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The Corporate Respect for Human Rights and the Environment Abroad Act: Full text of the model legislation

Darren Shore — Mon, 31 May 2021 15:32:00 +0000

The Corporate Respect for Human Rights and the Environment Abroad Act

Model legislation for mandatory human rights and environmental due diligence

By the Canadian Network for Corporate Accountability

Note: This model legislation, first published in May 2021, is the product of extensive research and engagement, within and outside of Canada. It provides a blueprint for the Government of Canada. The model is being released as a draft text in recognition that it 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 CNCA’s expert advisory group, Above Ground and lead drafter Erin Simpson, Landings LLP.

Preamble

Whereas business entities may cause adverse human rights impacts through their own activities, or through their business relationships;

Whereas the realities of global supply chains, cross-border trade, investment, communications and movement of people are such that Canadian business entities may cause adverse human rights impacts outside Canada;

Whereas, at present, accountability and remedy in such cases is often elusive, and where legal remedy is obtained, it frequently does not meet the international standard of “adequate, effective and prompt reparation for harm suffered”;

Whereas the right to remedy is a core tenet of the international human rights system, and the need for victims to have access to an effective remedy is recognized in the UN Guiding Principles on Business and Human Rights (UNGPs);

Whereas undertaking human rights due diligence can assist business enterprises to proactively manage potential and adverse human rights impacts, and can assist enterprises in fulfilling their responsibility to respect human rights;

Whereas the prevention of adverse impacts is the main purpose of human rights due diligence;

Whereas ensuring the legal accountability of business enterprises and access to effective remedy for persons affected by such abuses is a vital part of a State’s duty to protect against business-related human rights abuse;

And whereas effective State-based judicial mechanisms are at the core of ensuring access to remedy;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

PART I: INTERPRETATION

1. Interpretation:

Nothing in this Act should be interpreted to preclude the Attorney General of Canada from prosecuting any entity or individual associated with any entity for any offence under the Criminal Code of Canada or any other Act of any province or jurisdiction in Canada.

2. Definitions

“Activities” includes actions and omissions
An entity is an “affiliate” of an entity if:
(i) It is a subsidiary of the entity; or
(ii) both are subsidiaries of the same entity; or
(iii) each of them is controlled by the same person.
“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.
“entity” means a corporation or a trust, or partnership. For greater clarity, a not-for-profit, charity, or trade union is not an “entity” for purposes of this Act.
An entity is a “subsidiary” of an entity if
(i) 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 entities, each of which is controlled by that entity; or
(ii) It is a subsidiary of an entity that is a subsidiary of that entity.
“Commissioner” is the Commissioner provided for in Part XI.
“Interested person” means:
(i) a person who is directly affected, or
(ii) a person who:
1. has a genuine interest in the issues arising in the case;
2. presents a reasonable means of the case being brought forward;
3. does not have a conflict of interest in the outcome of the case.
“Minister” means the Minister of Justice.
“Person” means legal person or natural person.

3. Control

An entity is controlled by a person or another entity if
i. Twenty percent or more of the voting interests in the entity are held by or for the benefit of that person or entity, directly or indirectly; or
ii. The person or entity ordinarily directs or instructs the conduct of the entity, directly or indirectly; or
iii. The person or entity is, alone or in combination with another entity, empowered through voting interests, or based on agreement with another party, to elect at least thirty percent of the board of directors of the entity, directly or indirectly; or
iv. The person or entity has the power to cause direction of the management and policies of the entity, directly or indirectly; or
v. The person or entity determines the salary or bonus structure for executives or employees of the entity, directly or indirectly; or
vi. The person or entity otherwise controls the entity in fact, directly or indirectly;
vii. The person or entity publicly represents itself as being responsible for or in control of the entity.

PART II: ENABLING AUTHORITIES

4. Except as otherwise provided, the Minister of Justice is responsible for the administration of this Act.

5. The Governor in Council may make any regulation that is referred to in this Act or that prescribes any matter whose prescription is referred to in this Act.

6. The Minister shall cause a copy of each proposed regulation made under this Act to be laid before each House of Parliament, and each House shall refer the proposed regulation to the appropriate Committee of that House.

PART III: PURPOSES

7. The purpose of this Act is to prevent, address, and remedy adverse human rights impacts connected to the overseas business activities of entities under this Act.

PART IV: GENERAL PROVISIONS

8. Adverse Human Rights Impacts

An adverse human rights impact occurs when an action removes or reduces the ability of an individual to enjoy their human rights.
Subject to any further additions in the regulations under this Act, “human rights” includes:
(i) human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment;
(ii) the rights set out in:
1. The nine core human rights treaties:
  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);
2. The United Nations Declaration on the Rights of Indigenous Peoples;
3. International Labour Organization Convention 169, the Indigenous and Tribal Peoples Convention;
4. The 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;
5. The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions;
6. The 8 core international Labour Organization Conventions:
  1. the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87);
  2. the Right to Organise and Collective Bargaining Convention, 1949 (No. 98);
  3. the Forced Labour Convention, 1930 (No. 29);
  4. the Abolition of Forced Labour Convention, 1957 (No. 105);
  5. the Minimum Age Convention, 1973 (No. 138);
  6. the Worst Forms of Child Labour Convention, 1999 (No. 182);
  7. the Equal Remuneration Convention, 1951 (No. 100);
  8. the Discrimination (Employment and Occupation) Convention, 1958 (No. 111);
The regulations under this Act may provide any further international human rights instruments encompassed by “human rights” for the purposes of this Act.

PART V: APPLICATION

9. Entities:

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
(iii) The entity is not exempted from application of this Act by the regulations;
All entities are “reporting entities” unless exempted in the regulations;
The regulations may exempt entities from application of this Act by sector, revenue, or number of employees.

10. Conflict of Laws:

Subject to any exception established herein or by regulation, this Act contains overriding mandatory rules that apply to the overseas business activities of entities irrespective of the rules of Canadian private international law, whether they be found in the common law or established by an Act of a province or Canada.
Any provision of an agreement or arrangement that contravenes a rule under this Act, or provides inferior rights and protections than those established herein is absolutely null.
Notwithstanding subsections 1 and 2, nothing in this section shall be construed as affecting any obligation that an entity owes under any domestic or foreign law, contract, or arrangement that holds it to a higher standard than the rules of this Act and its regulations.

PART VI: COMMISSIONER

Appointment of Commissioner

11. Within three months of the coming into force of this Act, the Governor in Council shall appoint an officer to be known as the Commissioner for Human Rights Protection in Business, who shall be responsible for the administration and enforcement of this Act.

12. The Commissioner has all the power of a Commissioner appointed under the Inquiries Act.

13. The Commissioner holds office during good behaviour for a term of five years, but may be removed for cause by the Governor in Council.

14. The Commissioner, on the expiration of a first term of office, is eligible to be re-appointed for one further term not exceeding five years. For greater clarity, the Commissioner is eligible for only one re-appointment.

15. The Commissioner shall rank as and have all the powers of a deputy head of a department, shall engage exclusively in the duties of the office of Commissioner under this Act or any other Act of Parliament and shall not hold any other office under Her Majesty for reward or engage in any other employment for reward.

16. The Commissioner shall have expertise and experience in human rights and have knowledge of international best practices in human rights-based approaches and gender-sensitive analysis.

Compensation of Commissioner

17. The Commissioner shall be paid a salary, fixed by Parliament, equal to the salary of a puisne judge of the Federal Court, and is entitled to be paid reasonable travel and living expenses incurred in the performance of duties under this Act or any other Act of Parliament.

18. The provisions of the Public Service Superannuation Act, other than those relating to tenure of office, apply to the Commissioner, except that a person appointed as Commissioner from outside the public service, as defined in the Public Service Superannuation Act, may, by notice in writing given to the President of the Treasury Board not more than sixty days after the date of appointment, elect to participate in the pension plan provided in the Diplomatic Service (Special) Superannuation Act, in which case the provisions of that Act, other than those relating to tenure of office, apply to the Commissioner from the date of appointment and the provisions of the Public Service Superannuation Act do not apply.

Staff

19. Such officers and employees as are necessary to enable the Commissioner to perform the duties and functions of the Commissioner under this Act or any other Act of Parliament shall be appointed in accordance with the Public Service Employment Act.

20. The Commissioner may engage on a temporary basis the services of persons having technical or specialized knowledge of any matter relating to the work of the Commissioner to advise and assist the Commissioner and the officers and employees, in the performance of their duties and functions under this Act or any other Act of Parliament and, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of such persons.

Delegation

21. The Commissioner may authorize any person to exercise or perform, subject to such restrictions or limitations as the Commissioner may specify, any of the powers, duties or functions of the Commissioner under this Act of Parliament.

22. The Commissioner is authorized to exercise the powers and perform the functions of the Treasury Board that relate to human resources management within the meaning of paras 7(1)(b) and of the Financial Administration Act.

23. The Commissioner shall publish procedures and policies governing the handling of applications to investigate, investigations, and the making of Notices under s. 36.

24. Information-gathering in foreign jurisdictions;

Where the law of a foreign state does not prohibit it, the Commissioner may gather information in furtherance of his or her investigation, outside Canada;
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;
In gathering information in foreign jurisdictions, the Commissioner shall endeavour to enter into mutual assistance agreements, letters rogatory, or other like legal agreement, with local authorities;
For greater clarity, the Commissioner shall not participate in law enforcement activities in any foreign jurisdiction.

PART VII: OBLIGATIONS

Duties to Avoid, Prevent and Address

25. (1) Every entity has a duty to:

i) 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
ii) 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 s. 25 (1), it is liable for any injury that results from its contravention, whether it be caused by its own act or omission or that of its affiliate or a person with whom it has a business relationship.

Due Diligence Procedures

26. Subject to any provision in the regulations under this Act, due diligence means taking reasonable measures to:

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
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.

27. 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.

28. Every entity shall develop and implement due diligence procedures with respect to itself, its affiliates, and its business relationships.

29. In developing and implementing due diligence procedures, entities shall:

have regard to the intersection of sex and gender with other identity factors that include race, national and ethnic origin, Indigenous origin or identity, age, sexual orientation, socio-economic condition, place of residence and disability;
consult with the relevant stakeholders, including any relevant:
(i) trade unions;
(ii) affected communities;
(iii) workers;
have reference to the practice of competent international bodies; and to:
(i) the Rio Declaration on Environment and Development;
(ii) the UN Guiding Principles on Business and Human Rights;
(iii) the Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, “Mapping Report”, UN Human Rights Council;
(iv) the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention).

30. The regulations may provide

Any specific requirements in due diligence procedures, including auditing procedures; and
Any applicable standards and guidance to assist in assessing the adequacy of due diligence procedures, including standards applying to specific sectors, or to entities of particular sizes.

Due Diligence Reporting

31. Every reporting entity must publish a due diligence report annually;

Subject to any further requirements in the regulations, due diligence reports shall list the affiliates and business relationships affected by the due diligence obligation arising under s. 26.

32. The regulations shall specify the required headings in due diligence reports.

33. The due diligence report shall be published in any annual reports of the entity, and on a website dedicated to this task and maintained by the Commissioner, and shall be called “human rights risk reports”;

Any interested person or persons may, in accordance with procedures published by the Commissioner, submit commentary on due diligence reports published under this Act. Comments under this section shall be published on the website.

PART VIII: AUDIT AND ENFORCEMENT

34. On application from an interested person, or on its own initiative, the Commissioner shall inquire into a reporting entity’s compliance with s. 31 whenever there is reason to suspect

that a reporting entity has not published a due diligence report, or has not complied with the requirements under regulations made under s. 32; OR
that a reporting entity’s list of affiliates or business relationships provided pursuant to s. 31(1) is not comprehensive for the purposes of s. 26.

35. For purposes of verifying compliance with this Act, the Commissioner has all the powers conferred on a commissioner by sections 4 and 5 of the Inquiries Act and that may be conferred on a commissioner under section 11 thereof.

36. If, on the basis of information obtained, the Commissioner is of the opinion that

a reporting entity has not published a due diligence report per, s. 31, or including the headings specified in the regulations per s. 32; OR
that a reporting entity’s list of affiliates or business relationships provided pursuant to s. 31(1) is not comprehensive for the purposes of s. 26

the Commissioner may issue a Notice.

37. The Notice shall:

specify the name of the entity;
detail the basis of the Notice, and specify how the entity can bring its reporting into compliance with the requirements of ss. 31 and regulations under s. 32;
indicate a timeline for the entity to bring its reporting into compliance with the requirements of ss. 31 and regulations under s. 32;
specify the amount, if any, of an Administrative Monetary Penalty owing if the entity does not bring its reporting into compliance with the requirements of ss. 31 and regulations under s. 32 on the timeline indicated;
inform the entity of its right to contest the Notice, or the Penalty, in writing, and any procedure to be followed to exercise that right;
inform the entity of the manner of paying the penalty set out in the notice; and
inform the entity that if they do not pay the penalty or exercise their right to contest under part (5) they will be considered to have failed to comply and be liable for the penalty set out in the notice.

38. For greater clarity, the Notice shall not include any opinion on the accuracy or adequacy of due diligence procedures in a report.

39. The Minister may make regulations

respecting the determination of, or the method of determining, the amount payable as the Administrative Monetary Penalty;
respecting the service of Notices required or authorized under this Part, including the manner and proof of service and the circumstances under which documents are deemed to be served;
respecting the procedures to be followed in contesting a Notice or Penalty under s. 37 (5).

40. The amount that may be determined under any regulations made under s. 39 as the penalty for a violation may not exceed $250,000.

PART IX: PRIVATE RIGHT OF ACTION

41. Nothing in this Part should be interpreted so as to preclude new or ongoing civil actions in relation to the activities of an entity.

Failure to Avoid, Prevent and Address Adverse Human Rights Impacts

42. Any person who has suffered an injury as a result of an entity’s contravention of s. 25 (1), may, in a court of competent jurisdiction, bring an action against the entity for relief by way of:

injunction, including rehabilitation at the expense of the entity;
recovery of damages or losses;
aggravated and/or punitive damages;
an amount to fully or partially compensate for the costs that the person incurs in connection with the matter and proceedings under this section;
any combination of the above, or any order that a court considers appropriate in the circumstances.

43. If an entity fails to develop or implement adequate due diligence procedures, any interested person may apply to a court of competent jurisdiction to make any order against the entity that it considers appropriate in the circumstances, including an order providing for relief by way of:

injunction, including rehabilitation at the expense of the entity;
recovery of damages or losses;
aggravated and/or punitive damages;
an amount to fully or partially compensate for the costs that the person incurs in connection with the matter and proceedings under this section; or
any combination of the above, or any order that a court considers appropriate in the circumstances.

Defence

44. In any action under s. 42, it is a defence for the entity to prove that it exercised effective due diligence to prevent the adverse human rights impact(s) alleged.

Factors to Consider

45. In determining whether an entity exercised effective due diligence for purposes of s. 44, the court may consider
Extent of adherence to any relevant standards of conduct set out in the regulations;

Extent of adherence to any relevant standards of conduct set out in the entity’s public communications;
Whether the adverse human rights impact was, or should reasonably have been, identified as a risk in the entity’s due diligence procedures; and the adequacy of any steps taken to minimize the risk of the adverse human rights impact, having regard to the size of the entity;
Any history of adverse human rights abuses in the entity’s business operations;
Any steps taken by the entity to improve its due diligence procedures;
In the case of business relationships in an entity’s supply chain, any incentives the entity has created for improving human rights standards;
Other factors as defined in the regulations.

Public Support

46. If, on an action under s. 42, or on application under s. 43, a court is satisfied that

A person has suffered loss or damage as a result of conduct that contravenes any provision of this Act or the regulations; OR
An entity has failed to develop and implement adequate due diligence procedures;

A party may additionally make a motion for an order regarding the entity’s eligibility for support, subsidy, promotion or protection by any or all government agencies or departments. The court may order that any or all government agencies or departments:
i. Withdraw any existing support or subsidy, and terminate any promotion or protection of the entity for a stipulated period, or until specified conditions are met;
ii. Disallow any future support, subsidy, promotion or protection for a stipulated period or until specified conditions are met.

47. On a motion under s. 46, any affected government agency may appear.

Jurisdiction

48. A Canadian court has jurisdiction to hear and determine an action or application brought under this Part in the following cases:

the Defendant is domiciled or ordinarily resident in the court’s jurisdiction;
the Defendant has submitted to the court’s jurisdiction;
the Defendant has entered an agreement that grants the court jurisdiction over the action; or
there is a real and substantial connection between the court’s jurisdiction and the facts on which the action against the Defendant is based.

49. An entity is ordinarily resident in the court’s jurisdiction, for the purposes of this Part, only if:

it has or is required by law to have a registered office or business address in the court’s jurisdiction;
pursuant to law, it
i. has registered an address in the court’s jurisdiction at which process may be served generally; or
ii. has nominated an agent in the court’s jurisdiction upon whom process may be served generally;
it has an agent, representative, warehouse, or place of business in the court’s jurisdiction; or
its central management is exercised in the court’s jurisdiction.

50. Without limiting the right of the Plaintiff to prove other circumstances that constitute a real and substantial connection, a real and substantial connection is presumed to exist if the action:

concerns actual and not virtual business carried out in the court’s jurisdiction over a sustained period;
concerns a multi-jurisdictional tort or fault where more than a minor element of it was committed in the court’s jurisdiction; or
concerns obligations that are connected to a contract made in the court’s jurisdiction or governed by its laws;
concerns restitutionary obligations that, to a substantial extent, arose in the court’s jurisdiction.

51. Once a court has jurisdiction under s. 48, it shall not decline to exercise jurisdiction on the ground that the dispute should be decided in a court of another State or an arbitral forum.

This section shall not affect the rules on jurisdiction related to:
i) subject matter or to the value of the claim; or
ii) on the internal allocation of jurisdiction among the courts of Canada.

Limitation

52. No action may be brought under subsection s. 42 after five years from

the day on which the adverse impact was discovered; or
the day on which criminal proceedings, under this Act or other, in any jurisdiction in Canada were finally disposed of

whichever is the later.

53. No application may be brought under s. 43 after two years from

the day on which the procedures in question were, or ought to have been, published.

54. A limitation or prescription period under this Act is suspended

during any period in which the person that suffered the loss or damage is incapable of beginning the action because of any physical, mental or psychological condition;
during any period in which the person that suffered the loss or damage is unable to ascertain the involvement of the entity or its identity;
in respect of an action based on a sexual assault; or
for any other reasons for suspension under the common law.

Parallel litigation

55. The provisions of this Act apply notwithstanding any proceedings on the same adverse impact, or on a related adverse impact, in a state other than Canada.

56. The provisions of this Act apply notwithstanding any ruling or order by a court in a state other than Canada.

Court of Competent Jurisdiction

57. “Court” in this Part refers to a court of competent jurisdiction, including a provincial Superior Court and Federal Court.

The post The Corporate Respect for Human Rights and the Environment Abroad Act: Full text of the model legislation 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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Executive summary: The Global Leadership in Business and Human Rights Act

Darren Shore — Wed, 30 Nov 2016 15:16:00 +0000

Executive summary of the CNCA's draft model legislation to create a human rights ombudsperson for the international extractive sector in Canada, the Global Leadership in Business and Human Rights Act

November 2016

Introduction

Canada is a global leader in the oil, gas and mining sector and is home to more than half the world’s mining companies. However, Canadian companies’ overseas operations are often associated with credible accusations of human rights abuse and environmental damage including forced labour, sexual violence, forced displacement and failure to respect the right of Indigenous peoples to free, prior and informed consent. Those who are harmed often lack access to effective redress. Existing mechanisms in Canada have not been effective in providing redress to impacted individuals and communities. They lack the confidence of stakeholders.

For over a decade, Canadians have been calling on their government to take action on reports of systematic human rights abuse and environmental damage linked to Canadian oil, gas and mining projects around the globe. Since 2013, over 100,000 Canadians have joined the Open for justice campaign. Over 50 Canadian civil society organizations are signatories to a statement echoing this call. Directly-impacted people and communities have testified before parliamentary committees and have met with Canadian Members of Parliament from all parties. In 2015, the Liberal Party of Canada, New Democratic Party of Canada, Green Party of Canada and Bloc Quebecois took an important step forward – each committing to implement concrete measures to enhance corporate accountability for Canadian extractive companies operating abroad.

Developments internationally provide further impetus for Canadian action. The United Nations ‘Protect, Respect, and Remedy’ Framework on Business and Human Rights, and the Guiding Principles to that framework, confirm the legal obligation of states to respect, protect and fulfill human rights. This duty includes the obligation to provide access to remedy for the victims of human rights abuse. Canada has thus far failed to fulfill these legal obligations. This year, the UN Human Rights Committee joined other international authorities in calling on Canada to ensure that its corporations, particularly those in the mining sector, respect human rights standards when operating abroad. A letter to Prime Minister Trudeau signed by over 200 organizations from around the world confirms both the urgency and the global attention on Canada.

An effective and credible ombudsperson office will provide important long-term benefits to Canadian extractive companies. Extractive projects frequently create conflict and result in community grievances. When the underlying issues are not addressed fairly and quickly, conflict escalates and companies risk significant operating delays and interruptions with serious financial repercussions. Conflicts that create negative images and publicity for companies become significant liabilities not only for the companies involved but for the entire industry as it seeks to negotiate with rights holders for access to new raw material deposits. The absence of a credible, impartial and independent oversight mechanism exacerbates the problem. A robust system of corporate accountability, with a Canadian human rights ombudsperson as its cornerstone, would contribute to a more stable and predictable operating environment where the responsible business practices of Canadian companies are recognized and rewarded.

Much of the world is open for Canadian business. Canada now has an unprecedented opportunity to show leadership and to make Canada open for justice.

The CNCA commissioned the drafting of model legislation to create an extractive-sector ombudsperson based on established legal principles and procedures. The model legislation includes robust procedural protections both for companies under investigation and complainants. It also includes protections that respond to the particular vulnerabilities of complainants. Further, it includes measures designed to ensure the independence and credibility of the ombudsperson office. The draft model legislation provides for the effective and transparent investigation of complaints; clear investigatory procedures; public reporting; procedures for recommendations; the option of mediation; and measures to monitor the implementation of recommendations. The draft model legislation creates a non-judicial grievance mechanism to investigate allegations of harm associated with Canadian mining, oil and gas projects overseas and of failure to respect international human rights and environmental standards.

Purpose of the Ombudsperson Office

The objects of the model legislation, as set out in Part 3 Section 20, are to:

increase accountability and transparency in the extractive sector;
promote gender sensitive investigation, reporting, and resolution of harm;
promote remedy and reparations for harm and avoidance of harm;
and promote meaningful participation by affected individuals and groups.

An office that can effectively investigate complaints of harm related to overseas Canadian mining, oil and gas projects

If a person or community believes they have or will suffer harm in relation to a Canadian oil and gas or mining project overseas, they can bring a complaint to the ombudsperson for investigation. Complaints can be made by any person, organization, or group of individuals, and can be made at any time [Part 4].

The ombudsperson is required to investigate all complaints that allege harm (defined as an infringement of the listed international human rights, labour and environmental norms) [Schedule 1], or significant risk of harm, linked to an extractive company that has a nexus to Canada [Part 6]. This would include companies headquartered in Canada, their subsidiaries and affiliates, among others [Part 5 and Part 2 for various definitions]. Multinational companies organize their international affairs in complex ways. Limiting investigation to companies headquartered in Canada would not reflect the current reality of how international businesses are structured and operate. The ombudsperson can decline to investigate a complaint if he/she is of the opinion that the matter is trivial or not serious, that it has or is being effectively dealt with in another proceeding or if the ombudsperson is of the opinion that the complaint is frivolous, vexatious or not made in good faith [Section 6.4]. The ombudsperson must provide reasons for not investigating [Section 6.5]. The ombudsperson can also undertake investigations on his/her own motion if she/he suspects there is a significant risk of harm or that harm has occurred [Section 6.3].

Before initiating an investigation, the ombudsperson publicly notifies the parties (with limited exceptions) [Sections 6.8-6.11]. Within 30 days of that notice, the ombudsperson issues a formal request “for any and all information, document or physical evidence relating to the subject matter of the investigation” [Section 8.4]. Parties must provide information (actual documents, lists of evidence, indicate who else may have relevant information, etc.) within 60 days of that request. Parties can request that anything they provide be kept confidential [Section 8.5]. There are specific provisions to guide the ombudsperson in assessing such requests, including possible review by the Federal Court [Part 10].

The ombudsperson has specialized expertise and will develop procedures for effective investigations of alleged international human rights, labour and environmental abuses [Sections 3.9 and 8.1]. In carrying out his/her investigation, the ombudsperson will give the opportunity to the complainant(s) and any companies involved to make representations, with or without a representative of their choice and the ombudsperson can review external reports. No one has a right to be present when representations are made by others [Sections 8.2 and 8.3].

If the ombudsperson believes a company or person has information, documents or data in their possession or control that would help further the investigation that has not been provided in response to the ombudsperson’s request, the ombudsperson can apply to a justice for 1) a production order requiring that a party provide the ombudsperson with (a copy or original of) the specified document(s) or data, 2) an order to participate in an investigative interview (possibly before the judge or under oath), or 3) a search warrant for a building, receptacle or other place [Sections 8.9-8.15].

Many Canadian ombudsperson offices have the power to compel testimony and the production of documents without needing to seek a court order to that effect [i.e. Information Commissioner of Canada and Privacy Commissioner of Canada]. The extractive-sector ombudsperson would be required to get a justice to approve the order as a way of enhancing the procedural protections afforded to companies subject to a complaint.

Several conditions need to be met in order for a justice to make one of the above orders.

The justice must be satisfied that there are reasonable grounds to believe that harm has or may be committed and that evidence for the investigation or relating to the harm will be afforded by the order [Sections 8.9-8.15]. For a production order, the justice must also be satisfied that the documents or data are in the possession or control of the party [Section 8.10]. For an interview order, the justice must also be satisfied that reasonable attempts have been made to gather the information by other means [Section 8.12].

Where it is not against the rules of the other country to do so, the ombudsperson may gather information in other countries – through mutual assistance agreements, letters rogatory, or similar agreements. To be clear, the ombudsperson won’t participate in law enforcement activities in any other countries [Part 9].

Mediation and Settlement [Part 11]

In some circumstances, mediation could resolve the issues under investigation by the ombudsperson. Mediation can be requested at any time. Given the power-imbalance that often exists between complainant and company, and the public interest in transparency, the ombudsperson will offer mediation only if all parties give informed consent, the complainant is directly affected by the matter and can represent others affected by the harm, the matter under investigation is (in the opinion of the ombudsperson) appropriate for mediation, and the initial investigation has gone far enough to reveal the relevant facts. Parties can be represented during mediation, and the ombudsperson can agree to pay for the reasonable legal expenses of a complainant / group of complainants.

Where the settlement of a complaint is agreed to, made in writing, signed by the parties to the settlement, and approved by the Ombudsperson, the settlement is binding upon the parties to the settlement, and the party alleging breach may apply to the Federal Court for enforcement.

Ombudsperson reports are public, include findings and recommendations and the ombudsperson monitors implementation

The Ombudsperson shall issue a public report with his or her opinion, and the reasons therefor, and may make such recommendations as he or she thinks fit [Sections 13.1 and 13.4]. In forming his or her opinion the ombudsperson can look at international bodies and norms on human rights, corporate accountability, and business and human rights [Section 13.2-13.3]. The ombudsperson does not make findings of guilt or liability.

The ombudsperson may make any recommendation of any kind, to any person, or any agency and body of the Government of Canada, including but not limited to:

regarding remedy and reparations for the harm done;
steps to be taken to prevent further / avoid future harm (at this project and/or all operations);
regarding steps to resolve any conflict arising from the project;
regarding any acts or omissions of any Canadian government agency or department, or any practice, law or policy on which the act or omission was based, or the need for any practice; and/or
further investigation by a separate authority or body, as appropriate [Section 13.4].

Anyone who is the subject of a recommendation by the ombudsperson must inform the ombudsperson in writing, within a specified timeframe, of progress they have made in implementing the recommendation. The ombudsperson will then request input from the complainant(s) or other affected parties [Section 13.6]. Within 6 months, the ombudsperson will issue a report on his/her opinion as to the progress made in implementing the recommendations. The ombudsperson will provide a copy of the report to the parties to the dispute, to any relevant bodies or institutions interested in business and human rights, will publish it on their website and in the Canada Gazette, and will cause it to be laid before both Houses of Parliament [Sections 13.7- 13.11].

The ombudsperson can recommend the withdrawal or termination of government support, subsidy, promotion or protection by any government department or agency if the ombudsperson is of the opinion that:

the recipient of government support is not undertaking all reasonable steps to comply with the terms of a settlement;
the recipient of government support is not undertaking all reasonable steps to comply with the ombudsperson’s recommendation; or
the harm done was of such a serious nature that it would be inappropriate for the Government of Canada to support the entity or project under investigation [Part 14].

Any recommendation to withdraw or terminate government department or agency support must be implemented by the government agency or department within a specified time period, unless the government agency or department provides reasons, consistent with the Act, for not implementing it. The Federal Court can be asked to judicially review the reasonableness of any government agency or department’s reasons for non-implementation, should that occur [Sections 14.4-14.5].

Confidence in the office of an Ombudsperson is key to its effectiveness

The proper functioning of an ombudsperson office depends on the confidence of the public in the mandate and structure of the office, and in the qualifications and appointment of the office-holder. This confidence is highly dependent on both the perception of and actual independence from the influence of government and others.

The ombudsperson’s integrity and independence is ensured in this model legislation through:

Status as an Officer of Parliament [Section 3.2];
Appointment by the Governor in Council, with support of House of Commons and Senate [Section 3.1];
Security of tenure – 7 year term with one possible reappointment [Sections 3.3 and 3.4];
Remuneration fixed at adequate level [Section 3.6];
Sufficient staffing and budget to engage in effective investigations [Part 3];
Relevant expertise and knowledge, mandate to develop relevant procedures to ensure rights-based investigation and reporting [Sections 3.9 and 8.1]; and
Clauses to avoid conflict of interest and for immunities [Sections 3.22-3.24, and Part 15].

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New law would create Human Rights Ombudsperson to investigate violations associated with Canadian mining, oil and gas operations overseas

CNCA Admin — Thu, 03 Nov 2016 00:03:51 +0000

Ottawa, 2 November 2016 – The Canadian Network for Corporate Accountability released today detailed model legislation, providing the Canadian government with a blueprint for how to create an effective human rights ombudsperson in the extractive sector.

Human rights abuses at Canadian mining and oil and gas sites around the world are widespread and well documented. Victims of such abuse in local communities have nowhere to turn to seek justice, including in Canada. A new model law being launched today will help the Canadian government fulfill its promise to remedy human rights abuses and prevent future harm, as well as help create a more predictable and stable operating environment where the responsible business practices of Canadian companies are recognized and rewarded.

Examples of widespread human rights violations involving Canadian mining companies in Latin America are detailed in a report launched last Monday, The “Canada Brand.” This report identifies violence associated with 28 Canadian mining companies’ projects in Latin America, including 40 deaths.

“In our globalized world we can’t hide behind the idea that the harm is happening somewhere else and is someone else’s problem,” says Alex Neve, Secretary General, Amnesty International Canada. “Canadian companies need to respect human rights. Canada needs mechanisms to allow those who feel they have suffered harm to seek redress – – our international human rights commitments require it. This model legislation couldn’t come at a better time to help the government show concrete leadership in protecting human rights on the international stage.”

Recent reports on widespread violence at Canadian mines in Latin America and targeted attacks on environmental and human rights defenders near mining developments demonstrate the urgency to act now.

“People in the global South are demanding respect for their rights by transnational mining companies,” said Emily Dwyer, Coordinator of the Canadian Network for Corporate Accountability (CNCA). “The urgency is not lost on Canadians. Over 100,000 Canadians and more than 50 Canadian organizations are calling for the creation of an extractive sector ombudsperson.”

There are currently two mechanisms in Canada that can receive complaints of local communities relating to overseas operations of Canadian extractive companies (the Office of the Extractive Sector CSR Counsellor and the National Contact Point for the OECD Guidelines). However, these mechanisms lack investigatory powers and independence, are not mandated to recommend remedy or to engage in follow-up and monitoring activities and neither of them has proven effective in resolving cases. They lack the confidence of stakeholders.

“When worker and community complaints are not addressed, Canadian mining companies can face long delays in project approvals or operational interruptions with serious financial repercussions.” said Barb Byers, Secretary Treasurer, Canadian Labour Congress. “A human rights ombudsperson that effectively addresses complaints can help repair Canada’s international reputation, and will contribute to a more stable and predictable operating environment and level playing field for Canadian companies that implement responsible business practices”.

Most Canadian political parties, including all opposition parties in the last Parliament, have committed to create an independent human rights ombudsperson for the extractive sector. Today’s model legislation provides the roadmap to do so swiftly and effectively because when it comes to human rights abuse, unlawful and unethical practices, and destruction of livelihoods and environmental degradation, talk is not enough.

“A Canadian company facing credible allegations of overseas human rights abuses should be subject to investigation by an independent and impartial mechanism,” said Emily Dwyer. “Right now all you can get is the chance to talk to the company, and at least half of complaints don’t even get that far.”

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The Global Leadership in Business and Human Rights Act: Full text of the model legislation

Darren Shore — Wed, 02 Nov 2016 16:07:00 +0000

The Global Leadership in Business and Human Rights Act

Model legislation to create an independent human rights ombudsperson for the international extractive sector

Commissioned by the Canadian Network for Corporate Accountability

Also see CNCA’s Executive Summary of the Global Leadership in Business and Human Rights Act and CNCA’s model Order in Council for an independent human rights ombudsperson.

2 November 2016

1. Interpretation

1.1) Nothing in this Act should be interpreted in any way to deprive any individual, or the Attorney General of Canada, of the duty or the right to bring a legal action or a criminal prosecution in a court in any jurisdiction in Canada against an entity for harms occurring in a foreign state instead of, or in addition to, availing themselves of any rights afforded by this Act.

2. Definitions

2.1) An entity is an “affiliate” of an entity if:

It is a subsidiary of the entity; or
both are subsidiaries of the same entity; or
each of them is controlled by the same person.

2.2) “control” means that an entity, directly or indirectly:

owns 20 or more percent of the voting interests in an affiliate or other entity; or
ordinarily directs or instructs the conduct of the affiliate or other entity; or
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
has the power to cause direction of the management and policies of an entity; or
determines the salary level or bonus structure for executives or employees of an affiliate or other business entity.

2.3) “entity” means a corporation or a trust, partnership, joint venture, or other unincorporated organization:

that is engaged in the commercial development of oil, gas or minerals; or
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

2.4) “foreign state” means any state other than Canada;

2.5) “harm” means: i. infringement(s) of the international instruments listed in Schedule 1.

2.6) “person” includes a legal person.

2.7) “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.

2.8) “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.

2.9) An entity is a “subsidiary” of an entity if:

It is controlled by
1. That entity; or
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
It is a subsidiary of an entity that is a subsidiary of that Entity.

3. Office of the Extractive Industries Human Rights Ombudsperson

Ombudsperson

3.1) Within three months of the coming into force of this Act the Governor in Council shall appoint the Extractive Industries Human Rights Ombudsperson following a vote by a majority of the members of the House of Commons and Senate in favour of the appointment of that person.

3.2) The Ombudsperson is an Officer of Parliament, and is independent from the Government.

3.3) The Ombudsperson holds office during good behaviour for a term of seven years, but may be removed for cause by the Governor in Council.

3.4) The Ombudsperson, on the expiration of a first term of office, is eligible to be re-appointed for one further term not exceeding seven years. For greater clarity, the Ombudsperson is eligible for only one re-appointment.

3.5) The Ombudsperson shall rank as and have all the powers of a deputy head of a department, shall engage exclusively in the duties of the office of Ombudsperson under this Act or any other Act of Parliament and shall not hold any other office under Her Majesty for reward or engage in any other employment for reward.

3.6) The Ombudsperson shall be paid a salary, fixed by Parliament, equal to the salary of a judge of the Federal Court, and is entitled to be paid reasonable travel and living expenses incurred in the performance of duties under this Act or any other Act of Parliament.

3.7) The provisions of the Public Service Superannuation Act, other than those relating to tenure of office, apply to the Ombudsperson, except that a person appointed as Ombudsperson from outside the public service, as defined in the Public Service Superannuation Act, may, by notice in writing given to the President of the Treasury Board not more than sixty days after the date of appointment, elect to participate in the pension plan provided in the Diplomatic Service (Special) Superannuation Act, in which case the provisions of that Act, other than those relating to tenure of office, apply to the Ombudsperson from the date of appointment and the provisions of the Public Service Superannuation Act do not apply.

3.8) The Ombudsperson is deemed to be employed in the public service of Canada for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.

3.9) The Ombudsperson shall have expertise and experience in the investigation and documentation of human rights infringements, and have knowledge of international best practices in gender-sensitive investigation and analysis. In addition, the Ombudsperson shall have expertise in one or more of the following areas: international best-practices in the investigation of sexual violence, extractive industries, human rights and environmental impact assessment and auditing, and indigenous rights.

3.10) No person shall be appointed as Ombudsperson if, within the previous five years he or she has been employed, on the Board of directors, or otherwise closely associated with an entity, or its affiliate, as defined in this Act.

Assistant Ombudsperson

3.11) The Governor in Council may, on the recommendation of the Ombudsperson, appoint one or more Assistant Extractive Industry Human Rights Ombudsperson(s).

3.12) An Assistant Extractive Industry Human Rights Ombudsperson is entitled to be paid a salary to be fixed by the Governor in Council and such travel and living expenses incurred in the performance of duties under this Act or any other Act of Parliament as the Ombudsperson considers reasonable.

3.13) The provisions of the Public Service Superannuation Act, other than those relating to tenure of office, apply to an Assistant Ombudsperson.

3.14) An Assistant Ombudsperson is deemed to be employed in the public service of Canada for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.

Staff

3.15) Such officers and employees as are necessary to enable the Ombudsperson to perform the duties and functions of the Ombudsperson under this Act or any other Act of Parliament shall be appointed in accordance with the Public Service Employment Act.

3.16) The Ombudsperson may engage on a temporary basis the services of persons having technical or specialized knowledge of any matter relating to the work of the Ombudsperson to advise and assist the Ombudsperson, Assistant Ombudsperson, and the officers and employees, in the performance of their duties and functions under this Act or any other Act of Parliament and, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of such persons.

Delegation

3.17) The Ombudsperson may authorize any person to exercise or perform, subject to such restrictions or limitations as the Ombudsperson may specify, any of the powers, duties or functions of the Ombudsperson under this or any other Act of Parliament except,

in any case other than a delegation to an Assistant Ombudsperson, the power to delegate under this section.

3.18) An Assistant Ombudsperson may authorize any person to exercise or perform, subject to such restrictions or limitations as the Assistant Ombudsperson may specify, any of the powers, duties or functions of the Ombudsperson under this or any other Act of Parliament that the Assistant Ombudsperson is authorized by the Ombudsperson to exercise or perform.

3.19) The Ombudsperson is authorized to exercise the powers and perform the functions of the Treasury Board that relate to human resources management within the meaning of section 7(1)(b) and of the Financial Administration Act.

Objects

3.20) With respect to harms suffered by individuals and the natural environment in foreign states, in connection with extractive industries, the objects of the Ombudsperson are to:

Increase accountability and transparency;
Promote gender-sensitivity in the investigation, reporting, and resolution of harm;
Promote remedies, including full reparations, for harm(s);
Promote the avoidance of harm(s);
Promote the meaningful participation of individuals, groups and local communities in decisions that affect them;

3.21) The Ombudsperson shall, whenever possible, share information, and reports with, international corporate social responsibility standards-monitoring bodies, complaint mechanisms, and other institutions that have an interest in, and role in promoting, responsible and sustainable operations by extractive industry entities.

Immunities

3.22) The Ombudsperson or any person acting on behalf or under the direction of the Ombudsperson is not a competent or compellable witness, in respect of any matter coming to the knowledge of the Ombudsperson or that person as a result of performing any duties or functions under this Act during an investigation, in any proceeding other than a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, or a review before the Federal Court under this Act.

3.23) No criminal or civil proceedings lie against the Ombudsperson, or against any person acting on behalf or under the direction of the Ombudsperson, for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function of the Ombudsperson under this Act.

3.24) The Ombudsperson shall administer a fund for the purposes of financing the legal counsel of complainants engaged in mediation under Part 11, or who are parties to a judicial review under Part 14, to be dispersed by the Ombudsperson in his or her discretion.

4. Complaints

4.1) Any person, organization, or group of individuals, resident in Canada or elsewhere, may complain to the Ombudsperson about any harm that may be the subject of an Ombudsperson’s investigation.

4.2) Every complaint to the Ombudsperson shall be made in writing, in French or in English, but

A complainant may seek permission from the Ombudsperson to submit a complaint in a language other than English or French; and
A complainant may seek permission from the Ombudsperson for an exception to the requirement for written complaints.

4.3) A complaint may include:

A description of the incident or series of incidents leading to the complaint;
The specific harm(s) that occurred, is occurring, or is at risk of occurring
The foreign state in which the alleged harm(s) occurred;
The names of any entities involved in the alleged harm(s);
Any dates, names, places, and details that may assist the Ombudsperson in any investigation.

4.4) A complaint may be made at any time.

4.5) The Ombudsperson shall provide publicly accessible information about the complaints system under this Part and shall arrange for the provision of assistance to those who wish to file a complaint.

4.6) On request of a complainant, the Ombudsperson shall take any and all necessary steps to protect the identity of one or more complainants.

4.7) No act or omission of a complainant, or any individual with knowledge of a complaint, undertaken with the intent of taking advantage of the procedures outlined in this Act, or promoting the effective use of those procedures, including but not limited to, making a complaint to the Ombudsperson, publicizing a complaint, or participating in an investigation conducted by the Ombudsperson, may form the basis of any legal action against the complainant.

5. Rules Respecting a Canadian Nexus

5.1) There is a nexus between a subject of an investigation and Canada where:

A subject of the investigation :
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
A subject of the investigation is a subsidiary, or an affiliate, of an entity listed in subsection i; or
A subject of the investigation is receiving, or has received, support, subsidy, promotion, partnership or protection from the Government of Canada or any of its Departments or Agencies.

6. Investigations

6.1) The Ombudsperson shall review every complaint made to him or her, and identify one or more subjects of an investigation; i. The Ombudsperson may, at any time during an investigation, add one or more subjects of an investigation.

6.2) Subject to section 4 of this Part, and the provisions of Part 7, the Ombudsperson shall initiate an investigation in every case in which:

There is, in accordance with the Rules Respecting a Canadian Nexus under Part 5, a nexus between the subjects of an investigation and Canada; and
The complaint alleges any of the following:
1. One or more subjects of the investigation has, by act or omission, caused or contributed to harm(s) in a foreign state; or
2. There is a significant risk that one or more subjects of the investigation will, by act or omission, cause or contribute to harm(s) in a foreign state; or
3. A third party with which one or more subjects of the investigation is in a material contractual relationship has, by act or omission, caused or contributed to harm(s), in connection with the material contractual relationship, in a foreign state;
4. There is a significant risk that a third party with which one or more subjects of the investigation is in a material contractual relationship has, by act or omission, caused or contributed to harm(s), in connection with the material contractual relationship, in a foreign state.

6.3) In addition to the procedures set out in section 2 of this Part for initiating an investigation, the Ombudsperson may initiate an investigation on his or her own motion where the Ombudsperson has reason to suspect that both sections 6.2i and 6.2ii apply.

6.4) Notwithstanding section 2 of this Part, the Ombudsperson may, in his or her discretion, decide not to investigate a complaint if and only if:

the harm(s) alleged in the complaint are trivial or are not serious;
the complaint is frivolous or vexatious or is not made in good faith.
For greater clarity, the Ombudsperson shall not decide not to investigate a complaint only on the basis that any individual, or organization, including but not limited to the complainant, has or continues to publicize the incidents and entities involved in the complaint.

6.5) In any case where the Ombudsperson decides not to investigate a complaint, the Ombudsperson shall inform the complainant in writing of that decision and state the reasons therefor.

6.6) The complainant may request a reconsideration of a decision of the Ombudsperson not to investigate.

6.7) The Ombudsperson may reconsider a decision not to investigate under section 4 of this Part if the Ombudsperson is satisfied that the complainant has established that there are compelling reasons to investigate.

6.8) The Ombudsperson shall give Notice of the investigation to the subjects of an investigation.

6.9) The Ombudsperson shall post a Notice of Investigation on the website of the Ombudsperson.

6.10) Subject to the provisions of Part 10, each of the Notices provided for in sections 8 and 9 of this Part shall include:

The name of the complainant, if applicable and appropriate;
The subject(s) of the complaint; and
The subject matter of the investigation.

6.11) Where the Ombudsperson has reason to suspect that the destruction of evidence may occur, the Ombudsperson may forego the notice requirements under sections 8 and 9 of this Part.

7. Other Proceedings

7.1) Where a proceeding is or has been initiated in a court in any jurisdiction in Canada on a matter substantially similar to the matter of an Ombudsperson investigation, the Ombudsperson may, in his or her discretion, suspend the investigation until the litigation has concluded by settlement or otherwise, or decline to initiate an investigation if the proceeding has been withdrawn, abandoned, settled or decided.

The Ombudsperson shall not suspend or decline to initiate an investigation pursuant to this section, 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;
The Ombudsperson shall not suspend an investigation pursuant to this section, where, for any reason, the litigation does not, or cannot, proceed, or is in fact not proceeding, or is indefinitely suspended.

7.2) Nothing in this Act shall be interpreted in any way to deprive any person of any right to bring a proceeding in a court in any jurisdiction in Canada against any entity for wrongs alleged outside Canada.

7.3) Where a legal proceeding on a matter substantially similar to the matter of an Ombudsperson investigation is initiated outside Canada, the Ombudsperson may suspend the investigation until the litigation has concluded by settlement or otherwise or decline to initiate the investigation if the action has been resolved or a decision has been issued, if, and only if, in the opinion of the Ombudsperson:

There is no unjustified delay in the proceedings outside Canada which, in the circumstances, is inconsistent with an intent to seek a just resolution of the action; and
The proceedings outside Canada are conducted independently and impartially, and they were or are being conducted in a manner which, in the circumstances, is consistent with an intent to seek a just resolution of the action; and
The proceedings outside Canada determined the liability of all the subjects of the investigation, and not only the liability of one subject, or a third party.

7.4) For greater clarity, a proceeding instituted by, or on behalf of, or paid for by, the subject of an investigation, or an entity, its affiliate, a subsidiary or a third party with which the entity or its affiliate or subsidiary is in a material contractual relationship is not an action in a court in any jurisdiction in Canada, or a legal proceeding outside Canada, for the purposes of this Act.

8. Investigatory Powers of Ombudsperson

8.1) In conducting an investigation, the Ombudsperson shall take appropriate measures to ensure effective investigations, and in doing so, shall respect the interests and personal circumstances of complainants, harmed individuals, and witnesses, including age, gender, and health, and take into account the nature of any harm alleged, in particular where it involves sexual violence, gender violence or violence against children.

The Ombudsperson shall establish and make available procedural rules for:
1. the investigation of sexual violence, reflecting international best practice including the Rules of Procedures and Evidence of the International Criminal Court, which prohibit questioning about prior or subsequent sexual conduct, and the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict;
2. investigations involving children;
3. the protection of the safety, physical and psychological wellbeing, dignity and privacy of harmed individuals and witnesses.
Before issuing procedural rules under this section, the Ombudsperson shall post a Notice of draft procedural rules on the website of the Ombudsperson, and invite comment on the draft before they are finalized and issued.

8.2) In the course of an investigation under this Act, the complainant, and the subjects of an investigation shall be given an opportunity to make representations to the Ombudsperson, and may be represented by a representative of their choice in making representations, but no one is entitled as of right to be present during representations made to the Ombudsperson by any other person.

8.3) In the course of an investigation under this Act, the Ombudsperson may rely on extrinsic reports or other information.

8.4) Within 30 days of the issuance of the Notice of Investigation under Part 6, the Ombudsperson shall make a formal request to any complainant; to the subject(s) of an investigation; to the individuals who suffered or may suffer the alleged harm; and any other interested parties, for any and all information, document or physical evidence relating to the subject matter of the investigation.

The request shall be made in writing, and published on the website of the Ombudsperson.

8.5) Within 60 days of receiving the request described in section 4 of this Part, every recipient of a request shall respond to the letter in writing.

Such response shall:
1. List the documents and the physical evidence provided in response to the request;
2. Identify any document, part of a document, or physical evidence which has been provided, over which there is a claim of confidentiality or privilege under Part 10;
3. List the persons to whom the Ombudsperson should speak to obtain further information about the investigation, including persons outside of Canada;
4. Identify any exclusions from the request and the rationale for their exclusion;
5. List the Codes of Conduct, if any, to which the recipient of the letter is a party, and any relevant Corporate Codes of Conduct.
Any document or physical evidence provided to the Ombudsperson shall be included with the response, or otherwise promptly forwarded to the office of the Ombudsperson;
Recipients of a request may provide detailed information relating to the investigation in the form of a written statement.

8.6) Where the Ombudsperson has reason to suspect that the destruction of evidence relevant to the investigation may occur, the Ombudsperson may forego the formal requests under section 4 of this Part.

8.7) The Ombudsperson may disclose to the Attorney General of Canada information relating to the commission of an offence against a law of Canada if, in the Ombudsperson’s opinion, there is evidence of such offence.

8.8) The Ombudsperson may disclose to a foreign official, information he or she has obtained through an investigation if he or she has reason to believe the information relates to the commission of an offence under the law of the relevant foreign jurisdiction.

Search Warrant

8.9) Where a justice is satisfied by an information on oath submitted by the Ombudsperson to the justice by telephone, or in writing, that there are reasonable grounds to believe that there is in a building, receptacle or place, anything that there are reasonable grounds to believe will assist the Ombudsperson in his or her investigation of harm(s) He or she may, at any time issue a warrant authorizing the Ombudsperson to search the building, receptacle or place for any such thing and to seize it, and

subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division;
If the building, receptacle or place is in another territorial division, the justice may issue the warrant with any modifications that the circumstances require, and it may be executed in the other territorial division, after it has been endorsed by a justice who has jurisdiction in that territorial division. The endorsement may be made on the original of the warrant or on a copy of the warrant transmitted by any means of telecommunication;
Where the Ombudsperson is authorized under this section to search a computer system in a building or place for data, he or she may:
(a) use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system;
(b) reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output;
(c) seize the print-out or other output for examination or copying; and
(d) use or cause to be used any copying equipment at the place to make copies of the data.
Every person who is in possession or control of any building or place in respect of which a search is carried out under this section shall, on presentation of the warrant, permit the person carrying out the search:
(a) to use or cause to be used any computer system at the building or place in order to search any data contained in or available to the computer system for data that the person is authorized by this section to search for;
(b) to obtain a hard copy of the data and to seize it; and
(c) to use or cause to be used any copying equipment at the place to make copies of the data.

Production Order

8.10) On ex parte application made by the Ombudsperson or public officer, a justice may order a person to produce a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document containing information that is in their possession or control at that time.

Before making the order, the justice must be satisfied by information on oath that there are reasonable grounds to believe that
(a) harm(s), as defined in this Act, has or have been or may be committed; and
(b) the document or data is in the person’s possession or control and will afford evidence respecting the harm(s) under investigation.

Investigative Interview

8.11) The Ombudsperson may, for the purposes of furthering an investigation, apply ex parte to a judge for an order for the gathering of information.

8.12) The judge to whom the application is made may make an order for the gathering of information if they are satisfied that:

there are reasonable grounds to believe that harm(s), as defined in this Act, has or have been or may be committed;
information concerning the harm(s) is or are likely to be obtained as a result of the order; and
reasonable attempts have been made to obtain the information by other means.

8.13) An order made under section 11 of this Part shall order the examination, on oath or not, of the person named in the order and require the person to attend at the place fixed by the judge, or the judge named in subsection (ii) for the examination and to remain in attendance until excused by the presiding judge, and may:

order the person to bring to the examination any thing in their possession or control, and produce it to the presiding judge;
designate another judge as the judge before whom the examination is to take place; and
include any other terms or conditions that the judge considers desirable, including terms or conditions for the protection of the interests of the person named in the order and of third parties or for the protection of any ongoing investigation.

8.14) No answer given or thing produced in a proceeding under section 11 of this Part shall be used or received in any criminal proceedings against that person, save prosecution for perjury.

8.15) Evidence derived from the evidence provided at a hearing under section 11 of this Part may not be presented in evidence against the witness in another prosecution even if the Crown is able to establish, on a balance of probabilities, that it would have inevitably discovered the same evidence through alternative means.

9. Information-gathering in foreign jurisdictions

9.1) Where the law of a foreign state does not prohibit it, the Ombudsperson may gather information in furtherance of his or her investigation, in a foreign state.

9.2) Where an investigation requires the Ombudsperson 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.

9.3) In gathering information in foreign jurisdictions, the Ombudsperson shall endeavour to enter into mutual assistance agreements, letters rogatory, or other like legal agreement, with local authorities.

9.4) For greater clarity, the Ombudsperson shall not participate in law enforcement activities in any foreign jurisdiction.

10. Confidentiality claims

10.1) If the Ombudsperson is satisfied, on a balance of probabilities, that any information or evidence, or the source of any information or evidence, received or obtained in the course of his or her investigation is:

personal information as defined in the Privacy Act or in any provincial or territorial privacy act; or
commercially sensitive; or
litigation or solicitor-client privileged;
The Ombudsperson shall undertake to protect the confidentiality of the evidence or information, or the source of the information or evidence.

10.2) If the Ombudsperson has reason to suspect that the publication of any evidence, information, the name of a complainant, or the source of any evidence or information, might endanger the safety of an individual or group of individuals, the Ombudsperson shall undertake to protect the confidentiality of the evidence or information, part thereof, or the source of the information or evidence.

10.3) If the Ombudsperson has reason to suspect that the publication of any evidence, information, or the source of any evidence or information may interfere in, or be put to a use that would constitute an abuse of the Ombudsperson process, in a separate legal proceeding, the Ombudsperson shall undertake to protect the confidentiality of the evidence or information, part thereof, or the source of the information or evidence.

10.4) For greater clarity, where the Ombudsperson has undertaken to protect the confidentiality of any evidence, or information, or part thereof, or the source of any information or evidence, then the information, evidence or source of information or evidence shall not be compellable to be produced in any criminal or civil proceeding in Canada or elsewhere.

10.5) Any recipient of a request for evidence or information from the Ombudsperson may request that all or part of the evidence or information he or she is providing to the Ombudsperson be kept confidential, or that the source of the evidence or information be kept confidential.

The Ombudsperson shall respond to any request made under this section in writing.

10.6) The Ombudsperson may decline to undertake to protect the confidentiality of evidence or information if the Ombudsperson is of the opinion that the public interest in disclosure outweighs the claim to confidentiality.

Any person who is affected by a refusal by the Ombudsperson under this section may apply to Federal Court for a ruling.

11. Mediation - Settlement

11.1) Subject to section 2 of this Part, the Ombudsperson may attempt to resolve issues under investigation by means of dispute resolution mechanisms such as mediation and conciliation.

The Ombudsperson may delegate the powers listed under this Part to a mediator.

11.2) The powers in section 1 of this Part may be exercised if and only if:

The complainant and one or more subject(s) of the investigation give their informed consent to mediation or conciliation; and
The matter under investigation is, in the opinion of the Ombudsperson, appropriate for mediation; and
The complainant involved in the mediation is a directly affected party, and in the opinion of the Ombudsperson, is well-suited to represent the individuals affected by the harm under investigation; and
The investigation of the complaint has been carried out to such an extent that, in the opinion of the Ombudsperson, the relevant facts are before the parties; and
No more than 90 days have elapsed since the complainant and the entities consented to mediation or conciliation;
1. On consent of the complainant and the subjects to an investigation, the Ombudsperson may agree to extend the mediation or conciliation period for a further 30 days, as many times as the parties consent.

11.3) A complainant or subject of an investigation may make a request to the Ombudsperson for meditation or conciliation at any time.

11.4) Any party to a mediation or conciliation may be represented by a representative or representatives of their choice.

11.5) The Ombudsperson may enter into legal arrangements to pay for the reasonable legal expenses of a complainant or group of complainants participating in mediation or conciliation under this Part.

11.6) Where a settlement of a complaint is agreed to, made in writing, signed by the parties to the settlement, and approved by the Ombudsperson, the settlement is binding upon the parties to the settlement, and the party alleging breach may apply to the Federal Court for enforcement.

11.7) In exercising his or her discretion to approve any settlement in this section, the Ombudsperson shall have regard to:

The Ombudsperson’s mandate to promote gender-sensitivity;
The Ombudsperson’s mandate to promote full reparation for harm(s);
The Ombudsperson’s mandate to promote the avoidance of harm(s);
The Ombudsperson’s mandate to promote meaningful participation by individuals, groups and communities in decisions affecting them; and
The capacity of the parties to the settlement to express their informed consent to the terms of the settlement.

11.8) The parties to a settlement may, as an alternative to the Ombudsperson report under Part 13, and with the approval of the Ombudsperson, agree to a written summary of the complaint, the investigation and the settlement.

Any such summary shall be posted promptly on the website of the Ombudsperson;
In exercising his or her discretion to approve any written summary in this section, the Ombudsperson shall have regard to the Ombudsperson’s public interest mandate to improve transparency and accountability for entities and their affiliates.

12. Discontinuance of Investigation

12.1) The Ombudsperson may discontinue an investigation if the Ombudsperson is of the opinion that

The parties have entered into a settlement in accordance with the requirements in Part 11 of this Act and the Ombudsperson is of the view that no compelling reason remains to continue the investigation; or
The Ombudsperson has completed the investigation and complied with the procedures under Part 13 of this Act; or
The Ombudsperson has completed the investigation, and is of the opinion that the provisions of Part 13 section 1 do not apply, and that no compelling reason remains to continue the investigation.

12.2) Where the Ombudsperson discontinues an investigation pursuant to section 1 of this Part, the Ombudsperson shall:

Notify the complainant, if any, of the discontinuance and the reason therefor;
Notify the subjects of the investigation of the discontinuance and the reason therefor;
Publish a summary of the investigation on the website of the Ombudsperson, unless a report has been prepared pursuant to Part 13 or Part 11 of this Act in which case that summary shall be published on the website of the Ombudsperson.

13. Procedure after Investigation

13.1) In every case where, after making an investigation under this Act, the Ombudsperson is of the opinion that:

A subject of the investigation has, by act or omission, caused or contributed to harm, in a foreign state; or
There is a significant risk that a subject of the investigation will, by act or omission, cause or contribute to harm, in a foreign state, and the entity or its affiliate has not exercised reasonable due diligence to mitigate the risk;
A third party with which a subject of the investigation is in a material contractual relationship has, by act or omission, caused or contributed to harm, in connection with the material contractual relationship, in a foreign state, and a subject of the investigation, knew or ought to have known at any time that the third party would or did cause harm; or
There is a significant risk that a third party with which a subject of the investigation is in a material contractual relationship will, by act or omission, cause or contribute to harm, in connection with the material contractual relationship, in a foreign state, and a subject of the investigation, or the third party has not exercised reasonable due diligence to mitigate the risk; The Ombudsperson shall issue a public report with his or her opinion, and the reasons therefor, and may make such recommendations as he or she thinks fit.

13.2) In forming and reporting on his or her opinion regarding an alleged infringement of human rights, the Ombudsperson shall have reference to the practice of competent international bodies, and to:

the Rio Declaration on Environment and Development;
the UN Guiding Principles on Business and Human Rights;
the Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox: “Mapping report” (Human Rights Council).

13.3) In forming and reporting on his or her opinion under this Part, the Ombudsperson may also consider international norms including but not limited to:

OECD Guidelines on Multinational Enterprises;
OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas;
OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector;
IFC Performance Standards on Environmental and Social Sustainability; Guidance Notes to those standards; the World Bank Group’s Environmental, Health and Safety General Guidelines;
Voluntary Principles on Security and Human Rights;
Sustainability reporting guidelines of the Global Reporting Initiative; and
Any international Codes of Conduct, or Corporate Codes of Conduct, which the entity or affiliate has signed on to or adopted.

13.4) In his or her report under this Part, the Ombudsperson may make any recommendation of any kind, to any person, or any agency and body of the Government of Canada, including but not limited to:

recommendations to a subject of the investigation, or a third party, regarding remedy and reparations for the harm(s) done;
recommendations to a subject of the investigation, or a third party, regarding steps to be taken in the case under investigation to prevent further harm(s);
recommendations to a subject of the investigation, or a third party, regarding steps to be taken in all its operations to avoid harm(s);
recommendations to the complainant, a subject of the investigation, or a third party, regarding steps they might consider to resolve any conflict arising from the project;
recommendations to the Government of Canada or any governmental department or agency, regarding any acts or omissions in the case under investigation, or any practice, law or policy on which the act or omission was based, or the need for any practice;
recommendations for further investigation by a separate authority or body, as appropriate;
recommendations to a subject of the investigation regarding consultations in the project at issue, and policies and practices to meaningfully consult on this and other projects in the future.

13.5) The Ombudsperson shall specify a timeframe for the implementation of every recommendation made under this Part.

13.6) Any person, or any agency and department of the Government of Canada, who is the subject of a recommendation under this Part shall notify the Ombudsperson, within the timeframe given, in writing, of the steps taken to give effect to each recommendation under this Part.

After receiving the notice under this section, the Ombudsperson shall solicit the perspective of any complainant and other affected individuals on the steps taken to give effect to each recommendation under this Part.

13.7) The Ombudsperson shall issue a follow-up report, summarizing his or her opinion on the progress made in implementing the recommendations of his or her report under this Part, within 6 months of the latest deadline for a recommendation in its report under this Part.

13.8) Any report or follow-up report of the Ombudsperson under this Part shall be delivered to any and every person named in any report or recommendation under this Part, to any person named in a complaint, to any complainant, and to any person named in a Notice of Investigation under Part 6.

13.9) Any report or follow-up report of the Ombudsperson under this Part shall be delivered to the international corporate social responsibility standards monitoring bodies, complaint mechanisms, and other institutions that have an interest in, and role in promoting, responsible and sustainable operations by extractive industry entities, as prescribed in regulation.

13.10) Any report or follow-up report of the Ombudsperson under this Part shall be published on the website of the Ombudsperson, and in the Canada Gazette, within 18 months of the issuance of the Notice of Investigation under Part 6.

The Ombudsperson may, in his or her discretion, extend the timeframe for the publication of the report when the investigation requires it;
When the Ombudsperson exercises his or her discretion to extend the timeframe for the publication of the report, a notice of extension and reasons for extension shall be posted on the website of the Ombudsperson.

13.11) The Ombudsperson shall cause any report or follow-up report under this Part to be laid before both Houses of Parliament.

A committee of the House of Commons as may be designated or established by the House of Commons for that purpose shall review the report and submit a report on the review to the House of Commons within 60 days.

13.12) No adverse finding shall be made against any person until reasonable notice of the proposed finding has been given, and the person has been allowed the full opportunity to respond in writing. The Ombudsperson may, on request, grant an in person hearing.

14. Public Support for Entities in Foreign Jurisdictions

14.1) This Part applies in every case where, after making an investigation under this Act the Ombudsperson is of the opinion that:

i. A subject of an investigation has, by act or omission, caused or contributed to harm(s), in a foreign state; or
there is a significant risk that a subject of an investigation will, by act or omission, cause or contribute to harm(s), in a foreign state, and the subject of the investigation has not exercised reasonable due diligence to mitigate the risk;
a third party with which a subject of the investigation is in a material contractual relationship has, by act or omission, caused or contributed to harm(s), in connection with the material contractual relationship in a foreign state, and the subject of an investigation, knew or ought to have known at any time that the third party would or did cause harm; or
there is a significant risk that a third party with which a subject of an investigation is in a material contractual relationship will, by act or omission, cause or contribute to harm(s), in connection with the material contractual relationship, in a foreign state, and the subject of the investigation, or the third party has not exercised reasonable due diligence to mitigate the risk.

14.2) If, in any case to which this Part applies, the Ombudsperson is

i. not satisfied that the subject of the investigation did or is undertaking all reasonable steps to comply with the terms of a settlement under Part 11, or any recommendations made under Part 13, whichever applies; or
of the opinion that the harm(s) done were of such a serious nature that it would be inappropriate for the Government of Canada to provide a support or subsidy, or promote or protect the subject of the investigation

the Ombudsperson may recommend to any and all government agencies or departments, that they withdraw any existing support or subsidy, and terminate any promotion or protection of the subject of the investigation or the project in which the harm(s) occurred for a stipulated period, or until specified conditions are met. The Ombudsperson may recommend that the subject of the investigation or the project in which the harm(s) occurred be ineligible for future support, subsidy, promotion or protection for a stipulated period or until specified conditions are met.

14.3) The Ombudsperson may make a recommendation under this section at any time after, or at the same time as, the issuance of a report under Part 13;

The Ombudsperson shall, in making a recommendation under this Part, stipulate a timeframe within which the recommendation is to be implemented by the government agency or department;
A recommendation under this Part shall be made in a written report, and the Ombudsperson shall cause the report to be laid before both Houses of Parliament, posted on the website of the Ombudsperson, and published in the Canada Gazette;
A committee of the House of Commons as may be designated or established by the House of Commons for that purpose shall review the report and submit a report on the review to the House of Commons within 60 days.

14.4) If in the opinion of the Ombudsperson, a government agency or department to which he or she has issued a recommendation under this Part has failed to implement that recommendation within the stipulated timeframe, the Ombudsperson may serve the body with a Notice of Non-Compliance requiring it to provide within 30 days reasons consistent with the objects of the Ombudsperson Office for its failure to implement the recommendation, or to establish that it has complied with the notice.

14.5) On receipt of a government agency or department’s response to a Notice of Non-Compliance under section 4 of this Part, or 30 days after the Notice of Non-Compliance, whichever comes first, the Ombudsperson may apply to Federal Court for judicial review of the reasonableness of the government agency or department’s response.

Where the Ombudsperson makes an application under this section for a judicial review of a failure to implement a recommendation, any complainant may appear as a party to the review.
1. The Ombudsperson may enter into legal arrangements to pay for the reasonable legal expenses of a complainant or group of complainants acting as a Party under this Part.
The head of a government agency or department who has failed to implement a recommendation under this Part shall forthwith on being given notice of any application made under this section give written notice of the application to any third party that may be affected by the review;
Any third party that has been given notice of an application for a review under this section may appear as a party to the review;
An application made under this section shall be heard and determined in a summary way in accordance with any special rules made in respect of such applications pursuant to section 46 of the Federal Courts Act.

15. Conflict of Interest

15.1) No Ombudsperson, or Assistant Ombudsperson shall beneficially own, directly or indirectly, any shares of any entity, holding company, insurance holding company, or of any other body corporate, however created, which could be the subject of a complaint to the Ombudsperson, unless those shares are held in a blind trust.

15.2) The Ombudsperson, or Assistant Ombudsperson shall not accept or receive, directly or indirectly, any grant or gratuity from an entity, holding company, insurance holding company, or from a director, officer or employee of any of them, and no such extractive industry company, holding company, insurance holding company, external complaints body, director, officer or employee shall make or give any such grant or gratuity.

16. Review Clause

16.1) At the start of the fifth year after the day on which this Act receives royal assent, the provisions enacted by this Act shall be referred to the Committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for the purpose of reviewing the provisions.

16.2) The Committee to which the provisions are referred is to review them and submit a report to the House or Houses of Parliament of which it is a Committee, including a statement setting out any changes to the provisions that the Committee recommends.

Schedule 1

i. the nine core human rights treaties:

the International Covenant on Civil and Political Rights (ICCPR);
the International Covenant on Economic, Social and Cultural Rights (ICESCR);
the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD);
the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT);
Convention on the Rights of the Child (CRC);
Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW);
Convention on the Rights of Persons With Disabilities (CRPD);
the International Convention for the Protection of All Persons from Enforced Disappearance (CED);

ii. the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP);

iii. International Labour Organization Convention 169, the Indigenous and Tribal Peoples Convention;

iv. The 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;

v. the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions;

vi. the Geneva Conventions;

vii. the 8 core international Labour Organization Conventions:

the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) ;
the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) ;
the Forced Labour Convention, 1930 (No. 29) ;
the Abolition of Forced Labour Convention, 1957 (No. 105) ;
the Minimum Age Convention, 1973 (No. 138) ;
the Worst Forms of Child Labour Convention, 1999 (No. 182) ;
the Equal Remuneration Convention, 1951 (No. 100) ;
the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

Consequential Amendments:

To a range of Acts dealing with various forms of support, subsidy, promotion, protection of entities, including Export Development Canada, Foreign Affairs Act, etc.

Amendment to the Access to Information Act, creating a mandatory exemption for information covered by the confidentiality provisions in Part 10.

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