Subcommittee on International Human Rights Committee on Feb. 23rd, 2021

[Emily Dwyer]

No.

When Canada announced the Canadian Ombudsperson for Responsible Enterprise, they announced that it would be the best in class, the first of its kind in the world. It actually isn't. When you look at what we have right now, because of the absence of those investigatory powers, it's actually quite dissimilar from the national contact point, where national contact points in other countries do investigate. So the CORE, or the idea of.... Another example of this kind of body that can compel documents and testimony internationally does not exist.

One point to quickly clarify is that it is based on other Canadian offices where this is the norm, and the power to compel documents and testimony would be vis-à-vis the Canadian company or documents under their control, not applicable to overseas companies and so on.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you very much.

[The Chair, Liberal, Peter Fonseca]

Thank you.

Now we're going to move to the Conservatives, with Mr. Reid, for seven minutes.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Thank you, Mr. Chair.

Ms. Dwyer, in your response to Ms. Khalid's final question, it sounded to me like you were contradicting yourself. You said on the one hand that we aren't best in class. You said other countries have investigatory powers in their parallel bodies, but then you also said that nobody has the ability to compel testimony or the turning over of documents. Maybe I misunderstood, but it sounds like there's a contradiction there. Could you clarify that?

[Emily Dwyer]

Sorry, I can clarify.

In Canada, ombudspersons' offices often.... It's commonplace to have the power to compel documents and testimony. What I understood the question from MP Khalid to be was whether there was an international ombudsperson's office looking at this as a human rights issue that had the power to compel documents and testimony, and that kind of example does not exist.

Where I was clarifying was that the ombudsperson's office, the CORE that we have today, does not have those powers. It has the power to offer mediation, to undertake reviews. It doesn't have robust powers to investigate, like those that were committed to in 2018.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Okay, that's very helpful. Thank you.

You mentioned that your organization had done draft legislation and had some position papers. I wonder if after this meeting is over, you could just pass those on to our clerk. I guess I'm really asking the clerk to contact you to get access to those. That allows us to treat them as having been entered into testimony.

[Emily Dwyer]

We'd be happy to do so.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Thank you. That's very helpful.

You said you caution stakeholders to be careful regarding approaching the ombudsperson, and it sounds to me like you think it's actually in some cases—I assume, for people who are outside of Canada—unsafe to do so. Perhaps I misunderstood you. Could you expand on that?

[Emily Dwyer]

Whenever impacted communities or human rights defenders launch an international complaint or speak out against corporate abuse, they face the possibility of risks and retaliation. In an examination of 250 specific instances filed at the national contact points around the world in a study looking at complaints since 2006, it was documented that in 25% of those cases, those bringing complaints faced retaliation for doing so, and over half of those retaliation cases were linked to mining, oil and [Technical difficulty—Editor] sector cases.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I see your point very clearly. Is there a security issue? Presumably the ombudsperson would not be turning this information over and would have a duty to anonymize the information. Is it the case that inadequate protections exist at this point for someone who has come forward?

If you don't mind, I have one more question about this. Typically, I think it won't be the exploited person; it will be some form of human rights organization intermediary that would be doing this. What are the appropriate remedies to make sure that one can safely and confidently approach the ombudsperson's office? That should be an easy fix.

[Emily Dwyer]

In finishing my point around the risk of retaliation, what impacted communities.... The assessment they will need to be making in bringing a complaint to any office is, given the risk of retaliation, is there a possibility of reward? Is there a possibility of remedy? Is it worth the risk in bringing a complaint?

Based on the experience we have with very similar offices in the past—the CSR counsellor's office, the national contact point—that didn't have the power to investigate, that didn't have the power to compel documents and testimony, that relied on companies voluntarily participating, the result there for impacted communities was no remedy, a waste of time and resources, and often a situation where they were put in more of a risk after bringing a complaint than before they came.

Our analysis is that exactly the same will happen with this office, the way it is currently structured.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I think of the famous example of Eleanor Roosevelt travelling through Russia and being approached by a prisoner there who presumably would have faced retaliation for having spoken to her. Despite the fact that she was well-meaning, she had no capacity to help in that situation.

What about some of the remedies that exist through our securities rules? For a publicly traded Canadian company—a company that trades on the Canadian stock exchange—to issue new shares or float a bond issue, if it is working overseas in the mining sector, it has to meet certain performance standards. It has to, for example, ensure that it's achieving certain labour standards in conformity with the ILO rules. It has to make sure it conforms with certain environmental standards, such as the use of properly maintained tailing ponds and reforestation efforts appropriate to the environment in place in that area, and there are a number of other such standards.

These are enforced by Canadian professionals who have professional standards to live up to, and if they don't report accurately, they'll lose their professional accreditations, so they have a very strong interest in doing that. If those reports aren't filed with the securities commissions, then it's impossible to refinance that company, giving a very strong incentive to comply with the rules.

Does this model, in your opinion, have any merit, and could it be expanded to cover some of the other areas you're describing, such as indigenous land claim issues?

[Emily Dwyer]

What is really needed is for the Government of Canada to act on its commitment to provide an office that can provide an oversight and investigation role—an independent, arm's-length body that has the powers to do so.

The rules around reporting at securities commissions.... I don't have the report at my fingertips right now, so I don't want to try to quote it, but I will send it to you afterwards. It's around the evidence of lack of adequate reporting, even under those rules. The evidence is that Canadian companies continue to be implicated in serious abuses in every corner of the world.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Okay.

I think I have time for one more question.

[The Chair, Liberal, Peter Fonseca]

Be very quick.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I'll be very quick.

You talked earlier about independent investigatory powers. Is that, in your mind, simply a synonym for power to compel testimony and the production of documents, or does it have some additional meaning?

[The Chair, Liberal, Peter Fonseca]

You have 20 seconds, please.

[Emily Dwyer]

It is an absolutely fundamental element of independent investigatory powers for this kind of office to have the power to compel documents and testimony. Often, really key information is in the hands of companies, and without the ability to require companies to provide those documents and testimony, it simply won't be part of the investigation, and the rest of the office will crumble. You can't make effective recommendations without information.

[The Chair, Liberal, Peter Fonseca]

Thank you.

We're moving to the Bloc now.

Monsieur Brunelle-Duceppe, you have seven minutes.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Thank you, Mr. Chair.

Good evening, everyone.

Ms. Dwyer, thank you very much for joining us this evening.

Your and your colleagues' activism helps shed light on the many human rights violations committed by businesses that are tarnishing our reputation and our values.

Ms. Meyerhoffer said she was certain of having enough powers and resources. However, only a few minutes ago, she said she had fewer than 10 employees working for her. What's more, she did not specify what her budget is. Am I crazy not to be reassured?

I did a bit of research very quickly before putting questions to you. There are 200 mining companies [technical difficulties].

[Emily Dwyer]

You were muted, Mr. Brunelle-Duceppe.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Did you hear the beginning of what I said?

[Emily Dwyer]

I heard the beginning only.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Okay.

Earlier, Ms. Meyerhoffer told us she was certain she had enough powers and resources. However, just a few minutes ago, she said that she had fewer than 10 people working for her, and she did not specify what her budget is. Am I right to be lacking reassurance in that respect? According to some quick research I did, there are 200 Canadian mining companies in Mexico alone.

How do you think we can believe that we have sufficient resources?

[Emily Dwyer]

I think we will need to see who will use this office with its current powers of investigation. Since 2014, the Office of the Corporate Social Responsibility Counsellor and the national contact point had the same recommendation powers to take away the Canadian government's support from companies. This kind of an office should be comparable to the Office of the Privacy Commissioner or the Office of the Information Commissioner in terms of the number of employees and budget.

I also think it would be important to look into the fact that, two years after its creation and despite its budget and its 10 current employees, the office has not conducted any investigations and has received no request for investigations. That's very surprising, and I don't think this is a good use of resources.