Tag Archives: FPIC

Can the law prevail over Chinese investments in Ecuador?

Police and Molleturo communities discuss procedures to monitor the suspension of mining activities. Photo: Manuela Picq

Manuela Picq | Intercontinental Cry | July 25, 2018

Last June, an Ecuadorean court ordered the suspension of all mining activities by a Chinese corporation in the highlands of Rio Blanco, in the Molleturo area of the Cajas Nature Reserve. It was a local court in Cuenca that gave the historic sentence: a court shut down an active mine for the first time in the history of Ecuador. Judge Paúl Serrano determined that the Chinese private corporation Junefield/Ecuagoldmining South America had failed to consult with the communities as required by Ecuador’s Constitution and by the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

Judge Serrano deemed the mining activity illegal and ordered the corporation to immediately suspend all its activities. Within two weeks, local communities accompanied police forces and local government officials in monitoring that the court order was respected.

The company appealed, and pressure was on the rise for the following hearing. The Chinese corporation privately offered $18 million to community leaders. Ecuador’s President, the Minister of Mines and the Minister of the Environment visited the province to pressure the local courts and indigenous communities to accept the mining activity. They defended “sustainable” mining as a form of development.

Affected communities consolidated their resistance, monitoring the access to the mine to impede mine workers to enter their territories, building support from neighboring communities, and informing the international community of the legal stakes.

On July 23, 2018, the court met again to either ratify or revert the decision to suspend mining activities in Rio Blanco. The court listened to all sides along with some expert testimonies; but there were discrepancies among the judges who postponed their verdict for another week.

Molleturo’s lasting vigilance for their waters

The Rio Blanco mine is located in the Molleturo-Mollepongo region, above ten thousand feet in the Andes. The mining license encompasses approximately six thousand hectares of paramos, lakes, and primary forests that nourish eight important rivers. This area replenishes the water system of the Cajas National Park, one of the largest and most complex water systems of Ecuador, which covers over a million hectares and holds immense water reserves.

The area is recognized as a natural biosphere reserve by UNESCO. These mountains have long been the home of Kañari-Kichwa indigenous communities. There are 12 archeological sites in the Molleturo area alone: the most famous one is the Paredones archeological site, located right by the mine.

The area is also a vital supply of water. These paramos provide water to 72 communities in Molleturo, freshwater to towns in the southern coast of Ecuador and to the city of Cuenca, the country’s third largest city which praises the quality of its drinking water.

The Rio Blanco mine is expected to be active for seven years, removing about 800 tons of rock per day and using cyanide to extract gold and silver. This entails an estimate of one thousand liters of water per hour that would be contaminated with deadly toxic waste, including arsenic, before being thrown back into rivers and soil.

Local indigenous communities were never consulted prior to the development of the project that would benefit from a recent Ecuadorean law incentivizing foreign investment. Nor did they give their consent to the licensing of their territories to the Junefield corporation. They reject the mine because it would contaminate their waters.

Women are at the forefront of the resistance that began almost two decades ago, when the mining license was first issued. Molleturo communities have been arguing in defense of water more or less actively over the last decade and a half but stepped it up when the mine started its activity in May 2018. Protests exploded, and a group burned out the miner’s living quarters.

Nobody was hurt in the explosion, but the police intervened, heavily armed, to militarize the area. The next day, protesters called in the president of Ecuador’s Confederation of Kichwa People Peoples for help, Yaku Perez Guartambel, but workers from the mine kidnapped him for eight hours, threatening to kill him. Tensions boiled to new heights.

Prior consultation as a fundamental indigenous human right

The Judge ordered the suspension on the mine–invoking constitutional and international indigenous rights to prior consultation.

Rosa, a delegate from the Andean Network of Indigenous Organizations (CAOI), discusses the territorial dimension of self-determination to community members gathered in the páramos of the Cajas mountain range. Photo: Manuela Picq

Since 1989, Art. 6 of the International Labor Organization Convention 169 safeguards indigenous rights to prior consultation on projects taking place on indigenous territories. Art. 18 of UNDRIP establishes indigenous rights to participate in decision making relating to their territories, and Art. 19 establishes that states must consult “in good faith” to obtain indigenous “prior, free, and informed consent: about legislative of administrative measures impacting their communities. In 2016, Art. 25 of the American Declaration on the Rights of Indigenous Peoples reiterated these principles in the context of the Organization of American States.

Prior consultation is not a simple law; it constitutes a fundamental human right of indigenous peoples because their existence is intimately tied to their territories. Their culture, lifeways, and community structures are woven into territorial autonomy.

An Amicus Curiae from a Chinese environmental lawyer

About half a dozen amicus curiaes were presented to Cuenca’s court supporting the communities right to prior consultation, from a range of organizations including the Environmental Defense Law Center, Ecuador’s Ecumenic Commission of Human Rights (CEDHU) and the Ecuadorian group Critical Geographies. Amicus were presented by scholars from Ecuadorean and American universities, including Universidad Internacional del Ecuador, Universidad de Cuenca, Universidad San Francisco de Quito, American University, and Coastal Carolina University.

Environmental lawyer Jingjing Zhang, from Beijing, submitted an amicus in which she provided an overview of relevant Chinese laws and regulations. She testified to the court on July 23, 2018, explaining that China ratified the UN Declaration on the Rights of Indigenous Peoples in 2007, thus supporting prior consultation and consent for any project on their territories. She reminded the words of the Chinese delegate at the 13th Session of the UN Permanent forum on Indigenous Issues (2014): “ the international community is duty bound to fully meet the legitimate requests of indigenous peoples, to promote and protect their basic human rights and freedoms, to safeguard the natural environment and resources on which their survival depends” and China “firmly supports the promotion and protection of the basic human rights and fundamental freedoms of all indigenous peoples around the world. ”

She explained to the court that China has regulations establishing that enterprises may not violate international treaties ratified by the Chinese government and that they are bound by the laws and environmental regulations of the host country. She stated that The Communist Party of China (CPC), State Council, and various government agencies have issued policy guidelines that encourage Chinese companies to focus on ecological environmental protection in their foreign investments. In her view, the Chinese government has deep concerns on the law-abiding and environmental performance of Chinese companies operating overseas.

Her amicus concluded that China’s Environmental Protection Law, Environmental Impact Assessment Law, and the Government Information Disclosure Regulation have strict provisions on the public participation rights of citizens. These regulations are based on the same principles and contain similar provisions to the Ecuadorian norms on the rights of indigenous peoples to prior consultation.

One step forward or two sets back?

The court sentence to suspend the mine marked a milestone of hope to Indigenous peoples and nature defenders. Yet the old tactics of legal warfare are still in use. Within a week of the court sentence, over 20 nature defenders were criminalized, eight of them charged with the crime of sabotage.

The private corporation Junefield/Ecuagoldmining South America did not have to do engage in public debate, Ecuador’s government is taking the lead. It was the Ministry of the Interior who accused indigenous peoples to defend the interests of the Chinese corporation. “The state proves that it is the best lawyer of mining companies,” says Yaku Perez Guartambel.

Will the criminalization of nature defenders continue? For now, judges are holding off a final verdict, and as the clock ticks political and economic pressures thicken. Molleturo leader Fausto Castro says that communities want their right to life back, and that they seek a peaceful solution to this mining conflict. It is indeed an achievement that serious confrontations were avoided, but this may not last forever. Yesterday, when the Judge staved off sentence as hundreds of nature defenders awaited outside the courtroom, many expressed their fears: “if the court reverts its sentence to benefit the State, it is a declaration of war.”

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Call to review the unjust, primitive and self-harming laws of Papua New Guinea

Resource Owners Federation of PNG | 22 May, 2018

The PNG Chamber of Mining and Petroleum made statements last week claiming that the PNG mining laws are uncompetitive, in view of the government’s recent amendment to the Mineral Resources Authority (MRA) Act of 2005 and the proposed amendment to the Mining Act 1992. Their statements are untrue and are designed to scare off the National Parliament from amending the laws so that the mining companies can continue to reap all the benefits of mining in the country, whilst keeping the landowners and citizens who own the resources poor, as they have been successfully doing for decades.  The Resource Owners Federation of Papua New Guinea believes that, although the Mining Act 1992, needs to be reviewed, it should not be reviewed for the benefit of the mining and petroleum companies, but for the benefit of the country and its citizens.

The United Nation’s High Commissioner of Human Rights, during his visit to Papua New Guinea, in early February 2018, observed among others that; “Papua New Guinea was a resource-rich country but much of its population lives in abject poverty, with acute malnutrition rates in some areas comparable to Yemen, and minimal access to quality healthcare and education”.

The UN High Commissioner’s observations are an accurate assessment of Papua New Guinea, being a country that was “so rich, but yet so poor”.  Such assessment, is yet another official condemnation of the country’s state of affairs, in relation to the social and economic conditions of the country and its people. A significant reason for such condemnation is that, our natural resources have been managed in a way that all the benefits of the mining and petroleum projects are transferred to foreign shareholders, with nothing or very little being left for the country and its citizens. Such an official negative assessment from the United Nations must therefore, result in significant corrective actions to be taken by the State and its representatives, by way of reviewing the country’s inappropriate laws and policies.

The High Commissioner further went on to observe that; “it has strong civil society activists but there is little room for them to influence Government Policy“. The Federation and citizens have been calling on the National leaders of the country and the government over many years to review the Mining Act of 1992, on the basis that the country and its landowner citizens were not receiving a fair share of the profits from the mining and petroleum projects. The Mining Act 1992, proclaims the State’s ownership of all minerals found in any land, including and especially customary land, which land are owned by the traditional landowners throughout the country. The Federation is of the view that the State’s compulsory acquisition of minerals held under any traditional or customary lands without paying just compensation, as required by section 53 of the Constitution of Papua New Guinea, is unlawful. It is also in breach of the Article 17, of the Universal Declaration of Human Rights, which states that; “everyone has the right to own property alone or in association with others and no one shall be arbitrarily deprived of his property.”

The Mining Act 1992, as it stands and for the above reasons, is a primitive, unjust and self-harming law, which must be reviewed in its entirety, so that ownership of minerals is retained by the customary landowners. Minerals can still be mined only after development agreements are reached between the landowners and mining companies. Such arrangements have and are already in force, in many states of the United States of America. Under such an arrangement, the State stands to collect taxes from both the landowners and the mining companies. All parties then benefit from a project, in contrast to Papua New Guinea in the past and today, where the landowners are the ultimate losers.

The recent amendment of the MRA Act 2005, was justified in that, the mining industry members were regulating themselves from 2005 to 2018, after having gained a significant number of seats on the Board of the Authority.  The MRA was therefore seen as an organization that was run by the mining industry for its own benefit and against the interest of the country and its citizens. The Chamber of Mining and Petroleum now calls the amendment uncompetitive, because of their exclusion from the Board that they controlled for many years to their benefit but to the detriment of the landowners, the country and its citizens. The Federation challenges the Chamber of Mining and Petroleum to identify any government in the western world that would allow the mining industry to take over the enforcement of its mining laws against itself. We would think that such a practice, if allowed, would be deemed to be corrupt and therefore unlawful.

The UN High Commissioner further went on to say that; “the government urgently needs to build a stronger nexus with its people, so it can better serve their needs in this vast and diverse land.”  He saidthat it was unacceptable that many businesses had been granted licenses to engage in the extractive industries without the free, prior and informed consent of the people living on the affected lands…

 The Federation believes that the amendments to the Mining Act 1992, the MRA Act 2005 and the Petroleum Act 1998 are three laws which must be amended so that those citizens who are owners of the land under which any mineral or petroleum are found, are recognized by law, as the owners of those resources. This then will be the beginning of a new era, where the State will be building a stronger nexus with its people going forward.

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Fiji Ministry clarifies on bauxite mining processes

xinfa bauxite bua

Fiji government tries to claim consent to mining from two chiefs is equivalent to free prior informed consent from ALL the landholders…

Luke Rawalai | The Fiji Times | August 28, 2016

BAUXITE has only been mined at Nawailevu and Naibulu and chiefs from both areas have consented to the project, says Ministry of Land’s deputy secretary Malakai Nalawa.

Mr Nalawa said that hence approval had been given by the two chiefs to the companies.

Responding to outcry from Bua Urban Youth about the need for obtainment of Free Prior and Informed Consent (FPIC) from landowners before any mining processes, Mr Nalawa said that this has been obtained.

Meanwhile, BUY representative Vani Catanasiga says that officials must do more than just seeking the chief’s consent as a signal of the community’s approval.

Ms Catanasiga said they needed to prepare dialogue spaces between landowners and companies so that they can discuss on the pros and cons of mining before any decision is reached.

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Fiji: Committee to look into mining issues

New committee is a response to community activism and its sounds good – but its role is to inform the people. raise awareness, hear their concerns… and make sure the mine goes ahead!

This is just government greenwashing and the people of Bua are unlikely to be fooled…

Serafina Silaitoga | The Fiji Times

A COMMITTEE has been set up to look into issues related to proposed bauxite mining at Wainunu in Bua.

Tui Wainunu Ratu Orisi Baleitavea confirmed the committee would consist of senior government officials and traditional leaders.

Known as the Wainunu Development Board, Ratu Orisi said the major role of the committee was to ensure the people of Wainunu were well informed of the proposed plan.

“We have major stakeholders as part of the board and they will raise awareness in villages about the bauxite mining, the good, the bad, the purpose of the development and the foundation of developments we prepare now for our future generation,” he said.

“But our priority is ensuring that our people’s voices are still recognised through this board and we will ensure they are happy about the proposed plan.

“That is our priority and in forming this board, we also want to assure our oppositions that the voices and concerns of our people will be heard.”

Ratu Orisi said they were aware of the concerns rasied by the Bua urban youth network.

“They are part of us and of course we will take into account their concerns and the work we have already done with civil societies in saving our natural resources,” he said.

“Protecting the environment is also part of the awareness.

“We want to be sure that all villagers of Wainunu express their concerns and views as part of this awareness stage.

“That is very important.

“It is also important to note that development happens like supplying electricity to rural areas and water.”

Ratu Orisi said bauxite had been around for long.

“It’s been happening in other parts of the world and is not new so we want to ensure that our people and surrounding villages would also see the benefits of development as part of the awareness program.”

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