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CNCA case studies: how mandatory human rights and environmental due diligence legislation can prevent abuse by Canadian companies abroad

Darren Shore — Wed, 01 Mar 2023 12:00:00 +0000

Many Canadian companies and their subsidiaries have been linked to allegations of ongoing and widespread human rights abuses abroad, including killings, torture, forced labour, arbitrary detention and intimidation. Canada has a legal and ethical duty to uphold respect for human rights everywhere. Canadian corporations need to be held accountable. Voluntary measures don’t work. To prevent abuses, Canada needs strong laws and regulations.

The CNCA has published case studies showing how mandatory human rights and environmental due diligence legislation can help rein in abuse by Canadian-based multinationals.

Case Studies

Wage theft and unpaid severance

Garment workers were suddenly left unemployed when a knitwear factory in Cambodia closed without warning. Workers were never paid their legally owed wages, severance, and other legal entitlements. According to import records and worker testimonies, the factory produced clothing for a Canadian company. Learn more…

Freedom of association and threats of violence, death

When workers at a Canadian-owned gold mine in Mexico carried out a work stoppage to demand their right to be represented by an independent union of their own choosing, a series of violent events ensued. Four individuals were killed. Workers were deterred from continuing to protest due to the fear of violent reprisals. Learn more…

Forced labour in Canada’s PPE supply chains

Canadian companies imported personal protective equipment (PPE) from rubber glove manufacturers associated with allegations of forced labour practices, while U.S. Customs and Border Protection (CBP) was barring imports of those goods into the United States. Learn more…

Violent deaths, criminalization and land grabbing

A Canadian company had a subsidiary in the Democratic Republic of the Congo that produced palm oil. A series of abuses have been reported over the lifespan of that subsidiary, including during the Canadian company’s ownership, including killings, intimidation, arbitrary arrest and wage theft. Learn more…

Human rights abuses

A Canadian company has been criticized by human rights groups for failing to appropriately acknowledge, investigate or address abuses by mine security and police guarding a mine in Papua New Guinea, despite repeated reports of killings and beatings of men and boys, rapes and gang rapes of women and girls, and house burnings. Learn more…

Environmental contamination and human rights abuses

A Canadian gold and silver mine in Guatemala allegedly caused 10 water springs to disappear, 500 families’ homes to sustain cracks in infrastructure, and skin impacts in children from contaminated water. The largely Indigenous Mayan population was left to deal with long-term environmental impacts. Learn more…

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Comparative Chart: Don’t Mistake Reporting for Accountability

Aidan Gilchrist-Blackwood — Thu, 02 Jun 2022 17:13:09 +0000

Canada must require Canadian companies to respect human rights throughout their supply chains.

Canada is at a crossroads: We can take principled and effective action against harmful corporate practices, or we can remain complicit with ongoing human rights violations.

Canadian companies are responsible for grave human rights abuses in their global operations and supply chains, including killings [1], sexual violence [2], water contamination [3], land grabs [4], poverty wages [5], and forced labour [6]. The United Nations Working Group on Business and Human Rights has repeatedly highlighted the Canadian government’s inaction and called on Canada [7] to implement binding human rights legislation. Canada must finally answer the UN’s call to put in place measures that protect people and the planet.

Canadian parliamentarians are considering two kinds of proposals for a new business and human rights law:

A Reporting law (represented by Bills C-243 and S-211) requires only that if companies have taken measures to identify forced labour in their supply chains, they must report on them and assess their effectiveness. It does not require companies to take such measures, nor even to confirm or deny whether they have used forced labour.
A Human rights and accountability law (represented by Bill C-262) would require Canadian companies to respect human rights, would impose penalties for causing harm, and would give communities access to remedy.

Which option will Canada choose?

We prepared this chart to compare the two contrasting approaches and help Canadians cut through the jargon.

Comparative Chart: Bill C-243/S-211 vs. Bill C-262

ESSENTIAL FEATURE	MODERN SLAVERY REPORTING BILL C-243/S-211	HUMAN RIGHTS AND ACCOUNTABILITY BILL C-262
Does it require companies to respect human rights?	NO. Companies are required to report annually on whether they took steps to identify and prevent the use of forced labour, and what they found. It does not require companies to respect human rights.	YES. It recognizes that companies have a responsibility to respect human rights, and must proactively take steps to prevent human rights violations throughout their supply chains and global operations.
Does it require companies to prevent harm?	NO. It requires an annual report. It does not require companies to prevent harm.	YES. It creates an explicit obligation for companies to prevent serious adverse impacts throughout their supply chains and global operations.
Does it require companies to take steps to identify, mitigate, prevent and account for human rights and environmental harm in their supply chains (due diligence)?	NO. Companies are not required to take any due diligence measures. A company may report that it has not taken measures and be in compliance with the law.	YES. It creates an explicit obligation for companies to put in place adequate due diligence procedures. It makes reference to international best practice guidance from the OECD and the UN Guiding Principles on BHR.
Are there meaningful consequences if companies cause harm or fail to implement adequate due diligence procedures?	NO. There are no consequences for failure to prevent harm or for failure to implement due diligence procedures. Failure to report or submitting false reports may result in a fine. As long as a company reports, it can continue to profit from abuse without even a fine.	YES. The legislation provides people with a statutory right to sue a company in Canadian court if it 1) causes or contributes to serious adverse impacts, or 2) acts negligently and fails to put in place adequate due diligence procedures. The company can seek to defend itself from a court order with evidence that it exercised all due diligence.
Does it help affected people to access justice or remedy?	NO. The legislation does not address people’s right to remedy or justice for harms.	YES. There are several ways in which the legislation helps address existing barriers to accessing Canadian courts. Including that: 1) Impacted people would have a statutory right to bring a civil suit in Canadian court. 2) The legislation creates an obligation to prevent harm and to undertake due diligence throughout a company’s global obligations and supply chains.
Does it provide agency to impacted communities / workers?	NO. There is no role for impacted community human rights defenders and workers.	YES. Consultation with rights holders is required in a company’s due diligence procedures. Impacted people can access Canadian courts for remedy and to prevent harm.
Does it apply to companies of all sectors and all sizes, down the entire chain?	NO. The law only applies to companies with 250+ employees, with significant revenue or assets. [8]	YES. The law applies to companies of all sizes, from all sectors, down the entire value chain. Exemptions for small businesses operating in low risk sectors would be done on a sector by sector basis via regulation.
Does it apply to all human rights?	NO. It applies only to forced labour and child labour. This ignores the internationally accepted principle that human rights are indivisible, interrelated and interdependent, a principle upheld by successive Canadian governments. [9]	YES. It upholds the principle that companies must respect all human rights. It makes reference to the core international human rights conventions, the fundamental ILO conventions, UNDRIP and makes specific reference to the right to a safe, healthy and sustainable environment.

Endnotes

The “Canada Brand”: Violence and Canadian Mining Companies in Latin America, Justice and Corporate Accountability Project, December 2016.
Righting Wrongs? Barrick Gold’s Remedy Mechanism for Sexual Violence in Papua New Guinea: Key Concerns and Lessons Learned, Human Rights Clinic (Columbia Law School) & International Human Rights Clinic (Harvard Law School), November 2015.
ReconAfrica’s Okavango venture and the push for mandatory human rights due diligence in Canada, Above Ground, 3 November 2021.
Report – Development Finance as Agro-Colonialism: European Development Bank funding of FeroniaPHC oil palm plantations in the Democratic Republic of Congo, published jointly by RIAO-RDC (DR Congo), FIAN Belgium, Entraide et Fraternité (Belgium), CCFD-Terre Solidaire (France), FIAN Germany, urgewald (Germany), Milieudefensie (The Netherlands), The Corner House (UK), Global Justice Now (UK), World Rainforest Movement (International), GRAIN (International), January 2021.
New Report Links Canadian Retailers to Never-Ending Hardships of Bangladeshi Garment Workers, United Steelworkers, 21 March 2021.
The truth about your lifesaving PPE, CBC News, 15 January 2021.
UN report tells Canada to do more to combat human rights abuse by business overseas, Canadian Network for Corporate Accountability, 19 June 2018.
Applies to companies for which TWO of the following apply: (i) it has at least $20 million in assets, (ii) it has generated at least $40 million in revenue, and (iii) it employs an average of at least 250 employees
For example, see Joint Statement of foreign ministers on increased restrictions on the human rights of Afghan women and girls, Global Affairs Canada, May 13 2022.

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Media Backgrounder: The CNCA’s campaign for a mandatory human rights and environmental due diligence law

Darren Shore — Thu, 17 Mar 2022 13:08:00 +0000

The Canada brand has a human rights problem

For years, Canadian multinationals have been implicated in serious human rights abuses and environmental damage around the globe. The communities and workers who suffer these harms are often unable to access justice or remedy, while human rights and environmental defenders who stand up to powerful corporations frequently face violence, intimidation or criminalization.

These abuses have persisted despite decades of public pressure and endless corporate commitments to voluntary codes of responsible business conduct. For over a decade, the Canadian government has explicitly “expected and encouraged” Canadian companies to respect human rights throughout their global operations. [1] The United Nations Guiding Principles on Business and Human Rights, adopted unanimously in 2011, set a clear global standard outlining the responsibilities of businesses to prevent, address and remedy harms caused. Yet in the absence of binding rules that enshrine these principles into Canadian law, companies are too often failing to deliver on their responsibilities.

Workers, women, Indigenous peoples, human rights and environmental defenders, and other marginalized communities harmed by powerful companies can wait no longer for Canada to take action to address corporate abuse. Canada has a duty to act, and urgently.

Canada’s failed approach is out of step with global trends

Canada claims to take its international obligations seriously, yet has failed to implement mechanisms or policies to ensure that companies respect human rights and the environment overseas. Instead, Canada continues to rely on a suite of voluntary measures aimed at promoting responsible business conduct. Yet experience shows that voluntary measures alone are inadequate at curbing corporate abuse.

In continuing to rely on ineffective voluntary measures, Canada is falling behind global leaders.

To end corporate impunity, several jurisdictions, including some of Canada’s largest trading partners, have enacted, or are in the process of developing, laws that require companies to review all their business activities, identify actual and potential risks to people and the planet, take steps to mitigate and address these risks, and ensure remedy for those harmed. This is called human rights and environmental due diligence (HREDD).

Building on this global momentum, and on Canadian civil society consensus starting points, the Canadian Network for Corporate Accountability has released draft model legislation that provides lawmakers with a blueprint for writing into Canadian law the corporate duty to respect human rights and the environment.

Experts such as the vice-chair of the United Nations Working Group on Business and Human Rights, Surya Deva, have made it clear that Canada cannot claim leadership on promoting business respect for human rights until such legislation is in place. The Canadian parliament’s international human rights subcommittee has also confronted Canada’s exclusive reliance on voluntary measures to address Canadian corporate abuse overseas. In a recent report, the committee members from all four major federal parties echo Deva’s appeal in calling on Ottawa to “introduce legislation requiring Canadian corporations to conduct human rights due diligence” to address adverse impacts arising throughout their global operations and supply chains. [2]

The time has come for enforceable human rights legislation

This model legislation, the Corporate Respect for Human Rights and the Environment Abroad Act, would render enforceable the Canadian government’s expectations regarding the overseas conduct of Canadian companies. It would help Canada fulfill its international human rights obligations by responding to all three pillars of the United Nations Guiding Principles on Business and Human Rights. [3] And it would allow Canada to catch up to its European allies — including the European Union, Germany and France — who are piloting the shift from ineffective voluntary measures towards comprehensive human rights due diligence laws.

Specifically, the proposed law would:

Require companies to prevent adverse human rights impacts and environmental damage throughout their global operations and supply chains;
Require companies do their due diligence, including by carefully assessing how they may be contributing to human rights abuse or environmental damage abroad and by providing access to remedy when harms occur;
Result in meaningful consequences for companies that fail to carry out and report on adequate due diligence; and
Establish a legal right for people who have been harmed to seek justice in Canadian courts.

So long as companies are allowed to continue profiting from negligence or misconduct, the abuses will continue. Our model legislation would change that by holding companies legally accountable for the social and environmental costs of their activities abroad.

Notes

See Canada’s first CSR strategy for the international extractive sector (2009): https://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/csr-strat-rse-2009.aspx?lang=eng
SDIR Report n⁰8, June 2021.
These include the state duty to protect against human rights violations (including by non-state actors such as Canadian companies); the corporate responsibility to respect human rights (and the role of human rights due diligence in fulfilling that responsibility); and the right of impacted people to have effective access to remedy.

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FAQs: Mandatory human rights and environmental due diligence legislation in Canada

Darren Shore — Thu, 17 Mar 2022 12:28:00 +0000

In response to reports of serious harms linked to the global operations and supply chains of Canadian companies, the Canadian Network for Corporate Accountability (CNCA) developed model human rights and environmental due diligence legislation for adoption in Canada. (These harms have been frequently reported in relation to Canadian companies’ own operations and their business with other firms, for instance suppliers who produce goods that the company imports to Canada.) The CNCA’s model looks to make legally enforceable an expectation that has existed for a long time: that corporations respect human rights and the environment abroad. This document answers some of the most frequently asked questions about the CNCA’s proposed model legislation.

A bill recently introduced in Parliament, Bill C-262, contains all the elements of the CNCA’s model legislation that are described here.

1. Why do we need such a law in Canada?

Despite knowing for decades that Canadian companies and supply chains are contributing to human rights abuse and environmental damage abroad, the Canadian government continues to rely on voluntary measures to encourage responsible business conduct. Experience shows these measures are ineffective. As companies continue to profit from abuses they either cause in their own operations or contribute to through their supply chains, it is increasingly clear that many will only change their behaviour if required to do so by law.

2. What is human rights and environmental due diligence?

Human rights due diligence is a process undertaken by a company to prevent and address harmful impacts on people and communities throughout its operations and supply chains. It involves carefully assessing the risk of harm, doing what’s needed to minimize the risk and remedy any existing harm, and accounting for the steps taken. To do this effectively, a firm needs to engage in environmental due diligence to address any ecological harm that would put people’s rights at risk — including the right to a safe, healthy and sustainable environment. As the law proposed by CNCA would explicitly protect this right, we refer to it as a human rights and environmental due diligence law.

3. What would the law require that companies do?

The law would require companies to prevent and remedy human rights abuse by developing and implementing effective due diligence procedures. These would have to address the human rights impacts outside Canada of the company’s own activities, those of its affiliates, and those of other firms it does business with. This would include harms caused by the company’s subcontractors and suppliers, for instance in producing goods that the company imports to Canada. Companies would have to consult with rights-holders and report annually on these steps.

4. How would this legislation help people harmed by Canadian companies overseas and prevent further abuse?

The law would establish an explicit right for people harmed by Canadian companies abroad to seek remedy by filing a civil lawsuit in Canadian courts. The court could order the company to cease harmful activities and/or compensate the victims. The possibility of legal action would provide a powerful incentive for companies to make sure people aren’t harmed in the first place. Furthermore, the requirement to consult on an ongoing basis with rights-holders would also create a strong impetus for firms to identify risks and take effective preventative action.

5. What companies would be covered by the CNCA’s model law?

The CNCA’s model legislation would apply to companies that are incorporated in Canada, have a place of business in Canada, or sell goods or services in Canada and have a physical presence or otherwise carry out business in Canada. The CNCA’s model would allow for small businesses in low-risk sectors to be exempted through regulations.

6. Do other countries have similar laws?

France, Germany and Norway have adopted laws that impose human rights due diligence requirements on companies. The French “duty of vigilance” law was the first law of this kind to come into force. It requires companies to establish, implement and report on an annual vigilance plan, which must include steps to prevent harm. The law also provides for harmed individuals to bring a civil lawsuit to seek damages from a company that has failed to comply with its obligations. Several other countries, and the EU, are currently advancing mHREDD laws. You can learn more about examples from Europe with this table from the European Coalition for Corporate Justice.

7. Can’t people harmed by Canadian companies abroad already seek justice in Canadian courts?

People can and have filed lawsuits in Canada seeking to hold Canadian companies to account for human rights abuse abroad. There are significant barriers, however, to pursuing this kind of litigation. Victims may face years of legal battle just to establish that the case should be heard in Canada. Courts are generally reluctant to hold a Canadian parent company liable for harms caused by a subsidiary company through which it operates overseas. The law proposed by the CNCA would remove these barriers, making it easier for victims to access justice.

8. Do they have any other recourse to seek remedy in Canada?

The Canadian government has two complaints and mediation offices that people affected by Canadian firms’ activities abroad can appeal to. In theory, either of these offices could oversee mediation in which the firm voluntarily agrees to take remedial action. In practice, this has been a rare outcome in cases handled by the National Contact Point (NCP), which has been in place for over two decades. Communities and workers have found that complaints to the NCP have yielded no improvement to their situation, and have sometimes even made it worse. The newer office, of the Canadian Ombudsperson for Responsible Enterprise, has not been provided with the basic minimum powers required to do its job. Impacted communities have been advised to approach the office with caution, if at all.

9. How would the law be enforced?

The CNCA’s model law would establish a right for those who suffer harm to file a civil lawsuit in a Canadian court. The court could order the firm to cease its harmful activities, pay compensation to the victims, or take any other actions needed to prevent or remedy harm, arising from its own activities or those of its subsidiaries, subcontractors or affiliates. An interested person or party (e.g. an organization) would be able to seek a similar court order if a Canadian company failed to adequately develop, implement and/or report on its due diligence procedures. A company could seek to defend itself against such an order by demonstrating that it implemented effective due diligence procedures.

10. Under this law, would Canadian companies be criminally prosecuted for human rights abuses linked to their overseas operations?

No. The requirement that companies prevent human rights abuse would be enforced through civil lawsuits in Canada. These could be filed by people affected by the business activities and relationships of Canadian companies, or by other interested parties on their behalf, such as partner organizations. Some human rights violations amount to a criminal offence. Nothing in the legislation would prevent a victim of crime from seeking criminal law enforcement. Prosecution for corporate crimes, especially transnational corporate crimes, remains challenging and rare. This legislation will not address those challenges.

11. How is the CNCA’s model legislation different than “modern slavery” legislation being discussed in the Senate?

The proposed modern slavery reporting law for Canada (Bill S-211) does not require companies to stop using child or forced labour or to conduct human rights due diligence. If passed, Bill S-211 would only require companies to report on what steps, if any, they have taken to prevent and reduce the risk of forced or child labour in their supply chains. Supply chain legislation should focus on preventing and remedying harm, not just reporting. Bill S -211 is flawed because it would only apply to a small minority of companies, it ignores some of the most egregious human rights abuses, and it has an ill-placed focus on reporting. (See the CNCA’s analysis here.)

In contrast, the CNCA’s model legislation would require companies to prevent human rights violations, including those caused by environmental damage, throughout their global operations and supply chains. It accomplishes this by requiring companies to develop and implement adequate human rights due diligence procedures, consult with rights-holders, and report annually.

12. How would this legislation complement a strengthened Canadian Ombudsperson for Responsible Enterprise?

People harmed by Canadian companies should have access to both effective out-of-court mechanisms and access to courts. Complaint processes through an effective ombudsperson can be quicker, cheaper and provide impacted communities with more agency, but the ombudsperson’s recommendations for remedy are not binding for companies. The law proposed by the CNCA would complement this out-of-court ombudsperson by requiring companies to prevent human rights abuse and environmental damage in the first place, and by helping people harmed by Canadian companies, their subsidiaries and/or subcontractors to access justice in Canadian courts.

13. Why doesn’t the law apply to human rights and environmental impacts caused by corporations inside Canada?

Business-related abuses occur both inside Canada and outside of Canada, and impacted people in Canada can also face challenges in accessing remedy and preventing harm. This is particularly the case for First Nations communities, environmental defenders and migrant workers. The challenges can differ in nature and scale as compared to impacted people seeking remedy for harms that occur outside of Canada.

The Canadian constitution grants the federal, provincial and territorial governments legal jurisdiction to regulate different activities. A law aimed at the overseas abuses of Canadian companies fits into the federal division of these powers. It is likely that a federal law that requires companies to undertake human rights and environmental due diligence inside Canada would be subject to a constitutional challenge—slowing down its coming into force and/or derailing its development entirely.

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Top 3 reasons why Bill S-211 (S-216), Canada’s Modern Slavery (Reporting) Act, misses the mark

Emily Dwyer — Tue, 29 Jun 2021 14:09:00 +0000

In February 2020, Bill S-211, the Modern Slavery Act, was tabled in the Senate. Upon resumption of Parliament, following the summer prorogue, the bill was re-tabled as Bill S-216. Throughout 2020 and into 2021, Canadian trade unions, human rights groups and other civil society organizations have raised serious concerns about the inadequacy of the proposed Modern Slavery Act. The bill’s shortcomings will render it ineffective at addressing the serious human rights abuses occurring in the global business operations and supply chains of Canadian companies, as well as putting Canada behind the pack internationally. To date, none of these concerns have been addressed.

Reason #3

The scope is too narrow; rules would only apply to a small minority of companies

The bill’s definition [1] of entities to which the bill would apply is far too narrow and would exempt many Canadian companies. Internationally recognized guidelines, including the United Nations Guiding Principles on Business and Human Rights (UNGPs) and the OECD Due Diligence Guidance for Responsible Business Conduct (OECD Guidance for RBC) clearly stipulate that such laws should apply to all companies, regardless of size, sector, or where the company operates. Recognizing that exceptions may be legitimate in some circumstances, such exemptions should be made through regulation.

Reason #2

Bill S-211 (S-216) ignores some of the most egregious and interrelated human rights abuses

Modern slavery cannot be looked at in isolation. Doing so is not only an ineffective approach to remedying this deplorable abuse, but it also ignores many other human rights abuses that plague the international operations and global supply chains of Canadian companies.

The United Nations Declaration of Human Rights and the UNGPs clearly stipulate that human rights are interrelated, interdependent and indivisible. It is impossible to effectively prevent forced labour, without also protecting other human rights, like the right to non-discrimination or to organize collectively. The violation of one right often contributes to the violation of another.

While it is vital that Canada take action to address forced and child labour, this does not need to be done to the exclusion of addressing other prevalent human rights violations. Allegations of sexual violence, bodily harm and killings connected to the operations of Canadian mining companies have been brought to Canadian courts. One only needs to be reminded of the horrific collapse of the Rana Plaza garment factory in Bangladesh that killed 1,132 people, to get a glimpse of the occupational health and safety violations that injure and kill workers daily. In the past few decades, over 3,000 trade unionists in Colombia have been assassinated for attempting to exert their right to organize and form a union.

Bill S-216 ignores these serious violations of human and labour rights – rights that Canada has committed to uphold.

Reason #1

Bill S-211 (S-216) only requires companies to report on their actions – it does not require them to respect human rights or change their behaviour

Bill S-216 only requires companies to report on what steps, if any, they have taken to prevent and reduce the risk of forced or child labour in their supply chains. [2] It does not require companies to stop using child or forced labour. It does not require companies to conduct human rights due diligence (HRDD). As long as the company reports on any steps they took – no matter how inadequate those steps may be – and mentions any risks of forced or child labour they identified, they will be in full compliance with the law. The bill expects that the public will proactively look up the reports of every company in advance of making day-to-day purchases, which is highly unlikely.

This is not an effective or appropriate approach to regulating. We would never take this approach to food or air safety; we require companies to do it right because the costs of failure are too high. Furthermore, this approach is inconsistent with the UNGPs and represents an abdication of governments’ responsibility to protect against modern slavery. A European Union report studying and comparing the effectiveness of various types of supply chain legislation determined that reporting laws have only “minor positive social impacts.” [3]

Bill S-216 does include important investigatory powers and an offence with a fine for failure to report or for knowingly publishing a false report. However, these apply only to ascertaining whether the company accurately reported on the steps they took. Neither the investigatory powers nor the offence help to establish whether there is actually child or forced labour being used in these supply chains, nor to punish companies who are profiting off of abuse. Furthermore, the bill does not provide for liability for harm, nor provide for access to remedy for impacted people.

This would have the perverse effect that a company who uses child or forced labour and takes no steps to prevent or address it, would be in full compliance with the law as long as they annually publish a report saying they are taking no steps to address forced labour in their supply chains. On the other hand, a company that has rigorous protocols, and exceptional labour practices, but fails to produce an annual report would be guilty of an offence. Quite simply, the bill’s focus is ill- placed. The primary focus should be on preventing and remedying harm, not on reporting.

It is clear that passing Bill S-216, rather than a law that mandates human rights due diligence, would put Canada behind the pack internationally. The UK’s 2015 Modern Slavery Act, which similarly centres on reporting requirements, failed in its objective to protect victims of forced labour. When the Business and Human Rights Resource Centre (BHRRC) closed the UK’s Modern Slavery Registry in 2020, the BHRRC reported on the impact of five years’ worth of statements. BHRRC’s analysis of those statements “revealed no significant improvements in companies’ policies or practice”, concluded that the Act “has failed to be an effective driver of corporate action to end forced labour, even in high-risk sectors and regions” and noted that the “UK is now lagging behind its international neighbours.” [4] In contrast, leading jurisdictions like France, the European Union, the Netherlands and Germany have passed or are developing laws that learn from the mistakes made in the UK’s Modern Slavery Act by requiring companies to undertake human rights due diligence.

A Better Approach Forward

To garner the widespread support of Canadian and international trade unions and civil society organizations, Canada should implement an international human rights law that is aligned with global best practice and meets the guidelines set out by the United Nations, the International Labour Organization and the Organization for Economic Cooperation and Development. This means implementing a law that:

mandates companies to prevent harm and to conduct human rights due diligence, not just report;
covers all human rights;
applies to all Canadian companies (with exemptions set in regulation); and
provides for liability and remedy if a company fails to exercise adequate due diligence or causes harm.

===

A note on Canada’s ban on the important of goods made with forced labour

As of July 1 2020, Canada’s Customs Tariff Act prohibits the import of goods made, manufactured or produced in whole or in part by forced labour. As of today’s date, no goods have been excluded from import as a result of this ban and enforcement remains a challenge. Bill S-216, alongside new reporting requirements, proposes the extension of Canada’s import ban to goods made with child labour.

However, Bill S-216 will not help ramp up enforcement of the import ban because the bill only requires companies to report on what steps they are taking, it does not require them to ascertain and report on whether they are making use of forced or child labour. In other words, the reports will not help authorities to identify the presence of forced or child labour in Canadian supply chains.

Furthermore, even if effectively enforced, an import ban would not address sectors or companies that do not import into Canada but that are linked to serious human rights and labour rights abuses worldwide (e.g. Canadian extractive companies operating overseas who do not import the oil and minerals they extract overseas into Canada). As a result, an import ban would have no effect on the global operations and supply chains of those companies.

===

ENDNOTES

1. Bill S-216 defines an entity as a corporation or a trust, partnership or other unincorporated organization that: (a) is listed on a stock exchange in Canada; (b) has a place of business in Canada, does business in Canada or has assets in Canada and that, based on its consolidated financial statements, meets at least two of the following conditions for at least one of its two most recent financial years: (i) it has at least $20 million in assets, (ii) it has generated at least $40 million in revenue, (iii) it employs an average of at least 250 employees; or (c) is prescribed by regulations.

2. 7 (1) Every entity must, no later than 180 days after the end of each financial year, provide the Minister with a report that sets out the steps the entity has taken during that year to prevent and reduce the risk that forced labour or child labour is used at any step of the production of goods in Canada or elsewhere by the entity or of goods imported into Canada by the entity.

3. Publications office of the European Union: https://op.europa.eu/en/publication-detail/-/publication/8ba0a8fd-4c83- 11ea-b8b7-01aa75ed71a1/language-en

4. Business and Human Rights Resource Centre https://www.business-humanrights.org/en/from-us/media-centre/six- years-on-modern-slavery-act-failed-to-tackle-forced-labour/

===

This explainer is also available as a PDF.

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Executive Summary: The Corporate Respect for Human Rights and the Environment Abroad Act

Darren Shore — Sun, 30 May 2021 17:14:00 +0000

The CNCA’s draft model mandatory human rights and environmental due diligence law

May 2021

Introduction

For over a decade, Canadian companies have been expected to respect human rights throughout their global operations. [2] The model human rights and environmental due diligence legislation developed by the Canadian Network for Corporate Accountability (CNCA) would make that expectation an enforceable requirement.

The purpose of the model legislation is to prevent, address, and remedy adverse human rights impacts connected to the overseas business activities of Canadian-linked companies. The law would create an obligation on companies to prevent harm and to implement human rights due diligence procedures. It also provides for liability – and access to remedy – if a company fails to fulfill those obligations.

Such a law is urgently needed in Canada. Far too often, companies are failing to deliver on their responsibility to respect human rights.

Ten years after the unanimous endorsement of the United Nations Guiding Principles on Business and Human Rights (UNGPs), there continue to be widespread reports of serious human rights abuses and environmental damage linked to the overseas activities of Canadian companies and supply chains. Communities and workers who suffer harm are often unable to access justice and remedy. Human rights and environmental defenders who stand up to powerful corporations frequently face violence, intimidation or criminalization. The risks and vulnerabilities they face have worsened with the global COVID-19 health crisis.

At present, companies can avoid fulfilling their responsibility to respect human rights because binding rules don’t exist, aren’t enforced, or because companies structure their global operations to avoid liability. [3] This legislation would change that.

Canada’s failure to regulate and ensure access to remedy for harms associated with Canadian business activity overseas is inconsistent with Canada’s international human rights Obligations. [4]

The Corporate Respect for Human Rights and the Environment Abroad Act would help respond to all three pillars of the United Nations Protect, Respect and Remedy Framework. [5]

Further, this legislation would help Canada catch up to growing international momentum towards comprehensive human rights due diligence laws. This momentum stems from the recognition by other advanced economies that voluntary measures alone are inadequate, and that meaningful measures to address corporate malfeasance are essential for long term prosperity and sustainability.

Several European jurisdictions have passed, or are considering, comprehensive human rights due diligence legislation – most notably France’s 2017 Devoir de vigilance legislation, and the 2021 resolution of the European Commission outlining its forthcoming human rights due diligence legislation. [6]

The time has come for Canada to establish enforceable rules through legislation. This Act provides the government with a blueprint with which to do so, through three pillars:

establishing a corporate duty to prevent and to avoid adverse human rights impacts;
establishing a corporate duty to develop, implement and report on adequate human rights and environmental due diligence procedures; and
ensuring access to remedy and enforcement of HREDD obligations.

Following is a summary of each of these pillars.

Pillar 1: Establishing a corporate duty to prevent and to avoid adverse human rights impacts

The Corporate Respect for Human Rights and the Environment Abroad Act (Corporate Respect for Human Rights Act) would establish a corporate duty to prevent adverse human rights impacts and environmental damage outside Canada, throughout their business relationships.

EXTRACT FROM THE MODEL LEGISLATION

Duties to Avoid, Prevent and Address [7]

Every entity has a duty to: (1) 1. Avoid causing adverse human rights impacts outside Canada through its own activities, and through the activities of its affiliates; and to address such impacts when they occur; AND 2. Prevent adverse human rights impacts outside Canada that are directly linked to its operations, products or services by its business relationships; and to address such impacts when they occur. (2) Where an entity contravenes (the above section), it is liable for any injury that results from its contravention, whether it be caused by its own act or omis- sion or that of its affiliate or a person with whom it has a business relationship.

As a result, companies would be required to ensure they themselves – along with their affiliates (e.g. controlled subsidiaries) [8] – avoid causing adverse human rights impacts in their overseas operations. In addition, companies would be required to take steps to prevent adverse human rights impacts caused or contributed to by their business relationships (e.g. their subcontractors or suppliers). They would be required to address any impacts they failed to avoid or prevent.

In other words, a company would need to proactively ensure it is neither encouraging human rights abuse or environmental damage in its supply chains, nor turning a blind eye to negligent or harmful practices of its business relationships. Companies would no longer be able to avoid their responsibility to respect human rights by outsourcing, operating through subsidiaries or by remaining willfully blind to the human rights impacts of their supply chains.

What companies would the law apply to?

The Corporate Respect for Human Rights Act would apply to 1) companies domiciled in Canada; and 2) companies that sell goods or services in Canada if they also have a physical connection to Canada. [9]

The UNGPs make clear that companies of all sizes and from all sectors have a responsibility to respect human rights. [10] The Act does not have a size threshold. Instead, it provides that regulations may exempt certain companies (based on revenue, number of employees or sector) from the application of the Act and/or the obligation to report annually. This approach, which relies on sector-specific size thresholds rather than a single size threshold, recognizes the particularities of the Canadian economy (e.g. predominance in the global extractives sector, junior mining exploration companies often being small in size yet with potential to cause serious adverse human rights impacts) while also recognizing that it would be reasonable to exempt small businesses from some low-risk sectors from all or part of the law’s application.

What rights would be protected?

Human rights are interrelated, interdependent and indivisible. [11] For example, it is impossible to effectively prevent forced labour without also protecting other human rights, such as the right to non-discrimination or to organize collectively. The violation of one right often contributes to the violation of another.

As a result, the Corporate Respect for Human Rights Act is not limited in scope to a specific human right. The Act articulates companies’ responsibility to respect all human rights. Human rights are defined in the Act by reference to internationally-recognized human rights instruments. These include the nine core international human rights treaties, the eight core international labour conventions and the United Nations Declaration on the Rights of Indigenous Peoples. [12] The Act makes specific reference to the human right to a healthy, safe and sustainable environment.

Pillar 2: Establishing a corporate duty to develop, implement and report on adequate human rights and environmental due diligence procedures

The purpose of human rights due diligence is to prevent and avoid adverse human rights impacts. The Corporate Respect for Human Rights Act would require companies to develop and implement adequate human rights due diligence procedures, consult with rights-holders in the development and implementation of these procedures, and report annually. Companies would need to develop and implement due diligence procedures with respect to their own activities, as well as with respect to their affiliates and business relationships. [13]

WHAT IS CORPORATE HUMAN RIGHTS DUE DILIGENCE?
The Office of the United Nations High Commission on Human Rights describes human rights due diligence as “a way for enterprises to proactively manage potential and actual adverse human rights impacts with which they are involved… The prevention of adverse impacts on people is the main purpose of human rights due diligence. It concerns risks to people, not risks to business. It should be ongoing, as the risks to human rights may change over time; and be informed by meaningful stakeholder engagement, in particular with affected stakeholders, human rights defenders, trade unions and grassroots organizations. Risks to human rights defenders and other critical voices need to be considered.” (emphasis added) [14]

The Act enumerates the minimum due diligence procedures that a company is required to undertake while also making reference to the extensive due diligence guidance that has been developed to assist companies in fulfilling their responsibilities. [15] The Act provides that further direction may be articulated through regulations – such as with respect to auditing procedures; applicable standards applying to specific sectors, or to entities of particular sizes. The Act provides that regulations will be subject to committee review in both Houses of Parliament.

EXTRACT FROM THE MODEL LEGISLATION

Due diligence procedures shall include:

Identifying and assessing real and potential adverse impacts;
Ceasing and remedying existing adverse impacts;
Mitigating risks of adverse impacts;
Monitoring the implementation and effectiveness of the measures adopted to address adverse human rights impacts;
A mechanism to provide an alert to the entity of possible adverse effects on or risks to human rights;
Documenting due diligence efforts.

Pillar 3: Ensuring access to remedy and enforcement of HREDD obligations

The legislation would establish meaningful consequences for failure to prevent serious human rights impacts and failure to undertake adequate due diligence. It would also assist impacted communities and workers to access effective remedy in Canadian courts. It does this through two mechanisms:

civil liability for harms and/or, failure to do due diligence, and
a commissioner empowered to enforce the production of due diligence reports.

If a company, its subsidiary, subcontractor or supplier causes a serious adverse human rights impact, the company could be sued in a Canadian court. The court could order an injunction, payment for damages/losses, punitive damages, rehabilitation or specific performance, legal costs, or a combination thereof. Impacted communities could file a motion for the company to be ineligible for future government supports, or for existing supports to be withdrawn. [16]

EXTRACT FROM THE MODEL LEGISLATION

Failure to Avoid, Prevent and Address Adverse Human Rights Impacts

Any person who has suffered loss or damage as a result of conduct that contravenes any provision of this Act or the regulations may, in any court of competent jurisdiction, bring an action for relief.

Defence: A company could seek to avoid a court order by establishing they have developed and implemented effective due diligence procedures to prevent harm. The Act sets out factors for the court to consider in making this determination. [17] These factors would incentivize companies to undertake effective due diligence procedures.

Additionally, the legislation provides that interested parties – such as civil society organizations – could file suit against a company in Canadian court if the company failed to develop and implement adequate due diligence procedures.

Finally, the legislation contemplates the creation of a commissioner role to enforce the publication of annual reports. The Commissioner would maintain a website where these “human rights risks” reports would be published.

The Commissioner would ensure that the reports include content relating to all of the required business relationships and under all of the required headings. [18] Companies who failed to publish comprehensive reports could be fined up to $250,000. Interested parties would be able to submit commentary to these company reports and request the commentary be published on the Commissioner website.

How civil liability helps prevent harm and ensure access to remedy

Risk management is an important business practice taken very seriously by corporate management, governance bodies and investors. When anti-bribery and corruption legislation began to be introduced around the world, many corporations moved to significantly more robust corruption risk identification and mitigation strategies. In the same way, establishing civil liability in Canada for human and environmental harms primarily acts as a concrete incentive for a business to internalize its responsibility to prevent harm, and to put adequate procedures in place. The expected response to this legislation is that companies will enhance their attention to such risks of harm, and change their behaviour without communities needing to regularly seek recourse in Canadian courts.

When companies are aware that they could be held liable, management, boards and investors are incentivized to pay attention to such risks, and to ensure steps are taken to prevent adverse human rights impacts. The requirement to consult with rights-holders on an ongoing basis means that significant risks are more likely to be identified, and companies alerted early if the mitigation measures are not adequate. The provision in the legislation that can defend against liability by demonstrating adequate due diligence, enhances the incentive to ensure such diligence is undertaken.

All of these factors help ensure that communities and workers aren’t harmed in the first place. They would also help ensure access to remedy if harm does occur. Remedying adverse impacts is part of the legislation’s outlined due diligence procedures. If companies fail to offer remedy on their own, they can be ordered to do so by the court.

Endnotes for the Executive Summary

The draft model legislation is the product of extensive research and engagement, within and outside of Canada. It provides a blueprint for the Government of Canada. The draft text may be updated to reflect ever-evolving international best practices. We wish to thank all those who offered their time, advice, and expertise – in particular the members of the expert advisory group and legislative drafting team.
See, for example, Canada’s Corporate Social Responsibility Strategy at https://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/csr-strat-rse.aspx?lang=eng
This can be done by outsourcing production, using complex supply chains and subsidiaries, or turning a blind eye to the human rights practices of their business relationships. Worse still, some companies use their influence to ensure that laws that would protect human rights and the environment are not passed, are watered down, or are not enforced. No Canadian legislation currently articulates a company’s obligation to avoid, address and prevent human rights abuse. Furthermore, barriers continue to exist for foreign plaintiffs seeking to access Canadian courts.
This has attracted the attention of several United Nations International Treaty Monitoring Bodies. See for example https://cnca-rcrce.ca/2017/01/31/international-human-rights-authorities-call-for-extractive-sector-ombudsperson/
These include the state duty to protect against human rights violations (including by non-state actors such as Canadian companies); the corporate responsibility to respect human rights (and the role of human rights due diligence in fulfilling that responsibility) and the right of impacted people to have effective access to remedy.
See the European Coalition on Corporate Justice’s Comparative table: Corporate due diligence laws and legislative proposals in Europe available at: https://corporatejustice.org/publications/comparative-table-due-diligence-proposals-europe/.
The UNGPs make a distinction between a company’s responsibility to avoid versus its responsibility to prevent adverse human rights impacts. This is set out in Pillar 2, at Principle 13: The responsibility to respect human rights requires that business enterprises: Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur; Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. This distinction is maintained in the Corporate Respect for Human Rights Act.
See the definition section of the model legislation – Part 2, sections 2 and 3 – for more on the definitions of affiliates, subsidiaries, and control.
This is set out in Part V, section 1, of the model legislation: “Entities: (1) An entity is subject to this Act if the entity: i. Is domiciled or ordinarily resident in Canada; or ii. Sells goods or services in Canada and the entity has a resident agent, representative, warehouse, office or place where it carries on its business in any jurisdiction in Canada; AND The entity is not exempted from application of this Act by the regulations.
Internationally recognized guidelines, including the United Nations Guiding Principles on Business and Human Rights (UNGPs) and the OECD Due Diligence Guidance for Responsible Business Conduct (OECD Guidance for RBC) clearly stipulate that such laws should apply to all companies, regardless of size, sector, or where the company operates.
This is clearly stipulated in the UN Declaration of Human Rights and in the UNGPs.
The complete list is at Part IV section 8 of the model legislation.
The model legislation, at the definitions section 2 (3) sets out that “business relationship” includes an entity’s relationships with business partners, entities throughout its value or supply chain, and any other non-State or State entity directly linked to its business operations, products or services. For greater clarity, and without limiting the generality of the foregoing, relationships with state and non-state security forces, and home-based workers are “business relationships” for purposes of this Act.”
See their website for more: https://www.ohchr.org/EN/Issues/Business/Pages/CorporateHRDueDiligence.aspx
For example, from the United Nations and the OECD Guidelines for MNEs. Further, Canada’s National Contact Point for the OECD Guidelines, Global Affairs Canada’s Responsible Business Conduct Unit and the Canadian Ombudsperson for Responsible Enterprise are all tasked with supporting and advising companies regarding this guidance.
Section 27 outlines that this could include “eligibility for support, subsidy, promotion or protection by any or all government agencies or departments” and it provides that the court could order the withdrawal of support or disallowance of future support for a stipulated period, or until specified conditions are met
In determining whether an entity exercised effective due diligence the court may consider the extent of adherence to relevant standards of conduct (set in regulations or outlined in the entity’s public communications); whether the impact was or should have been identified as a risk in due diligence procedures, adequacy of steps taken (having regard to company’s size), history of adverse impacts (and any subsequent due diligence procedure improvements), any incentives the company created for improving human rights standards in its supply chains. See section 25 for more.
Investigatory powers pursuant to the Inquiries Act would be required to fulfill this aspect of the Commissioner’s mandate.

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Canada’s Diplomatic Support for Mining Companies Overseas: the case of Shin Imai v. Canada

Darren Shore — Mon, 01 Mar 2021 13:52:00 +0000

The Canadian government actively promotes and supports the international operations of Canadian extractive companies. This support takes many forms, including political backing (eg. support by embassies and trade commissions in opening doors overseas).

Shin Imai v. Canada

Access-to-information lawsuit concerning Canada’s intervention in human rights cases against Goldcorp Inc. in Guatemala

Case update: The Federal Court has ruled that the Canadian government is not legally required to disclose details about its diplomatic interventions on behalf of a Canadian mining firm accused of human rights abuse in Guatemala. The court found Ottawa was justified in blacking out key details in the documents it released because revealing them would reasonably be expected to bring “harm to Canada’s international relations.” The court initially issued a confidential decision, several weeks before making it public in February.

Read the latest press release (2 March 2022).

“If Canadians can’t obtain meaningful information about the diplomatic support our government is providing to companies overseas, then our public disclosure rules are out of date and in need of reform,” says Emily Dwyer, Policy Director at the Canadian Network for Corporate Accountability.

Overview of the case

On March 2, 2021, the Federal Court of Canada heard arguments in a lawsuit seeking information about the Canadian government’s response to a human rights case concerning a Canadian-owned mine in Guatemala. The suit was brought by York University law professor and co-founder of the Justice & Corporate Accountability Project (JCAP), Shin Imai, who first sought the information through access-to-information requests in 2014.

The documents released to date, though redacted, show that Canadian officials engaged on Goldcorp’s behalf with decision-makers in Guatemala and Washington after the Organization of American States’ human rights commission called for a suspension of operations at the company’s Marlin mine in 2010. The Guatemalan government ultimately denied the commission’s request, which was meant to protect the rights of Indigenous communities, and the commission retracted it in 2011.

The lawsuit contends that Global Affairs Canada improperly withheld information from public disclosure, and that the Office of the Information Commissioner erred when it reviewed the case and found the redactions were justified under the Access to Information Act. Professor Imai asked the court to order the disclosure of further details that could clarify the extent to which Canada pressed the human rights commission and the Guatemalan government to act in Goldcorp’s interest, without due regard for the concerns of Indigenous communities. In doing so, Canada may have run afoul of its international obligations.

Mr. Imai’s legal challenge was developed by JCAP and is supported by the following civil society groups: Above Ground, Amnesty International, the Canadian Network for Corporate Accountability, Inter Pares, MiningWatch Canada and the Steelworkers Humanity Fund.

“The Canadian government’s decision to go to court rather than disclose this additional information raises the question: what else did it do to support Goldcorp?” says Shin Imai of JCAP. “The public should be able to scrutinize the government’s actions here, to assess the extent to which it undermined Indigenous communities’ efforts to defend their rights.”

Why this case matters

Prof. Imai’s lawsuit argues that there is a clear public interest in disclosing the records. The public must be able to scrutinize the extent to which the Canadian government acted in the service of Goldcorp’s interests, while undermining Indigenous communities’ efforts to defend their rights. This disclosure would inform broader public debates regarding mining industry influence over Canadian foreign policy and the government’s compliance with its own policies and international human rights law.

The case also highlights broader concerns regarding Canada’s access-to-information system, notably the broad use of exemptions to avoid accountability, competence and timeliness in government responses to requests, and the Office of the Information Commissioner’s effectiveness in guaranteeing the public’s right to access information. The current review of the Access to Information Act must address these concerns.

Timeline of events

Uncovering secrets: Canada abandons human rights in gold-mine debacle

2003 – A 25-YEAR LICENCE, WITHOUT CONSULTATION: Amidst local protests, Glamis Gold is granted a 25-year mining license for the Marlin project by the Guatemalan Ministry of Mines. The Maya Mam people of Sipacapa claim the licence was granted without them having been consulted.

January 2005 – MASS PROTEST, VIOLENT REPRESSION: Indigenous communities concerned about mining pollution launch a 40-day blockade of the PanAmerican highway to prevent the transport of mining equipment. According to reports, the Guatemalan Ministry of the Interior orders around 1,500 police troops and 300 soldiers to clear the blockade. As police and military shoot into the crowd, one protestor is killed and 16 injured. President Oscar Berger reportedly justifies the use of security forces as necessary to protect investors.

June 2005 – OVERWHELMING OPPOSITION TO MARLIN MINE: Municipal and village leaders in Sipacapa agree to conduct a series of consultations and a public ballot referendum on mining in the municipality. A local court grants Glamis Gold an injunction to stop the referendum. The injunction is revoked by the Constitutional Court. Authorities in 11 of 13 villages vote against mining and 98% of voters in the ballot referendum vote “no” to the mine.

November 2006 – FIRST WATER TESTING: Flaviano Bianchini, an Italian volunteer for Guatemalan NGO Madre Selva conducts a water quality study of the Tzalá river. According to Bianchi, the samples reveal high concentrations of aluminum, magnesium, copper, and iron at levels deemed unsafe for drinking by the World Bank, the WHO, the USA EPA and Canadian Government standards. Goldcorp itself begins annual water monitoring. Some tests are conducted by a group that included community members, funded by the Canadian Embassy and Goldcorp. These reports find that water quality conforms with regulations.

December 2007 – COMMUNITIES PETITION THE IACHR: Thirteen Indigenous communities in Sipacapa file a petition with the Inter-American Commission on Human Rights (IACHR) against the state of Guatemala for authorizing the Marlin mine without consulting them and allowing potentially unsafe processing methods that could lead to water contamination.

2008 – CATHOLIC NGO BEGINS WATER MONITORING: A Catholic organization, the COPAE, begins its own monitoring of the water around the mine. Its first report finds high levels of heavy metals, including iron, aluminum, manganese and arsenic. The report concludes that the water is not suitable for human consumption as these levels exceed the limits established by the potable water guidelines of Guatemala, Canada and the United States.

December 2009 – COMPLAINT TO CANADA’S NATIONAL CONTACT POINT: Guatemalan environmental organizations file a complaint with the government of Canada’s National Contact Point, an office that promotes the OECD Guidelines for Multinational Enterprises in Canada. They demand a suspension of the mine, an end to intimidation tactics, the establishment of a third-party water monitoring system and funds to finance environmental restoration.

May 2010 – PHYSICIANS FOR HUMAN RIGHTS: Professors from the University of Michigan conduct water testing, including the first testing of human exposure, for Physicians for Human Rights. The PHR Report concludes that while “human exposures to certain metals may be elevated in sites near the mine” it is not clear whether those levels pose a significant threat to health. It recommends further studies to assess the potential effects of the Marlin Mine on human health and the creation of an independent oversight panel.

May 2010 – HUMAN RIGHTS ASSESSMENT FUNDED BY GOLDCORP: Consultants are contracted by Goldcorp to conduct a Human Rights Assessment. The consultants find that Goldcorp had previously water quality and erosion control problems, which “appear to have been addressed”. Reviewing available reports by the company, government and local Catholic Church (COPAE), they find some test results indicate problems with water surface quality around the mine, but blame these on an “underlying problem with regional water quality.” The study notes that the mine closure plan is weak, and “ has the potential to leave the community vulnerable to long-term impacts on human rights.”

May 20, 2010 – IACHR ORDERS A SHUT-DOWN: The Inter-American Commission on Human Rights calls on the Guatemalan government to suspend operations at the Marlin mine while IACHR assesses community allegations of human rights violations and adverse health effects.

June 18-23, 2010 – CANADIAN GOVERNMENT LOBBIES AGAINST SUSPENSION: The Canadian government intensifies its lobbying on Goldcorp’s behalf, including a call from Canada’s foreign minister to the vice-president of Guatemala.

June 23, 2010 – GUATEMALAN GOVERNMENT BEGINS REVIEW: The Guatemalan government makes a somewhat confusing announcement that it will abide by the decision of the Commission, but also begins an “administrative process” to assess the suspension order. Mining activity continues uninterrupted.

August 2010 – E-TECH, A NON-PROFIT ENGAGED BY OXFAM REVIEWS WATER TESTS: An environmental report commissioned by Oxfam is released, analyzing existing environmental research about the Marlin Mine. It concluded that “[t]he mine wastes have a moderate to high potential to generate acid and leach contaminants to the environment” and “[w]ater in the tailings impoundment does not meet International Finance Corporation effluent guidelines.”

September 28, 2010 – CRIMINAL COMPLAINT: The Guatemalan Ministry of the Environment files a criminal complaint against the mining company for falsifying documents after a late-night, unauthorized discharge of wastewater that is suspected of containing toxins. Goldcorp disputes these charges.

February 28, 2011 – LOCALS BEATEN, ROBBED WHILE PROTESTING MINE: According to reports, a group of over 200 protesters block the three entrance roads to the mine to draw attention to the lack of compliance by the company and by Guatemala with the IACHR’s order to suspend mining operations. Protesters are beaten, robbed and detained by mineworkers and other unidentified people. At least 17 are injured.

March 4, 2011 – UN EXPERT CALLS FOR SUSPENSION: The United Nations Special Rapporteur on the Rights of Indigenous People, James Anaya, releases a report from his July 2010 visit to Guatemala, including a specific appendix on the Marlin Mine. He urges the government of Guatemala to enforce the IACHR’s suspension request, and noted that “weaknesses in official environmental monitoring and evaluation mechanisms, and company policies not being sufficiently transparent, have led to contradictory data in relation to the allegations which, due to their severity, deserve priority attention.” “[B]etween 2008 and 2010”, he continues, ”the Guatemalan Ministry of Environment and Natural Resources had filed three complaints against the Marlin Mine for non-compliance: in locating the tailing dams; toxic spill; and discharge from the tailings pond.”

May 9, 2011 – CANADA NATIONAL CONTACT POINT CLOSES 2009 COMPLAINT: The 2009 complaint to Canada’s National Contact Point is closed when the office insists that Guatemalan complainants “dialogue” with Goldcorp, rejecting their request for an independent investigation

June 2011 – GUATEMALA DECIDES TO ALLOW MINE TO CONTINUE OPERATING: The Guatemalan government announces an end to the “administrative process” it had launched in June 2010 in response to the IACHR’s request to suspend mining operations, as it found insufficient evidence to support a suspension. As has been the case since the IACHR made its request, mining operations at Marlin continue uninterrupted.

Sept 2011 – CANADIAN OFFICIALS LOBBY GUATEMALAN OFFICIALS: As the IACHR hearing approaches, Canadian ambassadors, cabinet ministers and other officials intensify their lobbying of both Guatemalan government and IACHR officials.

December 2011 – THE COMMISSION LIFTS THE SUSPENSION: The IACHR lifts its suspension order and instead requires that Goldcorp adopt the necessary measures to ensure that the members of 18 Mayan communities have access to potable water. April 3, 2014 – The IACHR announces that it will formally hear the complaint from Sipacapa originally submitted on December 11, 2007, acknowledging that the allegations, if true, would constitute a violation of the American Convention.

May 31, 2017 – GOLDCORP WALKS AWAY: Production ceases at the Marlin mine. Goldcorp announces that the closure process will include resolving legal cases that are still open and beginning environmental recovery, such as removing the cyanide released during the extraction process.

April 2019 – NEWMONT GOLD PURCHASES GOLDCORP: American mining company Newmont Gold acquires Goldcorp, creating the world’s largest gold producer.

Updates and Resources

Press Release (2 March 2022): Court rules Ottawa can maintain secrecy on aid to Goldcorp in human rights dispute
The Justice and Corporate Accountability Project’s detailed report on Canadian officials’ interventions to help Goldcorp avert closure of the mine (64 pages)
Journalist backgrounder in English
Fiche d’information pour les journalistes en français
Información periodística en español

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A brief history of the Canadian Ombudsperson for Responsible Enterprise (CORE)

Darren Shore — Mon, 23 Mar 2020 15:37:00 +0000

In January 2018 the Government of Canada announced the creation of an independent ombudsperson office with robust powers to investigate allegations of human rights abuse tied to Canadian corporate activity overseas. The Government of Canada has still not delivered on its promise of an independent ombudsperson with power to investigate.

The Canadian Network for Corporate Accountability has spent over a decade advocating for a human rights ombudsperson with real powers to investigate abuses and redress the harms caused by Canadian companies operating abroad. The federal government finally announced the creation of such an independent watchdog in 2018, and pledged that the office would have the crucial powers to compel testimony and the production of documents from companies. This announcement was applauded by civil society and labour groups, including the CNCA.

Despite its explicit and public commitment, the government subsequently bowed to industry pressure and gutted the office’s powers before it even got off the ground. In April 2019, the government created a powerless advisory post that differed little from the discredited offices that had come before it. Sheri Meyerhoffer was appointed as the Special Advisor to the Minister of International Trade Diversification, to be known as the Canadian Ombudsperson for Responsible Enterprise. It remains an ombudsperson in name only, without the independence and powers that are the foundation of an effective office.

This screenshot taken after the January 2018 announcement of the CORE shows the government’s commitment to provide the office with the power to compel witnesses and documents. It has since been removed from the government’s website:

At the time, Minister Carr said that the promised powers to independently investigate would need to wait a little longer – until the results of an external legal review were made public, in just a few weeks’ time. The report remained buried for over a year and a half, and the office of the CORE remains powerless to this day.

Our analysis of the serious deficiencies of the CORE’s mandate are available here and here.

"It was because of assurances that the CORE would have independence and real investigatory powers that we stood alongside the government in January 2018 and we promoted the announcement both nationally and internationally."

— Alex Neve, Secretary General, Amnesty International Canada

Will the CORE be transformed into the Ombudsperson that was promised?

Building on expert legal advice Canada commissioned in the spring of 2019 (known as the McIsaac report), Minister of International Trade Diversification Jim Carr acknowledged in a September 2019 letter to the CNCA that the CORE needed investigatory powers to be effective, and committed to creating a “stand-alone legal framework for the office, including stipulating its powers to compel documents, witnesses, and other key testimony.” Ms. Meyerhoffer has publicly stated that she would also be pressing the government for these powers.

The McIsaac report was concealed from public view for over a year and a half, until it was leaked in 2021. The report indicates that the minister commissioned this expert report to advise him on “how to equip the Canadian Ombudsperson for Responsible Enterprise (CORE) with sufficient tools to engage in credible and effective investigations of alleged human rights abuse and to ensure that she has the powers to compel witnesses and documents.”

Key observations from the McIsaac report:

- “While the best way to ensure that the CORE has the necessary powers to compel witnesses and the production of documents would be to enact legislation to establish the CORE, appointing the CORE as a commissioner under Part I of the Inquiries Act could also achieve that objective, while, at the same time, retaining the overall mandate currently envisaged for the CORE.” (emphasis added)
- “If the CORE is structured as an ombudsperson appointed as a Ministerial Advisor, as is currently the case, its effectiveness will be dependent on the cooperation of the complainant and the entity being investigated.” (emphasis added)
- “…it is fair to say that without a way to compel the cooperation of the entities against which a complaint is made or others who may hold relevant information, the CORE’s effectiveness may be compromised.” (emphasis added)

In November 2020, the CNCA learned from the office of the Minister of Small Business, Export Development and International Trade, Mary Ng, that Canada would be reneging on its commitment and would not be equipping the office with the powers to compel documents and testimony. Despite the findings of the McIsaac report and the Government of Canada’s public commitments to creating a CORE with powers to investigate, the CORE would remain an ombudsperson in name only.

Given the absence of the basic minimum powers to fulfill the CORE’s mandate, CNCA members have felt the obligation to warn our global partners to approach the CORE with caution.

How can the Canadian Ombudsperson for Responsible Enterprise (CORE) be transformed into an independent office with the power to investigate?

The Canadian Ombudsperson for Responsible Enterprise (CORE) can be transformed into an independent office, and given the investigatory powers it needs, by passing a new law or through a new order in council under the Inquiries Act (along with a companion order in council under the Financial Administration Act).

The CNCA has developed model legislation (2016) and a model order in council (2019) showing exactly how to create an ombudsperson office to effectively address human rights abuses by Canadian multinational business.

In March of 2022, a game-changing bill was introduced in the House of Commons. Bill C-263, An Act to establish the Office of the Commissioner for Responsible Business Conduct Abroad and to make consequential amendments to other Acts, would have finally invested the CORE with the power to produce documents and compel witness testimony under oath.

In response to misleading assertions made by some corporate representatives, the CNCA also produced three explainers:

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Why is it constitutional to give the CORE full investigatory powers under the Inquiries Act?

CNCA Admin — Thu, 31 Oct 2019 23:39:35 +0000

This Q&A is the first in a series produced in response to misleading assertions made by industry representatives questioning the constitutionality of providing the Canadian Ombudsperson for Responsible Enterprise with full investigatory powers under the Inquiries Act.

Download the full PDF here.

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Excerpt from the full document:

Background

The Canadian Ombudsperson for Responsible Enterprise (CORE) requires robust investigative powers to fulfill his/her mandate. Appointing the CORE as a Commissioner under the Inquiries Act would give the Ombudsperson many of the tools she/he needs to investigate allegations of harm, and to reach a wellfounded conclusion.

This Q&A provides some background on the relationship between the Charter of Rights and Freedoms and the proposed CORE powers under the Inquiries Act. It provides an overview of the operation of the Charter in respect of government actions and laws; and discusses the current state of the law on Commissioner powers and the Charter. [1]

The bottom line? The jurisprudence of the Supreme Court of Canada makes clear that the government has wide leeway in designing the office of the CORE to comply with the Charter.

There are many other offices and commissions that have the powers we expect will be provided to the CORE. As outlined below, when faced with Charter challenges to Commissioner powers, or their use in investigations, the courts have upheld these powers in a variety of settings. Thus, the courts have already used the Charter to scrutinize the powers of Commissioners, and found that there is nothing inherent in these powers that gives rise to problems under the Charter.

The Charter has very limited application to the powers of Commissioners under the Inquiries Act. It is available to protect against evidence gathered through compelled testimony being used against a witness in future proceedings. These protections can be bolstered through language in the OIC clarifying that evidence obtained through Ombudsperson investigations cannot be used in other proceedings.

[1] For an examination of constitutional questions relating to federal / provincial division of power issues in this context, please see the November 9, 2017 memo OIC under the Inquiries Act, attached.

…

Download the full PDF here.

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Note: This post was originally published as “The Canadian Ombudsperson for Responsible Enterprise, the Charter and the Inquiries Act” on 31 October 2019. The title of the full document, as prepared by The Law Offices of Erin Simpson on 31 October 2019, is “The Canadian Ombudsperson for Responsible Enterprise, the Canadian Charter of Rights and Freedoms, and the Powers of Commissioners under the Inquiries Act”.

The post Why is it constitutional to give the CORE full investigatory powers under the Inquiries Act? appeared first on CNCA - RCRCE.

What does an effective corporate watchdog look like? The CNCA’s model Order in Council lays it out

CNCA Admin — Thu, 13 Jun 2019 22:23:30 +0000

What does a corporate watchdog need to be effective? Canada’s new mandate for the Ombudsperson for Responsible Enterprise entirely misses the mark. Thankfully, leading legal experts have drafted a model order in council to spell it out.

Model Order in Council pursuant to the Inquiries Act for the Canadian Ombudsperson for Responsible Enterprise (CORE)

January 2019

Whereas the Government of Canada is committed to ensuring Canadians everywhere can have confidence in Canadian companies and trust that international trade and investment is working for all;

Whereas the Government of Canada expects Canadian companies operating abroad to respect human rights and all applicable laws, and to meet or exceed widely-recognized international standards for responsible business conduct;

Whereas groups and individuals, within and outside Canada, have made serious allegations of human rights, and labour rights harms connected with the activities of Canadian companies operating outside Canada; and

Whereas the Government of Canada has committed to establishing a Canadian Ombudsperson for Responsible Enterprise (“CORE”) to inquire into and address allegations of human rights abuses connected with the activities of Canadian companies operating outside Canada;

Whereas, in relation to allegations of harms connected to Canadian corporate activity outside Canada, the Government of Canada is committed to increasing transparency and accountability; promoting gender-sensitivity; promoting remedies for harms while also ensuring systemic change in order to prevent future harm; and promoting meaningful participation of communities in decisions affecting them;

Whereas the United Nations Guiding Principles on Business and Human Rights, unanimously endorsed by the UN Human Rights Council in 2011, call on States to “ provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse”;

Whereas the Government of Canada does not intend to deprive any person of the right to bring a legal action in a court in any jurisdiction in Canada against an entity or person for harms suffered outside Canada;

And whereas the Government of Canada has committed to creating the CORE, addressing complaints relating to the mining, oil, gas and garment sectors, as a Commission of Inquiry as an interim step towards the creation of a statutory body with jurisdiction over a growing range of sectors;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Prime Minister, directs that a commission (“the Commission”) do issue, for the period beginning on January 1, 2019, and continuing until it is replaced by a permanent statutory body, under Part I of the Inquiries Act and under the Great Seal of Canada, appointing XXX as the Commissioner, to be known as the Ombudsperson, to inquire into allegations of harm connected with the operations of Canadian companies operating outside Canada.

Such Commission must:

1. Direct the Commissioner to receive complaints by any person, organization, or group of individuals, resident in Canada or elsewhere, at any time, regarding a harm that may be the subject of inquiry under this Order, and in relation to those complaints;

take any and all necessary steps, on request of a complainant, to protect the identity, personal information, and in appropriate circumstances, the testimony, of one or more complainants;
identify one or more subjects of the complaint;
accept complaints relating to events that occurred at any time, including at any time prior to the issue of the Commission;

2. Direct the Commissioner to inquire into every complaint in which
1) One or more of the subjects

Is listed on a stock exchange in Canada; or
Is incorporated in any jurisdiction in Canada; or
Has its principal place of business in Canada; or
Is a subsidiary, or an affiliate, of an entity that
1. Is listed on a stock exchange in Canada; or
2. Is incorporated in any jurisdiction in Canada; or
3. Has its principal place of business in Canada; or
Receives, or has received, financial support, insurance; subsidy, promotion, partnership or protection from the Government of Canada or any of its Departments or Agencies; or
Is a significant supplier to a retailer or brand selling garments in Canada

AND
2) The complaint alleges an infringement, or a significant risk of infringement, of international human rights, and labour standards, including the nine core human rights treaties, the United Nations Declaration on the Rights of Indigenous People (UNDRIP), eight core International Labour Organization conventions, ILO 169, OECD Convention on Bribery, and the Geneva Convention, UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, (“harm(s)”) outside Canada;
AND
3) The complaint alleges that the harm(s) were, by act or omission, caused or contributed to by one or more subjects, or by a third party with which one or more subjects has or had a material contractual relationship;
AND
4) The Commissioner does not believe that

the harm(s) alleged in the complaint are not serious; or
the complaint is frivolous or vexatious or is not made in good faith

3. Authorize the Commissioner to inquire into an allegation on his or her own motion, without a complaint, where she or he has reason to suspect that a harm may be the subject of inquiry under this Order;

4. Direct the Commissioner to issue a Notice of Inquiry to the subjects, and to the public;

5. Authorize the Commissioner, when the complainant and the subjects agree, and in appropriate circumstances, to make alternative dispute resolution (“ADR”) services available, including mediation and joint fact finding;

6. Direct the Commissioner, in assessing appropriate circumstances for ADR, to have regard to:

1) The nature of the harms alleged, recognizing that ADR is not appropriate in all cases, and is specifically not appropriate in cases involving sexual violence;
2) The purposes and objectives of the CORE, in particular, promoting transparency and accountability, and ensuring both remedies, and systemic change to prevent future harm;
3) Any reason to suspect that the destruction of evidence relevant to an investigation may occur;

7. Authorize the Commissioner to conduct independent investigations into complaints when:

1) The circumstances are not appropriate to ADR;
2) The complainant or the subjects do not agree to ADR, or withdraw their agreement after commencement of ADR;
3) There are outstanding issues of public importance not resolved through ADR;

8. Direct the Commissioner to review any settlement reached through ADR, taking into account the purposes of the CORE in promoting respect for human rights and labour rights; transparency, accountability; gender sensitivity, remedy and ensuring systemic change to prevent future harm

1) Direct the Commissioner, when reviewing settlements, to review both the substantive content and the fairness of the procedures

9. Authorize the Commissioner, where the law of a foreign state does not prohibit it, to gather information in furtherance of his or her investigation, in a foreign state

1) Where an investigation requires the Commissioner to gather information or meet with individuals in a foreign jurisdiction, he or she will inform the foreign government of his or her meeting and information-gathering activities;

10. Authorize the Commissioner, when gathering information in a foreign jurisdiction, to endeavour to enter into legal assistance agreements, and to make use of letters rogatory and letters of request, exercising the powers of a Commissioner under s. 5 of the Inquiries Act

11. Authorize the Commissioner, when he or she is satisfied on a balance of probabilities, that the evidence – written or oral – of any witness contains or may contain information that is:

personal information, within the meaning of s. 3 of the Privacy Act, or in any provincial or territorial privacy act; or
third party information within the meaning of 20 (1) of the Access to Information Act;

to conduct the examination of the witness “in-camera”

12. Direct the Commissioner to not disclose publicly or in any report, any personal information, or third party information, unless, in the opinion of the Commissioner, the public interest in the disclosure outweighs any invasion of privacy that could result from the disclosure;

13. Direct the Commissioners to make any disclosure referred to in paragraph (12) in such a way as to minimize, to the greatest extent possible, any invasion of privacy that could result from the disclosure;

14. Authorize the Commissioner, when he or she has reason to suspect that the evidence – written or oral – of any witness might endanger the safety of an individual, that individual, or a group of individuals, or deems it necessary to protect a witness from public exposure, she/he may declare any part of the investigation to be in camera

15. Direct the Commissioner to not disclose publicly or in any report, any information which may endanger or expose an individual or group of individuals, as referenced in paragraph (14)

16. Direct the Commissioner to conduct her or his duties without expressing any conclusion or recommendation regarding the civil or criminal liability of any person or organization;

17. Direct the Commissioner to disclose to the Attorney General of Canada information relating to the commission of an offence against a law of Canada if there is evidence of such offence;

18. Authorize the Commissioner to develop specialized processes to protect and consider the needs of complainants, particularly in investigating allegations of sexual misconduct, drawing on best practices internationally;

19. Authorize the Commissioner to suspend, discontinue or not initiate an inquiry where a proceeding is or has been initiated in a court in any jurisdiction in Canada, involving the same parties, on a matter substantially similar to the matter of the investigation

1) The Commissioner shall not suspend or decline to initiate an investigation where there is reason to suspect that the purpose of the litigation in a court in any jurisdiction in Canada is to interfere in the Ombudsperson investigation

20. Direct the Commissioner to issue a public report of all of his or her inquiries, containing her or his findings and opinions on the harms alleged, within a reasonable time after the conclusion of an investigation.

21. Direct the Commissioner, in forming and reporting on his or her opinion regarding an alleged infringement of human rights, to have reference to the practice of competent international bodies, and to the UN Guiding Principles on Business and Human Rights, and may also consider other international norms, including

1) OECD Guidelines on Multinational Enterprises;
2) OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas;
3) IFC Performance Standards;
4) Voluntary Principles on Security and Human Rights;
5) Sustainability reporting guidelines of GRI; and
6) Any international codes of conduct or corporate codes of conduct a company (or its affiliate) has signed on to or adopted.

22. Direct the Commissioner to make recommendations to companies, governments, and other actors, including recommendations for a specific remedy, apology, withdrawal of government support from a company or project, and changes to law and government policy regarding the activities of Canadian companies outside Canada.

23. Authorize the Commissioner to attach timelines to recommendations; and to institute a process for follow up on recommendations, including follow-up reports.

24. Authorize the Commissioner to monitor the implementation of recommendations.

25. Direct the Commissioner to produce an Annual report to Parliament, including the recommendations resulting from investigations, and status of recommendations.

26. Authorize the Commissioner, where a recommendation to withdraw government support from a company or project is made, and the relevant agency has not followed the recommendation, to seek a formal decision, and reasons for an agency’s refusal to follow a recommendation to cease support, and in appropriate circumstances, to seek judicial review of the reasons in Federal Court;

27. Authorize the Commissioner to provide financial assistance to complainants in obtaining legal counsel for mediation in appropriate circumstances;

28. Direct the Commissioner to issue a public summary of an inquiry, including a report on the outcome where mediation has resulted in a settlement

Glossary for Terms of Reference:

An entity is an “affiliate” of an entity if:
1. It is a subsidiary of the entity; or
2. both are subsidiaries of the same entity; or
3. each of them is controlled by the same person
“control” means that an entity, directly or indirectly:
1. owns 20 or more percent of the voting interests in an affiliate or other entity; or
2. ordinarily directs or instructs the conduct of the affiliate or other entity; or
3. alone or in combination with another affiliate of the entity, is empowered through voting interests, or based on an agreement with another party, to elect at least 30 per cent of the Board of Directors of an affiliate; or
4. has the power to cause direction of the management and policies of an entity; or
5. determines the salary level or bonus structure for executives or employees of an affiliate or other business entity
“eight core International Labour Organization Conventions” means:
“entity” means a corporation or a trust, partnership, joint venture, or other unincorporated organization
1. that is engaged in the commercial development of oil, gas or minerals; or
2. that controls a corporation or a trust, partnership, joint venture, or other unincorporated organization that is engaged in the commercial development of oil, gas or minerals [from ESTMA, adapted]
“foreign state” means any state other than Canada;
“nine core human rights treaties means”:
1. the International Covenant on Civil and Political Rights (ICCPR);
2. the International Covenant on Economic, Social and Cultural Rights (ICESCR);
3. the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD);
4. the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);
5. the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT);
6. Convention on the Rights of the Child (CRC);
7. Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW);
8. Convention on the Rights of Persons With Disabilities (CRPD);
9. the International Convention for the Protection of All Persons from Enforced Disappearance (CED);
“person” includes a legal person
“project” means the operational activities that are governed by a single contract, license, lease, concession or similar legal agreements and form the basis for payment liabilities with a government. Nonetheless, if multiple such agreements are substantially interconnected, this shall be considered a project. [from ESTMA guidance]
“subject of an investigation” means any entity named in a complaint under Part 4; or an entity identified by the Ombudsperson under Part 6, sections 1 or 2;
An entity is a “subsidiary” of an entity if:
1. It is controlled by
  1. That entity;
  2. That entity and one or more entities each of which is controlled by that entity; or
  3. Two or more business organizations, each of which is controlled by that entity; or
2. It is a subsidiary of an entity that is a subsidiary of that Entity

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Why is it difficult for victims to access Canadian courts?

CNCA Admin — Tue, 26 Mar 2019 23:08:15 +0000

Those who have been wronged by a Canadian company working overseas face many hurdles accessing Canadian courts. Litigation can be costly and logistically difficult. In addition, plaintiffs run the risk that a Canadian judge will refuse to hear their case. The legal principle of forum non conveniens allows a judge to decline a case, even if the Canadian court has jurisdiction to hear it, if the judge finds that it would be more appropriate for the case to be heard in the country where the alleged abuse took place.

As the number of troubling accusations regarding human rights abuse and Canadian companies grows, foreign victims have begun to test the legal waters in Canada. To date, eight cases involving international corporate accountability have been brought to Canadian courts. However, thus far no non-national has been successful in such a suit. Three cases (involving HudBay Minerals in Guatemala) are currently at trial in Ontario. The HudBay cases are, so far, unique. HudBay withdrew its arguments on forum non conveniens, which meant that these cases could go to trial, but would not clear the way for future cases to be heard in Ontario courts. A similar case brought to the BC Supreme Court was dismissed on forum grounds, and another case in BC is outstanding.

If every country had a free and fair judicial system, or there were effective international mechanisms for holding companies to account, accessing justice in Canada would be less urgent. However, in many countries where Canadian mining companies operate, legal barriers, cost and corruption can make it difficult for those who suffer corporate abuse to seek justice. Where regulations do exist in other countries, they are often weak and unenforced. To make matters worse, in several countries, Canada has played a role in weakening social and environmental protections through mining code revisions.

Globally, there is an urgent need to improve access to justice for victims of corporate abuse. The United Nations urges states to address the barriers that prevent legitimate cases from being brought before the courts.

It is time for the Canadian government to show leadership in facilitating access to Canadian courts for the foreign victims of corporate abuse.

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The Canadian Ombudsperson for Responsible Enterprise and particular provisions of the Charter

CNCA Admin — Wed, 31 Oct 2018 23:38:45 +0000

This Q&A is the second in a series produced in response to misleading assertions made by industry representatives questioning the constitutionality of providing the Canadian Ombudsperson for Responsible Enterprise with full investigative powers under the Inquiries Act.

The Canadian Charter of Rights and Freedoms provides important protections to individuals and companies against infringements on their rights by all laws or government action, including the CORE. This Q&A considers
three Charter sections.

As noted in Q&A 1, the Government of Canada has wide leeway in creating an office that is compliant with the Charter. The Charter has very limited application to the powers of Commissioners under the Inquiries Act. This limited application provides protections to witnesses subject to subpoenas, but does not call into question the existence of the powers.

Download the PDF here.

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Explainers Archives | CNCA - RCRCE

CNCA case studies: how mandatory human rights and environmental due diligence legislation can prevent abuse by Canadian companies abroad

Case Studies

Wage theft and unpaid severance

Freedom of association and threats of violence, death

Forced labour in Canada’s PPE supply chains

Violent deaths, criminalization and land grabbing

Human rights abuses

Environmental contamination and human rights abuses

Comparative Chart: Don’t Mistake Reporting for Accountability

Canada must require Canadian companies to respect human rights throughout their supply chains.

Which option will Canada choose?

Comparative Chart: Bill C-243/S-211 vs. Bill C-262

Endnotes

Media Backgrounder: The CNCA’s campaign for a mandatory human rights and environmental due diligence law

The Canada brand has a human rights problem

Canada’s failed approach is out of step with global trends

The time has come for enforceable human rights legislation

Notes

FAQs: Mandatory human rights and environmental due diligence legislation in Canada

1. Why do we need such a law in Canada?

2. What is human rights and environmental due diligence?

3. What would the law require that companies do?

4. How would this legislation help people harmed by Canadian companies overseas and prevent further abuse?

5. What companies would be covered by the CNCA’s model law?

6. Do other countries have similar laws?

7. Can’t people harmed by Canadian companies abroad already seek justice in Canadian courts?

8. Do they have any other recourse to seek remedy in Canada?

9. How would the law be enforced?

10. Under this law, would Canadian companies be criminally prosecuted for human rights abuses linked to their overseas operations?

11. How is the CNCA’s model legislation different than “modern slavery” legislation being discussed in the Senate?

12. How would this legislation complement a strengthened Canadian Ombudsperson for Responsible Enterprise?

13. Why doesn’t the law apply to human rights and environmental impacts caused by corporations inside Canada?

Top 3 reasons why Bill S-211 (S-216), Canada’s Modern Slavery (Reporting) Act, misses the mark

Reason #3

The scope is too narrow; rules would only apply to a small minority of companies

Reason #2

Bill S-211 (S-216) ignores some of the most egregious and interrelated human rights abuses

Reason #1

Bill S-211 (S-216) only requires companies to report on their actions – it does not require them to respect human rights or change their behaviour

A Better Approach Forward

A note on Canada’s ban on the important of goods made with forced labour

ENDNOTES

Executive Summary: The Corporate Respect for Human Rights and the Environment Abroad Act

The CNCA’s draft model mandatory human rights and environmental due diligence law

Introduction

Pillar 1: Establishing a corporate duty to prevent and to avoid adverse human rights impacts

EXTRACT FROM THE MODEL LEGISLATION

Duties to Avoid, Prevent and Address [7]

What companies would the law apply to?

What rights would be protected?

Pillar 2: Establishing a corporate duty to develop, implement and report on adequate human rights and environmental due diligence procedures

EXTRACT FROM THE MODEL LEGISLATION

Due diligence procedures shall include:

Identifying and assessing real and potential adverse impacts;

Ceasing and remedying existing adverse impacts;

Mitigating risks of adverse impacts;

Monitoring the implementation and effectiveness of the measures adopted to address adverse human rights impacts;

A mechanism to provide an alert to the entity of possible adverse effects on or risks to human rights;

Documenting due diligence efforts.

Pillar 3: Ensuring access to remedy and enforcement of HREDD obligations

EXTRACT FROM THE MODEL LEGISLATION

Failure to Avoid, Prevent and Address Adverse Human Rights Impacts

Any person who has suffered loss or damage as a result of conduct that contravenes any provision of this Act or the regulations may, in any court of competent jurisdiction, bring an action for relief.

How civil liability helps prevent harm and ensure access to remedy

Endnotes for the Executive Summary

Canada’s Diplomatic Support for Mining Companies Overseas: the case of Shin Imai v. Canada

Shin Imai v. Canada

Access-to-information lawsuit concerning Canada’s intervention in human rights cases against Goldcorp Inc. in Guatemala

Overview of the case

Why this case matters

Timeline of events

Uncovering secrets: Canada abandons human rights in gold-mine debacle

Updates and Resources

A brief history of the Canadian Ombudsperson for Responsible Enterprise (CORE)

Will the CORE be transformed into the Ombudsperson that was promised?

Key observations from the McIsaac report:

How can the Canadian Ombudsperson for Responsible Enterprise (CORE) be transformed into an independent office with the power to investigate?

Why is it constitutional to give the CORE full investigatory powers under the Inquiries Act?

Excerpt from the full document: