Business and Human Rights Act - Model Legislation for Canada's International Extractive Sector

Model Legislation for Canada's International Extractive Sector


April 2018

Indigenous people are continuing to protest against Tahoe Resources, a Canadian mining company in Guatemala. Many indigenous human rights defenders have been intimidated on social networks and at home, arrested and subjected to various forms of violence such as police teargas. In April 2013, eight people were killed at the Escobal mine, owned by the Canadian company. 

Mine operations were suspended in July 2017 by the Guatemalan Constitutional Court, following the request of the human rights organization CALAS. The action demanded to temporarily suspend the license to operate the Escobal mine until the allegations of violating Xinca Indigenous people’s right for consultation are reviewed by the Court. In response to this decision, more than 2,000 Indigenous Xinka people marched through the streets of Guatemala City, demanding permanent closure of the mine. According to François-Philippe Champagne, Canada’s International Trade Minister, the Escobal mine may be one of the first investigations that the new Ombudsperson could conduct.

February 2018

In February 2018, Trudeau's Finance Minister Bill Morneau indicated that the Ombudsperson will receive $6.8 million over six years, funded through Public Services Canada’s existing budget, to conduct investigations.

January 2018

On 17 January 2018, Trudeau's International Trade Minister François-Philippe Champagne announced the long-promised creation of a new independent watchdog, the Canadian Ombudsperson for Responsible Enterprise (CORE). According to the government, the mandate of the ombudsperson will be “to address complaints related to allegations of human rights abuses arising from a Canadian company’s activity abroad.” In addition, the government announced the establishment of a new multi-stakeholder Advisory Body composed of individuals from both civil society and business. Its purpose will be to advise the Ombudsperson and the federal government on policy development and the social impact of businesses. 

The Ombudsperson will have a mandate to investigate complaints of alleged human rights abuses associated with by Canadian companies abroad. While its predecessor, the Extractive Sector Corporate Social Responsibility Counsellor, only focused on the extractive sector, the new Ombudsperson will not only investigate Canadian mining companies, but also textile, gas and oil companies. The new position will also be able to investigate without seeking authorisation from the companies concerned, which was not the case with its predecessor. 

“There’s no other such position in the world.” stated Julia Sanchez, president of the Canadian Council for International Co-operation. However, some have expressed concern that the new Ombudsperson who will not have the power to make binding recommendations or impose sanctions on companies. Nonetheless, he or she will be required to publish public reports with findings following an investigation and will have the mandate to recommend that the government withdraw support for a company on the basis of a finding of human rights violations.  This could include financing through Export and Development Canada. 

When exactly the CORE mechanism will be in place or who will be nominated is yet to be decided, but François-Philippe Champagne confirmed a nomination “as soon as possible” and a call for applications has been posted.

What Happened

Canadian companies are the most significant players globally in resource extraction, especially in mining. There are numerous and serious allegations of human rights violations linked to Canadian mining companies operating abroad, including credible allegations of gang rape, killings and slave labour. Despite repeated international outcry, recommendations from multiple international treaty bodies, recommendations from Canadian parliamentary committees, widespread advocacy and the development of concrete legislative proposals by Canadian civil society organisations, the Canadian government has not taken measures to regulate the actions of these companies. In response, the government has instead created voluntary dispute resolution mechanisms and endorsed a number of voluntary Corporate Social Responsibility standards that it says it expects companies to abide by. None of these mechanisms involve the investigation of complaints or the provision of remedies to victims. In 2016, the Canadian Network on Corporate Accountability launched the Global Leadership in Business and Human Rights Act which would create an independent ombudsperson for the extractive sector. During the 2015 federal election campaign, the Liberal Party promised to create an independent ombudsperson. However, since coming to power, the Liberals have failed to follow through on their promise in both the 2016 and 2017 federal budgets, and have not publicly reiterated this commitment.   


Canadian Mining Companies

Canada is a major player in the global mining sector. The majority of mining companies are incorporated in Canada and Canadian stock exchanges list more mining companies than any other stock exchange in the world. Over 50% the world’s mining and exploration companies had headquarters in Canada in 2013. Canadian mining companies are heavily involved in resource extraction in developing countries; with most companies investing in Latin America and Africa.

In 2007, the federal government launched its Global Markets Action Plan to expand Canadian trade into other markets. The plan promises that “all Government of Canada diplomatic assets are harnessed to support the pursuit of commercial success by Canadian companies and investors.” The services of the Trade Commissioner are also available to Canadian businesses. The Trade Commissioner offers companies “privileged access to foreign governments, key business leaders and decision-makers.” In summary, the Canadian government offers extensive support, both economic and diplomatic, to Canadian companies operating abroad.

Serious Allegations against Canadian Mining Companies

There are numerous and serious allegations of human rights and environmental violations against Canadian mining companies or their foreign affiliates and subsidiaries operating abroad. Two such examples are documented by Voices, Blackfire Explorations and Excellon Resources. Human rights defenders who criticize companies often experience threats, violence and criminalization. At present there are several cases in Canadian Courts claiming damages against Canadian mining companies operating abroad. In October 2016, the Supreme Court of British Columbia decided to exercise its jurisdiction and hear a case claiming human rights violations in Eritrea. In this case, a subsidiary of a Canadian company is alleged to have used a program of conscripted labour to build its gold mine, which was in fact claimed to have been forced and slave labour. Similarly, in January 2017, the British Columbia Court of Appeal held that Guatemalan protesters could sue a Canadian company in BC Supreme Court after being injured by private security officers at a mine in Guatemala that is owned through a subsidiary by the Canadian company. The Supreme Court of Canada declined to hear an appeal by the company, which means that this case is now authorized to go to trial in Canada. This shows that victims of abuses by Canadian companies can attempt to seek justice in Canadian courts. However neither the Canadian government, nor industry, have attempted to systematically document these conflicts.

In 2016, the Justice and Corporate Accountability Project (JCAP) published The “Canada Brand” Report: Violence and Canadian Mining Companies in Latin America (Canada Brand Report). This report systematically documents reported incidents of violence associated with Canadian mining companies operating in Latin America over a fifteen year period, from 2000 until 2015 (Canada Brand Report, p. 4-6). Using a recognized and rigorous research methodology, JCAP found that 44 people were killed and over 400 people were injured in conflicts related to Canadian mining companies in Latin America (Canada Brand Report, p. 12). The report concludes that there is close proximity between Canadian mining companies abroad and violence. The report goes on to document the fact that companies only disclosed 24% of these incidents of conflict and violence to their investors (Canada Brand Report, p. 24).

When foreign companies operate in developing countries (host states), it is often difficult to hold them accountable for the human rights impacts of their operations. While the host state should ensure that all rights are respected, in countries with weak governance or in areas of conflict with effectively no government, there is often no way for victims to access justice in their own countries. There is also no effective mechanism for holding a company accountable in its home country (for example Canada) for human rights violations that have occurred in the host state. In this context, companies involved in human rights violations or violence benefit from a situation of impunity. The problem of impunity for transnational companies operating in developing countries has been recognized by activists and academics around the world and various bodies of the United Nations.   


Canadian Law Reform Debate  

Canadian civil society organisations have called for the government to respond to the problem of impunity when it comes to Canadian companies operating abroad in the resource sector.  They argue that “there are virtually no regulations in Canada to prevent companies from taking advantage of weak environmental and labour laws or to hold them accountable for violations of human rights.” Civil society has consistently pushed for the Canadian government to regulate these companies and to withdraw government support and assistance in cases where the companies refuse to abide by human rights and environmental standards. Parliamentary debates on this issue began in 2005 with a report by the Standing Committee on Foreign Affairs and International Trade (SCFAIT).

The SCFAIT Report

SCFAIT intensively studied the activities of Canadian mining companies and found that:

“mining activities in some developing countries have had adverse effects on local communities, especially where regulations governing the mining sector and its impact on the economic and social wellbeing of employees and local residents, as well as on the environment, are weak or non-existent, or where they are not enforced.”

SCFAIT also insisted that:

“more must be done to ensure that Canadian companies have the necessary knowledge, support and incentives to conduct their activities in a socially and environmentally responsible manner and in conformity with international human rights standards.”

SCFAIT urged the Canadian government to provide stronger incentives to companies to “conduct their activities outside of Canada in a socially and environmentally responsible manner and in conformity with international human rights standards.” It stated that Canadian support of mining companies should be made conditional on “companies meeting clearly defined corporate social responsibility and human rights standards.” The Committee also recommended that Canada should “strengthen or develop new mechanisms for monitoring the activities of Canadian mining companies in developing countries and for dealing with complaints alleging socially and environmentally irresponsible conduct and human rights violations.” SCFAIT called for the creation of clear legal norms in Canada in order to ensure that “Canadian companies and residents are held accountable when there is evidence of environmental and/or human rights violations associated with the activities of Canadian mining companies.”

National Roundtables Advisory Group

In response to the SCFAIT recommendations, in 2006 the federal government created the National Roundtables on Corporate Social Responsibility (CSR) and the Canadian Extractive Industry in Developing Countries.  Following a series of roundtable meetings, an expert Advisory Group (composed of civil society, academic and industry representatives) issued a consensus Report (Advisory Group Report) in 2007 with many recommendations. One of the recommendations was to create an independent ombudsperson to advise, investigate and report on the behavior of Canadian mining companies operating abroad (Advisory Group Report, p. vi-vii). The Advisory Group’s proposed ombudsperson would advise Canadian companies on the implementation of corporate social responsibility standards, screen and investigate complaints, and publish its findings (Advisory Group Report, p. 23-24).

Building the Canadian Advantage: A Corporate Social Responsibility Strategy for the Canadian International Extractive Sector

The Canadian government waited two years to respond to the Advisory Group Report before it launched Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector in 2009. This policy did not incorporate the Advisory Group and SCAFIT recommendations and in particular it did not create an ombudsperson.

Rather, the policy’s stated objective was to “improve the competitive advantage of Canadian international extractive sector companies by enhancing their ability to manage social and environmental risks.” To this end, the policy encouraged companies to sign on to voluntary CSR Principles and included the statement that the government “expects and encourages Canadian companies operating abroad to respect all applicable laws and internationally-agreed principles of responsible business conduct.” The policy did not refer to human rights law, nor did it make diplomatic or economic support contingent on companies adhering to the policy.  Instead, it explicitly treated human rights concerns as “risks.”

The policy also created the Office of the Extractive Sector CSR Counsellor (CSR Counsellor) as a voluntary dispute settlement mechanism. It gave the CSR Counsellor a mandate to review the CSR practices of Canadian extractive companies operating abroad and to advise them on the implementation of CSR guidelines. The policy also allowed an individual, group or community who “reasonably believes that it is being or may be adversely affected by the activities of a Canadian extractive sector company in its operations outside Canada” to ask the CSR Counsellor to initiate a review. The CSR Counsellor could only undertake reviews with the consent of all parties involved. Therefore, if the company refused to be involved, that ended the process. Reviews consisted of only informal mediation.

The first CSR Counsellor served from October 2009 until October 2013. During that time the Counsellor dealt with only six cases.  In three cases the process ended because the company withdrew (CNCA Submission, p. 19). Advocates have argued that these six complaints completely failed to improve the dynamics of the conflict or resolve any of the issues.  CNCA’s assessment of the fate of these complaints concluded that the CSR Counsellor “has failed to successfully mediate a single case brought before it since its creation in 2009.” The CSR Counsellor resigned at the end of 2013 and a new CSR Counsellor was not appointed until March 2015. 

In summary, Building the Canadian Advantage did not create binding obligations on Canadian companies operating abroad. It did not create an independent fact finding mechanism and it did not provide remedies for victims. The Counsellor could not make binding recommendations on the company or to government, nor could it create new CSR standards or formally mediate between parties (Penelope Simons, p. 24-26).  Overall, advocates argue that the policy failed to effectively regulate the human rights impacts of companies’ activities (Charis Kamphuis, p. 1479).

Bill C-300: An Act Respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries

In light of the shortcomings of the Building the Canadian Advantage policy, in 2009 an individual Member of Parliament proposed private member’s Bill C-300 drawing on the SCFAIT and the Advisory Group recommendations. The purpose of the bill was to “ensure that corporations engaged in mining, oil or gas activities and receiving support from the Government of Canada act in a manner consistent with international environmental best practices and with Canada’s commitments to international human rights standards” (Bill C-300, s. 3). The bill called for the creation of a complaint mechanism to be administered by the Minister of Foreign Affairs and the Minister of International Trade. Canadians or residents of another country would have been able to file a complaint regarding the actions of a Canadian company (Bill C-300, s. 4). If the Minister found that a company had not met the standard of conduct outlined in the bill, the Minister would notify Export Development Canada and the Canada Pension Plan Investment Board, which would then be required to withdraw support from that company. Bill C-300 also required the Department of Foreign Affairs and International Trade to withdraw its diplomatic support of companies operating abroad if they did not meet the standards set out in the Act (Bill C-300, s. 9).

Bill C-300 was narrowly defeated in its third reading in October 2010 (Charis Kamphuis, p. 1468). Those who voted against the bill cited concerns that it would “negatively impact Canada’s competitiveness as a world leader in mining.” According to a number of academics, “the bill’s defeat [was] a missed opportunity for both the industry and Canada to take leadership roles in promoting ethical corporate conduct.”

Doing Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad

In 2014, the Government of Canada launched a new CSR policy called Doing Business the Canadian Way, replacing the Building the Canadian Advantage policy.  While the policy made some improvements to its predecessor, in general civil society organizations and academics argue that it falls short.

In this strategy, Canada clarified that it expects Canadian companies operating abroad to “respect human rights and all applicable laws, and to meet or exceed widely-recognized international standards for responsible business conduct.” Furthermore, where local laws are not consistent with “Canadian values”, the policy encourages companies to rethink their investment. While advocates have welcomed these references to human rights, they have also pointed out that the policy does not define the human rights standards and “Canadian values” that companies are to abide by (Penelope Simons, p. 12-13).  It also fails to “mandate or clearly set out the expectation that companies engage in comprehensive and ongoing human rights due diligence,” as required by United Nations statements on the matter (Penelope Simons, p. 12).

The role of the CSR Counsellor remained similar to that set out in the 2009 policy, namely to “offe[r] advice and guidance for all stakeholders on implementing CSR performance guidelines” and to develop effective and meaningful dialogue with affected communities. The CSR Counsellor may also “review the CSR practices of Canadian extractive sector companies operating outside Canada.” This review can be requested either by an affected individual or community, or by the company itself. In response, the CSR Counsellor can attempt to bring the parties together for informal dialogue aimed at reaching a “mutually beneficial result”. If this is not possible, the Counsellor can refer the parties to Canada’s National Contact Point (NCP) for formal mediation.  Notably though, this referral is not necessary since the parties can bring a complaint directly to the NCP.  (The NCP process, as well as its limitations, are described in the next section.) Overall, beyond referral to the NCP, the Counsellor lacks the power to help resolve the issues if the parties are not interested in mediation or if the mediation breaks down (Penelope Simons, p. 25-26). The CSR Counsellor cannot make findings of fact or initiate a formal investigation.

The policy - Doing Business the Canadian Way - does include some limited tools to “encourage alignment” with its CSR guidance and participation in dialogue, either at the NCP or with the support of the Counsellor.  For companies that align their operations with the policy, it promises “enhanced Government of Canada economic diplomacy”. For companies that refuse to participate in NCP or CSR Counsellor supported dialogue, and/or who do not embody CSR best practice, it threatens the withdrawal of the benefits of economic diplomacy. Finally, it states that non-compliance may be taken into account by Export Development Canada (EDC) in its decisions about state financing for companies. Advocates have seriously questioned the efficacy of these measures.  For example, in spite of these provisions, Canadian company China Gold recently refused to respond to a complaint made to the NCP or participate in the mediation process (Above Ground Report, p. 5).  Advocates have also pointed out that there is very little clarity in the policy about how these so-called penalties will be triggered and applied.  After China Gold refused to participate in dialogue, it nonetheless had the privilege of participating in a trade mission organized by the government of British Colombia (Above Ground Report, p. 5).

Penelope Simons, a University of Ottawa law professor and recognized expert in this area, has argued that Canada’s new strategy “although a step in the right direction, may, without important modifications, fail to meet widely accepted global standards on state and business conduct with respect to human rights” (Penelope Simons, p. 7). She writes that as it stands, “it may not succeed in preventing transnational corporate conduct that violates human rights or ameliorating the global reputation of the Canadian extractive industry” (Penelope Simons, p. 7). Advocates argue that voluntary standards, without independent audits or reporting, make it very difficult to ensure that companies comply with their human rights obligations.

In 2017 the United Nations Working Group on Business and Human Rights acknowledged the limitations of Canada’s current CSR policy and Counsellor.  It found that the victims of human rights abuses continue to struggle to seek adequate and timely remedies against Canadian businesses.  As such, it recommended that the federal government strengthen its CSR mechanisms “to ensure that individuals and communities impacted by the overseas operations of Canadian businesses are able to obtain effective remedy in Canada in appropriate cases.”

National Contact Point (NCP)

Canada’s NCP was created in accordance with its membership in the Organisation for Economic Co-Operation and Development (OECD). The role of the NCP is to oversee the OECD Guidelines for Multinational Enterprises (Guidelines). These Guidelines provide “non-binding principles and standards for responsible business conduct in a global context consistent with applicable laws and internationally recognised standards” (Guidelines, p. 3).  The  Guidelines relate to the “social, economic, environmental and human rights impacts” of companies on the societies in which they operate. The Guidelines are significant because they represent “the only multilaterally-endorsed comprehensive code of conduct that 46 countries have committed to promote.” However, the Guidelines are voluntary and there is no enforcement mechanism.

Nonetheless, concerned individuals or groups can engage Canada’s NCP dispute resolution process, either directly or with a referral from Canada’s CSR Counsellor. While participation is voluntary, Global Affairs has stated that “there are consequences if Canadian companies do not participate, or do not engage in good faith,” referring to the potential withdrawal of trade advocacy support specified in Canada’s CSR policy.

Advocates point out that there are a number of problems with the NCP process in Canada. A recent report by the Canadian NGO Above Ground (Above Ground Report) studied the NCP’s performance in five recent cases involving Canadian mining companies and allegations of serious harm. While each OECD country has discretion in how to structure its NCP, some countries have ensured that their NCP is completely independent of the government. However, this is not the case in Canada (Penelope Simons, p. 26-27).  Canada’s NCP is composed entirely of government representatives and is chaired by Global Affairs, whose mandate includes expanding trade and investment and providing special support to the natural resources sector (Above Ground Report, p. 17). Advocates have pointed out that this raises questions about the NCP’s impartiality and that Global Affairs may have a conflict of interest in hearing complaints against the very companies it is mandated to support (Above Ground Report, p. 17).

A second issue with the Canadian NCP is that it will not investigate complaints or make any findings, rather, it is only available to facilitate dialogue between disputing parties. When the NCP does issue recommendations, they often fail to address the issues between the parties and lack appropriate follow up mechanisms (Above Ground Report, p. 18-19). There are also concerns with transparency.  While the Canadian NCP’s procedural guidelines require it to issue either a public statement or a report following a complaint, the Above Ground Report found that in practice this form of reporting does not always occur and that the reporting that does occur is sparse (Above Ground Report, p. 17, 19). Moreover, advocates have raised concerns that the NCP applies a high threshold for accepting complaints and that its decisions not to mediate may be politicized (Above Ground Report, p. 18).    

In 2017 the United Nations Working Group on Business and Human Rights encouraged the Canadian government to make the NCP more independent, to provide it with the necessary resources to carry out its mandate, to improve the NCP’s transparency, and to have the NCP report detailed findings about any breach of the OECD Guidelines.

As noted above, while a company’s failure to participate in NCP mediation may result in the withdrawal of trade support and may be taken into account by Export Development Canada, it is unclear how it is being applied and there are doubts about its efficacy.  Moreover, other government services are not impacted and there are no consequences or penalties for a company that participates in dialogue but is not compliant with the OECD Guidelines.  In the Above Ground Report, companies named in credible complaints nonetheless continued to receive significant government support and investments from Export Development Canada and the Canadian Pension Plan (Above Ground Report, p. 20). 


International Organisations Call for Action

International human rights bodies and civil society groups have called upon the Canadian government to improve its CSR policies, including by developing a legal framework that regulates the human rights and environmental impacts of Canadian companies operating abroad, and provides remedies for harms.  Between 2002 and 2012, United Nations bodies and mechanisms made at least four different statements on this issue (CNCA Submission, p. 11-12).

There have also been three thematic hearings on this issue before the Inter-American Commission on Human Rights (2013, 2015 and 2016).  In 2015, members of the Commission called on the Canadian government to move beyond a “nice CSR policy” to address the real problems with Canadian companies in Latin America and referred to the issue in its 2016 Report on Extractive Industries.  Also in 2015, the UN Human Rights Committee (UNHRC) urged Canada to: a) enhance the effectiveness of existing mechanisms to ensure that all Canadian corporations, in particular mining corporations, under its jurisdiction respect human rights standards when operating abroad; b) consider establishing an independent mechanism with powers to investigate human rights abuses by such corporations abroad; c) and develop a legal framework that affords legal remedies to people who have been victims of activities of such corporations operating abroad.  In 2016 similar statements were made by the International Committee on the Elimination of Discrimination Against Women and the International Committee on Economic, Social and Cultural Rights. 

Organizations around the world are also calling on the Canadian government to improve its laws.  In 2016 more than 49 organizations worldwide have sent individual letters to Prime Minister Trudeau and more than 200 organizations signed onto a joint letter. In 2017, more than 80 Canadian university professors signed a letter to Prime Minister Trudeau calling on him to implement his promise to create an extractive industry ombudsperson.


Canadian Government Fails to Act  

During the 2015 federal election, the Liberal Party stated that it “shares Canadians’ concerns about the actions of some Canadian mining companies operating overseas and has long been fighting for transparency, accountability and sustainability in the mining sector.” The Liberal Party also praised the member who brought forward Bill C-300 and promised to act on the Advisory Group’s recommendations. However, after being elected, the Liberal government has made no apparent efforts to fulfil its promises and several Ministers declined to say if change is needed to existing policies.

In November 2016, the Liberal government assured advocates that it is “seriously considering” the creation of an independent ombudsperson that could investigate Canadian companies’ actions abroad. However, the 2017 federal budget once again failed to make good on the government’s assurances. While the Liberal government stalls on this issue, some European countries have begun to enact mandatory laws to ensure that their companies avoid complicity in human rights violations.


CNCA Draft Legislation  

The Canadian Network on Corporate Accountability (CNCA) unites over 30 organisations across Canada who work together to ensure that Canadian mining companies operating abroad respect human rights and the environment. The CNCA advocates for policy reform and for binding regulations on companies.

In late 2016, the CNCA released model legislation for the creation of an independent ombudsperson for the Canadian extractive sector. The proposed legislation is titled The Global Leadership in Business and Human Rights Act: An Act to Create and Independent Human Rights Ombudsperson for the International Extractive Sector (Proposed Act). The proposal is part of the CNCA “Open for Justice” campaign launched in 2013 which, in addition to advocating for the creation of an independent ombudsperson, calls for increased access to Canadian courts for individuals harmed by the actions of Canadian companies operating abroad.

Under this proposed legislation, the ombudsperson would have a mandate to receive human rights complaints against Canadian companies. It would have the power to investigate complaints and compel the production of documents and testimony under oath. The ombudsperson would be required to make findings of fact with regard to any harm caused, and issue a public report with any appropriate recommendations (Proposed Act, ss. 8, 10, 13). If the company does not follow these recommendations, the ombudsperson could ask the government to withdraw its support for the company. If the government does not comply, then the ombudsperson could ask the government to provide reasons for non-compliance. The ombudsperson could then apply to Federal Court for judicial review of the government’s decision (Proposed Act, ss. 14-15).


Statement by the United Nations Working Group on Business and Human Rights

In May 2017, the United Nations Working Group on Business and Human Rights paid a 10-day visit to Canada. During their stay, they met with government officials, business representatives, and civil society organizations, in order to “examine efforts to prevent and address adverse human rights impacts of business operations.” At the end of their visit, the Working Group issued a statement calling on Canada to “take (a) tougher line on business-related rights abuses …(and urged) … Canadian authorities and (the) business sector to step up their efforts to prevent and address adverse human rights impacts of business activities, both at home and abroad.” Among other recommendations, the Working Group stated that “Canada should encourage more robust human rights due diligence from extractive companies” operating abroad.

The Working Group concluded that significant gaps exist to accessing remedy in Canada relating to overseas business and human rights issues. The Working Group also made explicit mention of the establishment of an extractive sector ombudsperson and endorsed the creation of such an office.  They stated that “there is a role for an institution like an ombudsperson to provide effective remedy in a timely and inexpensive manner.” Furthermore, the Working Group highlighted the need for the government to “establish an entity which is independent, well-resourced, and has power to investigate allegations, conduct fact finding, and enforce its orders,” given Canada’s importance in the extractive industry’s global footprint.


The Government of Canada continues to refuse to regulate Canadian mining companies operating abroad in the face of substantial evidence of human rights violations and violence linked to these companies’ projects. It refuses to act despite 1) substantial evidence of a widespread problem; 2) numerous calls to do so from international human rights bodies and civil society groups in Canada and abroad and 3) its stated commitment to do so.  The federal government has ignored its own election promises as well as the SCFAIT and Advisory Group recommendations.  This failure to act is not consistent with the Trudeau government’s professed commitment to feminist rights-based foreign policy.

Relevant Dates:

June 2005 – Standing Committee on Foreign Affairs and International Trade (SCFAIT) issued its report Mining in Developing Counties and Corporate Social Responsibility. It recommended the creation of legal norms in Canada to regulate mining companies operating abroad, and the withdrawal of government support if these companies do not respect human rights standards.  

2006 – National Roundtables on Corporate Social Responsibility was created. One of the consensus recommendations of its expert Advisory Group was the creation of an independent ombudsman to advise, investigate and report on the behavior of Canadian mining companies operating abroad.

March 2009 – The Canadian government introduced Building the Canadian Advantage: A CSR Strategy for the International Extractive Sector. The policy encouraged companies to adopt CSR guidelines and it created the Office of the CSR Counsellor, with voluntary mediation powers. 

April 2009 – Bill C-300, An Act Respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries was introduced in Parliament. This would have required companies to abide by international human rights standards and it would have created a complaint mechanism. Bill C-300 would also have required the government to withdraw diplomatic and economic support from companies that did not meet human rights standards. The bill did not pass (it fell 6 votes short on second reading).

March 2010 – The Office of the Extractive Sector CSR Counsellor became operational. The CSR Counsellor provides a forum for companies and affected communities to voluntarily meet and discuss problems. 

May 2013 – CNCA launched the “Open for Justice Campaign.” The campaign calls for the creation of an extractive sector ombudsperson and for access to Canadian courts for individuals harmed by Canadian companies operating abroad.

November 2014Doing Business the Canadian Way was launched by the federal Government. This updated its previous Building the Canadian Advantage policy. The policy passes the mediation function of the CSR Counsellor to the National Contact Point.

2015 – UNHRC issued its Concluding Observations on the Sixth Periodic Report of Canada. It urged the government to regulate the behavior of Canadian companies operating abroad.  This was only one of numerous admonishments of Canada by international human rights bodies.

October 2015 – The Liberal Party in the lead-up to the 2015 elections promised to create an independent ombudsperson if elected. To date it has failed to fulfill this promise.

2016 – Hundreds of organizations from around the world sent letters to the Canadian government advocating for creation of independent ombudsperson.

November 2016 – CNCA released model legislation for creating an independent human rights ombudsperson for the international extractive sector.

January 2017 – The British Columbia Court of Appeal allows a case to proceed in BC Supreme Court. The case alleges that human rights violations were committed in Guatemala in connection with a Canadian mining company.

March 2017 – The federal budget was released.  It does not include any funds for the creation of an extractive industry Ombudsperson.

April 2017 – 80 Professors address a letter to Prime Minister Trudeau, urging him to fulfill his election promise of implementing an ombudsperson.

May 2017 – The UN Working Group on Business and Human Rights made a ten-day country visit to Canada. They met with representatives from the government, civil society and members of the business community in relation to transnational corporations and human rights.  

June 2017 – The Working Group issued a statement at the end of their visit, urging Canada to improve the human rights record of its transnational corporations and to create an extractive sector ombudsperson. The official report will be issued in June 2018. 

Implications and Consequences

Rule of law: There are often no effective laws regulating the human rights impacts of Canadian resource companies operating in developing countries. Individuals or communities harmed by the actions of Canadian companies often cannot access justice or hold companies to account.

Accountability: The Canadian government provides extensive diplomatic and financial support to Canadian companies operating abroad. Since there are no effective laws governing the human rights impacts of these companies, it is also difficult to hold the Canadian government to account for its support for these companies.

Human Rights: There is significant evidence of human and environmental rights violations in close proximity with Canadian mining companies operating in developing states. Human rights defenders who criticize these companies often experience threats, violence and criminalization. The absence of effective laws often means that there is no remedy for the victims of human rights violations.

Accountability: The Liberal party has not fulfilled its elections promises to Canadians who are concerned about the human rights record of Canadian resource companies.  The Canadian government has ignored strongly worded statements from numerous international human rights bodies and civil society groups in Canada and around the world.

Human Rights:  State regulation of the private sector that treats human rights impacts as “investment risks” is not consistent with the spirit of international human rights law.  Policies that appeal to “the business case” for corporate social responsibility are insensitive to the personal risks and costs that communities and human rights defenders face when criticizing or opposing resource extraction.     

Published: October 2, 2017; updated: July 9, 2018