CIIT Committee Report

Dissenting Report

New Democratic Party of Canada

The New Democratic Party of Canada is disappointed the Standing Committee on International Trade chose to ignore testimony from several witnesses to the effect that vital work of the Canadian Ombudsperson for Responsible Enterprise (CORE) is hampered by that office’s inability to summon witnesses and compel the production of documents.

When appearing before the committee on February 13, 2023 Sheri Meyerhoffer, Ombudsperson, Office of the Canadian Ombudsperson for Responsible Enterprise, stated in her opening remarks;

“My third and final remark is that Canada has the capacity to strengthen effective redress for human rights and environmental harms arising from the operations of Canadian mining companies outside of Canada. This can be done by providing the CORE with the power to compel documents and witnesses.

I referred earlier to the United Nations Guiding Principles on Business and Human Rights. Those principles recognize the duty of states, including Canada, to ensure effective access to remedy for impacted individuals and communities.

The CORE currently has the power to conduct investigations, engage in mediation and, when appropriate, make remedial recommendations to Canadian companies and others. We also have a duty to report publicly and to follow up on our recommendations. These powers can have a positive impact. However, the CORE does not currently have the power to order Canadian companies to produce documents or witnesses. With these additional powers the CORE would have a greater positive impact.

Specifically, a CORE with powers to compel documents and witnesses would, first, provide access to effective remedies for impacted individuals and communities who do not have access to relevant information and who may face retaliation for exercising their rights. Second, it would incentivize Canadian companies to voluntarily participate in the CORE's complaint process, including by using consensual dispute resolution such as early resolution and mediation. Lastly, it would demonstrate that Canada is meeting its obligation to ensure that access to remedy is part of corporate accountability for human rights and the environment.”

Under questioning by the Hon. John McKay, Ms. Meyerhoffer said, “Some companies have refused to participate in our process. Having the power to compel witnesses and documents would provide my office with the powers needed to require company participation and avoid the need for human rights allegations to go to courts, a process that is less accessible and is expensive.

I think we have some indication now that not all companies are going to engage. The only way we could move forward and do a true, thorough job would be to have those powers. With others, I'll reiterate that our hope is that in most cases, and we're experiencing that now, we are able to work in a co-operative and productive manner with companies to address the issue, but that's not every situation, and we already have evidence of that.”

Ms. Meyerhoffer was not the only witness to call for increased powers for CORE. On February 6, 2023 in response to questions from MP Tony Baldinelli, MiningWatch Canada’s Research Coordinator Catherine Coumans detailed that the power to summon witnesses and compel the production of documents was part of the original concept of CORE;

“Yes, that's going back a ways. I think it's a very important question, because in 2018, the Government of Canada made a commitment, in the creation of the Canadian ombudsperson for responsible enterprise, that this officer would have the investigatory powers to compel documents and witnesses, yet a year later, when Sheri Meyerhoffer was installed as the first ombudsperson, she was not given those powers.

It was on the Government of Canada's website that she would have these powers. She in fact took the position assuming that she would have those powers. She was not given those powers. This is critically important.

There was an erosion of the commitment that had been made compared to what actually ended up happening when she was installed because there was a huge lobbying effort against those powers. This was right in the public realm. The Mining Association of Canada made public statements in the media saying that they opposed the ombudsperson having those powers.

The reason it's so critically important for her to have those powers is that without them, you have a he-said, she-said situation. The community says that their animals are dying when they drink from this river, that they can't bathe in the river, that they get sores. The company says that they've done testing and it's fine, but they don't have to provide those documents.”

When questioned by MP Simon-Pierre Savard-Tremblay as to whether she thought the CORE had sufficient powers, Ms. Coumans replied, “No. We do not believe she does, because she still does not have the powers, five years after her office was created, to compel witnesses and compel documents. That was something that the Government of Canada recognized as critically important, and it committed that she would have those powers when the office was first announced.”

In addition to the testimony heard by the committee a June 2021 report by the Subcommittee on International Human Rights of the Standing Committee on Foreign Affairs and International Development agreed, “that 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 that they have suffered. The Subcommittee is of the view that it is theoretically possible, as a stopgap measure, that the current Ombudsperson could be appointed as a commissioner under Part I of the Inquiries Act, which would immediately give her the power to compel witnesses and documents.”

In 2019, the Minister for International Trade at the time commissioned Ontario lawyer Barbara McIsaac to provide advice on how best to equip the CORE “with sufficient tools to engage in credible and effective investigations of alleged human rights abuse and to ensure that she has powers to compel witnesses and documents.” In that report Ms. McIsaac wrote, “…without a way to compel the cooperation of entities against which a complaint is made, or others who may hold relevant information, the CORE’s effectiveness may be compromised.”

These two examples are just the proverbial tip-of-the-iceberg. Since its creation there have been multiple calls and recommendations for CORE to be provide the powers to compel witnesses and documents. In paying attention to these calls, the New Democratic Party of Canada recommends:

Recommendation:

The Government of Canada increase the authorities of the Canadian Ombudsperson for Responsible Enterprise to include the power to summon witnesses and to compel the production of relevant documents.