In January 2018, the Canadian ombudsperson for responsible enterprise (CORE) was established to address responsible business practices and allegations of human rights issues related to Canadian companies operating abroad in the mining, oil and gas, and textiles sectors.
In an attempt to reshape this newly established mechanism, some commentators are lobbying the government to change the mandate of the CORE from a collaborative dispute resolution process into a quasi-judicial body that attempts to replicate activities of the Canadian judicial system, such as compelling the production of documents and testimony from witnesses. Were this to be done, it would compromise the ability of the CORE to resolve conflict by turning it into a more adversarial semi-court like body, particularly without the proper procedural fairness and protections of our judicial system.
Canada is already a leader in strong environmental and socially responsible standards around the world as demonstrated through the global spread of Canadian led standards such as Towards Sustainable Mining, e3Plus for mineral exploration and responsible care in the chemistry industry. To protect and build on this standing, it is imperative that any new mechanisms to support these efforts get results for everyone involved and do not create cumbersome, expensive, adversarial processes that will hamstring Canadian companies operating abroad and delay remediation for affected communities.
The Mining Association of Canada, Prospectors & Developers Association of Canada and the Canadian Chamber of Commerce supported the establishment of the CORE. Specifically, our three organizations support the CORE with the mandate currently spelled out in the April 2019 order-in-council that centres on collaborative dispute resolution and joint fact-finding, particularly, as there are other mechanisms that exist to address human rights issues in different ways, including foreign and Canadian courts, for more serious allegations.
A CORE that has the powers to compel evidence and testimony outside of the traditional judicial process will lead to a drawn out, expensive, and combative process for all parties—also one where attention is not focused on actually fixing problems on the ground. Such a model challenges credibility when it would be attempting to use such legal tools in foreign jurisdictions, potentially involving citizens and even state actors of foreign countries.
A non-judicial CORE focused on joint fact-finding is fundamental to ensuring it is truly constructive, solutions-oriented, and effective at resolving disputes and conflict. We believe all parties should be working together to find solutions to address human rights well before conflicts arise.
Rather than duplicating existing judicial processes with a new mechanism that lacks the appropriate procedural aspects to ensure fair process, joint fact-finding should be Canada’s approach to fill any gaps that might exist. This type of process will provide the ombudsperson appropriate tools to help all parties involved in a dispute to come together to figure out what happened, why, and the best ways to fix it. The World Bank’s International Finance Corporation (IFC), for example, has credited a solid record of successful outcomes for its ombudsperson when it switched to a joint fact-finding process.
In a 10-year review, IFC’s ombudsperson found that focusing on how to bring people together to resolve disputes was much more effective than imposing judgment. Only when the ombudsperson focused on being a neutral facilitator of joint fact-finding processes did they start seeing success in resolving disputes.
All Canadian businesses should be expected to respect human rights and operate under the same Canadian standards when in other jurisdictions. Canadians rightly expect all companies to work at a high standard and to ensure responsible supply chains that prevent human rights issues.
The creation of the CORE has a real opportunity to demonstrate Canada’s leadership and support upholding our Canadian values and high human rights standards around the world. We now need to ensure that the mandate and processes in place to support the CORE’s office are implemented because of their proven track records—such as collaborative dispute resolution and joint fact-finding—to get meaningful results and success for this important initiative. With the appointment of the first CORE, it is critical to proceed with the mandate originally proposed and implement processes consistent with the vision contained in the April 2019 order-in-council.
Felix Lee is president of the Prospectors & Developers Association of Canada. Pierre Gratton is president & CEO of the Mining Association of Canada. Jackie King is chief operating officer of the Canadian Chamber of Commerce.
The Hill Times
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