Canada’s National Contact Point (NCP) for the OECD guidelines for multinational enterprises - 2019 Annual Report

1. Introduction

As an adherent to the OECD Declaration on International Investment and Multinational Enterprises, Canada has a National Contact Point (NCP) for Responsible Business Conduct. The NCP works to promote awareness of the OECD Guidelines for Multinational Enterprises (OECD Guidelines) among stakeholders and assist in furthering the implementation of the OECD Guidelines by companies, including through preventing and minimizing negative impacts of their activities on the societies in which they operate. The NCP is one of two mechanisms for dispute resolution as part of the Government of Canada’s approach to responsible business conduct (RBC) along with the Canadian Ombudsperson for Responsible Enterprise (CORE).

This 2019 report aligns with the required annual questionnaire that the Canadian NCP submitted to the OECD in January 2020 (based on the calendar year) in fulfilment of Canada’s adherence to the OECD Guidelines. The information in this report was current as of 31 December 2019. During the year under review, the NCP’s activities focussed on specific instances (i.e. cases brought forward involving companies regarding their implementation of the OECD Guidelines); and on promotion and outreach both within and outside of Canada. Canada’s NCP has also continued to support and actively engage with the OECD and the global Network of NCPs.

2. Institutional arrangements

Canada’s NCP is an interdepartmental committee composed of officials from the following Federal departments: Global Affairs Canada (GAC), Natural Resources Canada (NRCan), Environment and Climate Change Canada (ECCC), Innovation, Science and Economic Development Canada (ISED), Employment and Social Development Canada (ESDC), Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) and Finance Canada. This year saw the addition of Public Services and Procurement Canada to the committee.  Canada’s NCP has three non-governmental Social Partners, namely the Canadian Chamber of Commerce, the Canadian Labour Congress, and the Confédération des syndicats nationaux (Québec).

Each of the member departments comprising the NCP brings specific expertise related to their mandated areas of responsibility. Representatives from the respective departments are thus able to provide informed advice on some of the broad range of issues covered by the Guidelines while at the same time maintaining the required level of responsiveness to Canada’s domestic legal, regulatory, and administrative requirements.

The NCP is chaired by a senior representative at GAC, the Director General, Trade Portfolio Strategy & Coordination. A senior representative of NRCan, the Director General, Policy and Economics Branch, Lands and Minerals Sector, is the Vice-Chair. The NCP Secretariat is located in GAC and operated by two full-time staff members. Human and financial resources are made available by GAC to the NCP Secretariat in order to support the NCP mandate. NCP member departments provide in-kind support.

3. 2019 Progress Report to the OECD on Canada’s response to the NCP Peer Review

Canada’s NCP underwent its first peer review by the OECD on February 15 -16, 2018 in Ottawa, Canada. The peer review was carried out as part of a commitment made by Canada and other G7 countries in the 2015 G7 Leaders’ Declaration to lead by example and strengthen and promote the NCP network through peer reviews.

In November 2019, Canada reported back to the OECD Working Party on Responsible Business Conduct on its progress in addressing the recommendations raised in the Peer Review report, which included recommendations to increase the NCP’s visibility, accessibility and impartiality (find the Final Peer Review Report published in December 2018). The NCP reported that it had begun a review of its institutional structure, policies, procedures (governance and procedures review) and a project to revamp the website in order to deepen effectiveness and properly address the Peer review report recommendations, while taking into account the evolving RBC landscape in Canada. The year 2019 saw the rollout of the evaluation of the 2014-2019 Corporate Social Responsibility Strategy, the initiation of the process to develop a new and more comprehensive RBC Strategy and the appointment of the CORE and the establishment of her office. The governance and procedures review project to be undertaken in 2020^{Footnote 1} was designed as a participatory process, to engage stakeholders in confirming and identifying new areas for improvement and exploring opportunities for broader representation from stakeholder groups, particularly civil society and Indigenous communities.

4. Outreach and promotion

Promotion of the OECD Guidelines, of the Due Diligence guidance documents and of the NCP mechanism are key activities of the Canadian NCP achieved through a variety of tools and activities in different fora.

Promotion

During the year under review, in accordance with its core mandate and promotion and outreach plan, Canada’s NCP co-organized and/or participated in a variety of RBC-related events with a view to raise awareness on the NCP and promote the Guidelines and due diligence guidance to businesses, non-governmental organizations, trade unions, and government officials.  A Promotion and Outreach plan was developed and consulted amongst the NCP committee and GAC Departmental officials, including the Trade Commissioner Service and Natural Resources Governance. A more detailed list of key 2019 events and presentations is available in Annex 1.Going forward, the NCP will consult more broadly across the political, security and international development streams. 

The NCP held three meetings (March 20, 2019, July 24, 2019, and December 9, 2019) with its Social Partners (the Canadian Labour Congress, the Canadian Chamber of Commerce and the Confédération des syndicats nationaux) to discuss the implementation of the recommendations from the peer review report including the proposed review of the NCP’s institutional structure and procedures, as well as exploration of opportunities for collaboration on promotion, learning and other outreach activities in 2019 and beyond.  The NCP also engaged in outreach to both new and familiar stakeholders in the NGO, labour and business communities as part of the follow-up to discuss the peer review report recommendations and map out opportunities for future directions.

As mentioned above in section 3, GAC undertook the evaluation of its 2014 – 2019 Strategy, “Doing Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad” (CSR Strategy)^{Footnote 2}, of which the NCP is an integral pillar.  Notably, the information collected for the evaluation underscored the findings of the 2018 Peer Review of Canada’s NCP, as mentioned above in section 3.  Work also began to renew the five-year Strategy with the drafting of a discussion document to be used as part of a broader public consultation scheduled to take place in 2020.  In order to be aligned with the RBC Strategy renewal process, and to ensure a comprehensive approach, the NCP’s tentatively planned annual Stakeholder Forum and institutional structure and procedures review was pushed into 2020.

As part of its ongoing outreach activities and promotion activities, the NCP made its first presentations to the Federal, Provincial and Territorial Committee on Human Rights in June and the Canadian Council for International Cooperation (CCIC) and Government of Canada’s Day of Dialogue in November, promoting RBC amongst the Canadian international development community.

Training on Canada’s RBC expectations is provided to GAC departmental officials by GAC’s Responsible Business Practices Division, targeting specifically Trade Commissioners and diplomats prior to their deployment abroad.  It is also open to political, international development staff and consular staff, as well as to employees of other federal departments, to further policy coherence and a whole-of-government approach to RBC. The OECD Guidelines and the NCP are an integral part of this training, and therefore the NCP Secretariat participated in the two-day RBC workshop May 2019.  The NCP also led two additional departmental sessions in 2019 targeting trade commissioners and international development staff, in order to better equip them in their respective roles in the promotion of RBC.

Canada’s Trade Commissioner Service (TCS) interacts directly with companies abroad via Canada’s network of embassies, consulates and other offices. As part of their outreach to companies operating abroad, and regular interactions with other stakeholder groups, Trade Commissioners and other embassy officials actively promote key responsible business practice standards such as the OECD Guidelines, as well as the use of dialogue facilitation mechanisms, such as the NCPs in the host country and Canada’s NCP. Canadian embassy staff collaborated with NCPs in Peru and Brazil and NCP representatives also participated in person or virtually in embassy-led sessions in Argentina (July), Chile (September) and Türkiye (November).

The NCP Secretariat, the GAC Director Responsible for the Secretariat, and the NCP Chair made several specific interventions and presentations in various fora including at several trade shows and conferences including the Association for Mineral Exploration (AME Roundup) (January 2019), the Mining Indaba Conference (February 2019), Prospectors and Developers Association of Canada Conference (March 2019) where attendees were provided with information about Canadian RBC initiatives, including the OECD Guidelines and due diligence Guidance.  The NCP also presented on RBC and dispute resolution at  the Regional Workshop on Indigenous Consultations for Natural Resource Based Products, a multi-stakeholder event organised by Environment and Climate Change Canada, which took place in Mexico (November 2019).

Through a GAC-dedicated RBC Fund of CAD $250,000 per year, a total of 32 initiatives were led or supported in 2019 by Canadian missions in Latin America and the Caribbean, Asia, Africa, and Europe. These in-market initiatives, comprised of workshops, seminars, roundtables, and information products, promote both Canada’s RBC Strategy and international guidelines and best practices, including the OECD Guidelines and related due diligence guidance and the NCP.  This fund has been operating since 2009 and has been used by numerous Canadian trade commissioners to support initiatives around the world to promote RBC, the OECD Guidelines and the NCP.

Support to the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals

During the year under review, Canada continued to support and promote the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals at relevant events, with civil society partners and with other governments. At the Annual OECD Forum on Responsible Mineral Supply Chains in April Canada, the Netherlands, Germany and a range of civil society organizations launched a Stakeholder Statement on Implementing Gender-Responsive Due Diligence and ensuring the human rights of women in Mineral Supply Chains. Canada also continued to fund international development projects throughout the year that help to implement the OECD Due Diligence Guidance on the ground.

Support to the global network of NCPs

Canada’s NCP participated in peer learning activities with other NCPs to exchange knowledge on best practices, share lessons learned on effective case management, communication and promotion, and on the challenges facing NCPs in the fulfilment of their mandate. One such peer learning activity included a two-day Mediation Academy hosted by the Austrian NCP in April 2019.
Canada attended two OECD led annual meetings of the Network of NCPs and the two meetings of the OECD Working Party on Responsible Business Conduct. The NCP gave presentations on the NCP and OECD Guidelines at the OECD Global Forum on RBC (June 2019), the Fourth Regional Workshop on Business and Human Rights in Latin America and the Caribbean (September 2019) and the UN Forum on Business and Human Rights in Geneva (November 2019). Lastly, for the fourth consecutive year, Canada provided financial support to the OECD to advance RBC and the Action Plan aimed at strengthening the Network of NCPs.

5. Policy coherence

Canada considers that policy coherence on RBC requires collaboration across government in order to achieve meaningful outcomes. In addition to liaising with member departments on their respective advancement of responsible business practices, the NCP Secretariat engaged with various offices within GAC on cross cutting issues such as business and human rights, governance, international diplomacy, trade, and international development to promote synergies, complementarity and consistency in the Canada’s approach to RBC and in promoting the Guidelines and the NCP.

In 2019, in addition to regularly liaising with the Trade Commissioner Service, the GAC divisions involved in trade negotiations and trade missions, Natural Resources Canada (NRCan) and Export Development Canada (EDC) the NCP committee welcomed Public Services and Procurement Canada (PSPC) as a member of the interdepartmental committee.  The NCP Chair also initiated an intergovernmental community of practice on RBC to encourage greater coherence within Global Affairs Canada and across government. Collaboration with EDC is particularly critical to the implementation and effectiveness of Canada’s trade measures whereby the NCP can recommend withdrawal or denial of trade advocacy support and future EDC financial support to a company that does not cooperate with the NCP in good faith.

The Canadian Ombudsman for Responsible Enterprise (CORE)

On April 8, 2019, the Government of Canada announced the appointment of Ms. Sheri Meyerhoffer as the first Canadian Ombudsperson for Responsible Enterprise with a mandate to consider allegations of human rights abuses arising from the operations of a Canadian company abroad in the mining, oil and gas and garment sectors. The NCP worked with the CORE to develop a communication for stakeholders explaining the complementarity between the two mechanisms.

6. NCP specific instances

The NCP received no new specific instances in 2019. It concluded one specific instance received in 2017, proceeded to close another specific instance received in 2016 following mediation, and completed follow up on two closed cases. Brief summaries are provided below.

Follow up on Specific Instances

Endeavour Mining Corporation and a labour union in Mali

On 19 May 2015, the Canadian NCP received a request for review from a Labour Union in Mali alleging that a Canadian multinational enterprise, Endeavour Mining, had breached the Concepts and Principles and General Policies chapters of the Guidelines. More specifically, it is alleged that the company had improperly dismissed unionized employees, and did not have adequate health and safety systems in place to protect some employees from harmful exposure to metals.

The NCP offered to facilitate dialogue between the parties, which occurred between September 2016 and March 2017. While the dialogue did not result in a mutually agreeable solution between both parties, the process generated concrete positive outcomes in the form of a series of actions and commitments by Endeavour Mining on both labour and health issues. In its Final Statement, published on October 24, 2017, the NCP made a series of recommendations to Endeavour and asked that the company report in writing to the Canadian NCP by July 2018 on any and all follow-up actions.

On May 16 of 2019, a Follow up Statement was published online: https://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/2019-05-16-ncp-pcn.aspx?lang=eng  based on progress reports provided by the Company and Notifier, along with confirmation of the change of ownership of the mine. With this, the NCP concluded that no further follow up would be pursued.

Banro Corporation and a Group of Former Employees

On February 26, 2016, the Canadian NCP received a request for review from a group of five former employees of the Société Minière et Industrielle du Kivu (SOMINKI) in liquidation, in the Democratic Republic of Congo (DRC), alleging conduct in the DRC by Banro Corporation being inconsistent with the Guidelines. The Notifiers claimed that Banro failed to settle the final accounts of 4,987 former employees of SOMINKI following the creation of SAKIMA SARL (93% Banro) in 1997 and the transfer of SOMINKI’s mining assets.

In its Final Statement, though mediation was not offered to the parties, the NCP made a series of recommendations, including that the Company make all efforts to engage with the government of the DRC to resolve the issues raised. The NCP also requested written updates from the Company on its efforts. The NCP also committed to issuing a Follow up Statement approximately twelve months after the publication of the Final Statement:   https://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/final_stat-banro-comm_finale.aspx?lang=eng  with information on progress towards the implementation of the NCP's recommendations.

Despite many attempts on the part of the NCP, Banro Corporation did not engage in follow up or explain its evolving situation, including incorporation in the Cayman Islands from Canada.  As a result of the Company’s lack of collaboration, the case was closed with the publishing of a Follow up Statement March 21, 2019.  The NCP stated that should the company be eligible for Canadian trade advocacy services in future, the company’s lack of constructive engagement during the follow up stage of the process will be taken into consideration. See Follow up Statement at the following link for full details:   https://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/2019-03-19-ncp-pcn.aspx?lang=eng  .

Closed Specific Instances

Murchison Minerals Ltd. and three former employees

On March 14, 2018, a request for review was submitted to the Canadian NCP by three former employees of Flemish Investment Burundi s.a., a subsidiary of the now defunct Flemish Gold Corporation, a Canadian exploration and development company which was headquartered in Toronto, Canada. In June 2014, Flemish Gold Corporation transferred all its shares to Manicouagan Minerals Inc., which later became Murchison Minerals Ltd., also based in Toronto, Canada.

The Notifiers alleged the company’s actions constituted non-observance of the concepts and principles chapter and the employment and industrial relations chapter of the OECD Guidelines.

After an assessment of the issues, the NCP decided not to accept this case as the specific issues would not have contributed to the purposes and effectiveness of the Guidelines. A Final Statement was issued on June 13, 2019 and the case closed: https://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/2019-06-13-ncp-pcn.aspx?lang=eng.

Ongoing Specific Instances

Imperial Metals Corporation and the Southeast Alaska Conservation Council
On December 23, 2016, the Canadian NCP received a request for review from the Southeast Alaska Conservation Council, located in Juneau, Alaska, in the United States, alleging that Imperial Metals and its subsidiary Red Chris Development Company had not observed the general policies, and the disclosure, human rights and environment provisions of the Guidelines in its operations in Canada. The NCP engaged with both parties. The company made a submission which was shared with the Notifier. The NCP concluded its Initial Assessment after consulting with the parties.

The NCP concluded that some of the issues raised by the Notifier in the request for review warranted mediation and offered mediation to the parties on these issues on 20 March 2018. The parties accepted the NCP’s offer and met in November 2018.  Unfortunately, the parties were unable to come to an agreement through mediation.

A draft Final Statement was shared with both parties in December 2019 for review. The NCP acknowledged the delays incurred throughout the specific instance process, due to extenuating circumstances, including the OECD NCP peer review process in 2018, staff turnover at the NCP and an extended mediation phase.

Annex 1: Key 2019 NCP promotional Activities

March 27: Presentation at the Regional RBC Advocacy Campaign meeting, Mexico City

May 1: Presentation at Canadian Network on Corporate Accountability, Ottawa

May 1: Meeting with UN Working Group on Business and Human Rights

May 8-9: Presentation on the NCP and OECD Guidelines at Trade Commissioner Service workshop, Gatineau

June 6:  Meeting with UN Special Rapporteur (SR) on hazardous substances and waste

June 25: Presentation at the OECD Policy Forum, Bangkok

June 12: Presentation to the Continuing Committee of Officials on Human Rights, (Federal, Provincial, Territorial), Ottawa

September 4: Presentation at the Fourth Regional Workshop on Business and Human Rights in Latin America and the Caribbean in Santiago, Chile

September 25: Presentation on the OECD Guidelines and NCP to the Trade Commissioners Service, Ottawa

November 25: Presentation at the Regional Workshop on Indigenous Consultations for Natural Resources based Products, Mexico City

November 28: Participated in a panel at the Canadian Council for International Cooperation’s Summit on Canada’s Global Leadership, Ottawa

November 28: Presentation on Canada’s Approach to Responsible Business Conduct, Ankara

December 11: North America (& Mexico) STCs and FPDS Retreat

December 12: Trade Lunch and Learn: Canada’s NCP and the OECD Guidelines, Ottawa

Annex 2: Highlights of Promotional events across Canadian Missions Abroad

January 24: Canadian Mission in Peru: Seminar: “Towards a Socially Responsible and Inclusive Mining”

February 18-20: Canadian Mission in Buenas Aires, Argentina: Workshop on mine closure in extractive industries: Guidance on responsible development of natural resources

February 25: Canadian Mission in Bogota, Colombia: RBC Series: “First Nations and the Extractive Sector: Stoney Nakoda Experience”

March 1: Canadian Mission in San Jose, Costa Rica: Corporate Social Responsibility Workshop

March 11-12: Canadian Mission in Quito, Ecuador: Corporate Social Responsibility Initiative: Information sharing on anti-corruption

March 19: Canadian Mission in Kigali, Rwanda: Corporate Social Responsibility Seminar – focus on the extractive sector

March 19: Canadian Mission in Dar Es Salaam, Tanzania: Forum on Corporate Social Responsibility

March 21: Canadian Mission in Addis Abba, Ethiopia: Annual Corporate Social Responsibility Forum

March 22: Canadian Mission in Beijing, China: CSR and Gender Events: Canada’s private sector approach to women’s empowerment and sustainability practices in CSR

March 25: Canadian Mission in Bogota, Colombia: RBC Series: “CSR Sharing best practices in Compliance Programs”

March 29: Canadian Mission in Bogota, Colombia: RBC Series: “Lessons Learned and Innovations from a Grievance Management”

April 18: Canadian Mission in Guatemala City, Guatemala: Meeting on Anti-corruption and CSR Promotion

May 7: Canadian Mission in Guatemala City, Guatemala: Meeting on Anti-corruption and CSR Promotion

July 5: Canadian Mission in Guatemala City, Guatemala: Meeting on Anti-corruption and CSR Promotion

August 17: Canadian Mission in Bogota, Colombia: CSR Mining Roundtable

December 8: Canadian Mission in Panama: Regional Meeting with Senior Trade Commissioners: Discussions on CSR