Barrick is the majority shareholder in a mining company whose security allegedly shot, beat locals
The Ontario Court of Appeal has ruled that Tanzania is the appropriate forum to litigate wrongful death and personal injury claims against Barrick Gold Corporation, which is based in Canada but owns majority shares in a Tanzanian mining company whose security personnel have been accused of killing or injuring people at its North Mara mine.
Tuesday’s ruling affirmed a lower court's decision, which noted that none of the parties had identified any relevant witnesses in Ontario, while many witnesses to the alleged incidents were in Tanzania. The lower court also concluded that Tanzania’s legal system, which was designed based on the English common law model, could address the wrongful death and personal injury claims.
More than 40 victims and their family members, who are largely impoverished rural farmers and small-scale miners, appealed. They argued that Barrick’s human rights policies came from the company’s Toronto office and that the lower court minimized the severity of the allegations by recharacterizing them as negligence claims. They also argued that proceedings in Tanzania could potentially be unfair, partly because they would have less access to legal resources.
However, the OCA concluded that the lower court made no errors in its analysis.
Joe Fiorante, a partner at CFM Lawyers LLP and one of the lawyers representing the appellants, said the appellate court’s ruling “undermines access to justice in Canadian courts.
“Our courts should be open to victims who seek accountability against a Canadian company like Barrick that is in charge of security and human rights issues at its overseas mine,” Fiorante added.
A statement by CFM Lawyers and Phillips Barristers, the other firm representing the appellants, noted that a Tanzanian parliamentary inquiry, human rights groups, and local residents have estimated that between 77 and 100 people have been shot and killed by security forces at the North Mara mine over the years.
The firms said they planned to appeal the OCA’s decision to the Supreme Court of Canada.
Amnesty International Canada, which intervened in the case, also expressed disappointment in the OCA’s decision. In a statement, Tara Scurr, the organization’s corporate accountability campaigner, said, “Time and again, we bear witness to the devastation caused by unjust systems that uphold impunity and privilege the profits of transnational corporations over the rights of people.”
But Barrick President and Chief Executive Officer Mark Hill said the company is proud of its work in Tanzania, which it does "in close partnership with all levels of government and our host communities.
"Our work together creates jobs, drives economic development, and improves the lives of many Tanzanians," Hill added in a statement about Tuesday's decision.
Counsel for Barrick declined to comment.
The appellants sued Barrick in 2022, alleging the company was responsible for 20 incidents between 2021 and 2023 in which the Tanzanian Police Force allegedly beat, shot, killed, and kidnapped individuals around the North Mara mine. The mine is in a remote region of Tanzania near the Kenyan border, and is owned by a Tanzanian company, North Mara Gold Mine Limited. Barrick is the company's majority shareholder. The Tanzanian government owns the remaining shares.
At the time of the alleged incidents, North Mara Gold Mine Limited and the Tanzanian Police Force had an agreement in which police personnel provided additional security at the North Mara mine.
According to the lawsuit, some of the appellants supplemented their income as subsistence farmers by extracting trace amounts of gold from waste rock generated by operations at the North Mara mine. In one alleged incident, a man was visiting his relative’s home near the mine when police entered the residential area and began shooting. The man was killed.
The appellants argued that Barrick was liable for the incidents and had failed to enforce human rights and security policies at the mine site.
A second lawsuit with additional plaintiffs was filed in 2024. Barrick filed a motion that year arguing that the claims belonged in Tanzania’s courts, not Canada’s.
When the Ontario Superior Court of Justice granted the motion, it agreed with Barrick’s argument that, although the company has an office in Toronto, the claims were not connected to Ontario. The court also accepted Barrick’s argument that it would not be able to fairly defend itself in a Canadian court, because there is no legal mechanism in Tanzania that could force a Tanzanian witness to testify in a foreign proceeding.
The OCA sided with the lower court. In response to the appellants’ argument that human rights policies came from Toronto, the OCA cited the lower court’s finding that “regulatory filings and other communications about Barrick’s global policies of sustainability do not bring the actual management, supervision, and security measures at the mine into Ontario.”
The OCA said the lower court did not minimize the severity of the appellants’ allegations by describing them as negligence claims. This description was “made in the context of emphasizing that factual causation was going to be an important issue at trial that would require the testimony of multiple witnesses who may have been present when the alleged incidents occurred, or in their aftermath,” the OCA said.
“Clearly, the motion judge’s central point was that important evidence would be missing if the trial were to proceed in Ontario,” the OCA added.
The appellants also argued that they faced a “real risk” of unfairness if the proceedings were held in Tanzania, as they would not have access to legal aid. The appellants also argued that the lower court focused its unfairness analysis disproportionately in favour of Barrick and the court’s inability to compel Tanzanian witnesses to testify in a Canadian court. The court should have given more weight to the appellants’ evidence that they would be unable to compel key foreign witnesses to testify in a Tanzanian court, as well as evidence of their limited discovery rights in Tanzania, the appellants said.
However, the OCA noted that there was no evidence that the appellants had approached any Tanzanian lawyers or legal aid clinics to inquire about available legal services locally. The appellate court also concluded that there were mechanisms in Tanzania that would allow the appellants to use the discovery process productively, and that the appellants had failed to explain why they needed testimony from so many Barrick executives in Canada.
In a statement, one of the appellants, Elizabeth Matiko Irondo, said she was “deeply disappointed” that she would not be able to seek justice for her son’s death in Canada.
“I should be able to sue in Barrick’s home court where I can be represented by experienced human rights lawyers,” Irondo said. “I cannot pay for a lawyer in Tanzania, and I can’t believe I have been told to instead ask for representation from a legal aid system with almost no resources.”
