Alberto Acosta exposed to the Constitutional Court its views on effects of mining law.
former president of the National Constituent Assembly reiterates its criticism of the body of existing law
(TAKEN ASSIGNED INTERNET VERSION OF HOW TO ECON. ALBERTO ACOSTA).
The Mining Law that governs the country was not consulted communities, indigenous peoples and nationalities before their adoption. This is one of the many questions that made the former president of the National Constitutional Assembly, an economist Alberto Acosta, and exposes members of the Constitutional Court, who requested to submit its views on the different effects of the implementation of this body law. Among other things, to Acosta, the large-scale mining does not generate jobs, and instead, destroys local jobs and is generating migration.
In my capacity as a citizen of Ecuador, I, Alberto Acosta Espinosa, 17-02088822 identity card within the process-IN 0011-09 cumulative-IN 0008-09, responding to the request made to me by decree of May 26, 2009, happened to present my arguments on the economic, environmental, social and cultural aspects of the implementation of current Mining Law:
1 .- The pre-legislative consultation to communities, indigenous peoples and nationalities
The Constitution recognizes the pre-legislative consultation for communities, peoples and nations. This matter is referred to in Article 57, paragraph 17, which states that communities, peoples and nations must "be consulted before the adoption of a law that could affect any of their collective rights."
The mining law was not consulted communities, indigenous peoples and nationalities before their adoption. Moreover, being a law of such national importance, it should open the door to a major debate in which the whole Ecuadorian society. This unfortunately did not happen. The few meetings, and even isolated somehow manipulated to talk about mining in very few places in the country can not be assumed to comply with the constitutional provision.
This is worrying. The absence of an active participation of society in defining the legal framework for this type of extractive activities has exacerbated the negative effects thereof.
remember that since the sixties of the twentieth century, the petroleum activities have been violated massively the welfare of the people of the Amazon. Indigenous communities and settlers have suffered countless atrocities at their most basic rights in the name of the mythical being the entire population. The discourse on the importance of natural resources for national development crumbles to the realities of a system that only appreciated in terms of capital accumulation, especially crime, even though these activities may endanger life.
For indigenous peoples of the Ecuadorian Amazon, oil activities have meant a radical change in his life. Indigenous communities and even the settlers of the Amazon have been a number of assaults on their basic rights in the name of development and welfare of the entire Ecuadorian population.
While it is impossible to put a price on nature, because life is immeasurable damage "caused particularly by the Chevron-Texaco, could be quantified in billions of dollars, the expert in the trial against the company estimated at 27 billion dollars damage, on account spills, pollution of wetlands, gas burning, deforestation, loss of biodiversity, wildlife and domestic animals killed. To this we should add materials without payment, salinization of rivers, disease (cancer cases reach 31%, when the national average is 12.3%) for low-paid work.
In the psychosocial field complaints are many: sexual violence by the company against operators of adult women and minors mestizo and indigenous, spontaneous abortions, discrimination and racism, forced displacement, harmful cultural impact and disruption of social cohesion. Moreover, on Chevron-Texaco also weighs the extinction of indigenous peoples such as the Tetetes and sansahuaris, more than all the economic damage, social and cultural caused to the indigenous Siona, redwood, Cofan, Quichua and Huaorani, including white settlers -mestizos.
territoriality is primarily affected, food and cultural traditions of indigenous peoples. Mainly communities, indigenous peoples and nationalities living traditionally in the concession area of \u200b\u200bthe Chevron-Texaco, a situation that has been repeated in other concessions with varying levels of severity. Even
is good to remember that the environmental remediation that would have made the company was a whole line was, with the complicity of authorities.
This claim is beyond the scope Amazon. Exceeds the destruction you have to pay Chevron-Texaco. Affects the entire society. Moreover, an opportunity to punish and halt the pollution caused by oil activities, which is held by the combination of political power with the transnational discourse that encourages the exploitation of oil (and now large-scale mining) in supposed benefit of all inhabitants, speech to a policy of concealment of reality, intimidating those who oppose, humiliation and neglect for the victims ... dollars earned while only low amounts have benefited the entire population, since most have flowed in a few pockets, especially the powerful corporations and the external debt creditors. Trust
now the exploitation of mineral resources will help solve national problems reissuing the same practices of exclusion from society, not only naive but irresponsible.
hope that the Constitutional Court members do not become complicit in similar situations to allow extractive practices outside the constitutional provisions.
2 .- Consultation with communities, indigenous peoples and nationalities
In the Constitution there are two forms of consultation.
One that is done to communities affected by environmental risk decisions, in which case the opposition of the majority of the respondents is covered by the decision of the administrative authority above, as required by Article 398. This provision is applicable for all Ecuadorian society.
The other, under Article 57, recognizes communities, indigenous peoples and nationalities the right to prior consultation "under the Constitution, treaties, agreements, statements and other human rights instruments." According to the UN Declaration on the Rights of Indigenous Peoples requires the consent of the respondents to perform some activities which may affect the exercise of their rights.
Article 90 of the Mining Act confuse the two types of consultation and said that consultation with communities, indigenous peoples and nationalities would be made "in accordance with Article 398 of the Constitution." This reduction of the right of communities, peoples and nations is unconstitutional. Intended to ignore their right to prior consultation and free, prior and informed that they are entitled in accordance with the above international instrument. Here
sadly acknowledge that the Constitution did not incorporate the right to consultation in conjunction with prior consent for any of Ecuadorian society. However, in the context of a Multinational State, which recognizes specific rights to communities indigenous peoples and nationalities that right is guaranteed through the incorporation of international treaties that protect those communities.
deny this right would be to deny the validity of the international instruments accepted as valid by the Constitution, women and members of the Constitutional Court.
3 .- The division and hierarchy of laws
Article 133 of the Constitution contains the division of organic and ordinary laws. The former are higher in rank than the first. This division, referred to in other letters and constitutional aims to organize the body of laws in accordance with their significance. So this article sets out the matters to be regulated by organic law, such as those related to the functioning of public institutions, human rights, constitutional guarantees, the decentralized bodies and political party system.
However, the Second Final Provision of the Mining Act states that its provisions "shall prevail over other laws and may only be amended or repealed by another Act expressly designed specifically for such purposes." While not literally becomes a law is organic, is absurd to claim that a law has "privileges" with respect to other laws of equal legal status.
As the matter is, the Mining Law is an ordinary law and as such could not modify or override statutory laws. Nor could do compared to other ordinary laws, but according to general principles of law, ie in particular with regard to the matter is concerned.
No legal basis for this Act to have a sui generis and not reform all the laws, specifically, by a law reform its content explicitly or tacitly, whether a new law of equal or greater legal status includes different rules to those provided for therein.
The Constituent Assembly was very careful not to put in the field of organic laws those relating to the economic-productive, for the simple reason that the economy, namely capital, must be at the service of human beings never the reverse. "The human being is the subject and purpose" of the economic system and economic policy, as required by Article 283 of the Constitution.
Then they can not laws regulating the economic-productive to be above the laws governing human rights, as could be the food sovereignty law or water law, among others. I wonder why this provision of the Mining Act is intended to violate the Constitution? Could it be that this Act is to minimize the content of the Constitution in regard to water as a fundamental human right? Do you provide members of the Constitutional Court for this outrage?
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
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