CHAPTER 18 REMEDYING HUMAN RIGHTS: FROM THE INTERNATIONAL, REGIONAL, AND DOMESTIC STATUS QUO TO FUTURE INNOVATION--A CANADIAN PERSPECTIVE

• Jurisdiction: United States

Human Rights Law and the Extractive Industries
(Feb 2016)
CHAPTER 18
REMEDYING HUMAN RIGHTS: FROM THE INTERNATIONAL, REGIONAL, AND DOMESTIC STATUS QUO TO FUTURE INNOVATION--A CANADIAN PERSPECTIVE
Michael Torrance
Eric Cheng
Gillian Moore
Lawyer
Norton Rose Fulbright LLP
Toronto, ON

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MICHAEL TORRANCE is a lawyer with Norton Rose Fulbright LLP in the firm's Toronto office. He practices in all areas of contentious and non-contentious employment and labor law, human rights, and health and safety matters. He has represented major Canadian companies in judicial review litigation, including in provincial and federal courts and courts of appeal. His litigation practice also includes employment-related civil litigation, discovery examinations, trials, human rights tribunal advocacy, and defense of occupational health and safety prosecutions. Mr. Torrance's practice also includes compliance advice and training on global regulatory, business ethics, and anti-corruption matters. This includes international standards of environmental and social risk management and human rights due diligence, particularly in the context of corporate and project finance. In 2012 Mr. Torrance was seconded to the firm's Asia Pacific occupational health and safety team in Sydney, Australia, where he assisted in developing an occupational health and safety investigation training program and a compliance audit program for Equator Principles banks. Mr. Torrance has given presentations and delivered training on the Equator Principles and environmental and social risk management in Australia, South Africa, and Canada. Mr. Torrance has been extensively published and quoted in the media on sustainability and corporate social responsibility topics. He is the editor and lead author of IFC Performance Standards on Environmental & Social Sustainability: A Guidebook, published by Lexis Nexis in 2012, and maintains a blog at http://www.lexsustineo.com/.

Contents

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1. Introduction

2. Policy Drivers of Access to Remedy for Human Rights

3. Human Rights Dispute Resolution Mechanisms - The Status Quo

4. Limitations and Challenges of the Status Quo and Impetus for New Innovations

5. Where to Go from Here? Considering Alternative Models

6. Informing New Policy Directions for Human Rights Remedy

7. Conclusions

Endnotes

1. Introduction

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This paper examines the developing field of international human rights dispute resolution, affecting the global operations of the Canadian extractive sector. The paper proceeds with consideration of the policy drivers behind promotion of access to remedy for human rights. This is followed by a survey of existing judicial and non-judicial mechanisms for remedy of human rights disputes, both domestically in Canada and also regionally worldwide. Finally, challenges and limitations to the status quo and future trends and innovations in human rights dispute resolution will be examined, with recommended considerations from historical models provided by an analogous model of dispute resolution - labour arbitration.

2. Policy Drivers of Access to Remedy for Human Rights

Protection of human rights is generally recognized as a core principle and essential goal of modern international law, traditionally grounded in the concept of state responsibility.¹

A significant evolution in international law and custom has developed with the increasing consensus regarding an international corporate duty to "respect" human rights. In 2011, the United Nations ("UN") Human Rights Council ("UNHRC") unanimously endorsed the UN Guiding Principles on Business and Human Rights ("UNGP"). The UNGP was developed from the "Protect, Respect and Remedy" framework, which was created by the team of John Ruggie, former Special Representative for Business and Human Rights to the UN Secretary General ("SGSR Ruggie").

The UNGP serves as a key policy driver in promoting access to remedy for human rights globally, including in the extractive sector in Canada. In particular, the third pillar of the "Protect, Respect, Remedy" framework, adopted and elaborated under the UNGP, deals explicitly with "access to remedy". Remedy, in the UNGP, is a dual obligation to be shared between both States (via judicial and non-judicial remedies, UNGP 25-27) and industry (UNGP 29-30), and can potentially take the form of a potentially mixed category of non-state based mechanisms referring to both international and domestic law institutions and site-level mechanisms (UNGP 28). A primary approach to remedy envisioned for the private sector under UNGP 28-29 is an "operational-level grievance system" to be implemented either directly through a company or through a multi-stakeholder initiative, which may be either quasi-judicial or dialogue-based.²

Commentary to the UNGP does not further specify any particular mechanism for remedy, and the permissive nature of this approach has been criticized.³

The UN recognizes the need for further policy development beyond the UNGP in the field of human rights dispute resolution and remedy. Following the launch of the UNGP, a Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (hereinafter "Working Group") was established by the

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UNHRC. The Working Group was established in 2011 via a Resolution of the UNHRC for a three year term,⁴ and then subsequently extended for a further three years until 2017.⁵

Since 2012, the Working Group has convened three sessions in Geneva as well as an annual UN Forum on Business and Human Rights. The Working Group also conducts field visits, stakeholder consultations, produces recommendations on best practices, and makes regular reports on its activities to the UNHRC.⁶

Discussion and reports regarding non-judicial remedies at Working Group sessions demonstrate that full implementation of "access to remedy" under the UNGP remains "elusive." As of 2015, the Working Group is still at the very initial stage of exploring proposals and collecting information⁷ and has found current non-judicial grievance mechanisms vary widely in both form and implementation, even from the perspective of Guiding Principle 31's effectiveness criteria.⁸ These criteria are set out in principle 31 as:

31. In order to ensure their effectiveness, non-judicial grievance mechanisms, both State-based and non-State-based, should be:

(a) Legitimate: enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes;

(b) Accessible: 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;

(c) Predictable: providing a clear and known procedure with an indicative time frame for each stage, and clarity on the types of process and outcome available and means of monitoring implementation;

(d) Equitable: 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;

(e) Transparent: 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;

(f) Rights-compatible: ensuring that outcomes and remedies accord with internationally recognized human rights;

(g) A source of continuous learning: drawing on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harms;

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Operational-level mechanisms should also be:

(h) Based on engagement and dialogue: consulting the stakeholder groups for whose use they are intended on their design and performance, and focusing on dialogue as the means to address and resolve grievances.

New policy directions in access to remedy for human rights will be likely be driven by these elements of the UNGP and the activities of the Working Group, with effects on other policy actors, like the Government of Canada. The question becomes what directions new policy will take and how new mechanisms for remedy of human rights will interact with existing remedial processes, which represent the status quo. To understand that better, we will now examine the status quo, from the perspective of the Canadian extractive industry.

3. Human Rights Dispute Resolution Mechanisms - The Status Quo

Against the new policy backdrop of the UNGP is the status quo of human rights related dispute resolution mechanisms, which have developed and evolved for decades. In terms of the State duty to protect, it has been said that, "human rights law has yet to develop a coherent theory or consistent practice of remedies for victims of human rights violations."⁹ This is true, if not more so, in relation to human rights disputes pertaining to corporate activity.

The status quo presents a wide and varied number of remedial avenues to address allegations of human rights harms. These include judicial mechanisms, such as courts or tribunals, as well as "non-judicial" mechanisms, the form and substance of which are widely varied and in flux, from ombudsmen, mediators and project level grievance mechanisms.¹⁰

The following sections will survey some key fora, particularly those potentially affecting the Canadian extractive sector in global operations.

a. Non-Judicial Human Rights Mechanisms in Canada

i. Corporate Social Responsibility Counsellor for the Extractive Sector

In response to high profile human rights allegations against Canadian extractive companies operating abroad, the Canadian Government organized a series of multi-stakeholder roundtables in 2007 on CSR and the Canadian extractive (mining, oil & gas) operating in developing countries (CSR Roundtables).¹¹ The CSR Roundtables led to...