Interview with Sheri Meyerhoffer
Sheri Meyerhoffer is the former Canadian Ombudsperson for Responsible Enterprise. In this interview with IBA Multimedia Journalist Alice Johnson, she discusses this role and its challenges, soft and hard law frameworks, forced labour and supply chain issues and managing risk for business.
Alice Johnson (AJ): What first drew you to the world of business and human rights and what led you to become the Canadian Ombudsperson for Responsible Enterprise?
Sheri Meyerhoffer (SM): It was rather a circuitous journey. I started out in the oil and gas industry in Western Canada, and I was a lawyer and a lobbyist in the industry for 17 years. Then I decided I wanted to port my soft skills, which were regulatory review and stakeholder engagement, into international development and I was successful in that.
I ended up doing work internationally, including ten years in Nepal where I worked on the Constitution. I had just finished my last stint in Nepal and had gone to the Harvard Kennedy School, and there I took a class on transnational governance with Professor John Ruggie, who was the author of the United Nations Guiding Principles (UNGPs) on Business and Human Rights. I was in his class in January 2018 and he said, ‘Canada's just done the most wonderful thing. It's announced that it will create the Office of the Canadian Ombudsperson for Responsible Enterprise (CORE), and it's built on the UNGPs’. And so, I'm sitting there in class thinking, I've got 17 years in business and I've got 13 years in international development, on human rights and constitutional matters – this is a perfect sort of role for me, putting the two things that I knew with my passion for human rights. So, I applied for the job and I got it.
We were very successful at bringing complainants and companies to the table to help them resolve the issue
AJ: What was the purpose of your role and what kind of enforcement powers did you have?
SM: [The Office] was birthed from Principle 27 of the UNGPs which encourages states to create non-judicial grievance mechanisms and as the first Ombudsperson, it was my job to create the Office pursuant to the mandate under an Order in Council [a legal instrument]. So, I used the UNGPs to build out the Office.
The mandate of the Office was to monitor Canadian garment, mining and oil and gas companies when they were operating outside of Canada and to hold them accountable. So, to monitor them, receive complaints and then if we received complaints to try, first and foremost, to facilitate or mediate the problems between the complainants and the Canadian company. And if we had to – and only if we had to – investigate whether an abuse had taken place. But usually what we tried to do and what we were very successful at, was bringing complainants and companies to the table to help them resolve the issue, identify whether there had been a human rights abuse or not – sometimes there wasn't, sometimes there was – and identify how to rectify that situation. And we had huge success in complaints being withdrawn because they'd been addressed, or in finding a reasonable conclusion with next steps that companies would take.
AJ: What were some of the challenges that you faced in your role?
Uyghur cotton. Alamy.com/Kim GORDON-BATES
SM: I think that the biggest challenge was that companies who did not understand the business case for being accountable, for being responsible, did not engage with the CORE. And that's when we had to do investigations – that's using resources to go after something as opposed to resolving something [first]. It was frustrating that some companies didn't understand the value of it.
AJ: I know that during your tenure you opened multiple investigations into allegations of Uyghur forced labour in the supply chains of Canadian companies. How much do you think this is an issue in global supply chains?
SM: It's huge. A lot of cotton comes from the Uyghur or the Xinjiang region. We know that Uyghur forced labour is a fact. There have been lots of reports done by international NGOs and also the UN's Office of the High Commissioner for Human Rights. The UN and Canada and the US have all acknowledged it's a problem that there's forced labour there, and that cotton is in the supply chains. The role of offices like the CORE, and of companies in their day-to-day business and their risk assessment, is to do all the things that you can do to identify whether you have that risk in your chain. And you can even get DNA of cotton these days, so it's easy once you have a process in place, to identify where you have a risk. And if you have a risk, what you can do to address it.
AJ: Do you think the laws and regulations are strong enough to hold companies accountable if they do have Uyghur forced labour in their supply chains?
SM: John Ruggie always talked about a ‘smart mix’. The UNGPs are voluntary, OECD guidelines are voluntary. We've got legislation that either exists already – a lot in Europe – or is coming up. There's been some retreat, in a way, from some of this legislation. But I would say that where we are, we've got a lot to work with, even with the UNGPs which are voluntary. There is so much there upon which countries can hold others accountable, [both] morally and also there's the strong business cases I've talked about. It may not be perfect and I think it could be stronger, but I think we're on the right trajectory. And even with this sort of stepping back, I see a trend in companies really seeing the value of this. I think they're going to take this forward.
AJ: Do you think that Canadian enforcement agencies have the necessary power and resourcing to handle these kinds of cases?
SM: What I found at the CORE is that where companies will engage with the Office, we have the power. The tools are there. But where companies won't engage, the tools aren't strong enough. My Office did not have the power to compel documents or witnesses, and the only way you're going to get evidence from the corporate side in a situation where they're not going to comply, is to have those powers. We did one investigation and we found human rights abuse and we made a number of recommendations. If the company had engaged and if they had provided contrary evidence, could we have decided something different? I'll never know because they didn't engage. If I'd have had the tools to compel, I would have had all that.
AJ: Do you think there are any other jurisdictions that are handling things a little better or that we could learn from?
SM: I'm following the EU – the Corporate Sustainability Due Diligence Directive. We're not sure where they're going to land. I think it was very well laid out. There's been a little bit of a request for them to retract. And I'm not sure exactly where that's going to go, but it's still a good model. I think a lot of us can learn from that and I'd like to see Canada have human rights due diligence legislation and to sort of streamline everything we're doing in business and human rights here, bringing it all together under one umbrella, which is what I think is so good about what the EU has been doing.
AJ: Just to go back to when you were at the CORE, on average, how many complaints did you receive about human rights abuses? And did you see any kind of patterns or trends in these?
SM: It's interesting. Historically, [around] 60 per cent of the world's mining companies were Canadian [or] with some kind of a Canadian connection. And so, I think my assumption was, and I think everyone's assumption was, that the cases we'd get in would be mining cases. As it turned out, just as we started in 2019 and what was going on in the world at that time with the Uyghur and the discoveries we were making, really a majority of the complaints were garment-related, which I think was unexpected. [There was a] real focus on supply chain and forced and child labour. It forced the CORE and I think the Canadian government, too, to look more at supply chain issues. And then we have the Modern Slavery Act that came in in Canada which looks at forced labour and child labour.
AJ: In sectors that are particularly high risk, such as garments and mining, like you've mentioned, do you think it would ever really be possible for companies to completely root out these kinds of risks with third party suppliers?
SM: No, there's no business that's risk-free. Things happen and human rights are negatively impacted. The important thing is that if we've identified that we have, in fact, adversely impacted a human right, we know what we're going to do to address it, whether that's as a country, a state or as a company.
Things are always going to happen. That's not the point and no one's perfect. Those good companies who understand the business case realise that those risks are there. It's part of their business. The higher the risk of the type of work you're doing, the higher the risks of the geopolitical environment that you're operating in, you have to do more work because there's just going to be more risk and you have to have better plans in place and know what you're going to do when things arise.
This is an abridged version of the interview with Sheri Meyerhoffer. The filmed interview can be viewed in full here.