Shin Imai, Professor, Osgoode Hall Law School, Toronto
Charis Kamphuis, Professor, Thompson Rivers Law School, Kamloops
On January 16, 2018, the Government of Canada announced that it will create a new Canadian Ombudsperson for Responsible Enterprise (CORE). The office will investigate complaints about the activities of Canadian companies abroad, and make recommendations to both government and the companies themselves. This is a spectacular breakthrough on several grounds, but there are some missing details that will determine the extent to which the office can address the outstanding problems identified by groups from Latin America and Canada who have made submissions on this issue to the Inter-American Commission on Human Rights.
The most important conceptual breakthrough is that this proposal finally acknowledges that voluntary policies on their own are ineffective. It also lays to rest objections related to the extra territorial application of Canadian standards. This is a world first. Under the former Conservative government, Canada took the position that if the standards and mechanisms of the countries that host Canadian companies were not sufficient, Canada would engage with companies only if they were willing to consent to mediated dialogue. Needless to say, such a policy was unable to address the substantive concerns of affected communities and individuals, often because the company would not even bother to participate.
The new Ombudsperson will have the power to investigate complaints against Canadian companies operating in the mining, oil and gas, and garment sectors. This will include the power to compel witnesses to testify and to order the production of documents. The Minister of International Trade says that there will be a budget “sufficient to allow him/her to conduct complex collaborative and independent investigations.” These are significant powers that parallel the already-existing extra-territorial authority vested in the Canadian police force to investigate bribery and corruption allegations.
To help analyze the effectiveness of this new office, we will look at three problems that need to be addressed in relation to the human rights abuses associated with Canadian mining companies. The first issue is that in some countries, governments are not effective in ensuring that community and environmental concerns meet international standards. This means that communities are left with little access to processes for addressing concerns about the general conduct of companies, such as the lack of community consent. The second problem is that victims of harm have inadequate access to legal remedy, because the domestic law did not provide a remedy and/or because extraterritorial remedies are inadequate or not accessible. And third, the Canadian government itself has exacerbated the problem through lobbying domestic governments, or providing funding to the companies through the Export Development Corporation (EDC).
The first problem has been raised before the Inter-American Commission in the form of evidence of non-existent or inadequate standards in some Latin American countries. For example, let us say that a government in Latin America gives a Canadian company a concession and licence to operate a mine but communities object or feel that they are not sufficiently benefiting from the project. Will the CORE address this problem? The answer is yes and no. Yes, the CORE could make a difference because the Canadian company will be investigated if it fails to adhere to certain international standards which require community engagement and Indigenous consent. Therefore, even if a government in Latin America gives a concession, the Canadian company will be investigated if it fails to meet higher international standards. However, CORE will not have authority to intervene in the laws of the Latin American country. For example, the Ombudsperson could not withdraw a concession or a license issued to the company by the government in Latin America
The second problem arises when individuals, or entire communities, are harmed, and seek compensation or some other relief for harm. For example, the head of security of a Canadian mining company shoots unarmed protesters. At present, these people could try to bring a court case against the company’s subsidiary in Latin America, or in very rare cases, could bring a court case in Canada against the Canadian head office. But the judicial system in Latin America may not provide a good remedy, especially considering the high degree of impunity in some countries, and often the people harmed cannot afford to pay a Canadian lawyer or cannot find a lawyer in Canada who will take on the case for no charge. In that case, the Ombudsperson could investigate and make a recommendation that the company pay compensation to the victims. The problem here is the word “recommendation”. The Ombudsperson can suggest but cannot order that the company pay the victims. This is an obvious weakness, although it is mitigated somewhat by the fact the Ombudsperson can make his or her findings public, which may increase pressure on the company to follow the recommendations. If the company is receiving political or financial support from the government and this support is withdrawn on the basis of the Ombudsperson’s findings, this could also increase pressure on the company.
The third issue raised in hearings before the Inter-American Commission is that the Canadian government actively provides support to Canadian companies in their overseas operations, irrespective of their human rights record. Under the CORE, the Ombudsperson will have power to recommend the withdrawal of embassy support, or financial loans from the EDC. Again, the operative word is “recommend”. The Ombudsperson cannot order the embassies or the EDC to do anything. In this respect, there is little change from the status quo as the power to recommend already exists, and to our knowledge there has not been a single case where embassy support or funding from EDC has actually been withdrawn. The CORE’s approach to political and financial support is also retroactive. It is directed at withdrawing support from companies after the Ombudsperson has found misconduct. It does not address the due diligence that state agencies should undertake prior to offering companies support.
For those at the community level in Latin America there are three additional issues to watch for.
First, will communities be provided with funds for representation by lawyers, for interpreters and for travel? The mining companies will have the benefit of all three, and it seems only fair that communities have funds that help address the power imbalance between the companies and the communities. This will be especially true if the Ombudsperson suggests mediation or negotiation, as communities could easily be overpowered.
Second, will there be investigations on the ground in the actual communities where conflicts occur? This type of investigation is crucial for finding out the truth. Merely getting testimonies in Canada will favour the Canadian companies. The fact that the budget will allow for “complex collaborative and independent investigations” is a good sign that the CORE may be able investigate at the sites of conflicts.
Third, how will communities actually inform the Ombudsperson that they have a problem? The CORE will have a website for receiving submissions as well as an option for submissions by mail. In order to increase accessibility, information should be available in Spanish and Portuguese given that Latin America is the largest destination for Canadian investment in resource extraction. It appears that the Ombudsperson will be able to initiate an investigation without waiting for a complaint, which will provide a good option where community members do not make a complaint because they do not know about the existence of the CORE.
Overall, those pushing for greater accountability for Canadian mining companies should be very pleased. Years of efforts are seeing results. In the Inter-American system, the ground breaking 2013 report from the Latin American Working Group on Mining and Human Rights opened the way for submissions from the Canadian Network on Corporate Accountability (CNCA) in 2014, from the Counsel of Latin American Catholic Bishops and the Human Rights Research and Education Centre in 2015, and from the CNCA again in 2017. Together with a strong letter in 2016 to Canadian Prime Minister Trudeau signed by 200 organizations from around the world, these efforts have produced results. However, it is important to address areas that need strengthening, including making recommendations for remedies binding. As Commissioner James Cavallaro told the Canadian delegation in a hearing before the Inter-American Commission on Human Rights, “the key is to move beyond making recommendations to having those recommendations mandatory and have some consequence.”
Shin Imai and Charis Kamphuis are co-founders of the Justice and Corporate Accountability Project (justice-project.org)