“The question remains, when will communities who live with Canadian extractive operations in their backyard finally have access to a fair, independent and impartial mechanism?” said Development and Peace communications director Kelly Di Domenico.
The question comes up after researchers at the Canadian Network on Corporate Accountability (CNCA) came upon hidden, year-old legal advice, commissioned by the government, that recommended using the Inquiries Act or independent legislation to give the Canadian Ombudsperson for Responsible Enterprise the necessary legal powers to complete an investigation. Development and Peace is a member of the CNCA.
The 29-page memo by lawyer Barbara McIsaac was commissioned in 2019 to clear up questions raised by a legal opinion submitted to the government by the Mining Association of Canada and the Prospectors and Developers Association of Canada. The mining industry lobbyists had commissioned the Fasken legal firm, headquartered in Toronto, to provide the legal opinion. It concluded there would be “very serious ... and ultimately insurmountable” complications in constitutional law to allow an ombudsperson to subpoena witnesses or compel companies to open their books and provide documents.
In 2015 the Liberals had made a political promise to replace the Extractive Sector Corporate Social Responsibility Counsellor with a more effective office, complete with investigatory powers.
By 2018 the government had begun the search for a new Canadian Ombudsperson for Responsible Enterprise and promised the new office would have full powers to compel witnesses and demand documents.
In April 2019 the newly appointed ombudsperson, Sheri Meyerhoffer, told The Catholic Register she and her office wanted full investigatory powers. But last year the Global Affairs website updated its description of the office, leaving out such powers.
Development and Peace, along with other NGOs, stepped away from a joint industry-NGO panel set up to advise the Minister of International Trade on human rights abuses and corporate behaviour overseas. The newly revealed legal advice only confirms the decision to walk away, said Di Domenico.
“We are disappointed that the government has willingly ignored the information and recommendations in the McIsaac report,” Di Domenico said.
McIsaac’s expert opinion was that there were legal obstacles to giving the CORE powers to subpoena witnesses and demand documents as the office is currently constituted.
“As a special advisor, the CORE has no power or authority to compel the production of documents or to compel individuals or corporations or other entities to co-operate with the review of a complaint or any fact-finding inquiry,” McIsaac wrote.
But the government could give the ombudsperson those powers by either reconstituting her office under the Official Inquiries Act or passing separate legislation, McIssac said, concluding that separate legislation is the clearest, least complicated route.
Global Affairs claims the CORE office exists to provide “advice and support to companies operating abroad” and offer “accessible dispute resolution.”
“The CORE is empowered to review cases either independently or jointly,” Global Affairs spokesperson Jasmine Murat said.
The problem is that companies can stop an investigation before it gets going by refusing to co-operate, said Osgoode Hall law professor Shin Imai, founder of the Justice and Corporate Accountability Project.
A process of mediation without first independently establishing the facts “makes it look good without them actually doing anything,” Imai said.
“That puts, I think, complainants in an even worse position,” he said. “That’s the problem. It isn’t just a half-step toward something that actually could be good. This may actually be a step backward.”
Currently the CORE has exactly the same powers as the previous Extractive Sector CSR Counsellor, Imai said. “In the case of the Corporate Social Responsibility counsellor there were only three cases that were headed toward mediation and in all three cases the mining company withdrew.”
Global Affairs insists the CORE is not a toothless tiger.
“Not collaborating in good faith can result in the imposition of trade measures — including withdrawal of trade advocacy support from the Government of Canada, including the Trade Commissioner Service, as well as refusal of future support from Export Development Canada,” Murat said.