McLeod Group guest blog by Joan Kuyek, April 17, 2019
Although it took 15 months to identify and appoint lawyer Sheri Myerhoffer to the new post of Canadian Ombudsperson for Responsible Enterprise, her powers remain undefined. Civil society organizations in Canada and the Global South fear that, for the umpteenth time in the last 20 years, they will be disappointed in their efforts to hold Canadian companies accountable for their often predatory behaviour abroad.
Canada has $63 billion worth of mining investment abroad. Canadian mining companies operating in the Global South are infamous for their negative effects on local economies, Indigenous and traditional rights, and the environment. When people resist, they are called criminals and face jail time or worse.
In 2016, the Justice and Corporate Accountability Project released a report on violence associated with Canadian mining companies in Latin America from 2000 to 2015. It found that 28 different Canadian companies were associated with 44 deaths, 403 injuries and 709 cases of “criminalization” of dissent. Five United Nations bodies and the Inter-American Commission on Human Rights have called on Canada to hold its mining companies accountable for incidents of violence.
Funding from Export Development Canada (EDC), a Crown corporation, enables some of the most egregious Canadian mining projects to take place. There are currently eight cases before Canadian courts challenging Canadian mining overseas, but suits against Canadian mining companies face a number of significant legal hurdles. Among other things, the burden is on the plaintiffs to prove that a foreign court is unable to provide them with a fair trial.
In the late 1990s, Canadian civil society groups, including Mining Watch Canada, intensified their advocacy for Canadian mining companies to be held accountable in law, instead of having the companies police themselves through voluntary measures like corporate social responsibility (CSR). Community representatives came from many countries to tell their stories to the public and the House of Commons Standing Committee on Foreign Affairs. Churches, unions, NGOs and solidarity groups lobbied politicians and senior bureaucrats. In 2005, the Standing Committee passed a unanimous resolution asking Parliament to support clear legal norms for Canadian mining companies operating internationally.
The government responded in 2006 by establishing the National Roundtables on Corporate Social Responsibility and the Extractive Sector in Developing Countries, bringing together the industry and civil society to review the Standing Committee’s report and make recommendations. They submitted a joint report to government in 2007, calling for a code of conduct for Canadian companies operating abroad, an ombudsperson to hear complaints, and tying public support of the extractive sector (such as Export Development Canada funding) to good corporate behaviour. It argued that Canadian mining companies should be legally accountable for environmental and human rights violations in other countries.
In 2009, the Harper Government published a document entitled Building the Canadian Advantage: A Corporate Social Responsibility Strategy for the Canadian International Extractive Sector, which ignored the roundtable recommendations, reaffirmed weak voluntary measures and called for more resources to promote mining companies’ CSR programs. The government created the Office of the Extractive Sector Corporate Social Responsibility Counsellor to advance the CSR performance of Canadian mining companies. This office reached the end of its mandate in May 2018 without much visible impact.
Also in 2009, Liberal MP John McKay introduced Bill C-300, the Corporate Accountability of Mining, Oil, and Gas Corporations in Developing Countries Act but when it came to the floor of the House of Commons in November 2010, to the relief of the mining industry, it failed to pass.
Almost a decade later, in 2018, after years of sustained lobbying and mobilization by human rights and environmental NGOs, including through the Canadian Network on Corporate Accountability (CNCA), the Liberal government announced the creation of an independent Canadian Ombudsperson for Responsible Enterprise. Ms. Myerhoffer is tasked with investigating human rights complaints about Canadian companies operating abroad, mostly in the extractive sector, and “resolving disputes” between the companies and communities.
Yet the exact extent of her authority and powers is still undefined. Activists and researchers fear that the ombudsperson’s ability to investigate and impose sanctions will be too limited to provoke meaningful changes in behaviour by Canadian mining and extractive companies. The CNCA called it “a powerless advisory post, little different from what has already existed for years”.
What will it take to get governments at all levels to make corporations accountable for social and environmental transgressions here and abroad? There remains only a small window of opportunity to get it right. Activists and researchers should try to push the government through that window soon.