International developments Impacting Canada

Table of contents 

The BHR field is grounded in international law and policy. From the UNGPs to the trends related to mandatory business and human rights laws, the Canadian landscape is heavily influenced by international developments.

Practitioners and businesses should expect ongoing international developments to translate to further compliance requirements. These requirements will take the form of the embedding of human rights policies and the continuous improvement of the management systems that prevent, mitigate or address potential adverse human rights impacts.

The key message for lawyers is that there are two levels of analysis they must consider in relation to business and human rights:

  1. How the UNGPs apply to the activities and business relationship of a specific company.
  2. The normative content of the human rights issues that are salient to that company.

Substantive developments relate to ensuring that human rights protections in international human rights law are incorporated into Canada’s BHR regulation and policies. The normative content of the corporate responsibility to respect human rights is defined by the International Bill of Human Rights, the ILO Declaration of Fundamental Principles and Rights at Work, and other international human rights instruments that protect the rights of vulnerable groups.

Three examples of how international developments are influencing law and policy in Canada are children’s rights, Indigenous peoples' rights, and non-discrimination.

i) Example #1 Children’s rights and business principles

The UN Convention on the Rights of the Child is the most widely and rapidly ratified core human rights treaty in history. Accordingly, children’s rights has been an important focus area for business and human rights internationally and in Canada.

One particularly important initiative has been the development of the Children’s Rights and Business Principles by UNICEF, the UN Global Compact and Save the Children. These principles were launched in 2012, relatively shortly after adoption of the UNGPs. The Government of Canada was among the first group of countries to support the Children’s Rights and Business Principles, which forms part of the Government of Canada’s efforts to address child labour abroad.

UNICEF Children’s Rights and Business Principles

The ten Children’s Rights and Business Principles call on businesses to consider how their activities and business relationships affect boys and girls. Specifically, all businesses should:

  1. Meet their responsibility to respect children’s rights and commit to supporting the human rights of children.
  2. Contribute to the elimination of child labour, including in all business activities and business relationships.
  3. Provide decent work for young workers, parents and caregivers.
  4. Ensure the protection and safety of children in all business activities and facilities.
  5. Ensure that products and services are safe, and seek to support children’s rights through them.
  6. Use marketing and advertising that respect and support children’s rights
  7. Respect and support children’s rights in relation to the environment and to land acquisition and use.
  8. Respect and support children’s rights in security arrangements.
  9. Help protect children affected by emergencies.
  10. Reinforce community and government efforts to protect and fulfill children’s rights

ii) Example #2: UN Declaration of the Rights of Indigenous Peoples

International developments related to the UN Declaration of the Rights of Indigenous Peoples (UNDRIP) are of high significance to Canadian companies and society as a whole.

In particular, issues related to meaningful consultation with Indigenous peoples and the right to free, prior and informed consent (FPIC) are particularly complex and have given rise to numerous domestic court cases, petitions to UN human rights bodies, protests and project delays—particularly in relation to natural resources and linear projects that have significant impacts on the traditional lands of Canada’s Indigenous peoples. This observation led the UN Working Group on Business and Human Rights to conclude that “[g]oing forward one key issue for Canada will be how to bring the existing “duty to consult” framework in line with the principle of FPIC as set out in UNDRIP.”

Since then, the Government of Canada has issued new Principles respecting the Government of Canada’s relationship with Indigenous peoples. These Principles reflect a commitment to implement UNDRIP in Canada through a review of laws and policies, and to take other collaborative initiatives and actions. The Canadian government has explicitly required meaningful engagement with Indigenous peoples that aims to secure their FPIC when Canada proposes to take actions which may impact them and their rights, including their lands, territories and resources.

In June 2021, Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act came into force. This law requires government action to ensure laws are consistent with UNDRIP, to implement a plan to achieve UNDRIP’s objectives, and report on progress.

Aligning the legal duty to consult with the evolving interpretations of FPIC internationally will take time. For lawyers and their clients, understanding FPIC from the point of view of the UNGPs, will help them look beyond the legal duty to consult towards creating and implementing best practices for businesses that respect Indigenous peoples’ rights.

Guidance has been prepared for companies to respect Indigenous peoples in the form of the UN Global Compact’s Business Reference Guide on the UN Declaration on the Rights of Indigenous Peoples from 2013. Similar to the Children’s Rights and Business Principles guidance, this guidance combines the requirements of the UNGPs with the substance of UNDRIP.

Business Reference Guide on the UN Declaration of the Rights of Indigenous Peoples

THE CORPORATE COMMITMENT TO SUPPORT

In addition to the corporate responsibility to respect human rights, the UN Global Compact Principles encourage businesses to take additional voluntary actions that seek to promote and advance human rights (including Indigenous peoples’ rights). These actions can involve core business activities, strategic social investments, philanthropy, advocacy and public policy engagement, and/or partnership and collective action. Voluntary actions to support and champion Indigenous peoples’ rights must be in addition to and not a substitute for actions taken to respect their rights (which is the minimum standard for all business enterprises). These actions should be guided by the core principles of Indigenous peoples’ rights, including self-determination and FPIC, as well as full and effective participation in decision-making.

All businesses should take the following fundamental actions, some of which may be required in conjunction with local and state governments to meet their responsibility to respect Indigenous peoples’ rights:

  • Adopt and implement a formal policy (whether on a stand-alone basis or within a broader human rights policy) addressing Indigenous peoples’ rights and committing the business to respect Indigenous peoples’ rights.
  • Conduct human rights due diligence to assess actual or potential adverse impacts on Indigenous peoples’ rights, integrate findings and take action, track and communicate externally on performance.
  • Consult in good faith with Indigenous peoples in relation to all matters that may affect them or their rights.
  • Commit to obtain and maintain the free, prior and informed consent of Indigenous peoples for projects that affect their rights, in line with the spirit of the UN Declaration.
  • Establish or cooperate through legitimate processes to remediate any adverse impacts on Indigenous peoples’ rights.
  • Establish or cooperate with an effective and culturally appropriate grievance mechanism.

iii) Example #3 Intersectionality and international anti-discrimination laws and claims

The final example for this section relates to international developments that affect our understanding of the right to non-discrimination in Canada. Over the past 20 years, a more contextualized approach to the right to non-discrimination has developed, which places less emphasis on individual characteristics and more on society’s response to the person. It also takes into account historical disadvantage experienced by the group the person belongs to. This more contextual approach is known as intersectionality.

Internationally, there is greater awareness and more open discussion of the value of intersectionality when addressing gender inequality, stigma, stereotyping, prejudice, discrimination and violence. In Canada, the concept of intersectionality is also starting to appear in legal claims and court decisions, as well as in the work of human rights commissions and civil society groups. The emerging importance of intersectionality cannot be overlooked in the current context of rising global awareness and action in response to different forms of discrimination (e.g., #MeToo, Black Lives Matter, HeForShe).

For lawyers and businesses, areas for proactive action on anti-discrimination is to speak out publicly about discrimination, harassment and racism. This is one way that companies can use their leverage and exercise leadership on human rights about systemic issues in line with the UNGPs.

Other areas include developing and embedding more robust corporate policies for diversity and inclusion, as well as strengthening of grievance mechanisms for workers and other affected stakeholders to raise issues and have them resolved safely and confidentially. In this regard, the recent ILO Violence and Harassment Convention No.190 and its supplementing Recommendation No.206 (2019) are important references for businesses.