Evidence of meeting #15 for Subcommittee on International Human Rights in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was core.
A video is available from Parliament.
Associate Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
I think this is what we're all talking about. If Canada were to put in place a legislative framework to require its companies to engage in human rights due diligence and then make sure that there are effective remedies, both through the courts and through a properly empowered CORE, then that would be getting much closer to Canada respecting or complying with its obligations.
Bloc
Alexis Brunelle-Duceppe Bloc Lac-Saint-Jean, QC
One of my colleagues asked a good question about prevention earlier. I no longer remember who it was, as all of my colleagues ask good questions.
What is behind one business committing violations and another one not committing violations? Is it a matter of business culture or simply of financial advantages? In short, according to you, as an expert on this issue, do businesses commit human rights violations because it pays to do so or does the behaviour stem from business culture? I don't know whether you understand my question.
Associate Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
Again, companies probably don't go out seeking to commit human rights violations, and some of them care greatly if their personnel or the contractors they hire or whatever become complicit or commit or perpetrate human rights violations.
I think what companies need to have in place—and this is one of the requirements of the United Nations guiding principles on business and human rights—is that the responsibility of corporations to respect human rights includes that they undertake human rights due diligence: that they look at what the risks are to the people, not to themselves; that they engage in meaningful consultation with local communities; and that they prevent and, if not, mitigate violations of human rights.
That would be what a company should do. They should put in place these internal processes. This is something that European countries are actually going to mandate of corporations.
Bloc
Alexis Brunelle-Duceppe Bloc Lac-Saint-Jean, QC
My next question may appear a little unusual to you. Do you think businesses would behave in the same way if the ombudsman had the desired coercive power?
Associate Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
No. I think it would start to have a preventative affect on corporate behaviour if the CORE could properly investigate, if it had the powers to compel witnesses and documents. Then it would have a preventative effect. That would help to ensure that corporations engage in better practices through, probably, human rights and environmental due diligence.
Bloc
Alexis Brunelle-Duceppe Bloc Lac-Saint-Jean, QC
As we say,
“money talks”.
Thank you very much for joining us, Ms. Simons.
Liberal
The Chair Liberal Peter Fonseca
Thank you, Mr. Brunelle-Duceppe.
MP McPherson will be our last questioner for five minutes.
NDP
Heather McPherson NDP Edmonton Strathcona, AB
Thank you, Mr. Chair.
This has been a very interesting meeting. I always get the privilege of being the last person to ask questions, so forgive me if I jump around a bit.
[Technical difficulty—Editor] about whether or not judicial remedies are something that would be sufficient to deal with this. I think you spoke about the idea that they were insufficient because it is very difficult for those people who have suffered at the hands of mining companies to access those judicial remedies.
I also think that this is in fact why this government had put in place a CORE, an ombudsperson, to start with. I'm just wondering if you had any more comments on the reason for the CORE and, I guess, the fact that judicial remedies were always seen as not being sufficient for this.
Associate Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
Yes. Judicial remedies are of course central to the right to an effective remedy, but as I think you've mentioned, and as I've said before, too, they aren't sufficient because not every set of facts can be a tort claim. Harm that is caused will not be necessarily remedied through the courts.
Plus, there are all the other barriers. It's very difficult to bring a claim because many companies can bring a lot of motions to try to have the claim dismissed before it gets to the merits.
Having a CORE allows for investigation of complaints that would not be brought to the courts. We get a public document that comes to a conclusion about what happened and, if it had the powers, the CORE would be a good remedy alongside the courts, which are not sufficient in this situation.
NDP
Heather McPherson NDP Edmonton Strathcona, AB
Following up, I'd just ask for a little more clarity on one of the questions my colleague from the Bloc asked. We heard from Export Development Canada about what they could withhold from companies who weren't acting appropriately and what the CORE could withhold from companies who weren't acting appropriately. You spoke about how, if we did have a good CORE ombudsperson, they actually would make a change in behaviour.
Do you feel that the sanctions, or the disapproval, I guess, of either EDC or the CORE ombudsperson, are sufficient to...? Do you feel that companies really care about whether or not that is withdrawn?
Associate Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
For some companies, it will be important to have that withdrawn, but it's important to remember that the CORE can only recommend to Export Development Canada. Export Development Canada has to decide that it's not going to provide funding to a company. That's a problem. As well, it will only hit certain types of companies. There will be other smaller ones, such as junior mining companies, that won't necessarily be getting export development money when they're operating overseas.
It's not sufficient. It's a start. It's something that's important to have in place, but no, it's not enough. I think there have to be other sanctions.
NDP
Heather McPherson NDP Edmonton Strathcona, AB
One of my big concerns and one of the things I see all the time is that companies change their names and use subsidiaries. They avoid being able to be held to account through some of these mechanisms.
You talked a little bit about what was being done in Europe and how some countries around the world are doing a much better job of holding their companies to account and ensuring that their companies are going beyond the bare minimum to ensure that human rights are being protected within their supply chains or within their operations. We have only about a minute left, but can you very quickly talk about where you've seen great examples and about which countries this subcommittee should be looking at?
Associate Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
I think the first country would be France. They have in place this duty of vigilance law that requires companies over a certain size to take steps to ensure that they have a vigilance plan in place and to make sure that their subsidiaries, other contractors and other entities in the global supply chain do not violate human rights, etc. That's important to look at.
Germany is also looking at mandatory human rights due diligence laws. They basically gave companies a year or maybe a bit more for 50% of them to voluntarily engage in human rights due diligence. That didn't happen, which was unsurprising. They right now have some legislation going through their parliament on mandatory human rights due diligence.
The EU is also talking about this issue at an EU level.
NDP
Heather McPherson NDP Edmonton Strathcona, AB
Wonderful. Thank you so much.
Thank you for your testimony.
Liberal
The Chair Liberal Peter Fonseca
Thank you, MP McPherson.
Thank you, Dr. Simons, on behalf of the entire committee. We appreciate your taking the time to appear before us.
Conservative
Scott Reid Conservative Lanark—Frontenac—Kingston, ON
Before we let the professor go, could I make a request that she forward her information regarding France's model? I suspect that it would be very helpful.
Associate Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual
Okay.
Liberal
The Chair Liberal Peter Fonseca
Thank you, Dr. Simons. There's some more homework for you. Thanks for doing that for us.
Members, we will suspend now. Then we will come back in camera for committee business.
Thank you.
[Proceedings continue in camera]