Canada fall­ing be­hind on cor­po­rate ac­count­abil­ity

The Guardian (Charlottetown) - - OPINION - PENE­LOPE SI­MONS GUEST OPIN­ION Pene­lope Si­mons is an as­so­ciate pro­fes­sor in the Fac­ulty of Law at the Univer­sity of Ot­tawa.

Ear­lier this year, Cana­di­ans were given a be­hind-the-scenes view on at­tempts by the Lib­eral gov­ern­ment to en­sure that SNCLavalin would es­cape po­ten­tial crim­i­nal li­a­bil­ity un­der the Cor­rup­tion of For­eign Pub­lic Of­fi­cials Act. What may be less clear is that the gov­ern­ment’s stance in this case is re­flec­tive of its broader ap­proach to cor­po­rate ac­count­abil­ity.

The Lib­eral gov­ern­ment’s ten­dency to over­look cor­po­rate malfea­sance threat­ens to sink an in­no­va­tive ini­tia­tive — the Cana­dian Om­budsper­son for Re­spon­si­ble En­ter­prise (CORE) — with the po­ten­tial to make real change.

Cana­dian com­pa­nies are im­pli­cated in cred­i­ble al­le­ga­tions of wrong-do­ing world­wide. In ad­di­tion to charges of cor­rup­tion, the Cana­dian pri­vate sec­tor is linked to hu­man rights abuses and en­vi­ron­men­tal de­struc­tion.

The ex­trac­tive sec­tor is of par­tic­u­lar con­cern. Canada hosts a ma­jor­ity of the world’s largest ex­plo­ration and min­ing com­pa­nies, and a sig­nif­i­cant num­ber of medium and large-sized oil and gas com­pa­nies, many of which op­er­ate over­seas.

These com­pa­nies raise bil­lions of dol­lars on Cana­dian stock ex­changes. They have also been im­pli­cated in grave hu­man rights abuses per­pe­trated by their se­cu­rity forces in many coun­tries around the world, in­clud­ing Su­dan, Pa­pua New Guinea, Eritrea and Gu­atemala, among oth­ers.

A study by the Jus­tice and Cor­po­rate Ac­count­abil­ity Project at Os­goode Hall Law School found that be­tween 2000 and 2015, 28 Cana­dian ex­trac­tive com­pa­nies had been as­so­ci­ated with 100 in­ci­dences of vi­o­lence in Span­ish­s­peak­ing Latin Amer­ica.

In 2017, the UN body charged with pro­mot­ing re­spect for hu­man rights by the pri­vate sec­tor vis­ited Canada to as­sess com­pli­ance with a set of guid­ing principles en­dorsed by the Cana­dian gov­ern­ment. The UN ex­perts ex­pressed con­cern that Canada lacked a co­her­ent pol­icy frame­work to ful­fil its le­gal duty to pro­tect against busi­ness-re­lated hu­man rights abuses. They raised con­cern that the vic­tims of hu­man rights abuses struggle to ob­tain ad­e­quate and timely reme­dies against Cana­dian busi­nesses.

It ap­peared that the Trudeau gov­ern­ment would be­gin to ad­dress these se­ri­ous short­com­ings with its an­nounce­ment in Jan­uary 2018 of CORE, a ground-break­ing com­plaint mech­a­nism charged with in­ves­ti­gat­ing al­le­ga­tions of harm caused by Cana­dian ex­trac­tive and gar­ment cor­po­ra­tions op­er­at­ing abroad.

The gov­ern­ment com­mit­ted to equip­ping the in­de­pen­dent of­fice with ro­bust pow­ers — in­clud­ing the power to sum­mon wit­nesses and com­pel the pro­duc­tion of doc­u­ments.

What’s hap­pened since then? The Or­der in Coun­cil (OIC) that for­mally es­tab­lished CORE, cre­ated its man­date, and ap­pointed Sheri Mey­er­hof­fer to the po­si­tion, was re­leased this past April. It shows that the gov­ern­ment has not only back­tracked sig­nif­i­cantly on its orig­i­nal prom­ise, but it ap­pears to have es­tab­lished in­stead a slightly mod­i­fied ver­sion of the tooth­less and now de­funct Cor­po­rate So­cial Re­spon­si­bil­ity Coun­sel­lor.

No­tably, the gov­ern­ment has so far failed to grant CORE the in­ves­ti­ga­tory pow­ers it needs. At the press con­fer­ence, Min­is­ter Carr stated that he was “seeking ex­ter­nal le­gal ad­vice” on “the ap­pro­pri­ate­ness” of giv­ing the om­budsper­son pow­ers to com­pel wit­nesses and doc­u­ments un­der the In­quiries Act and that the de­ci­sion on this is­sue would be an­nounced in June.

The gov­ern­ment has also charged the of­fice with in­ves­ti­gat­ing par­ties who al­lege cor­po­rate wrong-do­ing — in other words, in­ves­ti­gat­ing the vic­tims of al­leged hu­man rights vi­o­la­tions and/or those sup­port­ing vic­tims in bring­ing a com­plaint.

This sur­pris­ing in­clu­sion will surely make it more dif­fi­cult for vic­tims to have le­git­i­mate com­plaints of cor­po­rate-re­lated hu­man rights abuses heard. It is also likely to place hu­man rights de­fend­ers, whose phys­i­cal in­tegrity is of­ten at risk, in even greater peril.

In April, two years fol­low­ing his mis­sion to Canada, the chair of the UN Work­ing Group on Busi­ness and Hu­man Rights, Surya Deva, re­turned to this coun­try. He warned that Canada is fall­ing be­hind other coun­tries, such as France and Switzer­land, that are pass­ing laws to hold their com­pa­nies to ac­count when they cause harm over­seas. Dr. Deva cau­tioned that Canada’s in­ter­na­tional rep­u­ta­tion would be dam­aged if it failed to pro­vide the om­budsper­son with real in­ves­ti­ga­tory pow­ers.

While the Trudeau gov­ern­ment may po­si­tion it­self as a cham­pion of hu­man rights and the rule of law, its new com­plaint mech­a­nism speaks a dif­fer­ent nar­ra­tive. More im­por­tant than the rep­u­ta­tion of the gov­ern­ment, how­ever, is the fact that the lives and liveli­hoods of in­di­vid­u­als and com­mu­ni­ties in other coun­tries are at stake. This will re­main the case un­til the Cana­dian gov­ern­ment takes mean­ing­ful steps to in­cen­tivize Cana­dian com­pa­nies to change the way they do busi­ness abroad.

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Prime Min­is­ter Justin Trudeau

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