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Caal v. HudBay v. Ghomeshi

It never ceases to fascinate and irritate how it is that some trials and news items go viral, while others don’t. The stories that are sexy or salient enough demand our attention and hijack our watercooler talk; the rest, if they do make headlines, barely penetrate our day-to-day discourse. It’s some kind of viscous circle: the more we pay attention, the more content we get and the more content there is, the more we can consume. In the flawed democracy of the western media empire, we vote with our clicks, and the reality is that some news just makes for better bait.

The Ghomeshi trial is a strong example of this, same with any trial involving someone of celebrity. It would be encouraging if the hype and the coverage came from a remarkable mass interest in our legal system, but that’s not even the case: it’s just a continued fascination with celebrity. That and, in the case of Ghomeshi, a strong interest by a few and a general interest from many in women’s rights, feminism and the future of how sexual assault is treated and handled in Canada.

There’s another case underway in Ontario that bears no celebrity, but deserves the attention of those who wanted to see Ghomeshi be made an example of. It should also have the ire of the self-declared feminists who wanted the justice system to hold the accountable, accountable.

The ongoing case Caal v. HudBay Minerals Inc. involves a gang-rape of 11 women by mine security personnel, paramilitary and military forces during a forced expulsion of their community from ancestral lands. The plaintiffs are claiming that Skye Resources Inc., then the owner of the open-pit nickel mining operation – The Fenix Project – “was negligent in requesting and authorizing the forced evictions of [the community] without taking adequate and reasonable steps to guard against the use of violence by company security personnel during this eviction” (the full claim is available here). When HudBay merged with Skye Resources, it assumed its assets, responsibilities and liabilities, as would happen in any other merger.

This case is incredibly significant because it’s one of just a handful of times a case involving a Canadian company’s operations abroad have been brought forward to a Canadian court. Even more rare, it’s moving forward.

When in Guatemala last year, I visited mines operated by the subsidiary companies of Goldcorp and Tahoe Resources, respectively. Both have been mired in controversy. At the time, criminal proceedings were pending in Guatemala regarding a violent altercation between mine security personnel at the site operated by Tahoe’s subsidiary. A civil suit based on the same set of facts was also launched in B.C. In 2015, the B.C. Supreme Court declined to hear the lawsuit.

Jurisdiction was a major factor regarding Tahoe’s Canadian case. When it comes to “corporate social responsibility” in general, and the reach of Canadian law not only beyond state borders, but across the borders of other sovereign states, jurisdiction is everything. As a consequence, seeking justice, maintaining accountability and applying legislation becomes murky and complex.

HudBay’s case has already set precedent, and regardless of how it’s resolved, it will continue to set precedent with how the Canadian legal system handles the actions of Canadian corporations abroad. It also happens to be a very vivid case involving horrific instances of sexual assault. It’s not just a case of whether HudBay was liable and negligent: it’s also about Canada’s ability to hold its own corporations to account. The Canadian justice system’s strength and reach is on trial. Maybe we should pay it some attention.

The events that led to the case were overviewed by The New York Times recently, and the article is worth a read.

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