Event Summary:
Summary by
Alex Haque
A debate on Bill C-300:
Setting Guidelines for Corporate Accountability for Mining, Oil and Gas Corporations Abroad
Thursday October 15, 2009
Brookfield Place, Suite 4400, 181 Bay Street
Debating the topic:
- Hon. John McKay, MP, Sponsor of Bill C-300
- Jon Baird, President, Prospectors & Developers Association of Canada (PDAC)
- Robert Wisner, Partner, McMillan LLP
- Dr. Sara Seck, Faculty of Law, University of Western Ontario
Mr McKay opened the debate by letting the audience know that the objective of Bill C- 300, also cited as An Act Respecting Corporate Accountability for Mining, Oil and Gas Corporations in Developing Countries, is to promote responsible environmental practices and international human rights standards on the part of Canadian mining, oil and gas corporations in developing countries. It’s to ensure that corporations engaged on mining, oil or gas activities and receiving support from the Government of Canada act in a manner consistent with international environmental best practices and with Canada’s commitments to international human rights standards. The Act would give the Minister of Foreign Affairs and the Minister of International Trade the responsibility of holding corporations accountable for their practices by submitting annual reports to the House of Commons and the Senate for review.
Mr McKay provided some context, noting that the Bill was a response to the findings and recommendations of the Canadian Roundtables on the Extractive Industries, in 2007, which included representation from industry, NGOs, and academia. Notably, the bill, which has passed its second reading in the House of Commons and is currently in committee, looks to help ensure that resource corporations are aligned in their practices with recognized international and Canadian human rights and environmental standards, and provides the government with powers to help ensure that Canadian domestic and international commitments are being met by the resource sector.
McKay stated that there was no question as to whether there was an issue with the human rights and environmental practices of some Canadian resource companies, but rather the question was how to address the issue most appropriately.
McKay stated that one of the industry criticisms of Bill C-300 – the potential reputational risk to companies against which invalid criticisms are made – is not a real threat to business due to the investigatory mechanisms in place within the Bill. In addition, Mr McKay believed that without any change to the status quo it would be the action of some resource companies that would continue to damage the reputation of Canada abroad – and that it is that existing and continued risk to our larger national reputation that needs to be addressed.
John Baird, offered the Prospectors and Developers Association of Canada’s (PDAC) voluntary E3Plus framework in opposition to Bill C-300 (full details can be found on the PDAC website). The PDAC’s voluntary framework, Mr Baird stated, is aimed at ensuring responsible exploration focuses on three imperative issues: social, environmental and safety performance in the oil, gas and mining industry. I
Mr Baird agreed that all resource companies need to act responsibly, but believed that Bill C-300 imposed and unfair and unnecessary legal framework, and that the existing controls to regulate the oil, gas and mining industry were sufficient. In addition, Mr Baird stated that the root of the problem for the industry which cannot be addressed by Bill C-300 are corrupt foreign governments. He believed that Canada was a world leader in investment in local communities where mining companies are operating.
Mr Baird argued that the best approach was a voluntary framework like E3plus, which provided more ‘carrots’ to act responsibilities rather than the ‘sticks’ of Bill C-300. Canada, as a leader in mining, exploration and CSR requires a collaborative and sophisticated approach to better regulate irresponsible corporations - Bill C-300 denies this opportunity by punishing companies.
Professor Sara Seck argued that Canada is a leader in sustainable mining and as a result the nation should share its expertise with the developing world. However, Parliament has created institutional structures that are not protecting human rights and the environment, which Bill C-300 is trying to rectify. She spoke much on professor of International Relations at Harvard University, John Reggie’s work on his theories for mining corporations and their responsibilities in terms of international human rights. Notably, speaking on his work that addressed the need to remedy the corruption and irresponsibility of the oil, gas and mining industries, she highlighted three imperative principles: the state, corporate responsibility to respect corporate and individual rights as well as the need for greater access to remedy. In terms of each of these three principles which compose Rugie’s framework, illustrate governance gaps which aggravate human rights violations by corporations.
His framework addresses the need for the state’s duty to protect nations in which its own domestic corporations may be affecting. In such cases, such as is currently occurring with Canadian companies, there is a need for greater regulation and adjudication. His work calls for legal and non-legal mechanisms such as clearer defined human rights and consequential international repercussions as well as economic sanctions. Notably, states are meant to regulate their domestic corporations in the international arena, but are currently failing to do so and as such Bill C-300 is a positive stepping-stone in the right direction as it provides a remedy to someone claiming human rights abuse. Similarly, Ruggie’s framework is a strong method to evaluate Bill C-300.
Robert Wisner, from McMillan LLP, argued that Bill C-300 would do more harm than good, from a legal stand point. Notably, it would hamstring the development of the Canadian government’s progression on human rights as well as lead to second guessing by decisions of Canadian diplomats. The bill, he believed, created a vague legal framework that potentially harms not only Canada, but other nations as well.
Primarily, it presents Canada with a fundamental legal problem in the sense that it is not a of debate voluntary or mandatory mining and exploration standards. Rather, in reply to Dr. Seck, the legal process for mining standards is ambiguous, making it rare as well as difficult for courts to hear complaints and evaluate them fairly. This ambiguity creates a climate that has emerged today: politicians playing an unfamiliar judicial role where they need to introduce legislation such as Bill C-300.
Q&A session
Could a bill not be abused by those in particular company?
McKay: Couldn’t agree more. However, the points is that C-300 brings all parties an opportunity to create some closure to some specific issues. Moreover, in his opinion, when the government of Norway no longer makes the decision to no longer fund a Canadian company, this is not an illustration of a sovereign decision but rather an investment decision.
Wisner: What Norway does is the same thing that the PDAC does- they have guidelines they must follow. What the bill does is goes even a step further than what is already in place. In effect, he argued that it uses a reputation sanction for those abroad.
Is it likely Bill C-300 would be challenged by host country and would they be successful?
Wisner: He did not believe that it would be a successful attempt to challenge the bill. Mainly for the reason that the country cannot simply send Canada to the International Court of Justice. The way the challenge would be done is through diplomatic reasons. There would be protests from embassy to embassy. These protests would have significant consequences for diplomats.
Seck: Simply stated that she believed it could be challenged but also pointed out that developing countries would have a tough time.
When a Canadian mining company is working with weak or corrupt governments isn’t the responsibility of the Canadian government to step in?
McKay: He felt that this is the extraterritorial argument, turned on its head. To have the Canadian government go in and protect sovereign states from companies is a bit of a stretch.
Baird: Argued that this would be impossible since it’s difficult to determine when a country is corrupt.
Seck: Noted that Prof Reggie spoke on conflict zones. She said we could provide or facilitate conflict zones with advice- direct action need to be taken instead. But we must be diplomatic because the home state may sanction Canada altogether as a repercussion.
Wisner: said that it was unclear which countries the bill was applied to. One question is: what is a developing country?
Do you feel that since the round tables in the CSR in 2006 that these issues have become better or worse with still no mandatory standards in place?
McKay: Asked how one is supposed to measure if things are getting worse. He noted that before and after the CSR roundtables, the environment policies have not changed. The trend lines are largely irrelevant and the appointment of the CSR councilors has brought us to “the 98 yard guideline” and the next step is to go all the way to the “100 yards” but getting there seems impossible right now.
Baird: He believed that a lot has changed. As history has shown us, according to him, the CSR has involved itself with health and safety. But these questions have been debated for decades now. He highlighted the need to work closer with aboriginals and be fair with them since they own 1/3 of Canada’s landmass. Industry- he said, helps make things work in a cooperative way.
Seck: Thought the roundtables brought no real change and that Bill C-300 was an ineffective means to a legal human rights and corporate responsibility ends.
Webcasts:
Panel Discussion.
Panel Q&A period.
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