[This article was originally published in The Hill Times.]
It does not seem to be a controversial proposition that when a government department publicizes a policy, government officials should carry out those policies. In fact, that is exactly what the federal Code of Values and Ethics requires civil servants to do when it stipulates that they carry out their duties “in accordance with legislation, policies and directives.”
However, lawyers of the Attorney General of Canada will argue before the Federal Court on March 25 that policies for Canadian embassies meant to address conflict between Canadian mining companies and communities are not “official policies”. Therefore, embassy officials could act as if those policies did not exist.
This seems like an improbable Orwellian nightmare of doublespeak, but look at the examples that arise in a mining conflict in Mexico.
According to documents filed in court, from 2007-2009 there were serious conflicts between a Canadian mining company, Blackfire Exploration of Calgary, and members of a local community in Chiapas, Mexico. The Canadian embassy in Mexico intervened on numerous occasions on behalf of Blackfire with Mexican government officials in order to get a barite mine up and running.
In October 5, 2009 after receiving a complaint about community protests from Blackfire, Canadian officials travelled to the government of Chiapas to, as an embassy official stated, “advocate” for Blackfire. Seven weeks later, one of the community leaders, Mariano Abarca, was assassinated in broad daylight in front of his restaurant. No one has been found to be responsible for his murder.
At that time of the murder, the website of the Department of Foreign Affairs and International Trade (DFAIT) – now Global Affairs Canada – said that the Canadian embassies would promote Corporate Social Responsibility (CSR) for mining companies. DFAIT represented that the Canadian government “encourages and expects Canadian companies to meet high standards of corporate social responsibility.”
The approach that the embassy should take in cases of community-company conflict was later articulated in even more specific terms. A senior official of DFAIT testified on the policy to the House of Commons’Standing Committee on Foreign Affairs and International Development on December 1, 2009. Hansard’s transcript of the hearing shows that the official said thatdepartmental policy required the embassy to work “closely with companies and affected communities…to facilitate an open and informed dialogue among all parties.” In addition, results from an Access to Information request cited in the legal filings show that the Department prepared a briefing to the Minister saying that embassies “(f)acilitate dialogue without getting ‘in the middle’.”
Lawyers for the family of the Mexican community leader allege that Canada’s embassy did not approach the community or facilitate dialogue. Rather, they say that the embassy staff acted as single-minded advocates for the mining company. It was for this reason that the family members asked the Public Sector Integrity Commissioner to investigate whether the Canadian embassy violated policies relating to human rights defenders, and endangered the life of Mariano Abarca. The Commissioner oversees compliance with the Values and Ethics Codein accordance with section 8 of the Public Servants Disclosure Protection Act.
The disclosure letter to the Commissioner pointed out the dangers of human rights abuses and corruption in Mexico and cited four Canadian policies meant to address those concerns, including the policy to encourage Corporate Social Responsibility, and the policy to “facilitate dialogue.” The Commissioner refused to commence an investigation because, in his view, the policies were not “official.” The Attorney General supports the Commissioner’s interpretation of the policies.
What are the implications if the federal government is successful in its argument?
It will mean that across the entirety of the federal government (all departments and not just Global Affairs Canada), the public will not know which government policies are in force and which are not. Indeed, ministers will not know which policies will be implemented by government employees, and which will be ignored. And civil servants themselves will be confused as there is no definition of “official government policy” in the Code of Values and Ethics. This seems like an undesirable state of affairs all around.
The Attorney General’s position before the Federal Court puts the structure of democratic accountability and the Code of Values and Ethicsin jeopardy. Much more is at stake in this case than a technical question of law. If government policies that (1) appear prominently on government websites, (2) are the subject of extensive testimony before a Parliamentary Standing Committee, and (3) are the subject of briefings to the Minister, do not have to be followed by civil servants, then how exactly is government itself to be held accountable?
Kirsten Francescone is the Latin America Coordinator with MiningWatch Canada, which is one of the applicants in the court proceeding.
Values and Ethics Code for the Public Sector, paragraph 1.1 under “Expected Behaviours” http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=25049
Justice and Corporate Accountability Project, Submission to the Public Sector Integrity Commissioner in Relation to the Embassy of Canada in Mexico(February 5, 2018) https://justice-project.org/wp-content/uploads/2018/03/2.-PSIC-Public-final-rev1-.pdf
Notes from an embassy official, on a visit to Chiapas on October 5, 2009 found in Access to information request A-2010-00758/RF1 at 000039 online: https://justice-project.org/wp-content/uploads/2019/03/4.-ATIP-Blackfire-release-April-2012-p.000039.pdf
Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector (March 2009) online: https://justice-project.org/wp-content/uploads/2019/03/5.-Building-the-Canadian-Advantage-2009.pdf
Testimony by Grant Manuge (Director General of Trade Service, Operations, DFAIT) Standing Committee on Foreign Affairs and International Development (Number 043, Second Session, 40th Parliament)
It may be helpful to review the current practice of the department when DFAIT officials are presented with allegations of wrongdoing by a Canadian company abroad. When the department learns of such allegations, we take these very seriously and try to play a constructive and helpful role. Our heads of missions and foreign service officers in Canada and abroad consult and work closely with companies and the affected communities, and with governments, indigenous peoples, and civil society organizations to facilitate an open and informed dialogue among all parties.
• In an answer to a question from a member of the Committee, Mr. Manuge elaborated:
… we do not have the authority to undertake formal investigations abroad. We do not have the authority to establish who is at fault in situations like this. When I mentioned that we lend our offices to open dialogue with a view to seeking results oriented, constructive solutions, that's exactly what we do. We seek to help the various players reach a consensus on a way forward.
A powerpoint slide distributed by Marcello DiFranco, GNC on Jan.29, 2010 which part of an oral briefing to the Minister of International Trade.
“Recommendations Required for MINT Departmental Oral Briefings” Access to information request A-2010-00758 pp.000010-00013
- p.000010 – shows how widely it was distributed 68 people online: https://justice-project.org/wp-content/uploads/2019/03/7.1-GOC-powerpoint-000010.pdf
- p. 000011 – shows “Encourage and expect Canadian firms operating abroad to respect applicable laws, international standards to reflect our values and international commitments.” online: https://justice-project.org/wp-content/uploads/2019/03/7.2-GOC-powerpoint-000012.pdf
- p. 00013 – chart to show that Missions Abroad were responsible for eight tasks including “Facilitate dialogue without getting ‘in the middle’” and “Foster informed debate without being “in front” online: https://justice-project.org/wp-content/uploads/2019/03/7.3-GOC-powerpoint-000013.pdf