UNBC will be screening a film tonight documenting the struggle of the Maya Q'eqchi people of Guatemala against a Canadian mining company - a struggle which has resulted in three landmark Canadian lawsuits alleging murder, gang rape and violence were used to evict indigenous people from their land.
Defensora - "defender" in Spanish - focuses on allegations stemming from two incidents in 2007 and 2009, that were first documented by members of the UNBC Guatemala Research Group -led by UNBC professor Catherine Nolin - during a field school trip to the impoverished Central American country in May 2010.
UNBC will be hosting a screening of Defensora tonight at 7 p.m. at the Canfor Theatre.
Partially as a result of Nolin and her students' work, three lawsuits have been launched in Ontario Superior Court against Hudbay Minerals Inc. and its subsidiaries HMI Nickel Inc. (formerly Skye Resources Inc.) and the Guatemalan company Compaia Guatemalteca de Niquel SA (CGN) - of which HMI Nickel owns 98.2 per cent and the Guatemalan government 1.8 per cent.
Hudbay, HMI Nickel and CGN have denied all the allegations in the lawsuits, which have not been proven in court.
"This summer the judge ruled that yes, indeed, their cases will be heard in Canadian court," Nolin said. "The legal community has said it's precedent setting. Small communities [outside Canada] who are damaged by our companies have recourse in Canadian courts."
On July 22 Ontario Superior Court Justice Carole Brown dismissed three motions by Hudbay's legal team to prevent the cases from being heard in court. Hudbay's lawyers had argued that corporations can not be held legally liable for the actions of subsidiary corporations, that the statute of limitations had passed in the 2007 case and Canadian courts have no jurisdiction over CGN - a Guatemalan company - acting outside Canada.
Filmmaker Rachel Schmidt said she began working on Defensora after hearing about the lawsuits and being, "shocked about the allegations" against a Canadian company. (See sidebar for details.)
Schmidt said she wanted to give the members of the Maya Q'eqchi a chance to tell their side of the story and "empower them on a global stage."
"Film can be a very powerful medium,” Schmidt said. "This is a nickel mining story that goes back 50-60 years. It's not something new... I wanted to explore and understand Canada's role."
A Toronto-based law firm, Klippensteins, launched the lawsuits on behalf of the Maya Q'eqchi members. Combined, the lawsuits are seeking $79 million in damages from Hudbay Minerals and its subsidiaries for alleged negligence.
Nolin said it was critical to bring the cases forward in Canada, rather than rely on the weak Guatemalan justice system. No charges have ever been laid in the shootings or the alleged gang rapes in 2007.
In a February 2007 report to the United Nations, Philip Aiston - special rapporteur on extrajudicial, summary or arbitrary executions - found only 1.4 per cent of murders in the country in 2005 resulted in a conviction.
A second UN report in February 2009 cited “a general climate of impunity" in the country
and that only four per cent of crimes ended up before the courts.
"If the case could be heard in Guatemala, they should be held in Guatemala," Nolin said. "[But] what people will find is that this is not just a Guatemala, far-away problem. This is a Canadian problem. These are decisions that are made in Canadian boardrooms. We have the ability to say these actions are not acceptable."
In statements issued by Hudbay, the company has denied wrongdoing in a 2009 incident in which two people were were shot - one fatally - and said it did not have an interest in the mine in 2007 when the alleged gang rapes occured.
In 2007 the project was owned by Vancouver-based Skye Resources Inc. Hudbay purchased Skye Resources on Aug. 26, 2008 and converted it to a wholly-owned subsidiary called HMI Nickel.
"In 2007, a group of illegal squatters began occupying an area of the project lands owned by CGN known as Area 217," a Hudbay statement says. "On Sunday, Sept. 27, 2009, a meeting was held between the regional governor and local residents of Las Nubes to persuade the remaining illegal occupants to comply with the agreement and return to their homes in the village. No evictions were carried out and none were threatened or intended."
After negotiations broke down, there was a series of attacks on the governor's motorcade, the gate on a private road to the mine site and newly-constructed homes on CGN's property, Hudbay's statement said.
"Throughout the attacks, CGN personnel showed restraint and acted only in self defence. CGN has confirmed that five of its security personnel were injured during the violence, one requiring emergency transport to Guatemala City for medical treatment," Hudbay wrote. "Unfortunately, a protester (Adolfo Ich Chaman) died as a result of wounds sustained that day. Based on internal investigations and eye witness reports, Hudbay and CGN are confident that CGN personnel were not involved in his death."
A spokesperson for Hudbay Minerals could not be reached for comment as of press time. On Sept. 9, 2011 the company sold its interest in the Fenix project to the Solway Group for $170 million.
Hudbay said in a previous statement that the company worked with the local community while it owned and operated the project, employing 200 people - directly and indirectly - and funded projects including a school, water delivery system and storage tank, improving roads and building pads for new houses and providing building material.
"Hudbay Minerals and CGN are saddened by the injuries and loss of life that occurred in the El Estor area and are primarily concerned with ensuring the safety and security of all local residents and employees," the statement said.
"The majority of residents in the area support CGN outreach efforts, investments in the local community and the ultimate development of the Fenix project. A petition delivered to government authorities was recently signed by more than 3,000 individuals and 86 businesses from the community that condemns protester attacks and requests that the Guatemalan government intervene to prevent violence of this kind. Hudbay Minerals and CGN remain committed to working with local residents to negotiate a fair and equitable solution to resettlement of those illegally occupying CGN lands."
According to Brown's ruling, the dispute between the Canadian-owned company of the Maya Q'eqchi stems from mining permits issued by the former military government.
A Canadian mining company called Inco, now called Vale, started construction of the mine, located near El Estor, Guatemala, in 1965 and operated it from 1977 to 1980 when low nickel prices shut it down.
"At all material times, the defendants [Hudbay and its subsidiaries] maintained that they had a valid legal right to this land, while the Mayan communities claimed that the Mayan Q'eqchi were the rightful owners of the land, which they consider to be their ancestral homeland," Brown wrote. "On Feb. 8, 2011 the Constitutional Court of Guatemala, the highest court in the country, ruled that Mayan Q'eqchi communities had valid legal rights to the contested lands and ordered the government of Guatemala to formally recognize the community's collective property rights."
Nolin said she and some of the eight students from the group which first documented the allegations by members of the Maya Q'eqchi have continued to stay involved in their case.
Nolin and a group of students returned to visit the Maya Q'eqchi during the 2012 field school trip to Guatemala, and Nolin was in El Estor in October, 2012 while Schmidt was filming the documentary.
"I helped prepare them to travel to Toronto to testify," Nolin said. "For many of them they were leaving the country for the first time."
Schmidt said while Nolin doesn't appear in the film, the research and work done by her and the UNBC students helped provide context and background for the film.
"Catherine even helped us on the set," Schmidt said. "She was holding the reflector [to help light a scene.]"
Schmidt said there are lessons to be taken from the film, not just about how Canadian companies conduct themselves abroad, but about how natural resources companies relate to aboriginal groups in Canada as well - something with particular significance in northern B.C. with multiple natural resource megaprojects under development.
Defensora made its Canadian debut on Saturday and screenings are scheduled across Canada. Schmidt said she hopes the film will be used as an educational tool by human rights groups and universities, and is looking for a broadcaster to air the documentary on TV.
“The film really is a tool for action," she said.