Ecuador legal system manipulated in case brought by Rinehart’s company, investigation finds
The National Council of the Judiciary in Ecuador confirmed the presence of irregularities and manipulation of the judicial computer system in the Protective Action that allowed Gina Rinehart subsidiary Hanrine to forcibly enter the town of Buenos Aires on August 3.
The investigation was carried out by the National Directorate of Management Transparency after Assemblyman Mario Ruíz filed a formal complaint on August 18 over concerns about the case Hanrine brought to the Judicial Unit for Family, Women and Adolescents in September.
“We had the presentiment that there was corruption in the process which authorised the use of force against the population so that the company could enter, and unfortunately we were right,” says Yuly Tenorio, a lawyer for the people of Buenos Aires.
The inquiry revealed there were a number of irregularities and omissions in the Protective Action which gave the National Police the authority to clear a route through the town so the mining company could pass. The police operation in the early hours of August 3 saw 900 National Police officers use excessive force against peaceful townspeople, including tear gas.
Protests against Lasso in Quito
The judge for proceedings is usually allocated through a lottery system, however in this instance the case was assigned directly by Gabriela Fernanda Beltrán Loyo, a judicial official who had already received administrative sanctions over irregularities in another case.
“No other judge was going to authorize the indolent repression of people who were exercising their right to resistance backed by a Precautionary Measure won by the people so that the company withdraws,” Yuly Tenorio says.
The revelation comes only a week after Hanrine was found to have paid pro-government protestors at a rally. Huge protests against the government over corruption concerns and an increase in fuel prices have been ongoing across Ecuador since Tuesday, October 19th.
“The actions of Hanrine in Ecuador have been concerning from the outset. They have continued to aggressively push mining equipment into the area despite resistance from locals who they say they were never consulted about a mine on their land,” says Rebekah Hayden, a writer and researcher for the Rainforest Action Group, an advocacy group investigating the actions of Australian mining companies in Ecuador. “Public officials have been threatened by Hanrine employees, with any who resist mining being taken to court by the company for obstructing ‘its constitutional rights’.”
“Article 398 of the Ecuadorian Constitution guarantees communities the right to a previous environmental consultation before any extractive process has begun. This has not happened anywhere in the country,” says Peter Shear, the director of APT Norte, an environmental and human rights group operating in Ecuador.
Assemblyman Mario Ruíz who filed the formal complaint says that the Judiciary's report “confirms our suspicions and unmasks the way in which the lawyers of the Hanrine company operate through fraud, misrepresentation and purchase of consciences ”.
After the revelations of the investigation, the Provincial Directorate of Pichincha opened an investigative file to determine disciplinary actions and apply corresponding sanctions to the civil servant Gabriela Fernanda Beltrán Loyo, Judge Byron Andrés Vallejo Naranjo, and Carlos Mesías Huilca Aguila, who served as secretary of the case.
Locals at Gina Rinehart’s Ecuador concessions protesting “invasion” by company and military
The Ombudsman's Office of Ecuador has called on the National Government to suspend all mining activities in the Buenos Aires parish where Rinehart has several concessions, after what it deemed was excessive military force against inhabitants resisting mining. The Buenos Aires community says they have not been consulted and do not want a mine in their area.
Resistance against Hancock’s Ecuador subsidiary, Hanrine Ecuadorian Exploration and Mining S.A, has been building in the last few weeks, with the company attempting to move machinery and personnel into the area despite a State of Emergency and curfews due to COVID-19.
“Villagers say Hanrine is acting illegally in trying to forcibly enter their territories. They do not want any kind of mining in their territories, particularly a foreign-owned mine, and they view the incursion as a violation of their rights. Despite reports in Australian and Ecuadorian press that resistance in the area was by illegal miners, locals insist this is not the case, saying that Hanrine is conducting a smear campaign against them,” says Rebekah Hayden, a member of the Rainforest Action Group, a research and advocacy group investigating Australian mining companies acting in Ecuador.
“Hanrine have contracted a high-placed constitutional lawyer who sent a threatening letter to the Buenos Aires Parish government president, saying they are starting procedures to remove her from office, and may take her to court for violating the company's constitutional rights over allegedly restricting them from accessing their concessions. They have also said she is working with illegal miners, which is not the case,” Rebekah Hayden says.
“Villagers feel the state has abandoned them after authorities abruptly left the dialogue table on April 23 without resolving the conflict caused by the mining company. This contradicts statements by pro-mining newspaper Prensa Minera Ecuador that a resolution was reached,” Rebekah Hayden says.
Heavy military and police presence. Image credit: Amaru Qu
“The government has responded to the resistance by sending in the military and national police in what was seen by many to be a heavy-handed response. The Ombudsman’s Office of Ecuador denounced the use of excessive military force against inhabitants on April 24, and has asked the Government to suspend mining activities. The Alliance of Human Rights has also called on the Government to respect people’s rights to protest,” says Rebekah Hayden.
“The situation has been intensified by concerns that Hanrine’s movements are putting the population at risk of COVID-19. The area is currently under a State of Emergency, with a night curfew, and movement between areas restricted. However on April 19, a backhoe entered, along with 7 trucks carrying machinery and approximately 25 pickups moving mining personnel into the area,” says Rebekah Hayden.
“The community has called for a constitutional injunction to stop Hanrine operating. Inhabitants state the company did not conduct environmental consultation with the people before entering their territory and that there is a report from the Comptroller General of the State complaining irregularities in the delivery of concessions to Hanrine,” Rebekah Hayden says.
“This is only the latest travesty for Gina, after her Ecuador CEO Carlos de Miguel was arrested for an alleged illegal weapons cache, and follows two years of upheaval for the small town which saw 10,000 illegal miners arrive in 2018 in the search for gold on Rinehart’s concessions. The army was called in 2019 after armed militia began competing for dominance an several people were killed, their bodies stuffed down mine shafts. Several people are still missing. The situation has only deterred locals further from mining of any sort,” Rebekah Hayden says.
LETTER FROM HANRINE TO LOCAL GOVERNMENT PRESIDENT HERE
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Protest in Ecuador over UNESCO Biosphere Reserve threatened by SolGold, BHP and other miners
Yesterday marked 60 days of protest against mining for people in the Parish of Pacto in Ecuador. In December, the Pacto parish declared an indefinite protest, arguing that mining activity threatens the biodiversity and water sources of the Chocó Andino reserve, home to the endangered Andean Bear.
One of the incredible amphibian species of the Choco Andino Biosphere Reserve
UNESCO added the Chocó Andino reserve to its list of Biosphere Reserves in 2018. The reserve covers 286,000 hectares of the Chocó Andino, and represents around a third of the Province of Pichincha, of which the parish Pacto is a part. The cloudforest is home to around 350 bird species, hundreds of orchids and bromelias, and 100 species of mammals, including the spectacled bear.
In 2011, the Quito Metropolitan Board declared Pacto’s micro-river basins be protected due to their importance for ecosystems in the area, explicitly prohibiting mining and drilling activities. However, in 2018 a number of mining concessions in the area were handed out.
"The Chocó Andino Reserve is now surrounded by dozens of mining concessions, and illegal mining is encroaching within the reserve. Community organisations say that mining is threatening the water sources of the reserve," says Rebekah Hayden, a writer and researcher for the Rainforest Action Group, an advocay and research group.
"SolGold subsidiary Valle Rico Resources holds several concessions around the Reserve, including two in neighbouring province Esmeraldas. BHP's Sabeleta concessions are just to the north of the Pichincha border, while Ecuador state company ENAMI is exploring on concessions within the Reserve area," says Rebekah Hayden.
"Sources in Pacto tell us that Gina Rinehart’s Ecuador subsidiary Hanrine has put in a bid for two concessions in the Pichincha province – Lorena 2 and 3, which are expected to be accepted once the mining cadaster opens again in April," says Rebekah Hayden.The Reserve includes nine Protected Forests, the Andean Bear Ecological Corridor, three Conservation and Sustainable Use Areas, multiple private reserves and a National Park: the Pululahua Geobotanical Reserve.
UNESCO map showing Choco Andino Biosphere Reserve
In October 2020, the Metropolitan Board passed a resolution to support conservation in the area, but Pacto communities say mining exploration is continuing regardless, and is contaminating the Reserve.
Elcomercio reports conservation groups as saying mining is “not compatible with the biodiversity of the area, nor with the sustainable production that is part of the management plan for these areas. They pointed out the use of dynamite and other explosive materials, the contamination of the water, the fragmentation of the communities, the damage to the landscape”.
On December 18 2020, the Parish of Pacto declared the protest, demanding the departure of the three mining companies operating their concessions in the sector, and calling for greater control of illegal mining activities by authorities.
"Illegal mining has proliferated in Ecuador since the expansion of legal mining concessions, with illegal mining operations increasingly run by armed militia connected to cocaine cartels and ex-FARC dissidents. In January 2020, police uncovered an illegal mining operation in Pacto, which contaminated the area with hazardous wastes, while hydrocarbons, dynamite and materials for mining were seized," says Rebekah Hayden.
"Resistance to mining projects across Ecuador is growing with a popular consultation on February 7 in Cuenca showing 80% of the population wants to prohibit large and medium- scale mining activities in their river water recharge zones," says Rebekah Hayden.
"The consultation is expected to form the basis of a major legal challenge at the Constitutional Court level and could halt the development of mining projects in the region. SolGold project El Cisne 1A is in the Cuenca province," says Rebekah Hayden.
Google Earth map showing Pacto and all mining concessions outlined in red. SolGold concessions are shaded in green. Dark green shaded areas indicate Protected Forests. Compare with UNESCO map above showing Biosphere Reserve which covers much of the Pacto Parish.
Australian concessions within Pichincha province: Fortescue: Santa Ana 1, 2a SolGold: El Decanso 1b; San Miguel 1,2,3,4
Closest Australian concessions to Pacto: BHP: Sabeleta 3,4 in Imbabura province SolGold: Aurora 1,2 in province of Esmeraldas
Llurimagua case for endemic species looks set to be lost by the Ecuadorian Ministry of the Environment in significant blow to plans for mining in the area
A case for protecting endemic species at the planned Llurimagua mine site had another win last week when Carmen Jaramillo Cevallos, Judge of the Multicompetent Judicial Unit of the Cotacachi canton, issued her full judgment on the case.
Contamination from exploration. Image credit: Carlos Zorrilla
The Constitutional Injunction was brought against the Ecuadorian Ministry of the Environment and the State Attorney General in August out of concerns that the rights of nature enshrined in Articles 71 and 73 of Ecuador’s Constitution of the Republic would be seriously impacted by mining activities within the Llurimagua concession in north-western Ecuador’s biodiverse cloud forests.
In a preliminary ruling released on September 24, the judge had ruled that the Ministry of the Environment had failed to protect endemic and critically endangered species on the Llurimagua mining concession, and gave the Ministry of the Environment 90 days to solve omissions and irregularities detailed by the Nation's Comptroller General in its March 2019 report.
If these are not remedied in the timeframe, environmental licenses on the concession will be revoked. Additionally, the court decreed that the process must be overseen and validated by the Municipal government, a University and the Public Defender's Office (Ombudsman).
“The measures [that must be complied with] include things that will be technically impossible to remedy, given that one of the most important irregularities was that the Ministry of the Environment approved the environmental license in 2014 without proper or sufficient baseline information – including not having a valid information from a meteorological station,” says Carlos Zorrilla, a founder of DECOIN and one of the petitioners in the case.
“They may install a meteorological station in the area now, but it takes years of data collecting to validate the information. It will be technically impossible for them to comply – especially with the civil society oversight,” Carlos Zorrilla says.
BHP and Gina Rinehart’s Ecuador subsidiary Hanrine have both been slated as likely buyers of the government-owned mining company’s share in the Llurimagua concession. The difficulty of meeting the measures in the required time will almost certainly mean the environmental permits for Llurimagua will be revoked, and makes any mining plans for the area increasingly unlikely.
The full ruling released on October 22 states that Nature has intrinsic rights that are completely independent to human or civil rights; that these rights were violated when the State did not control mining activities in the Llurimagua concessions; that the Ministry did not take into account adequate protection for species in danger of extinction; and that the judicial protection was also violated.
“The judgement states that while the destruction of a few trees or a couple of the last remaining frogs of a certain species may not be significant from the public interest perspective, it is certainly significant to those specific species,” Carlos Zorrilla says.
The ruling would also pave the way for other similar cases to halt mining activities in areas where endemic species are found. Ecuador’s high rate of endemism means this could apply to most of the country.
Australian mining companies BHP, Newcrest, SolGold, Fortescue and Hancock Prospecting, who all have subsidiaries in Ecuador, had hoped to take advantage of a pro-mining government eager for international investment, despite an overwhelming majority of Ecuadorians who do not want mining to take place in forested areas, on indigenous territory or near urban areas.
Another Rights of Nature case was heard at the Ecuadorian Constitutional Court on October 19 arguing that the country’s system of legally ‘Protected Forests’ should receive increased protection from mining based on the threats to fragile ecosystems and endangered species.
Again, a key argument in this case is that nature has intrinsic and inviolable rights, which Ecuador’s Constitution is unique in enshrining. A positive ruling would not only protect Reserva Los Cedros from mining, but could provide a precedent to safeguard all 186 Protected Forests in Ecuador, totalling some 2.4 million hectares (6 million acres).
Mining concessions currently cover over 800,000 hectares of Protected Forests in Ecuador, with Australian and Canadian mining companies holding the largest share.
“These Ecuador cases have implications internationally, with many several Indigenous and community groups in Australia currently looking to explore legislation to give rights or legal personhood to, and protect, the intrinsic value of rivers, waterways and other natural features,” says Liz Downes, a member of Rainforest Action Group, an advocacy and research organisation.
“Legislation based on legal personhood principles gave additional protection to Yarra River (Birrarung) in Victoria in 2017, by empowering its Wurundjeri Traditional Owners. Other rights of nature cases being explored include the Great Barrier Reef, the Fitzroy River and the Murray-Darling river system,” says Liz Downes.
A Constitutional Protection Action win at the Cotacachi Court on September 24 may stop mining companies destroying the habitats of endemic species in Ecuador
The Confusing Rocket Frog, one of the endemic species from the case. Image credit: Luis Coloma
“In a huge win for the environment, on Thursday 24 September a judge at the Cotacachi Court ruled that the Ministry of the Environment failed at its job of protecting species on the Llurimagua mining concession in northwestern Ecuador’s biodiverse cloud forests. The case has implications for mining companies operating throughout Ecuador,” says Rebekah Hayden, a member of the Rainforest Action Group, an environmental research and advocacy group.
The Constitutional Injunction (Medidas Cautelares) was brought to the Cotacachi court in late August to immediately stop the Llurimagua copper mining project. The case argued that extractive activities in all habitats where endemic species are found should be prohibited.
“Two endemic species of frogs are threatened by the Llurimagua mining project: the Longnose Harlequin Frog and the Confusing Rocket Frog. The case was put forward by environmental and community groups DECOIN, GARN, CEDENMA and the Jambatu Centre. More than three dozen other species including several bird species, two species of monkeys, and the spectacled bear are also in danger of extinction from the mining project,” says Carlos Zorilla, a founder of DECOIN.
The team presented several expert testimonies, including Ecuador's best-known herpetologist Juan Manuel Guayasamin and Amicus Curiae (Friends of the Court) from mammal biologist Professor Diego Tirira, University of Sussex biologist Mika Peck, and lawyers from Ecuador’s Ombudsman’s office, Nature Rights expert Natalia Greene, among others.
“The Llurimagua copper mining project is being jointly developed by Ecuadorian state miner ENAMI and Chile giant Codelco in an extraordinarily biodiverse region. However, community resistance, a highly flawed environmental impact study and conflict between the two companies over how to split the profits, means there hasn’t been any exploration on the site since 2018. Aussie companies BHP and Hanrine (a subsidiary of Gina Rinehart’s Hancock Prospecting) are contenders to buy ENAMI’s share, with the sale expected to happen in the next few months,” says Rebekah Hayden.
The court ruled in favour of the Rights of Nature over the economic rights of the mining companies, giving the respondents - the Ministry of Environment and the Attorney General - three months to remedy the illegalities and irregularities detected in the first stage of exploration. This process will be overseen by a number of civil society groups, including universities.
“The judge ruled that if the government can’t show they can adequately protect these species from extinction, the mining permits will be revoked. This ruling also indicates that similar cases to protect other endemic species around Ecuador may succeed in the courts. Given Ecuador’s high rate of endemism, it could stop a large part of the country from being mined,” says Carlos Zorrilla.
The government has said it will appeal the decision, but the Rights of Nature team are confident they are more likely to win at a higher court.
“We are prepared to take the case all the way to the Supreme Court, as we feel there is indisputable evidence that mining in Intag’s forests will violate the Rights of Nature,” Carlos Zorrilla says.
The prospect of a lengthy court case, particularly when Rights of Nature are such an important part of the Ecuadorian Constitution may affect BHP and Hanrine’s decision to invest in the project.
The Imbabura Province where Llurimagua is situated has been a hotbed of conflict since the early 1990s, with two mining companies forced out since then.
“With BHP emerging as a likely contender to buy out ENAMI, and their standstill agreement with SolGold expiring in October, allowing it to make a bid on the company, a winning bid for both SolGold and ENAMI’s share of Llurimagua would give BHP the largest number of concessions in the region, and increase its holdings across Ecuador to over 300,000 hectares,” says Rebekah Hayden.
“The case for the rights of endemic species could make it a very bad investment for BHP if they go ahead with these bids,” says Rebekah Hayden.
FOR MORE INFORMATION, CONTACT:
Carlos Zorrilla toisan06@gmail.com (DECOIN) Centro Jambatu andreateran84@gmail.com Natalia Greene secretariat@therightsofnature.org, presidencia@cedenma.org (GARN, CEDENMA)
Visit: www.decoin.org Intag Santuario de Vida Facebook
For additional information about the frogs see: https://bit.ly/331VNUf and https://bit.ly/307I2kV
A Constitutional Protection Action could protect the Rights of Nature over the economic rights of transnational companies in Ecuador's Intag Valley.
Originally published in The Ecologist by Rebekah Hayden
The Intag valley in the Imbabura province, high up in north-west of Ecuador, should be a peaceful place. Forested mountains are blanketed so thickly in fog that the sub-tropical rainforests are known as cloud forests.
These forests shelter a biodiverse treasure in the plants and animals found here – many of which are critically endangered or at risk of extinction. Some are found nowhere else on earth. A study in 2018 found 287 endangered species in the Intag area alone. That number keeps going up as new species are discovered.
On the valley floor, farmers hold small plots of land, growing coffee, bananas and other subsistence crops. Yet beneath the subsoil lies bright seams of copper. To get to it, chunks of the valley and the mountains must be torn apart.
Mining
Atelopus longirostris. Image credit: Carlos Zorrilla
The Intag region has been a hotbed of conflict since the early 1990s, when miners exploring for copper discovered the valley’s mineral riches, and the community first voiced their opposition. Since then, communities in Intag have denounced mining companies for violations of permits and licenses. Two mining companies have since been forced out by peaceful, but determined community resistance.
Backed by local government, communities have presented evidence of serious human rights abuses, contamination of the Junín river, illegal logging, unauthorised land-use, and demanded the area be recognised as a mining-free zone, highlighting the region’s other sources of wealth, including its biological diversity and ecotourism potential.
A preliminary Environmental Impact Study conducted in 1996 found even a small copper mine in the Intag region would lead to massive deforestation and contamination of waterways with heavy metals. It predicted relocation of four communities, a reduction in rainfall and an increase in climate instability, a serious concern for a region already at grave risk of climate change.
Despite all this, the government continues to parcel up the land and sell it to transnational companies.
The Llurimagua copper mining project has a complicated history. Ecuadorian state miner ENAMI and Chile giant Codelcostarted exploring the site in 2015 – but only after it had been secured by hundreds of police. Conflict over how to split the profits, community resistance and a damning environmental impact study has stopped any exploration since 2018.
In 2019, the Comptroller General and the Ombudsman's report on the mining project found glaring violations to the law and strongly suggested the forest within the mining area should be given rights due to its biological significance. ENAMI is now planning to sell off its share.
Mining
Also in Imbabura, but fifty kilometres north-east of Llurimagua, Australian miner SolGold holds the Cascabel mining concession, which could equal Chile’s Escondida copper mine in size if it is developed. In 2019, Ecuador's Comptroller General published the results of a special investigation revealing many irregularities linked to the project.
Just below Cascabel, operations are degenerating into fiasco at a concession held by Hanrine, a subsidiary of Hancock Prospecting, and owned by Australia’s richest person, Gina Rinehart.
In 2019, the military had to kick thousands of illegal miners off the concession, while in recent months Hanrine’s General Manager was arrested for possession of military-style weapons and its main mining camp was burnt down. Illegal mining has contributed to a range of social problems at nearby townships, and now locals are wary of large industrial mining as well.
BHP also has a concession close to SolGold’s Cascabel project. Like the others, it is an area lush with primary and secondary cloud forest. On August 27, local authorities called for a halt of all mining projects in the area for fear of stoking social conflicts and environmental contamination.
Impact
BHP is emerging as the mining company which might have the largest impact on the region. Not only does it hold five concessions in the Intag area, but as a majority shareholder in SolGold holding a 14.7 percent stake, it stands to benefit from their concessions as well. BHP have been under a standstill agreement with SolGold which expires in October, allowing it to make a bid on the company. BHP is also a major contender in the race to buy ENAMI’s share of Llurimagua, along with Hanrine.
If BHP wins its bids for both SolGold and ENAMI’s share of Llurimagua, not only would it have the largest number of concessions in the region, but its holdings across Ecuador would total over 300,000 hectares.
As the biggest mining company in the world, BHP likes to appear socially and environmentally responsible. That has not been the experience of people on the ground in the Intag.
BHP’s concessions in Intag cover thousands of hectares of the local governments’ watersheds, primary and secondary forest reserves, farmland and the water sources for several communities. They also cover farmland, and seven communities who view the sale of land for mining as illegal, as they were never consulted by the government or gave consent – in direct violation of the Ecuadorian Constitution.
BHP obtained permits and conducted its first explorations for copper without community consent, and has repeatedly tried to divide the community. In January 2020, the affected communities voted to declare the area a mining-free zone. It is nearly three years since BHP has been able to access the concession.
Protections
BHP has a clearly worded charter that states it will not explore or extract resources within or adjacent to the boundaries of International Union for Conservation of Nature (IUCN) Protected Areas, or operate where there is a risk of causing the extinction of an IUCN Red List Threatened Species.
Yet five of BHP’s concessions lie within the Cotacachi-Capayas Ecological Reserve Buffer Zone, the habitat of several IUCN-listed species; there are at least two IUCN-listed species at LLurimagua; and many more across the concessions it might inherit if it bids for SolGold as well.
With BHP’s AGM coming up on October 14, there is a small hope that shareholder pressure may caution BHP to not invest further in these projects.
Ecuador is unique in the world for not only recognizing that nature has rights, but embedding these in its Constitution. DECOIN (Organizacion para la Defensa y Conservacion Ecologica de Intag), the team leading the Llurimagua Rights of Nature case, believes Rights of Nature are equivalent to the right to life, and that both of these rights are violated by the economic rights of transnational companies.
The Los Cedros Biological Reserve is also making a case with the Rights of Nature clause at the Constitutional Court, arguing that it should give Protected Forests greater protections from mining and other extractive industries.
Good living
Carlos Zorilla, a founder of DECOIN, says a positive ruling for the Lluriamgua case would have a much wider impact than only safeguarding Protected Forests. It would prohibit extractive activities in all habitats where endemic species are found. All endemic species would be included – whether the species have protection or not. Given Ecuador’s high rate of endemism, it could stop a large part of the country from being mined.
A public awareness campaign based around Buen Vivir or “good living”, a cornerstone concept of the Ecuadorian Constitution – Intag as a Sanctuary for Life – is strongly backed by the Cotacachi County Government, with the Mayor publicly expressing an interest in creating a local law to declare all of Intag and Manduriacos a Sanctuary for Life. This would put it at loggerheads with the national government, which has been threatening local governments with criminal proceedings if they pass anti-mining ordinances.
The first Constitutional Injunction (Medidas Cautelares) to immediately stop the Llurimagua mining project was heard by the Cotacachi court on 11 September.
The case hinges on two species of frogs threatened by the Llurimagua mining project: the Longnose Harlequin Frog and the Confusing Rocket Frog. The former was listed by the IUCN as extinct until its unexpected rediscovery last year; both are endemic to forests covered by the mining concession. Another two dozen species including the Andean Eagle, a species of spider monkey, and the spectacled bear are also in danger of extinction.
At the hearing, Ecuador's best-known herpetologist Juan Manuel Guayasamin gave a testimony on the endemic frogs, while mammal biologist Professor Diego Tirira, University of Sussex biologist Mika Peck, and Javier Morales from the Ombudsman’s office presented Amicus Curiae (Friends of the Court) on the importance of the region and the threats various species face.
Communities
By contrast, the government’s attorneys only brought forward a flawed Environmental Impact Study with 235 observations they were still “working to resolve”.
Carlos Zorilla said: “A problem facing all court cases based on the Rights of Nature is that it is rare to find a judge or lawyer who properly understands it.
"If we lose, we will take the case all the way to the Supreme Court, as we feel there is indisputable evidence that mining in Intag’s forests will violate the Rights of Nature, causing the two endemic frogs to go extinct, and push others closer to extinction.”
Regardless of the outcome of the case, it should not be incumbent on communities or courts to ensure the good behaviour of mining companies or governments. They must come to recognise themselves that mineral rights do not give them the green light to commit gross environmental crimes or human rights abuses.
The world needs places that stay untouched; where the risk of what we might lose outweighs any potential economic benefit. Intag is one of these places.
In 2008, Ecuador was the first country in the world to enshrine the rights of nature in its constitution. But, as Anthony Amis reports, international mining companies have been given the green light to exploit the country’s copper and gold reserves.
Illegal mining in Buenos Aires, part of the Hanrine mining concession in Ecuador. Image credit: Ecuvisa
The Ecuadorian government is desperate for foreign capital injections to ease its weakening economy, caused in part by falling oil prices.
The small South American country has become a magnet over the past four years for mainly Australian and Canadian mining companies wanting to cash in on the desperation and mine its untapped mineral resources.
Mining companies have arrived in Ecuador, largely after its copper and gold reserves. “Copper is the new iron ore”, according to one Australian mining executive. Companies are already designing their marketing strategies around the need to mine copper to supply the world’s renewable energy sector.
For most of Ecuador’s history there has been small-scale gold mining. The country has not been exposed to the large-scale mines that have been pushed forward in neighbouring countries, such as Chile, since the 1970s, or Peru in the 1990s. This situation is rapidly changing.
In 2009, the government of Rafael Correa (who was president from 2007-17) enacted Ecuador’s Mining Law and in 2010 created the national mining company ENAMI. The new law however, was seen as a major disincentive to multinational companies, because of a constitutional mandate that suspended the granting of new mining concessions and the expiration of several existing concessions. It was also unpopular due to a windfall tariff of 70% on the difference between the sale price and baseline pricing.
Indigenous opposition
Indigenous groups also opposed the law and mining in general, particularly in the Amazon basin, and big protests occurred in 2007 and 2009. Mass protests by the Confederation of Indigenous Nationalities of Ecuador (CONAIE) also occurred in 2012, culminating in a march to the capital, Quito, in March 2013.
The decision to auction off 3 million hectares of the Amazonian rainforest in the Yasuni Nature Reserve to Chinese oil companies in 2013 further raised the ire of indigenous groups. Ecuador, at the time, had a US$7 billion debt to the Chinese Government.
Some refinements to the Mining Law occurred in 2012 and in 2015 the Correa government created new mining investor-friendly taxes and government incentives and policies to further attract mining. These included the creation of the Mining Ministry (now the Energy and Non-Renewable Natural Resources Ministry).
By March 2016, guidelines for granting metallic mining concessions across the country were created. Local communities and, in particular, indigenous communities, were kept in the dark as to these developments.
Moreno's mining boom
In May 2017, Lenin Moreno came to power and in 2018 the 70% windfall tariff was lifted by his government. Moreno went cap in hand to the International Monetary Fund for a US$10bn package of loans, which meant cuts in government spending. Mining was seen as a means of generating revenue and was expected to bring in US$715 million of taxes for the government by 2021.
Many conservationists first became alerted to the mining company “invasion” in 2017 when volunteers at the 5000ha Los Cedros Reserve, located in the northwest of the country noticed forest disturbances on the edge of the reserve, which they attributed to illegal miners.
Los Cedros was created in the late 1980s through a grant from the Australian Government’s AusAID program and contains some of the most biodiverse forest on the planet. It has been fiercely protected since that time, with 1200 scientists from around the world supporting its long term protection from mining.
After conducting further research, campaigners soon realised that 68% of Los Cedros had been under a mining concession for several months to Canadian mining company Cornerstone Capital Resources.
More investigations followed and the alarming discovery was made that the concession over Los Cedros was only the tip of the iceberg. A third of the entire country of Ecuador (7.17 million ha) had been opened up to mining concessions, with a massive amount of concessions on protected forests and indigenous lands.
Australian mining interests
Melbourne Rainforest Action Group formed in 2018 to research which Australian mining companies were investing, exploring and ultimately mining in Ecuador.
The company with the largest number of concessions (more than 70) is little-known Brisbane-based exploration company Solgold. Solgold had been exploring in Ecuador since 2011, so had the edge on other companies by establishing a foothold in the country. Their prized asset was a concession located in the north of the country called Cascabel, which had initially been “owned” by Cornerstone, which kept a 15% interest in the concession.
Solgold CEO Nick Mather was involved with Waratah Coal, one the first companies to propose mining in Queensland’s Galilee Basin. Waratah was snapped up by Clive Palmer in 2008 and Mather went on to help develop the coal seam gas industry in Queensland. Australian miners BHP and Newcrest Mining also have an interest in Solgold, each owning 14% of the company. BHP also has further mining concessions in north-western Ecuador, very close to Los Cedros. Their exploration was resisted by local communities in the Intag Valley and BHP raised the ire of many after their exploration activities badly polluted the Manduriaca River.
Melbourne-based Newcrest Mining’s main interest is in the south-east of the country, in the headwaters of the Amazon. Production began this year at a massive underground mine, Fruta Del Norte, which Newcrest has a 32% stake in. The company developing the mine was the Swedish firm, Lundin Mining.
Forty kilometres north of Fruta del Norte, production has also just started at the huge Mirador mine, owned by Chinese firms China Railway Construction Company (CRCC) and Tongling Nonferrous. This mine, also in the headwaters of the Amazon, plans to have the world’s tallest tailings dam, three times higher than any other.
In light of the disastrous tailings dams collapses in Brazil over the past few years, there are very real concerns that a similar dam collapse at Mirador could destroy thousands of kilometres of waterways in the Amazon.
Further investigations found that Australian mining magnates Gina Rinehart and Andrew “Twiggy” Forrest were also active in Ecuador. Rinehart’s company, a subsidiary of Hancock Prospecting, Hanrine, owns several concessions just south of Cascabel and Forrest’s company Fortescue Metals Group (FMG) owns a swath of concessions throughout the central and southern areas of the country. FMG’s concession ownership in Ecuador (about 70) is second only to Solgold, as far as Australian companies go, although its on-ground activities have, so far, been limited. FMG has been active in Ecuador since June 2016.
Gina Rinehart
Rinehart mining camp burnt. Image credit: El Universo
Hancock Prospecting first visited the country in September 2016. Just before concessions were granted to Hanrine in early 2018, a gold rush occurred on one of its concessions called Imba 2.
Up to 10,000 miners from a dozen countries soon flooded into the concession near the small community of Buenos Aires. The gold rush was huge news in Ecuador and it soon became apparent that the illegal miners were also under the thumb of local mafia cartels.
After 18 months, and the reported murders of a number of miners by organised criminals, two thousand troops were sent in to clear out the concession in July last year. Millions of dollars of damage to the concession was reported with some saying that the “foreign” owner of the concession should be held responsible for some of the clean up and security costs. El Comercio reported on August 26 that Hanrine's mining camp near Buenos Aires was set ablaze on August 25.
Other Australian companies involved in Ecuador include Perth-based Sunstone Metals, which owns two concessions in the north and south of the country, with one directly bordering Los Cedros.
Another Perth-based company, Titan Minerals, recently took over the Canadian company Core Gold, which owns a processing plant and concessions in southern Ecuador, and Tempus Resources which owns two mining concessions in rainforest in close proximity to the Fruta Del Norte mine.
Local resistance to the mining and exploration is ongoing. Ecuador is a very volatile region. A Chinese-owned mine called Rio Blanco was shut down in 2018 after being fire bombed. Numerous communities are fighting back over loss of control of their lands, including their drinking water supplies.
Solgold has been the target of some protests and BHP is copping plenty of attention in the Intag Valley from a number of communities. Ongoing protests have also occurred in the country’s south east near the Fruta del Norte and Mirador mines, which are located on the lands of the Shuar people.
If Rinehart is successful in her pursuit of the copper resources of Llurimagua mine, she will also encounter the wrath of the Intag Valley community, which has long voiced its opposition to mining in the region.
Gina Rinehart's Ecuador subsidiary Hanrine is facing renewed unrest in the province of Imbabura, Ecuador.
Rinehart mining camp burnt. Image credit: El Universo
On Tuesday 25th, a group of 180 people set fire to a mining camp at one of her concessions in Buenos Aires in north-east Ecuador. More on that here.
The attacks came days after the local parish council met and agreed they would not allow any mining - illegal or legal - in the area due to their constitutional rights to be consulted not being met.
Rinehart's mining concessions have been the subject of unrest since 2018 when up to 20,000 miners descended on the area to illegally mine for gold, with several different armed militia fighting for dominance and a number of killings.The army took over in 2019, but the area has been subject to unrest ever since.
The unrest comes only a few weeks after Hanrine's GM in Ecuador Carlos de Miguel was arrested for having an arsenal of illegal assault-type weapons, a charge he subsequently denied. He is now attempting to sue the interior minister and the police over the raids, and has additionally hired an investigations firm to explore government ministers for connections with Chile giant, Codelco.
Ecuadorian investigation shows a conflict between Codelco and a subsidiary of Australia’s Hancock Prospecting, Hanrine, over control of the Llurimagua copper mine.
LLURIMAGUA. Image credit: Periodismo de investigacion
Information revealed on August 3, in the Periodismo de Investigación article The war for Llurimagua, sheds light on the activities of a subsidiary company owned by Gina Rinehart, Australia’s wealthiest person, as she tries to gain influence and inroads into the global copper supply.
‘The unstable situation in Ecuador has meant that the planned influence has definitely not gone to plan. Some would say it’s been an unmitigated disaster and could undermine confidence in the entire Ecuadorian mining industry,’ says Anthony Amis, a researcher for the Rainforest Action Group, an organisation investigating the actions of Australian mining companies in Ecuador.
‘The Llurimagua concession is located in the north west of the country and has been the source of conflict between communities in the Intag Valley and the Ecuadorian State since 1995. For instance, 389 troops and elite police were used against the community who opposed the mine in 1994, with a community leader jailed for 10 months on false charges,’ Mr Amis says.
In recent years, the Ecuadorian Government Mining Agency (ENAMI) joined up with the Chilean Government’s Copper Arm (Codelco) to jointly develop the Llurimagua mine. Codelco is the world’s largest copper miner.
‘The Llurimagua region lies under primary cloud forests, and is included as a Tropical Andes Biodiversity Hotspot, one of the most biodiverse regions of earth. Mining would cause massive deforestation and pollution of rivers and streams across a vast area. Hundreds of animals and plants would face extinction if mining was approved,’ Mr Amis says.
The War for Llurimagua article reveals significant details about the fight for control over the copper mine – slated to become one of Ecuador’s largest.
‘The article reveals conflict between Codelco and a subsidiary of Australia’s Hancock Prospecting, Hanrine, over who would control the development of Llurimagua,’ Mr Amis says. ‘The conflict was recently highlighted by the arrest of Hanrine’s manager, Carlos de Miguel for illegal possession of firearms and ammunition. Miguel argued in the press that he was innocent and that the Minister Maria Paula Roma was targeting him over other issues.’
Apparently, Hanrine and Codelco had been in dispute over Llurimagua since 2017, with Hanrine offering up to $400m for access to the Llurimgua concession. Codelco were more or less granted the concession for “free” by the support of past Ecuadorian President Rafael Correa.
‘Hanrine was granted access to 6 mining concessions by Lenin Moreno’s Government in January 2018, but a public relations calamity unfolded at the same time, with 10,000 illegal miners starting a gold rush on one of those concessions, Imba 2. The Government sent in 2000 soldiers to clear out the concession in July 2019 due to murders, violence and influence of mafia cartels. It is unclear if Hanrine has gained back control of the concession and who pays for the massive remediation costs due to environmental damage. Welcome to Ecuador,’ Mr Amis says.
Hanrine apparently wrote dozens of letters to the Ecuadorian Government requesting that the Llurimagua concession by opened up to an auctioning process. In response to this pressure, Codelco’s Attorney General recently wrote to Hancock’s Executive General Manager in Perth, more or less saying “Stop interfering in our business”.
Furthermore, ‘…any subsequent action by Hancock will undoubtedly constitute conscious and intentional interference that could be extremely detrimental to Codelco's contractual rights.”
“In light of the foregoing, Codelco requests that Hancock and any of its subsidiaries and / or affiliated entities immediately desist from any conduct that may interfere, directly or indirectly, with Codelco's contractual relationships related to the Llurimagua Project. Additionally, Codelco reserves all of its rights against Hancock with respect to any past or ongoing conduct that interferes with its contractual relationships as set forth above, including its right to request injunctive relief, damages and any other order deemed appropriate in light of the circumstances ”.[1]
Carlos Miguel has had apparent influence with both the Correa and Moreno Governments. He was also obviously influential in Hanrine getting the 6 concessions near Buenos Aires under the Moreno Government and had developed a close friendship with Correa’s Minister of Mines, Javier Cordova. Furthermore, Miguel had also formed a relationship with ex-Enami manager Stevie Gamboa, who on leaving Enami became the legal advisor for Hanrine. Miguel also ran a private security company and has a detailed past linking him with privileged information regarding a number of infrastructure developments in Ecuador.
‘If Miguel’s recent brush with the law is a payback of some kind from the Ecuadorian Government, one has to wonder what else he has done to obviously upset the Ecuadorian State. One also has to wonder what the response will be from Miguel and Hanrine?,’ Mr Amis says.
The world’s resource companies continue to target South America for raw resources, including resources for renewable technology. Copper is being marketed as a requirement for electric cars, batteries and the like. If markets are denied by Governments, industrialists can mount all forms of pressure on non-compliant Governments. This has recently been highlighted in a number of publications concerning Elon Musk and lithium in Bolivia.
[1] As quoted in the Periodismo de Investigación article: https://periodismodeinvestigacion.com/2020/08/03/la-guerra-por-llurimagua/
Contamination from exploration activities, 2017. Junin community reserve. Image credit: Carlos Zorilla
Government officials and the press also conveniently leave out that the only way the government and Codelco was able to insert themselves in Intag was by illegally and violently occupying the whole Intag valley in 2014 with the “cooperation” of 389 elite police and military personnel. And then, only after a campaign of intimidation by falsely arresting a community leader and jailing him for 10 months without sentencing. And, I’m sure the government officials are telling prospective buyers that where Codelco and Enami are planning on exploring and previously explored, is within the Junin community forest reserve and in the middle of an unexplored pre-Incan site. Right?
Oh, and then there is that minor issue the copper ore laying beneath primary cloud forests that are part of the Tropical Andes, by far the most diverse of the world’s 36 Biodiversity Hotspots. In fact, the forests within the mining concession harbor HUNDREDS of animal and plant species in danger of extinction. Many are critically endangered, and some are found here and nowhere else on the planet. Another minor detail the greenwashers might be forgetting to mention is that, in Ecuador, since the 2008 Constitution, Nature has rights. Species extinction would certainly violate such rights.
Did I forget to mention that in 1996 Japanese scientist produced a preliminary Environmental Impact Study for a small copper mine? What they predicted might turn you off to mining in Intag. “Massive deforestation”; drying up of the local climate; contamination of rivers and streams with lead, arsenic, cadmium and chromium, and relocation of hundreds of families from four communities are just some of the findings. Two years later they reported the ore deposit could be 5 times larger. Add the fact that the ore is, according to the latest estimates, very low grade (0,44%), that by all indications it seems to be very deeply buried, that the area gets between 3 and 5 meters of rain annually, that it is located in a seismically active part of the Andes, in extremely steep terrain, and you have the ingredients for creating one of the world’s worse environmental nightmares. Especially since Codelco is “guesstimating” the ore body might possibly hold 17 million tons of copper, incrusted in 4 billion tons of ore. If it’s ever confirmed, the ore body would be 55 times larger than what the Japanese used to base their apocalyptic social and environmental impacts on. Then there is the pesky issue of profitability. Low grade deposit, deeply buried, mixed with arsenic and lead plus, at the very low-price tag of USD $2.00 per ton to remediate the mining site, the project would become instantly unprofitable. But then again, who’s worrying about numbers?
If these reasons are not enough to dissuade any reasonable thinking person, there are plenty others.
