Saturday, June 7, 2014

Post from Catherine Coumans in response to alleged comments by Atty. Harry Roque

I have received the following submission to this blog from Research Coordinator Catherine Coumans of MiningWatch Canada. Coumans is a familiar name to Marinduquenos. Her experience with irresponsible mining on the island led her to leave an academic career in favor of working with local communities to counter the damaging effects of mining. She has extensive knowledge of issues related to the Marcopper mine-spill problem in Marinduque and has provided expert testimony on mining in two congressional inquiries in the Philippines, 1990, 2001.

Coumans feels that there is much that should be challenged in matters stated about the case, particularly in connection with recent posts here, but she has "stuck with one key thing in light of the decision that Marinduquenos need to make", feeling strongly that Barrick does not have them (Marinduquenos), up against the wall. 
Research Coordinator Catherine Coumans works with MiningWatch Canada's expert advisors, staff, and Directors to ensure the accuracy, focus and timeliness of their information resources and research efforts. Tasks include monitoring government and industry initiatives affecting MiningWatch interests, supporting participation of MiningWatch members and associates in consultations and negotiations, representing MiningWatch perspectives in meetings, presentations and negotiations as required, and preparing and/or co-ordinating written briefs and submissions as required. Her focus area is the Asia-Pacific region.

Post from Catherine Coumans in response to alleged comments by Atty. Harry Roque

I am writing to express serious concern about information allegedly provided by Atty. Harry Roque to the provincial clients of Marinduque’s case against Barrick Gold, and to Marinduquenos generally, as it is potentially misleading.

I preface my remarks by noting that they are in regard to translations of Atty Roque’s public comments provided in the blog “Marinduque Rising.”

Atty. Roque is reported to have said that “a decision of the Supreme Court of Canada...has stated, ‘if it did not happen in Canada, one cannot also file a case in Canada.”

It is unclear to which Canadian Supreme Court decision Atty. Roque is referring. Atty. Roque should provide a clear reference to the case to which he is referring.

To be clear, there is no Canadian Supreme Court ruling that would block the filing of a case against Barrick Gold in Canada, for the harm caused by Marcopper in Marinduque. In fact, there are already three related court cases in Canada against a Canadian mining company HudBay Minerals for alleged human rights abuses caused in Guatemala. These cases are proceeding to trial in Canada. See http://www.chocversushudbay.com/  The company did not dispute that Canada is the appropriate Forum (location) for the case and the Superior Court of Ontario ruled that Canadian company Hudbay Minerals can potentially be held legally responsible in Canada for rapes and murder at a mining project formerly owned by Hudbay’s subsidiary in Guatemala. 

In the Marinduque case, Barrick submitted a motion to dismiss the case before the Nevada trial court in 2011 on the basis of Forum non Conveniens (that the US is the wrong Forum). Barrick argued that either Ontario or Vancouver were the appropriate Forums for this case (because Barrick is headquartered in those jurisdictions). In February 2011, the judge granted Barrick's motion to dismiss the case and said that the case should go to Canada with the following conditions 1) that Barrick cannot ask for dismissal of the case from Canada based on Forum non Conveniens and 2) that Barrick has to agree not to seek dismissal on the basis of statute of limitations.  Of course Barrick can still make an argument that it was Marcopper, not Barrick, that allegedly caused the damage in Marinduque, but that argument can be made in any Forum (US, Philippines, Canada). Marinduque’s lawyers  appealed the Nevada judge’s dismissal of the case in Nevada, but that appeal has been put on hold so that the current negotiations between Marinduque and Barrick could take place.

So to summarize, there is no legal reason why Marinduque cannot continue its case against Barrick in Canada. Both the Nevada judge and Barrick have argued that Canada is the appropriate place for the case to continue. Furthermore, there are lawyers and law firms in Canada who would be very interested in pursuing a case such as this one. 

Finally, I am writing this to set the record straight, but strongly feel that, as Marinduquenos consider their options, it is the responsibility of Marinduque’s lawyer, Atty. Walter Scott to ensure that his clients are given valid, and complete information by anyone associated with him and with the case.


Catherine Coumans, Ph.D.
Research Coordinator and Asia Pacific Program Coordinator
MiningWatch Canada
250 City Centre Avenue, Suite 508
Ottawa, Ontario

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