With another victory in the courts, Ecuador's Curipamba given green light to proceed
A court ruling rejecting an appeal designed to halt Ecuador’s US$250mn Curipamba polymetallic project could set a precedent for other mining projects facing legal action.
Curipamba, also known as El Domo, is expected to be Ecuador's third industrial-scale mine and is in the hands of Canadian companies Silvercorp and Salazar Resources.
On November 12, the provincial court of Bolívar, in central Ecuador, rejected an appeal against a first instance ruling that dismissed the protection action filed against Curipamba for alleged non-compliance, omissions and damage during the environmental consultation process carried out by the environment ministry (MAATE) prior to the issuance of the environmental license for the operations phase.
Environmental consultation is an essential process for obtaining the license that allows construction of a mine to begin. It consists of informing the community about the impacts of projects, although communities do not have veto power.
Both the initial claim and the subsequent appeal sought to halt the start of mine construction but in the latest ruling, judges Nelly Núñez, Rances Astudillo and Alvaro Ballesteros said the plaintiffs did not prove that any fundamental right had been violated during the environmental consultation process, as they had claimed.
The court noted, among other things, that protective actions are only admissible when a real and direct violation of constitutional rights is demonstrated, and when there is no other adequate and effective judicial mechanism to protect those rights.
“In legal terms this is an important ruling that can set precedents for similar cases, since the judges made clear when protective actions are admissible and marked the groundwork for what constitutes environmental consultation and what constitutes prior consultation, where each of these should be applied, how they should be carried out and with whom, and how the area of influence is determined, which is important not only for this project but for others that may have problems due to protective actions or similar actions that are presented to the courts," lawyer Andrés Ycaza, an expert in mining issues, told BNamericas.
The court also noted that the population had sufficient time to learn about the mining project, and that in order to have access to information about the environmental consultation, the ministry used four public information centers, held four information meetings and six environmental awareness workshops, and collected the votes of all participants, along with the reasoning for their decision in the report on the consultative phase.
Additionally, the judges said that although in the lawsuit several residents of the Jerusalén district who questioned the process admitted that their lack of participation in the consultation was voluntary, the ministry installed a consultative assembly in the area of indirect influence for the participation of Jerusalén and other communities that were considered affected.
“In both the phase of access to environmental information and the consultative phase, MAATE facilitated participation in the environmental consultation. Therefore, the environmental consultation ensured that the consulted subjects could participate in the environmental licensing process of the Curipamba-El Domo project, without violating the right to a participatory environmental consultation,” the ruling stated.
The plaintiffs also argued that the presence of the police at the environmental consultation was intended to intimidate and even criminalize a protest and violated the right to freedom of opinion and expression.
The judges argued that the environmental consultation was free because there was no pressure from the security forces for people to participate and those who decided to participate did so voluntarily.
Ycaza said in the ruling the judges also established that in the case of prior consultation, those who claim to belong to indigenous populations must prove that condition.
"This is the second case [the first was the La Plata project] in which a court says that self-identity is not enough, but must be accompanied by, at least, minimal evidence, demonstrating that those who request prior consultation effectively belong to indigenous populations," said the lawyer.
The plaintiffs could still turn to the constitutional court for an extraordinary protective action. However, that process could take years and while it lasts there is no legal impediment to the construction of Curipamba and the start of production.
Schedule
Salazar Resources corporate development manager Freddy Salazar said in a recent post that he was confident the project schedule would be followed as planned.
Last month, Salazar told BNamericas that early works would start in November and continue until the end of the year, while construction of the mine is expected to begin after the rainy season in the area where Curipamba is located, around the second quarter of 2025.
Early works include embankments, temporary camps, road maintenance works and widening of access roads, among others.
The companies aim to start production by the end of 2026.
Located in Bolívar province, Curipamba contains mainly copper and gold but also zinc and silver. Initially it would be an open pit operation, later moving underground.
The licensing process began in November 2021 and ended in January this year.
Over the course of 17 years, some 70,000m have been drilled, and investment to date has amounted to around US$100mn.
According to data from the operators, proven and probable open-pit mineral reserves total 6.5Mt grading 1.93% copper, 2.52g/t gold, 46g/t silver, 2.49% zinc and 0.2% lead.
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