A group of men wounded last year during a protest outside a Guatemala mine is suing the Vancouver-based mining company, Tahoe Resources Inc., in British Columbia Supreme Court arguing it should be held liable for the alleged violent action against them.
It is the first time a Canadian company has been sued in B.C. for events that occurred at operations outside of Canada, but it follows from three suits against Toronto-based Hudbay Minerals, which were accepted to proceed to trial by an Ontario Superior Court Judge last year, also related to alleged violent incidents in Guatemala.
Together, the suits are part of increasing efforts of non-government organizations seeking greater accountability from Canadian mining companies operating abroad.
“The plaintiffs feel like they’ve not got justice for what happened to them (in Guatemala),” said Matt Eisenbrandt, legal director for the Canadian Centre for International Justice.
The seven men named in a notice of civil claim allege they were shot at close range during a peaceful protest on a public road outside Tahoe’s Escobal silver mine east of Guatemala City on the evening of April 27, 2013, in what they argue was a planned act of intimidation by the company’s security guards.
The allegations have not been proven, but the men are seeking damages from the company for battery and negligence, arguing that Tahoe either authorized the use of excessive force or was negligent for not preventing the violence or is liable for the security guards’ actions.
The mine’s security manager, Alberto Rotondo, was arrested and faces criminal charges of obstruction of justice, causing injury and mistreatment of a minor, Eisenbrandt said.
However, while that case is underway, the plaintiffs believe Tahoe should also be held accountable. Eisenbrandt said Canada’s formal institutions that regulate Canadian companies abroad are too weak to do the job, so they are seeking damages in a Canadian court.
“At the end of the day, what the plaintiffs are looking for is a judgment from a Canadian court that Tahoe is responsible for what they suffered,” said Eisenbrandt, who is part of the legal team that put the claim together.
The Guatemalan men’s claim was filed by Vancouver lawyer Joe Fiorante of the firm Camp, Fiorante, Matthews, Mogerman. They are represented in Guatemala by the Guatemalan Centre for Legal, Environmental and Social Action.
Tahoe could not be reached for comment Wednesday but in a statement last year disputed the circumstances of the incident, alleging in return that men armed with machetes were approaching the gate at shift change in a hostile act and were turned back by security guards using tear gas and rubber bullets.
However, in the notice of claim, the plaintiffs allege that Rotondo carried out a campaign to undermine and intimidate local opposition to the Escobal project, and further that the security manager, a retired Peruvian Navy Captain, had planned a show of force to do just that on the date in question.
In the claim, the men allege they were shot with buckshot and rubber bullets and suffered injuries to their faces, legs and backs.
Adolfo Garcia was shot in the back while retreating, with the projectile lodging near his spine, the statement of claim says. Luis Monroy was shot in the face, ultimately losing his sense of smell, the document says.
The suit alleges that the shooting constituted battery for which Tahoe should be considered vicariously liable.
Further, it alleges Tahoe had committed to operate under principles of corporate social responsibility to respect human rights, so it had a duty of care to make sure that its employees and contractors abided by those principles and was negligent for failing to do so.
Eisenbrandt said the case is based on straightforward principles and the team is confident that a B.C. court will agree to hear it.
However, Pierre Gratton, CEO of the Mining Association of Canada, said historically courts have ruled that they don’t have jurisdiction over such cases, thought that view is now evolving.
“The general principle of industry, and not just (mining companies), is for justice to be served appropriately, it should be heard in the country where the offence, if there was an offence, took place,” Gratton said.
He added that Canada is in the process of reviewing its existing regulatory process at the Extractive Sector Corporate Social Responsibility Counsellor’s office in the Trade and Development Canada department.
The counsellor’s role is to investigate and mediate grievances between Canadian companies and communities affected by extractive industries. The criticism against that process, Eisenbrandt said, is that it is voluntary and companies don’t have to comply with it.
Gratton said the Mining Association has lobbied the federal government to make participation in the first stage of the CSR counselling process mandatory, which involves investigating and establishing whether grievances are legitimate.
“Companies shouldn’t be able to walk away from it,” he said.
Within the NGO community, however, the view is that the government isn’t interested in strengthening accountability for Canadian companies operating abroad, which is why they are turning to the courts, according to Jennifer Moore, Mining Watch Canada’s coordinator for Latin America.
Moore sees the Tahoe suit as a chance for the seven men to seek redress, but also to bring visibility to their opposition to mining operations in the troubled region in Guatemala.
“(It’s) an important attempt to set a precedent in British Columbia as part of the struggle to have corporate responsibility in this country and consequences for companies whose operations overseas are connected to these abuses we see going on a too regular basis,” Moore said.
With files from The Canadian Press
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