Welcome back, colleagues, to meeting number 11 of the Subcommittee on International Human Rights. Today, pursuant to the motion adopted on October 27, 2020, we're beginning our study on the role of the Canadian ombudsperson for responsible enterprise.
Mr. Reid, I'm glad you found the link. Those are some of the transition pains.
I'd like to welcome our new clerk, Naaman Sugrue. He's no stranger to this committee. Naaman Sugrue was the clerk of this committee back in 2017 to 2019. Some of the members here—some of the vets like probably Scott, Iqra and Anita, and Jennifer I know subbed a number of times, and others—probably know Mr. Sugrue from being here.
As we get on to the meeting, to ensure an orderly meeting, I'd encourage all participants to keep their microphone on mute unless they're speaking. Also, I'll put up my regular 30-second sign when your time is coming to a close. I'll do that for the members and also for the witnesses.
For those who have not used this platform, on the bottom of your screen you'll see a globe. If you need interpretation services for English or French, please select the language of your choice on that globe. Also, please note that screen captures or photos are not permitted.
At this time, I'm going to have the opportunity to welcome our first guest of this first panel. From the Office of the Canadian Ombudsperson for Responsible Enterprise, or CORE, we have Sheri Meyerhoffer, ombudsperson.
You'll have five minutes for your opening statement, and then we'll move to members' questions.
You may begin.
Thank you, Mr. Chair, and thanks to the members of the subcommittee for your invitation. I appreciate your interest in the work we do and I'm eager to answer your questions.
Our office is the first of its kind in the world. I think Canadians should be proud of this, as well of our commitment to protect human rights abroad. In short, CORE, or the Canadian Ombudsperson for Responsible Enterprise, is the name under which we are known. Our mandate consists in investigating potential human rights violations in the context of the activities of Canadian businesses abroad in the clothing, mining, oil and gas sectors.
We are independent, impartial and transparent in our work. We are required to make public reports. We also have tools to initiate reviews, carry out investigations, conduct meditations and, if necessary, make proactive recommendations to the Minister of International Trade.
The idea of the CORE was announced by government in 2018. I was appointed to my role more than a year later. Our team is currently concluding what we consider our start-up phase. We are working from a blank slate. We are the first of our kind in the world. That meant consulting widely.
We engaged with more than 200 stakeholders. We developed and refined our operating procedures. We published policy briefs and statements. We listened to ensure that we were building an office that will make a positive difference in the world. Now, this winter, we have arrived at an important time for our team and for our mission.
In the coming weeks, we will be launching an online complaints portal. It's a way for people and communities to reach out to us. Anyone, anywhere in the world and at any time will be able to lodge a complaint by computer, phone, online form, email and even by letter. The online portal is easy to use. When a complaint is filed, it can be done so anonymously. If people or communities have an issue, they can make their voices heard and we will respond.
As with any new body or agency, the creation of CORE has prompted a lot of enthusiasm, but also a range of questions.
Specifically, I am often asked whether we have the tools we need to do our work. I would like my answer to be very clear.
I believe our office can make a real and positive difference now. We can respond to complaints and initiate reviews. We can engage in mediation and publish our findings. We can make recommendations for action and publicly issue follow-up reports on their implementation. In other words, we can help Canada promote and protect human rights, full stop.
I have tremendous pride in what CORE is doing and great belief in our potential. We are eager to begin our investigative work. Canadians expect their companies to respect human rights no matter where they operate. The creation of our office represents another example of Canadian leadership on the international stage.
Thank you. I look forward to our discussion.
I think my broadband might be a little bit slow tonight, so hopefully I won't freeze.
Thank you for your presentation.
I recognize that this is somewhat new, and it's great that the online complaints portal is beginning, but what have you designed in terms of how you will determine what complaints to investigate? I'm sure you will have many, but what's that threshold? What's that protocol? What are the key points that need to be hit to actually begin that investigation?
I have a follow-up question.
How will you determine a Canadian company in the sense of this globalized world? There are not very many borders anymore. I recognize the criteria around the industries that you're looking at, so that might be a little bit easier, just in the sense of head offices or where these companies maybe originated, but with aggressive taxation planning, companies can set up head offices or corporate headquarters around the world. Is there a broad definition to determine that to get away from...? In this case, it's oversight, but we see it elsewhere, usually for taxation purposes. Is there some thought that has been given, or consultations that were given, to look into that to make sure there aren't loopholes?
In terms of one of the processes, essentially, one of the mechanisms is naming and shaming, to put it in those terms, if you determine there are findings. Is there a process whereby you don't always name and shame? I used to be on the finance committee, and we talked about some of the financial mechanisms around the world and sometimes there are decisions not to name and shame and the justification.
Is there a protocol in place, or must you always provide that type of report? Do you have some sort of annual reporting for the investigations or the procedures that you've done, let's say in the course of a year, or something like that?
I am interested in the amount of investigative work you could be getting, because it's a new office, and in the coming weeks you'll be commissioning the online portal, making it very accessible for people around the world any time, anywhere, as you said.
Your vetting procedure and protocol must be quite stringent, because otherwise there would be so much work coming to CORE from around the world that it could be quite overwhelming sometimes.
I would like to say hello to Ms. Meyerhoffer and thank her for her testimony this evening.
This is certainly an important topic for Quebeckers and Canadians. There is a lot of pride in having companies that do business abroad, but unfortunately, certain events undermine that pride in some cases. We have a lot of testimony and reports listing some companies' questionable practices, and I have a question about this. Given that the office has been in operation since 2019, do you have any examples of cases you handle?
You provide mediation, but, I imagine, always with the desire to protect, to defend and to promote human rights, as you said. I don't know whether you have examples of cases that come to mind, without naming any names, of course.
It's been three years since the government announced the idea of an ombudsperson, but I've been in my role for a much shorter period of time.
We're the first of our kind in the world. No other country has tried to do this, so it's very exciting. We're working with a blank slate, and because Canada's reputation in the world is so strong and so important to Canadians, we knew we had to take the time to do this right. Apart from the logistical aspects of creating a new entity within the government, we knew it was essential to consult widely here in Canada and around the world. As I mentioned before, we engaged 200 stakeholders, and we've developed and refined our operating procedures.
To date, we have not received any complaints. We have not been open. We have been in the creation stage. As I mentioned in my opening remarks, we will be launching our online portal. At that point, we will be receiving complaints and we will be either mediating or doing reviews. There have been no cases to date.
When I say that we have the tools we need in our order in council, we have the ability to respond to complaints, initiate reviews, conduct investigations—either collaboratively or independently—engage in mediation, and make remedial and other recommendations and reports. Those are all the tools we have.
I'm confident that we have what we need to launch our complaints portal now. Yes, down the road, once we do the investigations, we may find that this needs to change. We may need to re-evaluate at that time. So yes, that's correct, but we have the tools in our OIC to get started on this, and we will learn along the way.
Thank you, Ms. Meyerhoffer, for coming today. I understand that you've worked in Alberta, and I welcome you to Alberta via my living room.
I have a few questions for you in terms of what you've been able to accomplish since the CORE was announced in 2018. You were put in place in 2019.
In 2019, my understanding was that you would be given the ability to expand your mandate within one year. What happened? Why was that not possible for you to do?
The CSR counsellor was embedded within the Department of Global Affairs and International Trade. There was a counsellor and, I believe, one other employee. We have a much larger human resources foundation. We are an ombudsperson office, and an ombudsperson office carries with it a number of internationally recognized attributes, one being that it's arm's length and independent from the department. We have that.
The NCP does mediation. However, not only can we engage in mediation, but we can undertake collaborative and independent fact-finding. We're required to file public reports. Under our mandate, we have to file reports.
We're also empowered to make recommendations to the regarding potential remedial measures. Remedial measures are what is under our order in council under the UN guiding principles on business and human rights. We are guided by that. The NCP is under the OECD guidelines for multinational enterprises. We have the additional...with the remedial.
There is a lot more breadth there than what we've seen under the CSR counsellor or under the NCP.
I want to thank you, Ms. Meyerhoffer, for being here today.
Ten years ago, I was working in the Democratic Republic of Congo. I was working with women's groups there who were working on a declaration about sexual violence in DRC. All of the women pointed to the mining sectors as the root cause—whether it was directly or indirectly—because of the armed conflicts over resource-rich lands.
When you begin to do your intake with your online portal, and also in the advice you give to companies, how do you anticipate that what you're doing is going to be different from what would have been available back in 2011? This is in terms of when abuses are occurring by Canadian companies directly, and also in terms of helping Canadian companies see the warning signs and be able to do the prevention needed to make sure that their activities don't result in indirect human rights abuses.
Ms. Meyerhoffer, I carefully listened to everything you said.
Your mandate is very broad: advising companies, providing mediation and receiving complaints. You talked about the portal where people will be able to file complaints.
I remember that, in 2019, Minister Carr commissioned an external legal review to determine the best way to provide the ombudsman with sufficient tools to carry out credible and effective investigations on presumed human rights violations. The report concluded that, without enforcement powers, CORE would not be as effective as it should be.
What do you think about that report's findings?
Good evening, everyone.
Thank you very much for the invitation to be here and for your interest in studying this vital issue.
I coordinate the Canadian Network on Corporate Accountability, the CNCA. We were formed in 2005. We bring together 39 organizations from diverse sectors across Canada, which collectively represent the voices of millions of Canadians from coast to coast.
We are calling for urgent action by the Government of Canada to address human rights and environmental abuses by Canadian companies operating overseas.
Our network was vital to the government's creation of the Canadian ombudsperson for responsible enterprise. In 2016, we published model legislation that was based on years of engagement with impacted communities and extensive research, and vetted by subject matter experts.
We engaged in good faith with the Government of Canada to help build a best-in-class model based on specific commitments critical to the future of the office's credibility. We stood with when he made the announcement of the CORE in 2018.
It is telling that today Canadian civil society, human rights organizations and labour unions are not standing up in support of this version of the CORE. To the contrary, we have had to issue warnings to impacted communities to approach this office with caution, if at all. We should be singing this office's praises, and there's a reason that we're not.
For years, hundreds of thousands of Canadians, organizations from diverse sectors and multiple United Nations bodies have called on Canada to implement effective mechanisms to prevent and remedy Canadian corporate human rights abuses overseas. The kinds of abuses we're talking about include threats, killings, bodily harm, gang rape, unsafe and exploitative working conditions, forced labour, failure to respect the rights of indigenous peoples and women, and serious environmental damage.
Instead of implementing effective mechanisms, Canada has relied on voluntary approaches, providing advice to companies about the expectation that they respect human rights, and sometimes offering mediation and mediation approaches, like joint fact-finding.
The experience with Canada's toothless mechanisms—the CSR counsellor's office from 2009 and Canada's national contact point for the OECD guidelines since 2000—demonstrates that this approach has not worked. When the CSR counsellor's office was closed in 2018, it had not resolved a single case. Canada's NCP, which is still in operation today, has also failed to investigate, prevent or remedy harm by Canadian companies operating overseas.
When it comes to effectiveness, the version of the CORE that we see today is not materially different from these failed offices. Without independent investigatory powers, the CORE will be equally unfit for purpose. Investigatory powers are the foundation of an effective ombudsperson's office, upon which the rest of the office's functions depend. Key information that's crucial to investigations is often held exclusively by companies, and it will not be offered voluntarily.
I would like to put clearly on the committee record that what I'm suggesting here is not a new ask, not a request to reform the CORE right before it opens its doors; it's a request to give effect to what the Government of Canada explicitly and publicly committed to in 2018.
From the Government of Canada website at the time of that announcement, I quote: “The Government [of Canada] is committed to ensuring that the Ombudsperson has all the tools required to ensure compliance with information requests—including the compelling of witnesses and documents”.
It's also a request to give the CORE the absolute minimum powers needed to do its job: the power to compel documents and testimony. These are powers that the Government of Canada's own external legal review, the McIsaac report, which was commissioned by Minister Carr in the spring of 2019—which I hope to table for this committee—confirms are needed and are within the federal government's authority to mandate. That report concludes that the federal government can provide the CORE with these powers and the office's effectiveness would be compromised without them.
It is urgent that communities and workers impacted by Canadian companies operating overseas have access to effective grievance mechanisms in Canada, particularly as there is often nowhere else for them to seek redress for harm.
We hope and expect that the current study at the subcommittee will lead Canada to fulfill its commitments, honour Canada's international human rights obligations, and empower the CORE to independently investigate.
I look forward to the opportunity to answer your questions and provide further information now.
Thank you very much, Chair. I appreciate that.
Thank you, Ms. Dwyer, for coming today.
You mentioned that the objective that was anticipated by you and many others from this organization, from CORE, and other renditions of it in the past hasn't been achieved. Obviously, this has been quite a long-standing issue as we deal with Canadian corporations going abroad.
What do you think are some of the challenges that the government faces in creating the kind of framework that you've advocated for in the past through the advisory body?
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.
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.
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.
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?
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].
The power to investigate is absolutely fundamental to this position. If you look at what an ombudsperson's office does, it does not issue binding fines; it does not send anyone to jail; it does not make any findings of guilt. What it does is independently investigate the facts and make findings of fact to help determine what happened, who was involved and how to prevent and remedy those harms.
If you can't get at the basic underlying facts of the situation, then you can't make public reports that make findings of fact. You can't make recommendations that are tailored to the facts of the situation to help prevent these things from happening in the future, and you can't adequately make recommendations for future law and policy reform to help prevent this or to adequately remedy it. Without the power to investigate, the office is entirely dependent on companies under investigation—companies accused of serious human rights abuses—voluntarily sharing information that may implicate them in abuses.
Impacted communities that our members have worked with for over a decade are looking for prevention of harm and remedy, to be sure, but they're also looking for acknowledgement of what they have suffered and a commitment for things to change in the future.
I think we can probably get to that answer, but I wanted to very quickly thank Ms. Dwyer for joining us today. It's incredibly important to hear your perspective, Ms. Dwyer.
I want to walk through a bit of a timeline with you, if I may. In 2015, we were told during the run-up to the election that this position would be put in place. Obviously, it has been decades since we've been asking for a CORE ombudsperson with teeth and the ability to compel testimony and documents. In 2018, we actually had the announcement from . We get an ombudsperson in 2019, which is devastatingly disappointing because we know they don't have the ability to do the job they need to do, and it's now 2021. Almost three years have gone by, and there have been zero investigations.
The ombudsperson spoke to us earlier today about how there was a deep need to consult. Do you think that is a reasonable timeline, considering the urgency of some of the human rights abuses that we've seen by Canadian mining companies abroad?
It is absolutely urgent for impacted communities and workers around the world to have access to an effective mechanism to help redress and remedy harms they have suffered. As I mentioned before, they're really serious abuses.
It is a shame on Canada's international reputation. We've had multiple United Nations bodies tell Canada that we're not living up to our international human rights commitments because we don't have an independent body to investigate.
Canada announced this in 2018 and received international attention. It is dragging its feet and not fulfilling that commitment, while globally we're seeing great momentum towards imposing legislation that requires companies to prevent human rights abuses throughout their global operations and supply chains and that provides them with access to remedies. Throughout Europe, we're seeing legislation in France and recently a commitment in Germany and at the European Commission around mandatory human rights due diligence legislation.
The kinds of abuses people are suffering are severe, and we've had this office before. When Ms. Meyerhoffer was speaking about this office being new and that being the requirement for needing to take all of this time to consult, one really asks, what is new about it? If what it is about is more budget, why did the government not simply increase the budget of the CSR counsellor's office or the budget of the national contact point, if all it was going to do was create another voluntary dispute resolution mechanism that puts people more at risk and doesn't help advance Canada's international human rights obligations?
I think it's telling that when you asked Ms. Meyerhoffer how she could investigate, how she would respond if companies under investigation did not voluntarily provide information crucial to an investigation, she was unable to answer that question. Quite frankly, it does not seem there is any detail on the most crucial and important function of an ombudsperson's office.
In terms of what she can do without the power to investigate, it remains primarily a mediation-based approach and the ability to undertake a review, potentially without access to necessary information. How can you publish a report with your findings of an investigation if you don't have access to key information? At the end you can say, “Here are the allegations that I've heard, but I haven't been able to verify X, Y and Z because I haven't had access to the information I need.”
It's also telling that other similar bodies in Canada, other ombudspersons' offices, have the power to compel documents and testimony and have the power for search and seizure.
Thank you, Ms. Dwyer, for being here.
With only two minutes, I'll try to get right into it.
Following up on Ms. Khalid's question.... The U.S. was seen as a jurisdiction that had some success in this area, but they were using the Alien Tort Statute, which was an 18th century law. It had been challenged in the Supreme Court, and ultimately they lost the ability to actually pursue human rights claims on U.S. corporations.
Given the legal challenges, and seeing that the U.S. actually did have a law, with cases where companies were held and had financial findings against them and individuals and it has—
I actually have a question similar to Ms. O'Connell's.
I'm interested to see what the ideal situation would be, given that, unlike other ombudspersons' offices, the CORE would require.... If we are to have full investigative power, we would have jurisdictional conflict with the host countries. For example, we would be required to have the ability to compel documents and witnesses, etc.
How would you respond to that, Ms. Dwyer?
Again, thank you to the witness. This has been very interesting.
One of the things I have spent a lot of time working on prior to being elected is the sustainable development goals. We know that sustainable development goal 16.3 is “equal access to justice”. We know that sustainable development goal 16.6 is the “effective, accountable and transparent institutions” for that justice.
Can you talk a bit about what you would like to see with regard to this ombudsperson position? We talked with the ombudsperson earlier today about human rights due diligence legislation. We talked about what we'd like to see this ombudsperson have, the ability to compel. What could be accomplished? What could we achieve if we had the expanded role for this position, if it had the ability to do what it could?