July 23, 2013 – Guatemalan mine claims against HudBay can be tried in Canada, judge says —

The following article appeared in the Globe and Mail on July 23, 2013. Visit the original article here.

Canadian mining company HudBay Minerals Inc. can potentially be held liable for alleged violence at a Guatemalan mine owned by a subsidiary, an Ontario Superior Court judge has ruled, in what plaintiffs say is a precedent-setting case.

Justice Carole Brown’s ruling, handed down Monday, means that the claims of 13 Guatemalans can proceed to trial in Canadian courts. The decision opens the door to other cases in which companies could face liability on their home turf for incidents that happen overseas.

“The judgment should be a wake-up call for Canadian mining companies,” said Cory Wanless, a co-counsel with Murray Klippenstein, who represents 13 Mayan Guatemalans.

“It is the first time that a Canadian court has ruled that a claim can be made against a Canadian parent corporation for negligently failing to prevent human rights abuses at its foreign mining project. We fully expect that more claims like this one will be brought against Canadian mining companies until these kinds of abuses stop.”

Mr. Klippenstein had argued that HudBay can be held liable for negligence, alleging that HudBay executives made decisions for its subsidiary regarding security at the mine, relations with local indigenous people and the “forced evictions” of Mayan protestors claiming the mine is theirs.

Lawsuits were launched against HudBay after clashes that pitted protestors against security details at the Fenix nickel mine in 2007 and 2009. The allegations have not been proven in court.

HudBay lawyers, who tried to have the case thrown out, said going ahead with a trial would be detrimental to the corporate-law principle that parent companies are not liable for the actions of their subsidiaries. They also argued it would open the way to “meritless” cases against other mining firms.

In the Guatemalan lawsuits, one case involved the alleged beating, machete hacking and killing of a local Mayan community leader who voiced opposition to the mine: Adolfo Ich Chaman. Another man was shot and now uses a wheelchair. There are also allegations that 11 women were gang-raped by men in mine security uniforms.

HudBay has denied the allegations and detailed its version of what happened on its website, saying protesters were responsible for some of the violence.

In a statement late Tuesday, HudBay spokesman John Vincic said: “The judge’s decision … involved a ruling on a question of law in a preliminary motion and did not involve a determination of the merits of the case. …. After having an opportunity to cross-examine the plaintiffs, we are confident that their allegations are untrue and the cases will be favourably resolved on the merits at trial.”

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Mr. Klippenstein said the ruling has a broader impact. “As a result of this ruling, Canadian mining companies can no longer hide behind their legal corporate structure to abdicate responsibility for human rights abuses that take place at foreign mines under their control at various locations throughout the world,” he said.

“There will now be a trial regarding the abuses that were committed in Guatemala, and this trial will be in a courtroom in Canada, a few blocks from HudBay’s headquarters, exactly where it belongs. We would never tolerate these abuses in Canada and Canadian companies should not be able to take advantage of broken-down or extremely weak legal systems in other countries to get away with them there.”