Will the Canadian Ombudsperson for Responsible Enterprise (CORE) have the powers to do her job?

Abeni Steegstra

“We expected that we might have been evicted by other people, soldiers or the federal police perhaps, but not by them. We didn’t expect that from them, but they did it by their own hand.”[i]

A Mexican protester recounts the morning that her camp was burned to the ground – led by an executive of the very company she was resisting. Rob Moore, COO of Canadian mining company Excellon Resources, led a convoy of company trucks to the protest camp outside of La Platosa mine in La Sierrita, Mexico on October 24^th of 2012, setting fire to protesters’ temporary housing. Over 100 Mexican federal and state police also arrived to the camp, in which less than a dozen protesters were present that morning.

The morning was a culmination of years of friction between Excellon Resources and community members of La Sierrita. Local labourers in the mine reported unsafe conditions, beatings and harassment when they attempted to unionize. Other community members were angered when Excellon left significant environmental damage. A local NGO commissioned an independent study of Excellon’s wastewater – disposed of on communal land used by La Sierrita members for agriculture – which found the water contained five times the level of arsenic safe for human consumption.

Wreckage of the protest camp outside of La Platosa mine. Credit: El Siglo de Torreon

The Corporate Social Responsibility Counsellor

Canada was aware of the conflict evolving around La Platosa mine. In fact, members of La Sierrita had filed a complaint in 2011 with Canada’s mechanism for reviewing extractive companies’ misconduct abroad: the Corporate Social Responsibility Counsellor (CSR Counsellor). The CSR Counsellor aimed to bring companies and affected communities into dialogue in its voluntary review process.

The CSR Counsellor met with members of La Sierrita and company representatives in Mexico, receiving “credible, third party information, from a variety of sources” detailing beatings at the mine site.[ii]  Abruptly, however, Excellon withdrew from the CSR Counsellor’s review in September of 2011. The company’s unilateral decision plucked the case from the Counsellor’s hand without resolve, as the office lacked the power to compel documents and testimony in an independent investigation. Just over a year later, the protesters in La Sierrita were violently evicted from their camp, followed by enduring conflict with Excellon.

Calls for an Ombudsperson

Excellon’s actions are hardly exceptional; numerous cases are reported throughout Latin America. Canada’s second CSR Counsellor told the House of Commons Standing Committee on Foreign Affairs and international Development that

…the presence of resource extraction projects has raised critical concerns across Latin America, regarding consultation and consent, environmental degradation and health impacts, water use and quality, the protection of traditional livelihoods and sacred sites, competition for natural resources and land, local employment and decent work.[iii]

This alarming reality has driven demands for an investigative office to replace the CSR Counsellor, one with the ability to remedy Canadian corporate misconduct abroad. In 2018, the Canadian government finally created the Canadian Ombudsperson for Responsible Enterprise (CORE), although this office has still not been granted the power to compel documents or testimony.

Credit: Government of Canada

Canada’s experience with the CSR Counsellor is a perfect example of the ineffectiveness of an office without the ability to conduct meaningful investigations. The CSR Counsellor was roundly critiqued as unsuccessful. The first Counsellor, Marketa Evans, commented that her office was unable to meet its mandate in the La Sierrita case once Excellon withdrew. She left the position in 2013, a year before the end of her term, and was not replaced for a year and a half. Public records show the CSR Counsellor received only about a dozen requests for review in its operation from 2010 to 2018. Of these, only six were reviewed by the CSR Counsellor and none of these reached the formal mediation stage. Further, all six files were reviewed before Marketa Evans departed, meaning the Office did not complete a single review from 2014 to 2018. In half of the six cases, including La Sierrita, the company withdrew while the requestors wished to continue.

While the newly created CORE may fact-find without a company’s participation, its inability to compel information leaves the CORE nearly as powerless as the CSR Counsellor if a company refuses to cooperate.

How to Avoid Echoing the CSR Counsellor:

The CORE requires the power to compel information if it is to meaningfully investigate human rights abuses and differentiate itself from the CSR Counsellor. However, even the legal instrument used to create the CORE was a problematic start. The government chose to form the CORE through an Order in Council under the Prime Minister’s Office (PMO), which lacks independence from government and cannot give the power to compel documents. Other comparable offices in Canada, such as the Canadian Human Rights Commission, are created under their own statute and fully empowered to investigate certain violations.

Nonetheless, it is not too late to create an effective Ombudsperson, as promised. A new statute, potentially an amended and expanded Bill S-211, could create these powers for the CORE.  Alternatively, the government could re-issue an Order in Council under the Inquiries Act. A commissioner under the Inquiries Act is automatically delegated the power to compel documents and testimony, and their purpose is investigative. Re-issuing the CORE’s Order in Council is neither complex nor time-consuming; it would be an efficient path to making the office robust enough to fulfill its mandate if new legislation does not provide these powers.

Conclusion

It is not in Canada’s best interests to create another office bound to fall short of addressing human rights abuses by Canadian corporations outside our borders. Canada publicly asserts respect for the fundamental rights of people abroad. It must now back its words with action. A significant number of Canadians and Canadian civil society organizations want the government to make good on its promise of an effective investigatory body. Such a body would help to prevent abuses as well as stop activities, such as those in La Sierrita, from continuing.

[i] MiningWatch Canada, “Unearthing Canadian Complicity: Excellon Resources, the Canadian Embassy and the Violation of Land and Labour Rights in Durango, Mexico” (February 2015) at 12, online (pdf): Miningwatch <https://miningwatch.ca/sites/default/files/excellon_report_2015-02-23.pdf>

[ii] Canada, Global Affairs Canada, Closing Report Request for Review File #2011-01-MEX (October 2011), online: <https://www.international.gc.ca/csr_counsellor-conseiller_rse/publications/2011-01-MEX_closing_rep-rap_final.aspx?lang=eng>

[iii] Canada, Parliament, House of Commons, Standing Committee on Foreign Affairs and International Development, Race to the Top: Improving Canada’s Extractive Sector Corporate Social Responsibility Strategy to Safeguard Human Rights In Latin America, 42^nd Parl, 1^st Sess (January 2019) at 12, online: Ourcommons <https://www.ourcommons.ca/Content/Committee/421/FAAE/Reports/RP10279319/faaerp22/faaerp22-e.pdf>

Abeni Steegstra is a second-year student at the Peter A. Allard School of law.  As a clinician in the International Justice and Human Rights Clinic, she is conducting research on supply chain legislation and responsible business laws and frameworks, including the CORE.