Tuesday, March 10, 2009

Canadian Copper Mining Firm Uses Violence to Deal with Indigenous Resistance in Equador

Canadian Mining Firm Financed Violence in Ecuador: Lawsuit

TMX Group denies claim. Win could affect thousands of other projects by Canadian companies.

By Jennifer Moore

Published: March 3, 2009

"Financing being raised in Canada is travelling across borders to do harm," said lawyer Murray Klippenstein by phone from his office in Toronto. "We want to find out if our legal system can respond to this."

Klippenstein is perhaps best known for his representation of the estate and family of native activist Dudley George, who was shot and killed by police in Ipperwash Provincial Park in Ontario in 1995. This lawsuit revealed deep political involvement from the premier's office and resulted in a landmark public inquiry.

In another ambitious and possibly precedent-setting case, Klippenstein is representing three villagers from the valley of Intag in northwestern Ecuador who are suing Copper Mesa Mining Corporation (TSX:CUX) and the Toronto Stock Exchange. They allege that company directors and the TMX Group have not done enough to reduce the risk of harm being faced by farmers and community leaders in Intag who have faced violent threats and attacks for opposition to a large open-pit copper mine in their pristine cloud forests.

Still, they hope to go further. "What is happening in Intag is illustrative of a wider problem," a summary of the legal claim states, "the corporate and financial unaccountability of the Canadian mining industry." So while the case uses established legal principles, the plaintiffs hope it will lead to long-awaited legal reforms to help better control thousands of Canadian financed projects abroad.

Klippenstein, who said he "has learned to go miles on very little," acknowledges the "staggering financial mismatch" and says that companies have hundreds of millions of dollars to gain, so it won't surprise him if they spend tens of millions on the case. He also anticipates years of counterattacks, including motions and appeals on technicalities.

But he emphasized that the basics of the case are straightforward. "There's a simple fundamental legal point that you shouldn't harm somebody and that you shouldn't use your money to hire someone who you know is likely to do harm."

Conflict escalates

Marcia Ramírez is secretary of the Intag Community Development Committee. She lives near the end of the road in an isolated village in one of the most biodiverse places on earth. Her community of Chalguayaco Alto sits at the crossroads of two biodiversity hotspots, the Tumbes-Chocó-Magdalena and the Tropical Andes.

"It isn't fair," she told The Tyee, "that a foreign company can come here and contract people who attack us for defending our rights, for wanting to live in a healthy environment, for defending our land and our water." She added, "We'd like the stock exchange to listen to us and to understand that we've been very hurt by one of their companies."

Now 25 years old, the fight against large scale copper mining has marked daily life for the diplomatic and dedicated leader since she was about 12.
Broad-based opposition to large scale copper mining arose when a Japanese company was initially carrying out mineral exploration a short distance away. When the company released its Environmental Impact Assessment report for the proposed mine, the news that four communities would be displaced, as well as massive deforestation, local desertification, river contamination and harm to endangered species sparked vociferous opposition that persists.

Since Copper Mesa, who has a strategic alliance with the giant Rio Tinto, took over the project in 2004, new issues have emerged with apparent attempts to break the opposition. Now land trafficking, threats of violence, as well as relatively high-paying job offers have been driving a wedge between neighbours and families in these rural communities.

"But," commented Ramírez, "what most hurt is when they came... with armed men and sprayed us with gas."

In early December 2006, over 50 heavily armed security guards, mostly ex-soldiers, were hired to reach company concessions and set up camp. Local residents had been tipped off and gathered along the narrow dirt road that the company-hired trucks would have to pass. When they arrived, Ramírez and others tried to urge the armed men to turn around. But instead, the security agents sprayed tear gas into their faces from only a metre away and fired their weapons into the air, injuring one man, also a plaintiff in the case.

When the residents didn't back down, the guards finally retreated.

The incident was caught on film by a European student researching the controversy and is retold as part of the recent film Under Rich Earth by director Malcolm Rogge that debuted at the Toronto International Film Festival in September. It has also been denounced in a complaint to the Inter-American Human Rights Commission.

Prior warning

Canadian authorities were warned that such an incident could arise.

On March 8th, 2005, three months before Copper Mesa (then Ascendant Copper) was listed on the TSX, County Mayor Auki Tituaña wrote to the Finance and Audit Committee of the Toronto Stock Exchange: "We consider it to be appropriate and fair that before accepting open "trade" of Ascendant Copper Corporation's stocks in the Stock Market, you evaluate in depth the "new" company's merits..."

Included in his list of 14 concerns were lack of prior community consultation, lack of legally required municipal approval, violation of a municipal ordinance that declares the area an "Ecological County," as well as attempts to foster divisions as a "means to achieve company profits against the citizen's will and at a cost of the loss of unique biodiversity in our territory."

Then in May, Carlos Zorrilla, executive director of the Ecological Defense and Conservation of Intag (DECOIN), travelled to Ottawa to present a complaint to the Department of Foreign Affairs claiming that Copper Mesa had violated the Organization for Economic Cooperation and Development's (OECD) Guidelines for Multinational Enterprises. Mining Watch and Friends of the Earth Canada supported the claim.

"I'm here," he says in a press release, "because Canadians need to understand the real risk of violence that is emerging as a result of this company's activities." He added, "The Canadian government must take action to curb the excesses of Canadian mining companies operating and exploring overseas."

The complaint was withdrawn after eight months when it was apparent that the appropriate authorities would not apply the relevant procedures. The legal summary notes that "the TSX stock market listing of Copper Mesa has allowed the company to obtain over $25 million in capital funds -- some of which paid for the armed attackers" in December 2006.

Carolyn Quick, director of corporate communications for the TMX Group, told The Tyee her firm considers the case to be "entirely without merit" and that they will "vigorously defend this position." She would give no further comment about the letter from Mayor Tituaña nor the complaint made to DFAIT. No one from Copper Mesa was available to speak with The Tyee.

Globalization of legal accountability

Another challenge in holding companies to account in Canada, where the bulk of the world's mining companies are based, are complicated corporate structures that criss-cross continents.

"By dispersing their actions across borders and saying that 'Well, we didn't do that in Canada or Ecuador, that decision was made in the U.S.,' they can evade accountability. The courts can respond and say 'Take this case somewhere else,'" says Klippenstein.

Copper Mesa whose headquarters in Colorado, "has connections to some nine different legal jurisdictions, making it difficult to identify which jurisdiction is the proper one in which to hold the corporation accountable," says the legal summary of the case.

The former website of Copper Mesa (then Ascendant Copper) acknowledged that its corporate structure makes suing directors difficult: "All of the directors of Ascendant and substantially all of their assets and those of Ascendant are located outside of Canada. It may not be possible for purchasers of securities being qualified for distribution under this prospectus to effect service of process within Canada upon directors who reside outside of Canada..."

It is for this reason that the lawsuit focuses on decisions allegedly made in Ontario.

'Establish clear legal norms in Canada'

However, one possible advantage for rural residents of Intag preparing for a lengthy legal battle on tricky Canadian territory is that they are not alone in their concern.

Their broader goals for legal regulations of Canadian mining companies echo what the Standing Committee on Foreign Affairs and International Trade (SCFAIT) and the United Nations Committee on the Elimination of Racial Discrimination and other civil society groups have already been saying.

While Carlos Zorrilla was in Ottawa in 2005, the SCFAIT was writing its 14th report, which recommended that the government "Establish clear legal norms in Canada to ensure that Canadian companies and residents are held accountable when there is evidence of environmental and/or human rights violations associated with the activities of Canadian mining companies."

The government responded saying that it "will continue to examine the best practices of other states attempting to address the accountability of businesses for activities conducted abroad." But it has yet to implement mandatory rules.

Still Klippenstein is hopeful in the face of tough odds. "One has to trust in the promise of a certain amount of fairness and independence that the justice system can provide. It has been shown that powerful people can be brought to kneel this way before."

It took eight years of legal proceedings before a public inquiry was called in the Dudley George case. They never even made it to court, but a long list of recommendations was implemented.

Ramírez is also optimistic that they have a chance at justice through Canadian courts as part of their fight to leave Intag's cloud forests intact.

She points out the variety of sustainable development projects that they have been working on as alternatives to large scale mining, including community owned watersheds, a mixed mini-hydroelectric company, as well as agricultural and tourism initiatives. She urges Canadians to see the benefits: "We want future generations to have what we have."
copyright thetyee.ca © 2003 - 2008

Native Rights News is making this material from The Tyee available in accordance with the Fair Use Doctrine codified at Title 17 U.S.C. Section 107: This article is distributed without charge or profit to those who have expressed a prior interest in receiving the included information. Distribution of this material is for research and educational purposes that will promote social and economic justice and benefit society.

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Sunday, March 8, 2009

Action Alert: Small NC Airport Plans to Desecrate 400 Cherokee Graves with Runway Extension

Editor's Commentary

Macon County Airport Authority, North Carolina is preparing to extend its airport in the Iolta Valley 600 feet into a well-documented ancient Cherokee Town Site. According to archaeologists this will not only destroy an irreplaceable cultural and scientific resource; it will also dig up, disturb, destroy or bulldoze and pave over the graves of an estimated 400 Cherokee ancestors.

Under North Carolina law, any Native American remains recovered must be given to state scientists, who can retain them for up to four years for study and "analysis." The decision as to ultimate disposal of the remains is left to the state bureaucracy instead of the Eastern Band of Cherokee.

Interestingly, any non-native remains that are unearthed are to be returned to their next of kin, whose right of determining how they should be disposed of is inviolate. In our opinion, this law violates the 14th Amendment's guarantee of Equal Protection under the Law because it provides disparate treatment on the basis of race and ethnicity. Additionally, because the project will receive partial federal funding it falls under the provisions of the Native American Graves Protection and Repatriation Act, which affords affected Native American tribes a say in such projects. A good attorney should be able to stop this shameful action.

The proposed airport extension is rightly viewed as an act of desecration by the Cherokee People, just as it would be by any other people, were it their ancestors.

With respect to projects such as this airport extension, North Carolina law requires that the developer and a state agency must come up with what is essentially a mitigation plan in "consultation" with the affected Native American tribe - in this case, the Eastern Band of Cherokee. After 8 years of such talks the Cherokee have steadfastly opposed the project and refused to "approve" the planned development. Although the law makes such approval mandatory, the plan is moving forward anyway. This once again proves the adage that in the United States "Money Trumps All."

In the following action alert, Sharon Kitchen, who is Cherokee and founder of Save the Sacred Sites Alliance calls upon all persons with a conscience to call a long list of bureaucrats and express their outrage and opposition to the project. - Perry Chesnut, Editor NRN


Save The Sacred Sites Alliance

by Sharon L. Kitchen (Founder, STSSA)
Press Release: March 8, 2009

Urgent: For Immediate Release

Stop the Desecration of Cherokee Graves

What: This site was once a large Cherokee Town: pre-Cherokee Culture around 2 A.D. with over 1,500 postholes of ancient structures/200 food pits/over 400 graves.

Where: Adjacent to the Macon County Airport/in the Iotla Valley (per the 1760 Cherokee Town map) Franklin, N.C.

Why: Macon County Airport Authority wants to extend another 600’ of runway for the "affluent", part time homeowners.

Contact the Following with your Opposition

Macon County Airport Authority

Chair: Mike Gregory *(he feels it will be good for buisness), Macon County Courthouse, 5 W. Main St. Franklin, N.C. 28734 Phone:828-524-5529

Physical address : 1241 Airport Rd Neil Hoppe (manager) Franklin, N.C. 28734-1513 Phone:828-524-5529

Attorney: Joe Collins, P.O. Box 727 Sylvia, NC 28799, Phone: 828-586-1771(he is all for the "affluent" getting their way, and has stated, "This will be a real asset and an economic stimulus").

Rep. P. Phillip Haire NC House of Representatives, Legislative Office Building, 300 N. Salisbury Street,,Room 639 Raleigh, NC 27603-5925

Macon County Board of Commissioners: Chairman- Ronnie Beale, 177 Sloan Rd. Franklin, NC 28734, Phone:828.369.5044 (o) 828.524.4168 (h)

C0-Chairman – Dr. Jim Davis 37 Georgia Rd. Franklin, NC 28734 Phone:828.369.2054

Board Member Brian McClellan (Donald B) 18 Mount Lori Highlands, NC 28741 Phone:828.787.2131/828.342.0379

Board Member Bobby Kuppers 1652 Rose Creek Rd. Franklin, NC 28734 Phone:828.524.1954 (he also sits on the Board of the Airport Authority - conflict of interest?)

Board Member Robert L (Bob) Simpson P.O. Box 716 Franklin, NC 28744 Phone:828.369.1578/828.524.3525

**Deed for this property located in deed book S-25 Pages 1582-1585 (no NC excise Tax paid and was a simple title and a Warranty Deed, dated April 23,2002 **

Those opposed:

Michell Hicks, principal chief of the Eastern Band of Cherokee

Michael Trinkley, Ph.D., Archaeologist for the Chicora Foundation, P.O. Box 8664 Columbia, SC 29202 Phone:803.787.6910, trinkley@chicora.org, http://www.chicora.org/

As he said in a Citizen-Times article: "It’s an abomination, it’s vulgar, it’s obscene and it is disrespectful." In the Feb. 12, 2009 article, he said, "this is a very major, very large, late Cherokee site of exceptional importance, the likes of which we will not see again in our lifetimes."

There are many more people in and around NC as well as the rest of the world that do not want this site touched.

Save the Sacred Sites is opposed to the proposed action by the airport authority and the Macon County Commissioners. This entire area should be saved and not touched. Enough is Enough. Graves are sacred. No matter who’s they are. Anyone that is willing to join and fight to save this area please: write/fax/call/email, all those involved. Let all your friends/neighbors and contacts have this information. Time is all important.

Sharon L. Kitchen, founder
Save the Sacred Sites

Following is Sharon's letter to Joseph Barkevich of the NC Department of Administration, which has jurisdiction over the proposed airport expansion.

To: Joseph Barkevich 3-5-09
c/o N.C Department of Administration Phone: 828.786.4261
1301 Mail Service Center
Raleigh, N.C. 27699-1301

From: Sharon L. Kitchen Phone:912.424.1260
P. O. Box 324
Townsend, Ga. 31331

Re: Sch#09E00000216 Type: NEPA, Applicant: Macon County Airport Authority
Desc: Airport project Region: A, County: Macon

I, Sharon L. Kitchen, on behalf of my organization, Save The Sacred Sites, herby state that we do not want any disturbance of the site referenced above. Our group has over 5,000 members world – wide. They have been informed of this project on our website.

There are many reasons:

(1st) : This is a pre- Cherokee site, with a date around 2 A.D. per Dr. Michael Trinkley’s archaeologist report, which I have.

(2nd): Over 400 graves would be desecrated. I and my husband are of Cherokee descent.

(3rd) : There has been no Environmental Impact Study done, as of this date.

(4th): Those not familiar with the burial practices of Native peoples do not know the ceremonies with each and every burial.

(5th): In this country the practice of embalming did not start until very late. Since this site goes back in time to around 2 A.D., all the way up through the arrival of foreign countries, (Spain, England, France, and others), there have been diseases that have been brought , that have killed thousands upon thousands of the indigenous population. All of this was before the arrival of the pilgrims. Then you have the army spreading smallpox through blankets to wipe the rest out. Against all these odds, we have survived.

Can any developer, 100%, guarantee the safety of any person going onto this site, against all diseases? I ask this because in North Gwinnett County of Ga., a site that also contained a mass grave of children, on the National Historic Registry, in the middle of a 2,000 acre area of burials was disturbed by a single bulldozer. The bulldozer operator died on the bulldozer with it still running. (He did not have a heart attack or anything else wrong they could detect. A 35-year old officer that just drove by the area to make sure the "scene" was still secure and the area not disturbed, fell ill the next day and 8 days later died in Emory. Hundreds of people fell ill. Most were either young children, older people or those with medical conditions. A lot or people in this category died. All this, just right before the Olympics in Ga. All of the suffering could have been avoided, if that one person had not opened the burial.

(6th) Does all the Cherokee heritage have to be wiped off the face of the Earth? I certainly hope not.

(7th) Do people respect the final resting place of those departed? I hope so. It used to be only the Native graves that were robbed, pillaged, destroyed, then the African- American, and last but not least, now the White graves.

Are the developers so greedy for money that they are blinded to any morals? This sure seems to be the case. There is only one problem with this; they too are going to pass on one day, and most people still prefer to be buried. Who will protect their final resting place??????

(8th) The airport authority is getting its money from a Federal grant, so the Eastern Band of Cherokee, Western Band of Cherokee and the Keetowah Band of Cherokee MUST under Section 106 be contacted and their wishes HAVE to be followed.

Please consider the above, before making any hasty decisions. After the graves are destroyed they can not be brought back. That history, my heritage, will be lost forever.

Thank you,
Sharon L. Kitchen

-- Action Alert Update --
By Dave Kitchen
March 8, 2009, 1:20 p.m. PT --

Time to act is running out. Letters to the EPA are needed before March 17th when comments will no longer be accepted. They must be sent to:

Joseph Barkovitch c/o N.C. Dept. of Administration, 1301 Mail Service Center, Raleigh, N.C. 27699-1301 Reference: Sch#09E00000216 type:NEPA
Applicant: Macon County Airport Authority
Desc: Airport Project Region:A
County: Macon

Just state how you feel about them building on burials and the site of origin of the Cherokee people.

Phone calls to the Macon County Commissioners will also be good also.This meeting is this coming Monday, March 9th, 2009 at 6pm.So it's important to act now!

Please pass this on!!!!!

Save The Sacred Sites Burial Site Alert- Very Important!!!!!!!!!!

My friends and family:
This is the site where the Cherokee people began. Many are buried here from ancient times. Please call, fax, etc... to let those in charge know that this is totally unacceptable.


Source: Save the Sacred Sites Alliance

Native Rights News is publishing this presss release with the express permission of the author and publisher. This article is distributed without charge or profit to those who have expressed a prior interest in receiving the included information. Distribution of this material is for research and educational purposes that will promote social and economic justice and benefit society.

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