NationTalk: Slaw – Businesses are deeply implicated in abuses of human rights defenders worldwide. In 2021 more than “a quarter of lethal attacks were linked to resource exploitation,” according to Global Witness. Indigenous Peoples are disproportionately attacked. Over 40 percent of fatal attacks targeted Indigenous people who make up only 5 percent of the world’s population. One in ten defenders killed were women, two-thirds of whom were Indigenous.
Canada’s record of business abuses of human rights increasingly attracts international criticism. Canada is home to about half the world’s extractive companies operating in nearly 100 countries. When Indigenous land rights defenders protest business or government incursions on their lands, they are likely to be vilified, stigmatized, criminalized, threatened, or attacked. Canada is no exception.
Canada’s promises
Protection of human rights defenders around the world is one of six pillars supporting the Canadian government’s May 2023 announcement of its plan to seek election to the United Nations (UN) Human Rights Council in 2028-2030. Canada also pledges to advance “the rights of Indigenous peoples and reconciliation” and to respond “justly to climate change.” Business and human rights are not on the list.
Canada’s announcement came during the months of preparations for its upcoming Universal Periodic Review (UPR) by the Human Rights Council on 10 November 2023. The UPR assesses the human rights record of all UN member States every four-and-a-half years. At its 2018 UPR, Canada supported recommendations that it improve accountability of corporations for rights violations abroad, including access to justice for victims.
Canada’s National Report for its 2023 UPR opens by observing that commitment to human rights is “a fundamental part of Canadian identity.” It is fair to ask whether Canada’s record matches its reputation – and whether Canada fulfills the UN requirement that countries elected to the Human Rights Council “shall uphold the highest standards in the promotion and protection of human rights, [and] shall fully cooperate with the Council.”
International initiatives to address business and human rights
Concern about business abuses of human rights worldwide has led to several international initiatives, including the:
- UN Human Rights Council’s 2011 Guiding Principles on Business and Human Rights (UNGPs), outlining obligations of States to protect human rights, businesses to respect human rights, and both States and businesses to remedy breaches in which they are involved;
- Organisation for Economic Co-operation and Development (OECD)’s 2011 Guidelinesfor Multinational Enterprises, with National Contact Points in cooperating countries to mediate complaints of violations;
- UN Human Rights Council Working Group on business and human rights (WGBHR), established in 2011, which issued 2021 guidance on ensuring respect for human rights defenders as set out in human rights instruments including the UN Declaration on Human Rights Defenders;
- UN Intergovernmental Working Group (IGWG), established by the UN Human Rights Council in 2014 to elaborate a legally binding instrument on business and human rights;
- UN Declaration on the Rights of Indigenous Peoples (UNDRIP), 2007, which, among other things, requires States to “consult and cooperate in good faith with the Indigenous peoples concerned… in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources…”
- Inter-American Commission on Human Rights (IACHR) Business and Human Rights: Inter-American Standards (2016), which note IACHR’s expectations that States establish mechanisms “to secure better human rights practices of their corporate citizens abroad” and “that indigenous peoples be consulted on any matters that might affect them … noting that the purpose of such consultation … should be to obtain their free and informed consent as prescribed in…the [UNDRIP].” The Inter-American human rights system has considerable jurisprudence on business and human rights.
This column focuses on Canada’s implementation of UN recommendations.
Canada’s responses to UN scrutiny on business and human rights: No coherent action plan
Allegations of Canadian businesses’ abuses of human rights abroad and at home have attracted escalating concern by UN treaty bodies and the UN Human Rights Council’s Special Procedures. The rights of Indigenous Peoples are of particular concern.
Canada’s responses to UN human rights initiatives and recommendations have ranged from resistance or silence to specific policies and legislation. Canada’s steps to foster adherence by Canadian corporations with the UNGPs and OECD Guidelines have so far relied almost exclusively on voluntary compliance.
Canadian governments have no coherent action plan on business and human rights. Civil society organizations have criticized government initiatives as weak and piecemeal.
Canada’s policy on protection of human rights defenders: “Two faced”
Canada is recognized internationally for its “Voices at Risk” policy. Launched in 2016 and updated in 2019, the policy seeks to protect defenders globally. The guidelines are based on UN human rights treaties and the UN Declaration on Human Rights Defenders.
The federal government says the guidelines are implemented through measures such as recommendations during UPRs of other countries as well as diplomatic efforts. Human rights advocates have criticized implementation of the policy by Canadian diplomatic missions as two faced.
A civil society report for Canada’s upcoming UPR documented research and case studies from Mexico, Guatemala and Peru, showing how Canada’s emphasis on “economic diplomacy” to support Canadian extractive companies has often trumped Canada’s policy to protect human rights defenders.
Defenders domiciled abroad are not the only ones lacking consistent support. In an egregious example, the Canadian embassy in Peru failed to support a Canadian environmental human rights defender who, in 2017, was surveilled, vilified, arrested, detained for several hours, and subjected to spurious charges by Peruvian National Police (PNP) because of her peaceful human rights advocacy, including screening of a film about rights abuses in Peru by Hudbay, a Canadian mining corporation with security contracts with PNP officers.
Recommendations of the UN Working Group on Business and Human Rights: Unfulfilled
The UN Working Group on Business and Human Rights visited Canada in 2017, making a number of recommendations in 2018. Canada has not fulfilled the Working Group’s recommendation to develop a National Action Plan (NAP) on business and human rights. The Working Group welcomed Canada’s then planned Ombudsman for Responsible Enterprise, but Canada has not subsequently fulfilled its promise of independence and investigative powers for the mechanism (discussed below).
The Working Group also expressed concern about lack of access to Canadian courts for people harmed by overseas operations of Canadian businesses. It urged Canada to “take measures to remove… barriers to access to judicial remedies, including for foreign plaintiffs, rather than wait for the courts to develop principles.”
Foreign plaintiffs continue to wait. For example, Indigenous plaintiffs from Guatemala have been in the Ontario Superior Court of Justice since 2010 seeking reparations for shootings, murder and gang-rapes allegedly committed by Hudbay’s security personnel at Hudbay’s Fenix mine in Guatemala. While in 2013 the Court made a groundbreaking ruling that the plaintiffs could sue Hudbay in Canada for alleged actions of its Guatemalan subsidiary, a decade later no trial has been held.
Canadian Ombudsperson for Responsible Enterprise: Toothless
Canada has taken only half-measures to hold corporations accountable for their conduct. The Canadian Ombudsperson for Responsible Enterprise (CORE) was launched in 2019 to promote the UNGPs and the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, and to review and mediate complaints about violations by Canadian corporations.
The CORE’s 2022 annual report says the office is guided by international standards for ombudspersons, the Venice Principles. Yet, the Venice Principles stipulate that ombudspersons should have an enforceable right of access to documents and power to interview or demand explanations and responses from officials and authorities. The CORE has no such powers.
Civil society organizations and academics have criticized the CORE as failing to fulfil the federal government’s 2018 promises of an independent, effective corporate accountability mechanism. Instead, the government created a toothless body which has neither independence nor power to compel documents or witnesses. These deficiencies have predictably led to a low level of complaint resolution with limited cooperation from corporations about which complaints have been lodged.
Canada’s “modern slavery” legislation: Promises more than it can deliver
In May 2023, Canada adopted the Fighting Against Forced Labour and Child Labour in Supply Chains Act (“Bill S-211”). While it has been lauded by some as a “start,” the title of the law promises more than its provisions can deliver.
Bill S-211 precludes the export into Canada of goods “mined, manufactured, or produced” even in part, by forced or child labour. The legislation also fosters transparency from large corporations, requiring them to file annual reports about their due diligence processes and efforts to address forced labour and child labour in their supply chains. However, the Act provides no requirement that companies conduct due diligence to curtail forced or child labour in their supply chains. The law does not address the full range of corporate human rights abuses or environmental harms.
In March 2022, a member of the UN Working Group on Business and Human Rights noted that Bill S-211 falls short of the UN Guiding Principles. He cited its narrow scope and the fact that it merely imposes an annual reporting obligation on selected business enterprises. He recommended a “comprehensive human rights due diligence law covering human rights, labour rights, environmental rights and climate change” and provision of access to effective remedies. In November 2022, the Canadian Network for Corporate Accountability, comprising dozens of civil society organizations, rejected Bill S-211 as “flawed and meaningless.”
International binding instrument on business and human rights: Canadian resistance
In June 2014, the UN Human Rights Council created an Intergovernmental Working Group to elaborate a legally binding international treaty on business and human rights. Canada has resisted the idea of a binding instrument and has not participated in negotiations.
International recommendations to uphold Indigenous land rights: Business as usual
Laws to implement the UNDRIP were passed by BC in 2019 and the federal government in 2021. These welcome laws require BC and Canadian governments to create action plans and annual reports for gradual implementation of the UNDRIP into law.
A recent BC Supreme Court decision in cases of Gitxaala and Ehattesaht First Nations confirms that the BC law does not, in itself, incorporate UNDRIP into law, and confers no justiciable right to a court remedy requiring BC to amend the Mineral Tenure Act to ensure its compliance with UNDRIP’s requirement of free, prior, and informed consent by Indigenous Peoples to mining activities on their lands.
Since 2004, the UN Special Rapporteur on the Rights of Indigenous Peoples has visited Canada three times. The Special Rapporteur’s 2004 report urged Canada to fulfil the recommendations in Canada’s 1996 Royal Commission on Aboriginal Peoples regarding self-government and land rights, including management of natural resources and environmental protection.
A decade later, in 2014, his successor reported lack of federal and provincial compliance with the international law duty to consult Indigenous peoples on business activities affecting their territories.
The Special Rapporteur visited Canada again in February 2023. The current mandate-holder criticized Canada’s failure to adequately address the impact of business activities and climate change on Indigenous Peoples. He noted that the extractive industry is “at the root of conflicts created by the criminalization of Indigenous Peoples defending their lands and resources from companies and governments who support the projects of those companies.”
He was concerned about business encroachments on Indigenous territories without fulfilment of UNDRIP’s requirement of free, prior, and informed consent. He referred to reports of denial of land rights, criminalization, threats, and vilification of peaceful Indigenous land rights defenders, singling out concerns about threats by militarized Royal Canadian Mounted Police (RCMP) against peaceful protestors on Wet’suwet’en traditional territory in BC.
Dozens of people have been criminalized for peacefully protesting construction of the Coastal GasLink and Trans Mountain pipelines. Protesters are concerned about environmental risks, lack of free prior and informed consent, and forced evictions from their traditional territories.
It should be noted that pipeline proponents point to company agreements with First Nations’ band councils along the pipeline route in Wet’suwet’en territory. Amnesty International explains the differing jurisdictions of band councils and hereditary chiefs. The Special Rapporteur’s 2023 report points out that the company “did not obtain the consent of hereditary chiefs who assert jurisdiction off reserve,” and that the company’s use of the courts to obtain “injunctions and exclusion zones around worksites have led to the criminalization of Indigenous opposition to the pipeline.” Allowing divide-and-conquer tactics to create wedges between hereditary chiefs and band councils is inconsistent with a commitment to reconciliation with Indigenous Peoples.
The Special Rapporteur echoed his predecessor’s 2004 concern about “prejudice, racism, intolerance and stigmatization” of Indigenous Peoples. He expressed alarm about a “rise in denialism among those who reject, misrepresent or downplay the reality of the residential school[s].” He urged Canada to raise awareness of “the large body of evidence” collected by the Truth and Reconciliation Commission “documenting the grave and systemic violations of the human rights of the Indigenous children… forced to attend these institutions.” The Special Rapporteur reflected concerns about denialism by Canada’s Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites, including her June 2023 report, which noted that the residential institutions were part of Canada’s “genocidal policies…to eradicate Indigenous Peoples and to steal their lands.”
UN treaty bodies have also weighed in. In 2015, the UN Human Rights Committee (HRCttee) expressed concern about Canada’s inadequate consultation of Indigenous Peoples about “projects and initiatives concerning them.” The Committee urged Canada to “consult indigenous people to… seek their free, prior and informed consent whenever legislation and actions impact on their lands and rights.” The HRCttee expressed concern about reports of excessive use of force by law enforcement officers during Indigenous land-related protests. The Committee also regretted the lack of accessible remedies for victims of alleged abuses by Canadian mining companies operating abroad.
In 2019, the UN Committee on the Elimination of Racial Discrimination (CERD) expressed alarm about “forced removal, disproportionate use of force, harassment and intimidation by law enforcement officials against indigenous peoples who peacefully oppose large-scale development projects on their traditional territories.” The CERD called on Canada to immediately cease construction of the Coastal Gas Link and Trans Mountain pipelines, cease forced eviction of Secwepemc and Wet’suwet’en peoples, and withdraw RCMP from their traditional lands.
Yet pipeline construction continued, and heavily armed RCMP remained on Wet’suwet’en territory. In 2020, the CERD wrote again to Canada expressing “regret” (a strong word in UN parlance) about Canada’s interpretation of the principle of free, prior, and informed consent as requiring only good faith processes of dialogue but not consultation aimed at consent as per the CERD’s 1997 general recommendation.
In late 2021, RCMP’s Community-Industry Response Group (C-IRG) conducted military-style raids in Wet’suwet’en traditional territory with helicopters, assault rifles, and police dogs. Snipers aimed weapons at peaceful protestors and arrested 74 unarmed land defenders at gun-point.
In April 2022, the CERD wrote yet again, saying it “profoundly regrets” that despite its calls on Canada, RCMP force had reportedly increased. The CERD again urged Canada to halt forced evictions of Wet’suwet’en people from traditional territories. Despite the CERD’s insistence, and continuous resistance and advocacy from Indigenous Peoples’ and human rights organizations, pipeline construction and armed RCMP presence continue.
Criminalization of Indigenous land defenders
In June and July 2022, 20 Indigenous defenders were charged with criminal contempt for violating a civil injunction prohibiting entry to the pipeline construction site on Wet’suwet’en ancestral territory. Five persons pleaded guilty. Charges against several legal observers were stayed, but a number of defenders continue to face trials.
Complaints about C-IRG’s actions during protests in several BC regions have resulted in the March 2023 launch of a systemic investigation of C-IRG by the RCMP’s Civilian Review and Complaints Commission (CRCC). In August 2023, the CRCC expressed concern about RCMP delays in providing it with information.
Corporations, aided by government prosecutors and courts, have been using civil injunctions enforced with common law criminal contempt charges to suppress protests, thus normalizing the criminalization of peaceful environmental and Indigenous rights protestors who violate civil injunctions obtained by corporations. Corporations are vastly more successful at obtaining injunctions than are Indigenous Peoples.
Conclusions: How Canada can hold businesses accountable for human rights abuses
Canada and BC have not curtailed business abuses of human rights at home or abroad. In some cases, authorities have been complicit in violations. Canada has not fully cooperated with UN treaty bodies or Special Procedures as is expected of all members of the UN Human Rights Council.
Canada needs to remedy the gaps by making – and implementing – clear commitments to remedy deficiencies at its upcoming UPR and in pledges for its candidacy for election to the Human Rights Council.
Canada should issue clear instructions to all its missions abroad that protecting human rights defenders supersedes economic diplomacy for Canadian corporations. Canada should guarantee the independence of the Canadian Ombudsman for Responsible Enterprise (CORE) and empower it to compel documents and witnesses. Canada should set an immediate timeline for federal, provincial, territorial, and Indigenous Peoples’ consultations for a comprehensive national action plan to implement the UN Guiding Principles on Business and Human Rights.
Canadian governments at all levels should halt and prevent the criminalization of peaceful human rights defenders, including Indigenous land rights defenders. Measures could include policy instructions to Crown Council at the Provincial level. The Criminal Code should be amended to prevent overuse of common law criminal contempt charges against peaceful protestors. Injunction law should be reformed so that it cannot be used to discriminate in favour of corporations in violation of international human rights obligations to Indigenous Peoples, particularly the right to self-determination of peoples set out in the UNDRIP.
Canada should engage positively in the ongoing international negotiations towards a binding treaty that ensures respect and reparations for human rights abuses by Canadian businesses both in Canada and abroad.
As the UN High Commissioner for Human Rights said during his October 2023 visit, Canada needs to “align policy with action.” To be a credible human rights champion globally, Canada must implement its international human rights promises.