Peru is highly dependent on the mining sector (mining accounts for 10% of its GDP and 60% of exports). The Peruvian legal framework promotes mining investments and, at the same time, incorporates business and human rights standards, such as citizen participation in environmental impact assessments (EIA) and prior consultation of indigenous communities before the commencement of operations. Specific guidelines on due diligence have recently been incorporated into the National Action Plan on Business and Human Rights.

However, there are many criticisms about the weakness or failed implementation of these standards. Huge mining projects, such as Conga and Tia Maria have been suspended due to opposition of local communities. Las Bambas is a new flashpoint, although the conflict is nothing new. Las Bambas is a copper and molybdenum mine located in the provinces of Cotabambas and Grau in the department of Apurimac. In August 2004, the Swiss company Xstrata (then Glencore-Xstrata) acquired the exploration rights and in the following years navigated with relative success labour conflicts and the relocation of the Fuerabamba community to a new town built by the company.

A new wave of social conflicts relate to environmental concerns. Given its dimensions, the authorities call the total area of operation and transportation ‘the Southern Mining Corridor’. Minerals transportation begins in Apurimac and crosses the provinces of Chumbivilcas and Espinar in the department of Cusco to reach the molybdenum plant of the Tintaya mining project. Many peasant communities are directly affected by the operation. Originally, Glencore-Xstrata planned the transportation of minerals through a mineral pipeline but then it changed the environmental impact assessment to use road transport. In April 2014 the Chinese Minerals and Metals Group (MMG) acquired Las Bambas. One month before, Glencore-Xstrata submitted an amendment to the EIA to update the water management system and the social and environmental baselines. The Ministry of Energy and Mines issued an observation stating that the company should detail possible changes in the general information (such as transportation, management plan, among others). In October 2014, when MMG was already in charge of the project, the company requested the change in the form of ore transportation, from a mineral pipeline to road transport. This change reduced the area of influence of the project, excluding those communities considered in the pipeline project. The authorities approved the EIA modification in November 2014.

MMG’s failure to provide information to the communities about these changes generated distrust in a population that had high expectations of the promised benefits. Protests began in February 2015 and continued until 2016, resulting in the death of at least 4 peasants by police firearms. Since 2015 both the government and the company have criminalised peasant leaders for exercising their right to protest,  requesting up to 17 years in prison for 19 peasants. The government has issued a series of decrees declaring the area in state of emergency.

The key conflict today involves the communities of Chumbivilcas in Cusco. It has environmental and economic angles, both related to the lack of participation. From the environmental angle, the communities are complaining about the dust generated by the transport of minerals. They point out that the modification of the EIA required citizen participation to establish adequate mitigation and compensation mechanisms, as well as to define the area of influence. From the economic angle, the communities demand to be transportation providers and thus be part of the supply chain and obtain permanent benefits from mining activities.  Although an agreement was reached in October 2021, disagreements arose as to when the communities would start operations and the amount of economic compensation.

These apparently contradictory demands (environmental and economic) are in fact expressions of communities’ self-determination. From their point of view, participation is not simply the right to be heard; it implies having a direct influence on the activity, so they can participate in the economic cycle of the mine under appropriate environmental conditions. However, due to the lack of agreement between the company and the communities, MMG decided to progressively suspend operations. It claims that it has suffered 400 days of stoppages due to road blockades since it began operations. In the last months, state officials, companies and community leaders have continued negotiations, but no agreement has been reached.

Localising business and human rights standards

In this case, although the company shows a commitment to international human rights standards, MMG only relied on the formal approval of the modification of the EIA, strictly following the requirements of national authorities. In fact, the company did not pay sufficient attention to local dynamics and participation.

The policies approved by the Chinese authorities themselves state that their companies must follow a high standard of citizen participation. For example, the Guide on Social Responsibility for Chinese International Contractors (2012) expressly states that companies should “consider the needs of communities” and “actively communicate project-related information.” Furthermore, the Guidelines for Environmental Protection in Foreign Investment and Cooperation (2013) states that enterprises should “fully take into account the impacts of their development and infrastructure as well as production and operation activities on the social environment” (Art. 9). Likewise, the Guidelines for Social Responsibility in Outbound Mining Investments (2014), incorporates the duty to “consult directly with potentially affected communities, with the objectives of ensuring that the development of mining projects promote respect for their rights, culture, and livelihoods” (Art. 3.4.4). In addition, it establishes that (Art. 3.4.5): “previous to any mining operation, the free, prior and informed consent of the affected communities must be sought”. Meanwhile, in the Due Diligence Guidelines for Responsible Mineral Supply Chains the absence of consent from local communities is a high risk of misconduct (Art. 5.2.1). Moreover, the recently approved Chinese Guidelines for Green Development in Foreign Investment and Cooperation states that companies should apply stricter standards than those of governments.

Although these are not legally binding norms, these standards can generate legal effects by reinforcing principles such as due diligence and the duties of participation and transparency, which are recognised in the legal systems of those countries that receive investment, including Peru. The problem arises in differing scope given to these principles . For example, from the company’s perspective, it may not be clear what level they should consider of “community needs”, as outlined in the Guide on Social Responsibility for Chinese International Contractors. While companies and governments are more restrictive in the application of these standards, peasant organisations seek to maximise and extend the meaning of participation to have significant decision-making power over the outcome of the project. The Las Bambas case shows that many local communities are not merely “standard takers” or passive “standard beneficiaries”. They are in fact “standard makers” as they appropriate and extend the meaning of these standards under their own conception of self-determination. Therefore , international investments should make efforts to continuously cooperate with local organisations to contextualise international standards while governments should prioritise social inclusion in rural areas, which are usually neglected. This is particularly relevant in contexts of profound inequality in which colonial legacies still reproduce patterns of exclusion, lack of access to basic services and discrimination.

Roger Merino is a Ph.D., M.Sc. from International Policy at University of Bath, UK. He is Associate Professor at the Universidad del Pacífico (Lima, Perú).

For further writing by this author:

The Politics of Localizing Human Rights: Chinese Policies and Corporate Practices in Latin America

For other writing about Latin America from Business and Human Rights Journal:
Business and Human Rights in Latin America: A Systematic Review of Scholarship

Jena Martin, Karen E Bravo and Tara Van Ho (eds), When Business Harms Human Rights: Affected Communities That Are Dying to Be Heard (New York, Anthem Press, 2020)