In a world where corporate and investor power is growing exponentially and legal accountability is utterly failing to keeping pace, a group of courageous Mayan Qeqchi from the rural Guatemalan village of El Estor and their advocates are making history in a Canadian court. In 2010, plaintiffs brought three lawsuits against Hudbay Minerals, a Canadian mining company, for egregious human rights violations in Guatemala committed by the company’s private security forces: the 2007 gang-rape of 11 women by security forces in the village of Lote 8, the 2009 murder of community leader Adolfo Ich and the 2009 shooting of villager German Chub, which left him paralyzed.
After three years of legal challenges, Judge Carole Brown finally ended Hudbay’s strenuous efforts to have the case dismissed, empowering the courageous people from El Estor to have their day in court. On July 22, 2013, Judge Brown’s groundbreaking ruling set two important precedents in Canadian law. First, she ruled that Canada has jurisdiction to hear a suit by foreign nationals against Hudbay Minerals for serious harms that occurred near Hudbay’s nickel operation in El Estor. Judge Brown further held that that Hudbay can be held legally accountable for the actions or omissions of Hudbay’s Guatemalan subsidiary, Guatemalan Nickel Company. This holding is critical in an era of scaffolded corporate ownership that obscures control and responsibility, making legal accountability difficult to enforce. This long-overdue decision is a great legal victory for the plaintiffs, and for principles of fundamental fairness.
Like those in many other countries, the Canadian legal system has not been a hospitable forum to victims of corporate and investor human rights abuses, including those associated with Canada’s status as the leviathan of the global mining industry. Advocates have long argued for law reform that would allow victims to hold corporations and investors to account for their extra-territorial behavior. This is particularly important in the extractive industries, where resource-rich countries often are controlled by regimes that lack the incentive, integrity or capacity to uphold legal norms. Despite these well-known risks, global corporations and investors are more than happy to partner with such regimes, turning a blind eye to corruption, repression and the lack of rule of law.
The bare minimum legal standards that all Canadians would expect and demand for themselves should be available to those harmed by Canadian companies enriched at their expense. Yet powerful political and economic interests in Canada, including the mining and investment industries, continue to resist legal accountability, leaving an unjust double standard firmly in place.This fundamental lack of civil liability laws is not exclusive to Canada. A glaring lack of civil laws in the United States and many European countries, where a majority of global companies and investors base their corporate operations, allow companies and investors to dodge accountability when they cause or contribute to – and indeed profit from – harms and crimes.
While this legal challenge may seem daunting in Canada, and it has been an unlikely and uphill battle, it is even more difficult given the context of corruption, impunity and repression that characterize Guatemala. People who seek justice for human rights violations, whether caused by Guatemalan or international actors, suffer increased risk of repression and even death. The threats and pressures are not only illegal, including obstruction of justice and tampering with witnesses and plaintiffs, but they present very real risks of violence to the people involved. Since they are occurring in Guatemala, nothing will be done about them.
Predictably, the recent victories have been accompanied by intensified efforts to divide the community of Lote 8, by driving wedges between the 11 victims themselves, between the women and their husbands and between community members. For impoverished communities, financial enticements can be tempting. Large amounts of money and uncontested land titles (to their own land) are being “offered” to the litigants to drop the cases in Canada. Dangling these deceptive offers in front of very poor and vulnerable people almost always engenders bitter divisions that persist long after the conflict has been resolved, further preventing communities from mending the social fabric already frayed by the harms they have suffered.
Steeling themselves from the unrelenting threats, the plaintiffs try to resume their lives with some semblance of normalcy despite their ongoing anguish and the constant reminder of the abandoned nickel mine that dwarfs their small houses and blights their rural community vista.
German Chub was a vibrant, athletic man of 19 when he was shot. He was newly married and the father of a young daughter. In a community hardly equipped to provide for even its healthy citizens, Chub tries to make the best of a life that deprives him the use of his legs and one lung. He navigates rutted roads in his wheelchair, caring for his young child and fretting about the medical implications of the bullet still lodged very close to his spinal column.
Angelica Choc soldiers on, speaking out about her story and seeking justice for the murder of her husband and for a better future for her four children, and the other children of her community. The women of Lote 8 try to reconcile the legacy of their traumatic and violent sexual assault with the stigma that continues to haunt them for speaking out and demanding justice.
But if Hudbay thought a scrappy group of indigenous victims who faced poverty, cultural and language barriers and persistent threats were no match for their deep pockets and sophisticated legal maneuvering, it is now aware of the courage and strength of the plaintiffs. After making the long and arduous trip from El Estor to the well-appointed Toronto high-rise offices of the defense counsel, each of the victims endured withering questioning with their integrity and dignity intact. The vibrant colors of their traditional clothing presented a stark contrast to the drab palette of law office attire and décor.
A broader set of circumstances, beyond the bravery and determination of the victims, has enabled this case to progress. Part is attributable to the tireless support of international NGOs, led by Rights Action, that are supporting and working with the Maya Qeqchi victims of these Canadian mining company abuses. Furthermore, the plaintiffs were fortunate to find the small law firm of Klippensteins Barristers and Solicitors to take on this case at no cost to them. Although they are clearly out-resourced by Hudbay’s corporate law firm of Fasken Martineau, they are not outmatched in their commitment and legal skill.When crimes are global by definition, it will necessarily take a global, north-south alliance of committed people and organizations to publicly expose and denounce the harms and to accompany victims on the long and perilous struggle for justice.
The quest for justice from Hudbay is no more or less important than many other struggles for truth, justice and fairness against Canadian and other transnational companies. This victory represents a small but important erosion of impunity for transnational corporations and investors.The sobering reality is that three years after these cases were filed, all that the victims have won is the right to have their day in court – there has been no justice and no remedy for the devastating losses that the victims have suffered.It may be years before there is any final ruling, which will, of course, be subject to appeal. While congratulations are in order, there is no rest for the weary; the work and struggle continue. But this time, the legal system may finally be on the side of the righteous.