On October 26, the Latin American Mining Monitoring Programme (LAMMP), a London-based NGO, hosted the Beyond Good Business conference aimed at advocating women’s rights in the context of natural resource extraction. The all-day event brought together an array of global speakers including human rights defenders and activists, lawyers, academics and industry representatives. Held just weeks away from the UN Annual Forum on Business and Human Rights, due to take place 16-18 November in Zurich, the event explored themes including the challenges women face as a result of global natural resource extraction and how the United Nations’ Guiding Principles (UNGPs) on Business and Human Rights could be utilised to mitigate and circumvent the adverse impacts of resource extraction upon women and their communities.
The keynote speech by Suzanne Spears, Counsel at public international law firm Volterra Fietta, addressed the ongoing human rights violations that women experience as a result of resource extraction activities, highlighting how women are less likely to benefit from compensation, yet are more likely to be adversely affected by negative environmental, cultural, health and social impacts. The speech stressed the importance of conducting due diligence and developing human rights policies from a gender perspective, and of ensuring that there are adequate and appropriate remediation processes in place.
Suzanne said that the UNGPs are providing opportunities to prevent and provide remedy to the negative and gender impacts of resource extraction. She said that although the UNGPs are not legally non-binding, “they can become a hook for accountability”. Suzanne stated that in fact “the substance and implication of UNGPS are beginning to infiltrate other aspects of the law”. One of the cases discussed where legal advances are being made with regard to accountability for human rights violations committed against women is the Margarita Caal Caal v. HudBay Minerals Inc lawsuit. Although the violations took place in Guatemala, the 11 female plaintiffs are seeking legal redress in the parent company, HudBay Minerals’ home country, Canada.
Caal Caal v. HudBay Minerals Inc lawsuit: Implications for Guatemala and beyond
The plaintiffs in the Margarita Caal Caal v. HudBay Minerals Inc. case allege that in 2007, mining company security personnel and members of the police force and military gang-raped 11 women as they evicted indigenous communities from their ancestral lands to make way for the Fenix mining project located near El Estor in the Department of IzabalThe plaintiffs in the Margarita Caal Caal v. HudBay Minerals Inc. case allege that in 2007, mining company security personnel and members of the police force and military gang-raped 11 women as they evicted indigenous communities from their ancestral lands to make way for the Fenix mining project located near El Estor in the Department of Izab.
According to the lawsuit, the evictions were pursued by Canadian mining company Skye Resources “in relation to its Fenix mining project, located on the north shores of Lake Izabal, which it operated through its Guatemalan subsidiary Compañía Guatemalteca de Níquel (CGN)”. In 2008, HudBay Minerals brought the Fenix Project, Skye Resources and CGN, changing the name of Skye Resources to HMI Nickel, which later merged with HudBay Minerals. As the lawsuit states, this is of “legal significance” because “as a result of the merger, HudBay is legally responsible for HMI/Skye’s liabilities and past actions”.
HudBay contend that as the violations occurred due to the actions of its subsidiary in the host country, Guatemala, it did not have a duty of care to the plaintiffs. However, in a precedent-setting decision, the Ontario Superior Court ruled that the company did have standard of care toward the plaintiffs, after the prosecution successfully demonstrated that a relationship existed between parent company and communities. As a result of this ruling, the case is proceeding to trial and it is the first time in Canada that a parent company has been taken to court for human rights violations which took place in another country and which were committed by a subsidiary.
The prosecution claim that Hudbay Minerals had, as the court has established, a duty of care to the plaintiffs, and that the sexual violence could have be foreseen. This ruling underlines the importance of carrying out due diligence, a core concept formulated in the UNDPs in which companies must “seek to identify, prevent, mitigate and account for how they address their impacts on human rights”. As Suzanne stated, due diligence and human rights policy must take into account gender perspectives and that the “UNGPs are a path toward legal binding obligations”. The law is beginning to change even though, as Suzanne conceded, “it is not a rapid response to a crisis, but a slow burn”. Indeed, while this is a move in the right direction, for many women on the frontline, human rights violations and gender violence continues to be a very real and immediate crisis.
Women on the frontline: Guatemala
Among the speakers at Beyond Good Business was Yolanda Oquelí, a Guatemalan women human rights and environmental defender who is on the frontline of a resistance movement opposing the El Tambor gold mine in southern Guatemala. Women are heading this resistance against El Tambor, practicing peaceful protest as they demand that their rights and those of their communities be respected.
Being on the frontline of this struggle however, especially as a women, is dangerous. Yolanda knows all too well the violent consequences of defending her rights and those of her community. As the leader of the Frente Norte del Area Metropolitana (FRENAM), she has been subjected to harassment, death threats, and criminalisation for simply daring to raise concerns about the mine’s social and environmental impacts, a flawed Environmental Impact Assessment (EIA), and the lack of community consultation.
The situation reached tipping point in 2012. Returning home from a peaceful protest, Yolanda was seriously injured after being shot. Speaking at the conference, she said:
“I was attacked for being a human rights defender. It has shaped my life and the life of my children. I still have a bullet lodged in my spine and all I did was to expose what the mining company were doing.”
El Tambor is managed by its subsidiary EXMIGUA on behalf of its parent company, the US-based Kappes, Cassiday and Associates (KCA). The mine was formerly owned by a Vancouver-based corporation, Radius Gold, but after Yolanda’s shooting, Radius Gold, deeming the asset ‘problematic’, sold its majority shares to KCA.
To date, no arrests have been made, but Yolanda herself has been criminalised. In 2013, she was accused by mining employees of false imprisonment, coercion and threats: charges she staunchly rejected. In May 2014, all charges against her were in fact dismissed. However, Yolanda and her community continue to be subject to harassment. Despite repeated death threats and acts of repression, Yolanda and fellow community members have maintained a permanent peaceful protest camp since 2012. Earlier this year, their peaceful resistance bore fruit when a Guatemalan court ruled in favour of the mine-affected communities and ordered KCA to suspend construction work at the mine for 15 days until community consultation had taken place. KCA and EXMIGUA however flagrantly ignored the court ruling and continued construction.
There are inherent risks associated with resistance activities in Guatemala but Yolanda said that she and her community were committed as ever to continue peaceful opposition. Yolanda’s speech highlighted her determination to oppose the mine but also revealed the danger of working as a women human rights and environmental defender in a context where the rule of law is seldom obeyed and violence and impunity are entrenched. As the anti-mining activist stated:
“It is not easy to be on the frontline of human rights and environmental struggle… As a human rights and environmental defender, when you challenge the government and request that they respect your rights, it means your life will be in danger.”
The panel also included activists and human rights defenders from Mexico, Pakistan, Papua New Guinea and The Philippines. For more information visit: www.lammp.org/beyondgoodbusiness or read LAMMP’s Beyond Good Business report at: http://lammp.org/wp-content/uploads/2015/11/Beyond-Good-Business-report-05.11.2015.pdf.