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

[Dr. Penelope Simons]

Yes. I absolutely don't think that they are sufficient or that naming and shaming is sufficient. That's what we've had in place for many years. We have policies. We ask companies to align themselves to certain multi-stakeholder initiatives or intergovernmental initiatives like the guiding principles, but they are not sufficient to prevent companies from becoming engaged or to ensure that Canada's reputation is protected as protector and promoter of human rights.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

You spoke earlier today about the impacts on Canada's reputation and whatnot. One of the things that you also spoke about is the harm that this would cause companies.

I've talked to a number of different NGOs or CSO representatives who have said that they are recommending to their populations that they not bring forward their complaints to the CORE, to the ombudsperson, because it actually could put them in danger, and there is no protection for them with the process as it stands.

Do you agree with that? Do you have any comments you'd like to make in that regard?

[Dr. Penelope Simons]

Yes, I do agree with that. For somebody to even mount a complaint to the Canadian ombudsperson, it's not going to be super easy, because it's going to cost some money. The other thing is that if it's not going to come to anything, if there's not going to be a full investigation with all of the facts, then it will not be worth their while.

You spoke about people who might be in danger: the human rights defenders who are protecting it or other people who might bring the complaint. There might be backlash against them, and there aren't protections for them.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Yes. We know that this disproportionately will impact indigenous people, women and people living in situations of poverty. I think that's something we need to keep in mind.

Very quickly, just to finish off, I'll ask one question about Minister Ng's testimony when she came before this committee. She was very vehement that the NCP is very different from the CORE, that it is a very different thing and that this is a much better situation.

I struggle to see how that is the case. Could you take a moment to talk about where those similarities are, but more importantly, maybe where those differences are?

[Dr. Penelope Simons]

Yes. The CORE, without the powers to compel witnesses, to compel documents and to engage in investigations, is not that dissimilar from the NCP. The CORE has a mandate so that it can advise companies. I don't think the NCP does that, but the NCP engages in mediation.

A CORE that doesn't have power to compel witnesses and documents can settle disputes only with the agreement of both parties participating and providing information. It's in no different a position than the NCP. I think there is a lot of overlap, in that the CORE isn't different enough without its powers to compel witnesses and documents.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

I know I'm running out of time, so I will cede my time.

I want to thank you very much. Your testimony today will make our report much stronger. I really do appreciate that.

[Dr. Penelope Simons]

Thank you.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Mr. Chair, I'll pass it back to you.

[The Chair, Liberal, Peter Fonseca]

Thank you.

We'll move to our second round, which will be five minutes of questions from each member.

We'll commence with MP Khalid from the Liberals.

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

Thank you very much, Chair.

Thank you, Professor Simons, for your very compelling testimony today. I just want to take a step back. We've been studying this issue over the past number of meetings. We're exploring what I think is ultimately the objective of the CORE, which is to prevent human rights abuses from occurring specifically on behalf of Canadian corporations as they operate around the world.

We look at the CORE and we look at the NCP as tools to use to lead to that prevention. Can you perhaps contextualize a little bit the court system and the litigation of these companies in the courts? What role does that whole scenario have to play within this model of prevention that we're trying to put into place in Canada?

[Dr. Penelope Simons]

I'm glad you're talking about prevention, because I think that's absolutely a key thing. As I mentioned before, we need to have measures like human rights due diligence in place to ensure that companies prevent. However, effective remedies also play in role in prevention in the sense that if you get a decision in the courts that holds a company liable for violating human rights and that requires it to pay compensation, then that liability and that precedent will have a preventative effect. The corporate accountability would have a preventative effect.

With the CORE, a report of an investigation that finds that a company has in fact violated human rights and engaged in whatever type of harmful conduct, and that gets that information out into the public and to the government, will also have a preventative effect. Companies will not want to be brought before the CORE, as it were, in a complaint, just as no company wants to get sued and have to go through the courts.

I think both of these mechanisms have the potential to have a preventative effect if, in the case of the CORE, it has the capacity to compel witnesses and documents.

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

Thank you for that.

Do you think that, as it currently stands, the court system would be a better route to remedy versus what the CORE is currently?

[Dr. Penelope Simons]

Unfortunately, it's very difficult to bring cases to the courts. I've participated in a number as an intervenor. Only a very few cases get to the courts. You have to actually be able to fit the harm into a particular cause of action. You have to have resources. You have to have a lawyer and all of that. It's expensive, it's complex and it takes a long time.

I don't think it's an alternative to a CORE that has proper powers, but it is a complement. Judicial remedies are at the centre of the right to an effective remedy, but they also require non-judicial remedies, like the CORE with appropriate powers, to engage in proper and credible investigations of violations of human rights.

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

Thank you for that. I really appreciate that clarification.

We've heard testimony here that the office of the CORE is very unprecedented in creating a space to define those remedies to hold companies to account. I'm wondering if perhaps you can guide us through other jurisdictions internationally that have put in similar offices or have led the charge on holding corporations to account that commit human rights abuses across the world.

[Dr. Penelope Simons]

A lot of western countries or members of the OECD have national contact points. Some of them are much more effective than the Canadian one, because they actually investigate allegations. The Canadian NCP has always held itself, even though there is a lot of leeway for NCPs in terms of deciding how to conduct themselves.... The Canadian NCP has always said, “No, we're just about mediation. We're only going to resolve the dispute. We're not actually going to investigate allegations as to whether a company complied with the OECD guidelines.”

I guess I would hesitate to say that the CORE is so unprecedented. If it had the power to compel witnesses and documents, then yes, it would be kind of a beacon of light in terms of holding companies to account. It's something we should have in this country, where we have so many extractive companies that operate across the globe and that do engage in human rights violations.

[The Chair, Liberal, Peter Fonseca]

Thank you.

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

Thank you very much, Dr. Simons. I appreciate that.

[The Chair, Liberal, Peter Fonseca]

Thank you, Dr. Simons.

We went a little over time, so we're going to move over to MP Reid for the Conservatives for five minutes.

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

Thank you, Professor, for being here.

I wanted to start with the erga omnes obligation you referred to. I had never heard of this before, but thanks to Wikipedia I now have three paragraphs' worth of knowledge.

I'm left with the impression that while “erga omnes” means that it's an obligation that is owed to everybody and owed by everybody, what I'm wondering is beyond that, in that these are not enforceable in any form. There's no special enforceability at this point. You'd have to create an enforcement mechanism for any kind of erga omnes obligation. Is that correct?

[Dr. Penelope Simons]

Erga omnes obligation is a kind of higher level of customary international law, and it's an obligation that is owed by states to the international community as a whole. What it does is give standing to other states that haven't been harmed by a violation of an erga omnes norm to bring a claim, perhaps in the International Court of Justice. It's not that you would have to create special mechanisms. It depends on who violates it, what the violation is and whether another state would be interested in bringing a claim against Canada, for example.

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

If a claim is brought, imagine a situation in which.... Well, let's use a real case. There was the Nevsun mine in Eritrea. Are you familiar with that case?

[Dr. Penelope Simons]

Yes.

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

I assume you are. It's come up in this committee a number of times, and of course it has gone to the Supreme Court.

Let's assume, then, that it's in Eritrea. That government is not going to bring forward a claim, because of course the accusation is that a state-owned enterprise that was a contractor was effectively engaged in the use of compulsory labour. Some other state brings that case forward.

Is it brought against Nevsun or is it brought against Canada?

[Dr. Penelope Simons]

In theory, I guess if one state violates an erga omnes obligation, then another state could bring a claim in an international tribunal.

I just want to distinguish between a private party bringing a claim against a non-state actor, a corporation, in [Technical difficulty—Editor] being able to bring a claim in an international tribunal such as the UN International Court of Justice in The Hague—

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

Unfortunately, Mr. Chair, the interpreter is letting me know that she is struggling to do her job. Out of respect for the interpreter, I think we should look into this.