As the widow of a slain Mayan community leader looked on, lawyers clashed in a Toronto courtroom on Tuesday over whether a Canadian mining company, HudBay Minerals Inc., can be held liable for alleged violence at a Guatemalan mine owned by a subsidiary.
Lawyers for HudBay, who are trying to have the case tossed out, say allowing it to proceed would "wreak havoc" with the well-established corporate law principle that parent companies are not liable for the actions of their subsidiaries. They also claim it would encourage "meritless" cases against other mining companies.
"They are trying to change the law," HudBay lawyer Robert Harrison told court Tuesday on the second day of a two-day hearing on the firm's motions to have the case thrown out.
Lawyers for the plaintiffs, and Amnesty International Canada, which intervened in the case, denied their arguments are radical. They argued that HudBay itself can be held liable for alleged negligence in the case, alleging the company's executives made key decisions "on the ground" for its subsidiary about its security guards, relations with nearby indigenous people, and the "forced evictions" of Mayan protesters who claim the mine's land as their own.
The judge, Madam Justice Carole Brown of the Ontario Superior Court, reserved her decision.
HudBay is facing three lawsuits grouped together demanding tens of millions of dollars in damages after clashes between protesters and security forces at the Fenix nickel mine in 2007 and 2009. The allegations have not been proven. HudBay has since sold the mine.
In one case, a local Mayan community leader who spoke out against the mine, Adolfo Ich Chaman, was allegedly snatched by mine security guards and beaten, hacked with a machete and shot in the neck and killed. Another man was shot and is now in a wheelchair. And 11 women were allegedly gang raped by men in mine security uniforms.
HudBay has denied all the allegations, and posted its own version of events on its website that blames protesters for some of the violence. The former head of security for the mine was arrested last year in connection with the killing.
The dead man's widow, Angelica Choc, a 47-year-old mother of five who flew to Toronto for the hearing, had a translator who whispered the arguments in her ear during the proceedings.
"I have come a long way, but I have come here because of the things that happened to us. We've come in search of justice," Ms. Choc said in an interview through a translator.
The hearing comes after a series of similar allegations against Canadian mining firms in recent years. It also comes amid increased attention to corporate social responsibility in the industry.
No similar lawsuit has made it past the preliminary stages.
One of the plaintiffs' lawyers, Cory Wanless, told the court HudBay knew the mine's security forces were unlicensed and armed with unlicensed firearms – including 34 shotguns – and were hired without a written contract.
Mr. Wanless argued the risks posed by the mine's security were foreseeable: "HudBay sent untrained, unsupervised men with guns … into a land conflict … They did this in a country where, unfortunately, violence is not the exception, it's the norm."
But Mr. Harrison argued that the very allegations suggest HudBay could not have foreseen what happened, since the alleged killing, shooting and gang rapes were deliberate acts and not the result of merely "nervous guards."