What CORE’s online human rights complaints process means for Canadian miners

On March 15, 2021, the Canadian Ombudsperson for Responsible Enterprise (CORE) launched its complaints process, enabling the receipt of complaints respecting human rights abuses arising from the operations abroad of Canadian companies in the mining, garment, and oil and gas sectors.

The CORE is of particular relevance to Canadian companies with interests in mining assets outside of Canada. Now, anyone, anywhere will be able to lodge a complaint online.

The creation of the CORE was announced in January 2018 to promote Responsible Business Conduct (RBC) abroad and to hold Canadian companies accountable for human rights abuses. It is meant to be an impartial body that operates at arm’s length from Global Affairs Canada, and reports directly to the Minister of Small Business, Export Promotion, and International Trade. Sheri Meyerhoffer was appointed as Canada’s first Ombudsperson for Responsible Enterprise in April 2019.

The CORE’s mandate is to:

• promote the implementation of the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises;
• advise Canadian companies operating abroad on practices and policies related to RBC;
• review alleged abuses of human rights arising from the operations abroad of Canadian companies or the entities they control (arising from complaints filed by individuals, organizations, and communities, or initiated by the CORE); and
• recommend remedial action by Canadian companies and make recommendations to the Minister of International Trade regarding potential actions, measures, or reforms.

Human rights responsibility mechanism

The complaints process is part of an overarching compliance and dispute resolution mechanism known as the human rights responsibility mechanism (HRRM). In addition to complaints, the HRRM can be initiated by a review commenced by the Ombudsperson, or a request for informal mediation services.

The HRRM launch allows any individual, resident in Canada or otherwise, to submit complaints of alleged human rights abuses arising from a Canadian company’s operations abroad, including an entity it controls.

The process for a filed complaint involves the following steps: intake, initial assessment, mediation, review, and a public report with recommendations. First, the CORE will decide whether the complaint meets three admissibility criteria:

1. It alleges an adverse impact on an internationally recognized human right, including any of the rights referred to in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights;
2. It arises from the operations abroad of a Canadian company in the garment, mining, or oil and gas sectors; and
3. It allegedly took place after May 1, 2019, or if it allegedly occurred before May 1, 2019, it remains ongoing.

All parties or subjects of a review are stated to be required to act in good faith, meaning they must respect confidentiality requirements, refrain from providing false information, refrain from publicly misrepresenting the HRRM process, and not retaliate against those who make a complaint. Failure of companies subject to a review to do so could lead to a recommendation that Global Affairs Canada deny trade advocacy support and that Export Development Canada stop any financial support. It’s unclear what the ramifications would be to complainants apart from an unsuccessful complaint.

Concerns have emerged from industry and civil-society groups as to whether the CORE’s investigatory powers should include the quasi-judicial power to compel witnesses and documents.

Applicable investigatory powers raise objections, which include concerns in relation to procedural fairness, and that:

• the HRRM will be used to harm the reputations of companies purely through unproven allegations, despite the confidentiality provisions; or
• the CORE will have limited recourse in enforcing good faith, confidentiality and truthfulness expectations.

Takeaways for Canadian mining companies

Companies should ensure that they have adequate systems to gather reports of human rights concerns or non-compliance with company policies. Adequate and right-sized whistleblowing systems, designed to incorporate protection mechanisms to encourage internal reporting and prevent reprisals, are an important risk mitigation strategy.

Companies should also review their diligence framework and mechanisms to identify, investigate, and address human rights concerns. They should also continue to implement, monitor, and document their diligence and investigation activities. 

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Sharon Singh is a partner and Sander Grieve is partner and head of the mining team at Bennett Jones.

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