Human rights groups concerned about powers for long-delayed mining, textile ombudsman

28 January 2019

Article published in The Hill Times

BY PETER MAZEREEUW

Human rights advocates are worried the government is under pressure to break its promise to give the ombudsperson powers to compel witnesses and documents.

The government is getting ready to finally appoint its ombudsperson for responsible enterprise, a year after it announced a plan to do so, but some human rights advocates close to the file are concerned that it is under pressure to go back on its promise to give the new watchdog powers to compel documents and testimony.

“We have not been given clear assurances that these will indeed be endowed upon the ombudsperson,” said Catherine Coumans, a research coordinator for Mining Watch Canada, which has advocated for the creation of an ombudsperson for years.

Creating the ombudsperson to supervise the behaviour of Canadian companies overseas was an election promise for the Liberals in 2015. The government committed, when it announced a year ago that it would make good on that promise, to give the ombudsperson powers to compel documents and testimony if he or she launches a formal investigation of a Canadian company. That commitment is still displayed in a Q&A on the Global Affairs website.

“If that were not to be the case when the ombudsperson is announced, that is going to be a very big problem for civil society,” said Ms. Coumans.

Mining Watch is a member of the Canadian Network on Corporate Accountability, which is one of the members of the Multi-stakeholder Advisory Body on Responsible Business advising Trade Minister Jim Carr (Winnipeg South Centre, Man.) on how the new ombudsperson’s office should be created.

Amnesty International Canada secretary general Alex Neve, a member of the advisory body, said the powers would have to be granted through Canada’s Inquiries Act in order to have legal authority, since the ombudsperson’s office is not being created through legislation. Mr. Neve and Emily Dwyer, the Canadian Network on Corporate Accountability’s member on the advisory board, also expressed concern about pressure being put on the government to water down the ombudsperson’s powers.

The Mining Association of Canada has made clear to the government that it does not approve of giving the new ombudsperson the powers to compel documents and testimony.

MAC president and CEO Pierre Gratton hold The Hill Times that doing so would set the ombudsperson up to be “adversarial” with industry, a role better suited to the court system, which has recently begun hearing cases brought against Canadian companies in relation to their overseas operations more often.

“We don’t think it’s permissible, and we think it’s the wrong policy approach,” he said.

Details of the new ombudsperson’s powers and responsibilities will be laid out through an order in council, said Mr. Carr’s office.

Candidates have already been interviewed

Mr. Carr told the House of Commons on Dec. 11 that he would be announcing the appointment “very soon.”

The interview process for applicants to the job posting has been completed, said Mr. Neve and John Ruggie, an expert in human rights practices by international businesses at the Harvard Kennedy School in Massachusetts and another member of the advisory body.

“I heard [the appointment] was close before Christmas,” said Mr. Gratton, adding that the MAC—another advisory body member—had not lobbied the government on the appointment process, and “We’d like to see this spot filled sooner rather than later.”

Liberal MP John McKay (Scarborough-Guildwood, Ont.), who has advocated for years for the creation of such an ombudsperson, told The Hill Times he was becoming frustrated with the delay to making good on what had been a Liberal election promise to create the ombudsperson.

“Enough is enough. This is three and a half years. We’re not digging the Suez Canal here,” he said.

Mr. Carr’s office did not answer questions about the reasons behind the year-long delay to the appointment, instead responding with a statement that said progress towards the appointment was being made.

Mr. Carr said in the House on Dec. 11 that there had been “great interest” in the post from applicants.

The government has advertised the job and interviewed several dozen candidates twice over the last year, said several sources following the matter, on the record and on background. The most recent job posting, with a Dec. 4 deadline for applications, listed the salary range at between $183,600 and $216,000 per year.

The job posting listed numerous requirements for applicants, including experience with human rights and “responsible business conduct,” management experience, stakeholder engagement, knowledge of the government’s corporate social responsibility policies, experience related to “gender-sensitive investigations,” and more.

Very few people would meet all of the listed requirements, said Mr. Gratton.

In an interview with The Hill Times last year, the government’s now-former extractive sector CSR counsellor Jeffrey Davidson said he was concerned the government would have a hard time finding someone with both the breadth and depth of experience needed for the new ombudsperson role.

Ombudsperson office years in the making

The ombudsperson’s office, as announced, will attempt to supervise the overseas work of companies in Canada’s textiles, oil and gas, and mining sectors, expanding to cover even more industries after its first year.

Human rights advocates including the CNCA have pushed for years for the creation of an ombudsperson to serve as a watchdog for human rights and environmental violations perpetrated by employees of, or those working in the interest of, Canada’s mining companies, particularly in less developed countries.

Many of the world’s mining companies have headquarters in Toronto or Vancouver. Numerous mine sites owned by Canadian companies have been the scene of violence in years past, often involving security staff or local police working in the interest of the mine, and those protesting the mine’s operation, or trespassing on its property.

Mr. Gratton and the MAC have repeatedly said that the mining industry in Canada has taken steps to ensure those crimes don’t happen anymore, and that the most egregious cases of violence—such as the mass rape of women at a mine in Papua New Guinea owned by Barrick Gold in 2010—occurred years ago before the industry had improved its practices. Human rights organizations such as Mining Watch have continued to highlight claims of human rights abuses or environmental degradation connected to Canadian mines in recent years.

The ombudsperson’s office will also replace Mr. Davidson’s former CSR counsellor office, which was criticized by some human rights groups for being powerless to prosecute and punish Canadian companies that had done wrong. Mr. Davidson had the power to recommend that the Canadian government stop providing diplomatic support and government-backed loans to extractive companies that did not cooperate with him, though he never did, instead focusing on informally defusing tension between mining companies and communities near controversial mine sites abroad.

Mr. Davidson told The Hill Times last March that he struggled with staffing and budgeting for his office during his three-year term, as they were essentially controlled or restricted by Global Affairs Canada. He also had trouble connecting with small mining companies headquartered in Canada and some human rights groups that refused to meet with him. He described those troubles, as well as his achievements on the job—including meeting with numerous mining companies and affected communities, and condensing the international obligations imposed upon Canadian mining companies into a more convenient guide—in annual reports to Parliament. The government has yet to table Mr. Davidson’s final report to Parliament in the House of Commons, thereby making it public, after receiving it in the spring. Mr. Carr’s office said the report will be tabled in “early” 2019.