Report

UNDERMINING RIGHTS

Indigenous Lands and Mining in the Amazon

Partners:
Download PDF

Data and Findings

This section presents the research findings in three parts. The first part provides the Amazon basin–wide and national-level findings of the geospatial analysis. The second part presents the findings of the review of national laws, regulations, and court decisions. The third part provides summaries of the six case studies from the research countries. Each summary includes the findings of the community-level geospatial analysis.

GIS Analysis

Based on the geospatial analysis, in the Amazon biogeographic region, legal, large-scale mining concessions cover approximately 1.3 million sq. km (excluding French Guiana) or nearly 19 percent of the region (Figure 4.1).29 Nearly 45 percent of the mining area (567,000 sq. km) is considered “active” mining area (i.e., in exploration or extraction), while much of the remaining portion is “inactive” (i.e., the concessions are pending activity; see Data Collection and Analysis Methods). Brazil holds the largest proportion of active mining concessions—more than 60 percent—in the Amazon (Figure 4.1). When controlling for the size of each country’s portion of the Amazon, however, mining concessions in Venezuela cover the largest proportion of the country’s Amazon at 28 percent, followed by Guyana at 21 percent, Suriname at 18 percent, and Brazil at 8 percent (Figure 4.2).

Of the active mining concessions, approximately 57,000 sq. km, or more than 10 percent, overlap directly with indigenous lands (Figure 4.3). Active mining concessions overlap with indigenous lands in all Amazonian countries. Many indigenous lands are affected by multiple overlapping mining concessions held by different mining companies.

For the illegal mining analysis, all six countries in the analysis—Bolivia, Brazil, Colombia, Ecuador, Peru, and Venezuela—are affected by illegal mining (Figures 4.3 and 4.4). (Note: The illegal mining analysis included Venezuela instead of Guyana.) Most of the illegal mining area is in Peru and Bolivia, while Brazil and Venezuela have the largest estimated number of illegal mining extraction sites (Table 4.1). At least 30 rivers are affected by illegal mining or act as routes for the entry of machinery and inputs and the outlet of minerals. Known areas or sites of illegal mining operations overlap with at least 370 indigenous lands, including 260 indigenous lands in Peru (Table 4.2). Several distinct pieces of land can make up one indigenous community’s territory (see Data Collection and Analysis Methods). Rivers affected by illegal mining are within or on the border of 88 indigenous lands, including 32 indigenous lands in Peru and 29 in Colombia.

Figure 4.1 | Proportion of Active Mining Concessions per Country in the Amazon Region Based on Total Area of Mining Concessions (French Guiana Excluded Due to Lack of Data)

 

Sources: Based on data from RAISG 2018d and Guyana Geology and Mines Commission 2016, modified by WRI authors.

Figure 4.2 | Area of Active Mining Concessions per Country as a Proportion of the Country’s Amazon Biogeographic Area. (French Guiana Excluded Due to Lack of Data)

 

Sources: Based on data from RAISG 2018d and Guyana Geology and Mines Commission 2016, modified by WRI authors.

Figure 4.3 | Indigenous Lands, Large-Scale/Illegal Mining Overlapping with Indigenous Lands, and Deforestation (2000–15) in the Amazon Region

 

Sources: Data from RAISG 2016, 2018c, 2018d, 2018e, 2019c, Guyana Lands and Surveys Commission 2018, and Guyana Geology and Mines Commission 2016, modified by WRI and RAISG authors.

Industrial mining concessions and/or illegal mining overlap with approximately 450,000 sq. km of the 2.1 million sq. km of indigenous lands in the Amazon—more than 20 percent—affecting 1,131 of the 3,653 (31 percent) indigenous lands in the Amazon (excluding French Guiana and Suriname) (Figure 4.3). Approximately 143,000 sq. km of indigenous lands overlaps with active mining concessions and known illegal mining areas, while the majority—302,000 sq. km—of indigenous lands overlap with concessions that are currently inactive (Figure 4.5). The majority of the inactive mining concessions that overlap with indigenous lands in the Amazon region are in Brazil because of the absence of an enabling law (although data from the government of Brazil include 27 active mining concessions that overlap with indigenous lands; see Data Collection and Analysis Methods). Of the 143,000 sq. km of active concessions and illegal mining areas that overlap with indigenous lands in the Amazon, the vast majority occur in Venezuela, followed by Brazil and Colombia (Figure 4.6).

Figure 4.4 | Indigenous Lands, Large-Scale/Illegal Mining Overlapping with Indigenous Lands, and Deforestation (2000–15) in Peru

Sources: Data from RAISG 2016, 2018c, 2018d, 2018e, 2019c, modified by WRI and RAISG authors.

Table 4.1 | Illegal Mining Extraction Areas, Extraction Sites, and Affected Rivers per Country

Country

Extraction Areas

Extraction sites

Affected rivers

Area (ha)

Number

Bolivia

1,129,103

3

ND

7

Brazil

620,411

132

317

9

Colombia

ND

ND

ND

7

Ecuador

ND

ND

57

ND

Peru

2,535,742

64

23

7

Venezuela

34,696

1,637

103

ND

Total

4,319,952

1,836

500

30

Note: ND = No Data. 
Sources: Data from RAISG 2018a, 2018c, modified by WRI authors.

Table 4.2 | Indigenous Lands That Overlap with Illegal Mining Areas, Sites, or Affected Rivers

Country

Number of affected indigenous territories

Bolivia

16

Brazil

37

Colombia

29

Ecuador

9

Peru

260

Venezuela

19

TOTAL

370

Note: Some communities hold multiple plots of land; as such, these numbers represent the total number of affected lands. 
Sources: Data from RAISG 2018a, 2018c, modified by WRI authors.

Figure 4.5 | Area of Indigenous Lands in the Amazon That Overlaps with Mining Activity, by Mining Type

 

Sources: Based on data from RAISG 2018c, 2018d, 2019c, Guyana Lands and Surveys Commission 2018, and Guyana Geology and Mines Commission 2016, modified by WRI authors.

Figure 4.6 | Area of Active Mining Concessions and Illegal Mining Areas That Overlap with Indigenous Lands by Country

 

Note: Illegal mining data are not available for Guyana, and ASM data are not available for all countries.
Sources: Based on data from RAISG 2018c, 2018d, 2019c, Guyana Lands and Surveys Commission 2018, and Guyana Geology and Mines Commission 2016, modified by WRI and RAISG authors.

Industrial mining concessions and/or illegal mining overlap with approximately 450,000 sq. km of the 2.1 million sq. km of indigenous lands in the Amazon—more than 20 percent—affecting 1,131 of the 3,653 (31 percent) indigenous lands in the Amazon (excluding French Guiana and Suriname)

To examine the relationship between mining on indigenous lands and forest cover, forest cover change within indigenous lands where mining (active concessions and illegal mining) is taking place is compared with forest cover change within indigenous lands with no known mining activities.30 Overall, indigenous lands across the Amazon that experienced mining activities had a higher rate of forest loss in the period 2000 to 2015 than indigenous lands that did not experience mining. In Bolivia, Ecuador, and Peru, the rate was at least three times higher on indigenous lands that experienced mining activities than on those without mining (Figure 4.7). In Colombia and Venezuela, the rate of forest cover loss was one to two times higher on indigenous lands with mining than on indigenous lands absent mining.

In Brazil, there was not a large discrepancy between the rate of deforestation on indigenous lands with active mining activities and indigenous lands without mining. The deforestation rate from 2000 to 2015 on indigenous lands with mining was only 0.3 percent higher than the rate on indigenous lands without mining. Overall, the deforestation rate on indigenous lands with mining in Brazil was lower than in the other countries. With mining not legally possible on indigenous lands, this may be due to the government labeling some mining concessions as active when, in practice, they are inactive.

In Guyana, the deforestation rate was 0.3 percent higher from the time period 2000 to 2015 on indigenous lands that did not experience any mining than the rate on lands with mining. This may be due to legal ASM and/or illegal mining on indigenous lands which is widespread in the country. The Guyana analysis only included active mining concessions as RAISG does not have data on ASM and illegal mining for the country (see Data Collection and Analysis Methods).

Figure 4.7 | Indigenous Lands, Large-Scale/Illegal Mining Overlapping with Indigenous Lands, and Deforestation (2000–15)

 

Sources: Data from RAISG 2016, 2018c, 2018d, 2018e, 2019c, modified by WRI and RAISG authors.

Multiple international instruments address or have implications for mining on indigenous lands. When ratified, these instruments are recognized as part of the national legal system. Among them are the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGTs); the International Finance Corporation’s (IFC) Performance Standards; the Sustainable Development Goals (SDGs), especially Goal 16;31 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement);32 the International Convention on the Elimination of All Forms of Racial Discrimination; and the Convention on the Elimination of All Forms of Discrimination against Women (UN Women 2014).

Two international instruments are of particular importance as they have helped shape domestic legislation that governs mining on indigenous lands in the six research countries—the International Labor Organization’s Indigenous and Tribal Peoples Convention, 1989 (ILO Convention 169) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Adopted in 1989, ILO Convention 169 established international standards on the rights of indigenous peoples (ILO 1989). Of the research countries, only Guyana has not ratified ILO Convention 169, whereas the others have adopted the standards in their own legal system.33 The 2007 UNDRIP provides a universal framework of minimum standards for the survival, dignity, and well-being of indigenous peoples (UN 2007). All six research countries have adopted UNDRIP.

Under international law, the rights of indig-enous peoples receive heightened protection. Governments have a responsibility to recognize the unique relation that indigenous peoples have to their traditional or ancestral lands. In some countries, especially countries in Latin America, national laws have been enacted specifically on the rights of indigenous peoples which grant them special rights not provided to nonindigenous people.34

Overall, indigenous lands across the Amazon that experienced mining activities had a higher rate of forest loss in the period 2000 to 2015 than indigenous lands that did not experience mining. In Bolivia, Ecuador, and Peru, the rate was at least three times higher on indigenous lands that experienced mining activities than those without mining. In Colombia and Venezuela, the rate of forest cover loss was one to two times higher on indigenous lands with mining than on indigenous lands absent mining.

Land rights. Under ILO Convention 169, self-identification determines whether a group of people is considered to be indigenous. The convention establishes indigenous peoples’ rights of ownership and possession of the lands they traditionally occupy. Article 13(2) explains that the term “land” includes the concept of “territory,” which covers the total area that indigenous peoples occupy or use. Moreover, it provides that, “[t]he rights of the people concerned to the natural resources pertaining to their lands shall be especially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.”

Under UNDRIP, Article 26 states that indigenous peoples have the right to own, use, develop, and control the lands, territories, and natural resources that they have traditionally owned, occupied, used, or otherwise acquired. UNDRIP also calls on governments to provide legal recognition and protection to these lands, territories, and resources, and to respect the customs, traditions, and land tenure systems of indigenous peoples.

The national laws in all six research countries recognize indigenous land rights and customary tenure systems. Domestic court decisions have also stressed the importance of the right to territory. For example, in 2016 (Decision Nº T-005/16, 2016), the Constitutional Court of Colombia stated, “The protection of collective property and ancestral territory derives from the spiritual and ancestral relationship that exists with the land . . . so that the concept goes beyond a property title.”35 Moreover, it noted that the Colombian National Constituent Assembly had stated that without the right to territory, the guarantees to cultural identity and autonomy are simply a formality.36 Similarly, the Peruvian Constitutional Tribunal recognized that unlike the concept of land, territory has a political vocation of self-government and autonomy that conforms to the reality of indigenous peoples (Dossier Nº 01126-2011-HC/TC, 2012).37

By law, the formalization of customary land rights is not required for the rights to be legally recognized, although, in practice, a land title or certificate can help indigenous communities better protect their rights against third parties. National laws in the research countries establish procedures for formalizing indigenous land rights. Formalization is central to the integration of customary land rights into official systems and the establishment of legally recognized rights. Formalization often involves the registration of land rights into a government registry or cadastre and the issuance of an official document by the government to the indigenous community (e.g., land title or certificate).38 Indigenous land rights are also formalized when the government designates land for occupation and use by indigenous peoples, such as an indigenous reserve. In this case, the rights are documented not in a title issued to the indigenous peoples, but in a public legal instrument, such as a decree. Indigenous reserves have been established in several research countries, including Brazil and Colombia.39

In the research countries, these procedures are costly and time-consuming, can bring exposure to unwanted investors, and can result in fees and taxes. Moreover, not all customary land and traditional rights can be formalized (see Colombia and Guyana Case Studies; Notess et al. 2018). For example, there are significant land use restrictions in many indigenous reserves. Still, many indigenous peoples seek to formalize their customary land rights in the hopes of tenure security (Notess et al. 2018). Official land documents can help them defend their land from threats. They can convince others of their legal rights, ensuring that their rights will be recognized and respected. Land documents can also be used as evidence of legal possession in a court of law, where they commonly carry more weight than oral testimony on customary rights. Official land documents can also provide indigenous peoples critical leverage in negotiations with outside investors, improving the chance that they receive a fair deal in sharing the benefits and reducing the likelihood of conflicts that can arise from bad deals (Knight 2012).

Formalization also brings specific advantages regarding mining. In Colombia, for example, indigenous reserves40 are a legal and socio-political institution of a special nature, made up of one or more indigenous peoples. For them to be legally recognized as an autonomous entity protected by indigenous jurisdiction with its own regulatory system and able to govern and manage their land and internal life, they need a collective property title, which provides private property guarantees (Article 21, Regulation on Titling of Indigenous Peoples’ Lands, 1995). In Peru, Article 23 (c) of the Mining Procedures Regulation provides that mining companies must “obtain permission for the use of land by prior agreement with the owner of the land surface.” The companies are not legally obliged to consider indigenous peoples who hold land only under custom as “owners.” The assumption is that without a title, mining companies cannot be certain who owns the land. Moreover, if the title is not registered in public records, it is not enforceable against third parties. And, if the indigenous land has not been mapped precisely, using GPS, it will not appear on official government maps (Gustavo A. Zambrano Chávez, personal communication, 2020).

Peruvian national courts have also recognized the right of indigenous peoples with a land title to regulate entry into their land. In 2012, the constitutional tribunal recognized that the Tres Islas indigenous people have the right to control the entry of third parties into their lands. While the possession of a title was not the single determining factor in the ruling, the court recognized it as one of the conclusive elements supporting its decision (see Peru Case Study).

The rights (Box 4.1) recognized through formalization in the research country vary by country, tenure regime, and/or type of title. Indigenous peoples in the six research countries enjoy some level of access, withdrawal/use, management, exclusion, and alienation rights to land and natural resources found there (Table 4.3).

Rarely, however, do indigenous peoples have full, unfettered land rights. For example, the right to withdrawal or use is often restricted to renewable natural resources and only for domestic or subsistence purposes (although it may apply to acquire nonrenewable rights and commercial use rights under procedures separate from land formalization). In Ecuador, the constitution recognizes the collective rights of indigenous peoples to “participate in the use, usufruct, administration, and conservation of renewable natural resources found in their lands” (emphasis added). Bolivia has a similar tenure regime; Bolivia grants indigenous peoples the right to territorial management and the exclusive use and exploitation of renewable natural resources existing in their lands regardless of the rights legitimately acquired by third parties (Article 30.II 17, Constitution of Bolivia, 2007). Also, as stated by Brazil’s National Mining Agency (Agencia Nacional de Minería, ANM), while indigenous peoples can enjoy “the riches of the soil,” it does not give them the right to carry out mineral exploration on their lands without the consent of the corresponding authority, nor to hinder its use by third parties duly authorized by the National Congress (Legal Opinion Nº 469/2015, 2015).

box 4.1 | The Bundle of Land Rights

  • Ostrom (1992)a identified five property rights that are most relevant for the use of common-pool resources:
  • Access: The right to enter a defined physical area and enjoy non-subtractive benefits (obtained without being extracted or removed from the environment).
  • Withdrawal or Use: The right to obtain resource units or products of a resource system.
  • Management: The right to regulate internal use patterns and transform the resource by making improvements.
  • Exclusion: The right to determine who has access rights and withdrawal rights and how those rights are transferred.
  • Alienation: The right to sell or lease management and exclusion rights.

The Rights and Resources Initiativeb recognizes two additional rights:

  • Duration: The right to hold tenure rights for an unlimited span of time (measures the permanence of allocated rights).
  • Due Process and Compensation: The right to due process and compensation for government expropriation.

Notes:

a Ostrom 1992

b RRI 2012, 2014, 2015

In all six research countries, indigenous peoples enjoy some exclusion rights that allow them to expel intruders, such as illegal miners or loggers, from their territories (see the Tres Islas Case Study in Peru). Indigenous peoples, however, do not have the right to exclude third parties with explicit government authorization to access their lands, such as mining companies with legal rights to exploit minerals on their lands. Such access, however, may require community consultation, community consent, or the establishment of an easement (see below).

Indigenous peoples in the six research countries also have limited alienation rights. By law, indigenous lands are inalienable in Bolivia, Brazil, and Colombia (in the case of indigenous reserves). In these countries, the government or other entities cannot take indigenous lands, and indigenous peoples may not sell or otherwise transfer their titled land to another entity. Indigenous lands in Peru and Ecuador was at one time inalienable but is no longer so due to constitutional reforms. In Guyana, titled indigenous lands are not exempt from expropriation (Article 142, Constitution of Guyana, 1980).

box 4.2 | Leasing and Selling Indigenous Land in Peru

In Peru, the law empowers peasant and native communities to lease and sell their lands, and, by law, indigenous people can be identified and recognized as peasant or native communities. An agreement of at least two-thirds of all the community members is required to lease or sell community land (Article 7, Law on the Right to Prior Consultation of Indigenous Peoples, 2011, Article 11, Law of the Development of Economic Activities in the Lands of the National Territory and Peasant and Native Communities, 1995—repealed in 2008 by Legislative Decree N° 1064, but declared effective again in 2009 by Law N° 29376). In practice, it is not uncommon for indigenous communities to lease their land for the development of economic activities. Less common is the sale of indigenous land.

Sources: WRI authors.

In Peru, indigenous peoples may sell their land, although in Bolivia, Brazil, Colombia, Ecuador, and Guyana they are prohibited from doing so. Indigenous peoples in Colombia, Guyana, and Peru may, however, lease some of their land to third parties, including miners (Box 4.2). In Colombia, individual members of indigenous reserves are not allowed “to lease their lands by themselves” (Article 21, Regulation on Titling of Indigenous Peoples’ Lands, 1995), but they may do so jointly through their traditional authorities (Jorge D. Sierra Sanabria, personal communication, 2020). The laws in Bolivia, Brazil, and Ecuador do not explicitly allow indigenous peoples to lease their collective lands.

Table 4.3 | Formalized Land Rights in the Research Countries

Indicators

What is the Bundle of Rights of Indigenous People?

BOLIVIA

BRAZIL

COLOMBIA

ECUADOR

GUYANA

PERU

Do indigenous people have the right to access?

Yes

Yes

Yes

Yes

Yes

Yes

Do indigenous people have the right to withdrawal or use?

Yes

Yes

Yes

Yes

Yes

Yes

Do indigenous people have the right to management?

Yes

Yes

Yes

Yes

Yes

Yes

Do indigenous people have the right to exclusion?

Yes

Yes

Yes

Yes

Yes

Yes

Do indigenous people have the right to alienation?

Can they lease their land?

No

No

Yes

No

Yes

Yes

Can they sell their land?

No

No

No

No

No

No

Note: A score of “yes” means that indigenous people have at least some level of the right.
Sources: RRI 2012; Chloe Ginsburg, personal communication, 2020.

In Peru, Article 23 (c) of Mining Procedures Regulation and Article 1 of Regulation on Easements for Mining Activities state that for mining companies to perform exploration and exploitation activities, they must obtain permission for the use of land by prior agreement with the landowner or the completion of the administrative easement procedure. The law allows indigenous peoples—organized as native or peasant communities—to lease all or part of their land if two-thirds of the members of the community are in agreement (Article 7, Law of the Development of Economic Activities on the Lands of the National Territory and Peasant and Native Communities, 1995).

In recent years, the Peruvian government has ushered in reforms designed to promote investments in mining projects. In 2015, for example, the government issued Regulations for Mining Procedures That Promote Investment Projects, which reformed the consultation process. The decree allowed miners to submit the minutes of meetings of the community board of directors through which the authorization of the use of community land can be granted (Article 3.1.1.C.III). It effectively shifted the authority to reach agreement with miners from the community (two-thirds of the members) to its leaders, weakening the protection granted to the overall community. The rule was challenged by indigenous and peasant organizations in courts and, in 2019, Peru’s Supreme Court of Justice declared the Regulations for Mining Procedures That Promote Investment Projects illegal (CooperAcción 2015; Red Muqui 2019; Wayka 2019).

Mineral rights: In Brazil, Colombia, Ecuador, Guyana, and Peru, all mineral resources are the property of the state, including the minerals on and under indigenous lands (Table 4.4). In Bolivia, minerals are the property of the Bolivian people, but the government is responsible for their administration—mineral resources are “the property and direct, indivisible and imprescriptible domain of the Bolivian people” (Article 2.I, Constitution of Bolivia, 2007).41 In all six research countries, the government has authority over minerals and mining operations in the country, including the authority to grant rights to third parties for the exploration, exploitation, and development of mineral resources.

In all research countries, indigenous peoples can exploit minerals on their land for subsistence, domestic, or customary purposes. In Brazil, Colombia, and Guyana, indigenous peoples do not need government authorization to do so. In a 2013 ruling, the Supreme Federal Court of Brazil established that indigenous peoples can only mine their land without seeking government permission as a way of cultural practice for subsistence purposes, but not for commercial purposes (Petition Nº 3388 ED/RR, 2013).42 In the other three research countries—Bolivia, Ecuador, and Peru—however, government authorization is required for indigenous peoples to mine their land for domestic purposes.

In Colombia, the law defines subsistence mining as “the extraction and collection of river sands and gravels destined for the construction of clays, precious metals, and precious and semiprecious stones by manual means and tools, without the use of any type of mechanized equipment or machinery for its start-up.” (Article 2.2.5.1.5.3, Decree of the Administrative Sector of Mines, 2015). A mining contract is not required for such uses, but the indigenous people must register this activity with the local government. Indigenous peoples in Colombia, however, need a mining concession to mine for commercial purposes. In Guyana, indigenous peoples enjoy a “traditional mining privilege,” which allows them to conduct noncommercial (subsistence) mining (of any mineral) without a permit from the government (Article 2, Amerindian Act, 2006). Artisanal mining on indigenous lands only requires the consent of the village council. All mining not covered by the traditional mining privilege (e.g., commercial mining), however, requires a permit issued by the government (Section 52, Amerindian Act, 2006).

By law, commercial mining can take place on indigenous lands in Bolivia, Colombia, Ecuador, Guyana, and Peru, but requires government authorization. In Brazil, the 1988 Federal Constitution allows for mining on indigenous lands but calls for enabling legislation, which has not been passed by the legislature, to first be enacted (Boxes 4.3 and 4.4). National laws in these five countries establish procedures for the acquisition of mineral rights for commercial exploration and exploitation granted by the government mining authority often in coordination with the environmental agency. For example, in Peru, the Geological, Mining, and Metallurgical Institute (Instituto Geológico, Minero, y Metalúrgico, INGEMMET), attached to the Ministry of Energy and Mines, is responsible for granting mining concessions to explore and exploit minerals over a determined area. A mining concession alone, however, does not authorize the miner to carry out mining activities as additional requirements must be met. Among these are an environmental certification issued by the environmental authority43 and permission of the landowner for the use of land or authorization from the government (i.e., easement) (Mining Procedures Regulation, 1992).

Similarly, in Colombia, mining concession contracts grant the holder the right to explore and exploit mineral resources, but the start of exploitation operations also requires an environmental license issued by the environmental authority (Mining Code, 2001). In Ecuador, mining concessions grant the holder only the right to explore minerals. A separate contract and corresponding environmental licenses are required for mining exploitation.

In Colombia and Guyana, national law explicitly provides for indigenous peoples to conduct mining activities. In Bolivia, Ecuador, and Peru the law is silent on this matter but does not explicitly prohibit or restrict indigenous peoples from applying for mineral rights. In Bolivia, Ecuador, Guyana, and Peru, indigenous peoples must meet the same requirements as other parties applying for commercial mineral rights to mine their land.

Table 4.4 | Rights of Indigenous People to Mineral Resources in the Research Countries

Indicators

Rights of Indigenous People to Mineral Resources

BOLIVIA

BRAZIL

COLOMBIA

ECUADOR

GUYANA

PERU

Are mineral resources the property of the state?

No

Yes

Yes

Yes

Yes

Yes

Do indigenous people need government authorization to mine their land for subsistence purposes?

Yes

No

No

Yes

No

Yes

Do indigenous people need government authorization to mine their land for commercial purposes?

Yes

N/A

Yes

Yes

Yes

Yes

Do indigenous people have the right of first refusal to exploit minerals on their land?

No

No*

Yes

No

No

No

Do indigenous people have simplified conditions to acquire mineral rights for commercial exploitation on their land?

No

No**

Yes

No

No

No

Notes: * However, Bill 191/2020 (and also Bill 1610/1996) proposes rules for the right of first refusal. ** However, Bill 191/2020 (also, Bill 1610/1996) proposes conditions to mining exploitation by indigenous people. They are not exactly simplified conditions given that simplifications are only applied for noncommercial proposes. Conditions for commercial mining exploitation are the same for indigenous and nonindigenous people.
Sources: RRI 2012; Chloe Ginsburg, personal communication, 2020.

In Colombia, however, indigenous peoples have simplified procedures to acquire the rights to commercially mine their land.

box 4.3 | Mining Concessions on Indigenous Land in Brazil

While commercial mining on indigenous land is not allowed by Brazil’s 1988 Federal Constitution before an enabling federal law is enacted, the National Mining Agency (Agência Nacional de Mineração, ANM), the Brazilian federal agency, which oversaw mining regulation and inspection under the Ministry of Mines and Energy, has registered mining applications and granted mining permits, even on demarcated indigenous land. (In December 2018, the ANM replaced the National Department of Mineral Production [Departamento Nacional de Produção Mineral, DNPM]). In the past 10 years, the ANM has registered 656 mining proposals that include segments of indigenous territories (André Lima, personal communication, 2020).a

Recent legal opinions by the general attorneys of the federal government and the ANM state that all mining concessions granted by the DNPM after October 5, 1988 (the date of the constitution), on and within 10 km of indigenous land—whether formalized or held only under custom—are null and all new mining applications should be rejected (Legal Opinion Nº 469/2015, 2015; Legal Opinion Nº 01/2017, 2017). Government data, however, show 270 active mining concessions that overlap with indigenous land, including 237 concessions in exploration and 33 in exploitation. Of these 270 mining concessions, 198 are dated 1988 or later. The opinions are silent on the mining concessions that were granted on indigenous land prior to the new constitution. Seventy-two of the 270 mining concessions have a date before 1988; 75 concessions when including the three concessions dated 1988. The DNPM data only provide a year, not a specific month or day, associated with the concessions.*

In the past, mining activities that encroached on indigenous land were suspended, but now many mining applications and permits are neither rejected nor authorized by the ANM (André Lima, personal communication, 2020). The ANM sometimes upholds permits granted before the demarcation of indigenous territories or before the 1988 Federal Constitution. Some of these permits are being challenged in court. In a recent challenge from the Federal Prosecutor’s Office in Pará, the ANM said it does not consider the absence of relevant legal regulations to exclude the possibility of leaving such mining applications pending. In August 2019, however, the Federal Supreme Court in Amazonas ruled that the rights of indigenous people should prevail whether the land they have permanently occupied has been officially demarcated or not, and ordered that the ANM cancel or revoke any permit for extraction or development activities on indigenous land, including mining. It is unclear if the ANM will revoke all mining applications that overlap with indigenous land in other states.

* Of the 270 mining concessions, 164 predate the registration date of the indigenous territory. The remaining 106 concessions date after the registration date of the indigenous land and overlap with 48 registered indigenous territories with some lands having more than one overlapping concession.

Notes:

aAgência Pública et al. 2020.

Source: WRI authors.

In Colombia, the law provides indigenous peoples the right of first refusal to exploit minerals on their lands for commercial purposes. As such, indigenous peoples must first refuse their right to exploit mineral resources on their lands before the government can grant the mineral rights to a third party (Box 4.5). The law does not provide indigenous peoples this right in the other five research countries. The Colombian Mining Code states that “indigenous peoples and groups will have priority to obtain concessions by the mining authority on mining deposits located in an indigenous mining zone” (Article 124, Mining Code, 2001). The legislation also grants this right to Afro-Colombian peoples (Article 133, Mining Code, 2001). Under the right, indigenous peoples can only extract minerals from areas on their lands that the government has delineated. Such indigenous mining zones are areas that “comply with the special provisions on protection and participation of indigenous peoples and groups settled in these territories” (Article 122, Mining Code, 2001).44 As such, the right is contingent on the indigenous peoples being formally recognized by the government as indigenous and their lands formally identified but not necessarily titled.

box 4.4 | A Bill to Open Indigenous Land to Mining in Brazil

Based on the 1988 Federal Constitution of Brazil, mining is allowed on indigenous land only under conditions that must be established by law, which has not happened (Constitution, Article 176.1 and 231.3, 1988). Since 1995, however, the Brazilian government has tried to approve a law allowing mining (and other economic activities) on these lands. The attempts have so far been unsuccessful.

In 1995, Bill 1610/1996 to open indigenous land to mining and other commercial development was proposed by a senator from the state of Roraima and approved by the Senate in 1996. Several public hearings took place and a special commission to evaluate the bill was installed and dissolved several times. The bill was not passed into law and no progress has been made since 1996 (André Lima, personal communication, 2020).

In early 2020, a new bill—Bill 191/2020—was introduced to open indigenous land to mining, other extractive industries, and infrastructure. Bill 191/2020 defines the specific conditions for allowing mining on this land. Prior technical studies, hearings of affected indigenous peoples, and authorization from the National Congress are required for mining to be carried out on indigenous land. The bill also provides for the participation of affected indigenous peoples in the economic benefits of mining, granting them 50 percent of the revenue that is given to states and local governments for the exploitation of minerals. Compensation for indigenous communities affected by restrictions on the use of their lands is proposed in the bill (André Lima, personal communication, 2020).

Further, the bill provides indigenous people the right of first refusal as is the case in Colombia. It establishes a period of 180 days for affected indigenous communities to express interest in carrying out low-scale mining directly or in partnership with nonindigenous people. If the indigenous people are not interested in doing so, they can express their opinion on the consent (or not) of mining activities by nonindigenous people. The bill is unclear whether this right involves a veto power for indigenous people to mining. In addition, FUNAI can restrict or prohibit mining activities in areas where it can affect isolated indigenous people (André Lima, personal communication, 2020).

Bill 191/20 also foresees the possibility of indigenous people conducting other commercial activities on their land, such as agriculture, livestock, timber extraction, and tourism. Approval from the National Congress would be needed to allow for hydroelectric plant constructions, as well as oil and gas exploration on indigenous land.

Since the new administration came into office in 2019, the number of mining applications on indigenous land in the Amazon has increased by 91 percent. This is the first year since 2013 that such requests have increased. The Kayapó Indigenous Territory has been targeted with the most requests, followed by the Sawré Muybu Indigenous Territory of the Munduruku people. Both territories are in the state of Pará.a

Bill 191/20 has been challenged by indigenous groups and environmental organizations and is unpopular with the public (Agência Pública et al. 2020). Further, leaders in the National Congress have signaled that they are not in a hurry to move forward on his bill.b

Notes:

aAgência Pública et al. 2020.

b Clavery and Matoso 2020; Londoño and Casado 2020.

In Colombia, before the National Development Plan (2018–2022) Law (Law 1955 of 2019) was passed in May 2019, any party interested in mining, including indigenous peoples, had to meet the same qualifications and requirements. The lack of technical expertise and financial resources of indigenous peoples hindered, delayed, or prevented them from being granted mineral rights (Jorge D. Sierra Sanabria, personal communication, 2020). Colombia’s new law changes this. Article 326 of the National Development Plan (2018–2022) Law (Law 1955 of 2019) provides that the government will establish differentiated requirements for the granting of mining concession contracts to indigenous peoples and Afro-Colombian communities. Similarly, the Ministry of Environment and Sustainable Development will establish the “differentiated terms of reference for the preparation of the environmental impact study required for the environmental licensing of these mining projects” (emphasis added as this will likely not reduce the safeguards). The differentiated procedures have yet to be established.

box 4.5 | The Exercise of the Right of First Refusal by Indigenous People in Colombia

By the right of first refusal, the mining authority can preferentially grant indigenous people mining concessions in indigenous mining zones. The indigenous people do not need a land title to exercise this right, although the Ministry of Interior must certify that they are the holders or possessors of the indigenous mining zone established by the National Mining Agency (Agencia Nacional de Minería, ANM). If these requirements are not met, indigenous people can still request a mining concession opting for the regular procedure used by others to acquire commercial mineral rights.

Upon receiving a concession application from a third party to mine an indigenous mining zone, the ANM, through the Ministry of Interior, must inform the concerned indigenous people of the application within five days. The indigenous people have 30 days to decide whether they want to exercise their right of first refusal. If they do not respond in this period of time, the ANM will issue them a letter asking for a response and the indigenous people will have another 30 days to inform the ANM of their decision. If the indigenous people do not respond after the second month, it is determined that the indigenous people will not exercise their right of first refusal.

If indigenous people are interested in exercising their right of first refusal, they will need to comply with the requirements for mining concessions established by law. These requirements include submitting a notice of intent to the corresponding local government, department, and the environmental authority where the requested area is located; a description of the requested mining area; an indication of the mineral or minerals to be mined; an indication of the terms of reference and mining guides that will be applied in the exploration works and an estimate of the economic investment that will be made; submission of a map of the requested mining area; a commitment to carry out the technical exploration work, strictly subject to the environmental guidelines issued by the competent authority (Articles 217, 272, Mining Code, 2001). Indigenous people can also request assistance from the ANM if need be (Articles 271, 275, Mining Code, 2001, Procedure for Exercising the Right of First Refusal, 2013).

Source: WRI authors.

When a mining concession is approved for indigenous peoples, the Colombian government grants collective mineral rights to the indigenous community; mineral rights are not granted to individual members of the indigenous community (Articles 124, 125, and 133, Mining Code, 2001). Moreover, the National Development Plan (2018–2022) Law (Law 1955 of 2019) states that once a mining concession is granted to “ethnic peoples” the government will provide them comprehensive technical support and their mining activities will be subject to differentiated monitoring. These specific requirements have yet to be established. If the indigenous peoples exercise their rights of first refusal but cannot meet the requirements to be granted a mining concession on their lands, the government may grant the mineral rights to a third party.

Of note, the law allows indigenous peoples in Colombia to transfer part of their mining concession to third parties, with certain limits to avoid indiscriminate transfers. Currently, indigenous peoples can transfer up to 30 percent of their mining concession area to third parties for exploration and exploitation purposes (Jorge D. Sierra Sanabria, personal communication, 2020). New rules and limitations may be established in enabling regulations under the National Development Plan (2018–2022) Law (Law 1955 of 2019) that would modify the amount of concession area that may be transferred.

Consultation and consent rights: National laws in all six research countries establish social and environmental safeguards designed to protect the rights of indigenous peoples and conserve indigenous lands and natural resources, although the specifics vary by country.

Consultation. National laws in Bolivia, Brazil, Colombia, Ecuador, and Peru require the government to consult indigenous peoples whenever there are legislative or administrative measures or decisions that may affect them directly (Table 4.5). This right of consultation is consistent with ILO Convention 169, which calls for governments to “consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly” (Article 6, ILO Convention 169). In Guyana, the law does not specifically require community consultation for all legislative and administrative measures that may affect indigenous peoples directly, although community consultation is mandated to establish a protected area over non-titled indigenous lands [Section 58(2), Amerindian Act, 2006, Section 28(1)(f), Protected Areas Act, 2011].

A good-faith intercultural dialogue that ensures indigenous peoples participate in decision-making processes and the adoption of measures respectful of their collective rights is pivotal for a positive outcome (OPAN 2019). ILO Convention 169 states that “consultations carried out in application of this convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.” In Bolivia, Brazil, Colombia, Ecuador, and Peru the law provides that the objective of a consultation process is to reach an agreement or consent between the community and third party on mining or another consulted measure. To be clear, however, the Constitutional Court of Peru ruled in 2010 that the exercise of the right of prior consultation does not imply that indigenous peoples have a “veto power” over natural resource management decisions made by the government that might affect them (Dossier Nº 0022-2009-PI/TC, 2010).

Table 4.5 | The Awarding and Exercise of Mineral Rights on Indigenous Land in the Research Countries

Indicators

Awarding and Exercising Mineral Rights

BOLIVIA

BRAZIL

COLOMBIA

ECUADOR

GUYANA

PERU

Do national laws recognize the right to consultation in favor of indigenous people?

Yes

Yes

Yes

Yes

Yes*

Yes

Do national laws recognize the right to consent in favor of indigenous people?

No

No

No

No

Yes**

No

Has the state incorporated ILO Convention 169 into its national legal system?

No

Yes

Yes

No

No

Yes

Does the law require indigenous people to be formally recognized as indigenous people to be consulted?

Yes

Yes

Yes

Yes

Yes

Yes

Does the law explicitly require indigenous people to have a land title to be consulted?

No

No

No

No

No***

No

Does the law allow the government to establish an easement on indigenous land for mining purposes?

No

N/A

Yes

No

Yes

No

Does the law allow the government to expropriate indigenous land?

No

No

No

No

Yes

No

Notes: * The right to consultation does not adhere to ILO Convention 169’s standards. Consultation is required to establish a protected area over non-titled indigenous land. ** The right to consent does not adhere to ILO Convention 169’s standards. While the law requires the consent of two-thirds of indigenous people for ASM, medium, and large operations, the government can override the refusal of consent and allow mining on indigenous land if it is considered in the public interest. *** A land title is required for the right to consent.
Source: WRI authors.

Of the six research countries, Bolivia,45 Brazil, Colombia, and Peru have ratified and incorporated ILO Convention 169 in their legal system through specific national legislation. Among other rights in the convention, these laws make clear that a free, prior, and informed consultation process provides access to information, participation, and dialogue between the government, miners, and indigenous peoples regarding any measures that may directly affect the people or their lands.

Ecuador has also ratified ILO Convention 169 but has not passed specific legislation on the range of rights in the convention. The Constitution of Ecuador does, however, establish the right of indigenous peoples to “free prior informed consultation, within a reasonable time, on plans and programs of prospection, exploitation and commercialization of non-renewable resources that are in their lands and that may affect them environmentally or culturally” (Article 57.7, Constitution of Ecuador, 2008). In addition, “any decision or State authorization that may affect the environment must be consulted with the community, which will be informed widely and in a timely manner.” To underscore that consultation is not consent, “[t]he State will value the opinion of the community.” However, in case of community opposition, “the execution or not of the project will be adopted by duly motivated resolution of the corresponding authority” (Article 398, Constitution of Ecuador, 2008).

National and provincial courts in Ecuador have recognized the right to free, prior, and informed consultation. In 2018, the Provincial Court of Sucumbíos, a province in northeast Ecuador, ruled that several mining projects violated the right of prior consultation of the Cofán indigenous people of Sinangoe. The court also reaffirmed their rights to water, a healthy environment, and the right of nature.46 It ordered that the mining concessions already in operation and those currently in the process of being granted be canceled, affecting some 324 square kilometers. The court also ordered the reparation and/or remediation of the areas affected by mining (Cardona 2019). In April 2019, in Puyo, the capital of Pastaza province, the court found that the Ecuadorian government did not afford the Waorani indigenous people free, prior, and informed consultation before opening their lands to potential oil exploration. The three-judge panel ordered that the Waorani’s lands could not be included in an oil auction (Riederer 2019).

Moreover, in 2012, the Inter-American Commission on Human Rights (IACHR) determined that the government of Ecuador had failed to implement the right to prior consultation according to international standards in the case of the Kichwa indigenous people of Sarayaku in the Amazon (Case of the Kichwa Indigenous People of Sarayaku v. Ecuador). For more than 20 years, the Kichwa had been fighting to defend their lands from oil activities. The IACHR ruled that the government violated, among other rights, the Kichwa’s right to consultation.47 Specifically, it found that in the 1990s, the state granted a permit to a private oil company to carry out exploration and exploitation activities in Kichwa territory without consulting them. With the permit, the oil company began its exploration phase, even introducing explosives in several places in indigenous lands.48 The IACHR ordered the government to pass a regulation on the right to prior consultation of indigenous peoples (which has not been developed) and ordered the oil company to halt all oil activities on the Kichwa’s lands.

In Bolivia, Brazil, Colombia, Ecuador, and Peru, indigenous peoples must be formally recognized by the government as indigenous to enjoy the right of consultation, although they are not required to have a title to their lands (see below for Guyana). In Colombia, the law explicitly provides that free, prior, and informed consultation must be carried out with indigenous peoples whether their lands are titled or not. Prior consultation must be carried out when a project, work, or activity will be developed on titled indigenous lands and “in areas not titled and inhabited on a regular and permanent basis” by indigenous peoples or Afro-Colombians (Article 2, Law that Approves the ILO Convention 169). In 2011, the Constitutional Court of Colombia confirmed that prior consultation must be conducted before mining exploration activities are carried out (Decision Nº T-129/11, 2011).

The national laws in Bolivia, Brazil, Ecuador, and Peru are silent on whether indigenous peoples must have a title to enjoy their consultation rights, but based on ILO Convention 169 (which the states have ratified), indigenous lands or territories “cover the total environment of the areas which the peoples concerned occupy or otherwise use.” In Ecuador, in October 2018, the Provincial Court of Sucumbíos established that the right to consultation of the Cofan de Sinangoe indigenous people was violated when the government granted 32,000 hectares in mining concessions in the area of the headwaters of the Aguarico River, where the Cofanes and Chingual Rivers meet, without consultation. The court ruled in favor of Cofan de Sinangoe community even though they did not have a title to their lands (REPAM 2018; Mongabay 2019). In Ecuador, decisions of provisional courts are nationally binding.

In Bolivia, Law 1257 that approved ILO Convention 169 and Articles 30 (Item 15) and 403 of the constitution in conjunction with Article 207 of the Mining Law guarantee the right to free, prior, and informed consultation for indigenous peoples, intercultural people, and Afro-Bolivian people. Prior consultation must be conducted when a mining contract for exploitation is likely to directly affect their lands. Prospecting and exploration do not require prior consultation. Indigenous peoples (as well as intercultural people and Afro-Bolivian people), however, must have a government-issued certificate that confirms them as members of a recognized indigenous group to in order exercise their right to prior consultation (Article 30, Regulation of Granting and Extinction of Mining Rights, 2015).

Consent. For indigenous peoples, the claims of sovereignty over their traditional lands and self-determination includes the right to provide (or withhold) their free, prior, and informed consent (FPIC) to activities that may impact them (Hunter et al. 2015). At the international level, the right of FPIC is recognized under UNDRIP Article 19, which affirms that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them,” and Article 32, which adds that “prior to the approval of any project affecting indigenous lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.” ILO Convention 169 provides for FPIC, but only when relocation of indigenous peoples is considered necessary as an exceptional measure. Relocation shall take place even if consent cannot be obtained, but only if appropriate legal procedures that provide for indigenous peoples’ effective representation are followed (Article 16, ILO Convention 169, 1989).

While no research country recognizes FPIC as provided in UNDRIP, the law in Guyana provides for a limited right of consent. By law, indigenous peoples must be recognized by the government as indigenous, and they must have a land title to exercise the right of consent. In Guyana, miners, including ASM and large-scale operators, interested in mining indigenous titled lands must “obtain the consent of at least two-thirds of those present and entitled to vote at a Village general meeting” before beginning operations (Article 48[g], Amerindian Act, 2006). This right applies to all mining (non-petroleum) and forestry on indigenous titled lands from 2006 onwards, when the Amerindian Act was passed. For large-scale mining, however, the minister of indigenous peoples’ affairs and the minister of natural resources can override refusal of consent and allow mining on indigenous lands if it is considered in the public interest. This authority to override a refusal of consent is not consistent with UNDRIP.

Easements. When mining on indigenous lands, miners often seek the use of some additional indigenous land to conduct their operations. Land may be needed for the mine site, as well as for offices, housing, and storage facilities for mining equipment and material. In Colombia and Guyana, the government may establish an easement on indigenous lands to enable miners to develop their exploration and exploitation activities. Colombia’s national laws provide that infrastructure of national interest can only be developed with prior agreement of affected community authorities, issuance of an environmental license, and establishment of compensation measures, if needed (Article 23, Regulation on Titling of Indigenous Peoples’ Lands, 1995). By law, mining is an activity of public utility and social interest, allowing government to expropriate certain lands, although not indigenous lands. The government may, however, establish an easement, including on indigenous lands, for the period of mineral exploitation.

In Bolivia, Brazil, and Peru, the law prohibits the government from establishing an easement on indigenous lands (Table 4.5). In Peru, the law provides that mining easements cannot be established on lands in possession or property of the peasant and native peoples; lands and territories of indigenous or native peoples; reserves for indigenous or native peoples in a situation of isolation or initial contact; and protected natural areas (Article 4.2, Regulation of the Investment Promotion Law for Economic Growth and Sustainable Development, 2016).

In Ecuador, national regulations provide that the government may establish easements for mining purposes after the mining concessions have been granted and land is needed for facilities and other mining operation. Authorization of the landowner is not required for the government to establish an easement for mining (Articles 100 and 103 of Mining Law, 2009, Rules for the Establishment of Mining Easements, 2015; Borja Calisto 2019). National courts, however, have stated that easements cannot be established on all types of lands. A court decision from 2010 made clear that easement rules apply only to lands that are not considered indigenous (Decision Nº 001-10-SIN-CC, 2010).

Benefits. While there are costs for indigenous peoples when mining activities take place on their lands, there are also potential benefits. When indigenous peoples mine their land, the benefits could include a new occupation and form of livelihood as well as a new source of income for the indigenous miners and the community. The revenue can be used, for example, to pay school fees, purchase household goods, build a health dispensary, purchase solar panels for electricity, or establish a potable water system. When external actors mine indigenous lands, benefits to indigenous peoples may include employment for community members, a share of the mining revenue, and improvement of community services, such as a primary school or new road.

National laws in all six research countries mandate some form of benefit sharing with indigenous peoples when third parties mine their land. In Colombia, the law provides—among other benefits—that miners operating on indigenous lands should involve the community in its works and train its members (Article 128, Mining Code, 2001). In Peru, national laws require the miner to make a prior commitment through a sworn declaration to, among other matters, give preference to hiring local personnel to carry out mining activities and provide training that may be required (Article 17.1.i.e, Mining Procedures Regulation, 1992).

In Guyana, the law provides that after indigenous peoples give their consent to mining on their land, the miner and community should prepare and sign a written agreement on negotiated mining company commitments, such as offer of employment to residents at market rates and purchase of all competitively priced food and materials from the village. Additional requirements may include a protocol that regulates the behavior of the miners and other employees, including restrictions on the consumption of alcohol, a waste disposal plan, a mechanism to assess and pay compensation, a health program, and an employee education program (Article 49, Amerindian Act, 2006). If no agreement is reached, the minister of indigenous peoples’ affairs will enter into an agreement with the mining company on behalf of the affected indigenous people (Article 50, Amerindian Act, 2006).

In some countries, regulations explicitly provide that indigenous peoples must benefit economically from mining projects on their land. In Ecuador, the Mining Law states that “60% of the royalty of the mining projects [is] to be allocated for productive projects and sustainable local development” and that “when necessary, 50% of this percentage to [be allocated for] the entities of government of the indigenous peoples.” These resources are to be distributed prioritizing the needs of the indigenous peoples who are directly affected by the mining activity (Article 93, Mining Law, 2009).

Protection. Mining is inherently damaging to the environment. It brings risks to health and local well-being. To mitigate the damage and risks, national laws in all six research countries require ASM miners, including indigenous peoples, and mining companies to minimize the impacts of their operations on the environment and natural resources, whether mining on indigenous lands or other lands. Such safeguards are often codified in laws governing minerals and mining, the environment and natural resources, and indigenous peoples’ rights and lands. The laws in the research countries address a range of critical environmental issues and establish minimum environmental standards. Some environmental issues, however, are not addressed in law, and some minimum standards do not rise to the level of international law or norms.

While many indigenous peoples do not mine their land for commercial purposes and do not want external actors to mine their land, some indigenous peoples are engaged in mining as an economic activity (see Guyana Case Study). Such mining could be ASM conducted by the indigenous peoples or in partnership with external actors through, for example, a partnership with a mining company.

In Guyana, the Amerindian Act provides that when mining activities take place on indigenous lands, miners must take all reasonable steps to avoid damaging the environment, polluting surface and groundwater, damaging or disrupting the flora and fauna, and interfering with local agriculture (Article 49, Amerindian Act, 2006). In Bolivia, the law states that miners must conduct their mining activities in ways that prevent environmental pollution and control for the generation of waste, dust, and noise (Article 95, Environmental Regulation for Mining Activities, 1997). In Peru, miners must “comply with the environmental legislation applicable to its operations, the obligations derived from environmental studies, licenses, authorizations and permits approved by the competent authorities, as well as any other commitment” (Article 18.a, Regulation of Protection and Environmental Management for Exploitation Activities, 2014).

In all six research countries, Environmental Impact Assessments (EIA) are required of projects that may significantly affect the environment, including large-scale mining operations. EIAs are the process of examining the anticipated environmental effects of a proposed project (Ireland EPA 2020). They are designed to identify, prevent, correct, minimize, and mitigate the mining project’s potential risks and impacts and, if that is not possible, to compensate for the damage caused. EIAs help the mining entity, government, and public understand the potential impacts of mining operations. The associated environmental management plan helps ensure that the mining projects will be conducted in accordance with environmental safeguards and without causing avoidable negative environmental impacts.

The magnitude of the environmental impacts from mining operations determines whether an EIA must be prepared. In Peru, a detailed EIA report is required for mining activities with significant negative environmental impacts, while a less detailed EIA report is needed for moderate negative environmental impacts (Article 4, Regulation of Protection and Environmental Management for Exploitation Activities, 2014). Mining operations with minimal environmental impacts only need an Environmental Impact Declaration (Declaración de Impacto Ambiental, DIA) (Articles 45, 46, Environmental Protection Regulations for Mining Exploration Activities, 2017). Detailed EIAs are approved by the environmental authority, while the semi-detailed EIAs and DIAs are approved by the mining authority.

In all six research countries, mining is prohibited on certain lands. In Ecuador, for example, the extraction of nonrenewable resources (e.g., minerals, oil, and natural gas) is forbidden in protected areas and areas declared “intangible” (“untouchable”), which may include some indigenous lands. Exceptions can be made at the request of the president with prior declaration of national interest by the National Assembly. If deemed appropriate, the National Assembly can call a public consultation on this matter (Article 407, Constitution of Ecuador, 2008). In Bolivia, mining is prohibited “in the vicinity of basin headwaters, lakes, rivers, slopes and reservoirs.” The restrictions will be subject to Environmental Studies with a multisectoral approach (Article 93 III, Mining Law).

In Colombia, mining exploration and exploitation activities may not be carried out in areas delimited for the protection of the environment or renewable natural resources, such as national natural parks, regional parks, protected forest reserve areas, and wetlands (Article 34, Mining Code, 2001). In Bolivia, national laws do not identify any specific areas where mining is prohibited, but decrees have established protected areas with such prohibitions. To protect their lands from mining, some indigenous peoples have had the government declare their land a protected area (see Colombia Case Study).

In all six research countries, governments are by law responsible for monitoring and overseeing mining companies to ensure their operations are conducted in accordance with the law, that they are meeting their social and environmental commitments, and that they mitigate and compensate for any environmental damage or other losses caused by their activities. In Bolivia, for example, municipal governments are responsible for controlling and monitoring the environmental impact of mining activities (Article 3, Environmental Regulation for Mining Activities, 1997).

In all research countries, miners are—by national law or concession agreement—also responsible for monitoring their operations to avoid environmental damage. In Peru, miners are required to monitor and control their operations to verify compliance with their commitments and with the corresponding minimum environmental standards established in law (Article 18.b, Regulation of Protection and Environmental Management for Exploitation Activities, 2014).

In all six research countries, the government has the authority to arrest, detain, and punish miners for operating illegally. In Brazil, the National Mining Agency (Agencia Nacional de Minería, ANM) has the authority for “seizure and auctioning of mineral substances and equipment found or coming from illegal mining.” (Article 13.V creates the ANM, 2017). The Brazilian Institute of Environment and Renewable Natural Resources (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis, IBAMA), the Federal Police, and FUNAI have the power to act in cases of illegal mining within indigenous lands, with the power to seize material and suspend activities in addition to imposing fines on the companies or people involved. Given that mining is not currently allowed on indigenous lands, conducting exploration and exploitation of mineral resources in that land can be punished with a six-month to one-year detention and a fine (Article 55, Environmental Crimes Law, 1998).

In Ecuador, the Mining Law provides that “illegal exploitation or clandestine trade of mineral substances, qualified by the administrative authority, will be sanctioned with the confiscation of the machinery, equipment and products subject to illegality and the collection of a value equivalent to the total of minerals extracted illegally, without prejudice to criminal actions arising from these infractions. Sanctions will be applied to all mining subjects” (Article 57, Mining Law, 2009). Environmental impacts and damages to ecosystems and biodiversity as a result of illegal exploitation or invasions are considered aggravating factors when sanctions are determined (Article 57.7, Constitution of Ecuador, 2008).

When mining activities damage the environment, including on indigenous lands, the government in all six research countries has the authority to impose fines on the miner and mandate compensating measures for the affected indigenous peoples. In Ecuador, the law establishes that indigenous peoples will “receive compensation for the social, cultural and environmental damages caused to them” (Article 57.7, Constitution of Ecuador, 2008). In Guyana, the law provides that mining operations shall pay “fair and reasonable compensation” for damages “to the holder of any right, title or interest in or over that parcel of land in accordance with his right, title or interest” (Section 84, Mining Law).

Finally, Bolivia, Colombia, Ecuador, and Peru are members of the Andean Community (Comunidad Andina, CAN), an intergovernmental organization created to promote the expansion of markets and guarantee effective economic development in the region. (Venezuela is a former full member and Brazil is an associate member). In 2012, CAN adopted the Policy to Combat Illegal Mining (Andean Decision Nº 774, 2012). The policy calls for the forfeiture or seizure of goods, machinery and their parts, and equipment and supplies used for the development of illegal mining, as well as the destruction, immobilization, uselessness or demolition of goods, machinery, equipment and supplies, when their confiscation or transfer is not viable.

Start reading