On July 22, Ontario Superior Court Justice Carole Brown ruled in a landmark decision that lawsuits against the Canadian mining company Hudbay Minerals regarding shootings, murder, and rapes at its former mine in El Estor, Guatemala can proceed to trial in Canada.
The plaintiffs in this case are indigenous Mayan Q’eqchi’—who allege that security personnel working for Hudbay’s wholly controlled subsidiaries (HMI Nickel Inc. and Compaňia Guatemalteca De Niquel) committed human rights abuses at their Fenix mining project. The cases come from incidents occurring in 2007 and 2009. They consist of the following: 11 Mayan women charging that they were gang raped by security personnel during the forced eviction of their village, that security forces murdered indigenous leader and anti-mining activist Adolfo Ich, and that security personnel shot and paralyzed another man.
The incidents occurred over a struggle for the right to the land on which the Fenix site—a proposed open pit nickel mine—was located. The court ruling states that “The factual context from which these actions arise, as set forth in the pleadings, is as follows. Several indigenous Mayan Q’eqchi’ farming communities were located on a portion of the Fenix property. At all material times, the defendants maintained that they had a valid legal right to this land, while the Mayan communities claimed that the Mayan Q’eqchi’ were the rightful owners of the lands, which they considered to be their ancestral homeland. The plaintiffs allege in their pleadings that any claim to ownership by the defendants is illegitimate, as rights to those lands were first granted to the defendants by a dictatorial military government during the Guatemalan Civil War, and during the time when the Mayan Q’eqchi’ were being massacred and driven off their lands.” In addition to the human rights abuses cited in the lawsuits, security forces were also involved in the burning of numerous homes and armed intimidation in order to clear residents from the mining site.
The ruling strikes an important first blow against the unjust legal protections multinational corporations have worked so hard to set up in the global economy. Hudbay Minerals is arguing that they cannot be held legally responsible for the deadly and destructive actions of their subsidiaries in Guatemala because on paper they are separate legal entities—although that's not the case when it comes to making money.
Raul Burbano, the program director for Common Frontiers, states that “The ruling is an important step forward legally in the battle to hold Canadian based mining companies and their subsidiaries accountable for atrocities committed abroad. However, it should also serve as a stark reminder of the need for legislation in Canada to hold this industry accountable, and the failure of corporate self-regulation disguised as corporate social responsibility.”
The fact that this landmark decision happened in a Toronto court is all the more surprising and important. When it comes to multinational mining companies, Toronto is the belly of the beast—it is the global home base of mining companies, with an estimated 75% of the world’s mining companies headquartered in Canada. According to Alan Deneault, the author of Imperial Canada Inc: Legal Haven of Choice for the World’s Mining Industries, the reason for this high concentration is due to the fact that “Canada stands out as a judicial and financial haven that shelters its mining industry from the political or legal consequences of its extraterritorial activities by providing a lax domestic regulatory structure that it seeks to export through international agencies, diplomatic channels and ‘economic development projects'.”
A 2009 report by the Prospectors and Developers Association of Canada, Corporate Social Responsibility: Movements and Footprints of Canadian Mining and Exploration Firms in the Developing World, concluded that “...Canadian companies have been the most significant group involved in unfortunate incidents in the developing world. Canadian companies have played a much more major role than their peers from Australia, the United Kingdom and the United States. Canadian companies are more likely to be engaged in community conflict, environmental and unethical behaviour...”
Murray Klippenstein, lawyer for the Mayan vicitms, remarked that “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. 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.”
While the outcomes of the current lawsuits against Hudbay Minerals are far from clear—and there is a long way to go—it is a necessary step in the right direction. The victory against Hudbay Minerals sets an important precedent whereby Canadian mining companies can be held legally accountable in the future for committing human rights abuses and environmental degradation which occur at their foreign operations. For far too long the industry has acted with near impunity – it is about time that companies become accountable for the destruction and death that they market as much needed economic development across the Global South. Whether or not the ruling will result in any change on how mining companies behave in the near future will be telling.
Kevin Edmonds is a NACLA blogger focusing on the Caribbean. For more from his blog, "The Other Side of Paradise," visit nacla.org/blog/other-side-paradise. Edmonds is a former NACLA research associate and a current PhD student at the University of Toronto, where he is studying the impact of neoliberalism on the St. Lucian banana trade. Follow him on twitter @kevin_edmonds.
