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Photo: Steven Ablitt / Cassiar WatchVictory: Canada supports public participation and environmental assessment
Thanks to a court ruling to which AIDA and our allies contributed, Canadian authorities must allow active participation in all mining and industrial megaprojects, as well as comprehensive environmental impact assessments.
The decision came after a long legal battle that began in 2006. That year, an open-pit copper and gold mine called Red Chris was approved without the adequate evaluation of its environmental impacts. It was sleighted to process 30 thousand metric tons a day.
The Imperial Metals company intended to build the mine in the Kapplan River Valley, a remote and pristine natural area home to large mammals such as Dali’s sheep, caribou, bears and moose. In addition, the area is part of the migratory salmon route and the Tathlan indigenous community lives nearby.
The company had fragmented the project into small parts to avoid evaluating the full impact of the project, thus violating international standards and the right to public participation.
In 2009 AIDA filed a brief with Canada’s Supreme Court in support of a lawsuit filed against the project by MiningWatch and Ecojustice.
The ruling remains a powerful tool to protect huge expanses of pristine and valuable land for its biodiversity, water sources, and the culture of indigenous communities.
It was a watershed moment in terms of ensuring companies fulfill their obligations when developing projects that put at risk the natural environment and those who depend on it.
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Prior consultation: An opportunity for life, respect and diversity
By Héctor Herrera, legal advisor, AIDA, @RJAColombia Colombia’s ethnic groups have decrees and laws that protect their cultural persity, that defend the individual and collective livelihood of these native and traditional peoples and communities. Article 6 of Convention No. 169 of the International Labour Organization (ILO) stipulates that indigenous peoples have the right to prior consultation. That means that they should participate in defining the measures that could have a direct impact on them, whether legislative (such as laws or decrees) or administrative (environmental permits for highways, dams, mines, oil wells, and the like). The negotiations should be carried out in good faith and with the goal of reaching agreements on all sides. This has become very important in Colombia, a multiethnic, multicultural, and diverse country. According to the Luis Ángel Arango Library, 65 indigenous languages in 12 language families are spoken in Colombia, of which 34 have less than one thousand speakers. Traditional Afro groups speak two different Creole languages. Yet all of these languages are in danger. Colombia also is extremely diverse in biological species globally, ranking first in birds, second in amphibians and butterflies, third in reptiles, and fourth in mammals, according to the Humboldt Institute. Colombian newspaper El Espectador reported 2011 data showing that 10% of all biodiversity is found on 1% of the planet’s surface. In Columbia, 29.8% of this is collective indigenous territory and 5% is collective traditional Afro territory. Understanding this, prior consultation emerges as an opportunity to protect the cultural and ethnic persity of Colombia and defend the inpidual and collective livelihood of the many native and traditional peoples and communities. It is, too, an opportunity to protect the ecosystems that these ethnic groups inhabit as well as to protect life in all its forms. This does not mean forcing anybody to adopt a conservation, extractive, or development model. It simply means making sure that an effective space is provided for clear, honest, and intercultural dialogue with ethnic groups on measures that could affect them, whether legislative or administrative measures or national laws or extractive mining projects. This is completely in line with the stipulations of Article 6 of Convention No. 169 of the ILO . This right has also been recognized in numerous national and international legal documents. On the international level, we have the United Nations Declaration on the Rights of Indigenous Peoples, adopted in 2007 (PDF file). In Colombia, we have the Political Constitution, which protects the rights of ethnic groups to their collective territory and the rights of all of society to a healthy environment. With the backing of international legal documents and the Political Constitution, the Constitutional Court of Colombia upheld the right to prior consultation for the “Embera indigenous people” in relation to the construction of the Urrá dam in 1998 and for Amazon indigenous peoples on the fumigation of illegal crops in 2003. In other cases, the High Court declared unconstitutional the National Development Plan of 2006-2010, the forestry law of 2006 and the mining code reform of 2010 because the proponents had not consulted with ethnic groups. There are yet more cases outside Colombia, such as Bolivia with the Multinational Constitution of 2009 and Ecuador with the Intercultural and Multinational Constitution of 1998, both of which recognize the right to prior consultation. So too Peru, where a law on this right was just passed this year. Culture, language and a view of the world – all of these can live on through time if we respect them and guarantee people’s rights, including the right to prior consultation. The protection of this right could also contribute to the protection of important ecosystems and of biological persity, both of which are vital issues as we face unprecedented climate change and environmental degradation.
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Brazilian Government questioned yet again by international human rights body over Belo Monte Dam controversy
Brasilia, Brazil - On April 11, the Inter-American Commission on Human Rights (IACHR), the human rights arm of the Organization of American States (OAS), asked the Brazilian government to explain reports of poor water quality and forced evictions in indigenous communities affected by the construction of the Belo Monte Hydroelectric Dam in the Xingu River Basin, Brazil. This is the second time that the Inter-American Commission has asked the government to explain the health and human rights impact of construction since requesting precautionary measures in favor of indigenous communities in April of last year. The IACHR also repeated its request that Brazil detail specific measures designed to mitigate the dam’s impact. The commission gave Brazil 20 days to respond regarding the situation in the Xingu River Basin. “We hope the Brazilian government will react quickly to this latest resolution by taking steps to protect the human rights of affected communities,” said Jacob Kopas, legal counsel with the Interamerican Association for Environmental Defense (AIDA). The IACHR is currently reviewing an international lawsuit filed by the Xingu River Alive Forever Movement (MXVPS), Para Society for the Defense of Human Rights (SDDH), Global Justice, and AIDA. The lawsuit highlights the damages the project is causing to the Paquiçamba and Arara da Volta Grande Indigenous Reservations. “The case before the IACHR aims for Brazil to meet its obligations under international human rights treaties,” explained Roberta Amanajás, lawyer with SDDH. “And in the Belo Monte case, there is abundant evidence these rights are being violated.” This past January, indigenous communities downstream of the construction site registered several cases of diarrhea and skin rashes associated with the sudden deterioration in the water quality of the river, on which they depend for drinking, bathing and cooking. In response, the Brazilian Federal Public Ministry conducted an independent water quality analysis but results have not been published yet. According to Public Ministry officials, constant water control tests are necessary to avoid the risk of contaminating the river’s waters. Another complaint under investigation by the IACHR concerns the forced eviction of impoverished, rural communities, in an area where most small farmers do not have formal deeds to their land. Fearing evictions without any compensation whatsoever, many families have accepted payments worth less than half the market value of their lands. This was the case of farmers from the Santo Antonio village, where only 26 out of 252 rural properties had a formal deed. In one case, a farmer received only $3,775 USD for a property that would have fetched almost $12,000 USD on the open market a few years ago.
Read morePeru’s efforts to require La Oroya clean up should not be chilled by investment arbitration
San Francisco, CA – The following is a statement from the international organizations Earthjustice, the Inter-American Association for Environmental Defense (AIDA), the Peruvian Society for Environmental Law (SPDA), and Public Citizen: In 1997, Doe Run Peru (DRP), an American company, bought from the government of Peru a metallurgical complex located in La Oroya, Peru. As a condition of the purchase, DRP agreed to comply with a number of environmental requirements aimed at protecting the environment and health of the local population. For 15 years, Doe Run has failed to fulfill these commitments. Now, rather than live up to its responsibilities, DRP and its parent company, the Renco Group, are using questionable legal and political tactics to continue to avoid its commitments—most prominently through an international arbitration case against the State of Peru. In 2011, the Renco Group brought a claim in an international arbitration tribunal for US $800 million against the State of Peru, alleging Peru’s non-compliance with and failure to honor its legal obligations. However, Peru should not be deterred from its efforts to require the company to clean up La Oroya. Here are just a few of the reasons why: 1. Even if the Peruvian Congress were to grant DRP another PAMA extension, the liability claims in Renco’s arbitration case against Peru would remain because Doe Run’s case against Peru involves more than the PAMA extension contemplated in the proposed law. The Peruvian legislature is currently debating a bill to extend Doe Run’s environmental remediation obligations (known by its Spanish acronym, PAMA) for a third time. The legislature’s Energy and Mining Committee quickly approved the bill. However, policymakers should not presume that Doe Run will drop its arbitration case against Peru if the legislature grants the extension. Indeed, the company is likely to find it advantageous to keep the investment case going (or launch new ones) in order to pressure the government through the international arbitration proceedings. 2. The company is using the investment arbitration to insulate itself from penalties in a case in Missouri courts. In 2007, attorneys filed lawsuits in Missouri (where Doe Run is headquartered) on behalf of children in La Oroya alleged to have experienced serious health problems from exposure to toxic pollution from the smelter in Peru. In a similar case resolved last year regarding harms to 16 children from Missouri, the Missouri court awarded the children US $358 million. In the aforementioned 2007 case about La Oroya in Missouri, DRP has insisted that the Peruvian government—not the company—should be held liable for these tort claims (even though the children are only claiming damages that occurred after Doe Run purchased the smelter). Therefore, the company will likely attempt to keep its international investment arbitration case alive until the Missouri case is resolved, so the Renco Group can use the arbitration to force Peruvian taxpayers to pay any penalty awarded against DRP. 3. The Renco Group is using the arbitration case to move the Missouri case to federal court and evade liability. Doe Run has aggressively tried to derail the Missouri case by insisting that the La Oroyan children’s claims be heard in US federal courts, where it appears Doe Run believes it is more likely to win the case. Twice, the Missouri judge refused to allow the company to do so. After launching the international investment arbitration against Peru, however, Doe Run made a new argument, and convinced the judge to move the La Oroyan children’s case to US federal court, which has jurisdiction over treaty-related claims. The Renco Group has an incentive to keep the international arbitration pending against Peru—regardless of whether the Peruvian legislature extends the PAMA—in order to maintain its argument that the case belongs in federal court 4. Giving in to the threat of the international investment arbitration would set a bad precedent for Peru and the world. As explained above, DRP is using the investment arbitration to serve many different interests. In each case, the common factor is that the arbitration threatens to make Peru—and Peruvian citizens—responsible for the contamination in La Oroya and any resulting penalties. If Peru responds to this threat by giving DRP special treatment at the expense of the children of La Oroya, it will send a message to DRP and multinational companies around the world that such threats are effective. This will weaken Peru’s ability to protect its interests, including the environment and human rights, in the face of corporate misbehavior. 5. DRP is using false arguments to try to shift the blame to others. In addition to the arbitration claims, DRP has long argued that Activos Mineros—a state-owned firm—should complete its PAMA obligations to remediate soils around the complex. Now DRP is claiming unfair treatment because Activos Mineros has not yet been required to do so. This argument makes no sense. It is well known that cleaned soils will quickly become re-contaminated if nearby smelter pollution continues. In Missouri, the authorities calculated that soils near the Doe Run smelter would be re-contaminated only a few years after Doe Run had remediated them at a cost of millions of dollars. Doe Run is well aware of this, yet argues that Peruvian taxpayers should spend millions of dollars cleaning soils in La Oroya that would be re-contaminated in mere months if the smelter were to reopen without first installing all necessary pollution controls. This would be a waste of resources and would not solve La Oroya’s health problems. Activos Mineros should indeed remediate the soils. But it makes no sense to do so until either DRP completes installing the control technology it has promised yet failed to deliver for 15 years, or after a decision is made to permanently close. The government of Peru should take these facts into account and make sure that it does NOT allow Doe Run to pressure it into reopening the complex in La Oroya. The government of Peru needs to ensure it is considering and protecting not only the rights of the workers, the economy of the region, and the health and human rights of the citizens in La Oroya that would be harmed by reopening the complex, but also protecting the national economic interests. Reopening the complex without clarifying the responsibilities for third party claims from cases such as the case pending in Missouri, would be folly and pose a significant economic risk for the nation. This could even result in economic costs for the people of Peru that exceed the benefits obtained from operating the complex. If the Peruvian legislature believes that it can or should extend the PAMA, it should insist on at least three non-negotiable positions. First, that the Renco Group drop its international arbitration claim. Second, that Doe Run agree that it will assume any liability in Missouri related to contamination stemming from the smelter in La Oroya. Third, that DRP complete all of its environmental requirements—before starting any operation—so that Peru can begin its soil remediation efforts and protect the health and human rights of the children of La Oroya. Every day that the fate of the La Oroya metallurgical complex remains undecided without a final solution to the contamination, the citizens of La Oroya suffer grave health risks which in turn increase the harms for which both DRP and the government of Peru could be held liable.
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