By Dr. Alejandro Sangenis
Analyzing the world context, the impact produced by open pit mining and the use of toxic substances in mining activities throughout the planet has generated the need to establish new norms appropriate to the new realities, noting that in comparative law the legislative trend is towards the prohibition of such activities and the prohibition of the use of toxic substances in mining
Report for the press by legislator Alejandro Sangenis
The law promoted by Alejandro Sangenis (MP3) that prohibits "so-called open pit mining exploration, prospecting and exploitation" and "the use of cyanide in mining industrialization" remained firm as it had not been vetoed by the provincial Executive Power.
"This rule is intended to conserve natural heritage and biological diversity, since it is everyone's responsibility to protect the environment as an integral part of a process of economic development," justified the parliamentarian.
The initiative is based on article 41 of the National Constitution that guarantees all Argentines "the right to a healthy, balanced environment, suitable for human development and for productive activities to satisfy present needs without compromising those of future generations. ; and they have a duty to preserve it ... "
A brilliant document from the Pastoral Social of the Diocese of Bariloche entitled Gold mining indicates that it is the responsibility of the provincial governments to “defend the interests of the local community before those of the mining companies, avoiding the co-optation of both their officials and government agencies by companies. In this sense, the participation of the local community in the matter will be essential, for which all local provisions that oppose these criteria should be repealed and essentially keep the community informed not only through their representatives in legislatures and councils. community, but creating specific commissions, representative of the local community, which ultimately decide on whether or not to carry out certain mining undertakings ”.
“Tucumán is a province of little geographic extension and high density. The agricultural borders are extended to the limit in our territory and we have a single water basin, which we share with other provinces and whose contamination has already caused us serious inter-jurisdictional conflicts with Santiago del Estero. It is our responsibility to ward off new dangers to our only source of water, and to protect both our natural assets as well as production and tourism. It is about that we Tucumanos can claim our right to choose our own model of sustainable development, that is, for ourselves and for future generations ”, underlined the president of the Ecology Commission.
The dangers of open pit mining
Various scientific reports determined that during the exploitation phase, the main environmental impacts caused by open-pit mining are:
• It modifies the land surface of the exploitation area: it devastates the soil structure producing severe changes in the morphology of the land.
• Removal of the soil and drying in the surrounding area.
• Decreases agricultural and agricultural yield.
• The impact on flora is of great magnitude, it implies the elimination of vegetation and forests in the area of operations.
• Destruction and modification of the flora in the surrounding area.
• It causes pressure on existing forests in neighboring areas that can be destroyed by the impacts of exploitation.
• The environment is affected because it is radically transformed, it loses its scenic or landscape attraction, added to the noise pollution caused by the noise produced by the different operations: crushing and grinding, power generation, transport, loading and unloading of materials, etc.
• Air pollution by solid impurities: toxic powders and fuels in suspension, vapors and gaseous cyanide, nitrogen oxides and sulfur dioxide, capable of penetrating human and animal lungs.
• Pollution of surface waters: by fine solid waste that can raise the sediment layer of rivers and streams in the area.
• Contamination of groundwater or groundwater, with used oil, with reagents, with mineral salts, coming from the piles or dumps of solid waste products from the treatment processes, as well as the rainwater that falls on them.
The document of the Bishopric of Bariloche highlights, in turn, among the impacts of mining on the economy that it can “reduce the income of local communities due to a decrease in agricultural, livestock and forestry production due to impacts on soil, water, Flora and fauna".
“What can the producers of citrus, blueberries, paperos, vine growers and other farmers in the province expect if we do not preserve Tucumán from the dangers of this industry that, in addition to damaging the rest of the productions in its area of influence, leaves few royalties ( only 3% remains in the country), provides very few, transitory and dangerous jobs (in 2002 the sector only represented 0.2% of the existing jobs in the country) and also leaves behind huge craters in the regional topography and millions of liters of water contaminated with cyanide? What province would we have to offer tourists after the very high impacts on the environment and on the quality of life left by these mining operations? ”, Asked the parliamentarian.
“We do not want local producers to have the same anguish as many San Juan and Mendoza winemakers who today see their millionaire investments in the mother industry of the Cuyo region jeopardized due to the numerous mining requests that exist in those provinces. Nor do we want the annoyance and discords that arose in the towns of Santa María, Andalgalá and Belén due to the consequences of the exploitation of Minera La Alumbrera, which has already left an opening in the hills equivalent to five Maracaná stadiums ”, he considered.
We do not want black chronicles in Tucumán
The serious environmental catastrophes produced by the use of open-pit mining technology and cyanide leaching, such as those that occurred in: Summitville Gold Mine, Colorado, USA (1992); Brewer Gold Mine, South Carolina, USA (1992); Harmony Mine, South Africa (1994); Omai Gold Mine, Guyana (1995); Gold Querry gold mine, Nevada, USA (1997); Los Frailes zinc mine, Spain (1998); Homestake Mine, South Dakota, USA (1998); Tulukuma Gold Mine, Papua New Guinea (2000); Minera Santa Rosa, El Corozal, Panama (1998); Comsur Mine, Bolivia; Aurul Bahía Mare Gold Mine, Romania (2000); Mina Angela, Chubut, Argentina (2001).
“With this law we guarantee that Tucumán does not join this tragic list that the journalistic chronicles of the world's newspapers mourned. That is why we emphasize that the provincial government has not vetoed this law. In Tucumán we do not want this mining that comes, pollutes and leaves; we want sustainable production and tourism for life ”, stated Sangenis.
These catastrophes made the specialists of the First World countries decide to apply the Precautionary Principle to mining technology for open pit exploitation with the use of toxic substances, which establishes… ”that when there is danger of serious and irreversible damage, the lack of absolute scientific certainty should not be used as a reason to delay the adoption of effective measures to prevent environmental degradation, which implies an investment in the burden of proof process in that the lack of absolute scientific demonstration no longer implies guidance permissive of activities potentially harmful to the environment. This is, as the Anglo-Saxons say, in the absence of scientific certainty, it is better to err on the side of safety.
“For all this, the issuance of this and other complementary environmental regulations of the minimum protection budgets that are helpful for the conservation of its environment, its landscape, its sociological structure and its own particular lifestyle and of the natural assets that its inhabitants use sustainably without disturbing the activities of their neighbors, neighboring communities or the rights of future generations. And we must even reaffirm that the defense of our natural assets does not only mean preserving them for future generations, but we have to understand that we are defending the lives of our contemporaries. In addition, in the final health product, as stated by Minister Ginés González himself, the environment affects 20% according to the national average. I am sure that in our province, due to its geographical characteristics, this incidence is higher, ”said the parliamentarian.
Comparative legal doctrine and international environmental legislation hold that those behaviors that endanger the environment threaten the heritage and the right to landscape and environmental enjoyment of humanity, so that the effects on said common environmental heritage of humanity necessarily become in infractions against humanity, and that such affectation is not limited to present generations, but extends over time to future generations for unpredictable periods.
Laurence Summers, who was Vice President of the World Bank and Secretary of the Treasury of the United States in the Clinton administration, expressed in a memorandum for the "Earth Summit Eco 1992" held in Rio de Janeiro: "Among us, shouldn't the World Bank encourage further transfer of dirty industries to the Third World? Many countries are very clean, so it would be logical for them to receive dirty industries and industrial waste, since they have a greater capacity to absorb pollutants without incurring large costs. The costs of this contamination are linked to the increase or decrease in mortality. From this approach, a certain amount of harmful pollution should be carried out in countries with lower costs, with lower salaries, so that the compensation to pay for damages will also be lower than in developed countries (due to the permissiveness of their laws defense of the environment) ”.
“These words of crude sincerity were rescued by President Néstor Kirchner himself last year when he went to Gualeguaychú to support the struggle of the people of Entre Ríos against the installation of the pastoralists in Fray Bentos. Today we are saying no to this same danger, to this same imposition of dirty industries. Not because of fundamentalist positions, but because we want a model of sustainable development for ourselves, our children and our children's children ”.
We cannot ignore the relationship between the different forms of pollution and health. The impact on the final health product that the environment has is 20% according to Gonzáles García and Tobar in the book “Salud para Todos”. I am sure that in Tucumán, with its scarce geography and high density, the incidence is higher.
The international context puts us on the alert of the very survival of man on the planet with global warming and climate change.
The time has come to reflect and rectify courses. It is man who has to adapt to the planet, because obviously it cannot adapt to the devastating and predatory effect of the human race, Sangenis concluded.
Fundamentals of the open pit mining Law
This project aims to conserve natural heritage and biological diversity, since it is everyone's responsibility to protect the environment as an integral part of a process of economic development.
The national Constitution after the 1994 reform, in article 41 states ...
“All inhabitants have the right to a healthy, balanced environment, suitable for human development and for productive activities to satisfy present needs without compromising those of future generations; and they have a duty to preserve it ... "
Therefore, the provincial state must regulate the use of the environment and natural resources and the protection of rights related to it.
Analyzing the world context, the impact produced by open pit mining and the use of toxic substances in mining activities throughout the planet has generated the need to establish new norms appropriate to the new realities, noting that in comparative law the legislative trend is towards the prohibition of such activities and the prohibition of the use of toxic substances in mining. 1
Various investigations affirm that during the exploitation phase, the main environmental impacts caused by open-pit mining are:
* Modifies the land surface of the exploitation area: it devastates the soil structure producing severe changes in the morphology of the land.
* Removal of the soil and drying in the surrounding area.
* Decreases agricultural and agricultural performance.
* The impact on flora is of great magnitude, it implies the elimination of vegetation and forests in the area of operations.
* Destruction and modification of the flora in the surrounding area.
* Causes pressure on existing forests in neighboring areas that can be destroyed by the impacts of exploitation.
* The environment is affected because it is radically transformed, it loses its scenic or landscape attraction, added to the noise pollution from the noise produced by the different operations: crushing and grinding, power generation, transport, loading and unloading of materials, etc.
* Air pollution by solid impurities: toxic powders and fuels in suspension, vapors and gaseous cyanide, nitrogen oxides and sulfur dioxide, capable of penetrating into human and animal lungs.
* Pollution of surface waters: by fine solid waste that can raise the sediment layer of rivers and streams in the area.
* Contamination of groundwater or groundwater, with used oil, with reagents, with mineral salts, from the piles or dumps of solid waste products from the treatment processes, as well as the rainwater that falls on them.
* The sources of employment generated by mining are small, short-lived and highly dangerous, the jobs are a "chimera" of doubtful reality, without any sign of continuity and that can be disastrous and have a negative impact on the labor market, International Labor Organization reports that although mining contributes only 1% of the world's workforce, it is responsible for 5% of fatal accidents at work, with around 15,000 workers killed per year and around 40 per day in all the world 2; Despite this information from the international organization, the Convention of the International Labor Organization (ILO) No. 176 "Convention on Safety and Health in Mines" adopted on June 22, 1995 and which became effective as of 1998, has not yet been ratified for the Argentine Republic.
The serious environmental catastrophes produced by the use of open pit mining technology and by cyanide leaching are public and notorious, the following environmental disasters stand out among others:
1) Summitville Gold Mine, Colorado, USA, in which the cyanide spill wiped out all aquatic life along 27 kilometers of the Alamosa River, the mine was closed in December 1992 and the US Geologycal Survey estimated that cleanup costs would exceed US $ 150 million .
2) Brewer Gold Mine, South Carolina, USA: 11,000 fish died along 80 kilometers of the Lynches River from a cyanide spill in 1992,
3) Harmony Mine, South Africa, operated by Rangold: a disused check dam blew up and buried a housing complex with cyanide, February 1994;
4) Omai Gold Mine, Guyana: more than 3,200 million liters loaded with cyanide were released into the Essequibo River when a dam collapsed in 1995. The Pan American Health Organization verified the disappearance of all aquatic life along four kilometers.
5) Gold Querry gold mine, Nevada, USA: One million liters of cyanide waste spilled in 1997;
6) Los Frailes zinc mine, Spain: The rupture of a containment dike originated the acid spill causing serious fish mortality, April 1998;
7) Homestake Mine, Whitewood Creek, Back Hills, South Dakota, USA: 7 tons of cyanide waste spilled causing significant fish kills, May 29, 1998;
8) Cyanide transport to the Kumtor mine, Kyrgysztan: The truck that was transporting the cyanide overturned on a bridge spilling 1762 kilos of cyanide on the surface of the water, killing at least 4 residents and hundreds of people had to be treated in hospitals, May 20, 1998;
9) Tulukuma Gold Mine, Papua New Guinea: A company helicopter loses a ton of cyanide in flight falling into the forests 85 kilometers from the Capital Port Moreby. The recovery and decontamination works did not prevent the impact of the water courses. March 2000 (CNN Italia, July 14, 2000);
10) Minera Santa Rosa, El Corozal, Panama: A cyanide spill causes great fish kills and endangers the lives of many Panamanians. June 6, 1998 (El Siglo newspapers -June 1998- and El Panamá América -20 January 1999 p. C6- Panama);
11) Comsur Mine, Bolivia: Contaminated the Pilcomayo River with arsenic and other heavy metals. Two children died from ingestion of contaminated fish and high levels of heavy metals were revealed in indigenous inhabitants of the banks of the Pilcomayo River in the Province of Formosa (Argentina);
12) Aurul Bahia Mare Gold Mine, Romania, on January 30, 2000, where the cyanide spill reached the Lapus, Somes, Tisza and Danube rivers, spreading the damage to Yugoslavia and Hungary and affecting the drinking water supply of 2.5 million people and the economic activities of more than a million and a half who lived from tourism, agriculture and fishing along the Tisza River from which more than 10 tons of dead fish were collected to prevent them from being eaten by birds and perishing poisoned (FUNAM -Córdoba-, El País y El Mundo 23.02.2000 -Spain-, La Voz del Interior -Córdoba-, February 2000);
13) Chubut Province: Environmental damage and health verified in the Angela Mine, near the Los Manantiales area, near Gan Gan and Gastre, where, according to complaints from the residents, 28 tons of cyanide and 1,500,000 tons of toxic waste were buried with the death of fish and changes of color on the ground, and which are the object of investigation by the Federal Justice of Rawson (Diario "Clarín", editions of: April 5, 2001 -Page 42-, April 11, 2001 -Page 24- and 25 July 2001);
After the environmental catastrophe produced in 1993 at the Summitville gold mine, in the State of Colorado, United States of North America, it was concluded that the open pit gold exploitation technology and the sodium cyanide use technique in mining it is not safe. 3
With the conclusion of the studies by specialists from the Colorado Geological Survey and the US Geological Survey, the Precautionary Principle which establishes "... that when there is a danger of a serious and irreversible damage, the lack of absolute scientific certainty should not be used as a reason to postpone the adoption of effective measures to prevent environmental degradation, which implies an investment in the burden of proof process in terms of lack of demonstration Absolute science no longer implies a permissive orientation of potentially harmful activities for the environment. That is, as the Anglo-Saxons say, in the absence of scientific certainty, it is better to err on the side of security ( to err on the side of safety ).
The precautionary principle has been accepted among others in: principle 11 of the 1982 World Charter for Nature, the 1992 Convention on transboundary watercourses and international lakes of Helsinki 1992, the United Nations Framework Convention on climate change of 1992, the ninth paragraph of the preamble of the Convention on biological diversity of 1992, Principle 15 of the Rio Declaration on Environment and Development and in article 4 of the General Law of the Environment of the National Congress (National Law No. 25675).
The scientific conclusions drawn from the tragic experiences mentioned above show and it is evident that open-pit mining technology and the use of toxic substances and large amounts of explosives in mining not only generate high noise pollution but also result from a Such dangerousness that the exercise of the power to search for mines, take advantage of them and dispose of them when such unsustainable technologies are used becomes an abusive exercise and is in violation of the Precautionary Principle.
The Declaration of the United Nations Conference on the Human Environment (Principle 6, Stockholm Declaration of 1972) states that "the discharge of toxic substances or other matter and the release of heat, in quantities or concentrations, must be stopped. such that the environment cannot neutralize them, so that serious irreparable damage to ecosystems is not caused. The just struggle of the peoples of all countries against pollution must be supported ", as Principle 8 of the Declaration of the Conference of Nations The United Nations on the Human Environment (Rio Declaration of 1992) establishes that "to achieve sustainable development and a better quality of life for all people, States should reduce and eliminate unsustainable production and consumption patterns and promote adequate demographic policies. . ", and that article 1.2. "in fine" of the International Covenant on Civil and Political Rights (of constitutional hierarchy by rule of the provisions of Article 75 -Inc. 22- of the National Constitution, establishes that "... in no case could a people be deprived of their own means of subsistence… "
For all the above, it is competent to dictate the complementary environmental standards of the minimum protection budgets that are helpful for the conservation of its environment, its landscape, its sociological structure and its own particular lifestyle and resources. natural resources that their inhabitants make use of sustainably without disturbing the activities of their neighbors, neighboring communities or the rights of future generations.
Comparative legal doctrine and international environmental legislation hold that conduct that endangers the environment threatens the heritage and the right to landscape and environmental enjoyment of all humanity. 4 Therefore, the effects on said common environmental heritage of humanity necessarily become infringements against humanity, and that said affectation is not limited to present generations, but extends over time to future generations for unpredictable periods, therefore that the infractions of serious danger to the environment, insofar as the danger that is intended to avert is capable of producing effects with erga omnes effects and continuous over time.
As a background to this Project, it is worth mentioning:
a) The Law approved by the Rio Negro Legislature on July 21, 2005, prohibiting in the territory of the Province of Río Negro the use of cyanide and / or mercury in the process of extraction, exploitation, and / or industrialization of metal minerals;
b) The Ordinance sanctioned on December 21, 2002 by the Deliberative Council of Lago Puelo, prohibiting in the jurisdiction of said Municipality the use of leaching techniques with toxic substances and / or any other technique that requires the use of explosives and toxic inputs ;
c) Ordinance 46/2004 of the Municipality of Sierra Colorada (Río Negro), prohibiting any mining undertaking in which the cyanide leaching method is used.
The interrelation of man with the natural environment includes basic ideological cultural concepts. The integration and interdependence of the primary inhabitant with their environment starts from the premise that "The land does not belong to us, we belong to the land."
If "producing wealth" is destroying nature, we express perhaps the greatest contradiction on a planetary scale of the time that we have lived. Saving the generations descended from most of the world's population living in poverty and hunger today, from continuing to suffer the current lot of their parents, can only be achieved by creating more wealth and, until now, there seems to be no way to do it without a serious destruction of the planetary environmental balance ”. “… Producing the minimum goods and services that today more than two-thirds of humanity lack would surely mean more than doubling the size of the world's economy, and everything indicates that it is not possible to duplicate the world economy without serious destruction of planetary environmental balance. If ecologically neutral activities are those whose environmental damage can be repaired or avoided, unfortunately ... ", says Hintze," ... current economic activity is not among them. "
1 Prohibitive precedents of the Republic of Turkey -High Administrative Court of Turkey, Bergama case, May 1997-, State of Montana USA -November 3, 1998- ("Cyanide - Gold's Killing Companion", by Project Underground, October 1999; Dave Blouin "Crandon Proposal - Cyanide Issues", Mining Impact Coalition, February 2000), etc.
2 Jennings, Norman; Sectoral Activities Department, International Labor Organization
3 (Plumlee, GS, Gray, JE, Roeber, MM, Jr., Coolbaugh, M., Flohr, M., and Whitney, G., 1995a, "The importance of geology in understanding and remediating environmental problems at Summitville", in , Posey, HH, Pendleton, JA, and Van Zyl, D., eds: Summitville Forum Proceedings, Colorado Geological Survey, Special Publication 38, p. 13-22 .; Plumlee, GS, Smith, KS, Mosier, EL, Ficklin , WH, Montour, M., Briggs, PH, and Meier, AL, 1995b, "Geochemical processes controlling acid-drainage generation and cyanide degradation at Summitville", in, Posey, H. 23-34; Edelmann, P., Ortiz , RF, Balistrieri, L., Radell, MJ, and Moore, CM, 1995, "Limnological characteristics of Terrace Reservoir, south-central Colorado", 1994 [abs] in, Posey, H. 21; United States Geological transdisciplinary study Survey, including the following participants in the project: Cathy Ager, Laurie Balistrieri, Bob Bisdorf, Dana Bove, Paul Briggs, Doug Cain, Roger Clark, Pat Edelma n, Jim Erdman, Walt Ficklin, David Fitterman, Marta Flohr, Larry Gough, John Gray, Trude King, Fred Lichte, John McHugh, Al Meier, Bill Miller, Maria Montour, Elwin Mosier, Nicole Nelson, Roger Ortiz, Geoff Plumlee, Charlie Severson, Kathy Smith, Tom Steven, Kathleen Stewart, Peter Stout, Greg Swayze, Ron Tidball, Rich Van Loenen, Paul von Guerard, Katie Walton-Day, Elizabeth Ward, Gene Whitney, Melinda Wright, and Tom Yanosky. Cooperating agencies include: U.S. EPA, U.S. Fish and Wildlife Service; State of Colorado, Departments of Natural Resources, Health, and Agriculture; Colorado State University and CSU Extension Service; Colorado School of Mines; Auburn University; Environmental Chemical Corp .; San Luis Valley consulting firms, water conservancy districts, and water users.
4 Principles 21 and 22 in fine of the Stockholm Declaration and, among others: KISS, A. Ch., "La notion de patrimoine commun de l’humanité", RCADI, 1982-II, vol. 175, pp. 109-254; RIPHAGEN, R., "The International Concern of the Environment as Expressed in the Concepts of‘ the Common Heritage of Mankind ’and of‘ Shared Natural Resources ’", IUCN, Trends in Environmental Policy and Law, Gland, 1980, pp. 843-862; BLANCH ALTEMIR, A., "The Common Heritage of Humanity. Towards an international legal regime for its management", Barcelona -Bosch-, 1992