Excellon Resources Inc. V Sindicato Nacional de Trabajadores Mineros, Metalúrgicos, Siderúrgicos y Similares de la República Mexicana (SNTMMSSRM), 309 of the SNTMMSSRM

Overview

NCP Decision Rejected
Current Status Closed
Date Submitted 29/05/2012
Date Closed 28/11/2012
Case Duration 26 weeks and 1 days
Host Country Mexico  (OECD member)
Sector Mining 
Issue(s) Right to freedom of association; protection contracts; environmental pollution; failure to engage with stakeholders
Provisions Cited III.1  III.2-g  IV.1  IV.2  IV.6  V.1-a  V.1-b  V.2-a  V.2-b  V.4-c  V.5  VI.2-a  VI.2-b  VI.5   
Case Description In May 2012, the NGO ProDESC filed a joint complaint against Excellon Resources, Inc., a Canadian mining company, and its operations in the State of Duranga concerning its failure to honour local land rental contracts and to negotiate in good faith with local landowners (Ejido La Sierrita de Galeana) and the violation of the rights of workers to freedom of association and to bargain collectively as a result of signing a protection contract.
Developments The Mexican NCP carried out an in-depth initial assessment of the allegations made in the complaint. In summary it found that the large number of issues that were raised in the complaint were material but that they were not proven. As part of its initial assessment the Mexican NCP asked whether Excellon would attend mediation (even though the NCP does not say that it accepted the case) but that Excellon Resources stated its refusal to participate in mediation.
Outcome The Mexican NCP rejected the case. It did not write a Final Statement but used its Initial Assessment as a Final Statement. It has not published any information on the case on its web site. A link to a certified translation into English of the Initial Assessment is, however, published on the web site of Excellon Resources. The link is provided below.

Organisations

Lead NCP Mexico NCP : Single Government Department 
Supporting NCP Canada NCP : Interdepartmental Committee 

Companies

Multinational Company Excellon Resources, Inc. (Home country: Canada)
Subsidiary ServiciosMineros San Pedro, S.A. de C.V.,
Wholly-owned subsidiary MineraExcellon de Mexico S.A. de C.V (Home country: Mexico)

Complainants

Lead Complainant ProDESC
Lead Complainant Section 309 of the SNTMMSSRM
Lead Complainant SNTMMSSRM : National Sectoral Union 
Supporting Complainant MiningWatch Canada
Supporting Complainant Canadian Labour Congress - Congres du travail du Canada : National Centre 
Affected Party Ejido La Sierrita

Related Documents

MiningWatch  [Publication date: 29/5/2012] 'Mexican Workers, Landowners File Second Complaint Against Canadian Mining Company Excellon Resources'
   http://www.sys-con.com/node/2286067 [Date URL accessed: 5/6/2012]

Excellon  [Publication date: 28/11/2012] 'Excellon V ProDESC: Initial Assessment'
   http://www.excellonresources.com/i/pdf/backgrounder/MEX_OECD_Report.pdf [Date URL accessed: 31/1/2013]

Government of Canada  [Publication date: 1/10/2011] 'Office of the Extractive Sector Corporate Social Responsibility (CSR) Counsellor Closing report Request for review file #2011-01-MEX: EXCELLON RESOURCES'
   http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/Closin
   g_report_MEX.pdf
[Date URL accessed: 21/3/2013]

United Steelworkers  [Publication date: 26/8/2013] 'Institutional Shareholders Continue to Dump Excellon Resources Stock'
   http://www.usw.ca/media/news/releases?id=0895 [Date URL accessed: 26/8/2013]

TUAC Analysis

Did the NCP publish its initial assessment? status-icon
Did the case involve parallel proceedings? status-icon
Was the existence of parallel proceedings an obstacle to the NCP accepting the case? status-icon
Was the businsess relationship other than that of a subsidiary? status-icon
Was the nature of the business relationship an obstacle to the NCP accepting the case? status-icon
Did the NCP inform other relevant government departments about its acceptance of this case? status-icon
Did the NCP offer mediation or conciliation? status-icon
Did the company accept the offer of mediation or conciliation? status-icon
Did the complainant(s) accept the offer of mediation or conciliation? status-icon
Was mediation or conciliation held? status-icon
Was mediation or conciliation conducted by a professional mediator? status-icon
Did the parties reach agreement? status-icon
If yes, did the NCP publish this agreement following the consent of the parties? status-icon
If mediation was refused or failed did the NCP make an assessment of whether the company had breached the Guidelines? status-icon
Did the NCP conduct in-host country fact finding? status-icon
Did the NCP make recommendations to the company on the future implementation of the Guidelines? status-icon
Did the NCP publish its final statement or report? status-icon
Did the NCP provide for follow-up of the agreement/recommendations? status-icon
Did the NCP inform other relevant government departments about its final statement or report? status-icon
Did the NCP inform public pension funds about its final statement or report? status-icon
Did the NCP apply any consequences in this case? status-icon
Did the NCP follow the indicative timescales set out in the procedural guidance? status-icon
Was there a positive outcome for the workers involved in this case? status-icon
Did the filing of the case under the Guidelines have a positive impact for the workers involved? status-icon
Did the lead NCP play a positive role? status-icon
If different, did the home NCP play a positive role? status-icon

TUAC Assessment

Compliance with Procedures

TUAC is concerned that the Mexican NCP does not appear to have followed the procedures of the OECD Guidelines on a number of counts. These include:

1.Publication of procedures: there are no published procedures on the web site of the Mexican NCP. As far as TUAC is aware, no procedures were made available to the parties so the process was neither transparent nor predictable, as required under the rules of the Guidelines;

2.High thresh-hold for accepting the case: the NCP appears to have applied a high threshold for accepting the case finding the issues raised to be ‘material’ but ‘not proven’. This is of considerable concern for TUAC as the role of the NCP when handling a specific instance is to “facilitate access to consensual and non-adversarial means, such a conciliation or mediation, to assist the parties in dealing with the issues”. TUAC considers that it is against both the letter and the spirit of the Guidelines to apply such a high threshold in the initial assessment stage;

3.Evidence of bias: TUAC is concerned that throughout the Mexican NCP’s initial assessment there is a tendency to dismiss the facts as presented as not justifying further examination under the Guidelines on the basis of statements by government departments, even though these statements do not themselves provide grounds for such dismissal. In addition to establishing too high a bar in the initial assessment phase, TUAC is concerned that the Mexican NCP’s initial assessment does not appear to respect the principle of impartiality, one of the core criteria underpinning the NCP complaints mechanism:

» With respect to the termination of employees without cause. “It is difficult to identify and determine whether Excellon de Mexico actually terminated employees without cause” (Page 4)
» “It is difficult for the Ministry to provide further elements… since the matters and evidence provided by the complainants do not prove any violation to the LEMS (Guidelines); (Page 4)
» “In connection with the alleged water pollution, on October 26, 2012 ProDESC submitted to this NCP a copy of results or technical tests performed in 2010 and 2011, which are not conclusive or updated and are not official” (Page 7).

4. Suitability of issues for mediation: the NCP concludes that “many of the issues presented pertain to public policy matters that are not subject to mediation and could hardly be resolved in such a body as the NCP”. TUAC notes that the report of the Canadian Office of the Extractive Sector Corporate Social Responsibility (CSR) Counsellor on the Excellon case reached precisely the opposite conclusion: “it is the Counsellor’s view that this request had every reason to quickly proceed to structured dialogue as it could have been expected to deliver value for all parties” (Page 20). At the OECD a key outcome of the 2011 Update of the Guidelines was the consensus among adhering countries that the primary role of the NCPs is to provide a forum for conciliation or mediation. Governments agreed that the strength of this ‘problem-solving approach’ is that it brings parties together to find a forward-looking solution, rather than having to conduct in-depth investigations to establish the facts in often complex, technical matters. Given that this is the primary role of NCPs, TUAC is gravely concerned about the Mexican NCP’s finding that these issues were not ripe for mediation.

5. Excellon’s refusal to participate in mediation: the Mexican NCP takes into account Excellon’s refusal to come to mediation in its initial assessment: “In this respect, Excellon communicated its decision not to participate by virtue of the absence of good faith by the claimants noted by the company, in the light of several recent actions and the results of other negotiations” (page 9). While this was neither the sole nor main reason for rejecting the case, nonetheless, TUAC considers that the willingness of the company to participate in mediation is not relevant to the initial assessment phase. Otherwise any and all eligible cases under the Guidelines could be rejected on the grounds that the company refuses to participate in mediation.

6. Lack of transparency: there is no information on the Excellon case on the Mexican NCP’s web site and no publication of the NCP’s Final Statement, as required under the 2011 Guidelines.

7. Lack of cooperation with the Canadian NCP: under the Guidelines the host country NCP is supposed to cooperate with the home country NCP in its handling of cases: “[T]he NCP of the host country should consult with the NCP of the home country in its efforts to assist the parties in resolving the issues” (paragraph 23 of the Commentary on the Procedural Guidance). To the best of TUAC’s knowledge, no such cooperation occurred.

Conflicts with the Grievance Mechanism of the Home Country - Canada

The Canadian Office of the Extractive Sector Corporate Social Responsibility (CSR) Counsellor carried out a fact-finding mission to La Platosa in 2011. In contrast to the Mexican NCP, the Counsellor found that: “the request before the Office was a good faith, bona fide request by core Excellon constituencies for a mediated dialogue under the auspices of the Office to discuss a wide range of concerns and issues”; that “Excellon’s decision to withdraw prior to dialogue represents a significant missed opportunity to build a deeper understanding of the issues and enhance reputation and risk management”; and that “[G]iven Excellon’s prior public commitments to the dialogue, requesters believe Excellon’s actions demonstrate bad faith”.

TUAC is gravely concerned that a complaint that has already been accepted as being appropriate for mediated dialogue under a non-judicial grievance mechanism of the home country should then be rejected under the OECD Guidelines by the NCP of the host country. This provides a strong indication of the lack of consultation between the host and the home NCP. It also raises fundamental questions over the fairness and predictability of the NCP process.

Mission to Mexico

Given the questions over the application of the procedures of the Guidelines – together with concerns over the plight of the workers and the community – TUAC undertook a fact-finding mission to Mexico from 25 Feb -1 March 2013. The mission, taking place nearly two years after the completion of the 2011 Update, was timely in terms of contributing to an understanding of how the 2011 procedures are being applied and supporting learning on NCP best practice.

-27-28 February 2013: visit and interviews with workers and community representatives of La Platosa Mine, Duranga State;

-28 February - 1 March 2013: interviews with representatives of the Mexican NCP as well as the Ministry for Labour and the Canadian embassy.

Request for Meeting with Excellon

TUAC, jointly with its affiliate the Canadian Labour Congress (CLC), sent a letter to Excellon in advance of the visit to request a meeting. Excellon replied in a letter (copied to the President of Mexico, Enrique Pena Nieto) which described past and ongoing proceedings relating to its operations. It did not specifically respond to TUAC’s request for a meeting. No meeting was held.

Next Steps

TUAC aims to submit a ‘lessons learnt’ report of its mission to Mexico at the next meeting of National Contact Points at the OECD in June 2013.