Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Bill C-300 Needs a Royal Recommendation Before It Can Pass Third Reading

Bill C-300 "An Act respecting Corporate Accountability for the Activities of Mining, Oil and Gas in Developing Countries" requires a royal recommendation before it can pass third reading Canada's House of Commons. This point of order was raised at the start of third reading debate on September 20, 2010. Third reading debate will continue in late October 2010.

A royal recommendation is required in cases of private members bills that require public spending - and Bill C-300 is a private members bill introduced into the House of Commons by John MacKay (Lib.).

According to the House of Commons procedures:

Private Members’ bills involving the spending of public money are allowed to proceed through the legislative process, on the assumption that a Royal Recommendation will be submitted by a Minister of the Crown before the bill is read a third time and passed. If a Royal Recommendation is not produced by the time the House is ready to decide on the motion for third reading of the bill, the Speaker must stop the proceedings and rule the bill out of order.

Bill C-300 creates a new complaints mechanism whereby any person may bring a complaint against a Canadian mining, oil or gas company operating in a developing country. If the Minister accepts that the complaint is not frivolous, vexatious or made in bad faith, either the Minister of Foreign Affairs or the Minister of International Trade must commence a quasi-judicial investigation. Officials of the Department of Foreign Affairs and International Trade testified before the Standing Committee that:

The mechanism itself would require ... the set-up of a whole new procedural framework that is not currently in existence within DFAIT and is not foreseen in the DFAIT Act.

Reasonable people would accept this statement as 100% correct. So, let's look at the reality. If this is going to be a robust mechanism, public expenditures will be necessary to develop the infrastructure in which the investigations will transpire. If the mechanism is to be lip service to corporate social responsibility with no effort to actually review and investigate complaints, then no public expenditures would be required. I believe that Mr. MacKay and those who have voted in favour of the bill expect (and will demand that) the enforcement mechanism will be robust and meaningful.

If the mechanism is to be meaningful, a core group of investigators will need to be hired and trained. The investigators will need experience in human rights, environmental and foreign corruption enforcement. The investigators will need sufficient funds to travel to the developing countries (for a meaningful period of time and on a number of occasions) to talk to the complainants, other affected persons and foreign government officials, Forensic investigators may have to travel to developing countries to properly investigate allegations and look for corroborating evidence. Due process would not permit conclusions based solely on hearsay evidence of locals.

Due process would also require a quasi-judicial hearing in Canada whereby the company against whom allegations have been made would be entitled to provide exculpatory evidence and make legal arguments concerning the merits of the complaint and the jurisdiction of the Ministers to conduct an investigation (depending on the basis for the complaint). The DFAIT investigators may be required to travel from Ottawa to the location of the head office of the company against whom the allegations are made. The investigators may need to go to court to obtain search warrants (or is it expected by Mr. MacKay that a simple request for documents will be sufficient or that constitutional rights would no longer apply).

It is possible that companies will have a legal basis to judicially review the decision by the Minister to commence an investigation. In these circumstances, DFAIT personnel will have to work with Department of Justice lawyers.

I could go on in my demonstration that the implementation of Bill C-300 will require public funds. But before I end, I have to comment that the implementation does not merely involve a reshuffle of DFAIT personnel. The civil service is overworked as it is. Many of the DFAIT officials that I know are busy doing good work in Canada's embassies, consulates and high commissions. Others are busy negotiating free trade agreements and foreign investment promotion and protection agreements. Others still are helping Canadian companies seek opportunities in foreign markets (as the U.S. recession has hindered sales by Canadian manufacturers and service providers). Any suggestion by supporters of Bill C-300 that DFAIT officers are not working hard enough is not fair.

If Bill C-300 does not receive a royal recommendation, it cannot pass third reading. Since the Conservative MPs who have spoken about this bill have highlighted the facts that it is sloppy and poorly written, the process is not adequately developed, the implementation and enforcement mechanisms are hastily drafted and problematic in theory and in principle, and it does not incorporate fundamental principles of justice and due process, it is not in the interest of Canada for a Minister to give the required royal recommendation.

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