Any of our business? Human Rights and the UK private sector - Human Rights Joint Committee Contents

Memorandum submitted by the Latin American Mining Monitoring Programme (LAMMP)

  1.  LAMMP congratulates the Joint Commission on undertaking this inquiry into business and human rights. Despite significant progress, such as companies producing human rights statements and becoming signatories to international agreements, much work still needs to be done to document and address the day-to-day concerns of people suffering the consequences of irresponsible business practices.

  2.  LAMMP's mission is to assist and empower the poorest sectors of Latin American civil society in their efforts to ensure that natural resources are exploited in a sustainable way and within a framework of respect for their human rights.

  3.  The focus of LAMMP's work is Latin American rural and indigenous women, a most vulnerable and marginalised group so far excluded from the mining debate despite bearing the brunt of its consequences. LAMMP has developed a database for the documentation of HR abuses against women challenging mining companies. With this, we seek to encourage a broad debate and provide evidence that links poverty and violence against women to mining conflict. We work in partnership with grass-roots groups in Ecuador, Venezuela, Peru, Bolivia and Guatemala. All of the work we support focuses on providing women with financial resources and technical tools to understand and challenge mining polices and practices that make and keep them poor.

  4.  LAMMP's submission focuses on the Tintaya mine, wholly owned by London listed Xstrata Plc. It brings to your attention the voice of Hilda Huaman, a woman lawyer of Quechua extraction who has suffered years of persecution as a result of her work in defence of the province of Espinar, home to many communities affected by the activities of the Tintaya mine.[386]

  5.  The first operator of the Tintaya copper mine was the Peruvian government, back in 1980. In 1994 Magma Copper bought it and subsequently in 1996 sold it to Australia's Broken Hill Proprietary Inc. After January 2001 (when BHP Ltd and UK Billiton merged) the mine became BHP Billiton Tintaya. In 2006 Xstrata Plc acquired the Tintaya mine from BHP Billiton for US 750 million.

  6.  The impact of the mine on communities is severe and widespread. Complaints include:

    — On livestock rearing: Despite a proud tradition of livestock rearing, over the years the local cattle trade has declined significantly. Pasture areas have been affected by mining dust and animals are ill as a result of drinking contaminated water. Communities complain of becoming poorer not just due to loss of land but also as a result of the deteriorating quality of the water to the point that it has limited use.

    — On rivers: There are reports that waste water from the mine's processing plant had leaked into local rivers and springs,[387] contaminating pasture land (this was recorded by Oxfam/AUS Mining Ombudsman in her Annual Report 2001). A reduction in the number of fish has also been reported.

    — On soil: The village of Alto Huancane reported (and it was later confirmed) that large extensions of grazing areas have been inundated with tailings. Animals are often sick and seeds don't grow. A study carried out by Peruvian NGO CooperAccion in 1999 concluded that families affected by the mine are not able to satisfy their basic needs.

  7.  In response to demands from local organisations, on 3 September 2003 BHP Billiton Tintaya S.A. signed a Framework Agreement (known as Convenio Marco) with the Espinar Province. Local authorities and local organisations participated in the process of formulating this agreement which among others made provision for environmental monitoring, building capacity of local people, setting up an independent commission for monitoring environmental impact of the mine and investment on sustainable development, as well as a financial contribution of 3% of pre-tax profits with a minimum of US $1.5 million (not linked to taxes).

  8.  As a lawyer and Human Rights Secretary to the United Front for the Defence of Espinar ("Frente Unico de Defensa de los Derechos de Espinar"), Hilda Huaman played an important role in the drafting of the agreement. Once the Framework Agreement was signed, Hilda was named president of the "technical commission" responsible for overseeing that this ground-breaking agreement was upheld by all parts.

  9.  On 17 May 2005 frustration on the part of the organisations with what appeared to be back-tracking by BHP Billiton Tintaya S.A. led to a public meeting at which leaders and the affected communities agreed to re-formulate the agreement dating from 2003. The technical commission produced a new re-formulated agreement ("Convenio Marco reformulado"), which was discussed and approved by leaders of local organisations during a public consultation. This new agreement demanded that BHP Billiton spend twenty million dollars on social projects and infrastructure between Espinar and Arequipa. The local Mayor signed the new draft and agreed that it should be delivered to the corporation.

  10.  On the 18th a delegation formed by members of the technical committee presented itself at the mine (as president of the technical commission Hilda Huaman was also present), handed in the new "Convenio Marco reformulado" and requested an answer from the corporation by 20 May 2005.

  11.  On 20 May several organisations, among them the United Front for the Defence of Espinar, held an extraordinary meeting in the local plaza to discuss the corporation's lack of response to the document previously handed in. Records of the meeting confirm that public protests were called for the days 23rd, 24th and 25th. The local Mayor agreed that buses could be used in order to facilitate transport of women with children etc. As secretary Hilda Huaman was responsible for minute-taking of decisions agreed during this meeting.

  12.  In the early morning of the 23rd, around 3,000 people made their way from the city of Espinar (Cusco) to the offices of the mine. The purpose was to oblige Edgar Basto Baez, legal representative of Tintaya S.A. to meet community leaders. However, the delegation was not able to see Mr Basto who was away in the city of Arequipa. Local radio stations reported that the national police dispersed the demonstration with tear gas and bullets.

  13.  On the 24th around 3,000 people got together and again made the trip to the Tintaya mine. Although Mr Basto was in his office, at around 2pm he informed the crowd that he would not meet with the delegation. Newspaper reports of the day suggest that many people felt angry at this decision, and an unknown number of them walked into the buildings and proceeded to ransack the offices. The intrusion was filmed (it is difficult to identify people). Shortly after 8pm police buses arrived and detained those who had not had time to escape from the mine's buildings. As the community remained vigilant outside the corporation's offices, late in the evening the police allowed those detained to leave the building. The police remained, protecting the building.

  14.  On the 25th people from Espinar and surrounding communities once again went to the mine site and waited outside requesting to see Mr Basto. Police officers stationed outside the building spread the rumour among protesters that a private meeting between the local Mayor and Mr Basto had taken place the night before. When the local Mayor and his advisors came to talk to the group, many people felt betrayed by his alleged alliance with the mine and attempted to lynch him in some kind of "mob justice".[388] As a direct result of the above incidents, the government declared a state of emergency and called for the army to regain control and maintain order.

  15.  Tintaya S.A estimated damages at 10,886,897.88 US dollars. This figure included loss of revenue, as the mine was shut for a month for fear of more vandalism.

  16.  As a result of BHP's official complaints, the Public Prosecutor brought a lawsuit against 74 protestors (process 2005-118-10-0808-JP-01). Despite a lack of evidence, Hilda Huaman's name was among those accused of being responsible for damage to the mine and preventing police for carrying out their duties. Hilda believes that she was singled out because of her high profile as community leader, her involvement in the drafting of the new agreement as well as for forming part of the group that handed it over. Throughout the investigation none of the legal documents established either her crime or her legal responsibility. Furthermore, she was not identified as being directly responsible for illegal acts nor did the public prosecutor provide evidence that she participated in the public protest. Equally important, no attempt was made to establish Hilda's degree of participation (individualisation of her responsibility).

  17.  Given that the crimes were not specified, Hilda never knew exactly what she had done. This in turn limited the effectiveness of her defence. Such irregularities go against the right to have a proper legal process and Article 14 (numeral 3, literal b) of the International Covenants for Civil and Political Rights which establishes that a person has the right to know of what s/he is accused. Furthermore the OEA Convention on Human Rights establishes that a person is entitled to have clear and abundant details regarding the accusation.

  18.  In November 2008 in support of Hilda and the 73 other implicated in the investigation, the Environmental Defender Law Center (EDLC[389]) with the support of English-based solicitors[390] requested EDLC's admission as Amici Curiae for the case. In a 26-page brief the lawyers show that under international and regional treaties on human rights signed and ratified by Peru it is not possible to condemn Hilda (and fellow citizens) for participating in a protest against a mining company that had caused severe environmental damage and failed to adhere to agreements to redress this situation. They argued that the government's hidden intention with the process was to silence not only those protestors included in the lawsuit but also many others legally protesting against the environmental consequences of the activities of BHP Billiton Tintaya S.A. In other words, the government's final goal was the criminalisation of a range of actions vigorously protected by international legislation on human rights, regional legislation on human rights and Peru's national legislation

  19.  EDLC legal argument is summarised in three points. (1) Punishing the protesters represents a violation of their rights to freedom of expression, assembly, association, petition, participation in public affairs and the right to a healthy environment. (2) Under criminal law nobody can be made responsible for the illegal acts of others on the basis that they participated, organised or led a public protest. (3) Finally, EDLC argued that the accusations have to be seen as part of a global problem; that is, the global persecution of citizens defending themselves against damage to their environment. In this context EDLC presented dozens of example from countries including Peru in which environmental defenders have been accused of fabricated crimes, sent to prison, attacked and sometimes killed. Given this situation, EDLC concluded that the lawsuit represented the attempt of a government willing to use environmental human rights defenders as targets in an effort to silence not only them but also the people they represent.

  20.  On 9 December 2008 Hilda as well as the others included in the process were declared innocent by the Tribunal of Sicuani, province of Canchis.

  21.  Between June 2005 and March 2006, Hilda reported being subject to threats from mine workers as well as from workers of the local council. She had to move house as her home was under constant surveillance (films, photos and someone outside her house in a visible place). As she felt her safety was compromised and feared for her life, in March 2006 she moved to the city of Arequipa where she still resides.

  22.  BHP Billiton never admitted that the devastating impact of its activities on people's lives together with its failure to adhere to agreements with the community was the reason for the protests. To this day, Hilda reports that the absence of systems for monitoring and reporting for example spills, together with the mine's total disregard for civil society groups means that the company is accountable to no one in the community. As a result, the conflict between the company and the communities deepens every day.[391]

  23.  The lawsuit was brought by the state of Peru, at the request of Tintaya S.A, which supplied all evidence including names of the people responsible for damage to the company's property. At LAMMP, we believe Hilda Huaman's case is important as an example of bad practice of a company that does not accept responsibility for persistent violation of people's rights to a healthy environment. It also shows how the company, having recognised the critical role played by Hilda as defender of the rights of the communities, pursued a lawsuit that according to EDLC's Amici Curiae brief would be inadmissible in the UK or the USA.

  24.  LAMMP welcomes the interest of the UK government in identifying both measures to prevent this pattern of corporate abuse repeating itself as well as proactive policies for the protection of human rights defenders.

386   The province has more than 70,000 inhabitants. 60% of the population live in rural areas and speak the Quechua language. FONCODES "Mapa de la Pobreza 2000" put income in eight districts of Espinar as very low/extreme poverty. Back

387 25 May 2005 "Alcalde de Espinar apedreado por pobladores" Back

388 25 May 2005 "Alcalde de Espinar apedreado por pobladores" Back

389 Back

390   Garrett Byrne and Jack Anderson, 4-5 Gray's Inn Square, London WC1R 5AH Back

391   December 2007 CoperAccion "Primer Informe. Observatorio de Conflcitos en el Peru". Back

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