Founding principal of Klippensteins, Barristers & Solicitors
For 25 years, Murray Klippenstein has hopped on a bike most mornings and pedalled through all kinds of weather to arrive at his law office in a nondescript building on a downtown Toronto side street.
No one paid much attention to him when he defended a homeowner’s right to let her front yard grow wild, but plenty of people do now after he won a key ruling allowing him to proceed with litigation that accuses one of Canada’s oldest mining companies, Hudbay Minerals Inc., of direct negligence.
The clients include 12 women and one man in Guatemala who suffered a series of brutalities — from gang rape to murder to a shooting that left one permanently paralyzed — while protesting a nickel mine a decade ago in their home country.
Their lawsuit claims Hudbay, as parent company of the subsidiary that operated the mine, was directly negligent in not preventing the violence, and seeks compensation as well as accountability. “This is not about the money,” Klippenstein says. “It’s about honesty and human-to-human blame.”
At the heart of the lawsuit is the question of whether Canadian mining companies are responsible for the actions of their subsidiaries operating around the world. Already, other lawyers have filed suits that rely on Klippenstein’s novel theory to bring cases against two other mining companies, Tahoe Resources Inc. and Nevsun Resources Ltd. The lawsuits, as one corporate law firm put it in a bulletin to clients, “create an imperative for Canadian companies operating
internationally to consider their human rights risks.”
In recent months, Klippenstein has deposed a top Hudbay executive, and obtained roughly 19,000 internal documents from the company, ranging from emails to memos. As he and his associate, Cory Wanless, sort through that haystack, they’re gearing up for a fight to show Hudbay executives not only knew about the violence, but were “deeply involved” in the events and failed to take reasonable steps to prevent them.
Hudbay, which is disputing some of the facts and fighting the case, has long since sold the mine, but Klippenstein says it retains liability. “As Canadians, we like to think we have a nice image abroad,” he says. “But you go to Guatemala, it’s not a good idea to wear a Canadian flag on your backpack.”
At the same time, Klippenstein could rewrite Canadian history after filing a lawsuit based on the once long-lost diary of Daniel MacMartin, Ontario’s Treaty Commissioner in 1905, which was discovered in the 1990s by a researcher at Queen’s University. MacMartin documents what he heard and saw while canoeing around the north of the province and negotiating Treaty No. 9. Better known as the James Bay Treaty, it opened land in the northern part of Ontario, including lands inhabited or used by First Nations, to white settlement and resource development.
After hearing about the diary, Klippenstein obtained a photocopied version for himself. “I was reading this [diary] and I almost fell out of my chair,” he says. He says MacMartin’s diary reveals that First Nations’ people were misled about what the treaty said and how their rights to use the land would change — and they signed a deal they thought preserved their ancestral rights to the land based on oral promises.
As that lawsuit winds its way through the court system, a process that could take years, if not decades, Klippenstein is representing the Mushkegowuk Council — a regional Cree government body — in negotiations with provincial authorities to change the revenue sharing from resource projects on the lands around James Bay that are governed by the treaty.
“You could say they were cheated, but there’s an upside to it,” he says. “Here we are 100 years later, and we can say it’s not about charity or pity, it’s not about being generous, it’s about sticking with the deal that was made.”
For the original source of this article: https://business.financialpost.com/feature/mavericks-and-movers-five-innovators-who-have-challenged-the-status-quo-with-word-and-deeds