BC Court of Appeal Ruling: A Breakthrough for Corporate Accountability for Human Rights
In a precedent-setting ruling for human rights defenders, British Columbia’s Court of Appeal has ruled that a lawsuit against Tahoe Resources for the violent repression of a peaceful protest in Guatemala in 2013 may advance in Canada. The decision is a victory for seven Guatemalan men who suffered multiple gunshot wounds when they were allegedly shot by company security forces while peacefully protesting outside the entrance to the Escobal silver mine.
“The ruling sends a clear message that Canadian companies operating abroad can and should be held accountable for allegations of human rights abuses in their operations overseas,” said Tara Scurr, Amnesty International Canada’s Business and Human Rights Campaigner. “For the first time in BC, a parent company will be called to answer for claims that human rights abuses were committed at one of its overseas operations. This is great news for corporate accountability in Canada”.
Initially, a lower court judge agreed with Tahoe Resources that the legal doctrine of forum non conveniens meant that the plaintiffs must pursue their case in Guatemala, a country with well-documented shortcomings in ensuring access to justice for victims of human rights violations. . However, the Appellate Court concluded that the lower court judge had made a number of errors, including a failure to consider the measurable risk that the plaintiffs would have difficulty seeking justice against a powerful company “whose mining interests in Guatemala align with the political interests of the Guatemalan state”.
Amnesty International, which was an intervener in the appeal, had argued that the lower court judge’s reasoning in deciding not to exercise jurisdiction failed to take into account the power imbalance in transnational lawsuits involving allegations of human rights abuses by powerful corporations. Here that imbalance pitted individuals who were mainly low income farmers against one of the most powerful mining companies in the country.
The court accepted new evidence that Tahoe’s former Head of Security, Alberto Rotondo, who was facing criminal charges in Guatemala for his order to fire on the protestors, had escaped police custody shortly before he was due to stand trial. Rotondo fled to his native Peru where he was a fugitive until being captured by police. He is currently facing extradition to Guatemala, a process that could take years. Rotondo’s escape was an important factor in the court’s ruling.
The appeal judges also noted that the lower court judge did not pay enough attention to the “highly politicized environment surrounding the government’s permitting of a large foreign owned mining operation in rural Guatemala” when considering evidence concerning endemic corruption.
Importantly for other cases, the Court rejected the judge’s test for assessing the risk of unfairness in a foreign jurisdiction. The lower court judge had applied a test of whether the foreign court was “capable of providing justice”. The BC Court of Appeal instead adopted a more stringent test of “whether there is a real risk of an unfair process in the foreign court”.
“For too long and in too many countries, the Canadian resource industry has been associated with serious human rights abuses, while individuals and communities who suffer the abuses have been denied avenues to pursue justice and accountability,” says Alex Neve, Secretary General of Amnesty International Canada. “The Appeal Court’s decision means that these seven men are at long last one step closer to justice for the harms they have endured. However, leadership is urgently needed from the federal government to provide a pathway to justice and accountability for other individuals and communities around the world who experience human rights abuses due to the operations of Canadian extractives companies. It is time to appoint an Ombudsperson for human rights complaints related to this enormous Canadian industry.”
In its 2017 Human Rights Agenda for Canada, Amnesty International recommended the federal government establish a mandatory extractive-sector Ombudsperson in Canada with the power to independently investigate complaints and make recommendations to both companies and the Government of Canada.
In its 2015 review of Canada’s human rights record the UN Human Rights Committee similarly called on Canada to “establish an independent mechanism with powers to investigate human rights abuses by corporations abroad; and develop a legal framework that affords legal remedies to people who have been victims of activities of such corporations operating abroad.” Similar recommendations were made during 2016 reviews carried out by the UN’s Committee on Economic, Social and Cultural Rights and Committee on the Elimination of Discrimination against Women.
The government has yet to act on a Liberal Party pledge during the 2015 federal election to establish an Ombudsperson.
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