Canada creates independent Ombudsperson & multi-stakeholder advisory body to strengthen responsible business conduct abroad

In January 2018, Canada's Minister of International Trade announced two new responsible business initiatives for Canadian companies doing business and operating abroad. The first is the creation of an independent Canadian Ombudsperson for Responsible Enterprise (CORE) and the second is a multi-stakeholder Advisory Body to advise the Government and the CORE on responsible business conduct abroad.

On 8 April 2019, Canada's Minister of International Trade Diversification announced the appointment of Sheri Meyerhoffer as the Ombudsperson. The Ombudsperson is mandated to review allegations of human rights abuses arising from the operations of Canadian companies abroad, initially focusing on the mining, oil and gas, and garment sectors and then expanding to other sectors during the first year. Recommendations made by the Ombudsperson will be reported publicly and companies that do not cooperate could face trade measures, including the withdrawal of trade advocacy services and future Export Development Canada support. 

Numerous Canadian human rights groups have expressed serious concern that the new Ombudsperson does not have the powers she needs to hold companies accountable, including sufficient independence from the government and the power to compel companies to co-operate with her investigations and recommendations. They are calling on the Canadian government to implement its original commitment to create an independent ombudsperson with investigatory capacity.

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15 July 2019

Civil society members of Canadian govt. advisory body on responsible business conduct resign due to delay in granting Ombudsperson investigatory powers

Author: Canadian Network on Corporate Accountability

"Government of Canada turns back on communities harmed by Canadian mining overseas, loses trust of Canadian civil society," 11 July 2019

Today all fourteen civil society and labour union representatives of the government’s Multi-Stakeholder Advisory Body on Responsible Business Conduct Abroad (Advisory Body) tendered their resignations. The unanimous decision to resign is due the erosion of civil society and labour unions’ trust and confidence in the government’s commitment to international corporate accountability. 

In January 2018, the government publicly announced the creation of a Canadian Ombudsperson for Responsible Enterprise (CORE) and committed to entrusting the office with the necessary tools to conduct credible independent investigations, including the power to compel documents and summon witnesses... The government’s decision to backtrack on its promise in April 2019, and instead appoint a special advisor to the Minister of International Trade Diversification without needed investigatory powers, has amounted to a betrayal of civil society and labour unions’ trust, erosion of our confidence and concerns that the government has not acted in good faith during consultations... Organizations have continued to wait for further developments over the past three months, since the April 8, 2019 announcement of an independent legal review on the CORE’s investigatory powers. Minister Carr indicated on that day that the review would be completed within 4 to 5 weeks... Three months later, the study has not been made public, the CORE remains without meaningful powers to serve impacted communities and workers... Civil society and labour members of the Advisory Body note that the only way that the government can restore trust is by replacing the CORE’s mandate by an order pursuant to the Inquiries Act, as a bridge towards legislation in the next government. 

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15 July 2019

Fourteen civil society groups & labour unions quit advisory panel to protest government inaction on corporate accountability

Author: Development and Peace - Caritas Canada

"Development and Peace quits important advisory panel to protest government inaction on corporate accountability," 15 July 2019

On July 11, 2019, Development and Peace — Caritas Canada, along with 13 civil society and labour union partners, resigned from the Multi-stakeholder Advisory Body on Responsible Business Conduct. The body was created in January 2018 to advise the federal government on “laws, policies and practices addressing business and human rights and responsible business conduct for Canadian companies operating abroad” and on “the mandate of the Canadian Ombudsperson for Responsible Enterprise.”... Hopes of helping create an influential public watchdog were dashed in April 2019, when the government appointed... a largely toothless special advisor to the Minister of International Trade Diversification with few investigatory powers...This retreat was another of the years-long delays in the creation of the ombudsperson.

Advocacy and Research Program Officer, Elana Wright, who represented Development and Peace on the advisory body, said, “The government created high expectations for communities around the world that are affected by Canadian mining companies. But they have let us down by defanging the ombudsperson’s office ...even with this setback, there is a way for the government to restore its credibility and signal that it is serious about holding Canadian corporations to account. It can grant investigatory powers to the ombudsperson via the Inquiries Act, as a bridge towards legislation by the next government."

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11 July 2019

Advisors quit corporate accountability panel due to lack of investigatory powers of Ombudsperson

Author: Alastair Sharp, National Observer

"Advisors quit, accusing Trudeau government of dithering on corporate watchdog," 11 July 2019

All the civil society and labour union representatives on a panel appointed by the Trudeau government to provide advice about corporate accountability have resigned, leaving only industry representatives and the government at the table with a lone academic... The seven members and their alternatives, representing labour unions and other civil society groups, publicly quit their advisory roles on Thursday, complaining that the government had failed to fulfill a promise to create an independent watchdog to investigate allegations of overseas human rights abuses against Canadian companies... The office of Jim Carr, the minister for international trade diversification and chair of the panel... [said] “While consensus on these issues remains elusive, dialogue between civil society and industry is critical to progress and walking away from that dialogue is a step backwards and regrettable."

John Ruggie, a human rights and international affairs professor at the Harvard Kennedy School, who was honorary chair of the body, told National Observer that “betrayed” might be too strong a word for what had occurred... [He said that] the mandate of the CORE ombudsperson, a role Sheri Meyerhoffer was named to fill in April and which should become operational in the coming months, is an improvement on the Office of the Extractive Sector Corporate Social Responsibility (CSR) Counsellor, since appointments are for a five-year period “with a reasonable budget” that includes staff.He said the initial idea that the ombudsperson would have the authority to investigate under the Inquiries Act would have been a major step forward, but “somehow didn’t work out, for reasons that government lawyers will have to explain.”

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7 May 2019

Commentary: Canada still needs an Ombudsperson to investigate mining cases - not an advisor or another CSR Counsellor

Author: Catherine Coumans, MiningWatch Canada

"Canada Still Needs an Ombudsperson to Investigate Mining Cases – Not an Advisor to the Minister of International Trade or another CSR Counsellor," 4 May 2019

The Government of Canada has fundamentally broken its electoral promise of 2015 and its commitment of January 17, 2018 to create an Ombudsperson with: independence from both government and industry; strong investigatory powers to compel documents and witnesses, when necessary, in the course of investigating complaints brought against Canadian mining companies for human rights abuses perpetrated overseas; and the ability to make determinations of fact about whether a Canadian company had caused or contributed to human rights harm. Fifteen months after the commitment to create a strong ombudsperson was made in 2018, the government has created an advisory position to the Minister with a deeply flawed and inadequate mandate. 

As the Government of Canada has not managed to ensure an Ombudsperson with the powers to compel documents and witnesses in the 15 months since announcing the creation of an Ombudsperson MiningWatch is highly sceptical of the government’s commitment to keep this promise... On April 29, 2019, Chair of the UN Working Group on Business and Human Rights, Surya Deva, is reported to have said: "Businesses—not just in Canada, all over the world—they do not share documents easily […] “I would be very surprised if Canadian companies are going to deviate from this assumption. And that’s why you need this power, otherwise you are going to be like the [National Contact Point], and what is the point of having another NCP?”

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5 May 2019

Commentary: Why does Justin Trudeau succumb to corporate pressure?

Author: Charis Kamphuis, The Conversation

[T]he Liberals have once again yielded to industry pressureand seriously weakened their commitment to corporate accountability for Canadian companies operating abroad... [T]he prime minister has declined to use the Public Inquiries Act to guarantee that the new ombudsperson will be independent from government. Instead, Meyerhoffer will be a public servant and “special advisor” to the minister. This means that the new ombudsperson does not have the job security necessary to withstand the inevitable political pressure that difficult cases attract... The new ombudsperson also lacks the fundamental power to fully investigate and order remedies on the basis of findings of abuses... While she can “review” a complaint and recommend compensation, she cannot enforce remedies for victims or impose a sanction for violations. The ombudsperson’s meagre power is limited to recommending that government withdraw economic and political support for companies that refuse to participate in the process in good faith. The UN and civil society groups have repeatedly told Canada that this approach... is entirely ineffective.

... [C]ompanies are allowed to use the ombudsperson to file complaints for “unfounded human rights abuse allegations.” And there’s nothing in place to prevent companies from seeking compensation from human rights organizations or individuals on this basis... Not only is there is no evidence that Canadian companies need such remedies, it is widely observed that powerful companies will abuse existing defamation laws in an effort to intimidate their critics by taking them to court. This problem is so well-established that a number of Canadian provinces have enacted legislation to address it.

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2 May 2019

UN Working Group Chair critical of government delays with new corporate ethics ombudsperson

Author: MiningWatch Canada

"UN watchdog critical of government delays with new corporate ethics ombud," 2 May 2019

Canada's international reputation will be damaged if it doesn't give real power to its new watchdog on responsible corporate conduct, warns a United Nations rights watchdog. Surya Deva, the chair of the UN Working Group on Business and Human Rights... said he was disappointed that International Trade Minister Jim Carr commissioned a further legal review, due in June, to assess what the ombudsperson's powers should be when Carr finally filled the new job three weeks ago... "Let me say very candidly, things are moving quite fast and if the Canadian government wants to maintain the leadership in this particular field, or in the field of human rights generally, they need to really act now and do certain things," Deva said in an interview on Monday. Deva said Canada is falling behind other countries such as France, Germany, Switzerland and Australia in enacting laws to improve the conduct of their companies operating abroad, especially in less developed countries.

... Deva said if the government settles on anything short of full power to compel companies to supply witnesses and documents in Meyerhoffer's investigations, it will hurt Canada's reputation as a human-rights leader... Chris Moran, the director general for trade-portfolio strategy at Global Affairs Canada, said the current system gives her department's 1,200 trade commissioners the necessary leverage to ensure companies act responsibly on foreign soil.

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30 April 2019

Interview: UN Working Group Chairperson Surya Deva critiques delay in confirming power for Canadian Ombudsperson

Author: Alan Neal, CBC

"Canada's business community has a new ethics watchdog. But the chair of the UN working group on business and human rights says the position needs teeth." 

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30 April 2019

UN official criticizes Canadian delays setting up corporate ethics watchdog

Author: Mike Blanchfield, CBC

Canada's international reputation will be damaged if it doesn't give real power to its new watchdog on responsible corporate conduct, warns a United Nations rights watchdog... Deva said he was disappointed that International Trade Minister Jim Carr commissioned a further legal review, due in June, to assess what the ombudsperson's powers should be when Carr finally filled the new job three weeks ago... Deva said if the government settles on anything short of full power to compel companies to supply witnesses and documents in Meyerhoffer's investigations, it will hurt Canada's reputation as a human rights leader... The new ombudsperson was intended to improve on the current "corporate responsibility counsellor," which has faced widespread criticism as a toothless entity in addressing misconduct complaints against Canadian companies, mainly in the mining industry.

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15 April 2019

Canadian courts wrestle with questions of cross-border accountability for human rights abuses

Author: Whitney Eulich & Sara Miller Llana, The Christian Science Monitor

"When mining companies work abroad, should justice follow them home?" 9 April 2019

Canadian mining firms account for 40 percent of large mining operations in Latin America, and there have long been accusations of abuse at their operations on the ground... A decade ago, Canadian courts were reluctant to try these cases domestically, says Ian Binnie, a former Canadian Supreme Court justice... “I think that the judges are becoming more sensitive to the fact that if they refuse jurisdiction in Canada, assuming the head office is here, that these people won’t have any redress and will be left without a remedy..."

... Proceedings against three Canadian companies have been breaking new legal ground... Hudbay Minerals faces three distinct cases... Another case alleges that security personnel at Tahoe Resources, in... Guatemala, opened fire on demonstrations in 2013. The British Columbia Court of Appeal ruled that the case could proceed in Canada, and it is now before the trial court there... A third case involves Nevsun Resources Ltd., which has been sued for alleged complicity in a government subcontractor’s use of forced labor at a mine in Eritrea, worked by conscripts in the repressive country’s national service system. The Supreme Court of Canada is weighing whether Canadian courts should recognize civil claims based on breaches of customary international law, and whether the case can proceed...The Canadian government has responded to pressure for better business conduct abroad by creating a new ombudsman position last January... Many are concerned that the office does not have a sufficient mandate to investigate abuses. “They want what they call joint investigation, so the company has to agree to the investigations,” says Professor Imai, from York University, of mining companies. 

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8 April 2019

'Lobbied to death': Liberals face backlash over corporate responsibility ombudsman

Author: Gabriel Friedman, Financial Post

Minister of International Trade Diversification Jim Carr named Sheri Meyerhoffer, a Calgary lawyer with ties to the energy industry, to act as the country’s first Ombudsperson for Responsible Enterprise... Carr said lawyers still need to study whether the office will be able to force companies to turn over documents or compel witnesses to testify... Human rights advocates said it would be impossible to effectively investigate corporate misconduct allegations without such powers, and accused the Liberal government of backing off of earlier commitments to provide such powers.

... [Catherine] Coumans [of MiningWatch Canada]... noted that Global Affairs Canada has posted a frequently asked questions section about the ombudsperson office on its website. In one question and answer, the government said it was committed to providing the office with such powers. But by Monday, that language had been removed. “It’s pretty clear what happened if you look at the lobby registry,” she said. “They’ve been lobbied to death.”... Ben Chalmers, acting president of MAC [Mining Association of Canada], said that his organization does not support the investigative powers that the Coumans and other human rights advocates want, and instead believes the ombudsman should help bring dispute resolution.

... Michael Jones, director of communications for the office of the Minister of International Trade Diversification, said... the international trade diversification minister remains committed to providing the ombudsperson’s office with such investigative powers, pending the outcome of an external legal review to be launched in the next few days. “We’re saying give us another few weeks, we’re hoping to have this resolved by early June,” said Jones.

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