Commentary: Guatemalans’ lawsuit against Hudbay in Canada – by Christina Hall and Kevin MacNeill(Northern Miner – August 27, 2013)

The Northern Miner, first published in 1915, during the Cobalt Silver Rush, is considered Canada’s leading authority on the mining industry. 

On July 22, 2013, the Ontario Superior Court of Justice ruled in Choc v. Hudbay Minerals Inc. that three separate lawsuits brought by indigenous Guatemalans against Canadian mining company Hudbay Minerals and other defendants, can go forward in Canada.

The plaintiffs’ lawsuits allege that between 2007 and 2009, security personnel working for Hudbay’s subsidiaries — who were allegedly under the control and supervision of Hudbay, the parent company — committed various human rights abuses. These include the alleged gang rape of 11 Guatemalan women, the beating and shooting death of a respected Guatemalan indigenous leader who had been an outspoken critic of mining practices, and the shooting of another Guatemalan man in an unprovoked attack which left the man paralyzed.

All of these abuses are alleged to have been committed by security personnel at Hudbay’s Fenix mining project, a proposed open-pit nickel mining operation located on Lake Izabal in northeastern Guatemala. According to the pleadings in the lawsuit, Hudbay and the other the defendants asserted that they had a valid legal right to this land, while indigenous communities claimed that the Mayan Q’eqchi’ were the rightful owners of the lands, which they considered to be their ancestral homeland.

Following the filing of the lawsuits, the defendants moved to have them dismissed on the basis that they had no reasonable prospect of success. A central issue on the motions was whether the lawsuits were doomed to fail because they were predicated on Hudbay’s owing the plaintiffs a “duty of care” in negligence law, which the defendants argued has no support in Canadian law.

The plaintiffs responded by arguing that that the facts they had pleaded met the requirements for establishing a novel duty of care in law in accordance with the “Anns test” — a legal test established by the British House of Lords in 1978 and adopted by the Supreme Court of Canada in 1984.

Justice Brown of the Ontario Superior Court of Justice considered the parties’ arguments and determined that the plaintiffs had set out sufficient facts in their pleadings which, if proven at trial, could give rise to a novel duty of care. This, in turn, would require a determination by the court as to whether Hudbay had breached that duty of care and whether it owed compensation to the plaintiffs. Justice Brown therefore concluded that it was not plain and obvious that the plaintiffs’ claims had no reasonable prospect of success and ordered that the lawsuits go forward in the usual course.

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