MAC letter condemns biased report on land conflict in Peruvian Andes

Published by MAC on 2016-10-13
Source: Grufides, Oxfam, PSG, CSRwire

Consultancy report does not resolve conflicts, respect for human rights does

Tragadero Grande: ¿Possessory defense or usurpation and abuse?

Mirtha Vásquez

http://www.grufides.org/blog/mirtha-v-squez-defensa-posesoria-o-usurpaci-n-y-abuso

5 October, 2016

A contingent of private security forces arrives at your house, they open the door, destroy everything and then just leave. In your helplessness, you try to defend your belongings with what you have at reach. Then you're accused of being violent. The guy directing the action says: "A law called "possessory defense" says I can do this."

This apparently absurd story is what the Chaupe family constantly experience in the dispute that they endure since 2011 with Minera Yanacocha over a piece of land called "Tragadero Grande", in the area of the Conga megamining project.

For those who claim to have the right to comment on this issue, some notes to clarify the matter:

What is “possessory defense”?

It is an exceptional action of dispute settlement contemplated by Article 920 of the Peruvian Civil Code. It is exercised in the event that an owner is victim of dispossession or an attempt of dispossession. This action must be done in an immediate and proportional manner.

For example, a person is deprived of his watch in the street by a young thief. Obviously, the person attacked can exercise a direct defense of its possession by an immediate reaction and because he or she has enough physical strength to stop the thief. That's what we could equate to a "possessory defense."

The law has established minimum requirements for exercising this right, because it is not about carrying out justice in all cases by taking the matters into your own hands. Doing that would merely replace the judicial system. So, which conditions have to be meet before the right of possessory defense can be exercised?

Frist, those who exercise it must have the quality of holder, in other words makes use of the good. Although it should be noted that the Article 920 was strangely modified in 2014, making it possible that an owner who does not use the good (not possessor) can also exercise the possessory defense within 15 days from finding out that the property in question is being disrupted. Second, in order to justify the immediate defense response, it is necessary that the dispossession attempt is exercised with violence.

Third, the judicial authorities are not able to intervene. While the law does not mention it, in many cases it has been determined that, since this is an exceptional measure, it is only allowed when official judicial intervention is not possible (ie: if the holder were to ask for help, the dispossession would be perpetrated).

Are these requirements met in the Chaupe case and the alleged "possessory defense" constantly brought against them by Minera Yanacocha?

1. Is Minera Yanacocha the possessor of the land? NO! The Chaupe family land comprises 24.8 hectares and it has always been used by them. How? They built their house there, graze their animals, grow crops in various parts of the area. In a surrealistic way, the mining company has built a fence around their property, explicitly recognizing the limits of the land occupied by Maxima. To access the terrain over which they exercise the alleged "possessory defense", the company has to open the fence beforehand. Yanacocha does not use the land of Chaupe family in any way.

2. Is Minera Yanacocha the owner? NO! Because it has not proved conclusively to have acquired the Tragadero Grande property. The company has two deeds that prove two purchases of land of the formerly Sorochuco Community, one of 269 hectares and the other of 226 hectares. However, in these deeds the boundaries are not exactly specified. As if the company did not have civil engineers available, it purchases land which places their limits as "to the North, community vacant land with an area of ... to the East, the Perol ravine, etc." This prevents from knowing exactly where the property acquired by Minera Yanacocha is and if these purchases include the Chaupe family land. Only now, as part of the ongoing civil claim process, on October 17, these limits will be established by an expert.

Then, how is it that the company already declares itself owner of part of this area and as such performs these abusive "possessory defenses"?

3. Is the Chaupe family invading their property? NO! The family continues to occupy the Tragadero Grande property, comprising 24.8 hectares and they cannot leave from there because ironically the mining company has surrounded them with a fence. On the other hand, does a plantation of potatoes constitute an invasion that justifies an aggressive response? If we go back to the theory, the law requires that the alleged invader commits a violent action and growing potatoes obviously does not qualify as such.

4. Finally, is the company not able to resort to the judiciary system and therefore forced to take matters into their own hands? Again the answer is: NO! The company constantly patrols the Chaupe family, but instead of giving notice to the authorities, they break in with a private army and destroy what this humble family is growing to feed themselves.

Throwing a rock and even showing a machete itself qualifies as self-defense against the aggressive and disproportionate force exerted by Minera Yanacocha. Now that would qualify as possessory defense, since all requirements are met: the Chaupe family are the possessors and users of the land; they react in a proportional manner to the force used by an invader; and there is an impossibility of calling an authority.

Finally, the legal discussion is already being raised in the corresponding institutions: we have submitted ten complaints for the misuse of this legal figure of "possessory defense" perpetrated by the mining company in order to harass the Chaupe family. Unfortunately, while the judiciary system takes its time to resolve the issue, Minera Yanacocha perversely takes advantage of the delay.

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New Report, Same Problems at Peruvian Mine

After years of conflict and challenges, it’s time for mining companies like Newmont to take real, positive action.

Keith Slack

http://politicsofpoverty.oxfamamerica.org/2016/09/new-report-same-problems-at-peruvian-mine/

September 28, 2016

Today an independent fact-finding mission is releasing a report on its investigation into the conflict between Peruvian campesina Maxima Chaupe and US-based mining giant Newmont.  Chaupe and her family have been in an ongoing struggle over the ownership of a parcel of land that the company wants to develop as part of the Conga mega-project in northern Peru. And she has become an international cause celebre for mining-resistance activists globally. (See my earlier post for more on the Chaupe case and the long and troubled history of the project)

This most recent investigation was intended to establish the facts of the case and contribute to finding a way forward in the dispute. Sadly, despite the good intentions, the report will likely only add to the growing stack of such reports that have had little effect on a project that has been off the rails since it opened more than 20 years ago.

At issue is who actually has legal right to occupy the land.  Chaupe and her family argue it’s theirs, having purchased the land from a family member in 1994. For its part, Minera Yanacocha (the Newmont subsidiary that runs the project) says they obtained legal title when they purchased the interests of Minas Conga, the company that bought the land from the campesino community of which Chaupe and her family are part. The Peruvian legal system is notoriously murky in these kinds of matters, especially in rural areas like Cajamarca where the project is located.

Throughout the dispute, Minera Yanacocha has attempted to physically evict the Chaupes from the land. This, the family argues, has resulted in physical harm that is tantamount to human rights abuse. Indeed, in 2014 the Interamerican Commission on Human Rights issued a decree that “precautionary measures” be taken to protect the family.  Just two weeks ago, further conflict occurred between Chaupe and security forces. This time Chaupe was taken to a local hospital where she was treated for injuries she said were inflicted by the security forces.  Newmont and Minera Yanacocha released statements saying there was no physical contact between Chaupe and security.

The fact-finding missions’ report says the documentation they were able to review is “inconclusive” as to who retains the rights of occupancy on the land. This is perhaps not surprising given that the legal documentation relating to the case is more than 20 years old. The report also finds no evidence of human rights abuse directed by the company at Chaupe or her family.  Importantly, however, it states that the company failed to do appropriate human rights due diligence around the case to ensure no human rights abuses occurred.

The Chaupe case is unfortunately part of a broader regional pattern identified by the Interamerican Commission on Human Rights of aggression and intimidation directed at individuals and activists working to protect their land from extractive industries and other potentially damaging forms of development. Berta Cáceres, the Honduran indigenous rights activist who was assassinated earlier this year, is another example. At Oxfam, we have been supporting activists to demand that their right to give consent and human rights be respected by corporations in compliance with international standards. We are also pressing governments to protect the space for civil society organizations to operate freely.

Ultimately the most important conclusion of the fact-finding report – and maybe the most obvious – is that the company’s excessively legalistic approach and its attempts to physically dislodge the Chaupes are at odds with its stated intention of promoting constructive dialogue to resolve problems at the mine. This conclusion is nearly identical to those found in several other independent reviews done on the project and its social problems over the years.

At this late stage in the life of Minera Yanacocha it seems unlikely that company-community relations will improve dramatically in the near future. For whatever reason, the company is either unable or unwilling (perhaps both) to fix the way it addresses these issues.  The opposition’s positions have also hardened, so even if Minera Yanacocha made a genuine effort to change, it might have a hard time convincing local communities and NGOs of its good intentions.

Still, the company has to find a just resolution to this conflict. If and when the Conga project does come on line, it would have a mine life of 19 years.  Nineteen more years of conflicts like this is unacceptable.  Real dialogue, and not aggressive legal and physical action, are what’s urgently needed now. Without it, the Chaupe dispute and others yet to emerge will only continue.

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The Chaupes, again

http://www.perusupportgroup.org.uk/news-article-1205.html#1205

10 October 2016

No sooner than Newmont Mining put out a statement commenting on the so-called ‘independent’ study on the property in dispute between the Chaupe family and Yanacocha, new reports emerged about harassment of the Chaupes.

In its pronouncement on 28 September, Newmont, the main shareholder in Yanacocha, says “we intend to use their report to evaluate and improve our practices and, if possible, as a foundation for achieving a responsible solution that is consistent with our values, standards and international commitments”.

The document sets out a number of steps to resolve the dispute, promising that “over the next few weeks we will work in good faith to socialize (...) our action plan with stakeholders so we can chart a constructive path forward”. It quotes Elaine Dorwood-King, Newmont’s vice-president for sustainability and external relations, as saying “we would like to thank members of the Chaupe family, their supporters and all of the other individuals who participated in the interviews and cooperated with the independent mission”.

But before the ink was dry on Newmont’s statement than new aggressions on the Chaupe’s property were being reported. On 4 October, Grufides, the NGO which has campaigned against the development of Yanacocha’s giant Conga mining project in Cajamarca, reported that those working for Yanacocha had again invaded the property, known as Tragadero Grande, destroying a building and crops recently sown by the Chaupe family. It reported that they threatened Jaime Chaupe, the husband of Máxima Acuña, who was alone in the property at the time. Grufides called on the international community to put an end to the abuses suffered by the Chaupe family and others like it.

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Newmont Responds to Independent Report on Land Dispute in Peru

CSRwire - http://www.csrwire.com/press_releases/39324-Newmont-Responds-to-Independent-Report-on-Land-Dispute-in-Peru

Sep 28, 2016

Newmont Mining Corporation welcomed the public release of an independent report examining the ongoing land dispute in Peru between members of the Chaupe family and Yanacocha.

“The complex land dispute between members of the Chaupe family and Yanacocha remains a concern for us, and we believe it is important to be truthful and transparent about the facts surrounding this issue,” said Dr. Elaine Dorward-King, Executive Vice President for Sustainability and External Relations. “Newmont appreciates the Yanacocha Independent Fact Finding Mission’s work over the last 18 months, and we intend to use their report to evaluate and improve our practices and, if possible, as a foundation for achieving a responsible solution that is consistent with our values, standards and international commitments.”

In May of 2015, following allegations of harassment against the Chaupes, Newmont commissioned RESOLVE – an independent nonprofit organization dedicated to multi-stakeholder consensus building – to establish an independent body empowered to objectively examine the situation and publicly disclose their findings. Today RESOLVE released the report developed by the Yanacocha Independent Fact Finding Mission (YIFFM), which is publicly available at this link.

Some of the key conclusions from the Mission were:

    The overall process of land acquisition by Conga/ Yanacocha was reasonable.

    Information about the 1996 and 97 sale of possessory rights for Tragadero Grande to Conga/ Yanacocha is complex and remains inconclusive.

    No conclusive evidence that Minera Yanacocha was involved in human rights abuses.

    Minera Yanacocha’s decisions on legal measures to protect its title, and associated security actions, did not carefully consider potential human rights impacts, or how they could be perceived as human rights problems.

    While Yanacocha’s actions were generally aligned with the Voluntary Principles on Security and Human Rights, there are specific and material gaps in the Chaupe case.

    Despite company standards calling for dialogue in dispute resolution, this requirement was not fulfilled in the Chaupe case.

“While some of the findings in the report do not correspond with our view of the dispute, we recognize that in order to move beyond the current stalemate we must be open to understanding all perspectives, not just our own. It is our sincere hope that this 18-month long process and the final report will open pathways to begin a dialogue with the Chaupe family – a dialogue we have been seeking for some time – to resolve the dispute with Yanacocha,” said Dr. Dorward-King.

Newmont and Yanacocha have identified the following steps for addressing both the land dispute with Chaupe family and general areas for improvement. Yanacocha has begun developing detailed action plans based on the phases described below:

Step 1: Intensify efforts to hold a good-faith dialogue with the Chaupe family to resolve the land dispute

Step 2: Establish detailed action plans and accountability for implementation of improvement areas – regularly report on progress and implementation

Step 3: Conduct monitoring/ reporting of performance improvements

Over the next few weeks we will work in good faith to socialize the findings of the report and our action plan with stakeholders so we can chart a constructive path forward.

“We also would like to thank the members of the Chaupe family, their supporters and all of the other individuals and entities who participated in the interviews and cooperated with the independent mission,” Dr. Dorward-King concluded.