Blog Entry

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

Jen Moore

Latin America Program Coordinator / Coordinadora del programa para América Latina, 2010-2018.

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.