Rules of Procedure for the Review Mechanism of the Office of the Extractive Sector Corporate Social Responsibility (CSR) Counsellor

20 October 2010

VALID UNTIL OCTOBER 2012

The Office of the Extractive Sector Corporate Social Responsibility Counsellor
1 Front Street West
Suite 5110
Toronto, Ontario M5J 2X5 Canada

As part of the Government of Canada's Strategy on Corporate Social Responsibility (CSR), the Office of the Extractive Sector CSR Counsellor was established in October of 2009. The mandate of the CSR Counsellor is to review the CSR practices of Canadian extractive sector companies operating outside Canada, and to advise stakeholders on the implementation of the endorsed performance guidelines (the International Finance Corporation Performance Standards, the Voluntary Principles on Security and Human Rights, the Global Reporting Initiative and the OECD Guidelines for Multinational Enterprises). In undertaking reviews, the CSR Counsellor will aim to foster constructive collaboration and dialogue. The review mechanism described in these rules of procedure pertains to the review function of the CSR Counsellor.

Definitions

  • 1.In these rules of procedure, the following terms shall have the following meanings:
    • (a) "Access to Formal Mediation" means the activities undertaken by the CSR Counsellor to engage the Participants in a process involving an independent and neutral external mediator who assists in the resolution of the dispute;
    • (b) "Canadian extractive sector company" means an oil, gas or mining company that has been incorporated in Canada or that has its head office in Canada;
    • (c) "CSR Counsellor" means the Extractive Sector Corporate Social Responsibility (CSR) Counsellor;
    • (d) "Effective Date" means 20 October 2010;
    • (e) "Fact-finding" means the activities undertaken by the CSR Counsellor, third parties and/or the Participants, to better understand the issues raised in the Request for Review or during the Review Process;
    • (f) "Informal Mediation" means the activities undertaken by the CSR Counsellor to assist the Participants in the resolution of the dispute, excluding formal mediation;
    • (g) "Initial Assessment" means the process of determining eligibility of a Request for Review, which is carried out by the CSR Counsellor;
    • (h) "Letter of Intent" means the written document following the Participants agreement on terms of reference for structured dialogue and/or formal mediation;
    • (i) "Minister" means the Minister for International Trade;
    • (j) "NCP" means the Canadian National Contact Point relating to the OECD Guidelines;
    • (k) "OECD Guidelines" means the OECD Guidelines on Multinational Enterprises;
    • (l) "Office" means the Office of the Extractive Sector Corporate Social Responsibility (CSR) Counsellor;
    • (m) "Participants" means the Requester and the Responding Party;
    • (n) "Performance Guidelines" means the International Finance Corporation Performance Standards, the Voluntary Principles on Security and Human Rights, the Global Reporting Initiative and the OECD Guidelines for Multinational Enterprises, as so appearing on the Effective Date of these rules of procedure;
    • (o) "Reporting" means the activities of the CSR Counsellor undertaken pursuant to a Request for Review in the preparation of written documents, for publication on the Office's website, which could contain any of the following information: a summary of the Request for Review; the reasons for refusing a Request for Review; activities undertaken by the CSR Counsellor and the Participants to resolve the dispute; and the commitments made by the Participants during the Review Process; Reporting may take place during the Review Process (Interim Report) and at the termination or completion of a Request for Review (Final Report);
    • (p) "Request for Review" means the written submission of a Requester to the CSR Counsellor;
    • (q) "Requester" means the author(s) of the written submission to the CSR Counsellor;
    • (r) "Responding Party" means the party to which the Request for Review pertains; and
    • (s) "Review Process" means the process facilitated by the CSR Counsellor pursuant to a Request for Review.

Reviews

  • 2. Role of CSR Counsellor:In undertaking reviews, the CSR Counsellor will aim to foster constructive collaboration and dialogue between the Participants. The CSR Counsellor may–
    • (a)Refuse to deal with a Request for Review;
    • (b)Determine how a review is to be conducted;
    • (c)Determine at what stage to conclude a review; and
    • (d) Determine whether a review should be terminated before completion.
  • 3. Limitation:The CSR Counsellor cannot accept Requests for Review as follows:
    • (a)Requests that relate to events which took place before 19 October 2009;
    • (b)Requests that were previously submitted to the Office for which there is no new information available;
    • (c)Requests submitted anonymously (bearing in mind that requests for confidentiality are permitted);
    • (d)Requests that, broadly understood, do not fall within the remit of the Performance Guidelines; and
    • (e) Requests that pertain solely to the OECD Guidelines. A protocol between the NCP and the Office governs situations where Requests for Review raise issues falling under both the OECD Guidelines and other Performance Guidelines.
  • 4. Stages of the Review Process: The Review Process comprises the following stages: Initial Assessment; Informal Mediation; Fact-finding; Access to Formal Mediation; and Reporting.
  • 5. Who may submit a Request for Review?
    • (a)A Request for Review may be submitted by an individual, group or community that–
      • (i) Reasonably believes that it is being or may be adversely affected by the activities of a Canadian extractive sector company in its operations outside Canada, and
      • (ii) Believes that the activities referred to in subparagraph (i) are inconsistent with the Performance Guidelines.
      For purposes of submitting a Request for Review, an individual, group or community may be aided or assisted by an individual or organization with the authorization of that individual, group or community to do so. Proof of authorization to the aid and assistance by the individual or organization must be provided to the CSR Counsellor at the time of submission. The individual or organization aiding or assisting will be bound by these rules of procedure.
    • (b) A Request for Review may be submitted by a Canadian extractive sector company that believes it is the subject of unfounded allegations concerning its corporate conduct outside Canada in relation to the Performance Guidelines.

      The Request for Review of a Canadian extractive sector company must clearly name the Responding Party.
    • (c) The CSR Counsellor invites joint submissions from two or more Participants who mutually seek a resolution to an issue of concern.
  • 6. Submitting a Request for Review to the Office: Requests for Review must be received in writing, via electronic or regular mail, or by fax, by the Office:

    The Extractive Sector Corporate Social Responsibility (CSR) Counsellor
    1 Front Street West, Suite 5110
    Toronto, Ontario M5J 2X5
    CANADA
    Tel: +14169732064
    Fax: +14169732104
    Email: csr-counsellor@international.gc.ca
  • 7. Format of Request for Review:Requests for Review need not be in any particular format.
  • 8. Required information:The following information must be provided in the Request for Review:
    • (a) The basis on which the Request for Review is submitted;
    • (b) Information, limited to what is publicly available, which supports the assertions made;
    • (c) The name of the Responding Party, or information pertaining to the identity of the Responding Party;
    • (d) Confirmation that the Requester understands these rules of procedure;
    • (e) Confirmation of the Requester's willingness to engage in constructive collaboration and dialogue with the Responding Party;
    • (f) The measures the Requester has taken to try and resolve the matter; and
    • (g) The Requester's desired outcome from the Review Process.
    It should be recognized that the greater the amount of information provided to the Office, the easier it will be for the CSR Counsellor to appropriately assess the Request for Review.
  • 9. Language:Submissions must be made in one of Canada's official languages (English and French).
  • 10. Provision of assistance by the Office: The Office may be contacted at any time to answer any questions regarding submitting a Request for Review. The Office will not provide guidance if such guidance would compromise the impartiality of the Office.
  • 11. Registration of Request for Review: Upon receipt, the Office will open an internal file and assign a file number to the Request for Review.
  • 12. Acknowledgement of receipt: The Office will respond to the Requester with an acknowledgement of receipt of the Request for Review within five (5) business days of receipt.
  • 13. Transmittal to the Responding Party: The Office will transmit the Request for Review to the Responding Party at the time of acknowledging receipt to the Requester.
  • 14. Information published:At any time following five (5) business days of receiving a Request for Review, the Office will publish the following information on the Office's website:
    • (a) The name of the Requester, subject to requests for confidentiality;
    • (b) The name of the Responding Party;
    • (c) The date that the Request for Review was received by the Office; and
    • (d) A brief summary of the Request for Review, as appropriate.

A. Initial Assessment

  • 15. Purpose: The CSR Counsellor will make a determination on the eligibility of the Request for Review. The CSR Counsellor will apply the screening criteria set forth in this section and will be guided by the objective of fostering constructive collaboration and dialogue.
  • 16. Nature of Initial Assessment: The nature and extent of the Initial Assessment will be determined by the CSR Counsellor in his/her sole discretion based on the issues raised in the Request for Review. The CSR Counsellor may ask for additional information from the Participants at any time.
  • 17. Timeframe: The Initial Assessment will be completed within 40 business days.
  • 18. Screening criteria:In determining whether the Request for Review is eligible, and with a view to the effective use of the Office's resources, the CSR Counsellor shall consider:
    • (a) The amount of time that has elapsed since the alleged activity occurred;
    • (b) The amount of time that has elapsed since the Requester became aware of the issue;
    • (c) The nature and seriousness of the issue;
    • (d) Whether the Request was made in good faith;
    • (e) The extent to which other redress mechanisms have been exhausted; and
    • (f) Whether the issue is substantiated.
  • 19. Results of Initial Assessment:
    • (a)Ineligible: If the Request for Review is found ineligible, the Requester will be notified in writing and provided with reasons accordingly.

      The Responding Party will also be notified of the CSR Counsellor's decision.

      The Review Process may be terminated by the CSR Counsellor at this time.

    • (b) Eligible: If found eligible, the Participants will be informed by the CSR Counsellor in writing, and the Review will proceed to the Informal Mediation stage.
  • 20. Determination and publication of results: The CSR Counsellor will update the file based on the Initial Assessment and publish the results on the Office's website. The CSR Counsellor may issue and publish on the Office's website an Interim Report at this time.

B. Informal Mediation

  • 21. Purpose: This stage of the Review Process serves to provide a better understanding of the issues raised in the Request for Review with a view to surfacing important underlying concerns, and to build a foundation and forum for structured dialogue.
  • 22. Nature of Informal Mediation: Actions taken during this stage will be tailored to the Request for Review, depending on factors such as its urgency, principal stakeholders, desired outcomes and likelihood of early resolution. Any of the following could be applied in this stage: gathering of publicly-available information, engagement of independent experts; promotion of discussions among the Participants to bring about mutually-agreeable solutions; and more active collaborative exercises such as facilitation and conciliation. This stage is comprised of the following two phases: trust-building and structured dialogue.

B.1. Trust-building

  • 23. Purpose:Trust-building provides an opportunity for a determination among the Participants and the CSR Counsellor to determine whether engaging in structured dialogue is appropriate.
  • 24. Nature of trust-building: During trust-building, the Participants will have an opportunity to provide context to the issues raised in the Request for Review and to voice any concerns they may have. The CSR Counsellor will work with the Participants to overcome challenges faced with a view to engaging in structured dialogue.
  • 25. Timeframe: Trust-building will be carried out for an initial maximum of 120 business days. At the discretion of the CSR Counsellor, trust-building may be extended for additional periods of 90 business days.
  • 26. Results of trust-building:
    • (a) No progress: If it does not appear to the CSR Counsellor that progress towards resolution of the issues under dispute is reasonably likely, the Review Process may be terminated at the discretion of the CSR Counsellor.
    • (b) Some progress: If it appears to the CSR Counsellor that reasonable progress has been made towards resolution of the issues under dispute, the CSR Counsellor will continue to engage as appropriate.
    • (c) Progress: If the Participants, in consultation with the CSR Counsellor, determine that there is merit in continuing to engage with one another, the review will proceed to structured dialogue.
  • 27. Determination and publication of results: If the CSR Counsellor determines that no progress towards resolution has been made, or if the Participants choose to withdraw from the Review Process, the CSR Counsellor will close the file and issue a Final Report. The Final Report will be published on the Office's website.

    If the CSR Counsellor determines that some progress has been made or that the matter will proceed to structured dialogue, the CSR Counsellor will update the file, and may issue an Interim Report and publish the Interim Report on the Office's website.
  • 28. Consent:In order to proceed with structured dialogue, the express written consent of the Participants is required.
  • 29. Withdrawal: Should a Participant desire to withdraw consent, the Participant will be required to give notice of its intention to the CSR Counsellor. The CSR Counsellor will engage with the Participant to overcome barriers to participation.
  • 30. Formulation of terms of reference: In collaboration with the CSR Counsellor, the Participants will negotiate the terms of reference for their subsequent discussions. Their agreement will be captured in a Letter of Intent.
  • 31. Limitation: The CSR Counsellor will not support terms of reference that would be coercive to any Participant, contrary to the Government of Canada's policies or relevant codes of ethics, or violate domestic laws of Canada or international law.

B.2. Structured dialogue

  • 32. Purpose:This phase serves as an opportunity for the Participants to resolve their dispute in a structured manner as determined by the CSR Counsellor.
  • 33. Nature of structured dialogue:The CSR Counsellor will work with the Participants in reaching agreement on terms of reference for their engagement, and will foster constructive collaboration and dialogue aimed at positive outcomes.
  • 34. Timeframe:Structured dialogue will be carried out for an initial maximum of 120 business days. At the discretion of the CSR Counsellor, the timeframe for structured dialogue may be extended for additional periods of 90 business days.
  • 35. Results of structured dialogue:
    • (a) No resolution: If it does not appear to the CSR Counsellor that progress towards resolution of the issues under dispute is reasonably likely to occur, the Review Process may be terminated at the discretion of the CSR Counsellor.
    • (b) Recourse to formal mediation: If the Participants, in collaboration with the CSR Counsellor, determine that formal mediation is appropriate, the Request for Review will proceed to the Access to Formal Mediation stage.
    • (c) Resolution: If the Participants reach agreement on a set of commitments for resolving their dispute, the review will be considered complete. The CSR Counsellor may remain seized of the implementation of the commitments made by the Participants.
    At any time during the Informal Mediation stage, the Participants may collectively determine that they wish to engage in constructive collaboration and dialogue without the assistance of the CSR Counsellor and exit the Review Process.
  • 36. Determination and publication of results: At the completion of Informal Mediation, if there is resolution to the matter under dispute, or if one or both of the Participants exit the Review Process during this stage, the CSR Counsellor will close the file, issue a Final Report and publish the Final Report on the Office's website.

    If it is determined that the Participants will engage in formal mediation, the CSR Counsellor will update the file, and may issue an Interim Report and publish the Interim Report on the Office's website.

C. Fact-finding

  • 37. Purpose: Fact-finding is intended to compliment the efforts of the Participants to resolve their dispute.
  • 38. Nature of Fact-finding: The CSR Counsellor, independent third parties and/or the Participants may conduct Fact-finding, which is carried out with a view to improving the understanding of the issues giving rise to the dispute between the Participants. Fact-finding is intended to clarify the issues under dispute, result in an improved understanding of how various stakeholders view the situation, and help determine how the issues may be resolved through constructive collaboration and dialogue, including determining alternatives for resolving the issue of concern.
  • 39. Timeframe: Fact-finding is meant to be a flexible undertaking and there are no specific limits or timeframes during which it must be completed.

    Fact-finding may take place at any point during the Review Process.

D. Access to Formal Mediation

  • 40. Purpose: In appropriate cases, the engagement of an external mediator will assist the Participants in the resolution of their dispute. Pursuant to agreements made in the Letter of Intent, a process for formal mediation will be established with the engagement of an external mediator.
  • 41. Nature of Access to Formal Mediation: The CSR Counsellor will facilitate the arrangements for formal mediation, and will assist the Participants in determining a suitable mediator, based on the mediator's neutrality and independence, as well as the mediator's cultural and linguistic skills to work effectively with local stakeholders.
  • 42. Timeframe: The timeframe for this stage will be determined by the Participants in collaboration with the external mediator.
  • 43. Results of Access to Formal Mediation:
    • (a) No resolution: If the Participants do not agree to a resolution following formal mediation the Review Process may be terminated at the discretion of the CSR Counsellor.
    • (b) Process of Formal Mediation: If there is ongoing formal mediation, the Request for Review with the Office will remain active until such time as the Participants inform the CSR Counsellor of the results of the formal mediation.
    • (c) Resolution: If the Participants reach agreement on a set of commitments for resolving their dispute, the review will be considered complete. The CSR Counsellor may remain seized of the implementation of the commitments made by the Participants.
  • 44. Determination and publication of results: At the completion of this stage, or if one of the Participants exits the Review Process during this stage, the CSR Counsellor will update the file, issue a Final Report and publish the Final Report on the Office's website.

E. Reporting

  • 45. Purpose: Reporting provides for an accounting of the activities of the CSR Counsellor and Participants in respect of a Request for Review.
  • 46. Nature of Reporting: The CSR Counsellor may prepare Interim Reports at relevant stages during the Review Process, and will prepare a Final Report at the termination or completion of any Request for Review. In addition to other information, Interim and Final Reports may include information relating to the Requester and Responding Party, the issues raised in the Request for Review, eligibility determination, activities aimed at resolving the dispute between the Participants and commitments made by the Participants.
  • 47. Publication of Interim and Final Reports: The Reports issued by the CSR Counsellor will be publicly available and will be published on the Office's website.

General

  • 48. Confidentiality: The CSR Counsellor and persons acting on his or her behalf shall not disclose any information that is acquired while carrying out the CSR Counsellor's responsibilities without the permission of any person affected, except in accordance with an Act of Parliament.
  • 49. Approval: These rules of procedure are subject to the approval of the Minister.
  • 50. Implementation period: There will be an implementation period for these rules of procedure between the date of the Minister's approval and the Effective Date. During this period, the CSR Counsellor will not receive nor consider any Requests for Review.
  • 51. Review and amendment: These rules of procedure will be subject to review as of two years from the Effective Date.