The VICE Channels

      Accusations of Rape and Murder at a Guatemalan Mine Will Finally Be Heard In a Canadian Court

      Accusations of Rape and Murder at a Guatemalan Mine Will Finally Be Heard In a Canadian Court Accusations of Rape and Murder at a Guatemalan Mine Will Finally Be Heard In a Canadian Court Accusations of Rape and Murder at a Guatemalan Mine Will Finally Be Heard In a Canadian Court
      Angelica Choc, widow of anti-mining activist and La Union community leader Adolfo Ich Chaman, cries as she announces during a press conference the landmark Choc v. HudBay case. Photo by James Rodriguez / MiMundo.org

      War & Conflict

      Accusations of Rape and Murder at a Guatemalan Mine Will Finally Be Heard In a Canadian Court

      By Hilary Beaumont

      On a Sunday in the fall of 2009, Adolfo Ich Chaman arrived weaponless at the scene of a confrontation between members of his community and guards at the Fenix mine in Guatemala, where the Mayan Q'eqchi' were occupying land they said was rightfully theirs.

      The sound of gunshots had brought the school teacher and activist to a Fenix enclosure surrounded by barbed wire fencing. According to a statement of claim detailing that day's events, Chaman was worried about violence during the Mayan communities' protests that day and had arrived on the scene hoping to restore calm.

      As he approached the fence, approximately a dozen guards armed with guns and machetes grabbed the 50-year-old, beat him, and hacked him with machetes before shooting him in the throat, just under his ear.

      Cellphone photos taken by relatives after he died show the man's face covered in blood with a gunshot wound below his left ear. Autopsy photos show two deep gashes in his arm, carved into his flesh by machetes.

      Nearly seven years later, there's renewed optimism that someone could finally be held responsible for the Mayan Q'eqchi' activist's murder.

      A lawsuit, filed by Chaman's wife, alleges that the Toronto-based HudBay Minerals is directly responsible for the violence that erupted on September 27, 2009, when Chaman was killed. That case, which has slowly wound through the Canadian court system, has been watched closely by human rights advocates and those in the mining industry since a judge allowed it to proceed, where other cases like it have failed. Lawyers are awaiting a huge disclosure of documents from the company in the coming month.

      "After all these decades and decades [of impunity by mining companies operating abroad], this is a breakthrough," one of the lawyers for the plaintiffs, Murray Klippenstein, told VICE News of the lawsuit's success. "We're showing it's not easy, but it's possible."

      Homes in the community of Barrio La Revolucion are burned and destroyed. On January 8th and 9th, 2007, the Guatemalan Nickel Company, local subsidiary of Canadian Skye Resources, ordered the forced eviction of five Q'eqchi' Mayan communities around Lake Izabal in El Estor, Guatemala. Over 800 State security forces carried out the forced eviction destroying and even burning several huts in the indigenous communities who claim the territory as ancestral land. Photo by James Rodriguez / MiMundo.org

      The mining company says it bears no responsibility for the man's death. Criminal charges are proceeding in Guatemala against the man who allegedly murdered Chaman, and HudBay says its subsidiary, Compania Guatemalteca de Niquel (CGN), is cooperating with that investigation. However, HudBay says several witnesses recanted their statements to the prosecutor, saying they were intimidated into lying.

      "While much has been said online and in the media, nothing has been proven in court," reads a statement on the company's website.

      Court documents filed in Canada, however, allege that HudBay Minerals' Toronto headquarters directly authorized the presence of the unlicensed and armed security guards who, according to eyewitness reports, killed Chaman, and the Canadian company is therefore responsible.

      Related: Raped by Canadian Gold Mine Guards, These Women Are Looking for Justice

      Two weeks before his death, the activist gave a speech in front of government officials in El Estor calling for HudBay and CGN, its subsidiary, to stop mining activities on his ancestral land and leave. Chaman also called for the local Mayan Q'eqchi' to unite against the mining company, and condemned its security force's evictions of his people, which locals allege involved the burning of homes and rape of women.

      As part of the 2013 lawsuit against HudBay, 11 women claim they were gang raped at gunpoint by the company's security forces during an eviction on January 17, 2007. Lawyers for the plaintiffs say the women witnessed guards with badges bearing the name of CGN on their uniforms, however HudBay argues none of its security forces took part.

      And on September 27, 2009, a man named German Chub Choc says the head of security for the mining company shot him, paralyzing him from the chest down. His claim is also included in the Canadian case. The events stem from September 2006, when the Mayan Q'eqchi' first attempted to occupy the land, prompting evictions by security forces. HudBay did not own the Canadian mining company that controlled the security force at the time, however the plaintiffs argue HudBay assumed that company's liability when it took over.

      For Canadian mining companies and their subsidiaries operating abroad, it's an all-too-familiar story, and one that has provoked calls over the last two decades for new laws and more oversight.

      From left to right: Lucía Caal Ch'n, Luisa Caal Ch'n, Rosa Elbira Coc Ich, and Elena Choc Quib, Q'eqchi' Mayan women from the community of Lote 8, share a quick laugh before walking to their hillside community. All four were gang raped on January 17, 2007, by security personnel from the Guatemalan Nickel Company (CGN), National Police officers and Army soldiers during the forced eviction ordered by Skye Resources, a Canadian nickel mining company and then parent company of CGN. Eleven women from the Q'eqchi' Mayan community of Lote 8 are currently pursuing a high profile lawsuit in Canada against HudBay Minerals, company that eventually acquired Skye Resources. Photo by James Rodriguez / MiMundo.org

      Normally, companies like HudBay cannot be held legally liable for the activities of their subsidiary — legal claims based on wrong-doings of the local company cannot, as it is phrased in the legal system, "pierce the corporate veil" and proceed against the parent company, usually headquartered abroad.

      In past cases, Canadian courts have simply refused to hear cases that try to hold Canadian-based mining companies liable for illegal activities committed by companies it owns, but which have their own corporate structure. The Canadian justice system has maintained that, in order to hold a Guatemalan company accountable, the lawsuit should take place in Guatemala — not Canada.

      Related: Three Men Claim They Were Forced to Perform Sex Acts on Each Other at Canadian-Owned Mine

      The fact that the HudBay case is going forward shows that these companies, the vast majority of which are headquartered in Canada, could be held legally accountable for some activities happening at their overseas mines.

      In the process, a judge has ordered Canadian company HudBay to hand over hundreds of thousands of documents in disclosure that will land on the lawyers' desks in May.

      Klippenstein says his firm was able to show the Canadian mining company was closely involved in the operations of its subsidiary, arguing the company knew or should have known it was hiring "thugs" to police its mining operations in Guatemala.

      HudBay contended that the corporate veil protected it from litigation and argued that, even if they owed it to the plaintiffs to take precautions when operating its mine, the violence that occurred couldn't have been predicted by HudBay.

      A photo from the HudBay website, purporting to show the aftermath of the "mob attack" on the mine security. No additional detail was given.

      The mining company says it — not the Mayan Q'eqchi' — had valid legal rights to the disputed land during the violent events outlined in the court documents. But the Mayan communities say a dictatorial military government granted the mining rights during the Guatemalan Civil War and on February 8, 2011, Guatemala's highest court agreed. The Guatemalan government has, thus far, ignored the ruling.

      HudBay has also brought its fight out of the courtroom, using its website to accuse the activists of distorting and omitting facts. It contends that, on the September day when Chaman was shot and killed, a "mob attack" had targeted security at the mine.

      Related: Canadian Mining Companies Better Beware, the Liberals Are Coming for Them

      But in 2013, Ontario Superior Court Justice Carol J. Brown J. agreed with the plaintiffs that the allegation that CGN was an agent of HudBay Minerals "is not patently ridiculous or incapable of proof, and therefore must be taken to be true for the purposes of this motion. If the plaintiffs can prove at trial that CGN was HudBay's agent at the relevant time, they may be able to lift the corporate veil and hold HudBay liable."

      In her decision, the judge dismissed HudBay's motions to have the lawsuit thrown out, and in June 2015, a different judge ordered the massive disclosure of documents expected this spring.

      Former Supreme Court of Canada Justice Ian Binnie told VICE News the HudBay case is a test for whether the actions of foreign companies can really be held to account through Canada's legal system.

      "The notion generally is that you can't sue a parent or a shareholder for the misconduct of the company," Binnie said. "It's only the company that does the misconduct that's responsible. But the reality is that the money flows upwards from these operating companies and the direction flows downwards, so I think ultimately the courts are going to have to look at how this is all one big operation."

      In the long run, he's optimistic cases like HudBay will change how Canada deals with mining violence abroad, though he said it will likely take a number of cases potentially going up to the Supreme Court of Canada to change things.

      A photo from the HudBay website, purporting to show the aftermath of the "mob attack" on the mine security. No additional detail was given.

      Follow Hilary Beaumont on Twitter: @hilarybeaumont

      Topics: canada, americas, guatemala, mining, extractive sector, hudbay, mayan q’eqchi’, adolfo ich chaman, war & conflict, environment

      Comments

      comments powered by Disqus

      In The News

      More News

      Features