Update January 2020
Mayan Q’eqchi’ Plaintiffs successfully resist Hudbay Minerals’ latest attack on precedent-setting corporate accountability lawsuit
On January 21, 2020, Hudbay Minerals lost its attempt to block the Mayan Q’eqchi’ Plaintiffs from amending their lawsuit to add new details about the assaults and rapes suffered by them in Guatemala, allegedly perpetrated by mine company private security forces, military and police.
In a judgment that found for the Plaintiffs on all points, the Superior Court of Justice confirmed that the Plaintiffs can and are suing Hudbay not only for the rapes committed by the mining company’s security personnel, but also for the rapes committed at the same time by Guatemalan police and military. Read the judgment – Decision re motion to amend pleadings.
Key excerpts from the judgment include:
“Inherent in these allegations is that Skye [the then mine owner, subsequently amalgamated with Hudbay] attempted to influence government officials who were responsible for the police and military in order to have them carry out the very evictions during which the alleged sexual assaults occurred in a country with a corrupt justice system where violence and sexual assault was prevalent.” [para. 37]
“The Disputed Amendments… add clarifying references to the police and military together with additional facts and particulars regarding the alleged role and involvement of Skye and CGN in seeking the evictions and their control, decision making, logistical support, co-ordination and payments to the police and the military with respect to the forced evictions.” [para 38]
“I am not persuaded that the Plaintiffs would be unable to establish that it was reasonably foreseeable to a party in Skye’s position that by requesting, influencing, funding, participating in and supporting the evictions in a country with a corrupt justice system and a history of sexual assaults during military operations and taking no steps to prevent the violence, the alleged sexual assaults would occur.” [para 60]
The amendments that the court has permitted were made to provide further clarification and details regarding the deep involvement of Skye Resources Inc. (now part of Hudbay Minerals) in the violent eviction of the Mayan Q’eqchi’ community on January 17, 2007 that lead to the rapes of the Plaintiffs by the men conducting the eviction. These amendments include further details that were learned during the discovery process (of document disclosure and examination under oath of company executives) that help demonstrate that Skye Resources (now part of Hudbay):
- took a highly aggressive and confrontational strategy in dealing with the land conflict with the Plaintiffs’ Q’eqchi’ community in remote Guatemala;
- refused to engage in good faith negotiations or mediation with the Plaintiffs’ community;
- aggressively sought forced evictions of the Plaintiffs’ community which had an inherent high risk of violence;
- manipulated and abused the legal process in Guatemala to obtain court orders for eviction of the Plaintiffs’ community;
- proceeded with evictions that involved use of force despite knowing that Guatemalan police and military had a record of violence and abuse at evictions;
- proceeded with evictions despite the fact that all of the Defendants’ own corporate consultants and advisers unanimously advised against a forced eviction because of the risk of violence at such an eviction;
- worked extremely closely with the Guatemalan police and military as an integral part of an overall team in preparation for the forcible eviction;
- paid large undercover monetary payments to the Guatemalan police and military for their services in the forcible evictions;
- specifically arranged for a second later forced eviction of the Plaintiffs’ community of Lote Ocho despite there being no pressing need for such an eviction, and without taking any precautions to ensure that the second eviction would be conducted peacefully;
- had full de facto control over whether and when the second forced eviction of the Plaintiffs’ community of Lote Ocho would be carried out by Guatemalan police, military and private security personnel;
- despite the use of violence during earlier evictions in November and January (and in particular the burning of homes down to the ground with gasoline), the Defendants did not take any steps to re-evaluate the strategy of seeking forced evictions, or the role that the police and military would play at the second eviction of Lote Ocho on January 17, 2007; and
- acted closely with the police and military in the evictions themselves as an integral part what amounted to a de facto military operation.
The Canadian lawsuits
Members of the indigenous Mayan Q’eqchi’ population from El Estor, Guatemala are pursuing three related precedent-setting lawsuits in Canadian courts against Canadian mining company HudBay Minerals over human rights abuses at HudBay’s former Fenix mining project in Guatemala. These cases are the first of their kind in Canada. Key developments.
Angelica Choc v. HudBay Minerals Inc. regarding the brutal killing of Adolfo Ich, a respected community leader and school teacher who was hacked with machetes and shot in the head by mine company security personnel on Sept. 27, 2009. Learn more. Read the legal claim.
Margarita Caal Caal v. HudBay Minerals Inc. regarding the gang-rape of 11 women from Lote Ocho by mining company security personnel, police and military during the forced eviction of their village and families from their ancestral lands on Jan. 17, 2007.1 Learn more. Read the legal claims. Learn more. Read the legal claim.
The plaintiffs are represented by Toronto law firm Klippensteins Barristers and Solicitors: www.klippensteins.ca.
Sept. 2010 – Sept. 2011 – the plaintiffs file three related lawsuits against HudBay Minerals in the Superior Court of Justice in Ontario seeking reparations for shootings, murder and gang-rapes alleged to have been committed by mine company security personnel at HudBay’s Fenix mine in Guatemala.
Aug. 2011 – HudBay sells the troubled Fenix mine to a Russian company at a loss of $290 million. This huge loss appears to have been the price HudBay paid for speculating on a Guatemalan mine that was beset by severe human rights abuse and risks of further abuse. HudBay retains liability in spite of the sale and the lawsuits continue in Canadian courts. Read more.
Sept. 2012 – After almost three years as a fugitive from justice, Mynor Padilla, the former chief of security for the Fenix mine is finally arrested by Guatemalan authorities on charges of murder and attempted murder in the killing of Adolfo Ich and the shooting of German Chub. HudBay’s subsidiary continued to employ and pay Mr. Padilla while he was a fugitive from justice. Read more.
Nov. 2012 – Rosa, Margarita, German and Angelica travel to Toronto to testify regarding abuses suffered by them. Each show remarkable dignity and strength as they face extensive full-day cross-examination by HudBay’s lawyers. Rosa and Margarita demonstrate particular courage as they testified through a Q’eqchi’ interpreter regarding the destruction and burning of their homes and their village, and the rapes suffered by them. CBC The National, “The Long Road”.
Feb. 2013 – after arguing for over two years that the lawsuits should not be heard in Canada, HudBay abruptly abandons this legal argument and concedes the lawsuits can be heard in Canadian courts, just before an Ontario court was set to determine the issue. Read more.
July 2013 – In a precedent-setting judgment, an Ontario court rules that HudBay can potentially be held legally responsible in Canada for the shootings, murder and gang-rape that occurred at HudBay’s Fenix mining project in Guatemala. In light of the court’s ruling, Canadian mining corporations 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. Read more. Read the judgment.
May 2014 – Oct. 2014 – Hudbay files statements of defence which contain paragraphs that are abusive and violate the basic legal rules of pleading prompting the plaintiffs to challenge Hudbay’s statements of defence in court. The court agrees that several paragraphs are improper and orders Hudbay to file new and proper statements of defence.
Apr. 2015 – After many years of procedural delay and attempts to evade justice, the criminal trial against Mynor Padilla for the murder of Adolfo Ich and the shooting of German Chub finally begins in Puerto Barrios, Guatemala. The victims and their families are pleased that the trial is underway, but, because of ongoing and severe problems with Guatemala’s justice system, they remain skeptical about the prospects of real justice in Guatemala.
May 2015 – Angelica, German and Rosa travel to Toronto to speak directly to Hudbay’s directors and shareholders and the Canadian public about the lawsuit and to confront false accusations made publicly by Hudbay. Read Angelica Choc’s statement delivered to Hudbay’s directors and shareholders at its Annual General Meeting on May 22, 2015. CBC The National, Guatemalan villagers counter HudBay’s denials
June 2015 – The plaintiffs return to court and successfully force HudBay to disclose extensive internal corporate documentation. By court order, Hudbay now has to turn over a very large number of confidential internal company documents and communications, which lawyers for the plaintiffs believe will show that the company is in fact and in law responsible for the devastating events in Guatemala. Read more. Read judgment.
Sept.- Dec. 2016 – Hudbay delivers the thousands of internal corporate documents that Hudbay was required to turn over to be reviewed by the plaintiffs’ lawyers.
Apr. 2017 – A Guatemalan criminal court acquits Mynor Padilla of charges of murder and aggravated assault at a mine owned by Canadian company Hudbay Minerals Inc – the same incident that is at the heart of the Ontario litigation.
Sept. 2017 – a Guatemalan appeal court overturns all aspects of the above judgment acquitting Mynor Padilla. Padilla will now face a second prosecution regarding the murder of Adolfo Ich Chaman and the shooting of another community member German Chub, now paralyzed for life. The retrial is expected to begin in the fall of 2019. For more information read the Press Advisory
Sept. – Oct. 2017 – Plaintiffs’ lawyers spend a total of 7.5 days examining corporate executives from Skye and Hudbay under oath regarding how the corporation approached security, human rights and the land conflict with Mayan Q’eqchi’ communities in the lead up to the eviction and rapes in January 2007.
Nov. 2017 – All 11 plaintiffs who alleged they were raped in 2007 travel to Toronto to be examined by Hudbay’s lawyers. Two of them bring their infant children. Each plaintiff is examined under oath in detail for approximately one day.
June 2018 – the Plaintiffs’ lawyers spend a total of almost two weeks examining current and past corporate executives from Hudbay regarding how the corporation approached security, human rights and the land conflict with Mayan Q’eqchi’ communities in the lead up to the killing of Adolfo Ich Chaman and the shooting of German Chub in September 2009.
July 2018 – Angelica Choc and German Chub travel to Toronto to be examined under oath by Hudbay’s lawyers. Angelica was examined for 2.5 days.
Aug. 2018 – Active litigation is paused to allow for potential settlement discussions.
Aug. 2019 – Active litigation in the lawsuits resumes.
Sept-Nov. 2019 – The 11 plaintiffs and rape survivors from Lote Ocho head to court to add further details to their lawsuit regarding Skye Resources’ (now a part of Hudbay Minerals) integral role in the violent evictions of a Mayan village by Guatemalan military, police and private security resulted in mass rapes.
Jan. 2020 –Hudbay loses its attempt to block the Mayan Q’eqchi’ Plaintiffs from amending their lawsuit to add new details about the assaults and rapes suffered by them in Guatemala, allegedly perpetrated by mine company private security forces, military and police. Read the judgment.
1The forced eviction was sought by Canadian mining company Skye Resources. Skye Resources was bought by and later merged with HudBay Minerals. As a result of this merger, HudBay is legally responsible for all of the legal wrongs and liabilities of Skye Resources.