Corporate records OK’d in Hudbay case
Judge rules Guatemalan women alleging rape can use explosive legal documents against miner
Eleven Guatemalan women who claim they were gangraped during an eviction allegedly orchestrated by a Canadian mining company can update an important legal document with facts from dozens of corporate documents — including ones detailing the company’s close relationships with the Guatemalan police and army, a judge ruled Wednesday.
These documents came to light in a high-profile lawsuit that the 11 Indigenous Maya Q’eqchi’ women are waging against the Toronto-based mining company Hudbay Minerals Inc.
The women are suing Hudbay because they allege that on Jan. 17, 2007, Guatemalan police officers, soldiers and security for a Guatemalan mining company, CGN, gang-raped them during an eviction of their village. At the time, CGN was a subsidiary of the Vancouver-based mining company Skye Resources. The 11 women allege that Skye was negligent in how it arranged the eviction and that its negligence endangered them in part because it did not take reasonable steps to prevent violence, including on the part of the Guatemalan police and military. In 2008, Hudbay amalgamated with Skye, acquiring any legal liability resulting from the role Skye allegedly played in the gang-rapes.
In court documents, Hudbay has both denied that Skye acted negligently and that CGN security or other private security were at the eviction on Jan. 17, 2007. The judge’s decision on Wednesday “doesn’t change our view of the facts of the case,” Hudbay wrote in an email to the Star. “As this matter is in litigation, we will not be commenting further at this time.”
CGN did not respond to a request for comment.
In 2018, the 11 women filed dozens of corporate documents in court in an affidavit to further substantiate their claim that Skye acted negligently when seeking two sets of evictions in January 2007.
(Hudbay’s lawyers have not yet formally replied to the affidavit).
These documents shed light on Skye and CGN’s relationships with the police and army. Numerous emails and spreadsheets show that Skye and CGN funnelled close to $140,000 (U.S.) to the Guatemalan police and army by sending the money to three well-connected middlemen “in cash or direct transfers to personal bank accounts,” their affidavit states. Some money went to logistical supplies like the gasoline and meals of the police and army, while one document records that “there are rumours” of $157,895 being paid to the armed forces “for their work in the land evictions,” as The Intercept reported.
The women used other documents to flesh out how the close co-operation between the companies and the Guatemalan police in particular played out: one memorandum shows that a CGN middleman and a police chief flew in a helicopter over the 11 women’s village the day before the alleged gang-rapes to conduct reconnaissance. In another email sent shortly before an eviction on Jan. 8, 2007, a community-relations consultant wrote that CGN’s general manager is “heavily involved in last minute preparations with the police.”
The documents also contain information about the companies’ relationship with the army. In one email, CGN’s site manager states that “the army helped us, going over their duties” during a meeting he had with a commander of a powerful corps of military police that related to Skye and CGN’s land disputes with Maya Q’eqchi’ peasants. Photos entered into court also show the “police, military, and private security gather(ing) together at CGN’s facilities before setting out to conduct the evictions,” states the women’s affidavit.
The 11 women argue that the companies paid and worked with the police and army even though the public security forces were notoriously corrupt and violated human rights.
The military had systematically used rape as a weapon against Indigenous women during the country’s 36-year genocidal civil war, a Guatemalan truth commission found in a1999 report.
In one email, a senior Skye employee cautions against involving the security forces in the companies’ land disputes: “Once they are involved, their behaviour will be largely outside of our control, except for how we may be able to influence things at the highest levels, i.e. the President or Ministers with direct authority.”
Murray Klippenstein, lead lawyer for the women, said that “the detailed, formerly confidential corporate documents will help us show that the mining company should have known that, given the brutal history of the Guatemalan police and military, violence and even gang-rapes would be likely in the attack on the Mayan village.”
The women filed these documents in court because they wanted to amend their statement of claim with information from them.
However, Hudbay challenged the women’s effort to do so, arguing that this would amount to the women expanding their argument at the last-minute to have Hudbay “answer for the alleged conduct of the Guatemalan army and police,” states a document Hudbay entered into court.
On Jan. 21, 2020, the Ontario Superior Court case management Master M.P. McGraw, whose role is similar to a judge’s, ruled that the 11 women could amend their statement of claim. Hudbay appealed the ruling.
On Wednesday, during a hearing over Zoom about the appeal, Hudbay’s lawyer Robert Harrison argued that the case management master had erred in his ruling. After Harrison finished his arguments, Ontario Superior Court Justice Fred Myers made the uncommon decision to not call on the 11 women’s lawyers to make their own arguments. Instead, he simply ruled in their favour, finding that M.P. McGraw’s original ruling was correct.
The 11 women can now amend their statement of claim with information from the documents.
Susana Mijares Pena, a Toronto-based lawyer who has written about the Hudbay lawsuit, said this ruling marks an important turning point in a case that could reshape the legal paradigm within which Canadian companies operate.
The women’s two lawyers will now have much more evidence to support their argument that Hudbay was liable for negligence, since the documents show that Skye personnel “were fully aware of what was happening” in Guatemala, Mijares said.
More broadly, Mijares thinks that this case and two others against Hudbay being litigated by the same lawyers will make other Canadian corporations more responsible when acting overseas, and in developing nations in particular, by notifying them that Canadian legal principles could be applied to their overseas conduct.
“Now, the Canadian standards that we apply to our corporations will have to apply wherever we go regardless of the political system of how those countries work,” she said.