Going deeper underground [Guatemala mining conflicts] – by Lyndsie Bourgon (Corporate Knights Magazine – Fall, 2011)

Corporate Knights: The Magazine for Clean Capitalism is a quarterly Canadian magazine dedicated to the promotion of responsible business practices within Canada and the advancement of social and environmental sustainability worldwide. (wiki)

In Guatemala, victims of human rights abuses involving Canadian mining companies are left to pick up the pieces. At home in Canada, company lawyers skirt around questions of accountability, and justice ultimately falls through the cracks.

Gory Wanless sits at his desk in downtown Toronto, flipping through photo after photo of burning huts and maimed bodies. He points out where Adolfo Ich was hacked in the arm with a machete before being shot in the head, and where the home belonging to one of 11 women allegedly raped once stood in Lote Ocho, a small village in Guatemala.

Wanless, a lawyer at Klippensteins Barristers and Solicitors, is working on two cases that have implicated Canadian mining company HudBay Minerals Inc. and its subsidiary, HMI Nickel Inc., in serious human rights abuses in Guatemala. Both cases concern Guatemala’s CGN security forces, employed by HMI Nickel. In Choc v. HudBay, it’s alleged that security personnel shot and killed Adolfo Ich, a well-known Mayan Q’eqchi community organizer, in public and in broad daylight on September 27, 2009.

His wife, Angelica Choc, has brought a wrongful death case forward against HudBay. In the other lawsuit, Caal v. HudBay, it’s alleged that CGN employees, the Guatemalan army and police took part in the gang rape of 11 Mayan Q’eqchi women during the forceful eviction of their homes in Lote Ocho. The women are suing HudBay for negligence.

In a statement from HudBay, John Vincic, vice-president of investor relations and corporate communications, said, “In both cases we believe the allegations to be groundless, and we are defending ourselves vigorously against them. …We continue to cooperate fully with Guatemalan authorities to ensure all the facts are uncovered.”

Both cases raise the significant dilemma of who should take responsibility for human rights violations when business-as-usual goes wrong.

“The bullet that killed Adolfo was shot in Guatemala, but the decisions that ultimately led to Adolfo’s death were made in Canada,” Murray Klippenstein has said.

So, is HudBay, the parent company, liable for actions taken by subsidiaries that it hires? And if not, who should be held accountable, and how?

The problem is not unique to Guatemala and the allegations against HudBay. Trouble has been reported at Canadian mines across the world, including infractions in Mexico, Tanzania, India and Papua New Guinea. Companies including Anvil Mining, Barrick Gold and Banro Corporation have allegedly been involved in human rights abuses at mines abroad.

“This is a global problem with a Canadian flavour,” says Wanless. “As a result, it becomes Canada’s responsibility to do something about it.”

But Canada isn’t doing much. For reasons entrenched in our judicial and political infrastructure, most of these cases will never be heard in Canadian courts. It remains relatively simple for Canadian companies to press responsibility on other parties, or to get the case thrown out of Canadian courts. It’s par for the course for many mining companies to argue that human rights lawsuits should be heard in the country where the infraction took place.

In some cases, this makes sense. But experts including Grahame Russell at Rights Action and Audrey Macklin, a professor of human rights law at the University of Toronto say this most often ensures justice will never be served. In developing countries where mining takes place, judicial systems and the legal and political realms are often not at all equipped to handle these cases. For example, similar cases in Tanzania, the Congo and Sudan have been tossed out of court on minor technicalities.

However, a recent case alleging environmental damage against oil giant Chevron was heard in an Ecuadorian court, where a local judge found the company guilty of damages to forestry and community health, and ordered it to pay an $8-billion fine. Chevron responded with outrage, and is seeking an injunction to block enforcement.

“So even when they’re sued there, they’ll stop at nothing,” says Macklin. “Ultimately, it’s not really about claiming where it’s appropriate. It’s all about avoiding legal accountability, anywhere.”

Since 2009, four foreign-plaintiff cases have been brought against mining companies before Canadian courts, and two of those are the lawsuits against HudBay. One of the cases was dismissed from Ontario courts; the other, surrounding Anvil Mining’s actions in the Congo, is still under review in Québec courts. Wanless says the cases against HudBay could prove to be a precedent if they’re tried in the Canadian judicial system.

“Either this case is heard in Canada, or it is not heard at all,” he says.

For the rest of this aritcle, please go to the Corporate Knights Magazine website: http://www.corporateknights.ca/article/going-deeper-underground?page=3

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