Mark Bristow, CEO of Barrick Gold Co., speaks during the Investing in African Mining Indaba 2023 conference in Cape Town, South Africa, on Feb. 8, 2023.SHELLEY CHRISTIANS/Reuters
Barrick Gold Corp. ABX-T is asking an Ontario judge to dismiss lawsuits alleging that its subsidiary in East Africa committed human-rights atrocities in the vicinity of its North Mara mine, arguing that the matter should be litigated overseas.
Barrick is defending two civil cases in the Ontario Superior Court of Justice, one from November, 2022, and another from February of this year. The plaintiffs are Indigenous Kurya from villages around the mine in Tanzania who were injured in 2021 and 2022 when mine security police allegedly shot at them, as well as family members of victims who were killed during this period allegedly by the police. The incidents occurred in instances where locals trespassed at the mine in search of tiny amounts of gold left in waste rock. The plaintiffs allege negligence by Barrick as the parent company of the Tanzania subsidiary.
The cases are the first against Barrick in Canadian courts for alleged human-rights violations abroad and followed a landmark Supreme Court of Canada ruling in 2020 that allowed Vancouver-based mining company Nevsun Resources Ltd. to be sued in British Columbia for alleged abuses in Eritrea.
Barrick argued in court this week that Tanzania is a far more appropriate forum in which to litigate the cases because the mine in question is in Tanzania, as well as the plaintiffs, the local police force and many of the Swahili-speaking witnesses who “do not speak, read or understand English,” Barrick said in a court filing.
“There is no meaningful connection between Ontario and the subject matter of this litigation, let alone a real and substantial one,” Barrick added.
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Barrick also played down its presence in Ontario, saying that less than 55 people work at its Toronto head office and that none of those employees is responsible for the North Mara mine. While Barrick’s chief executive officer, Mark Bristow, has an office at the company’s headquarters, he works overseas frequently and resides in Mauritius.
The plaintiffs argue that the chances of receiving a fair hearing are far lower in Tanzania than in Toronto. In court documents, lawyers argued that the Tanzanian legal system faces a deficit of public interest litigation because of barriers to access, including the prohibition of contingency fees for lawyers, and the limited scope of the discovery process, which inhibits the ability to ascertain the truth.
“The courts of Tanzania do not provide an adequate alternative forum for the litigation of these complex claims, let alone a forum which is clearly fairer and more efficient than Ontario,” the plaintiffs argued in a court filing. “The reality is, if this lawsuit is not heard in Ontario, it will not be heard at all.”
The plaintiffs said that the Barrick subsidiary, Acacia Mining PLC, since 2010 had memorandums of understanding with the Tanzanian police regarding the provision of policing services in and around the mine. After Barrick took full control of Acacia in 2019, it continued the policing services arrangement. According to a memo of understanding recently disclosed by Barrick, its subsidiary in Tanzania pays about $76 per day to each police officer who works around the North Mara mine, in addition to funding other expenses, such as fuel for their SUV vehicles. The plaintiffs alleged that Barrick is legally responsible for the actions of the Tanzanian Police Force.
“The propensity of the mine police to violate international standards of policing and human rights through the use of excessive force has been known to Barrick since at least 2010,” the plaintiffs said in a statement of claim.
Barrick, however, maintains that the Tanzanian Police Force is a sovereign police force that operates under its own chain of command and that it has no management oversight.
Justice Edward Morgan on Thursday reserved his decision on whether the case should be held in Ontario after hearing three days of arguments from lawyers for Barrick and the plaintiffs. Lawyers expect he will take at least a few months to reach his decision.
Barrick has been brought to court in the past over similar allegations of excessive use of force on Kurya villagers. It settled a case filed in the United Kingdom earlier this year without admitting any liability.
Earlier this month, another Canadian miner settled a long-standing series of lawsuits that had similarities with the cases against Barrick. Toronto-based Hudbay Minerals Inc. paid an undisclosed figure to a group of Indigenous plaintiffs who alleged they or family members were injured or killed after clashes with mine security forces at one of the company’s nickel operations in Guatemala in 2007 and 2009.
With a report by Geoffrey York.