MAC: Mines and Communities


Published by MAC on 2007-04-20


Supreme Court Precedent Against Dangerous Mines

by Marcela Valente


Environmental activists in Argentina applauded an Argentine Supreme Court ruling against a projected open cast gold mine using cyanide, pointing out that it set an important legal precedent.

The Supreme Court did not rule on whether or not the gold mine project planned by the Minera El Desquite SA mining company in the southern province of Chubut would cause environmental damages, nor does the verdict prohibit the company from operating.

But the lawyer for the residents who mobilised against the mine, Gustavo Macayo, told IPS that with this ruling, "all legal recourse has been exhausted," and "the stoppage of the mineworks was upheld."

Besides, the decision will also have other repercussions, because it "recognises the power of provinces to regulate the protection of the environment locally, and to regulate or restrict activities, even when they are permitted under national laws," said the lawyer, who lives in Chubut.

The Supreme Court rejected a suit brought by Minera El Desquite, a subsidiary of the Canadian mining company Meridian Gold, after it had lost cases at every local and appeals court in Chubut province, where its Cordón Esquel mining works have been at a standstill since 2003.

The court threw out the company's argument that its project, blocked by provincial laws, was permitted under national laws. In their Apr. 17 ruling, the magistrates held that there was "no conflict," because the state sets "minimum protection standards" which the provinces have the right to extend as they see fit.

A law passed in Chubut in 2003 "absolutely prohibits" open cast metal mining, as well as the use of cyanide for gold and silver mining in the province, and the company had not fulfilled the environmental requirements established by local law.

Argentina is experiencing a mining boom, driven by high international metals prices and legislation that encourages investment in the sector. The number of mining projects, which are concentrated in the west of the country, along the border with Chile, has grown by 400 percent in just over two years.

The El Desquite mining project concession was awarded by the provincial government of Chubut in 2002. Gold was to be extracted from an open pit mine and leached from the ore with cyanide.

But the ski resort town of Esquel, population 40,000, is only six kilometres away from the projected site, and residents organised against the mine because of potential air and water pollution.

They formed a citizens' assembly, whose biggest achievement was getting the municipal government to hold a non-binding plebiscite in 2003, in which 81 percent of residents said "No" to the mine.

One month before the plebiscite, a provincial court accepted an appeal for legal protection and suspended work on the mining project until an environmental impact study was carried out and was submitted to a public hearing for approval. The company, however, did not take those steps, and instead appealed to other courts.

Although El Desquite's project in Esquel remains blocked, the company's concession from the provincial government is still valid. Residents protested against this on Mar. 23, when they celebrated the fourth anniversary of the plebiscite.

The Supreme Court ruling was a victory for organisations that are against mining projects involving the use of cyanide.

"Residents' demonstrations, the plebiscite and the rulings of provincial courts had already demonstrated the legitimacy of these demands, but the Supreme Court decision sets an important precedent," Javier Rodríguez of the Chubut Antinuclear Movement told IPS.

Rodríguez, an anti-mining activist who works with movements in several provinces, said that in any event, court decisions were not enough. "Social mobilisation is essential. As a judge in San Juan once told us, 'the people have to come out on the streets'," he said.

The Supreme Court decision was "a blow to open cast mining. It sets a very important precedent, as it imposes complete cessation of work until the province's legal requirements are met," said the head of the Centre for Human Rights and the Environment (CEDHA), Daniel Taillant.

In an interview with IPS, Taillant said there was a rising trend in social protests over environmental problems in Argentina in the last five years. He said that the justice system "reflects" that trend in its verdicts, and cited the case of the Riachuelo in Buenos Aires, Argentina's most polluted river.

In that case, the Supreme Court ordered the national, provincial and municipal governments as well as the factories polluting the river to present a drainage and sanitation plan to clean up the river and curb pollution, as well as a policy to deal with the environmental impact on the health of people living in neighbourhoods along its banks.

CEDHA pointed out that further small victories had been won in other provinces, through local legal decisions and laws. In the northwestern La Rioja province, Canadian mining giant Barrick Gold was forced to halt its plans for a mine in the Famatina range after the province passed a law against using cyanide.

A similar ban was approved in the neighbouring province of Tucumán. In both cases, CEDHA noted, the decisions by the provincial legislatures were prompted by pressure from citizens' assemblies opposed to projects because of potential pollution of the air, soil and water.

"Public opinion is playing an increasingly important role in setting public policies on the environment," Taillant said.

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