Published by MAC on 2021-01-08
Source: The Star, Financial Post (2021-01-11)
Previous article on MAC: Hudbay Minerals shareholders asked to donate their dividends
Ex-security chief for subsidiary of Hudbay Minerals pleads guilty to killing, paralyzing Indigenous Guatemalans
By Max Binks-Collier
7 January 2021
On Wednesday, the former head of security for a subsidiary of the Toronto-based mining company Hudbay Minerals officially pled guilty in a Guatemalan court to killing a local Indigenous community leader and paralyzing another Indigenous man.
This could have important ramifications for two lawsuits against Hudbay underway in Ontario that centre on the Sept. 27, 2009, killing and maiming of the Indigenous men.
Mynor Padilla, the former security chief of CGN, a Guatemalan nickel-mining company that was owned by Hudbay between 2008 and 2011, pled guilty to the crimes on Dec. 17, 2020, as part of an agreement struck between Padilla and his victims, among them Angelica Choc, the widow of slain community leader Adolfo Ich, and German Chub, who was paralyzed.
On Wednesday, the court accepted and ratified the guilty pleas.
The court’s decision could be game-changing for two lawsuits that Choc and Chub launched against Hudbay in Ontario in 2010. They allege that Hudbay was negligent in how it managed the private security of its subsidiary, CGN, which has a compound located near several Indigenous communities in rural Guatemala.
In documents filed in court, Padilla is alleged to have shot Ich in the head at close range after Ich was dragged through the fence of CGN’s compound by security guards and had his arm nearly severed by a machete blow.
Padilla is also alleged to have shot Chub at close range, paralyzing him from the mid-chest down and permanently collapsing his left lung, as Chub watched a community soccer game near CGN. Neither man posed a threat to CGN security.
The court’s decision is significant because one of Hudbay’s main legal defences is that Padilla did not shoot either man. In fact, Hudbay has stated in court that Choc and Chub have “concocted” stories falsely accusing Padilla of the violence he has now pled guilty to having committed.Wednesday’s ruling “pulls the rug out from under Hudbay’s key defence,” said Cory Wanless, one of the lawyers representing Choc and Chub in their lawsuits against Hudbay.
“Mr. Padilla’s criminal proceedings are coming to a conclusion based on a plea agreement, which accounts for many different factors,” Hudbay said in an email. “We will review the court’s written decision once it is released. Any agreements made in the Guatemalan court do not affect our view of the facts or Hudbay’s liability in relation to civil matters currently before the Ontario court.”
CGN did not respond to requests for comment. Padilla could not be reached for comment.
The guilty pleas do not automatically invalidate Hudbay’s argument that Padilla did not kill Ich and paralyze Chub, but Ontario courts will consider them “highly relevant and highly persuasive” pieces of evidence that “will become a key part” of the lawsuits if they go to trial, said Murray Klippenstein, another lawyer for Choc and Chub.
Hudbay will now have to rely heavily on the other pillar of its legal defence, which is that it was not negligent in its management of CGN’s private security, Klippenstein and Wanless said. The two lawyers will argue against that defence by drawing on hundreds of the more than 20,000 internal corporate documents disclosed by Hudbay through the discovery process. The documents paint “a very detailed picture of the facts surrounding” the shootings of Ich and Chub, Klippenstein said.
“Based on what we know, it is going to be very difficult for Hudbay to argue that they don’t bear responsibility for what happened at their mine,” Wanless said. “The higher-ups at Hudbay were well aware of what happened on the ground in Guatemala.”
Padilla was sentenced by the Guatemalan court to a total of two years and eight months for his crimes against Ich and Chub. The court has commuted his sentence to fines that are to be paid to the court. Padilla also previously paid Chub and Choc in out-of-court settlements. On Wednesday, the court also accepted his guilty pleas for assaulting two other Indigenous villagers on the same day. The terms of his sentence were agreed upon by Padilla and his victims before the court accepted them.
Padilla previously spent about 4.5 years in prison awaiting an earlier trial for these crimes that ended in an acquittal, but that acquittal was overturned on appeal amidst allegations of corruption against the judge who presided over it.
Reactions to the plea deal were mixed. Klippenstein and Wanless considered it to be a relatively positive outcome in light of the dysfunctionality of Guatemala’s justice system and the impunity rampant within the country. But Ramon Cadena, a Guatemalan human rights lawyer and regional director for the International Commission of Jurists, said that the sentence was just a slap on the wrist. “It is a reflection of the impunity in Guatemala,” he said.
“It’s not very fair, but for me, however, it is a big achievement,” said Angelica Choc.
She choked up. “It hurts me too much … remembering my husband.” But now, with the guilty plea coming more than a decade after her husband’s death, “I feel very at peace.”
Former security chief at Hudbay mine pleads guilty in Guatemala
Development significant because Hudbay has spent nearly a decade battling civil litigation in Canada related to case
7 January 2021
The former chief of security for a nickel mine once owned by a Canadian mining company in Guatemala has pleaded guilty to criminal charges in that country in connection with an alleged homicide and serious assault on Indigenous activists that stretch back over a decade.
On Wednesday, a judge in Guatemala accepted criminal pleas from Mynor Ronaldo Padilla Gonzalez, including admissions, translated from Spanish, to ‘homicide in an emotional state’ and ‘culpable violence,’ according to lawyers in Canada who represent plaintiffs in a civil case here related to the same incidents, who were monitoring the case through an associate in the Guatemalan court.
Both pleas related to clashes at the Fenix nickel mine, in eastern Guatemala, once owned by Hudbay Minerals Inc.
The development is significant because Hudbay has spent nearly a decade battling civil litigation in Canada related to the same violent episodes, and had denied that Padilla was connected to the violence. Now, that line of defence conflicts with Padilla’s own admissions.
“This pulls the rug out from Hudbay’s main denial right now,” said Murray Klippenstein, of Klippensteins law firm in Toronto, who represents the plaintiffs suing Hudbay in Canada.
To be sure, his criminal plea in a Guatemalan court has no direct impact on Hudbay’s civil liability in Canada, except that it may force the mining company to reconsider its defence, and could potentially ramp up pressure to settle the case. It is one of three landmark cases filed in Canada that seek to hold mining companies accountable for overseas human rights abuses through a legal claim of corporate negligence, but the other two cases have both settled.
Hudbay released a statement acknowledging Padilla had pleaded guilty in his criminal proceedings in Guatemala.
“We will review the court’s decision once it is released. Any agreements made in the Guatemalan court do not affect our view of the facts or Hudbay’s liability in relation to civil matters currently before the Ontario court,” the company said.
The Hudbay stock fell 0.6 per cent to $9.47 on the Toronto Stock Exchange.
The litigation against Hudbay connects back to a series of allegations that between 2007 and 2009, dozens of personnel from the Fenix mine in eastern Guatemala, along with police and military violently expelled members of the remote Indigenous Mayan community of Lote Ocho from their homes, and clashed with mine protestors and the local community.
During an expulsion in 2007, eleven Mayan Q’eqchi’ women allege they were gang-raped. Later, in 2009, one community leader Adolpho Ich was assaulted with a machete, then shot and killed, while another community member was shot and paralyzed.
Hudbay purchased the Fenix mine in 2008 for $451 million, and inherited liability at that time for the actions of the previous owners, although it also faces allegations that its own personnel, including Padilla, were involved in abuses.
Since 2011, 13 Indigenous community members have filed claims in an Ontario court against Hudbay for negligence, alleging the mine owners had planned and co-ordinated their expulsions and funded the groups that committed the violence against them.
In 2013, a judge ruled the company can be sued in Canada for the events in Guatemala, and the case remains ongoing even though Hudbay sold the Fenix mine in 2011 for $170 million to Solway Group, a Swiss-based mining and metals company.
Lawyers for the plaintiffs, Murray Klippenstein and Cory Wanless, have already reviewed tens of thousands of documents in the case, and expect to be back in court in Toronto this spring for another hearing on more discovery.
“Based on the evidence we’ve seen, we can prove a high degree of negligence in how they managed the Fenix mine,” said Wanless.
Meanwhile, in Guatemala, Padilla, the former chief of security and a former ranking military officer in Guatemala, was arrested, and detained. In December, he agreed to plead guilty to a role in the violent clashes.
According to interviews with Klippenstein and Wanless, a judge in a court in Puerto Barrios, Guatemala, has now accepted Padilla’s pleas related to at least two separate incidents.
First, he agreed to plead guilty to homicide in an emotional state and pay compensation to Angela Choc, whose husband Adolfo Ich was shot and killed during a mine related protest. Per that agreement, Padilla accepted two years in prison, which has already been served.
Second, he agreed to plead guilty to culpable injury and pay compensation to German Choc Chub, who was shot and paralyzed and remains in a wheelchair. Per that agreement, Padilla also agreed to 10 months in prison, which was also served as pre-trial detention.
In 2017, he was tried in a Guatemalan court and acquitted by a judge, but it was overturned on appeal.
Padilla could not be reached for comment.
Previously, Hudbay had denied that Padilla or any mine security forces were involved in the death of Ich.
“The defendant is not aware of how Ich came to his unfortunate death,” lawyers for Hudbay wrote in 2015, adding “Ich was not grabbed by Padilla … and executed in cold blood as alleged ….”
In addition to the suit against Hudbay, other plaintiffs filed lawsuits alleging human rights abuses overseas against two other mining companies, Tahoe Resources Inc. and Nevsun Resources Ltd. — both companies have since been acquired and no longer exist. Those cases have settled on undisclosed terms.
In 2019, however, Vancouver-based Pan American Resources Inc., which purchased Tahoe, publicly apologized to the plaintiffs as part of the settlement.