Foreign Affairs Committee on Oct. 22nd, 2009

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

Thank you, Ms. Keenan, for your very well-researched presentation today. I'll be asking questions that will exhibit that I don't agree with many of the things you've said. Notwithstanding that, I really respect the fact that you have researched this bill and that you express yourself very forcefully as well, albeit not with my particular perspective.

It strikes me that you have blown off the idea of the counsellor under the CSR. The fact that it is a public process, the fact that whoever may have been brought to the attention of the counsellor, hence in the public--don't you think that if those companies were not compliant, it would create public pressure that NGOs and other organizations like yours could use to your own purpose?

I simply find the fact that you have blown that position away as not being that relevant to be very interesting, and I wanted to challenge you on that.

[Karyn Keenan]

There are a number of opportunities and fora for bringing forward information about what Canadian extractive companies are doing, and Canadian and other civil society organizations make use of those fora. Some of them are international, some of them are national, and so on, and we're doing that.

Again, we have to remember who these people are and what's happening. Often their physical safety is jeopardized. They're often indigenous people, they come from rural areas, they're economically and politically marginalized. To marshal the time, the resources, and the energy to submit another complaint, and possibly to travel to Canada to give testimony and so on before a forum where they have no expectation or hope that anything will change, is nonsensical. It makes far more sense for them to continue to use other fora, as flawed as they may be, but that has brought us to the point where we are right now. The fact that we're in the Parliament of Canada discussing this issue means that those fora have had some influence and some success, and, to me, that makes far more sense.

We've had bad experiences with the National Contact Point here in Canada, which is another complaints mechanism that was set up by the government. People, including my organization, filed complaints, marshalled resources, gathered testimonies and affidavits, and it has been entirely unhelpful. People are not persuaded that this would be any different, and they don't want to spend valuable resources testing it out.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

The devil is in the details in all these kinds of acts. The example I used in testimony two days ago is that we have two different flu vaccines because we have two different viruses. In other words, you have to be specific with a remedy. In this particular case, if we can pull that analogy over to Bill C-300, the devil is in the details. It might be that we need to be going after flu, whereas in fact we need to be going after H1N1 flu. This bill is not going to touch the H1N1 potential pandemic, if you understand my analogy.

I'm looking under the powers and functions of the ministers. I'll quickly read the clause I'm thinking of:

In carrying out their responsibilities and powers under this Act, the Ministers shall receive complaints regarding Canadian companies engaged in mining, oil or gas activities from any Canadian citizen or permanent resident or any resident or citizen of a developing country in which such activities have occurred or are occurring.

Do you not see that this is a big enough hole to probably slide the Queen Elizabeth 2 through? I mean, why couldn't there be people among the six billion inhabitants of the earth who would bring vexatious actions against Canadian companies? This is a gigantic hole. Or do you disagree with me?

[Karyn Keenan]

I'm just looking for the provision.

If we go down about ten lines to subsection 4(3), your concern is explicitly addressed. The statute explicitly deals with the problem of frivolous and vexatious claims.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

It does, but that is part of a process. That clause, I submit to you, opens up the opportunity. They can be frivolous and vexatious, but it doesn't make any difference. After they've been on the front page of the Globe and Mail for one edition, you don't take that edition back and say, “Sorry, take it out of the bottom of your birdcage”.

[Karyn Keenan]

It is true that there may be individuals who take advantage of this initially and lodge frivolous and vexatious claims, but those frivolous and vexatious claims will be exposed for what they are. I think when groups see that this mechanism doesn't work, because their claims are refuted, and that companies, no doubt, will do their own work taking those results and disseminating them and broadcasting them, they will see that it's an ineffective strategy. I have every confidence in the ability of companies to also broadcast findings of frivolous and vexatious claims to their advantage.

I can conceive that some individuals might initially take advantage of that. But I don't think the mechanism will work for long, because I think the ministers will use their judgment to weed out those claims and they won't get anywhere.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

Within the clause that I read to you, “activities have occurred or are occurring”, companies could be reviewed for anything dating back to 1867. That, again, is a gigantic hole big enough for another ocean liner.

[Karyn Keenan]

As I described in my comments, there are a number of incidents that have occurred around the world, which were on an egregious scale in terms of the impact on affected communities, that remain unresolved for which people have been unable to seek redress. People have lost their source of livelihood, they've lost their land, they've become ill, and they have had no opportunity to seek redress. I would argue that should some of those older cases come forward, that would be just and fair.

[Jim Abbott, Conservative, Kootenay—Columbia, BC]

If a company should acquire another company, it would have to do due diligence before acquiring that company. Because there might be some kind of track record going back 20, 30, 40, or 50 years, when practices that we now find abhorrent and unacceptable in 2009.... If we go back 50 years, with the best science and the best understanding of what was happening with regard to exploration 50 years ago, those practices are completely unacceptable at this point. Again, we've opened up yet another gigantic hole to drive some kind of challenge through for any kind of mining activity that has any kind of history other than what the standards are in 2009.

[Karyn Keenan]

I think I was unclear. An investigation regarding a case that has been operating for some time and around which there are problems would concern that case. If that mine is still operating, but it's now operating to a standard that complies with standards included in the statute, then that company would qualify for further government support.

The statute applies to current operations. If there were a mine, let's say Omai, where there were problems in the past but it's still operated by a Canadian company and there are no problems there now—the company now operates in a way that's consistent with these standards—then that company, obviously, would be eligible for further government support.

This act doesn't address legal remedies. It doesn't provide legal remedies to people who have been wronged in the past. But if there are still problems with a mine where there have been problems before, and an investigation happens, then that company could become ineligible for further support.

But no, it doesn't do anything to companies that have committed wrongs for which people have been unable to access remedies. It doesn't provide a legal remedy.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

We'll move to Mr. Dewar, please.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you, Chair, and thank you to our guest for appearing.

Following up on Mr. Abbott's comments, you might be able to enlighten us a bit on something. Some people are going to court to seek remedy. Is that something you're aware of? How would you see this bill dealing with those situations?

In other words, we see in other jurisdictions that there are grievances being brought to court because there is no other recourse. Do you have any point of view on that?

[Karyn Keenan]

There are a number of Canadian cases being brought before the judiciary in foreign jurisdictions, including some cases that were funded by EDC. You heard about one of them earlier this week. It was formally a Placer Dome mine, now a Barrick mine, in the Philippines, where a lawsuit is pending in the United States because there are no opportunities to bring lawsuits of that type in Canada.

Unfortunately, this bill doesn't address that problem. I may not have been clear in my response to the previous question, but this bill does not provide the legal basis for bringing claims in this country. In my comments I mentioned that was something this legislature might want to think about, because I think it's very important. Those actions demonstrate that we have a policy and legal vacuum in this country around the activities of our corporations overseas that we need to address.

I think this bill is one important step in the right direction in addressing that vacuum. While it doesn't provide a basis for lawsuits for those who have been harmed, it does ensure that the government's house is in order. It ensures that the public services provided to our companies happen in a way that is consistent with our values and our international human rights obligations. That seems to be a priority, to me.

[Paul Dewar, NDP, Ottawa Centre, ON]

I concur.

As Mr. Abbott is fond of analogies, I'll give one as an example. Big tobacco is being sued right now. There is litigation on the question that they knew there were problems. They were aware of them. There was evidence provided that the way they were conducting their business was affecting the health of people.

This is something the government should be embracing to protect Canadians. It's about public dollars being involved with private enterprise abroad. We don't want to find out ten years, five years, or two years from now that the Canadian public was exposed because we didn't do what we should have done. I think it's important that this is laid out. To say that we can't do more is not the case. And as you've laid out, the tools we have right now are not sufficient. I think you were quite comprehensive in your comments.

My final question is around an issue that some have concerns about on establishing guidelines that are fair, transparent, and workable in the bill. To underline, this is something that will be open to discussion and consultation. I'd like to hear whether you think it's fair to have the ability to discuss with all players how those guidelines should work in the bill and that there is an importance in having that consultation under subclause 5(2).

To those who would say this is a done deal once the bill is passed, I would point out that the bill actually says to discuss those guidelines and to consult. Do you think that's a fair thing, or should we just say it's done, the bill is written, and we should just go ahead?

[Karyn Keenan]

I think it's actually subclause 5(3) that talks about the consultation. Subclause 5(2) is where the standards are discussed; then subclause 5(3) speaks to the consultation.

It's quite explicit, as you mentioned. It enumerates the different actors and sectors that should be consulted, including government departments and agencies, and no doubt those who are affected by this legislation: representatives from industry and non-governmental organizations. It's quite broad, because it also includes the clause “and other interested persons in or outside Canada”.

As I mentioned earlier, there are a number of actors both within Canada and outside that have given a lot of time and attention to this issue. One that comes to mind is the Danish government. It has done a lot of work developing human rights guidelines for corporations that help to operationalize international human rights norms. It also has a highly developed instrument it applies to that end, which might be of interest to the Government of Canada when it's developing these guidelines.

I think it's quite explicit and comprehensive. I think because it's part of the statute it guarantees this process will take place and that it will be open, transparent, and, as you said, quite fair.

[The Chair, Conservative, Kevin Sorenson]

You have a couple of minutes left.

[Paul Dewar, NDP, Ottawa Centre, ON]

No, I'm good.

[The Chair, Conservative, Kevin Sorenson]

Then let me ask a question.

My question, which arises from all of this, and especially maybe out of our meeting on Tuesday, is about the political risk. I know you aren't here in any capacity as an elected official, but it seems when I read through this—“the Ministers shall receive complaints regarding Canadian companies”—that politically, corporate social responsibility is one of those banner principles that everybody expects.

In some respects, when you ask the average Canadian, the fear is that we can never do enough to guarantee corporate social responsibility. When a complaint is lodged with a minister, whether it's in this government or any other that may come along, the minister has a huge responsibility to show that he has done his due diligence in the matter.

On Tuesday, we heard that questions were asked of police forces in other countries, and they said there was nothing substantiating the charge that was put forward on certain committees. You have a politician, a minister, who recognizes sovereignty of other countries; he questions the government, the police force, and all those involved in that country, and the report comes back that there is nothing to substantiate this. But we still have an individual or an NGO who comes with this complaint, and it's in the media and the news. The minister is always going to be pushed that extra degree.

How big do we have to make a department to do this investigation? How much risk do you feel that this minister would have to undertake to prove that he's taken his share of the responsibility in following up these complaints? To dismiss a charge as being frivolous can have huge political consequences.

[Karyn Keenan]

Before I answer the question about how much a minister has to do to comply with his or her duty, I want to respond to something else you mentioned, which is about the sovereignty of other countries. You didn't explicitly say this, but I think the implication is that there may be difficulties in carrying out these investigations because we would be doing them in other countries.

I think this committee received a legal brief from Professor Richard Janda from McGill University that spoke to that issue and reminded us that the Government of Canada undertakes similar investigations on a range of issues and on a range of contexts that are mandated under other statues. Just to dispel any misconception that may exist that we don't do this or can't do it, it is certainly within our possibilities.

Moving to the other issue, which is how much you have to do to comply with your duty, I think the key here is making sure that this work is transparent and that the results of any investigation, including an explicit description of what steps were undertaken, is disseminated publicly—which is, of course, mandated by the statute.

No one expects a minister to continue with a complaint ad infinitum if it is clear that there's no evidence coming forward to persuade him or her that a complaint is valid. There's a degree of reasonableness with which this statute will have to be interpreted. But I think we have the capacity to sort out what that is. In the case where a complaint cannot be substantiated, that will be the finding.

And it will disseminated. I have every confidence in the ability of Canadian extractive companies to make sure those results are disseminated, not only to their shareholders but to the Canadian public at large, so that they can clear their names.

So I'm not concerned about those issues.

[The Chair, Conservative, Kevin Sorenson]

If there is an NGO or if there are individuals who came forward with a number of frivolous complaints over a number of years, should there be any sanctions against them?

[Karyn Keenan]

I think what would happen is that had the minister received seven or eight or nine frivolous or vexatious complaints from an NGO or another actor, the minister would clearly have some increased level of scepticism about that individual or group and perhaps could be more expeditious in investigating the nature of the claim. Perhaps under the statutorily mandated review process, such a provision would have to be included if the experience of the minister was that this was in fact happening.

But again, returning to my earlier response, I don't think this will happen. It takes a lot of work and resources to put together a claim of this kind, and if they were constantly being turned down because on their face they were frivolous and vexatious, I don't think this would be a very effective strategy for a group to employ, and I can't imagine that they would insist.

[The Chair, Conservative, Kevin Sorenson]

All kinds of things are possible, I guess, with a bill like this.

We'll just leave it at that.

Thank you very much for coming.

[Karyn Keenan]

Thank you.

[The Chair, Conservative, Kevin Sorenson]

I agree with Mr. Abbott, and I think with all of us; thank you for bringing your well-researched testimony on this bill. We appreciate your being here.

We're going to suspend for a few moments to allow CIDA to take the chair.

[The Chair, Conservative, Kevin Sorenson]

In the second portion of our meeting today we're going to continue with the study of Bill C-300.

We have before us, from the Canadian International Development Agency, Mr. Christopher MacLennan, director general of the thematic and sectoral policy directorate; Bill Singleton, senior economic policy advisor to the strategic policy and performance branch; and Hélène Giroux, director general for South America and Americas geographic programs branch. We welcome you.

I understand you have an opening statement. We will look forward to that, and then we'll move into the first round of questioning.

Mr. MacLennan.