II Social Forum Chile - Santiago de Chile, November 25, 2006
After hearing the arguments of the prosecution and the defence as well as the testimonies of civil society and traditional communities of Argentina, Chile and Perú, the judges have handed down a verdict and judicial sentence.
VERDICT - SENTENCE
The Public Tribunal was carried out against the transnational mining company, Barrick Gold Corporation, to judge its behaviour with respect to the environment, society, culture, and economy, and towards the ecosystems, communities and people of Argentina, Chile and Peru. The tribunal was convened by social movements, principally organizations and networks of campesinos, small producers and citizens.
With respect to the before mentioned facts, on November 25, 2006, in the II Chilean Social Forum, the parties to the action, Barrick Gold Corporation and Prosecuting Attorney Javier Rodríguez Pardo (representing the affected communities and organized citizens of Argentina, Chile and Peru) were convened to hear the plaintiff's demand that defendant Barrick Gold be expelled from the Argentinean, Chilean and Peruvian territories, and that all transnational mining corporations that are operating in a similar manner in said territories be treated equally.
The defendant was legally notified of the case but declined to appear. In consideration of the rules of due process, a defence attorney, Jaime Gallardo Gallardo, was designated to represent the defendant.
As argued in opening statements by both prosecutor Javier Rodrígez Pardo and in declarations by witnesses from Peru, Argentina and Chile, the mining corporation Barrick Gold has committed irreversible environmental damages and immitigable economic and social impacts in Ancash, Condorhuain, Chilecito, Famatina, and Pascua-Lama as a consequence of its treatment of traditional communities, small and medium producers, and extremely fragile ecosystems and natural resources. These non-renewable common goods have been damaged and exhausted and are no longer available for future generations of Argentine, Chilean and Peruvian citizens.
The environmental impact produced by Barrick Gold's operations is the result of what this Tribunal views as a new type of "transnational" mining that renders old mining concepts obsolete, replacing them with the use of explosives and chemical lixiviation, the intensive use of subsidized energy and water resources, and the application of various toxic compounds which destroy bodies of water that are vital to life, human activity and productive enterprises in the zones impacted by said transnational mining.
This type of mining activity, which is variously described as open-pit, strip-mine, mountain-top and other analogous designations, was created expressly for the indiscriminate extraction of minerals which lie throughout huge extensions of our mountainous territories. These areas are the property of ancestral campesino communities and agricultural and livestock producers, many of whom have been displaced without consideration of important international treaties such as Convention 169 of the International Labour Organization.
The damage produced through the extraction of these minerals of increasingly low grade ore does not respect the fragility and complexity of the high mountain riverine headwaters, "real water factories," in the Andean mountain range, or the Andean foothills, where over 80% of the minerals are found.
The people of Argentina, Chile and Peru are seeing their territories plundered. They are also confronting serious environmental problems which, if not stopped immediately, will prevent future generations from exercising their right to an adequate quality of life, as recognized by the international law of human rights. The failure to apply concepts such as the precautionary principle, an ecosystem focus, sustainable development and social equity is generating an exodus of communities located in the areas where these criminal actions are taking place.
Experiences with Barrick Gold's operations in different latitudes of the planet including Latin America reveal a similar approach: obtain the greatest profit in the least time possible and carry out shady business practices vis-a-vis international stock markets and in the sale of minerals that are extracted under permissive national laws using sworn declarations that are factually inaccurate.
In addition to the minerals that are officially sought and declared, other unreported minerals are being extracted, among them the so-called "rare elements," which are critical and strategic minerals that are utilized in modern cybernetics, high technology and space programs.
It is shown that Barrick Gold Corporation has committed severe affronts against the indigenous peoples in the zones where it operates, causing these people to scatter from the areas surrounding the company's operations, exacerbating poverty and undermining the full realization of fundamental human rights.
It is also sustained that Barrick Gold Corporation is implicated in severe violations of labour rights, because of the dangerous work conditions it imposes on its workers, resulting in continuous work-related accidents. The company requires workers to exceed the number of work hours permitted by international conventions and national law, pays unjust salaries, engages in unlawful firings. The company also infringes upon the right of its workers to collectively organize in defence of their rights, relying on the deadly police repression that is prevalent in our countries.
There is no evidence of increased economic development in any of the localities where this type of mining is carried out.
In virtue of the above considerations, which were presented to this Tribunal, it is resolved:
- That the mining firm Barrick Gold Corporation is responsible for serious environmental, social, cultural, and economic affronts as a product of its policies, programs and actions against the territories and peoples of Argentina, Chile, and Peru.
- That the new Commission of Human Rights of the United Nations be urged to apply the UN human rights norms to mining companies, and that the corresponding sanctions established in international human rights law be applied to Barrick Gold Corporation, for example those established in the Agreement for Civil Responsibility for damages caused by activities that are dangerous to the environment, the Treaty of Lugano of 1993 and Convention 169 of the ILO.
- That governments, especially those of Latin America, be urged to incorporate provisions into their penal legislation to criminalize conduct that causes serious ecological damage such as that committed by Barrick Gold Corporation, punishable by incarceration.
- That since international law does not effectively reach cases such as these, that the transnational mining company Barrick Gold be sentenced to immediately pay just restitution to the victims of its policies, programmes and actions, and to restore the ecosystems affected by its mining investments.
This tribunal proposes that during the forthcoming year, a trial of ethics similar to this tribunal be carried out to bring the politicians and public servants who facilitate these environmental, economic, social and cultural affronts to justice.
By an absolute majority of its members, this Tribunal accepts the request of the Prosecutor and hereby sentences the Defendant to immediate expulsion from the territories of said peoples, as well as condemning all transnational mining companies who are operating in a similar manner in said territories to the same treatment.
It shall be noted that Justice Eduardo Saavedra Díaz, representative of Amnesty International Chile, is not in agreement with the majority vote regarding the immediate expulsion of the accused company, but supports the totality of the rest of the contents of this ruling.
Panel of Judges:
- Miguel Palacín Quispe - Andean Coordinator of Indigenous Peoples
- Juan Carlos Cardenas - Ecoceanos Centre
- Eduardo Saavedra Díaz - Amnesty International Chile
- Sister Cristina Hoar - Department of Peace, Justice and Ecology, CONFERRE (Religious Conference of Chile)