THURSDAY December 5, 2024
By The Tranquility News Special Correspondent, Tanzania
Everything happens for a reason, whether good or bad; perhaps this is how one could summarise the findings in the judgment delivered on November 26, 2024, by the Ontario Superior Court in a case filed by Mining Watch on behalf of 32 villagers against Barrick Gold Corporation.
As it has been customary for human rights activists to accuse the mine of human rights violations, the allegations before the court were similar, accusing the mine of human rights abuses that resulted into injuries and deaths.
Although the case was dismissed on grounds that the court lacked jurisdiction to determine the matters at issue, Justice Edward Morgan stated: “The evidence before me establishes that the Tanzanian bar and the Tanzanian judiciary are capable of conducting a fair, efficient, and just trial.
“As between Ontario and Tanzania, it is Tanzania that is clearly the more appropriate forum in which to try the matters raised in this claim.”
This might have a reason, and details of the judgment in the underlying case might have a significant lesson.
One of the key takeaway to learn from this court is Justice Morgan’s statement:
“From the statements by these two affiants, one can reach a number of significant conclusions with respect to the future trial of the claims.
“In the first place, the plaintiffs’ best evidence is not useful in determining the cause of any of the injuries or deaths.
“No amount of references to Barrick’s sustainability policies, its securities filings and other publications, its website statements about community commitment, NGO statements about corporate responsibility in resource extraction, international resolutions on human rights and foreign investment, etc., will help to determine responsibility for the two deaths.
“The trials will evolve around the question of factual causation, and the evidence of the two plaintiffs chosen for this motion is indeterminate on that issue.
“Both of the plaintiffs’ affiants concede that they do not know what transpired during the incidents in which their family members died.
“Both deceased were on the mine property, presumably as trespassers, since they were not employees and had no legal reason to be there; and both appear to have died of gunshot wounds.”
This court’s statement stemmed from the affidavit of plaintiff Elizabeth Matiko Irondo, who described the death of her son at the mine.
In her introduction, she states: “I have brought a lawsuit against Barrick Gold Corporation (Barrick) regarding the killing of my son, Irondo Matiko Irondo, who was shot in July 2021.
“My lawsuit alleges that Barrick, as the owner of the mine, is responsible for the killing of my son because its negligent security strategy and human rights policy led to his death.”
Similarly, Charles Daniel Nyakina described the June 2022 death of his brother, Emmanuel Daniel Nyakina, at the Mine.
Using identical phrasing as Ms Irondo, Mr Nyakina states: “My lawsuit alleges that Barrick, as the owner of the mine, is responsible for the killing of my brother because negligent security strategy and human rights policy at the North Mara mine led to his death.”
Both plaintiffs informed the court that relatives often went to search for gold at what they called the mine’s ‘waste rock’, and she explained that it was easier before the mine built a wall around the perimeter of its property.
Once the wall went up, individuals seeking access to the property had to breach the wall, she said, deposing: “Since the mine built the wall around 2018, the violence by the police has gotten worse.”
Justice Morgan continues stating that it likely seemed Ms Irondo’s son and Mr Nyakina’s brother were shot by a member of the Tanzania Police Force, since the police are armed on the site of the mine.
“But even this is not certain. Contemporaneous press releases contained in the motion record describe several of the incidents in the issue as armed intrusions by masses of local people onto the mine’s property, with some of the injuries and deaths of the plaintiffs being a result of those participating in these intrusions fighting among themselves,” emphasizes Justice Morgan.
The court clearly stated that the evidence in the record could not establish with any certainty how or why the relatives of the plaintiffs’ two deponents were shot.
Ms Irondo and Mr Nyakina have no first-hand knowledge of what their respective family members were doing when they died.
The record does not provide any insight into whether Ms Irondo’s son and Mr Nyakina’s brother, or any of the other plaintiffs and their family members, were innocent victims of the police, were shot in self-defense by the police, or were attacked by others invading the mine at the same time and competing for the gold ore found there.
Justice Morgan further clarifies that the record likewise does not reveal whether the deceased plaintiffs were themselves armed or carrying implements that could be used as weapons, nor whether the police opened fire unnecessarily on isolated individuals or were overwhelmed by a large number of people invading the mine’s property.
“If one takes as an example the kind of evidence marshalled to determine causation and fault in an alleged police shooting in Canada, a conclusive finding as to whether the shooting was justified or not, will involve a thorough exploration of the event on the ground from multiple angles.
“Although any number of the plaintiffs themselves may testify at trial, the record here suggests that their testimony alone will not suffice for their claim.”
I reiterate Justice Morgan’s detailed explanation in the judgment so that the lesson derived from those statements is clearly understood.
The North Mara mine, perhaps more than any mine in Tanzania, has been a victim of both true and false allegations from international human rights organisations.
Sometimes, reading their reports can lead one to conclude that the entire Tarime area is a battlefield, and that people have no peace whatsoever, which is truly disconnected from the reality.
If one takes as an example the kind of evidence marshalled to determine causation and fault in an alleged police shooting in Canada, a conclusive finding as to whether the shooting was justified or not, will involve a thorough exploration of the event on the ground from multiple angles,” Ontario Superior Court Justice Edward Morgan.
Portraying Tarime and the entire Nyamongo area where the mine is situated in this manner does not help the people of Tarime, as stated by those who claim to be human rights defenders; rather, it deprives them of rights and opportunities to grow as is the case with other areas with large mines in the country.
When comparing Barrick owned mines in the country, it is clear that although the Bulyanhulu mine in Kahama do not match the production levels of North Mara, those benefiting from investments in the mines are Kahama residents, whose municipality is not only rapidly expanding but also has a small mining town growing steadily and securely at Bugarama area.
The people of Tarime and Tanzania as an independent country deserve respect and dignity.
Disseminating reports and accusing human rights violations without conducting thorough investigations and understanding the actual circumstances that led to the allegations is a disrespectful act towards the accused.
It is unfortunate that some well-known institutions with significant international status fall into this trap of using flimsy reports to make serious accusations against these companies simply because of their record trustworthy reports.
One reading the distorted statements describing the events on the ground is left wondering on the basis the reports are made, their gains and beneficiaries.
This judgment also provides a significant lesson to locals.
Instead of being a genuine source of the truth, local media outlets are close to fair-weather friends, parroting the reports without seeking the truth. The lesson from this judgment should help us to correct ourselves.
To assist these citizens, it is essential for activists to conduct thorough investigations to identify root causes and sources of the problems as well as to understand actual circumstances that led to the occurrence of the respective issues.
Otherwise, it would be misleading the public and denying them of understanding of the reality because the underlying reasons, as some of the allegations are built on erroneous premisesΩ
