by Sara Seck

This post is part of the Lessons from the Aarhus Convention and Escazú Agreement for Procedural Environmental Rights in Canada blog symposium.

We began this series of blog posts over a year ago with the aim of exploring how international law might inform and support the protection of procedural environmental human rights in Canada. At the time, it would have been difficult to imagine the extent of the rollbacks to both human rights and environmental protection occurring today south of the border, and even more difficult to imagine that the leader of the United States (US) would be threatening to annex Canada. These developments confirm the importance of being vigilant to ensure the protection of procedural environmental human rights, aligned with international law. With this in mind, this blog is the first of four new contributions that explore: the history and potential of the citizen submission’s process of the Canada-US Commission on Environmental Cooperation, the development of an implementation framework for the right to a healthy environment under the Canadian Environmental Protection Act, and how principles of restorative justice could help ensure meaningful procedural environmental justice.

The focus of this post is on the potential of Canada’s National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (OECD Guidelines) to contribute to the protection of procedural environmental human rights both within Canada, and in relation to Canadian corporate conduct abroad. Canada has for many years contemplated how to prevent and remedy the human rights and environmental harms associated with the operations of Canadian extractive companies operating internationally. In 2018, this led to the creation of the Canadian Ombudsperson for Responsible Enterprise (CORE), and in 2022 a revised federal strategy for Responsible Business Conduct Abroad (RBC Abroad). While attention to the need to ensure responsible conduct by industry sectors such as textiles has grown, the human rights and environmental harms arising from the activities of extractive and other business enterprises operating within Canada have been excluded by the federal focus on ‘abroad’. This is despite self-reflection on Canada’s colonial history motivated by the Truth and Reconciliation Commission’s Calls to Action in 2015 leading to the enactment of federal legislation to implement the UN Declaration on the Rights of Indigenous Peoples (UNDRIPA), as well as more recent attention to the need to begin to address environmental justice and environmental racism in federal law.

That said, in parallel with federal initiatives leading to the CORE and RBC Abroad strategy has been acknowledgement that an important role exists for Canada’s OECD NCP. The OECD Guidelines originally date from the 1970s, with the most recent update in 2023. OECD Responsible Business Conduct (RBC) instruments, backed by 38 OECD and 13 non-OECD adhering states, set the expectation that beyond the obligation to obey domestic laws, all domestic and multinational enterprises are to observe the OECD Guidelines. All enterprises are to contribute to sustainable development and respect human rights, as well as carry out risk-based due diligence in order to ‘identify, prevent and mitigate actual and potential impacts’ and to account for how actual impacts are addressed through remediation (pp12-17). (Small and medium-sized enterprises are encouraged to observe the OECD Guidelines as much as they are able given their more limited capacity.) This due diligence is to be carried out with attention to a series of chapters that provide guidance on disclosure, human rights, employment relations, environment, corruption, consumers, and science and technology. Other sector-specific OECD RBC instruments have been developed over the years that provide more detailed guidance on the application of RBC in discrete contexts such as responsible supply chains for agriculture and the garment and footwear sectors, and extractive sector guidance on stakeholder engagement and mineral supply chains, among others.

While by no means perfect, the 2023 version of the OECD Guidelines provides fairly robust guidance for businesses in keeping with procedural environmental human rights. For example, the disclosure chapter makes clear that businesses have a key role to play in ensuring access to information. This requires communication to the public about social and environmental due diligence matters, and easily accessible communication on matters of importance to directly affected local communities especially those that are remote or impoverished. The human rights chapter follows closely the business responsibility to respect human rights as set out in the 2011 United Nations Guiding Principles on Business and Human Rights (UNGPs), including the need to have a publicly available human rights policy, to undertake human rights due diligence, and to cooperate in legitimate remediation processes where the business identifies that it has caused or contributed to an adverse impact. As under the UNGPs, the OECD Guidelines are clear that a state’s failure to pass or enforce laws implementing human rights obligations does not diminish the expectation that business enterprises will nevertheless respect human rights. Importantly, the human rights chapter draws the attention of enterprises to groups at particular risk of adverse human rights impacts, including human rights defenders, as well as the rights of Indigenous peoples, women, and children, among others. The employment chapter confirms that enterprises are expected to provide information on adverse environmental health and safety impacts to workers and reinforces the importance of consultation and cooperation with workers on these matters.

The environment chapter was extensively updated in 2023, now clarifying that its scope extends to a wide range of environmental matters including biodiversity loss and deforestation, water, air and soil pollution, as well as climate change, hazardous substances and wastes, and the degradation of land, freshwater and marine ecosystems. Enterprises are to carry out environmental impact assessments, and to conduct meaningful engagement with stakeholders and rights holders. A precautionary approach should be adopted and contingency plans in place to prevent, mitigate and control damage in case of accidents. To address adverse environmental impacts that the business has caused or to which it has contributed, businesses are to provide for or cooperate in remediation efforts. The environment chapter also speaks to the need for enterprises to ensure that customers are aware of the environmental and health impacts of products they purchase, a call that is reiterated in the consumer interest chapter which highlights the expectation that enterprises support consumer education on the environmental and social impacts of their choices with the aim of sustainable consumption.

A notable feature of the OECD Guidelines is the requirement that adhering states establish a National Contact Point (NCP) to both promote the OECD Guidelines and ensure policy coherence, and to hear specific instance complaints brought against business enterprises. Complaints may refer to allegations arising from business conduct within the adhering state, or allegations in relation to a business enterprise operating from the adhering state but in another state, whether or not it is also an adhering state (OECD Guidelines pp12-13). Accordingly, it would be entirely appropriate for Canadians that are concerned about environmental human rights issues associated with a business enterprise to bring such a complaint to Canada’s NCP. Unfortunately, to date, this potential has been rarely used, with most of the 29 complaints raised between 2000 and 2024 focused on operations outside of Canada. Yet in 2017 Canada’s OECD NCP clearly recognized that the OECD Guidelines apply to business operating within Canada.

Perhaps even more unfortunately, Canada’s OECD NCP has been heavily criticized by OECD-Watch for a lack of independence from government and concern that corporate pressure has led to unpredictable, inequitable and non-transparent handling of complaints. While some NCPs are viewed quite favourably, many could be greatly improved including the Canadian NCP. The 2023 OECD Guidelines update promises that periodic peer reviews of NCPs will become mandatory to ensure functional equivalence measured against core effectiveness criteria including accessibility, visibility, transparency and accountability, while also being predictable, impartial and equitable (OECD Guidelines pp 58, 61, 64-66). Canada’s NCP was subject to a peer review in 2019 at which time serious concerns were raised by NGOs about the need for reform, yet the federal government has not yet undertaken the serious structural reforms necessary for the NCP to be viewed as trustworthy and effective.

Why might the OECD Guidelines and OECD NCP process offer an opportunity to protect and support the exercise of environmental human rights both within Canada and transnationally? While it is true that OECD NCPs do not offer binding judicial remedy, what they do offer – at least those that work well – is an opportunity for meaningful dialogue with businesses about what social expectations are for responsible business conduct, including with regard to procedural environmental human rights. Moreover, as a multilateral initiative with 51 adhering states, the OECD Guidelines and NCP process offer an opportunity to contribute to a global dialogue about the importance of human rights and the environment, with specific instances reported in an OECD database. This is a conversation that is long overdue, and inconsistencies abound. Especially in a time of rollbacks of environmental and human rights protections south of the border, it is important to strengthen and use opportunities to reinforce expectations of responsible business conduct when governments fail in their duty to protect.