Tuesday, March 1, 2011

Adolfo Ich and Canada's HudBay Minerals

By Project Accompaniment Quebec Guatemala

The extractive industry in Guatemala has long been a source of controversy and the role of Canadian companies in the ongoing situation is widely known. Canadian companies in the region are numerous, from Goldcorp's Marlin mine, to iron exploration on the southern coast by G4G Resources, to the work-in-progress silver mine near San Rafael de las Flores by Tahoe Resources. Questions of indigenous autonomy, land rights, environmental effects and community conflict surround nearly every mining project in the country.

It is Canadian company HudBay Minerals in the municipality of El Estor, department of Izabal however that is the source of the latest development in the ongoing story of the mining industry in Guatemala. On December 1st of last year, Angelica Choc, the wife of murdered indigenous leader Adolfo Ich Chamán filed a lawsuit in a Toronto court against HudBay Minerals seeking general and punitive damages in the amount of $12 million for the death of her husband. The civil suit which is being represented by Toronto's Klippensteins, Barristers & Solicitors alleges that wrongful actions and omissions by HudBay Minerals and its Guatemalan subsidiary Compania Guatemalteca de Niquel (CGN) led to Adolfo Ich's death on September 27, 2009. The company has denied involvement in the death but has insisted that they are cooperating fully with the investigation in order to apprehend those responsible.

Since the 1960s the Canadian mining industry has been active in the El Estor region when Inco was first granted nickel mining rights to the area. But there has been conflict over land ownership since the beginning, with local indigenous communities expressing outrage over claims by the Guatemalan government and Canadian companies that the lands they are living on do not belong to them. Although the evictions began in the 1960s with the opening of the mine, more recently in 2006 and 2007 Skye Resources (now HMI Nickel Inc., a Canadian shell company and subsidiary of HudBay) was accused in conjunction with Guatemalan police and military forces of having evicted hundreds of indigenous peasants from a number of communities in the El Estor region. Homes were burned during the evictions and in one community there are allegations of gang rape by the governmental and private security forces.

Whether the company owns legal title to the lands also remains unclear but according to a 2007 report by the UN's International Labour Organization (ILO) the Guatemalan government had broken international law by granting Skye Resources their mining rights to the area in the first place, without first consulting the local population (a violation of the ILO's convention 169, concerning indigenous and tribal peoples in independent countries). Despite the ruling however, government forces have continued to pressure local communities to leave the lands in question in order to open them up for mining activities.

The current court case however focuses solely on events that occurred on Sunday, September 27, 2009. According to reports, the governor of the department of Izabal, Luz Maribel Ramos, accompanied by members of the National Civilian Police and members of a private security company employed by CGN arrived in the community of Las Nubes that day. Residents claim that despite the lack of any legal documentation or an eviction order, they insisted that the families leave the community immediately. Company officials say that the governor had arrived only to dialogue with the community about how to resolve their illegal occupation of the lands. Regardless of intent, the presence of the officials resulted in protests by members of neighbouring communities in El Estor in favour of their land rights and against the public officials and security personnel.

Adolfo Ich, a well-known teacher and community leader from the neighbouring community of La Union, was already known to the government authorities and to CGN as approximately two weeks earlier he had organized a meeting between municipal, departmental, and national governments with local communities in El Estor to discuss their land rights. When in the afternoon gunshots were heard coming from a CGN-owned building close to his home, Adolfo Ich went to investigate and tell those nearby to evacuate the area, including several children. On arrival he was recognized as a community leader by the head of security for CGN, Mynor Padilla. Padilla said they'd been looking for him and invited him to come and talk with them in order to restore calm. Witnesses then allege that as Adolfo Ich approached the security forces several grabbed him and started beating him, while others attacked him with machetes. Following that, they allege that Mynor Padilla approached and shot him in the head at close range. He later died of his wounds. Seven other members of the neighbouring communities were also injured by gunfire that day and the following day as they drove to denounce the situation in Coban, some seriously.

According to Sergio Belteton, lawyer with the Comite de Unidad Campesina (CUC) and Angelica Choc's legal representative in Guatemala, an official from the public prosecutor's office arrived in the community the day after the death. Following the investigation, in December 2009 an arrest warrant was issued for Mynor Padilla. However despite five material witnesses to the crime and the outstanding arrest warrant, not only is Padilla still free but he remains employed by CGN. Sadly, this is an all-too-common occurrence in Guatemala where the impunity rate for crime is a staggering 98% according to the UN appointed International Commission Against Impunity in Guatemala (CICIG). In a country where only 2% of crimes even make it to court it is not surprising that the Ich/Choc family has been forced to seek an alternative venue for justice in the death of Adolfo Ich.

While the lawyers from Klippensteins hope that this will be a precedent-setting legal case for Canada, the events underline the pressing need for Canadian legislation to monitor and regulate the activities of Canadian corporations operating in countries where the existing legal framework may be incapable of bringing justice to victims of abuse. They expect the case to take years to make its way through the courts and in the meantime there is still no effective means for affected communities in developing countries to make their voices heard when their rights are put at risk.

With the narrow defeat in the fall of John McKay's Bill C-300, which would have provided a forum for foreign citizens to bring claims against Canadian extractive companies for abuses committed in the host country, attention is now passing to Peter Julian's Bill C-354. The aim of this bill is to hold all Canadian-based companies accountable for human rights violations, regardless of where they occur. However just as there was significant opposition from mining industry representatives to Bill C-300, there will surely be opposition to Bill C-354. The industry insists that corporate social responsibility initiatives are the way to achieve justice and respect for human rights in foreign countries, a claim which remains hotly contested by the proponents of government-imposed legal measures.

It remains to be seen what will come of the Adolfo Ich case in Toronto courts. HudBay's response to the suit has been to request that the Ontario courts have the case transferred to Guatemala. However with the endemic problems in Guatemala's judicial system and the stagnation of the existing legal case there, it is a near certainty that if the Ontario courts agree to transfer the case it will mark its end. In the meantime, HudBay and CGN will continue towards establishing their nickel mining presence in the area.

For more information, visit the website set up by Klippensteins regarding the case: