Excellon Resources, the Canadian Embassy and Ejido community in Mexico

Les faits

Access to information documents received from the Canadian Department of Foreign Affairs, Trade and Development (DFATD) (now called Global Affairs Canada) indicate that the Canadian Embassy in Mexico supported private business interests of Toronto-based mining company Excellon Resources operating the La Platosa mine in the state of Durango, Mexico.  The affected community alleged environmental degradation, violations of its communal land use contract and violations of landowner/worker rights at the mine.  Protests began when the company failed to respond to these repeated complaints, which included official complaints brought to Canadian offices.  Documents reveal that while Canadian officials were aware of these concerns, they nonetheless supported Excellon’s efforts to pressure Mexican authorities to use force against the community’s peaceful protests and to avoid addressing community and worker complaints.


Background 

The Ejido La Sierrita is an agricultural community in Durango, Mexico, comprised of approximately 127 families who hold and control the land collectively.  Excellon is a Toronto-based mining company that operates a silver, lead and zinc mine (La Platosa mine) in Durango, Mexico. Local 309 of the National Workers Union represented about 120 workers at the La Platosa mine at the time of these events.

In 2004, the Ejido signed a land use contract to allow Excellon Resources to use 27 hectares of its communal land for the proposed La Platosa mine, under highly favourable terms to the company.  In 2008, the Ejido reached a new agreement allowing the company to use 1100 hectares of its land.  The new agreement was negotiated with support from ProDESC (Project for Economic, Social and Cultural Rights (ESCR)), a non-governmental organization with a focus on labour and landowner rights in Mexico; ProDESC began working with the Ejido in 2007. 

The new agreement included an annual payment to the community, preferential access to contracts for food services and transportation at the mine site, a payment to a community development fund and shares in the company.  In addition, in the agreement Excellon committed to creating a water treatment plant that would allow the Ejido to safely use the water discharged from the mine for agricultural irrigation.

Over the following years, with the exception of making annual payments to the community, the Ejido alleges that Excellon failed to fulfill its social and environmental contractual obligations. It alleged that the company failed to build the water treatment plant and failed to provide the Ejido with food services contracts at the mine and preferential hiring of Ejido members (MiningWatch, p. 6).  They also allege that the company explored lands that had not been included in the agreements, causing even more environmental degradation.  Moreover, they voiced concerns that the company was not respecting workers’ rights, especially around health and safety and pertaining to their right to freedom of association.  Discussions with Excellon repeatedly failed.

In April 2011, representatives of Local 309 of the National Workers Union, together with ProDESC, brought a complaint to Canada’s Office of the Corporate Social Responsibility (CSR) Counsellor for Extractive Industries.  In May 2012, together with the Ejido La Sierrita, they brought another complaint to Canada’s National Contact Point (NCP), which administers the OECD’s (Organization for Economic Co-operation and Development) Guidelines for Multinational Enterprises.  Both complaints alleged that Excellon had violated various terms of its land use contract with the Ejido, as well as landowner and worker rights (MiningWatch, p. 9).  The complaint to the CSR Counsellor was closed when the company refused to participate. The complaint to the Canadian NCP was sent to the Mexican NCP, despite the specific request that Canada take it up as a result of bias in the offices that make up the Mexican NCP. 

Once it became clear that these complaints were not yielding results, in early July 2012, community members set up a blockade on the property of one Ejido member near the mine site (MiningWatch, p. 4).

At the same time, Ejido representatives and ProDESC sought a meeting with the Canadian Embassy in Mexico City to discuss their human and environmental rights concerns with respect to Excellon’s operations.  Internal Embassy correspondence reveals that, in advance of this meeting, the Canadian Ambassador, Sara Hradecky, had no interest in encouraging the company to take community complaints seriously.  In her words, the goal of the meeting was “to listen, possibly gather intel helpful for the company” (MiningWatch, p. 5).

There is no evidence that the Embassy took any action following its meeting with the Ejido to question Excellon with respect to the community’s concerns or pursue a peaceful solution to the protests.

Initially, Mexican state authorities did not intervene to stop the protests.  In fact, ProDESC noted that at the outset, Mexican officials seemed supportive of the Ejido’s right to protest.  Notably, the protests and blockade were taking place on Ejido-owned land.

Excellon was not happy with the Mexican authorities’ hands off approach and began to publically criminalize the protestors and threaten criminal and civil actions.  In a news release dated July 11, 2012 pertaining directly to the Ejido’s protests, Excellon stated that, “The Durango State and Federal Governments have informed the Company that this action is illegal and as such, Excellon has filed criminal charges and commenced lawsuits for damages against all members and groups who are participating in this illegal action.”  Furthermore, Excellon said that, “The Company has the full support of the Government on these issues and has been informed that the Government will be meeting with the Ejido and other parties to end this illegal action.”

In this context, the Canadian Embassy responded by setting up meetings between Excellon and Mexican authorities at the state level.  At these meetings, Excellon pressured authorities to remove the protesters.  When state authorities did not respond, the Canadian Embassy provided Excellon with access to Mexican federal authorities (MiningWatch, p. 5). Excellon proceeded to email the President of Mexico, the Governor of Durango, the Minister of Government and the Secretary of Economy, with copy to the Canadian Minister of Foreign Affairs, the Canadian Ambassador and the Mexican Ambassador to Canada (MiningWatch, p. 7). In these email communications, Excellon’s VP Brendan Cahill characterized the Ejido’s protests as ‘illegal’ and threatened to close the La Platosa mine if state security forces did not remove the protesters (MiningWatch, p. 7).

When Excellon thanked Embassy staff for their help with these lobbying efforts, the Canadian Trade Commissioner responded to Excellon’s VP: “The Embassy remains at your disposition should Excellon want further institutional linkages” (MiningWatch, p. 7).

Within days of Excellon’s flurry of communications to these high-ranking political figures, Excellon informed the Canadian Embassy that it had received assurances that Mexican authorities would deploy the army and police chiefs to remove the protesters.  Excellon stated that it expected the authorities to “mak[e] arrests in the face of ongoing illegal trespass” (MiningWatch, p. 9). Over the course of all of these communications with Mexican authorities, Canadian Embassy officials accepted and adopted Excellon’s characterization of the community’s protests as ‘ilegal’ (MiningWatch, p. 9). There is no evidence to indicate that it questioned this characterization in light of the concerns it had heard from the Ejido and ProDESC just a few weeks prior.

Approximately 100 soldiers and officers of the Mexican Army and federal and state police agencies used force to break up the Ejido’s peaceful protest.  These security forces also burned protestors’ belongings (MiningWatch, p. 10).  No arrests were made and Excellon immediately resumed mine operations.  However, a community protest continued at another location, still on communal property but without blockading the road.

After the removal of the blockade, but in the context of ongoing protests, Mexican authorities were reluctant to issue an explosives permit to Excellon.  They expressed concern that the presence of explosives amid civil unrest could be dangerous (MiningWatch, p. 10). In this context, Embassy officials  intervened on Excellon’s behalf to pressure Mexican authorities to issue the permit to Excellon, which they ultimately did. 

Following these events, the Canadian Ambassador visited the Governor of the State of Durango where she held meetings with Canadian companies and signed a bilateral cooperation agreement with the state government.  Upon her return she assured Excellon that the Governor had promised to “continue working with federal counterparts to ensure a predictable investment environment” (MiningWatch, p. 11).

Finally, on October 24, 2012, the Canadian Embassy received a message from ProDESC that a group of mine workers from another part of Mexico, accompanied by Excellon’s Chief Operating Officer, had broken into the community’s protest site and had used mine equipment to destroy everything in the encampment (MiningWatch, p. 11).  There is no evidence that the Embassy took steps to investigate this allegation let alone take any corresponding action.

Following these events, the Ejido sued Excellon in local courts for failure to fulfill its contractual obligations, thus trying to rescind the contract.

Government Complicity

The International Commission of Jurists and former Supreme Court of Canada Justice Ian Binnie have described ‘complicity’ as an act or a failure to act that enables or contributes to human rights abuses or exacerbates specific abuses (p. 28).

In the case of Excellon, there is no evidence that Canadian officials encouraged dialogue between the company and the Ejido, or undertook an independent investigation of alleged human rights abuses. On the contrary, documents indicate that the Embassy treated civil society suspiciously and approached meetings with community leaders as an opportunity to gather “intel” for the company.  Moreover, the Embassy assisted in characterizing community protests as ‘illegal’ to Mexican authorities, despite the fact that protesters were on their own Ejido land. 

DFATD documents also demonstrate that the Embassy actively supported Excellon’s efforts to pressure Mexican state authorities to use force against peaceful protesters and that it made no efforts to ensure that the use of force was legal or proportional, having regard for the safety of community members and their legal rights as land owners.  This course of action completely disregarded the well-known context of high rates of violence against human rights defenders in Mexico and the problem of impunity.  Documents show that even after violence, the Canadian Embassy continued to support Excellon, including by pressuring Mexican authorities to issue an explosives permit in spite of safety concerns.

Ultimately, these actions enabled more violence against peaceful community protesters, allegedly by Excellon’s employees.  Again, there is no evidence that the Canadian embassy questioned Excellon or undertook an independent investigation. 

The Canadian government's complicity with criminalization and violence against human rights defenders in this case is consistent with other documented studies of embassy responses to conflicts between Canadian mining companies and communities in Latin America.  For another example documented by Voices-Voix, see the case of Blackfire Exploration in Chiapas, Mexico where Mexican activist Mariano Abarca was criminalized and murdered in 2009.   Another example is the case of Steven Schnoor, a Canadian filmmaker who successfully sued the former Canadian Ambassador to Guatemala and the Attorney General of Canada for libel and slander after the Ambassador stated that his film on the impact of mining activity in the country was fabricated.  For another example, see documents made public by Wikileaks in January 2011 that recorded plans by Canadian, American and other Ambassadors to lobby Peruvian authorities and take other measures to weaken and repress opposition to mining.

Government Failure to Regulate Canadian Embassy and Company Conduct

Since at least 2005, Canadian civil society organisations have been calling for a legal response to the concerns of communities like Ejido La Sierrita with the conduct of Canadian resource companies.  They argue that “there are virtually no regulations in Canada to prevent companies from taking advantage of weak environmental and labour laws or to hold them accountable for violations of human rights.”  Civil society has pushed for the Canadian government to regulate these companies, to develop eligibility criteria for government support and to withdraw government support and assistance in cases where companies refuse to abide by human rights and environmental standards.

The need for a regulatory response has been widely recognized by international human rights bodies, civil society in Canada and abroad and in a 2005 report by the federal government’s Standing Committee on Foreign Affairs and International Trade (SCFAIT).  In spite of this the Canadian government has continued to favor voluntary policy responses, including the Doing Business the Canadian Way and Voices at Risk policies.

In late 2016, the Canadian Network for Corporate Accountability (“CNCA”) proposed draft legislation for the creation of an independent ombudsperson for the Canadian extractive sector.  The proposed legislation is titled The Global Leadership in Business and Human Rights Act: An Act to Create and Independent Human Rights Ombudsperson for the International Extractive Sector. The proposal is part of the CNCA “Open for Justice” campaign launched in 2014.

Under the proposed legislation, the ombudsperson would have a mandate to receive human rights complaints against Canadian extractive companies.  It would have the power to investigate complaints and could apply to a judge to compel the production of documents and testimony under oath.  The ombudsperson would be mandated to make findings of fact with regard to any harm (or serious risk of harm) caused or contributed to, and would be required to issue public reports with any appropriate recommendation.  If the company does not follow these recommendations, the Ombudsperson could ask the government to withdraw its support. If the government does not comply, then the Ombudsperson could ask the government to provide reasons for non-compliance and could apply to Federal Court for judicial review of the government’s decision.

During the 2015 federal election, the Liberal Party stated that it “shares Canadians’ concerns about the actions of some Canadian mining companies operating overseas and has long been fighting for transparency, accountability and sustainability in the mining sector.”  More recently, in November 2016, the Liberal government assured advocates that it is “seriously considering” the creation of an independent ombudsperson that could investigate Canadian companies’ actions abroad.  However, since being elected in October 2015, the Liberal government has failed to fulfil these promises and has not included provisions for the Ombudsperson in its 2016 or 2017 budgets.

Relevant Dates:

2005: Canadian federal government’s Standing Committee on Foreign Affairs and International Trade (SCFAIT) issues a report on the need for a regulatory response in regards to Canadian resource companies operating abroad.

2008: Excellon and the Ejido La Sierrita sign a land rental agreement in 2008, which in particular included environmental, social and labour benefits in exchange for permission to undertake mining operations on the land.

April 8, 2011 + May 29, 2012: Local 309 and the Ejido La Sierrita make complaints to two different Canadian corporate accountability mechanisms alleging violations of Excellon’s land use contract, landowner and worker rights and environmental degradation. Excellon refused to participate in one process and the Canadian NCP sent the complaint to Mexico despite an explicit request from petitioners not to.

July 8, 2012: Demonstrations begin as protesters set up a blockade near the mine site on community property.

July 10-12, 2012: Meeting set up with community, ProDESC and Embassy to discuss the Ejido’s concerns regarding Excellon’s operations.

July 11, 2012: Excellon publically criminalizes and threatens criminal sanctions against protesters in a news release.

August 6-14, 2012: Embassy creates linkages between Mexican authorities and Excellon.  Excellon’s VP communicates with Mexican President and numerous high level Mexican and Canadian politicians, threatening to shut down operations at the mine if protesters were not removed.  This correspondence is copied to the Canadian Minister of Foreign Affairs, Canadian Ambassador and Mexican Ambassador to Canada.

August 28, 2012: Excellon and Embassy officials become aware of Mexican authorities’ plan to deploy the army and police in order to end the blockade. Embassy wishes the company well.

August 29, 2012: Approximately 100 soldiers and officers of the Mexican Army and federal and state police agencies use force to break up Ejido’s peaceful protest.                      

September 17-27, 2012: Excellon resumes mine operations and seeks and receives the Embassy’s help obtaining an explosives permit.

October 24, 2012: ProDESC informs Embassy that a group of workers from another part of Mexico, accompanied by Excellon’s Chief Operating Officer, break into the community’s encampment and use mine equipment to destroy and then burn protesters’ property.

October 2015: The Liberal Party of Canada publicly states that it shares civil society concerns surrounding the actions of some Canadian resource extractions companies operating abroad, and states that the party has long fought for “transparency, accountability, and sustainability in the mining sector.”

October 2015: The Liberal Party of Canada is elected and forms a majority government.

November 2016: The CNCA proposes draft legislation for the creation of an independent Human Rights Ombudsperson for the International Extractive Sector. The Liberal Government assures advocates it is “strongly considering” the creation of an independent ombudsperson that could investigate Canadian companies’ actions abroad.

March 2017: The Liberal Government does not include the Ombudsperson in its 2017 budget.

Emploi ou fonction

Ejido La Sierrita is an agricultural community of about 127 families that collectively own the land on which the La Platosa mine operates and therefore make decisions pertaining to the use of that land as a collective.

ProDESC (Project for Economic, Social and Cultural Rights (ESCR)) is a non-governmental organization that has been working with the Ejido La Sierrita since 2007.  ProDESC helps communities throughout Mexico defend their labour, economic, social and cultural rights by providing support for creation of democratic and independent unions in a variety of industries. 

Portée et conséquences

Accountability: The Canadian Embassy failed to take the workers’ labour rights and the Ejido’s environmental and human rights concerns seriously or undertake an independent investigation, much less to ensure remedy or apply adequate sanctions.  It also failed to require Excellon to pursue a mutual and peaceful solution.  Rather, the Embassy actively supported the company without this due diligence or despite its knowledge of the persistent concerns. 

Right to peacefully protest: The Canadian Embassy did not show concern for the rights of Ejido community members to peacefully protest and accepted the characterization of protesters as criminal and illegal.  It supported Excellon’s efforts to pressure Mexican authorities to remove protesters by force.  When Canadian officials became aware that the army would be called in, they made no efforts to ensure protesters’ safety. When Canadian officials became aware of allegations that the company itself had violently removed peaceful protesters, they did nothing to investigate and continued to offer support to the company.  

Published: 5 July 2017

Photo: Mining Watch

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