PBI-Canada supports the call for Canada to adopt due diligence legislation to protect human rights defenders

Published by Brent Patterson on

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In this opinion piece published in The Globe and Mail on March 11, University College London law professor Barnali Choudhury (who also holds a law degree in Canada) argues that Canada should adopt due diligence legislation.

Choudhury begins by highlighting that the Supreme Court of Canada in its recent Nevsun Resources Ltd. v. Araya decision – which is summarized here – concluded that customary international law applies to companies.

She then notes, “The court’s finding in this area may work toward helping establish norms of corporate liability for human rights at the international level.”

“The government has already publicly committed to advancing corporate social responsibility in the extractive sector through its 2014 strategy, partly titled Doing Business the Canadian Way. …However, the strategy has mainly resulted in the creation of an ombudsperson for responsible enterprise [that can be read about here], which given its relative lack of powers, has been branded by critics as toothless.”

“A better approach would be for the government to develop due diligence legislation that creates specific standards of conduct expected of Canadian companies.”

“Due diligence legislation is a common practice in a number of different countries. Already, Britain, Australia, France and the Netherlands have adopted some form of due diligence legislation, with the European Union expected to enact similar legislation throughout the EU shortly.”

“While due diligence legislation can take different forms, generally it requires companies to engage in human rights or environmental due diligence, address the issues identified by the due diligence and work to minimize future related issues. Failure to comply with due diligence obligations can result in penalties or fines.”

Choudhury also notes, “Some forms of due diligence legislation can also create private actions for victims of corporate abuse, although the general aim of such legislation is about preventing or minimizing corporate abuses before they occur.”

PBI and due diligence

In March 2019, Peace Brigades International signed this open letter to the United Nations Human Rights Council calling on it to “increase the demands on States and businesses with regard to conducting due diligence on business and development activities.”

Then in November 2019, PBI and allies organized this session at the UN Forum on Business and Human Rights in Geneva that emphasized, “the obligation of states to protect human rights defenders at risk by encouraging and/or mandating robust human rights due diligence by both international and national financial institutions and companies.”

The following month, on International Human Rights Day, PBI joined with others in this statement that highlights, “There is a growing expectation for companies to exercise human rights due diligence and adopt a zero tolerance approach on reprisals and attacks on defenders not only in their own operations but also when they are linked to such attacks through their value chain and business relationships.”

PBI has also previously called on the UN Forum on Business and Human Rights to discuss “how to ensure better, fairer, culturally sensitive consultation processes (both in terms of state obligation and due diligence of companies) with full access to information.”

Furthermore, PBI-Germany supported this report that asked that the German government, “Develop implementation guidelines on human rights due diligence for business enterprises, also in relation to their subsidiaries, suppliers and distribution channels, and make these a legal requirement in Germany.”

PBI-Switzerland has called for “effective access to justice and remedy to reduce the current climate of impunity that many powerful companies enjoy.”

PBI-Belgium has signed this statement calling on development finance institutions, governments, and businesses to “adopt a policy commitment to respect human rights and implement due diligence to prevent human rights violations.”

And PBI-UK in its ‘Revision of the UK National Action Plan on Business and Human Rights’ briefing stated, “In order to ensure companies adopt due diligence policies that genuinely address risks, it is important that the government advocates more strongly for the uptake of independent, transparent and publically available Human Rights Impact Assessments.”

While the Canadian government has agreed to hold a consultation on whether new legislation is needed mandating companies to conduct due diligence on eliminating forced labour and child labour in their supply chains, PBI-Canada supports the call that this scope should be broadened to include all human rights.

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