Justin Wiebe
In Eritrea, citizens 18 and over are legally required to undertake at least 18 months of national service, often in alarming conditions and with little compensation. The United Nations has concluded that this practice amounts to modern slavery and a crime against humanity. In this context, Nevsun Resources, a mining company which was based in Vancouver, is alleged to have exploited these Eritrean workers’ forced labour, by contracting with Eritrean construction companies who relied on it. Several of the alleged victims have sued Nevsun in Canada’s court system. These plaintiffs claim that they were forced to work in temperatures reaching 47 C for 12 hours a day with little food. They aim to establish that Nevsun can be held civilly liable in Canadian law for its association with violations of international human rights standards due to its relationship with the Eritrean state.
How Has Canada Responded?
Canadian legislators have responded to instances of modern slavery, such as that described above. In a 2018 report, for example, the Standing Committee on Foreign Affairs and International Development recognized that “the federal government should take concrete action as Canada risks ‘falling behind’” other countries vis-à-vis taking meaningful steps to reduce and eliminate modern slavery. As the report’s title suggests, it is a call to action. While Canada is taking steps to address the scourge of modern slavery, much more needs to be done. More importantly, however, action that is taken must be meaningful and effective.
The French Parliament building, where legislators passed a world-leading Duty of Vigilance Law, requiring applicable corporations to take meaningful steps to eliminate human rights abuses in their supply chains. Photo by Elliott Brown via www.cidse.org.
Several jurisdictions have taken meaningful action. Legislative developments in France, the Netherlands and New South Wales, as the report documents, are models for Canada. France has implemented a Duty of Vigilance Law, which aims to prevent human rights abuses (broadly defined) as well as compensate victims for their losses. It does so by imposing a duty on relevant corporations to take care that their operations do not lead to human rights abuses within their supply chains. The Netherlands is contemplating a Child Labour Due Diligence Law, which would create a regulator to investigate potential cases of child labour associated with Dutch corporate supply chains. Crucially, the regulator would be empowered to order significant financial penalties if corporations fail to take meaningful steps to eliminate modern slavery in their operations. Finally, the New South Wales Modern Slavery Act establishes the position of an Anti-Slavery Commissioner, an office empowered to independently evaluate the effectiveness of government legislation and policy in reducing instances of modern slavery.
On February 5, 2020, Senator Julie Miville-Dechêne introduced the Modern Slavery Act in Canada’s Parliament. The Act would require certain corporate entities to report steps they have taken, if any, to eliminate instances of forced labour and child labour in their supply chains. Since the spring of 2018, the IJHR Clinic has been working with legislators as the official external research group for the All-Party Parliamentary Group (APPG) to End Modern Slavery. It has also proposed model supply chain legislation, the product of extensive research and expert input.
While the IJHR Clinic acknowledged the importance of the proposed Modern Slavery Act, it also questioned its prospects for success, given that it focuses on transparency rather than due diligence, and lacks a politically neutral oversight mechanism (the Act’s transparency obligations would be enforced through a Government minister).
John McKay, Member of Parliament, speaks to the Modern Slavery Act on the day of its introduction in the Senate by Senator Julie Miville-Dechêne (second from left). Other supporters, including Member of Parliament Arnold Viersen (second from right), look on. Photo by John McKay via Twitter.
Which Steps Should Canada Take Next?
It is difficult to combat modern slavery if nobody knows about it. For this reason, the Act should facilitate relevant whistleblowing and provide legal protection for this valuable activity. The IJHR Clinic’s model supply chain legislation outlines in detail what such an enabling and protective regime would look like.
Civil society organizations also have a role to play in reducing instances of modern slavery. To this end, the Act could be further strengthened by mandating that reports from applicable corporations be posted on a publicly accessible database. Doing so would allow these organizations to more readily evaluate the legislation’s effectiveness. In California, for example, it has been difficult for organizations to determine which entities are subject to that state’s legislation, making evaluation difficult.
Requiring corporations to self-report on their modern slavery policies and actions, with nothing more, casts doubt on the Act’s anticipated effectiveness. Reporting measures should be coupled with the requirement that companies take actual steps to combat modern slavery in their supply chains, with legal consequences for failing to do so. Evidence shows that France’s Duty of Vigilance Law, which requires actual steps from corporations, has been effective in ensuring that the risk of modern slavery being present in supply chains is considered at the highest levels of corporate governance. Adopting this approach would place Canada amongst the world leaders in combatting modern slavery.
Ministerial enforcement of the Act’s self-reporting requirements is problematic. Based on insights from California and the United Kingdom, the effectiveness of supply chain legislation is hampered when oversight mechanisms are politicized. The California Attorney General (an elected position), for example, possesses exclusive authority to enforce that state’s legislation. The Attorney General does so by applying to court to compel the production of reports. Unfortunately, the Attorney General has never done so, despite the fact that the law came into force in 2012. A non-political body, such as the recently-appointed Canadian Ombudsperson for Responsible Enterprise (the CORE) would be well-placed to oversee the Act’s implementation.
To this end, the CORE’s independence should be combined with effective powers of investigation, including the power to compel documents and testimony in cases where modern slavery may have taken place. Several other Canadian oversight regimes, including in relation to domestic human rights and environmental protection, provide investigators with the ability to enter and search premises, as well as review relevant documents and materials. In my view, reducing instances of Canadian corporate complicity in modern slavery warrants similarly meaningful powers of investigation.
Adopting the legislative measures described above, as well as others set out in the IJHR Clinic’s model supply chain legislation, would put Canada on the path to becoming a world leader in combatting the scourge of modern slavery. More importantly, it would ensure that the rights of more victims of modern slavery are safeguarded.
Justin Wiebe is a third-year student at the Peter A. Allard School of Law. As a clinician with the International Justice and Human Rights Clinic, he has served as part of the external research group for the Canadian APPG on Modern Slavery, which aims to strengthen Canadian responses to modern slavery.
