I THINK MINING

We will have to await the course of fighting lawyers to learn how this story plays out; but even now there is plenty to tell and plenty to cogitate.  It all relates to helping the democratically elected government of the DCR kill seventy of its own.  In short the story, as I pick it up from a number of sources, goes thus:  In 2004, rebels capture the town that controls the supply route to Anvil’s Congo mine.  Anvil provides transport for government troops (thugs) brought in to flush the rebels out.  The thugs move fast: they shoot upwards of seventy people and re-open supply lines.   Anvil says the government requisitioned such transport, and they had to obey.  Not so, say the NGOs, who claim Anvil sought government aid in flushing out the rebels. 

As background to the story take a look at the website for Anvil Mining.  They are an Australian/Canadian Mining Company (not clear which?) whose shares seem to be doing as well as any other mining company operating in the Democratic Republic of the Congo.  Here is a little of what they say on their mining operations in the DRC: 

The mining sector is expected to play an important role in the recovery of the DRC from war and social disruption experienced in the late 1990s and early 2000s. The return of peace and democracy has encouraged a new stability in the country and mining companies are working to re-establish an industry with the capacity to create a sound export base for the DRC economy. More Information (CIA World Factbook/DRC).  Anvil, as one of the first companies to take up development and production after five years of war, has highlighted the potential to establish successful mining operations in the DRC Province of Katanga. The Company has also developed a blueprint for maximising local employment and benefits from mineral production. 

Presidential and parliamentary elections, the first elections in 40 years, were held in the DRC on July 30, 2006 under the guidance of the European Union Electoral Observer Mission (“EU EOM”) and MONUC, the United Nations mission to the DRC. Throughout 2006, DRC voters went to the polls to elect parliamentary, regional and local representatives. Joseph Kabila was declared the winner of the Presidential election on November 15, 2006.  Local enthusiasm for the democratic process contributed to high voter turnouts and generally orderly conducted polling elections around the country.

Approximately 90% of Anvil’s employees are DRC nationals and local evidence shows that the multiplier effect of direct employment is approximately 10 to 1, highlighting the strong flow-on effect of major resource projects. Locally based engineering, construction and service companies have played an important role in developing new projects for Anvil and the relationships are likely to strengthen as service sector capabilities increase.  In the long-term, the DRC’s future lies in a diverse broadly based economy capable of competing on world markets. In the short-term, the mining sector in Katanga is likely to be the key factor in kick-starting the long anticipated recovery of the DRC economy.

Enough to encourage you to buy shares in the company and DCR mining.  But wait, there is more. 

   The Chairman, Independent Director, John W. Sabine, appears to be careless of details.  I admit that is a long conclusion from a small sample; but on his profile he notes: 

Mr Sabine, Counsel for the Canadian law firm Fraser Milner Casgrain LLP, is recognised as a leading minng practitioner in Canada with experience in mining and resource law and corporate finance, and lectures on various legal topics, including those relating to securities, mergers and acquisitions and corporate governance.

Notice the misspelling of mining which here is written minng.  Maybe his secretary was supposed to check, but you would expect the chairman to check his own profile.  Then there is what can only be called bad writing.  This long-winded sentence really should be two sentences.  Or maybe three.  Any rate who is interested in the topics the Director lectures on?    But wait, there is more on this carelessness about details.

     As in any story from darkest Africa, this one is replete with skullduggery and corruption.  Nobody has been “blamed or punished” for the murders.  But last month a Montreal law firm filed a class action law suite against Anvil Mining on behalf of the survivors of the massacre.   The law suite is being brought in a Montreal court by the Canadian Association Against Impunity (CAAI) – a group which brings together survivors and relatives of victims and British, Canadian and Congolese non-governmental organisations (NGOs) which are supporting them.

Here is a link to and quotes from a more detail telling of the class action law suite:

Anvil Mining stands accused of being an accomplice to human rights abuses in Africa in a civil class action suit application filed in Montreal. The application was made Nov. 8 by an association of Congolese citizens, supported by Congo-based British and Canadian human rights groups.  Anvil Mining is accused of providing logistical support for troops of the Democratic Republic of Congo’s armed forces in a murderous rampage in the province of Katanga in 2004.   In Oct. 2004 a small and lightly armed group of insurgents marched into the lakeside port of Kilwa, the Congolese village closest to Anvil’s Dikulushi copper and silver mine.   According to witnesses interviewed by United Nations investigators and representative of U.K.-based Rights and Accountability in Development (RAID) Anvil representatives provided air transport for the DRC military as it brought in troops and trucks and drivers to facilitate an attack on Kilwa that resulted in over 70 deaths, mainly of unarmed civilians.   According to witnesses and survivors, Anvil trucks were used to transport civilians to sites where they were shot and buried, and to remove looted goods from the area.

A more balanced report is at this link, which says, in part:

According to a motion filed in Quebec Superior Court in Montreal on Monday, relatives of victims are seeking unspecified damages against Anvil Mining Limited.  The lawsuit claims Anvil was trying to protect its copper mine investment when it allegedly provided logistical support – including planes, trucks and drivers – to help Congolese military quash a 2004 rebel uprising in the port city of Kilwa.   This civil action follows a military trial in Congo in 2007, where nine soldiers and three former employees of Anvil were acquitted of charges.    A spokesman for Anvil says the military tribunal cleared it of any wrongdoing, and the company has no more comment.

The only report that I can find that provides a bit of insight into Anvil’s position states this:

Since the Kilwa massacre came to light, Anvil has strenuously denied its role.  The company’s directors claim that the military proposed intervention and required Anvil to provide transportation, that they could not have foreseen what happened, and that no company personnel were directly involved in the events that unfolded when the military arrived at Kilwa.  Yet contemporaneous documents and interviews with the mine’s manager, Pierre Mercier, show that it was Anvil that asked for military support and was pressing for the army to restore order as quickly as possible. 

So it appears to boil down to the simple issue: Did Anvil ask the government to intervene to flush out the rebels and restore access to the mine; OR did the government come in and demand help from the mine in transporting government troops to the village, where they happened to act as thugs?

The “legal” argument would appear to be:

• If Anvil asked for help, they are guilty because when help came it was brutal and deadly.
• If Anvil was pressed to provide transport, they are guilty because those they transported killed. 

    Both arguments appear pretty spurious to me.  As I recall the fundamental legal principles that have been around western law since early Roman times, it all boils down to what a reasonable man would, or should, have anticipated and done.  It is hard to argue that a mine in the DRC should not have the right to ask the duly elected government to come in to restore order in a local community that threatens the mine.  It is hard to argue that a mine in a nasty place should refuse to obey requisition by the government, however much you may think the government is not made up of nice people. 

You cannot argue that a mine in Africa should reasonably anticipate that every government act with which they be associated, is likely to result in death and destruction. Even though this is a norm in Africa. 

Thus we have a spurious court action brought against a mining company in what obviously was not a happy-ending event.  But I cannot persuade myself that the mine is guilty of malfeasance or even negligence, however careless they may be of the details.

    This case also demonstrates why it is necessary that such actions be brought in the courts and not in secret panels as would have been the case had Bill C-300 been made law.  Just imagine: If Bill C-300 had prevailed, the aggrieved parties (and we recognize their grievances) would have complained to a bureaucrat in Ottawa who could have secretly decided that Anvil was “acting improper” and hence the punishment would have been with-holding of government funds to Anvil. 

Which raises an interesting question: does Anvil receive any money, help, assistance, etc from the Canadian government? 

Better this fight be in the courts where 2,000 years of legal principles apply, where evidence is the issue, where the company can defend itself, and maybe vindicate its actions from so long ago.  Such a legal fight will probably cost Anvil far more than if it had been attacked in terms of Bill C-300, but at least they now still have a right to open proceedings, the right to confront the accuser, and the right to defend themselves.  I suspect they may be guilty of carelessness, but neither negligence nor unreasonableness.