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26 Jan 2018

Mora Johnson

Commentary: The promise and limitations of the new Canadian Business and Human Rights Ombudsperson

... A key unanswered question in the Government’s announcement is how an Ombudsperson can be created without statutory powers, duties and safeguards... It is anticipated that a properly constituted Ombudsperson for Responsible Enterprise would offer a real public service in resolving human rights claims.  Three promising benefits [include that]... an Ombudsperson will be able to help parties expeditiously resolve claims... [and] can help bring fairness and credibility to a mutually-agreed-upon settlement... Second, when companies are accused of harms they have not committed or subject to exaggerated claims, it can be very difficult for them to effectively put the allegations to rest.  After an adequate fact-finding process, the Ombudsperson could issue a credible finding that a claim is unfounded... Third, the Ombudsperson can review and address systemic issues.  Where a number of situations are identified with similar or identical concerns, the Ombudsperson can review and issue broader recommendations with the aim of improving the performance of all Canadian companies.  

... Certain types of claims may be too multilayered and complex for an Ombudsperson process located in a different jurisdiction.  In the extractive sector context, there are cases where the denial of human rights goes back generations and the primary abusers are home state governments. There are examples of Indigenous groups, without formal recognition of land rights by their own governments, which have been slowly dispossessed of their ancestral property and other resources since colonial times. If the mining company is merely a recent player in a long drama of marginalization, a much broader process involving host states and local governments will be required to find resolution.