The exploitation of natural resources profoundly reconfigures social relations wherever it occurs. While intrinsically linked to development models specific to colonial and neo-colonial dynamics of appropriation and plunder, the term “extractivism” refers to “those activities which remove large quantities of natural resources that are processed (or processed only to a limited degree), especially for export.”<fnref n="4" /> Large-scale extractive projects, in particular, deeply impact the myriad of relationships that exist between humans and nature, from local environments to global climate.<fnref n="5" /> In fact, the scale of negative impacts associated with extractivism around the world is such that it is considered one of the main contributors to human rights violations associated with the private sector.<fnref n="6" /> In Canada, academic research and public policy approaches concerning extractivism and human rights have largely been structured around the concept of “Corporate Social Responsibility” (CSR).<fnref n="7" /> On a more global scale, they have been structured around the field of “Business and Human Rights” (BHR).<fnref n="8" /> Broadly speaking, policy prescriptions emanating from both arenas tend to focus on the tension between the teleological imperative of human rights and a sense that globalization undermines States’ authority. While some advocate for stronger extraterritorial jurisdiction, others promote CSR as a palliative for what they perceive as the inherent limitations of law.<fnref n="9" /> Indeed, the argument suggesting that the voluntary nature of CSR is incompatible with the imperative nature of human rights<fnref n="10" /> is increasingly challenged by a common assumption that both can converge.<fnref n="11" /> This more pragmatic and optimistic approach argues that CSR regimes establish synergistic relationships with legal rights protection regimes.<fnref n="12" /> However, this hypothesis remains controversial. Though some empirical research indeed suggests relations of synergy,<fnref n="13" /> other contributions emphasize that the relationship between CSR and legal human rights regimes can also be characterized by interference or contradiction.<fnref n="14" /> The problem is compounded by the fact that contemporary governance of the extractive sector is characterized by an entanglement of normative regimes of very different types. This includes State, Indigenous, and international legal regimes<fnref n="15" />; private CSR regimes, standards, certification schemes and algorithms<fnref n="16" />; knowledge systems circulating through networks of “global cities” and academic institutions<fnref n="17" />; and metadiscourses articulating different moral economies around the notions of “progress,” “development,” “*buen vivir*,” “sovereignty,” “self-determination,” “reconciliation” and so on.<fnref n="18" /> For these reasons, greater attention needs to be paid to the complex relationships among these regimes regarding, for example, the protection of human rights, including Indigenous peoples’ right to self-determination (in extractive contexts). We find heuristic value in conceptualizing this complex web of relationships as a “normative ecosystem.” In this article, we define the “extractive normative ecosystem” as the result of the interaction between any norm, discourse, or policy that determines the outcome of extractive encounters with local communities. The ecosystemic perspective, in our view, allows for a better assessment of the constant evolution of CSR and BHR because it analyses the interaction between rules and norms according to their use and potential effects rather than their stated purpose or finality. How can we better assess the latest changes in Canada and Europe regarding business-related human-rights harm? We suggest that an ecosystemic approach de-reifies codified rules and norms while simultaneously recognizing the importance of norms that are often overlooked when it comes to CSR and BHR, such as Indigenous legal regimes. It allows researchers and policymakers to understand normative practices currently used in the extractive sector.<fnref n="19" /> The article has four main sections. The first outlines the theoretical implications of the ecosystemic paradigm within the critical socio-legal field. The second analyses recent developments in the field of Mandatory Human Rights Due Diligence (mHRDD) legislation in France and the Netherlands, and at the European Parliament and European Commission. This section shows that these normative developments already adopt an ecosystemic paradigm. The third section explores the challenges of operationalizing an ecosystemic approach to the extractive sector’s normativity and discusses how positivist applications of BHR norms may limit Canada’s action in this field. We conclude by underlining the relevance of an ecosystemic perspective for better understanding the actual challenges individuals and communities negatively affected by extractivism face, for example in relation to the environment, and opportunities for preventing these negative impacts.

<footnote n="4">Penelope Simons, “Canada’s Enhanced CSR Strategy: Human Rights Due Diligence and Access to Justice for Victims of Extraterritorial Corporate Human Rights Abuses” (2015) Ottawa Faculty of Law, Working Paper No 2015-21; Canada, Department of Foreign Affairs and International Trade, *Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector* (Ottawa: DFAIT, 2009); Canada, Affaires mondiales Canada, *Le modèle d’affaires canadien.**Stratégie améliorée du Canada relative à la responsabilité sociale des entreprises, visant à renforcer les industries extractives du Canada à l’étranger* (Ottawa : Affaires mondiales Canada, 2014), online: <international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/csr-strat-rse.aspx?lang=fra>; Global Affairs Canada, *Responsible Business Conduct Abroad* (Ottawa: GAC, 2022), online: <international.gc.ca/trade-commerce/rbc-cre/strategy-2022-strategie.aspx?lang=eng>.</footnote>

<footnote n="5">*Protéger, respecter et réparer : un cadre pour les entreprises et les droits de l’homme. Rapport du Représentant spécial du Secrétaire général chargé de la question des droits de l’homme et des sociétés transnationales et autres entreprises, M. John Ruggie*, UNHRC, 8th Sess, UN Doc A/HRC/8/5 (2008); BHRRC, “Human Rights Defenders & Civic Freedoms Programme; Attacks against Human Rights Defenders Database” (nd), online: <business-humanrights.org/en/from-us/human-rights-defenders-database/>; EC, *Study on Due Diligence Requirements through the Supply Chain*, DS-01-20-017-EN-N, Brussels: EC 2020); IACHR,*Business and Human Rights: Inter-American Standards*, OEA/Ser.L/V/II, CIDH/REDESCA/INF.1/19 (2019).</footnote>

<footnote n="6">Michael Stohl & Cynthia Stohl, “Human Rights and Corporate Social Responsibility: Parallel Processes and Global Opportunities for States, Corporations, and NGOs” (2010) 1:1 Sustain Account Manag Policy J 51; see Thomas Berns, “L’efficacité comme norme” (2011) 4 Dissensus 150.</footnote>

<footnote n="7">Florian Wettstein, “Beyond Voluntariness, Beyond CSR: Making a Case for Human Rights and Justice” (2009) 114:1 Bus Soc Rev 125.</footnote>

<footnote n="8">Anita Ramasatry, “Corporate Social Responsibility Versus Business and Human Rights: Bridging the Gap Between Responsibility and Accountability” (2015) 14 J Hum Rights 237. See also Robert C Bird, Daniel R Cahoy & Jamie Darin Prenkert, eds, *Law, Business and Human Rights: Bridging the Gap* (Cheltenham: Edward Elgar, 2014); Alexandra R Harrington, “Don’t Mind the Gap: The Rise of Individual Complaint Mechanisms within International Human Rights Treaties” (2012) 22:2 Duke J Comp Int Law 153; Emmanuelle Mazuyer, “La responsabilité sociale de l’entreprise et ses relations avec le système juridique” (2011) 26:1 Can J Law Soc 177.</footnote>

<footnote n="9">James Harrison, “Establishing a Meaningful Human Rights Due Diligence Process for Corporations: Learning from Experience of Human Rights Impact Assessment” (2013) 31:2 Impact Assess Proj Apprais 107.</footnote>

<footnote n="10">Nigel Wilson, “Corporate Social Responsibility, the Business Judgment Rule and Human Rights in Australia - Warm Inner Glow or Warming the Globe?” (2012) 38:3 Monash Univ Law Rev 148.</footnote>

<footnote n="11">John R Owen & Deanna Kemp, “A Return to Responsibility: A Critique of the Single Actor Strategic Model of CSR” (2023) 341 J Environ Manage 118024 at 3; Etienne Roy Grégoire & Luz Marina Monzón, “Institutionalising CSR in Colombia’s Extractive Sector: Disciplining Society, Destabilising Enforcement?” (2017) 38:2 Can J Dev 253; Catherine Coumans, “Do No Harm? Mining Industry Responses to the Responsibility to Respect Human Rights” (2017) 38:2 Can J Dev Stud 272; Florian Wettstein, “Betting on the Wrong (Trojan) Horse: CSR and the Implementation of the UN Guiding Principles on Business and Human Rights” (2021) 6:2 Bus Hum Rights J 312.</footnote>

<footnote n="12">David Szablowski, *Transnational Law and Local Struggles: Mining Communities and the World Bank* (Oxford: Hart Publishing, 2007).</footnote>

<footnote n="13">François Ost & Michel van de Kerchove, *De la pyramide au réseau. Pour une théorie dialectique du droit* (Bruxelles: Faculté Universitaire Saint-Louis, 2002); François Ost, “De l’internormativité à la concurrence des normativités : quels sont le rôle et la place du droit ?” (2018) 59:1 Cah Droit 7.</footnote>

<footnote n="14">Saskia Sassen, “Nouvelle géographie politique” (2000) 3:3 Multitudes 79; Stuart Tannock, “Learning to Plunder: Global Education, Global Inequality and the Global City” (2010) 8:1 Policy Futur Educ 82; Karen Hamilton, “Les dons de l’industrie minière aux universités canadiennes: les enjeux de la philanthropie” (2012) RQDI 129.</footnote>

<footnote n="15">Daviken Studnicki-Gizbert, *The Three Deaths of Cerro de****San Pedro: Four Centuries of Extractivism in a Small Mexican Mining Town* (Chapel Hill: University of North Carolina Press, 2022).</footnote>

<footnote n="16">Charles Taylor, “Understanding and Explanation in The Geisteswissenschaften” in Steven H Holtzman & Christopher M Leich, eds, *Wittgenstein: To Follow a Rule*(Boston: Routledge, 1981) 191.</footnote>

<footnote n="17">Saskia Sassen, *Territory, Authority, Rights: From Medieval to Global Assemblages* (Princeton and Oxford: Princeton University Press, 2006).</footnote>

<footnote n="18">Fiona MacDonald, “Indigenous Peoples and Neoliberal ‘Privatization’ in Canada: Opportunities, Cautions and Constraints” (2011) 44:2 Can J Polit Sci 257; André-Jean Arnaud, *Entre modernité et mondialisation.**Leçons d’histoire et de philosophie du droit et de l’État*, 2nd ed, Série Droit (Paris: Librairie générale de droit et de jurisprudence, 2004); Aaron Mills, “The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today” (2016) 61:4 McGill LJ 847.</footnote>

<footnote n="19">Hans Kelsen, *Principles of International Law*, 2nd ed revised by Robert W Tucker, (New York: Holt, Rinehart and Winston, 1966); Christophe Bouriau et al, *Le droit international selon Hans Kelsen: Criminalités, responsabilités, normativités* (Lyon: ENS Éditions, 2018).</footnote>
# I. Theoretical Implications of the Ecosystemic Approach

Globalization has upset the relationship between norms and power, calling into question the political hegemony modernity bestowed on States and law. This is not an original observation; however, it opens up a myriad of socio-legal questions. Putting methodological nationalism aside<fnref n="20" /> calls into question the grounds for authority and legitimacy and makes it necessary to consider different conceptions of freedom and to interrogate the correspondence between norms and political communities in a multitude of social configurations.<fnref n="21" /> The political function commonly assigned to law is the first thing to be called into question. In a paradigm where the State dominates, the image of the pyramid imposes a political imperative of coherence and hierarchization on the normative sphere.<fnref n="22" /> In contemporary constitutionalism, coherence is intrinsically linked to societies’ democratic aspirations: it is through law that a society intends to determine itself. As for hierarchization, its purpose is precisely to place the fundamental values used to measure the legitimacy of all other norms at the top of the pyramid. The establishment of human dignity as a teleological imperative, for example, is reflected in the development of the human rights corpus.<fnref n="23" /> Extrapolating from a domestic law perspective, the “protection of human dignity” might also, following Anghie, be “considered the ultimate goal of international law.”<fnref n="24" /> Like other critical socio-legal approaches, we problematize the pyramid model on the basis of two complementary premises. The first is that the relationship between politics and law is intrinsically ambiguous.<fnref n="25" /> Law is a means by which society can govern itself and be a democratic political community, a means by which constituted power can be held to its word and a tool to resist the arbitrary exercise of authority. But law is also the language of “Reason of State” and, as such, an “anti-political” tool.<fnref n="26" /> Whether the “rule of law” plays an emancipatory role or serves as an anti-political tool in a given context is thus an empirical question, for both uses of the “rule of law” can coexist in the same society.<fnref n="27" /> This ambiguous political function of the law has been widely explored and discussed in the field of International Law, particularly by Third World Approaches to International Law (TWAIL) scholars. We share TWAIL’s ontological sensitivity about “the colonial origins and legacies of international law”<fnref n="28" /> and the seriousness with which they factor in systems of oppression affecting the Global South, such as “historically marginalized communities, race and political economy.”<fnref n="29" /> We also share Eslava and Pahuja’s methodological proposal to think “ethnographically about the many […] sites in which international law operates today.”<fnref n="30" /> According to these authors:

> Once we consider this plethora of spaces – new ‘jurisdictions’ – in which international law is being materialized today, it becomes clear that we should not confine our interrogations to only those sites that present themselves as ‘international’. The increasing number of jurisdictional forms that are now being created or recreated, in the name of good governance, sustainability or economic competitiveness deserve detailed attention - one capable of linking the existence and operation of these spaces to the ways in which the current global order is unfolding in the everyday lives of people across the world.<fnref n="31" />

Considering the constant evolution of CSR and BHR initiatives, the different power relationship between the numerous actors involved in the extractive business and human rights field and the entanglement of normative regimes in Canada and elsewhere, we believe that “the linguistic openness of rights discourse leads to policy being determinative of particular interpretive outcomes.”<fnref n="32" /> In this context, Koskenniemi insists on the fact that human rights, “like any legal vocabulary, is intrinsically open-ended[.] What gets read into it (or out of it) is a matter of subtle interpretative strategy.”<fnref n="33" /> Without pretending to “speak for the subaltern,”<fnref n="34" /> our ecosystemic perspective shares common objectives with Critical Legal Studies and TWAIL because it “provides opportunities for productive sociological analyses of the relational politics, structures and impacts of transnational human rights law, practice and discourse.”<fnref n="35" /> The second premise is inspired by “pragmatic” approaches to global law<fnref n="36" /> and uses the image of the ecosystem as a heuristic tool to analyze how different normative regimes interact with each other, regardless of their respective sources or formal status, and seeks to identify synergies or interferences between these systems.<fnref n="37" /> The aim is therefore to see how “different norms or other normative instruments, whether public or private, fit together, complement (or counteract) each other, in a concerted or unconcerted, voluntary or incidental way, in order to produce regulatory effects.”<fnref n="38" /> From an ecosystemic perspective, rather than being valued in terms of their respect for jurisdictional limits, institutions are called upon to act as “points of control.” Their actions can be valued on the basis of how they compensate for asymmetries between actors in the ecosystem, for example, or if they attach enforceable consequences to soft CSR instruments.<fnref n="39" /> Indeed, looking for coherence in the normative tangle governing the global extractive sector would be futile: new justifications – outside of coherence and distinct from the values put forward by each normative instrument – must thus be outlined. While it is beyond the scope of this article to develop this aspect of our theoretical argument, it is useful to mention that our approach’s normative horizon is to examine the impact of different inter-normative configurations on the structuring of political communities. It therefore becomes important “to extend the spatial scope of studies of the international” by including “the small places, where international work is actually – materially – done”<fnref n="40" /> such as extractive sites in Canada and sites Canadian companies operate elsewhere. This is an important point since, as radical legal pluralism scholars have argued, these political communities have no reason to be predetermined by jurisdictional frontiers.<fnref n="41" /> Extraterritorial considerations are thus inherent to our ecosystemic perspective. It must be stressed, however that this does not imply that political institutions – States, for example – should not be held to account. Rather, as Frydman has argued, the political dimension of ostensibly apolitical forces is brought into focus:

> By detaching the rule from its source and its order, we will undoubtedly be criticized for obscuring or even denying the link between the law and the power that imposes it, thereby [...] insidiously uncoupling law and politics. In reality, the opposite is true. […] [It perhaps gives] us a better idea of the forces, not only political, but economic and technical, that impose their hold on reality through the intermediary of norms.<fnref n="42" />

We aim to contribute to making such forces visible, outlining alignments of interests and identifying suppressed voices that an exclusively positivist approach would miss.

<footnote n="20">Jean L Cohen, *Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism* (Cambridge: Cambridge University Press, 2012); Stephen Gardbaum, “Human Rights as International Constitutional Rights” (2008) 19:4 Eur J Int Law 749.</footnote>

<footnote n="21">Antony Anghie, “Rethinking International Law: A TWAIL Retrospective” (2023) 34:1 EJIL 83.</footnote>

<footnote n="22">Liora Israël, *L’arme du droit*, (Paris: Presses de Science Po, 2009).</footnote>

<footnote n="23">Julieta Lemaitre, “Legal Fetishism at Home and Abroad” (2007) 3 Unbound 6.</footnote>

<footnote n="24">See for example Marc-André Anzueto, Etienne Roy Grégoire & Philippe Dufort, “Beyond the ‘Weakness of the State’: Canada’s Intervention in Post-Agreement Colombia” (2022) 77:2 Int J 248.</footnote>

<footnote n="25">Arnulf Becker Lorca, “After TWAIL’s Success, What Next? Afterword to the Foreword by Antony Anghie” (2023) 34:4 Eur J Int Law 780.</footnote>

<footnote n="26">Antony Anghie, “Rethinking International Law: A TWAIL Retrospective” (2023) 34:1 Eur J Int Law 111.</footnote>

<footnote n="27">*Ibid*, 126-27.</footnote>

<footnote n="28">*Ibid*, 127.</footnote>

<footnote n="29">Martti Koskenniemi, *The Politics of International Law* (Oxford: Bloomsbury Publishing, 2011) 147.</footnote>

<footnote n="30">Martti Koskenniemi, “The Politics of International Law–20 Years Later” (2009) 20:1 Eur J of Int Law 9.</footnote>

<footnote n="31">See Naz Khatoon Modirzadeh, “‘Let Us All Agree to Die a Little’: TWAIL’s Unfulfilled Promise” (2024) 65:1 Harvard Int Law J 102.</footnote>

<footnote n="32">Sylvia Bawa & Obiora Chinedu Okafor, “Canada-AU Human Rights Engagements: A TWAIL Perspective” (2022) 56:3 Can J Af Stud 482-483; Kishanthi Parella, “Hard and Soft Law Preferences in Business and Human Rights” (2020) 114 AJIL Unbound 168 at 168.</footnote>

<footnote n="33">Benoît Frydman, “Comment penser le droit global?” in Benoît Frydman & Jean-Yves Chérot, eds, *La science du droit dans la globalisation* (Bruxelles: Bruylant, 2012) at 17.</footnote>

<footnote n="34">See Etienne Roy Grégoire, “Gouvernementalité extractive et autodétermination au Canada. Écosystèmes normatifs et charge critique de l’inter-normativité” (2020) 35:3 Rev Can Droit Société 455.</footnote>

<footnote n="35">Benoît Frydman, “Stratégies de responsabilisation des entreprises à l’ère de la mondialisation” in Thomas Berns et al, eds, *Entreprise*s *responsables et corégulation* (Bruxelles: Bruylant, 2007) 1 at 45.</footnote>

<footnote n="36">Benoît Frydman, “Coregulation: A Possible Model for Global Governance” in B De Shutter & J Pas, eds, *About Globalization: Views on the Trajectory of Mondialisation* (Brussels: Brussels University Press, 2004) 227.</footnote>

<footnote n="37">Luis Eslava & Sundhya Pahuja, “Between Resistance and Reform: TWAIL and the Universality of International Law” (2011) 3:1 Trade L & Dev 127.</footnote>

<footnote n="38">Martha-Marie Kleinhans & Roderick Macdonald, “What Is a Critical Legal Pluralism?” (1997) 12:2 Can J Law Soc Can Droit Société 25–46; Jacques Vanderlinden, “Les pluralismes juridiques” in Edwidge Rude-Antoine & Geneviève Chrétien-Vernicos, eds, *Anthropologies et droits. État des savoirs et orientations contemporaines*(Paris: Dalloz, 2009) 25; Jeremy Webber et al, “Sally Engle Merry, Legal Pluralism, and the Radicalization of Comparative Law” (2020) 54:4 Law Soc Rev 846–57.</footnote>

<footnote n="39">Frydman, *supra* note 33 at 26–7.</footnote>

<footnote n="40">United Nations Human Rights Office of the High Commissioner, “Mandatory human rights due diligence (mHRDD)” (last visited 15 July 2023), online: <www.ohchr.org/en/special-procedures/wg-business/mandatory-human-rights-due-diligence-mhrdd>.</footnote>

<footnote n="41">Parella, *supra*note 32 at 173.</footnote>

<footnote n="42">The first category comprises legislation that requires companies to disclose information regarding their human rights and/or environmental impacts and/or the policies they have in place to deal with those impacts. An example is the 2015 UK Modern Slavery Act. See Liesbeth FH Enneking, “Putting the Dutch Child Labour Due Diligence Act into Perspective. An Assessment of the CLDD Act’s Legal and Policy Relevance in the Netherlands and Beyond” (2019) 12 Erasmus Rev 20 at 29-30.</footnote>
# III. The Potential of an Ecosystemic Approach to Normativity Beyond MHREDD

In such an exploration of the operationalization of an ecosystemic approach, pertinent areas of concern and intervention might include areas such as those described below.

## A. Supporting Grassroots Legal Practices

The fragmented way in which BHR norms are enshrined in different documents – some binding and others voluntary – has led to an apparent opposition between companies’ interests and States’ human rights obligations. In this context, affected communities’ grievances are primarily addressed by the project proponents’ CSR instruments, which are explicitly framed around the operators’ interests (however enlightened they may be) rather than furthering human dignity and rights.<fnref n="98" /> Different forms of oppression affect communities opposing extractive projects and different factors shape their actions.<fnref n="99" /> Understanding local movements’ actions, as well as their political underpinnings, is essential to supporting affected communities better.<fnref n="100" /> It will also help enrich international and State law by incorporating legal practices that emerge from grassroots movements.<fnref n="101" />

## B. Re-aligning Professional Ethics with Human Dignity and Rights in the
				Diplomatic Service

Addressing different institutions’ behaviour from an ecosystemic approach broadens analyses of extractive legal and political infrastructures, and requires studying them in practice and in the context of the development and application of norms. Among the actors and institutions that can have a significant impact on corporate behaviour and accountability are those involved in economic diplomacy, as they also shape foreign jurisdictions. In the case of Canada, for example, Canadian-listed companies have regularly benefitted from Canadian embassies’ diplomatic support. However, at times, this support ignores or contradicts human rights imperatives and related foreign policy objectives. Through access to information (ATI) requests,<fnref n="102" /> a growing body of research suggests, as Szablowski noted, that Canadian “embassy staff tend to prioritize the economic interests of Canadian extractive firms and adopt industry perspectives” especially on the “illegitimacy of local concerns and protest.”<fnref n="103" /> Between 2005 and 2017, for example, Canadian extractive investment in the Marlin gold mine in western Guatemala was met with opposition and resulted in attacks against human rights defenders. In this context, in 2010, the Canadian Embassy in Guatemala developed a political advocacy campaign in support of the Canadian mining company Goldcorp, then owner of the Marlin mine, to ensure that it could continue to operate. This support openly contradicted a legally binding order of the Inter-American Court of Human Rights that had granted protection measures to Indigenous human rights defenders opposing the Marlin mining project.<fnref n="104" /> As a result, scholars recommend using the notion of “diplomatic liability” and including it in the “broader concept of home-state responsibility over the conduct of extractive companies” to consider diplomats’ institutional and individual responsibility. This would imply holding them accountable if they promote or engage in activities that result in human rights abuses.<fnref n="105" />

## C. Transnational Litigation

Transnational civil litigation can bring important changes to the extractive normative ecosystem by enabling transnational fora to receive complaints that would normally have been considered in the host country’s national courts.<fnref n="106" /> This creates new opportunities for the targets of human rights violations in situations where domestic courts are insufficiently independent of local governments or elites and where law enforcement is often involved in human rights violations related to extractive projects.<fnref n="107" /> Transnational litigation has the potential to transform the implications of CSR policies, introducing real responsibility into what was meant as a merely rhetorical exercise. In the case of Canada, for example, transnational litigation has introduced a distinct interpretation of the parent company’s duty of care in jurisprudence, creating a propitious context for plaintiffs.<fnref n="108" /> In *Choc v Hudbay*, Maya-Q’eqchi’ villagers were allegedly shot at by security personnel while protesting the Hudbay mining project in Guatemala. A Maya-Q’eqchi’ schoolteacher and activist was killed and many Maya-Q’eqchi’ women were raped. Hudbay’s motion to dismiss claims rested on the argument that a parent company does not owe a duty of care to those wronged by its subsidiary’s actions.<fnref n="109" /> The Ontario Supreme Court, however, dismissed Hudbay’s motion and concluded that Hudbay Minerals had established a relationship of proximity between the two parties by publicly committing to CSR in Guatemala and by adopting the Voluntary Principles on Security and Human Rights.<fnref n="110" /> According to the Court:

> (33) The human rights implications of transnational corporate activity have received the attention of numerous international and intergovernmental organizations over the past few decades and have resulted in a range of voluntary codes of conduct developed in conjunction with multinational corporations. Such codes of conduct include the Voluntary Principles on Security and Human Rights, which were established in 2000 and elaborate norms for corporate conduct in the extractive industry when engaging public and private security forces to protect business interests in areas with a potential for violence or conflict. The Voluntary Principles call for a risk assessment of the human rights impacts of security forces and require corporations to screen and train security personnel and establish clear parameters for their use of force. Hudbay stated that this code guided their corporate conduct.<fnref n="111" />

The initial petition was filed in Canada in 2010. The case is ongoing. While the Canadian court’s recognition of a corporate duty of care towards affected communities is a positive step for the victims in *Choc v Hudbay*, this important development took place several years after the case started. Moreover, it only opens an avenue for the victims to continue pursuing justice. This particularly long and persistent struggle for justice is only one of many other struggles worldwide; States like Canada should be setting a positive example and advancing standards. The challenge of advancing such standards and effectively applying them to positively transform the adverse realities of so many victims affected by extractivism confirms the relevance of the ecosystemic perspective. It not only helps navigate the entanglement of normative regimes but also helps identify and measure their effectiveness. In such a context, an ecosystemic perspective grounded in the victims’ realities helps reveal the actual role of the normative instruments and the institutions in charge of applying them. It also shows how such laws and institutions create conditions that affect victims of corporate abuse, facilitating or worsening their search for justice, and identifies pertinent areas of intervention that could contribute to realizing environmental protections, human dignity and rights. For these reasons, the ecosystemic perspective merits far greater attention.

<footnote n="98">Sally Engle Merry, “Legal Pluralism and Legal Culture” in Brian Z Tamanaha, Caroline Sage & Michael Woolcock, eds, *Legal Pluralism and Development: Scholars and Practitioners in Dialogue* (Cambridge: Cambridge University Press, 2012) 66; Nora Götzmann et al, “From Formalism to Feminism: Gender, Business and Human Rights” (2022) 7:1 Bus Hum Rights J 1 at 9; Leigh Payne, Gabriel Pereira & Laura Bernal-Bermúdez, *Transitional Justice and Corporate Accountability from Below: Deploying Archimedes’ Lever* (Cambridge: Cambridge University Press, 2020).</footnote>

<footnote n="99">See Caren Weisbart, “Diplomacy at a Canadian Mine Site in Guatemala” (2018) Advanced online version Crit Criminol; Caren Weisbart, Jennifer Moore & Charlotte Connolly, “Qualifying as Canadian: Economic Diplomacy, Mining, and Racism at the Escobal Mine in Guatemala” in David P Thomas & Veldon Coburn, eds, *Capitalism & Dispossession: Corporate Canada at Home and Abroad* (Blackpoint: Fernwood Publishing, 2022).</footnote>

<footnote n="100">David Szablowski, “Economic Diplomacy and Home State Responsibility for Human Rights Abuses Involving Extractive Industries Abroad: The Case of Canada” (2024) Bus Hum Rights J 4.</footnote>

<footnote n="101">Charlotte Connolly & Charis Kamphuis, *The Two Faces of Canadian Diplomacy: Undermining International Institutions to Support Canadian Mining* (Toronto: Justice & Corporate Accountability Project, 2022) at 31.</footnote>

<footnote n="102">Melisha Charles & Philippe Le Billon, “Corporate Accountability and Diplomatic Liability in Overseas Extractive Projects” (2021) 8:1 Extr Ind Soc 467 at 470.</footnote>

<footnote n="103">For instance, the Canadian Supreme Court’s 2020 decision in *Nevsun Resources v Araya* has “opened the possibility of a novel front for transnational human rights litigation: common law tort claims based on customary international law”. See Beatrice A Walton “Nevsun Resources Ltd v Araya” (2021) 115:1 Am J Int Law 107; See also Catherine Coumans, “‘Minding the “Governance Gaps’: Re-Thinking Conceptualizations of Host State ‘Weak Governance’ and Re-Focusing on Home State Governance to Prevent and Remedy Harm by Multinational Mining Companies and Their Subsidiaries” (2019) 6:3 Ext Ind Soc 675; Simons, *supra* note 5; Roger P Alford, “Human Rights after Kiobel: Choice of Law and the Rise of Transnational Tort Litigation” (2014) 63:5 Emory Law J 1089.</footnote>

<footnote n="104">Charles & Le Billon*, supra* note 102 at 468.</footnote>

<footnote n="105">*Ibid* at 474.</footnote>

<footnote n="106">Julianne Hughes Jeannett & Marjun Parcasio, “Corporate Civil Liability for Breaches of Customary International Law: Supreme Court of Canada Opens Door to Common Law Claims in Nevsun V Araya”, (29 March 2020), online: <ejiltalk.org/corporate-civil-liability-for-breaches-of-customary-international-law-supreme-court-of-canada-opens-door-to-common-law-claims-in-nevsun-v-araya/>.</footnote>

<footnote n="107">Charles & Le Billon*, supra* note 103 at 474. See also JA Zerk, *Multinationals and Corporate Social Responsibility* (Cambridge University Press, 2006). For a full account of transnational civil lawsuits related to Canadian extractive activities overseas, see Above Ground, *Transnational Lawsuits in Canada against Extractive Companies. Development in Civil Litigation* (Vancouver: Above Ground, 2018).</footnote>

<footnote n="108">*Choc v Hudbay Minerals Inc*, 2013 ONSC 1414.</footnote>

<footnote n="109">*Tsilhqot’in v British Columbia,* (2014) SCC 44 at para 87; Micheal Rios, “Indigenous Community in Ecuador Wins Legal Fight to Reclaim Ancestral Land After More Than 80 Years”, CNN (29 November 2023), online: <cnn.com/2023/11/29/americas/indigenous-siekopai-ecuador-court-battle-intl-hnk/index.html>.</footnote>
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An ecosystemic analysis of different mHREDD unmasks the complexity of the norms at play when regulating the extractive sector. As shown with the French and Dutch laws, it is the arrangement of soft and hard rules that allows for the emergence of a normative framework that can enforce mHREDD rules in a more efficient manner. The ecosystemic approach points to the normative language that emerges when States apply regulatory rules to extractive companies. It also offers tools to understand mHREDD with an emphasis on the people who are affected by the extractive companies by placing the effects of these rules in context and in relation to other norms that are present in local contexts. The ecosystemic approach also connects mHREDD with other key issues like development and power dynamics between affected communities and State officials such as diplomats. With the shared objectives of developing more effective systems to protect the environment and human rights in relation to corporate practices, several countries (mainly in Europe) are developing stronger normative frameworks. However, these developments are still preliminary and fragile; some laws that have entered into force have already shown important limitations. Despite these challenges, the European cases are relevant examples to follow in implementing changes to the current Canadian mHREDD that could be beneficial to the populations affected by Canadian companies. Moreover, the growing recognition of Indigenous jurisdiction over ancestral lands in Canada and abroad<fnref n="112" /> should push Canada to consider those norms in its BHR policy. Institutions such as the CORE must also adopt an approach that considers Indigenous norms and rights in their investigation of complaints against the extractive sector. In such a context, an ecosystemic perspective grounded in the victims’ realities helps reveal the actual role of the normative instruments and the institutions in charge of applying them. It also shows how such laws and institutions create conditions that affect victims of corporate abuse, facilitating or worsening their search for justice, and identifies pertinent areas of intervention that could contribute to realizing environmental protections, human dignity and rights.