El Salvador Government, Mining

Day 2 of the ICSID Tribunal Preliminary Hearings

Today was the second and final day of the preliminary hearings before the ICSID tribunal for Pacific Rim’s claims against the government of El Salvador over their inability to secure permits to mine gold in the province of Cabanas.

Over the past two days, both sides have scored several points, but El Salvador’s legal team seemed more successful in controlling the conversation, especially today, and steering the Pacific Rim team away from their arguments. Yesterday, El Salvador’s attorneys spent much of their time presenting facts of the case, arguing that Pacific Rim had not complied with the mining law.  Pacific Rim on the other hand, openly stated that this hearing was not the time to discuss facts, and instead focused on the minutia of the CAFTA and ICSID procedural regulations concerning what standards the tribunal judges should apply. Both were good strategies for each side, but in the end, El Salvador was able to force Pacific Rim away from their presentations about procedural regulations, and made them address the facts that gave rise to the claim – which they did not do very well. Perhaps well enough to overcome these preliminary objections, but if today is any indication, they will have a harder time as the process moves forward.

I found these hearings interesting on a couple levels. Much of what we hear about the mining debate comes from grassroots organizations that support the anti-mining movement in El Salvador.  While the information we receive is important and interesting, too often we don’t know what is happening within the government ministries, or what Pacific Rim is really thinking. We see how their decisions manifest in Cabanas, but we don’t necessarily see the process. These hearings have been a window into what the Salvadoran government and Pacific Rim have been doing and thinking over the years. Granted, the information that we are getting is filtered through legal teams and the facts have been methodically organized to support legal arguments, but its more than we’ve gotten in the past.

For example, for the past few years we have heard from grassroots organizations in Cabanas about mining promoters that have been pressuring people to sell their land to Pacific Rim. It was interesting to hear attorneys for the government and Pacific Rim to discuss article 37 of the mining law requiring Pacific Rim to have title to or control of the surface land described in Pacific Rim’s exploitation permit application. Of the 12.75 sq km that Pacific Rim wants to mine, they only own or control 1.6 sq km, which is a significant discrepancy.  It highlights the importance and effectiveness of the anti-mining movement’s efforts to educate the people about the harm mining could cause to local land and water resources. It also gives context to a lot of the tension and violence in Cabanas over the past few years. The family of Oscar Menjivar, for example, has been very divided over mining. Some family members support mining and have even worked for Pacific Rim, while others joined the anti-mining movement and toured mining communities in Honduras where mining has caused significant environmental and public health problems. The Menjivar family owns a lot of land that Pacific Rim needed, and the pressures have divided the families. We hear about these issues on the ground, but rarely hear about their legal implications.

I also noticed that over the past two days, neither party spent much time talking about the impact of mining on the people or environment in Cabanas. El Salvador’s attorneys may have made a passing reference to the impact on local populations, while Pacific Rim only talked about their environmentally friendly mining practices and how much it will benefit the local economy. These were procedural hearings, but I think it underscores the importance for the MESA (Mining Roundtable) and members of the international community to continue providing a venue for the people of El Salvador to voice their position on mining and development in their communities.

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