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.

TheTyee.ca
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."
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Ecuador Ratifies World's First Constitution to Give Rights to Nature

In Ecuador, Trees Now Have Rights

By Gar Smith Earth Island Journal, Winter 2009

On September 29, the Associated Press reported that Ecuador's new constitution would "significantly expand leftist President Rafael Correa's powers." It wasn't until the end of a 15-paragraph article that the AP mentioned the new constitution – approved by 65 percent of voters – "guarantees free education through university and social security benefits for stay-at-home mothers." Also missing from the AP's report: any mention that Ecuador's voters had just ratified the world's first "eco-constitution," a pioneering document that, for the first time in human history, extends "inalienable rights to nature."

Not too long ago, Ecuador would have seemed an unlikely nation to become the birthplace of Earth's first green constitution. To service its massive debt to US creditors, the World Bank and the International Monetary Fund forced Ecuador to open its pristine Amazon forests to foreign oil companies. Nearly 30 years of drilling enriched ChevronTexaco, desecrated the northern Amazon, and utterly failed to improve the lives of millions of poor Ecuadoreans. Amazon Watch estimates that Texaco damaged 2.5 million acres of rainforest, left the landscape pitted with 600 toxic waste pits, and polluted the rivers and streams that some 30,000 people rely on. Cancer rates in the area where Texaco operated are 130 percent of the national norm, and childhood leukemia occurs at a rate four times higher than in other parts of Ecuador.

In 1990, the Siona, Secoya, Achuar, Huaorani, and other Indigenous forest-dwellers won title to three million acres of traditional forestland, but the government retained rights to the minerals and oil. In November 1993, Indigenous communities filed a $1 billion environmental lawsuit against Texaco, and Indigenous groups subsequently demanded a 15-year moratorium on drilling, environmental reparations, corporate indemnification, and a share of oil profits.

In 1997, when Ecuador's pro-US government announced plans to rev up oil exploitation by a third, all eyes turned to the Yasuni Rainforest, home to the country's largest oil reserve – estimated at 1 billion barrels. The Yasuni is also home to rare jaguars, endangered white-bellied spider monkeys, spectacled bears, and Indigenous tribes protected by international treaty.

In 2007, the new government of President Rafael Correa announced plans to halt oil exploration in the Yasuni, an action Amazon Watch called "a giant first step toward breaking Ecuador's dependence on oil." Correa's proposal marked a shift to making renewable energy the new path for Ecuador's economic future. The language in the new constitution takes the new policy several steps further.

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Ecuador's radical new constitution features a chapter on the "Rights for Nature" that begins by invoking the Indigenous concept of sumak kawsay (good living) and the Andean Earth Goddess: "Nature, or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution." The constitution contains a Nature's Bill of Rights that includes "the right to an integral restoration" and the right to be free from "exploitation" and "harmful environmental consequences."

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Surprisingly, there is a US connection to this story. The Pennsylvania-based Community Environmental Legal Defense Fund (CELDF), along with the San Francisco-based Pachamama Alliance, spent a year working with Ecuador's 130-member Constituent Assembly to craft the language that installed ecosystem rights in the heart of the new constitution.

"Today's environmental laws are failing," CELDF observes in a section on its Web site. "By most every measure, the environment today is in worse shape than when the major US environmental laws were adopted over 30 years ago." CELDF notes that US regulations "treat nature as property under law. These laws legalize environmental harm by regulating how much pollution or destruction of nature can occur." They don't forbid pollution, they merely "codify it." By contrast, Right of Nature laws challenge property law by "eliminating the authority of a property owner to interfere with the functioning of ecosystems that exist and depend upon that property for their existence and flourishing." The idea is gaining momentum. Municipalities in Pennsylvania, California, New Hampshire, and Virginia have adopted Right to Nature laws in recent years.

Shannon Biggs of Global Exchange notes "slaves were once also considered property under the law" until Americans understood "we needed to write new laws in order to change … the cultural climate."

With parrot-flecked jungles containing more than 300 different tree species per hectare, cloud forests of amazing biodiversity, and a border that extends to the Galapagos Islands, Ecuador is the perfect spot for the world's first eco-constitution. Ecuador has swung a hammer against the chains designed to keep nature in thrall to commerce. It's time for other nations to pick up the same hammer.
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Copyright Earth Island Journal 2009

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Posted By Alliance for Indigenous Rights to Native Rights News at 1/20/2009 07:45:00 AM

Conflict Over Mining Deepens Between Correa Government and Indigenous Peoples and Environmentalists

Ecuador Anti-Mining Blockades Met With Repression, National Mobilization Called for January 20

Written by Daniel Denvir, Photographs by Ximena Warnaars

Friday, 09 January 2009

The ongoing conflict over mining in Ecuador escalated this week as blockades shut down highways throughout the country’s Southern Andean highlands and Amazon rainforest, while nationwide protests have been called for January 20. The government of President Rafael Correa has assumed an aggressive posture, insulting indigenous and environmental activists and pledging to secure approval for a controversial new Mining Law. Canadian companies hold the majority of mining concessions in Ecuador and are pressing for a new law that would allow for large-scale, open pit metal mining. A number of leaders have been arrested and other protesters were beaten and shot at by police. Campesino and indigenous protesters, who depend on clean water to farm and for drinking water, are demanding that the government shelve President Rafael Correa’s proposed Mining Law, saying that it would be a social and environmental disaster. The rural blockades follow months of regular protests in Quito and other parts of the country Protesters also argue that the law contradicts important provisions of the new constitution protecting water, the environment and indigenous peoples’ rights. The document drew international attention for awarding legal rights to nature. The new constitution, approved by popular referendum in September, is the centerpiece of Correa’s first term. After emergency meetings on January 7, the Confederation of Indigenous Nationalities of Ecuador (CONAIE) called for a national mobilization on January 20, calling the government “dictatorial.” It is unclear whether the January 20 mobilization will spread road blockades to other provinces in central and northern Ecuador. Protesters are demanding a dialogue with central government leaders and for a broad national discussion on mining before any legislation is passed. Some protesters in the Southern provinces of Zamora Chinchipe and Morona Santiago suspended their blockades for 24 hours in response to the provincial governor’s promise to reach out to Francisco Cordero, the President of the Congresillo, Ecuador’s interim legislature. Other blockades were suspended in anticipation of the nationwide actions. The blockades began on Monday January 5 in the Southern province of Azuay, cutting off much of the traffic into and out of Cuenca, Ecuador’s third largest city. Over the next few days, the protests spread to the neighboring Andean province of Loja and to the Amazonian provinces of Zamora Chinchipe and Morona Santiago. In Giron, Molleturo, Tarqui (Azuay), Limon Indanza (Morona Santiago) and in El Pangui (Zamora Chinchipe) protestors have been beaten or shot by police. Police officials and journalists were released after being briefly detained by campesinos. On January 6, campesino leader Vicente Zhunio Samaniego was arrested in the Southern province of Morona Santiago, showing up 16 hours later in a hospital with bullet wounds to the head. On January 7, protest leader Miguel Ángel Criollo and his son Orlando were arrested in an early morning raid on the village of Pueblo Nuevo in Azuay province. The newspaper El Universo reports that over fifty police officers from the Special Operations Group (GOE) took part in the raid. When villagers tried to defend the Criollos from arrest, police fired tear gas, forcing the evacuation of a local school. In the city of Cuenca, police violently repressed protests at the Court of Justice. As six leaders began a hunger strike inside the building, the police attacked a press conference taking place outside the building, arresting Water Board leader Carlos Pérez Guartambel. Police used tear gas to disperse protesters attempting to defend Pérez. Police then forced hunger strikers and four women supporting them out of the Court building, dragging them by their necks. The governor of Azuay denied that Pérez was arrested, and he was freed later that day. The six hunger strikers are now in Cuenca’s San Roque Church. According to the newspaper El Comercio, Minister of Mines and Petroleum Derlis Palacios said that the government would push forward with the Mining Law. Palacios said that Ecuador “was a poor country that could not afford to just sit on these large resources.” He added that protests were the result of manipulation by indigenous leaders who mislead community members by claiming that mining would harm their access to clean water. Palacios said that the new law would ensure that water sources are protected. Congresillo President Cordero told El Comercio that protesters were using the demonstrations to advance electoral ambitions. The CONAIE condemned the government’s description of protesters as “criminals and subversive terrorists,” saying that “the only thing we are fighting for is life and dignity for all of Ecuador’s citizens.” The CONAIE that such comments are aimed “to stigmatize [protesters] and prepare public opinion for even more severe repression.” Correa is coming into increasing conflict with social and indigenous movement activists. On Thursday January 8, the United Labor Front (FUT), Ecuador’s largest labor federation, announced mass protests for a higher minimum wage increase for January 15. They say that Correa’s proposed increase of $18 a month, to $218, is a step back and fails to meet provisions in the new constitution ensuring that all Ecuadorians are paid a living wage. Ximena Warnaars is an anthropologist and PhD student from the University of Manchester, UK living in Cuenca, Ecuador. Daniel Denvir is a Quito, Ecuador based journalist in the process of moving to Philadelphia, and a 2008 recipient of NACLA's Samuel Chavkin Investigative Journalism Grant. He is an editor at www.caterwaulquarterly.com.

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Ecuadorian Government Debates Law Favoring Canadian Mining Companies over Constitutional Rights of Nature and Indigenous Tribes

Indigenous anti -mining protests hit Ecuador

By Daniel Denvir, Today correspondent

Story Published: Jan 2, 2009

(Story Updated: Jan 2, 2009)

On Dec. 21, more than a thousand indigenous and campesino activists marched to the Ecuadorian National Assembly in opposition to President Rafael Correa’s proposed mining law. In the Southern Province of Azuay, campesinos blocked a number of highways, resisting police efforts to dislodge them. Protesters said that large-scale mining would damage Ecuador’s environment and pollute rural communities’ water.

The Mining Law, currently under debate in the provisional National Assembly, or Congresillo, would replace the Mining Mandate passed in May of this year. The Mandate froze mining operations and revoked a number of concessions to foreign corporations. The law would create a National Mining Company and increase state control over foreign corporations, which are largely Canadian. But the law would also allow mining to take place anywhere, including in protected areas and sharply limit community input.

In Quito, buses arrived from throughout the country to protest the mining law. Marching to the National Assembly, protesters clashed with police, who used pepper spray to push back activists intent on meeting with legislators. A small delegation was allowed to enter in the afternoon. The protests were organized by the Confederation of Indigenous Nationalities of Ecuador (CONAIE) and the Coordinator for the Unity of the Left and for Life, a new organization dedicated to regrouping social movements to confront Correa.

The march is possibly a prelude to a nation-wide uprising. While the protest was not large by Ecuadorian standards, representatives from many communities were present. Earlier this month, more than 30 organizations gathered in the Amazonian city of Coca and agreed to oppose Correa’s business friendly policies. Former Correa spokesperson and Assembly Member Monica Chuji said, “Today is a first step in a broader process of unifying social movements. Today we don’t have quantity, but we have unity.” Chuji, an Amazonian Kichwa, broke with Correa’s Alianza País Party in September, accusing the president of opposing indigenous rights.

Correa insists that responsible mining is necessary for Ecuador’s development. In November, Correa accused the indigenous movement of “losing their compass and playing into the hands of sectors that they have historically criticized, such as the Right, which the current administration is combating.” Correa has threatened to send the Mining Law to a national referendum if the indigenous movement alters it or blocks its approval, accusing the CONAIE of being anti-democratic.

But Dr. Byron Real López, an expert in environmental law, wrote in a recent report that the Mandate “is concerned with solving important issues. ... such as the corruption surrounding the indiscriminate granting of concessions. But the proposed law ignores the ecological and social conflicts that mining activity causes. ... and thus would tend to aggravate them.” López argues that the proposed law would violate a number of provisions in the new constitution, such as those protecting the rights of nature and indigenous communities.

Juan Francisco, a young Kichwa, traveled from the Southern province of Cañar. “We will never let them into our territory, which provides our water. Responsible mining is a miserable lie that the government wants to sell to us.” Juan Francisco said that the government should instead support sustainable and organic farming.

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“We oppose the Mining Law because we love nature. Mining will kill us, it will poison the water with chemicals. We all drink this water and we all will die. Water doesn’t belong to anyone. It belongs to us all.”

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Despite Correa’s dismissive comments, it appears that the government is taking the movement seriously. Two days after the protests Ecuador’s interim legislature, the Congresillo, announced that they were considering extending discussion on the law by seven days – potentially pushing back a vote until Jan. 12. On Dec. 26, Congresillo President Francisco Cordero began a series of meetings with social movement leaders opposed to the project. The stated objective is to incorporate critics’ perspectives before the proposal undergoes a second debate, the last step before a vote.

But the CONAIE demands that the law be shelved so that a national debate on mining can take place. And protesters were adamant in their opposition to large-scale mining.

Carmen, a Saraguro Kichwa woman from the Southern province of Loja, said, “We oppose the Mining Law because we love nature. Mining will kill us, it will poison the water with chemicals. We all drink this water and we all will die. Water doesn’t belong to anyone. It belongs to us all.”

Campesino Jorge Marin traveled hours by bus from the Southern Amazonian province of Morona Santiago. “We’re here to stop the Mining Law, a law that will make it impossible for us to be owners of our land. We are here to defend nature and let the Congress know that we depend on the Amazon for life.”

Leaders of the CONAIE were scheduled to meet in a special assembly the first week of January to discuss a possible national uprising.

Salvador Quishpe, a Kichwa leader from the Southern Amazonian province of Zamora Chinchipe, told the crowd that mass mobilization would be necessary to stop the Mining Law. “If we have to celebrate Christmas in the streets to stop this law, we will!” Quishpe said that while it was impossible to bring thousands of people from Zamora Chinchipe to Quito, 1,500 delegates met in his province earlier this month and declared their support for nation-wide mass mobilizations.

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