"Blood diamonds" or coltan mines that fund armed groups in Democratic Republic of Congo are notorious examples of the hegemony and the impunity of extractive multinationals who enriched themselves at the expense of gross human rights violations. Local or indigenous people are left vulnerable whereas powerful transnational actors benefit from irresponsible or weak legal systems. However, the growing number of prosecutions conducted by Mayan communities in Guatemala against some Canadian firms tend to demonstrate that legal weapons can prevent violations of human rights and make their claims heard.
Since April 16th 2015 in Guatemala, peaceful demonstrations involving all actors of civil society have invaded the public space to fight against rampant corruption, and to demand justice and change.
Reversing the law of the strongest
This news reflects a quieter struggle for justice and human rights led by some representatives of indigenous communities. It is the announcement of the lawsuit filed in 2010 against the parent company, HudBay Minerals for the actions of its subsidiaries in Guatemala that resulted in the death of Adolfo Ich, the shooting of German Choc Chub, and the rapes of 11 Q’eqchi women that marked a turning point in the unprecedented impunity and collusion culture with companies that prevails in Guatemala. Angelica Choc, a Mayan woman from the tribe Q'eqchi, sued the Guatemalan subsidiary Guatemalan Nickel Company (CGN) for the killing of her husband through its private security forces. Her husband was a community leader, a teacher and an advocate for the rights of the Maya in this region who opposed these mining projects. Angelica Choc told the independent newspaper Truthout its willingness to make a difference in an article published on May 22, 2015:
"Those who have money here, have a voice. [...] But I also have rights, and I am fighting for respect and dignity. This application is not only mine, it applies for all of Guatemala, for those who suffered from the invasion of our territories by foreign companies to extract natural resources. This request is historic."
Hudbay Minerals originally thought it would reject the lawsuit claiming not to have been aware of the conduct of its subsidiary, and therefore suggesting it was not legally liable. However, in June 2013, a Canadian court concluded that Choc’s complaint was admissible and HudBay could be brought to justice for violations of human rights committed on the site of the CGN subsidiary in Guatemala.
Acknowledging a dual responsibility
Numerous NGO representatives emphasized both the responsibility of states in which businesses are established but also the collusion of states where abuses occur. Choc’s case is just one example among many others and reflects a situation of human rights violation that has been lasting for years. This reality had already been denounced in a report by Amnesty International, entitled "Mining in Guatemala: Rights at Risk," published in 2014. This report highlights the potential negative impacts of mining development on water and indigenous people’s livelihoods, the failure of home-states of multinational mining companies to regulate the human rights performance of their companies overseas, and the ways in which companies fail to live up to their human rights responsibilities. In addition, it reports years of violence, assassinations and threats against the protesters and community leaders daring to confront these multinationals.
Based on this report, both the independent journalist Jeff Abott and Cyril Mychalejko insist that the culture of impunity prevailing in Guatemala and Canada has created "state and corporate violence against communities and individuals resisting mining projects, resulting in murders, assassination attempts, rapes, land grabs, displacements and other forms of violence that were also prevalent during Guatemala’s bloody internal conflict.” Moreover, it also denounces how the Canadian and Guatemalan governments and Canadian multinationals have failed to consult and seek the consent of affected indigenous communities.
Failure to consult indigenous communities
These cases reveal the failure or refusal of the Guatemalan government to consult indigenous peoples for extractive projects, thus constituting a violation of their rights. According to four pieces of legislation: the Agreement on Identity and Rights of Indigenous Peoples contained in the Guatemala Peace Agreements, the Inter-American Convention on Human Rights, Convention No. 169 of the International Labour Organization and the UN Declaration on the Rights of Indigenous Peoples, the Guatemalan government has the obligation to respect the right of indigenous peoples to free consent and prior notification for any project that might affect them negatively. They should therefore consult them before issuing permits for exploration or exploitation of natural resources. Furthermore, Articles 1, 66 and 67 of the Guatemalan Constitution stipulates that the government has a responsibility to respect and protect their collective property rights.
The right of being consulted or "consulta" that results from a participatory decision-making process between Mayan communities has always been the privileged instrument for dialogue between these communities and the government. Similarly, the Municipal Code of Guatemala contains a provision which allows residents of municipalities to hold referenda on issues of importance to their community. However, the local defense organization of the indigenous territory Consejo de los Pueblos Occidentes (CPO) emphasized the government's desire to limit the advisory power of the Maya peoples. In 2005, despite the unanimous opposition to a mining project filed in Congress by the Guatemalan indigenous community of Sipakapa, the government authorized the Canadian company Goldcorp to pursue mining activities on indigenous territory.
"Continuity of war by other means"
This ambiguous position of the Guatemalan government reflects the existence of a battle for land against the indigenous population, which has been ongoing for decades. Since the 60s, Guatemala witnessed clashes between paramilitary groups defending at first American mining interests (and later Canadian ones), and guerrillas representing Mayan communities. Despite the end of the civil war in 1996, Q'eqchi communities have not fully taken possession of their land. The authorization given in parallel to HudBay in 2004 to exploit nickel mines on indigenous lands merely intensified tensions. In 2009, many communities had suffered extrajudicial evictions sponsored by the mine security forces. At the same time, Mynor Padilla, head of CGN security forces and allegedly responsible for the death of Angelica Choc’s husband, was seen driving a company vehicle despite its arrest warrant, while continuing to intimidate local communities. According to the latter, the security forces have taken the form of a paramilitary force, merging with the former army general in power. Those repeated evictions were accompanied with the gang rape of 11 women in 2007.The forced eviction was carried out under the former owner of the project, Skye Resources. HudBay purchased the mine license and inherited the liabilities of Skye, which include the gang rapes committed earlier. These events are symptomatic of a low-intensity conflict where the security forces resemble a paramilitary group, supposedly tolerated by the Government of Guatemala.
Despite continuing abuses against indigenous communities and the complicity of the Canadian and Guatemalan Governments, Angelica Choc’s lawsuit marks a precedent against the impunity of Canadian multinationals. It should be noted that 50 to 70% of the mining activity in Latin America is carried out by Canadian companies. It was therefore important for Canada to take a clear stand towards its businesses and give voice to local communities. This historic event has enabled these communities to seek compensations from the subsidiaries of the multinationals. Grahame Russell from Rights Action, a humanitarian organization, recognizes that this case sends a strong signal to the mining community. This action opens the door to lawsuits against subsidiaries in their host country for abuses committed abroad.
This judicial bomb also enhanced citizen awareness. Isabel Solis, member of the organization "Communities in Resistance of El Estor," said Choc’s trial allowed Americans and Canadians to be aware of the origin and manufacturing conditions of the products they consume. It also underlines that purchasing these products can contribute to people’s deaths and to human rights violations. This process was the result of hard work by the plaintiff’s legal team, the plaintiffs themselves, as well as many NGOs such as Amnesty International Canada, Rights Action, Breaking the Silence and others.
Multiplications of prosecution: the Tahoe case
Choc’s case has paved the way for other similar cases before Canadian courts including the Tahoe case. In June 2014, seven men from the community of San Rafael Las Flores, south-east of Guatemala filed a civil suit in Vancouver, Canada, against Tahoe Resources for acts of violence against demonstrators at the mine site El Escobal. The firm is accused of being responsible for attacks perpetrated by private security forces of the mine in April 2013, which seriously injured the seven men. The security chief, Alberto Rotondo, was arrested in Guatemala while trying to flee the country whereas Carlos Roberto Morales Monzón, the legal representative and the management of the subsidiary Tahoe, was arrested in April 2015 for charges related to industrial pollution. The cases against Rotondo and Monzon are being tried in Guatemala.
Amnesty International Canada has been actively monitoring the progress of the trials and supporting communities whose human rights have been harmed. In an interview with CIPADH, Tara Scurr, Amnesty International Canada Business and Human Rights Campaigner, explained how her office had mobilized public opinion and policy makers by calling on members to demand the Guatemalan government to put in place a moratorium on issuing new mining licenses and to ensure justice for people who have been attacked, threatened or killed for speaking out against unwanted development. Activists at Amnesty International have also lobbied the Foreign Affairs representatives, Guatemalan ambassadors, bankers, investors and shareholders of the companies operating in Guatemala. Despite this commitment, the shareholders did not vote for a resolution penalizing Tahoe. In addition, indigenous activists in Guatemala continue to resist threats and intimidation aiming to force them to drop charges. This strategy to limit the territorial claims of these communities has been highlighted by Tara Scurr in the case of community consultation done by Tahoe. She explained that community consultation processes in Guatemala are inadequate for a number of reasons. Consultation processes are only required as part of a company’s Environmental Impact Assessment (EIA), a process required in order to seek a permit from the Ministry of Environment and Natural Resources (MARN). There is very little guidance to companies about how to consult affected communities. Companies often provide information to communities about the potential benefits of mining, such as jobs or significant overseas expertise, but share little in the way of potential negative impacts. Questions about impacts on water or livelihoods are often ignored. Another problem identified by Amnesty International is that the final EIA was not accessible to the population (because only available from the Department of Environment and Natural Resources), nor was it comprehensible due to the length and complexity of the document. Currently, the public has a period of 30 days in which to comment on or register opposition to a company’s EIA submission. Reforms to the current law which were proposed, but not yet passed by the current government, would reduce that time from 30 days to 10. These elements do not play in favor of better information or of a better respect for the rights of communities by the government or by companies.
However, a positive fact appears to be the presence of Canadian actors supporting the work of indigenous communities seeking justice and reparations. An example is the Canadian Centre for International Justice (CCIJ), whose mission is to help people with close relationships to victims who died or suffered serious violations of human rights or are unable to defend themselves. Besides its mandate to provide information, assistance and guidance to victims of human rights violations or to their families, the center must compile the cases and bring them to the attention of the Government of Canada or other authorities. Thus, the seven plaintiffs in the case against Tahoe in Canada are assisted by a legal team composed of several law firms and the CCIJ.
Towards a social responsibility of multinationals?
This article tries to convey that there are several ways to spur companies to respect human rights abroad and to hold them accountable for their failure to do so. A first strategy is to engage investors so as to pressure companies to change their policies and practices in order to bring them in line with their human rights responsibilities. Investors who are unsatisfied with a company’s response to human rights violations will withdraw their support from the controversial company. Indeed, following the publication of the 2014 annual report from the Norwegian government's Council on Ethics, the Pension Fund of the Norwegian government decided to exclude Tahoe from the companies eligible for investment because of the human risks caused by its activities.
A second solution lays on the development of binding international instruments and legislation on corporate social responsibility. A report from Amnesty International, Switzerland, published in June 2015, refers to this international dynamic. The publication mentions the UN Guiding Principles on Business and Human Rights, which were adopted unanimously by the Human Rights Council in 2011. Member states attributed a duty on States to ensure companies’ activities fully respect human rights, but also a "reasonable duty of care" to businesses that engage their responsibility and finally the introduction of legal institutions for victims to claim remedies. The implementation process of these principles at national level is underway in 25 countries and is integrated into the OECD Guidelines for multinationals.
Nevertheless, the effectiveness of these processes should be questioned as the impunity of multinationals remains the norm. In April 2014, the Inter-American Human Rights Commission (CIDH) presented an overwhelming report entitled "The impact of the Canadian mining industry in Latin America and Canada's responsibility" that highlights the growing role of Canadian mining companies in the perpetuation of human rights violations in Latin America. Furthermore, the report states that Canadian companies exploit weak legal systems in the countries of Latin America but also in Canada, while trampling the rights of indigenous peoples, international human rights and principles of social responsibility, including in protected areas. Sadly the recommendations made by the IACHR (Inter-American Commission and Court on Human Rights) to establish "precautionary measures" by suspending the activities of the company Goldcorp around 18 communities have not resisted political pressure and the institution was forced to reconsider its decision. The IACHR withdrew its call to suspend operations at the Marlin mine for the duration of its investigation. However, other recommendations regarding the provision of potable water to affected communities and the guarantee of security still remain. Communities continue to press for the government to ensure the remaining measures are implemented. Again, the lobbying power of economic interests takes precedence over the decisions of transnational human rights actors despite the hopes raised by international treaties.
Research assistant at CIPADH
Bureau du Haut-Commissaire des Nations Unies pour les droits de l’homme, « A Guatemalan awakening: the revolt for justice and change. » 8 juin 2015. http://www.ohchr.org/EN/NewsEvents/Pages/AGuatemalanawakening.aspx#sthash.brtIZ4QY.dpufhttp://www.ohchr.org/EN/NewsEvents/Pages/AGuatemalanawakening.aspx, consulté le 10 juin 2015
J. Abbott, “In Guatemala, Indigenous Woman Sues Multinational Company for Husband's Murder” dans Truthout, 22 mai 2015. http://www.truth-out.org/news/item/30832-in-guatemala-indigenous-woman-sues-multinational-company-for-husband-s-murder, consulté le 25 mai 2015
Amnesty International, « Guatemala: Mining in Guatemala : Rights at Risk.” 2014 http://www.amnesty.ca/sites/default/files/mining-in-guatemala-rights-at-risk-eng.pdf, consulté le 25 mai 2015
C. Mychalejko & teleSUR, « Guatemalan Government, Canadian Mining Industry Responsible for Violent Conflicts” dans Truthout, 8 octobre 2014. http://www.truth-out.org/opinion/item/26695-guatemalan-government-canadian-mining-industry-responsible-for-violent-conflicts, consulté le 25 mai 2015
J. Abbott, “Guatemala's Indigenous People Fighting Back Against Exploitation by Multinational Mining Companies.” Dans Alternet, 7 janvier 2015, http://www.alternet.org/guatemalas-indigenous-people-fighting-back-against-exploitation-multinational-mining-companies, consulté le 25 mai 2015
J. Abbott, “In Guatemala, Indigenous Woman Sues Multinational Company for Husband's Murder”. Ibid.
D. Hill, “Canadian mining doing serious environmental harm, the IACHR is told” sur Goldcorp out of Guatemala, 14 mai 2014, https://goldcorpoutnews.wordpress.com/2014/05/14/canadian-mining-doing-serious-environmental-harm-the-iachr-is-told/, consulté le 27 mai
J. Abbott, “In Guatemala, Indigenous Woman Sues Multinational Company for Husband's Murder”, Ibid.
T. Scurr, “Tahoe AGM: will investors reject ‘business as usual’?” Amnesty International, Canada, 8 mai 2015. http://www.amnesty.ca/blog/tahoe-agm-will-investors-reject-%E2%80%98business-as-usual%E2%80%99, consulté le 27 mai
Council on Ethics for the Government Pension Fund Global, “Annual report 2014”, 31 Décembre 2014 http://etikkradet.no/files/2015/01/Council-on-Ethics-2014-Annual-Report.pdf, consulté le 2 juin 2015
Amnesty International Suisse, « Entreprises responsables. Vers de meilleures pratiques.» dans Amnesty. Le Magazine des droits humains. Numéro 81 juin 2015
Site web Goldcorp out of Guatemala. « Retroceso en decisión de comisión: una señal de alerta para los defensores de los derechos humanos en América, no una muestra de responsabilidad de Goldcorp ». 6 janvier 2012. http://goldcorpoutofguatemala.com/2012/01/06/retroceso-en-decision-de-comision-una-senal-de-alerta-para-los-defensores-de-los-derechos-humanos-en-america-no-una-muestra-de-responsabilidad-de-goldcorp/, consulté le 2 juin 2015