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
http://www.24horaslibre.com
25 May 2005 "Alcalde de Espinar apedreado por pobladores" Back
388
http://www.24horaslibre.com
25 May 2005 "Alcalde de Espinar apedreado por pobladores" Back
389
http://edlc.org 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
| 
