Responsible Business Conduct and Impact Assessment Law: Origins of a Project and Reflections

written by Prof Sara Seck 

Environmental lawyers and environmental law professors spend a lot of time thinking about how to prevent environmental harms and the key role that environmental assessment legislation can play to that end. My late colleague Meinhard Doelle, founder of this blog, was a preeminent example of this. His expertise in environmental assessment (EA) law in all its diverse forms – including its potential to tackle challenges such as climate change – is well known and involved collaborations with many (see 2016 blog on next generation EA with John Sinclair and Robert Gibson). Meinhard passed along his knowledge and passion for EA – and by extension, the more expansive impact assessment (IA) – to numerous undergraduate and graduate students, including Dr. Adebayo Majekolagbe, who defended his PhD thesis on just transition and impact assessment law in December 2022 (see 2023 blog reflecting on Meinhard’s contributions to Bayo’s thinking).

While Meinhard was musing about how to prevent harm through legislative EA tools, I was thinking about how developments in the new field of business and human rights (BHR) might be used to prevent harms using a human rights and environment lens (see blog co-authored with Meg Williams). I was also collaborating with University of Ottawa colleague Penelope Simons on the human rights concerns arising from extractive industries with a particular focus on Indigenous rights and gender justice (see co-edited special issue of CJWL and book chapter).

Meinhard and I would sometimes reflect upon our different approaches to similar problems, and in 2019 an opportunity arose to seek research funding through a SSHRC Knowledge Synthesis Grant: Informing Best Practices in Environmental and Impact Assessments. The context was the recent passage of new federal impact assessment legislation, and, greatly assisted by Bayo, a team was assembled including our Dalhousie colleague Naiomi Metallic, Chancellor’s Chair in Aboriginal Law and Policy, and a successful application submitted.

Details about this project and its outcomes are available on the Schulich Law Scholars digital commons (herehttps://digitalcommons.schulichlaw.dal.ca/ialawrbc/). We described the project as follows:

Extractive companies play a major role in the Canadian economy, and their actions have multi-faceted effects on the communities in which they operate, whether within or outside of Canada. Currently a wide range of Responsible Business Conduct (RBC) guidance tools, often embedding human rights due diligence, are promoted to extractive companies. At the same time, companies must comply with Impact Assessment (IA) laws in the jurisdiction in which they operate. While the legal framework of IA and the various RBC tools have some obvious overlaps, their interrelationship has been understudied. This project aims to illuminate the interrelationship and to encourage further research with the aim of facilitating an effective and human rights respecting approach to the integration of IAA and RBC in Canadian law and policy. This research is funded by a SSHRC Knowledge Synthesis Grant: Informing Best Practices in Environmental and Impact Assessments led by Professors Sara Seck and Penelope Simons (Ottawa) with collaborators Professors Meinhard Doelle and Naiomi Metallic and doctoral candidate Bayo Majekolagbe as lead graduate researcher.

A team of JD and graduate student researchers were assembled at both Dalhousie and Ottawa, and in 2020 (updated in 2021) we completed an overview report described as follows:

This report aims to identify RBC tools referenced in the literature as relevant and/or promoted to Canadian extractive companies operating within and outside Canada. While not appraising or pronouncing on the quality of RBC tools, we consider the different actors that promote these diverse tools and whether there is a coherent framework for the efficient and effective application of current and future tools. We focus on RBC tools on human rights, stakeholder engagement, the rights of Indigenous peoples, and the rights of women and girls. Further, we review the position of scholars on the relationship between RBC and IA.

We also completed an evidence brief that was shared with others as part of the Impact Assessment Agency of Canada (IAAC) and SSHRC’s aim to “inform best practices for environmental and impact assessments” (see all evidence briefs here).

At the time, Meinhard and John Sinclair were in the process of editing a new book reflecting on diverse aspects of the new Impact Assessment Act. Entitled The Next Generation of Impact Assessment: A Critical Review of the Canadian Impact Assessment Act, this book project provided us (lead author Bayo Majekolagbe) with an opportunity to draft a chapter reflecting on the IAA RBC relationship (pre-print posted here). We describe our aims in this chapter in part as to:

highlight the role of proponents and their consultants as human rights duty bearers and recommend the integration of human rights approaches into impact assessment processes under the IAA.

However, our work was not – and is not – complete. The conversation about EA and IA laws and RBC that integrates human rights due diligence (HRDD) is still new and ever evolving. For example, one set of RBC guidance that we examine are the OECD Guidelines for Multinational Enterprises, which in 2011 were updated to include a human rights chapter. Currently, the OECD MNE Guidelines are undergoing a ‘targeted update’ which it is anticipated will do a better job of addressing some of the challenges we examined in this project. (An online public consultation on the proposed targeted updates is taking place until February 10, 2023).

Beyond improvements to RBC guidance tools and better law and policy frameworks to facilitate the integration of RBC and IAA in the interests of ecological, environmental and social justice through respect for human rights, there is a need for educational tools that explore and explain these relationships to governments, businesses, lawyers and communities (among others). From 2021 to 2022, with the assistance of Charlotte Connolly and Erin Dobbelsteyn, we embarked upon the development of two such instruments:

• Toolbox (available here: https://digitalcommons.schulichlaw.dal.ca/ialawrbc/4/ ) and
• Issue Brief (available here: https://digitalcommons.schulichlaw.dal.ca/ialawrbc/5/ )

Both are works in progress. We invite feedback on these educational tools which will be updated over the course of 2023. Please send comments to: KSG.IA.RBC@gmail.com