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Opponents of Canadian mine in El Salvador file amicus brief in CAFTA investment dispute

Members of the El Salvador National Roundtable on Mining, or “La Mesa,” have filed for amici curiae status in the investment dispute brought by Canadian mining firm Pacific Rim against the Government of El Salvador. La Mesa is a coalition of community organizations, research institutes, and environmental, human rights, and faith-based nonprofit organizations who collectively aim to improve public policy dialogue concerning metals mining in El Salvador.

The submission to the International Centre for Settlement of Investment Disputes (ICSID) was supported by the Center for International Environmental Law. It is scathing, well worth the quick 20-page read. Without mincing any words, the brief attacks Pacific Rim’s activities in El Salvador, and its compete lack of respect for democratic process. It provides a history of the company’s drilling activities and a strong defence of the right of peoples to democratically set environmental policy without fear of investment challenges under treaties such as the Central American Free Trade Agreement (CAFTA).

The brief concludes that Pacific Rim’s $77 million claim against the El Salvador government for denying it a permit to build a gold mine is not a legal dispute at all. It should be rejected by ICSID as “merely an expression of Pac Rim‟s dissatisfaction with the fact that El Salvador’s public policy has begun to recognize the deeply destructive environmental and social effects that metals mining poses to local communities, as well as the emptiness of mining’s promise as path to sustainable development in El Salvador.”

The Council of Canadians has been following the fight against Pacific Rim’s exploration activities and attempts to establish a gold mine for several years, along with the Canadian company’s fight back using investment protections under CAFTA using its U.S. subsidiary. People living around the site of the proposed El Dorado gold mine began to notice environmental impacts from exploratory drilling as early as 2004, says the amicus brief. Residents refused to sell land to Pacific Rim, and the community and coalition of groups opposing the mine (and mining more generally, anywhere in the country) grew.

“These swells of resistance–each peaceful, organic, and unrelated to government action–led to a situation where by late 2007, 62.5% of Salvadorans were against allowing metals mining in El Salvador, despite the lobbying campaign deployed by Pac Rim,” says the brief, which continues:

The resistance was so broad, effective, and deeply-felt that in 2008, then-President Elías Antonio Saca of the right-wing ARENA party announced his own view that metals mining should not proceed in El Salvador without significant further study of possible environmental impacts and codification of more robust mining laws.

Concerns included the impact of gold mining, which produces cyanide and other toxins, on water resources in a country where less than half of people have access to piped-in water, 24 per cent have no access to drinking water sources in any way, and according to the World Bank 90 per cent of surface water bodies are contaminated, “with 98% of municipal wastewater and 90% of industrial wastewater discharged into El Salvador‟s rivers and creeks without treatment.”

The brief continues that Pacific Rim “utterly failed to adequately assess the mine’s environmental impacts,” then risked undermining El Salvador’s still delicate democracy by engaging in extensive lobbying to try to convince government officials to side with the company. Pacific Rim took this “divide-and-conquer” strategy into communities, which La Mesa blames for a violent crackdown against the proposed mine’s opponents. Says the brief:

Beginning in March of 2006 and continuing through the present, several of the most vocal opponents of the proposed El Dorado mine have been the victims of murders, abductions, torture, assaults, and threats that El Salvador‟s Ombudsman for Human Rights has concluded “are very probably related to each other, thus enabling us to infer that they are also linked to the victims‟ work in defense of the environment.”

Victims have included:

– Marcelo Rivera, Director of the Association of Friends of San Isidro and a member of La Mesa, who was kidnapped in June 2009 then found dead at the bottom of a dry well, showing signs of torture.

– Ramiro Rivera, vice president of the Comité Ambiental de Cabañas, and Felicita Eschevarría, both outspoken opponents of the mine, who were gunned down with M-16 military rifles in December 2009 as they drove near Pacific Rim’s proposed Santa Rita mine.

– Eight-month pregnant Dora Alicia Recinos Sorto, an active member of Comité Ambiental de Cabañas, who was shot with a rifle on her way back home from washing clothes at a spring.

This is not to mention the many non-fatal attacks and threats on community members.

The rest of the amicus brief picks apart the grounds for the $77-million investment claim Pacific Rim has brought to ICSID under CAFTA. For example, CIEL lawyers claim the only “legal dispute” the company could possibly have had with the El Salvador government fell apart when it failed to appeal the denial for an environmental permit to continue with the mine. Instead, Pacific Rim executives chose “to pursue an extralegal and unofficial solution to the issue through discussions with various ‘high-ranking’ Salvadoran government officials.”

The amicus brief concludes:

The general political debate concerning sustainability, metals mining and democracy in El Salvador is ongoing. Pac Rim has attempted to influence the political debate, but has been disappointed in its lobbying efforts. Dissatisfied with the direction of the democratic dialogue, Pac Rim has abused the arbitral process by changing its nationality to attract jurisdiction. More importantly, the Tribunal has no jurisdiction to hear a complaint against the course of a political debate.

For more information on El Salvador and to take action against Pacific Rim, see the Community in Solidarity with the People of El Salvador (CISPES) website.