If passed, Bill C-262 will hold Canadian companies accountable for adverse impacts on human rights in their business activities abroad.
Human rights are embedded in the Canadian Charter of Rights and Freedoms. They are also an essential component of Canada’s approach to both domestic and international relations.
But how enforceable are these rights on the global stage, especially when considered against the backdrop of international business? Around the world, people are victims of political oppression, social restrictions, forced labour, environmental damage, torture, and activities often driven by western business interests, from oil and mining to agriculture and manufacturing.
These activities are driving a call for “due diligence mandates” demanding that companies adopt transparent and accountable reporting on their international activities with respect to human rights. So how effective is Canada (and by extension, Canadian business) in standing up for the rights of the world’s citizens?
The Uyghurs in China
Consider the Uyghurs (also spelled Uighers), a mainly Muslim ethnic group with a 1,700-year history in Northwestern China’s Xinjiang region. Xinjiang is China’s largest province at 1,665 million square kilometres. Uyghurs there have been the target of genocide for decades. The media have widely reported that since 2017, the Chinese government imprisoned more than a million Uyghurs in Xinjiang “re-education” camps, with a “shoot-to-kill” policy for potential escapees. The remaining 11 million-plus Uyghurs are the subject of coerced labour, constant surveillance, religious restriction and forced sterilization.
In 2021, Canada joined the U.S. in recognizing this treatment as a form of crimes- against-humanity and genocide (from the Greek genos meaning tribe and Latin cide meaning killing). In 1946, the United Nations General Assembly defined genocide as:
Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a. Killing members of the group;
b. Causing serious bodily or mental harm to members of the group;
c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d. Imposing measures intended to prevent births within the group;
e. Forcibly transferring children of the group to another group.
The challenge for lawmakers and business? Canada is an endpoint for products made with forced Uyghur labour. The International Labour Organization defines forced labour as “all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily.”
Canada’s complicated involvement
According to advocacy group Save Uigher, Uyghur-produced forced-labour items include personal protective equipment, technology such as laptop components, agricultural products such as tomato paste, and cotton for clothing. Twenty percent of the world’s cotton supply is from Xinjiang, and the region is responsible for 85% of China’s cotton production.
“Uyghurs for Sale”, a 2020 report by the Australian Strategic Policy Institute, identified 12 Canadian companies with links to Uyghur-produced cotton. A 2021 Canadian parliamentary report asked the federal government to boost measures to ensure that products made with forced labour do not enter Canadian markets.
Uyghur Canadian activist Mehmet Tohti is a former science teacher who left China at age 26 and the executive director of Ottawa-based Uyghur Rights Advocacy Project. He said his group works to push the federal government to create remedy-centric legislation that puts the onus on importers to show that goods arriving in Canada are not the product of Uyghur forced labour.
In a July 2022 Zoom interview, Tohti said there is a misconception that by engaging with China, western governments can develop a political openness with China and “China will become ‘more like us.’” This is far from the truth, said Tohti, who added that governments doing business with China have a responsibility to respond to human rights issues. “They created that monster of oppression” by supporting and promoting China’s economic development through investment, technology transfer and nurturing an open market for consumer products.
In January 2021, the federal government announced a new initiative to address the issue of possible complicity in Xinjiang-based human rights abuse: the creation of a third-party analysis of supply chain risks related to forced labour in Xinjiang. Undertaken by Canadian research and media firm Corporate Knights, the fact-finding study focuses on giving Canadian companies a starting point to undertake further due diligence on the risks of doing business in the region.
In an e-mail interview, Aidan Gilchrist-Blackwood, of policy and law reform advocacy group Canadian Network on Corporate Accountability (CNCA), said the following:
We’ve seen the federal government increasingly acknowledge that human rights and environmental abuses by Canadian corporations and in Canadian supply chains is a serious problem that must be addressed.
Bill C-262: Corporate Responsibility to Protect Human Rights Act
Members of Parliament have brought forward several human rights-focused Bills, including Bill C-262 by New Westminster-Burnaby MP Peter Julian. Bill C-26: An Act respecting the corporate responsibility to prevent, address and remedy adverse impacts on human rights occurring in relation to business activities conducted abroad is also known as the Corporate Responsibility to Protect Human Rights Act.
Introduced in March 2022, it would hold Canadian companies accountable, make it mandatory that business find and reduce risks to people, and offer remedy to those harmed. According to the Canadian Parliamentary website, the focus of the Act is:
to prevent, address and remedy the adverse impacts on human rights that occur in relation to business activities conducted by entities abroad … every entity has a duty to avoid causing any adverse impacts on human rights from occurring outside Canada as a result of its acts or omissions or those of its affiliates.
In a news release, MP Julian said:
Bill C-262 would require companies to identify, prevent and mitigate human rights abuses and provides for liability when companies cause harm in their global operations. The federal government must make abusive actions by Canadians and Canadian corporations illegal here and abroad.
Gilchrist-Blackwood said CNCA believes:
This legislation must be strong and comprehensive – and introduced immediately. Experience in other jurisdictions demonstrates that a mandatory Human Rights and Environmental Due Diligence (mHREDD) law is a realistic and effective way forward. Bill C-262 … would be such a law. Similar legislation has already been adopted by France, Germany, and Norway. It’s long past time for Canada to catch up to its global peers (and) experience shows that voluntary measures do not work.
Canadian companies continue to be linked to egregious human rights violations, including killings, sexual violence, water contamination, land grabs, poverty wages and forced labour. … The United Nations Working Group on Business and Human Rights has repeatedly highlighted the Canadian government’s inaction and called on Canada to introduce binding human rights legislation.
Problems with Bill C-262
For Linda Reif, Professor of International Trade and Associate Dean (Graduate Studies) at the University of Alberta’s Faculty of Law, Bill C-262 may be problematic. In a telephone interview, Reif said that Canada already has in place the government body CORE (Canadian Ombudsperson for Responsible Enterprise). According to its website, CORE reviews “complaints about possible human rights abuses by Canadian companies when those companies work outside Canada in the garment, mining, and oil and gas sectors.”
Organizations like CORE represent a “soft law” approach often found in international legal circles. (Soft law focusses on non-legally binding treaties, as opposed to legally enforceable “hard law.”) CORE’s recommendations (which may result in punitive actions like withdrawing trade commission support) may be considered in a court of law, said Reif. The question is how Bill C-262, if passed into law, may affect CORE’s role.
According to Reif, European countries have moved toward a due diligence model for international business for years, in line with the United Nations Guiding Principles on Business and Human Rights. These principles centre on the following obligations:
- to respect, protect and fulfil human rights and fundamental freedoms;
- the requirement of business enterprises to comply with all applicable laws and to respect human rights;
- the need for rights and obligations to be matched to appropriate and effective remedies when breached.
While Canada has been slow in developing a human rights plan, there is a heightened awareness of the need for accountability. Reif added that a “carrot approach rather than a stick approach” to legislation – one that is less coercive and punitive and focused on getting businesses to accept their responsibility to duly report their activities – is an approach that has worked in Europe.
At the federal level, Bill C-262 might raise more questions than it immediately answers. Given that the legislation is rooted in the soft law of treaties rather than enforceable hard laws, “it will force courts to look at human rights treaties, and courts will be asked to apply those obligations to private business,” said Reif. She added there is little precedent on how to apply such treaties to private business and it will take years until there is a body of precedents. And it may also add to the logjam of cases already clogging Canadian courts.
“The federal government might say ‘why do we want to support this?’ or it could say ‘is this going to scare off Canadian business?’” said Reif.
An ongoing battle
For Mehmet Tohti, pushing for changes to laws governing Canadian companies doing business in Xinjiang is ongoing. While the federal government has talked about “cleaning up the international market, there has been little action,” said Tohti. “There’s no action from private sector corporations or government, so Canada is becoming a dumping ground for products made by Uyghur forced labour.” Uyghur Rights Advocacy Project will continue to research and document human rights abuses to “bring attention to the crimes and atrocities being committed right now.”
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Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About John Cooper
