Historic ruling means Canadian mining company to be tried on home soil for abuses abroad

| July 24, 2013
Global day of action for mining justice, Toronto. (Photo: Raul Burbano)

TORONTO – A ruling made on Monday by Supreme Court of Ontario Justice Carole Brown means that a legal case brought by 13 Mayan Q'eqchi' against Toronto-based Hudbay Minerals can now proceed to trial in an Ontario courtroom. The ruling is the first of its kind in Canada and will send shockwaves through Canada's mining industry, as Hudbay will now have to respond to charges of murder and rape in Guatemala on home soil.

"We are suing a Canadian company for negligent management essentially," Cory Wanless, co-counsel for the plaintiffs with Klippensteins law firm, explained in an interview. He said of the hearing in early March that led to this decision, "We were arguing that the Canadian company in its head office in Ontario, was the one that set policy regarding community relations, set security policy and determined how they would interact with local peoples and we say they did that negligently and should be held responsible when things go wrong."

According to Department of Foreign Affairs and Trade (DFAIT) statistics, 75 per cent of the world's mining companies are based in Canada. A combination of favourable tax breaks and few laws that hold the companies to account for their actions overseas has meant that many companies call Canada home, without operating mining projects in the country and often receiving primarily foreign investment via the Toronto Stock Exchange.

Murder, rape and forced evictions

 Monday's ruling applies to three related law suits, which were consolidated for the preliminary hearings, filed against Hubday Minerals, including the case brought by Angelina Choc, the widow of slain anti-mining activist Adolfo Ich Chamán. Ich was a respected community leader in the town of La Unión, located near Hudbay’s former Fenix mine. On September 27, 2009, the sounds of gunshots heard in the vicinity of the mine brought Ich from his home. Although he arrived unarmed, he was brutally attacked by roughly a dozen mine security staff with a machete and then fatally shot in the head at close range. Ich left behind five children and a community in mourning.

German Chub, a young father in the same town, also brought a law suit against Hudbay, alleging that the head of security for the mining operation shot and gravely injured him on the same day that Ich was killed. Chub survived the attack, but is now paralysed and has lost the use of his right lung.

The third law suit involves 13 Mayan women who say they were gang raped by mine security staff during forced evictions in the rural town of Lote Ocho. In early January 2007, at least five Mayan communities were forcibly displaced from their lands, while dozens of houses were burnt to the ground in the wake of the attack.

A week later, residents returned to reclaim and rebuild their homes. It was during a second violent eviction that the alleged assaults occurred, an allegation which follows a long history of rape being used throughout the Guatemalan civil war during the eviction and displacement of Mayan communities. Sky Minerals, who later merged with Hudbay Minerals, sought the evictions near the Fenix mine and Hudbay may now be culpable for those actions.

A challenge to established impunity

 The ruling this week is significant because it recognises that Canadian corporations should be answerable for the actions of their subsidiary companies. "Basically all mining companies organise themselves through layers of subsidiaries, which they do for tax reasons and also to avoid liability," said Wanless from his office in Toronto. "Hudbay was arguing that the parent company should never be responsible, no matter how involved they were in the particular decisions that led to the harm and we of course were arguing the opposite."

"There will now be a trial regarding the abuses that were committed in Guatemala, and this trial will be in a courtroom in Canada, a few blocks from Hudbay's headquarters, exactly where it belongs," lawyer Murray Klippenstein said in a press statement. "We would never tolerate these abuses in Canada, and Canadian companies should not be able to take advantage of broken-down or extremely weak legal systems in other countries to get away with them there."

According to DFAIT, murder charges in Guatemala carry a 98 per cent impunity rate, making a strong case that the Hudbay lawsuit would struggle to see justice in a Guatemalan courtroom. However, in many similar cases in other countries with widely-recognized legal corruption, Canadian courts have always maintained that charges laid against Canadian companies abroad, must be challenged in the host country, rather than a Canadian court.

'A breakthrough in legal accountability'

 "We see it as a breakthrough in legal accountability of Canadian mining companies for overseas rights abuses," said Wanless, continuing, "I know that it is being followed closely by other mining companies." If the case proves successful, it could set a legal precedent for countless other communities around the world, who have faced violence associated with Canadian mining companies in their territory, to seek justice via the Canadian courts.

While there is still a long road ahead, Angelina Choc said of Monday's announcement: "Today is a great day for me and all others who brought this lawsuit. It means everything to us that we can now stand up to Hudbay in Canadian courts to seek justice for what happened to us."

 

Jen Wilton and Liam Barrington-Bush are solidarity activists who have spent much of the past year investigating Canadian mining operations abroad for a range of publications. Jen tweets as @GuerillaGrrl and Liam tweets as @hackofalltrades.

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Comments

Quote:
The ruling is the first of its kind in Canada and will send shockwaves through Canada's mining industry, as Hudbay will now have to respond to charges of murder and rape in Guatemala on home soil.

There's nothing unusual about a company being sued in the country where its head office is located.

What's precedent-setting about this decision (which will probably be appealed) is that it says Hudbay Minerals can potentially be held civilly liable for the wrongdoings of its subsidiary company in Guatemala. One of the reasons mining companies set up foreign subsidiaries to do their mining is that traditional corporation law says that parent companies are not liable for the actions of their subsidiaries. As Murray Klippenstein, counsel for the Guatemalan plaintiffs remarked, "As a result of this ruling, Canadian mining companies can no longer hide behind their legal corporate structure to abdicate responsibility for human rights abuses that take place at foreign mines under their control..."

So the big issue here was not whether the suit could take place in Canada or Guatemala, but whether Hudbay Minerals could potentially be liable at all.

Note also (as it's not made clear in the above article) that this is a civil lawsuit for damages, not a criminal prosecution for murder or rape. Regardless of the ultimate disposition of this case, there could still (in theory, anyway) be criminal charges brought in Guatemala against those responsible.

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