Federal Court Judge Concedes – If Canadian Embassy in Mexico Had Acted Differently, Mariano Abarca Might Not Have Been Murdered, But Refuses to Order Investigation
(Chiapas, Mexico City, Ottawa, Toronto, Kamloops) In a decision published on July 18th, Federal Justice Keith Boswell conceded that “perhaps Mariano Abarca would not have been murdered” if the embassy “[had] acted in a certain way”. Mariano was a community leader from Chicomuselo, Chiapas, Mexico who was assasinated for his role in the struggle against the social and environmental impacts of Canadian mining company Blackfire Exploration’s barite mine on November 27, 2009.
This decision was made at the first stage of the judicial review process that the Abarca family initiated following the Public Sector Integrity Commissioner (PSIC)’s refusal to investigate the acts and omissions of the Canadian embassy in Mexico with regard to the criminalization and murder of Mariano. 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. Despite Judge Boswell’s admission of the significance of the embassy’s influence, he refused to order the Commissioner to investigate the embassy’s conduct.
Mariano Abarca’s son, José Luis Abarca Montejo, attended the Federal Court hearing in March of this year and responded, “We are very disappointed by this decision. We have been seeking justice for my father’s assassination for many years now and it is baffling to us that the judge could recognize that the embassy could have made a difference in the life of my father by acting otherwise, and yet refused to order an investigation.”
In his 26-page decision, Justice Boswell dedicated only one substantive paragraph to analyzing the facts before him, finding that it was “reasonable” to conclude that the embassy did not violate any code of conduct. He appears to base this conclusion on the presumption that the policies related to corporate social responsibility, corruption, and human rights defenders identified by the litigants were not binding on the Canadian public officials who responded to the Blackfire conflict. Moreover, Justice Boswell determined that the Commissioner's decision not to investigate was “acceptable”, even though it lacked a serious evaluation of the significant public interest in ensuring public oversight of the actions of Canadian public officials engaged with mining conflicts around the world.
“This decision demonstrates the little will on the part of the judge to seriously study and analyze the evidence and arguments we presented. We are surprised to receive a judgement with little consideration for such an unfortunate situation despite its tremendous importance for the public interest in Canada and in other countries where similar grave complaints persist about human rights violations by Canadian companies who often continue to benefit from the support and protection of the Canadian government through its diplomatic missions, which are considered less and less trustworthy,” remarked the Abarca family’s lawyer, Miguel Angel de los Santos.
Additionally, according to the litigants, the decision of the court lacks a serious analysis of the central issue as to why the embassy was not obligated to follow policies, norms and directives that were published on the Canadian government’s website, and on which public officials had testified in the Canadian parliament around the same time that Abarca’s murder took place.
“This is a highly deficient decision and it’s particularly worrisome that the court would accept that directives that the Canadian government publishes and publicly acknowledges are not binding on public officials. This decision adversely impacts the ethical operation and accountability of not just embassies, but of the public service more broadly,” stated lawyer Yavar Hameed, who represents the Abarca family and Mexican and Canadian organizations in the judicial review process.
For Uriel Abarca, Mariano’s brother, who was also present at the hearing, the news of the decision is not a surprise: “We knew it would be difficult for a Canadian court to call for an investigation over the role of Canadian embassy officials. However, to not investigate the Canadian embassy is to be afraid of the truth about how Canadian officials enable the operations of Canadian mining companies in Latin America, and especially in Mexico and Chiapas, where they are causing severe ecological harms and violating human rights. Despite this decision, we will continue our struggle for justice.”
Gustavo Castro of Otros Mundos Chiapas, also a litigant in the case, views the court’s decision as part of the context of impunity in which the Canadian mining industry operates around the world, “The Canadian government benefits from mining activities abroad and, beyond whether we are right or wrong in the arguments, the failure to substantially consider our case and the refusal to order an investigation speaks loud and clear: they don’t want to investigate their own government.”
The Abarca family together with Otros Mundos Chiapas, the Human Rights Centre of the Autonomous University of Chiapas, the Mexican Network of Mining Affected People (REMA by its initials in Spanish), and MiningWatch Canada presented a complaint about the embassy’s conduct to the PSIC in February 2018. After the PSIC refused to open an investigation in April 2018, these same groups applied to the Federal Court for judicial review. Now, after receiving this frustrating decision, they are reaffirming their commitment to seek accountability with regard to the Canadian embassy’s conduct in the months leading up to Mariano’s murder. With this aim, they are preparing to exercise their right of appeal to the Federal Court of Appeal.
For more information contact:
- Yavar Hameed, Hameed Law, email@example.com, (613) 627-2974
- Charis Kamphuis, Justice and Corporate Accountability Project (JCAP), firstname.lastname@example.org, email@example.com; 250 572 2625.
- Kirsten Francescone (for information or to set up interviews with the family), firstname.lastname@example.org; 437-345-9881
Access-to-information requests showed that the embassy intervened with Mexican government officials to support the company even when it knew about conflict over Blackfire’s project in Chiapas, Mexico, including the risks that Mr. Abarca was facing. Mr. Abarca had personally alerted the embassy about community concerns over the mine’s impacts and related threats. Shortly after, Mr. Abarca was detained without charge on accusations filed by the company, and just weeks before his murder, the embassy asked Mexican authorities to quell protests over Blackfire’s operations.
Federal officials at the time told a Parliamentary Standing Committee on Foreign Affairs and International Development that the role of Canadian embassies was to “work closely with companies and the affected communities, governments, indigenous peoples and civil society organizations to facilitate an open and informed dialogue between all parties.” Nevertheless, the Canadian embassy in Mexico refused to meet with the family and civil society organizations that work in the community until months after Mr. Abarca’s murder, although Embassy officials continued to provide support to the company. This is just one of many failures on the part of embassy officials to follow Canadian government policy, as alleged in the Abarca family’s original complaint to the PSIC.