rights conditions. However, this attempt to add new terms to the contract has not challenged or changed the fundamental logic of casting the state-company relationship as one of private contract. On its own, this approach omits from view the multifaceted, proactive structural and systemic role of the Canadian state in constituting the market and the sector.
This analysis reveals that Canadian mining justice advocates’ home-state grievance mechanism law reform proposals resonate significantly, albeit inadvertently, with neo-liberal approaches to regulation, the state, and the company. In this approach, transparency/reporting is the goal of the investigation, remedies for human rights violations remain voluntary, and the Canadian state’s relationship with the company is narrowly defined in the logic of contract. It is important to acknowledge that this approach was the product of a pragmatic trade-off in that advocates hoped that it would be relatively more politically palatable to government and industry. This article does not aim to second guess or criticize these difficult strategic choices, which are shaped by numerous constraints and factors. Rather, it seeks greater insight into these trade-offs by examining this pragmatic approach to law and regulation conceptually. This examination highlights some apparent contradictions between these civil society-based law reform proposals (and their state-controlled outcomes) and the movement’s political and philosophical opposition to neo-liberalism as a political and economic system that is not only unjust and antithetical to meaningful respect for human rights, but also fundamentally predicated on formalism, voluntarism, and privatism. In other words, this analysis suggests that activists concerned with inadequate state regulation and remedies have made pragmatic choices that have served to promote (perhaps paradoxically) a law reform proposal that reflects a voluntary model of regulation (with regard to remedy) and tacitly accepts the role of the state as a provider of political and economic services to companies. Ultimately, the Canadian government’s 2019 ombudsperson regime maintained this voluntary approach, added in (at least initially) the formal equality dimensions discussed above, and discarded the features necessary for adequate investigations and fact finding. Unfortunately, civil society’s strategic trade-offs in formulating its proposal appear to have had little success in securing law reforms that align with the substantive change that the movement desires.
themes and common problems
The introduction to this part described how the regulation of Indigenous peoples’ right to consultation in Latin America and access-to-remedy law reform proposals and outcomes in Canada are both products of the activism of the transnational mining justice social movement, often working in conjunction or overlapping with other social movements. These two case studies share a common focus on activists seeking to create new state-based regulation of the harms potentially generated by private sector activities (resource extraction). The recognition of the right to consultation and its legal regulation in the Latin American context have emanated from the domestic judiciary and the state (respectively) in response to Indigenous peoples’ resource-related protests, advocacy, and litigation, on the one hand, and norm development in international courts, on the other. In the Canadian context, the movement has focused on developing proposals for a home-state non-judicial grievance mechanism. Thus, these two case studies share a common focus: both are instances where the movement has demanded that the state develop new legislation and create new processes (consultation and investigation/remedies) to respond to the movement’s specific justice demands. Notably, in both case studies, these regulation-oriented law reform efforts emerged on the heels of private law litigation against companies (Canada) and public law litigation claiming constitutional rights (Latin America).
There are also commonalities in the limitations that emerge from the reforms ultimately adopted in each context. In the Latin American context, the judicial recognition of Indigenous rights to property and consultation/consent have not addressed the issue of whether or not the existing rules of civil procedure that ultimately mediate rights claims are appropriate, given Indigenous peoples’ social, cultural, and economic context. This contributes to a situation where, even decades after the judicial recognition of rights, massive social protests are common, and relatively few communities have brought their rights claims to the courts. Likewise, the regulation of the right to consultation has lacked effective enforcement and oversight mechanisms and has failed to create the conditions necessary to ensure that communities can obtain just and equitable agreements. Thus, there is a yawning gap between positive law and the conditions and mechanisms required to make it meaningful.
In Canada, civil society law reform proposals to advance the right to remedy for mine-affected communities abroad have also had mixed results. As described above, the movement made strategic choices in the framing of its most recent proposal, first, by adopting a relatively narrow (contractual) view of the Canadian state’s support for companies and, second, by trading enforcement of remedy provisions in the hope of achieving strong, independent, and transparent investigations. While the campaign around the proposal certainly generated greater public awareness, including in the Canadian financial press,Footnote 72 the trade-off unfortunately did not materialize as hoped. The resulting mechanism not only is weak from a remedy perspective, but it also retains inadequate investigation powers. Moreover, at first, the result appeared to be even worse than the status quo when the government was initially willing to adopt a bizarre formal equality logic that would have allowed companies to use this purported human rights mechanism to request an investigation of human rights activists.
Thus, notwithstanding the remarkable strengths, commitments, and tactics of the mining justice movement, another common thread that unites these two case studies is the prevalence of three liberal and neo-liberal approaches to law that are imbedded in both law reform outcomes: (1) formal equality treatment of actors that ignores power (formalism); (2) inadequate or inexistent enforcement mechanisms that effectively amount to voluntary treatment of state and company legal obligations (voluntarism); and (3) a view of the state as a private/economic actor rather than a public regulator (privatism). This analysis reveals that the social movement’s legal strategies, developed in a human rights law framework, have been unable to overcome imbedded liberal and neo-liberal concepts of the state, the individual/community, and the private sector. These concepts have ultimately shaped the law reforms that resulted from the movement’s activism, to the dismay of many movement participants.
Theorizing the Mining Justice Movement’s Law Reform Activism
The observations presented in the previous part provide an entry point into a rich tradition of debate on the question of how to theorize the relationship between progressive movements and the law in liberal and neo-liberal legal orders. This part turns to examine four approaches that directly grapple with this question: pragmatism, left critique, critical legal liberalism, and counter-hegemony. This review identifies the assumptions, propositions, and conceptual tools in each approach in an effort to isolate analyses, critiques, and prescriptions that offer insight into the successes and limitations of the mining justice social movement’s law reform outcomes, described above. As such, the discussion represents a preliminary survey of some important thinkers in each area rather than a comprehensive assessment of any given theoretical tradition.
pragmatism
For the purposes of this discussion, pragmatism is understood both as a philosophy of social movement activism and action and as an approach to studying social movements’ use of the law. Among the authors discussed in this part, David Kennedy, Austin Sarat and Stuart Scheingold take a pragmatic approach to the study of social movements; Kennedy, in a later article, studies social movement pragmatism; while Lucie White and Jeremy Perelman blend these distinct lines of inquiry.Footnote 73 The significance of these distinctions is taken up in more detail at the end of this part, which begins with a summary of the treatment of pragmatism by these authors in the context of social movement lawyering and then goes on to analyze the value of their insights in relation to the mining justice social movement.
Pragmatism and Human Rights Lawyering
The analytical frame that Sarat and Scheingold use to study social movement lawyering is implicitly built upon a particular definition of pragmatism. They evaluate the efficacy of lawyering in terms of its ability to maximize the movement’s capacity to approximate its moral vision of a better society. As stated previously, Sarat and Scheingold’s central thesis is that lawyering tactics will be most effective if they are able to exploit the cultural resonance of legality and rights in favour of the movement’s objectives.Footnote 74 In an article first published in 2001, Kennedy also takes a pragmatic approach in his critical analysis of the international human rights movement.Footnote 75 Kennedy poses this question: “[A]ssuming the goals and intentions of humanitarian action are clear, how can we improve our ability to assess whether humanitarian work in fact contributes more to ‘the solution’ than to ‘the problem’?”Footnote 76 To answer this question, Kennedy argues that one must weigh the “benefits” against the “costs” generated by the movement. While the bulk of his article is dedicated to developing hypotheses about possible costs, Kennedy also briefly defines what he views to be the indicators of movement success. He argues that the benefits of the movement materialize in the form of “distributions of power, status, and means” in favour of those who share its objectives.Footnote 77
In a follow-up article published in 2013, Kennedy takes the position that it is now more accurate to speak of international human rights as a regime rather than a movement.Footnote 78 He uses the term “regime” to refer to human rights both as a professional practice and as a practice of governance. Kennedy argues that human rights in this sense currently suffer from two “dangers”: idolatry and pragmatism.Footnote 79 In this framework, idolatry refers to the veneration of classical human rights tools and norms, such that advocates become blind to other approaches to human emancipation, other issues of injustice not easily captured by human rights frames, or the unintended costs of human rights victories. On the other hand, Kennedy defines pragmatism as participation in governance, which includes the use of instrumental reasoning and the weighing of costs and benefits.Footnote 80 Pragmatism provokes significant concerns for Kennedy; indeed, he states that the “most significant challenges for the human rights movement in the years ahead will be to understand what it means to be a participant in governance.”Footnote 81
To resolve the idolatry/pragmatism conundrum, Kennedy argues that human rights proponents must acknowledge humanism as a political project, together with the concomitant fact that the practice of human rights involves making political decisions, increasingly as “rulers.”Footnote 82 In this context, Kennedy calls for humanitarian professionals to engage in “responsible rulership,” defined as a willingness to exercise power, participate in political conflict, and responsibly exercise human freedom, which he contrasts with “the ethical self-confidence of idolatry or the evasions of instrumental reason.”Footnote 83 Yet, in spite of his forward-looking prescription for human rights practice, Kennedy ultimately forecasts the decline of human rights as a politically relevant project with the potential to productively address pressing global concerns of climate change and social inequality.
White and Perelman also reflect on pragmatism in their case study of human rights campaigns that have unfolded on the African continent in relation to social and economic issues.Footnote 84 Drawing on these experiences, they endeavour to theorize the “on-the-ground” human rights practices of African lawyers, all of whom view their legal activism as a political practice.Footnote 85 In doing so, White and Perelman observe two common “strategic patterns of engagement” among activists: pragmatism and performance.Footnote 86 In their analysis, pragmatism is defined by activists’ conscious decision to engage in human rights activism in spite of their awareness of the limits of human rights as a liberal legal form.Footnote 87 White and Perelman argue that, in doing so, activists attempt to “devise a new kind of [rights] practice” that goes beyond formalistic legal practice and is capable of framing public debate, influencing political will, and spurring a social movement.Footnote 88
Building on this definition of activist pragmatism, White and Perelman identify three features of the pragmatic practices observed in their study. More than just characteristics, these features are essentially theories of effective movement tactics. The first is the belief that litigation is not the best method for achieving economic and social rights objectives but that, under certain conditions and together with a toolbox of other political tactics, it can be used to help build the strategic power of a movement’s campaign.Footnote 89 The second is a concerted focus on the state as a target of advocacy, which includes multiple public actors and domains.Footnote 90 However, White and Perelman report that there is no consensus among activists on the degree to which the state should be prioritized among other possible targets of advocacy. In fact, they argue that the third feature of activist pragmatism is its explicit willingness to engage both private and public actors.Footnote 91 White and Perelman observe that the advocates in their study “reject the moral logic of the public/private divide.” Footnote 92
Turning to the movement’s goals (ends), White and Perelman identify two main objectives: first, the disruption of inequitable social and economic patterns and, second, sustainable institutional change.Footnote 93 However, they also identify a common set of normative commitments among the activists they study. Specifically, these activists are committed to engaging with liberal legalism from a critical perspective, to incorporating an ethos of critical epistemological pluralism into their human rights work, and to prioritizing the possible redistributive outcomes of their political practices.Footnote 94
Pragmatism and the Mining Justice Movement
This subpart distils three key themes at play in the literature reviewed above and considers their significance for the law reform experiences of the mining justice movement as described in the previous subpart.
Pragmatic Study versus Movement Pragmatism
The concepts and frameworks discussed above reflect two different approaches: the first is the study of social movement pragmatism, on the one hand, and the second is the pragmatic study of social movements, on the other. The latter of these is concerned with the extent to which a social movement achieves particular results, however defined. In this vein, Kennedy enquires into the “costs” of the human rights movement, and Sarat and Scheingold are concerned with the degree to which social movement lawyers are able to exploit the cultural resonance of rights and legality.Footnote 95 In contrast, a study of social movement pragmatism examines how social movements employ pragmatism as a philosophical approach to engaging with law to achieve the changes they seek. This is the approach taken by Kennedy in his later article where he conveys caution about pragmatism among human rights practitioners.Footnote 96 Interestingly, White and Perelman’s study melds these two approaches together. While they specifically theorize social movement pragmatism, they also dedicate considerable energy to measuring the social movement’s capacity to achieve a specific result — namely, that of structural institutional change.Footnote 97
The distinction between pragmatism as an object of study and pragmatism as an approach to study assists in analyzing the mining justice movement’s engagement in law reform. It also reveals that this study combines both elements. On the one hand, it studies social movement pragmatism, such as the mining justice movement’s pragmatic decision to use liberal legal human rights forms (consultation, remedy) to argue in favour of law reform. Another example is the movement’s pragmatic trade off in Canada between calling for transparent investigations and enforceable remedies. In this specific sense, this study resembles the examinations by White and Perelman and Kennedy of social movement pragmatism.Footnote 98 At the same time, this study is also pragmatic in the sense described by Sarat and Scheingold, in that it examines the movement’s law reform efforts in terms of their success in achieving a desired result, normative goal, or ideal, and in the sense proposed by Kennedy in that it endeavours to identify unintended costs.Footnote 99
Definitions of Pragmatism
A second group of observations relate to the definitions of social movement pragmatism that the authors reviewed here have employed. Recall that Sarat and Scheingold define pragmatism as the use of political tactics, primarily outside of the law, to exploit law’s cultural renaissance in an effort to garner broad support of the movement’s normative vision.Footnote 100 Kennedy defines pragmatism as the conversion of the movement’s practices into professional practices and practices of governance.Footnote 101 Finally, White and Perelman define pragmatism as the conscious use of a legal form (human rights) that is perceived to be problematic but that is employed strategically in the pursuit of some normative end that aligns with deeper values (pluralism and redistribution).Footnote 102 These conceptions of movement pragmatism are not necessarily incompatible; rather, they highlight that there is a possible range of pragmatic practices that a movement may take up at any given time or even simultaneously, revealing that the mining justice movement has been pragmatic in the ways described here. It has employed many tactics outside of positive law to exploit the cultural renaissance of international human rights norms in order to advocate for domestic law reform.
In both case studies discussed here (the right to remedy in Canada and the right to consultation in Latin America), movement actors formed coalitions and focused on the state as a target of advocacy in an effort to engage in the “practice of governance,” referring to concerted discussions of the contours of proposed new legislation. Movement actors attempted to use liberal legal forms strategically by infusing them with community/Indigenous perspectives (pluralism) and aimed to achieve greater accountability for the distribution of the costs and benefits of resource extraction. However, it is in this final area — that of shifting economic, political, and cultural power — where the largest gap appears to emerge between the law reforms that have ultimately resulted from the movement’s efforts and its ideals of pluralism and redistribution.
Pragmatism and Normative Commitments
Another item of interest is the way in which the authors reviewed here locate ethics, principles, and normative commitments in their analyses. Norms emerge in Sarat and Scheingold’s analysis in their identification of the social movement’s ends. The movement is defined by its pursuit of a social arrangement that is more acceptable in moral terms (“a different better society”), an ideal that they suggest is never fully realizable.Footnote 103 They write that for cause lawyers, “the Good is known in the causes for which they work even as its realization may be deferred.”Footnote 104 The first part of this article described in general terms some of the features of “the Good” or the “better society” sought by the mining justice movement.
The relationship between pragmatic social movement practices and ethics or normative commitments is also a theme in White and Perelman’s article. While they describe the activists in their study as fundamentally pragmatic, they observe at the same time that these activists are operating within the bounds of a consistent and identifiable ethical framework that guides and orients their pragmatism in some respect. Notably, in the law reform case studies described in the second part of this article, governments created mechanisms to facilitate civil society’s participation in law reform discussions. However, when the government’s course veered too far away from core movement principles (for example, with respect to the effectiveness of the ombudsperson as a tool for corporate accountability or with respect to meaningful processes for consultation with Indigenous communities), civil society partners and/or Indigenous organizations withdrew in protest. Thus, pragmatic decisions to participate in governance were limited by certain principled commitments, which were ultimately put to the test.
As stated previously, in his 2001 article, Kennedy takes the position that there is never a consensus regarding a movement’s normative goals.Footnote 105 Rather, he opts for a materialist definition of movement goals, proposing that the success (benefits) of the movement can be evaluated in terms of the redistribution of power, resources, and status towards those who share the movement’s goals. For him, participation in the social movement raises the ethical obligation to reflect on the possible negative outcomes (costs) of the movement and to weigh these against its positive achievements (benefits). While Kennedy acknowledges that different individuals will see and value costs and benefits in different ways, he asserts that this does not detract from the ethical duty to weigh these costs and benefits, however identified. This theme is extended in his 2013 follow-up article where he argues that, to the extent that movement participants pragmatically become power holders, they must engage in “responsible rulership.”Footnote 106 In sum, Kennedy shifts the focus away from the movement’s normative vision and towards a series of ethical concerns about the movement itself. His goal is to develop and defend a concept of movement ethics or a normative framework that might guide movement pragmatism.
The discussion in the second part of this article, examining the limitations associated with the mining justice movement’s law reform outcomes, reflects Kennedy’s proposal to identify potential costs of the decision of some movement actors to participate in governance through law reform advocacy. In this regard, studies have concluded that, in Latin America, rights recognition without appropriate and equitable procedural pathways, and consultation legislation that fails to account for colonial histories, power, and epistemology, have carried unintended costs. This includes, for example, legitimizing unfair agreements between communities and companies/the state while, at the same time, effectively insulating these agreements from judicial scrutiny. In other words, where the legal recognition of human rights claims leaves the status quo of business as usual unaddressed in practice, there is a risk that powerful actors will appeal to human rights norms to legitimate the status quo. This is most crudely depicted in the Canadian case study where advocacy for a non-judicial human rights remedy in Canada has twice resulted in a mechanism that also allows companies to bring complaints against human rights activists.
This summary highlights that the “weighing” process that Kennedy proposes is difficult to undertake in practice. State recognition of the right to consultation and the right to remedy has certainly strengthened the movement’s capacity to appeal to the “cultural resonance” of these rights, thereby potentially influencing state and company conduct for the better. However, the countervailing cost of inadequate or partial reforms that may legitimate unfair outcomes is a serious concern. While Kennedy’s assertion that there is an ethical duty to weigh costs and benefits is well received, he offers little guidance on how exactly this might be undertaken.
These different accounts of the location of normative and ethical concerns in relation to social movement pragmatism suggest that there are at least three different ways to emphasize principle in relation to pragmatism: (1) in the movement’s ends; (2) in the movement’s values; and (3) in the movement’s ethical responsibilities. In the first, the movement’s normative commitment is to its ultimate goal or ideal form of social change. In the second, the movement undertakes its work within the constraints of certain movement values. And, in the third, the movement is charged with an ethical commitment to weigh the costs and benefits of its achievements.
Summary: Insights from Pragmatism
The discussion above reveals that pragmatism is an approach that offers helpful tools for this article’s analysis of the mining justice movement and the limitations of its law reform outcomes to date. Taken together, the authors cited here make three contributions to the research question. First, they help to characterize it as a pragmatic study of the mining justice movement as well as a study of the movement’s pragmatism. Second, they provide a spectrum of definitions of pragmatism that help conceptualize different aspects of the movement’s pragmatism. Finally, they establish the importance of identifying the relationship between normative commitments and the movement’s pragmatic practices. For example, both case studies in the second part of the article include examples where movement actors decided to withdraw from participation in governance in the name of their values.
However, Kennedy’s assertion that movements undertake a balancing exercise between the costs and benefits of their achievements is particularly pertinent. This highlights not only that movements may fall short of their goals but also that engagement with law may generate costs. In the study undertaken here, both issues emerge. While the movement has achieved definite gains in raising the public profile of its concerns, its law reform outcomes in other respects fell short of its goals when the state responded by adopting legal instruments that perpetuate problematic liberal or neo-liberal forms. The next subpart will shed greater light on this issue and, in particular, the challenge that inheres in evaluating the net outcome of countervailing wins and losses.
left critique and critical legal liberalism
The discussion above hints that social movement pragmatism and the pragmatic study of social movements are both inevitably laden with a particular relationship with liberalism. Recall that Sarat and Scheingold define progressive social movements, in part, by their interaction with power holders, protest, and the pursuit of societal change. Where liberalism is the dominant organizing philosophy of a particular society, social movements must necessarily contend with liberal institutions, legal frameworks, and subjectivities in the formulation of their ends and means. The second part of this article described how the mining justice movement developed specific law reform proposals in its attempt to transform the relations that characterize resource extraction. It also analyzed how the reforms ultimately adopted by the state have incorporated and perpetuated certain liberal and neo-liberal frameworks and assumptions.
Critical legal scholars have focused on theorizing the relationship between progressive activists, the law, and liberalism. This subpart will review two contributions to the topic: that of Wendy Brown and Janet Halley, followed by that of White and Perelman. These two pairs of authors each make their contributions as the editors of a collection of book chapters. Thus, their reflections are particularly helpful as they centre on developing a theoretical framework for understanding the range of empirical contexts studied in each book’s case study-based chapters.
Critique and Liberal Law
Brown and Halley introduce their edited collection Left Legalism / Left Critique with a chapter dedicated to theorizing “left critique” and advancing a case for its importance as a component of left politics.Footnote 107 Brown and Halley conceive of left critique as an intellectual and political commitment to relentlessly and critically assessing ostensibly progressive political or legal projects. In their framework, liberalism and liberal legalism constitute the central targets of, but also threats to, progressive political projects. They define liberalism as a political order characterized by modern democratic constitutionalism and abstract individualism.Footnote 108 In this political order, the state’s legitimacy is tied to its role as the guarantor of equality before the law and individual freedom, both of which are secured through the legal protection of individual rights.Footnote 109 Liberalism thus casts the state and the law as neutral vessels for the pursuit of these ideals.
Brown and Halley define “the left” in terms of its relationship to liberalism: it is a project committed to revealing the limitations of liberal justice as well as to advancing alternative visions of justice.Footnote 110 In their view, critique is the left’s necessary starting point because it illuminates the ways in which the liberal state and the law function as sites and instruments of domination. Brown and Halley fashion their concept of critique by drawing on a long intellectual history of theorizing critique. They find strands of this history in the German philosophical tradition, from Immanuel Kant to Georg Hegel, Karl Marx, Friedrich Nietzsche and the Frankfurt School, as well in the work of Jacques Derrida and Michel Foucault.
Notwithstanding the differences and strains of critique in these and other traditions, Brown and Halley assert that critique is fundamentally a method of inquiry into a formulation that aims to examine and test its premises.Footnote 111 Critique seeks not to determine truth or acquire objective knowledge but, rather, to obtain greater perspective and insight. As such, it often works at the level of epistemology, uncovering how ideology and power produce what is understood to be the problem as well as the range of available political and legal possibilities. Importantly, since critique requires the critic to interrogate their most revered maxims, the political commitments that compel the critic towards critique will almost inevitably change in its wake.Footnote 112
This frames Brown and Halley’s concern with the fact that progressive projects increasingly and significantly articulate their understanding of the political or social problem they seek to address, and the model of justice they seek to advance, in terms of a need for law reform or change within the legal system.Footnote 113 Brown and Halley refer to this orientation and its attendant practices as “left legalism,” which comprises two different modes: rights legalism and governance legalism. The latter arises when the left attempts to capture or influence some part of the state’s administrative apparatus.Footnote 114 In Brown and Halley’s analysis, left legalism demands scrutiny (critique) for the reason that, at least at some level, it takes up the liberal promise that law can provide an effective vehicle for the pursuit of justice.Footnote 115
This informs the question that underlies Brown and Halley’s edited collection: what are the limits, paradoxes, and perils of contemporary practices of left legalism?Footnote 116 In pursuing this line of inquiry, they are interested in identifying lessons that point to ways in which the left might productively reformulate its politics. The nature of this question and its related objective reveal that a normative definition of the good may underlie Brown and Halley’s project of left critique. Arguably, lessons learned from the pitfalls of left legalism can only be understood in reference to some ultimate objective. As stated above, Brown and Halley refer to left critique’s objective of greater insight and perspective into practices of domination. However, they also appear to subscribe to a definable normative vision — namely, greater substantive freedom and equality.Footnote 117
As Brown and Halley apply the method of critique to practices of left legalism, they demonstrate one of critique’s key qualities: it is not oriented towards providing clear answers or political prescriptions, outcomes, or resolutions.Footnote 118 The first example of this is depicted in their treatment of the theme of the relationship between the left and liberalism. On the one hand, they argue that when left projects are translated into the frames of liberal legalism, the progressive project necessarily enters into tension with, or perhaps will even be forced to abandon, its original values and aims.Footnote 119 In their view, this occurs because the values and objectives of the left are inherently in tension with those of liberalism. They point out that the very fact of making a claim to justice in the language of liberalism shapes the subjects and the relationships that are spoken of. At this juncture, Brown and Halley warn that, to the extent that left legalism reproduces a liberal normative order, it is responsible for the consequences, however unintended.Footnote 120
Yet, on the other hand, they make a point of not categorically rejecting either legalism or liberalism as being inherently flawed.Footnote 121 Rather, they argue that it is the left’s current engagement with the law that has robbed the left of its power and potential. For example, they argue that rights, while classically central to liberal orders, maintain a “certain formality and emptiness which allows them to be deployed and redeployed by different political contestations.”Footnote 122 A second example of the slippery nature of critique in Brown and Halley’s analysis is depicted by their articulation of the relationship between the left and law. On the one hand, they argue that left projects in liberal democratic orders cannot avoid rights and governance legalisms and their problematic baggage.Footnote 123 They specifically discount the (possibly utopian) idea that there could be a “pure left political space independent of legalism.”Footnote 124 According to Brown and Halley, this is the case because, given that culture and law are not distinct, the left cannot escape the law just as it cannot escape culture.Footnote 125 Yet, even while they reject this ideal, Brown and Halley are fascinated by the possibility of discovering politics outside of legalismFootnote 126 or politics that is relatively “less saturated” by legalism.Footnote 127 They describe these politics as “radically democratic” and focused on deep deliberations about society’s governing values and practices.Footnote 128
In light of critique’s function to provide perspective rather than truth, it is perhaps not surprising that Brown and Halley’s response to the question of the limitations and effects of left legalism is open-ended. They suggest that critique reveals that the effects of law (and law reform) are complex, multiple, and contingent in a way that is analogous to the effects of the exercise of other forms of cultural power and norms. Accordingly, they describe the effects of left legalism as “mutable and contestable interventions into complex discursive and distributive systems” rather than as “monolithic installations of ‘justice.’”Footnote 129
White and Perelman’s theory of critique offers further insight into the relationship between social movements and liberalism. As stated previously, White and Perelman’s intervention is informed by their empirical study of economic and social rights activism on the African continent, presented in their book Stones of Hope. In interpreting and bringing together multiple case studies, they identify “critical/transformative legal liberalism” as a theoretical vantage point that helps explain the approach taken by the activists they study.Footnote 130 (Note that their description of critical legal liberalism as a theory resonates and somewhat overlaps with their account of pragmatism.) White and Perelman describe activism carried out in this framework as “an engaged but critical stance toward liberal values” that employs a “set of recognizably legal, but also explicitly political, advocacy strategies.”Footnote 131 A “critical stance” means that activists attempt to develop politically progressive interpretations of liberal legal norms and, further, that they are reflexive about the interpretations that they put forward.Footnote 132 Moreover, White and Perelman assert that this stance is politically committed to a fair distribution of resources and power.Footnote 133 Finally, critical legal liberalism is grounded in democratic deliberation. Not only do activists fashion their progressive interpretations of the law as a result of participation and debate, but they also pursue the redistribution of resources in part in order to better equip the poor with the material conditions that are necessary to participate in liberal democracy.Footnote 134
Activists operating in a critical legal liberalism framework are also realistic about what can be accomplished with liberal legal claims because they believe that the rules of the game are not substantively fair, even though they might be objectively neutral.Footnote 135 However, in spite of, or perhaps because of this, these activists are committed to using the law pragmatically in an effort to realize their redistributive aims. In practice, this often involves using the language of rights strategically and stretching it to support claims that entail economic and social redistribution.Footnote 136
According to White and Perelman, because of its political commitment to redistribution, critical legal liberalism is able to fully answer progressive critiques of rights-centered activism, which they attribute to “the sceptics.”Footnote 137 The activists in White and Perelman’s study do not depart from the assumption that successful rights claims in and of themselves will result in greater social equality. Rather, they invoke these claims as part of a broader political struggle by harnessing their normative and moral force. The rights claim affords activists greater symbolic power to inspire social mobilization, strengthen political organizing, and pressure power holders. In this framework, White and Perelman argue that activists are able to use human rights claims to open up broader democratic debates about deeper policy questions regarding the nature of the relationship between the market, the state, and its population.Footnote 138 In their study, activists were able to avoid the pitfalls of formalism and formal equality because they interpreted human rights claims in light of underlying commitments to the deeper values of dignity, security, and political democracy.Footnote 139
Sceptical Critique versus Engaged Critique
White and Perelman’s conversation with “the sceptics” raises the possibility of tensions between “critical legal liberalism” and “left critique.” In general terms, these concepts are evidently focused on the same set of legal practices — namely, those of activists and social movements loosely understood as progressive or as part of the left. However, there are important distinctions between the two approaches. Left critique evaluates the engagement of progressive political projects in left legalism in order to gain greater perspective and insight. Critical legal liberalism is a theory of human rights activism that attempts to answer critiques of this activism that originate on the left. Thus, these two concepts are in a direct conversation: left critique marshals a critique that critical legal liberalism attempts to answer. Some contours of this conversation can be distilled from the critique of “pragmatism” launched by Brown and Halley and from White and Perelman’s vigorous response to “the sceptics.” Thus, a question emerges: how does Brown and Halley’s critique of pragmatism apply, if at all, to the pragmatism that forms part of White and Perelman’s framework? Or, stated somewhat differently, how does White and Perelman’s concept of critical legal liberalism answer the concerns expressed by Brown and Halley’s left critique?
As a starting point, both sets of authors define pragmatism similarly. Brown and Halley define it as those instances where a progressive political project consciously adopts a legal category that is problematic from the perspective of the values of that project. As stated earlier, White and Perelman define pragmatism as activists’ conscious and reflexive decision to engage in human rights activism in spite of their awareness of the limits of human rights as a liberal legal form. Brown and Halley observe that pragmatists often rationalize that the strategic use of liberal legal tools will provide justice for disadvantaged groups who stand to benefit from the advancement of specific changes to the law.Footnote 140 Brown and Halley’s central problem with this is that, in their view, it inadvertently relies on a liberal concept of law as merely instrumental (a means to an end) rather than as a form of politics with substantive content and consequences.Footnote 141 They assert that rights and governance legalisms are always dependant on normative categories that draw their meaning and power from the broader social context and that contain substantive elements that contradict progressive projects. For their part, and in response to those who question the potential of human rights activism to approximate its aspirations, White and Perelman argue that the political commitment of activists to redistribution helps to avoid the possible pitfalls and limitations of packaging social and economic claims into human rights legal frames.
The apparent divergences in these authors’ respective treatments of pragmatism can be explained in part by scrutinizing in closer detail the role in their analyses of two fundamental concepts: law and politics. The above review reveals that these authors appear to be emphasizing different theories of the nature of law and its relationship with politics. For Brown and Halley, law is inherently political and its political nature is inescapable because of its status as a cultural form. They are unflinching in their assertion that law cannot be a neutral, empty vessel for the pursuit of politics. This leads them to the potentially contradictory conclusions that the left must engage differently with the law while, at the same time, developing politics that are somehow “less saturated” by the law. Brown and Halley respond to this conundrum with the concept of critique. They believe that critique holds the potential to open pathways towards transcending, transforming, or subverting liberalism’s legal categories.
White and Perelman agree with the assertion that law is political and carries problematic liberal baggage. However, they argue that a radical political commitment to redistribution is capable of surmounting this baggage and pushing the boundaries of liberal interpretations. Recall their contention that activism carried out in the critical legal liberalism framework provides a full answer to the concerns of the sceptic. They assert that a progressive political agenda has the power to harness the symbolic power of the law in a larger process of social transformation. In this view, the problem of the political nature of law can be resolved by an equally political project — namely, that of redistribution. Thus, unlike Brown and Halley, White and Perelman do not long for politics outside of law. Rather, they aim to politicize law by bringing it into the politics of anti-poverty activism and by bringing politics to bear on law.
Thus, while both sets of authors agree that law is political, they emphasize different aspects of this point. White and Perelman see law as political primarily because of its role in the constitution and maintenance of a power structure, defined most importantly by social inequality. On the other hand, Brown and Halley emphasize law’s political role in a series of cultural processes and productions of norms and subjectivities, all of which are implicated in power relations. This analysis of the nature of law and politics in the work of these authors returns this discussion full circle to the questions above, which interrogated critical legal liberalism’s attempt to answer the concerns of left critique. At this juncture, two avenues of response emerge. In one sense, it may be that White and Perelman commit the error that Brown and Halley attribute to pragmatism — namely, they believe that the human rights movement can use liberal law instrumentally in the service of the objectives of redistribution.
In this view, the weakness in White and Perelman’s theory is the fact that it significantly relies on activists’ political commitment to redistribution in order to address the sceptics’ concerns with left legalism. As a result, they do not seem to account for the cultural force of law and the possibility that the very process of engaging liberal legal forms will in turn shape the nature of the political struggle for economic and social justice. When White and Perelman make the assertions that pragmatism involves a commitment to epistemological pluralism and that a legal claim’s utility to a political struggle is derived from its symbolic normative power, they implicitly acknowledge that law carries cultural/ideological content that prefigures activists’ engagement with it. However, perhaps due to a problem of emphasis, their theory falls short of accounting for the possibility that the transformative process is a two-way street. Just as activists seek to transform liberal law, their political projects are similarly shaped by their very engagement with this cultural form.
On the other hand, a second avenue of interpretation is available, leading to a more charitable response to the question above. It might be argued that, by reflexively politicizing the law, White and Perelman are on a path towards resolving the conundrum encountered by Brown and Halley in their desire for politics outside of the law. In this view, the politicization of the law serves as an opportunity to apply the lessons of critique in renewed contexts and struggles and to explore different and more satisfactory modes of left legalism. As such, the value of critical legal liberalism may be in its potential to move beyond critique’s apparent propensity towards political paralysis. However, the lessons of critique suggest that such aspirations may well depend on the capacity of critical legal liberalism to be robustly reflexive. In White and Perelman’s framework, reflexivity is a component of critical legal liberalism, but its role and importance is arguably under-discussed. In the spirit of left critique, reflexivity must extend to include not only awareness of the possible pitfalls of human rights activism and the cultivation of strategic lessons but also intensive scrutiny of the assumptions and categories that frame one’s activist engagement with law and the consequences thereof.
The discussion so far highlights two inter-related areas where further theoretical development would enhance the capacity of critical legal liberalism to respond to the challenge of left critique. The first relates to the need to fully acknowledge and theorize the ways in which redistributive politics are themselves shaped by the use of the human rights legal form, and the second refers to the need to develop a robust theory of reflexivity that includes critique of activists’ practices, assumptions, and categories. These two concerns allude to a fundamental tension that arguably underlies the conversation between left critique and critical legal liberalism — namely, the extent to which the human rights practices in White and Perelman’s study take epistemological concerns into account.
To be fair, certain features of White and Perelman’s concept of critical legal liberalism directly respond to some concerns of the so-called sceptics, in addition to the fact that it includes a commitment to epistemological pluralism.Footnote 142 However, it is not clear how critical legal liberalism effectively addresses the epistemological issues raised by activists’ engagement with human rights legal forms. Not only are these concerns paramount in Brown and Halley’s intervention, but they are also prominent in David Kennedy’s 2001 article, which White and Perelman cite as a representative placeholder for “the sceptics.” Kennedy opens his article with the concern that human rights activism occupies the field of emancipatory possibilities, ways of thinking, vocabularies, projects, and institutions.Footnote 143
Substantive Equality and Radical Democracy
In spite of these potential tensions and differences in emphasis, left critique and critical legal liberalism share deep normative commitments to substantive equality and radical democracy. They evaluate activist interventions in terms of the degree to which they contribute to creating greater conditions of equality, freedom, and human dignity in the individual and collective lived experience of daily life. They hope that progressive activism might help enable the necessary conditions for radical democracy, defined in part as widespread participation in inclusive conversations regarding society’s most fundamental governing arrangements. For Brown and Halley, this refers to the values and practices that regulate subject formation, while White and Perelman single out policies that determine the arrangement and distribution of resources and power.Footnote 144 For both sets of authors, these normative aspirations spring from their yearning for a society capable of overcoming the failures of liberalism.
The second important similarity between these authors is the recognition that the results of a movement’s engagement with liberal legalism are inevitably complex and uncertain. Neither approach takes the perspective that progressive advocacy efforts are certain to produce their desired effects. Rather, these authors are explicitly anti-essentialist in their view of these practices. This is most clearly demonstrated in Brown and Halley’s argument that the effects of law are complex, multiple, and contingent and in White and Perelman’s use of the theoretical lens of legal pluralism and historical institutionalism in order to illuminate and anticipate possible unintended effects.
Critique and the Mining Justice Movement
The concepts, tensions, and themes that emerge in the conversation between left critique and critical legal liberalism are at the heart of this article’s analysis of the mining justice movement. The concept of left legalism accurately describes the movement’s turn to litigation and law reform as a means for realizing its goals. Similarly resonating with left critique, many of the movement’s participants are critical of liberalism’s most fundamental legal frameworks, such as property and contract, and its most central institutions — in particular, the market, voluntary or soft law, and the corporation. Concepts from critical legal liberalism are also relevant. Its focus on economic and social rights activism and its political commitment to redistribution resonates with the concerns and commitments of the mining justice movement. Moreover, the activist orientation within critical legal liberalism towards engaged critique connects with the mining justice movement’s decision to use law reform to fashion concrete proposals for positive change.
The theoretical questions posed by left critique and critical legal liberalism closely parallel those that drive this study of the mining justice movement. Like Brown and Halley, this study is concerned with the question of how movement actors, by taking up liberal legal forms, inadvertently became party to the reproduction of certain liberal ideologies and their legal counterparts. This is reflected in the results of the two areas of law reform activism studied here, where formal equality (formalism), voluntary approaches to legal obligations (voluntarism), and a privatized view of the state (privatism) have prevailed in the resulting reforms, notwithstanding the best efforts of movement actors. The findings summarized in the second part of this article suggest that, in taking up “the liberal promise that law can be an effective vehicle for the pursuit of justice,” mining justice movement participants have advocated for law reforms that ultimately reproduced or further entrenched certain elements of the liberal and neo-liberal normative order. This observation appears to validate the position of the sceptics and the concerns expressed by Brown and Halley.
Left critique and critical legal liberalism offer insights that help further explain these observations. Taken together, these theories help capture the operation of two forms of power that underlie the relationship between law and politics — namely, power as knowledge and power as material resources. Both are at play in the shortcomings of the mining justice movement’s law reform outcomes. Focusing on power as knowledge, Brown and Halley insist on the meanings, symbols, relationships, norms, and subjectivities that flow from the concepts and forms of law employed by the left. In this regard, the law reform outcomes studied here have maintained the abstract decontextualized subjectivities and relationships embedded in formalism, along with the corporate norms and relationships that underlie privatism and voluntarism. In terms of power as material resources, White and Perelman emphasize the hierarchies, inequalities, asymmetries, and erasures implicated in the construction and maintenance of legal concepts and regimes. This highlights that the mining justice movement’s law reform outcomes in the two areas studied here appear to have done little to disrupt the entrenched systemic and unequal distribution of economic and political power in favour of the private sector.
Both critical theories also add greater depth and complexity to this study’s effort to put the mining justice movement’s law reform outcomes into a larger context or perspective. To be clear, this reflection on unintended outcomes should not serve to minimize or ignore the accomplishments and positive results of the movement’s important work. Indeed, the second part of this article reveals that the movement’s activism has raised the public profile of its concerns and transformed the way in which all actors — corporations, states, and affected communities — see and frame the issues. Recall that Brown and Halley argue that the effects of left legalism are always multifaceted, paradoxical, contradictory, and contingent. In other words, no result is all “good” or all “bad.” Moreover, Brown and Halley agree with White and Perelman that, at any point in time, it is not possible to be deterministic or predictive about the future impacts of legal activism. Notably, this approach seems to diverge from the more simplistic costs/benefits analysis that Kennedy prescribed, which led to the unanswered question about how a movement might undertake a balancing exercise of this kind.
Brown and Halley’s approach, in particular, suggests that the significance and impact of left legalism may be very difficult to anticipate prospectively and may shift over time and in relation to other factors. For example, how might we understand and capture the multifaceted impacts, especially for grassroots political mobilization and consciousness raising, of the historically groundbreaking recognition by states and companies alike that Indigenous communities have special communal property rights/claims and must be freely consulted and potentially compensated? How might we balance this positive, albeit symbolic, change with the negatives of formalism embedded in the resulting consultation laws that perpetuate colonial assumptions and power inequities and risk legitimating unfair results? Would we have been better off without this symbolic recognition? Or does it constitute another (albeit imperfect) legal and political tool in a much longer process of struggle?
Similar questions might be asked of the right-to-remedy law reforms in Canada. How can we understand the impact of the Canadian state’s (albeit symbolic and indirect) recognition that it has an obligation to create a mechanism to investigate and remedy human rights abuses alleged against Canadian companies abroad? Does this impact outweigh the problems with the resulting mechanism, which is (on its own) incapable of providing meaningful remedies and perpetuates neo-liberal approaches to public regulation and corporate accountability? While these questions are critically important, they can also seem impossible to answer, and, as a result, disheartening, when structured as a kind of balancing exercise. Brown and Halley’s proposal is helpful in this sense because it encourages us to explore the limitations, contradictions, and paradoxes of left legalism without slipping into a simplified one-off costs/benefits framework. Moreover, a simple cost/benefit frame may also be unhelpful because it can foment polarization within the movement of different view about tactics. While the identification of unintended consequences is important, it does not mean that positive results are irrelevant or were not worth the effort. The fact of an unintended consequence does not necessarily mean that the chosen tactic was unwise. Indeed, activists and social movements work within a whole raft of constraints that shape their choices, including with respect to tactics.
In the spirit of Brown and Halley’s concept of critique, the purpose of questions like those formulated above is to gain insight and perspective, not truth and categorical conclusions. In this regard, one insight derived from the questions themselves is the revelation that the main accomplishment of the mining justice movement’s law reform efforts to date is the affirmation/recognition (explicit or implied) of state obligations in positive law (the right to consultation legislation) and/or policy (the right to remedy mechanisms). It is a major milestone for the Canadian state to accept that it has a duty to strengthen access to remedies and for Latin American states to codify in legislation that Indigenous peoples have procedural and substantive collective rights in relation to resource extraction. However, in both the Canadian and the Latin American case studies, the movement has encountered serious obstacles and resistance among state and corporate actors, who have worked to ensure that law reform outcomes maintain liberal subjectivities, ideologies (formalism, voluntarism, privatism), and entrenched inequities.
In recognizing and analyzing the pitfalls encountered by specific mining justice movement law reform efforts (left critique), this study nonetheless shares critical legal liberalism’s interest in the possibility of an engaged response to left critique. In other words, it seeks insight and lessons from past efforts in order to formulate a more productive re-engagement with law. Critical legal liberalism’s efforts to respond to the scepticism of left critique contain two key elements that may help to forge a way forward: commitments to redistribution and to strengthening democratic politics. First, White and Perelman assert that human rights activism can overcome the perils of left legalism, formalism, and formal equality if it stretches the language of rights to support social and economic rights and redistribution. The first part of this article described how economic and environmental justice (redistribution) is arguably central to the mining justice movement’s moral vision, while the second part described how the movement adopted demands for law reform in the areas of Indigenous rights to property and consultation (Latin America) and the right to remedy/accountability for corporate caused human rights abuse (Canada). However, the movement’s experience, at least to date, indicates that it has been difficult to infuse these liberal rights claims with redistributive content/outcomes either in terms of knowledge (epistemological pluralism) or in material distributions of wealth and power. Movement actors have found it difficult to subvert the ideologies of formalism, voluntarism, and privatism that are embedded in neo-liberal constructs of consultation (contract) and the right to remedy. In other words, contrary to White and Perelman’s assertion, movement actors’ political commitment to redistribution was not sufficient to overcome the pitfalls of left legalism. It has not been easy for activists to meaningfully translate this commitment into tangible results. Ultimately, when designing new laws, the state has fallen back into its old liberal habits.
Second, White and Perelman argue that the movement must use human rights claims to foster wider democratic debate about deeper policy questions regarding the relationship between the market, the state, and its population. Brown and Halley similarly share the conviction that legal activism must be supportive of “radical democracy” and of deep deliberations about society’s governing values and practices. This fits with their concept of operating inside the law while simultaneously attempting to transform it, transcend it, and seek politics that are “less saturated” by law.
In this area, it is not easy to identify the extent to which the mining justice movement’s right-to-remedy and right-to-consultation law reform proposals have been able to foment mainstream debate on underlying global economic arrangements. While the movement has certainly used the media and a variety of knowledge dissemination strategies to encourage public debate on specific issues, it has found it challenging to attract sufficient mass popular support for its causes. In Canada, the government’s responses to date (and failed promises) signal that it has consistently calculated that it can ultimately ignore the movement’s demands with little political cost, at least domestically.Footnote 145 Similarly, in Latin America, the movement has faced criminalizing, and, at times, violent and racist, rhetoric in the media as well as directly from elected officials in response to Indigenous and Campesino protest and justice claims, pitting these “backward minority” groups against the interests of the broader population in so-called “progress” and “development.” In this light, the right-to-consultation laws have done little to trouble the entrenched economic arrangements and the political ideologies that underpin industrial resource extraction in Latin America. Indeed, it is possible that the mere existence of the right-to-consultation laws, however deficient they may be, may more readily enable power holders to construe opposition and dissent as irrational and backward when mine-affected groups reject a proposed process or outcome.Footnote 146
In the end, the insights of left critique appear to have held true. The mining justice movement’s experience with the law reforms studied here indicates that its commitment to redistribution, on its own, has not necessarily safeguarded its proposals from the pitfalls of left legalism. At least for the moment, the liberal claims to consultation and remedy do not appear to have resulted in a more expansive approach to economic, social, and environmental justice. Similarly, the presence of voluntarism, privatism, and formalism in the resulting law reforms suggests that movement actors have not been able to subvert or shift a liberal and neo-liberal world view of the legal (rights-bearing) subject, the market, and the state. Moreover, the movement’s capacity to connect its goals to broader societal normative debates about society’s governing principles appears, at least for the movement, to be limited. There is evidence that the larger population has not responded in a sustained and meaningful way to the call for democratic debate on these issues, notwithstanding the movement’s laudable public education and knowledge dissemination efforts, especially through the media.Footnote 147 What is significant here is that, while many members of the mining justice movement hold deep commitments to redistribution and democratic politics, they have been unable to obtain law reform results (governance legalism) that connect meaningfully with these goals.
counter-hegemony
This part turns to the concept of counter-hegemony as the final step in its exploration of critical approaches to law and their potential application to the experience of the mining justice movement. The writing of Antonio Gramsci makes interesting, but limited, comments on the role of law in hegemony theory: in the formation of the state, the hegemonic bloc, civil society, and the strategies of counter-hegemony.Footnote 148 As such, the authors considered here adapt Gramsci’s framework to the specific context of their analysis. This part begins by distilling each author’s treatment of the concept of counter-hegemony before making some comparative observations that help assess the contributions of the concept to this article’s examination of the mining justice movement. This analysis picks up on and extends the insights developed in the discussion above of pragmatism, left critique, and critical legal liberalism.
Counter-Hegemony, Human Rights, and Economic Globalization
In her 2005 article, Claire Cutler applies Gramsci’s concept of law to the international plane in order to theorize the role of international law in the constitution of the global political economy.Footnote 149 In doing so, she comments on the relationship between resistance and international legal hegemony.Footnote 150 To this end, she presents the praxis conception of international law.Footnote 151 This refers to law’s potential to give rise to “forces of both domination and potential emancipation.”Footnote 152 In this view, law’s emancipatory potential is contingent on its capacity to transform global asymmetries of power and influence. The concept of the commodity legal form is central to Cutler’s analysis of resistance. Drawing on the work of a number of theorists, Cutler suggests that law takes on a specific form and significance in different historical moments and that this form derives from its relationship with economic production and political power. Under conditions of capitalism, law takes on a form that mirrors the commodity form of production, which reduces diverse objects to their exchange value.Footnote 153 Cutler attributes the following characteristics to the commodity form of law: it conceals inequalities by creating the “appearance of equality between people as legal subjects”; it presents “the communal protection of private property rights … as natural”; and it “formalizes the private/public distinction, emptying the private sphere of political content.”Footnote 154 These qualities signal the fetishization of the commodity form of law, meaning that it presents the coercive, oppressive, and inherently inequitable economic and political system as rational and equitable.Footnote 155
Cutler then describes the commodity form of law under contemporary conditions of globalization. She argues that the global political economy is undergoing a process of juridification whereby Anglo-American legal concepts have expanded their scope and influence on local orders.Footnote 156 The result of juridification in this historical moment is that the commodity form of law has become hegemonic and now defines the international historical bloc,Footnote 157 which Cutler characterizes as post-modern and late capitalist.Footnote 158 She finds evidence of post-modern forms of law in the phenomenon of legal pluralism,Footnote 159 while late capitalist forms are those that “facilitate the displacement of welfare states … through deregulation and privatized legal codes,” including “soft-law re-regulation.”Footnote 160 Cutler further argues that the commodity form of international law under late capitalism is also dialectical. This is represented by the tension between hard legal regimes, which purport to enforce private property rights on an equal playing field, and soft laws, which are rationalized as the most efficient means of regulating the social dimensions of global capitalism.Footnote 161 For Cutler, this dialectic fundamentally functions to protect capital: hard laws “constitutionalize private regimes of accumulation,” while soft law regimes incorporate and eliminate critique.Footnote 162
Having characterized in detail the commodity form of international law, Cutler sketches some ideas for resistance. Crucially, she argues that resistance must be accomplished “through the revelation of the fetishism and mystification of the legal and commodity forms.”Footnote 163 This involves, at least in part, critiquing dominant representations of private interests as communal, rational, and common sense.Footnote 164 Cutler also argues that resistance is linked to the dialectical operation of international law. This means that the distinction between hard and soft law must be challenged to reveal that its fundamental function is to protect capital.Footnote 165 Cutler further argues that the praxis of international law requires that resistance be grounded in practical, local experiences, where “common sense understandings of power and authority might be challenged.”Footnote 166 Finally, Cutler suggests that the objective of resistance is to pursue “emancipatory politics both through law and against law” or, stated somewhat differently, to “negate law through law.”Footnote 167 This articulation refers back to Cutler’s praxis conception of international law, which encapsulates law’s double face of coercion and consent, its dialectic of hard and soft law, as well as its transformative potential.
Like Cutler, in their 2005 edited collection Law and Globalization from Below, Boaventura de Sousa Santos and César Rodríguez-Garavito focus on corporate globalization.Footnote 168 While they build on the work of hegemony theorists who track the reproduction of the hegemony of transnational capital,Footnote 169 they also distinguish themselves. Rather than focusing on the reproduction of hegemony, they concentrate on identifying the legal strategies and tactics that effectively subvert it.Footnote 170 To this end, they focus on the question of how and why hegemonic structures change.Footnote 171 To answer this question, they elaborate on their project of cosmopolitan subaltern legality, which they refer to as “a mode of socio-legal theory and practice” and “an approach rather than a theory.”Footnote 172 They position this approach as the legal counterpart of counter-hegemonic globalization.
For de Sousa Santos and Rodríguez-Garavito, the term “cosmopolitanism” incorporates two key features: first, the moral claim that justice and equality concerns transcend state boundaries and, second, the ethical commitment to collaboration, pluralism, and diversity.Footnote 173 Importantly, the authors “revise” cosmopolitanism’s “Western” or “Northern” origins and orientations by introducing the concept of the subaltern. They use this term to refer to all who are the victims of discrimination, exclusion, or deprivation of any form anywhere in the world.Footnote 174 In this view, counter-hegemonic strategies and tactics fundamentally privilege the role and perspectives of the subaltern in order to conceive of new forms of global politics and legality.Footnote 175 Framed with the moral lens of cosmopolitanism and the political lens of the subaltern, de Sousa Santos and Rodríguez-Garavito turn to the concept of “legality” in relation to the study of counter-hegemonic responses to globalization. They describe this mode of study as “bottom-up” in that it favours “the detailed empirical study of legal orders as they operate on the ground.”Footnote 176 This includes tracking the legal, illegal, and non-legal strategies of transnational and local movements in relation to state and non-state legal orders at every scale.Footnote 177
The cosmopolitan subaltern legality approach is at once pragmatic and pluralist. First, it is willing to go beyond law in that it examines “the potential and limitations of law-centered strategies for the advancement of counter-hegemonic political struggles” as well as the importance of political mobilization for the success of subaltern legal strategies.Footnote 178 Second, it is willing to affirm the full range of rights-related strategies. De Sousa Santos and Rodríguez-Garavito observe that individual rights strategies may be important for the subaltern who faces, among other things, the coercive imposition of neo-liberal political and legal arrangements. At the same time, subaltern legality cultivates and explores conceptions of rights that go beyond liberalism and that might be characterized by “solidaristic understandings of entitlements grounded on alternative forms of legal knowledge.”Footnote 179 Finally, cosmopolitan subaltern legality is focused on legal projects emerging from local, non-English speaking, grassroots organizations and community leaders.Footnote 180 It aims to shed light on the alternative forms of knowledge, law, and politics that subaltern counter-hegemonic legal practices advance in their effort to introduce a “new common sense.” Footnote 181 However, it does not idealize these coalitions and strategies; rather, it is attentive to their tensions, contradictions, and shortfalls.
Among the contributions to de Sousa Santos and Rodríguez-Garavito’s edited collection, Ronen Shamir’s chapter on the politics of CSR fits squarely with this article’s focus on the mining justice movement.Footnote 182 Shamir sets up his analysis as a dialectic between the hegemonic economic, political, and cultural power of multinational corporations (MNCs), on the one hand, and counter-hegemonic efforts to subject this form of private power to legal oversight and control in favour of the public good, on the other hand.Footnote 183 These counter-hegemonic practices take place at the international level, where activists advocate for the international regulation of MNCs according to universal standards. They also occur at the domestic level, in MNCs’ home states, where activists pressure the courts and governments of developed countries to regulate the human rights consequences of corporate activity abroad.Footnote 184 Shamir’s first fundamental assertion is that the study of these counter-hegemonic practices must take hegemonic responses into account.Footnote 185
Shamir casts voluntary CSR as a fundamentally important “hegemonic counter-response” to counter-hegemonic efforts to critique and politicize corporate practices. In his detailed description of the numerous practices, discourses, and tools of voluntary CSR, two key features emerge that are central to its status as a hegemonic counter-response. The first is the principle of self-regulation, which Shamir characterizes as “the corporation’s most crucial frontline in the struggle over meaning and an essential ideological locus.”Footnote 186 The second key feature is the integration of CSR into the corporation’s profit model through “the language of instrumental-rationality” or, more simply put, under the slogan “CSR is good for business.”Footnote 187 He concludes that, by design, CSR constitutes an attempt to pre-empt, de-radicalize, and de-politicize counter-hegemonic efforts to develop enforceable laws capable of controlling corporate power.Footnote 188
Building on this, Shamir makes his second fundamental assertion — namely, that neo-liberal tendencies within civil society organizations and transnational social movements must be taken into account when theorizing counter-hegemonic globalization.Footnote 189 He believes that these tendencies have consequences for the movement’s ability to successfully advance alternative agendas.Footnote 190 This is especially pertinent because, writing in 2005, Shamir concludes that these movements have largely failed to control corporate power.Footnote 191 Two features of the “neoliberal blueprint of civil society” emerge from his arguments. The first is the rise and expansion of a segment of the not-for-profit sector that functions to enhance corporate and/or government power, such as through the promotion of voluntary CSR. Shamir has gathered a wealth of information on the influence of “corporate-sponsored and corporate-oriented NGOs” on the CSR movement.Footnote 192 Dubbing them market-oriented NGOs (MaNGOs), he places them as part of a broader and somewhat older trend towards the corporatization of civil society.Footnote 193
The second civil society feature of concern for Shamir is perhaps more complex and subtle in its design and consequences. He argues that many of the organizations that participate in counter-hegemonic social movements have come to share some fundamental social characteristics with the MNCs that they oppose.Footnote 194 Specifically, he is concerned with the NGO’s institutional paradigm and what he sees as its bias “toward the corporate hegemonic model of organization and implementation.”Footnote 195 He is also concerned with what has become the typical configuration of counter-hegemonic coalitions, where the poor and oppressed advance their claims principally through the formation of ties with large institutional players and Northern experts.Footnote 196 Shamir argues that these counter-hegemonic elites share a particular culture of professional expertise and scientific managerial language, which, in some important respects, resembles that of the corporate classes and which, in some cases, amounts to a managerial approach to social action and social change.Footnote 197 In what is perhaps his most important example of this scenario, Shamir points out that, while disagreeing on a number of substantive matters, corporate and the counter-hegemonic elites both tend to rationalize, legalize, codify, and regulate moral claims, particularly through the language of human rights.Footnote 198 Interestingly, though, for Shamir this second concern and its features do not automatically preclude the counter-hegemonic status of particular movements. He seems to accept that these features might exist within counter-hegemonic coalitions.Footnote 199 However, in his view, they compel us to identify and come to terms with their potential adverse consequences for imagining and realizing emancipatory alternatives to contemporary globalization.Footnote 200 In this sense, his contribution calls for greater critical awareness of and reflection on the institutional forms, knowledge forms, and languages adopted by counter-hegemonic movements.
Counter-Hegemony and the Mining Justice Movement
The counter-hegemony theorists discussed above develop and adapt their interpretation of Gramsci’s writing to a context. Cutler focuses on international law and the global political economy. De Sousa Santos and Rodríguez-Garavito share Cutler’s scale of analysis, although they are concerned more broadly with all contemporary forms of globalization as well as with local articulations of law. Finally, Shamir concentrates specifically on the international politics of CSR. Although each author’s conclusions are grounded in their respective context, there are common themes and debates that run through these contributions. In the remainder of this subpart, I extract common points of interest and consider their relevance to the mining justice movement’s experience with the law reform activism studied here.
Two of the authors reviewed here theorize hegemonic responses to counter-hegemonic resistance. While Cutler and Shamir use different terminology, they seem to agree on a basic premise: hegemony responds to counter-hegemony by partially addressing and incorporating its concerns, such that critique loses its cogency and capacity to generate substantive changes to hegemonic arrangements. Cutler uses Gramsci’s term “transformismo,” which she describes as the “process by which opposition and resistance to hegemony is absorbed into the dominant ideology” resulting in the elimination of opposition.Footnote 201 Shamir adopts the phrase “hegemonic counter-responses” to describe voluntary CSR’s effect of pre-empting, de-radicalizing, and de-politicizing efforts to develop enforceable laws capable of controlling corporate power.Footnote 202
These descriptions of counter-hegemonic responses help to characterize state responses to the mining justice movement’s calls for law reform. As described previously, state-driven reforms have recognized certain human rights obligations, while retaining liberal and neo-liberal frameworks (formalism, privatism, and voluntarism) that arguably preclude these reforms from serving as effective instruments of justice. The concept of transformismo helps to highlight the power relations at play in this dialectic. The state’s response, and, in particular, formal equality, risk (superficially) legitimating the very relations of injustice that the movement has sought to transform. The case study of right-to-consultation legislation in Latin America is one clear example of this. Moreover, the state’s response to resistance may exhaust the movement by generating a new burden to once again demonstrate empirically and normatively the shortcomings of new laws. The Canadian case study of a litany of deficient right-to-remedy mechanisms is a good example of how transformismo can become an endless cycle that risks exhausting the movement. In sum, the experience of the mining justice movement resonates with these authors’ assertion that resistance will be met with a hegemonic counter-response that incorporates demands in an effort to weaken them and maintain the power status quo.
This discussion raises the important question of how these theorists define movement practices as counter-hegemonic (or not). Shamir, in particular, cautions against the assumption that the efforts of NGOs and inter-governmental organizations are necessarily counter-hegemonic. He demands a critical interrogation of civil society practices in order to determine their implications for corporate hegemony. As a group, the authors display some variance in their willingness to classify human rights claims as counter-hegemonic. Shamir is suspicious of the dominance of these claims in counter-hegemonic movements, especially because corporations and the institutions that support them have incorporated human rights language. In contrast, de Sousa Santos and Rodríguez-Garavito more readily accept that rights claims have the potential to produce strategically valuable results for counter-hegemonic movements, although they would prefer to foster claims that advance alternative forms of knowledge. In sum, there is consensus among these authors that rights claiming could be transformative of power relations but that this tactic is also (significantly) vulnerable to transformismo.
The question of how the authors reviewed here define counter-hegemony is linked to the way they define movement success. De Sousa Santos and Rodríguez-Garavito begin with cosmopolitan subaltern legality, the term they use to describe the legal counterpart of counter-hegemonic movements. In this framework, success is articulated in normative and epistemological terms: it is the approximation of the cosmopolitan values of justice, equality, and pluralism, defined from the perspective of the subaltern. On the other hand, Cutler and Shamir’s concept of success focuses on power: Cutler describes counter-hegemony as a transformation in power asymmetries, while Shamir suggests that it is evidenced by greater public or popular control over corporate power. The differences in emphasis among these authors in defining counter-hegemonic success can be woven into a three-part framework. First, a movement is successful when it changes dominant ideas (common sense). Second, these changes must have real consequences for the distribution and exercise of power. And, finally, these changes must advance an alternative normative vision of the good (justice and equality) defined from the perspective of a less powerful group (the subaltern).
Applying this framework to the mining justice movement’s law reform results helps to analyze the dynamics of hegemony and counter-hegemony in this case study. These law reform efforts have certainly impacted ideas/common sense about state obligations. As described in the second part of this article, the state has recognized and created new legal regimes, ostensibly to support the right to consultation (Latin America) and the right to remedy (Canada). These regimes certainly represent some change in state norms and practice. However, research and critical analysis has shown that these changes have done little to transform power asymmetries (Cutler) or ensure greater public control over corporate power (Shamir). While activists and community leaders have worked hard to communicate the lived experience of mine-affected communities (the subaltern) and an alternative normative vision of social and economic relations, they have not been able to ensure that the resulting reforms enacted by the state (the executive branch) reflect this vision or substantively assist these communities.
The discussion of movement success raises another interesting theme among the authors — namely, the route that they would prescribe for achieving the goals of counter-hegemony. This follows the logic of “what do we want?” and “how do we get there?” For Cutler, the crucial work of counter-hegemony involves critically deconstructing the law and the economy to demonstrate that they are not morally or politically neutral forces but, rather, the result of political choices that benefit capitalist classes. She refers to this process as the demystification of the commodity form of law. Still, on the theme of prescriptions, the authors engaged here rally around the idea that counter-hegemonic politics must be rooted in practice. On this basis, Cutler’s demystification of the commodity form must connect with people’s everyday experience of the economy and the law. Similarly, de Sousa Santos and Rodríguez-Garavito call for the detailed empirical study of how legal orders actually operate on the ground and for an approach to scholarship that is sensitive to alternative forms of legal knowledge, otherwise hidden in local practices and forms of resistance. Given his emphasis on hegemonic counter-responses, Shamir takes a slightly different approach to the topic of practice. He is concerned with the extent to which the dominant civil society institutional form — the NGO — imposes technocratic, managerial ways of thinking and being onto claims that emanate from grassroots social movement actors. His concern is that the neo-liberal NGO institutional form has the effect of disassociating the politics of counter-hegemony from practical experience. It is worth noting that Shamir’s frame resonates with Kennedy’s reflection (in the third part of this article) on the politics and ethics of the human rights movement’s participation in governance or “rulership.”
Once again, these insights from this group of counter-hegemony theorists are significant for the mining justice movement. Movement actors pursued law reform by packaging their claims in the language of human rights. However, these proposals to date have not addressed fundamental issues with the legal and economic arrangements that enable and protect transnational corporate resource extraction (Cutler and Shamir). Rather, the resulting reforms have added a layer of law — namely, procedure (consultation) or weak oversight (complaint/review) — to existing arrangements. This helps explain, at least in part, why power relations appear to have continued largely undisrupted by these reforms. In terms of the call from these authors to root legal change in everyday/ordinary/subaltern experience, the approach of the mining justice movement has been mixed. On the one hand, the movement has been remarkably effective in gathering data and telling the story of affected communities and their experiences of social and economic injustice and violence. Further, advocates have consistently appealed to this evidence of injustice to advocate for the law reforms studied here. However, on the other hand, advocates have faced obstacles in ensuring that law reform outcomes account for, and respond to, the realities of social and economic power and context. Thus, while advocates have done well to document grassroots community experiences and connect them with their advocacy efforts, they have been less successful in achieving law reform outcomes that meaningfully address these documented realities of injustice. The prospect of fashioning rights claims and securing law reforms that are responsive to the perspectives and experiences of the subaltern represents a formidable, and, as yet, unresolved, challenge for the mining justice movement.
Finally, some of the authors reviewed here pick up the theme of the relationship between counter-hegemonic movements and the law as a potentially progressive tool for social change. It is common ground among them that this is always contingent on the strength of accompanying forms of non-legal political mobilization. Further, they all agree that law is a crucial site of struggle. In Cutler’s praxis conception, international law has the potential to give rise to forces of either emancipation or domination. As a result, law as domination must then be negated, or overcome, with law as emancipation, which is what she means by the phrase “negate law through law.” Rather than a debate over what the law says (how rights are recognized and interpreted), for Cutler, the struggle is over the actual form that law takes — the commodity form. In this view, struggle occurs over what the law is and, in particular, its relationship with the state and capital. Cutler’s challenge to reconceive of law resonates with de Sousa Santos and Rodríguez-Garavito’s conception of subaltern cosmopolitan legality. While they see practical value in rights strategies organized around classically liberal rights, their main interest is to identify conceptions of rights that go beyond liberalism and represent alternative forms of knowledge.
Building on these discussions in relation to this final theme, three interconnected ways of thinking about the role of law in social struggles seem to emerge. In the first, the struggle revolves around what the law says or should say, including debates over the interpretation of law. This involves attempts to introduce new ideas and practices, and it conjures up commonly observed struggles over distribution, entitlements, and recognition. In the second, the struggle takes place over what law is (that is, the commodity form) and how it reflects, produces, and rationalizes the state and the market. This moves towards deeper political transformations of power and legitimacy, market, and state. Finally, in the third approach, the struggle is over the knowledge or world view that law embodies. This alludes to deeper transformations of the values, ethics, culture, and histories that underlie law’s vision of the good.
The three-part typology once again serves as a useful guide for analysis of the achievements and limitations of the law reforms pursued and obtained by mining justice advocates. Proposed reforms have focused on obtaining legal recognition of, and regimes to support, new state duties in relation to the right to consultation and the right to remedy. However, the outcomes have done little to disturb key elements of law’s “commodity form” under conditions of late capitalism (Cutler) — namely, formalism, voluntarism, and privatism. While advocates have appealed to community-based forms of knowledge and world views, they have not been able to ensure that the state-controlled results are infused with subaltern ways of knowing.
In sum, these counter-hegemony theorists offer a variety of perspectives that enrich our understanding of mining justice advocates’ experiments with law reform. In some areas, these theorists echo the debates at play in the previous discussions of pragmatism and left legalism. In particular, the debate over the strategic value, or inevitability, of rights is a common theme as well as the role of alternative forms of knowledge and the complexity of civil society’s potential role in governance legalism or decision-making (rulership). Counter-hegemony as an approach adds value to this discussion due to its emphasis on (international) capitalism, structural power relations, and the relationship between the state and capital. This emphasis is certainly important in light of the concerns of the mining justice movement. The next part picks up on this by drawing together common themes and important differences across the theoretical approaches consulted in this article.
Conclusion
This article has examined key law reforms that have emerged from the activism of mining justice movement advocates over the last twenty years. In Latin America, courts began to recognize Indigenous rights in 2001, and a number of states responded to Indigenous peoples’ ongoing opposition to neo-liberal natural resource extraction with right-to-consultation legislation beginning in 2011. In Canada, over the course of nearly twenty years of corporate accountability “right-to-remedy” advocacy, the state has responded with a series of home-state, non-judicial grievance mechanisms, primarily directed at extractive industries (2009, 2014, and 2019). However, a wealth of critical analysis and empirical research suggests that these reforms have had limited success, at least to date, in meaningfully furthering the movement’s human rights and social justice goals. In this article, I have argued that this is due, at least in part, to the persistence of three fundamental liberal and neo-liberal ideologies: formalism, privatism, and voluntarism, which are tenaciously embedded in these law reforms. This assessment of twenty years of transnational law reform activism on the part of mining justice movement advocates calls for reflection on the strengths and weaknesses of their experiments with law reform in the age of human rights and neo-liberal economic globalization.
This article attempts to respond to this call by consulting the work of critical theorists who, while working from a variety of different contexts, are united by their examination of progressive movements’ engagement with law in an effort to transform the unjust economic and social conditions that result from liberal and neo-liberal political and economic arrangements. These authors adopt specific and varied vocabulary to refer to this engagement: pragmatism, left legalism (rights or governance legalism), critical/transformative legal liberalism, subaltern cosmopolitan legality, and counter-hegemony. Although there are certainly differences in emphasis, these authors and approaches have much in common. They all believe that law is an important, perhaps inevitable, site of struggle. However, they also see social movement engagement with liberal law as fraught with political and epistemological risks, paradoxes, and tensions with the movement’s goals. They similarly agree that this necessitates a commitment within the movement to ongoing critique of liberalism/capitalism/hegemony, alongside reflexivity and critical assessment of the costs/benefits, limitations, and contradictions of legal activism. At the same time, all authors recognize that political action outside of law is critical to the movement’s successful engagement in legal activism, and some authors push for political projects that are less reliant on liberal legal claims.
The theorists here also agree that progressive social movements’ productive engagement with liberal law should be informed (and constrained) by a variety of normative commitments to meaningful/substantive equality and freedom, epistemological pluralism, fomenting of deeper and richer democratic debate, redistribution, and public control of corporate power. In terms of legal tactics, these authors are fixated on the dominance of human rights as the contemporary language and tool of progressive movements. Generally, they see rights legalism as problematic in that it inevitably carries political content that risks narrowing the movement’s capacity to conceive of human freedom, prevents other ways of knowing, and is easily co-opted by hegemonic liberalism and capitalism. However, their strategies and degree of optimism in relation to rights activism varies. Some authors emphasize the strategic value of rights due to their malleability and lack of fixed content, as demonstrated by ongoing struggles and shifts over time in their meanings and interpretations. Some authors see rights as uniquely able to capture and advance the specific concerns of marginalized groups.
Less optimistically, the experience of mining justice movement advocates with law reform rooted in human rights frames appears to resonate, at least for now, with some of the pitfalls of rights legalism that these theorists identify. As indicated, the state has responded to advocates’ demands and fashioned law reforms that are predicated on some of the same problematic liberal and neo-liberal ideologies that many members of the movement oppose (formalism, voluntarism, and privatism). The persistence of formalism, in particular, indicates that these new laws and regimes are not appropriately sensitive to alternative world views, power relations, and context. Voluntarism and privatism reflect the well-known legal foundation of neo-liberal resource extraction: private ownership of, and profit from, resources, without effective state protection of the public interest, broadly defined, and without effective accountability mechanisms. In the result, the laws, practices, and systems of unjust mining arguably remain fundamentally intact and undisturbed, albeit with an added layer of largely ineffective (consultation and remedy) reforms. There is a risk that these kinds of reforms may serve to legitimate business as usual and become rhetorical and even legal devices in the hands of powerful states and companies.
At the same time, advocates’ success in pressuring the state to recognize and create regimes in relation to Indigenous peoples’ right to consultation and a general right to remedy represents a significant and perhaps even radical change in the normative status quo in the last twenty years. These new laws and regimes, however limited, provide new tools and platforms for advocacy and mobilizing that may propel more meaningful change in the future. Notwithstanding their pitfalls, it is arguably better for marginalized communities to have a recognized law and a process to pursue, instead of having no law at all. On the other hand, do these inadequate laws merely distract and exhaust the movement with few results? It is methodologically difficult, and likely too early, to evaluate the medium- and long-term impact of these changes for the strength of the movement and future demands/changes.
At this juncture, the empirical and theoretical analysis marshalled here provides a preliminary map of some potentially key sites of struggle and legal innovation going forward. Given this article’s focus on public law regulation, these conclusions likely have greater direct relevance to that domain (as compared to private law and civil litigation activism). An important lesson is that the movement must continue to challenge liberal law’s commodity form (to use Cutler’s term) as manifest in formalism, privatism, and voluntarism. In the law reform experiments of the last twenty years, these features of liberal law have emerged as tenacious obstacles to the movement’s social change agenda. This lesson pushes towards the development of proposals that change the fundamental legal arrangements that enable mining injustice rather than adding a (potentially symbolic) layer of human rights reforms to existing structures. Moreover, the movement will continue to be challenged to fashion its demands with reflexivity and with particular attention to the significance of social context, power, epistemological pluralism, and subaltern world views. This will require further innovation in translating subaltern ways of being and knowing into law reform agendas that are responsive to this diversity.
This article’s scope and the insights summarized above have focused on the substantive content of specific public regulation law reform proposals and outcomes. Of course, this does not address the political and ideological obstacles to pursuing counter-hegemonic reforms in practice, such as, for example, the corporate capture of most liberal states, which consistently prevents governments from implementing even modestly progressive proposals.Footnote 203 Both avenues of research and inquiry are equally important. The theorists surveyed here have argued that critical reflection on the question of how movements translate their vision into specific law reforms is incredibly important. At the same time, the strategic and practical question of how to engage effectively with the state to pursue social change is equally crucial. Movements need both an agenda that will help approximate their vision as well as a strategy for achieving that agenda.
The reality of serious structural obstacles to the mining justice movement’s social justice law reform agenda presents an important area of further research as well as a potential opportunity. Perhaps these structural issues will ultimately push towards a broader reconception of the movement itself, one that integrates its focus on the specific injustices of global mining with a clear articulation of how these injustices connect with the larger unfolding injustices faced by all of humanity, those of catastrophic climate change, growing global inequality, and radical and rapid environmental degradation. The same legal and economic arrangements, liberal ideologies, and state-corporate relations that produce mining injustice are at the root of the broader planetary environmental and social crises. In this light, the lessons learned from the mining justice movement’s experiment with public regulation law reform activism over the last twenty years may have broader significance and application.
Observing the emerging signs of the times, a greater emphasis on large-scale structural change may indeed be the way of the future for the mining justice movement. In 2018, Swedish activist Greta Thunberg began a simple act of protest that galvanized youth around the world to join her and demand that elected politicians undertake swift and radical societal changes in order to address the climate crisis. In August 2019, Thunberg began a journey to visit Canada, the United States, and several Latin American countries.Footnote 204 She had decided to connect her climate crisis struggle to the situation of environment and land defenders globally who face criminalization, threats, and violence due to their opposition to harmful resource extraction, including and often especially industrial mining.Footnote 205 Indeed, in 2019, the United Nations Human Rights Council and special rapporteurs also began to emphasize this important connection.Footnote 206
These developments suggest that the mining justice movement may begin to more explicitly conceive of its law reform agenda in concert with other movements calling for structural changes to address the environmental and human costs that flow from corporate globalization. The mining justice movement may intensify its efforts to connect with other movements to formulate and pursue fundamental changes to the inter-related systems of extraction, consumption, and pollution, and the economic and environmental injustices that characterize modern life and liberal societies. In this frame, the mining justice movement would remain rooted in the concerns of Indigenous and other marginalized mine-affected communities, while also actively connecting these to related concerns and debates unfolding in society more broadly, which is increasingly concerned with the survival of life on the planet.Footnote 207
As the mining justice movement continues to experiment with substantive law reform, it will require innovative lawyering capable of marrying the political and epistemological insights and commitments of left critique, counter-hegemony, and critical legal liberalism, together with the engaged, yet reflexive, stance of pragmatism. The task at hand is the articulation of a more radical law reform agenda that moves beyond adding a layer of process or oversight to existing legal and economic arrangements. The agenda of the future, if it will be able to address these urgent issues, must aim to fundamentally transform the ways in which law structures the relationship between the state, the private sector, people, and all living things. The knowledge, experiences, strategies, and commitments of the transnational mining justice social movement undoubtedly make an important contribution to these broader, ongoing, and collective efforts to forge a productive and effective agenda for legal activism and research in pursuit of global social and environmental justice.
