Rights: Canada urged to step up efforts to address business-related abuses

The United Nations Working Group on business and human rights has urged the Canadian government as well as the business sector to step up their efforts in addressing the adverse human rights impacts of their business activities, both at home and abroad, in particular in the extractives sector and other industries.

At the end of its official ten-day visit to the country on 1 June, the UN Working Group on human rights and transnational corporations and other business enterprises also called for meaningful consultation with indigenous peoples in the context of business activities on their lands.

The members of the Working Group are Mr Michael Addo (Chair), Mr Surya Deva (Vice-Chair), Mr Dante Pesce, Ms Anita Ramasastry and Mr Pavel Sulyandziga.

"As Canada seeks to advance the monumental task of reconciliation with indigenous communities, and create a new nation-to-nation relationship based on equal respect and dignity, the Government and businesses must integrate indigenous peoples' rights into their policies and practices governing the exploitation of natural resources," said Mr Deva, vice-chairperson of the Working Group, in a news release.

"Meaningful consultation and holistic impact assessment can be a driving force behind the righting of wrongs committed in the past," he added.

In a statement issued following the end of its visit, the Working Group welcomed that the Canadian government is demonstrating leadership in promoting human rights, including of women, both within and outside Canada.

In relation to business and human rights specifically, efforts in Canada to promote the corporate responsibility to respect human rights, in line with the United Nations Guiding Principles on Business and Human Rights, have primarily focused on human rights abuse in the extractive sector and on business operations of Canadian companies abroad, it said.

This is illustrated by the 2009 CSR (Corporate Social Responsibility) Strategy for the Canadian International Extractive Sector, which was updated in 2014, and the ongoing advocacy of Canadian civil society organizations to strengthen this national strategy.

Another salient feature of Canada's business and human rights landscape is the situation of the country's indigenous peoples.

"Underlying many of our conversations about business and human rights in Canada was the need to create a new relationship with indigenous peoples based on equal respect, dignity and human rights. We appreciate the recent commitment made by the federal government to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)," said the rights experts.

They said that the extractive sector was a particular area of focus during their visit, because of the importance of this sector to Canada's economy, and the industry's global footprint.

Canada is home to more than half of the world's mining companies, operating in Canada and across the globe, and is also a centre for extractive sector finance, with 57% of the world's public mining companies listed on the TSX and TSX-Venture Exchanges.

Overall, the extractive industry (mining and oil and gas extraction) in Canada accounts for around 7% of the country's GDP, with the mining sector being the largest private sector employer, employing some 375,000 persons.

"We believe that there is greater room for both federal and provincial governments, industry associations and companies, to consider their activities both domestically and overseas through a human rights lens, using the UN Guiding Principles as a baseline to assess corporate respect for human rights."

The rights experts said that they found evidence of some emphasis on the Guiding Principles with respect to the Canadian extractive sector abroad, but in the domestic context, the focus appeared to be more on sustainability, environmental protection and the rights of indigenous communities.

"We note that the Canadian federal government has undertaken key initiatives to address business and human rights in the extractive sector. Canada, for example, is one of the nine governments that are members of the Voluntary Principles for Security and Human rights."

Concerns about reported abuse by Canadian companies operating abroad and access to remedies by victims have been raised by international human rights treaty bodies, such as the Committee on Civil and Political Rights; the Committee on Economic, Social and Cultural Rights; and the Committee on the Rights of the Child.

According to the Working Group, cases of alleged human rights abuse by Canadian companies abroad are also tracked by civil society organizations and continue to be a cause for serious concern.

One recent study reported 30 targeted deaths and 709 cases of "criminalisation", during the period from 2000 to 2015, associated with the operations of 28 Canadian companies.

The Business and Human Rights Resource Centre identifies Canada as one of the top three countries with companies connected to reported cases in its database of threats to human rights defenders.

The Working Group noted that the current enhanced CSR strategy for the extractive sector is derived from the CSR Extractive Sector Roundtables convened by the federal government in 2006.

"There is room for Canada to broaden and deepen its emphasis on business and human rights in its CSR strategy," it said.

It further noted that the UN Guiding Principles calls upon companies to conduct human rights due diligence to identify, mitigate and re-mediate adverse human rights impacts in business operations and business relationships.

"We heard from many stakeholders that Canada should encourage more robust human rights due diligence from extractive companies and should begin to address issues such as human trafficking/modern slavery and other human rights abuses in global supply chains. We would encourage the federal government to examine how it might use regulatory measures focused on mandatory due diligence and non-financial disclosure as means of promoting respect for human rights."

At present, it appears that the provincial governments are not actively involved in promoting business and human rights as part of their own trade and investment promotion activities.

Since most of the companies are incorporated at the provincial level, there is an opportunity for provincial governments to promote respect for human rights through their own trade promotion.

The experts also found that adverse human rights impacts related to the extractives and other industries are not limited to operations outside Canada.

"During the visit, we heard testimonies about adverse impact of extractives' activities on the environment and human rights, including the rights of indigenous peoples. It is often not possible to draw a clear distinction between efforts to promote corporate respect for human rights in Canada and abroad. Often business operations in Canada are linked to human rights outside Canada through supply chains and business relationships."

Indigenous peoples in Canada - First Nations, the Metis Nation, and Inuit - make up around 4% of the total population, representing more than 600 distinct nations and more than 60 indigenous languages.

Around half of these peoples live on their traditional lands. Many of these indigenous people live under a very low level of socio-economic development as compared to other Canadians.

For instance, despite being a water-rich country, many indigenous communities, especially those living in remote parts, do not have adequate access to safe drinking water.

The experts called on the Canadian government to pay special attention to the needs of indigenous communities while implementing the Sustainable Development Goals.

They said part of the backdrop to their visit were visible protests by indigenous communities to several large- scale development projects, such as the proposed expansion of the Trans Mountain oil pipeline, the construction of a large-scale hydroelectric dam (Site C Dam), and continued expansion of development projects of extractives industries.

In several indigenous territories, extensive mining and oil and gas extraction are accompanied by significant adverse environmental impacts affecting the right to health.

According to the Working Group, a main grievance expressed by indigenous peoples concerns the lack of meaningful consultation in the context of business activities on their lands.

The Canadian Supreme Court has established in a series of decisions since 2004 that the Government has a legal "duty to consult" with indigenous peoples.

"While the duty rests with the Crown, we learned that in some provinces consultations about business operations impacting indigenous rights are delegated to and carried out by business enterprises, with limited government oversight. We also observed that there was often a lack of trust about whether consultations were carried out in good faith."

Another concern expressed by indigenous peoples was that initial mineral exploration could be carried out and claims staked on indigenous land without prior notification to the affected communities.

"We learned that in some provinces companies are only required to notify when more heavy machinery is used for mineral exploration, and in most provinces actual consultation only became mandatory as part of the request for permission to start actual extraction."

When consultations only start at a stage when significant investments have already been made, these tend to become a "check-box" exercise rather than genuinely seeking to obtain the informed consent of affected communities.

Both the Government and businesses should appreciate that unlike other people, indigenous communities share a unique relation with their land, a fact that should be kept in mind while engaging them to obtain "free prior and informed consent" as per UNDRIP, said the Working Group.

"We learned that some companies are finding a business case for a stronger engagement with indigenous communities as part of their social license to operate. Nevertheless, we saw a need for stronger engagement of the federal and provincial Governments to facilitate meaningful consultation processes which consider impact assessment of projects in a cumulative, independent, gender-sensitive and holistic manner."

The rights expert said that they heard from a number of stakeholders concerns regarding labour rights, especially of those pertaining to persons with disabilities, foreign temporary workers, seasonal agricultural workers and subcontractors.

The minimum wage in Canada does not provide for a living wage and a decent living for workers and their families (as required under the International Covenant on Economic, Social and Cultural Rights to which Canada is a party).

"In this regard, we welcomed the announcement made by the Government of Ontario that it will raise the provincial minimum wage to $15 an hour by 2019 and make changes to the provincial Employment Standards Act aimed at promoting better work-life balance for employees."

The experts also found that women experience adverse human rights impact of business activities differently from men.

They observed that certain social, economic and cultural structures in Canada still constrain the extent to which women's unique experiences are recognized in the business and human rights landscape.

Consequently, women continue to suffer from pay disparity, gendered division of work, harassment at workplace, and under-representation in top decision-making positions.

Out of 677 companies listed on the Toronto Stock Exchange, women made up only 12% of all board seats and 45% companies had not even a single woman on their boards.

Canada has a number of mechanisms such as courts, human rights commissions/tribunals, the National Contact Point (NCP), and the CSR Counsellor to provide remedies for business-related human rights abuses.

Nevertheless, the experts found evidence of the victims of human rights abuses continuing to struggle in seeking adequate and timely remedies against Canadian businesses.

"We therefore recommend the federal government to work with the provincial governments to strengthen access to both judicial and non-judicial remedial mechanisms."

Moreover, steps should be taken to ensure that even individuals and communities impacted by the overseas operations of Canadian businesses are able to obtain effective remedy in Canada in appropriate cases.

"We acknowledge the efforts of the Government to provide remedies, but feel there are still significant gaps that need to be addressed, as victims of rights abuses still struggle to access adequate and timely remedies," said Mr. Deva.

During its visit, the Working Group heard concerns that Canadian extractive companies are not doing enough to protect to protect human rights defenders, who have been subjected to arrest, harassment, intimidation, criminalisation, sexual violence, and killing.

"We are pleased to hear about the Federal Government's new guidelines to support human rights defenders. We note with appreciation that the guidelines do recognize that Canadian business entities have a key role to play with respect to support for human rights defenders."

During its visit, the Working Group was told of the criminalisation of peaceful protests and the use of security personnel and police to break up and arrest activists who were exercising their democratic right to protest against extractive projects both within and outside Canada.

The government should work with all relevant stakeholders to ensure more space for peaceful dissent and protest at home and abroad, it said.

"It is imperative that both Government authorities and businesses show leadership and take a clear stance that attacks on individuals and communities will not be tolerated," said Ms Ramasastry.

"The Canadian Government's new policy guidelines on supporting human rights defenders - Voices at Risk - is a promising first step in this regard," she added.

A common theme that the Working Group observed is the absence of a coherent policy framework to promote business respect for human rights, a problem which is exacerbated by the complexity of division of powers between the federal government and provincial governments.

The Working Group noted the federal government is responsible for the oversight only of business enterprises that are federally incorporated (around 11% of the total of 2.6 million businesses incorporated in Canada).

Regulation and oversight of most companies falls under the jurisdiction of individual provincial governments, each with their own independent regulatory framework.

"We would encourage the federal government to assume leadership to drive greater coherence between the federal and provincial governments."

The Canadian government should also ensure that its existing as well as future trade and investment agreements include adequate safeguards to protect the environment, human rights and labour rights, the Working Group recommended.

By Kanaga Raja.

Source: SUNS - South North Development Monitor, SUNS #8475 Tuesday 6 June 2017.