Evidence of meeting #22 for Foreign Affairs and International Development in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-300.
A recording is available from Parliament.
Prof. Audrey Macklin
It is directed at government support for projects. Whether that has the effect of bringing a project to an end, I simply couldn't say.
Conservative
Jim Abbott Conservative Kootenay—Columbia, BC
Okay, let's imagine for just a second that EDC was to withdraw $22 billion to $24 billion—that's with a “b”, as in billion dollars—in export funding that's backing up and supporting these exploration companies in a 12-month period. Do you think that might shut down a couple of projects, if not the vast majority of the projects that would have been the recipients of the $22 billion to $24 billion?
Prof. Audrey Macklin
Well, I guess I would meet your question with a question: Is Canada obliged to fund projects that are contrary to the principles it claims to hold regarding human rights, voluntary principles, security...? We have no obligation to give money.
I don't know the example that you're providing. I know that not that many companies--lots of companies don't--rely on EDC funding, frankly. So what they would have to do is seek funding from elsewhere. A lot of those other places where they might seek funding have their own principles--like the voluntary principles, like the equator principles--in place. They would have to meet those principles, they would have to meet those guidelines, with some other funder. If they can meet them, that's great. If they can find a funder who won't impose those requirements, well, then, I guess they can.
Conservative
Jim Abbott Conservative Kootenay—Columbia, BC
But, Professor Macklin, EDC's testimony.... If you had the opportunity to review the testimony that was made at this committee, you would understand; those are the standards that EDC is currently applying.
The difficulty is that in the legislation, in Bill C-300, the fact that EDC would be obliged to withdraw the funding that they had already committed puts them in an impossible position that they cannot go ahead and commit it in the first place. The worst possible time for EDC to be withdrawing funding is if a corporation happens, for a period of time, over a period of events, to be in non-compliance. That's the worst possible time, because the pressure that EDC can bring, on behalf of the Canadian people, is that we will withdraw. Under Bill C-300, they would be forced to withdraw. That forcing of a withdrawing is at the worst conceivable time. When they could be bringing financial pressure on the corporation, all of a sudden they have to withdraw; in fact, I submit to you that they would not be doing it in the first place.
Now, $22 billion to $24 billion is not an incidental amount of money. That's far more than anybody in this room can imagine. To suggest that withdrawing $22 billion to $24 billion of support by EDC in a 12-month period from the external exploration companies will not shut down some of the projects....
I don't want to be harsh, but I think that's kind of naive.
Prof. Audrey Macklin
If there are projects that EDC is funding that are perpetrating or are complicit in significant human rights violations, I would suggest to you that it is not in the Canadian public's interest to fund them. But--
Prof. Audrey Macklin
Let me finish my answer.
Under Bill C-300, as I read it, there is a space between complaint, investigation, and outcome that is available to be developed through, as I read it, the regulations and guidelines.
So it's not, as I read it, self-evident, as you suggest, that if a company is non-compliant, therefore these consequences must immediately follow. I could well imagine, and it appears to me just as a matter of statutory interpretation, that there is room in this legislation for saying, “You are falling out of compliance, so what is it you can do at this point to bring yourself back into compliance?”, or, “We will grant you this period of time to bring yourself back into compliance, and if you do not do so, certain consequences may follow.”
But it is not obvious to me, on reading this, that it is complaint, assessment--
Conservative
Conservative
The Chair Conservative Dean Allison
That's all the time we have. We're over time.
We're going to move to Mr. Pearson.
Liberal
Glen Pearson Liberal London North Centre, ON
Thank you, Chair. I will share my time with Mr. Patry.
I have an observation, and it's for Mr. Shrake. I just wanted to welcome you to Canadian political football. That's the way it works up here.
Chief Executive Officer and President, Pacific Rim Mining Corp.
I think it works the same way everywhere.
Liberal
Glen Pearson Liberal London North Centre, ON
Yes.
I think you've been a very good witness and a gracious witness. We realize the spot you're in. I think, when Mr. Dewar said—I don't know if he's technically correct or not—that this doesn't apply to you, it definitely does apply to you morally. We had somebody before this committee who had castigated your company and others, and I think you have every right to come to this committee to set the record straight.
Liberal
Glen Pearson Liberal London North Centre, ON
So I thank you for doing so, and in such a humble fashion.
Liberal
Glen Pearson Liberal London North Centre, ON
Yes, I know; I know, Paul.
The other thing I just want to say is that as somebody who's worked a lot overseas, in Sudan and other places, I believe in a lot of what Canadian companies do, and companies in general. I just think in this particular situation, my own opinion is that if Bill C-300 would have existed, you wouldn't have been in this spot.
Thank you, Chair.
Liberal
Bernard Patry Liberal Pierrefonds—Dollard, QC
Thank you.
I have just one comment for Ms. Macklin.
Ms. Macklin, you were one of the members of the round table. And on the round table you say one of the conclusions was the creation of an ombudsman with a lot of power, mainly in the investigation part. If they're coming out with a follow-up, and you see the recommendation to now create an ombudsman without any power at all—I mean, c'est une coquille vide, there is nothing in that ombudsman—do you really feel that if we had this ombudsman with powers of investigation, we'd still need Bill C-300?
Prof. Audrey Macklin
You're asking me to answer a hypothetical that I'm not sure I can completely answer. But it seems to me that with a proper investigatory power, which has to be properly resourced, then you are not just able to produce the kind of investigation and documentation that enables a reasoned response, but you're also able to satisfy all the parties—corporations, NGOs, civil society—of your credibility and legitimacy.
And it is crucial that whoever does this is sufficiently resourced and sufficiently skilled both to do the job competently but also to secure buy-in; that is, a feeling of credibility and legitimacy between both corporations and civil society. It certainly will not do to only have the approval, as it were, of one or the other of them. And that requires, certainly, an investment of energy, resources, competence, and so on, that have to go into things like investigation. And those, in my experience doing that, require expertise, independence, and resources.
Liberal
Liberal
John McKay Liberal Scarborough—Guildwood, ON
I just wanted to pick on the voluntariness of the CSR counsellor, because I don't think there is anybody around this table who wouldn't agree—well, maybe the government doesn't agree—that an ombudsman would be preferable. As I've said publicly, and I'll say it again, I'd withdraw my bill in a heartbeat if in fact the government introduced legislation that would implement the provisions of the round table. And then there would be a forum for the issues that Mr. Shrake and others would like to raise to be dealt with in a fair and open and transparent process that is consistent with the principles of natural justice.
Rather than being a pile-on or outrageous or all of these sorts of things, this actually then becomes a forum, if you will, a clearing house.
The problem—and I will ask you specifically, Professor Macklin, to comment on it—is with respect to the CSR counsellor, because no matter how well resourced she is, no matter how well intentioned she is, she still has to get Mr. Shrake's company to volunteer to an investigation. And while Mr. Shrake may be of good faith today and say he'll permit an investigation, he may have different legal counsel who would say “No, there is nothing in it for us”. Or the investigation may commence and at some point or another the company may withdraw its consent. Or the CSR counsellor gives a draft report to counsel for Mr. Shrake, and they don't like what they see and the consent is withdrawn.
So it seems to me that what the CSR counsellor is mandated to do is substantially at variance with what Bill C-300 proposes.
I'd be interested in your comments. And perhaps you could relate it to Mr. Shrake's situation, because I don't think there is anybody around this table who doesn't sympathize with his situation. And certainly Professor Steiner, when he made the comments he made a few weeks ago, I view them as comments made in good faith. He's not off-the-wall wacky.
Prof. Audrey Macklin
We're just not in a position to assess them, and I say that with no disrespect to Mr. Shrake. The whole point is that we can't make any assumptions here. We don't have the information, we haven't done the investigation. So we can't begin with the starting point that of course Mr. Shrake's view is correct and of course Mr. Steiner's view is a pack of lies. I'm simply not in a position to say that, and I don't think anybody around this table is in a position to say that. Though it may turn out to be the case, I just can't say it.
As for voluntariness, I think that would just gut the effectiveness of the counsellor. I don't think the idea that you only have to participate in the investigation on a voluntary basis is going to be productive.
Although Mr. Shrake can speak about his own willingness to participate, I suspect that the calculus that different actors make is going to vary. It's going to really hamper the ability of this body to establish itself as credible if nobody is going to participate in it. And then what happens to the accountability that is at the root of this, which is to say, don't we think that people and companies that receive government support ought to be accountable in a meaningful way for the funds they receive? EDC's capacity and the CSR counsellor's capacity to hold them accountable with their existing processes are simply inadequate. I don't deny that they are attempts or desires or are directed at the idea of accountability, but for various institutional and procedural reasons they simply aren't up to the task. Recognizing that, my view is that Bill C-300 offers a more effective mechanism of accountability. Why wouldn't we all want companies to be accountable for the receipt of Canadian funds in the same way that we want NGOs, civil society, and all other organizations that are the beneficiaries of government support to be similarly accountable?
