Mining in the paramos?
The Rio Blanco mine lies over ten thousand feet above sea level in the Molleturo-Mollepongo region of the Ecuadorean Andes. The mine is owned by a Chinese company whose license covers 15,000 acres of paramos (treeless alpine areas that hold water in the soil), lakes, and forests that nourish eight important rivers flowing through the 2.5 million-acre Cajas National Park, one of the largest and most complex water systems in Ecuador. These mountains have long been the home of Kañari-Kichwa indigenous communities. The paramos provide water to seventy-two communities in Molleturo, as well as towns along the southern coast of Ecuador and the city of Cuenca, the country’s third largest. The mine would use cyanide to extract gold and silver, and require the use of one thousand liters of water per hour that would be contaminated with toxic waste, including arsenic, before being returned to the rivers and soil.
Indigenous communities ignored
In violation of Ecuadorian law, the government and the company did not consult local indigenous communities prior to the development of the project, let alone obtain their consent to the project. Fearing contamination of their waters, local people not surprisingly voted against mining in the area by a 2-1 margin in a national plebiscite. Moreover, a constitutional provision adopted in 2008 ordered the revocation of all mining concessions affecting water sources, protected forests, or indigenous communities. The mine’s owners obtained an environmental license only because the Ecuadorian government decided to simply ignore this constitutional provision.
And if these were not reasons enough to halt the mine, an international mining expert hired by EDLC to conduct a review and assessment of the company’s feasibility study concluded that “[a]cid rock drainage and metals leaching including arsenic are likely to be problematic and the proposed mitigation measures inadequate to prevent greater than predicted environmental impacts and associated costs.”
For many years, women’s groups such as the Frente de Mujeres Defensoras de la Pachamama tirelessly denounced to the authorities all of these illegalities and harms, but to no avail. The most recent protests led to government militarization of the area. Yaku Perez Guartambel, the lawyer for the communities who had earlier brought a lawsuit to stop the project, was kidnapped by mine workers who held him for eight hours, threatening to kill him.
Court rules for the communities
In June 2018, a court in Cuenca ordered the suspension of all mining activities, finding that the government had failed to consult with the communities, as required by Ecuador’s Constitution and by the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP). The decision marked the first time a court has shut down an active mine in Ecuador.
The company appealed, and it is reported that the company offered $18 million to community leaders to drop the case. Ecuador’s President, the Minister of Mines, and the Minister of the Environment all visited the province to pressure the local courts and indigenous communities to accept the mining activity. Instead, the communities consolidated their opposition, monitoring access to the mine to prevent a violation of the court’s order, building support from neighboring communities, and informing the international community of the legal stakes.
Legal briefs from EDLC and a Chinese lawyer
EDLC submitted a “friend of the court” brief that compiled jurisprudence from other courts in Latin America involving communities affected by large scale mining operations. In all of the cases, the courts ruled that if the mine’s impacts on nearby communities are significant, the communities’ consent is required before an environmental license can be issued. EDLC also recruited well-known Chinese environmental lawyer Jingjing Zhang to submit a brief discussing the legal obligations of Chinese companies in their overseas operations. Zhang traveled to Ecuador twice, testifying before the appeals court on her second trip. She explained to the court that Chinese companies are legally required to ensure public participation, conduct prior consultation, and obtain consent for their projects. These legal obligations arise from China’s ratification of UNDRIP; China’s own environmental laws, regulations, and policies governing the operations of Chinese companies working overseas; and China’s public statements on human rights, indigenous peoples, and the environment.
Victory upheld
On July 23, 2018, an appeals court convened to review the lower court’s mining suspension order. The following week, the appeals court not only confirmed the suspension order, but went even further, concluding that no future consultation was necessary because local people had already rejected the project through their votes in the national level referendum carried out in 2018.