Mining for the truth in Guatemala – by Melinda Maldonado (MACLEAN’S Magazine – July 8, 2014)

What lawsuits claiming rape and murder in a Guatemalan jungle mean for Canadian companies abroad

Rosa Elbira Coc Ich was warming tortillas when the men came. Their trucks rumbled down the dirt road toward her home, a shack she’d rebuilt in eastern Guatemala after a forced eviction 12 days earlier. It was Jan. 17, 2007, and as hundreds of police, military and private security workers returned, she heard their voices pierce the thick tropical brush as they called out for the leaders of the community.

Nine of the men pushed their way into her home.

“Where’s your husband?” a policeman asked, pressing a gun to her temple, according to documents filed as part of a lawsuit in an Ontario court. When she couldn’t answer, the officer said he was going to kill her. Then the men pushed her to the floor, ripped off her clothes and covered her mouth. Ich claims all nine of them raped her.

Nearby 10 other women from the Mayan Q’eqchi’ community say they experienced the same ordeal—gang rapes at the hands of police, military and private security from the Fenix nickel mine, 300 km northeast of Guatemala City—during evictions from the homes they’d built on the mine’s property.

These and other allegations, including the murder of a community leader and the shooting of another local man, are contained in three lawsuits filed in 2010 against Toronto-based Hudbay Minerals Inc., which owned the mine through a subsidiary from 2008 to 2011. None of the allegations have been proven in court; the company, which filed its defence last month, denies the allegations.

The simple fact the case has made it this far has already raised the stakes for Canadian companies operating abroad. Last year, when Superior Court of Ontario Justice Carole Brown ruled the three cases would be tried in Ontario, human rights activists hailed it as a landmark decision because it opened the door to further lawsuits against Canadian companies over their conduct—or that of their subsidiaries—outside the country. Just last month, another lawsuit was filed against another Canadian company related to a different Guatemalan mining project. In that case, seven plaintiffs filed suit in a Vancouver court against Tahoe Resources over alleged shootings at Tahoe’s Escobal Mine.

It’s a sign, lawyers say, that Canadian courts are growing more comfortable exercising their jurisdiction in matters involving Canadian corporate activities abroad. For an industry like mining, and for Canada, where three-quarters of all the world’s mining and exploration companies are headquartered, the implications could be particularly profound. A case like Hudbay “had never been done because there was no obvious mechanism for it,” says Ralph Cuervo-Lorens, a lawyer with Blaney McMurtry in Toronto, who is not involved with the lawsuit. “The law has fallen behind and is now playing catch-up.”

The lawsuit related to the alleged gang rapes dates back to long-standing land disputes that erupted in early 2007. At the time, Vancouver-based Skye Resources owned and operated the Fenix mine, which was run by its Guatemalan subsidiary, Compañía Guatemalteca de Níquel (CGN). When a group of farmers set up homes and planted crops on small parcels of land owned by the company, CGN ordered an initial round of evictions. When the community returned, CGN ordered a second eviction, which the villagers say turned violent. The other two cases before the courts in Ontario stem from shootings in 2009 that left activist Adolpho Ich dead and a man named German Chub paralyzed. A criminal investigation into those shootings is under way in Guatemala.

Hudbay acquired Skye, along with its legal liabilities, in 2008. It later sold CGN to Russia’s Solway Group in 2011, and, as part of the agreement for that deal, Hudbay retained responsibility for defending the lawsuits. The plaintiffs did not pursue a lawsuit in Guatemala, however, turning instead to Canada, which has a stronger legal system and may be more likely to award higher damages.

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