This piece by CNCA Policy Director Emily Dwyer was originally posted in the Business and Human Rights Resource Centre on 15 May 2019.
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The Canadian government’s U-turn risks putting brave human rights defenders in danger
The outlook for human rights defenders and others harmed by Canadian corporations overseas recently became much bleaker.
On the 8th of April, the Canadian government backtracked on a commitment to create an independent ombudsperson on corporate human rights. Instead, they appointed a special adviser to the Minister of International Trade Diversification, stripping the new office of all powers and mandate to investigate allegations of abuse tied to Canadian companies overseas.
What can explain this major setback? The answer is that industry influence in Canada gutted the creation of this innovative office before it could get off the ground.
For well over a decade, Canadians and Canada’s decision-makers have grappled with widespread, well-founded allegations that Canadian companies and their supply chains are linked to serious human rights abuses in every corner of the world. In January 2018, it looked like the government of Canada was finally recognizing its responsibility and taking allegations seriously.
The government committed to a world-first: a Canadian Ombudsperson for Responsible Enterprise (CORE) with a robust mandate to investigate and the power to do so effectively, including the power to compel documents and testimony. The independent office would report publicly and have broad discretion to make recommendations, including for remedy, and for law and policy reform to prevent recurrence.
The version of the CORE unveiled last month is a far cry from the promise made a year prior. It betrays a commitment to take seriously abundant abuse allegations and disregards Canada’s international obligations to uphold and promote human rights.
The CORE is not mandated to investigate
The decade-long campaign to create an ombudsperson in Canada was fundamentally about establishing an office that could independently investigate. This defining feature of an ombudsperson fills the gap between existing non-judicial mediation-based mechanisms and the courts.
Industry’s fierce lobbying against the power to investigate appears to have worked. The word ‘investigate’ does not appear once in the cabinet order outlining the CORE’s mandate. The office has been restricted to reviewing complaints.
The government has commissioned an external study to give advice on how best to provide the CORE with powers to investigate at some undetermined later date. But with only a few weeks before parliament dissolves for federal elections, this may be more of a stalling tactic than a real commitment.
The CORE is not independent
Instead of operating independently, the CORE and her future staff have been appointed as public servants, reporting to the Minister of International Trade Diversification. Ministerial oversight opens the door to real, and perceived, government interference in everything from the complaints the CORE accepts, to her final reports and recommendations.
The CORE’s ‘SLAPP suit clause’ could make human rights defenders more vulnerable
The cabinet order has a clause that allows corporations to submit complaints regarding what they perceive as unfounded human rights abuse allegations. The inclusion of this clause demonstrates a failure to appreciate the underlying conditions that make an ombudsperson necessary in the first place.
Further, merely accepting such a complaint could further endanger the lives of human rights defenders in many corners of the world and runs counter to Canada’s public commitments to protect human rights defenders at risk.
By design, the cabinet order precludes most complaints:
a. The CORE can only look at a fraction of Canadian supply chains
The CORE is restricted from examining companies other than those registered in Canada and their legally-controlled subsidiaries, setting the bar for legal control at 50 percent. This restriction ignores the many circumstances where de facto control over the management and policies of another company exists without reaching this threshold.
Companies that are incorporated elsewhere, even if they receive the benefits of listing on Canadian stocks exchanges and/or receive Canadian government support, are also now excluded from the CORE’s purview.
b. Reviews are limited to harms taking place after April 8th, 2019
International human rights obligations come into effect the moment a country signs and ratifies the instrument. Nevertheless, claims regarding incidents that took place prior to the appointment of the CORE will not be accepted, unless the abuses are deemed to be “ongoing” – a term that has been left undefined. The CORE also has no mandate to investigate serious risk of imminent harm, leaving vulnerable communities in dangerous limbo.
c. The CORE can dismiss virtually any complaint
The CORE has full discretion to dismiss a complaint being reviewed in any other forum, with no qualifier regarding the likelihood the complaint will receive adequate attention. The CORE can pass off any complaint to arbitration, law enforcement, another regulatory authority, or Canada’s National Contact Point. The CORE has no mandate to ensure follow-up with other agencies.
A broken promise and a major setback
Human rights and environmental defenders denounce abuses associated with Canadian companies at great personal risk. They need an independent ombudsperson’s office in Canada with the power to take their allegations seriously.
With only a few weeks before parliament dissolves, the window of opportunity to make good on a commitment to an ombudsperson’s office with teeth is rapidly closing.
