PBI-Canada follows the legal proceedings against HudBay and Nevsun in Canadian courts for human rights violations

On October 1, the Toronto Star reported on the court challenge by eleven Indigenous Maya Q’eqchi’ women against the Toronto-based mining company HudBay Minerals Inc. for violence committed against them by company security and military personnel.

A Canadian judge has now ruled that documents “including ones detailing the company’s close relationships with the Guatemalan police and army” can be heard.

The article notes: “Numerous emails and spreadsheets show that Skye and CGN [the Guatemalan subsidiary of HudBay] funnelled close to $140,000 (U.S.) to the Guatemalan police and army by sending the money to three well-connected middlemen ‘in cash or direct transfers to personal bank accounts’…”

It additionally highlights: “One document records that ‘there are rumours’ of $157,895 being paid to the armed forces ‘for their work in the land evictions’ as The Intercept reported.”

The article also explains: “The 11 women argue that the companies paid and worked with the police and army even though the public security forces were notoriously corrupt and violated human rights.”

This historic case stems from incidents that occurred on January 17, 2007. Six years later, a first major step in this case being heard in Canada happened.

In February 2013, Canadian Lawyer magazine reported: “Just before an Ontario court was set to determine the issue, HudBay abandoned its legal argument that the lawsuit should not be heard in Canada.”

“The defence [for HudBay] had filed extensive legal briefs arguing that the lawsuit should be heard in Guatemala, not Canada, despite evidence indicating that Guatemala’s justice system is dysfunctional, making it impossible for the victims to get justice there.”

The company then argued “that its corporate head-office in Canada is not legally responsible for the abuse committed by its wholly-owned and controlled overseas subsidiary corporation.”

As noted in the Toronto Star article yesterday, the case continues before the courts.

Nevsun Resources Ltd.

In January 2019, the Supreme Court of Canada heard arguments in a case regarding Vancouver-based mining company Nevsun Resources Ltd. for alleged complicity in the forced slavery at the Bisha mine in Eritrea.

At that time, the CBC reported: “The Supreme Court justices are not weighing the merits of the case itself, only if a domestic court should hear it. The outcome could have broad implications for other Canadian companies with foreign operations.”

A year later, in February 2020, Canadian Lawyer magazine reported that the Court ruled “that corporations can be held liable in civil law for breaches of international law, and that the act of state doctrine [which precludes domestic courts from assessing the sovereign acts of a foreign government] is not a bar to the claim.”

Tahoe Resources

There is also the significant past example of the challenge against Vancouver-based Tahoe Resources relating to its operations in Guatemala. 

In January 2017, the BC Court of Appeal confirmed that a civil suit against Tahoe could be heard in Canada, concluding that there was a real risk that the Guatemalans would not get a fair trial in their own country.

The challenge involved an incident on April 27, 2013 in which private security forces employed by Tahoe Resources began shooting at land defenders opposed to the Escobal silver mine, located about 75 kilometres southeast of Guatemala City.

Joe Fiorante, a partner at Vancouver-based law firm of Camp Fiorante Matthews Mogerman (CFM Lawyers), commented: “The case sets a very important precedent. It confirms that Canadian courts are the appropriate forum for human rights claims arising from the foreign activities of Canadian mining companies.”

In July 2019, Agence France-Presse reported: “A Canadian mining firm has apologized after reaching an agreement with demonstrators shot and wounded while protesting the company’s Guatemalan gold and silver mine, according to statements from both sides.”

Proposed legislation in Canada

And it should be noted that Member of Parliament Peter Julian has been advocating for more than ten years for legislation that would give people and groups from outside this country who have suffered from the actions of Canadian corporations the ability to take their case to the Federal Court of Canada.

Julian explains: “[It would] allow non-citizens to sue anyone for gross violations of basic human, environmental or labour rights when they are committed outside the country.”

His private member’s bill, C-331, An Act to amend the Federal Courts Act (international promotion and protection of human rights), was defeated by the Liberals and Conservatives in this vote in June 2019.

Peace Brigades International

Peace Brigades International continues to follow the legal proceedings against both HudBay and Nevsun notably in relation to concerns that have been raised by PBI-Colombia accompanied human rights defenders about the impacts of the operations of Toronto-based Frontera Energy Corp. and Calgary-based Parex Resources Inc.

In the case of Frontera Energy, the previous United Nations Special Rapporteur on the situation of human rights defenders had highlighted in his report to the Human Rights Council that the company had signed two agreements on November 16 and 19, 2018 with the Colombian Ministry of Defence totalling US$1.3 million to provide protection for the company and that on November 27, 2018, the army and police launched a massive operation in the community of San Luis de Palenque, Casanare and arrested eight activists who subsequently experienced 500 days in detention and ongoing criminal charges against them.