Montejo v. Canada
CLAIHR intervenes in case concerning shooting death of local activist opposed to Canadian-owned mine in Chiapas
CLAIHR and the International Justice and Human Rights Clinic at Allard School of Law (IJHR Clinic) were granted intervener status in a case before the Federal Court of Appeal, Montejo et al. v. Canada. This case raises the question of the Canadian government’s international legal obligations to ensure that Canadian corporations do not violate human rights.
On November 27, 2009, Mariano Abarca was murdered outside his home in Chicomuselo, Chiapas, Mexico. Mr. Abarca was a vocal leader in community opposition to a nearby barite mine owned by Canadian company, Blackfire Exploration. On February 5, 2018, Mr. Abarca’s family and supporters filed a complaint, or a “Disclosure” with the Public Sector Integrity Commissioner of Canada, asking for an investigation under the Public Servants Disclosure Act into the conduct of the Canadian Embassy in Mexico. The Disclosure allegations included that the Embassy failed to follow policies in relation to human rights defenders and these actions and omissions created danger to the life and safety of Mr. Abarca.
The Disclosure documents the relationship between Blackfire and public officials, the support the Canadian Embassy gave to Blackfire to enable its mining operations, and the Embassy’s knowledge of the risks that Mr. Abarca faced as a human rights defender vocally opposing the mine. The Commissioner, however, decided not to investigate the complaint. Mr. Abarca’s family, supporters, and civil society organizations filed an application for judicial review of the Commissioner’s decision with the Federal Court. The Federal Court found the Commissioner’s decision not to investigate reasonable.
Mr. Abarca’s family and their allies have appealed that decision to the Federal Court of Appeal. CLAIHR and IJHR Clinic have received leave to intervene. Together, the parties intend to argue that wrongdoing under the Disclosure Act must be interpreted in line with Canada’s international human rights obligations and Charter principles. The interveners argue that Canada can incur international responsibility where its Embassy staff and/or its Trade Commissioner Service commit or aid and assist in the commission of an internationally wrongful act committed by a third party. Moreover, Canada has a duty, not only to respect rights, but also to protect rights. Specifically, Canada has an obligation to ensure that certain private actors—including corporations headquartered in Canada and/or brought into existence under its laws—do not themselves violate human rights.
CLAIHR and IJHR Clinic are represented in this case by Joshua Sealy-Harrington and Jennifer Klinck of Power Law, and Penelope Simons of the University of Ottawa. CLAIHR and IJHR Clinic’s factum can be found here.