Honduran organizations fight to have Canadian-backed mining law declared unconstitutional

February 26, 2015 | By admin | Filed in: GoldcorpHonduras.

Summary of two complaints against Honduras’ 2013
General Mining Law

In 2014, the Honduran Institute for Environmental Law (IDAMHO
by its initials in Spanish) and the Honduran Center for the
Promotion of Community Development (CEHPRODEC by its initials
in Spanish) filed separate constitutional challenges on behalf
of two groups of petitioners against Honduras’ 2013 General
Mining Law. Representing diverse individuals and indigenous and
campesino organizatons such as the Siria Valley Environmental
Committee and the Lenca Indigenous Movement of La Paz (MILPA by
its initials in Spanish), they argue that the General Mining
Law approved on January 23, 2013 is unconstitutional.

The General Mining Law was developed with technical assistance
paid for with Canadian overseas development aid. Its passage in
2013 lifted a seven-year moratorium on any new mining projects.
The moratorium was put in place as a result of public pressure.
Hondurans realized shortly after Goldcorp’s San Martín mine in
the Siria Valley went into production around 2000 that the 1998
mining law, rushed through in the wake of Hurricane Mitch,
provided no recourse for communities suffering negative
impacts. They lobbied for reforms to ban open-pit mining and
the use of certain toxins in mine processing, and to give
communities a decisive say early in the process over whether
mining could take place or not on their lands. The 2013 law
does not remedy past problems, nor did it incorporate their
demands.

The 2014 filings against the mining law argue against the way
in which the new mining law was approved, given that it
marginalized mining-affected communities, grassroots
organizations, and environmental NGOs from being effectively
heard in the process of developing the law and did not follow
the legislator’s own protocol for debate and ratification of
the General Mining Law. They also allege that over 20 articles
in the mining law violate Honduran laws and constitution, as
well as international treaties ratified by the Honduran state.

The following summarizes several problems with the law
identified in the two legal filings:

Conceding National Sovereignty to Mining
Corporations

  • The law does not ensure the “technical and rational”
    exploitation of the country’s non-renewable mineral wealth for
    failing to prohibit “extreme” mining methods such as open-pit
    extraction. Open-pit mining has already left serious
    devastation in areas such as the Siria Valley where Goldcorp
    operated the San Martín open-pit gold mine from 2000-2008.
  • The law does not limit how long mining concessions may be
    held once under extraction.
  • The law allows companies to incorporate minerals found
    during the process of exploration into their concession permit
    without needing to apply for a new license.

Putting People at Risk

  • The law fails to ensure the protection of natural areas and
    water sources vital for human consumption and other uses
    health.
  • By leaving the door open to open-pit mining, the law
    contradicts constitutional guarantees for environmental
    conservation “to protect the health of all people” without
    exception. Scientific studies are cited documenting the toxic
    effects of cyanide, mercury, lead and arsenic, which may be
    used or released during open-pit mining or mineral processing.
  • Only “registered” water sources will be protected rather
    than protecting water supplies according the state’s
    obligations to ensure the human right to water.
  • Rather than setting aside unused government lands for
    landless farmers or for environmental protection, they may now
    be sold to mining companies.

Meaningless Provisions for Consultation of Indigenous
and Non-Indigenous Communities

  • Prior consultation of affected communities is only required
    before granting a license for extraction, which is called “a
    fallacy” and contrary to constitutional principles of popular
    sovereignty, peoples self-determination and participatory
    democracy. By requiring prior consultation only before deciding
    on a company’s license to extract minerals – should the state
    actually take community input seriously -, it could open up
    Honduras to costly international arbitration lawsuits that
    companies could bring under the terms of free trade and
    investment agreements signed with countries such as Canada.
  • The lack of guarantees for prior consultation and free,
    prior and informed consent violate Indigenous rights enshrined
    in Convention 169 of the International Labour Organization and
    the UN Declaration on the Rights of Indigenous Peoples,
    including the right to say no to unwanted projects and to
    organize under their own representative bodies.
  • The filings assert that consultation should take place
    prior to any mining activities, not only out of respect for
    national and international norms, but to avoid future
    conflicts.
  • Prior consultation is not required of all affected
    communities within a company’s total area of influence. This is
    important given examples such as Goldcorp’s San Martín mine
    that had its centre of operations in the municipality of San
    Ignacio, while it also impacted Porvenir.  
  • The law imposes limits on citizen participation and
    contradicts provisions for environmental conservation by
    prohibiting areas free of mining from being created for any
    length of time.

Selling Off the Natural Commons

  • The law includes “miserably” low royalty rates compared
    with other Latin American countries that are also
    disproportional to the tremendous revenues mining companies
    make. In the case of Goldcorp’s San Martin mine, it is
    estimated that the company extracted the equivalent of $290
    million USD in gold over seven years based on average prices at
    the time. This is roughly what Honduras accumulated in external
    debt from the 1950s to 2004.
  • Under the current law, the local municipality would earn
    only 1%, or some $2.9 million over seven years, which is very
    little on a per capita basis. The complainants deem this
    legalized “tax avoidance” that enables companies to avoid
    paying what is due to the state and Honduran people.
  • The 2013 General Mining Law designates 2% of royalties to a
    “security tax” that should instead be funded through the
    national general budget, not directly from mining activities.
     
  • The creation of a Trust to manage a Social Investment Fund
    established with mining royalties raises concern that it may be
    put in the hands of private actors that, based on prior
    experiences in the region, are liable to act in their own
    self-interest instead of the public’s.

Summary compiled from the original filings by Christine
Reyes Whipple and Jen Moore.


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