There’s no place for clean water under ‘free trade’

Yet another standoff between clean drinking water and mining profits has taken shape in Colombia, where two corporations insist their right to pollute trumps human health and the environment. As is customary in these cases, it is clean water that is the underdog here.

Two million people are dependent on water from a high-altitude wetlands, which is also a refuge for endangered species, that a Canadian mining company, Eco Oro Minerals Corporation, wants to use for a gold mine. The wetlands, the Santurbán páramo in the Andes, has been declared off-limits for mining by Colombia’s highest court due to the area’s environmental sensitivity. Eco Oro is suing the Colombian government because of this under the Canada-Colombia Free Trade Agreement.

The dispute will likely be heard by a secret tribunal that is an arm of the World Bank, even though the World Bank has provided investment capital for Eco Oro to develop the mine.

The Colombian Andes (photo by Luisalberto p)

Eco Oro has not said how much money it intends to ask for, but another mining company, the U.S.-based Tobie Mining and Energy Inc., has separately sued Colombia for US$16.5 billion because the government refused to allow it to establish a gold mine in a national park. To put that $16.5 billion in perspective, the total represents more than 20 percent of Colombia’s budget.

To the north, El Salvador is still awaiting the decision of another secret tribunal in a case heard in September 2014. An Australian mining company, OceanaGold, sued El Salvador for $301 million because it was denied a permit to create a gold mine that would have poisoned the country’s biggest source of water.

Under “free trade” agreements (which have little to do with trade and much to do with enhancing corporate power), governments agree to the mandatory use of “investor-state dispute mechanisms.” What that bland-sounding phrase means is that any “investor” can sue a signatory government to overturn any law or regulation it does not like because the law or regulation “confiscates” its expected profits, with no limitations on who or what constitutes an “investment.” These cases are not heard in regular judicial systems, but rather in secret tribunals with no oversight, no public notice and no appeals. The judges who sit on these tribunals are corporate lawyers whose regular practice is representing corporations in these types of disputes.

Environmentalists rally for sensitive wetlands

In the latest Colombian case, that of Eco Oro Minerals, the company sued one month after the Constitutional Court of Colombia ruled that a government plan to permit mining in some portions of the country’s sensitive high-altitude wetlands is unconstitutional. Eco Oro’s original plan was for an open-pit mine, which was denied by the environmental ministry thanks to an organized campaign by environmentalists. Denied a permit, Eco Oro then began plans for an underground mine, and received $16.8 million in financing from the World Bank to fund a new study. The environmental ministry subsequently declared the area a protected region, rendering illegal any mine. The final chance to open a mine was ended when the Constitutional Court ruled in February 2016.

The mining company has declared Colombia “in breach” of its obligations and notified Bogotá of its intention to sue if a negotiated settlement can’t be reached. Eco Oro issued a public statement that said, in part:

“The dispute has arisen out of the Government’s measures and omissions, which have directly impacted the rights granted to Eco Oro to explore and exploit its Angostura Project. The measures and omissions that have affected Eco Oro include (without limitation) the Government’s unreasonable delay in clarifying the limits of the Santurbán Páramo and whether it overlapped with the Angostura Project and its persistent failure to provide clarity as to Eco Oro’s right to continue developing its mining project in light of further undefined requirements and later as a consequence of the Constitutional Court’s decision of February 8, 2016, which has broadened the prohibition of mining activities in páramo areas.”

To use more direct language, the company declares it should be allowed to destroy environments for unlimited profit-making. Colombia’s high-altitude wetlands provide 70 percent of the country’s fresh water, so protecting them is hardly unreasonable. But “free trade” agreements elevate corporations to the level of a national government (or, arguably, above national governments because only corporations have the right to sue) and elevate private profits above all other human concerns.

Giving with one hand, taking with the other

A commentary in Naked Capitalism notes the irony of the World Bank funding destructive projects at the same time Western governments are encouraging environmental measures to mitigate global warming. The commentator, Don Quijones, writes:

“[W]hile vast sums of Western taxpayer funds are pouring into Colombia to encourage it to protect its environment, Western corporations — with full backing from the World Bank — are doing all they can to prevent the government from safe-guarding its environment, including the water supply its people depend on.”

Earlier this month, the World Bank declared it would make a “fundamental shift” by now diverting money to projects that will ameliorate global warming, and claiming that all its future investments would take climate change into account. Disbelief would be justified here, considering the World Bank’s record of financing massive projects that pollute and contribute greatly to global warming, and that the bank, in 2012, issued a report sounding an alarm against global warming to no noticeable effect.

But that World Bank report was a feat of monumental hypocrisy, and not simply because it called for shifting of money toward “green capitalism” initiatives — in other words, the same runaway train that has brought the world to the brink of catastrophic global warming is supposed to now magically save the world. The World Bank has provided billions of dollars to finance new coal plants around the world in the recent years and repeatedly has provided capital to make possible dams and energy projects that have displaced large numbers of people and disrupted ecosystems.

Mining company says national park is ‘fraudulent’

The other case filed against Colombia, by the U.S. mining company Tobie Mining and Energy, claims that the country’s government has “expropriated” its investment and that the creating a national park is “fraudulent.” Tobie claims that the Colombian government (then headed by hard-right authoritarian Álvaro Uribe, whom the company extravagantly praises on its web site) granted approval for its proposed mine in 2008, but before a final agreement could be reached, a national park was created, blocking the mine.

Tobie demands $16.5 billion or to be allowed to go ahead with its gold mine, but does not explain how it calculates what it claims to be the “fair value” of the mining concession. The entire value of all gold exported from Colombia in 2014 (latest figures available) was $1.4 billion, according to the World Bank — considerably less than the value of coffee exported. The value of Eco Oro’s disallowed mine is also subject to question, as a Canadian Parliament report on trade estimates the value of Colombian “energy and other” products imported to Canada to be C$280 million.

The World Bank secret tribunal that will hear Eco Oro’s suit against Colombia (formally known as the International Centre for Settlement of Investment Disputes, or ICSID) has a long history of one-sided, pro-corporate rulings. The latest of these, on April 4, was a decision that Venezuela must pay the Canadian mining company Crystallex International US$1.4 billion for denying a permit on environmental grounds. The area Crystallex wanted to mine is one of only four pristine forests in Venezuela and home to several Indigenous peoples.

Among other decisions handed down, Canada was forced to reverse its ban of the gasoline additive MMT and pay compensation to a U.S. chemical company; Mexico was forced to grant a permit to a U.S. metal company that wanted to site an environmentally dangerous waste dump and pay compensation; and Canada was required to reverse a transport ban on PCBs that had conformed to environmental treaties. In this last case, for good measure, the secret tribunal ruled that, when formulating an environmental rule, a government “is obliged to adopt the alternative that is most consistent with open trade.”

That last ruling provides the essence of “free trade” agreements — the accumulation of corporate power to override all democratic controls over health, safety, environmental or labor safeguards. And as awful as these decisions are, worse is what would await us should the Trans-Pacific or Transatlantic partnerships go through as those agreements promise even more draconian rules than the ones already in place.

Clean water as an impediment to corporate profits

An Australian mining company insists its “right” to a guaranteed profit is superior to the right of El Salvador to clean drinking water  — and an unappealable World Bank secret tribunal will decide if that is so.

Drinking water is the underdog here. It might be thought that Salvadorans ought to have the right to decide on a question as fundamental as their source of water, but that is not so. It will be up to a secret tribunal controlled by corporate lawyers. And as an added bit of irony, the hearing began on El Salvador’s Independence Day, September 15. Formal independence, and actual independence, alas, are not the same thing.

The case, officially known as Pac Rim Cayman LLC v. Republic of El Salvador, pits the Australian gold-mining company OceanaGold Corporation against the government of El Salvador. OceanaGold is asking for an award of $301 million because the Salvadoran government won’t give it a permit to open a gold mine that would poison a critical source of drinking water on which millions depend.

Cerro Cacahuatique, El Salvador (Photo by Amilcar moraga)

OceanaGold — or, more specifically, its Pacific Rim subsidiary, which it bought in November 2013 — has spent only a small fraction of the $301 million. That sum isn’t an attempt to recover an investment; it represents the amount of profits the corporation alleges it would have pocketed but for El Salvador’s refusal to give the company a permit. (El Salvador has had a moratorium on new mining permits since 2008.)

So here we have an increasingly common scenario under “investor-state dispute mechanisms” — environmental laws designed to safeguard human and animal health are challenged as barriers to corporate profit. Not simply to recover an investment that didn’t pan out, but supposed future profits that a company claims it would have earned. Should El Salvador prevail, it would still have lost because it will spend large sums of money to defend this case, money that could have been used for the welfare of its people.

An added insult in this case is that it is being heard not under one of the “free trade” agreements that elevate corporations to the level of (or above) a country, but under an El Salvador law passed by the former Right-wing government that has been since reversed. Pacific Rim originally sued El Salvador under the Central American Free Trade Agreement, but the case was dismissed because Canada, where Pacific Rim had been based before its acquisition by OceanaGold, is not a party to CAFTA. But the tribunal allowed the suit to be re-filed under an El Salvador law that granted corporations the same right to sue in secret tribunals ordinarily found only in “free trade” agreements.

Lawyers for corporations sit in judgment

The tribunal judging El Salvador is known as the International Centre for the Settlement of Investor Disputes (ICSID) — an arm of the World Bank. Neither the public nor the press are allowed to witness ICSID hearings and there is no appeal to its decisions. Under the “investor-state dispute mechanism,” governments legally bind themselves to settle “disputes” with “investors” in the secret tribunals. Cases are decided by a panel of three judges selected from a roster. The judges are appointed to the roster by the national governments that have signed on to ICSID.

Because ICSID, similar to other arbitration panels, does not have rules against conflicts of interest, most of the judges are corporate lawyers who specialize in representing corporations in these types of disputes. To provide just one example, one of New Zealand’s selected judges is David A.R. Williams, who is currently representing Philip Morris in its suit seeking to force Australia to overturn its tobacco regulations, which were ruled legal by Australia’s High Court.

The three judges in this week’s hearing are V.V. Veeder of Britain, Brigitte Stern of France and Guido Santiago Tawil of Argentina. Mr. Veeder and Mr. Tawil are veteran corporate lawyers; the former has carefully omitted any mention of who his clients are in his CV, while the latter’s bio page boasts he has assisted in the privatization of Argentina’s assets while representing corporations in several industries. To put that in some perspective, an austerity program was imposed in the early 1990s in conjunction with selling off state enterprises at below-market prices. This fire sale yielded $23 billion, but the proceeds went to pay foreign debt mostly accumulated by the military dictatorship — after completing these sales, Argentina’s foreign debt had actually grown.

The third member of the tribunal, Ms. Stern, is an academic regularly called on to arbitrate investor-state disputes. One of her previous rulings awarded Occidental Petroleum Corporation $2.3 billion against Ecuador because Ecuador had canceled an Occidental contract over a dispute in which the tribunal agreed that Ecuadoran law had been violated. The oil company was in the wrong but was given a windfall anyway!

Among the precedents these three ICSID judges will consider are separate rulings ordering Canada to reverse bans on PCBs and on the gasoline additive MMT, both dangerous to human health, because the bans hurt corporate investments.

Didn’t meet its obligations, but so what

The former Right-wing Arena government of El Salvador in 1999 passed a law enabling “investors” to sue the country in ICSID, thereby circumventing the local judiciary, as part of its effort to encourage foreign investment. A subsequent Right-wing government yielded to public pressure in 2008 by issuing the mining-permit moratorium, and the Farabundo Martí National Liberation Front (FMLN) administrations of Mauricio Funes (elected in 2009) and Salvador Sanchez Ceren (elected in 2014) have kept the moratorium in place.

In addition to the general moratorium, the Salvadoran government cites not only environmental and health concerns specific to the mine, but also says Pacific Rim has failed to meet its legal obligations nor has it secured more than a small fraction of the local permissions it must have to develop the land it seeks to mine. Some observers fear that a ruling in favor of OceanaGold could lead to violence in a country in which 70,000 were killed in a civil war a generation ago. Luke Danielson, a researcher with the Sustainable Development Studies Group, told the Inter Press Service news agency:

“This mining project was re-opening a lot of the wounds that existed during the civil war, and telling a country that they have to provoke a civil conflict in order to satisfy investors is very troublesome.”

Local communities are shut out of arbitration forums like ICSID, but it is community organizing that is responsible for the, so far, successful pushback against environmentally destructive mining. The National Roundtable Against Metallic Mining, or “La Mesa,” is an organization of civil society groups that has led the opposition to OceanaGold. Several corporations have prospected in El Salvador’s inland highlands areas since the Right-wing Arena government passed the law allowing investors to sue in ICSID.

A now closed mine in the area, on the San Sebastian River, operated by the U.S. company Commerce Group, left behind water too dangerous to touch, never mind drink. The El Salvador Ministry of the Environment and Natural Resources tested the river and found cyanide levels nine times above the maximum allowable limit and iron levels more than 1,000 times the maximum allowable limit. So polluted is the river that it runs yellow, orange or red at times.

Mining for gold is a process that uses large amounts of dangerous chemicals in the extraction. A National Geographic blogger, Vladimir Pacheco, writing about OceanaGold’s proposed mine, reports:

“The cyanide-leach processes at the company’s El Dorado mine will use approximately 900,000 liters of water a day. In comparison, it would take 30 years for an average Salvadoran family to use that amount of water. … Will water needed for the project aggravate the already perilous state of water access in the country? A study by the Ministry of Environment found that only two percent of the rivers contain water that can be made fit for human consumption, or used for irrigation or recreational activities and in another study the Global Water Partnership warns that water supply in El Salvador is hovering on the threshold of 1,700 cubic metres of water per person per year, the upper limit for the definition of water stress.”

Fighting back but at a cost

La Mesa has continued its struggle against mining and for the ability to decide its own pattern of development despite the violence that often seems to accompany mining. Three anti-mining activists were murdered in a six-month span in 2009. A report on Salvadoran activists published last year by Common Frontiers, a Canadian coalition, said:

“The fact that the government of El Salvador stopped issuing mining permits to companies was a real boost for their movement but at the same time it brought a significant shift in Pacific Rim’s tactics towards them. The company is accused of utilizing kidnapping, intimidation and even murder against community members opposed to the mining project.”

OceanaGold, which now owns Pacific Rim, did not address these charges in its glossy Fact Book 2014, but did have this to say:

“We have a staunch commitment to making sure our operations enrich, empower and improve the lives of our stakeholders, by creating a positive, long-lasting legacy that respects human rights and delivers enduring benefits and opportunities beyond the life cycle of our operations.” [page 28]

The Philippines Commission on Human Rights might beg to differ. In 2011, the commission recommended that the Filipino government revoke OceanaGold’s license to operate because of “alleged violation of the rights of the indigenous people of Barangay Didipio in Kasibu, Nueva Vizcaya,” including forced evictions. (The license was not revoked, and the mine is operating.)

La Mesa calls OceanaGold’s suit “a “direct attack against the sovereignty and legitimate right of the Salvadoran population to reject an industry that is a threat to our lives.”

This history is not likely to be under consideration by the ICSID tribunal. It is not known when it will hand down a decision, although it is likely to be at least several months. Two fundamental questions that can’t be avoided are: Does a community have the right to make decisions on its own development? Do multi-national corporations have the right to a guaranteed profit without regard to the cost imposed on communities?

That such questions must be asked — and that “no” to the first question and “yes” to the second are increasingly common answers — is emblematic of dictatorship, not democracy.