Guatemalan Environmentalists Win Legal Case In Canadian courtPublished by MAC on 2017-01-29
Source: Statements, Telesur (2017-01-27)
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In milestone, BC Court clears Guatemalans’ lawsuit against Vancouver mining company to go to trial
26 January 2017
Vancouver - The British Columbia Court of Appeal today rejected efforts by Tahoe Resources Inc. to dismiss a lawsuit brought by seven Guatemalan men for injuries they suffered during the violent suppression of a peaceful protest at Tahoe’s mine in Guatemala.
The ruling represents the first time that a Canadian appellate court has permitted a lawsuit to advance against a Canadian company for alleged human rights violations committed abroad.
In the judgment, the Court of Appeal overturned a lower court decision that had found Guatemala was the more appropriate venue for the case. The Court of Appeal ruled that several factors, including evidence of systemic corruption in the Guatemalan judiciary, pointed away from Guatemala as a preferable forum, thereby keeping the case in British Columbia. The court concluded that “there is some measurable risk that the appellants will encounter difficulty in receiving a fair trial against a powerful international company whose mining interests in Guatemala align with the political interests of the Guatemalan state.”
The plaintiffs are supported in Canada by a legal team comprised of Vancouver law firm Camp Fiorante Matthews Mogerman (CFM) and the Canadian Centre for International Justice (CCIJ). In Guatemala, they are represented by lawyers at the Guatemalan Centre for Legal, Environmental and Social Action (CALAS).
Until recently, the legal doctrine of forum non conveniens had been an obstacle for foreign victims of corporate abuse seeking redress in Canadian courts. The doctrine gives courts discretion to dismiss a case in favour of a foreign jurisdiction in certain circumstances and had previously shielded Canadian companies, particularly in the extractive sector, from judicial scrutiny of their overseas operations.
Last October, Eritrean plaintiffs overcame a forum non conveniens challenge in their slave labour lawsuit against Vancouver-based Nevsun Resources Ltd. That lower court ruling is now on appeal and will also be heard by the BC Court of Appeal, in September 2017.
With the reinstatement of the lawsuit against Tahoe, there are now multiple cases advancing in Canadian jurisdictions against companies accused of responsibility for severe human rights abuses. Three Ontario lawsuits alleging that Hudbay Minerals is liable for killing and gang rapes in Guatemala are also moving toward trial.
“Today’s landmark ruling shows that Canadian courts are open to victims of abuses linked to Canadian companies operating abroad,” said Matt Eisenbrandt, Legal Director of CCIJ. “Despite a lack of regulation by the Canadian government, we hope these recent developments in the courts signal an end to corporate impunity for human rights violations,” Eisenbrandt said.
In their submissions to the Court of Appeal, the plaintiffs had emphasized that their claims against Tahoe were centered in Canada where Tahoe is incorporated and where most of Tahoe’s Board of Directors, which the plaintiffs say has ultimate oversight for security and community relations in Guatemala, resided at the time of the shooting. The plaintiffs also submitted extensive evidence showing systemic problems with Guatemala’s judicial system.
“We are very satisfied that the court understood the remote chance of the plaintiffs receiving a fair trial in Guatemala due to a lack of judicial independence and widespread impunity,” said Rafael Maldonado, Legal Director of CALAS. “This is especially relevant given recent corruption scandals at all levels of the Guatemalan government, and particularly at the Supreme Court of Justice.”
In the Vancouver lawsuit, Tahoe faces claims of battery and negligence for the actions of its Guatemala Security Manager, Alberto Rotondo, and other security personnel in the April 2013 shooting, something the plaintiffs allege was a planned show of force to intimidate the local community and eliminate opposition to the Escobal mine.
Rotondo was criminally charged in Guatemala, based in part on wiretap evidence from his phone. However, less than two months before he was scheduled to go on trial, Rotondo escaped from house arrest and fled to Peru, his home country. The Guatemalan case, in which some of the victims were participating as civil parties, was suspended.
Rotondo’s escape from Guatemala was an important factor in today’s judgment from the BC Court of Appeal.
“The court agreed with our submissions that there are no longer any active legal proceedings in Guatemala, which pointed to British Columbia as the appropriate forum for the case” said Joe Fiorante, Q.C., a partner with CFM. “We are pleased with the result and look forward to litigating this case in British Columbia.”
Responding to the decision, plaintiff Luis Fernando García Monroy, who suffered multiple gunshot wounds, including one to his face, said, “We are very happy to have the opportunity to pursue justice in Canada, something we cannot do successfully in a Guatemalan court. In the face of corruption and repression by Guatemala’s government, including a campaign to bring false criminal charges against peaceful protesters in our community, there is no guarantee of accountability here.”
For more information:
CCIJ on Twitter: @CCIJ_CCJI
CCIJ’s website - http://www.ccij.ca/cases/tahoe/
CALAS’s website - http://www.calas.org.gt/
Joe Fiorante, CFM, +1-604-689-7555, JFiorante@cfmlawyers.ca (English only)
Reidar Mogerman, CFM, +1-604-689-7555, RMogerman@cfmlawyers.ca (English only)
Rafael Maldonado, CALAS, +502-5307-4250, firstname.lastname@example.org (Spanish only)
Matt Eisenbrandt, CCIJ, +1-604-569-1778, email@example.com (English, Spanish)
Amanda Ghahremani, CCIJ, +1-514-915-0920, firstname.lastname@example.org (English, French, Spanish)
Guatemalan Environmentalists Win Case Against Canadian Mining Firm
26 January 2016
The area near the El Escobal silver mine in southeast Guatemala has been a scene of conflict since Tahoe Resources was granted a mining license.
Seven Guatemalan men won an appeal Thursday against Tahoe Resources Inc in a Canadian court, which ruled that their lawsuit accused the miner's private security guards to have shot them can proceed in British Columbia.
“There is some measurable risk that the appellants will encounter difficulty in receiving a fair trial against a powerful international company whose mining interests in Guatemala align with the political interests of the Guatemalan state," ruled the court.
In June 2014, the seven Guatemalan men accused the company of being responsible for a violent attack in April 2013 when private security opened fire on peaceful protesters outside the controversial Escobal silver mine in southeastern Guatemala. Video footage revealed the demonstrators were shot at close range while fleeing.
The win comes after the Supreme Court in British Columbia refused to hear the case in November 2015, saying that it fell under Guatemalan jurisdiction.
“Today’s landmark ruling shows that Canadian courts are open to victims of abuses linked to Canadian companies operating abroad,” said Matt Eisenbrandt, Legal Director of the Canadian Centre for International Justice. “Despite a lack of regulation by the Canadian government, we hope these recent developments in the courts signal an end to corporate impunity for human rights violations,” Eisenbrandt said.
“The court agreed with our submissions that there are no longer any active legal proceedings in Guatemala, which pointed to British Columbia as the appropriate forum for the case,” said Joe Fiorante, Q.C., a partner with Vancouver law firm Camp Fiorante Matthews Mogerman (CFM).
Guatemala is one of the deadliest countries in the world for environmental activists and the Central American nation is still plagued by impunity and corruption. After filing a case in Guatemala, the lead suspect in the criminal case and former head of security for the mining firm escaped police custody and fled the country just weeks after the BC Supreme Court decision was released in November 2015.
“Under international law, companies have a responsibility to protect human rights – no matter where they occur,” says Kelsey Alford-Jones, Senior Campaigner at the Center for International Environmental Law (CIEL). “To the extent that human rights abuses occur, business enterprises have an affirmative duty to avoid complicity in those abuses. Canadian and U.S. courts must hold their companies accountable for violations, full stop.”
The area near the El Escobal silver mine has been a scene of conflict since the mine was established in 2007. Opponents of the mine, mainly Xinca people, have held numerous peaceful protests that have been met with violence from mine guards and police.
Residents near El Escobal depend on agriculture and their lands have been affected by the mining activity. In 2013, Tahoe Resources was granted a 25-year mining license, and villagers conducted a referendum in which they expressed their opposition.
“While Tahoe claims strong community support in Guatemala, by its own admission the local opposition is so intense that the mine cannot be connected to the main power grid,” said Becky Kaump from the Network in Solidarity with the People of Guatemala (NISGUA). “This is only one example of clear community resistance to the mine, and the April 2013 violence is only one example of the backlash organizers have faced for their opposition.”
Recently, Guatemalan environmentalist Laura Leonor Vasquez Pineda, who had spoken out against the mining in El Escobal by Tahoe Resources, was shot dead in the southeastern department of Jalapa.
Police said she was shot in the head by a group of unknown men who raided her home during the night. She was a member of the Committee for the Defense of Life and Peace in San Rafael Las Flores near the El Escobal silver mine owned by Canadian company Tahoe Resources.
International organizations celebrate precedent-setting step toward justice in civil suit against Tahoe Resources in Canada for violence in Guatemala
27 January 2017
Guatemala/ Montreal/Ottawa/Reno/Tatamagouche/Toronto/Washington, DC - Canadian and US civil society organizations wholeheartedly welcome a British Columbia Court of Appeals’ decision that Vancouver is the preferred forum for a civil suit to be heard against Tahoe Resources concerning violence against peaceful opposition to its silver mine in Guatemala.
Announced yesterday, the decision opens the door for seven Guatemalan men, shot and injured in 2013 while peacefully protesting the Canadian company’s Escobal silver project, to proceed toward trial in their suit for negligence and battery. Tahoe Resources is registered in B.C. with offices in Reno. At the time of the violent attack, Tahoe Resources’ only project was the Escobal silver mine in southeastern Guatemala, which began commercial production in early 2014.
“This mining project has been a disaster from the get-go and it is high time that the company be held to account,” remarked Ellen Moore for the Progressive Leadership Alliance of Nevada (PLAN). “Since well before the mine went into operation, there has been broad community opposition to which the company developed a militarized security strategy to suppress dissent. A state of fear was instilled in the communities that Tahoe capitalized on in order to push the project forward."
“Nearly one hundred community members and supporters have been forced to endure unfounded charges and even months of jail time, only to then be absolved. The shooting by Tahoe Resources’ private security against the peaceful protest in April 2013 demonstrated that the company would stop at nothing to ensure this project went ahead. Some real justice is urgently needed in this case,” added Becky Kaump for the Network in Solidarity with the People of Guatemala (NISGUA).
Just weeks before the shooting, the Minister of Energy and Mines approved the exploitation license for the project without consideration for over 200 individual complaints filed by local residents over concerns that the mine would negatively affect their health and living environment. The minister, who resigned in 2015, is implicated in a corruption scandal in Guatemala and is currently at large in the United States. Meanwhile, evidence of cracked homes, water shortages and serious environmental contamination around the mine have been documented.
“Impunity is the norm in Guatemala. We applaud this decision that recognizes Canada as the appropriate place to address these abuses,” added Kelsey Alford-Jones of the Center for International Environmental Law.
“We have spent years accompanying mining-affected communities in Guatemala and are pleased with the court’s serious consideration of the precarious situation that is the country’s judicial system, especially in cases where powerful economic and political interests are at play,” stated Lisa Rankin for the Maritimes-Guatemala Breaking the Silence Network. “Based on what we have observed, we concur with the appeals court that if this case is not heard in Canada, there may be no chance for justice for the victims.”
This marks the first time a Canadian court of appeals has admitted a case concerning the overseas operations of a Canadian mining corporation on the basis that Canada is the best place for the case to be heard, based on a legal concept known as ‘forum non conveniens’. The case against Tahoe Resources joins several others moving through Canadian courts, including three against HudBay Minerals for its negligence in violence in eastern Guatemala and another against Nevsun, also for negligence regarding the use of slave labour in Eritrea.
“This decision is groundbreaking. It is vital that Canadian courts become open for justice given the prevalence of violent conflict and harm in connection with Canadian mining operations in Guatemala, Latin America and around the world,” said Jackie McVicar for United for Mining Justice.
“The Guatemalan plaintiffs should be congratulated for their courage to press for justice against a company that has been relentless against the peaceful opposition to the Escobal project. We want to express our continuing support for this long-term, uphill battle, and our pleasure that it is moving forward,” noted Caren Weisbart for the Mining Injustice Solidarity Network.
“Good news like this is very much needed when repression and targeted violence against communities fighting for their land and wellbeing has become the norm. This reinforces our commitment to keep fighting for respect for community self-determination and greater legal protections for those affected by Canada’s globalized mining industry,” concluded Jen Moore for MiningWatch Canada.
See the statement from the lawyers and plaintiffs on the case here.
Lisa Rankin (Guatemala) - Maritimes-Guatemala Breaking the Silence Network, +011 (502) 4906-5626, btscoordinator(at)gmail.com
Jen Moore (Ottawa) - MiningWatch Canada, 613-569-3439, jen(at)miningwatch.ca
Caren Weisbart (Toronto) - Mining Injustice Solidarity Network, caren.weisbart(at)gmail.com
Becky Kaump (Guatemala) - NISGUA, +011 (502) 5575-2058, becky(at)nisgua.org
Ellen Moore (Reno) - PLAN Nevada, 775-348-7557, emoore(at)planevada.org
Jackie McVicar (Montreal) - United for Mining Justice, 902-324-2584, unitedforminingjustice(at)gmail.com
Kelsey Alford-Jones (Washington, DC) – Center for International Environmental Law,202-742-5854, kalford(at)ciel.org
BC Court of Appeal Ruling: A Breakthrough for Corporate Accountability for Human Rights
Amnesty International Canada statement
28 January 2016
In a precedent-setting ruling for human rights defenders, British Columbia’s Court of Appeal has ruled that a lawsuit against Tahoe Resources for the violent repression of a peaceful protest in Guatemala in 2013 may advance in Canada. The decision is a victory for seven Guatemalan men who suffered multiple gunshot wounds when they were allegedly shot by company security forces while peacefully protesting outside the entrance to the Escobal silver mine.
“The ruling sends a clear message that Canadian companies operating abroad can and should be held accountable for allegations of human rights abuses in their operations overseas,” said Tara Scurr, Amnesty International Canada’s Business and Human Rights Campaigner. “For the first time in BC, a parent company will be called to answer for claims that human rights abuses were committed at one of its overseas operations. This is great news for corporate accountability in Canada”.
Initially, a lower court judge agreed with Tahoe Resources that the legal doctrine of forum non conveniens meant that the plaintiffs must pursue their case in Guatemala, a country with well-documented shortcomings in ensuring access to justice for victims of human rights violations. . However, the Appellate Court concluded that the lower court judge had made a number of errors, including a failure to consider the measurable risk that the plaintiffs would have difficulty seeking justice against a powerful company “whose mining interests in Guatemala align with the political interests of the Guatemalan state”.
Amnesty International, which was an intervener in the appeal, had argued that the lower court judge’s reasoning in deciding not to exercise jurisdiction failed to take into account the power imbalance in transnational lawsuits involving allegations of human rights abuses by powerful corporations. Here that imbalance pitted individuals who were mainly low income farmers against one of the most powerful mining companies in the country.
The court accepted new evidence that Tahoe’s former Head of Security, Alberto Rotondo, who was facing criminal charges in Guatemala for his order to fire on the protestors, had escaped police custody shortly before he was due to stand trial. Rotondo fled to his native Peru where he was a fugitive until being captured by police. He is currently facing extradition to Guatemala, a process that could take years. Rotondo’s escape was an important factor in the court’s ruling.
The appeal judges also noted that the lower court judge did not pay enough attention to the “highly politicized environment surrounding the government’s permitting of a large foreign owned mining operation in rural Guatemala” when considering evidence concerning endemic corruption. Importantly for other cases, the Court rejected the judge’s test for assessing the risk of unfairness in a foreign jurisdiction. The lower court judge had applied a test of whether the foreign court was “capable of providing justice”. The BC Court of Appeal instead adopted a more stringent test of “whether there is a real risk of an unfair process in the foreign court”.
“For too long and in too many countries, the Canadian resource industry has been associated with serious human rights abuses, while individuals and communities who suffer the abuses have been denied avenues to pursue justice and accountability,” says Alex Neve, Secretary General of Amnesty International Canada. “The Appeal Court’s decision means that these seven men are at long last one step closer to justice for the harms they have endured. However, leadership is urgently needed from the federal government to provide a pathway to justice and accountability for other individuals and communities around the world who experience human rights abuses due to the operations of Canadian extractives companies. It is time to appoint an Ombudsperson for human rights complaints related to this enormous Canadian industry.”
In its 2017 Human Rights Agenda for Canada, Amnesty International recommended the federal government establish a mandatory extractive-sector Ombudsperson in Canada with the power to independently investigate complaints and make recommendations to both companies and the Government of Canada.
In its 2015 review of Canada’s human rights record the UN Human Rights Committee similarly called on Canada to “establish an independent mechanism with powers to investigate human rights abuses by corporations abroad; and develop a legal framework that affords legal remedies to people who have been victims of activities of such corporations operating abroad.” Similar recommendations were made during 2016 reviews carried out by the UN’s Committee on Economic, Social and Cultural Rights and Committee on the Elimination of Discrimination against Women.
The government has yet to act on a Liberal Party pledge during the 2015 federal election to establish an Ombudsperson.
For more information, please contact Beth Berton-Hunter, Amnesty International Media Relations at email@example.com