Law in Quebec

The proposal is one of several made by the UN panel to ensure that federal and provincial governments strengthen access to both judicial and non-judicial remedial mechanisms to victims of human rights abuses.

“The suggestion of having an ombudsperson who has the ability to issue enforceable powers is something that the Canadian government should definitely look into and consider,” remarked Emily Dwyer, the coordinator of the Canadian Network on Corporate Accountability (CNCA), a coalition of labour, social justice, and human rights organizations that keeps an eye on the Canadian extractive sector’s efforts on human rights and the environment.

The CNCA has long campaigned for the creation of an office for an ombudsperson to handle the grievances of people affected by Canadian oil, gas and mining companies abroad. In November 2016, the CNCA published a model legislation shortly after disturbing findings were published by researchers organized by York University’s Osgoode Hall Law School.

The report details murders, rapes, beatings, and other injustices perpetrated against opponents of Canadian-owned mines between 2000 and 2015 by various actors. It noted at least 44 deaths and more than 400 people injured. The report “does not come to conclusions on whether there is any wrongdoing by any company in any specific instance, but rather shows that the magnitude of the harms and the proximity of the incidents to Canadian mining companies raises overarching concerns,” said the Justice and Corporate Accountability Project press release.

Canada is a key global player in the mining sector. It is home to more than half of the world’s mining companies, operating in Canada and across the globe. It is also a center for extractive sector finance, with 57 per cent of the world’s public mining companies listed on the Toronto Stock Exchange (TSX) and the TSX-Venture Exchange. All told, the extractive sector – mining, oil and gas extraction – in Canada accounts for approximately seven per cent of the country’s GDP, with the mining sector being the largest private sector employer, employing some 375,000 persons.

The model proposed by the CNCA doesn’t go as far as the one recommended by the UN panel. The UN panel says that “there is a role for an institution like an ombudsperson” and for it to be effective the government “should establish an entity which is independent, well-resourced, and has the power to conduct fact-finding, and enforce its orders, in line with other similar institutions in Canada.”

The model suggested by the CNCA recommends that an ombudsperson be charged with investigating allegations of human rights abuse or environmental damage — and form an opinion on whether companies are causing or contributing to harm. Further, the ombudsperson would make public recommendations of actions that could be taken by companies or the Canadian government to stop abuses, provide remedy to victims or prevent future harm.

In 2015, the federal Liberal Party, New Democratic Party, Green Party and Bloc Quebecois each committed to creating a human rights ombudsperson for the extractive sector, adding even more weight to a call made by a national roundtable of industry and civil society leaders that called on the Canadian government a decade to create such an office.

It appears some headway has been made. The federal government is apparently “seriously reviewing” the creation of an ombudsperson to investigate Canadian companies implicated in wrongdoing abroad, according Canada’s corporate social responsibility counsellor (CSR) for the extractive sector, Jeffrey Davidson.

There is no doubt that an ombudsperson with the powers suggested by the UN panel would have much more authority than that of the existing corporate social responsibility counsellor. In 2009 Ottawa tried to encourage the Canadian extractive sector to change the way they did business in the developing world by introducing a Corporate Social Responsibility Strategy. It was updated in 2014 to redefine the role of the Office of the Extractive Sector CSR counsellor, introduced international best practices extractive companies should adopt and linked Canada’s economic diplomacy assistance in foreign jurisdictions to a company’s adherence to the policy.

But the UN Panel seems to suggest that the CSR Counsellor perform a different role than is now the case. At present the CSR Counsellor advises extractive companies on the implementation of CSR standards, reviews the CSR practices of Canadian extractive companies operating abroad, and assists companies and stakeholders affected by projects that are outside of Canada with dispute resolution.

“We recommend that the Counsellor should primarily focus on raising awareness, advising and building capacity around business respect for human rights in all sectors, including the extractive sector,” said the UN panel.

The UN Panel also recommends making the so-called National Contact Point (NCP) more independent to address concerns about a perceived conflict of interest between promoting trade objectives and human rights goals. The NCP is an interdepartmental committee chaired by Global Affairs Canada that promotes awareness of the OECD Guidelines for Multinational Enterprises. Global Affairs Canada manages the country’s diplomatic and consular relations and promotes international development and humanitarian assistance.

The UN panel also recommends that federal and provincial governments take measures to remove “well-known barriers” to access judicial remedies.

“We found evidence of the victims of human rights abuses continuing to struggle in seeking adequate and timely remedies against Canadian businesses,” noted the UN panel. “Promoting respect for human rights, both at home and abroad, is a core component of Canadian values. However, rights without effective remedies do not mean much in practice.”

That is a stinging rebuke, and should propel federal and provincial governments to take “significant” action on corporate accountability, said Dwyer.

“We are calling for a human rights-based foreign and international development policy,” said Dwyer. “You can’t be successful in those aims without addressing what is arguably the largest scourge to Canada’s reputation and Canada’s human rights’ impacts around the world which is the Canadian extractive sector.”