EL ESTOR, GUATEMALA—Ribbons of sweat roll down German Chub’s face, as he pushes his wheelchair around his rocky yard, careful not to run over the hens pecking in the dirt or bump into his neighbour’s free-roaming pig.

An illiterate Mayan Q’eqchi’ farmer who grows mangoes and bananas, Chub’s life would be difficult enough in this small, indolent city in eastern Guatemala, where the temperature soars to 38C, even if he weren’t paralyzed, with a bullet lodged in his spine.

Chub maintains a stiff resolve, proudly showing off his ability to saw logs, and even hoist himself into the passenger side of a pickup truck. But life is a struggle. Sometimes he can’t make it to the bathroom in time. Sometimes villagers laugh at his disability. And sometimes he is crying inside, despite the ready smile on his face.

“Before, I had total freedom and could go anywhere I wanted to,” says Chub, 29. “I had my whole life ahead of me. Now things are difficult. I can’t work. I have to live with my parents. I’ll never have another child.”

On Sept. 27, 2009, Chub was shot, allegedly by the head of security for Central America’s largest nickel mine, on contested land owned by Compania Guatemalteca de Niquel (CGN) and what was then its Canadian parent company, HudBay Minerals Inc.

Chub and 12 others are now at the centre of three separate negligence lawsuits against HudBay making their way slowly through Ontario Superior Court. In total, they are seeking $15 million in compensatory and $64 million in punitive damages.

The other plaintiffs include the wife of Adolfo Ich, a teacher and father of five, who was shot and killed on Sept. 27, 2009, and 11 women who allege they were raped by CGN security guards in 2007, when the Fenix mine was owned by Skye Resources, later bought by HudBay.

The legal and mining communities are watching these lawsuits closely because they have potentially explosive consequences. If HudBay is found liable, the case could establish corporate behaviour guidelines for Canadian mining subsidiaries overseas, which have a long history of human rights and environmental complaints.

Amnesty International has intervened in the lawsuits, telling the court that “to preserve Canada’s reputation, Canadian society has a strong interest in ensuring corporations respect human rights wherever they may operate.”

Normally such lawsuits would be heard in the country where the alleged transgressions took place. But Toronto lawyers Murray Klippenstein and Cory Wanless argued in an Ontario court that the plaintiffs could not get a fair trial in Guatemala, due to judicial corruption.

It may be difficult for Canadians to comprehend Guatemala’s violent and racist history, which bubbles like a dormant volcano just beneath the surface. While countries such as Chile, Argentina and Peru have confronted their military pasts, Guatemala has not held to account the military leaders who committed human rights abuses during the country’s 36-year civil war. More than 200,000 people, mostly Mayans, were killed in what the United Nations has called genocide.

And yet, since peace accords were signed in 1996, there have been few criminal cases. Many members of the ex-intelligence units, police and counter-insurgency forces have joined criminal organizations, involved in arms trafficking and human smuggling, while some former leaders from the dictatorship era have run for office.

Most Mayans have never had their day in a Guatemalan court. And it is likely they never will. Which is why the El Estor Q’eqchi’ turned to Canada for justice.

The most surprising thing about the case is that it is going forward, says Grahame Russell, director of Rights Action, which has funded development projects in El Estor for more than a decade. (Russell accompanied the Star on a recent trip there.)

For its part, HudBay has maintained a vigorous defence.

The Toronto-based company acknowledges there were tensions in El Estor, a rural city once known as “the store” from its days as an old trading post. The city is on the northern shore of Lake Izabal, home to a tropical wildlife reserve with howler monkeys, alligators, parrots and manatees.

Some locals did not want the Fenix mine on their land.

From the company’s point of view, the Mayans’ resistance amounted to an “illegal invasion” — which they saw as a common tactic in Guatemala for people to acquire land from private companies or the government. The company says that on the day of the shootings, villagers blockaded the road and attacked the mine’s medical clinic. They outnumbered security guards, who feared for their lives, according to HudBay’s statement of defence.

Mynor Padilla, the mine’s 52-year-old former head of security, did not shoot anyone, it adds. (He has pleaded not guilty to murder and aggravated assault at his criminal trial in Guatemala, which is ongoing.)

“So much has been said and claimed at this point we can only hope most people will refrain from making up their minds — or reconsider their position if they have — until the court has ruled,” says Scott Brubacher, HudBay’s director of corporate communications.

In July 2013, in a landmark ruling, an Ontario Superior Court judge allowed the case to proceed. If the plaintiffs could prove at trial that HudBay knew that violence had occurred at past evictions by CGN security, and there was a risk it could happen again, then the harm of sending in armed guards was foreseeable, she ruled.

This month, the company is obliged to disclose thousands of pages of documentation relating to its corporate structure, control over CGN and relations with the community. Still, the case isn’t expected to go to trial for many months, or even years, says Wanless.

Is HudBay being unfairly targeted for the sins of the past, as its former security guard becomes a flashpoint for all that is wrong with Guatemala?

Or did the mining company make a complex problem worse by failing to properly vet security officers, and by taking a hard line against Q’eqchi’ fighting for legal title to their ancestral homeland?

Long before HudBay bought the Fenix mine in 2008, it was controversial.

Concessions were first granted by the Guatemalan government in the 1960s to a subsidiary of Inco Ltd., then a Canadian mining company, but only after stiff resistance. The mine is on traditional Mayan land where farmers have for centuries tended maize, beans and squash, bathed in the rivers and clambered barefoot up and down the rugged hills and mountains.

The town of El Estor is home to farmers and shopkeepers and a cobblestone central square where old men in sombreros sleep on benches in the noonday sun and women sell tortillas from handmade stands. A dried-up swimming pool, sports centre and old golf course can be seen from the main road heading out of town — a remnant from the original mine.

While some locals welcomed HudBay, for the work and money it would bring to the community, others did not want to leave their homes. They argued the ancestral lands had been given to foreigners by a dictatorial government at a time when Q’eqchi’ communities were being massacred and driven off their land. In 2006, a United Nations agency agreed that the Guatemalan government had breached international law when it granted a foreign company title to the land.

But HudBay and the Guatemalan government both ignored the UN, according to Chub’s statement of claim.

On Sept. 27, 2009, tensions between the mine and local opponents reached a boiling point.

There had been a protest in the nearby community of Las Nubes following a visit from the regional governor of Izabal, who was trying to enforce an eviction order. A group of villagers blockaded a road between the town and the mine. Later that day, other villagers gathered on a road in front of CGN buildings.

Chub didn’t know any of this when he said goodbye to his wife and young son and ambled over to watch a soccer game at a grassy field close to the mine’s fenced-in buildings. Standing in the sun, part way through the second soccer match, Chub saw two grey Toyota pickup trucks arrive carrying CGN security guards armed with machetes, guns, tear gas and pepper-spray. The men walked across a cow pasture next to the soccer field, apparently on their way into the mine medical clinic. Most of the soccer players and spectators dispersed, but Chub did not. He soon found himself in a melee.

As he tried to flee, he saw Padilla draw his handgun and aim it at him; then Padilla shot Chub, according to Chub’s statement of claim.

“I blacked out and woke up a short time later lying face down on the ground, coughing up blood,” he said in an interview in his ramshackle wood home, at the top of a rocky, dirt hill.

Chub spent three months in hospital and 18 more in physiotherapy and rehabilitation centres in El Salvador and Guatemala learning how to live as a paraplegic with one functioning lung. His life in a hilly, impoverished town with no wheelchair ramps or automatic doors is not easy; he is at constant risk of bed sores, respiratory infections and dengue fever.

Chub’s wife ended up leaving him, though he was given custody of their son, now 8. While he has a new girlfriend, not everyone in the town supports his case against HudBay, especially those who work at the mine.

According to Chub’s statement of claim, HudBay knew it was operating in a country with high levels of violence. “HudBay knew that Fenix security personnel had in the past used unreasonable violence against the local Mayan communities that had opposed mining in their community,” Chub’s claim reads.

The claim also says HudBay’s security included former members of military groups that participated in crimes against humanity during the civil war.

Other security guards at the mine were involved in organized crime and implicated in arms and drug trafficking, it further alleges. And Padilla, a former high-ranking officer in the military, had been accused of issuing death threats against community members. (HudBay denies any of CGN’s guards had criminal backgrounds.)

When he is feeling hopeless, Chub hums the words to his favourite song, which he learned to play with his band, Echoes of Jesus: “God will lift me up with his hands and sustain me.” He dreams of opening a workshop to build wheelchairs for other disabled people, some of whom remain hidden in their humble, dirt-floor homes, ashamed.

“If we win or not, at least we fought for justice,” says Chub. “I believe I can only get a fair trial in Canada.”

HudBay lays out a different version of events that fateful day in 2009.

The company’s statement of defence claims that mine security guards were under attack, and acted with characteristic restraint in fending off an unruly armed mob that destroyed CGN property. Individuals who “self-identify as Mayan Q’eqchi’ ” had invaded and occupied parcels of CGN land.

Moreover, three AK-47s were stolen from police barracks and CGN security were outnumbered and surrounded.

“People in the mob wielded machetes and threw rocks and Molotov cocktails,” says the statement of defence. “The security personnel could not match the firepower of their attackers. They feared for their lives.”

HudBay claims that Chub concocted a story to explain why and by whom he was shot. The day after the incident, he told Guatemalan authorities he didn’t see who shot him. In 2011, he said was shot by CGN security. Finally, in 2012, he identified the shooter as Padilla.

HudBay also says it takes corporate social responsibility very seriously. The company invested more than $20 million (US) in El Estor, and built a 37-kilometre paved road. “Being responsible is a core company value … reflected in every region where we operate, including our new Fenix project,” says a 2009 report.

Klippenstein, Chub’s lawyer, says that Chub was reluctant to identify Mynor Padilla because he was “terrified that he and his family would be at grave risk.”

During his first police interview, the day after the shooting, Chub had lost a great deal of blood, was heavily medicated and drifting in and out of consciousness.

“Upon his return home after two years in rehabilitation … Mr. Chub made the difficult decision of naming the individual who had shot him despite the risks of doing so,” Chub’s statement of claim reads.

No AK-47 shell casings were found where Chub was shot, or the place where Adolfo Ich died, though some were found in the surrounding area, according to Guatemalan prosecutor Verenice Jerez. Medical evidence shows that the bullet inside Chub is not from an AK-47, and that Adolfo Ich was killed with a shotgun.

Moreover, nine other Mayan Q’eqchi’ were shot that day, while just one CGN security guard suffered a minor injury to his hand, according to Chub’s statement of claim.

Unlike Chub, a reserved campesino, Adolfo Ich, a handsome man with heavy eyelids and a full head of dark hair, was a teacher and well-known community leader who had spoken publicly about the Q’eqchi’s historical, cultural and spiritual connection to the land. Locals called him “el Profe.”

On Sept. 27, when Ich, 50, heard about the protest at Las Nubes, he went to the village to try to quell the anger. He returned to his simple home, with its tin roof and wooden walls, in La Union village, to speak with his wife, Angelica Choc. The couple heard gunshots from nearby mine buildings, according to his wife’s statement of claim.

“I didn’t want Adolfo to go out but he felt it was his duty to try to calm things down. The last thing he said was ‘I will be back,’” recalls Choc, 48, an almond-eyed woman with long, dark hair that flows to her waist, in an interview at her home.

Ich’s son Jose, then 16, followed him, against his father’s wishes. As Ich arrived at the soccer field and neared the barbed-wire fence separating the mine buildings, “a dozen armed members of security came through a gap in the fence, surrounded Aldolfo Ich and began to beat him,” says Choc’s statement of claim. The claim states that they dragged Ich back through the gap in the fence and, on the other side, beat him with machetes. Then, Mynor Padilla shot him in the head at close range.

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“He shot my father in the head,” Jose says in his affidavit. “This was the worst day of my life.”

Autopsy photos show a gaping hole in the side of Ich’s neck and a mangled right arm that had almost been cut in two. He suffered machete blows to his head and right arm — wounds that appear to be defensive. In his final moments, as he fought for his life, Ich writhed in pain, as his teenage son looked on in horror, unable to help.

For Choc, the road to justice has been daunting.

In winter 2013, in a surreal scene, she flew to Toronto to be cross-examined by HudBay lawyers from Fasken Martineau — a Mayan in a traditional, square-cut embroidered blouse and handwoven skirt sitting opposite Bay Street lawyers in dark suits in a chilly corporate boardroom.

She returned in May 2015 for HudBay’s annual shareholders meeting, where she stood up and publicly refuted the company’s claim that she coerced her son into lying.

“These false accusations against us make me sad and angry. We are here in person to tell you our truth as we lived it,” Choc told executives and the board of directors. “I can tell you that my son Jose Ich watched as my husband was surrounded, beaten, hacked with machetes and then shot in the head.”

Like many Q’eqchi’, Choc takes her physical sustenance — and spiritual solace — from the land, in a tradition passed down over generations.

During a recent visit to the El Estor cemetery, she placed a candle on her husband’s grave, which is painted sky blue. A cashew tree nearby provided shade and ripe red fruit for her and Jose, who cleared leaves from the grave.

“My husband gave his blood defending his people, and this sacred earth,” says Choc, gazing at the mountains in the distance. “I remember him every day. I will continue fighting.”

HudBay says in its statement of claim that they are “not aware how Ich came to his unfortunate death.”

But the company is clear that Ich was not grabbed by Padilla or other security personnel, dragged through the fence and executed in cold blood.

Hudbay says in its statement of defence that Jose was coerced into lying about what happened to his father by his mother. The company further argues that Ich’s death would have been entirely unforeseeable as Padilla had “an exemplary record as CGN’s chief of security” and had previously exercised restraint. “Padilla was not carrying a shotgun on Sept. 27, 2009,” the statement reads.

When asked for an alternate theory of who killed Ich and injured Chub, a company spokesman said the trial is the appropriate place to establish the facts.

“We are defending the lawsuits because the information available to us indicates that the plaintiffs’ allegations are not true,” says Brubacher, HudBay’s director of corporate affairs. “That can be unsettling to some — we understand that — but we cannot ignore the facts we have.”

Lote Ocho is a secluded village of thatched-roof homes in the misty hills, a 45-minute ride by pickup truck from El Estor, up a narrow unpaved road. There is no running water or electricity, but the picturesque red earth is believed to contain large nickel ore deposits.

The people of Lote Ocho consider it their ancestral homeland, despite CGN’s legal title. In 2007, relations between the people and the company were tense.

At the time, Skye Resources owned the mine (HudBay bought Skye in August 2008 and then sold it to Russia’s Solway Group in 2011, retaining responsibility for all litigation against Skye’s Guatemalan subsidiary, Compania Guatemalteca de Niquel.)

On Jan, 9, 2007, at CGN’s request, authorities arrived to evict the approximately 100 villagers. According to a statement of claim from the 11 women from Lote Ocho, the evictions weren’t peaceful: “there was photographic/video evidence of homes being burned down” and allegations of undue force. On Jan. 17, a second eviction took place, as about 100 police officers and soldiers arrived in the remote community.

Rosa Elbira Coc, then 24, was cooking date palms and tortillas in the late afternoon over an open fire when the convoy arrived. Coc’s affidavit says the men, among them CGN security, carried guns.

Nine men barged into Coc’s home. One put a gun to her head, asked where her husband was and threatened to kill her, says the statement of claim.

“They smashed all my bowls and utensils. Then the men threw me on the ground and ripped off my clothes,” Coc says in an interview. “I screamed but nobody heard me.”

All of the men raped her, according to the statement of claim. When they finally left, Coc felt like a crushed orange. She lay on the ground, unable to move.

Ten other women from Lote Ocho also allege they were sexually assaulted that day, while their men were tending corn and cardamom in the fields. They spent months recovering. Two of the women, pregnant before the assault, lost their babies. Coc later suffered two miscarriages, according to the statement of claim.

After support from Rights Action and a non-governmental organization that specializes in helping genocide victims, the women decided to launch a lawsuit against HudBay in 2011. They talked it over with the men in the village, worried the case would inflame the fragile community. But the men were in agreement.

Nobody believed the women would get a fair hearing in Guatemala. A 2006 Amnesty International report found that violence is often used during the forced removal of Mayan communities and that the burning of homes and destruction of personal belongings is common. A 2009 Doctors without Borders report referred to the high rate of sexual violence against women in Guatemala as a “humanitarian crisis.”

HudBay denies the rape allegations. Its statement of defence says the villagers of Lote Ocho would not leave the property and refused to engage in dialogue so the company turned to the authorities. Moreover, the company paid the villagers $19,500 to compensate for their loss of property. At the time, there was no indication that “horrific gang rapes had occurred.”

Earlier this year, Coc’s marriage dissolved; she moved in with her parents in the village of Cahaboncito, near El Estor, where she sleeps in a single bed in the front room near a pile of corn husks and a traditional treadle loom for weaving. At 31 — an age when most women have a brood of children — Coc is single and childless. “All women should be respected, including us,” she says.

Guatemala’s complex and bloody history make it a difficult place for foreign companies to operate in.

It has one of the world’s highest homicide rates — 40 per 100,000 people compared with 1.5 in Canada — for a country officially at peace. The majority of violent crimes go unpunished, due to corruption and the intimidation of witnesses and judges.

Rony Mendez, mayor of El Estor, suggests that HudBay may have underestimated the weight of these challenges.

The year “2009 was (one) of darkness and bloodshed,” he says in an interview in city hall’s pink, colonial-style building, overlooking a boardwalk and glistening Lake Izabal.

“The Canadians should have negotiated with the people. They should have ceded some ground. They didn’t use the best strategies to administer the mine and lost control. They trusted bad people.”

HudBay sold the mine in 2011 to Russia’s Solway Group following a decision to focus geographically on mineral assets “in investment-grade countries in the Americas.”

Today, the open-pit mine is up and running, steam billowing from the smokestacks, trucks lumbering down El Estor’s main road. There have been fewer problems under Solway, says Mendez, although locals complain about the dust from the trucks.

The company has not evicted the few families left in Lote Ocho, or in the community of La Union, where Angelica Choc’s home still stands, near the soccer field and cow pasture where her husband died.

Overseas rules

Canada has no legislation outlining standards for companies operating overseas. A 2010 bill introduced by Liberal MP John McKay would have introduced standards, but it was defeated by the Conservative majority.

However, Ottawa does have a corporate social responsibility counsellor, Jeffrey Davidson. Since taking office a year ago, Davidson, a professor and former mining executive, has visited trouble spots in Latin America and Africa and met with more than 25 Canadian mining companies.

He has tried to resolve a range of issues overseas, from water contamination and artisanal mining, to difficulties with local security forces and weak or non-existent local governance. He plans to visit Guatemala this summer.

“Companies sometimes get themselves involved in situations they don’t truly understand,” he says. “They end up being exposed and vulnerable. Bad things can happen. It is not that it is a company’s intention (to do ill), but how they choose to deal with it is another thing.”

—Marina Jimenez