Originally published by Latin Correspondent on 8/12/15.
Guatemalans who have been the victim of alleged human rights abuses at the hands of mining companies are taking lawsuits to Canada.
Concerned that justice cannot be achieved in Guatemala, several plaintiffs have taken legal action against two mining companies for human rights violations committed by their subsidiaries.
“Corruption and incompetence.”
There is little faith in Guatemala’s weak judiciary system. Corroded by corruption and incompetence, it is woefully inadequate. Although the creation of the International Commission against Impunity in Guatemala (CICIG), set up in 2006, has led to a reduction in impunity for homicides, especially in Guatemala City, where they have been reduced by 25 percent, impunity rates remain very high. According to a 2014 report by the United States’ Overseas Security Advisory Council (OSAC), impunity rate for homicides in Guatemala City were 70 percent.
Victims of human rights abuses have, instead, turned their attention to the parent companies’ home country: Canada.
This is, however, a recent development. Historically, parent companies have been legally considered a separate entity from their foreign subsidiary, and, therefore, it was reasoned that they could not be liable for violations – no matter how heinous – committed by their subsidiaries in foreign countries.
Lawyers representing victims of human rights abuses, however, have found a way of circumventing this issue by arguing that parent companies can indeed be liable. They have done so by pointing to the companies’ own Corporate Social Responsibility (usually outlined on the company websites and in their literature) and arguing that a duty of care towards the plaintiffs exists, using this for grounds to sue the company for negligence.
Since 2013, there have been several important lawsuits against HudBay Minerals Inc. and Tahoe Resources.
HudBay Minerals Inc.
Three lawsuits were filed in 2011 by 13 indigenous Mayan Q’eqchi’ against HudBay Minerals for alleged human rights violations in the department of Izabal in eastern Guatemala. Eleven women said that while they were being violently forced from their homes to make way for the Fenix mine, they were gang-raped by police officers, military personnel and mining security employees.
Another lawsuit was initiated by Angelica Choc over the fatal shooting of her husband Adolfo Ich, allegedly shot in 2009 by mining personnel during a protest the community organised in response to the threat of forced evictions.
The man accused of murdering Adolfo Choc is standing trial in Guatemala, but Angelica, who has had to face the accused in court, is concerned for her safety. “I fear for my safety and the lives of my children,” she said in video testament.
The other plaintiff is German Chub. He is seeking damages for an alleged attacked carried out by the mining company which left him paralyzed. The young father claims he was shot at close range in an unprovoked attack in 2009.
In 2013, the Ontario Superior Court made a precedent-setting decision by allowing the case against mining giant HudBay Minerals Inc. to be heard in a Canadian court. In June this year, HudBay was ordered to submit a series of internal documents that the plaintiff’s lawyers contend will prove the company’s legal responsibility for the human rights violations which occurred in Guatemala.
Following suit, six Guatemalan farmers and a student initiated a lawsuit in 2014 against Vancouver-based Tahoe Resources over alleged abuses which took place at the Escobal mine.
The plaintiffs allege that they were attacked with rubber bullets by mining personnel while protesting against the development of the mine owned by Tahoe Resources, claiming that they suffered serious injuries as a result of the shooting, with the order allegedly given by Tahoe’s Guatemala security manager.
Like the Hudbay plaintiffs, the six men also took their lawsuit to Canada because of the unlikelihood of achieving justice in Guatemala. However, unlike the plaintiffs in the Hudbay lawsuits, they will not be able to pursue the case in the Canadian courts. Last month, the judge dealt a disappointing blow to the men when she ruled that the case should be heard in Guatemala, not Canada.
Three organisations – Maritimes-Guatemala Breaking the Silence Network, MiningWatch Canada, and the Network in Solidarity with the Peoples of Guatemala (NISGUA)– issued a press statement in which they said the decision was “wilfully blind to the gravity of the case and the obstacles faced by the victims in bringing a transnational corporation to justice.”
“It is unclear what persuaded the judge to think that the victims could get a fair trial in Guatemala, where mining abuses are so prevalent and so poorly addressed. Guatemala’s impunity rate hovers above 90 percent for every sort of crime, and an international commission recently unearthed a series of massive corruption scandals that implicated high-level government officials, including a number of judges. Justice has never been served in Guatemala in terms of holding a foreign company to account and it is unclear why Justice Gerow thinks this case would be special,” said Ellen Moore, of the Network in Solidarity with the People of Guatemala.
Implications for the future
Although the ruling on the Tahoe Resources case was disappointing for the victims, their supporters, and human rights advocates, the 2013 HudBay ruling is a significant advancement.
The three lawsuits against HudBay Minerals can continue through the Canadian courts. This would have been unheard of in the past, and, although the case it still to proceed, the initial ruling has opened the door to similar cases. In another case, community members in Eritrea are suing Vancouver-based Nevsun Resources for alleged human rights abuses.
Resource extraction is big business for Canada. In some countries, especially in Latin America, Canadian mining companies have a virtual monopoly, and some of their operations and subsidiaries have been associated with attacks, rape and murder. Indeed, these lawsuits are a message to parent companies that they must do much more to ensure that their subsidiaries do not commit human rights violations.
The hope for victims and human rights advocates is that it will become increasing harder for Canadian companies to evade their corporate social responsibility on the grounds that they are not responsible for their subsidiaries actions, and that victims who unlikely to see justice in their home countries have another avenue in which to seek redress.