Policy developments could affect CSR obligations of Canadian miners
Three notable developments happened in the last quarter which could affect Canadian corporate social responsibility (CSR) policy generally and the mining sector specifically.
Free Prior and Informed Consent Fully Supported by Government of Canada
In May, the Government of Canada officially removed its “objector status” to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In a speech by Canada’s Minister of Aboriginal Affairs, Carolyn Bennett, to the United Nations Permanent Forum on Indigenous Issues, the Canadian government’s “full support” for UNDRIP was declared, with “no qualification.”
Minister Bennett committed to adopt and implement the declaration in Canada in accordance with the Canadian constitution. Previous governments had only endorsed UNDRIP as an “aspirational document.” As such, this recent statement was a significant policy shift.
The most significant aspect of UNDRIP is the concept of Free, Prior and Informed Consent (FPIC). UNDRIP contemplates that FPIC is triggered where a project is proposed on lands traditionally owned, occupied or used by Indigenous peoples and where that project is likely to affect the Indigenous group.
Most notably, FPIC requires that the Indigenous group consent to the project. While there are debates about what exactly “consent” means (including whether or not it amounts to a veto) many experts believe that the FPIC requirement surpasses the standards set by the spectrum of consultation currently required of the Crown. Whether this is the view of the Canadian government remains to be seen. What is certain is that this development will precipitate much debate and likely affect the nature of Aboriginal consultation in Canada.
Office of Human Rights Created By Global Affairs Canada
Also in May, Foreign Affairs Minister Stephane Dion announced the creation of a new “Office of Human Rights, Freedoms and Inclusion.” The exact nature of this office was not announced. However, the office replaces the “Office of Religious Freedom” that had been established by the Conservative government. It was announced that the new office would have three divisions, “Human Rights and Indigenous Affairs,” “Inclusion and Religious Freedom” and “Democracy.” The budget for the office will be $15 million – tripling what had been allocated for the Office of Religious Freedom. The announcement made clear that human rights would be a key focus of the new body, and that Canadian ambassadors, high commissioners and, consuls general, would have human rights among their core objectives and priorities.
It is not clear if corporate human rights expectations will be part of this new focus – such as implementation of the UN Guiding Principles on Business and Human Rights (UNGP).
There is also no indication yet that this body will replace any existing entities, like the Office of the CSR Counsellor for the Extractive Sector (CSR Counsellor). However, as I have noted in previous columns, the mandate and scope of the CSR Counsellor may well be the subject of future policy reviews. It will be worth monitoring whether the new Office of Human Rights, Freedoms and Inclusion may be part of any new human rights governance of Canadian companies operating abroad.
Inclusion of Human Rights in OECD Common Approaches
Another important development for companies that may seek financing support from export credit agencies, is the release of the new OECD “Common Approaches,” which sets standards for environmental and social governance for all OECD export credit agencies. The Common Approaches are enacted through legislation binding upon export credit agencies like Export Development Canada. The new Common Approaches standard specifically requires screening of all applications for financing or support covered by the Common Approaches for “severe” human rights risks.
Where screening identifies a high likelihood of severe human rights risks, further assessments should be conducted, which may include specific human rights due diligence. This new development builds on an increased focus on human rights found in other international standards like the IFC Performance Standards, which have directly referenced the UNGP since 2012 – and which are, in fact, incorporated by reference into the Common Approaches. This reinforces how human rights governance issues are increasingly relevant for the due diligence efforts of potential financiers – building the business case for CSR even further.
Michael Torrance is a lawyer with Norton Rose Fulbright, Toronto.
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