Two indigenous Guatemalan women stood quietly in front of a Toronto courthouse on Tuesday morning, surrounded by a scrum that included a filmmaking crew, lawyers, media and a gaggle of other people.
On a crowded city street during rush hour, the women drew little notice from passersby but their case is being closely followed by the mining sector and beyond.
Both women, Irma Yolanda Choc Cac and Angelica Choc, had travelled from a remote part of eastern Guatemala, to continue pressing legal claims that Hudbay Minerals Inc., one of Canada’s oldest mining companies, bears liability for rape, violence and other human rights abuses that took place more than a decade ago when their village was razed to make way for the Fenix nickel mine.
Their lawsuit, originally filed in 2011, ties into a trend of increasing scrutiny of Canadian mining and exploration companies’ overseas activity. In its wake, other plaintiffs sued at least two other mining companies under the same novel legal theory, which accuses the mining companies of negligence.
“I’m assuming any chance of resolving anything between these parties has long since left the building,” the presiding case management master, Michael McGraw, who functions like a judge, said near the start of the hearing on Tuesday.
In a courtroom packed with journalists and supporters of the women, the lawyers had planned to argue about whether the plaintiffs could amend their complaint against Hudbay to include new details about the alleged human rights abuses. But that never happened and instead, the parties pushed the hearing back until November while they discuss a compromise.
The suit claims security personnel for Skye Resources — which Hudbay bought in 2008 for US$451 million to acquire the Fenix mine project — worked with Guatemalan military and police to clear the land and raze the Mayan Q’echi community of Lote Ocho for the mining project.
Several of the plaintiffs in the case, including one present Monday, in documents filed in the case, describe the trauma — being tied, beaten and gang-raped in front of their children — in excruciating detail while under examination by Hudbay’s lawyers at Fasken, Tracy Pratt and Robert Harrison.
“It was these men just like this that raped me when I was three months’ pregnant,” one of the plaintiffs said, adding, “And it’s men just like this that are the ones that burned my house, and they burned my clothing and they burned everything I had in my house.”
The other plaintiff claims the head of mining security killed her husband for protesting against the mining company.
The plaintiffs’ lawyers say they have gained new details from documents and emails that Hudbay produced during the litigation to substantiate the alleged human rights abuses. Already, they have filed documents in court that contain new details related to payments Skye made to military and police, and to the arrangements between Skye’s security force and local police and military.
At the hearing, lawyers for Hudbay said they would consider agreeing to allow the plaintiffs amended complaint, although they may file a new motion challenging whether Ontario is the proper jurisdiction to hear the claims. They had filed a motion to move the case to Guatemala earlier in the case, but Hudbay withdraw it before a ruling was ever handed down.
Meanwhile, in a separate case using the same legal theory filed against Tahoe Resources, a B.C. judge ruled that the negligence case could be heard in Canada. Earlier this year, Pan American Resources Inc., which purchased Tahoe, publicly apologized to the plaintiffs and reached a confidential settlement.
There remains one other suit that uses the same theory, against Nevsun Resources Inc., which was purchased by a Chinese company in 2018, accusing it of using forced labour and of committing other human rights abuses on a mining project in Eritrea.
A representative for Hudbay, who was present in the courtroom, referred questions to the company’s lawyers, who declined to comment.
Hudbay sold its interest in the Fenix mine for US$170 million in 2011, shortly after the lawsuit was filed. It retained liability, however, and continues to fight the case.