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.