Rules for new corporate ombud criticized for deferring to companies

The federal government is giving its new watchdog on international corporate responsibility unprecedented power to hear complaints from Canadian companies that think they've been unfairly targeted by abuse allegations.

Advocates for stronger oversight say they're stunned by a proposed federal regulation that gives companies the right to file complaints against groups they believe have subjected them to unfounded allegations of abusing human rights.

Emily Dwyer, who heads the Canadian Network on Corporate Accountability, says it is unprecedented that the government is proposing to give its "Canadian ombudsperson for responsible enterprise" the ability to turn the tables on vulnerable complainants in poor countries.

"It's supposed to be an office that is about advancing human rights and providing recourse to people who are impacted by Canadian business, not an additional avenue to create further risks and create additional concerns for human rights defenders around the world," Dwyer said in an interview. "That's something that, in the years of engaging with all levels of government on this, we have never heard of."

Dwyer's coalition told International Trade Minister Jim Carr in a letter last week it would withdraw its support for the initiative unless changes are made.

Carr's office said it appreciates receiving the views of Dwyer's coalition and others, but reiterated its commitment to the regulations as posted.

"Companies that believe they are subject to unfounded allegations of human rights abuses related to their operations abroad are able to file a complaint with the ombudsperson," a Carr spokeswoman said in an emailed response to questions. "This may help identify problems early before they escalate and help mitigate risks to all parties."

Karyn Keenan, of the advocacy group Above Ground, says the unexpected provision goes against the spirit of an ombudsperson's office, which is to help level the playing field for disadvantaged groups.

"I think industry is profoundly uncomfortable with this office and I think industry has made that known to government and I think that government has weakened the office in response to pressure from the industry," said Keenan.

The controversial new provision is contained in the Order in Council the government has posted that outlines the rules of the road for its new ombudsperson.

It is the latest development in a saga dating back more than a decade to bring greater oversight over the activities of Canadian companies operating abroad, mainly in the natural resource sector. Some companies have faced periodic complaints from Indigenous groups or other poor, disenfranchised local populations for abusing their rights in pursuit of opening new mines or searching for oil and gas.

The new ombudsperson was intended to improve on the current "corporate responsibility counsellor,'' which is widely criticized for lacking the teeth to compel Canadian companies to co-operate in investigations of their conduct.

The Liberals promised reform as part of their 2015 campaign platform to address complaints against companies, often operating in the mining industry, but they left final approval of the new office to the final weeks of their government's legislative agenda.

Delays aside, advocacy groups that have been consulting with the government say the Liberals need to change the provision that caught them off guard, otherwise the new ombudsperson will be meaningless.

The regulation would allow the new office to review complaints "submitted by or on behalf of an individual, organization or community concerning an alleged human rights abuse." But it also gives the office the mandate to review complaints from "a Canadian company that believes it is the subject of an unfounded human rights abuse allegation."

Dwyer and Keenan said the new regulations fall short in another key area: they don't give the new ombudsperson, Sheri Meyerhoffer, the power to compel reluctant companies to co-operate with her investigations so she can determine whether their conduct violated the human rights of a local population.

Moreover, Meyerhoffer, a lawyer with a long record in business and international development, will not lead an office that is a standalone, independent entity, said Dwyer. Meyerhoffer's staff will be composed of federal public servants in Global Affairs Canada.

"The fact that the ombudsperson and all of her staff will be public servants, that's also not something that was in any of the discussions that we have had," said Dwyer.

In late April, Carr commissioned a further legal review to assess what the ombudsperson's powers should be. He said the process would be completed this month.