For the first time a lawsuit against a Canadian mining company over alleged human rights abuses abroad will be heard in a Canadian court. After opposing it for more than a year, HudBay Minerals Inc. has agreed to have the case heard by a Canadian court. But the company says that the charges should be thrown out, arguing that it cannot be tried in court here for the actions in Guatemala of its former foreign subsidiary at the time.
In what could potentially be a landmark ruling for Canadian corporate accountability, members of the Mayan Q’eqchi community of Lote Ocho have brought three lawsuits against HudBay Minerals Inc. in the superior court of Ontario.
The charges against Hudbay
One: In September 2010, Angelica Choc, widow of Q’eqchi’ community leader and teacher Adolfo Ich Chaman, filed a claim against HudBay Minerals and its subsidiaries HMI Nickel Inc. and Compania Guatemalteca de Niquel (CGN) for their responsibility in the death of her husband at the hands of security personnel employed at the Fenix mining project on September 27 2009, during a protest over the land occupation. She says that several people saw Adolfo Ich Chaman dragged away to a building on the mine site, where he was attacked with machetes and shot.
Hudbay denies security personnel were responsible. “Based on internal investigations and eye witness reports, HudBay and CGN are confident that CGN personnel were not involved in his death.”
Two: Also on September 27, 2009. German Chub Choc, a young father, claims he was shot at close range by the head of security personnel for the mine. He was paralyzed as a result, and lost the use of his right lung.
Three: In March 2011, another claim was filed against the company for negligence in regulating its security forces. Margarita Caal Caal, Rosa Elbira Coc Ich and nine other women say they were gang-raped in January, 2007 by mine security personnel, police and military during forced evictions
A history of dispute
Violent dispute over land ownership in the area is not new. The Mayan Q’eqchi’ people in El Estor have been subject to years of violence, much of it related to the value of the land for mining. In the 1960s, as Canadian nickel mining giant Inco became interested in the nickel deposits in the area, it also became a base for guerilla operations and a target of military repression.
Thousands of Mayan people there were killed by the military under the command of the “Butcher of Zacapa,” Colonel Carlos Manuel Arana Osorio, who was elected president of Guatemala in 1970 with the promise that if necessary, he would “turn the country into a cemetery in order to pacify it.” Some 200,000 people, mostly Mayans were killed in the repression that followed.
Inco closed up its operation in 1982, and in 2001 the land and equipment were sold to Skye Resources. HudBay took ownership in 2008 and sold it in 2011.
Local Mayan Q’eqchi people who have periodically reclaimed areas of this land over the years have been met with forced eviction by authorities.
Turning to the courts
Communities have also sought recognition of their land claims in court. In 2011 the Constitutional Court of Guatemala recognized the claim of ownership of the community of Agua Caliente, one of seventeen Q’eqchi’ communities in the area affected by the Fenix project. The court ordered land title documents that had gone missing in previous years replaced.
The Q’eqchi’ communities consider this ruling a victory, although HudBay has said that the “ruling pertains to a specific ownership claim by an indigenous community of an area adjacent to the property of CGN, and has no impact on the company’s operations.”
The lawsuits are being handled by Toronto-based firm Klippensteins Barristers and Solicitors Inc. I spoke to Cory Wanless, one of the lawyers representing the widow of Adolfo Ich Chaman, Angelica Choc, and the eleven women of the community of Lote Ocho.
“Our objective is to go to court and win, and we think that’s possible,” he said. “As a firm, we have been concerned about the behavior of some mining companies and we’re looking for a way to make sure that they’re accountable for the actions that they take overseas, especially in countries that have weak legal systems. What we’re trying to do is make them think twice about their behavior abroad knowing that they could potentially be brought to court in Canada.”
The Hudbay perspective
John Vincic, a spokesperson for HudBay, referred to the company’s position that it “firmly believes that the majority of residents in the area support our outreach efforts, investments in the local community and the development of the Fenix project.”
He said that the company had investigated the events surrounding the events of September 2009 and was confident that CGN security personnel were not involved in Mr. Chaman’s death.
Guatemalan authorities, however, did issue an arrest warrant for the head of security at CGN, former army lieutenant Mynor Ronaldo Padilla Gonzáles.
As for the alleged rape, the company says that predates its interests in Guatemala, since it only took ownership in June 2008, and contradicts its information regarding the incidents of January 2007.
The other perspective
“The fact that these lawsuits have been filed in Canadian courts is very important”, said Jennifer Moore, Latin America Program Coordinator for the NGO MiningWatch. “It is part of trying to chip away at the impunity that exists in which we have been complicit by not providing affected communities better access to justice and remedy, particularly given the tremendous role Canadian companies play in the Latin American mining sector.”
“Guatemala is a very dangerous place, especially for human rights defenders and people who speak out on behalf of indigenous rights and indigenous land rights,” Wanless said. “99.75% of violent crimes go unpunished. That’s an incredible statistic. Our clients know that and are incredibly brave people. Angelica’s husband was killed because he spoke out.”
For the perspectives of both sides in the legal battle, see chocversushudbay.com and hudbay.ca.