Nickel Mine, Lead Bullets
German Chub faces the judge as he responds calmly and evenly to question after question during cross-examination. He uses his arms to lift himself up and shift a little in his wheelchair. Other young Maya Q'eqchi' men had to carry him up the stairs to the second-floor courtroom in Puerto Barrios, a bustling Caribbean port city in eastern Guatemala.
Five and a half years ago, Chub was playing soccer in the community of La Unión, in the department of Izabal, when security guards from the Guatemalan Nickel Company (CGN), a mining corporation, showed up, he told the court. Chub heard a commotion coming from the direction of company-owned hospital property and approached the fence separating the company complex from the soccer field to see what was going on, he said.
"I saw Mynor Padilla pointing his pistol at me," Chub testified. "When I turned around, I heard the gunshot."
Chub is one of several Maya Q'eqchi' community members shot on September 27, 2009 during a crackdown on protests over threats that a group would be evicted from its ancestral lands near CGN's Fenix ferro-nickel mining project. Chub is paralyzed from the chest down as a result, and doctors determined it too risky to remove the bullet lodged near his spine. Adolfo Ich, a teacher and well-known community leader from La Unión, died after being beaten, attacked with a machete, and shot by CGN security personnel, according to witnesses. At least seven others were wounded on the same day, according to court case plaintiffs.
Chub was participating in the soccer game, he says, and was not involved in the protests, which were taking place some distance from the field at the time of the shooting. Ich was at home in La Unión, next to the soccer field, when mine security personnel arrived on scene. Witnesses claim Ich was singled out and called over by security personnel and that he approached them assuming they wanted to speak with him. It is not clear whether Chub or the others wounded that day were specifically targeted. Several Las Nubes residents were injured along the road where the protests were taking place.
Sitting four feet to Chub's left, Mynor Padilla's expression doesn't change much as he listens to the witnesses, a rosary wrapped around his hand. A former military coronel, Padilla is charged with homicide, assault causing grievous bodily harm, and assault causing bodily harm for his responsibility for the actions of security guards in his charge and for taking some of the shots himself. At the time, he was the head of security for CGN, then a subsidiary of HudBay Minerals, a Toronto-based mining company.
Trials concerning conflicts over natural resources and land aren't uncommon in Guatemalan courtrooms. More often than not, however, it is indigenous community members who face charges. The criminal case against CGN's former head of security is an exception to the rule in Guatemala, and a series of ongoing related civil lawsuits in Canada have already set an important precedent when a judge ruled they could proceed in a Canadian court.
A Guatemalan lawyer with a long history of representing communities fighting for their lands, Sergio Beltetón of the Campesino Unity Committee (CUC) land rights organization was one of six people sitting on the prosecution's side at the April 28 hearing during Padilla's trial in Puerto Barrios. Angélica Choc, who is the widow of Adolfo Ich, and the UN's International Commission against Impunity in Guatemala (CICIG) are joint plaintiffs intervening alongside the Office of the Public Prosecutor in the case against Padilla.
"Cases like this one, where a head of security is being tried for the crime, are very rare," Beltetón told mongabay.com. "Close attention needs to be paid to the case."
A history of conflict
Beltetón said the case fits certain patterns in the country: an extractive project imposed on communities without consultation sparks protest, which in turn sparks violent repression. But longstanding conflict over land is at the heart of this particular situation.
CGN's Fenix ferro-nickel mining project has been linked to land conflict and human rights violations for more than 50 years, the majority of which coincided with the nation's 36-year civil war. The Canadian-owned International Nickel Company (INCO) began preparing to mine in the 1960s and benefited from widespread forced displacement of local Maya Q'eqchi' to make way for the project. In the year prior to the military government granting INCO's subsidiary EXMIBAL a mining license in 1971, two high-profile opponents, including a congressman, were murdered, another vocal opponent was wounded in an attempt on his life, and another fled the country. The Historical Clarification Commission that arose from the 1996 Peace Accords documented three cases of EXMIBAL personnel and vehicles being involved in several arbitrary executions and an attack on the civilian population in the 1970s.
After two decades of company activity in the area, including four years of production, the mine shut down in 1981 and lay dormant for three decades. During that time, Maya Q'eqchi' resettled communities and lands from which they and previous generations had been displaced to make way for the mine. Starting a decade ago, various attempts have been made to re-open and expand the open pit mine and smelting operations. Operations finally resumed in 2014, and potential expansion plans include lands resettled by Maya Q'eqchi' residents.
Ownership and operation of the mine has changed hands several times. The Fenix project was originally operated by EXMIBAL, a Guatemalan company that was majority owned by INCO. Toronto-based mining corporation Skye Resources took ownership of the project in 2004, changed the operating subsidiary's name to CGN, and then merged with HudBay Minerals in 2008. In 2011, the Solway Group, a Cyprus-based private Russian company, took over CGN and the Fenix project. The Guatemalan government retains 1.8 percent ownership of CGN.
"CGN doesn't really have legal certainty over its lands because there are doubts about the property lines, about some of the land's origins, about their area, and about their location," said Beltetón.
Police, soldiers, and CGN private security guards participated in a series of violent evictions of Maya Q'eqchi' communities in contested lands in 2007, when the shuttered Fenix project belonged to Skye Resources, according to human rights organization representatives and journalists present at the time. Witnesses from the resettled Maya Q'eqchi' community of Las Nubes testified at Padilla's trial that CGN security guards and the governor of the Izabal department threatened them with eviction on the day of the shootings in September 2009, when HudBay owned the project. The threats sparked the protests, which took place along a key road near company installations in the vicinity of La Unión and its soccer field.
"Mister Mynor [Padilla] arrived. He told us we had to leave...They said the land was the company's and that they would use force to remove us," Ricardo Acte testified at the hearing. Acte and other witnesses from Las Nubes were provided a court-appointed interpreter and testified in Q'eqchi'.
"The people from the company say [the land] is theirs, but those of us who work on the land don't agree with them," said Samuel Coc, another witness from Las Nubes who suffered gunshot wounds.
Padilla's trial won't likely wrap up anytime soon. More than five years since the shootings passed before it even began. Padilla was a fugitive for nearly three years before his arrest in 2012, which was then followed by several delays in the case. After the first three hearings in April 2015, only five witnesses out of several dozen had taken the stand.
The judge presiding over the case transferred to a court in Guatemala City after proceedings began and is now traveling back and forth to Puerto Barrios, more than five hours each way, for the trial. She has requested instruction from the Supreme Court as to whether she should continue in her role. If another judge is appointed, the case will be set back considerably since the sentencing judge has to preside over the presentation of evidence and witnesses.
Taking the fight to Canada
While the criminal case against Padilla continues in Guatemala, a trio of multi-million-dollar civil lawsuits moves forward in Canada. Angélica Choc, the widow of Adolfo Ich, is suing HudBay Minerals for her husband's killing, and Chub initiated a lawsuit against the company over the shooting that rendered him paraplegic. Rosa Elbira and ten other Maya Q'eqchi' women are the plaintiffs in a third case against HudBay concerning their gang-rape by CGN security guards and state security forces during a 2007 eviction. Skye Resources owned CGN at the time, but the plaintiffs argue that after the two companies merged, HudBay became legally responsible for Skye's wrongdoing.
None of the allegations have yet been proven in court. CGN did not respond to a request for comment. HudBay Minerals declined comment, citing the ongoing Padilla trial. However, in a special "CGN and HudBay in Guatemala" section on its website, HudBay paints a very different picture of the events of September 27, 2009 from that of the victims and witnesses in the court cases in Guatemala and Canada.
No evictions were threatened that morning, HudBay's website states. "A mob of people, many of whom were armed, congregated around the CGN property," according to a timeline on the website. "A large mob attacked security personnel with sticks, rocks and machetes," HudBay's timeline continues, adding that there was significant property damage and that National Civilian Police barracks located within company property were ransacked and automatic weapons stolen.
"The mob" fired shots and threw Molotov cocktails, according to HudBay. At no point in its timeline does HudBay either confirm or deny that company security personnel fired a weapon. "CGN followed international standards for the protection of human rights and took seriously the training of its security employees and contractors," HudBay's website states.
In 2013, a judge with Ontario's Superior Court of Justice ruled that HudBay Minerals could potentially be held legally responsible in Canada for crimes related to the mining project of its former subsidiary, CGN, in Guatemala.
"It is the first time that a Canadian court has ruled that a claim can be made against a Canadian parent corporation for negligently failing to prevent human rights abuses at its foreign mining project," Cory Wanless, co-counsel for the Maya Q'eqchi' plaintiffs in all three cases, said at the time of the July 22, 2013 ruling.
Angélica Choc has a little more hope for the legal case in Canada than for the one in Guatemala. Both she and Chub emphasize the long history of impunity concerning massive human rights violations against indigenous peoples in Guatemala. Padilla has three high-powered lawyers on his side, including Francisco Palomo Tejeda, who was one of the defense lawyers for former military ruler Efraín Ríos Montt. Ríos Montt was convicted of genocide and crimes against humanity in a domestic court in May 2013, but the ruling was annulled ten days later and a subsequent retrial was suspended in January 2015.
During Chub's cross-examination by Palomo Tejeda at the April 28 hearing, Choc was ordered by the judge to leave the courtroom after she made an emotional outburst. Chub had been asked to view aerial photographs and identify exactly where he and Padilla were when the shooting took place. Seeing Chub interrogated in his wheelchair closely surrounded by the lawyers and judge was too much for Choc.
"I got so upset when I saw how they were treating German. I got angry, and then I cried and cried," she told mongabay.com in an interview across the street from the courthouse. "Right now it looks like I'm fine, that I'm speaking normally, but tomorrow and the day after tomorrow I will start to suffer everything I witnessed today."
Choc, Chub, and Elbira are getting ready to travel to Toronto to speak at a rally outside HudBay's annual general meeting May 22 and to meet with their lawyers.
"We don't know what's in store for the future," said Choc.
She does know what she wants to tell HudBay shareholders in Canada, however. She wants the company to take responsibility for the actions of its private security force in Guatemala, including the killing of her husband Adolfo Ich. "As an Indigenous woman, I'm not going to sit idly by and remain silent."