4 .- The compulsory easements and territorial rights of indigenous nationalities
Article 57 of the Constitution, in paragraph four, contains the right of municipalities, communities, peoples and nations to territory, which will be inalienable, indefeasible, and indivisible. This provision is also violated by the Mining Act.
Moreover, the Act states that since it is a concession, the surface lands are subject to easements to be occupied throughout the extent required by building own facilities and mining activity, transit, water supply, railways, airfields and every other system of transportation and communication, etc. Holders of mining concessions "may agree" with land owners regarding easements (Article 101). Do not confuse the word "may" which means option or possibility with the word "shall" to mean an obligation or mandate. The property owner does not have the option to decline or object to the easement.
The easement is a way to divide the property because the owner still is, but the effective control of the land passed to a third party. This equates to the possibility of dividing the Indian territory, and even foreclosure.
This is an issue very carefully. Ask ourselves, what is the relationship of indigenous nations and its own territory?, Can survive the indigenous nationalities (especially culture) without territory?, What is the experience of the oil activity in the territory of indigenous communities? Questions you should ask the members of the Constitutional Court. 5 .-
Exceptionality in the private sector in strategic areas
Article 316 of the Constitution stipulates that the State may not delegate to private participation in strategic sectors in exceptional circumstances. The Mining Act, ignoring the constitutional provision of exceptional, given the same treatment to the public enterprise and private companies access to mining concessions.
This is, without doubt, another constitutional violation. The basic spirit of the Constitution, in Article 313 clearly states that "The State reserves the right to manage, regulate, control and manage the strategic sectors in accordance with the principles of environmental sustainability, precaution, prevention and efficiency. Strategic sectors, decision and exclusive control of the state are those who because of their importance and magnitude have decisive influence economic, social, political or environmental, and should be oriented to the full development of human rights and social interest. Are considered strategic sectors of energy in all its forms, telecommunications, non-renewable natural resources, transport and refining of hydrocarbons, biodiversity and genetic heritage, spectrum, water, and others determined by law. "
Major non-renewable mineral resources are minerals, because of the Act Mining. And to encourage their use, as stated in Article 315 of the Constitution, the State-owned enterprises constitute the management of strategic sectors, the provision of public services, the sustainable use of natural resources or public goods and development of other activities economic. "Willingness to comply with the Mining Act, the which, however, maintains control of these resources by private companies, especially multinationals.
remember what happened in the oil sector when delivered indiscriminately exploiting this resource to transnational capital. These policies submissive eventually weaken the role of government and business, while transnational corporations gobbled up the bulk of oil revenues. Thus, in the early eighties of the twentieth century, as part of the strategy of reordering of global power-over "long night of neoliberalism" in the words of Rafael Correa, President of the Republic ", the national legal framework was required to incorporate international standards in various fields, including oil and mining, among others. Public International Law held what was space reserved for the private law of contracts. This is the result of a pincer-like action on the one hand, global standards and practices laid siege to the State and another from the same state opened the door to transnational corporations have an impact on national life, offering increasingly benefits. In this scope, with various forms of external pressure and internal regulations adopted and standards imposed by multilateral lending agencies.
For this reason, the Assembly Constituent Montecristi, which I had the privilege and honor to chair, resolved to strengthen the state's role in the exploitation of natural resources. Stomp the exceptional set in Article 316 is a constitutional violation.
addition there is reason to establish another unconstitutional. With the legal provisions in relation to the amount of royalties to pay, you can not comply with the provision of Article 408. They determined that "the State will participate in the benefits of use of these resources (minerals, author's note), in an amount not less than those of the company that exploits them." This constitutional provision should be incorporated exhaustively in the Mining Law, as a reference point to secure the participation of mining revenues between state and private companies.
In reality it would be naive to expect the state income is at least equivalent to that of firms. It will say that you can sum royalties income taxes paid by businesses (in any way will be supplemented by employee participation, which was also reduced in the law unconstitutionally Mining). But, in practice, recognizing that businesses are those that control the information, this expectation is met, since that mining companies are experts with a series of fraudulent practices, to hide their true income to minimize tax payments. This has been shown for Chile, Orlando Caputo, mining expert, who was a representative of former President Salvador Allende in the Executive Committee and General Manager of Codelco (Corporación del Cobre).
6 .- The rights of nature and human right to healthy environment
Article 71 of the Constitution grants rights to nature or Pachamama, where life plays and performs. There he reads that Nature has the right to respect fully their existence and the maintenance and regeneration of life cycles, structure, functions and evolutionary processes.
Mining Act opens the door to large-scale mining and open pit extractive mode incompatible with the conservation and sustainable use of the environment, especially in areas of high ecological diversity and high social sensitivity.
environmental and social problems of mining are well known. Without attempting to address all issues of this activity can make a synthesis of the most significant, noting that this information is available in a book I wrote entitled The Curse of Abundance, which is coming out soon Notice.
Mining typically involves drilling the ground, removing material from underground, move and process massive amounts of rock, in many cases use polluting chemicals. Furthermore, not everything that moves is used, in the case of copper mining, including more than 95% of the original rock may become waste removed. In the case of gold, per ounce, obtained with the latest technology, produced 28 000 kilograms of waste.
In Ecuador, this relationship, according to the Water Forum could cause an enormous movement of land. Aurelian If the Canadian company will exploit the deposit Fruta del Norte in the Cordillera del Condor, which, according to the company, contain reserves of 137 million ounces of gold, the volume of waste would reach the astronomical figure of 400 billion kilograms of waste material. A figure comparable to the 5255 waste generation (five thousand two hundred fifty-five) years from the city of Cuenca, which currently generates 200 tons of garbage daily.
addition, many of the impacts of this activity will be much more severe in geographical areas characterized by high rainfall, usually rich in biodiversity, which in desert regions. That is, to put it in good romance, not the same thing to mine in the Chilean desert, in the forests of the Cordillera del Condor or Intag or water sources Quimsacocha. However, natural resources, including biodiversity and lower air-desert areas such as in Chile, also may be affected by these processes, to the extent that contamination can occur is maintained until many years later.
mining uses large quantities of water for metals, which then typically is poured contaminated in their original courses. Take, for example, the problems caused by mining through the use of water. To produce one ton of copper polluters are required and between 10 thousand and 30 thousand liters of water (other sources say up to 70,000 liters of water), an ounce of gold requires 8,000 liters of water. Open pit mines commonly dry slopes around the mine, the deeper the mine, the more drying and major impacts on agriculture, livestock and local climate. There have been cases where mines have lowered the groundwater level of 300 meters; mines have to pump about 100 million gallons of water daily to access the mineralized material.
Moreover, foundry waste (slag and dust) can contaminate surface and groundwater. These wastes often emit pollutants, especially where water has a pH that react unusually high or low, and / or are salted or containing lime. More dust, are the gases, which in the case of copper, usually contain arsenic, among other heavy metals. Thus, the plant Oroya (Peru) has contaminated 99% of children with lead above the standards of World Health Organization. The Norlisk smelting plant in Russia, has destroyed 350,000 hectares of forest soil acidification. This list is endless ...
When exposed to the elements (air and water) minerals in the mine, especially those related to sulfur, acid-generating which is then filtered into the subsoil. These leaks not only impact the ground, but can go directly into rivers and streams, as the case of the Sacramento River in California, to name just one example. This is known as acid mine drainage. It is a phenomenon impossible to contain, contaminated groundwater and surface water acidification and heavy metals, and these impacts can be long or even permanent (there are mines in the Roman Empire that still cause serious pollution problems, in Spain, Rio Tinto, there is waste acid drainage from mines operated two thousand years ago.) The abundance of water
existing groundwater and high rainfall in Ecuador, dangerously increase the risk of generation of acid mine drainage. Moreover, there is no scientific evidence of large-scale mines that have prevented this phenomenon contaminant in the tropics.
There are a number of products which are very harmful to nature used in mining. For example, industrial, cyanide is used to extract gold from the mine (ie, where is all the ore body, the earth and rock that contains the metals sought). A dose the size of a grain of rice would be enough to kill an adult. Concentrations as low as 0.1 mg liter (mg / l) of arsenic are lethal to sensitive aquatic species. The mining industry in the U.S. is responsible for 96% of the arsenic contamination in the country. Mining in the U.S. represents less than 1% of GDP but generates 43% of toxic waste.
Studies show that the pollution caused by mining existing dangerously extends the Ecuadorian coast. Part of the banana plantations in Ecuador would be contaminated by mercury and other elements. The fruit may be rejected in the international market. This pollution also affect cocoa plantations and aquaculture. Even be at risk of the sources of water used to supply the vital liquid purifier in the city of Guayaquil. The cause is the large contamination with heavy metals in rivers Tenguel, Gala, Chico and Seven. Recent evidence
pollution which indicate that at the processing plant Paz-Borja water sedimentation pools recorded nickel contamination to 0.1161 milligrams per liter (mg / l), exceeding the allowable limit set by Unified Text Environmental Law is 0.025. Also, the mercury concentration reaches 0.0076 mg / l when allowed is 0.0002 mg / l. The Municipality of Guayaquil, in a study on quality water, held in late 2007 and published in April 2008, confirmed these high levels of pollution. For that reason, the Ministry of Mines and Petroleum, in April 2009, temporarily shut down mining in the area Tenguel.
ore processing usually requires chemical treatments to remove heavy metals. These metals are often filtered directly from the ore using strong acids. Minerals undergo a grinding process that involves compression, addition of various chemicals, combined with physical separation processes that produce waste called tailings. Both types of processes produce wastes that contain numerous scrap metal and non-metallic mineral, but also contain high concentrations of chemicals.
Modern mining extracts minerals in large swaths of territory where they are in very low concentrations (mineral law). The current average for copper is 0.7% ie 100 tonnes of material removed, equivalent to only 7 kg mineral. The remaining 99.3% is waste, with concentrations of other minerals and heavy metals like arsenic, lead, chromium, cadmium, sulfur, etc. These wastes must be stored for life, for what you use dams, creeks or dams to be isolated to avoid being swept away by flood rain, etc.. In areas of high disaster risk, with high biodiversity and high rainfall, can be fatal.
Many processes require mining infrastructure requires long-term maintenance to prevent serious deterioration and pollution. Such plants and equipment maintenance require continuous and long term, may be one of the most expensive environmental activities related to mining. It is anticipated that the environmental impact will continue for decades after closure, or even forever. The worst thing is that the economic calculations made by firms do not include remediation costs or externalities. On this point there is categorically Mining Law reason for this constitutional claim.
For such large scale projects, the central point must be unconditional respect for life itself. Recall that in the United States itself, especially in some states there are severe limitations on large-scale mining. In Wisconsin, for example, governing the so-called Mining Moratorium Act, which requires anyone interested in exploiting mineral resources, which, in advance, show that similar operations have been handled without contamination of water during operation and up to 10 years after mine closures. This may have been one of the major innovations of the new Mining Act.
The operating companies sometimes do not need to remediate the environmental impacts on natural resources. Environmental costs are assumed to be zero cost. And there are many cases of companies that, once the exploitation of mineral, break before assuming environmental liabilities. As a result, in many countries actual costs are often subsidized by taxpayers and concerned citizens.
estimated costs to remedy a zinc and copper mine in the state of Wisconsin (U.S.) are $ 5 per ton of processed mine. In other mines the remediation costs amounted to $ 67.60 per ton. Only in the case of ECSA in the Cordillera del Condor if you applied this same formula with the lowest value (5 $ / ton), the cost of remediation would be approximately $ 1,500 million. Half of the total value of mineral supposedly exists.
Another fact worth considering is that large-scale mining does not generate many jobs. Employment and local demand is generally of poor quality. The positions of specialists and skilled workers are filled with people from outside the mining areas, and even abroad. In Peru, the mining sector employs about 0.9% of the economically active population (EAP). In Chile employs 1.4% of the PEA. In Brazil, about 0.1% of PEA.
But yes, mining destroys local jobs and generate migration, pollution of soil and water moves agriculture and livestock; prevents tourism destroys wages, increased crime (similar to the case on many issues in the Amazon oil Ecuador).
Also consider accidents associated with transportation of mine waste and chemical processes affecting the local population, and environmental impacts resulting from the use of millions of pounds of explosives necessary to open huge holes open pit mining.
Finally, without claiming to have exhausted the subject of environmental and social risks, there consider the human rights violations common in mining areas. For example, about 70% of forced displacement that occurred in Colombia between 1995 and 2002 occurred in mining areas. In the mining areas of Peru, a country that seeks to make an example of open mining, the Human Rights violations have multiplied exponentially. In Ecuador, the most serious cases of human rights violations have occurred in recent years are related to transnational mining companies and of course oil activities. This reality was recognized in 2008 by the National Constituent Assembly to issue the mining mandate and granting amnesty to people criminalized by mining companies.
should be noted, ladies and gentlemen, members of the Constitutional Court that the Mining Act in question does not give adequate treatment for small-scale mining and artisanal mining and subsistence, which are present in Ecuador in the field of metal and nonmetal mining, as well as mining of construction materials. It is precisely in these activities where pollution and disregard for the human condition of the miners, their families and surrounding communities are the norm.
Under these conditions, no wonder the discontent of the communities where developed or intend to develop mining activities. Are becoming larger and more radical demonstrations, especially since 2006, contrary to what might be the large-scale metal mining and open pit. These different responses from society, often accompanied by violence sparked primarily by state repression or the mining companies themselves, as well as official intolerance to discuss frankly and openly about the future of mining, are only one side visible from the stormy relationship between local communities and mining.
So far these protests against large-scale mining are focused on clearly defined areas. All of them against companies whose activities are primarily in the exploration phase. Mining companies, learning from the bad social practices of oil companies, deployed actions to win support among the communities, leading their division and even fratricidal conflicts.
Under these conditions, declare a priori that mining "is because it will" impose a mining law without a national debate and without public participation, as mandated by the Constitution disables the possibilities for open and frank dialogue. When in advance and has sunk a position, without considering the arguments of those potentially affected by extractive activities, is being planned social conflicts.
therefore dismiss the claims of unconstitutionality of this Act, knowing all these arguments, opens the door to conflicts that could result in repeated confrontations such as those already living in various parts of the country-Intag Tundayme, Victoria the Portet, or worse still more violent actions, such as those recorded in the Peruvian Amazon these days. Keep in mind that the slaughter and repression unleashed by the Peruvian government in the Cordillera del Condor affect communities Ashuar (Awajún and Wampis), relatives of those living in Ecuador.
The potential for conflict is imminent if we consider that Article 63 of the Mining Law leaves open to interpretation of the concessionaire's ability to criminalize the inhabitants of the areas in which they conduct their mining activities. It is necessary to take into account that there are cases of prosecution brought against farmers by mining companies, for their opposition to mining. The mechanisms of direct intervention in the current mining areas pass through successive states of emergency declarations and the criminalization of those who oppose these extractive activities or those who just complain about the repeated abuses of these companies.
Therefore, opening to large mining scale, particularly in the open, only increase the risks of confrontation between compatriots and margins of repression against citizens, with priority to meet the demands of transnational capital accumulation.
on you, ladies and gentlemen, members of the Constitutional Court bears a huge responsibility.
is all I can say in all honesty. I am available to the Constitutional Court to extend the information contained in this document, either in writing or in open court. Notifications that match the receive me in my office at Prairie Street and Avenue Almagro, building of FLACSO.
Sincerely, Alberto Acosta Espinosa
