“It pains me to tell you that the image of Canada is severely damaged”

Alvaro Sandoval is a Guatemalan who knows all too well what it is like to be attacked and criminalized for trying to defend his community from North American gold mining companies, and he has a message for Canadians and Americans:

I would like to call on the people and politicians of Canada and the United States to reflect seriously on your way of life in your so-called developed countries; that your way of life is achieved at the cost of exploiting the natural resources in our countries that you call “underdeveloped.”

Sandoval is from San José del Golfo, a community about an hour’s drive northeast of the capital, Guatemala city.

Like others in his and neighbouring communities, Sandoval began his resistance to gold mining in 2012 when he got wind of plans by Vancouver-based junior mining company Radius Gold to open the Tambor gold mine in the area.

For more than five years, Sandoval and his family were part of a community movement that maintained a permanent peaceful encampment outside the mine, a camp known as “La Puya” (The Thorn). Riot police were repeatedly dispatched to the site to violently evict the people at the encampment.

Although the Canadian company Radius Gold – that promotes itself with the motto “Relentless Exploration, Great Discoveries” – initiated the mine, it didn’t keep it very long. In 2012, shortly after two hitmen on a motorbike shot at and attempted to assassinate community member, Yolanda Oquelí, Radius sold its interests to its junior American partner, Kappes, Cassiday & Associates (KCA). However, Radius Gold maintained a royalty interest in the mine’s gold production.

After years of community resistance to the mine, in 2016 the Guatemalan Supreme Court finally and definitively revoked the company’s license. The gold mine – which had been illegal all along – was closed down. It had never obtained “free, prior, and informed consent” from Indigenous communities in the area.

Sandoval and his daughter Ana would like to see people in North America help reign in their mining companies that are wreaking havoc on Indigenous lands and people in Guatemala and beyond:

We call on the Canadian and American people to investigate and learn about how your companies come here and violate our rights; how your companies participate in and take advantage of the corruption of our governments that serve the interests of your companies to then violate our rights and harm the wellbeing of our natural resources, our communities, and our people.

We call on your politicians and business leaders to reflect on how you do your work as politicians and business people; we call on you to do your work in an honourable way and not in a way that profits from the blood and tears of other people. Like you, we merit respect in life.

The Sandovals’ messages are contained in a new book that details in sometimes horrifying detail the behaviour of Canadian-owned mines in Guatemala, a country that suffered 36 years of armed conflict, which only ended in 1996 when a Peace Accord was signed.

The book documents the complicity of the Canadian government in promoting Canadian companies and mining-friendly laws in the country on the heels of decades of genocidal military governments, and the unwitting complicity of the Canadian people whose pensions are invested in those companies.

Published by Between the Lines, “Testimonio: Canadian Mining in the Aftermath of Genocides in Guatemala,” is edited by Catherine Nolin, chair of the Department of Geography, Earth and Environmental Sciences at the University of Northern British Columbia (UNBC), and Grahame Russell, director of Rights Action and adjunct professor at UNBC.

Nolin and Russell draw on 30 years of work in Guatemala to expose how the “ruthless state machinery” in the country benefits Canadian mining companies, “sanctioned and supported every step of the way by the Canadian government.”

But what makes this book a particularly important – and painful – read are the damning first-hand stories from Indigenous people in Guatemala. It brings the voices of people who have witnessed murder, suffered rape and torture by mine security forces, watched helplessly as perpetrators walk away scot-free, and lost their access to productive farmland and clean water.

“Testimonio” will come as a tough awakening for any Canadians who are still under the illusion that their best ticket to a warm welcome when they travel abroad is a suitcase or backpack emblazoned with red maple leafs.

Murder and rape

The book tells the story of the 2009 murder of Adolfo Ich Chamán by security forces employed at the Fénix nickel mining project in El Estor, Guatemala. Another community member, German Chub Choc, was shot and left paralyzed by Fénix security personnel on the same day.

The Fénix mining project dates back to 1960, when it was owned by Canada’s Inco. In 2004, Vancouver-based Skye Resources acquired it, and then in 2008 another Canadian company, Hudbay, took over the mine.

In 2010, Adolfo Ich’s widow, Ich Angélica Choc, announced that she was suing Hudbay Minerals and its subsidiaries in Canadian courts, seeking reparations for the death of her husband. A year later German Chub said he was also taking the company to court for reparations for his wounds and paralysis. Then 11 women from a Maya Q’eqchi’ community close to Hudbay’s El Estor mine announced that they were suing the company and its subsidiary HMI Nickel to seek reparations for gang rapes they suffered at the hands of Fénix security personnel, military, and police during a forced eviction requested by HMI Nickel, which was known then as Skye Resources.

In 2011, Hudbay Minerals sold its El Estor mine and all of its other Guatemalan assets to the Swiss company, Solway Investment Group.

But selling off blood-soaked assets doesn’t wash away blood stains from mining companies and their former owners. Nor does it absolve the countries where the companies are based.

The book quotes Adolfo Ich’s widow Angélica Choc, who has this to say to Canadians:

It pains me to tell you that the image of Canada is severely damaged here in Maya communities of El Estor.

In addition to its scrutiny of the Hudbay Minerals and Radius Gold mines in Guatemala, the book also looks at the records of two other Canadian mining projects in the country: the Escobal silver mine that was owned by Vancouver-based Tahoe Resources before it was taken over by Pan American Silver, and the Vancouver-based Goldcorp Inc. open pit Marlin gold mine that operated from 2005 until 2017.

The photo on the book cover is of Diodora Hernández, looking for a calf while herding her cows near Goldcorp’s Marlin mine.

Hernández refused to sell her land to the company, and in 2010, she was “shot point-blank in the face outside her home only a few metres from a fence that delimits Goldcorp’s Marlin mine … The bullet entered her right eye and exited her skull near her right ear. She lost sight in the eye and hearing in the ear, and half of her face is partially paralyzed.”

Canada’s culpability

While “Testimonio” is a painful read, it also contains strong antidotes to the distressing stories of violence inflicted by the mining projects on Indigenous populations.

Among these, the stories those same people tell about their own resistance, and their courage and determination as they struggle to defend their land, water and rights.

The book lays out the current situation this way:

As of 2017, a staggering 1,364 Canadian companies had mining assets worth a total of over $260 billion located in 101 countries around the world. According to the Mining Association of Canada, a full 57 percent of the world’s public mining companies are listed on Canada’s two big stock markets: the TSX and TSX-Venture Exchanges.

And:

The majority of the world’s mining companies are headquartered in Canada, controlling more than eight thousand exploitation and exploration projects in 120 countries worldwide. Latin America alone accounts for 55 percent of Canadian mining assets abroad. The Canadian government accepts that mining companies adopt voluntary industry initiatives rather than committing to formal regulations and potentially facing legal liability. Mining companies are left to police themselves regarding respect for human and environmental rights. The industry’s own research showed that between 1999 and 2009, Canadian corporations owned 33 percent of the global extractive companies involved in mining conflicts, trailed by Australia and India at 8 percent each.

The Canadian extractives sector is promoted abroad as the latest cure for “development” shortcomings, without acknowledging these practices as detrimental to the self-determined development sought by local communities. Canadian extractive companies receive substantial financial support from Export Development Canada; the Canadian International Development Agency (CIDA), now a part of the Global Affairs Canada; the World Bank; investments by the Canada Pension Plan (CPP); and a range of supports via staff at Canadian Embassies. For example, in 2013 CPP investments into Goldcorp reached $217 million and $54 million went into Tahoe Resources, despite both Canadian companies then being under scrutiny for rights abuses in Guatemala. Most Canadians remain unaware of their financial involvement in the mining sector and how their contributions fund abuses in the Global South.

However, as the book shows, it doesn’t have to be like this.

Recipes for change

In a chapter on legal accountability, Cory Wanless and Murray Klippenstein, Toronto-based lawyers who represent 13 Maya Q’eqchi’ in precedent-setting lawsuits against Hudbay Minerals, look at ongoing efforts to put an end to the impunity enjoyed by Canadian extractive companies.

In a few paragraphs, they destroy arguments trotted out by industry and the Canadian government that mining companies should be allowed to regulate themselves, that their “corporate social responsibility” (CSR) should be voluntary. Wanless and Klippenstein write:

Under the CSR model, Canadian companies can sign up (or not) to various voluntary environmental and human rights standards and then apply those standards within their business (or not). If something goes wrong, and human rights abuses are committed at a Canadian-owned mine, there is no sanction, no liability, and no accountability. It is essentially a model in which companies are supposed to “try” to behave responsibly, and if instead their security forces kill someone, or there is a tailings dam collapse, or the contractor they use employs slave labour at their mine, no problem, simply try to do better next time.

Companies love the voluntary CSR model because it gives them the best of both worlds. Companies can and do reap the public relations benefits of claiming to be responsible companies and good global citizens (simply by stating that they are), but without the burden of actually being responsible or accountable to anyone for their behavior.

And:

To those who may be swayed by emphasis on voluntary standards, if we are so convinced that voluntary standards are the answer and can stop bad behaviour, it is worth asking why we do not expand voluntary principles to every other aspect of society. In few other areas of society do we think that “voluntary guidelines” can actually solve real-world problems. The lives of average Canadians are governed by a myriad of enforceable laws, not voluntary codes; why should it be any different for Canada’s corporations?

Wanless and Klippenstein also point out the harms of the bilateral foreign investment promotion and protection agreements (FIPAs) that the federal government has signed with 36 nations around the world – many of them favoured destinations of Canadian extractive companies – with “the explicit goal of giving legally enforceable rights” to the Canadian companies that operate in them.

They also tell the disappointing tale of how the federal Liberal government failed to respect its own promises to create an independent Canadian Ombudsman for Responsible Enterprise (CORE) that would have the power to “independently investigate, report, recommend remedy and monitor any reports of human rights abuses linked to Canadian companies operating overseas.”

While the government did create and staff the CORE position, the lawyers write, it wound up being a “toothless ombuds office” that does not have the power to compel documents and summon witnesses.

Research done by Charlotte Connolly for the Justice and Accountability Project (JCAP), based out of two Canadian law schools, revealed probable reasons for the government’s failure to provide CORE with the powers it required. Turns out they’re all about lobbying.

Between January 2018, when investigative powers were given to the newly established Ombudsperson role, and April 2019, when the actual, toothless Ombudsperson was appointed, the Canadian mining industry lobbied the federal government 530 times, including 33 meetings with the Prime Minister’s Office.

Wanless and Klippenstein also point out that fairly straightforward and simple law reforms could ensure that “corporations cannot abuse the concept of ‘limited liability’ to avoid legal liability for harms created abroad through the clever use of wholly owned and controlled subsidiaries.”

Anyone who has tried to fathom and untangle the complex structure of most mining corporations — with subsidiaries nested layers deep in Byzantine structures and scattered all over the place — will appreciate the value of this particular reform that Wanless and Klippenstein propose, not just for extractive companies operating overseas but also for those working here in Canada.

They use as an example Barrick Gold, which was founded by the late Peter Munk and now describes itself as “one of the world’s leading gold mining companies with annual gold production and gold reserves that are the largest in the industry.” Among those on Barrick Gold’s international advisory board are former Prime Minister Brian Mulroney who chairs it, former foreign minister John Baird, prominent US Republicans such as Newt Gingrich and former secretary of defense William Cohen, while the late former President George H.W. Bush was an inaugural member of the board. Barrick is also no stranger to controversy and complaints over its global mining operations.

According to Wanless and Klippenstein:

Investors invest money and are paid dividends based on Barrick’s global operations. For all intents and purposes in the real world, Barrick is one company. Yet in the legal world, the picture is much different. Instead of being one company, Barrick Gold’s corporate structure looks like a labyrinth of more than one hundred companies. Each one of the boxes in that structure are considered in law to be separate “legal persons” that, for liability purposes, have nothing to do with any of the other legal persons in the chart, no matter if all of the boxes are ultimately owned and controlled by Barrick Gold Corporation (Ontario) at the top of the chart. This is limited liability.

This structure allows parent corporations (i.e., the top corporation that owns subsidiary corporations) to maintain complete control over the operation and management of its subsidiaries’ business, and to reap all of the financial rewards of its subsidiaries’ business, but if something goes wrong, to claim that the subsidiary is an entirely separate corporation that has nothing to do with it for purposes of liability. Corporations get all of the benefits of law, but without any of the burdens.

We are going to leave untouched and without critique the core principle of limited liability—namely that shareholders who are natural persons (i.e., living, breathing humans) who own shares in a company are treated as separate from that company and, therefore, cannot be held personally liable for the company’s debts or liabilities.

Instead, and much more modestly, we are only going to question the notion that limited liability should be extended to situations where there is only one shareholder and that shareholder is itself a corporation. The benefits for corporations are obvious: by simply creating another corporation (which can be created basically out of thin air with just a little paperwork and payment of a filing fee), and by designating the first corporation as the sole shareholder of the second corporation, the corporation has ensured that it fully controls the second corporation and can reap the financial benefits of any business conducted by that second corporation, but the separation it has created between it and the second corporation means that it can avoid any liabilities or debts of the second corporation.

All upside, no downside.

Wanless and Klippenstein propose legal reforms that would “do away with the concept of limited liability as between parent corporations and subsidiaries over which they have the ability to exercise complete control,” writing:

…if a corporation owns a critical mass of shares of another corporation, and has the ability to exercise complete control over that other company, and has the ability to collect all the benefits of that company, it is fully responsible for the harms created by that corporation.

With the good comes the bad.

“Sorry state of affairs”

Lastly, the book’s editors, Nolin and Russell, look at some uncomfortable and inconvenient-for-Canadians truths, which the testimonies in the book document. They write:

… while the harms, repression, and violations are occurring in Guatemala, the mining operations are owned and controlled by companies in other countries, primarily Canada. All important mining operational and investor decisions are made in Canada. The vast majority of financial profits go to company directors, officers, and shareholders, and to pension fund and private investors in Canada and around the world. These same corporate and investor elites have shown no political will to call for reforms to private and public investment funds (including funds such as the Canada Pension Plan) so that “maximizing profits” is not the only criteria that fund managers need to pay attention to.

Nolin and Russell conclude:

… there will be no end to mining-linked repression, environmental destruction, and human rights violations in Guatemala until there are serious changes in how Guatemala and Canada operate as countries, and how the unjust global economic, political, and military order operates. It is an unjust and sorry state of affairs, profitable for mining companies, shareholders, and investors, harmful and deadly for many Guatemalans.

And, of course, the unjust and sorry state of affairs that is so graphically detailed in their book is by no means limited to Guatemala. Sadly, similar books could be written about Canadian extractive companies operating in many countries around the world.

That, however, might be easier said than done.

“Testimonio” was originally to have been published by Springer Nature, an international academic publisher that Nolin had worked with before. The editors prepared the manuscript to Springer’s specifications and submitted it in early 2020.

In July that year, Springer Nature sent them a “contract termination agreement” and claimed they would not be publishing the book because it was “defamatory.” It turns out that Springer was afraid it could be sued for defamation if an unnamed “third party” decided to sue.

After that, Between The Lines not only agreed to publish the book, but also asked Russell and Nolin to write about the roadblocks they faced trying to have it published.

Write Russell and Nolin:

Try as we could, we never found out who “the third party” was, nor how they obtained access to a copy of our manuscript. We can only speculate that Springer Nature was threatened with legal action by a corporation, or parties linked to corporations, quite possibly in the mining sector.

Nova Scotians can also act

One of the contributors to the book, Jackie McVicar, has been involved in solidarity work in Guatemala and the Americas since 2003, when she attended an Atlantic Regional Solidarity Network (ARSN) gathering at the Tatamagouche Centre. ARSN is a grassroots network of activists from Canada’s east coast, which supports struggles for self-determination, peace and justice alongside Latin American People’s Movements.

Over the years, McVicar has worked with Indigenous campesino movements in Guatemala recuperating land that had been stolen during the country’s genocide, and solidarity organizations in Guatemala, including the Maritimes-based Breaking the Silence Network. McVicar tells the Halifax Examiner that she divides her time between Mi’kmaq territory in Nova Scotia and Maya Kaqchikel territory in Guatemala.

In an email, McVicar says the mining companies profiled in the book are not just a case of “a few bad apples.”

“Canadian mining companies represent environmental devastation and atrocious human rights violations around the world. This is based on a model of plunder that is Canadian foreign policy,” she says.

McVicar has this advice for those who would like to do something to change that:

Nova Scotians need to have a good look at where their investments are going and how they are potentially funding serious human rights and environmental harms in countries like Guatemala. These are private investments and CPP [Canadian Pension Plan], but even unions, ethical funds, and churches are investing in projects that have displaced, criminalized, and killed Indigenous and peasant land defenders who are protecting their community water sources from Canadian mining devastation.

If you want to get involved in mining justice: re-evaluate your investments (small and large), demand divestment from mining companies (you can assume that the majority of Canadian companies working overseas are not doing more good than harm) and laws … to make Canadian companies accountable … Do not fall for “mines are needed to fight climate change” because as long as we are destroying habitat, contaminating water, and disrupting a way of life, we are not on the way to any kind of real response to the climate crisis.

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