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Under fire, Canada’s CSR counsellor shows his work

By Peter Mazereeuw      

Jeffrey Davidson has been working quietly to mediate disputes while critics have been pushing for an ombudsperson with more investigative teeth.

Jeffrey Davidson, Canada's globe-trotting CSR counsellor, has spent the first half of his term meeting stakeholders in Canada's mining sector, and trying to defuse conflicts involving extractive companies, communities, and local authorities around the world. The Hill Times photograph by Sam Garcia
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Halfway through his term as Canada’s oft-maligned corporate social responsibility counsellor, things are looking up for Jeffrey Davidson.

He has a permanent staff now, for instance, and the backing of the Liberal government. He’s also expecting the release, finally, of his first annual report in the near future, which will be the first formal account of what he’s been up to since taking on the job in May 2015.

In short: building relationships with the mining sector, mediating disputes over land held by mines in Tanzania and Honduras, and fighting for resources for his office, said Mr. Davidson in an interview with The Hill Times last week.

Mr. Davidson’s job has been criticized since almost the day it was created by the former Conservative government of Stephen Harper in 2009. The first person to do it, Marketa Evans, dealt with six complaints but was hampered by the limitations of the job itself. She had no ability to compel companies to participate in her dispute resolution process, leading to several unresolved files when companies walked away.

Critics of the office, which include advocacy groups MiningWatch Canada and the Canadian Network on Corporate Accountability, have derided it as toothless and inadequate. They’re advocating for the Canadian government to beef up its response to alleged abuses by Canadian mining companies abroad.

Under pressure, the Conservatives changed the job in 2014, but were criticized for making the counsellor even more informal and industry-friendly.

The job was vacant for months, and even now critics have pointed out that its website shows sparse information about what the new counsellor has been up to since starting 18 months ago.

“The current CSR counsellor’s website shows no indication of any investigations, disputes, dialogues, or any engagement with specific conflicts,” read a background document from a report this month by legal researchers with the Toronto-based Justice and Corporate Accountability Project.

A special adviser to the trade minister appointed by cabinet, Mr. Davidson’s office is one step removed from the federal public service, but relies upon it for administrative support.

Mr. Davidson is hoping for a revamp of his out-of-date website, on which he plans to include details of his activities for the public to see. While his office writes the content for the website, it doesn’t have the budget to employ staff to run it, and so relies on the federal public service to make technical changes. That couldn’t happen during the election campaign, when the government was in “caretaker” mode, and hasn’t yet happened under the new government, which is working to eventually bring all government websites under the Canada.ca banner.

‘I think there is an intention for this to be sorted out sooner, rather than later.’

Mr. Davidson has spent much of his 18 months on the job so far supported by just two staff members, sometimes one, or none. He has had three different executive assistants and two policy analysts in the past year and a half, and those two positions were vacant for about 12 months combined during that time, in part because he was initially required to look for staff from within the workforce of Global Affairs Canada, he said. Finding qualified workers willing to commit to his office was challenging, and he ultimately brought in people from outside GAC.

His office wasn’t fully staffed until last month. His term is officially supposed to end in May 2018.

Nonetheless, Mr. Davidson said he sees the approval of a larger, long-term staff as a sign that the government—which has publicly backed his office—is serious about the role the CSR counsellor will play in Liberal policy going forward.

“The government has been very supportive in its way,” he said. “It took a while; they had to get themselves set up, and deal with their priority promises. And finally they’ve turned their attention now to this.”

Mr. Davidson said he believed the government would make decisions soon on what to do with the CSR policies inherited from the previous Conservative government, and whether to create a new CSR ombudsperson and possibly even a new or updated CSR strategy.

“I think there is an intention for this to be sorted out sooner, rather than later,” he said.

The office of Trade Minister Chrystia Freeland (University-Rosedale, Ont.) said in an emailed statement that the government was “assessing Canada’s corporate social responsibility approach and identifying ways to strengthen it,” and that “[w]e recognize there are always improvements to be made.”

Ms. Freeland told the House late last month that she had “met with the CSR counsellor to determine how we can reinforce his role.” 

Hotspots in Honduras, Tanzania

The counsellor’s hectic travel schedule so far has been built around the location of mining-company headquarters, international conferences, and mine sites where trouble was brewing, the latter brought to his attention through the press or by Canadian diplomats and trade commissioners abroad, whom Mr. Davidson calls his “eyes and ears on the ground.” It included trips to Toronto—where he has a second, unstaffed office; he’s based in Ottawa—Vancouver, and cities in Tanzania, Guatemala, Honduras, Panama, and elsewhere.

Corporate social responsibility is essentially shorthand for operating ethically, even if it means going above and beyond the legal minimums of the jurisdiction. The CSR counsellor’s primary responsibility now, as dictated by the government’s 2014 Enhanced Corporate Social Responsibility Strategy, is to sit down with extractive company executives and advise them on following the CSR principles outlined in the strategy, and in a pair of guidelines released by the Organisation for Economic Co-operation and Development and UN.

The counsellor also serves as an informal mediator when trouble is brewing at a foreign mine, oil, or gas extraction site. For Mr. Davidson, that means applying experience, built through years working on the CSR teams of mining giant Rio Tinto and others, to try to lower the temperature of disputes. For example, he said, cautioning mining executives about the potential risks of dispatching police or security to clear local people off land the mine is licensed to exploit.

Mr. Davidson flew to Honduras in July to try to sort out a standoff between Toronto’s Aura Minerals Inc. and a community that opposed an expansion of a mine that would have displaced a cemetery. Human rights groups alleged that locals protesting the expansion were met with force by the police and military.

Mr. Davidson said he and Canadian Ambassador to Honduras Michael Gort met with community members, NGOs, and local politicians, and toured the mine and the village of the aggrieved community. Following his visit, and with help from Honduras’s national human rights commissioner, the mine and community returned to negotiations, reaching an agreement in August to move the cemetery.

When informal talks don’t work out, Canada’s CSR strategy dictates that the counsellor is to “encourage” mining companies to enter into formal mediation with Canada’s OECD national contact point, an interdepartmental committee chaired by Global Affairs Canada. If they don’t co-operate with any of the above, the government can withdraw diplomatic support, such as the services of Canadian trade commissioners.

Mr. Davidson has never taken that step; he says it’s never been warranted, and he hasn’t received a formal request to investigate withdrawing government support from a company.

“The ultimate criteria is, ‘do I feel that the company’s head is in the right place, and that they’re working sincerely, and in good faith, to resolve the problem? And are they open to advice and criticism? Are they willing to try to take a different approach?’” he said.

‘Different kind of response’ needed for violent encounters

The Canadian Network on Corporate Accountability has called for a mining sector ombudsperson, mandated to investigate every credible case of human rights abuse connected to Canadian mining companies, and equipped with the power to compel companies to testify, produce documents, and recommend reparations for harm done. That call has gained traction with the federal NDP, as well as the Liberal Party, which pledged to bring in an ombudsperson in the 2015 election campaign, but has not repeated that commitment since coming into power.

Mr. Davidson agreed that his office isn’t designed to handle after-the-fact investigations into physical harm that comes from clashes between a community and a company or state.

He said his office’s informal, non-punitive approach to resolving looming disputes before they lead to violence is more “interesting” than a formal process to the parties involved. “It doesn’t create a threat situation, not for the community, and not for the company.”

He appears to have put serious thought into the idea of an ombudsperson, and how one could be made to work alongside the CSR counsellor and OECD contact point. He has a tree diagram on a whiteboard in his office depicting what steps an ombudsperson could take to handle different situations.

The government has asked his opinion, he said, but will make its own decision on what changes are needed.

The Mining Association of Canada, the lobby group for the sector, has argued Canada’s courts—which have only recently started hearing cases brought against Canadian companies over actions out of the country—should be responsible for meting out penalties when CSR falls short. Mr. Davidson noted that Canadian courts were a “potential avenue for redress,” but conceded that, in many cases, the communities or individuals involved in disputes with mining companies abroad don’t have the means to launch a lawsuit in Canada.

peter@hilltimes.com

@PJMazereeuw

By the numbers: Jeffrey Davidson’s first year as Canada’s CSR counsellor

27: presentations on the CSR counsellor’s role and the Canadian government’s CSR expectations

5: situations or “concerns” involving Canadian extractive companies that the counsellor dealt with

50: meetings or calls with mining companies

18: meetings or calls with industry associations

24: meetings or calls with civil society groups

9: meetings or calls with foreign government offices or multilateral institutions

Source: Office of the CSR counsellor for the extractive sector

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