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Ecuador: How to Balance the Rights of Indigenous & Local Communities With Economic Development?

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In San Jose de Intag they have been victorious twice before since 1994, but now they face an uneven battle to defend their water and natural environment against mega mining projects, amid a government push for a higher national income.

OSCAR LEÓN, TRNN PRODUCER: Indigenous communities and the affected local communities have opposed this mining initiative for many years now and have protested against it all around the country. This has led to a split between Correa, ecologists, some student groups, and the indigenous confederations, all of which were his former allies. Correa has inherited a long-standing challenge to regulate artisanal mining, and in many cases he has assumed the unpopular task of imposing mega mining projects to some local communities, like this one in San Jose de Intag, Imbabura Province, in the north of Ecuador. The local population is also worried about the consequences of an open pit mine.

CECILIA, LOCAL FARMER (SUBTITLED TRANSL.): I visited Cerro de Pasco, where they extract copper from an open pit mine. Every day, houses fall into the hole, which keeps getting bigger and bigger.

LEÓN: We contacted Jaime Guaman Guevara, an environmental consultant for mining projects from the south of the country with wide experience in the area. He supports the proposed mining projects and responded to our questions in writing.

JAIME R. GUAMAN, ENGINEER AND ENVIRONMENTAL CONSULTANT (TEXT ON SCREEN): Currently in Ecuador 95% of the mining is done by unregulated, untaxed and unsafe artisanal projects. While a new Mining Law has been approved, the regulations to apply such law have not been written yet. This is an inefficient activity.

As an environmental sciences professional, I can’t deny that an open pit mine will have an impact. I believe that in some cases such damage can be justified by the gains it returns to society.

LEÓN: Intag is a valley on a semi-tropical mountain range, about 1,800 meters above sea level on the Pacific coast of South America. It is located on a subtropical area full of mountains, rivers, and valleys.

Gold and copper have been found in the area, but until 1994 it was not possible to exploit these minerals, because Ecuadorian law didn’t allow exploitation in an ecological reserve at the time. In 1994, the World Bank loaned money to Ecuador under the condition that the country open its natural and ecological parks and reserves to mining and oil drilling. Conservative president Sixto Durán Ballén accepted such terms.

For 20 years now, Intag’s life has been a fight to defend its territory.

In 1994, Bishimetal, a subsidiary of Mitsubishi, was sampling and studying the zone. They were accused of contaminating the rivers and forced out in 1997 by an organized local community that wanted to keep its environment free from contamination.

Copper Mesa, now Ascendant Copper, a Canadian company, had a concession in the area, but its operations were being delayed. In this video from December 2, 2006 we can see how a paramilitary force breaks a roadblock, meeting the unarmed community with force.

While President Correa had won its first election only a few days before the attack, on November 26 of the same year, he only assumed power on January 15, 2007. By September 2007, under Correa’s orders, the Ecuadorian Government ordered Ascendant Cooper to stop all operations. Just a few months after that, Rafael Correa definitely canceled its mining license by January 2008.

In March 2009, a lawsuit was filed on Toronto’s Stock Exchange accusing Copper Mesa of organizing the attack. The mining company was subsequently expelled from TSX on January 19, 2010.

In all these instances, the community was victorious through organizing and effective peaceful action.

UNIDENTIFIED (SUBTITLED TRANSL.): We don’t want to let the mining companies inside our communities. Water is our life. Our children depend on it. And beyond the gold in those mountains water [is our real treasure].

LEÓN: However, they now face a new battle to defend their water and natural environment, one that may prove that much harder.

On Saturday, September 14, 2013, el Universo reported:

EL UNIVERSO NEWSPAPER, 2013-09-14 (TEXT ON SCREEN): A hundred military and police tried to enter the zone, with them, 20 technicians from ENAMI EP, the state mining company, and CODELCO, the Chilean mining transnational, determined to start preliminary studies of the Toisan Mountains, in the Intag zone, Imbabura, Ecuador.

LEÓN: A group of people from the community was there to impede their passage. They closed the road. And eventually, despite police presence, the technicians left to avoid confrontations.

It has been widely reported how Ecuador has a “Green Constitution”. In this document, on Chapter Four, referring to “Communities and Nationalities”, Article 57 point 7 says:

“A free and informed consultation shall take place about any plan for evaluation, exploitation and commercialization of non-renewable resources inside the boundaries of their lands, which could affect their environment and culture. They are also entitled to participate on the earnings of such projects and to be compensated if any social, cultural and/or environmental damage is made. . . .

“The state shall preserve and promote an adequate management of biodiversity and the natural surroundings, the state shall include the local communities to ensure the conservation and sustainable use of biodiversity.”

LEÓN: However, in Ecuador’s Mining Law passed on January 29, 2009, on Chapter 2, Article 4 it lays on the hands of the president to decide mining policy. Also, Chapter 3, Article 16 declares that the state holds total jurisdiction over all underground resources independently of what is in the surface.

In 2009, an unconstitutionality lawsuit was filed by indigenous confederations on Ecuador’s Constitutional Court regarding the Mining Law. However, a few months after, while the Court recognized that the mining law approving process had been irregular because the indigenous nationalities were not consulted about it as the Constitution mandates, it did not declared the mining law unconstitutional.

This was a very controversial verdict, because it declined to rule over the issue of preeminence of constitutional indigenous and nature rights over the mining law, a mining law that the indigenous movement, a former Korea ally, have so strongly opposed.

To understand this apparent contradiction, we spoke with Alik Pinos from Acosta Law Firm. He has wide experience in Ecuadorian Law, courts, and civil disputes.

Pinos believes that while the 2008 Constitution says that Nature and Local Communities have fundamental rights, its interpretation and enforcement are competence of the government.

ALIK PINOS ACOSTA, ACOSTA LAW FIRM (SUBTITLED TRANSL.): Many point at the fact that the Constitution can be interpreted as saying that communities and individuals must be consulted. Truth being said … is not like that. In that respect the constitution is rather ambiguous.

Many of my colleagues and some constitutionalists may say that it is clearly stipulated like that, but the truth of the matter is that the state holds the authority to decide how to administrate all of our resources.

LEÓN: This administration, according to the law, is done in “good faith” and aiming to preserve nature and the communities. Pinos Acosta argues that now the Constitution does provide better tools in case social or environmental damage happens.

ACOSTA: The moment damage or contamination takes place, then the affected communities will have the means to sue any given subject. But for the communities to be able to have a say before any of this happens, they must file a petition for a national referendum.

LEÓN: Jose Cueva is a local organic farmer who is a member of an association of small producers packing and exporting coffee. He was part of Correa’s 2006 local campaign effort. While, he is not a lawyer, Jose Cueva reflects the opinion of many critics who claim that the constitutional mandate has not been kept.

JOSE CUEVA, SMALL FARMER: The first law that the government approved after the new constitution was the mining laws. And the mining law was totally opposed to what the constitution says about nature rights and community rights, because mining is an activity that will change the lives and the culture of the people. And they had to make a consultation first, before they approve this law. They never do that.

LEÓN: According to Cueva, the population of Junin or the Intag valley has not been properly informed and consulted about the mining project as the constitution demands. He claims that using the argument of winning the elections, the government denies that right to the people of the valley.

RAFAEL CORREA, ECUADORIAN PRESIDENT (SUBTITLED TRANSL.): We won by seven to one in the area. Enough, my friends! Well, actually six to one, to be accurate, Enough of just a few sabotaging democracy and the popular will by doing whatever they want.

No more! People believe in us.

LEÓN: Pocho Alvarez, an Ecuadorian documentary filmmaker, had a documentary about Intag censored from the web by a private firm allegedly contracted by the government.

POCHO ALVAREZ, DOCUMENTARY FILMMAKER (SUBTITLED TRANSL.): President Correa made a number of disparaging and qualifying remarks about the farmers resisting mining. However, that resistance is not new and is not a personal issue against Rafael Correa or this government. It comes from a culture of more than 15 years resisting and defending its territory from mining.

ACOSTA: The main problem about all these political and social disputes is that we are opposing something which we don’t know the end results. We don’t always analyze the whole and tend to assume negatively. But that is because here in Ecuador we have very bad experiences with the exploitation of natural resources.

LEÓN: It seems that for the people in Intag and the indigenous communities, this time the fight can prove more difficult to win. Unlike the Japanese, Chilean, and Canadian firms, President Correa has a majority of popular support. To impede the open pit mine in their territory, they need to gather national support, force a referendum, and win it.

While it is hard to deny the needs of the majority, the question still stands: how can we balance the rights of indigenous and local communities with economic development for the rest of society?

Reporting for The Real News this is Oscar León.

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