The indigenous Mayan communities of Guatemala have historically been given few judicial outlets, national or international, to seek justice for human rights violations at the hands of multinational companies operating in their territory. But Angelica Choc, a Mayan Q'eqchi' woman from the small hamlet of La Union in the department of Izabal on Guatemala's eastern coast, has looked to change that. In an unprecedented case, Choc has sued a parent company in its home country for human rights violations committed by its subsidiaries in Guatemala.
"Those who have the money here have the voice," Choc told Truthout. "But I too have rights, and I am struggling for respect and dignity.... This demand is not only mine; it is for all of Guatemala, for all of those who have suffered from the invasions of our territories by foreign companies to extract our natural resources. This demand is historic."
"I'm a rock in their way," she added.
"A new legal risk that mining companies didn't think was there will hopefully prevent harms from happening in the first place."
Choc's husband of 30 years, Adolfo Ich Chamán, was a respected community leader, schoolteacher and outspoken critic of the violation of human rights by mining activities in Guatemala. But on September 27, 2009, Chamán was shot and hacked to death by private security forces of Guatemalan Nickel Company (CGN), the Guatemalan subsidiary of the Toronto-based Hudbay Minerals.
"My husband was a great person, a leader from his community, and an indigenous person," Choc told Truthout through tears. "It hurts to remember. I will never forget him. One day, we will understand; one day, we will accept what happened."
In 2010, Choc and her supporters filed a lawsuit in Canadian courts against Hudbay and two of the firm's subsidiaries, HMI Nickel and CGN, for the wrongful death of her husband at the site of their Fenix mining project near La Union, in the municipality of El Estor. The lawsuit claims that Hudbay acted with negligence in its operations in Guatemala, and failed to provide protocols for its security forces, which were already known for excessive use of force. Hudbay and other mining firms utilize private security guards to protect the properties of the mine, but all too often these forces in Guatemala have taken on a paramilitary like structure due to the presence of former soldiers employed as security guards. Choc's suit seeks $2 million in damages and $1 million in punitive damages.
"Part of our objective is to make [people outside the country] see how foreign companies act in our country," said Isabel Solís, a member of Communities in Resistance of El Estor, who has worked alongside Choc on her case. "It is important for the people of countries such as the United States and Canada to see that the products that they own and that they consume have depended on the death of many people and the violations of human rights. There are great costs within the concept of economic development."
"Angelica's case acknowledges that this is not just a Guatemalan problem, but a Canadian problem taking place in Guatemala."
The firm initially fought to dismiss the lawsuit, claiming that it was unaware of the actions of its subsidiary in Guatemala and maintaining that a parent company could not be held legally responsible for what happens at the site of a subsidiary. But in June 2013, a Canadian court ruled that Choc's case could proceed in the courts and that Hudbay could be sued for human rights violations at the site of its subsidiary CGN in Guatemala.
"That was a major precedent," Cory Wanless, Choc's Canadian lawyer from the Toronto-based law firm Klippensteins, Barristers and Solicitors, told Truthout. "That question had never [been] considered before. It has opened the door, both legally and practically, to other claims. This is one of the things that our clients wanted from the very start. They wanted their lawsuit to be an example, which hopefully prevents what happened to them to happening to other people."
Wanless added, "One thing that has happened now is that there is the creation of a new legal risk that mining companies didn't think was there. It opens up the door to other cases, and will hopefully prevent harms from happening in the first place, by making the companies be more aware of conditions in countries like Guatemala."
Choc's lawsuit in Canada comes at the same time as two other lawsuits against Hudbay by communities affected by the Fenix project. There is a lawsuit by 11 women from the community of Lote 8, who were violently raped by security forces during an extrajudicial eviction in 2007. A suit for the shooting of German Chub Choc, who was paralyzed in the shooting that killed Ich Chamán in 2009, has also been filed.
Challenging the Corporate Structure
Angelica Choc's case against Hudbay in Canada is truly historic. The trial in Canada has paved the way for other indigenous communities to seek restitution for human rights violations by subsidiaries of multinational companies.
"This case has sent shockwaves through the mining industry," said Grahame Russell of the humanitarian organization Rights Action. "This has set the legal precedent that the subsidiaries can be tried for human rights abuses in the home country of the parent company. Angelica's case acknowledges that this is not just a Guatemalan problem, but a Canadian problem taking place in Guatemala."
According to Wanless, Choc's case represents a new era that moves beyond "corporate social responsibility."
"It is no longer possible for Canadian companies to operate in foreign jurisdictions and to think that if something goes wrong that there will not be any consequences," Wanless told Truthout. "Canadian companies and business leaders need to understand that there are real legal risks by not acting responsibly. This is a trend that is continuing to grow, and this case is just the start."
"The state showed it had no interest in defending the interests of the people."
Other lawsuits along these lines have already been filed in Canadian courts. In June 2014, seven men from the community of San Rafael de Las Flores in southern Guatemala filed a civil lawsuit in Vancouver, Canada, against Tahoe Resources for violence against community protesters at the site of the El Escobal mine. The suit charges that the firm was responsible for a shooting by private security at the mine in April 2013, which injured the seven men. The head of security for El Escobal, Alberto Rotondo, was arrested in Guatemala as he tried to flee the country.
A case across the Atlantic, in Eritrea, bears certain similarities to the cases in Guatemala and gains inspiration from Choc's lawsuit.
However, the case in Eritrea is also different in certain ways. According to the lawsuit - filed against the Vancouver, Canada-based mining firm Nevsun Resources on November 20, 2014 - the three plaintiffs claim that the firm utilized slave-like labor practices at the Bisha mine in Eritrea.
The lawsuit states that workers were forcibly kept within the confines of the Bisha property and faced threats if they left without authorization from the management, as well as claims that workers were paid poorly. The plaintiffs also charge that they lived in deplorable conditions and under constant threats and intimidations.
And most recently, a class-action lawsuit was filed against the retail giant Loblaws, based in Brampton, Ontario, over the collapse of a clothing factory in Bangladesh in 2013 that killed more than 1,100 people. The plaintiffs claim that Loblaws was aware that Bangladeshi factories had a history of extremely poor working conditions and industrial standards. Loblaws has defended itself by stating that the claim is "without merit."
"All of these cases have relied on the Hudbay case," Wanless said. "But the Hudbay case itself is a reflection that that times and societal expectations had already changed. The first step was that companies had to start talking about corporate social responsibility. But that is now not enough; if you are going to talk about it, you've got to do it. If you don't, there will be real legal liability."
A Long History of Conflict Over Land
The conflict over the Fenix project began decades prior to the signing of the peace accords that brought an end to Guatemala's 36-year-long civil war. This conflict contains all the themes of the more recent problems sparked by the expansion of mining and other extractive industries in Guatemala.
Hudbay had acquired the struggling Fenix project in 2004 after purchasing Skye Resources, which owned the site and the Guatemalan subsidiary, Guatemalan Nickel Company, at the time. The new owners had hoped to relaunch the mining operations at the site to exploit one of the largest reserves of nickel in the Western Hemisphere. But by acquiring the mine, Hudbay also acquired the bloody legacy of the project - and the surrounding conflict over land.
In 1967, the military was deployed to the region ostensibly to combat the guerrillas, but actually to repress the indigenous communities.
The nickel mine on the shores of scenic Lake Izabal has been a point of conflict since the 1960s. This was during the early years of Guatemala's internal armed conflict, and guerrilla forces had set up camp in the Sierras de las Minas, mountains that ran into the waters of Lake Izabal.
According to Luis Solano, an investigative journalist and expert on the extractive industries of Guatemala, the conflict in the municipality El Estor began a new era of collaboration between the Guatemalan state and business.
"The state showed it had no interest in defending the interests of the people," Solano told Truthout. "Rather the state was going to defend the interests of the business. For the community, it meant oppression for the people who resisted the nickel company in El Estor."
During this time, the US Geological Service sanctioned a study to analyze what natural resources were in the region. They found that one of the largest nickel deposits in the hemisphere ran from the northern shore to the southern shore of Lake Izabal.
A public commission was established to decide whether mining rights would be granted, but after two members of the commission were assassinated for speaking out against the project in the late 1960s, the military-backed regime decided that the mine could advance. In 1966, after assisting in the rewriting of Guatemala's mining law, the mining firm International Nickel Company (INCO) purchased 150 square miles of land to be transformed into an open pit mine that was to be named the Fenix project. It won a 40-year lease at $30,000 per year, which provided that the government would militarily "secure" the region for the mining company.
INCO and its Guatemalan subsidiary were granted rights to exploit the reserve, but in order to begin extraction, the region was to be "pacified." In 1967, the military was deployed to the region ostensibly to combat the guerrillas, but actually to repress the indigenous Q'eqchi' Mayan communities.
A reign of terror fell upon the region, with the first evictions leading to the deaths of 2,500 to 3,000 indigenous campesinos.
During the 1980s, both the military and the company once again targeted community leaders who spoke out against the mining operation. However, INCO was ultimately forced to abandon the project in the early 1980s, after the Guatemalan government imposed a 5 percent royalty on the company.
"The problem was that the nickel was where the communities were."
With the end of Guatemala's internal armed conflict in 1996, many indigenous communities began the process of recuperating their lands. According to Solís, the Q'eqchi' communities around the Fenix project began reclaiming their land at that time. Yet once Hudbay purchased the mining project in 2004, it was once again expanded, bringing the company into conflict with the communities again.
"The mining firm was given new permits for the exploitation of the large nickel reserves by the Guatemalan government," Solís told Truthout. "But the problem was that the nickel was where the communities were."
The government, communities and mining firm then began a dialogue to find a solution to the land conflict. According to Solís, the communities were given the chance to purchase portions of the land that didn't have nickel deposits beneath them.
"The community made two payments," Solís told Truthout. "But when they further read over the final paperwork, they realized that the mining firm had retained the right to evict the communities from their land when they desired any nickel reserves beneath the soil, despite the fact that the community owned the land."
In 2011, Hudbay was forced to sell the mine due to the bad press. The rights to the mine were sold to the Solway Group, a Russia-based mining firm.
Continuation of the War by Other Means
Tensions were high on September 27, 2009, in the Mayan Q'eqchi' communities near the Fenix project nickel mine, after many small communities had been evicted extrajudicially from their land by the mine's private security forces. Adolfo Ich Chamán, Angelica Choc's husband and a well-respected community leader, had heard about the conflict between the private security forces and community members, and went to calm the nerves of the community. But when he arrived at the site of the mine buildings, the security forces led by an ex-colonel attacked and killed him.
Mynor Padilla, the head of CGN's private security forces, had remained free for three years after the shooting, despite orders for his arrest. During this time he was seen driving in a vehicle from Hudbay/CGN, and continued to intimidate the communities near the mine. The Guatemalan National Police finally arrested him in 2012 in El Estor.
According to witnesses, at time of the evictions, the private security forces at the Fenix project had begun to resemble a paramilitary force, with former Army Col. Padilla in command.
"This is a continuation of the war," Solís told Truthout.
Choc's case in Canada hinges on this sad reality of Guatemala: A low-intensity conflict still plays out in rural communities, despite the signing of the peace accords.
The extrajudicial evictions appear much like a military campaign, waged against people that have already suffered terribly.
During one of the evictions in the community of Lote Ocho, 11 women were gang-raped by security forces. Human rights organizations learned fairly quickly about the rapes, but decided to proceed delicately for the sake of the women and their families. Two women from the community, Maria and Marta, worked tirelessly to support the women. And in 2010, the story of the evictions and the rapes became public with the women's lawsuit against Hudbay.
Since the eviction, the community of Lote Ocho has returned to the land that they were evicted from, and are slowly rebuilding their homes. But the community is still vulnerable to future evictions, due to a nickel deposit that lies below their land.
Intimidation and the Struggle Against a Culture of Impunity
Choc faces an uphill battle when it comes to her case in Canada. Meanwhile, in Guatemala, she must struggle against a corrupt legal system and an ingrained culture of impunity.
Guatemala has historically had a high level of impunity, with those who commit violent crimes rarely facing criminal charges, but because of international pressure, impunity has fallen from 93 percent to 70 percent, according to the United Nations sponsored International Commission Against Impunity in Guatemala (CICIG). Even beyond high levels of impunity, Choc's case has been plagued by irregularities and intimidation.
All plaintiffs involved in these cases have been the victims of intimidation and pressure by supporters of Padilla and the offices of CGN to drop the case. During the court proceedings on April 16, this reporter observed men surveying the courthouse in Puerto Barrios. The three men were seen taking photographs of Angelica Choc and her supporters as we left the courthouse.
These intimidation tactics have been accompanied by CGN attempts to coerce the plaintiffs into dropping their case. According to Grahame Russell, this coercion includes offering jobs to the husbands of those who were raped in 2007.
"If this was a straight-up legal battle, then the law would be on our side," Russell told Truthout. "But the mining firm has offered jobs to the families to get them to drop the lawsuit, [though] the jobs never last."
The victims and witnesses have also faced death threats, which supporters of the communities believe come from the Guatemalan subsidiary of Hudbay.
Furthermore, the Guatemalan subsidiary has spared no expense in the defense of Mynor Padilla. The former colonel's defense team includes lawyers Frank Manuel Trujillo Aldana, Carlos Rafael Pellecer López and Francisco José Palomo Tejeda, who had represented former Gen. Efrain Rios Montt during the famous "genocide trial" in 2012. (In 2013, former Gen. Efrain Rios Montt, who came to power in 1982, was found guilty by a Guatemalan court for overseeing the genocide against the Ixil Maya in the early 1980s. But less than a week after the finding, the Guatemalan Congress overturned the judgment stating "there was never a genocide.")
But despite the threats and intimidation, Angelica Choc and her supporters have vowed to continue with their suits.
"Here in Guatemala, they have violated many of our human rights," Choc told Truthout. "But I will continue to cheer for justice."