Subcommittee on International Human Rights Committee on April 13th, 2021

[The Chair, Liberal, Peter Fonseca]

Welcome to all the members, the clerk, the analysts, all the staff, all the interpreters and everybody who makes this happen. Thank you to everybody. I hope everybody is recharged from the break.

This is meeting number 15 of the Subcommittee on International Human Rights. Today we meet to hear from Dr. Penelope Simons in view of our study of the role of the Canadian ombudsperson for responsible enterprise.

To ensure an orderly meeting, I'd encourage all participants to mute their microphones when they're not speaking and to address all comments through the chair. When you have about 30 seconds left in your time of questioning, I'll flash a card. I think everybody knows about it. I think that's it.

Dr. Simons, there is interpretation in English or French available in the globe icon at the bottom of your screen if you require it.

Members, this first session with Dr. Simons is going to go to 7:20. I'll try to figure out the timing on our questions so that it's all even and fair.

Now I'd like to welcome our witness for the first panel: Penelope Simons, associate professor at the University of Ottawa, who is appearing as an individual.

Dr. Simons, I now invite you to make your opening statement for up to five minutes. You have the floor.

[Dr. Penelope Simons, Associate Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual]

Thank you very much, Chair.

Thank you very much for inviting me to testify before this committee on this really important issue.

I have been working on issues of corporate accountability in the area of resource extraction for over two decades. I was a member of the Canadian assessment mission to Sudan, also known as the Harker mission, which was sent by Lloyd Axworthy to investigate allegations of grave violations of human rights perpetrated to protect the business assets of the consortium of which the Canadian oil company Talisman Energy was a part.

I want to talk today about the right to an effective remedy. Canada has an obligation to provide effective remedies for victims of human rights violations, including violations that are committed by private actors such as business enterprises.

The right to an effective remedy is widely recognized as a fundamental human right. It's been enshrined in a range of core human rights treaties that Canada has ratified. It's not only a rule of customary international law but an erga omnes obligation. What does that mean? It means it's owed by states to the international community as a whole.

The obligation to provide an effective remedy is an essential aspect of the state's obligation to protect human rights, so states not only have to respect and fulfill human rights but also have to protect human rights. That means they have to take steps to prevent private actors such as business enterprises from violating or becoming complicit in violations of human rights.

Where those violations occur, or where they are alleged to have occurred, the state has a duty to investigate. This includes taking appropriate steps through judicial, administrative or legislative measures to provide an effective remedy, including where corporations are based within a state's territory or are subject to its jurisdiction and engage in activities that have a direct and reasonably foreseeable impact on the human rights of individuals or groups in other states.

This obligation was recently recognized, as you probably know, by the Supreme Court of Canada in the Nevsun case.

Non-judicial remedies play a fundamental role in ensuring the right to an effective remedy, so states have to, as part of a comprehensive state-based system for remedy of business and human rights obligations, have not only judicial remedies but also non-judicial remedies. They fill a crucial gap where a judicial remedy is not required or chosen, or where perhaps there is not a cause of action that relates to the substance of a complaint, or the complainant doesn't have the resources or the capacity to bring a complaint.

Non-judicial remedies need to be effective in order for a state to meet its obligation under international law. You can't just create a remedial mechanism. It also has to be capable of delivering an effective remedy.

In the case of CORE, the Canadian ombudsperson for responsible enterprise, the ability to engage in a credible, independent investigation of a complaint against a Canadian extractive or garment corporation—that is, the ability to ensure it has all the evidence before it before coming to a conclusion—is crucial to its being effective and to meeting this standard of an effective remedy.

Canada, with the current status of the CORE, is failing to meet its international human rights obligations in this regard. The effective remedy aspect was also confirmed by Barbara McIsaac in her legal advice to the government, in which she said that the effectiveness, as it currently stands, is going to be dependent on the co-operation of the complainant and the entity being investigated. This means the CORE's effectiveness may be compromised.

It's not only that it will be compromised. Making a finding of fact that isn't based on all the facts can be harmful because it will not reflect the full situation of the allegation. This is also harmful, not only for complainants but also for corporate entities.

Without the powers to investigate—in other words, to compel witnesses and documents—the CORE is just a replication of the Harper government's CSR counsellor, which failed to ever resolve a dispute. The only difference here is that it has a new name and a longer term.

This is also a reputational issue for Canada. Canada can't claim to be a champion of human rights when it fails to comply with its own human rights obligations and allows its corporations to operate with impunity and then also fails to provide effective remedy for those who are harmed by the latter's activities.

I will leave it there. I welcome your questions.

[The Chair, Liberal, Peter Fonseca]

Thank you very much, Dr. Simons.

Now we're going to move to questions from the members.

We're going to begin with the Liberals, with Anita Vandenbeld, for seven minutes.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Thank you very much, Professor Simons. As an Ottawa MP, I'm very happy to see a University of Ottawa professor here. Thank you very much for the work you've been doing on this issue.

I'm going to pick up on something you said in your opening remarks. It actually surprised me, because from most of the evidence and the testimony I have heard about the CORE, it's a good first step. It's new, and it's just now really starting to undertake the things it set out to do, but it's a good first step that needs to be improved. Your word was that it is “harmful”. You said that it's harmful not [Technical difficulty—Editor] victims of human rights abuses. You're suggesting it's also harmful to the corporations.

That's not something we've heard yet. Could you elaborate on that?

[Dr. Penelope Simons]

Absolutely. If a body is asked to investigate a complaint and it can't access the information, then it will come to a conclusion that is not based on the full set of facts. This can be, I think, detrimental also for companies, because it may come to a conclusion that the company has violated its responsibility to respect human rights or otherwise acted in a way that is harmful when in fact it might not have done so. Therefore, it can be harmful also to the company.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

What would be your recommendations, then? First of all, what are things that are actually being done right at the moment? What would be your recommendations in terms of how to improve the CORE?

[Dr. Penelope Simons]

I think the original plan was for the CORE to be an independent entity that could make credible investigations. It was supposed to have powers to compel witnesses and documents. This is how it could be improved. Allow it to engage in investigations in a credible way and come to conclusions about a situation with all the evidence before it.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

You also spoke about judicial, administrative and legislative measures that are under Canada's international obligations. Could you talk about where there might be some gaps in any of those areas?

[Dr. Penelope Simons]

Yes. Thanks for that question. I think you mentioned in your first question that the CORE has been talked about as being a first step. It's a good first step, by providing a remedy, in terms of addressing that aspect of the issue, but there's no legislation in place that requires companies to engage in human rights due diligence, for example, to prevent them from becoming involved in violations of human rights in the first place. We don't have effective incentive mechanisms set up in addition to human rights due diligence obligations that would encourage companies to take those preventative steps, for example.

What we really need in Canada is an overarching legislative framework that can address this variety of issues—preventative measures and remedial measures, not just simply remedial measures.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

The CORE is a good first step. It needs to have more powers. It is one part of a much larger set of policies and mechanisms that are necessary and that you're suggesting would also need to be improved and added to.

[Dr. Penelope Simons]

Yes. That's exactly right.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

I also want to ask about the impact on women. I've worked in the Democratic Republic of Congo and I've seen the direct link. The women themselves have drawn a direct link between the mining activities and the companies, and the human rights abuses and the sexual violence that they experience.

Can you tell us if there are ways, certainly with regard to the CORE but also other mechanisms that Canada can use, to ensure that there isn't an indirect link? We were talking about direct links, when companies are actually doing something, but there's that indirect link between the militias and other groups that are battling over the resources, and then the resulting sexual violence that occurs. I'm wondering if you could comment on that.

[Dr. Penelope Simons]

That's a great question.

First let me say that it's important to understand, too, that sexual violence does not occur only in areas of conflict. It actually is a risk that follows large-scale resource extraction everywhere. It doesn't matter if it's in Canada or in other countries, there's a high risk of sexual violence. That means that, for any kind of regulatory measures that are in place, if you put in place human rights due diligence, you have to ensure that it takes into account the gender impacts of resource extraction and the risk of sexual violence in this context. If there's a human rights impact assessment done, there has to be a gender impact assessment that is part of that human rights impact assessment.

The whole legislative framework would have to take that into account. If the CORE were investigating allegations of something that happened in another country, she would also have to take into account the differentiated impacts on women and particularly this risk of sexual violence.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Is that part of the CORE's mandate—

[The Chair, Liberal, Peter Fonseca]

Thank you.

We'll move to MP Chiu from the Conservatives for seven minutes.

[Kenny Chiu, Conservative, Steveston—Richmond East, BC]

Thank you, Professor Simons, for coming to speak with us.

I'd like to start with your book, The Governance Gap, which makes this conclusion:

...legal and other non-binding governance mechanisms...are incapable of systematically preventing human rights violating behaviour by transnational corporations, or of assuring accountability of these actors or recompense for victims of such violations.

It also contends that “home state regulation...has a crucial role to play in regulating such conduct.”

Would you say that this applies very well in the case of the CORE? If so, how would this apply to the CORE?

[Dr. Penelope Simons]

Thank you for that. Thank you as well for reading my book.

That's a very good question, but I think probably the first statement you made does not say “legal” mechanisms. I think what we were arguing for in that book was that we need to go beyond self-regulation, that self-regulatory initiatives are incapable of ensuring, in any systematic way, that companies do not become complicit in violations of human rights.

The second statement you read was that the home state has an important role. We were arguing in that book, and I think it's a really important thing, that if we are going to start to change the human rights impacts of business, then home states need to start regulating their corporations when they're operating overseas. That would entail, as I said to MP Vandenbeld, having a comprehensive legislative framework that ensures there are preventative measures in place but also effective remedial mechanisms for private actors.

[Kenny Chiu, Conservative, Steveston—Richmond East, BC]

Thank you.

You might have already addressed [Technical difficulty—Editor] provided with MP Vandenbeld earlier, but what regulatory framework—

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

I apologize, Mr. Chair, but the interpreter just said that the connection was poor, which was preventing them from doing their job. I don't know whether this has been resolved. Could the interpreters tell us whether it has been resolved?

[The Chair, Liberal, Peter Fonseca]

Mr. Clerk, can we see about correcting that? Is it the way the mike is positioned?

[The Clerk of the Committee, Mr. Naaman Sugrue]

Mr. Chair, we're not sure if it's on Mr. Chiu's end or ours. Perhaps I'll ask him to move his mike a little bit closer to his face and we'll make another attempt.

I'll continue to investigate.

[Kenny Chiu, Conservative, Steveston—Richmond East, BC]

Mr. Chair, I'll proceed with the questioning. If you or the members have any connection or audio problems, please let me know.

What regulatory framework would you propose in place of the CORE? What changes could be made to make the CORE more effective? I suppose the second part of that question was kind of addressed earlier, but if you wouldn't mind expanding on it, that would be great.

[Dr. Penelope Simons]

Yes. I don't think it's an either-or situation.

The CORE could play a role in any framework of legislation by providing, with the appropriate powers, an effective non-judicial remedy for this, but as I think I said before, you need measures that prevent companies from engaging in human rights due diligence. You may or may not be aware, but there's a lot going on in Europe now, where states are putting in place or contemplating putting in place mandatory human rights due diligence obligations for companies that are operating abroad.

This is something that Canada should definitely put in place as part of its framework, but also a range of different mechanisms that could incentivize companies and could allow private actors to hold companies to account. It would allow better access to Canadian courts and also allow bringing claims to a CORE with the appropriate powers and sanctions for companies that have become involved in some of the worst violations of human rights, such as, for example, those [Technical difficulty—Editor] Sudan many years ago.

[Kenny Chiu, Conservative, Steveston—Richmond East, BC]

Thank you.

I'm glad that you bring up some of the examples you mentioned. Could you please take a moment to elaborate on your experience in the Sudan in studying Talisman Energy?

[Dr. Penelope Simons]

Okay. I could tell you a little bit about that.

We were sent there to investigate these grave allegations of violations of human rights. We found, in fact, that public security forces that were protecting the assets of the consortium, the Greater Nile Petroleum Operating Company, of which Talisman was a 25% shareholder, were perpetrating terrible violations of human rights.

They engaged in a scorched-earth policy. They were forcibly displacing people. They were murdering people. They were raping women. They were abducting women and children, and they were burning villages and looting. They were also committing violations of humanitarian law and international crimes.