Breakthrough Regarding Legal Liability of Canadian Mining Corporations for Abuses Overseas

Published by MAC on 2013-03-05
Source: Statement, Globe & Mail

Breakthrough Regarding Legal Liability of Canadian Mining Corporations for Abuses Overseas

Mayans' lawsuit against HudBay over shootings and rapes at mine in Guatemala to proceed in Canadian courts

Klippensteins press release

25 February 2013

TORONTO, ONTARIO - In an important precedent-setting development for the accountability of Canadian mining companies for alleged overseas human rights abuses, victims of rape and murder at a Guatemalan mine are now able to sue a Canadian mining company in Canadian courts.

Guatemalan Mayan villagers who are suing Canadian mining company HudBay Minerals for the alleged gang-rapes of eleven women, the killing of community leader Adolfo Ich and the shooting and paralyzing of German Chub at HudBay's former mining project in Guatemala recently learned that HudBay has abruptly abandoned its legal argument that the lawsuit should not be heard in Canada, just before an Ontario court was set to determine the issue. As a result, and for the first time, a lawsuit against a Canadian mining company over alleged human rights abuses abroad will be heard in Canadian courts.

"This is a stunning victory for human rights, and paves the way for future lawsuits against Canadian mining companies" said Murray Klippenstein, lawyer for the Mayan plaintiffs. "Corporations be warned - this case clearly shows that Canadian companies can be sued in Canadian courts for alleged human rights atrocities committed at their foreign operations."

HudBay had filed extensive legal briefs arguing that the lawsuit should be heard in Guatemala, not Canada, despite overwhelming evidence indicating that Guatemala's justice system is dysfunctional, making it impossible for the victims to get justice there. According to the United Nations, Guatemala is one of "the world's most violent countries officially at peace". According to Human Rights Watch, 99.75% of violent crime in Guatemala goes unpunished due to corruption, and intimidation and attacks against judges and witnesses.

"HudBay fought Angelica, Rosa, and their co-plaintiffs tooth and nail on this issue for over a year, forcing survivors of rape to travel to Toronto to endure extensive cross-examination and forcing us to spend countless hours compiling stacks of evidence, expert reports, and witness testimony." said Murray Klippenstein. "Now the defendant's legal resistance on this key point has collapsed. Rosa, Margarita and their co-plaintiffs should be praised for the courage and determination they have shown through this difficult process."

While this development effectively removes the legal argument that the case cannot be heard in Canada, other hurdles facing the Mayan villagers in their quest for justice remain. HudBay continues to rely on antiquated corporate law concepts to argue in the Canadian court that its corporate head-office is not legally responsible for the harms caused by its wholly-owned and controlled subsidiary corporation. The lawsuits continue in Ontario courts.

For more information, see www.chocversushudbay.com.

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FOR FURTHER INFORMATION PLEASE CONTACT:

Klippensteins Barristers & Solicitors
Murray Klippenstein
(416) 598-0288 or (416) 937-8634

OR

Klippensteins Barristers & Solicitors
Cory Wanless
(647) 886-1914

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Mayan plaintiffs head to court for first hearing after Hudbay concedes that lawsuits regarding alleged rapes and murder at its former mining project in Guatemala can be heard in Ontario

Klippensteins press release

1 March 2013

Toronto, Ontario - On March 4 and 5, 2013 an Ontario court judge will hear arguments regarding the preliminary legal issue of whether a Canadian mining company's head office can be held legally accountable for human rights abuse committed at its subsidiary's on-the-ground operations.

This is the first court hearing in the cases after Hudbay abruptly dropped its argument that the lawsuits should be heard in Guatemala. Angelica Choc, the widow of murdered community leader Adolfo Ich Choc, has traveled from Guatemala to attend in person.

Hudbay continues to deny all responsibility for the rapes and shootings allegedly committed at its former mining project. In this hearing, Hudbay is arguing that its head office simply does not owe a "duty of care" to Mayan families and subsistence farming communities harmed by its mining operations.

"After repeatedly assuring the Canadian public that it respects human rights at its mine in Guatemala, Hudbay is now hiding behind its corporate structure to deny any possible responsibility" said Murray Klippenstein, lawyer for the Mayan Plaintiffs.

"If these rapes and shootings happened at Hudbay's mine in Flin Flon, Manitoba, I can't imagine that Hudbay would say it simply wasn't head office's problem. Canadians would never stand for it. And they shouldn't stand for it here."

Amnesty International Canada has been granted intervener status as a "friend of the court" and will be arguing that Canadian companies are under an obligation to respect human rights wherever they operate, particularly where the business is operating in a conflict-affected or high risk area, and where the Indigenous peoples' lives and livelihoods are at risk. See Amnesty International's public statement .

The hearing will be heard by the Superior Court of Justice in a courtroom in downtown Toronto on March 4 and 5, 2013. A decision on these issues will be released in the following weeks.

For more information: www.chocversushudbay.com.

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Klippensteins Barristers & Solicitors
Murray Klippenstein
(416) 598-0288 or (416) 937-8634

Cory Wanless
(647) 886-1914

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Amnesty International weighs in on HudBay case

Jeff Gray

The Globe and Mail

5 March 2013

Lawyers for Amnesty International Canada will be in a Toronto courtroom on Tuesday, arguing that Canadian mining companies should face justice here for alleged human-rights abuses by their subsidiaries in foreign countries.

"Canadian society has a strong interest in ensuring that Canadian corporations respect human rights, wherever they may operate and whatever ownership and other business structure they may put in place to advance their operations," Amnesty's submission to the court reads.

The human-rights group was granted intervenor status by a judge in order to weigh in on three lawsuits launched by a group of Guatemalans against Toronto-based HudBay Minerals Inc. in Ontario Superior Court over alleged human-rights abuses that date back to 2009.

The lawsuits demand $67-million from the company and allege that security personnel working for its Guatemalan subsidiary killed a local Mayan activist who opposed the company's Fenix nickel mine, located near El Estor, in eastern Guatemala. The lawsuits also allege that mine security was responsible for a shooting that paralyzed another man and for 11 gang rapes allegedly carried out during clashes between local protesters, mine security and police.

HudBay, which has since sold off the mine, denies the allegations, which it calls "without merit." It has filed motions, being heard by a judge this week, to have the case tossed out, arguing that well-established law holds that a parent company is normally not liable for the actions of its subsidiaries.

The company laid out its case in court on Monday. HudBay has also posted its version of the events in Guatemala on its website, denying that its subsidiary's security guards were involved and alleging that witnesses were pressured. The former head of the mine's security was reportedly arrested last year by Guatemalan authorities for the killing.

Angelica Choc, the widow of the dead activist, Adolfo Ich Charman, was in the courtroom as the hearing began on Monday, wearing traditional Mayan clothing and grey winter boots, listening as a translator relayed the proceedings to her.

Amnesty International argues that the case against HudBay should be tried here in Ontario, citing previous decisions by Canadian and British courts as well as evolving international legal principles they say hold that parent companies can be held liable for the actions of subsidiaries "where the possibility of injury or harm" is "foreseeable."

The hearing comes as the world's mining industry gathers this week in Toronto for the annual Prospectors & Developers Association of Canada convention, where corporate social responsibility has become a more prominent topic in recent years.

Allegations of human-rights abuses have also been made against other Canadian mining companies with operations in developing countries, but no other lawsuit of this kind has made it past preliminary stages in Canadian courts.

The mining industry lobbied to defeat a private member's bill in the House of Commons in 2010 that would have subjected Canadian mining companies and their human-rights standards abroad to federal government scrutiny, insisting instead on industry-led voluntary moves.

HudBay, in its court submissions, points to that bill's defeat, saying the plaintiffs are trying to use the courts to achieve something Parliament has declined to do.

The company's lawyers argue that allowing this kind of lawsuit to go ahead would risk "exposing any Canadian company with a foreign subsidiary to a myriad of claims, many of which will likely be meritless. This, in turn, could wreak havoc on an already overtaxed judicial system."