Environmentalists taking federal watchdog to court over diplomats' actions in Mexican mining dispute

Mining Watch Canada and a collection of Mexican groups and individuals, backed by two law schools, want a court to order Public Sector Integrity Commissioner Joe Friday to investigate of the actions of Canadian diplomats in Mexico around the murder of environmental activist Mariano Abarca in 2009.

Groups say Joe Friday blew off request to investigate Canadian embassy's failures in Mexico murder case

Mariano Abarca Roblero, shown in this still image taken from video in 2009, was helping to organize protests against a Canadian mining operation in in the Chicomuselo area of Chiapas state. He was shot to death in 2009. (Dominique Jarry-Shore/THE CANADIAN PRESS)

A coalition of Mexican and Canadian environmental groups is bringing legal proceedings against federal Public Service Integrity Commissioner Joe Friday, accusing him of failing in his duty to investigate a case involving mines and murder in southern Mexico.

The case dates back to a period from 2008 to 2010, when Canadian company Blackfire Exploration was operating three barite mines in the Chicomuselo area of Chiapas state, and facing local protests.

The Canadian embassy in Mexico was heavily involved in the tense situation, acting as an advocate for Blackfire before Mexican state and federal authorities.

One of the protest leaders, Mariano Abarca, approached the embassy to warn that he had been the subject of threats aimed at forcing him to back off his anti-mine campaign.

In 2009, Abarca was shot in the back from a passing vehicle outside of his family restaurant and died. 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.

The company denied that it been bribing a mayor when it paid money directly to him rather than to the municipality.

"We contributed funds to the local town fair and to assist the municipal government in limited ongoing expenses," Blackfire wrote in a statement. "Cheques were addressed to the mayor as an elected official because the town has no banks. This is considered an appropriate practice in the State of Chiapas. Unfortunately the contributions were not used for their intended purpose and we reported this fact to the authority's (sic) immediately."

No charges were laid in the case.

Embassy accused of negligence

Although the mines were shut down by the Mexican government for environmental violations shortly after Abarca's murder — and Blackfire has since dissolved — the Abarca family and a coalition of Mexican and Canadian environmental groups have long argued that the part the Canadian embassy played in the affair needs to be investigated.

In February of this year, Mining Watch Canada, together with Mexican groups and members of the Abarca family, petitioned Public Sector Integrity Commissioner Joe Friday to launch an investigation of the embassy's role in the deadly events around the mine protests. They were represented by lawyers from Osgoode Hall Law School in Toronto and Thompson Rivers Law School in B.C.

What he's saying is that the only obligation Canadian embassies have is to promote the interests of Canadian mining companies- Jen Moore, Mining Watch Canada

The petition named embassy officials and accused the diplomats of both acts and omissions that increased the danger to Abarca.

They also said the embassy had been negligent in failing to assess the potential for violence against Abarca, despite his own warnings, and despite having received 1,400 letters from Abarca's supporters when he was briefly detained by local authorities a few weeks before his murder.

The complaint also accuses the embassy of failing in its duty to report suspicious payments or apparent bribes paid by Canadian companies to foreign officials.

Friday says no

But Friday refused to take on the case. The commissioner wrote In a letter to the Osgoode Hall lawyer representing the complainants that even if the embassy's actions weren't in keeping with principles stated by the government on its websites, in testimony before Parliament and in statements to the media, that did not constitute wrongdoing.

"From our understanding," he wrote, "these documents are not official Government of Canada policies and they do not appear to prescribe specific actions that should have been taken or not taken by the Embassy."

Joe Friday, Canada's Public Sector Integrity Commissioner of Canada. (PSICC)

Friday also questioned whether a 2010 policy directing Canadian officials to report suspected acts of bribery was in effect in 2009, when the events happened.

But the petitioners say they don't accept the dismissal of their allegations and are appealing to the courts for a judicial review of Friday's decision.

In a draft notice of application shared with CBC News, they ask that Friday's ruling be set aside and that the commissioner be ordered to investigate the claims against the embassy "in accordance with the directions of this court."

A 'closed mind'

The application says Friday "demonstrated a closed mind in dismissing information" and "erred in placing an impossible burden on the Applicants, at a threshold stage, to produce information that was hidden from them" in internal government documents.

Jen Moore of Mining Watch Canada said Friday was wrong to suggest that Canadian diplomats are not bound to adhere to positions stated publicly by the government.

Jen Moore of Mining Watch Canada is part of a group asking Public Sector Integrity Commissioner Joe Friday to launch an investigation of the Canadian embassy's role in the deadly events around the mine protests. (CBC)

"The essence of what he's saying is that the only obligation Canadian embassies have is to promote the interests of Canadian mining companies, and everything else that might be written on government web pages, or said by the embassy to the press, or in parliamentary committees, or that's written out in specific government strategy documents for the overseas extractive industry, actually none of that is binding on the embassy," she said.

"So any reference to human rights in there — don't take it seriously."

The commissioner declined to speak about the case. His communications manager Edith Lachappelle told CBC News that "if there is a judicial review of these matters our office will, of course, cooperate fully."