Major win for plaintiffs as Pan American settles Guatemala silver mine case
Demonstrators were shot and injured in 2013 while staging a peaceful protest
In a case likely to set new accountability standards for Canadian mining companies operating abroad, Vancouver-based Pan American Silver has apologized to four Guatemalans who were shot in 2013 while staging a peaceful demonstration at the entrance to one of its mines.
The company also struck legal settlements, though terms remain confidential, with the Guatemalans to end ongoing litigation in British Columbia accusing it of negligence.
It marks one of three cases filed in Canada in recent years, in which a mining company has been sued for negligence because of alleged human rights abuses connected with its operations overseas. The other two cases are still pending in Canada.
“I think the important part is the precedent it set in terms of opening up the Canadian court system for foreign plaintiffs to bring cases of this nature forward,” said Joe Fiorante, of Fiorante Camp, who represented the victims.
“It’s part of an emerging legal framework that’s trying to reconceptualize these cases as Canadian legal problems, not just something that happened overseas,” he added.
The resolution, announced Tuesday, comes after Pan American paid US$1.1 billion in February to acquire Tahoe Resources Inc., agreeing to purchase all its mines, including Escobal project near the San Rafael Las Flores town, where the violence took place, and also inheriting its legal liabilities.
A video of the incident, captured by the mining company’s security camera and posted online, shows more than a dozen men walking up a dirt road and stopping at a deserted chain link fence gate to a mine. After standing around for several minutes, a cloud of smoke suddenly appears near their feet.
Next, around two dozen security guards wearing riot gear and carrying guns come into view and open fire on the men as they run away.
Seven of the men were injured, either shot in the back or in one case, the face; and in 2014, they filed a lawsuit in British Columbia accusing the mine’s then-owner Tahoe, of negligence for the actions of its private security force.
The case was initially dismissed on jurisdictional grounds that the claim was better suited for Guatemala’s court system. But, in 2017, the B.C. Court of Appeals reversed that decision, finding Canadian courts have wide jurisdiction to hear such cases.
As the case moved toward trial, Fiorante obtained a wire transcript taken by Guatemalan police of Tahoe’s former chief of security Alberto Rotondo speaking about the incident, saying “it’s with bullets that they learn.”
Fiorante said Tahoe settled claims with three of his clients without his knowledge, but four declined to settle until Tuesday when they received an apology and an acknowledgment that their human rights had been violated.
“While these events occurred well before the acquisition, Pan American, on behalf of Tahoe, acknowledges that the shooting on April 27, 2013, infringed the human rights of the protesters,” the company said in a statement. “Pan American, on behalf of Tahoe, apologizes to the victims and to the community.”
Siren Fisekci, a spokesperson for Pan American, said the company did not think it was appropriate to put the plaintiffs through a long drawn out legal process.
Two other cases remain ongoing. The first in Canada accuses the security guards at a nickel mine in Guatemala — that Hudbay Minerals Inc. owned for a time — of rape and other brutalities. Another case accuses Vancouver-based Nevsun Resources Ltd. of using forced labour and committing human rights abuses at a mine in Eritrea.
Shin Imai, a director of the Justice and Corporate Accountability Project, who has been involved with other claims against Tahoe, said the Pan American case likely settled first because of the gravity of evidence.
“If you look at this case, it’s so clear,” said Imai. “I mean they’re shooting people in the back, and there’s video.”
He said the cost of litigating these cases can make them prohibitively expensive to bring, so there’s unlikely to be a flood of similar litigation in the future.
Meanwhile, the Escobal mine where the protesters were shot — one of the largest in the world, which once produced 20 million ounces of silver annually — has been offline since 2017 after a Guatemalan court ruled the local Indigenous communities had not been properly consulted about it.
Quelvin Jimenez, a lawyer for the Xinka Community in Guatemala said via email, that a consultation process was launched, but that it stalled with no progress in months.
Although Tahoe had said the mine could be reopened by December 2019, Pan American said the consultation would take longer and offered no date for completion.
“I don’t think you can read through this announcement to the reopening of the Escobal mine,” said Fisecki, the company spokesperson.
But she added, “We do think it will help rebuild trust with the broader community.”
If you look at this case, it’s so clear. I mean they’re shooting people in the back, and there’s video.