THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
EVIDENCE
OTTAWA, Monday, November 6, 2023
The Standing Senate Committee on Human Rights met with videoconference this day at 4:37 p.m. [ET] to examine such issues as may arise from time to time relating to human rights generally.
Senator Salma Ataullahjan (Chair) in the chair.
[English]
The Chair: Honourable senators, I am Salma Ataullahjan, a senator from Toronto and chair of this committee. Today we are conducting a public hearing of the Standing Senate Committee on Human Rights.
I will now invite my honourable colleagues to introduce themselves.
Senator Omidvar: Ratna Omidvar from Ontario.
Senator Hartling: Nancy Hartling from New Brunswick.
[Translation]
Senator Gerba: Amina Gerba from Quebec.
[English]
Senator Jaffer: Mobina Jaffer from British Columbia.
Senator Lankin: Frances Lankin from Ontario.
The Chair: Thank you, colleagues.
Welcome to those who are following our deliberations. I must apologize to the witnesses and those watching online. It seems I can’t get into Ottawa even if I am on a 2 p.m. flight. I can’t get in on time. I had also committed to an interview. I apologize for being late.
Before we start our official proceedings, there is a housekeeping motion that I would like to have someone introduce. The motion is the following:
That notwithstanding usual practice, pursuant to rule 12-17, the committee be authorized to hold this afternoon’s meeting without quorum if necessary for the purpose of receiving evidence, provided that two committee members are present.
Colleagues, are we all in favour? Thank you.
I declare the motion carried.
Today, our committee will continue its study on forced global displacement under its general order of reference. We intend to hear from experts and stakeholders on a wide range of issues relating to human rights impacts around the world.
Topics may include the effects of displacement on children, the efficacy of the Global Compact on Refugees, also known as the Global Compact, new and emerging mechanisms for financial support, the role of private sponsorship, the impacts of climate change and Canada’s international role in curbing forced displacement while supporting refugees.
This afternoon we shall have three panels. In each panel we shall hear from the witnesses, then the senators will have a question-and-answer session.
I will now introduce our first panel. Our witnesses have been asked to make a five-minute opening statement.
I wish to welcome our first witnesses, who are both in person with us today. I thank you, gentlemen. We have Craig Damian Smith, Co-Founder, Executive Director and Principal Investigator, Pairity; and James C. Hathaway, Professor of Law, Founding Director of the Program in Refugee and Asylum Law, University of Michigan.
I now invite Mr. Smith to make his presentation, followed by Professor Hathaway.
Craig Damian Smith, Co-Founder, Executive Director and Principal Investigator, Pairity: Thank you very much for having me and giving me the opportunity to contribute to this study. By way of background, I left my position at the university about a year ago to work directly on this project called Pairity which I founded with other academics and rights experts and data scientists. Our mission there is to apply data and technology and academic research interventions to help scale refugee resettlement and community sponsorship, to improve matching and placement and also to measure outcomes around the integration of refugee newcomers and social cohesion with receiving communities. We work with all levels of government, with a focus on facilitating solutions to global displacement problems.
You’ve already heard and will hear from experts who are going to diagnose the big-picture problems, and I’m happy to talk about that afterwards. I want to focus on how innovations in tech can help meet big goals of additionality and responsibility sharing that are at core norms of the international refugee regime.
I want to start with this observation that Global North states, including rich states like Canada, the U.S., a range of EU member states and the U.K., are all piloting various forms of community sponsorship and complementary pathways, including labour pathways, education pathways and family reunification for refugees, many of which draw inspiration or direct support from Canada’s successful models here.
Over the past few years at Pairity, we’ve been engaging with a range of organizations and governments to understand what the practical barriers are to scaling up those programs and meeting obligations that states have set for themselves under agreements like the Global Compact on Refugees. What we’ve found, in a nutshell, is that the major barriers are regulatory and visa barriers and things like processing timelines, which are not news to people who follow immigration in Canada, but also the absence of coordination among destination states that draw from the same pools or populations of displaced people.
In particular, there is little to no cooperation between rich states on how to engage with displaced people in third countries, so in countries of asylum, and this is a problem that we call front-end recruitment. There is little to no consideration of refugees’ preferences or their attributes or their capacities vis‑à‑vis all of these different pathways that are emerging across a variety of destination states.
There is a lack of coordination among destination states to make the best possible placements, and this is something we call back-end vetting and sorting. Neither is there cooperation among receiving states to track and compare how successful resettlement pathways are to understand post-arrival outcomes and to optimize and improve cooperation over time.
Many of the problems can be addressed by harnessing available technology and available data interventions and funding new innovations.
We should also recognize that there is a lot of academic and policy literature on the use of data and technology in migration governance, much of which is dominated by a techno-skeptical approach, and this is pretty well-founded approach, particularly because states primarily use technology to control and prevent rather than facilitate migration. Canada is also a leader there. On the other hand, really techno-optimistic people ignore refugee protection and safeguarding. They ignore some of the pitfalls of applying data and tech to humanitarian situations. Then there are real-world, on-the-ground, nuts-and-bolts problems around refugee digital literacy and ways that you can engage displaced populations.
Our work shows that there is a middle path that’s possible that can harness data and tech while overcoming these hurdles. It is not only possible but achievable to optimize access to and outcomes of existing programs and then provide evidence for the kind of policy-relevant data and evidence that would help politicians scale these programs.
Canada is already a global policy leader in terms of per capita refugee settlement, community sponsorship, and complementary pathways. Canada piloted the Economic Mobility Pathways Pilot, or EMPP. Canada is the home of the World University Service of Canada. Investing in innovation in this regard is really low-hanging fruit. It’s not politically difficult to do, and it can have outsized impacts as well that can help fulfill some of the promises of the Global Compact on Refugees, specifically around additionality and responsibility sharing. It can create new venues for international cooperation between destination states and host states and offer tangible opportunities for displaced people that might, in turn, help reduce demand for irregular mobility.
I’ll end by saying that irregular mobility is not only primarily dangerous for migrants, but it funds transnational criminal groups, it drives outsized spending for ineffective border controls and containment policies, it undermines public sentiment around immigration and asylum systems, and it can bolster nativist populist parties in liberal democracies. There are very real things that Canada and its partners internationally can do to offer alternatives to that. Thank you.
The Chair: Thank you very much, Mr. Smith.
[Translation]
James C. Hathaway, Professor of Law, Founding Director of the Program in Refugee and Asylum Law, University of Michigan, as an individual: Thank you for giving me the opportunity to appear before the committee. I am pleased to be back in my country. It’s wonderful!
[English]
I have been asked to share some comments with you on the UN’s Global Compact on Refugees. In a nutshell, it’s too little, too late. It’s what lawyers would call an agreement to agree. It has lots and lots of meetings, but to this point it has, in my view, no substance.
Sadly, it’s the only game in town on the global front. So I do recommend that Canada engage it, but I want to suggest to you, senators, that I believe we can and should engage the process in a way that gets it out of the talk-shop mode that it has languished in to this point and becomes a real engine for action on the ground, which, of course, is what matters to refugees.
Specifically, there is nothing wrong with the current 1951 Refugee Convention’s definition of a refugee. It works well. There is nothing wrong with the catalogue of rights that it gives refugees, rights of empowerment, by and large, that work quite well when respected. The drafters of the treaty knew, even in 1951, that there was a missing third leg, and that’s what the Global Compact on Refugees was supposed to fix and hasn’t. It is to create a mechanism to actually operationalize the global system in a way that is equitable and predictable for all countries. That should be the Canadian goal.
A project that I led at York University some 20 years before the Global Compact on Refugees devised a model that I want briefly to speak to that has two virtues. Number one, it is an insurance model that enables all states to know their interests will be protected even as protection is routinely afforded; and, number two — I want to suggest this particularly in this moment in our history — it is a cost-neutral model. It costs not one dollar more than what we’re already spending.
We need to shift to a model of common but differentiated responsibility at the global level and away from this atomized, one-by-one, every state does it for itself model. Spending in just rich countries is more $20 billion every year, just to assess refugee claims, which is four times what we have available to meet the needs of the 80% of refugees in the Global South. I think that is a travesty and immoral, and I believe Canada has what it takes to lead us out of that mess.
The project I led basically thought there were four main problems with the refugee system.
The first is barriers to access to asylum. Believe it or not, the Global Compact, the UN’s much-vaunted achievement, does not even mention the word “access” to protection anywhere. What good is a system if you can’t get to it, or if you have to mortgage your future to traffickers or smugglers?
The second problem we sought to address is warehousing. Today, more than a third of refugees are still stuck in refugee camps. Roughly another third are stuck in urban slums without the ability to work or feed their families. This is as immoral as one can imagine.
Third, the financial waste that I just described, that we’re throwing away $20 billion a year just in rich countries to assess the claims of less than 20% of the refugees who get to us, which is four times what is available to meet the needs of the 80% in the Global South.
And the final problem, which to my mind is the biggest problem that just never gets talked about, is that, today, two out of every three refugees are in what is called “protracted refugee situations,” meaning that their situation has gone on for at least 20 years with no end in sight. That number — and I just looked it up last night in preparation for meeting with you — has gone up from 16 million to 24 million just in the last four or five years. Of those 24 million people whose lives have been put on hold, only a paltry 120,000, less than one half of one per cent, get resettled in a given year. In my view, an essential part of what should be the protection regime is treated as nothing more than an optional add-on, and we would be better with a system at which it is at the core.
I will just quickly mention the five points in the system, and then I’ll await your questions about why we might want to go down this road.
The first point is that we would treat the point of arrival simply as the entry point into the international system. There would be no assumption that because you arrive in Canada you would stay here. This is a safe point of entry into a global system. By severing that cord, we get rid of the incentives for smugglers and traffickers because they have no immigration results to sell. It also means that the refugee who crosses the border from Sudan or the one able to afford a trip to Toronto is treated the same.
The second is quick normally group-based assessment of status. To put it simply, we do not need a $25,000 hearing to figure out that an Afghan woman is a refugee. Most refugees do not require the bells and whistles system that we have.
The third is that the initial period of protection would normally happen in the region of origin, in a safe country in that region, to which we would move the refugees and in which they would be able to get on with their lives, maximizing cultural, occupational and other compatibility for up to five years. They would also be close enough to the place of origin to explore repatriation, which is critical if we are to keep the system alive and which immediately moving people far away destroys.
The fourth point is quality asylum in the country that provides that initial protection, not just by way of underwriting the costs of the system but by way of joint grants that enable refugees to be seen as benefits by their host communities in the development process.
The last and most critical point is that if we look historically over the last 20 years, about a quarter of refugees are able to go home within five years; about a quarter of refugees are able to locally resettle.
That leaves the half that has, thus far, become the protracted refugee problem. Under this model all of those persons would be guaranteed resettlement at the five-year point, the major job for countries like Canada. We would move to about 1.7 million resettlements per annum, which may sound high, but we’re currently processing 1.65 million asylum applications in rich countries, a job that would no longer exist under this model. We simply trade expensive legal systems for a guarantee of resettlement at the five-year point.
I look forward to your comments and your questions, but if I may pitch this: We need to push hard to make the Global Compact not just this talk shop, but to actually demand real, concrete proposals for a global system of common but differentiated responsibility among states. Thank you.
The Chair: Thank you very much to both of you for your presentations.
We will now proceed with questions from the senators. I would like to remind each senator that you have five minutes for your question, and that includes the answer.
Senator Jaffer: Thank you both for coming. It is an honour to have you here. There are so many questions that I have, but I would like to start with you, Mr. Craig Damian Smith.
At what scale is Pairity operating? How wide is it, and what kind of work are you doing in Canada, or are you doing any work?
Mr. Smith: We’re not currently working in Canada. The project is an outgrowth of Canadian government SSHRC-funded projects to look at relationships between access to social capital and refugee integration and social cohesion with receiving communities. That was a pilot in the Netherlands in four cities that ran for a couple of years.
We now currently work on a major project in Europe helping to relocate and destine Ukrainian refugees from Poland, so from front-line states to six municipalities in Germany. Our largest project is in the U.S. We work on Welcome Corps, which is the U.S. and the Biden administration’s new private sponsorship program for refugees, and at that scale it is several thousands of matches that we do. The core piece of technology that we built is a series of algorithms that help make the highest-quality matches between refugees and resettlement pipelines or relocation pipelines and destinations or sponsor groups. It’s a mix of them.
I will say that we’ve had interesting conversations in Canada with ministers’ offices.
Senator Jaffer: Nice to see you again, Mr. Hathaway. It has been a long time. Welcome.
I’m intrigued both by your four points and your five points. There are so many questions that I have, but I’ll start with your warehousing and your four points. In the refugee camps, urban slums, would you put detention centres there too?
Mr. Hathaway: I didn’t in those numbers, but yes, you’re quite right. Beyond the third who are stuck in refugee camps and the third who are stuck in urban slums, particularly in countries like the United States that illegally detain all asylum seekers, there are many more who are having their rights denied even as we speak.
Senator Jaffer: Sadly, even our country has detention centres, and it’s not something we’re proud of.
Mr. Hathaway: Yes.
Senator Jaffer: This is the first time I heard of your five points. I’ll study it more, so I apologize. In group-based, I have often talked to our government. I’m Ugandan, and we were group-based. I’m a Canadian now, but what I meant is as Ugandan refugees we were group-based. Since then, I have been trying, but I haven’t succeeded, to convince the government to have Afghan women or groups like that group-based, especially after we left Afghanistan. But it doesn’t seem like there is an interest in group-based.
Have you discussed this with the government?
Mr. Hathaway: Yes. Ironically, many years ago I was involved in training all the original members of Canada’s refugee board, and someone who became the clerk of the Privy Council was then the executive director of the IRB, Peter Harder. Peter and I came up with the scheme for what we called “manifestly well-founded cases,” that if an individual came from a group that we knew would be predominantly recognized, you could have a 30-minute hearing to vet identity and security, and you didn’t need to waste money on a hearing.
I don’t know if that still exists. I suspect that it doesn’t, but it was a brilliant idea.
The UN, of course, does most of the status determinations around the world, more than anyone else, and they use group status determination almost exclusively. People who raise security concerns or identity concerns you siphon out or who have particularized claims. But again, if you look at the major refugee groups in the world today, they are fleeing group-based, and once identity is established, there is not a lot of value in putting people through not only expensive but traumatic hearings.
Senator Jaffer: Until very recently — I don’t know about right this minute — I know when I was a practising lawyer, if the person was Bahá’í, it was fairly simple to get them in. We had that system until very recently. I have not heard of any dFAST except for that group.
Senator Omidvar: Let me first congratulate the chair and the clerk for securing the presence of leading minds. I have learned a lot from you in the past, and I am delighted that you are here helping us think outside the box, because that’s what we need to do. My first question is to Professor Hathaway.
Your proposal to create a system that moves people through the process without having to go through the traumatic and very expensive process of hearings, et cetera, is something I have heard about. Could you tell us, though, in your own words, whom it would be better for and how?
Mr. Hathaway: I think it is better for everyone. As someone raised as a Catholic, I do everything in threes. One, for refugees they wouldn’t need to risk their lives to get access to solid protection. Two, the protection would really be protection, empowering protection, not being locked up in detention or dumped in a camp for 20 years. Third, and most important, everyone would get a durable solution within five years; no more protracted refugee situations.
There is a triptych for rich countries and poor countries as well. Poor countries wouldn’t have to beg for charity as they do now. Second, the funds would go not just to the process but to fund linkages between refugees and host communities. Third — this is an important thing I learned from time I spent in Africa — they wouldn’t be punished for keeping their doors open by us telling them that they have to keep these people forever, and we have no responsibility ever to do anything about them by our mandatory resettlement.
Senator Omidvar: Who would govern this system? This is an important question.
Mr. Hathaway: It is a mega-question. For me, one of two. The other is: How do we get from here to there?
Ideally, we would have had the UN Refugee Agency, also known as the Office of the United Nations High Commissioner for Refugees , or UNHCR, say that they would take this on. They have shown very little interest, if I may be blunt, in actually modernizing their approach to protection. They seem to feel that spinning the wheel the way it has been spun for 70 years is what they do best. They have not shown great interest in this.
The World Refugee Council, among others, has suggested, as you would know, that maybe we need to think more broadly about the international supervisory agency. The International Organization for Migration, also known as IOM, and UNHCR are already clashing. They probably will be consolidated at some point in the next few years. This is a good moment to talk about what we want the international agency to look like.
Senator Omidvar: I have a few more questions. I have a question for Professor Damian Smith.
I appreciate the work you are doing with your partners and with technology. I know your work, and you have reflected on global tensions and global solutions as well.
As we see what is happening right now in the world, responsibility sharing is being dismissed everywhere. Turkey is being paid by the EU to host Syrian refugees. Italy is going to outsource processing to Albania. We should talk about what the U.S. is doing. The U.K. is going to outsource processing to Rwanda. Pakistan is deporting refugees, including those who may have visa authority from Canada.
I would like to get your perspectives on what either the global order should do, or what like-minded states should do, or what Canada specifically should do.
Mr. Smith: I am glad you raised the term “common but differentiated responsibilities.” What’s happened with this kind of underlying norm of the refugee regime is that, essentially, rich states pay for host states to keep refugees there. “Refugee warehousing” implies that there is an actual policy at play, and there is coordination between states in order to make that happen. So “common but differentiated responsibilities” essentially entails cheque book diplomacy to keep refugees where they are, with a smattering of humanitarian resettlement.
Changing that, changing what we understand as common but differentiated responsibilities, again, if we look back at the Global Compact for Refugees, the process from the first draft — or the zero draft, as they called it — to the final draft, the big idea was benchmarks around responsibility sharing. What would responsibility sharing actually look like, and how could you meet certain benchmarks per year, one of which could be humanitarian resettlement as a durable solution? That was abandoned, because of the politics, from the zero draft to the first and then to the final.
Canada and its partners, like-minded states, could commit, as sovereign states, to reinvigorate that process and think about what benchmarks might actually look like. We were in Berlin together once where we presented papers on what actual metrics or responsibility sharing would look like.
There is no dearth of models that we could look at regarding what would be equitable responsibility sharing or for what common but differentiated responsibilities could look like. It’s the political momentum to institutionalize those which I would diagnose as the big problem. There are hundreds of smart people who have already put their minds to solving these problems.
Senator Lankin: We truly appreciate you travelling to be here with us and help us with this project. I have a lot of questions. I will start with one that is to both of you.
Mr. Smith, when you say “responsibility sharing,” and, Professor Hathaway, when you say “common and differentiated responsibilities,” I want to know if we are talking about the same thing or if they are two different concepts. If they are the same thing — or not — maybe you could explain? In the U.S. example, you were talking about states versus federal. In Canada, is there an example of lack of responsibility sharing between provinces that do the settlement, work with community agencies, and the federal government, or are you talking more about Canada’s responsibility to talk with other like-minded states and put in place these other benchmarks and other things? Could you both elaborate for me?
Mr. Smith: I would defer to the lawyer for the definitional distinction.
Mr. Hathaway: We are good for something. I will be honest with you, a lot of people use “burden sharing” to mean everything. The European Union, for example, has one big formula that is about both money and people, which I think is appalling. I think it is the wrong way to go.
The York University project I described to you was the first to come up with the dichotomy between burden sharing, which is sharing money, which is the fiscal responsibility, and responsibility sharing, which is about people. People are not burdens.
That’s not the same as the common but differentiated responsibility, or CBDR, that says it is okay if it is not a one-size-fits-all model.
For example, under our model, all states would do first reception. States in the region would do what we call protection for the duration of risk in those early years. Countries like Canada would do resettlement primarily which, by the way, most African states don’t want to do.
We let different states do different jobs in the system that come together to form a holistic, complete protection regime. We are pursuing the burden and responsibility sharing by a diversity of roles, which all add up to what is needed. Does that help?
Senator Lankin: Yes. The example that you gave from the States though was clearly —
Mr. Hathaway: I’m trying to remember what the example was.
Senator Lankin: When you were talking about common but differentiated responsibilities. I thought you were talking about the States, where each state does their own assessments.
Mr. Hathaway: I meant states as in countries.
Now every state party runs its own system, has its own bureaucracy and decision-making body. Wouldn’t it be more efficient to have an international corps of decision makers that you simply deployed to a given situation?
Senator Lankin: Thank you. It does make sense.
Mr. Smith, I don’t have the words exactly, but you talked about skeptical data or skeptical technological framework.
Would you elaborate in terms of what parts of the system creates this skepticism and what the process of changing it would look like and the factors involved?
Mr. Smith: Yes. Thank you for the question.
We use algorithms. We use big data. There are some aspects of our work that would benefit from machine learning and AI. Those sound like scary words, especially when applied to migration governance.
Countries like Canada use stats and some aspects of machine learning to try to make sure that people who get temporary residence visas to visit Canada, who might be trying to seek asylum, have their visas rejected.
The European Union uses a lot of technology to close external borders to make sure people can’t arrive or, when they do arrive, that they are easily followed and apprehended, for example. That’s the way that most states have started to use these emerging technologies in relation to migration governance, there is now — from academics and observers — a techno-skepticism that’s ignoring the ways that tech applications can be used to facilitate and improve mobility. That’s what I meant.
On the techno-optimistic side, there is the Silicon Valley mentality that you throw all your tech at something and it will be fixed. That completely misses the point that you are dealing with vulnerable populations, politically sensitive issues and that a large degree of expertise in dealing with those people, versus things like trauma-informed care or protection standards, are necessary aspects of that.
In 2016, we saw hundreds of apps emerge. There was an app for everything, for every aspect of refugee mobility. Not only did the public interest in that wane in a couple of years, as the news cycles moved on, but most of those things collapsed because people didn’t want to use them. People want to get on with their lives.
What we talk about is using different types of tech to facilitate access, make better placements and optimize things, and also ensure that displaced people are different agencies in the process. That’s how we come at it.
[Translation]
Senator Gerba: Welcome to the witnesses. It’s truly a privilege to have you with us today.
My question is for Mr. Hathaway.
Last week, we heard from witnesses that only 36% of the funding for the United Nations High Commissioner for Refugees, or UNHCR, has been met. However, we’re seeing incredible numbers: 114 million refugees.
In your remarks, you stated that it’s not actually a funding issue. As I understand it, $20 billion is spent annually. It seems somewhat surprising to see that, on one hand, we’re told that there’s a shortage of funds and, on the other, that we’re spending for nothing, since you say that only 1% of results are achieved.
Could you tell us more about your perspective on the issue of funding for the United Nations High Commission for Refugees and the use of those funds?
Mr. Hathaway: I agree with you that it’s astonishing. From my perspective, it’s really not an ethical situation.
I said that we spend vastly more money monitoring and setting up a recognition system for national refugees than we spend on 80% of refugees in the Third World. In my opinion, that is surely overspending that makes no sense.
I’m not referring so much to the UNHCR as an organization. However, it is worth noting that 98% of the UNHCR budget is not guaranteed. Only 2% of its budget is guaranteed, which means that the organization is highly susceptible to being influenced by current trends at any given time. It doesn’t have the opportunity to properly plan for the future.
Under the system I’ve proposed, there would be a kind of securities exchange commission, whose funds would no longer be wasted on the national system. Those funds could be used to pay the costs of an international adjudication — the costs for transportation and support in the first asylum country — and at the end, if necessary, to help the person come to Canada, Europe, etc.
Senator Gerba: My question is for Mr. Damian Smith.
You spoke about computer systems or applications for evaluation or processing, whereas we can see that many algorithms still contain biases.
What system do you propose for evaluating applications?
[English]
Mr. Smith: There are different types of systems that can be used.
If we want to take the biggest global picture, which seems to be the framing or the discussion here, you have hundreds of thousands, millions of refugees who are awaiting resettlement who are potentially in protracted situations, potentially who have only been refugees for a few years and this multiplicity of pathways around the world.
You have all of these complimentary pathways. You have resettlement systems, private sponsorship in the U.S., cosponsorship programs for Ukrainians, programs for Afghans, et cetera. There is a dizzying array of these things.
Essentially, the way we have it set up now is get in line for UNHCR. UNHCR will tell you what’s available, unless you have a named sponsorship under a private refugee sponsorship like we have in Canada, but that is, essentially, now family reunification. There is nothing wrong with that. People have family members who are refugees. It also is an unequal distribution of resources because those resources are accrued to people who are in countries like Canada who can afford to resettle them.
Technological interventions could do a number of things: one, on the front end of recruitment, allows people to potentially enter a global cue or a global clearinghouse type thing. We could understand where they have family members, what type of work they want to do in the future, if they want to go to school, et cetera. Then, on the back end, states like Canada and partners could put in X number of spots for resettlement or complementary pathways.
The types of algorithms we use are called preference matching algorithms. They are used in medical residency placements in the U.S. and have been for years, and are based on sound economic models. Instead of taking the best possible match and going down a ladder until you get the worst possible match, it distributes resources and maximize utility — sorry to get a bit technical — to try to meet the preferences of both or the capacities of both sides of a match. In that way, it helps scale, but it also helps reduce bias in how matching works, and it can scale tremendously.
We’ve seen the backlogs in Canada when it’s up to civil servants to look through excel sheets. That’s not an efficient way to look at data, and it is not a fair way to look at immigration or grand visas. That’s what I mean about the middle path between techno-skepticism and techno-optimism, it is a path that, yes, helps smooth the path and helps scale access.
Senator Jaffer: I have a question of Professor Hathaway and then one for both of you. I don’t understand what you meant by “move to safe countries.” What do you mean by a safe country?
Mr. Hathaway: For example, someone fleeing Venezuela might be living in Costa Rica rather than in Canada for those initial years.
Senator Jaffer: Would you consider Costa Rica a safe country?
Mr. Hathaway: Yes, I would. The litmus test is two-fold. One, have they signed the Refugee Convention? And two, do they actually do it? That would be the litmus test, because the funding would only go to host states conditional on their living up to their Refugee Convention obligations.
Senator Jaffer: I have so many questions for both of you. When I hear what you are both saying and are you so enthusiastic, it really makes me very excited. I’ve been in the refugee system here for a long time, besides being a refugee, and I find now that public opinion is against refugees and against immigration. Mr. Smith, you’ve been doing a lot of work with your training. What kinds of training are you doing to prevent anti-refugee and anti-immigration sentiments?
Professor Hathaway, it looks like — and maybe I’m being very dim today — Canadians don’t want to increase refugees. They don’t want refugees. If we even talk about refugees, it is, “They are taking away our houses. No. There is a housing shortage. We don’t need them.”
Mr. Smith: I don’t affect public opinion on issues around refugees.
Senator Jaffer: But are you doing training on it? That is what I’m asking. You have a training program.
Mr. Smith: One of the major things we do is try to measure not only refugee integration, but social cohesion and how the experience of receiving refugees into a community affects the receiving community.
Despite the recent Environics poll, despite opposition parties trying to tie immigration to housing and infrastructure — which ought to have been forever and ought to have been for decades tied to that. It’s probably a good thing that Canada is thinking about understanding infrastructure and housing vis-à-vis immigration. That’s an aside. Canada is remarkably resilient to anti-immigrant populism when it comes to it becoming a ballot box issue. That doesn’t mean those sentiments do not exist.
Mr. Hathaway: We have to change the way we frame this. It is not an “us versus them” game. If I said to you that we could do more good for more people with no more money, that’s a good starting point.
For the developed world — which is really your question — I would add three things: We would dry up the smuggling market, which Canadians are understandably upset about; we would be able to vet security concerns before people are resettled here, which responds to another huge concern; and, third, perhaps most fundamentally going to your question, by doing predominantly resettlement, we are embracing refugees in a way that is a better and easier social fit for countries like Canada.
Senator Jaffer: Thank you.
Senator Omidvar: I have a brief question for both of you. Professor Hathaway, as attracted as I am to your proposal — and I am really attracted to it —
Mr. Hathaway: I hear an academic question coming in here.
Senator Omidvar: No, no, I will play the devil’s advocate. You are suggesting that a nation, say, Canada, give up its national authority and let it be subsumed by an international governance model, and that we give up our money and live by the decisions of the international governance model. Is that politically doable?
Mr. Hathaway: I don’t think that’s quite what I am suggesting. I apologize if I gave that impression. We would have formulas for our share. The best version was done by Oxfam, which worked out that Canada’s share of global responsibility is roughly 2.5% in terms of finances and people. It is interesting, because preference matching is very much a part of the model, Mr. Smith is speaking about. Both Canada and the refugees would be involved in indicating what they find most palatable as a result. It doesn’t guarantee perfection, but it comes closer than the alternatives.
Senator Omidvar: Professor Smith, I appreciate the fact that you are working outside Canada on a made-in-Canada flag-bearing program, the private sponsorship program. I appreciate the fact that we sometimes strut around the world stage in a way that actually doesn’t match our reality. Let me give you one factoid. It takes 30 months for a private sponsorship application to be processed. That is twice that of family reunification, which is bad enough. Can your techno-optimism — because I’m an optimist and I like that word — be applied to Canada?
Mr. Smith: In my opinion, Canada does a lot right, but there is a lot of room for improvement in the way our systems work. Canada ought to put itself out there and be a policy leader and a policy entrepreneur. There are a number of countries around the world that have, for example, digitized citizenship models. In Estonia, for example, where the path to access to all social services, for voting, et cetera, is very smooth. We have a massively bifurcated system, which is split up between provinces, et cetera.
The answer is, yes. There is so much room for efficiency and improvement in Canada in a way that is not just hiring McKinsey to come in and do some consulting, but in a way that actually works with experts in immigration, works with people and communities who are immigrants and refugees, and helps streamline systems and optimize things. That’s less of a sales pitch and more of a diagnosis.
Senator Lankin: I think Mr. Smith said that Canada can lead us out of this mess, I’m not sure. Mr. Hathaway, you said we have to get the UNHCR out of the talk shop mode. I would ask both of you for three priorities, concrete measures that you would recommend Canada to take. I know there are more than three things. If this committee were to look at building recommendations, what would you like to see in those recommendations for Canada’s role, either getting it out of the talk shop, or in implementing different technologies, measures and systems, and shared responsibility with whom?
Mr. Hathaway: So you’re asking me for threes. Were you raised as a Catholic too? No, just kidding.
Senator Lankin: Close enough.
Mr. Hathaway: The number one for me would be to lay down a red line with UNHCR and say that we signed onto the global compact, but we signed on because we believe in concrete process on the ground. We do not believe in endless meetings. Deliver the goods or end the process.
Number two, in terms of what that would look like, we want to see a model for common but differentiated responsibility. The idea that one size fits all, that what Sudan does is the same as what Canada does, just does not make sense. Different countries doing different jobs, contributing to one net protection regime.
And the third thing — and this is coming from my heart — is that the non-negotiable is that there has to be a plan quickly to make real progress in protracted refugee situations. Twenty-four million people living for more than 20 years with no plan in sight for them is ethically unacceptable, and you need to deliver now with a plan on how we’re going to address that.
Senator Lankin: Thank you.
Mr. Smith: The primary one that we haven’t talked about much is around additionality, so ensuring all these new programs and innovations don’t actually draw down on existing commitments to humanitarian immigration pathways but are over and above them. That is supposed to be a principle that drives any new programming through the Global Compact on Refugees.
The second and very simple one would be to set benchmarks for what responsibility sharing actually looks like and write the numbers down. Some of them might be financial, and some of them might be for asylum. For example, Canada right now, working in Central America and Latin America, just keeps sending IRB decision makers to help Mexico’s asylum system instead of helping refugees get here. That, in itself, works as a kind of containment policy.
The third one is to implement these things and set timelines for implementation. We’re not going to open up the Refugee Convention for renegotiation, but we miss an opportunity with the Global Compact on Refugees to talk about what implementation means in a way that is not Sustainable Development Goals, amorphous benchmarks, that you just write into policy and programming. Get specific and follow up on commitments.
Senator Lankin: Thank you.
The Chair: Thank you, gentlemen.
I have a question, listening to both of you. We hear resistance to new ideas and no future planning, yet I’m listening to you and you have such good ideas. Has anyone come to you and say that what you are saying makes so much sense, and let’s work together? Or are they quite happy with the way — like you said, Professor Hathaway, just spinning their wheels and they don’t want to change?
Mr. Hathaway: I fear the latter. The five-year project that I described to you involving six governments including Canada, more than 60 academic experts from around the world, the UN and all the others there, on the very last day of the conference, the UN Director of International Protection walks to the front of the room and says: “We’re not willing to make this work. We’re not interested in implementing this.” You could have seen more than a hundred people ready to cry.
We have a problem of international leadership. I thought that we might have a moment — and this is back to what Mr. Smith said about having lost out on the Global Compact — when there was an Angela Merkel, a Justin Trudeau, a Jakaya Kikwete — there were a variety of international leaders who could have pulled us out of this mire, but we don’t have a champion right now. That is our biggest dilemma. People ask to hear about the plans, but nobody is prepared to champion them, and certainly not the UNHCR.
The Chair: You have the senators of Canada who would.
Mr. Hathaway: Which we are extraordinarily grateful that you are asking these questions, if I may say that. It makes me so proud to be Canadian that this Senate is asking these hard questions, so thank you.
The Chair: Mr. Smith, would you like to add?
Mr. Smith: Yes. We’re very lucky because we’ve been working for several years on this. We have most traction with NGOs, civil society organizations, and then get funding from outside parties, et cetera.
In the U.S., we work with the Department of State and with the White House. They’re very receptive. Where we have the most traction with policy-makers globally is by understanding what their domestic political constraints are. It’s very slow going. We can present all the great ideas that we want, but without recognizing the domestic politics, without recognizing what the costs would be for being an international champion for this — essentially what I mean is that the hyper-optimistic or extremely activist-oriented interventions along these lines tend not to end up in concrete programming. There is a bit of realpolitik that is always necessary.
The Chair: Thank you, gentlemen. We really appreciate your help as we move forward with the study. Don’t be surprised if you hear from us to have you back at a later stage. Thank you. It has been a privilege to listen to you.
Honourable senators, I shall now introduce our second panel. Each witness has been asked to make an opening statement of five minutes. We shall hear from the witnesses and then turn to the questions from senators. With us in person at the table today, I wish to welcome Camila Bustos, Assistant Professor of Law, Pace University; and, via video conference, please welcome Monica Iyer, Clinical Fellow, International Human Rights Clinic, Duke Law School.
I will now invite Professor Bustos to make a presentation, followed by Ms. Iyer.
Camila Bustos, Assistant Professor of Law, Pace University, as an individual: Good afternoon and thank you to the Standing Senate Committee on Human Rights for kindly inviting me today.
I would also like to echo the statements of my colleague Professor Iyer that will follow.
Before I begin my remarks, I would like to point the members of the committee to an important report that came out today authored by the University of Toronto Law Union. The report reveals the massive role that Canadian law firms play in enabling fossil fuel companies. The report finds that fossil fuel transactions completed by five Canadian law firms — Torys LLP; Fasken LLP; McCarthy Tétrault LLP; Miller Thomson LLP; and Osler, Hoskin & and Harcourt LLP from 2008 through early 2023, amount to $500 billion total.
Kudos to the law students who’ve built on the work of Law Students for Climate Accountability in the United States and the U.K. and have produced a Canada-specific report to illustrate how law firms often perpetuate the climate emergency.
I will now turn to climate-related displacement or migration. This is a complex phenomenon, so I’d like to highlight a few points before I tell you how law and policy can help protect those at risk, and those who are fleeing from climate and environmental disasters.
Displacement can be temporary or permanent. It may be caused by what is known as slow-onset events or events of gradual progression, such as coastal erosion or droughts, or by rapid-onset events, such as landslides, floods, and hurricanes.
While cross-border displacement captures the imagination of the media, which often portrays racialized images of helpless victims from the Global South to the Global North, most climate-related displacement is and will, in fact, be internal. According to the Internal Displacement Monitoring Centre, there were a total of 32.6 million internal displacements across the world in 2022.
In Canada, as Professor Iyer will highlight, communities have already been displaced from their homes due to extreme weather impacts such as flooding, mudslides, droughts and wildfires.
Existing law at the international, regional and domestic levels is insufficient to provide adequate protection to climate-displaced people. In the Americas, individuals displaced by environmental disasters are typically not granted refugee status and are instead offered humanitarian visas or complementary protection. While these measures are important, their use is typically ad hoc and on a discretionary basis in response to rapid-onset events.
Humanitarian visas and complementary protection are generally not designed to provide permanent protection or a pathway to permanent residence and citizenship. This is especially difficult for those without a safe place to return after temporary protection ends, especially if they were displaced by slow-onset disasters.
Research has shown that many asylum seekers experience devastating climate-related disasters, such as hurricanes, droughts and floods, which exacerbate their conditions of social and economic vulnerability. Asylum seekers identify the destruction of their homes, agricultural lands and businesses due to climate-related causes as a contributing factor to their decisions to flee their home country.
Leveraging existing protection and opening up new pathways, while centring the needs of the most vulnerable, are critical to address the challenges arising in the context of a changing climate. There is no one-size-fits-all solution, but national governments can begin addressing the gap in protection through the following actions: training judges, lawyers, and immigration officials on how climate change may intersect with valid claims under existing refugee law; increasing the use of humanitarian visas in the context of climate change, particularly in countries or regions that are severely affected; developing effective relocation processes for internally displaced communities that centre their needs through a human rights approach; adopting long-term legislative solutions to codify protections in domestic law, providing a more permanent and comprehensive response; thinking creatively about existing immigration pathways.
As my colleague will emphasize, supporting communities that wish to stay in place, while affirming international migration as an important adaptation strategy, is essential to building an equitable response to the climate crisis.
From a human rights perspective, pushback policies that force people back to their country of origin and physically prevent arriving migrants from entering, violate states’ obligations under international law. Displaced persons, refugees, and migrants alike should be free to exercise their rights to leave any country or territory, not to be detained arbitrarily, to seek and enjoy asylum, and to have individual rights and duties determined in a due process proceeding.
As the Global Compact on Migration states, Canada must “ensure effective respect, protection and fulfilment of the human rights of all migrants, regardless of their migration status, across all stages of the migration cycle,” while reaffirming, “the commitment to eliminate all forms of discrimination, including racism, xenophobia and intolerance against migrants and their families.”
Climate displacement is a tremendous challenge, but it is one we can prepare and plan for.
Thank you again for having me. I look forward to your questions.
The Chair: Thank you. I will now turn to Ms. Iyer for your statement.
Monica Iyer, Clinical Fellow, International Human Rights Clinic, Duke Law School, as an individual: Thank you, Madam Chair and distinguished members of the Standing Senate Committee on Human Rights, for inviting me here today and for your consideration of this topic of crucial and growing importance.
I would also like to fully align myself with the statements of my colleague Professor Bustos.
In the coming decades, millions of people are at risk of being driven from their homes by environmental factors, while others, who are unable or unwilling to move, will face increasing environmental risks to their homes, health and lives.
This is not a far-off threat. It’s already happening, as fires rage in British Columbia, as waters rise to threaten coastal communities, as rising temperatures impact Indigenous food ways in the Arctic. That’s just some of what’s happening in Canada alone.
Questions around climate change and environmental migration and displacement are talked about as a political, security, infrastructure and resource challenge. But more than any of those, they are a human rights challenge.
When people are moving in these circumstances, it is because their rights to health and housing, livelihoods, dignity and life are under threat. In many circumstances, those who are most at risk of forced displacement or of forced mobility are those who have historically faced marginalization and discrimination and continue to be impacted by intersecting structural inequalities.
These are multi-faceted challenges that require a multi-faceted response. This means providing accessible, affordable legal pathways for migration in safety and dignity and with full human rights protection, but also taking immediate and forceful climate mitigation action and enabling community-driven in situ adaptation options that will permit people to choose to stay in their homes.
As Professor Bustos has ably covered discussion of the circumstances and obligations toward, those who do move, with the indulgence of the committee, I will focus my opening remarks on these latter human rights obligations, in full recognition that the ultimate goal should be neither preventing nor requiring relocation but, rather, creating a system that allows all people to choose their place of residence in safety, equality and dignity.
Estimates vary as to the number of people who are likely to be forcibly displaced as a result of climate change. As an example, the World Bank’s Groundswell report suggests that by 2050, up to 143 million people are likely to be internally displaced in Sub‑Saharan Africa, South Asia and Latin America alone. But, crucially, this estimate is based on an assumption that no action is taken to allow those affected to remain in their homes if they so choose. But this is not a prediction that has to come true.
While the effects of climate change are real and present, there is still time to avoid some of the worst impacts if we take immediate and decisive mitigation action. Given the human rights impacts of climate change, countries have human rights obligations to take such action.
This has been affirmed by the Inter-American Court of Human Rights, which held in its 2017 Advisory Opinion that countries can be held responsible for the extraterritorial human rights impacts of environmental damage that they cause. As a practical matter, this means that states, particularly those that have contributed significantly to greenhouse gas emissions, have a human rights obligation to move immediately and decisively toward ending such emissions, in particular by ending global reliance on fossil fuels.
One key step that states can take in this area is by ending fossil fuel subsidies. However, a 2020 study ranked Canada last among G20 countries in support of continued oil and gas exploration and in progress toward ending such support. If Canada seriously wishes to contribute to a human rights-based approach to climate-related displacement, it must do better in this area.
However, as I have already acknowledged, the human rights impacts of climate change are already being felt, and at this point certain effects, including drivers of migration and displacement, are unavoidable. While many assume that these impacts will inevitably lead to relocation, many of those in climate-affected communities are both clearly expressing a preference for staying in their homes and offering policy and practical solutions, such as turning back to traditional agricultural and land management techniques that will enable them to do so. The global community, again, especially states that have contributed the most to climate change, have an obligation to support these efforts through international cooperation. This means not just providing sufficient levels of climate finance, noting that the Climate Action Tracker currently rates Canada’s climate finance efforts as “highly insufficient,” and ensuring that such finance is equitably distributed between mitigation, adaptation and loss and damage efforts, but also ensuring that funding for climate adaptation projects goes to projects that are community-led and incorporate a human rights-based approach.
Honourable committee members, in speaking to you today, I have highlighted areas where Canada demonstrates significant room for improvement in combatting the human rights impacts of forced displacement related to climate change. I have done so in confidence that this committee is dedicated to ensuring that Canada contributes its fair share and plays a meaningful role in addressing these issues and demonstrates its human rights leadership on the global stage. In that spirit, I look forward to our discussion today.
The Chair: Thank you both for your presentations. We shall now proceed to questions from the senators. As is our previous practice, I would like to remind senators that you have five minutes for the questions and the answers.
Senator Omidvar: Thank you so much to both of you for the time and effort you’ve put into your thoughts and presentations. We really appreciate that.
We discussed climate change at the first panel that we had on the study, and Bill Frelick of Human Rights Watch told us that when you have rising sea levels and islands that are going to be under water, that is a direct threat to life. Such people should be recognized as refugees, because whether you die at the hands of a torturer or whether you die because you’re drowning, your life is being threatened one way or another.
This brings me to the question of whether the UNHCR Convention in the context of climate change is fit for purpose. We heard from our former ambassador to the UN, the Honourable Allan Rock, that, in fact, it was because there are other conventions such as the International Bill of Human Rights that looks after the rights of people who are internally displaced, or the UN Convention on Statelessness, which covers people who are displaced.
What is your view on that?
Ms. Bustos: Thank you for the question. We know that there are already asylum seekers or refugee applicants who qualify for protection under the existing convention.
In 2020, the UNHCR issued legal guidance on how climate change intersects with refugee law. It is my understanding that despite the fact that climate does not appear as one of the five protected grounds, there are ways in which asylum seekers can have viable claims under existing refugee law. This may be, for instance, the case of someone who is an environmental defender in their country and who is now persecuted because of their views or political activism on climate change or the environment. This could also be applicable to someone fleeing after a drought or a hurricane destroyed their livelihoods and is now facing some sort of persecution because of the economic vulnerability that they were placed in.
There are multiple ways, and this is why my first point addressed the need to train lawyers, adjudicators and judges, because there is already guidance from the UN on how the Refugee Convention should apply in cases where climate change has driven displacement. I don’t think we’re doing that yet.
Thank you for your question.
Senator Omidvar: I have another question, Ms. Iyer. We have to try and get in as many questions as we can.
The Canadian Association of Refugee Lawyers has put out a proposal that calls for a number of actions by Canada, not by the UNHCR, in changing or in redefining its definition of refugee protection areas. They have said — I’ll just point out to two — that Canada should create a public policy class under section 25.2 of the Immigration and Refugee Protection ACT, or IRPA, to provide protection to climate migrants and that Canada should issue temporary resident permits to climate migrants.
What is your response to two of their five proposals? I don’t have time to go over all of them.
Ms. Iyer: Thank you. I think that both of those are important steps toward protection. I would agree with the assessment of previous witnesses and the Canadian Association of Refugee Lawyers that waiting to take action to amend the Refugee Convention is probably not the most effective course of action in this area.
I would also argue that your previous witness was accurate in saying that the global system of human rights, refugee and humanitarian law, as it works together in concert, does create a far more protective system, if fully implemented, than we do currently have. There are protections built in, particularly to the international feminine [Technical difficulty] political rights and the International Covenant on Economic, Social and Cultural Rights, which should provide a strong basis of conviction for people moving in the context of climate change. I would agree that the kinds of measures that the Canadian Association of Refugee Lawyers has proposed, to me, would be a significant step toward recognizing Canada’s obligations under the International Covenant on Civil and Political Rights in this area.
Senator Jaffer: Thank you to both of you for being here today. I want to start with Ms. Bustos. You’ve said so many things, and I could ask you so many questions, but I want to ask you one question about training.
I’m really intrigued by you saying, “training.” I worked for years on training judges and lawyers on issues of multiculturalism. Especially with judges — they don’t want outside training. It has to be internal. I will stick to that. They are not interested in anything except within their circle. When you talk about training judges, or even lawyers, how would we go about that?
Ms. Bustos: Thank you for the question, senator. I share your skepticism sometimes on training, but at the same time, I think they are essential, and here is why. Climate science, for many people, remains an abstract notion of the way in which climate change manifests itself, particularly in its disproportionate impact on certain groups. Despite the fact that many judges and lawyers may not like training, if there is an executive decision to have an administration guidance or specific training programs that target the intersection between the law as it is and climate change, we would have better outcomes. The adjudications are actually implementing the law as written.
This wouldn’t necessarily be asking the judges to be creative in any way, it would ask them to apply the law to a new set of facts, which is the unfortunate reality climate change. In the space of climate litigation, this has been done with a lot of judges who now have climate cases in front of them but don’t know how to parse through the science. There have been efforts in both domestic and international courts to ground analysis and break down some of the complex scientific information for adjudicators.
Senator Jaffer: That is a very interesting approach. I’m actually quite fascinated by it. I hope that can happen, because it’s not just climate change, but on all kinds of training of judges. Thank you so much.
Ms. Iyer, you’ve had an amazing career and you’ve done great work — well, you both have — and you have done amazing work on human rights issues, including women’s rights and gender equality. Would you be able to tell us more about the impacts of forced displacement on women particularly, and discuss the experiences in refugee camps for women?
I am almost wanting to answer your question, and I don’t want to do that, but there is frustration for me when I go to refugee camps and you only see women because the men have been able to get asylum. Still, only for Canada, they meet the points system and the women don’t. That’s why I’m really interested in your creative answers. Thank you.
Ms. Iyer: Thank you so much, Senator Jaffer. I very much appreciate you asking this question. We know that there are significant gendered impacts to climate change-related displacement. This happens in multifaceted ways. We see in some contexts that there are situations where men are able to move while women are in situations of forced immobility. On the other hand, we also see situations where, for example, after natural disasters, there are times when women are more able to access community support networks and emotional support than men. So men may suffer greater mental health impacts, including in relation to having to be displaced in this context.
To your point about refugee camps and about the ways that the international protection systems have really privileged the experiences of men, I think this is in large part tied to our overemphasis on civil and political rights and on human rights violations that men have typically experienced, including public violations, and the fact that the refugee system has really been created to address those and hasn’t been created to address private, interpersonal human rights violations that women often experience, violations that happen within homes and within communities that are often not as recognized in the law. It is something that we’ve done an imperfect job of addressing. For example, in understanding domestic violence victims as falling under the groups protected under the UN Refugee Convention, and that varies by country. My own country has been particularly bad at that, depending on the administration. It is a significant thing, and we do need a much more gender-sensitive approach to these issues going forward.
Senator Lankin: My question is for both of you. I truly appreciate both of you for appearing here. It is very fortunate for this committee and for the Senate as a whole to have people of your calibre come before us to help us sort through all of this, so my thanks.
Many years ago, I remember hearing one of Canada’s leading environmentalists, David Suzuki, talking about climate change — it may have been global warming in those days — and forced displacement. Others were talking about it too, but it really stuck with me that he was raising it. Do you have enough familiarity with the Canadian system to know that any time over the last couple of decades there have been different federal government, but have any taken actions to include considerations around climate change when looking at refugee status? Is there anything that you are aware of?
Ms. Iyer: There is nothing that I am specifically aware of, in that context. I do know that a lot of governments have been discussing various ways to address environmental displacement generally, and there are ways that governments will react to disasters on a one-time basis. That’s not the same as meaningfully incorporating it into a broader system of refugee protection or of broader protection of human rights of migrants, which would be my argument. We shouldn’t necessarily be solely talking about refugees in this context, but talking about migrants and displaced persons more broadly because the term “refugee” has been used as a limiting term. I’m not aware of any specific efforts to systemically address climate-related displacement by the Canadian government. The sources that I have consulted in preparing for this, have not highlighted any such efforts. I don’t know if Professor Bustos has seen anything that I haven’t.
Ms. Bustos: No. I share that conclusion. I would say that Professor Matthew Scott has taken a look at the global database of cases and refugee adjudication that mention climate. There have been some individual decisions — and I’m not sure if any are in Canada — but it remains a case-by-case issue.
In terms of top guidance or guidance from the federal or national government, I think this is really new. The reality is that we know people have moved for millennia, but in terms of how climate intersects with that remains for many a very abstract issue.
In 2021, the White House, for the first time ever, released a report that — if you have not seen it — describes the way that climate impacts asylum and other issues, including national security. The advocacy community welcomed this report, but it remained pretty abstract. It wasn’t necessarily setting a specific set of recommendations, timelines or programs that should be implemented.
Senator Hartling: Thank you to the witnesses for being here. Very interesting topics. I particularly enjoyed hearing about gender.
My question is: As climate change accelerates, and I think we are now believing it is happening and is affecting all of us, particularly for migrants, immigration and looking at the world changing, in your expertise do you have any key recommendations for our committee? We are going to be putting together a report.
Are there things you would like to key that we should make sure we include in our report so we have a good picture of everything that is happening? Thank you.
Ms. Iyer: Sure. Thank you for this important question. It gets to the heart of what we are saying and what we would like to see.
I will stick to the split that Professor Bustos and I had in the beginning and focus on a couple of key recommendations related to mitigation and adaptation.
One key recommendation would be to end or phase out fossil-fuel subsidies in Canada. Another would be to fully fund all of Canada’s climate finance pledges and to make additional pledges specifically dedicated to adaptation efforts, community-led adaptation efforts and to the soon-to-be-established loss-and-damage fund.
Also, to commit to being a voice on the international stage that will call for meaningful and democratic participation by affected communities in climate mitigation and adaptation efforts at the international level as well. Those are key things based on — I don’t want to say the prevention, but the addressing drivers piece.
[Translation]
Senator Gerba: Madam Chair, I believe Senator Jaffer asked my question about women, who make up half the number of refugees in the world, and the issues they face. I’d like to know if there are specific recommendations for the Canadian government.
[English]
I was talking about what Senator Jaffer said about women. I was asking if you have a specific recommendation for the government. How can we help to make those women secure?
Ms. Bustos: Thank you for your question.
We start by having women make the decisions. We need to have them at the table. I don’t think that always happens, whether that is in law or policy. That would be my first recommendation.
We need an intersectional approach. I think Professor Iyer highlighted the ways in which climate disproportionately affects groups who have contributed the least to it, whether that is women, children, the elderly or the disabled, right?
There is so much literature and lessons that women — primarily women — have in the gender-and-climate area that precisely highlights the specific needs that women have, and then the policy solutions that could help address those.
We often want to have one, like the holy grail to many issues, whether that is migration or climate change. The reality is that these are incredibly complex phenomena with different manifestations across different geographies too, right?
So a woman in San Salvador might need something different than a woman in Kenya. Considering the cultural aspect of this and not just the gender piece is really important. Professor Iyer will have a more articulate response to this question.
Ms. Iyer: No. I would start in the same first place, which is to ensure that women, and particularly refugee women themselves, are given a seat at the table and a meaningful opportunity to lead and direct policy.
I would also recommend ensuring a gender-sensitive approach to the ways that we understand various aspects of protection law, including the ways that we understand what it means to be persecuted if we’re sticking to a refugee law context.
We need greater understandings. We need continued study. If Canada is willing to use its resources to continue to study the differentiated gendered effects of climate-related displacement on men, women and people of diverse genders, that will help us to create better policy as well.
Senator Jaffer: Ms. Iyer, you were talking about — you as well, Ms. Bustos — refugee women being given a place at the table. I did that when I was heading a peace envoy process in Darfur. We brought 20 women to the peace process. It was exceptionally affective. I agree with you. That’s an effective process. I am told, and I don’t know what is happening all over the world, but very rarely does that process happen. That process — I won’t take the time now — is truly a dream. We have to keep dreaming.
I have a question for you, Ms. Iyer, on one thing that has not been brought up a lot: the LGBTQ community; many of them can become refugees and often find themselves in vulnerable positions in many countries.
Would either or both of you, in your work on gender equality and human rights, be able to tell us more about how we can best support members of the LGBTQ community in refugee camps?
Ms. Iyer: Yes. I can tell you when it comes to climate change, and climate change-related displacement and the LGBTQ community, this is an area that is woefully understudied. We have a few groups that are working on it.
We have a few instincts of what we think might be happening. There has not been good, systematic study of the intersectional impacts on LGBTQ individuals who are migrants and refugees in the climate context.
One thing we suspect happens is that people who are displaced during disasters and end up in refugee camps may feel forced back into closets. They may lose their ability to fully express their genders or their sexual orientations, and may be placed in danger in refugee camps if they do express those orientations or gender expressions. Beyond that, we don’t know nearly as much as we should.
I will let Professor Bustos add anything she would like to.
Ms. Bustos: I will say that we know climate exacerbates vulnerability. Vulnerability shows up in different ways: economic, social, political. By having a group that has been historically marginalized and is already prone to higher suicide rates, domestic violence, threats or mistreatment in detention, other sorts of stages in the immigration cycle, we know that climate exacerbates that further.
Yes. I agree with Professor Iyer’s observations. This field is understudied, this particular intersectionality between climate and LGBTQ populations.
Senator Jaffer: While I was asking you both the question, in the Refugee Convention, how would the LGBTQ community fit in? What part of it could we include? The only one I can think of is the social group, but we had great trouble getting women in it in Canada. There had to be a special document for it.
Where would the LGBTQ community fit in the Refugee Convention?
Ms. Bustos: I am a U.S.-trained lawyer, so I can only speak for U.S. law.
Senator Jaffer: But just generally in the convention, where would they fit in?
Ms. Bustos: You are absolutely right. It is usually the particular social group. During the Trump administration in the United States, we saw a lot of resistance to apply that protected ground to women, domestic victims or survivors, and trans folks and other members of the LGBTQ community. That’s my understanding, but maybe Professor Iyer can help us supplement the answer.
Ms. Iyer: I do think that most countries that recognized persecution of LGBTQ individuals have done so by identifying them as a social group. Creative lawyering suggests that, perhaps, particularly in states where there are laws prohibiting LGBTQ conduct or political movements around that, then you might also be able to talk about political opinion and the persecution of individuals who are outspoken about opposing those laws. That’s one other area where they might fit in. But I do think the social group is the main one.
Senator Jaffer: Thank you.
[Translation]
Senator Gerba: You both mentioned that the legal tools that protect refugees should be adapted to the reality of climate refugees. After all, this is a very recent phenomenon on the scale we’re experiencing today. I’d like to know the consequences of your conclusions for Canada, and what Canada should adapt to better take climate refugees into account.
[English]
Ms. Bustos: Thank you for your question. I want to highlight something that Professor Iyer said, which is this affects refugees, of course, and asylum seekers but also migrants and displaced persons overall, not just refugees. I want to highlight two things. One is pathways to permanent residency and protection. What we have seen, at least in the Americas, which is my area of expertise, is that after a hurricane or a rapid onset event, we see governments deploy humanitarian assistance and then, as an ad hoc response, temporary protection to some folks, and then six months or a year after that expires, people have no way to remain in the country and they have to go back to their country. This is particularly problematic when they will return to a country where the conditions remain. Maybe what they were fleeing was not a hurricane, but a sort of contained disaster versus a drought or a sea-level rise or a coastal erosion that is a prolonged environmental event. By the time the protection expires, if they have to return, basically, the conditions will not be habitable for them to live in dignity. This is why some of my remarks really emphasize the importance of permanent protections that have a pathway to citizenship.
In the United States, we have something called the Temporary Protected Status Program, and this has allowed some people who have fled environmental disasters to remain in the country, but they live in legal limbo because they are not permanent residents. Although they have work permits, they have to constantly renew their status, and it is all discretionary. If the administration does not want to renew it, that’s it. That is one thing that is really important.
We have to think creatively, not just within the refugee protections that already exist, but beyond that. For instance, I would like to point the attention of the committee to the Argentinian visa program that was recently introduced. It is a private sponsorship type of program. It is a pilot, so it hasn’t actually been implemented. It is a climate visa of sorts. It requires a civil society organization to sponsor a refugee who is coming from a climate-affected or climate-vulnerable place. There is a set of countries have enlisted in this program. Although I am cautious about recommending this approach necessarily, it is an interesting example of a government thinking creatively about how climate and existing protections overlap.
Senator Gerba: Thank you.
Senator Omidvar: You actually answered the question I was going to ask. It is really interesting, what you are telling us about the Argentinian approach. It is something we should mention and highlight, but let me pivot to our own experience with Haiti.
Haiti is the most climate-challenged jurisdiction in the Caribbean islands and in Latin and South America. After the earthquake, we accepted a significant number of Haitian refugees. Can you educate us on that experience? What were the conditions? They didn’t arrive as temporary residents. I’m not sure if they arrived as asylum seekers and were naturalized or if they arrived as refugees.
Ms. Bustos: I’m not sure about Canada. Across the Americas, after the earthquake, many Haitians received refugee protection because many countries in the Americas have a broader definition of what a refugee is. Many of them have implemented, in their domestic legislation, the Cartagena Declaration on Refugees. This is a broader protection, a legal mechanism, because it recognizes environmental disasters, public disturbances or political instability in a country as the grounds for protection.
What ended up happening in Mexico and other countries is that they were eligible for refugee status because, again, those domestic jurisdictions had a broader protection under the Cartagena Declaration.
Senator Omidvar: We are following up this panel with a panel on the Americas, so you have seeded a brilliant question. Thank you.
The Chair: I will take this opportunity to thank both witnesses. Your presentations will help us when we are ready to move on and write the report. I now invite Senator Hartling to take the chair, and we will turn to our next panel of witnesses.
Senator Nancy Hartling (Acting Chair) in the chair.
The Acting Chair: Colleagues, it is my privilege to chair the last panel of the day. I shall introduce our third panel. Each of the witnesses have been asked to make an opening statement of five minutes. We shall hear from the witnesses and turn to questions from the senators. With us by video conference today, I wish to welcome Julie Young, Canada Research Chair (Tier 2) in Critical Border Studies and Associate Professor, Department of Geography and Environment, University of Lethbridge; and Andrew Selee, President, Migration Policy Institute.
I now invite Professor Young to make her presentation followed by Mr. Selee. Thank you.
Julie Young, Canada Research Chair (Tier 2) in Critical Border Studies and Associate Professor, University of Lethbridge, as an individual: Madam Chair, honourable members of the Standing Senate Committee on Human Rights, thank you for the invitation to appear before this committee.
My brief remarks address two areas: first, the externalization of asylum and how these policies contravene Canada’s international obligations; and second, the reality that more restrictive border control measures do not stop people from moving but instead often push them into more dangerous situations.
What is the externalization of asylum? Increasingly, countries like Canada find ways to enforce their borders at a range of sites beyond the physical boundary line. Many of these policies are aimed at preventing migration either before it begins or while it is in process.
Canadian officials have referred to this as the Multiple Borders Strategy that reconceptualizes the border, “not as a geo‑political line but rather a continuum of checkpoints along a route of travel from the country of origin to Canada or the United States.”
An example of this is the imposition of visa requirements, which means that people can encounter the Canadian border in an embassy in Guatemala City and be denied entry by being denied a visa, without ever setting foot on Canadian territory. Several authors have referred to these practices as “remote control” of borders.
They are also known in my field as externalization policies: border control measures that take place outside of — i.e., external to — a country’s territorial boundaries that in their effects can prevent asylum seekers from arriving on official state territory and being able to activate the right to seek asylum. Many researchers and advocates argue that stopping people from arriving when they are planning to seek asylum is indirect deportation or refoulement because such policies and practices effectively expel asylum seekers before they can arrive on state territory. As you may know, refoulement is prohibited under the UN convention relating to the status of refugees.
Externalization practices can also be understood as a way in which countries in the Global North abdicate responsibility by geographically distancing the impacts of their policies. Ghezelbash and Tan, for example, have described this practice of states using externalization policies to push asylum responsibility onto others as a “crisis of international solidarity.”
I’ll turn to the second point: What are the impacts of restrictive border control measures?
Mainwaring argues that states create vulnerability through immigration controls.
We know that people move for a variety reasons, but most relate to seeking safety and security, whether political, cultural, social or economic. The factors that motivate people to migrate are complex, and people make use of the routes that are or feel available to them.
The instinct of governments seeking to prevent unwanted forms of migration is to implement policies that make it more difficult to move. It may seem counterintuitive, but the research is clear that more restrictive border policies often have the opposite effect, driving people to other means and routes.
Unfortunately, more economically developed countries of the Global North continue to employ these measures in the face of overwhelming evidence that such policies endanger people on the move, encourage human smuggling and trafficking and increase the burden on less wealthy countries that, in fact, host the majority of the world’s refugees.
Moreover, they create direct and indirect costs in both the funds allocated to border policing that could support other policy areas and, tragically, the costs of human suffering and even death.
In fact, these impacts are acknowledged by officials in the Canadian government. I can offer a very clear and local example related to the Canada-United States Safe Third Country Agreement. A recent Canadian Press article reported that an April 2023 memo of Public Safety Canada, which warned that expanding the Safe Third Country Agreement would “likely fuel smuggling networks and encourage people to seek more dangerous, remote crossing routes.”
Moreover, the government’s own discussion of the impacts — or costs — as laid out in the regulations that expanded the Safe Third Country Agreement acknowledges that extending the policy to the entire Canada-U.S. border will create more dangerous outcomes for people attempting to cross the border that they would not face in the absence of the policy. This is why advocates and researchers have argued since before it was implemented in December 2004 that Canada should withdraw from the Safe Third Country Agreement.
To conclude, we know that Canada is, in a sense, protected by its geography from confronting large-scale movements of refugees and is therefore able to be highly selective about who can enter the country. Crucially, externalization practices contradict the commitments Canada has made to refugee protection. Moreover, such policies do not stem migration. Instead, people desperate for protection simply take more dangerous routes, which can lead to loss of life, broken families and lifelong trauma.
Thank you.
The Acting Chair: Thank you. You may go ahead, Mr. Selee.
Andrew Selee, President, Migration Policy Institute: Thank you, Madam Chair. It is a great honour to be able to address the Standing Committee on Human Rights of the Senate of Canada. I want to thank you for the opportunity, and I want to recognize all the senators on the standing committee who have taken time to be part of this discussion. I think I saw Senator Omidvar there as well, who is a great leader on issues of humanitarian protection and migration around the world, as well as a good friend. It is great to see you.
The Western Hemisphere has been seeing some of the largest displacement crises that we have seen in modern history. It has become a region of experimentation and innovation in creative ways of responding to displacement. I want to highlight both of those, the nature and severity of the displacement, but also some of what we’re seeing in terms of actual responses that we can learn from.
One of the major displacement crises, as you all know, is that Venezuelans, where over 7.7 million people have left their country, most since 2013. Almost every country in the Western Hemisphere has Venezuelans who have been displaced and who arrived in large numbers — almost 3 million in Colombia; about 1.5 million in Peru; half a million in Chile, Brazil and Ecuador; and, large numbers for the Caribbean countries — as a percentage of the population. The numbers may be low, but as a percentage of the population, it is really quite significant. Of course, Canada and the United States have also received large numbers of displaced Venezuelans, as has Spain.
There has been a significant displacement crisis from Nicaragua since the crackdown on protests in that country in 2018, and there are between 200,000 and 300,000 Nicaraguans in Costa Rica — a smaller number, except that’s between 2% and 3% of that population of Costa Rica and of Nicaragua as well. It’s significant in proportional terms in that case, and it’s ongoing.
We’ve also seen an ongoing displacement from Haiti since the 2010 earthquake. I would say that’s the latest modality. This is a displacement crisis that has been going on for a long time. You know a lot about it, I know, but it is a major concern. There are about a million Haitians who live outside their country, large numbers in the Dominican Republic but also in the Bahamas and other Caribbean countries, Chile, Brazil, and, to some extent, Mexico and Ecuador as well.
Then we are seeing a lot of mixed flows that include some people who could be qualified as refugees or displaced people from Northern and Central America, Colombia, Ecuador and other countries.
One of the challenges in the Western Hemisphere is that so many of the migration flows are mixed flows, where some people are leaving because they were forced out, often because of direct persecution or generalized violence, others are leaving for economic opportunity, and there is a vast continuum in between. It’s often hard to know what motivates people to leave, whether it is a strict displacement or more of an economic opportunity or a mixture of the two. This makes policy choices quite difficult, obviously.
Let me say in response to the Venezuelan crisis, one of the things we have seen is most countries in Latin America and the Caribbean have bet on legality, as my colleague Luciana Gandini and I called it in a report. About two thirds of Venezuelans have received some form of legal status in the countries where they’ve arrived. Some countries have been particularly generous, such as Colombia, which has given a 10-year permit for people to stay, or Brazil, which offered asylum. Other countries have had year-to-year temporary permits, but some countries have gone out of their way to find some sort of legal status, as well as access to education and basic health care.
With regard to Nicaraguans, Costa Rica has gone out of its way to provide access to the asylum system. It has become somewhat narrower in the past year, but nonetheless, people, while they are applying for asylum, can work. Therefore, it has been a system that has allowed people to be legally present in the country.
Haitians have faced more of a mixed reception, particularly in the Caribbean and the Dominican Republic. We can talk about that more if people want to.
A little bit more of a warmer reception in terms of legal policies in Chile and Brazil, but not always in terms of immigration and actual reception on the ground.
Then you have countries, such as Mexico, that have opened their doors to Central Americans in their asylum system, although we’re seeing asylum systems overwhelmed in Mexico and Costa Rica.
We’re in a moment right now where we are seeing increasing stresses and strains in many countries because of the number of people who have arrived. This coincided, in many cases, with the COVID-19 global recession when countries were also dealing with issues of scarcity. We know in the long term that the movement of population is probably going to help these countries, that the addition of what, in most cases, is actually fairly high human capital populations that have been displaced will probably help the host countries. In the short term, however, there are stresses and strains, and international cooperation has not always been at the level needed to have a smooth process for integration.
Let me say that we now are also seeing movement toward the United States. I’m not going to talk about that, but I’m happy to talk about that in questions and answers. Some of that secondary movement and some of its original movement from some of the countries that people are displaced from, and we’re seeing a response from the U.S. and Canadian governments to this in trying to establish legal pathways, refugee resettlement and complementary pathways for people to go.
If we have time in Q and A, let me just say that the Protection Transfer Arrangement, in which Canada is deeply involved in Central America, is one of the models that we should be thinking about in the rest of the hemisphere. We can come back to that, if people want to.
Let me just conclude by saying that the challenges are enormous, but the efforts under way are equally important to recognize and especially to build upon.
Thank you very much, Madam Chair.
The Acting Chair: Thank you very much for your presentations. We will now proceed to questions from senators. As is our previous practice, I would like to remind senators that you have seven minutes for your question and that includes your answer.
Senator Omidvar: Thank you to both our witnesses. It’s lovely to see you again, Andrew Selee. This is not quite what you may be used to in Senate committees in the United States, but please trust us when we say we get the work done, and we hope to see results on this study as well.
Thank you, Professor Young, for being here today.
My first question is to Professor Young and then to Mr. Selee. You talked about the externalization of our borders, and there are different ways states do that. You talked about the Safe Third Country Agreement. I wonder if you think that Canada’s effort to build capacity to register, process and adjudicate asylum claims in Mexico, Costa Rica and Honduras is a proxy for not doing the right things ourselves but helping others. Is that a stretch too far? I actually think it’s a good thing to help other countries step up to the plate, but I wonder what you think.
Ms. Young: Thank you, Senator Omidvar, for that question. It’s a really interesting one.
In my research, I focus on the impacts of policies that are trying to prevent people from moving, but I think you’re right to point out that often there are multiple things going on. For example, I have done some research on the Mexican context where simultaneously Canada has implemented a visa policy that was lifted and then replaced and then lifted again while also investing in capacity building and training in the country.
I don’t know if my colleague, Mr. Selee, might know more about the work under the auspices of the Anti-Crime Capacity Building Program in Mexico in terms of the actual impacts. I know that there have been RCMP and Justice Department officials over the years who have spent time through this program.
I’m not ducking the question, but I think, as you’re right to point out, it’s complicated. The question is: Are people actually receiving asylum who need protection and asylum through those procedures or is the Mexican system overwhelmed or not up to par? Those would be questions to get more insights from our colleague on the panel. I will hand it over to him, if that’s okay.
Mr. Selee: To answer that, Senator Omidvar, let me say that this is much more civilized than testifying in the U.S. Senate. I am pleased to be with you here. We will talk about that later. I am quite convinced that you get the work done and am always impressed by the way the Canadian government conducts itself on global issues. I know you know the upsides and downsides.
By the way, I am joining you from Mexico right now, though I live in Washington, D.C. but I am actually in Mexico at the moment. Having followed the RCMP work in Mexico on and off through the years, I have to say it has been particularly important.
Canada doesn’t pack the same punch in terms of intelligence and boots on the ground as the United States, but it is much more trusted. No offence to my colleagues in the U.S. government, but it is always a more complicated relationship with the U.S. Not that it is a bad relationship; it is a good relationship in many ways.
I’ve been in many trilateral meetings on public security issues where I have noticed how much the Canadians are seen as a trusted interlocutor. Quite often, there is an interest from the Mexican government in working with the Canadians on things that are sensitive, or deal with policing in particular.
They go to the U.S. for intelligence and other things. In terms of thinking of systems, they trust the Canadian input quite a bit.
Let me say I think the Mexican asylum system is completely overwhelmed. They are going through the same thing that the U.S. asylum system is, which is that they get a lot of cases of people who probably don’t qualify for asylum because there are a few other legal pathways.
People come into the asylum systems because that’s the only thing that gives them entry. In the case of Mexico, they are trying to get to the United States. Mexico does have a number of people, tens of thousands now, whom they have given asylum and who have settled in Mexico.
There are people who go through the entire process and settle. A lot of their system is overwhelmed by the same thing as in the U.S., which is people who would really prefer to be on a work-based visa or have another way of coming into the United States, and they are taking advantage of the only legal pathway that they have, even though it might not be the right one. Thank you.
Senator Omidvar: It is interesting that you talk about Canada as a trusted interlocutor. It’s a good thing to be. Do you think that we need to stride more confidently on the world stage as a trusted interlocutor on these matters?
Mr. Selee: Yes. By the way, I’m trying to think of the political way to say this, senator. I think Canada could be far more assertive in the Western Hemisphere, I think in general on the global stage.
Canada is quite a player on the global stage. I would say in the Western Hemisphere, Canada is sometimes — and I apologize for being so direct but, since we know each other and you have invited me to speak to this committee, I hope the others will have forbearance — Canada is sometimes ambivalent about its role in the Western Hemisphere. It is a global player. It is not just a Western Hemisphere player. The U.S. is a global player, but is much more directly affected by what happens in the Western Hemisphere.
Canada has a lot of fish and the U.S. in the middle. In some ways, it doesn’t get the same migration patterns and so on and so forth.
Canada, when it comes to migration, right now people are looking to Canada for leadership. It’s not always the scale of resources. It is not always the number of meetings. It is the wisdom, the fact that it is a less confrontational relationship. There is less history there. People trust Canadian institutions. They also know that Canada works. People are ambivalent about being like the U.S. They would like to be like Canada in many ways.
One area where I think this is particularly important right now is the safe mobility offices and the whole effort to extend legal and protection pathways in the hemisphere is being led by the U.S., and Canada and Spain are onboard.
I would love to see Canada play a bigger role in conceptualization of this, not just in taking people, but in conceptualization of this.
When Canada and the U.S. work together, and work with partners in Latin America and the Caribbean, the result is often better. A quick example I will give is the Protection Transfer Arrangement, which is Canada, the U.S. and UNHCR, as well as a number of local NGOs, where they have been identifying people in Central America who have protection needs either before they have to flee, before they become refugees or in the first country they get to.
People don’t have to go and seek asylum 1,000 miles or 2,000 kilometres away. It has worked brilliantly, quietly and it has worked in part because it is a Canadian-U.S. effort with UNHCR, and with Costa Rica playing a big role as well. That partnership has been really important.
Senator Omidvar: Thank you. That’s fascinating.
The Acting Chair: Thank you very much.
Senator Jaffer: Thank you to both of you for being here. At this late hour, you both have been refreshing. Thank you. You have woken me up. Thank you so much.
I wanted to start with you, Ms. Young. You were talking about borders, Canada being able to choose and also the Safe Third Country Agreement. I want you to comment on Canada and the Safe Third Country Agreement; when it came in, I was extremely against it. I am even more against it now. Sorry, I shouldn’t have told you that.
What is your understanding of the Safe Third Country Agreement. As Mr. Selee was saying, it gives us another reason to — for people who come from the border, to say, no, you go back there. The U.S. is a safe country, so we are not going to look after you. I feel that’s a way of opting out.
What are your opinions? Don’t go along with what I’m saying. I should not have told you my opinion, I’m sorry. Ms. Young?
Ms. Young: No. Thank you, Senator Jaffer. I really appreciate hearing your perspectives on this agreement.
I have been a longstanding and loudly vocal opponent of the Safe Third Country Agreement. It was clear before it was implemented that it was creating this unusual geography in its former life, until March, where it essentially pushed people toward unofficial crossing points and exposed them to potentially greater danger in their journeys, when we have a very well-functioning and efficient — at times it gets backlogged — but we have a pretty well functioning and robust refugee determination system. It seems strange that we have pushed people away from that opportunity.
The latest iteration of the agreement to attempt to expand it to the entire border — I will be curious to see — maybe “curious” isn’t the correct word, but I will be following with rapt attention, how this will be affected.
Will this lead to greater surveillance? Will people be tracked and pushed into even more remote and dangerous crossing points as they attempt to evade detection for 14 days in Canada? I know from speaking with colleagues and advocates in border communities that patterns have not necessarily slowed down, that the movement of people is continuing but people are potentially being pushed into more dangerous locations.
My perspective on this is that Canada should actually withdraw from the Safe Third Country Agreement and allow people to report to official ports of entry and make their refugee claims there.
If they are found not to be a refugee, then Canada does not have to allow them to remain in the country. Maybe I will leave it at that. I hope I answered your question.
Senator Jaffer: I’m not going to expand on what you said earlier about us choosing because, really, people can’t come easily to our country. In a way, we are an island protected by the United States.
I have a difficult question for both of you. If either of you don’t want to answer it, I absolutely understand.
I had spent a lot of time working with Canada, before this job, on the responsibility to protect issues. I want to start with you, Mr. Selee, and talk about, in the case of Venezuela, a responsibility to protect. Canada was one of the main supporters of this agreement. In fact, I believe I could be wrong, [Technical difficulty] in this country.
In the case of Venezuela or any other country, would responsibility to protect be in place?
Mr. Selee: Senator, that is a tough question. Let me say, I think in the case of Haiti it is possible to think in responsibility to protect.
In terms of being able to be present inside a country protecting people, I think it is harder to do in other cases because of the resistance. With Haiti, it’s possible because the only way to do that, because there is agreement — a fragile and conflicted agreement — among the different parties, the government, civil society, the business community, the church and others, for there to be outside support inside the country. Even that is being negotiated; the outlines of it.
It’s hard to do that in a country like Venezuela. The only way you could have gone into Venezuela is militarily, and that would have been a disaster. It’s a large country. As much as it is something of a failed state if you look at the economy, it is a state and has authoritarian with controls. It is hard to do it in a case like that.
I do think there is a lost work to be done. We should be thinking about layered protection. We are in a moment when protection systems are being overwhelmed in many places and creativity is called for. Some of the things done in Latin America in terms of temporary protection instead of using the refugee system have been helpful because they have taken pressure off the refugee system in countries that could not have done it. It is also important to think about how we help countries to develop the capacity to deal with internal displacement. Some countries, like Colombia, have the capacity to do this. In other countries, like Honduras, El Salvador and Guatemala, there is a real urgency to do this because a lot of people would rather not flee and not become asylum seekers elsewhere. They’d much rather be safe in their own country. One of the opportunities out there is not going in but is working with those governments to develop the capacity to protect people within their own countries. Mexico is another one, actually. I am sitting in Mexico. There are parts of Mexico that are incredibly safe, but there are parts where there are major questions of displacement. The government recognizes that. So, helping to develop the capacity to protect people in their own country, as well as have access to asylum elsewhere.
With a note of caution, I won’t get into the safe third country discussion because I haven’t looked at the Canada-United States Safe Third Country Agreement, but I think there is a question that we have to be strategic about how we think about asylum systems. I worry a great deal that, in many parts of the world — not in Canada, but in the United States, parts of Europe and Latin America — we could lose what exists of asylum systems if we don’t figure out how to unburden them and also channel people into other legal pathways that allow asylum systems to be used for people with protection needs. I think that’s a challenge that we are facing around the world.
[Translation]
Senator Gerba: I’d like to thank the witnesses for being here this evening.
My question is for Mr. Selee. You mentioned that not all countries are taking the same approach when it comes to facilitating the entry of refugees. In particular, you mentioned Colombia, which grants work permits for 10 years. Do you think this is a measure Canada could apply?
[English]
Mr. Selee: Thank you, senator. Yes, I think that kind of temporary protection is incredibly useful. In the case of Colombia, it was needed because the asylum system was not really up to speed and able to take in the number of people who arrived — eventually 2.9 million people. They originally did one-year permits and then two-year permits, and eventually they decided, quite courageously, to do ten-year permits. The story that some of us heard about was the decision by the past president who said if they are going to take a political hit for doing the right thing, they might as well do the right thing and said, let’s go for 10 years instead of 2 years. That is recommendable.
In the case of countries like Canada and the United States, temporary protection works where we have working asylum systems for Costa Rica or Mexico. Temporary protection is particularly useful when you are dealing with a mixed population, some of whom may meet the refugee standard and could still apply for asylum, and many who probably don’t meet the refugee standard and might not get asylum, but it would be inhumane to send them back to the country of origin because the conditions on the ground aren’t there.
Asylum systems are there for people who need protection. We have seen it in the United States with Haitians and Venezuelans, for example. The Biden administration has decided to extend temporary protection because the conditions weren’t there to send people back. Some people will qualify as refugees and get asylum and others won’t, but let’s not send people back right now when the conditions on the ground don’t warrant it. You could also question whether U.S. policy is consistent on this, but we can get into that if you want. There is also deportations to both countries.
[Translation]
Senator Gerba: Thank you for your answer. My next question is for both witnesses.
Your institute recently published a report on child immigration in the United States. According to UNICEF, an unprecedented number of children around the world are currently displaced, with estimates at over 43 million. Of these, 60% are internally displaced by conflict and violence. What recommendations would you put forward to ensure that these children are better protected?
[English]
Mr. Selee: I’m not an expert on the protection of children. I have colleagues who focus on this. I always take extra care when I talk about unaccompanied minors, because I think the rights of the child are a superior right above other things. We always want to err on the side of looking at policies that can help give children the best chance to succeed, no matter how they arrive and no matter what conditions they are in.
That said, one of the things we have seen in the United States is a tension between being expedited and getting children out of shelters. First getting them out of border control stations, then getting them out of shelters and getting them into families while doing enough due diligence to make sure those families are safe and they are not being trafficked. Following up is hard as well, because, in many cases, the family with whom they are placed do not want to be followed up with and are often undocumented. So there is a sort of tension between having a light touch — being efficient, first of all, and moving people through the system, so they get to a family as soon as possible, doing it in a light-touch way that confers trust in those families, but also having some responsibility for making sure those families really are families and are treating them with dignity. With the number of minors, we are looking at in the United States, it has become an enormous challenge, and what we have seen are cases of some children being trafficked, others are, in fact, with family members or with people they know, but are in dangerous situations, like working at a very young age. There are some real tensions involved in this.
Senator Gerba: Thank you.
Senator Omidvar: Mr. Selee, I think that I heard you make a recommendation to us. I will repeat it, so we get it on the record. In order to unburden the domestic asylum systems, we need to provide layered protection, is what I think I heard you say.
In the case of Canada, we have provided layered protection to the Ukrainians, let’s say, who have come not as refugees but as temporary residents. That has unburdened an already burdened asylum system. Would you like to see us do more of that? I see you nodding, but you will have to say yes, to be on the record.
Mr. Selee: Yes, I would go on the record with that, senator. I think there are two things, one is layered protection and the other is parallel systems for legal migration.
Layered protection is the question of asylum, yes, but also how we invest in protection systems within countries and help governments and civil society be able to develop protection systems in those countries. How do we help countries of first refuge such as Colombia, Ecuador, Peru, Brazil, or Trinidad and Tobago to be countries of refuge as well? Canada has played a leading role in this, particularly on the funding side, but it is easy to forget that these countries are essentially — we worry right now about Venezuelan coming to the U.S. border. They are a fraction of Venezuelans who are in our countries in the western hemisphere. It’s making sure that we are supporting those countries that often don’t have the right systems in place but are going above and beyond to try to provide protection. I think that within net neighbouring countries, pathways like the one you’re pointing out that we did for the Ukrainians or the U.S. is doing for Cubans, Haitians, Nicaraguans and Venezuelans, which are more temporary pathways, but are important, and then, of course, asylum.
Parallel to that, we need to look at legal pathways. In Central America — I always remind Americans that the U.S. is now big on legal pathways from Central America and the rest of the region. Canada, until recently and probably still, has more temporary workers from Central American than the United States. The U.S. has a lot from Mexico, but Canada has had more seasonal workers. Most people would rather be seasonal workers than undocumented workers. There are some people who don’t want to be seasonal workers, but, overwhelmingly, if given a choice, and you say, “Do you want to work legally for nine months in another country and come back to your family and then be able to go back again,” they would choose that. Canada has been good at this. Figuring out how we expand these options for people who probably don’t have protection needs — and some may actually have protection needs as well — is key.
Senator Omidvar: We are also, in parallel, in another committee, doing a study on migrant workers. Mr. Selee, I think you are assuming more knowledge on our behalf than we have, so I will ask you to describe a little more what Canada has done when you refer to the Canada-U.S.-Costa Rica-UNHCR collaboration. What exactly is that collaboration? What did Canada do?
Mr. Selee: It has been quiet, and it has been quiet because part of the idea is protecting people, so you don’t want to make it terribly public. But I think now is the moment to talk about it because they are trying to scale it with the Safe Mobility Offices and scale up the pathways.
So, Canada, the U.S., Costa Rica and the UNHCR got together and, for a while, Brazil and Australia were part of it, but it was really Canada and the U.S. They said, in Central America, there are a lot of people who are clearly in danger and are likely to become refugees. Can we identify them using networks of NGOs, the diplomatic corps and local governments? People whom we know — a journalist who has reported on corruption locally and is being threatened; a human rights defender; an Indigenous activist; people who are clearly being threatened and can show it — can we move them before they have to run for their lives? If they run from Honduras to Guatemala, can we help them in Guatemala, make a determination and then send them to either Canada or the U.S. to the refugee system?
Costa Rica is part of it because they host those who, during adjudications, cannot be safe in their home country. They are transferred to Costa Rica.
This has been very effective. It’s the kind of thing that was done in Colombia in a different moment as well, with Ecuador’s support. This idea of thinking about humanitarian protection, not just for people who’ve already fled but for people who clearly are about to flee, is the kind of thing we should be thinking of, particularly in the hemisphere that we know and where we have some capacity to work on the ground with some of these countries.
Obviously, it doesn’t work as well with Syrians who have mostly fled to neighbouring countries, but in this region, there are still a lot of people who sort of move around, particularly in some of the larger countries, seeking protection. We can get to some of those folks before they’re forced to cross a border.
Ms. Young: May I jump in here to add some historical context, or am I speaking out of turn?
The Acting Chair: Go ahead.
Ms. Young: I want to add that there is a history of this in the Canadian context with the source country program, which is maybe at a slightly larger scale.
I’m not sure at what scale the Protection Transfer Arrangement is working, but in the 1980s and 1990s in particular, Canada recognized that it could not wait for Salvadorans and Guatemalans to make it all the way through Mexico and the United States. Opportunities were available for people to be resettled directly in embassies if they could get to Mexico City. You might want to look at the history of source country program; that is a historical Canadian program.
I haven’t looked at the scholarship program. I don’t know if it’s still functioning, but that just came to mind.
Senator Jaffer: My question is to you, Professor Young. You do research on border studies. I wanted to discuss with you, the current situation in Gaza. I’m not trying to get into the politics of it. To you, also, Mr. Selee, isn’t there a “responsibility to act” that we have signed with the UN in this situation? Professor Young?
Ms. Young: Thank you for that question. Yes, it’s challenging. I’m not sure I am the person to respond to this question. Are you asking specifically around the responsibility to protect or the UN convention?
Senator Jaffer: Yes, I am asking about the responsibility to protect.
Ms. Young: I’m not all that familiar with the contours of that policy. I don’t know if my colleague has more insight into that.
Senator Jaffer: Your colleague was very good in saying that you covered that in Haiti. It was possible because everybody was agreeing for Canada to go in, and thank you for telling me that. It’s not something you know a lot about.
I wanted to also ask you about this: In last week’s panel, we talked about collective international responsibility and support of refugees. Professor Young, what do you think can and should be done to support countries that are welcoming refugees and often do not have means nor resources to do so?
I was looking at what we have talked about. For example, Syrians go to Turkey. Now I know that the UN has an agreement to keep them in Turkey, rather than have them flee to Syria. What is your opinion about that? Is that a good method? Is that a way of giving them some asylum until they are going to return to their countries? I ask you both. Professor Young?
Ms. Young: Thank you, Senator Jaffer, for that question. It is a significant one and a large one. I believe, from the latest UN report, that Turkey is currently the country hosting the largest number of displaced people globally. The challenge is both in terms of ensuring that people who need protection are finding some support but also ensuring that the will of countries, like Turkey, is not overwhelmed by the scale of what they are being asked to support.
Could this potentially be a situation where something like the source country program or the Protection Transfer Arrangement could come into effect, where Canada, beyond supporting efforts in Turkey through financial assistance through the UNHCR kind of distribution mechanism — could this be a place where a country like Canada plays a larger role through a targeted resettlement, for example?
Mr. Selee: Most refugees and most displaced people, which is a slightly broader group than refugees, are hosted in neighbouring countries and overwhelmingly in developing countries and emerging economies. The number who make it to Canada, the U.S., Australia, Europe, Japan, Korea, is infinitesimal compared to the number — and this is even true and that’s why I say that Venezuelans come to the U.S. It’s not that it’s not an issue at the U.S. border, but it really is a small fraction of those who are in Latin America and the Caribbean.
As generous as Canada has been, for example, with Syrians, the vast majority of Syrians are in the neighbourhood. They are in Turkey, Jordan, Lebanon and even the Gulf.
As much as we look at our own systems, how do we support those countries to have strong systems? One thing worth highlighting in the western hemisphere is that about two thirds of Venezuelans have gotten legal status. That’s a glass two-thirds full, if you want, and a third not full. A third don’t have any legal status; that’s a problem. Two thirds have some sort of legal status, often precarious legal status, but they are allowed to stay. Except for Trinidad and Tobago, almost all countries have allowed at least primary and secondary education for children whether or not they are documented, which is quite incredible, actually. In the Latin American and Caribbean model, people get very little support up front.
The UNHCR, IOM, UNICEF and others were there providing some support, but there is much less support up front. But there is a lot of ability to start your life over, to have a legal permit, to have education, to have access to basic health care and to start your life.
Now, countries in the region have generally done this without a lot of support from the international community to be honest. One colleague calculated that displaced Venezuelans got on average one fiftieth of the support of displaced Syrians. That’s a problem, but there is also a good thing there. What it says is that the international community is not maintaining them. They’re moving into another country and starting their lives over. It would be great if it were one twenty-fifth and not one fiftieth, right. It would be good if there were a little bit more support.
UNHCR and IOM do a great job of coordinating a lot of the support that goes to these countries, the Inter-American Development Bank, or IDB, and the World Bank and other international financial institutions supporting the host communities as well as the migrants. But the reality is it has been a slightly different model than we’ve seen in other displacement crises. It’s what you’re seeing with Ukrainians in Canada and Europe and the United States, which is we give you a legal permit to be here, we give you access to basic public benefits and good luck. We don’t give you a lot of support, but good luck, you can start your life over. In the end, most people would probably prefer that to being taken care of.
Senator Jaffer: But that’s not quite true, they don’t take care of themselves, the Ukrainian diaspora is large.
Mr. Selee: Well, yes.
Senator Jaffer: It’s a disparate example.
Mr. Selee: Senator, this has been true — I have to say — of Venezuelans, Latin Americans, Caribbeans, Haitians. The diaspora — the governments are doing things and certainly the international — I don’t want to downplay it. I mean, they are doing things that are providing basic services when people arrive, but you’re right, it is the diaspora that is taking care of the diaspora. These are very organized diasporas that are taking care of their own. Often even the resources and the measures they get governments to do are often because the diaspora is making a case for it.
Senator Jaffer: Exactly.
The Acting Chair: We’ll have our final question from Senator Omidvar.
Senator Omidvar: I’m going to ask you both a short question and hopefully we get some more wisdom from you.
This report is about making recommendations to the Government of Canada on forced displacement. We can have a section on what Canada should do vis-à-vis the UNHCR.
Mr. Selee, the question to you is: Within the context of Latin and South America, because that is your area of expertise, what recommendations would you make?
Professor Young, within the context of managing the externalities of our border, what recommendations would you like to see in our report?
Mr. Selee: I’ll be very brief, senator, which is I think there are two areas. One is continued support for the countries in the region, which I think is critical, both for governments and civil society, both direct, bilateral aid through UNHCR, IOM and the other UN agencies and through civil society where Canada plays a big role. I think there is a real need, recognizing that most displacement really is — the ones that step in, are the neighbours.
Second, I think there is an opportunity to figure out how people come to other countries outside the immediate region. I think extending the model of the Protection Transfer Arrangement, or PTA, to some other countries in the region, looking at how we do protection better before people have to flee. Asylum should be a last resort; it shouldn’t be the first line of defence for protection. This should be the last resort. Thinking about how we protect people closer to home. Yes, we keep asylum and preserve asylum, but we should be getting to people earlier. How do we extend the legal pathways that exist for people to come and work? Because that is not just about protection, but it does often help people with protection needs and it certainly takes pressure off asylum systems as well. Thank you.
Ms. Young: I would echo everything my colleague on the panel has said, both in terms of providing more support to countries in the region who are hosting larger numbers of people who have been displaced and providing a range of pathways for people who are fleeing. Whether or not they meet the legal definition under the Refugee Convention, people who fear for their safety and security or are seeking safety and security and I think we need to adopt a broader understanding of what that means — that economic insecurity is a huge driver of people moving and it’s not only about opportunity, it’s also about security, both individual and family security.
Perhaps in your recommendations, encouraging Canada to consider other kinds of pathways that are maybe not only temporary labour-directed programs, but other kinds of programs that would allow people to find safety and security in a country like Canada that doesn’t require them to make use of the asylum system because that’s the only pathway that feels available.
Senator Omidvar: Thank you.
The Acting Chair: Thank you very much. On behalf of the committee, I would like to sincerely thank our witnesses for taking the time to appear with us today. Your testimony will be very helpful to our deliberations and this study.
Honourable senators and guests, this concludes our public meeting for today. I now declare our meeting adjourned and we’ll reconvene our study on November 27. Thank you.
(The committee adjourned.)