(Ottawa) On March 9th, the Peruvian organization Human Rights Without Borders-Cusco (DHSF, from its initials in Spanish) wrote an open letter to the Peruvian delegation at the Prospectors and Developers Association (PDAC) convention in Toronto and a more detailed letter to Canadian mining company HudBay Minerals. The letters denounce police repression against locals peacefully protesting stalled negotiations between Hudbay and the province on a freamework agreement for the company's Constancia mine in Peru. At least 17 protesters were injured.
One letter was delivered to Peru’s delegation of representatives of Cámara Minera de Perú, the Commission for the Promotion of Peru for Export, Tourism and Business Investment (PROMPERÚ) and Peru’s Ministry of Energy and Mines at their PDAC virtual booth this morning. The letter to HudBay, which describes in detail the human rights violations committed during this violent event, was delivered to Hudbay at its virtual booth at PDAC this morning.
In its 2019 report, DHSF reported the use of public force on the Constancia project mine had been privatized through the company's agreement with the police force. The privatization of police forces for mining purposes was found to result in greater social conflict, greater social and territorial control, and the criminalization of protest and international solidarity to facilitate the operations of the mining company.
The letter to HudBay reads as follows:
HUDBAY – CANADA
RE: Evidence of human rights violations in the district of Livitaca, Chumbivilcas-Cusco
I am writing to you to express my cordial greetings and at the same time to inform that Derechos Humanos Sin Fronteras (Human Rights Without Borders in English) is an organization dedicated to the promotion and defence of human rights in the upper provinces of the Cusco Region, Peru.
Through this letter, we wish to inform you that there is a new conflict brewing in the Livitaca district, Chumbivilcas province. During the last days of February 2021, the residents of the Livitaca district (Chumbivilcas-Cusco) carried out mobilizations exercising their right to social protest to denounce Hudbay’s unwillingness to negotiate; and, although protestors remained around the company's property perimeter and did not interrupt its production in any way, members of the National Police violently repressed them. Disproportionate use of force on protesters by police, and use of unauthorized weapons and pellets, left at least 17 people injured. According to a statement by Javier Escudero, Hudbay’s Director of government affairs and social responsibility, Livitaca residents damaged the company’s private property by damaging the land on which they developed the mining project. He also said that residents damaged personal property, although there's no evidence of such damage or reported complaints.
After learning about the police repression, Chumbivilcas Provincial Criminal Prosecutor's Office, through Livitaca Police, ordered that ten community members (nine men and one woman) undergo a legal and medical examination at the Instituto de Medicina Legal del Cusco. The company released press releases informing the public that its property has been damaged.
Witnesses also indicate that this confrontation has generated fear in the victims injured by tear gas and pellets because they were threatened with incarceration if they reported what happened to them. Fearing reprisals (criminalization), they do not want to file a complaint and even less provide their personal information. Videos posted on social media show police repression. This situation is due to administrative mechanisms or channels that do not work and means for dialogue that do not offer guarantees to reach informed agreements with transparency and participation.
On March 4, HudBay Peru SAC Mining Company, the Livitaca District Municipality, civil society, representatives of the Presidency of the Council of Ministers (PCM) and the Ministry of Energy and Mines (MINEM) met and agreed on suspending the negotiation table until March 12th, 2021 in order to be able to meet in person.
We attach report No. 001-2021- DHSF where we describe the circumstances in which human rights violations occurred.
We consider that three fundamental aspects must be considered when analyzing what happened, which should focus on the criminalization of protest and weak dialogue strategies to reach favourable agreements and benefits.
1. Investments of the mining company HudBay
The Canadian mining company, HudBay, develops exploitation activities in the Constancia mining project in the province of Chumbivilcas. The project’s social-environmental area of influence covers the districts of Livitaca, Chamaca and Velille.
Since 2014, HudBay’s Constancia project has been extracting copper, molybdenum and silver in a concession area of 22,516 ha in the districts of Velille, Chamaca and Livitaca.
The visible impacts of the mining project include an increase in the cost of living for the communities, pollution which affects their productive activities (livestock and family agriculture), health problems, environmental contamination due to the discharges of industrial wastewater into the Macaray river and dust on their farms because of mining transport which also impacts biodiversity.
Peasant communities and districts are the project’s beneficiaries due to the voluntary contribution of the mining company. However, the contributions are made by the mining company itself, leaving open the possibility for overvaluation of investment costs, lack of accountability, transparency, and participation.
2. Livitaca’s Social Agenda
On Tuesday, February 2, Livitaca District Municipality's mayor, leaders of the Frente de Defensa de Los Intereses del Distrito de Livitaca FUDIL, community leaders, peasant, women's and youth organizations from the Livitaca district participated in a popular assembly to present their agreements with Hudbay at the negotiation table on February 4. The following agenda items were discussed:
a) Reformulation of the Convenio Marco (Framework Agreement): The Livitaca district requests that the reformulation of the Convenio specifies the following:
- Mitigation of impacts and environmental-social responsibility
- Participatory environmental monitoring's implementation (environmental monitoring, human health, animal health, environmental quality standards, maximum permissible limits)
- Mining company's contribution to the district's development increases to one billion soles in 4 years.
b) Mining project expansion: Recently, Hudbay mining company has requested SENACE the approval of the Third MEIA, a document that has been issued by the District Municipality of Livitaca. The district also asks that the Third MEIA is subject to Prior Consultation before SENACE's Third MEIA approval, given that this environmental management document contemplates environmental, territorial, social, and economic affectations. Thus, the population of the Livitaca's District demands the suspension of the Third MEIA's process and that Free, Prior and Informed Consultation is implemented before this process is carried out.
3. Human rights violations
- Right to benefits: As established in article 15.2 of ILO Convention 169 and the tenth final and transitory provision of the Regulations of the Prior Consultation Law, approved by S.D. 0001-2012-MC, the native peasant communities have the right to participate in the benefits (which may be economical) from Hudbay’s mining exploitation. This may be of greater relevance with the Prior Consultation.
- Right to social protest: Social protest must be understood as the exercise of a constitutional right. In its report "Protest and Human Rights", the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights states that "The right to free demonstration and peaceful protest is an essential element of the functioning and very existence of the democratic system, as well as a channel that allows individuals and different groups in society to express their demands, dissent, and complain about the government or their particular situation, as well as to demand access to and compliance with political rights and economic, social, cultural, and environmental rights" (paragraph 330).
For this, we resort to case No. 00009-2018-AI/TC: "Concerning its constitutionally protected content, this right includes the power to question, temporarily or periodically, sporadically or continuously, through the public sphere or through means of dissemination (material, electrical, electronic, virtual and/or technological), individually or collectively, the facts, situations, provisions or measures (including normative) for political, economic, social, labour, environmental, cultural, ideological or of any other nature, established by public or private powers, to obtain a change in the status quo at the local, regional, national, international or global level, provided that this is done on the basis of a legitimate purpose according to the constitutional public order, and that in the exercise of the protest the legality that is in accordance with the Constitution is respected.” (foundation 82)
"Precisely, in such crisis contexts, the recognition and guarantee of the right to protest for legitimate purposes and within the framework of the prevailing legality becomes more relevant, provided that the latter is in accordance with the Constitution, inasmuch as said protest, with such characteristics will constitute a genuine expression of popular sovereignty.” (Article 45 of the Constitution)
Please accept Madam, Sir, the assurance of my highest consideration.
Oracio Angel Pacori Mamani Executive Director, Derechos Humanos Sin Fronteras