A printable version of this report is provided below.
On October 29, 2024, experts from Canada, Africa, Asia, Latin America and Europe gathered to discuss global developments in business and human rights. The symposium, which was co-hosted by Above Ground and the Canadian Network on Corporate Accountability (CNCA), sought to identify opportunities for Canadian leadership on corporate accountability. The event was co-sponsored by Members of Parliament Sameer Zuberi (Liberal Party), Heather McPherson (New Democratic Party), Simon-Pierre Savard-Tremblay (Bloc Québecois) and Mike Morrice (Green Party), and by Senator Marilou McPhedran (non-affiliated).
The symposium began with opening remarks by Pearl Eliadis, human rights lawyer and Associate Professor (professional) at the Max Bell School of Public Policy and Faculty of Law, McGill University. Ms. Eliadis called for a human rights-based approach to corporate accountability, i.e., one that is grounded in international law and that imposes binding duties on Canadian companies when they operate internationally. She drew on research about national human rights institutions and the important role they can play in preventing human rights abuse. Research shows that the effectiveness of these institutions is associated with broad mandates and oversight powers, including enforcement and investigation powers. Moreover, their independence from government is critical. Ms. Eliadis noted that the Canada Ombudsperson for Responsible Enterprise (CORE) fails to meet these criteria, lacking both key investigatory powers and autonomy from government.
The need to bolster ground-breaking developments in Europe
Mora Johnson, Head of Secretariat, Voluntary Principles on Security and Human Rights, moderated a panel on lessons from mandatory human rights due diligence laws in Europe. Ms. Johnson observed that while the UN Guiding Principles on Business and Human Rights require companies to know and show that they understand human rights risks and to actively perform human rights due diligence, uptake has been slow. She emphasized that legislated, mandatory due diligence laws avoid the problem of relying on normativity, reputational risks and downstream pressures to induce company compliance. In addition, they create a level playing field for companies of comparable size within and sometimes across jurisdictions.
Pichamon Yeophantong, member of the UN Working Group on Business and Human Rights, emphasized that significant shortcomings persist regarding implementation and enforcement of the UN Guiding Principles. She explained that while national action plans and other voluntary measures can serve as a good starting point, they are insufficient to discharge the state duty to protect and the corporate responsibility to respect human rights. Corporate abuses continue to happen with impunity in many parts of the world where governance and protection gaps persist, especially in the Global South. In addition to guaranteeing the right to an effective remedy by strengthening judicial and non-judicial mechanisms, it is equally critical to get businesses to conduct human rights due diligence which is central to preventing these abuses. Canada has an opportunity to demonstrate global leadership by moving towards mandatory human rights due diligence measures, as opposed to mere reporting requirements focused on forced or child labour. Adopting human rights due diligence legislation can help enhance the ‘smart mix of measures’ and address gaps in the existing regulatory framework.
Dominique Potier, member of the National Assembly of France, was involved in the development of the French Duty of Vigilance law adopted in 2017. Mr. Potier explained that the law was developed in cooperation with civil society organizations (e.g. NGOs, unions, academics, etc). It seeks to prevent human rights abuse by naming and sanctioning corporate wrongdoing. Business opposition to the law was ferocious but the Rana Plaza tragedy raised awareness regarding the need for a legal mechanism. The French law was revolutionary in spirit but modest in formulation. However, it paved the way for a true legal revolution in Europe in the form of the EU Corporate Sustainability Due Diligence Directive (CSDDD). That said, given prevailing political trends, recent legislative achievements in Europe are fragile. They must be buttressed with similar mechanisms in other jurisdictions or risk being eroded.
Anna Cavazzini, German member of the European Parliament, explained that due diligence legislation adopted in Germany is under attack. Many small- and medium-sized enterprises present in large companies’ supply chains complain that due diligence obligations have been unfairly passed onto them. In addition, the German law suffers from significant shortcomings, such as the lack of a civil liability mechanism and weak provisions regarding the nexus between human rights and the environment. Ms. Cavazzini noted that the EU CSDDD addresses these challenges. She emphasized the importance of creating a global network of supply chain legislation and the critical role that Canada can play in this regard.
Lara Wolters is a Dutch member of the European Parliament who played a key role in the development of the EU directive. That process, which took five years, required a multi-party initiative and close cooperation with civil society organizations. While the initiative faced staunch resistance from the private sector, companies were divided. One camp was opposed to any legislation. Another group sought the clarity and level playing field offered by a law but objected to provisions regarding liability. In the end, compromise prevailed (such as the law’s application to large, as opposed to all, companies). EU states must now “transpose” the directive into national law. Enforcement will take place nationally, although state interpretation can be challenged in EU courts. The European Commission, which is responsible for ensuring state implementation, will provide practical guidelines to support corporate compliance.
Mobilizing to prevent and remedy business-related harm: global perspectives
Michèle Asselin, Executive Director, Association québécoise des organismes de coopération internationale (AQOCI), moderated a panel of speakers from diverse jurisdictions who shared their experiences working to prevent and remedy business-related harm.
Elvin Hernández is a human rights investigator at ERIC-Radio Progreso in Honduras. He described the grave human rights violations linked to mining operations in his country. He explained that Canadian mining multinationals rely on local entities to create opacity regarding legal responsibility for these harms. Canadian companies represent a powerful political lobby in his country, where they have achieved major regulatory reforms. Mr. Hernández emphasized the need to impose controls that establish clear lines of responsibility for damage. This is impossible domestically in Honduras where the state is weak, corruption is rife and human rights defenders face extremely serious threats. Due diligence laws in corporate home states like Canada can help in this context and will generate pressure on the Honduran government.
Lyse Mpema is Coordinator at the African Coalition for Corporate Accountability (ACCA). Ms. Mpema also focused on the mining sector, describing a range of adverse impacts including those associated with poorly managed community displacement that fails to provide adequate infrastructure and compensation. She identified a number of community strategies in response, including mobilizations and local protests, awareness-raising campaigns, and lobbying and advocacy work. Organizations also facilitate capacity-building initiatives to generate independent data, such as through water quality testing. In addition, some communities seek remedy through the courts, including in corporate home states such as Canada. ACCA, which includes organizations in thirty-one countries, works to give a voice to communities that aren’t being heard.
Mehmet Tohti, Executive Director at the Uyghur Rights Advocacy Project (URAP), identified diverse consumer products imported to Canada that are produced with Uyghur forced labour. Mr. Tohti discussed the need to regulate institutional investors, such as pension and university endowment funds, to prevent investment in companies that profit from forced labour in China. Global Affairs Canada is preparing new legislation that the Canadian government will soon table to address forced labour imports. This is a key tool in the fight to halt China’s genocide against the Uyghur people. In the case of goods sourced from China, where forced labour is a state-sponsored policy, Canadian legislation should establish a rebuttable presumption that goods are produced using forced labour. Such a presumption is necessary because Canada Border Services Agency is unable to access the information needed to make proper assessments. The URAP has submitted several outstanding cases to the Canada Ombudsperson for Responsible Enterprise.
Matt Eisenbrandt, the Director of Transnational Investigations at CFM Lawyers, discussed efforts in Canada since 2010 to hold Canadian parent companies to account before the courts for harms committed overseas.1 He noted that fifteen years ago, it wasn’t clear this kind of litigation would be possible in Canada, but since then plaintiffs have found success in a number of cases. Choc v. Hudbay concerned allegations that mine security personnel carried out gang rapes and shootings causing death and serious injury. Garcia v. Tahoe involved allegations that mine security staff shot at and injured the plaintiffs. Both cases settled out of court. The plaintiffs in the Araya v. Nevsun case alleged they were conscripted into a forced labour regime in Eritrea to work in a mine co-owned by Nevsun and the Eritrean government. The Supreme Court of Canada ruled in favour of the plaintiffs on two preliminary issues, including rejecting Nevsun’s argument that corporations enjoy a blanket exclusion from liability under international law. The suit ultimately settled. Finally, John v. Barrick is currently before the courts. The plaintiffs argue they were shot at or tortured by Tanzanian police allegedly working at a mine owned by Barrick.
Next steps for Canada on business and human rights
Ketty Nivyabandi, Secretary General of Amnesty International Canada, moderated the final session of the symposium, a roundtable to explore the path forward in Canada. She asked speakers to identify barriers to progress and to propose solutions.
Shane Moffatt is the Director of the Canadian Network on Corporate Accountability (CNCA). He identified the corporate lobby and its power over the legislative process as a key impediment to progress. He called for people power to counter corporate capture of the state. Mr. Moffatt said that voluntary initiatives get in the way of establishing mandatory standards and emphasized that a binding international framework would help create a level playing field for companies that are trying to do the right thing.
Masud Husain is the interim Canada Ombudsperson for Responsible Enterprise (CORE). Mr. Husain identified a number of ambiguities associated with his mandate. For example, he explained that the Order in Council (OIC) that created the office does not explicitly empower the Ombuds to make positive findings that complaints are founded, and instead speaks only to determinations that allegations are unfounded. He argued that the Ombuds could expose itself to legal challenge (i.e. judicial review) if it makes a finding that a company has abused human rights. He emphasized that the OIC grants the Ombuds vast discretion in the realization of its mandate and noted that people may question the soundness of this design. Mr. Husain identified the “notoriously vague” nature of international law as a further challenge.
Katrin Recke, Senior Manager, Responsible Supply Chains, European Brands Association (AIM), was involved in the process to develop the EU due diligence directive. The brands industry was supportive of a harmonised due diligence legal framework across Europe to set a level playing field for businesses and to provide legal certainty. A key challenge to that process was the last minute decision by a major economic power to withdraw its support, arguing that the measure would disadvantage European businesses. AIM and other parties mobilized to neutralize this threat, arguing that the law would make European business supply chains more resilient in the future and that a harmonised framework is needed to avoid EU Single Market fragmentation Another question concerns a provision in the directive that encourages business entities to collaborate to identify and remediate risks, which is very much supported by brands. Work is currently underway to ensure that such collaboration does not run afoul of anti-trust regulations. AIM is continuing to provide input into the implementation phase of the due diligence directive to help develop guidance for companies to address areas of the directive that require additional clarity.
Kevin Thomas is the CEO at Shareholder Association for Research and Education (SHARE). He raised concerns about a proliferation of standards, the risk that these standards contradict one another and a situation where companies do the minimum to show that they’re responding to diverse standard sets. Some Canadian companies, especially large ones, are governed by EU laws. Mr. Thomas argued that setting the bar low in this context to “help” Canadian business is nonsensical and actually makes things more difficult for companies. He emphasized that a one-size-fits-all approach won’t work with human rights due diligence given the diversity in business supply chains across sectors and identified the need to support companies as they navigate this new terrain.
Alex Greco, Senior Director of Manufacturing and Value Chains at the Canadian Chamber of Commerce, argued that companies need clearer guidance. Small businesses in particular lack the resources to navigate compliance, and the government should offer more support. Mr Greco also emphasized the need for forced labour measures to align with best practices from major trading partners, simplifying cross-border trade by reducing discrepancies in standards and enforcement. To ensure effectiveness, the federal government must take a pragmatic approach by consulting stakeholders on critical issues related to goods or regions at risk of forced labour. A collaborative effort between government and business, supported by an advisory table on business and human rights, would be key to addressing these risks.
Penelope Simons, Professor and Gordon Henderson Chair in Human Rights at the Faculty of Law, University of Ottawa, argued that we must address the power of the corporate lobby and galvanize political will to prioritize respect for human rights and business activity. Concrete suggestions include adopting the private member’s bill tabled by MP Heather McPherson to strengthen the CORE; adopting human rights due diligence legislation to level the playing field; providing human rights training to government officials and in business schools; regulating lobbying activity more stringently and adopting other controls to prevent corporate capture; and ensuring greater coherence across government policies, including trade and investment agreements.