Summary by Sophie Sklar
The fourth panel, chaired by Hassan Ahmad (UBC), featured contributions from Sheri Meyerhoffer (Canadian Ombudsperson for Responsible Enterprise), Emily Dwyer (Canadian Network on Corporate Accountability), James Yap (CLAIHR), and Sara Seck (Dalhousie).
Office of the Canadian Ombudsperson for Responsible Enterprise
Sheri Meyerhoffer, the Ombudsperson for the Office of the Canadian Ombudsperson for Responsible Enterprise (CORE), began by providing a high-level overview of the Office’s mandate, complaint process, and current complaints. She also discussed what is currently working and what the body hopes to improve.
CORE’s mandate, Meyerhoffer explained, is to advise Canadian companies on best practices related to responsible business, particularly in the garment, mining, and oil and gas spheres. Their mandate is also to review complaints regarding potential human rights abuses within these spheres and to make recommendations on actions and remedies. The complaint process is central to the work that CORE does, including the publication of reports that result in media coverage to shed a light on human rights abuses perpetrated or enabled by Canadian businesses.
In terms of improvements for the future, Meyerhoffer highlighted the need for the Office to have expanded powers, akin to a court. She further expressed her concerns with the lack of engagement from companies and their failure to provide specific responses to complaints.
Meyerhoffer concluded by advocating for the Office to be given the powers to compel companies to provide witnesses and records in response to complaints as well as for Canada to adopt human rights due diligence legislation.
The Need to Improve Corporate Accountability in Canada
Emily Dwyer highlighted the importance of Canada more robust practices for addressing corporate accountability because of the increasing incidences of Canadian companies violating human rights, particularly when operating abroad.
She noted that the human rights abuse prevention framework in Canada has been focused on voluntary measures and that there is much to be done in Canada to close existing corporate responsibility gaps. This includes the need to empower CORE to independently investigate since without the power to compel documents and testimony from corporations, CORE is dependent on their voluntary cooperation.
She also advocated for mandatory human rights and environmental due diligence legislation and the need to improve access to remedies through right of action through Canadian courts if harm is caused, or if a company is acting negligently with the potential for harm. Dwyer highlighted the ineffectiveness of reporting and voluntary mechanisms alone as a response to changing corporate behaviour.
She concluded her discussion with “cautious optimism” surrounding the future of emerging legislation and increased public pressure surrounding the need to actively prevent human rights abuses both domestically and abroad.
Civil liability for corporate human rights violations
James Yap discussed the current state of affairs of civil liability for Canadian companies for corporate human rights violations abroad. He used the Supreme Court’s decision in Nevsun v. Araya, in which he was counsel for the plaintiffs, as an illustration. He noted that issues of jurisdiction remain live, since it is not always clear whether Canadian courts will exercise jurisdiction over matters that occur outside of Canada. In Nevsun, the courts of Eritrea were exceptionally ill-suited to hear these proceedings owing to their clear lack of independence, which made it easier for the Canadian courts to exercise their jurisdiction. However, this is not always the case. Questions also remain about the liability of parent corporations since in Nevsun, the parties settled before this issue could be resolved.
Yap concluded by discussing some of the challenges that the Nevsun case lays bare, including the limited deterrent effect of civil liability for human rights violations in the face of lucrative mining opportunities. He further highlighted the logistical difficulties that Canadian NGOs and lawyers face in obtaining reliable information about human rights abuses occurring in a remote mining-affected community in a foreign country. He also agreed with the other panelists that reporting obligations are not effective in their current form and must be strengthened.
Business, Human rights, and the Triple Planetary Crisis
Finally, Sara Seck presented a discussion surrounding business, human rights, and the triple planetary crisis in light of Canada’s commitment to Truth and Reconciliation with Indigenous peoples. The triple planetary crisis refers to the three main interlinked issues that humanity currently faces: climate change, pollution and waste, and biodiversity loss. She highlighted that from the triple planetary crisis, climate solutions must not undermine other planetary challenges, and that all solutions need to consider implications for human rights including the rights of Indigenous peoples. She underlined the profound importance of efforts to revitalize Indigenous ecological laws, noting their potential to transform approaches to biodiversity in Canada, as well as interconnected challenges including climate change.
Underpinning the triple planetary crisis, she argued, are unsustainable production and consumption patterns by corporations and affluent individuals. Seck went on to connect the duties of businesses to employ sustainability practices and minimize their impact on the triple planetary crisis with reference to the UN General Assembly’s recognition of the right to a clean, healthy and sustainable environment. She concluded by briefly exploring the potential of OECD Responsible Business Conduct tools to guide best practices both within and outside of Canada, but only if Canada takes seriously the need for an effective National Contact Point.
This panel ended a long day of reflecting on issues relating to corporate sustainability. From a Canadian perspective, the road towards corporate accountability appears still to be a long one.