Canadian Mining Internationally and the UN Guiding Principles for Business and Human Rights

Sara L. Seck

doi:10.1017/S0069005800010328

¹ House of Commons, Standing Committee on Foreign Affairs and International Trade (SCFAIT), Fourteenth Report: Mining in Developing Countries, 38th Parl, 1st Sess (June 2005) [SCFAIT Report].

² Ibid at 1–2.

³ Canada, Department of Foreign Affairs and International Trade (DFAIT), Mining in Developing Countries — Corporate Social Responsibility: The Government’s Response to the Report of the Standing Committee on Foreign Affairs and International Trade (October 2005) at 2–3, 4 [Government’s Response].

⁴ Ibid at 3–5.

⁵ UN Commission on Human Rights (CHR), Human Rights and Transnational Corporations and Other Business Enterprises, CHR Res 2005/69, UNCHR, 61st Sess, UN Doc E/CN.4/RES/2005/69 (2005). However, Canada is not identified as an ongoing co-sponsor of the mandate by the Special Representative of the UN Secretary-General (SRSG) in his final oral submission to the UN Human Council in May 2011, where he thanks Argentina, India, Nigeria, Norway, and the Russian Federation “for their steadfast leadership and support.” See Ruggie Statement to UN Human Rights Council May 30, 2011, online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/media/documents/ruggie-statement-to-un-human-rights-council-30-may-2011.pdf>.

⁶ Promotion and Protection of Human Rights: Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, UNCHR, 62nd Sess, UN Doc E/CH.4/2006/97 (22 February 2006) at 1 [Interim Report].

⁷ Ruggie, John, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Protect, Respect and Remedy: A Framework for Business and Human Rights , UNHRC, 8th Sess, UN Doc A/HRC/8/5 (2008) [Protect, Respect, and Remedy].Google Scholar

⁸ UN Human Rights Council (HRC), Mandate of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, HRC Res 8/7, UNHRC, 8th Sess, UN Doc A/HRC/ RES/8/7 (2008).

⁹ Canada, DFAIT, Building the Canadian Advantage: A Corporate Social Responsibility Strategy for the Canadian Extractive Sector (26 March 2009) at 8, online: <http://www.international.gc.ca/trade-agreements-accords-commerciaux/ds/csr-strategy-rse-stategie.aspx?view=d> [Building the Canadian Advantage].

¹⁰ Ibid. The reference to the SRSG’s work is discussed in a single short paragraph within the fifteen-page document: “Obligations under international human rights conventions apply to states and do not directly create obligations for companies … [The UN framework contains] recommendations on the duties and responsibilities of both States and corporations with regard to human rights.” Moreover, the list of international standards identified on the website of the Centre for Excellence in CSR, one of the outcomes of Building the Canadian Advantage, does not even list Protect, Respect, and Remedy among UN international standards. See listed resources under Centre for Excellence in CSR, Policies and Regulations — United Nations, online: Centre for Excellence in CSR, <http://web.cim.org/csr/MenuPage.cfm?sections=44&menu=45> (listing the UN Global Compact; the UN Development Programme; the UN Environment Programme; the UNEP Finance Initiative; and the UN Department of Economic and Social Affairs as well as three publications by the United Nations Conference on Trade and Development). The Human Rights Council is not listed nor are Protect, Respect, and Remedy or the Guiding Principles. See also the extensive list of additional CSR frameworks under Tools and Resources: CSR Toolkits: Additional CSR Frameworks, online: Centre for Excellence in CSR <http://web.cim.org/csr/MenuPage.cfm?sections=44,136&menu=138>).

¹¹ Ruggie, John, Report of the Special Representative of the Secretary-General on the Issues of Human Rights and Transnational Corporations and Other Business Enterprises: Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework , UNHRC, 17th Sess, UN Doc A/HRC/17/31 (2011) [Guiding Principles].Google Scholar The Guiding Principles were accompanied by three addenda: Addendum: Piloting Principles for Effective Company/Stakeholder Grievance Mechanisms: A Report of Lessons Learned, UNHRC, 17th Sess, UN Doc A/HRC/17/3/ Add.1 (2011); Addendum: Human Rights and Corporate Law: Trends and Observations from a Cross-National Study Conducted by the Special Representative, UNHRC, 17th Sess, UN Doc A/HRC/17/31/Add.2 (2011) [Corporate Law Addendum]; and Addendum: Principles for Responsible Contracts: Integrating the Management of Human Rights Risks into State-Investor Contract Negotiations: Guidance for Negotiators, UNHRC, 17th Sess, UN Doc A/HRC/17/31/Add.3 (2011).

¹² See United Nations Human Rights Office of the High Commissioner, New Guiding Principles on Business and Human Rights Endorsed by the Human Rights Council, News Release (16 June 2011), online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/media/documents/ruggie/ruggie-guiding-principles-endorsed-16-jun-2011.pdf>. See also UN Human Rights Commission, Revised Draft Resolution, Human Rights and Transnational Corporations and Other Business Enterprises, UNHRC, 17th Sess, UN Doc A/HRC/17/L.17/Rev.1 (2011) (sponsored by Argentina, Austria, Canada, Denmark, Guatemala, India, Nigeria, Norway, Peru, Russian Federation, Sweden, and Turkey).

¹³ National Roundtables on Corporate Social Responsibility (CSR) and the Canadian Extractive Industry in Developing Countries, Advisory Group Report, 29 March 2007, online: <http://www.mining.ca/www/media_lib/MAC_Documents/Publications/CSRENG.pdf> [Advisory Group Report].

¹⁴ Bill C-300, An Act Respecting Corporate Accountability for Mining, Oil and Gas Corporations in Developing Countries, 2nd Sess, 40th Parl (2009).

¹⁵ SCFAIT Report, supra note 1 at 1. See also Seck, Sara L, “Home State Responsibility and Local Communities: The Case of Global Mining” (2008) 11 Yale Human Rights & Dev LJ 177 at 177–80Google Scholar (outlining some of the evidence presented at committee hearings in March and May 2005 by a range of participants, including affected communities, civil society, and mining companies).

¹⁶ SCFAIT Report, supra note 1 at 2.

¹⁷ Ibid.

¹⁸ Ibid at 2–3. See further OECD, Guidelines for Multinational Enterprises (Paris: OECD, 2000), online: OECD <http://www.oecd.org/dataoecd/56/36/1922428.pdf> [OECD Guidelines]; and DFAIT Canada, Canada’s National Contact Point for the OECD MNE Guidelines, online: DFAIT <http://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/index.aspx?lang=eng&menu_id=1> [Canada’s NCP].

¹⁹ SCFAIT Report, supra note 1 at 3.

²⁰ Ibid at 3. Also identified was the importance of the rights of indigenous peoples (Ibid at 2).

²¹ Government’s Response, supra note 3 at 2. Furthermore: “[W]hile the Canadian government can influence companies that are headquartered in Canada but where officers are subject to domestic law, it has few mechanisms at its disposal with which to influence companies that are headquartered abroad and managed by non-residents but incorporated in Canada or listed on a Canadian stock exchange” (Ibid at 3).

²² Ibid at 4. However, Export Development Canada (EDC) had already taken steps to address human rights issues “such as involuntary resettlement, compensation, public consultation and Indigenous peoples” as part of “environmental reviews and political risk assessments” (Ibid at 6). These commitments reflected changes to the Organisation for Economic Co-operation and Development (OECD)’s Common Approaches on Environment and Officially Supported Export Credits, which in turn draw upon the experience of development banks, including the World Bank Group. See OECD, Recommendation on Common Approaches to Export Credits and Environment (Paris: OECD, 2007), online: OECD <http://www.oecd.org/dataoecd/26/33/21684464.pdf> [Common Approaches].

²³ Government’s Response, supra note 3 at 6–7. See Global Reporting Initiative (GRI), online: GRI <https://www.globalreporting.org/Pages/default.aspx>.

²⁴ Government’s Response, supra note 3 at 7.

²⁵ Ibid at 13.

²⁶ Ibid.

²⁷ Ibid at 4–5, 13–14.

²⁸ SCFAIT Report, supra note 1.

²⁹ Seck, Sara L, “Environmental Harm in Developing Countries Caused by Subsidiaries of Canadian Mining Corporations: The Interface of Public and Private International Law” (1999) 37 Can YB Int’l Law 139 at 154–68CrossRef Google Scholar (discussing Recherches Internationales Québec v Cambior Inc, [1998] QJ no 2554 (QL) (Qc Sup Ct)) and 168–74 (discussing the Mozambique doctrine); Seck, supra note 15 at 183–84 (discussing the Talisman litigation in US courts). See more generally Zerk, Jennifer A, Multinationals and Corporate Social Responsibility (Cambridge: Cambridge University Press, 2006) at 124–27, 189–240CrossRef Google Scholar; Scott, Craig and Wai, Robert, “Transnational Governance of Corporate Conduct through the Migration of Human Rights Norms: The Potential Contribution of Transnational ’Private’ Litigation,” in Joerges, C, Sand, P, and Teubner, G, eds, Transnational Governance and Constitutionalism (Oxford: Hart, 2004) 287 Google Scholar; Scott, Craig, ed, Torture as Tort: Comparative Perspectives on the Development of Transnational Tort Litigation (Portland, OR: Hart Publishing, 2001).Google Scholar

³⁰ Alien Tort Claims Act, 28 USC § 1350 (2000) (providing subject matter jurisdiction for civil actions brought before US federal courts in relation to a modest number of clearly defined norms recognized by the law of nations).

³¹ Government’s Response, supra note 3 at 10 [emphasis in original].

³² Ibid.

³³ Ibid at 9.

³⁴ Ibid. Criminal law examples provided included: where there is a factual link between Canada and the offence constituting a “real and substantial link” to Canada, although whether asserting jurisdiction would “offend international comity” must still be considered; and where the international community has determined that certain offences are so important that “a country will have jurisdiction to prosecute, regardless of where the acts took place, on the basis of criteria established by treaty (such as the nationality of the offender or victim).” However, there remains the question of whether “the relevant crimes can, as a matter of international law, be committed by corporations” (Ibid at 9).

³⁵ Ibid at 3 (embracing a proposal in the SCFAIT Report, supra note 1 at 2).

³⁶ Advisory Group Report, supra note 13.

³⁷ Ibid at 41–45. There was support for the Canadian government to “continue to work with relevant law enforcement authorities to identify and remedy legal and other barriers to the extraterritorial application of Canadian criminal law” and to “[a]mend the Corruption of Foreign Public Officials Act to clarify that it applies extraterritorially to Canadian nationals” (Ibid at xii, 45).

³⁸ Ibid at iii; for details, see 8–24.

³⁹ Ibid at 11–14 (stating also that the application and interpretation of these standards “shall observe and enhance respect for principles of the Universal Declaration of Human Rights and other related instruments” and that “[s]pecific guidelines related to the application and interpretation of human rights prin-ciples will be developed”). See further International Finance Corporation (IFC) of the World Bank Group, Sustainability Framework, online: <http://www1.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_Site/IFC+Sustainability/Sustainability+Framework/>.

⁴⁰ Advisory Group Report, supra note 13 at 11–14. See further Voluntary Principles on Security and Human Rights, online: <http://www.voluntaryprinciples.org/files/voluntary_principles_english.pdf> [Voluntary Principles].

⁴¹ Advisory Group Report, supra note 13 at iv–v, 58–60.

⁴² Ibid at 15–19. See further GRI, supra note 23.

⁴³ Advisory Group Report, supra note 13 at 42–44.

⁴⁴ Ibid at 42–44.

⁴⁵ Ibid at 42.

⁴⁶ Ibid at 23–24. This could include referral to an external dispute resolution process (Ibid at 21–23). The Advisory Group saw the OECD NCP as playing “an important mediation role, a function that could not be assigned to the ombudsman’s office” ( Ibid at 23).

⁴⁷ Ibid at 46. These include the EDC, the Canada Fund for Local Initiatives, the Canada Investment Fund for Africa, Canadian International Development Agency, and support provided through trade missions and Canadian embassies (Ibid at 47–49).

⁴⁸ Ibid at 30–31. On the competitive advantage of CSR, the Advisory Group concluded: “[T]he reputation of meeting or even exceeding CSR standards can offer extractive companies a competitive advantage and increase their overall economic success. The social and environmental performance of Canadian extractive companies can also reflect positively on the long-term success of Canadian business as a whole” (Ibid at 7).

⁴⁹ Ibid at 56. These include: the Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development; the World Mines Ministries Forum; the Mines Ministries of the Americas; the African Mining Partnership; and the Global Gas Flaring Reduction Partnership (Ibid at 54).

⁵⁰ Ibid at 56. Further recommendations included that Canada endorse the Voluntary Principles on Security and Human Rights by becoming a participant country, and formally participate in the Extractive Industries Transparency Initiative by becoming a supporting country while also encouraging Canadian extractive industries to participate (Ibid at 56–57).

⁵¹ In the interim, Canada became a supporter of the Extractive Industries Transparency Initiative (EITI), online: <http://eiti.org/>. See Department of Finance Canada, Canada’s New Government Supports an International Initiative to Improve Governance in Resource-Rich Countries, News Release (10 February 2007), online: <http://www.fin.gc.ca/n07/07-012-eng.asp>.

⁵² Advisory Group Report, supra note 13 at 2. The presence of representatives from Indian and Northern Affairs Canada on the Steering Committee suggests a keen awareness that the outcome of the roundtables process would not have implications only for Canadian companies engaged in mining internationally but also for mining within Canada on First Nations lands.

⁵³ Bill C-300, supra note 14.

⁵⁴ Building the Canadian Advantage, supra note 9.

⁵⁵ Ibid at 10–11.

⁵⁶ CSR Counsellor, Background, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/csr_counsellor-conseiller_rse/Background-Contexte.aspx?lang=eng&menu_id=123&view=d>.

⁵⁷ Canada, Rules of Procedure for the Review Mechanism of the Office of the Extractive Sector Corporate Social Responsibility Counsellor (20 October 2010), online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/rules_procedure-regles_procedure-eng.pdf>

⁵⁸ Bill C-354, An Act to Amend the Federal Courts Act (International Promotion and Protection of Human Rights), 2nd Sess, 40th Parl (2009) [Bill C-354]. Previously known as Bill C-492, it had originally been introduced in Parliament on 10 December 2007. Subsequently, following spring elections in 2011, Bill C-354 was reintroduced as Bill C-323 and received first reading in October 2011.

⁵⁹ Ibid. Section 1 of Bill C-354 provided that section 25 of the Federal Courts Act, RSC 1985, c F-7, be amended to explicitly provide the Federal Court with “original jurisdiction in all cases that are civil in nature in which the claim for relief or remedy arises from a violation of international law or a treaty to which Canada is a party and commenced by a person who is not a Canadian citizen, if the act alleged occurred in a foreign state or territory or on board a ship or aircraft registered in a foreign state while the ship or aircraft is outside Canada.” Curiously, the insistence that “the act” occur abroad arguably limited the relevance of this amendment in situations where a Canadian company is involved and the act may be characterized as relating to conduct by directors or officers on Canadian soil, although this was likely not the intent.

⁶⁰ Ibid at s 1(2).

⁶¹ House ofCommons Debates, 40th Parl, 2nd Sess, No 038 (1 April 2009) at 1520 (Hon PeterJulian): “The bill would ensure corporate accountability for Canadian firms operating abroad. It would broaden the mandate of the Federal Court so that it protects foreign citizens against rights violations committed by corporations operating outside of Canada.”

⁶² See the authorities in notes 29 and 30 and accompanying text. See also Bill C-354, supra note 58, s 3, proposing amendments to section 50 of the Federal Courts Act, supra note 59, which would amend the common law doctrine of forum non conveniens by preventing federal courts from staying proceedings “unless the defendant clearly, cogently and convincingly establishes” that the Federal Court of Appeal or the Federal Court is not a suitable forum in which to decide the case, a more appropriate forum is available that will fairly and effectively provide a final and binding decision, the more appropriate forum will likely provide a final and binding decision in a timely and efficient manner, and the interests of justice adamantly require that a stay of proceedings be granted.

⁶³ See, eg, The Presbyterian Church of Sudan v Talisman Energy Inc, 582 F 3d 244 (2nd Cir 2009) (upholding dismissal on summary judgment motion). Plaintiffs petitioned for writ of certiorari to the US Court of Appeals, 2nd Circuit, in October 2010, which was denied. See also Provincial Gov’t of Marinduque v Placer Dome Inc, 582 F 3d 1083 (9th Cir 2009) (reversing dismissal on forum non conveniens and act of state doctrine).

⁶⁴ See Piedra v Copper Mesa Mining Corp, 2010 ONSC 2421 (Plaintiffs’ Statement of Claim), online: <http://www.ramirezversuscoppermesa.com/statement-of-claim.pdf>. The allegations against the TSX focused upon the listing of the company in order to raise equity financing without any effort to prevent foreseeable harm to the plaintiffs, who were engaged in peaceful protests.

⁶⁵ Piedra v Copper Mesa Mining Corp, 2010 ONSC 2421, aff’d 2011 ONCA 191, 332 DLR (4th) 118.

⁶⁶ See details of three cases launched in Ontario against Hudbay Minerals Incorporated in relation to the actions of security forces at mine sites in Guatemala, as described on the website of counsel for the plaintiffs, online: Klippensteins, Barristers and Solicitors <http://www.chocversushudbay.com/>. See further Choc v Hudbay Minerals Inc, 2011 ONSC 4490. See also Association canadienne contre l’impunité (ACCI) v Anvil Mining Ltd, 2011 QCCA 1035 [Anvil Mining] (accepting jurisdiction to hear the case), but see Anvil Mining v Association canadienne contre l’impunité (ACCI), 2012 QCCA 117 (determining that the case cannot be heard in Québec).

⁶⁷ Canada’s NCP, supra note 18; see also Canada’s National Contact Point (Specific Instances), online: Department of Foreign Affairs and International Trade Canada <http://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/specific-specifique.aspx?lang=eng&menu_id=7>.

⁶⁸ Canada’s National Contact Point (NCP), Annual Report (Ottawa: Department of Foreign Affairs and International Trade, 2010) at s 8; Canada’s NCP, Annual Report (Ottawa: DFAIT, 2011) at s 7. See also brief summaries of the four specific instances considered by the NCP as of December 2008, all concerning mining companies, online: Department of Foreign Affairs and International Trade Canada <http://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/specific-specifique.aspx?lang=eng&menu_id=7&view=d>.

⁶⁹ See generally Dhir, Aaron A, “The Politics of Knowledge Dissemination: Corporate Reporting, Shareholder Voice and Human Rights” (2009) 47 Osgoode Hall LJ 47 Google Scholar; Klaassen, Johann A, “Sustainability and Social Justice” (2011) 31 Issues in Business Ethics 179 at 182–83.Google Scholar For specific discussion of the use of the shareholder proposal mechanism in relation to Goldcorp’s Marlin mine in Guatemala, see Imai, Shin, Mehranvar, Ladan, and Sander, Jennifer, “Breaching Indigenous Law: Canadian Mining in Guatemala” (2007) 6 Indigenous LJ 101 Google Scholar; Dhir, Aaron A, “Shareholder Engagement in the Embedded Business Corporation: Investment Activism, Human Rights and TWAIL Discourse” (2012) 22 Business Ethics Quarterly 99.CrossRef Google Scholar

⁷⁰ See Export Development Canada Compliance Officer, online: EDC <http://www.edc.ca/english/compliance.htm>; EDC, 2009 Compliance Officer’s Annual Report on Third Party Complaints, online: EDC <http://www19.edc.ca/english/docs/compliance_officer_report_e.pdf> (noting that twenty-three complaints have been received from third parties of which six fell within the compliance officer’s mandate).

⁷¹ Bill C-300, supra note 14 at s 3.

⁷² Ibid, s 2(1). “Developing countries” were defined as “countries and territories named in the list of countries and territories eligible for Canadian development assistance established by the Minister of International Cooperation.” This definition proved problematic as there was no longer any such list. An amendment, defining developing countries as those “classified as low income, lower middle income or upper middle income in the World Bank list of economies, as defined from time to time,” was subsequently proposed. Regarding proposed amendments, see House of Common Debates, 40th Parl, 3rd Sess, No 66 (20 September 2010), Motion no 4, online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4656017&Language=E&Mode=1&Parl=40&Ses=3 -SOBQ-3267199> (Hon. John McKay).

⁷³ Bill C-300, supra note 14, s 5.

⁷⁴ Ibid, s 5(3).

⁷⁵ Ibid, s 5(2)(a).

⁷⁶ Ibid, s 5(2)(b).

⁷⁷ Ibid, s 5(2)(c)-(d).

⁷⁸ Protect, Respect, and Remedy, supra note 7.

⁷⁹ Bill C-300, supra note 14, s 4(1)–(3), (5). The ministers would also be able to examine a matter on their own initiative if they had reason to believe a company had contravened the guidelines (s 4(5)).

⁸⁰ Ibid, s 4(6). If a complaint was found to be frivolous or vexatious, reasons for this determination were also to be published (Ibid, s 4(7)).

⁸¹ Ibid, s 4(8).

⁸² Ibid, ss 8, 10. However, proposed amendments would have greatly curtailed the role of the Canada Pension Plan Investment Board (CPPIB). See House of Common Debates, 40th Parl, 3rd Sess, No 66 (20 September 2010), Motion nos 11, 16, online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4656017&Language=E&Mode=1&Parl=40&Ses=3%20-%20SOBQ-3267199> (Hon. John McKay).

⁸³ Department of Foreign Affairs and International Trade Act, RSC 1985, c E-22.

⁸⁴ Bill C-300, supra note 14, s 9 (amending s 10 of the Department of Foreign Affairs and International Trade Act, supra note 83).

⁸⁵ Special Economic Measures Act, SC 1992, c 17.

⁸⁶ Bill C-300, supra note 14, s 11.

⁸⁷ Janda, Richard, Bill C-300: Sound and Measured Reinforcement for CSR — A Report on the Legal and Policy Dimensions of Bill C-300 Prepared for the Canadian Network on Corporate Accountability (September 2009), online: Canadian Network on Corporate Accountability <http://cnca-rcrce.ca/wp-content/uploads/Bill-C-300-Report-Janda.pdf>..>Google Scholar

⁸⁸ Ibid at 8–9; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 3rd Sess, No 21 (3 June 2010) (Simons, Penelope), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId =4588646&Language=E&Mode=1&Parl=40&Ses=3#T1145> Google Scholar [Evidence (Simons)].

⁸⁹ House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 35 (27 October 2009) (Neve, Alex), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4178126&Language =E&Mode=1&Parl=40&Ses=2#T0920> Google Scholar [Evidence (Amnesty — Neve)].

⁹⁰ House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 44 (3 December 2009) (Heaps, Toby A.A.), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4292634&Language=E&Mode=1&Parl=40&Ses=2#T0945> Google Scholar [Evidence (Corporate Knights)].

⁹¹ House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 32 (8 October 2009) (Janda, Richard), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4134547&Language=E&Mode=1&Parl=40&Ses=2#Int-2885901> Google Scholar [Evidence (Janda)]; Evidence (Simons), supra note 88.

⁹² Evidence (Simons), supra note 88; Evidence (Janda), supra note 91. However, others acknowledged that the standards list in Bill C-300 needed to include specific reference to human rights because of deficiencies in the standards of the IFC, which serve as the baseline standards adopted by Equator Principles banks. See House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 32 (8 October 2009) (Coumans, Catherine), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4134547&Language=E&Mode=1&Parl=40&Ses=2#Int-2885944> Google Scholar [Evidence (Mining Watch Canada)]; Evidence (Amnesty — Neve), supra note 89. See also Equator Principles Association, Equator Principles ( June 2006), online: Equator Principles Association <http://www.equator-principles.com/resources/equator_principles.pdf> [Equator Principles].

⁹³ DeBock, Matthew DG, Taplin, Roger R, and Wanke, Adam D, Mining Law Update: Bill C-300 (1 March 2010), online: McCarthy Tetrault, LLP <http://www.mccarthy.ca/article_detail.aspx?id=4889> >Google Scholar; Prospectors and Developers Association of Canada (PDAC), Bill C-300 Myths and Facts (17 December 2009), online: PDAC <http://www.pdac.ca/pdac/publications/na/pdf/091217-bill-c-300-myths-facts.pdf> at 2; Canadian Foundation for the Americas (FOCAL), FOCAL Views: A Corporate Accountability Bill of No Avail (April 2010), online: FOCAL <http://www.focal.ca/publications/focalpoint/235-april-2010-focal-views>.

⁹⁴ Kinley, David, Nolan, Justine, and Zerial, Natalie, “The Politics of Corporate Social Responsibility: Reflections on the United Nations Human Rights Norms for Corporations” (2007) 25 Company & Securities L J 30 at 33–37Google Scholar; Seppala, Nina, “Business and the International Human Rights Regime: A Comparison of UN Initiatives” (2009) 87 J Business Ethics 401 at 408CrossRef Google Scholar; Ruggie, John Gerard, “Current Developments, Business and Human Rights: The Evolving International Agenda” (2007) 101 AJIL 819 at 821.CrossRef Google Scholar

⁹⁵ Rights Action, “Bill C-300 Will Perpetuate Effective Immunity From Legal Recourse in Canada” (20 October 2009), online: Rights Action <http://www.rightsaction.org/articles/Analysis_Bill_C-300.htm>. See also House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 3rd Sess, No 19 (25 May 2010) (Lissakers, Karin), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4547693&Language=E&Mode=1&Parl=40&Ses=3#T1110> Google Scholar [Evidence (Revenue Watch)].

⁹⁶ See Evidence (MiningWatch Canada), supra note 92; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 3rd Sess, No 19 (25 May 2010) (Martin, Shanta), online: House of Commons <http://www.parl.gc.ca/House-Publications/Publication.aspx?DocId=4547693&Language=E&Mode=1&Parl=40&Ses=3#Int-3174606> Google Scholar [Evidence (Amnesty – Martin)]; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 3rd Sess, No 22 (8 June 2010) (Macklin, Audrey), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4598846&Language=E&Mode=1&Parl=40&Ses=3#Int-3213529> Google Scholar.

⁹⁷ Bill C-300, supra note 14, s 5.

⁹⁸ See, eg, House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 42 (26 November 2009) (Penney, Mac), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4266713&Language=E&Mode=1&Parl=40&Ses=2#Int-2974648> Google Scholar [Evidence (Kinross Gold)]. See also House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 3rd Sess, No 21 (3 June 2010) (Nash, Gary), online: House of Commons http://www.parl.gc.ca/HousePublications/Publication.aspx?Doc Id=4588646&Language=E&Mode=1&Parl=40&Ses=3#T1120> >Google Scholar (citing the length of time it was taking John Ruggie to finalize his recommendations as evidence that one year was too short a time).

⁹⁹ See, eg, International Council on Mining and Metals (ICMM), Projects: Business and Human Rights, online: ICMM <http://www.icmm.com/page/225/our-work/projects/articles/business-and-human-rights> (outlining the work of the ICMM on mining and human rights, including links to submissions to the SRSG); see also ICMM, Human Rights in the Mining and Metals Industry: Overview, Management Approach and Issues (May 2009), online: ICMM <http://www.icmm.com/page/14809/human-rights-in-the-mining-and-metals-industry-overview-management-approach-and-issues>.

¹⁰⁰ House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 32 (8 October 2009) (Peeling, Gordon), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4134547&Language=E&Mode=1&Parl=40&Ses=2#T1005> [Evidence (Mining Association of Canada)]+[Evidence+(Mining+Association+of+Canada)]>Google Scholar; see also House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 39 (17 November 2009) (Wisner, Robert), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4231494&Language=E&Mode=1&Parl=40&Ses=2#Int-2948675> >Google Scholar [Evidence (McMillan LLP)]. This issue was to have been addressed in the proposed amendments. See discussion in the text accompanying note 108.

¹⁰¹ Evidence (Kinross Gold), supra note 98; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 40 (19 November 2009) (Beatty, Perrin), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4237707&Language=E&Mode=1& Parl=40&Ses=2#T0910> >Google Scholar [Evidence (Canadian Chamber of Commerce — Beatty)]; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 3rd Sess, No 19 (25 May 2010) (George, Shirley-Ann), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4547693&Mode=1&Parl=40&Ses=3&Language=E#Int-3175148> Google Scholar [Evidence (Canadian Chamber of Commerce — George)]; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 3rd Sess, No 21 (3 June 2010) (Stewart-Patterson, David), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4588646&Language=E&Mode=1&Parl=40&Ses=3#Int-3203121> >Google Scholar [Evidence (Canadian Council of Chief Executives)]; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 42 (26 November 2009) (Sinclair, Peter), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx? DocId=4266713&Language=E&Mode=1&Parl=40&Ses=2#Int-2974680> Google Scholar [Evidence (Barrick Gold)]; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 3rd Sess, No 18 (13 May 2010) (Dade, Carlo), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4533191&Language=E&Mode=2&Parl=40&Ses=3#T1215> Google Scholar [Evidence (FOCAL)]; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 42 (3 December 2009) (Blackburn, Robert), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=40&Ses= 2&DocId=4292634&File=0#Int-2994434> Google Scholar [Evidence (SNC Lavalin)]; Tony Andrews, Bill C-300 Position Statement (PDAC, August 2009) at 4, online: PDAC <http://www.pdac.ca/pdac/publications/na/pdf/090812-bill-c-300-position-statement.pdf>.

¹⁰² House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 42 (26 November 2009) (Bourassa, Michael), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4266713&Language=E&Mode=1&Parl=40&Ses=2#Int-2974922> Google Scholar [Evidence (Fasken Martineau DuMoulin LLP — Bourassa)]; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 42 (26 November 2009) (Peterson, Hon. James), onlinex: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4266713&Language=E&Mode=1&Parl=40&Ses=2#Int-2974821> Google Scholar [Evidence (Fasken Martineau DuMoulin LLP — Peterson)]; Evidence Canadian Chamber of Commerce — George), supra note 101; Bourassa, Michael, “Bill C-300 Threatens Canada’s International Extractive Sector,” (2009) 4 CIM Magazine 53 Google Scholar; Fasken Martineau DuMoulin LLP, Sharp Criticism for Bill C-300: Lawyers Tell Parliamentary Committee Private Member’s Bill Threatens Canada’s Minerals Industry (26 November 2009), online: Fasken Martineau DuMoulin LLP <http://www.fasken.com/firm-opposes-bill-c-300-in-ottawa>; Enchin, Harvey, “Will Mining Suffer If Bill C-300 Becomes Law? YES: It’s Biased and Overly Punitive,” Vancouver Sun (27 May 2010)Google Scholar; Koven, Peter, “Mining Bill Needs to Be Defeated: Industry Reps,” Financial Post (25 November 2009)Google Scholar; Nash, Gary, “Canada’s Very Flawed Bill C-300 Anti-Mining Legislation Should be Withdrawn,” Republic of Mining (10 June 2010), online: Republic of Mining <http://www.republicofmining.com/2010/06/10/canadas-very-flawed-bill-c-300-anti-mining-legislation-should-be-withdrawn-by-gary-nash>.Google Scholar

¹⁰³ House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 3rd Sess, No 19 (25 May 2010) (Hodge, Robert Anthony), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4547693&Language=E&Mode=1&Parl=40&Ses=3#Int-3175079> Google Scholar [Evidence (ICMM)]; PDAC, The Prospectors and Developers Association of Canada Urges a House of Commons Standing Committee to Recognize the Ethically Responsible Nature of Canada’s Mineral Industry and Reject Bill C-300, News Release (19 November 2009), online: PDAC <http://www.pdac.ca/pdac/misc/pdf/091117-bill-c-300.pdf>; Evidence (Canadian Chamber of Commerce — Beatty), supra note 101; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 42 (26 November 2009) (Chrétien, Raymond), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4266713&Langua ge=E&Mode=1&Parl=40&Ses=2#Int-2974947> Google Scholar [Evidence (Fasken Martineau DuMoulin, LLP — Chrétien)]; Evidence (Canadian Council of Chief Executives), supra note 101.

¹⁰⁴ Evidence (Canadian Chamber of Commerce — Beatty), supra note 101; Evidence (Canadian Council of Chief Executives), supra note 101; Evidence (Canadian Chamber of Commerce — George), supra note 101; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 3rd Sess, No 22 (8 June 2010) (Shrake, Thomas), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4598846&Language=E&Mode=1&Parl=40&Ses=3#Int-3213839> Google Scholar [Evidence (Pacific Rim Mining Corporation)].

¹⁰⁵ House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 33 (20 October 2009) (Dr.Lucas, Stephen, Minerals and Metals Sector, Department of Natural Resources), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4148257&Language= E&Mode=1&Parl=40&Ses=2#Int-2895130> Google Scholar; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 35 (27 October 2009) (McArdle, Jim, EDC), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4178126&Language=E&Mode=1&Parl=40&Ses=2%20-%20T1000> Google Scholar [Evidence (EDC)]; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 39 (17 November 2009) (Raymond, Donald, CPPIB), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4231494&Language=E&Mode=1&Parl=40&Ses=2%20-%20Int-2948327> Google Scholar; House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 39 (17 November 2009) (Dale, Ian, CPPIB), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4231494&Language=E&Mode=1&Parl=40&Ses=2%20-%20Int-2948923> Google Scholar.

¹⁰⁶ House of Commons, SCFAID, Minutes of Proceedings and Evidence, 40th Parl, 2nd Sess, No 43 (1 December 2009) (Manuge, Grant, Trade Commissioner Service, DFAIT), online: House of Commons <http://www.parl.gc.ca/ HousePublications/Publication.aspx?DocId=4281177&Language=E&Mode=1&Parl=40&Ses=2%20-%20Int-2984517>.Google Scholar

¹⁰⁷ Evidence (EDC), supra note 105.

¹⁰⁸ House of Common Debates, 40th Parl, 3rd Sess, No 66 (20 September 2010), online: House of Commons <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4656017&Language=E&Mode=1&Parl=40&Ses=3%20-%20SOBQ-3267199> (Hon. John McKay).

¹⁰⁹ The vote tally, organized by party, is available online: House of Commons <http://www2.parl.gc.ca/HouseChamberBusiness/ChamberVoteDetail.aspx?Language=E&Mode=1&Parl=40&Ses=3&Vote=125&GroupBy=party&FltrParl=40&FltrSes=3>. See also Taber, Jane, “Ignatieff’s Mixed Messages on Mining Leaves Liberal Heads Spinning,” Globe and Mail (28 October 2010), online: Globe and Mail <http://www.theglobeandmail.com/news/politics/ottawa-notebook/ignatieffs-mixed-message-on-mining-leaves-liberal-heads-spinning/article1776539/> Google Scholar; Mining Watch Canada, Bill C-300 a High Watermark for Mining and Government Accountability (16 November 2010), online: Mining Watch Canada <http://www.miningwatch.ca/article/bill-c-300-high-water-mark-mining -and-government-accountability>.

¹¹⁰ Building the Canadian Advantage, supra note 9 at 4.

¹¹¹ Ibid [emphasis added].

¹¹² Ibid at 4–5. The report highlights the role that CIDA has played in “building and modernizing the governance regimes to ensure that natural resources are managed in a technically and environmentally sound manner,” including through legal and judicial reform (Ibid at 6.) Also highlighted is the role that NRCan has played, at times with CIDA, in technical assistance, policy development, and training at the domestic level, while providing support for multi-governmental mining organizations and the establishment of the Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development (Ibid at 6–7). See further, on the Intergovernmental Forum, online: <http://www.globaldialogue.info/wn_e.htm> and note 263 in this article.

¹¹³ Building the Canadian Advantage, supra note 9 at 4–5.

¹¹⁴ Ibid.

¹¹⁵ Ibid. See further CSR Centre of Excellence, supra note 10.

¹¹⁶ Building the Canadian Advantage, supra note 9 at 8. The performance standards “set expectations of conduct in eight issue areas, including Social and Environmental Assessment and Management Systems; Labour and Working Conditions; Pollution Prevention and Abatement; Community Health, Safety and Security; Land Acquisition and Involuntary Resettlement; Biodiversity Conservation and Sustainable Natural Resource Management; Indigenous Peoples; and Cultural Heritage” (Ibid).

¹¹⁷ Ibid at 8. Eighty percent of global financing for extractive sector projects is provided by these institutions, which agree to adopt lending practices consistent with the IFC performance standards (Ibid); see also Equator Principles, supra note 92. However, the Equator Principles specify that a different review process applies to projects in high income OECD countries. See Equator Principles Association, FAQs, online: <http://www.equator-principles.com/index.php/about-ep/faqs/42-about/frequently-asked-questions/21>.

¹¹⁸ Building the Canadian Advantage, supra note 9 at 9; Voluntary Principles, supra note 40.

¹¹⁹ Building the Canadian Advantage, supra note 9 at 9. Building the Canadian Advantage also discusses the environmental disclosure requirements in place for issuers listing on Canadian stock exchanges and the role of provincial securities laws in relation to disclosure (Ibid at 9–10). See also GRI, supra note 23; GRI, Reporting Framework, online: GRI <https://www.globalreporting.org/reporting/reporting-framework-overview/Pages/default.aspx>; GRI, Mining and Metals Sector Supplement, online: GRI <https://www.globalreporting.org/resourcelibrary/MMSS-Complete.pdf>.

¹²⁰ Building the Canadian Advantage, supra note 9 at 8.

¹²¹ Ibid at 14, referring to the OECD’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 21 November 1997, Can TS 1999 No 23 [Anti-Bribery Convention]; the Inter-American Convention against Corruption, 29 March 1996, Can TS 2000 No 21; the United Nations Convention against Transnational Organized Crime, 15 November 2000, 2225 UNTS 209; and the United Nations Convention against Corruption, 31 October 2003, 2349 UNTS 41.

¹²² Corruption against Foreign Officials Act, SC 1998, c 34.

¹²³ Building the Canadian Advantage, supra note 9 at 14–15.

¹²⁴ Anti-Bribery Convention, supra note 121. See, eg, OECD Working Group on Bribery in International Business Transactions, Canada: Phase 2: Follow-up Report on the Implementation of the Phase 2 Recommendations on the Application of the Convention and the 1997 Recommendation on Combatting Bribery of Public Officials in International Business Transactions (2006) at 5, online: OECD <http://www.oecd.org/dataoecd/5/6/36984779.pdf>. See also Sher, Julian, “Canada Ranked Worst of G7 Nations in Fighting Bribery, Corruption,” Globe and Mail (24 May 2011), online: Globe and Mail <http://www.theglobeandmail.com/news/politics/canada-ranked-worst-of-g7-nations-in-fighting-bribery-corruption/article 592312/ Google Scholar; Transparency International, “Progress Report 2011: Enforcement of the OECD Anti-Bribery Convention” (2011), online: Transparency International <http://www.transparency.org/whatwedo/pub/progress_report_2011_enforcement_of_the_oecd_anti_bribery_convention>.

¹²⁵ See generally Seck, supra note 15.

¹²⁶ Building the Canadian Advantage, supra note 9 at 11.

¹²⁷ Ibid at 11–12. Canada Investment Fund for Africa (CIFA) is a public-private investment fund designed to stimulate growth in Africa, with approximately a quarter of its investments in six extractive sector projects. Four of these are operated by Canadian or Canadian-listed companies. See CIFA, Portfolio Summaries, online: CIFA <http://www.cifafund.ca/en/portfolio.html>.

¹²⁸ Ibid at 12–13. See Common Approaches, supra note 22. See also generally EDC’s environmental commitments, online: EDC <http://www.edc.ca/EN/About-Us/Corporate-Social-Responsibility/Environment/Pages/default.aspx>.

¹²⁹ Building the Canadian Advantage, supra note 9 at 13. IFC standards are also a benchmark standard under the Common Approaches, supra note 22. However, the EDC subjects G-7 countries to a streamlined approach, in keeping with the Equator Principles, supra note 92 and EDC, Environmental and Social Review Directive, para 29(c), online: EDC <http://www.edc.ca/EN/About-Us/Corporate-Social-Responsibility/Environment/Documents/environment-social-review-directive.pdf>.

¹³⁰ Building the Canadian Advantage, supra note 9 at 13. See EDC, Business Ethics: Human Rights, online: <http://www.edc.ca/EN/About-Us/Corporate-Social-Responsibility/Documents/human-rights-statement.pdf>.

¹³¹ Building the Canadian Advantage, supra note 9 at 3–14. See also the United Nations Principles of Responsible Investment (UNPRI), online: UNPRI <http://www.unpri.org/>; and note 51 on the Extractive Industries Transparency Initiative.

¹³² Building the Canadian Advantage, supra note 9 at 10.

¹³³ Ibid at 11.

¹³⁴ Order in Council, PC 2009–0422 (25 March 2009), online: <http://www.pco-bcp.gc.ca/OIC-DDC.asp?lang=eng&Page=&txtOICID=2009-0422&txtFromDate=&txtToDate=&txtPrecis=&txtDepartment=&txtAct=&txtChapterNo=&txt ChapterYear=&txtBillNo=&rdoComingIntoForce=&DoSearch=Search+%2F+List&viewattach=20393>.

¹³⁵ CSR Counsellor, supra note 56.

¹³⁶ Order in Council, supra note 134, s 7(1). This structure has raised concerns as to the ability of the CSR Counsellor to act impartially and at arm’s length from DFAIT. See Meeting Summary Report: Legal Experts Meeting on ’Identifying and Exploring the Key Legal Issues Associated with the Office of the Extractive Sector Corporate Social Responsibility Counsellor (6 May 2010) at 6, online: DFAIT <http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/Legal%20issues%20Workshop%201%20May%202010.pdf> [CSR Experts Report].

¹³⁷ Office of the Extractive Sector Corporate Social Responsibility Counsellor, Building a Review Process for the Canadian International Extractive Sector: A Backgrounder (June 2010) at 2, online: DFAIT <http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/building%20a%20review%20process%20backgrounder%20FINAL%20June%202010.pdf>.

¹³⁸ See Office of the Extractive Sector Corporate Social Responsibility Counsellor, Public Consultations Summary Report: Building a Review Process for the Canadian International Extractive Sector: A Summary of Public Consultations Held June-August 2010 (September 2010) at 4–5, online: DFAIT <http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/Consultations%20Summary%20Report%20Sept%202010.pdf> [CSR Consultations Summary], describing the public consultations as consisting of “five separate but complementary activities: (1) a series of full day, professionally facilitated workshops in 5 cities across Canada; (2) a 90 minute interactive webinar; (3) formal and informal interviews and dialogue sessions with international stakeholders in Mexico, Mali, and Senegal; (4) an invitation to provide written feedback on the draft rules of procedure; and (5) three legal experts workshops.”

¹³⁹ Ibid at 2. See further individual consultation reports, online: DFAIT <http://www.international.gc.ca/csr_counsellor-conseiller_rse/publications-publications.aspx?lang=eng&view=d>. See also description of stakeholders in Office of the Extractive Sector Corporate Social Responsibility Counsellor, Annual Report to Parliament October 2009 – October 2010 (February 2011) at 3, online: DFAIT <http://www.international.gc.ca/csr_counsellor-conseiller_rse/publications-publications.aspx?lang=eng&view=d>: “[T]he Counsellor has spent much of the past year in conversations with the multitude of constituencies who have an interest in the issues … These stakeholders include Canadian companies, host country authorities, project affected communities and individuals, joint venture partners, Canadian industry associations, overseas industry associations, professional associations, Canadian NGOs, non-Canadian civil society groups, Canadian parliamentarians, host country regulators, service providers including the legal and consulting communities, socially responsible investors, academics, international financial institutions, global initiatives, and others.”

¹⁴⁰ CSR Rules of Procedure, supra note 57; Office of the Extractive Sector CSR Counsellor, Launch of the Review Process of Canada’s Office of the Extractive Sector Corporate Social Responsibility Counsellor, News Release (20 October 2010), online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/csr_counsellor-conseiller_rse/launch_Oct2010_lancement.aspx?view=d>.

¹⁴¹ Office of the Extractive Sector Corporate Social Responsibility Counsellor, The Review Process Participant Guide (April 2011), online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/Participant%20guide%20April%202011.pdf> [Review Process Participant Guide].

¹⁴² CSR Consultations Summary, supra note 138 at 4.

¹⁴³ Order in Council, supra note 134, s 4.

¹⁴⁴ Ibid, s 1. This definition is repeated in the CSR Rules of Procedure, supra note 57, s 1.

¹⁴⁵ For a typology of Canadian mining companies, categorizing them according to their head office and government jurisdiction, among other factors, see DFAIT-Canada, Discussion Paper, Prepared for the National Roundtables on Corporate Social Responsibility and the Extractive Sector in Developing Countries (June 2006) at 26–27, Table 2.

¹⁴⁶ Order in Council, supra note 134, s 6. The CSR Counsellor is also not to review any activity that occurred before the day on which the first Counsellor was appointed (Ibid, s 5(1)), which is identified in the CSR Rules of Procedure as 19 October 2009. CSR Rules of Procedure, supra note 57, s 3(a).

¹⁴⁷ Order in Council, supra note 134, s 5(5).

¹⁴⁸ Ibid.

¹⁴⁹ Ibid, s 1. However, the NCP for the OECD Guidelines is to remain the “primary authority” concerning these (Ibid, s 5(2)–(4)). As the GRI is a voluntary guideline for sustainability reporting, it is unclear how it could be used. One possibility is that a community that believes it is being impacted by company conduct could complain to the CSR Counsellor if it believes the company is not accurately reporting CSR issues as required under the GRI. Another possibility is that a concerned investor group could approach the CSR Counsellor, although it is unclear whether an investor group would qualify as a “requestor.”

¹⁵⁰ Order in Council, supra note 134, s 6(1)(a). An “individual, group or community” may authorize an “individual or organization” to aid or assist them in the submission of a request for review, thus allowing for the possibility that Canadian civil society organizations could assist foreign complainants in accessing the review process. CSR Rules of Procedure, supra note 57, s 5(a). Anonymous requests may not be submitted, although submissions may be made that request confidentiality (Ibid, s 3(c)).

¹⁵¹ Order in Council, supra note 134, s 6(1)(b). Such a request must “clearly name the Responding party.” CSR Rules of Procedure, supra note 57, s 5(b). Presumably this responding party must then consent in writing to the review process under section 5(6) of the Order in Council.

¹⁵² Order in Council, supra note 134, s 6(2).

¹⁵³ Ibid, s 6(3). The five stages are: (1) initial assessment; (2) informal mediation; (3) fact finding; (4) access to formal mediation; and (5) reporting (Ibid, s 6(4)).

¹⁵⁴ Ibid, s 6(5)(a); see also generally s 6(5).

¹⁵⁵ Ibid, s 6(6)(d); see also generally s 6(6).

¹⁵⁶ CSR Rules of Procedure, supra note 57, s 9. See field visit reports concerning the complaint filed by Excellon Workers, National Mining Union, and Proyecto de Derechos Económicos, Sociales y Culturales A.C. in relation to Excellon Resources Incorporated, online: DFAIT <http://www.international.gc.ca/csr_counsellor-conseiller_rse/Registry-web-enregistrement.aspx?view=d> [Excellon Complaint].

¹⁵⁷ Review Process Participant Guide, supra note 141 at 17.

¹⁵⁸ Order in Council, supra note 134, s 6(8). Before issuing the public statement, the CSR Counsellor is to inform the parties of the result and share the statement with the ministers of international trade and natural resources as well as the minister of international co-operation if relevant. See section 6(9). According to section 6(10), the minister of international trade may direct the CSR Counsellor to study additional matters.

¹⁵⁹ Ibid, s 7(2).

¹⁶⁰ Ibid, s 7(4).

¹⁶¹ Ibid, s 8(2).

¹⁶² PDAC, Canada’s Exploration and Mining Companies Welcome Canada’s Independent CSR Counsellor, News Release (20 October 2010), online: PDAC <http://www.pdac.ca/pdac/misc/101020.html>.

¹⁶³ Mining Association of Canada (MAC), Mining Association of Canada Welcomes the Launch of the CSR Counsellor’s Review Mechanism, Press Release (20 October 2010), online: MAC <http://www.mining.ca/www/media_lib/MAC_News/2010/ 10_20_10_Press_Releaserev.pdf>.

¹⁶⁴ Canadian Network on Corporate Accountability, Civil Society Statement on CSR Counsellor: Government’s New Toothless Review Mechanism Underlies Why Responsible Mining Bill C-300 Is Necessary, Press Release (26 October 2010), online: Halifax Initiative <http://www.halifaxinitiative.org/content/civil-society-statement-csr-counsellor>. According to the civil society statement, the most common complaints received were “allegations of serious environmental pollution, collaboration with paramilitary networks and deliberate attempts to corrupt government and the judiciary of the host country where the Canadian company establishes its operations.” Moreover, as the CSR Counsellor mechanism “lacks an investigative function to clarify disputed facts,” it is unclear how she would be able to resolve disputes without establishing first “whether the allegations are well founded.”

¹⁶⁵ Ibid. See further Mining Watch Canada, The Government’s New ‘CSR Counsellor’ for the Extractive Sector, Newsletter 27 (5 January 2010), online: MiningWatch Canada <http://www.miningwatch.ca/government-s-new-csr-counsellor-extractive-sector>; JP Laplante and Catherine Nolin, “Snake Oil and the Myth of Corporate Social Responsibility” (25 January 2011) 45:1 Canadian Dimension, online: Canadian Dimension <http://canadiandimension.com/articles/3613/>.

¹⁶⁶ See Excellon Complaint, supra note 156.

¹⁶⁷ See Office of the Extractive Sector Corporate Social Responsibility Counsellor, Closing Report, Request for Review File #2011-01-MEX (October 2011), online: DFAIT <http://www.international.gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/Closing_report_MEX.pdf>.

¹⁶⁸ See complaint filed by Maître Ahmed Mohamed Lemine and others in relation to First Quantums Minerals Limited, online: DFAIT Trade <http://www.international.gc.ca/csr_counsellor-conseiller_rse/Registry-web-enregistrement. aspx?view=d>. This request has since been closed.

¹⁶⁹ Complaints have been made about Canadian mining companies operating in developed countries such as the United States. See UN Committee on the Elimination of Racial Discrimination, Consideration of Reports Submitted by States Parties Under Article 9 of the Convention: Concluding Observations of the Committee on Elimination of Racial Discrimination, UN Doc CERD/C/CAN/CO/18 (5 March 2007) at para 17 (responding to Western Shoshone Defense Project, Report on Effects of Canadian Transnational Corporate Activities on the Western Shoshone Peoples of the Western Shoshone Nation: Report Submitted to CERD in relation to Canada’s 17th and 18th Periodic Reports of CERD 4 (2007)).

¹⁷⁰ The OECD’s NCP process, by contrast, does not require company consent. See notes 67 and 68 in this article. However, OECD NCP complaints have withered due to withdrawal by civil society and community groups frustrated by the process.

¹⁷¹ Hansen, Jyll et al, Canada’s Extractive Industry Ombudsperson: Background and Recommendations for an Ombudsperson for Canadian Extractive Companies Operating Abroad: Brief Submitted to the Government of Canada Roundtables on Corporate Social Responsibility in the Extractive Sector (November 2006), online: <http://halifaxinitiative.org/updir/OmbudspersonMemo.pdf>..>Google Scholar

¹⁷² Of course, it may be that a layering of non-judicial mechanisms serving different roles would be the ideal solution.

¹⁷³ The government of Canada frequently states that compliance with identified international standards is voluntary. However, the line between “voluntary” and “mandatory” is generally understood to be less clear than this would suggest. See, eg, Kerr, Michael, Janda, Richard, and Pitts, Chip, Corporate Social Responsibility: A Legal Analysis (Markham, ON: LexisNexis, 2009) at 93–104 Google Scholar (examining the voluntary versus regulatory debate and concluding that the debate is unhelpful).

¹⁷⁴ See recent Ontario report calling for legislation against strategic litigation against public participation (SLAPP). Anti-SLAPP Advisory Panel, Report to the Attorney General (28 October 2010), online: Ministry of the Attorney General <http://www.attorneygeneral.jus.gov.on.ca/english/anti_slapp/anti_slapp_final_report_en.pdf>. See also Barrick Gold lawsuit against small publisher in Quebec (which has anti-SLAPP legislation), Barrick Gold Corp. c Éditions écosociété inc, 2011 QCCS 4232; and parallel lawsuit in Ontario, Banro Corporation v Éditions Écosociété Inc, 2009 CanLII 7168 (ONSC).

¹⁷⁵ Protect, Respect, and Remedy, supra note 7 at para 14.

¹⁷⁶ UN Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc E/CN.4/Sub.2/2003/12/Rev.2 (26 August 2003). See generally Ruggie, John Gerard, “Current Developments: Business and Human Rights: The Evolving International Agenda” (2007) 101 AJIL 821.CrossRef Google Scholar

¹⁷⁷ Interim Report, supra note 6 at 55. See also Weissbrodt, David and Kruger, Muria, “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” (2003) 97 AJIL 901 CrossRef Google Scholar; Kinley, David and Tadaki, Junko, “From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law” (2004) 44 Va J Int’l L 931.Google Scholar

¹⁷⁸ Interim Report, supra note 6 at para 55. The 2005 mandate included the need to “identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights” and to “elaborate on the role of States in effectively regulating and adjudicating the role of transnational corporations and other business enterprises with regard to human rights, including through international cooperation” (Ibid at para 1).

¹⁷⁹ Guiding Principles, supra note 11 at para 4.

¹⁸⁰ Ibid at para 4, referring to the SRSG’s web portal, online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/SpecialRep Portal/Home>.

¹⁸¹ Ruggie, John, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, UNHRC, 4th Sess, UN Doc A/HRC/4/35 (19 February 2007).Google Scholar Summary conclusions of this mapping included: explicit recognition of the existence of direct legal obligations for business under international criminal law, despite the lack of an international forum to hear claims ( Ibid at paras 21, 19–32); explicit recognition that international law does not (yet) recognize direct legal obligations for business for violations of less egregious international human rights law norms (Ibid at paras 33, 33–44); the “uncontested nature” of the “firmly established” fact that “states have a duty to protect against nonstate human rights abuses within their jurisdiction, and that this duty extends to protection against abuses by business entities” (Ibid at para 10). See also Ruggie, John, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Addendum: State Responsibilities to Regulate and Adjudicate Corporate Activities under the United Nations Core Human Rights Treaties: An Overview of Treaty Body Commentaries, UNHRC, 4th Sess, UN Doc A/HRC/4/35/Add.1 (13 February 2007).Google Scholar

¹⁸² Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Addendum: Corporate Responsibility under International Law and Issues in Extraterritorial Regulation: Summary of Legal Workshops, UNHRC, 4th Sess, UN Doc A/HRC/4/35/ Add.2 (15 February 2007). The author attended the New York legal experts’ consultation.

¹⁸³ SRSG, Corporate Responsibility to Protect Human Rights: Summary Report on Consultation in Geneva (4–5 December 2007), online: Business and Human Rights Resource Centre <http://www.reports-and-materials.org/Ruggie-Geneva-4-5-Dec-2007.pdf>; SRSG, The Role of States in Effectively Regulating and Adjudicating the Activities of Corporations With Respect to Human Rights: Summary Report on Meeting in Copenhagen (8–9 November 2007), online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/Documents/Ruggie-Copenhagen-8-9-Nov-2007.pdf>; SRSG, Business and Human Rights in Conflict Zones: The Role of Home States: Summary Report of Consultation Co-convened by SRSG and Global Witness in Berlin (5 November 2007), online: Business and Human Rights Resource Centre <http://www.reports-and-materials.org/Ruggie-Global-Witness-Berlin-report-5-Nov-2007.pdf>. The author attended the Copenhagen multi-stakeholder consultation. See also links to summary reports of all consultations, meetings, and workshops throughout the mandate, online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/SpecialRepPortal/Home/Consultationsmeetingsworkshops>.

¹⁸⁴ Protect, Respect, and Remedy, supra note 7; UNHRC, supra note 8.

¹⁸⁵ Protect, Respect, and Remedy, supra note 7 at paras 24, 52.

¹⁸⁶ Ibid at paras 7, 17.

¹⁸⁷ Ibid at para 3.

¹⁸⁸ Ibid at paras 9 and 55.

¹⁸⁹ Ibid at para 82.

¹⁹⁰ Ibid at para 18.

¹⁹¹ Ibid.

¹⁹² Ibid at para 14.

¹⁹³ Ibid at para 18.

¹⁹⁴ Ibid at para 19.

¹⁹⁵ See Seck, Sara L, “Collective Responsibility and Transnational Corporate Conduct,” in Isaacs, Tracy and Vernon, Richard, eds, Accountability for Collective Wrongdoing (Cambridge: Cambridge University Press, 2011) 140 at 158CrossRef Google Scholar (noting Protect, Respect, and Remedy’s focus on policy recommendations for state implementation of the duty to protect rather than mandatory prescriptions coupled with sanctions against recalcitrant states).

¹⁹⁶ Protect, Respect, and Remedy, supra note 7 at para 89.

¹⁹⁷ Ibid at paras 90 and 91. Further, states should “address obstacles to access to justice, including for foreign plaintiffs — especially where alleged abuses reach the level of widespread and systemic human rights violations” (Ibid).

¹⁹⁸ Ibid at paras 98–99.

¹⁹⁹ Ibid at paras 98, 92. However, some NCPs are taking innovative approaches that the OECD and adhering states “should consider” (Ibid at para 99).

²⁰⁰ Ibid at para 102.

²⁰¹ Ibid at para 103 [emphasis added].

²⁰² Guiding Principles, supra note 11 at para 9.

²⁰³ Ibid at para 10.

²⁰⁴ Ibid at para 7.

²⁰⁵ Ibid at para 8.

²⁰⁶ Ibid.

²⁰⁷ Ibid at para 10.

²⁰⁸ Ibid at para 11.

²⁰⁹ Ibid. See Ruggie, John, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises: Business and Human Rights in Conflict-Affected Regions: Challenges and Options towards State Responses , UNHRC 17th Sess, UN Doc A/HRC/17/32 (27 May 2011) [Conflict-Affected Regions].Google Scholar Three workshops were convened involving participants from 12 countries representing a balance of “home and host states”: Belgium, Brazil, Canada, China, Columbia, Guatemala, Nigeria, Norway, Sierra Leone, Switzerland, the United Kingdom, and the United States (Ibid at para 2).

²¹⁰ Corporate Law Addendum, supra note 11 at paras 6, 11.

²¹¹ Guiding Principles, supra note 11 at para 12.

²¹² Ibid. See Ruggie, John, Draft Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises: Guiding Principles for the Implementation of the United Nations ’Protect, Respect and Remedy’Framework, online: <http://www.reports-and-materials.org/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf> [Draft Guiding Principles].+[Draft+Guiding+Principles].>Google Scholar The online consultation “attracted 3,576 unique visitors from 120 countries and territories,” and “ [s]ome 100 written submissions were sent directly to the Special Representative, including by Governments.” The Draft Guiding Principles were further “discussed at an expert multi-stakeholder meeting, and then at a session with Council delegations, both held in January 2011.” Guiding Principles, supra note 11 at para 12. For links to commentaries and submissions on the Draft Guiding Principles, see online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/SpecialRepPortal/Home/Protect-Respect-Remedy-Framework/GuidingPrinciples/CommentariesonDraft GuidingPrinciples> and online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/SpecialRepPortal/Home/Protect-Respect-Remedy-Framework/GuidingPrinciples/Submissions> [Submissions to Consultations on Draft Guiding Principles].

²¹³ Guiding Principles, supra note 11 at para 13.

²¹⁴ Ibid at para 14. Moreover, while the Guiding Principles are “universally applicable,” “one size does not fit all,” given the “fact that we live in a world of 192 United Nations Member States, 80,000 transnational enterprises, 10 times as many subsidiaries and countless millions of national firms, most of which are small and medium-sized enterprises” (Ibid at para 15).

²¹⁵ Ibid at para 6.

²¹⁶ Ibid at 6, Principle 1. The chapter outlining the state duty to protect is described as focused upon preventative measures (Ibid at 7). As the state duty to protect is a standard of conduct, states are not “per se responsible for human rights abuse by private actors” but, rather, “may breach their international human rights law obligations where such abuse can be attributed to them” or where they “fail to take appropriate steps to prevent, investigate, punish and redress private actors’ abuse” (Ibid at 7, Commentary to Principle 1).

²¹⁷ Ibid at 7, Principle 2.

²¹⁸ Ibid at 7, Commentary to Principle 2. See text accompanying note 194.

²¹⁹ Guiding Principles, supra note 11 at 7, Commentary to Principle 2.

²²⁰ Ibid. These measures include “requirements on ‘parent’ companies to report on the global operations of the entire enterprise; multilateral soft-law instru-ments such as the [OECD] Guidelines; and performance standards required by institutions that support overseas investments.” The distinction between measures with extraterritorial effect and direct extraterritorial measures was first introduced by the SRSG in a keynote address in Stockholm in November 2009 and elaborated upon in his 2010 report. See Ruggie, John G, Keynote Presentation at EU Presidency Conference on the ’Protect, Respect and Remedy’ Framework, Stockholm, 10–11 November 2009, online: <http://www.reports-and-materials.org/Ruggie-presentation-Stockholm-10-Nov-2009.pdf> Google Scholar; Ruggie, John, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises: Business and Human Rights: Further Steps toward the Operationalization of the “Protect, Respect and Remedy , UNHRC, 14th Sess, UN Doc A/HRC/14/27 (9 April 2010)Google Scholar at para 48.

²²¹ Guiding Principles, supra note 11 at 7, Commentary to Principle 2. This includes “criminal regimes that allow for prosecution based on the nationality of the perpetrator no matter where the offence occurs.”

²²² Ibid.

²²³ Ibid at 8, Principle 3.

²²⁴ Ibid.

²²⁵ Ibid. Principle 5 addresses privatization, while Principle 6 focuses on procurement activities.

²²⁶ Ibid at 9, Principle 4.

²²⁷ Ibid.

²²⁸ Ibid at 10, Principle 7.

²²⁹ Ibid at 10–11, Principle 7. See also Conflict-Affected Regions, supra note 209.

²³⁰ Guiding Principles, supra note 11 at 11, Principle 8. Principle 9 highlights the need for states to maintain “adequate domestic policy space” and regulatory ability to meet their own human rights obligations, even when pursuing investment treaties or contracts with other States or business enterprises(Ibid at 12, Principle 9).

²³¹ Ibid at 12, Principle 10. Principle 10 further provides that as members of multilateral institutions dealing with business-related issues, States should ensure that the institutions do not “restrain the ability of their member States to meet their duty to protect.”

²³² Ibid at 22, Principle 25.

²³³ Ibid at 22, Commentary to Principle 25.

²³⁴ Ibid. A grievance may be based on “law, contract, explicit or implicit promises, customary practice, or general notions of fairness of aggrieved communities.”

²³⁵ Ibid at 23, Principle 26.

²³⁶ Ibid at 23, Commentary to Principle 26.

²³⁷ Ibid at 24, Principle 27.

²³⁸ Ibid at 24, Commentary to Principle 27.

²³⁹ Ibid at 24, Principle 28. Principle 29 then focuses upon the need for business enterprises to “establish or participate in effective operational-level grievance mechanisms for individuals and communities” in order to address and remediate grievances early on, while Principle 30 provides that “collaborative initiatives that are based on respect for human rights-related standards,” whether industry or multi-stakeholder, should “ensure that effective grievance mechanisms are available” in order to achieve greater legitimacy (Ibid at 25–26).

²⁴⁰ Ibid at 24, Commentary to Principle 28. According to the commentary, non-state-based grievance mechanisms administered by business enterprises offer potential benefits, including “transnational reach.” The commentary also notes that non-state-based grievance mechanisms are “non-judicial, but may use adjudicative, dialogue-based or other culturally appropriate and rights-compatible processes.”

²⁴¹ Ibid at 25, Commentary to Principle 28.

²⁴² Seck, supra note 195 at 158–59 (discussing with respect to Protect, Respect, and Remedy).

²⁴³ Guiding Principles, supra note 11 at 26, Principle 31.

²⁴⁴ Ibid. Legitimate means “enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes.”

²⁴⁵ Ibid. Accessible means “being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access.”

²⁴⁶ Ibid. Predictable means “providing a clear and known procedure with an indicative timeframe for each stage, and clarity on the types of process and outcome available and means of monitoring implementation.”

²⁴⁷ Ibid. Equitable means “seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair, informed and respectful terms.”

²⁴⁸ Ibid. Transparent means “keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism’s performance to build confidence in its effectiveness and meet any public interest at stake.”

²⁴⁹ Ibid. Rights-compatible means “ensuring that outcomes and remedies accord with internationally recognized human rights.”

²⁵⁰ Ibid. Continuous learning is defined as “drawing on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harms.”

²⁵¹ Ibid. Dialogue should be the means used to address and resolve grievances.

²⁵² See BCE Inc v 1976 Debentureholders, 2008 SCC 69, [2008] 3 SCR 560. For related commentary, see, eg, Khimji, Mohamed F, “People v. Wise — Conflating Directors’ Duties, Oppression, and Stakeholder Protection” (2006) 39 UBCL Rev 209 Google Scholar; Vanduzer, Anthony, “BCE v 1976 Debentureholders: The Supreme Court Hits and Misses in Its Most Important Corporate Law Decision since Peoples” (2010) 43 UBC L Rev 205.Google Scholar See also Stikeman Elliott LLP, Corporate Law Tools Project (September 2009), online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/media/documents/ruggie/corp-law-tools-canada-stikeman-elliott-for-ruggie-sep-2009.pdf> [Stikeman Elliott CLT Report].

²⁵³ See Ibid at 19; Dhir, Aaron A, “Realigning the Corporate Building Blocks: Shareholder Proposals as a Vehicle for Achieving Corporate Social and Human Rights Accountability” (2006) 43 Am Bus LJ 365.CrossRef Google Scholar

²⁵⁴ Dhir, “Shareholder Engagement,” supra note 69.

²⁵⁵ See text accompanying note 10 in this article.

²⁵⁶ See note 149 in this article.

²⁵⁷ See Ontario Securities Commission (OSC), OSC Corporate Sustainability Reporting Initiative: Report to Minister of Finance (18 December 2009) at 14, online: OSC <http://www.osc.gov.on.ca/documents/en/Securities-Category5/rule_ 20091218_51-717_mof-rpt.pdf>; Hennick Centre for Business and Law and Jantzi-Sustainalytics, Corporate Social Reporting Initiative: Report to Minister of Finance (June 2010) at 8, online: Hennick Centre <http://www.hennickcentre.ca/documents/FiNALREPORT.pdf>. See also increased disclosure requirements in the OECD Guidelines, which are promoted by Canada’s NCP. OECD Guidelines, supra note 18 at 15.

²⁵⁸ See notes 129–30 and accompanying text in this article.

²⁵⁹ Guiding Principles, supra note 11 at 10–11, Principle 7.

²⁶⁰ See Voluntary Principles, supra note 40.

²⁶¹ See Yap, James, “Corporate Civil Liability for War Crimes in Canadian Courts: Lessons from Bil’in (Village Council) v. Green Park International Ltd.” (2010) 8 J Int’l Crim Justice 631 CrossRef Google Scholar; Wanless, W. Cory, “Corporate Liability for International Crimes under Canada’s Crimes against Humanity and War Crimes Act” (2009) 7 J Int’l Criminal Justice 201.CrossRef Google Scholar

²⁶² See, eg, the list of government departments with links to CSR policies on the website of the CSR Centre of Excellence, online: <http://web.cim.org/csr/MenuPage.cfm?sections=126&menu=131#block253>.

²⁶³ See further on the Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development, supra note 112. However, another view of the Intergovernmental Forum and other capacity-building exercises in developing countries would be that these are designed to facilitate the exploitation of host state natural resources to benefit Canadian companies. See, eg, critical commentary surrounding the support provided by CIDA to “development NGOs” for “CSR projects” of mining companies at mine sites overseas by Catherine Coumans, Brief Prepared for the House of Commons Standing Committee on Foreign Affairs and International Development’s Study on the Role of the Private Sector in Achieving Canada’s International Development Interests (MiningWatch Canada: January 2012), online: MiningWatch Canada <http://www.miningwatch.ca/sites/www.miningwatch.ca/files/Mining_and_Development_FAAE_2012.pdf >.

²⁶⁴ However, see Bill C-354, supra note 58.

²⁶⁵ See notes 64–66 in this article.

²⁶⁶ In this regard, it is interesting to compare the Guiding Principles’ list of criteria, supra notes 243–51 with the list of claims made by the Office of the Extractive Sector CSR Counsellor, supra note 140.

²⁶⁷ See generally materials on the update process on the OECD website, online: OECD <http://www.oecd.org/document/33/0,3746,en_2649_34889_44086753_1_1_1_1,00.html>. See also new text OECD, OECD Guidelines for Multinational Enterprises: Recommendations for Responsible Business Conduct in a Global Context (25 May 2011), online: OECD <http://www.oecd.org/dataoecd/43/29/48004323.pdf>. As of 25 May 2011, adhering governments are all OECD members as well as Argentina, Brazil, Egypt, Latvia, Lithuania, Morocco, Peru, and Romania.

²⁶⁸ OECD, OECD Guidelines for Multinational Enterprises: Recommendations for Responsible Business Conduct in a Global Context (OECD Ministerial Meeting, 2011) at 32, online: OECD <http://www.oecd.org/dataoecd/43/29/48004323.pdf>.

²⁶⁹ See Amnesty International, A Call for OECD’s Export Credit Group to Protect the Rights of Those Affected by Business-Related Human Rights Abuses (28 June 2011), online: Amnesty International <http://www.amnesty.org/fr/node/24942>; Amnesty International, Review of the Revised Recommendation on Common Approaches on the Environment and Officially Supported Export Credits, Submission of Amnesty International (20 February 2010) (March 2010), online: Amnesty International <http://www.amnesty.org/en/library/asset/POL30/002/2010/en/a1b48827-bdc9-4d8b-afd8-7cc25daed63a/pol300022010en.pdf>.

²⁷⁰ See letter to World Bank Group President from John Ruggie sent March 2011, online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/media/documents/ruggie/ruggie-ltr-to-world-bank-president-zoellick-re-ifc-policies-standards-review-3-mar-2011.pdf>. The revised Sustainability Framework was released in May 2011 (online: IFC <http://www.ifc.org/ifcext/policyreview.nsf>) and includes revisions to the Policies and Performance Standards (online: IFC <http://www.ifc.org/ifcext/policyreview.nsf#SF>. See full text of revised Sustainability Framework, online: IFC <http://www.ifc.org/ifcext/policyreview.nsf/AttachmentsByTitle/Updated_IFC_SFCompounded_August1-2011/$FILE/Updated_IFC_SustainabilityFramework Compounded_August1-2011.pdf>.

²⁷¹ For text see online: GRI <https://www.globalreporting.org/reporting/latest-guidelines/g3-1-guidelines/Pages/default.aspx>. See also Global Reporting Initiative, G3.1 Guidelines: Human Rights — Current Project Status, online: GRI <http://www.globalreporting.org/reportingframework/g31guidelines/guidelines.htm> (stating that revisions address Ruggie’s work).

²⁷² Backer, Larry Catá, On the Evolution of the United Nations’ “Protect-Respect-Remedy” Project: The State, the Corporation and Human Rights in a Global Governance Context (2011) 9 Santa Clara J Int’l L 37 at 43.Google Scholar

²⁷³ See discussion on this point in Seck, supra note 195 at 158–59.

²⁷⁴ See, eg, Business and Human Rights Resource Centre, “Commentaries Issued after UN Council Endorsement of Guiding Principles,” online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/Documents/UNGuidingPrinciples/Commentaries>, in particular the critical commentary from the Child Rights Information Network (21 June 2011), International Federation for Human Rights (17 June 2011), and Human Rights Watch (16 June 2011). See also Simons, Penelope, “International Law’s Invisible Hand and the Future of Corporate Accountability for Violations of Human Rights” (2012) 3 J Human Rights & the Environment 5, online: Edward Elgar Publishing <http://e-elgar.metapress.com/content/uq8l85545870m334/fulltext.pdf>.CrossRef Google Scholar See also Bilchitz, David, “The Ruggie Framework: An Adequate Rubric for Corporate Human Rights Obligations?” (2010) 7 Sur Int’l J Human Rights 199 Google Scholar; McCorquodale, Robert, “Corporate Social Responsibility and International Human Rights Law” (2009) 87 J Business Ethics 385.CrossRef Google Scholar

²⁷⁵ Ruggie, John Gerard, “Reconstituting the Global Public Domain: Issues, Actors and Practices” (2004) 10 Eur J Int’l Relations 499 at 519.CrossRef Google Scholar See also Ruggie, John G, “Territoriality and Beyond: Problematizing Modernity in International Relations” (1993) 47 Int’l Org 139 CrossRef Google Scholar; Ruggie, John G, “What Makes the World Hang Together? Neo-utilitarianism and the Social Constructivist Challenge” (1998) 52 Int’l Org 855.CrossRef Google Scholar For a complete list of Ruggie’s academic work, see online: Harvard University <http://www.hks.harvard.edu/m-rcbg/johnruggie/index.html>.

²⁷⁶ Ruggie, , “Public Domain,” supra note 275 at 519.Google Scholar See also Whelan, Glen, Moon, Jeremy, and Orlitzky, Marck, “Human Rights, Transnational Corporations and Embedded Liberalism: What Chance Consensus?” (2009) 87 J of Business Ethics 367 at 373CrossRef Google Scholar; Dashwood, Hevina S, “Canadian Mining Companies and Corporate Social Responsibility: Weighing the Impact of Global Norms” (2007) 40 Can J Political Science 129 at 133.CrossRef Google Scholar

²⁷⁷ Ruggie, , “Public Domain,” supra note 275 at 502.Google Scholar

²⁷⁸ Ibid at 519. Ruggie describes the global public domain as “exist[ing] in transnational non-territorial spatial formations” and being “anchored in norms and expectations as well as institutional networks and circuits within, across and beyond states” (Ibid). However, see Shamir, Ronen, “Corporate Social Responsibility: Towards a New Market-Embedded Morality?” (2008) 9 Theor Inq L 371.Google Scholar Sociolegal scholars such as Shamir have described similar phenomena as leading “towards a new market-embedded morality,” with the rationality of the market becoming the organizing principle for society as a whole while a “process of responsibilization” follows in which it is assumed that various social actors have “reflexive moral capacities” (Ibid at 371, 374, 379).

²⁷⁹ While the text of Principle 1 is virtually unchanged, the revised commentary to Principle 1 no longer discusses the specific language of the UN human rights treaties. See Guiding Principles: supra note 11 at 6–7. It does, however, include a reference to the state duty to “protect and promote the rule of law, including by taking measures to ensure equality before the law, fairness in its application, and by providing adequate accountability, legal certainty, and procedural and legal transparency” (Ibid at 7). Principle 2 was more substantially changed. In the draft Guiding Principles, it stated: “States should encourage business enterprises domiciled in their territory and/orjurisdiction to respect human rights throughout their global operations, including those conducted by their subsidiaries and other related legal entities.” See Draft Guiding Principles, supra note 212 [emphasis added], reflecting words omitted from the final version). In the final text, “encourage” was replaced by “clearly set out the expectation.” See Guiding Principles, supra note 11 at 7.

²⁸⁰ See Submissions to Consultation on Draft Guiding Principles, supra note 212. The problem of extraterritorial jurisdiction was also the subject of a legal experts’ consultation in September 2010. Ruggie, John, Exploring Extraterritoriality in Business and Human Rights: Summary Note of Expert Meeting (14 September 2010), online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/media/documents/ruggie-extraterritoriality-14-sep-2010.pdf>..>Google Scholar

²⁸¹ International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 (in force 3 January 1976) [ICESCR]. See Submissions to Consultation on Draft Guiding Principles, Document 3, supra note 212, in particular, the submissions by Emily Howie, The Human Rights Law Resource Centre (11 January 2011); Robert Grabosch (28 January 2011); John Knox (17 January 2011); Bernd Nilles, CIDSE (31 January 2011); Thomas Lazzeri (27 January 2011) ; Maplecroft (31 January 2011); Center for Human Rights and Environment (31 January 2011); Cathal Doyle (31 January 2011); Earth Rights International (January 31, 2011); Joint statement signed by twenty organizations including Amnesty International and the International Center for Economic & Social Rights (January 2011); OXFAM (31 January 2011); Chip Pitts (31 January 2011); Responsible Mineral Sector Initiative, Segal Graduate School of Business, Simon Fraser University (31 January 2011); SOMO (31 January 2011); Castan Centre for Human Rights Law, Monash University ( January 2011, prepared by Sarah Joseph and Adam McBeth); Robert McCorquodale (January 2011); Sherpa (January 2011); Amnesty International, CIDSE, ESCR-Net, Human Rights Watch, International Commission of Jurists, International Federation for Human Rights (FIDH), Rights and Accountability in Development (RAID) (14 January 2011); European Centre for Constitutional and Human Rights (27 January 2011); and Peter Muchlinski (24 January 2011) (raising concern over the limitations of the term “domicile”). Submissions by various governments and state human rights commissions also supported an expanded understanding of extraterritorialjurisdic-tion. The Canadian government did not make a public submission.

²⁸² See especially PDAC, Submission (January 2011), online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/media/documents/ruggie/pdac-submission-re-guiding-principles-jan-2011.pdf> [PDAC Submission]; and Hogan Lovells LLP, Talisman Energy’s Comments to Draft Guiding Principles (20 December 2010) at 5–6, online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/media/documents/talisman-comments-on-guiding-principles-dec-2010.pdf> [Talisman Energy]. See also submissions by US Chamber of Commerce Institute for Legal Reform (31 January 2011), online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/media/documents/ruggie/us-chamber-of-commerce-inst-for-legal-reform-re-guiding-principles-31-jan-2011.pdf>; Commission on Multinational Enterprises of the Confederation of Netherlands’ Industry and Employers VNO-NCW (31 January 2011), online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/media/documents/ruggie/vno-ncw-comments-on-draft-guiding-principles-jan-2011.doc>.

²⁸³ Talisman Energy, supra note 282 at 6 [emphasis added].

²⁸⁴ Guiding Principles, supra note 11, Principle 7; Draft Guiding Principles, supra note 212, Principle 10. See, eg, submission by Michael Deas (31 January 2011) (expressing concern that there is little emphasis on the role of home states in conflict-affected areas), online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/SpecialRepPortal/Home/Protect-Respect-Remedy-Framework/GuidingPrinciples/Submissions>.

²⁸⁵ Guiding Principles, supra note 11, Principle 25; Draft Guiding Principles, supra note 212, Principle 23. See the submission of Earth Rights International (31 January 2011), online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/media/documents/ruggie/earthrights-comments-on-guiding-principles-31-jan-2011.pdf> (noting that Principle 23 (new Principle 25) is ambiguous with respect to remedies that home states may provide against business entities within their legal jurisdiction for acts that occur outside their territorial jurisdiction, with the ambiguity stemming from the phrase “territory and/or jurisdiction” as it is not clear if “jurisdiction” in this context is intended to include “extraterritorial jurisdiction”).

²⁸⁶ Conflict-Affected Regions, supra note 209.

²⁸⁷ Ibid at paras 6 and 12.

²⁸⁸ Ibid at para 17.

²⁸⁹ Ibid at para 18.

²⁹⁰ Ibid at para 21 [emphasis added].

²⁹¹ Guiding Principles, supra note 11 at 22, Commentary to Principle 25. See also Commentary to Principle 26, which identifies legal barriers as including both the attribution of legal responsibility across members of corporate groups, and denial ofjustice due to lack of access to home State courts (Ibid at 23).

²⁹² See especially Ibid, Principles 3, 4, 7 and 8. Further analysis of this issue is beyond the scope of this paper, but see further Seck, Sara L, “Conceptualizing the Home State Duty to Protect Human Rights,” in Buhmann, Karin, Roseberry, Lynn, and Morsing, Mette, eds, Corporate Social and Human Rights Responsibilities: Global Legal and Management Perspectives (Hampshire, UK: Palgrave Macmillan, 2010) 1 Google Scholar (exploring this jurisdictional question from both a permissive and mandatory perspective).

²⁹³ See Seck, supra note 195.

²⁹⁴ See, eg, Brunnée, Jutta and Toope, Stephen J, “International Law and Constructivism: Elements of an Interactional Theory of International Law” (2000) 39 Colum J Transnat’l L 19 Google Scholar; Mertus, Julie, “Considering Nonstate Actors in the New Millenium: Toward Expanded Participation in Norm Generation and Norm Application” (2000) 32 NYUJ Int’l L & Pol 537.Google Scholar

²⁹⁵ PDAC Submission and Talisman Energy, supra note 282.

²⁹⁶ MiningWatch Canada, Comments on the Draft Guiding Principles (31January, 2011), online: Business and Human Rights Resource Centre <http://www.business-humanrights.org/SpecialRepPortal/Home/Protect-Respect-Remedy-Framework/GuidingPrinciples/Submissions>.

²⁹⁷ Seck, supra note 29.

²⁹⁸ Building the Canadian Advantage, supra note 9 at 3.

²⁹⁹ See generally Seck, Sara L, “Unilateral Home State Regulation: Imperialism or Tool for Subaltern Resistance?” (2008) 46 Osgoode Hall LJ 565 at 576–80.Google Scholar

³⁰⁰ Anaya, James, Report of the Special Rapporteur on the Rights of Indigenous Peoples: Extractive Industries Operating Within or Near Indigenous Territories , UNHR 18th Sess, UN Doc A/HRC/18/35 (11 July 2011) at para 79.Google Scholar

³⁰¹ Ibid.

³⁰² Ibid.

³⁰³ See, eg, Advocates for International Development, Lawyers Eradicating Poverty, Law Firm’s Implementation of the Guiding Principles on Business and Human Rights: Discussion Paper (November 2011), online: Advocates for International Development <http://a4id.org/resource/report/guidingprinciples>.

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Canadian Mining Internationally and the UN Guiding Principles for Business and Human Rights

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Canadian Mining Internationally and the UN Guiding Principles for Business and Human Rights

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