Federal Court of Appeal to rule on call for investigation into the death of human rights defender Mariano Abarca in Mexico

Mariano Abarca was murdered in 2009. His family asked Joe Friday, Canada’s Public Sector Integrity Commissioner, to investigate the matter. Federal Court Justice Keith Boswell ruled Friday’s decision not to investigate was reasonable.

On November 8, the Canadian Press reported: “Family and supporters of a Mexican activist who was killed after opposing a Canadian company’s mining project are challenging a federal ombudsman’s decision not to investigate the matter.”

“They told a Federal Court of Appeal hearing Monday the public sector integrity commissioner had grounds to look into allegations that Canadian officials in Mexico City failed to follow federal policies concerning protection of human rights advocates. Federal lawyers say there is no reason to revisit the commissioner’s decision to close the file.”

The article adds: “After hearing several hours of arguments Monday, the appeal court reserved judgment until a later date.”

Community leader Mariano Abarca was murdered on November 27, 2009, after leading peaceful protests against the environmental impacts of a barite mine in Chicomuselo, Chiapas operated by Calgary-based Blackfire Exploration Ltd.

One of those protests included this July 22, 2009, speech at a protest outside the Canadian Embassy in Mexico City. NACLA explains: “He delivered a speech targeting an embassy worker, saying ‘thugs’ from Blackfire had been harassing protesters.”

This MiningWatch Canada media statement notes: “The Abarca family believes that the role of the Canadian embassy in Mexico, including to pressure Chiapas authorities on behalf of Blackfire to quell protests when Canadian officials knew that Mariano was being criminalized and threatened, put his life at greater risk.”

CBC has reported: “Three men with links to the mine were arrested and one was subsequently convicted. Blackfire Exploration denied any knowledge of the events and was not charged. However, the RCMP did raid the company’s Calgary offices after it was accused of bribing local officials to suppress anti-mine protests.”

After the murder, Abarca’s family asked Joe Friday, the Public Sector Integrity Commissioner, to investigate this situation.

The Toronto Star has explained: “The legal framework for the alleged wrongdoing [by Embassy officials] is the Public Servants Disclosure Protection Act. The policies that are alleged to have been breached include a failure to adhere to corporate social responsibility guidelines established when Stephen Harper’s Conservatives were in power.”

The Commissioner declined to investigate.

Lawyer Yavar Hameed, who represents Abarca’s family, says: “If allegations that Canadian Embassy support for a mining company could have endangered the life of a human rights defender are not worthy of an integrity investigation, what is the point of having an integrity commissioner?”

Federal Court Justice Keith Boswell ruled in July 2019 that the Commissioner’s decision not to investigate was reasonable.

Boswell wrote: “Undoubtedly, the Applicants would have liked the Embassy to have acted in a certain way, and perhaps Mr. Abarca would not have been murdered. However, the Commissioner’s decision not to investigate was, in my view, reasonable and constitutes an acceptable outcome defensible in respect of the facts and law.”

Notably, NACLA reported: “Friday ultimately rejected the group’s arguments, stating Canada’s policies related to corporate social responsibility were not ‘official’ – that is, not binding—and therefore the complaint was not in the public interest to investigate.”

This prompts concerns about the non-binding Voices at Risk: Canada’s Guidelines on Supporting Human Rights Defenders document first published seven years after Abarca’s death and later updated in June 2019.

“Creating the conditions” for risk

The Toronto Star has reported: “An unnamed company executive [from Blackfire] emailed [Canadian] embassy officials [in Mexico City] in September 2008, thanking them for everything ‘that the embassy has done to pressure the [Chiapas] state government to get things going for us. We could not do it without your help.’”

This week, Global Witness senior advisor Louis Wilson commented on the murder of another human rights defender in Mexico, Óscar Eyraud.

Wilson explained: “His community, an Indigenous community there, had been denied access to traditional water resources, at the same time as a big corporation, Heineken, was granted additional access by the local government.”

Óscar was murdered in September 2020.

Wilson remarked: “Nobody, I think, would suggest that Heineken directly organized that killing, but it’s clear that they created the conditions that made that murder possible. And it’s very difficult to see that murder, or indeed many of the other 227 murders [of human rights defenders in 2020 documented in the Global Witness report Last Line of Defence], taking place without that resource extraction by big companies.”

Similarly, Shin Imai of the Justice and Corporate Accountability Project (JCAP) has commented: “We’re not saying that the Canadian embassy ordered the assassination of Abarca. What we’re saying is, because of the danger [faced by] human rights defenders, embassies have policies that are supposed to reduce the risk.”

We continue to follow this.