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On June 18, 2014, several Guatemalan men filed a civil lawsuit in a Vancouver court against Canadian mining company Tahoe Resources Inc. for injuries they suffered when Tahoe’s security personnel opened fire on them at close range. The men, residents of San Rafael Las Flores, where the company’s Escobal mine is located, allege that Tahoe is legally responsible for the violence inflicted on them as they peacefully protested against the mine. The case has now been cleared to head toward trial.
The lawsuit alleges that the shooting was a premeditated attempt by mine security personnel to eliminate resistance to the mine – Tahoe’s lone asset and one that the company has publicly claimed could someday equal the output of the world’s largest silver mine. Despite strong opposition in several Guatemalan communities over concerns about possible environmental impacts and the lack of meaningful consultation with local residents, Tahoe has continued the development of the mine and began commercial silver production in January 2014. In early April 2013, as a form of protest, residents of San Rafael began peaceful stand-ins on a public road running past the mine. The injured men claim that on April 27, 2013, Tahoe security personnel in riot gear emerged from the mine site and opened fire. Even as the men fled, the shooters pursued them down the public road and continued firing.
The case further alleges that Tahoe’s Guatemala Security Manager, Alberto Rotondo, a Peruvian-Italian man who was brought to Guatemala for the Escobal project, ordered the shooting. On April 30, three days after the shooting, Rotondo was arrested at Guatemala City’s airport as he was apparently trying to flee. He has been criminally charged in Guatemala with obstruction of justice, causing serious and minor injuries, and mistreatment of a minor. However, his case has now been suspended because he escaped house arrest in Guatemala and fled to Peru. Some of the shooting victims were civil parties in the Rotondo prosecution in Guatemala. Another member of the security team was also arrested and charged with concealment.
According to the B.C. lawsuit, Rotondo concocted a plan to use force against the peaceful protesters on April 27, fabricated a story that the protesters had attacked mine employees, ordered security personnel to tamper with evidence at the crime scene and tried to flee the country to avoid legal problems.
The B.C. case asserts civil claims against Tahoe for battery and negligence and alleges that Tahoe expressly or implicitly authorized Rotondo’s conduct or was negligent in its management of the security personnel and its oversight of Rotondo. It also alleges that Tahoe knew about widespread opposition to the mine and Rotondo’s conflictive relationship with the local community. The lawsuit states that this included a previous incident in which Rotondo threatened members of the community and another incident in which he recommended a legal and public denunciation campaign against those opposed to the mine, including the Catholic Church.
On May 2, 2013, just five days after the shooting, the Guatemalan government initiated a state of siege and sent thousands of soldiers and police into the department of Santa Rosa, including the claimants’ hometown of San Rafael Las Flores, where the Escobal mine is located. The siege resulted in the suspension of civil liberties, including the right to protest, and gave greater search and seizure powers to police and military.
This was the first civil suit in B.C. against a Canadian mining company concerning violence in another country. A second B.C. case, against Vancouver-based Nevsun Resources, has been cleared to move to trial. In addition, three lawsuits against HudBay Minerals Inc. for alleged abuses in Guatemala are moving toward trial in Toronto. In 2013, the judge in those cases ruled that a Canadian parent company may be held directly responsible for its own negligence in failing to prevent abuses by security personnel in connection with overseas operations.
Although the Supreme Court of British Columbia initially stayed the case under the legal doctrine of forum non conveniens, stating that the case should instead be heard in Guatemala, in January 2017 the BC Court of Appeal overturned that decision and reinstated the case, clearing it for trial. The Court of Appeal ruled that several factors, including evidence of systemic corruption in the Guatemalan judiciary, pointed away from Guatemala as a preferable forum, thereby keeping the case in British Columbia. The court concluded that “there is some measurable risk that the appellants will encounter difficulty in receiving a fair trial against a powerful international company whose mining interests in Guatemala align with the political interests of the Guatemalan state.” The ruling represents the first time that a Canadian appellate court has permitted a lawsuit to advance against a Canadian company for alleged human rights violations committed abroad.
The claimants in the case against Tahoe are supported in Canada by a legal team comprised of Vancouver law firm Camp Fiorante Matthews Mogerman (CFM) and CCIJ. In Guatemala, they are represented by the Guatemalan Centre for Legal, Environmental and Social Action (CALAS).
B.C. Supreme Court
Court of Appeal