Foreign Affairs Committee on Nov. 17th, 2009

[Donald Raymond]

Better than walking away, yes.

[John McKay, Liberal, Scarborough—Guildwood, ON]

In theory, then, these kinds of investments could carry on for years, without any real progress. There's no consequence. There's ultimately no consequence.

[Donald Raymond]

As I say, we do view it in a risk-return context. If we do believe the risk is too high, we will alter our investment position.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I appreciate PDAC's work. I'm pleased that you've instituted these e3 things, and I'm happy to note that your institution of this e3 proposal comes a month or two after Bill C-300 was deposited on the floor of the House.

What I found curious about your testimony, Mr. Andrews, was that it only constitutes six complaints a year. I don't know, but to my mind that is a lot of complaints. To take a poor analogy, should we have no legislation about shootings because in the city of Ottawa, a million people, there are only six people a year who are actually shot? I wonder how you arrive at six a year, because I have eight here, and we haven't even worked anything up. I'd be interested in your comments on that.

[The Chair, Conservative, Kevin Sorenson]

Thanks, Mr. McKay.

Ms. Brown.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Thank you, Mr. Chair.

I have a very quick question for the CPP Investment Board. Were you consulted on the creation of this bill?

[Ian Dale]

Not directly, but we've been following the development of the bill.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

You weren't consulted when this bill was being crafted.

Mr. Andrews, were the prospectors and miners consulted during the creation of this bill?

[Anthony Andrews]

Not at all.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Mr. Wisner, as the legal expert, do you think they should have been consulted in this process? Can you comment on why they weren't?

And I have a follow-up question. What position does this put Canada in under international law?

[Robert Wisner]

Thank you.

I don't know why they were not consulted. That may be a question for Mr. McKay. The explanation I've heard from time to time is that this is simply following from the round table process. But there's a fundamental difference between what the round table advisory group recommended and what this bill does. The advisory group report recommended a non-governmental body that may facilitate the resolution of disputes triggered either by NGOs or by companies that have issues with NGOs. To some extent, the CSR counsellor is very much along the lines of that recommendation. This is a very different approach. As you've heard from Mr. McKay's comments, it is a type of criminal approach that attempts to punish people rather than bring them together. That's my first comment in terms of the consultation.

In terms of international law, I'm not aware of any country in the world that has any legislation similar to this. I have gone through the report of Professor Janda, who tried to come up with some examples in his report. I don't find that any of those examples are anything similar to what this bill does.

Today Mr. Dewar mentioned Norway, for example, but as it's been described, the Norwegian legislation only sets conditions on government assistance or investment. This bill goes much beyond that. It's not just setting conditions on government assistance; it's passing laws that apply in other countries to non-Canadian companies. No country in the world does that without protest from Canada.

The closest thing is when the U.S. passed the Helms-Burton amendment saying that Canadian subsidiaries of U.S. companies can't trade with Cuba. That's widely recognized as something that was illegitimate, that we protested was not in accordance with international law.

[The Chair, Conservative, Kevin Sorenson]

Mr. Wisner, on that point, does the Norwegian law dictate only that no government dollars of Norway would be invested in that corporation, or does it dictate that no Norwegian investment at all will be done in that corporation?

[Robert Wisner]

As it's been described in the Janda report, that Norwegian legislation is very similar to provisions in the EDC act, for example, which sets conditions on where the government will put its money. It's not setting standards for Norwegian companies abroad; it's a very different type of mechanism.

[The Chair, Conservative, Kevin Sorenson]

Mr. Andrews, you wanted to answer that.

[Anthony Andrews]

Yes, I want to respond to Mr. McKay's comments. He alluded to a connection between the launching of e3 Plus and Bill C-300. In fact, e3 Plus had a predecessor called e3—you may not have known that—which was launched in 2003.

In terms of the six allegations per year, all we were doing was trying to put this problem into context. This whole debate, which started with the SCFAIT prior to the CSR round table report, is being characterized by a lack of a systematic fact base. That was our attempt to put some data around this. It's six allegations a year, not complaints, that we feel could adequately be taken care of by an ombudsman function, without assuming the risk that the Bill C-300 process would involve.

One thing I would like to point out on the issue of consultation is that the advisory group report of the national round table process had a very important recommendation. It was the very last recommendation, and that was on the formation of a multi-stakeholder advisory group to continue the process. A specific role they would play would be helping to take these concepts that came out of the report to try to operationalize them. This process certainly wasn't applied to Bill C-300. Bill C-300 recommends something entirely different from an ombudsman. It really is against the spirit of the advisory group report, and it's very disappointing.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Andrews.

Our time is up for this first panel. If you notice on the agenda, it goes until 10:25.

We want to thank each one of you for coming and bringing your testimony to our committee today, and for helping to show us some of the areas where you have your concerns. We're going to suspend just momentarily, allow you to leave your place, and invite our next guests to the table.

We welcome back the North-South Institute and Viviane Weitzner, the senior researcher, trade and natural resources. She has a guest with her. We would encourage you to avail yourselves of the translation if you need it.

We look forward to your comments, Ms. Weitzner.

[Viviane Weitzner, Senior Researcher, Trade and Natural Resources, North-South Institute]

Thank you very much.

It is a privilege to share with you today the North-South Institute's views with respect to Bill C-300, proposed legislation that takes critical steps towards Canadian government accountability in the extractive sector overseas. By way of background, the North-South Institute is an independent, non-partisan think tank that conducts research designed to inform policy development, stimulate public dialogue, and support efforts to reduce poverty and inequality.

Since 1998, the institute has been involved in research examining issues at the crossroads of corporate social responsibility, human rights, and the extractives. In light of growing investments by Canadian extractive companies in Latin America and the Caribbean in the late 1990s and increased reports of severe conflicts in areas that are the homelands of indigenous and tribal peoples, in 2000 the North-South Institute launched a collaborative research program highlighting indigenous and Afro-descendant perspectives respecting appropriate processes for consultation and decision-making in this region.

My talk today will draw on this extensive research program. I will use two specific case studies to highlight the need for the mechanisms established in Bill C-300 and to show that this bill takes some important steps forward in light of the challenges and realities faced by the communities affected by the Canadian extractive sector overseas.

The first case I will talk about is that of Colombia. I want to acknowledge the presence here today of Carlos Rosero, of Proceso de Comunidades Negras, a national Afro-descendant organization that is one of our research partners in Colombia. I encourage you to address any questions about the Colombian situation to Carlos during question period; we have provided translation services for this purpose.

On paper, Colombia has one of the most progressive regimes in the world with respect to constitutional and legislative protections of indigenous and Afro-descendant rights. In practice, however, indigenous and tribal rights are violated on a regular basis. Indeed, despite official reports that the Colombian armed conflict may be lessening, the reality is that for indigenous and Afro-Colombian communities the conflict is intensifying. There appears to be a direct link between increased violence in indigenous and Afro-descendant communities and interest in natural resources, particularly minerals and metals. Here are concrete and recent examples involving the communities and organizations NSI is partnering with.

On October 22, a paramilitary group faxed a written threat identifying organizations and several leaders of Afro-descendant communities in the municipalities of Buenos Aires and Suarez as targets for military action in light of their "not letting in multi-national companies that will bring benefits to the communities".

Far from being anti-mining, these are communities whose primary economic activity is artisanal mining, but whose lands and work areas are being concessioned or sold off to large-scale companies, and who are facing in-migration from small-scale miners, including demobilized paramilitaries. In the wake of new changes to the Colombian mining code, black communities undertaking artisanal mining in this area since the 1600s are now facing the possibility that their mining will be declared illegal and that they will be forcefully evicted.

I know of at least one Canadian junior whose activities are adding to the pressures in this area and whose activities have not involved prior consultation with the Afro-descendant communities, as required by ILO Convention 169 enshrined in Colombian legislation, or free, prior, and informed consent, upheld as a minimum standard in the UN Declaration on the Rights of Indigenous Peoples, which is supported by Colombia.

Indigenous communities and their leaders are also the target of increased violence, even at the hands of local police. For example, on October 26, the Resguardo Indígena de Cañamomo Lomaprieta—an indigenous reserve, and one of our research partners—was subject to an attack in which four masked and armed men interrupted an afternoon soccer match and shot and wounded an 84-year-old and a 26-year-old man. Later, it was revealed that these armed men were members of the local police, who were later released. This event demonstrates not only the lack of protection by the police force, but the abuse of human rights indigenous peoples suffer, despite their clearly protected rights through legislation and special measures put in place by the Ministry of Defense.

Importantly, the collective territories of this reserve, together with the lands of the Afro-Colombian communities with which we are working in Cauca area, are within a large exploration concession area granted to a South African multinational that is in a joint venture with a Canadian junior.

Between March and April 2008, the indigenous communities of Cañamomo Lomaprieta experienced one month of fly-over exploration, including over sacred sites, without any form of prior consultation or consent. This created a variety of immediate negative impacts, including fear for personal safety.

Why am I telling you all of this? I am purposefully painting a detailed picture of the realities faced by indigenous and Afro-Colombian communities to highlight the extremely complex situation that doing business in Colombia entails from a human rights perspective. With the negotiation of the Canada-Colombia free trade agreement and active promotion of Colombia as a safe place to do business, there will be increased investment by Canadian extractive companies in Colombia, and the pressures and violence experienced by communities in Colombia will no doubt increase further.

The current CSR strategy of the Canadian government simply does not provide appropriate tools for navigating this complex situation. The voluntary principles on human rights and security target only one among a multitude of potential human rights violations in which Canadian extractive companies, and by extension the Canadian government, might unwittingly become complicit, despite best intentions.

The second case I want to touch on very briefly is that of Suriname. This is actually a stark exception to the claims Mr. Wisner made that all countries have in place detailed systems for accountability. Suriname is the only country in the western hemisphere where there is no recognition or protection of indigenous or tribal rights; it also has no legislation mandating environmental and social impact assessments. In short, Suriname provides a perfect litmus test from which to gauge the feasibility and effectiveness of voluntary initiatives in addressing human rights and environmental protection.

Since 2004, the North-South Institute has partnered with the Association of Indigenous Village Leaders in Suriname to support indigenous communities affected by proposed large-scale bauxite mining and related activities. The original proponents are members of the International Council on Mining and Metals, an industry association representing the world's largest multinational companies.

Our research has documented numerous instances in which these companies failed to implement their own or ICMM's policies and commitments. To cite one of the most egregious examples, the companies undertook advanced exploration in 2,800 square kilometres of primary rainforest, the traditional territory of the Lokono people, without any environmental and social impact assessment, contrary to company policies. The company has made several public apologies for this large oversight. However, saying “sorry” for not adequately protecting and mitigating social and environmental impacts in advanced exploration is simply not acceptable. It's also a harbinger of potential future practices and behaviour.

Our research in Suriname leads to two conclusions. First, left to their own devices, companies will try to get away with as little due diligence as possible, despite their own policies. Second, voluntary measures are simply not an effective means for protecting the environment or human rights.

[The Chair, Conservative, Kevin Sorenson]

I'm sorry for interrupting. Could I have you slow down just a little bit? We have translation back there, and they're trying to keep up.

[Viviane Weitzner]

Thank you for reminding me.

If even the world's largest and most well-endowed companies are not implementing their own voluntary commitments, there's little likelihood that Canadian juniors or companies will do so.

In the case of countries experiencing armed conflict, like Colombia, or countries like Suriname with large governance gaps, relying on voluntary mechanisms to protect human rights and the environment is simply not sufficient. While Bill C-300 cannot purport to address these realities in their entirety, it does offer an important mechanism with which to strengthen the current Canadian CSR strategy. Notably, Bill C-300 provides recourse to an investigation for communities that may have been subject to human rights violations by a Canadian company, whether or not the company consents to the investigation. This is currently not possible for the CSR counsellor, who is not authorized to investigate cases and can review them only with the consent of the company in question.

It also offers the Canadian government the possibility of withdrawing government, political, and financial support should an investigation lead to the conclusion that human rights violations did occur. In other words, it provides a mechanism for government accountability to the Canadian public and a stronger incentive for companies to respect human rights and environmental protections, particularly if they have received government funding, in contrast to the purely voluntary regime recently announced by the Canadian government.

It also offers the Canadian public some assurance that taxpayers' money will not be used to support extractive activities violating human rights and environmental protections, at least over the long term. Where a company is found to have violated human rights or environmental protections, it is not deprived of the chance to correct this behaviour and reapply for government funding.

Ultimately, Bill C-300 embodies the spirit and intent of the recommendations in the consensus-based document produced by the multi-stakeholder advisory group established under the Canadian round table on CSR process. If passed, Bill C-300 would bring the current government strategy in line with the outcomes of this public and democratic process. In addition, it would put in place mechanisms that would hold our overseas companies to account, as recommended by the UN Committee on the Elimination of Racial Discrimination. Finally, it would place Canada as a front-runner, rather than a laggard, in addressing issues of corporate and government accountability.

Thank you.

[The Chair, Conservative, Kevin Sorenson]

Mr. Rae.

[Bob Rae, Liberal, Toronto Centre, ON]

Thanks.

Ms. Weitzner, if you're familiar with the bill, under clause 4, how would you see the ministers carrying out the investigation?

[Viviane Weitzner]

There needs to be a streamlined process for figuring out whether the complaint merits further review. That needs to be developed. I think it's a process of figuring out together. This is a question of whether an advisory committee is in place to help guide that process. I believe it could be done.

I can't tell you right now what these steps would be. I think it's something we need to work out. But I think there could be some steps that would serve to take this forward.

[Bob Rae, Liberal, Toronto Centre, ON]

The minister doesn't do it himself.

[Viviane Weitzner]

No, I think there's talk of a potential ombudsperson. I don't believe this bill would preclude that possibility. It would also be possible to strengthen the current CSR counsellor to fulfill some of these functions. I don't think we're starting from point blank on this.

[Bob Rae, Liberal, Toronto Centre, ON]

So you could foresee the minister authorizing a process that would lead to a certain result within the eight-month period. Are you caught up in the eight-month period? Take your investigation in Suriname or Colombia. It would require gathering witnesses, getting people organized. Presumably, somebody authorized by the minister would have to travel to Colombia or Suriname.