OECD Guidelines for Multinational Enterprises
National Contact Point Peer Reviews
CANADA
ABOUT THE OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES
The OECD Guidelines are recommendations addressed by governments to multinational
enterprises operating in or from adhering countries. They provide non-binding principles
and standards for responsible business conduct in a global context consistent with
applicable laws and internationally recognised standards. The OECD Guidelines are the
only multilaterally agreed and comprehensive code of responsible business conduct that
governments have committed to promoting.
ABOUT NCP PEER REVIEWS
Adhering governments to the OECD Guidelines for Multinational Enterprises are required
to set up a National Contact Point (NCP) that functions in a visible, accessible, transparent
and accountable manner. During the 2011 update of the OECD Guidelines for multinational
enterprises, NCPs agreed to reinforce their joint peer learning activities and, in particular,
those involving voluntary peer reviews. The peer reviews are conducted by representatives
of 2 to 4 other NCPs who assess the NCP under review and provide recommendations. The
reviews give NCPs a mapping of their strengths and accomplishments, while also
identifying opportunities for improvement. More information can be found online at
https://mneguidelines.oecd.org/ncppeerreviews.htm.
This work is published under the responsibility of the Secretary-General of the OECD. The opinions expressed
and arguments employed herein do not necessarily reflect the official views of OECD member countries. This
document and any map included herein are without prejudice to the status of or sovereignty over any territory,
to the delimitation of international frontiers and boundaries and to the name of any territory, city or area.
© OECD 2019
Please cite this publication as:
OECD (2019), OECD Guidelines for Multinational Enterprises National Contact Point Peer
Reviews: Canada https://mneguidelines.oecd.org/ncppeerreviews.htm.
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Table of contents
1. Summary and key findings ............................................................................................................... 4
2. Introduction ....................................................................................................................................... 8
3. Canadian NCP at a glance .............................................................................................................. 10
4. Institutional arrangements ............................................................................................................. 11
5. Promotion of the Guidelines ........................................................................................................... 17
6. Specific instances ............................................................................................................................. 23
Annex A. List of organisations which responded to the NCP peer review questionnaire ........... 37
Annex B. List of organisations participating in the on-site visit ..................................................... 38
Annex C. Promotional activities 2017 ................................................................................................ 39
Annex D. Overview of specific instances handled by the Canadian NCP as the leading NCP ..... 42
Annex E. Canadian national contact point process flowchart ........................................................ 45
Boxes
Box 1. “Sakto Group” and Bruno Manser Fund .................................................................................... 27
Box 6.2. Barrick and Porgera ................................................................................................................ 28
Box 3. Endeavour Mining and Labour Union ....................................................................................... 30
Box 4. Banro and former Banro employees in the Democratic Republic of the Congo ....................... 32
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1. Summary and key findings
This document is the peer review report of the Canadian National Contact Point (NCP) for
the OECD Guidelines for Multinational Enterprises (the Guidelines). The implementation
procedures of the Guidelines require NCPs to operate in accordance with the core criteria
of visibility, accessibility, transparency and accountability. In addition, they recommend
that NCPs deal with specific instances in a manner that is impartial, predictable, equitable
and compatible with the Guidelines.
This report assesses conformity of the Canadian NCP (the NCP) with the core criteria and
with the Procedural Guidance contained in the implementation procedures. The peer review
of the NCP was conducted by a team made up of reviewers from the NCPs of Belgium,
Denmark, the United Kingdom, and an observer from Peru, along with representatives of
the OECD Secretariat. The peer review included an on-site visit taking place in Ottawa,
Canada on 15-16 February 2018.
The NCP represents one component of a strong landscape of Responsible Business Conduct
(RBC) policy within the government of Canada. In this respect, Canada has introduced a
series of innovative measures to promote RBC including introducing provisions related to
RBC in trade and investment agreements, tying trade advocacy and export credit support
to RBC, and, most recently, creating the Canadian Ombudsperson for Responsible
Enterprise (CORE) position. The NCP is comprised of members from across the
government of Canada and as such has a high level of visibility within the government and
the competency to handle a broad range of issues. The NCP has been making various efforts
to respond to learnings and improve its functioning in recent years. Despite these efforts,
there is a lack of confidence and trust in the NCP amongst some civil society and trade
union stakeholders. Rebuilding this trust and ensuring continued coherence on RBC across
the government of Canada will be central to ensuring the effectiveness of the NCP going
forward.
Key findings and recommendations
Institutional arrangements
The NCP is a federal inter-departmental committee composed of seven member
departments. The NCP Secretariat is located in Global Affairs Canada (GAC) in the Trade
Planning, Coordination and Responsible Business Conduct Division of the Trade
Commissioner Service (TCS). All member departments of the NCP are active in their role
and knowledgeable about the Guidelines and the functioning of the NCP. The diversity of
expertise within the NCP allows it to handle and respond to a wide range of issues. All
decisions with respect to the activities of the NCP as well as handling of specific instances
rest with the NCP as a whole. Despite this, some stakeholders noted that the location of the
NCP Secretariat contributes to a perception of a lack of impartiality. During the on-site
visit stakeholders did not seem sufficiently aware of the active role of NCP members from
other departments (outside of TCS) in the activities and decision making of the NCP.
Stakeholders also noted that a lack of formal involvement of external stakeholders in the
NCP’s governance arrangements may have contributed to the perception of a lack of
impartiality with respect to the NCP and signalled support for a formal advisory body to
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the NCP. The NCP has noted it is looking to strengthen relationships with its social partners
and that it foresees a role for a new multi-stakeholder advisory group for the NCP.
The current staff of the NCP Secretariat is recognised as professional, responsive and
committed to executing the mandate of the NCP. Additionally there is strong institutional
memory and some senior representation across NCP members which contributes to
ensuring a high profile for the NCP and RBC within the government of Canada. However
there are no formal reporting requirements within the government on the activities of the
NCP.
In May 2017, human resources were increased for the NCP Secretariat from one to two full
time staff. While the NCP noted that, generally, sufficient resources are available to execute
its mandate, one challenge is to balance the number and unpredictable nature of specific
instances with commitments for promotion of the NCP and the Guidelines, and other
activities.
In January 2018, the creation of the Canadian Ombudsperson for Responsible Enterprise
(CORE) was announced. The mandate of the Ombudsperson will be to address complaints
related to allegations of human rights abuses linked to activities of Canadian companies
abroad.
1
The mandate of the Ombudsperson overlaps somewhat with that of the NCP, and
as a result the Ombudsperson may represent a competing venue for the handling of
grievances related to business and human rights.
Findings
1.1
Stakeholders did not seem sufficiently aware of the active role of
NCP members drawn from other departments (outside of the
Trade Commissioner Service) in the activities and decision
making of the NCP.
1.2
A lack of formal involvement of social partners and external
stakeholders in the NCP’s governance arrangements
contributes to the perception of lack impartiality with respect to
the NCP.
1.3
A challenge noted by the NCP is to balance the number and
unpredictable nature of specific instances with the need for
planned resource commitments for the promotion of the NCP and
the Guidelines, and other activities.
1.4
There are no formal reporting requirements within the
government on the activities of the NCP.
1.5
The mandate of the Ombudsperson overlaps somewhat with that
of the NCP, as a result the Ombudsperson may represent a
competing venue for grievances on business and human rights.
1
Global Affairs Canada website, Responsible business conduct abroad – Questions and answers
(Accessed 20 March, 2018) http://www.international.gc.ca/trade-agreements-accords-
commerciaux/topics-domaines/other-
autre/faq.aspx?lang=eng&_ga=2.114213760.642214138.1516213298-286120068.1454362702
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Promotion of the Guidelines
The NCP has been increasing efforts with respect to promotion. Many stakeholders
participating in the peer review noted support for the level of detail and ambition in the
2018 promotional plan of the NCP. The NCP engages in activities such as seminars,
information sessions, speaking engagements, and events at international conferences, to
promote the Guidelines and raise awareness of the NCP’s role. The NCP also updated its
website in 2017 with the objective of making it more user-friendly and accessible.
The government of Canada has a strong landscape of RBC policy and has been active in
building policy coherence for RBC matters. For example, since late 2014 access to trade
advocacy and financial support in foreign markets has been made contingent on Canadian
companies operating responsibly and engaging in good faith and constructively with the
Canadian NCP, or any other NCP or the Office of the CSR Counsellor for the Extractive
Sector. This policy is colloquially referred to as the ‘sanction.’ Many stakeholders noted
support for the sanction but demonstrated a lack understanding of it and called for more
transparency with respect to its applicability. Despite this and the efforts described above,
civil society organisations and NGOs in particular, do not seem very aware of the potential
benefits of using the NCP’s procedure for specific instances.
Findings
Recommendations
2.1
Many stakeholders noted support for the mechanism by which
trade advocacy and financial support can be withheld if
companies do not engage in good faith and constructively with
the NCP (i.e. the ‘sanction’) but demonstrated a lack
understanding of it and called for more transparency with
respect to its applicability.
The NCP should promote the mechanism and
clearly communicate on its scope and application
with stakeholders and parties to specific instances.
2.2
Civil society organisations, and NGOs in
particular, do not seem very aware of the
potential benefits of using the NCP’s
procedure for specific instances.
The NCP is encouraged to continue its work with
NGOs with a view to establishing a regular dialogue
so as to improve their confidence in the NCP’s
specific instance mechanism.
Specific instances
The NCP has handled 19 specific instances since 2000. The NCP has made efforts to
respond to lessons learned and improve the specific instances process through engaging
more systematically in follow-up and developing detailed final statements. The NCP has
also made efforts to facilitate dialogue in transnational specific instances through
organising video-conferencing or international mediation to promote participation. While
some parties have noted positive experiences with the specific instance process, other
stakeholders see the process as lacking in transparency, predictability and impartiality.
Some of the recent changes to the NCP procedures have further underscored this
perception. For example, some stakeholders participating in the peer review noted that the
requirements for substantiation were unclear and that the NCP's application of the initial
assessment criteria was onerous. Several civil society and trade union stakeholders raised
concerns about the NCP’s campaigning policy and noted that revising it would be necessary
to build trust and encourage certain stakeholders to utilise the specific instance mechanism.
Some submitters of specific instances noted that language in some initial assessments by
the NCP undermined the position of the submitter by implying there was no breach of the
Guidelines by the company or that the claims raised in a submission were without merit.
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Findings
Recommendations
3.1
Some stakeholders participating in the
peer review noted that the
requirements for substantiation were
unclear and that the NCP's application
of the initial assessment criteria was
onerous.
The NCP should offer assistance and work with submitters to further
substantiate their claims or reformulate submissions where necessary to
allow for them to be accepted for further examination. Additionally,
substantiation requirements and evidentiary thresholds should be clearly
explained to submitters in the NCP's rules of procedure and ensure
accessibility.
3.2
Several civil society and trade union
stakeholders raised concerns about
the NCP’s campaigning policy and
noted that revising it would be
necessary to build trust and encourage
certain stakeholders to utilise the
specific instance mechanism.
The NCP should ensure that its policy on campaigning is predictable,
equitable (meaning the preferences and needs of both parties should be
taken into account), and promotes transparency to the greatest extent
possible.
3.3
Some submitters of specific instances
noted that language in some initial
assessment by the NCP undermined
the position of the submitter by
implying there was no breach of the
Guidelines by the company or that the
claims raised in a submission were
without merit.
The NCP should be clear that a decision not to accept a specific instance
for further examination during initial assessment should not in principle be
equated with a determination on the merits of the issues raised in the
submission.
3.4
Some stakeholders see the specific
instance process as lacking in
transparency, predictability and
impartiality.
In order to further improve the mechanism and build trust amongst potential
submitters, the NCP should enhance transparency with respect to the
specific instance process. This may involve publishing initial assessments,
communicating and providing explanations to parties when timelines cannot
be respected, sharing the information used to make a decision amongst
both parties where possible and clearly explaining the rationale for deciding
whether to accept (or not accept) specific instances for further examination
in statements.
Canada is invited to report to the Working Party on Responsible Business Conduct on
follow up to all the recommendations within one year of the date of the presentation of this
report.
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2. Introduction
The implementation procedures of the Guidelines require NCPs to operate in accordance
with the core criteria of visibility, accessibility, transparency and accountability. In
addition, the guiding principles for specific instances recommend that NCPs deal with
specific instances in a manner that is impartial, predictable, equitable and compatible with
the Guidelines. This report assesses conformity of the Canadian NCP (NCP) with the core
criteria and with the Procedural Guidance contained in the implementation procedures.
Canada adhered to the OECD Declaration on International Investment and Multinational
Enterprises (Investment Declaration) in 1976. The OECD Guidelines for Multinational
Enterprises (the Guidelines) are part of the Investment Declaration. The Guidelines are
recommendations on responsible business conduct (RBC) addressed by governments to
multinational enterprises operating in or from adhering countries. The Guidelines have
been updated five times since 1976; the most recent revision took place in 2011.
Countries that adhere to the Investment Declaration are required to establish National
Contact Points (NCPs). NCPs are set up to further the effectiveness of the Guidelines and
adhering countries are required to make human and financial resources available to their
NCPs so they can effectively fulfil their responsibilities, taking into account internal budget
priorities and practices.
2
NCPs are “agencies established by adhering governments to promote and implement the
Guidelines. The NCPs assist enterprises and their stakeholders to take appropriate measures
to further the implementation of the Guidelines. They also provide a mediation and
conciliation platform for resolving practical issues that may arise.”
3
The Procedural Guidance covers the role and functions of NCPs in four parts: institutional
arrangements, information and promotion, implementation in specific instances and
reporting. In 2011 the Procedural Guidance was strengthened. In particular, a new
provision was added to invite the OECD Investment Committee to facilitate voluntary peer
evaluations. In the commentary to the Procedural Guidance, NCPs are encouraged to
engage in such evaluations. In the G7 Leader’s Declaration of June 2015, G7 governments
committed to strengthen mechanisms for providing access to remedy, including NCPs.
Particularly, G7 leaders agreed to lead by example to make sure NCPs of G7 countries are
effective, and to complete NCP peer reviews by 2018.
4
The objectives of peer reviews as set out in the Core Template for voluntary peer reviews
of NCPs are to assess that the NCP is functioning in accordance with the core criteria set
out in the implementation procedures; to identify the NCP’s strengths and possibilities for
improvement; to make recommendations for improvement and to serve as a learning tool
for all NCPs involved.
This report was prepared based on information provided by the NCP and in particular, its
responses to the NCP questionnaire set out in the core template
4
as well as responses to
requests for additional information. The report also draws on responses to the stakeholder
2
Amendment of the Decision of the Council on the OECD Guidelines for Multinational Enterprises, para I(4).
3
OECD Guidelines for Multinational Enterprises (2011), Foreword.
4
See Leadersʼ Declaration G7 Summit 7-8 June 2015
https://sustainabledevelopment.un.org/content/documents/7320LEADERS%20STATEMENT_FINAL_CLEAN.pdf
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questionnaire which was completed by 33 organisations representing Canadian enterprises,
civil society, trade unions/representative organisations of the workers’ own choosing
(hereinafter worker organisations), academic institutions and government agencies (see
Annex A for complete list of stakeholders who submitted written feedback) and
information provided during the on-site visit.
The peer review of the NCP was conducted by a team made up of reviewers from the NCPs
of Belgium, Denmark and the United Kingdom, with an observer from the Peruvian NCP,
along with representatives of the OECD Secretariat. The on-site visit to Ottawa, Canada
took place 15-16 February 2018 and included interviews with the NCP, other relevant
government representatives and stakeholders. A list of organisations that participated in the
review process is set out in Annex B. The peer review team wishes to acknowledge and
thank the NCP for the quality of the preparation of the peer review and organisation of the
on-site visit.
The basis for this peer review is the 2011 version of the Guidelines. The specific instances
considered during the peer review date back to 2001. The methodology for the peer review
is that set out in the core template.
5
Economic context
Canada’s economy is dominated by the service sector, representing 59% of GDP. The
inward stock of foreign direct investment (FDI), which represents the accumulated value
of FDI in the Canadian economy over time, was USD 974 billion in 2016, equivalent to 64
percent of Canada’s GDP. The outward stock of FDI was USD 1 252 billion in 2016,
representing 82 percent of Canada’s GDP.
The main investors in Canada are the United States, the Netherlands, Luxembourg,
Switzerland and the United Kingdom, and the main inward investment sectors are mining
and quarrying, manufacturing and professional, scientific and technical activities. The main
destinations for outward investment from Canada are the United States, the United
Kingdom, Barbados, Luxembourg and the Cayman Islands, and the most important sector
is finance and insurance, followed by mining and quarrying and professional, scientific and
technical activities.
As measured by employment at foreign-owned firms in Canada in 2014, the most important
investors are the United States, the United Kingdom, France, Japan and Switzerland. As
measured by employment at the overseas affiliates of Canadian MNEs, the most important
destination countries are the United States, Mexico, the United Kingdom, Brazil and
Germany.
5
Core Template for Voluntary Peer Reviews of National Contact Points (OECD, 2015),
https://one.oecd.org/document/DAF/INV/RBC(2014)12/FINAL/en/pdf.
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3. Canadian NCP at a glance
Established: 1991
Structure: Federal inter-departmental committee composed of seven member departments
Location: Global Affairs Canada, Trade Planning, Coordination and Responsible Business
Conduct Division of the Trade Commissioner Service (TCS).
Staffing: Two full time staff
Website: ncp-pcn.gc.ca
Specific instances received: 19
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4. Institutional arrangements
The commentary to the Procedural Guidance of the Guidelines provides:
“Since governments are accorded flexibility in the way they organise NCPs, NCPs should
function in a visible, accessible, transparent, and accountable manner.”
Legal basis
The 2000 Decision of Council on the Guidelines was adopted through an Order in Council
by the Governor General in Council of Canada. This Order in Council expanded the already
existing NCP and formalised recognition of the Procedural Guidance in the 2000 version
of the Guidelines. The NCP also has a Terms of Reference which outlines its composition
and mandate and is available online.
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NCP Structure
Composition
The NCP is a federal inter-departmental committee composed of seven member
departments:
Global Affairs Canada (GAC) (Chair; Secretariat; official development expert)
Natural Resources Canada (NRCan) (Vice-Chair)
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 (CIRNA)
Finance Canada (Finance)
The NCP has existed within the former Department of Foreign Affairs and International
Trade since 1991. The current multi-departmental structure of the NCP was decided upon
at ministerial level in 2000 in the lead up to the development of the Order in Council.
The CIRNA and Finance departments were added to the original composition of the NCP
to ensure expertise on these issues which are particularly relevant in the Canadian context.
Multi-departmental structures are common in the federal government of Canada. The
composition of the NCP is meant to promote policy coherence and the diversity of expertise
across members of the NCP allows it to handle and respond to a wide range of issues.
The NCP is chaired by a senior representative of GAC, the Director General of the Trade
Strategy and Portfolio Coordination Bureau, within the “International Business
Development and Chief Trade Commissioner” Branch. The Director General of the Policy
6
Terms of Reference for Canada’s National Contact Point for the OECD Guidelines for
Multinational Enterprises (Terms of Reference) http:/www.international.gc.ca/trade-agreements-
accords-commerciaux/ncp-pcn/terms_of_ref-mandat.aspx?lang=eng
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and Economics Branch, Lands and Minerals Sector at Natural Resources Canada (NRCan)
is the Vice-Chair of the NCP.
Each department represented on the NCP selects a primary contact to the NCP. However
the Terms of Reference recognise that each department may have a number of operating
units with an interest in NCP matters. In this respect the primary contact of each
Department may determine whether representatives of other units within their Department
may participate in NCP meetings as observers or resource persons.
7
The NCP Secretariat is located in GAC in the Trade Planning, Coordination and
Responsible Business Conduct Division of the Trade Commissioner Service (TCS). The
NCP Secretariat is housed in the same division dealing more broadly with responsible
business conduct files within the TCS. Some stakeholders noted that the NCP Secretariat’s
location contributes to a perception of a lack of impartiality because a primary function of
the TCS is helping Canadian companies succeed in foreign markets. This perception is
exacerbated by the fact that the NCP does not have any formal involvement by external
stakeholders in its structure.
In addition to the NCP members, the Terms of Reference provide that the NCP may seek
to engage the participation of representatives from other federal government Departments
on a case by case basis. In such situations, the respective Department may be invited to
participate in the NCP’s work, and to contribute their knowledge and expertise on any
particular subject matter as required.
The Terms of Reference also provide that the NCP may as required, create Ad Hoc
Working Groups to perform specific activities in carrying out the NCP mandate.
8
The current staff of the NCP Secretariat is recognised as professional, responsive and
committed to executing the mandate of the NCP. All members of the NCP are active in
their role and knowledgeable about the Guidelines and the functioning of the NCP.
Additionally there is strong institutional memory and some senior representation across
NCP members which contribute to ensuring a high profile for the NCP and RBC within the
government of Canada.
Function
The Terms of Reference for the NCP make reference to the Procedural Guidance of the
Guidelines noting that the mandate of the NCP is “to further the effectiveness of the
Guidelines”, and that the responsibilities of the NCP consist of:
1. making the Guidelines known and available;
2. raising awareness of the Guidelines;
3. responding to enquiries about the Guidelines;
4. contributing to the resolution of issues that arise relating to the implementation
of the Guidelines in specific instances, and;
5. reporting annually to the OECD Investment Committee.
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7
Terms of Reference, article 9.6
8
Terms of Reference, article 6.2
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Terms of Reference, Article 4.2
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The NCP Secretariat is the core of the operational functioning of the NCP. The Secretariat
coordinates promotional activities, NCP meetings and the handling of specific instances,
and informs NCP members of relevant developments.
NCP members are involved in the steering of the NCP and in handling specific instances.
When a specific instance is submitted it is discussed with the NCP as a whole. To handle
specific instances a Working Group is formed made up of a sub-set of the NCP membership
and the NCP Secretariat. The composition of the Working Group is decided by the NCP as
a whole, and usually consists of members with the relevant expertise in the issues raised in
the submission. The Working Group reviews the submission and supporting
documentation. The NCP Secretariat drafts the initial assessment in collaboration with the
Working Group, and makes recommendations to the broader NCP on the specific instance.
The Terms of Reference provide that at each step of the process, decisions rest with the
entire NCP and decisions are based on consensus. Where consensus cannot be reached, the
majority prevails. According to the NCP reaching decisions based on consensus has not
been an issue for the NCP in the past. However, it has noted that co-ordinating such a large
body at times poses challenges.
The NCP meets face to face on average every two months. A quorum, namely four separate
member departments, is required to make any decisions and for meetings to take place.
Conference calls are also held as needed and the NCP Secretariat and members
communicate via email on an ongoing basis.
Neither GAC senior management (other than the Chair) nor the Minister of International
Trade is involved with NCP processes and decision making on specific instances. As noted
all decisions rest with the NCP as a whole.
During the on-site visit stakeholders did not seem sufficiently aware of the active role of
NCP members from other departments (outside of TCS) in the activities of the NCP. For
example, stakeholders did not seem to be aware of the role that members of the NCP play
in decision-making with respect to specific instances or other activities of the NCP,
although the terms of reference for the NCP are clear on this point and the composition of
the NCP is clearly noted on its website. In this respect the NCP should explore additional
ways to ensure that the role of NCP members is understood by parties to specific instances
and the broader public. For example, mentioning the involvement of relevant NCP
members in final statements of specific instances or publicising the structure of the NCP
and the role of its members within the NCP Procedures Guide for specific instances may
be ways of achieving this.
NCP advisory bodies
At the time of peer review there was no formal advisory body to the NCP. However the
NCP has specific non-governmental social partners: the Canadian Chamber of Commerce,
the Canadian Labour Congress, and the Confédération des syndicats nationaux. The social
partners are not part of the official institutional arrangements of the NCP. Social partners
lead Canada’s engagement with two of the OECD institutional partners, namely the
Business and Industry Advisory Committee (BIAC) and the Trade Union Advisory
Committee (TUAC).
The social partners meet with the NCP at least once a year and are informed of NCP
activities. They also participate in NCP annual stakeholder sessions and share their views
with the NCP. The NCP consults with its social partners for their advice and expertise in
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advancing promotional outreach and the NCP effectiveness in general. The social partners
have held events with the participation of the NCP.
The trade union social partners noted that engagement with the NCP has not been strong
and that annual meetings have not been regularly scheduled. Additionally it was noted by
various stakeholders that civil society should also be a Social Partner to the NCP.
Stakeholders also noted that a lack of formal involvement of external stakeholders in the
governance of the NCP contributes to the perception of lack impartiality with respect to
the NCP and signalled support for a formal advisory body to the NCP. Civil society and
trade union stakeholders noted that ideally such a body would function as a steering
committee which could review procedural aspects of specific instance handling, similar to
the Steering Board in place at the United Kingdom’s NCP.
The NCP noted that it is looking to strengthen relationships with its social partners and that
it foresees a role for a new multi-stakeholder advisory group for the NCP.
Currently an advisory body is being developed to support advice to the Canadian
government on strengthening Canada’s responsible business approach, including
recommendations based on global trends and procedures for the Ombudsperson for
Responsible Enterprise (CORE). It was noted that a sub-group may be drawn from this
advisory body to support the work of the NCP. Some stakeholders noted that it will be
important for the NCP to have its own discrete group to support its work, particularly as
the mandate for the advisory body for the Ombudsperson is currently envisioned to focus
on providing strategic guidance on policy approaches to human rights and business within
the government of Canada. Appointments to the new advisory body are being made at a
ministerial level based on consultation with various stakeholders.
10
The NCP is still considering what the role of social partners could be once a new advisory
group is created, and whether they can continue to serve a role in addition to and/or separate
from the advisory group. The NCP has noted that currently it envisions the role of the future
advisory group to be advisory in nature, meaning members would be informed of specific
instances and NCP activities but will not have oversight or decision making power.
The NCP should consult with its social partners and other stakeholders in connection to
creating a new Advisory Body to ensure that it is representative and effective in mitigating
perceptions of a lack of impartiality. If the advisory members are drawn from another body
the NCP should ensure that they have a clear and appropriate mandate with respect to their
role vis-a-vis the NCP.
Institutional memory
The NCP has strong institutional memory as several members have been in the role for a
significant period of time. For example the current senior policy representative from
NRCan has been a member of the NCP since its inception as an inter-departmental
committee in 2000. The Secretariat senior officer at the time of the peer review had been
the representative for Environment and Climate Change Canada on the NCP between 2012
and 2016. Furthermore strong policy coherence on RBC issues within the Canadian
government has allowed for continued exchanges with previous NCP Chairs and
10
Since the on-site visit of the peer review team this advisory body has been established. See
http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-
autre/advisory_body-groupe_consultatif.aspx?lang=eng
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Secretariat members and phased transitions of Chairs and Secretariat members have
allowed for a smooth transfer of expertise.
The NCP also maintains a dedicated database of information in a standardised format for
easy reference. Adequate document management processes are also in place to protect
confidential information. Documents related to NCP specific instances, such as Requests
for Reviews, Initial Assessments, Final Statements, and all correspondence with parties are
kept in both electronic and paper formats.
Resources
Human and financial resources are made available to the NCP Secretariat by the
International Business Development and Chief Trade Commissioner branch of GAC, in
order to support the NCP in carrying out its mandate, including the procurement of
professional mediators.
In May 2017, human resources for the NCP Secretariat were increased from one to two full
time staff officers. There is no discrete budget line for NCP activities, rather resources are
allocated on an ad-hoc basis. The NCP has noted that in general sufficient resources are
available to execute its mandate. However a challenge noted by the NCP is to balance the
number and unpredictable nature of specific instances with the need for resource
commitments for promotion of the NCP and the Guidelines, and other activities.
Considering the global economic presence of Canadian MNEs, and in order to respond to
an increasing case load a larger NCP team would be appropriate and should be considered.
Reporting
The NCP reports annually to the OECD Investment Committee. The NCP has published its
annual report online since 2011. In 2016, the NCP developed a more user friendly annual
report which was written in a narrative style more accessible to a broader audience.
There are no formal reporting requirements within the government on the activities of the
NCP. The NCP does not officially report to Parliament, but the NCP Secretariat and NCP
members provide, as needed, information on NCP activities and on the outcomes of specific
instances to their respective ministers. Systematically informing ministers about the
outcomes of specific instances could help to raise their profile and increase the visibility of
the NCP at the level of the government. Similarly the NCP should use its annual report to
promote its work and activities across the federal and provincial governments and the
parliament. This would help to demonstrate accountability and support requests for
additional budget or staff.
Canadian Ombudsperson for Responsible Enterprise (Ombudsperson)
In January 2018, the creation of a Canadian Ombudsperson for Responsible Enterprise
(CORE) was announced by GAC. The mandate of the Ombudsperson will be to address
complaints related to allegations of human rights abuses arising from activities of Canadian
companies abroad operating in the extractive (mining, oil and gas) and garment sectors.
Additionally the Ombudsperson will be empowered to undertake collaborative and
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independent fact-finding, make recommendations, monitor the implementation of those
recommendations, and report publicly throughout the process.
11
According to GAC, the Ombudsperson will focus on investigations, informal resolution of
disputes and on making public recommendations. The roles of the Canadian NCP and the
new Ombudsperson will be complementary, whereby the Ombudsperson may refer cases
to the NCP for formal mediation, where appropriate, and where parties are in agreement.
12
Since 2000, the majority of specific instances submitted to the NCP have raised issues
related to the extractive sector (84%) and since 2011 the extractive sector accounted for
over half of all specific instances (54%). As such the mandate of the Ombudsperson
overlaps somewhat with that of the NCP, as a result the Ombudsperson may represent a
competing venue for grievances on business and human rights. This may cause confusion
amongst stakeholders; this concern was raised by many business stakeholders participating
in the peer review. In this respect, in establishing the Ombudsperson office, steps should
be taken to ensure potential synergies with the NCP are identified and potential duplication
with the NCP mandate is mitigated. Institutional arrangements for the two bodies should
be coordinated. Policy development for creation of the Ombudsperson will be established
under the direction of the Director General of Trade Portfolio Strategy and Coordination
at GAC, who also serves as the Chair of the NCP and as such there is an opportunity to
ensure coherence and synergies amongst the two bodies.
Findings
Recommendations
1.1
Stakeholders did not seem sufficiently
aware of the active role of NCP members
drawn from other departments (outside of
the Trade Commissioner Service) in the
activities and decision making of the NCP.
The NCP should explore additional ways to ensure that the role of NCP
members is understood by parties to specific instances and the broader
public. For example, mentioning the involvement of relevant NCP
members in final statements of specific instances or publicising the
structure of the NCP and the role of its members within the NCP
Procedures Guide for specific instances may be ways of achieving this.
1.2
A lack of formal involvement of social
partners and external stakeholders in the
NCP’s governance arrangements
contributes to the perception of lack
impartiality with respect to the NCP.
The NCP should consult with its social partners and other stakeholders
in connection to creating a new Advisory Body for the NCP to ensure
that it is representative and effective in mitigating perceptions of a lack
of impartiality. If the advisory members are drawn from another body the
NCP should ensure that they have a clear and appropriate mandate with
respect to their role vis-a-vis the NCP.
1.3
A challenge noted by the NCP is to
balance the number and unpredictable
nature of specific instances with the need
for planned resource commitments for
promotion of the NCP and the Guidelines,
and other activities.
Considering the global economic presence of Canadian MNEs and in
order to respond to an increasing case load, a larger NCP team would
be appropriate and should be considered.
1.4
There are no formal reporting
requirements within the government on
the activities of the NCP.
The NCP should use its annual report to promote its work and activities
across the federal and provincial governments and the parliament. This
would help to demonstrate accountability and support requests for
additional budget or staff.
1.5
The mandate of the Ombudsperson
overlaps somewhat with that of the NCP,
as a result the Ombudsperson may
represent a competing venue for
grievances on business and human rights.
In establishing the Ombudsperson office, steps should be taken to
ensure potential synergies with the NCP are identified and potential
duplication with the NCP mandate is mitigated. Institutional
arrangements for the two bodies should be coordinated.
11
Global Affairs Canada website, Responsible business conduct abroad – Questions and answers
(Accessed 20 March, 2019) http://www.international.gc.ca/trade-agreements-accords-
commerciaux/topics-domaines/other-
autre/faq.aspx?lang=eng&_ga=2.114213760.642214138.1516213298-286120068.1454362702
12
Id.
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5. Promotion of the Guidelines
Promotional Plan
The NCP engages in promotion through engagement with various stakeholders internal and
external to the government of Canada. The NCP has developed a detailed promotion plan
for 2018 specifying outreach activities targeting:
Civil society organisations/labour/business
Academics/students/legal community
Global Affairs Canada’s missions abroad and Federal /Provincial Government
officials
Many stakeholders participating in the onsite visit supported the level of detail and
ambition in the promotional plan and recognised that their feedback had been well
integrated in the plan. The NCP noted that the current promotional plan may be overly
ambitious in relation to available resources and may have to be implemented over a longer
time period.
Some stakeholders, particularly business, have noted that additional promotion with respect
to the recommendations of the Guidelines would be useful. Additionally, currently civil
society and trade unions have a low level of trust in the NCP and the specific instance
mechanism. Some of this distrust is rooted in legacy issues and misunderstandings and has
led certain stakeholders, including certain social partners, to stop the promotion of the
specific instance mechanism for dispute resolution. Civil society organisations, and NGOs
in particular, do not seem very aware of the potential benefits of using the NCP’s procedure
for specific instances. In this respect the NCP should develop a strategy for repairing
relationships with civil society and trade unions as part of its promotional activities. The
NCP is encouraged to continue its work with NGOs with a view to establishing a regular
dialogue so as to improve their confidence in the NCP’s specific instance mechanism. This
may include increased promotional efforts and outreach with these communities and
establishing more regular meetings with social partners and NGOs.
Information and Promotional materials
The NCP has been publishing annual reports since 2016 to promote its activities.
As part of the 2014 review of Canada’s 2009 CSR Strategy for the Canadian International
Extractive Sector, the government commissioned a two-part survey in 2012 and 2013 of
Canadian extractive sector companies to assess the level of awareness of the Strategy, the
Guidelines and other CSR standards, and their implementation by businesses. The survey
indicated that in 2012, 26% of surveyed extractive sector companies were aware of the
Guidelines, and this increased to 41% in 2013. In 2012, 6% of companies indicated that
they were following the Guidelines, a percentage that increased to 26% in 2013.
13
13
An official evaluation of the CSR Strategy was also conducted, and the summary of this
evaluation is available at: http://www.international.gc.ca/gac-
amc/publications/evaluation/2014/seccsrscies-essrsesecpe.aspx?lang=eng.
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The NCP is also in the process of developing additional promotional material to raise
awareness of the Guidelines and NCP mechanism including:
Development of a new NCP Brochure
Standing banner
Video for GAC internal wiki
The NCP has also made efforts to improve visibility through updates to its website.
Website
The NCP maintains a bilingual (English and French) publicly accessible website available
at (ncp-pcn.gc.ca). The website includes:
An overview of the Guidelines
Links to the OECD due diligence guidance documents
An explanation of the NCP and a link to the Procedures Guide for specific instances
Annual reports of the NCP
Final Statements of specific instances
Summaries of annual NCP stakeholder sessions
Contact information with respect to NCP social partners for the Guidelines
The website was upgraded in late 2017 with the objective of improving user-friendliness
and accessibility of information. For example, a new infographic explaining the NCP
specific instance process was developed. The NCP has also begun to include information
on ongoing NCP specific instances on the website. Going forward the status of specific
instances will be regularly updated at each stage of the process.
Between May 2016 and May 2017, the main page was accessed by over 2,700 different
users. Over the same period, over 400 users viewed the NCP Procedures Guide and over
300 viewed the 2015 Annual Report.
Stakeholders participating in the peer review noted appreciation for the updates to the
website. The changes made were recognised as useful to promoting increased transparency.
Promotional events
The NCP engages in activities, such as seminars, information sessions, speaking
engagements, and events at international conferences, to promote the Guidelines and raise
awareness of the NCP’s role. In 2017 the NCP organised 6 promotional events. There is
also a GAC CSR fund of 250,000 CAD a year which has been operating since 2009 and
has been used by many initiatives globally to promote CSR, the Guidelines and the NCP.
In 2017, 59 initiatives on CSR were led or supported by 37 Canadian missions in Latin
America, the Caribbean, Asia, Africa and Europe.
Since 2013, the NCP has organised an annual stakeholder information session. The 2016
annual meeting focused on due diligence in global supply chains and had over 50
participants from various stakeholder groups.
In 2017 the NCP developed a partnership with the Global Compact Network of Canada to
promote the Guidelines and the sectoral due diligence guidance among Canadian
businesses. A key objective of the partnership was to develop a user-friendly manual of the
Guidelines to support Canadian business in all sectors in the implementation of the OECD
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Guidelines and the various sectoral guidance tools. The e-handbook was launched in April
2018 and has since seen over 700 downloads from over 25 countries.
The NCP members each promote the Guidelines via outreach initiatives targeted to engage
members of their own networks, programs and consultative activities. The websites of
NRCan, ESDC and ISED include a reference to the Guidelines and the NCP and links to
the official NCP website. Members of the NCP also promote the NCP and the Guidelines
informally when meeting with stakeholders and formally through presentations on RBC at
a variety of events, such as the Intergovernmental Forum on Mining, Minerals, Metals and
Sustainable Development (IGF).
Promotion of policy coherence
The government of Canada has a strong landscape of RBC policy and has been active in
building policy coherence on these themes. Some of the leading initiatives are described in
more detail below.
Canada’s CSR Strategy
The NCP is a key pillar of Canada’s CSR Strategy (Doing Business the Canadian Way: A
Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector
Abroad).
This strategy was first introduced in 2009 and updated in 2014. It provides that the Office
of the Extractive Sector CSR Counsellor is mandated to promote corporate social
responsibility and engage in early interventions to prevent the escalation of local conflicts
associated with Canadian extractive industry operations abroad. The CSR Counsellor can
also refer stakeholders to the NCP for formal mediation. The CSR Counsellor’s website
includes a link to the NCP’s website and a reference to the OECD Due Diligence Guidance
for Meaningful Stakeholder Engagement in the Extractive Sector. The mandate of the CSR
Counsellor ends in the summer of 2018 and the functions will be taken over by the
Ombudsperson. The CSR strategy is due to be renewed in 2019 and in this context
additional thinking is being done on how to enhance coherence on CSR.
Canada does not yet have a National Action Plan on Business and Human Rights (or
Responsible Business Conduct). Strategies on how to bring together various related
existing initiatives and engage stakeholders constructively are being considered before
launching such a process.
Investment and trade policy
The work of the NCP is part of a larger progressive trade agenda in Canada. The GAC
division responsible for investment, trade policy and negotiations is the lead on Canada’s
engagement with the OECD Investment Committee. They have contributed to the inclusion
of references to RBC, the Guidelines and the NCP in Canada’s trade policy and Free Trade
Agreements (FTAs). For example, the Canadian-European Union Comprehensive
Economic and Trade Agreement (CETA) and the Canada/Chile FTA have specific
language on the Guidelines and the NCP mechanism. Many other FTAs and bilateral
Foreign Investment Promotion and Protection Agreements (FIPAs) signed by Canada
include RBC provisions. Canada was the first country to include references to RBC in
investment treaties.
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The TCS is responsible for diplomats based in 160 countries who engage with business
aboard. It provides training to diplomats on RBC issues and guidance on raising issues if
Canadian companies are not acting responsibly abroad. Furthermore companies who wish
to receive trade advocacy services are required to sign an Integrity Declaration. Since 18
November 2016, the GAC Trade Commissioner Service’s Integrity Declaration includes a
reference to the Guidelines and commitment to engaging constructively with an NCP
(Canada’s NCP or another NCP). Between November 2016 and December 2017, over 550
companies/private sector officials have signed the Integrity Declaration.
The NCP Secretariat participates periodically in GAC training on the Guidelines and the
NCP to trade commissioners and diplomats prior to their deployment abroad, as well as to
personnel in headquarters. The government further promotes, on an ongoing basis, the use
of the Guidelines by Canadian companies in their international business operations through
the TCS, which interacts heavily with Canada’s network of embassies, high commissions
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 RBC standards including the NCP and other local NCPs
(especially in Latin America).
Withdrawal of trade advocacy and financial support
Starting in late 2014, access to trade advocacy and financial support in foreign markets has
been made contingent on Canadian companies operating responsibly and engaging in good
faith and constructively with the Canadian NCP, any other NCP or the Office of the CSR
Counsellor for the Extractive Sector. If an issue is raised and a Canadian company chooses
not to engage with the Counsellor, or to not engage in good faith with an NCP, it can be
recommended that the company be denied access to trade advocacy and financial support.
This process is colloquially referred to as the ‘sanction.’
Importantly, the decision to withdraw support rests with the TCS, which can receive
recommendations from the NCP. The NCP can also recommend that support be withdrawn
in follow up situations where agreements developed in the course of a specific instance are
not implemented, although it has not yet been invoked for this reason. The NCP has
provoked the application of the sanction once
14
.
The decision to withdraw such services is communicated across Canadian foreign missions,
other government departments and other (provincial/territorial) levels of government. As
such, this mechanism has had multiplier effects. For example, in one instance where the
decision was taken to apply the sanction against a company for refusing to participate in a
specific instance, support was then also withdrawn by the provincial government of British
Columbia as well as the Prospectors and Developers Association of Canada (PDAC), a
leading mining industry association.
Non-participation or the lack of good faith participation with the NCP is also taken into
account in CSR-related evaluations and due diligence conducted by Export Development
Canada (EDC), Canada’s export credit agency, in its decision to provide financing or other
support. EDC promotes RBC principles and standards including the Guidelines, as
referenced on its website. The NCP regularly communicates with EDC and informs them
of new specific instances and sends them copies of Final Statements.
14
China Gold International Resources Corporation and Canada Tibet Committee (2014)
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Many stakeholders noted support for the mechanism by which trade advocacy and financial
support can be withheld if companies do not engage constructively and in good faith with
the NCP but demonstrated a lack of understanding of it and called for more transparency
with respect to its applicability. Many understood its scope to be quite limited and were not
sure how many times it had been applied in specific instances or under what circumstances
the NCP may decide to trigger it. As such the impact of the mechanism seems to be
underestimated by many stakeholders. Stakeholders also expressed a wish to better
understand when and under what circumstances a sanction may be lifted. As part of its
efforts to rebuild trust and promote engagement with the specific instance process, the NCP
should promote this mechanism and clearly communicate on its scope and application with
stakeholders and parties to specific instances.
Sustainable Development
Canada’s international development assistance also supports the implementation of
international standards and norms including the Guidelines. The GAC Departmental
Sustainable Development Strategy includes an RBC paragraph with a reference to the
Guidelines. The GAC (Development) Fiduciary Risk Evaluation Tool also includes such a
reference.
Public Procurement
The NCP is currently working with the department responsible for Public Sector
Procurement to ensure that appropriate references to the Guidelines and due diligence
guidances are included in the new Code of Conduct for Procurement. The department
already has a clear mandate to promote responsible purchasing. In this respect it is
considering incorporating government objectives into procurement contracts and
enhancing codes of conduct for suppliers to avoid forced labour or other labour abuses in
supply chains. Suppliers would have to demonstrate that they are seeking to respond to the
risks where present or risk termination of their contract with the government.
Currently, the public procurement agency of Canada is also looking at expanding the
sanction tool to public procurement. For example, companies may be disqualified from
government procurement contracts if they do not engage with the NCP or are deemed to
have not acted responsibly in some other way.
High level policy
The NCP feeds expertise on an ongoing basis into Canada’s position on files related to
RBC and CSR, including at the OECD Ministerial Council level, G7, G20 and the UN
Forum on Business and Human Rights. The NCP works to secure high level support
wherever possible for RBC, the Guidelines, and the promotion, integrity and strengthening
of the global NCP mechanism.
Proactive agenda
The NCP Secretariat catalysed the development of the OECD Due Diligence Guidance for
Meaningful Stakeholder Engagement in the Extractive Sector. It co-chaired the advisory
group for this guide with Norway. The NCP Secretariat has also actively participated in the
advisory groups established to steer the development of the Due Diligence Guidance for
Responsible Supply Chains in the Garment and Footwear sector, the report on Responsible
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Business Conduct for Institutional Investors, and the (General) Due Diligence Guidance
for Responsible Business Conduct.
Through its GAC Development representative, the NCP continues to engage in the OECD
program on conflict minerals. Canada co-facilitated the negotiation of the gold supplement
and has been actively engaged on the governance of the multi-stakeholder forum set up to
support the implementation program of the Guidance. In 2015, Canada chaired the OECD
Forum on Responsible Mineral Supply Chains.
Requests for information
In 2017, the NCP Secretariat received and addressed 14 requests for information: 10 from
civil society and individuals; 2 from companies and 2 from journalists. The NCP commits
to responding to information requests within a few working days.
Cooperation amongst NCPs
The NCP Secretariat has participated in three NCP peer reviews (Netherlands, Norway and
France) including the chairing of the Norwegian peer review. The NCP Secretariat has also
been active in peer learning events in the US, Israel, Hungary, Austria, Colombia and
Turkey. The NCP provided support to the Colombian NCP to establish their office in
2011-12, which included the sharing of best practices.
Findings
Recommendations
2.1
Many stakeholders noted support for the mechanism by which
trade advocacy and financial support can be withheld if companies
do not engage in good faith and constructively with the NCP (i.e.
the ‘sanction’) but demonstrated a lack understanding of it and
called for more transparency with respect to its applicability.
The NCP should promote the mechanism and
clearly communicate on its scope and
application with stakeholders and parties to
specific instances.
2.2
Civil society organisations, and NGOs in particular, do not seem
very aware of the potential benefits of using the NCP’s procedure
for specific instances.
The NCP is encouraged to continue its work
with NGOs with a view to establishing a regular
dialogue so as to improve their confidence in
the NCP’s specific instance mechanism.
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6. Specific instances
Overview
The NCP has handled 19 specific instances since 2000, 6 of which were filed in the last
two and a half years. The vast majority of specific instances handled by the NCP have
concerned the extractive sector (84%).
A total of 17 specific instances have been closed and 2 are in progress as of February 2018.
Out of the 17 closed specific instances 8 were not accepted for further examination and
good offices were offered in 9 specific instances. Mediation was undertaken in four specific
instances. Each of these resulted in either some agreement between the parties or changes
to company management systems and introduction of processes to protect against future
harms.
Rules of procedure
The NCP Procedures Guide, the rules of procedure for the specific instance process, was
modified in November 2017 to reflect practices that had been in place for a number of
years. Through these updates, the NCP sought to simplify and clarify the NCP specific
instance process. It also added expectations on good faith behaviour and confidentiality
(see below) and included an explanation of the trade advocacy related 'sanction' linked to
specific instances (see above).
Some stakeholders participating in the peer review noted that they were not consulted with
respect to the revisions and noted that some of the changes further underscore the
perception that the specific instance process is lacking in transparency, predictability and
impartiality.
Submission
Contact information for submitting specific instances can be found on the NCP website and
in the publicly available NCP Procedures Guide. The website has a dedicated page that
explains the procedure to submit a “Request for Review” (a submission) to the NCP. The
NCP is developing a template for submission to facilitate the process for submitters
(referred to as notifiers within the NCP’s Procedures Guide) and ensure the right
information is provided.
The NCP Procedures Guide provides that the following information should be provided in
a submission (this is duly reflected in the submission template developed by the NCP):
The notifier’s identity, including contact person, name of organisation and contact
details. Where a notifier is raising a matter on behalf of a number of organisations,
they should list all the organisations.
The notifier’s interest in the matter. For example, if a request for review of a
specific instance is being lodged on behalf of others (e.g., a union or local
community); the notifier lodging the request should outline their interest in this case
and mandate or reason for lodging the request.
The identity (name) and location of the multinational enterprise (MNE) (e.g.,
location of the MNE’s headquarters) whose actions or activities are the subject of
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the request for review. If the MNE is a subsidiary of another company, the names
of the corporate entities involved should be provided with a description of their
affiliation.
A description of the action or activity which the notifier lodging the request for
review believes constitutes non-observance of the Guidelines. The stakeholder
must provide any supporting documentation they may have (e.g., documents,
reports, studies, articles, witness statements, etc.). Unsubstantiated allegations are
not sufficient for the NCP to make an initial assessment.
The location(s) of the action or activity to which the specific instance relates.
The parts of the Guidelines (i.e., chapter(s) and paragraph(s)) which are considered
to be most relevant.
Information on any relevant laws or procedures and description of any potential
issue regarding compliance with these laws or procedures.
Background on whether the action or activity has been discussed with the MNE and
the results of such discussions.
A list of other fora where the same matter has been raised (e.g., other government
offices, agencies, NGOs, legal action in the court system, etc.) and the status of any
corresponding action that such offices may be taking.
A description of the action(s) the notifier lodging the request for review considers
the MNE should take to resolve the issues.
Any additional details that the entity lodging the request for review wishes to bring
to the attention of the NCP and/or the MNE.
The NCP Procedures Guide also note that submitters may request a meeting with the NCP
when making their submission. The NCP has noted that it will communicate with
submitters as necessary to ensure their submission is complete.
Stakeholders have noted that having a template for submission of specific instance is very
useful but that gathering the necessary information for a submission can be onerous. They
noted that small organisations may not have the necessary resources to make a submission.
Stakeholders have also requested that the online form be made available in Spanish to
further increase accessibility for submitters. On the other hand, one party to a specific
instance noted that the NCP should have applied a higher threshold of substantiation before
accepting the specific instance. The NCP has noted that it seeks to accept specific instances
where it believes it can have positive impact with regard to the issues raised and has made
efforts to simplify admissibility criteria in the latest version of its procedures (see below).
Initial assessment
The NCP Procedures Guide aligns with the Procedural Guidance in outlining admissibility
criteria for initial assessment, namely, it provides that:
In determining whether the issues raised merit further examination, the NCP will determine
whether the issues are bona fide and relevant to the implementation of the Guidelines. In
this context, the NCP will take into account:
the identity of the party concerned and its interest in the matter;
whether the issues are material and substantiated;
whether there seems to be a link between the enterprise’s activities and the issue
raised in the specific instance;
the relevance of applicable law and procedures, including court rulings;
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how similar issues have been, or are being, treated in other domestic or international
proceedings; and
whether the consideration of the specific issue would contribute to the purposes and
effectiveness of the Guidelines.
Prior to the 2017 revision of the Procedures Guide, two additional elements were
considered in the initial assessment:
“[T]he request(s) and solution(s) that the notifier(s) is seeking and whether these
are possible within the mandate of the NCP; and
What the notifier(s) have indicated about their willingness or unwillingness to
participate in a facilitated dialogue with a view to resolving the matter.”
15
Stakeholders participating in the peer review noted that these two criteria reduced the
accessibility of the NCP and many appeared unaware that they had been removed from the
latest Procedures Guide. According to the NCP although these criteria were only recently
removed in practice the NCP had long stopped using them to assess merit. The NCP also
removed the word “evidence” in the new version of the Procedures Guide to avoid the
implication that issues raised in complaints must be proven in order to be considered to
merit further examination by the NCP.
In making an initial assessment the NCP forms a Working Group comprised of some of its
members and the NCP Secretariat (see above). The NCP Working Group can include and
also consult other government experts as required (e.g. the Canadian Environmental
Assessment Agency, Office of Human Rights, Freedom and Inclusion at GAC). The NCP
Working Group can also conduct fact finding with the support of Canadian missions
abroad. For example, the Canadian embassy in Mongolia actively supported the NCP in a
case involving the operations of a Canadian mining company in Mongolia.
16
Additionally
the NCP working group engaged with the Chinese government and the China Chamber of
Commerce on promoting the Guidelines in the context of the China Gold specific
instance.
17
If the matter is considered by the NCP to merit further examination, the NCP will offer
good offices to help the parties involved resolve the issues. According to the NCP
Procedures Guide the NCP will draft an initial assessment report and circulate a draft to the
parties for comments but it is within the NCP’s discretion to decide whether to modify the
draft in response to comments. The NCP may also make publicly available its decision that
the issues raised merit further examination and its offer of good offices to the parties
involved but it does not publish initial assessments.
If the NCP does not offer mediation, it informs the parties of the reason for its decision and
moves to the drafting and publication of a Final Statement. (see below).
Out of the 17 closed specific instances, nine were accepted for further examination. Out of
the eight which were not accepted for further examination the following reasons were
provided:
15
Procedures Guide for Canada’s National Contact Point (pre-2017), provided by the NCP to the
review team during the on-site visit 15-16 February, 2018.
16
Centerra Gold Inc. and UMMRL et. al. (2012)
17
China Gold International Resources Corporation and Canada Tibet Committee (2014)
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The company in question was no longer operating in the country in question (i.e.
no longer linked to the impact).
18
Another venue was deemed more appropriate
19
or the issue was already being dealt
with in separate venue.
20
The issues were not likely to be resolved in mediation.
21
The issues were not material and/or substantiated.
22
Mediation would not have contributed to the purposes and effectiveness of the
Guidelines.
23
The company had complied with expectations under the Guidelines.
24
Some stakeholders participating in the peer review noted that the requirements for
substantiation were unclear and that the NCPs application of the initial assessment criteria
was onerous. In this respect stakeholders referenced various cases not accepted for further
examination at the initial assessment stage for reasons they believed to be outside the scope
of the initial assessment criteria.
25
Some stakeholders described one situation where a draft
initial assessment was issued accepting a specific instance for further examination and then
subsequently withdrawn and replaced with a different initial assessment not accepting the
specific instance for further examination.
26
The parties were not made aware of nor
consulted on the decision of the NCP to change the initial assessment and according to
stakeholders this incident was highly damaging to the transparency and predictability of
the process as well as to their trust in the NCP. Nearly a year later the final statement was
replaced again by a different version. Some stakeholders have said publicly that they are
concerned that the NCP has issued multiple versions of statements for this specific instance
in response to corporate pressure. See Box 1.
18
Kakanda Development Corporation and United Nations Panel of Experts on the Illegal
Exploitation of Natural Resources and Other Riches in the Democratic Republic of Congo (DRC)
(2002)
19
UPM Kymmene and Trade Union (2004)
20
BATA and Trade Union (2005)
21
Ivanhoe Mines Ltd. and Oyu Tolgoi Watch (2010)
22
Centerra Gold Inc. and UMMRL et. al. (2012); Corriente Resources International and FIDH
(2013)
23
Sakto Group and Bruno Manser Fund (2016)
24
The final statement notes that the company complied with law and engaged in stakeholder
engagement and carried out due diligence. Seabridge Gold and Southeast Alaska Conservation
Council (SEACC) (2016)
25
UPM Kymmene and Trade Union (2004) (not accepted for further examination on the basis that
labour issues fall under provincial jurisdiction); BATA and Trade Union (2005) (not accepted on
the basis of an ongoing parallel proceeding); Ivanhoe Mines and Oyu Tolgoi Watch (2010) (not
accepted as it found environmental assessments to be complete and of a high quality); Centerra Gold
Inc. and UMMRL et. al. (2012) (not accepted as found to be unsubstantiated).
26
Sakto Group and Bruno Manser Fund (2016)
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Box 1. “Sakto Group” and Bruno Manser Fund
On 11 January 2016, the NGO Bruno Manser Fund submitted a specific instance to the
NCP regarding the activities of the “Sakto Group”, a real estate investment company,
alleging that they had not observed the Disclosure chapter of the Guidelines.
On 26 October 2016, a draft initial assessment was shared confidentially with the “Sakto
Group” and Bruno Manser Fund. Several months later, on 21 March 2017 a new draft final
statement of one page was shared with “Sakto Group” and Bruno Manser Fund.
On 3 April 2017 Bruno Manser Fund published both documents and a press release. It was
then publicly known that the initial assessment of 26 October 2016 accepted the specific
instance for further examination – whereas the draft final statement dated 21 March 2017
did not accept the specific instance. The NGO called on the NCP to accept the case.
The NCP noted that publication of the initial assessment was a breach of its confidentiality
rules.
On 11 July 2017, a revised final statement of 9 pages was made public by the NCP. This
final statement noted that the NCP would not accept the case for further examination. It
also detailed the conduct of both the “Sakto Group” and Bruno Manser Fund throughout
the specific instance proceeding, explaining that an offer of good offices to the parties
would not contribute to the purposes and effectiveness of the Guidelines, and making
recommendations to both parties. The NCP also noted that it would consider the future
use of its sanction against the “Sakto Group” if relevant.
On 11 May 2018, the final statement of 11 July 2017 was replaced by the NCP by a revised
and shortened version. The statement notes it supersedes the original initial assessment
which was published in violation of the NCP’s confidentiality procedure, but does not
make mention of the prior final statement, officially published 11 July 2017. The 11 May
2018 final statement notes the breach of the confidentiality policy by Bruno Manser Fund
but does not comment on the conduct of the “Sakto Group”.
On the same date the Canadian Department of Justice sent letters to Bruno Manser Fund
as well as OECD Watch on behalf of the NCP requesting the original initial assessment be
taken offline.
Civil society stakeholders have expressed very strong disappointment in the handling of
this specific instance, and have underscored the lack of transparency, or predictability, and
perceived impartiality in the various versions of the statements.
The NCP has explained that in some of the specific instances it has not accepted for further
examination, it was not in a position to make an assessment on the issues raised in the
submission (e.g. on the quality of an environmental impact assessment). The NCP should
work with submitters to further substantiate their claims or reformulate submissions where
necessary to allow for them to be accepted for further examination. Additionally,
substantiation requirements and evidentiary thresholds should be clearly explained to
submitters in the NCP’s rules of procedure while ensuring accessibility.
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Good offices
The NCP Procedures Guide provides that the NCP may facilitate dialogue or mediation
itself or use external mediation or facilitation services to do so. If external services are used,
the NCP may observe the mediation or facilitated dialogue sessions.
27
The NCP has noted that when selecting an external mediator it will take into account factors
such as language, geography and social context. An external mediator was used in one
specific instance.
28
This specific instance involved the operations of Barrick Gold in Papua
New Guinea. In consultation with the parties, the NCP hired an Australia-based mediator
with a view to ensuring that local expertise was secured and that both parties were
comfortable with the mediator. Parties to the specific instance noted that the mediator
selected was very skilled and had a strong understanding of the local context. (See Box 2)
Box 6.2. Barrick and Porgera
In March 2011, the NCP received a submission from the NGOs Mining Watch Canada
(MWC), Porgera Special Mine Lease (SML) Landowners Association (PLoA), and Akali
Tange Association (ATA) alleging that Barrick Gold, a Canadian gold mining company,
had breached the general policies, disclosure, and environment provisions of the
Guidelines in Papua New Guinea.
The NCP accepted the specific instance for further examination and engaged with the
parties to organise a mediation process. In this respect the NCP closely consulted with the
parties to identify an external mediator which both parties felt comfortable with, developed
a mediation agreement and contributed to organising two mediation sessions in Sydney,
Australia. The mediation took place between 5 June 2012 and 30 June 2013.
The parties to the specific instance expressed a high degree of satisfaction with the
mediator to the specific instance and noted that it was an important opportunity to engage
in direct dialogue. However one of the parties noted that the mediator selection process
was unreasonably long and that this had negative consequences for the submitter.
Submitters of the complaint noted that having to travel to Sydney on their own expense for
the mediation limited the accessibility of the mechanism.
Through this mediation process the parties addressed a number of issues which resulted in
an Agreed Action Items list, dated 24 May 2013. This list covered multiple issues, but did
not address all of the subjects listed in the request for review given that agreement on all
of the topics was not reached during mediation.
Some of the initial submitters withdrew from the specific instance process due to
disagreement with demands for confidentiality from the company. Some parties noted that
the NCP could have been more active in resolving this issue and clarifying the
confidentiality policy for the procedure as well as in explaining what happened with respect
to this issue in the final statement for this specific instance.
27
NCP Procedures Guide, para 11.3.
28
Barrick Gold Asia-Pacific and Mining Watch Canada (MWC) (2011)
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Many stakeholders and parties to specific instances noted a preference for the use of
external mediators. Some noted that it was unclear based on the NCP Procedures Guide
when external mediation may be available. In the one case where mediation was led by the
NCP the parties noted that the NCP was very professional and devoted a lot of time and
attention to engaging the parties in dialogue. However one of the parties noted that they
would have preferred to have worked with an external mediator.
The NCP has noted that it is looking to use external mediators more frequently. It is
currently discussing the development of a memorandum of understanding (MOU) with the
Federal Mediation and Conciliation Service (FMCS) of the federal Labour Program of
Employment and Social Development Canada (ESDC). This department has a pool of
professional mediators who mediate disputes under the Canada Labour Code for the
federally regulated private sector. In order to promote predictability and to mitigate
perceptions of lack of impartiality within certain stakeholder groups, the NCP could
consider systematically offering the option of external mediation to parties to the specific
instance.
NCP has also developed Terms of Reference templates for mediation which also include
expectations around confidentiality. Parties, the NCP, and if relevant the mediator, are
asked to sign Terms of Reference prior to the start of the dialogue or mediation.
In addition, in preparation for mediation the NCP and/or the mediator generally engage the
parties separately in bilateral calls to set expectations and gauge any prospects for an
agreement. The NCP notes that it has found it useful to ask both parties to provide a
submission in writing stating their expected outcomes/objectives from the dialogue or
mediation process. This information is shared with the other party in a spirit of
transparency.
Out of the 17 closed specific instances handled by the NCP nine were accepted for further
examination. Out of these:
In four specific instances no mediation took place due to lack of willingness to
participate in mediation by at least one of the parties.
29
In one specific instance mediation was not offered as it would not facilitate
resolution of the issues, however the NCP is continuing to engage with the parties
to promote the resolution of the issue.
30
In four specific instances mediation was conducted.
31
Out of these:
o In two specific instance agreement was reached by the parties
32
29
Ivanhoe Mines Ltd. and Canadian Labour Congress in Burma (2002); Ascendant Copper
Corporation and Mining Watch Canada et. al. (2005); Goldcorp and Frente de Defensa San
Miguelense (FREDEMI) et al. (2009); China Gold International Resources Corporation and Canada
Tibet Committee (2014)
30
Banro Corporation and Former employees of the Société Minière et Industrielle du Kivu
(SOMINKI) (2016)
31
First Quantum Minerals Ltd and Oxfam Canada (2001); Anvil Mining and Coalition of NGOs
(2005); Barrick Gold Asia-Pacific and Mining Watch Canada (MWC) (2011); Endeavour Mining
Corporation (2015)
32
First Quantum Minerals Ltd and Oxfam Canada (2001); Barrick Gold Asia-Pacific and Mining
Watch Canada (MWC) (2011)
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o In one specific instance the procedure was concluded with agreement for parties
to continue engagement directly.
33
o In one specific instance the procedure was concluded without agreement by the
parties but with some commitments and policy changes by the company.
34
Parties to specific instances which were accepted for further examination noted various
experiences with the process. Some noted that the staff of the NCP was helpful and skilled
in handling the procedure and clearly and accurately explained the process. Others felt the
process was unpredictable particularly with regard to timelines. In a recent specific instance
the parties recognised that the NCP has demonstrated a high degree of professionalism and
invested a high level of effort in trying to promote positive outcomes through the dialogue
or other means. (See Boxes 3 and 4)
Box 3. Endeavour Mining and Labour Union
On 19 May 2015, the NCP received a submission from a labour union alleging that
Endeavour Mining, a Canadian Multinational Enterprise, improperly dismissed unionised
employees and did not have adequate health and safety systems in place to protect some
employees from exposure to harmful metals.
The NCP accepted the specific instance for further examination and offered to facilitate
dialogue between the parties. An NCP-facilitated dialogue took place between September
2016 and March 2017 through video-conferencing. The NCP itself led the mediation
between the parties.
While the dialogue did not result in a mutually agreeable solution between both parties as
such, 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. Some of these
actions were implemented proactively during the dialogue. The NCP made a series of
recommendations to Endeavour and asked that Endeavour report in writing to the Canadian
NCP by 1 July 2018 on: 1) its efforts to implement the NCP recommendations; and 2) how
it has addressed and followed up on all the specific commitments the company made during
the NCP dialogue. The NCP intends to issue a follow-up statement to reflect the company’s
actions and responses, as appropriate.
Both parties to the specific instance noted that the NCP was highly professional and
organised in handling the specific instance and recognised the high level of time and energy
spent on fostering dialogue. They also noted that the NCP acted impartially and equitable
throughout the process.
33
Anvil Mining and Coalition of NGOs (2005)
34
Endeavour Mining Corporation (2015)
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Reporting on specific instances
Initial assessments
If the NCP offers dialogue or mediation, it typically drafts an internal Initial Assessment
document which is shared with parties for comment but is not published. The Initial
Assessment can also take the form of a letter to the parties with the offer of good offices.
The language from the Initial Assessment will generally be used in the Final Statement.
Some stakeholders have noted that the NCP’s policy of not publishing the initial assessment
contributes to a lack of transparency with respect to the process. The NCP has stated that
it plans to begin publishing status updates on specific instances on its website. In this
respect the NCP should consider publishing initial assessment to further rebuild trust and
enhance transparency.
Some submitters of specific instances noted that language of initial assessment by the NCP
undermined the position of the submitter by implying there was no breach of the Guidelines
by the company or that the claims raised in a submission were without merit. The NCP
should be clear that a decision not to accept a specific instance for further examination
should not in principle be equated with a determination on the merits of the issues raised in
the submission. In one case the final statement included language admonishing the
submitter for breaching the confidentiality policy of the NCP and noting they would have
to demonstrate their commitment to honour confidentiality before the NCP would consider
another submission from them.
35
Final statements
The NCP Procedures Guide provides that the NCP consults both parties on the draft Final
Statement for verification of facts however it has the discretion to decide whether or not to
include comments from parties in the final version.
In line with the Procedural Guidance, the NCP Procedures Guide also provides that Final
Statements may identify the parties concerned, the date on which the issue(s) were raised
with the NCP, and any other observations the NCP deems appropriate. Furthermore, if the
NCP determines that parties do not engage in good faith, consequences can be applied
through the sanction and will be reflected in the Final Statement.
The NCP publishes Final Statements on its website. Final statements or summaries for
specific instances handled prior to 2011 have been published for all specific instances
handled by the NCP. Recommendations were included in 11 of the 17 published specific
instances. An explicit determination was included in one specific instance
36
and an
assessment of company conduct was included in several others.
The NCP has been making efforts to develop detailed and thorough final statements which
include analysis and support of its decisions. This is a positive step towards maximizing
transparency and demonstrating impartiality.
35
Sakto Group and Bruno Manser Fund (2016)
36
China Gold International Resources Corporation and Canada Tibet Committee (2014)
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Follow-up
The NCP Procedures Guide provides that the NCP may request parties to report back to the
NCP on their response to recommendations made by the NCP and the implementation of
any agreement or commitments parties might have made during the proceedings. It notes
that the Final Statement will indicate the timeframe for reporting back and that the NCP
may issue a follow-up statement.
The NCP has noted that while active follow up has not been standard practice in specific
instances, it is now taking steps to do so.
Recently, the NCP initiated follow up on its recommendations and requests included in a
Final Statement on a specific instance involving Banro’s activities in the Democratic
Republic of the Congo. (See Box 4) The NCP also made recommendations to the
Endeavour mining company in a specific instance it recently concluded and is asking for a
follow-up submission by the company in 2018, after which the NCP will publish a follow
up statement. (See Box 3)
Follow up activities have been welcomed by stakeholders and are broadly recognised as a
useful tool for strengthening the impact of the specific instance mechanism. Publishing
follow up statements can also serve as an additional tool for applying leverage to encourage
the implementation of agreements between parties. The NCP has noted that it plans to
publish follow up statements more systematically.
Box 4. Banro and former Banro employees in the Democratic Republic of the Congo
On 26 February 2016, a specific instance was submitted to the NCP by a group of five
former employees of the Société Minière et Industrielle du Kivu (SOMINKI)) alleging that
Banro Corporation had not observed the Guidelines in its operations in the DRC. More
specifically, the submitters claimed that Banro failed to settle the final accounts of 4,987
former employees of SOMINKI following the creation of SAKIMA SARL (93% owned
by Banro) in 1997 and transfer of SOMINKI’s mining assets, namely, mining titles to
SAKIMA.
The NCP concluded that the question of the liquidation of SOMINKI and the question of
the payment of the final accounts of the ex-employees merited further examination.
However it also concluded that offering facilitated dialogue only between Banro and the
submitters without the presence of other key actors in the liquidation process (in particular
the Government of DRC and the Liquidation Committee) would not facilitate the
completion of the liquidation of SOMINKI.
In May 2017, the NCP released a final statement requesting that the company take action,
in good faith, to reactivate the liquidation process. The NCP also asked that the company
provide two written updates to the NCP 3 months and 6 months after the publication of the
final statement. The NCP also recommended that Banro endorse and implement the OECD
Guidelines and the OECD Due Diligence for Meaningful Stakeholder Engagement in the
Extractive Sector.
The parties to this specific instance noted that the NCP clearly explained the process and
has been active in handling the specific instance in an efficient and professional manner.
The NCP is continuing to monitor the issue and intends to issue a follow-up statement to
reflect the company’s actions and responses, as appropriate, to the NCP’s requests.
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Timeliness
The NCP Procedures Guide provides indicative timelines in line with the Procedural
Guidance. Namely:
Stage 1 – From receipt of the request for review to the Initial Assessment (indicative
timeframe: 3 months).
Stage 2 – From the Initial Assessment to the conclusion of the facilitated dialogue or
mediation (indicative timeframe: 6 months).
Stage 3 – Drafting and publication of the Final Statement (indicative timeframe: 3 months).
It also notes that due to unforeseen circumstances beyond the control of the NCP, flexibility
may be required on a case by case basis and various stages may take longer than anticipated.
Out of the 17 specific instances handled by the NCP initial assessment was concluded
within approximately three months in one specific instance
37
and exceeded three months in
13 specific instances. Out of these 13 specific instances, initial assessment took over a year
in four specific instances
38
. Data on the length of initial assessments is not available for
three specific instances.
39
Out of the 9 specific instances accepted for further examination three were concluded
within a year,
40
and six were concluded in over a year.
41
Out of these one case took three
years
42
and one took two years and nine months.
43
According to the NCP it recently managed five concurrent specific instances, which led to
a situation where the NCP was unable to meet the indicative timelines and where members
of the NCP from other departments assisted as needed in the work of the NCP Secretariat.
Some parties to the specific instance procedure raised issues with the delays in certain cases.
For example, in one specific instance parties noted that the process of selecting a mediator took
over 9 months, significantly delaying the process. Delays in procedures are a common
challenge amongst NCPs and in some situations can be attributed to time needed to sufficiently
engage with parties, receive feedback or organise logistics related to transnational mediations.
The NCP should provide explanations to parties where indicative timeframes cannot be
respected to help to mitigate threats to the predictability and transparency of the process.
37
Anvil Mining and Coalition of NGOs (2005)
38
Kakanda Development Corporation and United Nations Panel of Experts (2002); Corriente
Resources and FIDH) (2013); Bruno Manser Fund (2016); Banro Corporation Former
employees of the Société Minière et Industrielle du Kivu (SOMINKI) (2016);
39
First Quantum Minerals Ltd and Oxfam Canada (2001); Ivanhoe Mines Ltd. and Canadian Labour
Congress in Burma (2002); Ascendant Copper Corporation and Mining Watch Canada (2005)
40
First Quantum Minerals Ltd and Oxfam Canada (2001); Ascendant Copper Corporation and
Mining Watch Canada (2005); Anvil Mining and Coalition of NGOs (2005)
41
Ivanhoe Mines Ltd. and Canadian Labour Congress in Burma (2002); Goldcorp and Frente de
Defensa San Miguelense (2009); Barrick Gold and Mining Watch Canada (MWC) (2011); China
Gold International Resources Corporation and Canada Tibet Committee (2014); Endeavour Mining
Corporation (2015); Banro Corporation and Former employees of the Société Minière et Industrielle
du Kivu (SOMINKI) (2016)
42
Ivanhoe Mines Ltd. and Canadian Labour Congress in Burma (2002)
43
Barrick Gold and Mining Watch Canada (MWC) (2011)
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Confidentiality and transparency
Under the NCP Procedures Guide, the NCP will generally share all relevant information
that it receives from one party to a specific instance with the other party. The NCP may
determine not to share certain information with the other party if it has been requested by
a party with corresponding rationale.
Submitters must also state that they are aware of and consent to the fact that all information
they provide to the NCP may be shared with the other party.
In line with the Procedural Guidance, the NCP Procedures Guide also notes that in order to
facilitate resolution of the issues raised, the NCP will take appropriate steps to protect
sensitive business and other personal information, such as the identity of the individuals
involved. During an NCP process, confidentiality of the proceedings will be maintained,
including the facts and arguments brought forward by the parties. At the conclusion of the
process, if the parties involved in facilitated dialogue or mediation have not agreed on a
resolution, they are free to communicate about and discuss the issues. However,
information and views provided during the proceedings by another party involved will
remain confidential, unless that other party agrees to their disclosure.
According to the NCP some assurance of confidentiality is necessary during the initial
assessment phase as information may be being exchanged during this phase of the process.
The NCP notes that submitters are free to publish their submissions and that this does not
contravene the confidentiality policy.
The NCP has noted that it regularly encourages both sides to share information with one another
to the extent possible to promote transparency and equitability. Some stakeholders noted
occasions where they felt that the NCP did not sufficiently share information amongst the
parties and noted that where information is used as the basis of a decision of the NCP it should
be shared with both parties. The NCP should share information that is used to make a decision
amongst parties to the extent possible. In this respect where valid confidentiality concerns exist
with respect to information which is used as the basis of a decision of the NCP certain
approaches such as redacting, summarising, or anonymising information, may be useful.
Good faith participation
The NCP Procedural Guide notes that the NCP expects all parties to a specific instance to
participate in good faith in the entire proceedings. Good faith is described as responding in
a timely fashion, maintaining confidentiality, not misrepresenting the process, not
threatening or taking reprisals against parties involved in the procedure, and genuinely
engaging in the procedures with a view to finding a solution to the issues raised.
Furthermore, it is noted that behaviours such as breaching confidentiality or issuing threats,
on the part of either party, will lead to the NCP putting an end to the process.
Additionally in the 2017 version of the NCP Procedural Guide new provisions were added
which note that undertaking public campaigns related to a specific instance during the
proceedings or disseminating NCP documents such as the NCP initial assessment or draft
versions of the NCP Final Statement is not considered good faith behaviour and may
constitute a confidentiality breach.
According to the NCP the new provisions do not constitute an outright ban on campaigning.
The NCP notes that there is no strict definition of what may be considered “campaigning”
and that this is considered on a case-by-case basis.
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To date in one specific instance the submitters refused the NCP’s offer of mediation due in
part to a disagreement with the NCP’s confidentiality policy.
44
Several civil society and trade union stakeholders raised concerns about the NCP’s
campaigning policy and were particularly opposed to the new language added in the 2017
version of the NCP Procedural Guide noting that undertaking public campaigns related to a
specific instance during proceedings is not considered good faith behaviour and may
constitute a confidentiality breach. Several stakeholders noted that this policy contributed to
the perceived opacity of the specific instance process and that revising it would be necessary
to build trust and encourage certain stakeholders to utilise the specific instance mechanism.
The Procedural Guidance includes no explicit mention of campaigning. The NCP should
ensure that its position on campaigning is predictable, equitable, (meaning the preferences
and needs of both parties should be taken into account) and promotes transparency to the
greatest extent possible.
In addition, the trade advocacy related 'sanction' was introduced in November 2014. As a
result the NCP Procedural Guide now notes that if Canadian companies do not participate
in the NCP process, or if the NCP determines that they do not engage in good faith and
constructively in the process, the NCP will recommend denial or withdrawal of trade
advocacy support and will mention it in the Final Statement. Non-participation or the lack
of good faith participation will also be taken into account in the Corporate Social
Responsibility-related evaluation and due diligence conducted by EDC.
To date this sanction has been invoked in one specific instance due to a failure of the
company to engage in the specific instance process in good faith.
45
The NCP has noted that the availability of the sanction has been very useful in encouraging
companies to participate in the specific instance process. In addition to the application of
the sanction for failure to engage in good faith the NCP is also considering how the sanction
may be applied in situations where agreements made within a specific instance proceeding
are not implemented.
As noted above while many stakeholders welcomed the sanction tool and recognised its
usefulness in strengthening the specific instance mechanism, there seemed to be a lack of
understanding of its scope and when it may or has been applied. For example in one specific
instance where the sanction had been invoked, some stakeholders believed that the final
statement for the specific instance had been deliberately drafted to avoid application of the
sanction. With this in mind, as noted above, the NCP should make efforts to clearly
communicate on the scope and application of the sanction with stakeholders, and in
particular with parties to a specific instance.
Parallel proceedings
The NCP Procedural Guide does not include specific provisions on the impact of parallel
proceedings on the specific instance process aside from stating generally that it will take
into account how similar issues have been, or are being, treated in other domestic or
international proceedings. (See above). The NCP should consider adding language to its
44
Ascendant Copper Corporation and Mining Watch Canada (MW) (2005);
45
China Gold International Resources Corporation and Canada Tibet Committee (2014);
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Procedural Guide, aligned with the Procedural Guidance, which makes it clear that the NCP
should not decide that issues do not merit further consideration solely because parallel
proceedings have been conducted, are under way or are available to the parties concerned.
46
The NCP did not accept a specific instance for further examination on the basis of parallel
proceedings in one instance.
47
Cooperation with other NCPs
The NCP Procedural Guide provides that multi-jurisdictional specific instances that
involve cooperation with NCPs of other countries will be dealt with on a case by case basis.
In such cases, normally one of the NCPs will assume the lead with respect to the processing
of the specific instance. Other NCP(s) may act as supporting NCPs to the lead NCP.
NCP has supported other NCPs in ten cases, involving mainly Canadian mining companies
but also foreign multinationals with activities in Canada
48
.
Findings
Recommendations
3.1
Some stakeholders participating in the peer
review noted that the requirements for
substantiation were unclear and that the NCP's
application of the initial assessment criteria was
onerous.
The NCP should offer assistance and work with submitters to
further substantiate their claims or reformulate submissions
where necessary to allow for them to be accepted for further
examination. Additionally, substantiation requirements and
evidentiary thresholds should be clearly explained to submitters
in the NCP's rules of procedure and ensure accessibility.
3.2
Several civil society and trade union stakeholders
raised concerns about the NCP’s campaigning
policy and noted that revising it would be
necessary to build trust and encourage certain
stakeholders to utilise the specific instance
mechanism.
The NCP should ensure that its policy on campaigning is
predictable, equitable (meaning the preferences and needs of
both parties should be taken into account), and promotes
transparency to the greatest extent possible.
3.3
Some submitters of specific instances noted that
language in some initial assessment by the NCP
undermined the position of the submitter by
implying there was no breach of the Guidelines
by the company or that the claims raised in a
submission were without merit.
The NCP should be clear that a decision not to accept a specific
instance for further examination during initial assessment should
not in principle be equated with a determination on the merits of
the issues raised in the submission.
3.4
Some stakeholders see the specific instance
process as lacking in transparency, predictability
and impartiality.
In order to further improve the mechanism and build trust
amongst potential submitters, the NCP should enhance
transparency with respect to the specific instance process. This
may involve publishing initial assessments, communicating and
providing explanations to parties when timelines cannot be
respected, sharing the information used to make a decision
amongst both parties where possible and clearly explaining the
rationale for deciding whether to accept (or not accept) specific
instances for further examination in statements.
46
OECD Guidelines for Multinational Enterprises (2011), Commentary on Procedural Guidance
para 25
47
BATA and Trade Union (2005)
48
Pobal Chill Chomain Community et al. vs. Shell (Irish and Dutch NCP, 2008); Hotel industry in
Benin and Canada (French NCP, 2010); ForUM and Friends of the Earth Norway vs Cermaq ASA
(Norwegian NCP, 2011); First Quantum Minerals Ltd and Glencore (Swiss NCP, 2011); Norwegian
Climate Network et al vs Statoil (Norwegian NCP, 2011); Mining sector in Argentina (Argentinian
NCP, 2011); Mining in Mexico (Mexican NCP, 2012); United Steel Workers International Union
and Birlesik Metal-Iscileri Sendikasi and Crown Holdings, Inc. (US NCP, 2014); Kinross Brasil
Mineração and Paracatu neighbouring associations (Brazilian NCP, 2013); Tech Resources Chile
and Mining union QUEBRADA BLANCA (Chilean NCP, 2017);
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OECD GUIDELINES FOR MNES NATIONAL CONTACT POINT PEER REVIEWS: CANADA © OECD 2019
Annex A. List of organisations which responded
to the NCP peer review questionnaire
Civil Society Organisations
Above Ground
Amnesty International
Akali Tange Association (Papua New Guinea)
Bruno Manser Fund (Switzerland)
Banro (SOMINKI) Notifier (Democratic Republic of Congo)
Canadian International Resources and Development Institute (CIRDI)
Canadian Network for Corporate Accountability (CNCA)
Canada Tibet Committee
Inter Pares
Mining Watch
OECD Watch
Oyu Tolgoi Watch
Oxfam Canada
Porgera Landowners Association (Papua New Guinea)
Environmental Defenders Organization
Assembly of First Nations
Schulich School of Law, Dalhousie University
Labour organisations
Canadian Labour Congress
United Steelworkers
International Trade Union Confederation
Lucien Royer
Fédération nationale des Mines et de l’Énergie (Mali)
Government Organisations
Global Affairs Canada
Export Development Canada
Public Services and Procurement Canada
Canadian Commercial Corporation
Business Representatives
Barrick Gold Corporation
Endeavour Mining
Global Compact Network Canada
The Mining Association of Canada
38
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Annex B. List of organisations participating in the on-site visit
Civil Society Organizations
Canadian Network for Corporate Accountability
Canada Tibet Committee
Inter Pares
Assembly of First Nations
Mining Watch Canada
UNICEF Canada
OECD Watch
Canadian International Resources and Development Institute
Saint Paul University
Labour Organizations
Canadian Labour Congress
United Steelworkers
TUAC-OECD
Business Representatives
Mining Association of Canada
Goldcorp Incorporated
Facili Tech International
Kinross Gold Corporation
Global Compact Network Canada
Barrick Gold Corporation
Fasken Martineau
SNC Lavalin
Prospectors & Developers Association of Canada
Loblaw Companies Limited
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OECD GUIDELINES FOR MNES NATIONAL CONTACT POINT PEER REVIEWS: CANADA © OECD 2019
Annex C. Promotional activities 2017
NCP-organised and co-organised events to promote the Guidelines and/or the NCP
Title
Date
(dd/mm/yyy
y)
Location
Type of event
Size of audience
Organised or co-
organised?
Targeted audience
e.g. Business representatives, NGOs, Trade unions,
Academia, General public, Government
representatives, etc.
Theme
e.g. the OECD Guidelines, the
NCP activities on sector due
diligence guidance documents,
etc.
Signature of
GAC/NCP Partnership
with Global Compact
Network Canada
Summer
2017
Ottawa,
Toronto
Other
<10
Co-organised
Business representatives and other stakeholders
OECD Guidelines, sectoral Due
Diligence guidance documents
Hot Topic Session with
SHIFT on “The
Responsibility of
Financial Institution to
respect Human Rights”
29/09/2017
Ottawa
Conference
50-100
Co-organised
Business representatives, Government
representatives, NGOs
OECD Guidelines, Due Diligence
guidance documents
“Evolving ESG Due
Diligence in the Mining
Sector Workshop”
Webinar
20/11/2017
Toronto
Webinar
10-50
Co-organised
Business representatives, NGOs and other
stakeholders
OECD Guidelines, Due Diligence
guidance documents
“Evolving ESG Due
Diligence in the
Financial Sector
Workshop” Webinar
21/11/2017
Toronto
Webinar
10-50
Co-organised
Business representatives, NGOs and other
stakeholders
OECD Guidelines, Due Diligence
guidance documents
Special Session of the
Federal/Provincial/
Territorial Working
Group on CSR by
videoconference
23/11/2017
Ottawa and
other
provinces
Conference
<10
Organised
Government representatives
OECD Guidelines, NCP
NCP Meeting with
Social Partners (3)
19/12/2017
Ottawa
Meeting
<10
Organised
Business representatives, Labour organizations
CSR, NCP, OECD Guidelines
40
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Presentations by the NCP to promote the Guidelines and/or the NCP in events organised by others
Title
Date
(dd/mm/yyyy)
Location
Type of event
Size of
audience
Targeted audience
e.g. Business representatives,
NGOs, Trade unions, Academia,
General public, Government
representatives, etc
Organiser(s)
Type of intervention
Theme of the
intervention
Seminar on Business
and Human Rights -
McGill University
Faculty of Law
13/02/2017
Montreal
Conference
10-50
Academia
McGill University Faculty
of Law and Global affairs
Canada
Presentation
Business and Human
Rights
GAC-PDAC-AMEBC
Workshop on SE
08/03/2017
Toronto
Conference
10-50
Business representatives,
Government representatives
Business representatives
OECD Guidelines,
NCP, CSR
GAC-PDAC-AMEBC
Workshop on SE
Trade Commissioners
Training Session at
PDAC Convention
05/03/2017
Toronto
Conference
50-100
Government representatives
PDAC and Global Affairs
Canada
Presentation
CSR, OECD Guidelines,
NCP
Promoting CSR –
Bogota presentation by
videoconference
09/06/2017
Ottawa,
Bogota
Conference
10-50
Business representatives,
Government representatives
Global Affairs Canada
and the Canadian-
Colombia Chamber of
Commerce
Presentation
NCP, OECD Guidelines,
CSR
Trade Commissioners’
Training Session
12/06/2017
Gatineau
Conference
10-50
Government representatives
Global Affairs Canada
Presentation
CSR, NCP, OECD
Guidelines
Presentation on NCP
at GAC with GCNC -
Webinar
17/07/2017
Ottawa
Conference
10-50
Government representatives,
Business representatives, NGOs
Global Affairs Canada
and Global Compact
Network Canada
Presentation
NCP, OECD Guidelines
NCP Chair testimony -
Canada’s House of
Commons’
Subcommittee on
International Human
Rights (Standing
Committee on Foreign
Affairs and
International
Development)
26/09/2017
Ottawa
Other
10-50
Academia, Government
representatives, Business
representatives, general public
House of Commons -
Subcommittee on
International Human
Rights (Standing
Committee on Foreign
Affairs and International
Development)
Presentation
NCP, Human Rights
CSR Speaker Series
11/10/2017
Toronto
Conference
10-50
Academia, Government
representatives, Business
representatives, general public
Ryerson University
Presentation
NCP, OECD Guidelines
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Title
Date
(dd/mm/yyyy)
Location
Type of event
Size of
audience
Targeted audience
e.g. Business representatives,
NGOs, Trade unions, Academia,
General public, Government
representatives, etc
Organiser(s)
Type of intervention
Theme of the
intervention
Fifty (50) RBC/CSR
promotional activities
through Canadian
foreign missions in
various regions (funded
from GAC CSR Fund).
2017
Canadian
Missions
abroad
Conference
varied
Varied audience (Government
representatives, Business
representatives, general public)
Canadian Missions
abroad
Seminars, meetings
CSR, RBC, NCP, OECD
Guidelines
42
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Annex D. Overview of specific instances handled by the Canadian NCP as the leading NCP
Enterprise
Submitter
Host country
Chapter of the
Guidelines
Date of submission
Date of closure
Outcome
1
First Quantum Minerals
Ltd
Oxfam Canada
Zambia
Environment,
General Policies
2 July 2001
October 2001
Concluded with agreement.
2
Ivanhoe Mines Ltd.
Canadian Labour
Congress in Burma
Myanmar
Employment and
industrial relations,
Environment
1 November 2002
February 2006
Concluded without agreement due to
lack of willingness to participate in the
process by both parties.
3
Kakanda Development
Corporation
United Nations Panel of
Experts on the Illegal
Exploitation of Natural
Resources and Other
Riches in the Democratic
Republic of Congo
(DRC)
Democratic
Republic of the
Congo
General policies
2 December 2002
June 2004
Not accepted for further examination
because the company was no longer
linked to the impact.
4
UPM Kymmene
Communications,
Energy and Paper
Workers Union of
Canada
Canada
Employment and
industrial relations
29 November 2004
November 2005
Not accepted for further examination
because another avenue that was
already being pursued was deemed
more appropriate to resolve the
dispute.
5
BATA
International Textile,
Garment and Leather
Workers Federation
Sri Lanka
Employment and
industrial relations
05 January 2005
November 2005
Not accepted for further examination
because the issue was being dealt
with in a separate venue.
6
Ascendant Copper
Corporation
Mining Watch Canada
(MW), Friends of the
Earth Canada (FoE) and
DECOIN (Defensa y
Conservacion Ecologica
de Intag)
Ecuador
Concepts and
principles,
Disclosure,
Environment,
General Policies
16 May 2005
January 2006
Concluded without agreement as offer
of mediation was refused by submitter
due to disagreement with NCP
confidentiality policy.
7
Anvil Mining
Coalition of NGOs
Democratic
Republic of the
Congo
General policies
01 August 2005
November 2005
Concluded with agreement by parties
to continue engagement directly.
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Enterprise
Submitter
Host country
Chapter of the
Guidelines
Date of submission
Date of closure
Outcome
8
Goldcorp
Frente de Defensa San
Miguelense (FREDEMI)
and Centre for
International
Environmental Law
(CIEL)
Guatemala
General policies
09 December 2009
03 May 2011
Concluded without agreement as offer
of mediation was refused by submitter
due to their view that dialogue would
not achieve their objectives.
9
Ivanhoe Mines Ltd.
Oyu Tolgoi Watch
Mongolia
Environment,
General Policies
01 April 2010
3 May 2011
Not accepted for further examination
because allegations were deemed
material but not substantiated. The
NCP offered to facilitate an on-going
dialogue between the parties.
10
Barrick Gold
Asia-Pacific Program
Coordinator of Mining
Watch Canada (MWC),
Porgera Special Mine
Lease (SML)
Landowners Association
(PLoA), and Akali Tange
Association (ATA)
Papua New
Guinea
Disclosure,
Environment,
General Policies
03 March 2011
16 January 2014
Concluded with agreement by the
parties.
11
Centerra Gold Inc.
United Mongolian
Movement of Rivers and
Lakes (UMMRL), Oyu
Tolgoi Watch (OT
Watch), and
MiningWatch Canada
Mongolia
Concepts and
principles, General
Policies, Human
rights,
Environment
14 March 2012
02 November 2012
Not accepted for further examination
because some issues raised were not
deemed to be material and/or
substantiated, and lack of good faith
engagement by the submitter.
12
Corriente Resources
International Federation
for Human Rights
(FIDH), the Ecumenical
Human Rights
Commission of Ecuador
(CEDHU), and
MiningWatch Canada
Ecuador
Concepts and
principles,
Environment,
General policies,
Human rights
25 July 2013
28 July 2014
Not accepted for further examination
because the issues raised were not
deemed to be material and/or
substantiated.
13
China Gold International
Resources Corporation
Canada Tibet Committee
People's
Republic of
China
Concepts and
principles,
Disclosure,
Employment and
Industrial relations,
Environment,
General Policies,
Human rights
28 January 2014
08 April 2015
Concluded without agreement as the
company refused to engage in
mediation.
44
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Enterprise
Submitter
Host country
Chapter of the
Guidelines
Date of submission
Date of closure
Outcome
14
Endeavour Mining
Corporation
Mali
Concepts and
principles, General
policies
19 May 2015
24 October 2017
Concluded without agreement by the
parties but with some commitments
and policy changes by the company.
15
Sakto Group
Bruno Manser Fund
Canada
Disclosure
11 January 2016
11 July 2017
Not accepted for further examination
as it would not contribute to the
purposes and effectiveness of the
Guidelines.
16
Banro Corporation
Former employees of the
Société Minière et
Industrielle du Kivu
(SOMINKI)
Democratic
Republic of the
Congo
General policies
26 February 2016
25 May 2017
Concluded without mediation as the
NCP could not facilitate resolution of
the issues without other relevant
parties being involved in the process.
Specific request made by the NCP to
the company and NCP committed to
follow up.
17
Seabridge Gold
Southeast Alaska
Conservation Council
(SEACC)
Canada
Disclosure,
General Policies,
Environment, and
Human Rights
23 December 2016
13 November 2017
Not accepted for further examination
as the company was deemed to have
complied with the expectations of the
Guidelines.
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OECD GUIDELINES FOR MNES NATIONAL CONTACT POINT PEER REVIEWS: CANADA © OECD 2019
Annex E. Canadian national contact point process flowchart
A Request for Review of an alleged non-observance of the OECD Guidelines for Multinational
Enterprises by a company (ies) is submitted to Canada’s NCP
Acknowledgement of receipt of Request for Review within five (5) business days
Company (ies) is notified of Request for Review and invited to respond. Information on the
Request for Review is added on NCP website and OECD database of specific instances
NCP undertakes an Initial Assessment, using OECD Procedural Guidance criteria, to
determine whether the case merits further examination
NCP
offers voluntary facilitated dialogue or mediation
to the Parties
NCP does not offer facilitated
dialogue or mediation to Parties and
closes the case
All Parties accept. NCP
leads facilitated dialogue
or appoints a mediator
One party does not
agree to facilitated
dialogue or mediation
NCP balances
confidentiality
and transparency
Parties come
to an
agreement
Parties do not
come to an
agreement
NCP publishes its Final Statement on its website and OECD database of specific instances
Target timeframe for publication: within 12 months after receipt of Request for Review
There are consequences if
parties don’t engage or
don’t engage in good faith
If applicable: NCP publishes Follow-up Statement on implementation of agreement and /or of
NCP recommendations to Parties.
46
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ANNEX 6. STANDARD TEMPLATE FOR MEDIATION TERMS OF
REFERENCE
Date:
Agreement for Mediation/Facilitated Dialogue
Name of Notifier (s)
Name of Company (s)
(each a Party and together the Parties)
and
Mediator/Facilitator
Canadian National Contact Point for the OECD Guidelines for Multinational Enterprises
Details
Parties
Name:
Short form name:
Notice details:
Name:
Short form name:
Notice details:
Mediator
Name:
Short form name:
Notice details:
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Observer
Name: Canadian National Contact Point
Short form name: NCP
Notice details: 125 Sussex Drive, Ottawa, Ontario, Canada, K1A 0G2
Phone: +1-343-203-2341
Email: ncp.pcn@international.gc.ca
Background
A Disputes have arisen between the Parties (Dispute), which are briefly but not exhaustively
described in the NCP’s Initial Assessment in Annex.
B The Parties agreed to the NCP’s offer of its good offices of mediation for resolution of the issues
described in the Initial Assessment (Annex). The terms and conditions of this Dialogue Facilitation,
outlined in this document, are designed to assist the Parties reach their own resolution of the Dispute.
C The Parties record their agreement to be bound by the terms and conditions of this agreement,
consistent with the policy of encouraging disputants to settle their differences rather than litigate.
D The term “mediation
49
” refers to all steps undertaken by the Parties and the NCP, whether prior
or subsequent to the execution of this agreement, in an attempt to resolve the Dispute.
Agreed Terms
1. Objective
1.1. The NCP has offered its good offices for mediation to assist with resolving this Dispute. Both
Parties have accepted the NCP’s good offices for mediation.
1.2. The objective of this mediation is to contribute to the resolution of the issues raised by the X and
described in the Initial Assessment by the NCP (in Annex) on the conduct of Company X related
to XYZ. The aim is to improve the understanding of the respective parties’ context, activities and
positions and to explore, develop and agree to actions to help find resolution of the issues.
2. Role of the Canadian National Contact Point
2.1. The mediation process will be facilitated by a professional mediator retained by the NCP with
the agreement of the Parties.
2.2. The NCP will be an observer of the mediation.
2.3. The NCP will not impose decisions on the Parties.
3. Language
3.1. Unless otherwise agreed, the language of the mediation will be English.
49
The term mediation would be replaced with “facilitated dialogue” if the process is not undertaken
by an accredited mediator.
48
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3.2. The NCP can provide interpretation services for English to French and French to English for the
Parties, if requested by a Party.
4. Date, Time and Place of Mediation
4.1. The mediation will take place as soon as is reasonably practicable after the parties have signed
this agreement and complied with any direction given by the NCP under this agreement.
4.2. The mediation shall be fixed for a date, time and location agreeable to the Parties and the NCP.
Video conferencing will be available during the mediation process.
4.3. In the event that the Parties cannot agree on the location, the NCP will nominate the location.
The Parties agree to be bound by its decision.
5. Mediation Process
5.1. Each Party agrees to:
5.1.1. participate constructively and in good-faith in the mediation;
5.1.2. co-operate with the mediator and each other Party in the conduct of the mediation; and
5.1.3. use its best efforts to comply with requests made by the mediator to promote the efficient
resolution of the Dispute.
6. Communication and Meetings Between the Mediator and the Parties
6.1. The mediator may communicate with the Parties orally or in writing.
6.2. The mediator may meet with the Parties together (General Sessions), in groups of Parties or
with any Party alone (collectively Private Sessions) as frequently as it deems necessary.
7. Conduct of Mediation
7.1. The mediation, including all preliminary steps, shall be conducted in such manner as the
mediator considers appropriate having reference to the views of the Parties as to the manner in
which the mediation should be conducted, and the mediator may give directions as to:
7.1.1. the holding of preliminary conferences which may include Private Sessions;
7.1.2. the exchange of written outlines of the views of the Parties on the issues raised by the
Dispute;
7.1.3. any other matter ancillary to the conduct of the mediation.
8. Authority and Representation
8.1. Each Party may be represented during the mediation by a person or persons having, or able
during the course of the dialogue, to obtain authority to settle Dispute.
8.2. If requested by the mediator at any time, a person appearing as a representative of a Party shall
produce written proof of their representative authority.
9. Outcome of Mediation
9.1. If the mediation resolves the Dispute, in full or in part, the Parties must record their agreement
(the Settlement Agreement) in writing. The Mediator will draft the Settlement Agreement.
Parties will review and sign the formal Settlement Agreement. If settlement is reached, a hand
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written document reflecting the terms of the agreement will be prepared immediately and
initialed by each Party (if necessary fax/scanning facilities will be used).
9.2. The NCP will retain a fully executed copy of the Settlement Agreement.
9.3. Through the Settlement Agreement, the Parties may request that the NCP follow up with the
Parties on their implementation of the Settlement Agreement. The NCP and the Parties will
discuss the manner and time frame of this follow up, and the final decision on whether to
conduct follow-up will reside with the NCP’s discretion.
9.4. Regardless of whether an agreement is reached between the Parties, the NCP will issue and
publish a Final Statement at the end of the proceedings and after consultation with the parties
involved, in accordance with Canada’s NCP Procedures Guide. The NCP will take into account
the need to protect sensitive business and other stakeholder information. If there is a Settlement
Agreement, it may be considered by the NCP in the preparation of its Final Statement. In
accordance with both Parties, key results of the dialogue can be incorporated in the NCP Final
Statement.
9.5. At the discretion of the NCP, through the NCP’s recommendations in the NCP Final Statement,
the NCP may request that the Parties follow-up with the NCP within a given timeframe to
monitor the implementation of the Settlement Agreement.
9.6. If the mediation does not resolve the Dispute, this agreement and the mediation will not affect
the rights of any Parties
10. Confidentiality
50
10.1. Any persons other than the Parties and the Mediator (including legally qualified persons)
permitted to attend the mediation for the purposes of assisting and/or advising a Party shall sign
an acknowledgement and undertaking as to confidentiality.
10.2. The Mediator and each Party agree, in relation to all confidential information relating to
the Dispute disclosed by any of them during the mediation:
(i) to keep confidential that information;
(ii) not to disclose that information, except to a Party or other person authorised in
writing by the disclosing Party, or if compelled by law to do so; and
(iii) not to use that information for a purpose other than the mediation.
10.3. Each Party and the Mediator agree that information and documents relating to the
mediation including, but not limited to:
(i) any settlement proposal made by a Party or the Mediator;
(ii) the fact that a Party is willing to consider a settlement proposal;
(iii) any admission made by a Party; and
(iv) any statement or document made by the Mediator is privileged, confidential and
without prejudice and must not be disclosed or used in any arbitral or judicial
proceedings relating to the Dispute.
10.4. The Parties acknowledge that clause 10.2 and 10.3 have no application to information
and documents already in the public domain.
10.5. If the provisions in this section were to be breached by a Party, the NCP will immediately
discontinue the proceedings and indicate the reason in its Final Statement.
50
Parties also sign a separate confidentiality undertaking
50
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10.6. Subject to the procedural and evidential requirements of any enforcement proceedings,
in any arbitral or judicial proceedings, unless the parties otherwise agree, the following will at all
times be kept confidential and will be privileged, and the Parties will not compel the Mediator to
disclose nor rely upon them nor issue nor cause to be issued any subpoena to give evidence or
to produce documents concerning them:
(i) any settlement proposal;
(ii) the willingness of a Party to consider any such proposal;
(iii) any statement, admission or concession made by a Party;
(iv) any statement or document made by the Mediator; and,
(v) any document created or brought into existence by a Party for the purpose of the
mediation.
11. Termination of Mediation
11.1. A Party may withdraw from the mediation at any time by giving written notice to each
other Party and the NCP.
11.2. The execution of the Settlement Agreement in respect of the Dispute will also have the
effect of terminating the mediation.
11.3. Throughout the mediation process, the NCP will continuously assess progress and the
value of continuing the dialogue. If the NCP believes the mediation is no longer productive or
should, in its opinion, be terminated, the NCP may terminate the mediation by giving written
notice to each Party.
11.4. As per the Government of Canada’s Corporate Social Responsibility Strategy Doing
Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility (CSR) in
Canada’s Extractive Sector Abroad (appended to the NCP Initial Assessment in Annex),
measures are in place in case of non-participation in the NCP process. Parties may face
withdrawal of Trade Commissioner Service and other Government of Canada advocacy support
abroad for non-participation in the dialogue facilitation processes of the NCP. Canadian
companies who refuse to participate in dispute resolution processes may no longer benefit from
economic diplomacy (issuance of letter of support; advocacy efforts in foreign markets and
participation in Government of Canada trade missions). This will also be taken into account in
the CSR-related evaluation and due diligence conducted by the Government of Canada’s
financing crown corporation, Export Development Canada, in its consideration of the availability
of financing or other support.
12. Exclusion of liability and indemnity
12.1. The parties agree that the Government of Canada, its employees and agents are not
liable for any damages or losses suffered directly or indirectly by any Party arising in any way
out of any act or omission by the Government of Canada in any manner in relation to the
facilitated dialogue. The Parties agree that this section is a complete bar to any legal
proceedings in any jurisdiction against the Government of Canada and its employees and
agents in connection with the mediation and/or the operation of this agreement.
12.2. The Parties jointly and each of them severally indemnify the NCP as Mediator against all
claims arising out of or in any way referable to any act or omission by him in the performance of
his obligations under this agreement save for acts or omissions resulting from fraud.
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Signatures:
Notifier: Witness:
………………………………………………………… ………………………………………..
Company: Witness
……………………………………………………….. ………………………………………
Mediator: Witness:
……………………………………………………….. ……………………………………….
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Standard Non-disclosure Agreement Template for Mediation
MEDIATION/FACILITATED DIALOGUE CONFIDENTIALITY AGREEMENT
PARTIES:
XXX
XXX
FACILITATOR
51
:
XXX
1. In order to promote honest and candid communication among the parties and the facilitator
(Facilitator), and to facilitate resolution of the dispute, the parties, their counsel and representatives, and
the Facilitator, hereby enter into this Confidentiality Agreement (Agreement).
2. This Agreement governs all aspects of the Facilitated Dialogue process (Dialogue), including
those that pre-date the execution of this Agreement, including, but not limited to, the convening of the
Dialogue, all phone calls, correspondence, e-mail and other documents relating to the Dialogue, all
person to person meetings, site visits, or conferences of any kind, and any post-Dialogue
communications or conferences relating to the Dialogue.
3. All statements made during the course of the Dialogue are privileged settlement discussions, are
made without prejudice to any party’s legal position, and are non- discoverable and inadmissible for any
purpose in any later legal or administrative proceeding whatsoever. However, evidence that is otherwise
admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its
disclosure or use during the Dialogue.
4. The privileged character of any information is not altered by disclosure to the Facilitator.
Disclosure of any records, reports, or other documents received or prepared for or by the Facilitator
cannot be compelled. The Facilitator shall not be subpoenaed or otherwise compelled to testify in any
later proceedings, including, but not limited to civil, criminal, and administrative proceedings, and shall
not be required to produce any notes or documents, as to any aspect of the dispute that was the subject
of the facilitation proceedings or was otherwise communicated to the Facilitator in confidence.
5. No aspect of the Dialogue shall be relied upon or introduced in the evidence in any legal,
administrative or other proceedings, including but not limited to: (a) views expressed or suggestions
made by a party with respect to a possible settlement of the dispute; (b) admissions made in the course
of the Dialogue; (c) proposals made or views expressed by the Facilitator or the response of any party,
and (d) the fact that another party had or had not indicated willingness to accept a proposal for
settlement made by the Facilitator.
6. The parties further agree that confidentiality does not apply to any executed settlement
document unless the parties explicitly stipulate that the terms of settlement are to remain confidential.
However, should the settlement agreement be required as proof in a proceeding to enforce the terms of
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The term “Mediation” would replace facilitated dialogue if the process is undertaken by a certified
mediator. Similarly, the term “Mediator” would replace “Facilitator”.
│
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OECD GUIDELINES FOR MNES NATIONAL CONTACT POINT PEER REVIEWS: CANADA © OECD 2019
settlement, such settlement agreement shall no longer have the privilege of confidentiality and may be
introduced into evidence.
7. Because the parties are disclosing sensitive information in reliance upon this privilege of
confidentiality, it is acknowledged and understood that any breach of this Agreement could cause
irreparable injury for which monetary damages would be inadequate. Consequently, any party to this
Agreement may obtain an injunction to prevent disclosure of any such confidential information in violation
of this Agreement. Any party breaching the Agreement may be liable for and shall indemnify the non-
breaching parties and the Facilitator for all costs, expenses, liabilities, and fees, including legal fees,
which may be incurred as a result of such breach.
8. The parties understand and acknowledge the following with respect to the Dialogue:
a) The Facilitator is free to meet and communicate separately with each party both before and
during the Dialogue. Such private caucuses are very beneficial in facilitating a resolution of the
dispute.
b) The Facilitator reserves the right to share information learned in the private caucuses with the
opposing party if the Facilitator believes that such information will facilitate a resolution of the
dispute. However, should a party divulge certain information that they do not want the opposing
party to know, such party will clearly inform the Facilitator that such information is to be held in
strict confidence and not to be shared with the opposing party.
c) The Facilitator is a neutral party who will not act as an advocate for any party during the course
of the mediation. Though the Facilitator may freely express his views to the parties on the issues
of the dispute and a settlement proposal if such appears beneficial to the resolution of the case,
the Facilitator does not have a solicitor or attorney-client relationship with any of the parties.
d) All parties in the Dialogue shall be bound by the terms of this Agreement and are required to sign
this Agreement as a condition to their participation in the Dialogue.
XXX :
Name of representative: Signature:
XXX :
Name of representative : Signature
Signature of facilitator :
mneguidelines.oecd.org
National Contact Point Peer Reviews:
Canada
Adhering governments to the OECD Guidelines for Multinational
Enterprises are required to set up a National Contact Point (NCP)
that functions in a visible, accessible, transparent and accountable
manner.
This report contains a peer review of the Canadian NCP, mapping
its strengths and accomplishments and also identifying
opportunities for improvement.