Foreign Affairs Committee on June 1st, 2009

[The Chair, Conservative, Kevin Sorenson]

Okay, so this isn't a situation where time after time companies say no, don't proceed.

There is a process and it seems to be working. Is that correct?

[Louise Léger]

We have never had a case where a company said no.

[The Chair, Conservative, Kevin Sorenson]

All right, so when it's been brought forward, the company recognizes what would happen if this were publicized or made public, and they say no, we want to comply. Correct?

[Louise Léger]

That's right.

[The Chair, Conservative, Kevin Sorenson]

You've said you have a number of other concerns about Bill C-300. Can you tell us what they are?

[Sara Wilshaw]

Beginning with some of the definitions, we did start on some of them. In subclause 2(1), under “Interpretation”, you talk about a “corporation” including “any company or legal person incorporated by or under an Act of Parliament or of any province.” We're not clear about whether this means Canadian companies that are incorporated in the host country or whether they are Canadian companies that may be partnered with or under joint venture with another company in another country.

Again under “Interpretation”, when you go into “developing countries”, it refers to a “list of countries and territories eligible for Canadian development assistance” as “established by the Minister of International Cooperation.” CIDA has informed us that there is no such list, and it's not clear to us whether this bill purports that the minister is to create such a list. This would also have foreign policy implications if we were to create such a list. There is a list of countries that currently receive ODA, but that list changes each year, so there is no list of countries that are “eligible” to receive ODA.

We understand, when you talk about “international human rights standards” means standards that are based on international human rights conventions to which Canada is a party and on international customary law”, that this is referring to treaties and obligations that are obligations on states and are written, to quote Dr. Ruggie, “by states for states” and are not easily translatable for corporations. In fact, Dr. Ruggie, who is the special representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, has reported on April 22 to the Human Rights Council exactly what I said, that these are treaties that are written by states for states, and even the experts on human rights do not clearly understand their meaning for business. We would have some difficulty there, I think, in establishing those kinds of guidelines.

As is mentioned under “mineral resources”, there is a non-exhaustive list of those that are not included here, but it needs some clarification.

When the bill refers to “mining, oil or gas activities” including the transportation of the product out of a developing country or on the high seas controlled directly or indirectly by a Canadian company, this is a very broad definition. There could be unforeseen consequences up and downstream, companies that are related, so we're not entirely sure of the full extent of the impact there. Would it include soil remediation companies that maybe would be called in after the fact by a mining operation for cleanups? It's very broad.

When we get to the interchangeable use of...the Minister of Foreign Affairs and the Minister of International Trade are used interchangeably in this. The interchangeable nature is somewhat confusing and could lead to a duplication of efforts and resources. It also leaves the accountability somewhat unclear to us.

When we turn to the “Purpose”, clause 3 talks about “corporations engaged in mining, oil or gas activities and receiving support from the Government of Canada”. That support would probably need to be defined better for us. We're not entirely sure what the extent of that support would be, although there are obviously hints of it in the consequential amendments.

There's also a reference here to “environmental best practices”. We're not sure which environmental best practices are being referred to here. There's no body or standard cited in the rest of the bill. Generally, we refer to CSR best practice where there are internationally recognized standards out there.

[The Chair, Conservative, Kevin Sorenson]

Unfortunately, I'm going to have to interrupt. I appreciate the fact that the list is long.

[Sara Wilshaw]

I haven't really got into the bill.

[The Chair, Conservative, Kevin Sorenson]

Can I ask you to please get into the bill and to send back what you're basically commenting on now, in written form?

[Sara Wilshaw]

Certainly.

[The Chair, Conservative, Kevin Sorenson]

I think those are all very good. I wish we had got into them a little earlier. Unfortunately, our time is up. We only have one hour, and I hate to cut you off.

I want to thank you very much for coming. Again, we want to give due diligence to this bill and take a look at all the ramifications. Many are good, but there may be many we're unsure of.

Thank you for coming and helping us to decide today. We look forward to those submissions in writing.

We'll suspend for a few minutes, and then we'll ask our next guest to please take his position.

[The Chair, Conservative, Kevin Sorenson]

Good afternoon.

In our second hour today we're going to have a briefing on legal issues concerning a committee's powers to have individuals appear here before our committee. As our witness, we have, from the House of Commons, Rob R. Walsh, the law clerk and parliamentary counsel.

All honourable members will know Mr. Walsh. He's been of great assistance to members over the years. I was actually quoted in the Globe and Mail here this past week on this. A reporter was trying to get out what was in the letter, although he seemed to have some understanding of what was in the letter, and he quoted me as saying, “We value Mr. Walsh's opinion and look forward to having him appear before the committee on Monday”. I did that to try to persuade him not to question me any further on the issue.

But I sincerely mean it. I think all parties recognize your expertise, and we're confident that you'll live up to your reputation here today.

I also want to thank you for responding with that letter. It has been an issue that our committee has debated over the last little while. We certainly were looking for sound advice, and you've given it, I think. You may have some comments. I don't know exactly how you want to proceed with this, Mr. Walsh, but you may have comments in regard to the letter you sent us, and the follow-up as well. Then the different parties, I'm sure, will want to ask some questions of you.

Mr. Walsh.

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

Mr. Chairman, I don't have an opening statement apart from pointing out to members, if they haven't received the follow-up letter, that I'm guilty of an oversight in not noting that a certain decision of the Federal Court to which I referred, in which section 10.1 had been ruled unconstitutional, was later reversed by the Federal Court of Appeal and section 10.1 was found to be constitutional. It's a provision that's found in the passport order.

I have only one other point. In my opinion letter I make reference to two other actions in the Federal Court of Canada by Mr. Abdelrazik. In fact there are three other actions, not just two, but that's really neither here nor there for today's purposes.

I'm ready to answer any questions members may have, Mr. Chairman. I don't have an opening statement.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Walsh.

We'll move into the first round of questioning.

Mr. Patry.

[Bernard Patry, Liberal, Pierrefonds—Dollard, QC]

Merci beaucoup. Thank you very much, Mr. Walsh.

I read it a couple of times, because as a medical doctor and not a lawyer, it's quite difficult sometimes to understand your text.

I'm just going to ask you one question. If this committee wants to keep going and have the witness come to Canada, what's left for this committee? This committee, in my understanding, needs to pass through the House of Commons, to Parliament, and Parliament can say so. But Parliament doesn't have any power to recall him to Canada; it's the government that can do it.

Is my understanding right?

[Rob Walsh]

That's correct, Mr. Chairman.

[Bernard Patry, Liberal, Pierrefonds—Dollard, QC]

What's left for us? Just going that way, or what?

[Rob Walsh]

Well, essentially, what's always the primary course for a committee is to go to the House with its problems and seek the House's support to join with the committee and encourage the government, if not forcefully demand the government, to facilitate the return of Mr. Abdelrazik to Canada for purposes of the business of the committee.

[Bernard Patry, Liberal, Pierrefonds—Dollard, QC]

That's it. I have no more questions. It's very clear.

Thank you.

[The Chair, Conservative, Kevin Sorenson]

We'll move to Madame Deschamps.

[Johanne Deschamps, Bloc, Laurentides—Labelle, QC]

Ms. Lalonde has the floor.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

That is fine.

I read your letter, and as was stated earlier, this committee seems to have no way of forcing the return of Mr. Abdelrazik.

The first page reads as follows: “... include a House order to the person demanding that the person appear before the committee, failing which the person (the witness) could be found in contempt of Parliament. This process is set out at page 861, Marleau and Montpetit.” I did not check Marleau-Montpetit. I should have, but I had a very busy working weekend.

Does this not open a door?

[Rob Walsh]

Not really, Mr. Chair, because this is normal procedure as regards witnesses who are not willing to appear before the committee of their own free will. This is a House order. If a witness is very reluctant to appear, the person could be found in contempt of Parliament, but this order is not applicable outside Canada. Mr. Abdelrazik lives in Sudan. The order, therefore, would have no effect.

[Francine Lalonde, Bloc, La Pointe-de-l'Île, QC]

So really, that means if Parliament were to ask him to come, and he did not appear, there would not even be any consequences. Is that what you are saying?

[Rob Walsh]

It is possible, but it is not very useful.