Submission to Global Affairs Canada in response to potential future trade negotiations with Ecuador
The Americas Policy Group (APG) is a national network of Canadian civil society organizations working for human rights and social and environmental justice in Latin America and the Caribbean. It brings together over twenty international development and humanitarian NGOs, human rights organizations, labour unions, faith-based and solidarity groups, and research institutions. We welcome this opportunity to highlight sensitivities for Canada vis-à-vis Ecuador with respect to labour, environmental and inclusive trade elements of a possible FTA, and Canada’s commitment to openness and transparency. For this international cooperation to be inclusive, just and mutually beneficial to the peoples of both countries, it must hold at its core human rights, including Indigenous rights and labour rights, and environmental protection.
Canada’s current free trade agreements (FTAs) and investment treaties provide strong rights and privileges to private commercial interests, but contain much weaker safeguards for workers, Indigenous Peoples, and the natural world. A standard FTA with Ecuador—where most Canadian interest and investment is in mining and extractives—would be particularly harmful to Indigenous and other rural communities, especially if it includes an investor-state dispute settlement process.
Our partners in Ecuador, including Indigenous and rural communities, told us that they have not been invited to a consultation in their country, nor offered the opportunity to provide their perspectives or priorities with regards to a possible Canada-Ecuador free trade agreement despite the far-reaching consequences for Indigenous peoples and rural (campesino) communities in territories that are of interest to Canadian resource extraction companies.
We therefore urge the Canadian government to engage more broadly with civil society in both Canada and Ecuador about how our bilateral economic and cultural ties can be strengthened without undercutting workers, violating Indigenous rights and title, and weakening democratic choice. The following elements echo the concerns from our partners in Ecuador and are critical to ensuring any international trade and investment regime is as inclusive, just, and equitable as possible.
1) Concerns about an increase in social conflict due to an increase in Canadian mining
We are concerned that Canada's trade strategy is seeking “to advance commercial relations bilaterally”[1] especially and potentially in the mining sector in Ecuador to the detriment of local communities. Our concerns are rooted in the conflictive nature of that sector and the often-violent imposition of mining development, underlined by the fact that visible acts of resistance to mining in the country come from areas affected by decades of persistent Canadian mining investment.
To cite just a few recent examples, in southern Ecuador, in a citizen-led initiative in 2021, 80% of residents of Cuenca voted overwhelmingly in a referendum in favour of protecting source of water and against industrial mining[2] in the watersheds of the area’s five rivers in the Páramo de Kimsakocha, a fragile ecosystem that supplies water for domestic use and irrigation to numerous Indigenous communities and residents in the city of Cuenca, which has been threatened by Canadian mining interests for over 20 years.
Similarly, several rural and urban collectives are engaged in a campaign to hold a popular consultation on mining in the Metropolitan District of Quito (MDQ), and in the Chocó Andino Biosphere Reserve. The campaign “Quito sin minería” [Quito without mining] gathered 206,000 signatures in 2022,[3] showing great concern in the capital region over Australian and Canadian mining activities.
In the Amazon, in 2019, the Indigenous Shuar Arutam People declared their territory free of mining, demanding the exit of a Canadian mining company, and that their right to say NO to mining projects be respected.[4]
With several successful plebiscites in the country and national protests opposing mining activities in fragile ecosystems such as páramos, biosphere reserves, and the Amazon region, it is clear that the imposition of Canadian mining is not welcome. Last June, thousands of people, led by Indigenous peoples, marched throughout Ecuador as part of a historic national strike[5] to demand a moratorium on mining and to nullify Executive Decree 151,[6] which will allow mining in fragile ecosystems such as the Amazon and the páramos.
We echo our partners' concerns about how a potential FTA with Ecuador could exacerbate violence against Indigenous, environment and human rights leaders, further violate their rights to self-determination, and right to say No to extractive megaprojects in their territories, and contribute to the destruction of their territories and ecosystems.
2) Concerns about the use of investor-state dispute settlement as a weapon of deregulation
We are preoccupied by reports that the Ecuadorian government would like the Canadian free trade agreement to include a controversial investment chapter and investor-state dispute settlement (ISDS) process. President Lasso’s stated objective is to entice more Canadian and international investment in Ecuador’s mineral resources[7]. Including ISDS in any future free trade deal would undermine claims such investment could ever be sustainable—and give multinational mining companies a trump card for neutralizing widespread public opposition to their projects[8].
ISDS is essentially a space for one class of person—foreign investors—to settle disputes with governments outside of domestic courts, based on broadly and vaguely worded property rights in binding trade and investment treaties. Internationally, ISDS is condemned for prioritizing foreign investment above other governmental priorities[9].
ISDS has drawn particular opposition for its capacity to put a regulatory chill[10] on efforts to reduce greenhouse gas emissions from fossil fuels, but its conflicts with international human rights law, the UN Declaration on the Rights of Indigenous Peoples, and efforts to correct systemic gender bias are just as problematic. According to a July 2021 report of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises[11]:
Most international investment agreements protect investors and their rights to the exclusion of the rights of individuals and communities. They also constrain the regulatory ability of States to act robustly to discharge their international human rights obligations. Moreover, they offer investors a special privilege to enforce their rights through binding international arbitration, but do not provide a similar right to rights holders affected by investment-related projects (p.22).
Latin American countries have been especially targeted by highly contentious and costly ISDS claims[12] from oil, gas and mining firms—many of them from Canada[13]. These ISDS cases have challenged policies enacted to defend human rights, including Indigenous rights, protect the environment, and uphold national laws with respect to taxation or contracts. Mining bans and stricter regulation or appropriate taxation of mining and other extractive activities are frequent targets in these claims, driving opposition to ISDS across the region.
Having lost a massive $2 billion USD investor-state claim to Occidental Petroleum Corporation in 2012[14], Ecuador terminated its investment treaties (including with Canada) in 2017[15] and withdrew from the International Center for Settlement of Investment Disputes (ICSID). While sunset clauses in many of these agreements ensure investors will be able to sue Ecuador in ISDS proceedings for many years to come, the country’s coordinated exit from the ISDS regime continues to inspire other countries to do the same.
Unfortunately, the current Ecuadorian government appears to be favouring corporate interests by seeking to rejoin ICSID and include ISDS in new trade and investment treaties, putting the country at risk of more unaffordable, illegitimate claims from mining firms. Including an ISDS process in a new FTA with Canada would socialize the financial risk to mining companies stemming from the chance their projects will be found to violate Ecuador’s progressive constitutional protections for the rights of nature[16].
Recent updates to Canada’s model bilateral investment treaty language do not adequately address imbalances in the ISDS regime that favour the profits of foreign investors over governmental discretion in policy-making. For example, the environmental exception in the 2008 Canada-Colombia Free Trade Agreement proved useless[17] in the highly troubling ISDS case from Canadian mining firm Eco Oro against constitutionally enacted environmental protections for Colombia’s sensitive páramos ecosystem.
Canada’s 2021 Model Foreign Investment Protection Agreement[18]—the basis for the new Canadian investment treaty and FTA negotiations—attempts to claw back some governmental sovereignty. It does so through a rather meek “right to regulate” clause taken from the Canada-EU Comprehensive Economic and Trade Agreement (CETA) and other clarifications, of dubious value[19], with respect to the kinds of state action that would breach an investor’s broad and vague right to “fair and equitable treatment.”
These untested reforms to investment treaty language, far from fixing the democratic deficit in ISDS, ultimately sustain a system in which investors get special rights—outside national and international law—to challenge government decisions they don’t like. Canada must categorically refuse to negotiate a new investment treaty or investment chapter with Ecuador that includes ISDS in any form.
3) Concerns about an increase in violence against human rights, environment defenders and women
We are deeply worried about the link between resource extraction projects in Indigenous territory and increased violence against Indigenous women and girls, a situation that could be exacerbated by the promotion of more resource extraction projects via a free trade agreement. Mujeres Amazónicas Defensoras de la Selva (Amazonian Women Defending the Forest), whose “rights and territories are being seriously threatened by Canadian companies like Solaris Resources and Aurania Resources”, has called for “an in-depth and historic investigation into the sexual and gender violence associated with mining and oil activities, as well as with the militarization, in order that the necessary sanctions be applied and to provide assurances that there will be NO repetition in the Amazonian Indigenous territories of Villano, in the Northern Amazon.” They belong to the Shiwiar, Zapara, Kichwa, Shuar and Waorani Indigenous Peoples, and have also called for investigation of particular cases of physical and sexual violence, including prostitution, in order to establish a public policy appropriate to the context of Indigenous women from the different nationalities living in the Ecuadorian Amazonian region.[20]
In 2019, Josefina Tunki, president of the Shuar Arutam People (PSHA), went public about a death threat she says she received by phone from the vice-president of operations of Solaris in order to dissuade her from organizing against the company. In an attempt to call the attention of the Canadian embassy in Ecuador and request support for Tunki under Canada’s policy guidelines for human rights defenders at risk, Tunki and PSHA sent a letter to the embassy signed by more than 136 national and international organizations[21].
Canada’s Voices at Risk Guidelines on supporting threatened human rights defenders (VaR) recognize: “the key role played by human rights defenders in protecting and promoting human rights and strengthening the rule of law, often at great risk to themselves, their families and communities, and to the organizations and movements they often represent. Canada has a strong tradition of supporting these brave people in communities worldwide as they hold governments and companies to account for and keep respect for human rights alive. These are individuals who stand up for others who face discrimination — often at their peril"[22]. Specifically, VaR notes that Canadian missions can provide support by "Identifying the specific needs of women HRDs and responsive actions, for example, protection measures, relocation plans, psychosocial support, childcare or other support services and resources; Working at local, national and regional levels to coordinate efforts and response mechanisms to ensure the protection and safety of women HRDs, leveraging women's rights organizations networks."
The Canadian embassy did not implement Voices at Risk, nor did it answer PSHA’s demands. Instead, it advised PSHA to file a complaint before the Canadian Ombudsperson for Responsible Enterprise (CORE). Because of their concerns about CORE, and its lack of powers to investigate, PSHA decided not to file such a complaint.
We anticipate that a FTA with Ecuador will increase mining investment in the country, and exacerbate environmental conflicts. We are also concerned that a potential free trade agreement between Ecuador and Canada will exacerbate threats and intimidation against environment, human rights, and Indigenous leaders who speak out against Canadian mining, as there are no mechanisms with a real and strong mandate to protect them.
Unfortunately, Josefina Tunki’s experience is not an anomaly. The harmful impacts of some Canadian business operations overseas are widespread and well-documented.[23] Canada’s failure to regulate, investigate and ensure access to remedy for such harms is a stain on Canada’s reputation in the world and an impediment to fulfilling our international human rights commitments. This failure has attracted the attention of United Nations and regional human rights bodies[24], communities and workers from around the world[25] and Canadians from coast to coast to coast[26].
In January 2018, the Government of Canada publicly committed to creating an independent ombudsperson’s office to investigate allegations of abuse, with the mandate and tools needed to be effective.
Specifically, the Government of Canada promised that the CORE would:
be independent;
have the powers needed to independently investigate complaints thoroughly, including the power to compel documents and testimony from Canadians and Canadian companies;
have an adequate budget to operate; and
have a mandate to report publicly.
Unfortunately, five years after that announcement, the Canadian Ombudsperson for Responsible Enterprise (appointed in April 2019) still does not have the investigatory powers that were promised and that are needed for this office to be an effective resource for people impacted by corporate abuse.
4) Concerns about lack of due diligence before trade and investment agreements
Far too often, Canadian companies operating abroad fail to deliver on their responsibility to respect human rights and protect the environment. Ten years after the unanimous endorsement of the United Nations Guiding Principles on Business and Human Rights (UNGPs), there continue to be widespread reports of serious human rights abuses and environmental damage linked to the overseas activities of Canadian companies and supply chains. Communities and workers who suffer harm are often unable to access justice and remedy. Human rights and environmental defenders who stand up to powerful corporations frequently face violence, intimidation or criminalization.[27] The risks and vulnerabilities they face have worsened with the global COVID-19 health crisis.[28] The gendered and racialized impacts of these harms are well-documented.
While Canadian companies have a responsibility to respect human rights, they can often avoid fulfilling that responsibility because binding rules do not exist, are not enforced, or because companies structure their global operations to avoid liability.[29] Mandatory human rights and environmental due diligence legislation would change that.
RECOMMENDATIONS
1. ENSURE THE RIGHT OF MEANINGFUL PARTICIPATION AND CONSULTATION WITH AFFECTED COMMUNITIES AND CIVIL SOCIETY ORGANIZATIONS IN ECUADOR, AND THAT NO TRADE AND INVESTMENT AGREEMENT ADVANCES WITHOUT THE FREE, PRIOR AND INFORMED CONSENT OF IMPACTED INDIGENOUS PEOPLES
Drawing on Canada’s own obligations to international human rights standards, including the UN Declaration on the Rights of Indigenous Peoples and the UN Guiding Principles on Business and Human Rights, we urge the Canada to guarantee broad, transparent, meaningful consultation with all affected Indigenous peoples and rural communities in Ecuador and civil society organizations in the consultation process about a potential FTA with Ecuador. No agreement must advance without their free, prior and informed consent.
2. REJECT ANY AGREEMENT THAT INCLUDES INVESTOR–STATE DISPUTE SETTLEMENT
Canada and Ecuador must radically break from the ISDS regime so that increased two-way trade and investment can truly benefit the widest number of people possible.
European nations are withdrawing en masse from the Energy Charter Treaty[30], whose ISDS process is regularly used by fossil fuel companies to penalize governments over legitimate environmental policy choices. The European Commission is now endorsing a coordinated EU-wide withdrawal from the treaty. Canada has also taken limited steps away from ISDS[31], by removing it from the renegotiated Canada-U.S.-Mexico Agreement (CUSMA), for example.
Explaining this decision in a 2018 press conference, Canadian Minister Chrystia Freeland said, “ISDS elevates the rights of corporations over those of sovereign governments. In removing it, we have strengthened our government’s right to regulate in the public interest, to protect public health and the environment, for example.”[32] Pursuing ISDS in a new trade deal with Ecuador would contradict this progress and undermine sustainable development in both countries.
3. DO NOT ADVANCE ANY NEW TRADE AND INVESTMENT AGREEMENT WITHOUT AN EMPOWERED INDEPENDENT OMBUDSPERSON
Canada needs to meaningfully implement its prior public commitments on business and human rights. Specifically, Canada should transform the Canadian Ombudsperson for Responsible Enterprise (CORE) into the independent office with robust powers to investigate - including the power to compel documents - that was promised. The defining feature of an ombudsperson is its ability to undertake effective investigations.
The United Nations Guiding Principles on Business and Human Rights (UNGPs) and Goal 16 of the 2030 Sustainable Development Agenda prioritize access to justice. Often, the only recourse for victims of corporate abuse overseas is to seek redress in the company’s ‘home country’. Canada’s current Responsible Business Conduct Strategy does not afford the victims of corporate abuse overseas access to effective grievance mechanisms in Canada.
In January 2018, the Government of Canada announced the creation of an independent ombudsperson office with robust powers to investigate allegations of human rights abuse tied to Canadian corporate activity overseas. It has still not delivered on that promise as the office that was rolled out in April 2019 was devoid of the promised powers. The CORE remains an ombudsperson in name only, without the independence and powers that are the foundation of an effective office.
The Government of Canada should move swiftly to transform the office of the CORE into the independent office with robust powers to investigate - including the power to compel documents and testimony- that was promised and that impacted communities around the world urgently need. These powers are needed for the CORE to be able to effectively investigate human rights abuse allegations linked to Canadian corporations operating overseas.
4. DO NOT ADVANCE ANY NEW TRADE AND INVESTMENT AGREEMENT WITHOUT HUMAN RIGHTS DUE DILIGENCE LEGISLATION (mHRDD)
To date, Canada has relied almost exclusively on voluntary approaches to prevent, address and remedy serious harms. Globally, voluntary approaches have proven to be ineffective at curbing corporate abuse.[33] Inclusion of voluntary CSR chapters in trade agreements will not help. What is needed is law and policy reform to require companies to respect human rights, and effective mechanisms to help people access remedy.
Rules-based international trade requires action on corporate accountability. If there are not clear rules requiring companies to respect human rights when operating abroad and clear consequences for companies failing to respect rights, then impunity will prevail.
Other jurisdictions are demonstrating they understand that meaningful measures to address corporate malfeasance are essential to long term prosperity and sustainability. For example, there is growing momentum across Europe in the establishment of comprehensive mandatory human rights due diligence legislation and legislative proposals that require companies to identify, prevent, mitigate and remedy human rights risks throughout their global operations and supply chains. The momentum in Europe is highlighted in this map and comparative chart[34]. Canada is falling behind the emerging global consensus that governments must do more to ensure business respect for human rights. Action here would also help fulfill the Minister of Labour’s mandate letter commitment to “introduce legislation to eradicate forced labour from Canadian supply chains and ensure that Canadian businesses operating abroad do not contribute to human rights abuses.”[35]To catch up, Canada should move swiftly to implement mandatory human rights and environmental due diligence legislation. To be effective, such legislation should:
require companies to prevent human rights violations and to undertake due diligence;
help impacted people and workers access remedy; and
apply to all human rights in recognition of the fact that human rights are indivisible,
interdependent and interrelated.
We would be happy to meet to discuss our concerns and recommendations further, and to respond to any questions you might have.
***
[1] Government of Canada, Join the discussion: consulting Canadians on possible free trade agreement negotiations with Ecuador, 6 January 2023: https://www.international.gc.ca/trade-commerce/consultations/ecuador-equateur/fta-ale.aspx?lang=eng
[2] MiningWatch Canada, “Overwhelming Vote in Southern Ecuador Sends Strong Message to Mining Companies”, 2021, February 11: https://miningwatch.ca/blog/2021/2/11/overwhelming-vote-southern-ecuador-sends-strong-message-mining-companies
[3] BNAmericas, “Activists advance toward plebiscite on mining northwest of Quito”, 2023, February 3: https://www.bnamericas.com/en/news/activists-advance-toward-plebiscite-on-mining-northwest-of-quito
[4] Kinga Harasim, “Ecuador: we’ve decided – no more mining here!”, Latin American Bureau, 2021, July 7: https://lab.org.uk/ecuador-weve-decided-no-more-mining-here/
[5] Andrea Sempértegui, “Ecuador’s Historic Strike“, 2022, October 5: https://www.nybooks.com/online/2022/10/05/ecuador-historic-strike/
[6] Abogados, “Executive Decree establishes the Action Plan for the Mining Sector”, 10 August 2021,
https://www.avl.com.ec/en/executive-decree-establishes-the-action-plan-for-the-mining-sector/
[7] Neil Moss, “Potential Canada-Ecuador trade pact to navigate tricky investment protections field”, Hill Times, 25 January 2023: https://www.hilltimes.com/story/2023/01/25/potential-canada-ecuador-trade-pact-to-navigate-tricky-investment-protections-field/362089/
[8] Guillaume Long and Andrés Arauz, “New Ecuadorian government teams up with powerful international lobbies to rejoin investment treaties prohibited by the constitution”, ISDS Platform, 14 July 2021: https://www.isds.bilaterals.org/?new-ecuadorian-government-teams-up
[9] Columbia Center on Sustainable Development, “Primer on International Investment Treaties and Investor-State Dispute Settlement”, 2021: https://ccsi.columbia.edu/content/primer-international-investment-treaties-and-investor-state-dispute-settlement
[10] Kayla Tyenhaara”, “Regulatory Chill in a Warming World: The Threat to Climate Policy Posed by Investor-State Dispute Settlement”, Cambridge University Press, 2017, December 22: https://www.cambridge.org/core/journals/transnational-environmental-law/article/regulatory-chill-in-a-warming-world-the-threat-to-climate-policy-posed-by-investorstate-dispute-settlement/C1103F92D8A9386D33679A649FEF7C84
[11]Office of the High Commissioner for Human Rights, “A/76/238: Report on human rights-compatible international investment agreements,” July 27, 2021:
[12] Manuel Perez and Jen Moore, “Extraction Casino: Mining companies gambling with Latin American lives and sovereignty through supranational arbitration”, MiningWatch Canada, Institute for Policy Studies and Center for International Environmental Law, 2019, April: https://ips-dc.org/report-extraction-casino/
[13] Natasha Bulowski, “Canadian mining companies keep targeting developing countries in dispute settlements”, The National Observer, 2022, May 18: https://www.nationalobserver.com/2022/05/19/news/canadian-mining-companies-target-developing-countries-dispute-settlements
[14] Tai-Heng Cheng, “ICSID’s Largest Award in History: An Overview of Occidental Petroleum Corporation v the Republic of Ecuador”, Kluwer Arbitration blog, 2012, December 12: “https://arbitrationblog.kluwerarbitration.com/2012/12/19/icsids-largest-award-in-history-an-overview-of-occidental-petroleum-corporation-v-the-republic-of-ecuador/
[15] Cecilia Olivet, “Why did Ecuador terminate all its Bilateral investment treaties?”, the Transnational Institute, 2017, May 25: https://www.tni.org/en/article/why-did-ecuador-terminate-all-its-bilateral-investment-treaties
[16] Katy Surma, “Ecuador’s High Court Affirms Constitutional Protections for the Rights of Nature in a Landmark Decision”, Inside climate news, 2021, December 3: https://insideclimatenews.org/news/03122021/ecuador-rights-of-nature/
[17] Investment Treaty News, “Eco Oro and the twilight of policy exceptionalism”, 2021, December 21:
https://www.iisd.org/itn/en/2021/12/20/eco-oro-and-the-twilight-of-policy-exceptionalism/
[18] Government of Canada, “2021 FIPA Model”, https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/fipa-apie/2021_model_fipa-2021_modele_apie.aspx?lang=eng
[19] Saskia Brimont, “Etude sur le protocol additionnel au CETA : la transition énergétique reste menacée”, 2023, January 20: https://saskiabricmont.eu/priorites/172-etude-sur-le-protocol-additionnel-au-ceta-la-transition-energetique-reste-menacee
[20] Amnesty International, “They will not stop us”: Justice and protection for Amazonian Women, Defenders of the land, territory and environment, 30 April 2019, AMR 28/0039/2019
[21] MiningWatch Canada, “International Organizations Join Shuar Arutam People to Press Canadian Embassy in Ecuador to Condemn Canadian Company’s Threats and Abuses”, 2021, August 31: https://miningwatch.ca/blog/2021/8/31/international-organizations-join-shuar-arutam-people-press-canadian-embassy-ecuador
[22] Government of Canada, “Voices at Risk: Canada’s Guidelines on Supporting Human Rights Defenders”, https://www.international.gc.ca/world-monde/issues_development-enjeux_developpement/human_rights-droits_homme/rights_defenders_guide_defenseurs_droits.aspx?lang=eng#a3
[23] See for example the Justice and Corporate Accountability Project’s Canada Brand report https://justice-project.org/the-canada-brand-violence-and-canadian-mining-companies-in-latin-america/
[24] Including the UN Working Group on Business and Human Rights, the UN Committees on the Elimination of All Forms of Racial Discrimination and the Elimination of Discrimination Against Women, the UN Human Rights Committee, the International Committee on IESCR and the Inter-American Human Rights Commission. See here for more information.
[25] For example, these letters calling for an independent Ombudsperson and these endorsements of CNCA’s model legislation.
[26] Over 500,000 postcards were sent to members of Parliament in 2009 to call for accountability for Canadian mining companies engaged in abuses overseas. Over 80,000 signed action cards calling for an ombudsperson for the overseas extractive sector were delivered to MPs at a rally on Parliament Hill in 2014. Tens of thousands of other Canadians have joined the Open for Justice campaign through petitions, letter writing and meet-your-MP events organized by CNCA members across the country. Most recently, on October 19, 2020, petition e-2564 - with 6,130 signatories - was presented to the House of Commons: https://cnca-rcrce.ca/campaigns/ombuds-power2investigate/cta-world/
[27] For example, Global Witness recorded that 227 land and environmental defenders were killed in 2020 – an
average of more than four people a week. Over a third of the incidents were linked to natural resource extraction. These risks were reiterated by the OHCHR in 2022: https://www.ohchr.org/en/stories/2022/03/environmental-human-rights-defenders-must-be-heard-and-protected
[28] For more on why building back better requires action on corporate accountability, see CNCA’s 2020 letter to Minister Ng here. For examples of the increased impact on the women who make our clothes see here, and on those working or impacted by the mining sector see here.
[29] This can be done by outsourcing production, using complex supply chains and subsidiaries, or turning a blind eye to the human rights practices of their business relationships. Worse still, some companies use their influence to ensure that laws that would protect human rights and the environment are not passed, are watered down, or are not enforced. No Canadian legislation currently articulates a company’s obligation to avoid, address and prevent human rights abuse. Furthermore, barriers continue to exist for foreign plaintiffs seeking to access Canadian courts.
[30] Jorge Liboreiro, “In U-turn, Brussels recommends EU-wide exit from controversial Energy Charter Treaty”, Euronews, 2023, February 7: https://www.euronews.com/my-europe/2023/02/07/in-u-turn-brussels-recommends-eu-wide-exit-from-controversial-energy-charter-treaty
[31] Scott Sinclair, “The rise and demise of NFAT Chapter 11”, Canadian Centre for Policy Alternatives, 2021, April: https://policyalternatives.ca/sites/default/files/uploads/publications/National%20Office/2021/04/The_Rise_and_Demise_of_NAFTA_Chapter_11.pdf
[32] Prime Minister of Canada, “Prime Minister Trudeau and Minister Freeland speaking notes for the United States-Mexico-Canada Agreement press conference”, 2018, October 1: https://pm.gc.ca/en/news/speeches/2018/10/01/prime-minister-trudeau-and-minister-freeland-speaking-notes-united-states
[33] For example,
A 2020 study commissioned by the European Commission established that voluntary measures have had only a limited impact.
A 2022 report by Know the Chain “exposes the glacial rate of progress on due diligence by the world’s largest companies over the last five years. On average, the 129 companies benchmarked by KnowTheChain score a mere 29% for their human rights due diligence efforts. Key findings include:
Over a third of benchmarked companies (36%) do not show any evidence they are assessing human rights risk in their supply chains.
Four out of five provide no evidence they are adopting responsible purchasing practices to mitigate the risk of forced labour in their supply chains.
A 2021 Responsible Mining Foundation report highlights that “the vast majority of companies assessed in the RMI Report 2020 show no evidence of translating their corporate commitments into action plans, thorough due diligence processes, and tracking the effectiveness of implementation. On average the set of large mining companies assessed in the RMI Report 2020 achieve a low 19% score on human rights-related issues.”
Finally, a 2015 report Remedy Remains Rare analyzes 15 years of NCP cases and outlines the failure of the NCP system to provide relief for victims of corporate misconduct.
[34] European Coalition for Corporate Justice, “Comparative table: Corporate due diligence laws and legislative proposals in Europe”, 2022, March 21: https://www.google.com/url?q=https://corporatejustice.org/publications/comparative-table-corporate-due-diligence-laws-and-legislative-proposals-in-europe-2/&sa=D&source=docs&ust=1677018657211142&usg=AOvVaw0_rRBXzAtvhWOwPJGqOw8o
[35] Prime Minister of Canada, “Minister of Labour Mandate Letter”, 2021, December 16: https://pm.gc.ca/en/mandate-letters/2021/12/16/minister-labour-mandate-letter