PBI-Canada talks about the CORE with University of Minnesota law school class
On April 4, PBI-Canada coordinator Brent Patterson shared an overview of concerns about the Canadian Ombudsperson for Responsible Enterprise (CORE) with students at the University of Minnesota Law School.
We began with a timeline: the civil society call for an Ombudsperson began in 2007; the Liberal Party promised an ombudsperson during the October 2015 election (they were sworn-into office in November 2015); the formal announcement that a CORE would be created came in January 2018; Sheri Meyerhoffer was appointed the CORE in April 2019; the CORE launched its complaints process in March 2021; on March 26 of this year, the CORE made its “first determination” when it stated that Vancouver-based mining company Dynasty Gold Corp. has allowed forced labour at its gold mine in the Xinjiang region of China.
We also highlighted why civil society has called for an ombudsperson: From 2000-2015, Canadian mining companies operating in Latin America were involved in 44 deaths, 30 of which were considered ‘targeted’ and 403 injuries, 363 of which occurred in during protests and confrontations, according to data from the Justice and Corporate Accountability Project, a legal clinic under the direction of law professors at York University and Thompson Rivers University. The clinic also found 709 cases of ‘criminalization’, including legal complaints, arrests, detentions and charges.
The Globe and Mail has also reported that there are likely 50 instances of alleged human rights abuses by Canadian companies in 30 countries in the last five years alone, the majority in the mining sector, but also in oil and gas, manufacturing and apparel industries. (To date, the CORE has focused on the issue of several Canadian companies that are alleged to have “Uyghur forced labour in China” in their supply chains.)
And we provided an overview of what Canadian civil society advocated for and what the reality of the current situation is:
-an independent office (instead, the CORE reports to the federal Minister of Small Business, Export Promotion, and International Trade)
-the power to thoroughly investigate a situation caused by Canadian companies, this would include the quasi-judicial power to compel a company to produce documents and provide testimony under oath (the CORE does not have these powers)
-the ability to make recommendations to remedy the harm (the CORE has emphasized it can help “shine a light” on the practices of companies and “make recommendations” to the government and the company; the CORE also says “we may recommend that the Canadian company take actions – such as compensation, a public apology, paying wages, cleaning up the pollution – but emphasizes “we can tell a Canadian company to fix the harm, but we can NOT force them to do it”)
-make recommendations to prevent future harm; this could include the withdrawal of diplomatic support and an end to public financing as a minimum (but the emphasis appears to be more on “finding a solution together” with the company, “mediation” with the company, and the CORE emphasizes “We do NOT have the power to make people or companies take specific actions”; in its first determination re: Dynasty Gold Corp. it has recommended Canada bar Dynasty from access to trade services and financial support, services that Dynasty says it has never received; CORE now says it will issue a follow-up report in 12 months time).
We also noted concerns about the dangers faced by frontline defenders and the lack of provisions to protect them:
-the CORE should have a scope that more fully recognizes the criminalization and violence that social leaders can experience, as well as the violation of Indigenous rights (instead, the CORE highlights “unsafe conditions at work” or “unsafe water”, which are serious issues, but do not capture fully the reality of what is happening)
-the CORE says, “we take retaliation seriously” (but their website focuses on how the complainant can be careful not to be overheard, etc., rather than any protection measures or consequences for the companies).
There were also questions about Sheri Meyerhoffer, who was appointed as the CORE in April 2019. It has been highlighted that she is a former lobbyist with the Canadian Association of Petroleum Producers.
As to the questions why the CORE does not have sufficient powers, we noted that the Justice and Corporate Accountability Project (JCAP) has revealed that between January 2018 and April 2019, representatives from the Mining Association of Canada (MAC) and Prospector & Developers Association of Canada (PDAC) met government officials on no fewer than 530 separate occasions.
And we noted five additional areas where the CORE could be improved to be a more credible mechanism for human rights complaints:
-a proactive approach emphasizing human rights rather than the onus being placed on complainants (the concern remains that Export Development Canada, the Canadian Commercial Corporation, the Trade Commissioner Service, and Embassies back, advocate, facilitate, write laws that support Canadian companies)
-a fuller recognition of the state and corporate violence, criminalization, repression of communities that resist megaprojects
-an end to the sense of impunity that corporations enjoy
-an expansion beyond the current limited mandate to include weapons companies that sell to repressive regimes, states committing genocide
-credibility, the onus is on the government to demonstrate it is serious and that there are consequences to human rights violations (there are binding mechanisms like the investor-state dispute settlement clause in “free trade” agreements, but no such provisions in these agreements related to human rights).
Overall, as the current situation stands, we noted as the primary obstacle: while the CORE promises confidentiality, the lack of investigative powers and the limited power of the CORE to remedy the situation (in other words the practical outcomes of the process) are not sufficient for people to take the risk of engaging in the process.
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