May 9, 2011
Appendix A: Final Statement of the Canadian National Contact Point on the Notification dated December 9, 2009, concerning the Marlin mine in Guatemala, pursuant to the OECD Guidelines for Multinational Enterprises
The OECD Guidelines for Multinational Enterprises (Guidelines) are an instrument of the Organisation for Economic Cooperation and Development (OECD). The recommendations set forth in the Guidelines are a voluntary, multilateral framework of standards and principles on responsible business conduct.
As a member of the OECD and signatory to the Guidelines, Canada is obligated to establish a National Contact Point (NCP). The role of the NCP is to promote awareness of the Guidelines and ensure their effective implementation. This report provides a summary of the activities undertaken by Canada’s NCP in the past year (June 1, 2010 – May 31, 2011).
The Guidelines continue to be an important element of the Government of Canada’s approach to promoting corporate social responsibility (CSR). A number of federal government departments are active in this area, through activities such as promotion of awareness, information dissemination, facilitation of dialogue among interested parties, promotion of CSR in international fora (such as the G8, OAS, UN, APEC and the Francophonie) and support for the development of international norms. The Guidelines are a central part of these activities, their contribution heightened by the fact that they represent the shared views of forty-two national governments on what constitutes appropriate corporate behaviour.
The business community in Canada is promoting CSR as well, with an increasing number of associations and enterprises adopting codes of ethical, environmental and social conduct and related management strategies. The Guidelines offer a frame of reference for private sector initiatives and the NCP serves as a mechanism to facilitate cooperation between the Government and the business community in the promotion of CSR. The Guidelines and NCP also provide a forum for engagement with other key stakeholders, such as labour groups and non-governmental organizations (NGOs) on CSR issues.
The Guidelines make an important contribution to the Government’s policy on promoting sustainable development. Achieving sustainable development requires the responsible engagement of all sectors of society, including the business community. The Guidelines encourage corporations’ contribution to sustainable development and help to strengthen the basis of mutual confidence between enterprises and the communities in which they operate.
Thus, while the Canadian NCP has a clear mandate to implement the Guidelines, its activities also support broader policy objectives of the Government.
While adherence to the OECD Guidelines constitutes a core component of Canada’s overall CSR approach, the promotion of CSR is a comprehensive undertaking which involves policies, programs, initiatives and projects that are complementary and far-reaching in a variety of fields.
On March 26, 2009 the Government of Canada announced the adoption of a new CSR strategy named Building the Canadian Advantage: A CSR Strategy for the Canadian International Extractive Sector. The text of the strategy may be found at: www.csr.gc.ca.
The four pillars of the strategy were described in the 2009 NCP annual report. There have been a number of key developments in the implementation of the strategy since its announcement.
The first pillar of the strategy involves supporting initiatives to enhance the capacities of developing countries to manage the development of minerals and oil and gas, and to benefit from these resources to reduce poverty. The Canadian International Development Agency (CIDA) is the lead for this pillar. As specified in the CSR Strategy, CIDA has created an internal focal point with expertise in extractive sector development issues and continues to provide support to developing countries to enhance their capacity to manage their extractive sectors. The Andean Regional Initiative Promoting Effective CSR will be implemented in Bolivia, Colombia and Peru, and intends to strengthen regional and local governments and community capacity to plan, develop and implement sustainable development projects for the well-being of the communities, and will enhance communities’ capacity for engagement with extractive sector firms.
The second component of the strategy involves the promotion, in addition to the OECD Guidelines, of the following CSR performance and reporting guidelines to Canadian extractive companies operating abroad:
The promotion of these CSR performance and reporting guidelines is being done primarily through the Department of Foreign Affairs and International Trade (DFAIT), through its offices in Canada and abroad, Natural Resources Canada (NRCan) and Industry Canada. Each of the three performance and reporting standards are recognized in the Strategy for their particular relevance to the extractive sector and are complementary to Canada’s commitments under the Guidelines as well as to the OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones.
Canada took over from the United States as Government Chair of the multistakeholder initiative the Voluntary Principles on Security and Human Rights on March 23, 2011. Canada joined the Voluntary Principles in March 2009, and became a full member in 2010. The Voluntary Principles are both a CSR tool and a multi-stakeholder organisation that provide guidelines to help extractive sector companies anticipate and mitigate most human rights risks related to the deployment of public and private security for the protection of their operations. Canada's term as chair will culminate in a March 2012 Plenary meeting in Ottawa.
The IFC is in the process of revising the Performance Standards on Social & Environmental Sustainability. A period of public consultation with interested stakeholders ended in March. The document is to be forwarded to the Board of Directors, which will provide final approvals of the revised Performance Standards in May. Through its Executive Director's office, Canada has been following the discussions and providing views throughout the process.
With regards to GRI, it is about to launch a renewal and update of the G3 guidelines. The resulting new set of guidelines, which will be known as G4, is expected to provide guidance on integrated reporting, better support for auditing and assurance purposes, better guidance for governance reporting, and a user-friendly format for SMEs. Building on its long history of promoting sustainability reporting and disclosure to Canadian business, Industry Canada (IC) will promote GRI to Canadian business, and facilitate and coordinate Canadian input into the international consultations for the development of G4 over the next two years.
The third component of the strategy involves supporting the development of a Centre for Excellence in CSR within an existing institution outside of government. The purpose is to encourage the Canadian international extractive sector to implement these voluntary performance guidelines, including the OECD Guidelines, by developing and disseminating high-quality CSR information, training and tools. The Centre serves as a forum through which sector stakeholders can provide timely access to high-quality CSR tools and information for clients in industry, civil society and government, at home and abroad. The Canadian Institute of Mining, Metallurgy and Petroleum is the host organization for this centre. The Centre for Excellence in CSR was launched on January 13, 2010.
The fourth component of the strategy involves the establishment of the Office of the Extractive Sector CSR Counsellor (“Counsellor”) to assist stakeholders in the resolution of CSR issues pertaining to the activities of Canadian extractive sector companies abroad. The mandate of the Counsellor relates exclusively to the activities of Canadian extractive sector companies operating abroad. The Counsellor reviews the CSR practices of Canadian extractive sector companies operating outside Canada and advises stakeholders on the implementation of the endorsed CSR performance guidelines. The endorsed CSR performance guidelines are: the OECD Guidelines for Multinational Enterprises, the International Finance Corporation Performance Standards, the Voluntary Principles on Security and Human Rights, and the Global Reporting Initiative. The Counsellor reports directly to the Minister of International Trade.
The Counsellor and the NCP operate as two separate and distinct bodies. Canada’s NCP remains the primary authority with respect to the OECD Guidelines and continues to be responsible for promoting the effective implementation of the Guidelines across all industry sectors, as well as reviewing any specific instances which it receives, including those in the extractive sector. The Counsellor and the NCP ensure that overlapping activities are closely coordinated. A protocol has been developed to address communications between the two entities. The Office of the Counsellor's review process was launched in October 2010. The Counsellor’s first annual report was issued in February 2011 and is available on the website.
The main responsibilities of Canada’s NCP are to promote the Guidelines, respond to inquiries and contribute to the resolution of specific instances of corporate conduct in relation to the Guidelines. Important guiding principles for the NCP’s activities include visibility, accessibility, transparency and accountability.
The NCP is an interdepartmental committee composed of eight departments chaired by the Department of Foreign Affairs and International Trade (DFAIT) at the Director-General level. The NCP is composed of eight member departments. Other members are: Natural Resources Canada (NRCan), Industry Canada (IC), Human Resources and Skills Development Canada (HRSDC), Environment Canada (EC), Finance Canada (FIN), the Canadian International Development Agency (CIDA), and Indian and Northern Affairs Canada (INAC), which formally joined the NCP in 2010 and contributes valuable expertise relating to indigenous peoples issues. The Secretariat of the NCP is located in the Trade Commissioner Service Support Division of DFAIT.
The Trade Commissioner Service Support Division has a team that advises trade commissioners in Canada and abroad on CSR and related issues. Given the trade commissioners’ usage of extensive networks both domestically and abroad, Canada’s NCP has been able to raise awareness of the Guidelines and effectively promote their implementation.
The Canadian NCP’s key business and labour interlocutors on the Guidelines are the Canadian Chamber of Commerce (CCC), the Canadian Labour Congress (CLC) and the Confédération des syndicats nationaux (CSN). The NCP also has frequent contact with domestic and international NGOs.
The Canadian NCP engaged in several activities during the year aimed at “capacity-building”. On December 3, 2010, the NCP invited a speaker to present a workshop to the NCP on prevention and resolution of conflicts in CSR-related conflicts. Similarly, on December 6, 2010, a member of the Canadian NCP Secretariat attended a meeting in London, U.K of the NCPs of the U.K., Norway, and the Netherlands. The meeting was held for purposes of discussing the treatment of specific instances and best practices.
The Canadian NCP website is a useful tool for promoting the Guidelines. It has also become an efficient way to communicate information on the Guidelines to overseas missions. Canadian embassies, high commissions and other DFAIT offices in Canada and abroad have been informed of the Guidelines and the importance of this instrument for the promotion of CSR. Overall, the website offers a convenient point of reference for a growing number of Canadian organizations and businesses that are seeking information on CSR.
Various other federal government websites promote the Guidelines, including DFAIT’s CSR web site, and the sites of other departments and agencies, such as IC and NRCan. DFAIT’s Trade Commissioner Service also has an internal website (intranet) which promotes CSR among departmental employees.
The NCP has also been promoting awareness of the OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones. The NCP website indicates that the tool is recommended for companies operating in weak governance zones and provides a link to the document on the OECD web site.
In 2006, Natural Resources Canada (NRCan), in partnership with Indian and Northern Affairs Canada, developed a Mining Information Kit for Aboriginal Communities in collaboration with indigenous communities and the mining industry with a view to strengthen indigenous communities and their capacity to better understand and take advantage of the opportunities offered by mineral exploration and mining development in their region. This approach has been well received both domestically and internationally. The Mining Information Kit for Aboriginal Communities has been adopted by a number of countries (the Philippines, New-Caledonia, Norway, Guatemala, Ecuador, Chile, Democratic Republic of Congo, Mali, Senegal, Burkina Faso) and it has been adapted for a number of other countries (Peru, Mexico, Colombia and Mongolia).
Given the success of this Tool Kit within Canada and uptake by several other countries, NRCan is working with the Arctic Council to develop a Circumpolar Guide on Mining for Indigenous Peoples and Northern Communities, which will be applied to the circumpolar arctic region and based on the experience of the original Canadian Information Kit.
Promoting the Guidelines within the government is an essential aspect of the NCP’s responsibility to raise awareness of the instrument. A number of departments and agencies interact directly with the business community, labour groups and NGOs through their programs and consultative activities. This is an important channel for alerting these groups of Canada’s commitment to support the Guidelines. The interdepartmental structure of the NCP greatly facilitates promotion within government.
Primary focus is being given to the extractive sector (mining, oil and gas), the focus of the Government of Canada CSR Strategy. Because Canada is a major player in the global extractive sector, both the Canadian Government and Canadian industry share an interest in maintaining a positive image of Canada in this sector, and ensuring that Canadian businesses contribute positively to the broader social and environmental objectives of the communities in which they operate. Promoting the Guidelines in this sector is a concrete way for the Government to engage Canadian companies in supporting these objectives.
Canadian embassies, high commissions and other Government of Canada offices domestically and abroad provide support and services to Canadian firms interested in expanding their international business operations. The Government of Canada’s commitment to the OECD Guidelines and CSR, along with the government’s expectations to both Canadian and local business audiences as well as relevant stakeholders are communicated to businesses through these offices.
Officials from all the departments in Canada's NCP have participated in a variety of workshops, forums and conferences where they have made reference to the OECD Guidelines and the NCP. These fora include:
The various departments have also been involved in preparing a variety of communications and marketing materials, including pamphlets and posters, to promote the OECD Guidelines and the CSR Strategy. Furthermore, several departments, including DFAIT and IC have websites that make specific reference to the OECD Guidelines.
Leading up to the Terms of Reference for the Update to the OECD Guidelines, the Canadian NCP undertook a stakeholder consultation process in order to develop its position. In total, twenty-one umbrella organizations representing various groups of interest were consulted formally, including through letters, e-mails and direct interactions. Groups included industry associations, labour associations, academia, aboriginal groups, and other interested non-governmental organizations.
Following the issuance of the Terms of Reference, the Canadian NCP continued to undertake a number of activities to ensure that Canada’s negotiating position benefited from a broad range of perspectives. Most notably, in September 2010, the Canadian NCP hosted a one-day meeting in Ottawa with a number of representatives from industry, labour and civil society organizations, in addition to several Federal government departments. This session helped develop Canada’s position on key issues and led to the recommendation proposal put forth by Canada surrounding stakeholder engagement. Throughout the entire process, individual stakeholder groups were contacted as specific issues arose, and debriefing sessions were held following negotiating sessions.
A number of inquiries about the Guidelines were received by the NCP in the past year. Inquiries received via e-mail are often from think-tanks, academic institutions and students looking for information on Canada’s experiences with the Guidelines. Other inquiries come through meetings with businesses or NGOs. Canadian embassies, high commissions, and other DFAIT offices in Canada and abroad have also requested information on the Canadian NCP. Often such inquiries are about the nature of the Guidelines and their possible application in certain situations. As well, the Guidelines are occasionally raised in public correspondence with Ministers.
Inquiries were also received from other NCPs regarding the institutional structure of the Canadian NCP and the procedures used in dealing with different issues. The Canadian NCP also consulted with a number of other NCPs on similar matters.
The Canadian NCP dealt with four specific instances during the 2010-2011 period.
The Final Statement of the Canadian National Contact Point on the Notification dated December 9, 2009, concerning the Marlin mine in Guatemala, pursuant to the OECD Guidelines for Multinational Enterprises is reproduced in Appendix A of this report.
The National Contact Point for the OECD Guidelines for Multinational Enterprises Summary of Initial Assessment of Request for Review Oyu Tolgoi Mining Projectis reproduced in Appendix B of this report.
On March 1, 2011, the NCP received a request for review submitted by two community organizations and one Canadian NGO in relation to the operations of a mine by a Canadian company in Papua New Guinea. The NCP has acknowledged receipt of the request for review and is proceeding with an initial assessment.
On April 11, 2011, the NCP received a request for review submitted by two NGOs in relation to the operations of a company in Zambia. One of the shareholders in the company is a Canadian company. The request for review was also sent to the NCP of Switzerland. The NCP has acknowledged receipt of the request for review and is in communication with the Swiss NCP.
In the treatment of several specific instances the NCP came across of a number of challenging questions. The question of how an NCP should proceed in such circumstances is relevant to the question of functional equivalence among NCPs.
One dilemma arose in a situation where the notifiers submitted a request for review in which they indicated at the outset that they were not interested in facilitated dialogue with the company. The Canadian NCP could have dismissed the matter and not undertaken an initial assessment on the basis that the notifiers were specifically rejecting the NCP’s principal function and raison d’etre. However, the Guidelines also stipulate that NCPs are expected to contribute to the resolution of issues that arise relating to the implementation of the Guidelines. One of the benefits of the NCP process is that it may serve as a channel and facilitate the exchange of information between the parties where there had previously been no direct communication. Moreover, parties may change their position. The Canadian NCP decided to initiate the process outlined in the OECD Guidelines and conduct an initial assessment as it believed that it might contribute to the resolution of the dispute.
Similarly, how should an NCP deal with a situation where a notifier who does not wish to engage in facilitated dialogue requests that the NCP conduct a field visit for the purposes of fact-finding? While a mediator’s chances of achieving a successful outcome may be enhanced with a thorough understanding of the facts, what benefit would be served by such a field visit if there is to be no mediation?
Furthermore, in circumstances similar to those described above, it is not clear, under the current provisions of the Guidelines, whether the NCP is required to issue a final statement. Paragraph C.3. in the “Procedural Guidance” chapter states: “If the parties involved do not reach agreement on the issues raised,[the NCP will] issue a statement, and make recommendations as appropriate, on the implementation of the Guidelines.”
Paragraph C.3. may be interpreted as assuming that the parties at least attempted to reach an agreement on the issues that have been raised through a dialogue, but not if the offer of good offices was rejected. Nonetheless, the issuance of a final statement in such cases may serve to close the NCP process and provide a record of events.
These questions and other challenges demonstrated that while the general nature of the provisions in the Guidelines provide the advantage of flexibility, the lack of specifics and clear direction may occasionally lead to divergent expectations and create a degree of uncertainty about the NCP process. Such circumstances may increase the possibility of dissatisfaction by one or more of the parties in a specific instance with the process and the outcome. The review of the Guidelines during the year was an appropriate activity, particularly with respect to the procedural guidance chapter. It is hoped that the update to the Guidelines will provide increased satisfaction with the process and results for all stakeholders in the future.
The OECD Guidelines for Multinational Enterprises continue to be a central element of the Government’s approach to promoting CSR, domestically and internationally. The interdepartmental structure of the NCP facilitates the promotion of the Guidelines within the Government and other departmental constituencies, including business, labour and NGOs. Throughout the coming year, the NCP looks forward to new opportunities to promote the Guidelines and contributing to any possible updating of the Guidelines with a view to making them increasingly more relevant in this rapidly changing environment.
APEC: Asia Pacific Economic Co-operation
CIDA: Canadian International Development Agency
Counsellor: the Extractive Sector CSR Counsellor
CSR: Corporate Social Responsibility
DFAIT: Foreign Affairs and International Trade Canada
EC: Environment Canada
Francophonie: Francophonie Countries
G8: Group of Eight
GRI: Global Reporting Initiative
HRSDC: Human Resources and Skills Development Canada
IC: Industry Canada
IFC: International Finance Corporation
INAC: Indian and Northern Affairs Canada
MNE: Multinational Enterprise
NGOs: Non Governmental Organisations
NRCan: Natural Resources Canada
OAS: Organization of American States
Voluntary Principles: Voluntary Principles on Security and Human Rights
UN: United Nations
May 3, 2011
On December 9, 2009, Frente de Defensa San Miguelense (FREDEMI), a Guatemalan NGO, assisted by Centre for International Environmental Law (CIEL), an NGO based in Washington D.C. (the “notifiers”), filed a request for review with the Canadian National Contact Point (NCP). A number of issues were raised in relation to the Marlin Mine in Guatemala, owned and operated by Canadian company Goldcorp Inc.
The issues raised related to the implementation of Paragraph 2 of the General Policies (Chapter II) of the OECD Guidelines which states that enterprises should “respect the human rights of those affected by their activities consistent with the host government’s international obligations and commitments”. The notifiers indicated that they were seeking the closure of the mine and a statement from the NCP.
The NCP’s initial assessment was that the issues raised merited further examination. Pursuant to the process outlined in the Guidelines, the NCP offered its “good offices” to facilitate a dialogue between the parties. The offer was accepted by the company. However, the notifiers declined the offer. The NCP attempted to explore whether the notifiers would be willing to participate in facilitated dialogue without any confidentiality requirements. The notifiers also declined the NCP’s second offer of facilitated dialogue with more flexible confidentiality requirements and reiterated their request for a full investigation of the facts, including a field visit to San Miguel Ixtahucán, and for the NCP to issue a “robust final statement”.
The NCP’s position is that communication and dialogue between the company and the notifiers are essential to the resolution of any disputes. This message has been conveyed to the parties throughout the process.
Therefore, the NCP recommends that the parties participate in a constructive dialogue in good faith with a view to addressing the issues raised. The sooner the parties agree to engage in a meaningful dialogue, the better it will be for all concerned.
The NCP considers this specific instance to be closed.
Should the circumstances change the NCP remains available to provide assistance to facilitate a dialogue.
The OECD Guidelines (“the Guidelines”) are recommendations addressed by governments to multinational enterprises operating in or from adhering countries. They provide voluntary principles and standards for responsible business conduct in areas such as employment and industrial relations, human rights, environment, information disclosure, combating bribery, consumer interests, science and technology, competition, and taxation.
Each OECD Member State is obliged to establish a National Contact Point (NCP) for purposes of promoting the Guidelines and dealing with specific instances involving allegations of non-observance of the Guidelines by multinational enterprises.
Upon receiving a request for review in relation to a specific instance and allegations of non-observance of the Guidelines, an NCP will conduct an initial assessment with a view to determining whether the issues raised merit further examination. If the NCP’s conclusion is that the issues raised merit further examination, the NCP will then offer its “good offices” as a platform for facilitated discussion between the parties in an attempt to resolve the issues. If the parties involved do not reach agreement on the issues raised, the NCP issues a statement, and makes recommendations as appropriate, on the implementation of the Guidelines.
It is important to note that the Guidelines are not laws. Similarly, the NCPs are not law enforcement agencies or courts. The primary value-added of the NCPs is the facilitation of dialogue for purposes of resolving disputes.
Additional information on the Guidelines can be found in Annex 1. The Terms of Reference of the Canadian NCP are attached in Annex 2.
On December 9, 2009, two members of Frente de Defensa San Miguelense (FREDEMI, The Front in Defense of San Miguel Ixtahuacán) along with representatives of the Washington, D.C.-based Centre for International Environmental Law (CIEL), Amnesty International, MiningWatch Canada, and Breaking the Silence met with members of Canada’s National Contact Point (NCP) in Ottawa, and delivered to the NCP a request for review in relation to the Marlin Mine in Guatemala that is operated by Goldcorp Inc. The request for review was also posted on the CIEL website the same day.
In its submission, FREDEMI alleges that Goldcorp Inc. has not observed the Guidelines at the Marlin mine. In particular, FREDEMI refers to Paragraph 2 of the General Policies (chapter II) which states that enterprises should “respect the human rights of those affected by their activities consistent with the host government’s international obligations and commitments”.
FREDEMI claims that Goldcorp’s operations at the Marlin mine are not consistent with Guatemala’s obligations to respect the rights to life, health, water, property, to be free from racial discrimination, and to free, prior and informed consent. Specifically, the notifiers assert that:
In its initial submission, FREDEMI states that there is no trust between the company and the affected communities. For this reason, they are not requesting the NCP to facilitate access to alternative dispute resolution.
Instead, the notifiers ask the NCP to undertake an investigation into Goldcorp’s activities at the Marlin mine and issue a statement to ensure the company’s compliance with the Guidelines.
Specifically, the notifiers seek Goldcorp’s commitment to:
The Marlin Mine, located about 300 kilometres northeast of Guatemala City, is a gold and silver operation that uses both open pit and underground mining methods. It employs 1,905 workers, of which 98% are Guatemalan residents. The Marlin deposit was discovered in 1998 by Montana Exploradora, S.A. and was later purchased by Francisco Gold Corporation in 2000. In 2002, Francisco Gold Corporation merged into Glamis Gold Ltd and control of the deposit passed to Glamis Gold. Construction of the mine began in 2004, after the Guatemalan government issued environmental permits and licenses. Goldcorp and Glamis Gold Ltd merged in 2006 and control of the mine passed to Goldcorp. Goldcorp Inc. is a Canadian company headquartered in Vancouver, British Columbia.The Marlin Mine is operated in Guatemala by Goldcorp Inc.’s subsidiary company, Montana Exploradora S.A.
The Marlin Mine has been the subject of numerous studies, inquiries and reports over the years. Some of these studies, inquiries and reports have been undertaken by civil society organizations, while others were sponsored or conducted by the company, international institutions or the Government of Guatemala.
In 2004, the International Finance Corporation (IFC) provided a $45 million loan to Montana Exploradora, S.A. to develop the mine. In addition, the IFC assisted in the planning and implementation of Montana Exploradora S.A.’s environmental and social programs. The IFC’s Office of the Compliance Advisor/Ombudsman (CAO) investigated a complaint in relation to the Marlin Mine, submitted by communities in the Sipacapa municipality in 2005. The CAO recommended that the two parties should engage in dialogue to achieve a resolution of the dispute.
In May 2010, the Inter-American Commission on Human Rights (IACHR) of the Organization of American States granted “Precautionary Measures” for the 18 Mayan indigenous communities surrounding the Marlin Mine, calling on the Government of Guatemala to temporarily suspend the operation of the mine until further investigations can be undertaken. In June, the Government of Guatemala announced that it would initiate the administrative process to suspend operations at the mine. The Guatemalan Minister of Energy and Mines has been assigned responsibility for following up on processes related to the Marlin Mine. In this respect, an official, inter-Ministerial evaluation of the alleged conditions at the mine site is being conducted.
In May 2010, a scientific report on toxic metals was released by Physicians for Human Rights and the Department for Environmental Health at the University of Michigan. The report identified the need for a rigorous human epidemiological study and an enhanced and expanded ecological study. It also recommended the establishment of an independent oversight panel.
In May 2010, Goldcorp released a Human Rights Assessment report regarding the Marlin Mine. The Assessment report was commissioned by Goldcorp and prepared by On Common Ground Consultants Inc. On the basis of an eighteen-month study, the report made a series of recommendations which Goldcorp initially responded to in June 2010. Subsequently, in October 2010, Goldcorp issued an update of the company’s actions undertaken to date with respect to the recommendations. Goldcorp has also committed to issuing a series of regular updates describing the progress, challenges, and future expectations as Goldcorp implements the recommendations of the Assessment report. Goldcorp has posted related documentation onto the company’s website. Goldcorp also adopted a human rights policy in October, 2010. However, during a conference call that the NCP had with the notifiers on November 22, 2010, it appeared that the notifiers were unaware of these developments in the company’s policies and corresponding changes in practices. The notifiers indicated that they were unaware of any Spanish translation of these documents.
These and other studies and proceedings clearly demonstrate the extent of stakeholder interest in the mine and the impacts of its operations. The NCP is aware of the existence of these and other studies and proceedings, but they did not influence the decisions of the NCP with respect to the initial assessment and the NCP’s performance of its mandate.
Upon meeting with the notifiers and receiving their submission, the Canadian NCP forwarded the request for review to Goldcorp Inc. and asked for a response that could be shared with the notifiers. Goldcorp provided a response to the NCP, confirming its commitment to the NCP process, including facilitated alternative dispute resolution.
The NCP was not in a position to verify the technical details of many of the submitted reports. However, the NCP’s initial assessment was that the issues raised merited further examination. The NCP believed that there should be a dialogue between the parties in order to attempt to resolve the issues raised. Accordingly, on March 23, 2010, the NCP Chair signed two letters informing the parties of the initial assessment of the NCP and offered the NCP’s “good offices” to “facilitate access to consensual and non-adversarial means to assist in dealing with the issues”. The NCP proposed to hold a meeting, or series of meetings if required, in Ottawa.
The letter of March 24, 2010, to FREDEMI contained the following paragraph:
“The Procedural Guidance chapter of the OECD Guidelines provides that NCPs shall make an initial assessment by considering “whether the issues raised merit further examination”. The NCP has carried out its initial assessment by reviewing the documentation which you submitted, as well as the response from Goldcorp Inc. The matters raised have a lengthy history and are complex in nature. Keeping in mind that the NCP is not a court or tribunal, and that it is dedicated to the objective of contributing to the resolution of issues that arise in relation to the implementation of the OECD Guidelines, the NCP has concluded that the issues which you raised merit further examination. This conclusion should not be construed as a judgment of whether or not the corporate behaviour or actions in question were consistent with observance of the OECD Guidelines and should not be equated with a determination on the merits of the issues raised in your submission.”
The letter further went on to state:
“If the parties are willing to participate, the NCP will proceed to draft the terms of reference for such a meeting which will include asking both parties to agree to maintain the confidentiality of information tabled and shared during the proceedings.”
Goldcorp responded to the NCP’s offer on March 26, 2010, and indicated that it was willing to participate in the NCP facilitated dialogue process.
On April 23, 2010, the notifiers responded by declining the NCP offer of facilitated dialogue. In its letter, FREDEMI stated that the conditions did not exist for an open and constructive dialogue with Goldcorp. Furthermore, FREDEMI indicated that agreeing to participate in a closed-door meeting with Goldcorp would create further tensions and divisions within their community.
On May 14, 2010, Goldcorp provided a letter to the NCP that was shared with the notifiers on May 17, 2010. The letter indicated that Goldcorp was disappointed that FREDEMI declined the NCP’s offer to facilitate a dialogue with Goldcorp. Further, the letter stated:
“To the extent that FREDEMI’s refusal to participate in a dialogue facilitated by the NCP is because of the initial meeting would be a “closed-door meeting in Canada,” Goldcorp confirms its willingness to meet with FREDEMI and the NCP in an open format at a location convenient for all parties.”
In an attempt to explore whether the conditions referred to above by the notifiers could be altered in such a way that FREDEMI would be willing to participate in a dialogue with Goldcorp, the NCP sent a letter to the notifiers on July 2, 2010. With respect to the question of confidentiality, the letter stated:
“Canada’s NCP acknowledges the concerns raised by FREDEMI and remains hopeful that FREDEMI will reconsider its position and consent to a facilitated dialogue. We understand the difficulties an organization would face were it unable to share with its key community stakeholders the information obtained in a dialogue with another party. With this in mind, we would like to clarify that the confidentiality of proceedings would not prevent FREDEMI, acting as the representative or agent of the interested communities, from consulting with such communities before and after a dialogue. As the interested parties on whose behalf you are acting, community members are entitled to receive relevant information related to this specific instance; however, they are also expected to keep such information confidential. A good faith dialogue to resolve difficult and controversial issues requires that there be certain rules around how information shared in proceedings is used.”
Goldcorp was copied on the letter to the notifiers and subsequently wrote to the NCP on July 9, 2010, reiterating Goldcorp’s position outlined in its letter of May 14, 2010, that it was willing to be accommodating on the issues of confidentiality. This letter was forwarded to the notifiers on July 12, 2010.
On August 20, 2010, the notifiers replied by letter, again declining the possibility of a facilitated dialogue with Goldcorp. In its letter, FREDEMI stated that the clarification of the application of confidentiality partly addressed procedural concerns. However, FREDEMI was not prepared to deviate from its position that in order to address human rights concerns, the Marlin Mine must be closed. FREDEMI’s view was that a dialogue would only result in delays. FREDEMI instead urged the NCP to proceed with a full investigation and field visit followed by the issuance of a final statement.
At this stage it became evident that the notifiers and Goldcorp had irreconcilable positions. While the notifiers wished the Marlin Mine to be closed and were unwilling to participate in any facilitated dialogue, Goldcorp wished to remain open and participate in facilitated dialogue.
The NCP sent a letter dated October 6, 2010, to the notifiers and copied Goldcorp indicating that it was proceeding to draft a final statement. In this letter, the NCP indicated that it is not in a position to carry out a field visit. Subsequently, on November 22, 2010, the NCP held a conference call with CIEL and FREDEMI members in Guatemala. During this conference call, the members of FREDEMI provided a number of testimonials about their experiences and concerns with the mine. They repeated that they were not interested in participating in a dialogue with Goldcorp and they wanted the mine to close. During the call, the NCP informed the representatitives that it was preparing a draft statement which would be forwarded for comments. The NCP was asked if it would be providing a Spanish translation of the entire draft statement for the benefit of the community members. On December 13, 2010 the NCP informed FREDEMI that further to its provision of courtesy unofficial Spanish translations of letters throughout this process, it decided that it would provide courtesy unofficial translations of the Executive Summary and Recommendations portions of the draft statement. This procedure is consistent with the approach taken with regard to translations during consultations with aboriginal communities in Canada regarding environmental impact assessments. The NCP also held a meeting on November 23, 2010 with a Goldcorp official and a mine employee who was a resident of the community around the mine. The employee described their life in the community and their work at the mine. A detailed chronology of events can be found in Annex 3.
The Canadian NCP listened to both sides in this dispute and attempted to bring the parties together for purposes of engaging in a dialogue to address and resolve the issues that have been raised. The NCP regrets that these efforts have not been successful.
Although the notifiers declined the NCP’s offer of facilitated dialogue, the NCP’s initial assessment was that the issues raised merited further examination. With regard to the issues raised by the notifiers in the specific instance, the NCP is of the view that the lack of communication, and possible miscommunication, between the parties is a significant contributing factor to the overall problem. Generally, mining companies which undertake significant operations should endeavour to use effective communication strategies in order to engage the communities affected by the mine and to disseminate information of a technical or scientific nature. This process and activity is a critical element of corporate social responsibility which, if managed successfully, may benefit all parties concerned. At the same time, community members should be willing to engage with the company. A lack of effort by either party can lead to erroneous perceptions and misunderstanding, lack of trust, opposition and grievances.
The NCP recognizes that, over the years, the Marlin mine operations have changed hands, and that this has contributed to the deepening of the lack of trust among some communities. The building of trust in such circumstances constitutes an even greater challenge which requires a corresponding effort on both sides.
In this regard, the NCP would like to acknowledge Goldcorp’s willingness to engage in the NCP process. The NCP encourages Goldcorp to continue to issue its regular updates on the implementation of the recommendations in Human Rights Assessment Report prepared by On Common Ground.
The NCP’s position is that communication and dialogue between the company and the notifiers are essential to the resolution of any disputes. This message has been conveyed to the parties throughout the process.
Therefore, the NCP recommends that the parties participate in a constructive dialogue in good faith with a view to addressing the issues raised. The sooner the parties agree to engage in a meaningful dialogue, the better it will be for all concerned.
The NCP considers this specific instance to be closed.
Should the circumstances change the NCP would be willing to provide assistance to facilitate a dialogue.
The Guidelines constitute a set of voluntary recommendations to multinational enterprises in all the major areas of business ethics, including employment and industrial relations, human rights, environment, information disclosure, combating bribery, consumer interests, science and technology, competition, and taxation. Adhering governments have committed to promote them among multinational enterprises operating in or from their territories.
Although many business codes of conduct are now publicly available, the Guidelines are the only multilaterally endorsed and comprehensive code that governments are committed to promoting. The Guidelines' recommendations express the shared values of governments of countries that are the source of most of the world's direct investment flows and home to most multinational enterprises. They aim to promote the positive contributions multinationals can make to economic, environmental and social progress.
Adhering countries comprise all 33 OECD member countries, and 9 non-member countries (Argentina, Brazil, Egypt, Estonia, Latvia, Lithuania, Morocco, Peru and Romania). The Investment Committee has oversight responsibility for the Guidelines which are one part of a broader OECD investment instrument - the Declaration on International Investment and Multinational Enterprises. The instrument’s distinctive implementation mechanisms include the operations of National Contact Points (NCP), which are government offices charged with promoting the Guidelines and handling enquiries in the national context.
Because of the central role it plays, the effectiveness of the National Contact Point is a crucial factor in determining how influential the Guidelines are in each national context. While it is recognised that governments should be accorded flexibility in the way they organise National Contact Points, it is nevertheless expected that all National Contact Points should function in a visible, accessible, transparent and accountable manner. These four criteria should guide National Contact Points in carrying out their activities.
More information may be obtained about the Guidelines on the OECD website.
Point for the OECD Guidelines for Multinational Enterprises
The Organisation for Economic Co-Operation and Development (OECD) Guidelines for Multinational Enterprises (Guidelines) constitute a well-established and authoritative set of international standards in the realm of corporate social responsibility (CSR). The Guidelines form a key component of the Government of Canada’s overall CSR policies. Canada is an adhering country to the OECD Guidelines and is required to maintain a National Contact Point for purposes of furthering the effectiveness of the Guidelines.
1.1. In this Terms of Reference, the following terms shall be defined as follows:
Department: means federal departments of the Government of Canada
CIDA: Canadian International Development Agency.
DFAIT: Foreign Affairs and International Trade Canada.
EC: Environment Canada.
Finance: Finance Canada.
Guidelines: OECD Guidelines for Multinational Enterprises.
HRSDC: Human Resources and Skills Development Canada.
IC: Industry Canada
INAC: Indian and Northern Affairs Canada.
NCP: the National Contact Point for the OECD Guidelines for Multinational Enterprises. The Canadian NCP consists of an interdepartmental committee which is supported by a Secretariat housed at DFAIT. References to the NCP are to the interdepartmental committee.
NRCan: Natural Resources Canada.
Permanent Members: Departments of the Government of Canada who are permanent members of the NCP interdepartmental committee.
Primary Contact: Individual at a Department who is the main contact person or liaison official with respect to the NCP.
Specific instance: The term "specific instance" is one derived from the OECD Guidelines. Any individual, organisation, or community (“stakeholder”) that believes a corporation's actions or activities have breached the Guidelines may lodge a formal request for review regarding a “specific instance” with the NCP of the relevant country. Hence, a specific instance refers to allegations by stakeholders of an "issue or situation" that it is believed to constitute the non-observance of the Guidelines by multinational enterprises.
2.1. The Guidelines are a government-endorsed comprehensive set of recommendations for multinational enterprises on principles and standards for responsible business conduct. The Guidelines are voluntary and are not intended to override local laws and legislation.
2.2. Canada has been an adhering country since the OECD adopted the Guidelines in 1976. The OECD Council Decision of 1991 created the requirement for all countries adhering to the Guidelines to maintain an NCP. The revisions to the Guidelines in 2000 set out the recommended Procedural Guidance for the NCPs.
3.1. The purpose of this Terms of Reference document is to provide a guide for the composition and operations of the Canadian NCP. Moreover, its adoption is expected to contribute to the transparency and accountability of the NCP’s operations.
4.1. The primary documents that outline the role and responsibilities of the NCPs are the “Procedural Guidance” chapter of the Guidelines, as well as the “Commentary on the Implementation Procedures of the OECD Guidelines for Multinational Enterprises.”
4.2. According to the Procedural Guidance notes for the OECD Guidelines, the role of the NCP is “to further the effectiveness of the Guidelines”, while the responsibilities of the NCP consist of:
i. making the Guidelines known and available;
ii. raising awareness of the Guidelines;
iii. responding to enquiries about the Guidelines;
iv. contributing to the resolution of issues that arise relating to the implementation of the Guidelines in specific instances, and;
v. reporting annually to the OECD Investment Committee.
5.1. The NCP will operate in accordance with the core criteria of visibility, accessibility, transparency and accountability, as recommended by the OECD Procedural Guidance.
6.1. Canada’s NCP is an interdepartmental committee composed of federal government departments. The NCP may elect to alter its composition if such alteration is agreed to by all permanent members of the NCP.
6.2. The NCP may, as required, create Ad Hoc Working Groups to perform specific activities in carrying out the NCP mandate.
7.1. The NCP shall be chaired by a Director General level representative of DFAIT.
7.2. The NCP shall designate a Vice-Chairperson, from among the Permanent Members of the committee other than DFAIT NCP Secretariat, who shall be at least at the Director level.
7.3. The Vice-Chair shall assume the role of the Chairperson when the Chairperson is absent.
8.1. The NCP Secretariat function shall be provided by DFAIT.
9.1. Permanent Members: The Permanent Members of the Committee are CIDA, DFAIT, EC, Finance, HRSDC, IC, INAC, and NRCan.
9.2. New Permanent Members: The NCP may by consensus accept new members.
9.3. Primary Contact: Each Permanent Member shall designate one of its employees to act as the Primary Contact.
9.4. The Primary Contacts will be responsible for liaising with the NCP and notifying the Secretariat of changes in representation or membership, as well as sharing information, providing appropriate input and coordinating views internally within their respective Departments. The Primary Contact person for each Department, or their proxy, with the respective Department’s approval, shall be the primary person with authority to express the views of the respective Department at NCP meetings.
9.5. The Chair of the NCP shall not be considered the Primary Contact for DFAIT. DFAIT shall designate another official to act as the Primary Contact for DFAIT.
9.6. Observers / Resource Persons: Each Department may have a number of operating units with an interest in NCP matters. The Primary Contact of each Department shall determine whether representatives of other units within their Department may participate in NCP meetings as an observer or resource person.
9.7. The Primary Contact for each Department shall ensure that the Secretariat is notified of the proposed participation of any additional Departmental representatives as either Observers or Resource Persons.
9.8. Ad Hoc Members: 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.
10.1. Calling of Meetings: The NCP shall meet at least twice annually, or as considered to be appropriate and necessary by the Chairperson.
10.2. The Secretariat, on behalf of the Chairperson, shall send meeting notices to the Primary Contact of each of the Permanent Members notifying them of meeting dates and times.
10.3. Any Permanent Member of the NCP may request a meeting of the NCP at any time through the Chairperson.
10.4. Quorum: Quorum shall be necessary for an NCP meeting to take place. Quorum shall consist of a gathering of the Primary Contacts, or their proxies, from at least fifty percent plus one (50% +1) of the Permanent Member Departments.
10.5. Decision-Making: Decisions may need to be made by the NCP from time to time on questions relating to the NCP’s fulfillment of its role and other matters. Each of the Permanent Members shall be able to express their views at NCP meetings through their Primary Contacts, or their proxies. The NCP will make every effort to make decisions based on consensus. Where a consensus cannot be reached, the majority shall prevail.
11.1. Specific Instances shall be dealt with in accordance to the process outlined in the Guidelines, as well as in the procedures and protocols documents that are posted on the Canadian NCP website, as they may be amended from time to time.
12.1. In order to facilitate the work of the NCP and in line with the OECD Guidelines Procedural Guidance notes, the NCP and all those invited to participate in its proceedings from various Departments shall take appropriate steps to protect sensitive business and other information.
13.1. The Secretariat shall manage the website content for Canada’s NCP, as well as prepare and disseminate individual meeting reports and an annual report for submission to the OECD Investment Committee pursuant to the OECD requirements.
13.2. All Permanent Members shall be consulted and asked to contribute to the preparation of the annual report.
14.1. Permanent Members of the NCP shall, as necessary, endeavour to contribute resources (both human and financial) to the operations of the NCP for purposes of ensuring the timeliness and effectiveness of its work.
For more information about the Canadian NCP.
December 9, 2009: The notifying party FREDEMI (and CIEL) came to Ottawa and met with the NCP to submit their request for review. The request states that the notifiers are not seeking facilitated dialogue but that the NCP undertake an investigation and make a statement. This message was also stated during the meeting. Following the meeting with the NCP FREDEMI held a press conference.
December 16, 2009: Letter acknowledging receipt of the submission was sent to FREDEMI.
January 22, 2010: NCP sends letter to Goldcorp informing them of the submission from FREDEMI and requesting a response.
February 19, 2010: Goldcorp Inc. provided their response to the submission.
February 24, 2010: NCP held a meeting and discussed the specific instance. A Working Group (subcommittee) was formed to conduct the initial assessment and make a presentation to the NCP for purposes of assisting the NCP in concluding an initial assessment. The Working Group met several times (March 2, March 11) to consider the documentation from both parties.
March 25, 2010: NCP communicated its initial assessment of the submission to both parties in letters dated March 24, 2010. Both parties were informed that the NCP considered the issues raised to merit further examination and offered to facilitate a dialogue. The parties were asked to reply by April 7, 2010.
March 26, 2010:nbsp;Goldcorp responded that they were willing to participate in the NCP’s process.
April 9, 2010: A Spanish copy of the Goldcorp’s response of February 19 was forwarded to CIEL. CIEL was also requested to reply to the NCP’s offer in its letter of March 25 by April 23, 2010
April 23, 2010: FREDEMI provided its response and declined the offer of facilitated dialogue. The letter refered to the initial submission and repeated that they are not requesting the NCP to facilitate dialogue but instead urge the NCP to conduct a field visit and issue a statement.
May 14, 2010: Goldcorp submitted a letter indicating its willingness to participate in a meeting without any confidentiality conditions. This letter was shared with FREDEMI on May 17, 2010.
June 1, 2010: NCP held a meeting with Dina Aloi of Goldcorp. The meeting was held at Ms. Aloi’s request. The minutes were prepared and subsequently shared with FREDEMI.
July 2, 2010: The NCP sent FREDEMI a letter clarifying that the NCP’s understanding of the confidentiality requirements would not prevent FREDEMI, acting as representatives or agents of interested communities, from consulting with their communities. The letter asked whether they would reconsider the offer of facilitated dialogue and requested a reply by August 2, 2010.
July 9, 2010: Goldcorp was copied on the letter to FREDEMI and sent a letter (July 9) indicating that FREDEMI should be informed that Goldcorp is prepared to waive the confidentiality conditions for a meeting. This letter from Goldcorp was subsequently forwarded to FREDEMI on July 12.
July 29, 2010: NCP received a number of documents from Goldcorp and shared these with FREDEMI. FREDEMI requested additional time to reply to the letter of July 2.
August 4, 2010: At Goldcorp’s request, the NCP held a meeting with Dina Aloi and Valerie Pascale of Goldcorp. Minutes were prepared and shared with FREDEMI on August 16.
August 20, 2010: FREDEMI replied to the NCP’s letter of July 2 by again declining the offer of facilitated dialogue and repeating that they wish the Marlin Mine to be closed and urge the NCP to conduct a full investigation including a field visit.
October 7, 2010: NCP sent a letter dated October 6, 2010 to FREDEMI (copy to Goldcorp) stating that the NCP is now proceeding to draft a statement. The letter contained an offer for a conference call with FREDEMI to address a concern expressed in their August 20 letter that the NCP had one meeting more with Goldcorp than with FREDEMI and may not have the full understanding of the situation.
November 22, 2010: NCP held a conference call with CIEL and FREDEMI members in Guatemala. FREDEMI members provided a number of testimonials about their experiences and concerns with the mine. The NCP informed the representatives that it is preparing a draft statement which will be forwarded for comments.
November 23, 2010: Two Goldcorp representatives met with some members of the NCP and made a presentation about the mine and community relations.
May 3, 2011