January 17, 2019
Latest court ruling casts renewed doubts on Ecuador’s upholding of its constitutional process amid fresh protests of human rights violations at the country’s largest open-pit copper mine, Mirador.
The Amazonian Social Action Community Cordillera del Cóndor Mirador (Cascomi) brought the case against the Ecuador Ministry of Mining, Ministry of the Environment, Ministry of the Interior, the Regulation and Mining Control Agency (ARCOM) and mining company Ecuacorriente SA in 2018, over concerns that the Chinese-owned Mirador mine did not meet the constitutional requirements for prior consultation, among other serious human rights violations, including three enforced displacements.
Judge Carlos Dávila denied the case for protection of the area on Tuesday 15 January, saying that the open-pit copper mine in the Cordillera del Cóndor did not affect the ancestral territory of the Amazonian community.
The case rested on the mishandling of three enforced evictions, as well as community concerns over violations of their right to prior, free and informed consultation in the execution of the Mirador mining project, as well as indigenous rights violations. Concerns about evictions were not addressed by the court.
Cascomi’s vice-president Luis Sánchez said, “We will continue in the struggle until our rights are respected.” Coscomi community plans to appeal the sentence once they have received the written notification of the ruling.
The ruling comes in the wake of two court wins by indigenous communities in 2018 where judges ruled that the constitutional rights of indigenous communities to free and informed consultation had either not been upheld, or had been directly violated. These included the nullification of 52 concessions on A’i Kofan land, and the permanent closure of another Chinese-owned mine – Rio Blanco in the buffer zone of the El Cajas National Park.
“Subsequent court cases on violations of free and informed consultation have been lost amid claims of judicial corruption. We are concerned that the Ecuadorian government is attempting to qualify ancestral and indigenous ownership so that it does not have to meet its constitutional mandates,” says Liz Downes, member of the Melbourne Rainforest Action Group.
The judicial ruling is just the latest in the series of challenges to the Mirador mine, which has been under fire since 2014 over general mismanagement. Three forced evictions occurred in September and December 2015, and February 2016 were considered "the strongest and most violent that have occurred" according to Luis Sánchez. This statement was verified by the Ombudsman's Office.
These and previous evictions have resulted in huge community resistance and a spiralling of violent incidents in the area over recent years, including the murder in December 2014 of a Shuar indigenous leader known to be opposed to Mirador operations. Relocated communities have demanded reparation for unsatisfactory living conditions under their constitutional right to decent housing and access to clean water.
Local people have had to continually prove their relationship and link to the land, with Judge Carlos Alfonso Dávila ordering an anthropological survey on 6 June, 2018 to verify the existence of an indigenous population in the Tundayme area before issuing the reopening of the mine. On 1 August, 2018, he ordered EcuaCorriente S.A. to temporarily refrain from carrying out intimidating actions and order any act of eviction against the inhabitants of the Cascomi indigenous community.
Ecuacorrientes has also failed to comply with approved environmental management plans since 2015, amounting to $US 77,000 in fines and repeated mine closures, according to the Ministry of the Environment. Of 31 observations, the company was still working to correct 14 in 2018, including unplanned opening of roads, the inadequate management and operation of the sedimentation pools, and the bad management of debris. In December 2018, two workers died on a Mirador platform due to failures to implement adequate occupational health and safety protocols.
Mirador, in the heart of the Zamora Chinchipe district in Tundayme, Ecuador, is owned by Chinese companies Tongling Nonferrrous Investment Co. Ltd. (TNMC) and China Railway Construction Corporation Limited (CRCC), which make up the company Ecuacorrientes S.A. (ECSA).
If Coscomi wins the appeal, ramifications for investors and concession holders are likely to be significant. Fourteen percent of the country has been opened up to mining since 2017. Approximately 40% of the concessions are on indigenous (mainly Shuar) territory, and the rest are in globally significant biodiversity zones. This includes concessions held by Canadian Lundin Gold, Aussie heavy-weights BHP and Newcrest, as well as FMG, Hanrine (subsidiary of Hancock Prospecting) and SolGold, who announced in Jan 2019 expectations that their concessions, including Porvenir and Cascabel, could be the richest deposits of copper and gold ever discovered.
Revenue from mining is hoped to pay off Ecuador’s massive international debts, mainly to China. As of mid 2018, Ecuador owed China $US6.5 billion in debt – just over 6% of the country’s total GDP.