MICLA

McGill Research Group Investigating
Canadian Mining in Latin America

Hudbay Court Case

Posted on by Amelia Berot-Burns

Canadian Court takes on Guatemalan Case

In a precedent setting case, Canadian mining company Hudbay Minerals Inc. is being brought before the Ontario Superior Court for negligence and criminal behaviour of their Guatemalan subsidiary CGN (Compania Guatemalteca de Niquel) at the Fenix project near El Estor. Filed in 2010, there are three lawsuits being processed which could change the face of Canadian mining; companies might now be held accountable for actions of subsidiaries abroad.

The First Case – Serial Gang Rape

The first case is Caal v Hudbay and it is in relation to events which occurred before Hudbay minerals actually gained ownership of the project in January 2007. However when Hudbay acquired the project from Skye Resources (also a Canadian company) they inherited both the assets and the liabilities. Land evictions, which were ordered by a Guatemalan prosecutor,  began to occur in January 2007; police reports claim that these evictions were a peaceful process, but the allegations of gang rape to 11 women beg to differ.

The context of the land evictions needs to be understood prior to dissecting the allegations of sexual assault. In Guatemala the population is still struggling to overcome the remnants of a bloody civil war which the UN has deemed to have included a genocide against the Mayan population. The Mayan people of Guatemala were severely displaced and are still attempting to recover their lost rights in a country where as recently as summer 2014 congress still doesn’t believe in the genocide’s occurrence. Skye Resources, CGN, and Hudbay all claim that the Q’eqchi Mayan people are illegal squatters on mining land, yet there is substantial proof to the contrary. In 2011 the Constitutional Court in Guatemala held that property rights belonging to the community of Agua Caliente were being used as part of the mine, and in 2006 the International Labour Organization held that the Guatemalan government broke international law by not providing prior and informed consent to the local indigenous communities before selling the land.

Given these facts it becomes dubious as to the morality of the “legal” evictions in a country that has systematically destroyed a particular population’s lives and homes. But that isn’t even what the case is about! The case is about the sexual violence which occurred in the process of these evictions. Hudbay’s defence for this case presents the argument that the women did not come forward right away and report the incidents to the police. Even in the relatively safe environment of Canada, roughly 90% of rape incidents go unreported. Even when the police aren’t the ones who perpetrated the act, and a genocide has not happened.

The Other Two Cases – Shooting and a Violent Murder

The other two cases being brought to the Ontario court relate to the events of September 27, 2009. On this date there was a protest held to bring attention to the injustice of the land evictions. The specific events of the protest and subsequence events are disputed, though at the end of the day nine local people were shot, and five CGN officials were injured (though only one required medical assistance). One of the men who was shot was a local man named Adolfo Ich. Adolfo was macheted, shot in the head, and passed away. Another man, German Chub, gave this testimony about his injuries:

“Suddenly, I heard gunshots, and I saw men in [mine company] uniforms about 50 metres away shooting their guns. I saw Mynor Padilla [chief of security for the mine] walk in my direction. When he was a few metres away, I watched Mr. Padilla draw his gun and aim it directly at me. I was very scared. I tried to run away. As I was turning, Mr. Padilla shot me. I heard a single gun shot and felt the bullet hit my left side . . . . When I regained consciousness, I was lying face down on the ground, coughing up blood. . . . I thought I was going to die. I have suffered devastating and permanent injuries because of the shooting. The bullet badly damaged my spinal cord, so I am now a paraplegic. . . . . The bullet also punctured and collapsed my left lung. My left lung no longer works.”

The youngest member of the community to be shot was just 15 years old.

In December 2009 an arrest warrant was put out for Mynor Padilla for the murder of Adolfo Ich and the attempted murder of German Chub, yet the authorities were not able to find Padilla for an arrest until September 2012, despite the fact that he remained on CGN payroll for almost a year after the warrant went out.

Hudbay has released a statement about the incidents leading up to the court case, and the Klippenstiens law firm has released one in reaction. This court case will take anywhere from two to five years to be resolved, but merely the fact that it is being processed is a big deal in terms of how Canadian mining companies will be held accountable in the future. Subsidiaries will be held to a higher standard globally which could make a large difference in many people’s lives.

My Opinion

This past May, I had the fortune to visit Lote Ocho and La Union, two of the communities surrounding the Fenix Project. I met with the women who are putting forward the rape case, I ate dinner with German Chub, and I was able to put these allegations in context. I saw with my own eyes the inability for the Guatemalan government to protect the interests of the Q’eqchi people against those of the mining giants, and the lust of community members to simply live a life with a semblance of normalcy absent of molestation. Hudbay has a lot of things to say about how the people in the region have no legal right to be on the land and that they are acting out in violence irrationally.

I was not there for the events in September of 2009, and though I trust what I was told by community members, there is no way for me to be certain. I do know though that even if the events were (as claimed by Hudbay) started by the community members and violent, that I would have been right along side them. These people survived a genocide, had their land illegally taken from them without consultation by a government that doesn’t recognize their rights as humans, and in the process of being thrown off their own land, had community members violently raped. Of course they protest the mine and continued evictions. They have every right to be angry.

These court cases aren’ t about anything aside from regaining rights that we in Canada expect. As all humans should expect. The right to not be assaulted. The right to not be murdered. The right to live on land that belongs to you.

Hudbay has sold the mine to a Russian company, and it is doubtful that expansion of the mine will end. We can hope though that the lesson has been learned. Q’eqchi people will fight for their rights. Even if they have to travel thousands of miles to Canada in order to do it.

Links to the Official Statements

Hudbay: http://www.hudbayminerals.com/English/Responsibility/CSR-Issues/The-facts- Hudbays-former-operations-in-Guatemala/default.aspx

Klippensteins: http://www.chocversushudbay.com/

Bibliography

“Choc v. HudBay Minerals Inc. & Caal v. HudBay Minerals Inc.” Choc v HudBay Minerals Inc Caal v HudBay Minerals Inc. Klippensteins, 2013. Web. 20 Jan. 2015. <http:// www.chocversushudbay.com/>.

Maldonado, Melinda. “Mining for the Truth in Guatemala.” Macleans. N.p., 08 July 2014. Web. 27 Jan. 2015. <http://www.macleans.ca/news/world/mining-for-the-truth-in-guatemala/>.

“Sexual Assault Statistics in Canada.” Sexual Assault and Rape Statistics, Canada. Statistics Canada, n.d. Web. 20 Jan. 2015. <http://www.sexassault.ca/statistics.htm>.

“The Facts: Hudbay’s Former Operations in Guatemala.” Hudbay Minerals. Hudbay, 2013. Web. 20 Jan. 2015. <http://www.hudbayminerals.com/English/Responsibility/CSR-Issues/The-facts- Hudbays-former-operations-in-Guatemala/default.aspx>.

“Truth Commission: Guatemala.” United States Institute of Peace. US Institute of Peace, n.d. Web. 20 Jan. 2015. <http://www.usip.org/publications/truth-commission-guatemala>.

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