The relationship between Canada’s free trade agreements and human rights defenders

Photo: Bertha Oliva Nativí founded the Committee of Relatives of the Disappeared in Honduras (COFADEH) after the disappearance of her husband Tomás Nativí.

The impact of Canada’s free trade agreements on human rights defenders in Latin America is perhaps not discussed often enough.

Honduras

Stuart Trew, an Ottawa-based senior researcher with the Canadian Centre for Policy Alternatives, notes: “During debates on [Canadian prime minister] Stephen Harper government’s market-opening (and pro-mining) trade deals in Latin America, [Conservative leader Erin] O’Toole showed little patience or respect for human rights defenders. He was instead skeptical of the severity of human rights abuses in countries like Honduras.”

“In one disturbing case, O’Toole asked a Honduran human rights activist, Bertha Oliva — whose husband, Tomás Nativí, a professor and political rights activist, was disappeared by the Honduran state in 1981 — what courses her husband had taught at university. The question seemed to insinuate that this information was pertinent to — or may even have justified — his targeting by the state.”

Trew further notes: “The NDP opposed the Canada-Honduras Free Trade Agreement, but it passed into law [on October 1, 2014] under Harper’s Conservatives with the support of Liberals [led by Justin Trudeau] in Parliament.”

Colombia

In May 2009, Colombian lawyer Yessika Hoyos Morales stated: “If Canada ratifies the free trade agreement it will give a message to Colombians and to the whole international community that Canada supports a government that violates human rights.”

Despite this plea, the agreement came into force in August 2011.

Trew now notes: “Just this month, an ISDS [investor-state dispute settlement] tribunal ruled in favor of a Canadian firm operating in Colombia under a Canadian free trade deal with strong investment protections. The tribunal determined that, although the Colombian government’s efforts to protect a sensitive wetland area from mining were legitimate, the government nonetheless violated the firm’s rights to ‘fair and equitable treatment’.”

Trew is referring to a challenge by Vancouver-based Eco Oro in relation to its Angostura gold concession in Colombia. The company withdrew from the mine in 2019 after Colombia prohibited mining in the high-altitude wetlands of the Santurban paramo.

A significant part of this story, as told by the Colombia Working Group, is that Eco Oro, then known as Greystar, had previously made a pact with the army and paramilitaries following the kidnapping of one of its contractors in 1999.

The working group highlights: “[The company] paid for the installation of a military base and also bought land in the zone. Greystar provided logistical support to establish a security operations base, and part of the troops’ mandate is to ensure the viability of the company’s mining operations.”

Mexico

Trade expert Scott Sinclair has also written: “While Canada and the U.S. agreed to terminate ISDS between themselves, the Mexican government of Enrique Peña Nieto settled for a more complicated arrangement.”

“ISDS is no longer available between Canada and Mexico through CUSMA [Canada-US-Mexico Agreement, that entered into force in July 2020], though it remains in place in the CPTPP [Comprehensive and Progressive Agreement for Trans-Pacific Partnership, that entered into force in December 2018].”

Sinclair highlights: “U.S. investors with government contracts in a range of key sectors, including energy, will retain full access to old-style, unreformed ISDS.”

This summer, at a “three amigas” summit with her Mexican and US counterparts, Trade Minister Mary Ng reiterated Canada’s “ongoing concern with the investment climate in Mexico specifically in energy and mining sectors,” while welcoming the expected reopening of the San Rafael mine operated by Canadian miner Americas Gold and Silver Corp.

Guatemala

In December 2018, Kappes, Cassiday & Associates (KCA) filed a $300 million claim with the International Centre for Settlement of Investment Disputes (ICSID), a World Bank arbitration mechanism, claiming its investor rights under the Dominican Republic–Central America Free Trade Agreement (CAFTA-DR) had been violated.

This relates to the El Tambor mine in an area known as La Puya, just north of Guatemala City, that community members began to blockade in March 2012 when it was owned by Vancouver-based Radius Gold Inc.

While Canada does not have a trade agreement with Guatemala (despite previous efforts) and Radius Gold sold the mine to KCA in August 2012, the company retains an interest in the mine (including quarterly royalty payments on gold production from the mine) and, as such, would also retain an interest in the outcome of this investor-rights challenge.

What’s needed?

Several years ago, Michel Forst, at that time the United Nations Special Rapporteur on the situation of human rights defenders, wrote: “Trade agreements with countries where environmental defenders are under threat should contemplate measures to prevent, investigate and remedy violations against activists.”

And Manuel Perez Rocha, an Associate Fellow at the Institute for Policy Studies, has argued: “Human rights in the broadest sense — including economic, social, cultural, and environmental rights — must have primacy over corporate and investor rights, and there needs to be legally binding obligations on transnational corporations.”

Among the proposals suggested by Perez Rocha are “eliminate ISDS … and establish binding investor obligations” and “recognizing indigenous title to land and resources and the right to free, prior, and informed consent.”

Canada-Pacific Alliance free trade agreement

Canada is currently pursuing the Canada-Pacific Alliance Free Trade Agreement with Colombia, Mexico, Chile and Peru. Guatemala has expressed interest in joining the Pacific Alliance, while Honduras has formally applied for membership in the alliance.

It’s not clear if any analysis has been done on the impact or potential implications of the Pacific Alliance on defenders in these countries.

We will continue to study these issue and make advocacy interventions in light of the dangers faced by human rights defenders in these countries.

Photo: PBI-Colombia accompanies Yessika Hoyos, a human rights lawyer with José Alvear Restrepo Lawyers’ Collective (CCAJAR). In 2009, she visited Canada to speak against the passage of the Canada-Colombia Free Trade Agreement.