The recent Cyclone Nargis in Burma has killed many people and caused tremendous devastation.  Well-meaning Canadians should be careful to respond appropriately in order to ensure that their donations will be used effectively.  Canadian organizations need to consider carefully their approaches to the cyclone.  In general, I cite in this brief article some resources on disaster activities.  As well, Canadian individuals and charities need to be aware that in December 2007 Canada enacted the Special Economic Measures (Burma) Regulations under the Special Economic Measures Act (SEMA). These are very tight sanctions with only very limited exceptions.  Any international development or humanitarian aid organization that is interested in providing direct assistance to the people of Burma should carefully consider the Special Economic Measures (Burma) Regulations.  Any Canadian charities interested in supporting activities in Burma need to review carefully the sanctions.  The consequences of not following the Special Economic Measures (Burma) Regulations include fines and/or imprisonment.  Disaster relief in Burma is going to be complicated due to the difficult political situation in Burma.

This European Foundation Centre and the Council on Foundations guide on Disaster Grantmaking sets out principles of good disaster management for charities, foundations and corporations.  Although the legal rules governing charities operating outside of Canada are different from the US and Europe, it provides interesting information.

DISASTER GRANTMAKING:  A Practical Guide for Foundations and Corporations -The Report of a Joint Working Group of the European Foundation Centre and the Council on Foundations
Second Edition April 2007

The Guide sets out eight principles of good disaster management:
1. Do no harm.
2. Stop, look and listen before taking action.
3. Don’t act in isolation.
4. Think beyond the immediate crisis to the long term.
5. Bear in mind the expertise of local organizations.
6. Find out how prospective grantees operate.
7. Be accountable to those you are trying to help.
8. Communicate your work widely and use it as an educational tool.

The Guide then goes on to discuss in detail each of these principles.  The Guide is located at:
http://www.cof.org/files/Documents/International_Programs/disasterguide.pdf

You may also find the report “Providing aid in insecure environments: trends in policy and operations” interesting in light of the difficult environment in Burma
http://www.cic.nyu.edu/internationalsecurity/docs/hpgreport23.pdf

Here is a copy of the Special Economic Measures Act:

http://laws.justice.gc.ca/en/S-14.5/text.html

Here is a copy of the Special Economic Measures (Burma) Regulations under the Act:

http://canadagazette.gc.ca/partII/2007/20071226/html/sor285-e.html

Here is a copy of the Canadian government press release:

http://www.dfait-maeci.gc.ca/trade/burma-en.asp

For Canadian individuals and charities interested in donating to help people in Burma, you may wish to consider donating to The Humanitarian Coalition.  It is an alliance of four Canadian humanitarian relief organisations – namely CARE Canada, Oxfam Canada, Oxfam-Québec and Save the Children Canada. They have created The Humanitarian Coalition to ensure faster, more accountable and more coordinated assistance can be provided in times of need.  Their website is at http://www.thehumanitariancoalition.ca/

If you want other names of organizations, some of whom may be dealing with the devastation caused by Cyclone Nargis, you may wish to look at the Canadian Council for International Co-operation (CCIC) website and their list of members at http://www.ccic.ca/e/001/membership.shtml

The US umbrella organization INTERACTION has some information on Burma at:

http://www.interaction.org/burma

 

UPDATE

http://www.international.gc.ca/Sanctions_Burma-Birmanie.aspx

The Canadian government has advised:

“Canadians: How to provide assistance
Canadians interested in providing assistance are encouraged to make cash contributions to international organizations with diplomatic status, United Nations agencies, the International Red Cross and Red Crescent Movement or Canadian non-governmental organizations who have entered into grant or contribution agreements with the Canadian International Development Agency or non-governmental organizations who have received a permit under the Special Economic Measures (Burma) Permit Authorization Order, for the purpose of undertaking humanitarian relief work in Burma.”

List of NGOs that have an activity permit
The following non-governmental organizations have received a permit under the Special Economic Measures (Burma) Permit Authorization Order for the provision of humanitarian relief in light of Cyclone Nargis:

Action Contre la Faim Canada (ACF Canada)
7105 rue St-Hubert, Bureau 200
Montréal, QC H2S 2N1
Tel: 514-279-4876
Fax: 514-279-5136
Email: info@actioncontrelafaim.ca
www.actioncontrelafaim.ca

Adventist Development and Relief Agency Canada (ADRA)
148 King Street East
Oshawa, ON L1H 1H8
Tel: 905-433-8004 / 1-888-274-ADRA
Fax: 905-723-1903
Email: donor-relations@adra.ca
www.adra.ca

Aga Khan Foundation Canada (FOCUS)
360 Albert Street, Suite 1220
Ottawa, ON K1R 7X7
Tel: 613-237-2532
Fax: 613-567-2532
Toll free: 1-800-267-2532
Email: info@akfc.ca
www.akfc.ca

Canadian Foodgrains Bank (CFGB)
400-280 Smith Street, P.O. Box 767
Winnipeg, MB R3C 2L4
Tel: 204-944-1993
Toll free: 1-800-665-0377
Fax: 204-943-2597
Email: cfgb@foodgrainsbank.ca
www.foodgrainsbank.ca

Canadian Lutheran World Relief (CLWR)
1080 Kingsbury Avenue
Winnipeg, MB R2P 1W5
Tel: 204-694-5602
Fax: 204-694-5460
Email: clwr@clwr.mb.ca
www.clwr.org

Canadian Physicians for Aid and Relief (CPAR)
1425 Bloor St. West
Toronto, ON M6P 3L6
Tel: 416-369-0865
Toll free: 1-800-263-2727
Fax: 416-369-0294
Email: info@cpar.ca
www.cpar.ca

Canadian Red Cross Society
International Services Department
170 Metcalfe Street, Suite 300
Ottawa, ON
Tel: 613-740-1900
Toll free: 1-800-418-1111
Fax: 613-740-1911
www.redcross.ca

Canadian Relief Foundation (CRF)
150 Brant Avenue
Brantford, ON N3T 3H7
Tel: 519-758-0397
Fax: 1-866-670-0167 (North America)/ 519-720-0282
www.canadianrelief.ca

Care Canada
6 Antares Drive, Unit 300, Phase 3
Ottawa, ON K1G 4X6
Tel: 1-800-267-5232
Fax: 613-226-5777
Email: donorrelations@care.ca
www.care.ca

Christian Reformed World Relief Committee (CRWRC)
3475 Mainway, PO Box 5070, STN LCD 1
Burlington, ON L7R 3Y8
Tel: 1-800-730-3490 / (905) 336-2920
Fax: 905-336-8344
Email: crwrc@crcna.ca
www.crwrc.org

Centre d’Étude et Coopération International (CECI)
3000, rue Omer-Lavallée,
Montréal, QC H1Y 3R8
Tel: 514-875-9911
Fax: 514-875-6469
Email: info@ceci.ca
www.ceci.ca

Doctors Without Borders
402-720 Spadina Ave
Toronto, ON M5S 2T9
Tel: 416-964-0619
Toll free: 1-800-982-7903
Fax: 416-963-8707
Email: msfcan@msf.ca
www.msf.ca

Health Partners International Canada (HPIC)
955 St-Jean Blvd., Suite 100
Pointe-Claire, QC H9R 5K3
Tel: 514-695-0007
Toll free: 1-800-627-1787
Fax: 514-695-8528
Email: info@hpicanada.ca
www.hpicanada.ca

International Development and Relief Foundation
1063 McNicoll Avenue
Toronto, ON M1W 3W6
Tel: 416-497-0818
Toll free: 1-866-497-IDRF
Email: office@idrf.ca
www.idrf.ca

Interpares
221 Laurier Avenue East
Ottawa, ON K1N 6P1
Tel: 613-563-4801
Toll free: 1-866-563-4801
Fax: 613-594-4704
Email: info@interpares.ca
www.interpares.ca

Organisation Catholique Pour le Développement et Paix/ Development and Peace
10 St. Mary Street, Suite 420
Toronto, ON M4Y 1P9
Tel: 416-922-1592
Toll free: 1-800-494-1401
Email: ccodp@devp.org
www.devp.org

OXFAM-Canada
300-294 Albert Street
Ottawa, ON K1P 6E6
Tel: 613-237-5236
Fax: 613-237-0524
Email: enquire@oxfam.ca
www.oxfam.ca

OXFAM-Québec
200-2330 Notre-Dame W.
Montreal, QC H3J 2Y2
Tel: 514-937-1614
Fax:514-937-9452
Email: info@oxfam.qc.ca
www.oxfam.qc.ca

Plan International Canada
95 St. Clair Avenue West, Suite 1001
Toronto, ON M4V 3B5
Tel: 416-920-1654
Fax: 416-920-9942
Toll free: 1-800-387-1418
Email: info@plancanada.ca
www.plancanada.ca

Primates World Relief and Development Fund
80 Hayden Street
Toronto, ON M4Y 3G2
Tel: 416-924-9192
Toll free: 1-866-308-7973
Fax: 416-924-3483
Email: pwrdf@pwrdf.org
www.pwrdf.org

Save the Children Canada
4141 Yonge Street, Suite 300
Toronto, ON M2P 2A8
Tel: 416-221-5501
Toll free: 1-800-668-5036
Fax: 416-221-8214
Email: sccan@savethechildren.ca
www.savethechildren.ca

War Child Canada
401 Richmond Street West, Suite 204
Toronto, ON M5V 3A8
Tel: 416-971-7474
Toll free: 1-866-WARCHILD
Fax: 416-971-7946
Email: info@warchild.ca
www.warchild.ca

World Vision Canada
1 World Drive
Mississauga, ON L5T 2Y4
Tel: 905-565-6100
Toll free: 1-800-268-5863
Fax: 905-696-2162
Email: info@worldvision.ca
www.worldvision.ca

——-

Although these few organizations have been provided a permit under the Special Economic Measures (Burma) Permit Authorization Order for the provision of humanitarian relief they have to comply with a number of other restrictions under the Regulations.

Other organizations that were not covered by the Authorization Order or some other exceptions need to be exceptionally careful in dealing with Burma.

 

For example Section 8 of the Regulations provides:

8. Subject to section 19, no person in Canada or Canadian outside Canada shall provide to or acquire financial services from Burma or any person in Burma.

There is no definition of “financial services”.  There is one reference to financial services in the Act, namely in Section 2:

Restricted or prohibited activities
Section 2
(2) Orders and regulations may be made pursuant to paragraph (1)(a) with respect to the restriction or prohibition of any of the following activities, whether carried out in or outside Canada, in relation to a foreign state: …

(e) the provision or acquisition by any person in Canada or Canadian outside Canada of financial services or any other services to, from or for the benefit of or on the direction or order of that foreign state or any person in that foreign state; …

Although one may think that “financial services” are services similar to “banking” in fact it is likely that a very broad definition of financial services would apply.

It is interesting to note that the US Office of Foreign Assets Control provides a discussion on financial services, looking at the uniqueness of such term in an overview of the Burmese Sanctions Regulations Title 31 Part 537 of the U.S. Code of Federal Regulations at: http://www.treas.gov/offices/enforcement/ofac/programs/burma/burma.pdf

“EXPORTATION OF FINANCIAL SERVICES TO BURMA –
Generally speaking, the exportation of financial services to Burma is prohibited. The term exportation or reexportation of financial services to Burma is defined broadly to mean (1) the transfer of funds, directly or indirectly, from the United States or by a U.S. person, wherever located, to Burma, and (2) the provision, directly or indirectly, to persons in Burma of insurance services, investment or brokerage services, banking services, money remittance services; loans, guarantees, letters of credit or other extensions of credit; or the service of selling or redeeming traveler’s checks, money orders and stored value. This defined term is unique to the Burma sanctions program. There are limited exceptions to the ban on the exportation of financial services. For example, payments can be made for certain licensed or exempt transactions, such as diplomatic payments and payments for goods exported to Burma. Under no circumstances can payments be made from blocked accounts on the books of a U.S. bank.”

There are exceptions to the Section 8 prohibition on “financial services” provided in Section 19.  Section 19 provides in part:

19. Section 8 does not apply in respect of
…. (c) any transaction to international organizations with diplomatic status, United Nations agencies, the International Red Cross and Red Crescent Movement or Canadian non-governmental organizations who have entered into a grant or contribution agreement with the Canadian International Development Agency, for the purpose of pursuing humanitarian relief work in Burma; …

Organizations that receive funding from CIDA already may wonder whether they are covered by the exception above.  The Regulations are ambiguous and arguably could be read in one of two ways: 1) a Canadian NGO that has a contribution agreement with CIDA on some other matter is excluded from Section 8 of the Regulations as long as the NGO is pursuing humanitarian relief work in Burma, or 2) only a Canadian NGO that has a contribution agreement covering humanitarian relief work in Burma is excluded from Section 8 of the Regulations.  In light of the serious consequences for an organization for violating a regulation of the Special Economic Measures Act (including but not limited to fine, imprisonment, loss of reputation, loss of CIDA and other funders support), we would urge any Canadian organization to obtain either a contribution agreement with CIDA for Burma, or an order under the Special Economic Measures Act from the Minister of Foreign Affairs to permit the specified activity or transaction.

There do not appear to be any judicial decisions, commentary, or similar regulations that could shed light on the precise meaning of Section 19(c).

There are few resources which speak of the Special Economic Measures (Burma) Regulations, likely because the Regulations only came into force in December 2007 (http://www.dfait-maeci.gc.ca/trade/burma-en.asp|).

As mentioned above there are significant legal consequences of violating the Regulations and the Act.  Section 8 of the Act provides:

8. Every person who wilfully contravenes or fails to comply with an order or regulation made under section 4
(a) is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding one year, or to both; or
(b) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years.

An organization wishing to support the people of Burma can do so through one of the exempted organizations above.  As well if an organization can obtain a contribution agreement with CIDA for Burma, that would also place the organizations activities in Burma within the exclusion provided in Section 19(c) of the Regulation.  As well, an organization can request permission for the specified activity or transaction from the Minister of Foreign Affairs under the Special Economic Measures Act but there is no indication that they will necessarily be adding organizations to those permitted. A third option is to use the UN or ICRC to implement the program.

Organizations that raise funds specifically for this disaster should have a publicly available policy on what they will do with the funds if they are no longer needed for that emergency or cannot be effectively spent on a particular country.

 

GlobalPhilanthropy.ca was created by Mark Blumberg, a lawyer at Blumberg Segal LLP in Toronto, Ontario.  If you have legal questions about non-profit organizations or charities in Canada he can be contacted at mark@blumbergs.ca or at 416-361-1982 x. 237. To find out more about legal services that Blumbergs provides to Canadian charities and non-profits please visit the Blumbergs’ Non-Profit and Charities page at http://www.blumbergs.ca/non_profit.php or http://www.globalphilanthropy.ca