For over a week, residents of the Argentine province of Mendoza mobilized, in marches, candlelight vigils, and enormous protests against the provincial government’s decision to overturn Law 7722, which prohibited the use of hazardous chemicals in mining activities. The law, originally passed in 2007, was the result of years of organizing by neighborhood assemblies, community organizations, and groups of agricultural producers in defense of water as a key element of life, and attempting to establish an alternative to the extractivist economic model.
The decision to overturn the law was met with immediate and massive resistance, including a caravan of protesters that marched across the province to convene in the city of Mendoza. The government initially responded with repression, teargassing and arresting protesters, but eventually was forced to back down and on Monday voted to reinstate the old law. The following text, originally written for LATFEM, documents the long history of political and legal battles to protect water and the environment in Mendoza and other parts of Argentina from the dangers of mega-mining.
Mendoza tends to have four different skies. The eastern sky is full of clouds and lightning from a thunderstorm or hailstorm happening somewhere else. Toward the west, the mountains stand next to clouds that are barely vaporous. In the north, golden threads move slowly, while the south is filled with a clear, almost transparent, blue. Besides their beauty, these skies speak of the precarious and tense existence of the life occurring beneath them. In this desert, it only rains 40 days a year, around 8.5 inches, roughly 15 per cent of the 60 inches that falls in the humid pampas.
“This land is an oasis of plant life in the confines of the desert,” said a traveler in the 17th century, and little has changed since then. Only three per cent of the territory is irrigated: river, canal, ditch, from largest to smallest, make up the venous system of the land, originally designed by the Huarpes and reconstructed in 1872, the year in which the public grove was planted with the Carolina poplars and banana trees with thick trunks and flickering crowns that are the local emblem.
But the oasis, metaphor of the mirage, deceives and deludes, and only a little ways beyond everything is stones, acacia trees, salty soil, and larea bush. Nothing related to the inhabitants, the land, and the water is the outcome of chance. If the human right to water is indispensable for life and the necessary condition for the realization of other human rights in any human habitat, here it is the necessary condition for life itself.
Argentina’s 1884 Water Law, despite its 19th century language (and problematic colonial distribution of rights that excluded Indigenous communities), was the first law of its kind in the country and it still regulates, hour by hour, inch by inch, when, how much, and where anyone can drink, irrigate, or produce using water.
Water, which comes from snows and glaciers as they are thawed by the burning summer, besides being susceptible to appropriation, is a public good by nature, administered by an independent organization that, in accordance with the Constitution of the province, is integrated into a complex system of communal representation. That distribution is based on the control and a fierce dispute over exercising the right to water. Although it is laudable and a virtuous culture in itself, I’ll save for later the stories about the number of times I had to scream loudly (woman) so that my wine-producing neighbors would understand that I was using my right to water for a languishing garden that they tried to rob of water, diverting it from flowers also have a right to drink, in order to not die.
On October 2, 2014, via Resolution 27/7, the United Nation Human Rights Council called upon states to ensure that all people have access to effective resources, without discrimination, in the case of a violation of their obligations in regards to the human right of safe drinking water and sanitation. A century earlier, the rock-hard limits (not speaking metaphorically) of this territory forced the community to legislate, in the detail, the use and exploitation of that essential common good.
In 2007, Mendoza experienced one of those moments of the unfolding of political virtue: the unanimous vote of the provincial legislature that banned the use of chemical substances – cyanide, mercury and sulfuric acid, among others – in metal mining processes including searching, prospecting, exploration, exploitation, and industrialization. It also established that the Environmental Impact Statement must be ratified by law for each approved mining project.
That decolonial and sovereign legislative act was the fruit of broad popular demands and mobilizations. Against the threat of mega-mining, the university, neighborhood assemblies, and productive sectors demanded that their representatives impose the maximum restrictions on metal mining. Before reaching political consensus, there were other weakened attempts: a law was passed that slowed activity until it had an environmental plan, which was vetoed by Julio Cobos, the then governor of Mendoza province. A few months later, in June 2007, the legislature reviewed the veto and presented different bills to curb metal mining until Law 7722 was finally passed.
Mendoza was not an isolated case.
What was happening in the rest of the country at that time? What do we mean when we speak of the mining lobby? In 2003, in the province of Chubut, the first law was passed attempting to protect the population from the advance of mega-mining. Law 5001 prohibited the use of cyanide and zoned the land for the rest of the mining projects. The law, which was judicially challenged and approved, remains in effect, but recently the Ministry of Energy of the province has declared that it must be reviewed. In the province of Rio Negro, Law 3981 was passed in 2005, prohibiting the use of cyanide and mercury. It was repealed in 2011 as one of the first measures of the administration of then governor Carlos Soria. Thanks to that repeal, the company Patagonia Gold took over the Calcatreu gold and silver deposit. The Mapuche community that borders that deposit has been affected by the mining exploitation, and has remained in a state of permanent mobilization.
In 2007, the same year that Law 7722 was passed in Mendoza, similar laws were passed in the provinces of La Rioja, Tucuman, and La Pampa, and in 2008, Cordoba passed Law 9526. In La Rioja, the law was annulled the following year, under the guise of a reform to environmental law by the same governor that a year earlier had sanctioned it in response to citizen demands.
The laws of Chubut, Mendoza, and Cordoba were ruled constitutional (by the Supreme Court of the Nation in the first case, and by the highest courts of their provinces for the others) with notable arguments in support of their legality, invoking Article 41 of the National Constitution and the people’s power of self-determination to restrict harmful activities. Currently, the laws in the provinces of Chubut, Tucuman, San Luis and Tierra del Fuego are still in effect.
At an international level, in May 2010, the European Parliament requested a prohibition on the use of cyanide with a resolution that was approved by a vast majority of representatives (488 votes in favor, only 48 against, and 57 abstentions). However, the European Commission refused to impose the prohibition throughout the European Union. Since then, grassroots organizations are increasingly against the use of toxic cyanide. In Greece, Romania, Spain, France, Bulgaria, and Finland, people have mobilized to demand that the use of cyanide be definitively prohibited. On September 12, 2014, the Slovak Parliament approved an amendment to the mining law prohibiting leaching techniques that use cyanide, joining the Czech Republic and Hungary, which had already done so. In Latin America, Costa Rica and El Salvador have established the prohibition at the national level.
This constant tension that mega-mining provokes at the international, regional, and local level helps us to better understand the present. How and why, on December 20, 2019, ten days after the new governments had taken office at the national and provincial level, in just over ten hours, did the two chambers of the Mendoza Legislature modify Law 7722 to allow the use of prohibited substances, opening the door to mega-mining exploitation?
They did so behind the backs of citizens, the organizations and assemblies that shouted with rage behind the police barricades and that now express their frustration marching along highways and streets, and filling plazas around the province. The legislature used a legal fallacy to argue that the law established greater than allowed controls over a permitted activity and that the entry of resources to the provincial and national coffers would enable public investment and infrastructure improvements which would benefit the population. As the population traveled by caravan from all parts of the province to convene on the government building in the city of Mendoza, the provincial government published, from its official twitter account, scandalous and refutable made-up figures about the wages and incomes for thousands of millions [of dollars] that mega-mining will bring to Mendoza. These figures are ridiculous when compared to reality: barely 0.9 per cent of the income from exports goes to the state, despite the fact that the Mining Code declares that it should be three per cent (which is quite meager in respect to the environmental damage that it causes).
Essentially, the legislature did so in clear violation of Article 41 of the National Constitution that establishes the right to the environment and the authorities’ obligation to the guarantee it. It also violated the General Law of the Environment that establishes the principles of progression (that the law can only establish higher standards for environmental protection than those already existing, not less), those of prevention and precaution (the first requires taking measures against evident danger, mega-mining is contaminating by its own nature, and the second to detain the possibility of suffering serious environmental dangerous despite not knowing the precise likelihood of its occurrence), and that of environmental non-regression (that declares environmental laws that regress in regards to previous levels of protection to be illegal).
There are voices that argue that we are facing a conflict over distributing resources between different sectors or even between models of development that are in dispute. Yet, what is taking place in Mendoza, in Argentina, and in the world is a true environmental conflict that has put the population’s right to the environment and health in danger. To understand this, it is necessary to look at some data that help us grasp what mega-mining entails.
There is no such thing as “good environmental practices” in metal mega-mining. It is an activity that requires the accelerated appropriation and extraction of large amounts of non-renewable mineral resources, not only of water, but also of soil, air, and the native flora and fauna that inhabit the ecosystem that mega-mining occupies. It consumes large amounts of energy; it starts with the explosion or blasting that removes the mountain slope or place where the deposit has been found, the metal is extracted after chemical processes grinding the stone and earth that involve the release of heavy metals such as arsenic, cadmium, cobalt, lead, nickel, and others. All of this to produce metals that are exported to external markets.
The social and environmental damages are devastating: ecological destruction, loss of natural forests, soil deterioration, contamination by chemical substances and dangerous residues, displacement of local communities, and no creation of quality jobs. Solid emissions directly affect the atmosphere. They generate gasses that contribute to climate change, including carbon dioxide, carbon monoxide, and sulfur dioxide. Desertification, erosion, and the loss of fertile soil are among the main direct consequences of the practice of accumulation of discharge (slag heaps and waste ponds), acidification and contamination with heavy metals. The release of toxic substances produced in large-scale mining activity causes poisoning and irreversible damage to lung cells.
A process is used in uranium extraction called leaching with sulfuric acid, which requires the consumption of 130 gallons of water per second and when it enters into contact with mercury veins, Radon gas and other radioactive derivatives are released. Gold extraction uses a process of leaching with cyanide, which creates environmental damage in the long and short term. The high toxicity and natural reactivity of cyanide is lethal to plant, animal, and human life.
The environmental disasters caused in the “Mariana” deposit in Minas Gerais Brazil and “Veladero” in San Juan, Argentina are warnings of the environmental damage, whose effects are fully anchored to the territory.
In 2015, in San Juan, three towns declared health emergencies as the result of a spill of nearly 60,000 gallons of cyanide solution. In Jachal, the rupture of a tank valve spilled over one million gallons from the Veladero mine, operated by the Canadian company Barrick Gold, into the Potrerillos, Jachal, Blanco, Palca, and Las Taguas rivers, in which cyanide and heavy metals were detected. In 2007, a study conducted by the University of Jujuy revealed that 81 per cent of the children of Abra Pampa had unhealthy levels of lead in their blood.
The dangerous residues produced by mega-scale mining cross provincial borders. We should not forget that in 2017, when the Taym hazardous waste treatment plant in the province of Cordoba flooded because of intense rain, the cyanide from mega-mining ended up in the province’s soil and affected drinking water in the area.
President Alberto Fernández, in his highly praised and substantial inauguration address on December 10, affirmed some of the basic concepts of sustainable development. He claimed, for example, that proposes the reconstruction of human relationships and the commitment to human rights. Fernández also proposed the challenge of “citizenizing democracy” and recognized that the country needs to promote “a transition toward a model of sustainable development, responsible consumption, and valuing natural goods.” It is here, on the streets, under the clean skies, with the mountain range bordering the scarce clouds, that the citizenry is demanding a redefinition of political priorities for the coming years and exercising a fundamental human right: that the authorities guarantee access to water and a clean environment, suitable for human development, without the presence of activities that affect future generations.
Eight days after the modification of Law 7722, eight days in which residents stayed in the streets day and night to make their voices heard against the legal decision made behind their backs, the Governor of Mendoza announced the introduction of a new law to restore the prohibition of the use of cyanide and other toxic substances in mega-mining.
The democratic solution came after the governor insisted on treating protesters as ignorant, fearful, and violent. Meanwhile, the protests continued in the streets and they began to talk about suspending the province’s emblematic festival of the Vendimia (an annual festival celebrating the grape harvest and wine production in the province).
This is an historic and foundational act for the protection of the human rights to water and the environment in Argentina, and it is grassroots mobilization that marks the path and points to the horizon.