On January 17, 2018 the Government of Canada announced the creation of a Canadian Ombudsperson for Responsible Enterprise (CORE). This long-awaited announcement will be welcomed by many stakeholders and there are expectations that an Ombudsperson will be able to make a real difference in resolving human rights allegations. This post will review the nuts and bolts of an effective Ombudsman, then reflect on both the promise and the limitations of the position.
Background: Ombudsmen Mechanisms
There are a number of Ombudsmen in federal and provincial governments. Typically, Ombudsmen possess powers to compel document production and subpoena witnesses, as well as full powers to safeguard confidential information from future proceedings. However, Ombudsmen normally only have the power to make non-binding recommendations, although this has often been sufficient in practice, as the Ombudsperson’s recommendations should be remedial, not punitive. The CORE’s overarching goals should be work to expeditiously resolve claims through a fair process, and help the parties achieve a just outcome. However, these goals could be complicated by the transnational nature of the claims, as discussed below.
Any Ombudman’s effectiveness requires neutrality, objectivity, and the appropriate ensemble of powers, duties and safeguards. The mechanism must be robust enough to transcend any individual who occupies the position. An Ombudsman must always rigorously observe the rules of procedural fairness and these must be built into the CORE’s statutory duties. For example, companies and individuals named in claims must be informed of the full case against them, and must be given an adequate opportunity to present their side.
It is no surprise that in the process of civil litigation, many settlements occur at the discovery stage, particularly once key facts come out and thus, the likely disposition of the case becomes more clear. Fact-finding will be an essential task of the Ombudsperson and for this reason, powers to compel evidence through document production and witness testimony will be necessary.
That said, concomitant powers of the Ombudsperson must be those which provide an ironclad gurarantee of privilege and confidentiality for any information provided by parties in any future proceeding. Without the absolute guarantee that documents and testimony provided will not be used against any party in a future proceeding, it is certain that many companies would refuse to cooperate, and justifiably so. Information provided must be protected not just from judges’ orders but from Access to Information Requests and any other legal process.
For these reasons, a key unanswered question in the Government’s announcement is how an Ombudsperson can be created without statutory powers, duties and safeguards. Ultimately, the CORE mechanism must be sufficiently robust to earn the trust of participants, including companies.
It is anticipated that a properly constituted Ombudsperson for Responsible Enterprise would offer a real public service in resolving human rights claims. Three promising benefits are described below.
First, an Ombudsperson will be able to help parties expeditiously resolve claims. In addition to the formal mandate of objectively investigating, making findings and providing recommendations to parties, the neutral fact-finding process might itself expedite settlement by the parties. The Ombudsperson’s third-party involvement can help bring fairness and credibility to a mutually-agreed-upon settlement (see related blog entitled, Transnational Human Rights Claims: Should the Parties Settle?).
Second, when companies are accused of harms they have not committed or subject to exaggerated claims, it can be very difficult for them to effectively put the allegations to rest. After an adequate fact-finding process, the Ombudsperson could issue a credible finding that a claim is unfounded. Indeed, for companies subject to extortion by unscrupulous local actors, the Ombudsperson could issue a decision that specifically names the organizations or individuals making the untrue allegations and any findings of bad faith on their part.
Third, the Ombudsperson can review and address systemic issues. Where a number of situations are identified with similar or identical concerns, the Ombudsperson can review and issue broader recommendations with the aim of improving the performance of all Canadian companies.
The expectations may be high that an Ombudsperson can bring justice to victims of human rights abuses by Canadian companies. But transnational claims can be very different from the domestic context and there are risks that the Ombudsperson will be less effective in addressing certain situations.
Certain types of claims may be too multilayered and complex for an Ombudsperson process located in a different jurisdiction. In the extractive sector context, there are cases where the denial of human rights goes back generations and the primary abusers are home state governments. There are examples of Indigenous groups, without formal recognition of land rights by their own governments, which have been slowly dispossessed of their ancestral property and other resources since colonial times. If the mining company is merely a recent player in a long drama of marginalization, a much broader process involving host states and local governments will be required to find resolution. And a company, no matter how deep its pockets, should never be asked to compensate for harms unless it caused or contributed to them.
What if “Canadian” companies are actually now owned and managed by foreigners? Many companies notionally meet the Canadian definition but the Canadian managers and shareholders are in the minority. Will non-binding recommendations of a Canadian Ombudsperson have the persuasive effect on foreigners that they typically would on nationals?
The Bottom Line:
It is expected that most companies facing claims of human rights abuses will take them very seriously and work to resolve them expeditiously. Indeed, the number of companies creating and implementing operational level grievance mechanisms and already addressing human rights issues is very encouraging.
But what if certain parties do not cooperate with the Ombudsperson and do not act in good faith? What if the Ombudsperson’s recommendations are ignored and serious harms go unremedied? What sanctions should be made available to the Crown (not the Ombudsperson) for the most recalcitrant actors?
The Government’s threat of withdrawing Canadian diplomatic support as a sanction for the types of offences that may occur is inadequate. While sanctions should be reserved only for the serious cases and intransigent parties, the availability and severity of sanctions should be dissuasive enough to encourage cooperation. An effective (if never used) sanctions regime will ensure that the government’s bottom line is clear. It would be unfortunate if an early case of willful non-compliance were not addressed decisively. It could permanently diminish the position’s stature and credibility. The Ombudsperson mechanism must be built for success and this means not just the powers, duties and safeguards required to do the job, but the backing of the government, if needed.
The stakes are high. Globalization has generated immense wealth and lifted hundreds of millions out of poverty. But, as the Government’s press release rightly noted, unless the wealthy nations and beneficiaries of globalization protect the vulnerable and those harmed by transnational business activities, the global system as we know it is unsustainable.
With this announcement, Canada is poised to demonstrate genuine global leadership on mitigating the harms of transnational business. It should move quickly to ensure that the Ombudsperson mechanism is fit for purpose and built for success.
Mora Johnson, January 26, 2018
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