Bill C-331 (Historical)

An Act to amend the Federal Courts Act (international promotion and protection of human rights)

This enactment amends the Federal Courts Act to provide for the jurisdiction of the Federal Court over civil claims brought by non-Canadians in respect of alleged violations outside Canada of international law or a treaty to which Canada is party.

Federal Courts Act

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Mr. Speaker, I agree that these are valid and important concerns, but Bill C-331 would not make Canadian companies more accountable and would not help award damages to victims.

The Federal Court is a statutory court, which means that it has only the jurisdiction explicitly conferred upon it by statute. In lawsuits against individuals and corporations, the court can only hear claims for relief arising in the federal domain, such as patent infringement or collisions at sea, which fall under Canadian maritime law. Such cases are explicitly provided for in federal law.

That is why lawsuits such as Araya v. Nevsun Resources Ltd. and Choc v. Hudbay Minerals Inc. were heard in provincial superior courts, which have jurisdiction over matters involving Canadian companies' actions abroad and, more generally, those with a real and substantial connection to the province.

Some provinces have also recognized the forum of necessity doctrine, which allows courts to assume jurisdiction in situations where the victim cannot be forced to initiate proceedings in the jurisdiction where he or she was harmed. The doctrine was applied in Bouzari v. Bahremani, an action for damages in respect of acts of torture in Iran.

Accordingly, there is no gap in domestic jurisdiction that Bill C-331 needs to fill. The provincial Superior Courts have adequate jurisdiction to address this type of claim. When Superior Courts decline to exercise jurisdiction, it is in application of well-settled rules of private international law or based on considerations of international comity.

The common law evolves gradually, incrementally taking into account developments in other jurisdictions. Recent decisions applying the doctrine of forum of necessity show that the common law can and does evolve to address accountability concerns of the kind reflected in Bill C-331.

It is worth noting that Bill C-331 is modelled on the U.S. Alien Tort Statute, which is the only legislation of its kind in force today.

The Alien Tort Statute provides, in full, “'The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Belgium experimented with similar legislation starting in 1993, but repealed it 10 years later, in 2003.

The Alien Tort Statute is something of an anomaly. It was enacted by the first United States Congress in 1789 and lay dormant until the 1980s. It is a controversial and much litigated legislation. Its scope has been narrowed by successive decisions of the U.S. Supreme Court, most recently last year when the court decided that foreign, that is, non-American, corporations could not be sued under that law.

Bill C-331 is likewise an invitation to costly and protracted litigation. As with the Alien Tort Statute, the scope of the bill is not clear and it would not assist victims in obtaining reparation.

In particular, Bill C-331 does not create any new remedies, that is, any new right of action, under federal law that the Federal Court could enforce. Rather, it merely allows the court to exercise jurisdiction where one of those violations of international law can be framed as a type of conduct that is already actionable under federal law.

Similarly, the bill does not change the private international law requirement of a real and substantial connection between the forum and the subject matter of litigation. As such, Bill C-331 would not allow foreign victims to sue foreign companies that did not carry on business in Canada in respect of their conduct abroad. The real and substantial connection test would lead a court to decline jurisdiction in such cases. This test was developed by the Supreme Court of Canada, notably in order to prevent jurisdictional overreach by the courts.

Finally, the bill would do nothing to enable claims against foreign states, which would continue to enjoy immunity pursuant to the State Immunity Act with respect to their sovereign activities outside Canada.

The victims this bill is meant to serve would not be any better off if the Federal Court had jurisdiction over their cases. On the contrary, they are more likely to find justice through the superior courts, where the law is clearer and more predictable.

Instead of providing the same remedies that can already be sought from the superior courts, this government created the ombudsperson for responsible enterprise, a world first. In April 2019, the Minister of International Trade Diversification appointed Sheri Meyerhoffer to the position.

For the victims of human rights abuses, the ombudsperson is a real and effective alternative to litigation. More specifically, the ombudsperson's mandate is to review alleged human rights abuses arising from a Canadian company’s operations abroad and to propose corrective actions, such as victim compensation. This mechanism complements the legal remedies available to victims.

In January of this year, the Supreme Court of Canada heard the Araya v. Nevsun case. The respondents were Eritrean refugees who allege that they were forced to work in an Eritrean gold mine, 60% of which is indirectly owned by the B.C. company in question.

This case raises questions directly addressed by this bill. For example, would Eritrea be the appropriate place to initiate the proceedings? What would be the scope of the act of government, which would prevent the court from ruling on the legality of a foreign state's sovereign acts within its own territory? Furthermore, the bill addresses the application of the customary standards of international law.

The Supreme Court will rule in the coming months. It would be prudent to wait for the court's ruling in this case, since the ruling could affect the content of this bill.

[The Assistant Deputy Speaker, Anthony Rota]

Before resume debate, I want to remind hon. members that some members are very fortunate to have a voice that carries exceptionally well. Even though they are talking to the person maybe a couple of benches away, it carries very well, and I compliment them on that. However, when we are trying to hear someone, it does interfere. I just want them to learn to whisper and control their strong voice.

The hon. member for Victoria.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I am rising to express my strong support for the enormous contribution made by the member for New Westminster—Burnaby. He has been championing this legislation for so many years, in so many parliaments, and here it is again. It is a bill that would work toward the international promotion and protection of human rights.

I live in the province of British Columbia, where so many of our mining companies are headquartered. Sometimes, when we travel abroad, it is quite embarrassing to learn about what some of those companies, not all, have done. Whether they like it or not, they carry the Canadian flag on their back.

Some of the abuses involving sexual violence, human rights abuses and environmental degradation are things that come back and haunt us in Canada. That is why Mr. Justice Ian Binnie, formerly of the Supreme Court, has been calling on us, as parliamentarians, to do something about this, as have so many others. In fact, as the member for Cowichan—Malahat—Langford reminded us, groups that speak for over three million people have asked us to get the bill through Parliament.

I would like to address what was said just now by the Parliamentary Secretary to the President of the Treasury Board, who seems to be suggesting, if I understand his argument, that this is unconstitutional and cannot be done.

I have a legal opinion from a very well-known and highly respected constitutional law firm, Goldblatt Partners in the city of Toronto, which confirms, at great length, that the bill “is squarely within the jurisdiction of the federal Parliament.” I do not know who is giving legal advice to the minister or whether this is a smokescreen to, once again, avoid effective legislation, but I can assure the House, for reasons I will also describe in a moment, that is simply not the case.

Therefore, I would hope that the Canadians watching will beseech the Liberal members of Parliament to not be timid; to do what the Supreme Court justice has asked; to do what Canadians from coast to coast to coast have asked; to deal with those of us who are embarrassed sometimes when we go abroad to say we are from Canada, knowing what some of our mining companies have done abroad; to get with the program and do what has been done in so many other jurisdictions. Is it not ironic that we are here talking about doing in Canada what the Americans did in their alien foreign tort claims legislation so many generations ago? It just seems sad.

What would the bill do? It would amend the Federal Courts Act to provide that court with jurisdiction over civil claims brought by non-Canadians in respect of alleged violations outside of Canada of international law or a treaty violation to which Canada would be a party, particularly violations of human rights and recognized fundamental rights of indigenous peoples, labour and environmental groups.

As my friend from Cowichan—Malahat—Langford reminded us, Global Affairs said that over 50% of the world's listed publicly traded exploration and mining companies were headquartered in Vancouver. That gives us a particular responsibility to do something about this difficult problem.

Allegations have been made by NGOs and others of so many instances abroad, over so many years, where our mining companies were associated with human rights and environmental abuses. What is called for is that there be an effective independent mechanism to investigate complaints of abuses and for something to be done about it.

The government prides itself on the adviser position that was created, with absolutely none of the powers that would make a difference in the real world. Of course, that is what we are here to try to do.

I am pleased the hon. member for Scarborough—Guildwood, a Liberal member of Parliament, brought forth a bill not long ago that would have brought in some of the reforms we are talking about today. Unfortunately, that bill was defeated by his Liberal colleagues. Hopefully they will not do it this time and Canadians will successfully urge their Liberal members of Parliament to get with the program.

There is litigation, of course, that deals with the issue of what is called forum non conveniens. Normally, if one has a lawsuit in Canada but is told that the better forum to do such a lawsuit would be in Eritrea or Papua New Guinea or Guatemala where some of these cases have occurred, a Canadian court would dismiss the lawsuit on the basis that there is a better place for that to be heard.

I am happy to report that in British Columbia our Supreme Court rejected a claim involving a mining company called Nevsun that was listed in British Columbia but was doing business in Eritrea. The court concluded that there was a legitimate risk that the refugees would not get a fair trial in Eritrea. That was upheld on appeal.

It seems that there is a recognition in our courts that we might, in certain circumstances, allow for litigation in Canada. That was a good example of that. However, we cannot depend on that occurring. We need to get legislative change to confirm that. That is what this bill would do. That is what the hon. member for New Westminster—Burnaby has endeavoured to do with this legislation. I am so proud of the work that he has done.

Earlier someone quoted some of the many, many supporters of this legislation, one of whom is Ken Neumann of the United Steelworkers. He said this:

Stronger laws are urgently needed in Canada to address international violations of human and environmental rights and related corporate practices. Getting there requires leadership from our elected representatives.

Of course he is right. That is what Canadians are looking for on this. They are looking for a civil cause of action that our courts, the Federal Court of Canada, would be able to address when people from abroad come here and sue over outrageous transgressions of human rights or treaty rights to which Canada is a party. What is wrong with that? Why would that not be something we would all want to respect? Our country has had such a strong reputation for human rights and environmental good practices around the world. It gives us all a black eye when we hear of some of the horrible abuses that have taken place abroad, whether it be the genocide and suffering of people of Darfur or the murder of trade unionists at the hands of death squads in Colombia or the sexual violence that occurred in Papua New Guinea. I think it is critical that we fix it.

As I said earlier in my remarks, it is not like this is something terribly new. The Americans have the Alien Tort Claims Act that allows foreigners there to bring action in American courts for violations of the law of nations. They have had that since 1980. Here we are with this radical notion in Canada.

The Liberals seem to think it is unconstitutional and cannot be done. Of course it can be done. That is why the hon. member for Scarborough—Guildwood has also tried to get it done. I am sure he is feeling the same pressure that I have felt as a member of Parliament in Victoria when people come to me and beseech me to get this right. It is embarrassing to us to see what some of our companies are doing abroad. They are not going to be effectively sued in a court in Eritrea. They are not going to be effectively held to account in a court in Papua New Guinea. Canadians understand that. They want companies to be held accountable here where they are created and where their directors reside in many cases as well.

A civil claim will be easier to substantiate than a criminal matter, which requires foreign governments to be engaged in and the standard of proof, of course, of beyond a reasonable doubt makes it very hard to get criminal convictions where civil claims are available.

In conclusion, I want to thank the hon. member again for the excellent work that he has done in bringing this bill forward. It seems to me to be common sense legislation. In no way is it unconstitutional. If there is ever a doubt, let us let the courts test it, but let us not be so timid that we will not even give Parliament the opportunity to respond to the pressure that so many of us have heard from our constituents to take away that black eye that our companies are giving all of us abroad and let them be held accountable, where appropriate, here in courts in Canada.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

Mr. Speaker, I am proud to rise today during private members' hour to join in the debate on Bill C-331, and underscore our government's strong position on this bill.

Canadian companies have always had the ability to hold their heads up high when doing business around the world based on our reputation as a country, not only including our credibility from a financial standpoint but also given our strong record on human rights.

This government is a strong proponent of upholding strong human rights all around the world and is willing to work collaboratively with parties on all sides of the House to put strong legislation in place over the years to come to help strengthen those laws as well.

I am going to use this time to speak briefly about my riding as this will most likely be my last opportunity to speak in the House.

As my constituents and a lot of my colleagues are aware, I decided not to re-offer in the upcoming federal election. However, my feet remain firmly planted in my riding and I will be forever rooted in New Brunswick, my home and my future.

When I originally decided to run, I remember stating in my nomination speech that I was committed to building a great future for Tobique—Mactaquac and to work collaboratively with members on all sides of the House and all parties to do whatever was possible to help New Brunswickers, specifically those people in my riding. My willingness to work toward that goal has never wavered and I feel as committed to my riding today as I ever have.

My constituents are exemplary people who have shown time and time again to have the ability to not only perform but lead on the world stage. I am so incredibly proud of my province and very proud of my country.

I quickly realized as I took office the immense opportunities that ridings like Tobique—Mactaquac and other rural ridings across the country hold and continue to hold today. Not only in my riding, but from coast to coast to coast, the opportunities are endless.

It was once said that the reason a lot of people do not recognize opportunity is that it goes around wearing overalls and it looks like hard work. Believe me, I recognize opportunity. I have had immense opportunities in my life working in the private sector and it has been an immense privilege to have the opportunity to sit on behalf of the people of Tobique—Mactaquac here in the House of Commons over the last four years. Whether it involves wearing overalls or a three-piece suit, I certainly do not plan to stop seeing opportunities develop for all New Brunswickers and for those in Tobique—Mactaquac. It has been an immense privilege to have had the opportunity to work and be of service.

Over the past four years, we have made great strides in the right direction and yet there are so many opportunities left to come and so many people that have still been left behind. We all know those people: veterans struggling with PTSD; hard-working folks facing unemployment; young people burdened by student loans; seniors struggling on fixed incomes; sole-support mothers trying to make ends meet; aboriginal peoples facing discrimination and the legacy of residential schools abuse; persons with disabilities facing isolation and accessibility barriers in their own homes and communities; and new Canadians working hard to build their new lives. The list goes on. These people are our neighbours, our friends and our family. I am proud, along with my office staff, to have worked hard on their behalf but there is so much more that can be done and we need to continue to be mindful of these issues.

I personally ran to make a difference, to ensure that all kids have the opportunities here at home that truly reflect our amazing region, so that children in every family can excel and reach for their dreams, and to achieve true fiscal responsibility for big and small businesses alike, while recognizing that opportunities country-wide require federal leadership, especially when it comes to infrastructure renewal and new infrastructure. Our government has proven that it is capable of leading that charge. I am very proud of the developments that we have made as a federal government in terms of infrastructure over the last four years.

That is why I have worked hard as a member of Parliament over the past four years serving as chair of the all-party agricultural caucus and chairing the national Liberal rural caucus for a year. In the past, I sat as regional director for provincial ridings in Carleton—York, Carleton—Victoria and Victoria—La Vallée. I worked with the Rotary Club in my local riding. I think that self-service is one of the greatest gifts that we can give to this place. All this and more has made me passionate about public service and about representing my constituents.

As the member of Parliament for Tobique—Mactaquac, I have strongly advocated for continued supply management and investment in agricultural robotics; safe and responsible natural resource development; rural economic development; investment in rural infrastructure; accessibility and visitability, and I am very proud to have worked collaboratively with my colleagues in the House on this; a healthy local economy; improved stewardship of our environment; better, more affordable education; open, fair and strong democratic representation; and the list goes on. I have never pretended to have all the answers. I believe it is more important to ask the right questions and then work to find solutions.

I would like to cite one of my favourite quotes that first came to me from an agricultural producer in my riding. He used to say that we make a living by what we get, but we make a life by what we give. I believe that public service means giving one's time and talents and providing the resources necessary to improve the lives of others. This approach was adopted by my office from the outset and as the member of Parliament for Tobique—Mactaquac, I have always strived to meet this as a public servant.

I hear what people want and need from their representatives: public engagement, a voice that understands and truly reflects them and a willingness to work across the aisle with those who oppose or are different from us on certain issues. Partisan, divisive politics drives us apart, distracting us from the real priorities and the real work ahead. In New Brunswick, our communities are often close-knit and small, sometimes isolated and struggling. As politicians, our focus should always be on the kind of service that starts in our own homes and grows to embrace our communities and strengthen the general public good.

Serving as the member of Parliament for Tobique—Mactaquac has been so much more than a job. It has been one of the greatest privileges of my life and I feel honoured to have had the opportunity to provide a strong, independent New Brunswick voice on behalf of my constituents. I cannot express enough thanks to the residents of my riding for placing their trust in me. I am fortunate to have been part of policy changes and legislation which will leave a lasting, positive impact in the lives of so many constituents and Canadians, in general.

It has been said that there is no bad seat in the House of Commons and I honestly believe that to be true. I would like to acknowledge the friendships and dedication of the members from all sides of the House and the Senate as we worked together on the important issues facing Canadians. We may have had a few disagreements regarding process and policy, but I never had cause to question our collective objective of providing responsible and compassionate governance.

New Brunswick is my home and the place that I love most. I have always dedicated so much of my service advocating for rural economic development, small business growth, rural infrastructure, accessibility and a host of other issues that are important to New Brunswickers. I am proud of our accomplishments. I look forward to continuing to work with and advocate on behalf of New Brunswick businesses and the growth of our local economy. Small and medium-sized businesses are the backbone of the economy and I know I can continue to play a role in their success and contribute to economic development for the benefit of those not only in my community but for New Brunswick as a whole.

I would like to thank all of the volunteers and those who have shared their time, concerns and advice with me and those who attended events and reached out to my office with their concerns around the issues that are important to them. I thank them for their support and encouragement. It is my intention to continue to work tirelessly on behalf of the people of New Brunswick and my constituents until the federal election. I look forward to the challenges and opportunities that lay ahead and thank all of the people of Tobique—Mactaquac for placing their trust in me. I would like to thank my family, my friends, my colleagues and all of the people who have made this journey possible for me, a worthwhile journey, indeed.

I would like to close by citing an old Gaelic blessing, one that my grandfather used often:

May the road rise up to meet you.
May the wind always be at your back.
May the sun shine warm upon your face,
and rains fall soft upon your fields.
And until we meet again,
May God hold you in the palm of His hand.

[Paul Manly, Green, Nanaimo—Ladysmith, BC]

Mr. Speaker, I am thankful for this opportunity to stand in support of private member's bill, Bill C-331. I would like to thank the hon. member for New Westminster—Burnaby for his work on the bill. It is very important legislation.

Speaking from personal experience, as a Canadian, I have had experience travelling in Central America. In the nineties, I was in Guatemala. My younger brother was part of the Managua team with the United Nations. My parents and I were involved in a human rights accompaniment with trade union activists who were trying to organize maquilas, the factory workers in Guatemala, and also working with people who were taking forward human rights complaints.

I spent some time travelling around Central America. I had a Canadian flag on my back. I could see, in different places where I went in Nicaragua and El Salvador, there were Canadian flags on bridges that had been built with Canadian money. People thanked me for being Canadian, for being there, for our country and for the role we played after the civil wars in Central America.

In 2014, I went back to El Salvador to take part in a delegation on mining. I was doing research for a film on investor state dispute settlements and looking into the case of Pac Rim Cayman LLC v. Republic of El Salvador. In that case, five of the environmentalists who stood up against this mine that nobody in the country wanted, because it would destroy the watershed that provided water to 60% of the population, were murdered. People had to leave the country as refugees because of the thugs who were involved with the mining company.

I took part in a conference, with delegates from Guatemala, Honduras and El Salvador. They all explained situations that were happening in their countries. They had photos and videos. I documented this conference and I put it up on my YouTube channel. However, the whole time I was hearing about how Canadian mining companies were involved in these projects in communities where they were unwanted. They ended up hiring thugs to intimidate local indigenous people and force them into accepting projects they did not want. They were destroying their communities, their local environment and their way of life. People were having to leave their homes under the threat of violence. People were being murdered, abused and sexually assaulted. To me, it was a very shameful experience. To know that we had companies abroad involved and engaged in these activities was very disheartening.

Therefore, I thank the hon. member for New Westminster—Burnaby for this work. This is a very important bill. People in these situations should be able to seek redress in this country, get justice and ensure that Canadian corporations abroad are responsible for the behaviour of the people they hire and work with in those countries.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Mr. Speaker, I would like to thank my colleagues who spoke in favour of the bill. Obviously the bill has withstood the parliamentary scrutiny of the discussions and debates we have had over the two hours that have been accorded to it.

First, there have been a number of small technical issues, but they can be easily resolved through amendments. I want to make clear to all members, as I have in letters to every member of Parliament, that I am open to amendments and technical changes.

Second, we have heard from the government that this is not needed at all and that a bunch of people would apply. There is an obvious contraction there. If the bill is not needed, then victims will not come forward in the federal court. If victims come forward, it is because the bill is needed.

Just as we saw in the debate on the bill from the member for Scarborough—Guildwood about corporate responsibility, I suspect, after hearing the government members speak, that what is being heard here are the voices of corporate lobbyists. Corporate lobbyists are saying that no action should be taken on corporate responsibility. Corporate lobbyists are saying that victims should not be heard.

I would like to note in these final minutes of debate on this issue, before the important vote held next Wednesday, that other voices should be heard on the floor of the House of Commons when we cast our votes next Wednesday.

The voices that should be heard are those of the victims, like the victims of forced slave labour at Nevsun Resources in Eritrea. These people were forcibly conscripted, held as slaves and beaten. Their voices need to be heard on the floor of the House of Commons. They can only be heard by a yes vote on Bill C-331.

We should hear the voices of Adolfo Ich Chaman's family members. He was the activist who was shot and killed on the Hudbay Minerals property in Guatemala. There is also German Chub Choc, a local youth activist who was speaking out against mining operations. The voices of those in surviving families need to be heard on the floor of the House of Commons.

We need to hear from the victims of the appalling sexual violence taking place in Papua New Guinea. This happened on the grounds of the Barrick Gold operations. Those voices, those victims need to be heard on the floor of the House of Commons.

There are the surviving members of the family of the Salvadoran environmental activist, who was found murdered at the bottom of a well, his finger nails pulled out. That family needs to be heard on the floor of the House of Commons.

Those voices need to be heard, not those of corporate lobbyists. We should hear from the victims of these appalling human rights abuses taking place worldwide. In each of these cases, there can be no justice in those countries, because their judicial systems are corrupt and will not hear victims' pleas for justice.

Other voices need to be heard. There are the more than three million Canadians whose organizations have endorsed the bill and have called on members of Parliament to vote yes on the bill next Wednesday. Those voices need to be heard, as well as the voices of Canadians across the length and breadth of the country.

Poll after poll has shown that the vast majority of Canadians believe in corporate responsibility, believe in justice and believe that Canada needs to be a voice in the world for human rights and justice. We can accomplish that by a yes vote next Wednesday.

Canadians have said very clearly that they want parliamentarians to vote yes on the bill. I would urge Canadians to contact their members of Parliament in the coming days. The vote is next Wednesday. Parliamentarians need to be called by their constituents, and their constituents need to tell them to vote yes on Bill C-331.

The victims' voices, the victims of appalling human rights abuses, of violence, of murder and of sexual abuse, all of them are calling out today for members of Parliament to vote yes on Bill C-331. I hope all members of Parliament will heed the call and vote yes next Wednesday.

[The Assistant Deputy Speaker, Anthony Rota]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Assistant Deputy Speaker, Anthony Rota]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Assistant Deputy Speaker, Anthony Rota]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Assistant Deputy Speaker, Anthony Rota]

In my opinion the nays have it.

And five or more members having risen:

Pursuant to order made on May 28, the division stands deferred until Wednesday, June 19, at the expiry of the time provided for Oral Questions.

The House resumed from June 13 consideration of the motion that Bill C-331, An Act to amend the Federal Courts Act (international promotion and protection of human rights), be read the second time and referred to a committee.

[The Speaker, Geoff Regan]

Pursuant to order made on Tuesday, May 28, 2019, the House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-331.