CEDHA vs. Xstrata Copper

Date filed

1 June 2011

Keywords

Environment

Countries of harm

Argentina

Current status

No resolution

Sector

Mining

NCP

NCP Argentina

Allegations

CEDHA has alleged that Australia based Xstrata Copper (now GlencoreXstrata) is affecting glaciers and permafrost in two of its operations in Argentina, the El Pachón and Filo Colorado projects.

The complaint, filed at the Australian NCP, is based on two CEDHA reports that revealed extensive environmental impacts by the El Pachón and Filo Colorado projects to glacier environments.

According to the complaint, a map produced by the consulting firm URS for Xstrata Copper revealed the presence of over 200 rock glaciers and 20% permafrost in El Pachóns vicinity. Impacts at Filo Colorado can be easily seen in satellite imagery of the area that is available publicly on programs such as Google Earth. A recent official site visit by the local authority and the National Glacier Institute also affirmed CEDHAs claims.

Xstrata, however, has refused to admit to the presence of any glaciers at either of the project sites.

Following the passage of Argentina’s National Glacier Protection Act, Xstrata filed an injunction request to the federal courts in Argentina, requesting that the Act be declared unconstitutional.

The complainants allege that if the El Pachón project moves forward, as planned in 2013, the pit area will destroy rock glaciers and permafrost. Projected waste pile sites also include rock glaciers and permafrost zones.

The complaint also points to the poor scientific quality of Xstratas impact assessment as well as the companys unwillingness to engage in a solution.
CEDHA requests that the case be dealt with by the Australian NCP, in lieu of the Argentine NCP, and that the Australian NCP use its good offices to ensure that Xstrata repairs damage to glaciers and avoids all future damage.

Relevant OECD Guidelines

Outcome

After consulting with the Argentine NCP, the Australian NCP decided (based on the location of the actors involved, the place of operations, and the language of operations) that it would be best to engage the Argentine NCP. The Australian NCP said it would stay involved and continue to offer its good offices.

After conducting an initial assessment that involved meetings with both CEDHA and Xstrata Copper, the Argentine NCP accepted the case on 25 October 2011. Since then, the case has suffered innumerable delays, largely due to Xstratas ambivalence as to whether it would engage in NCP-facilitated mediation.

The parties were scheduled to meet to discuss logistics, timeframe and expected outcomes, including CEDHAs proposal to work collaboratively on drafting a Protocol for Mining Activity in Glacier Territory. This idea moved forward until Xstratas legal team obtained victory in federal courts regarding the temporary suspension of parts of the National Glacier Act.
Xstrata subsequently stalled engagement in the NCP process. The federal court decision was reversed in 2012, placing Xstrata once again in contravention of Argentinas glacier law, which is fundamental to this case.

The Argentine NCP has changed key NCP personnel several times since accepting the case, complicating matters. This has been exacerbated by internal delays in maintaining continuity with administrative responsibilities of the NCP.

After more than two years passed with little action from the NCP, in October 2013, the Argentine NCP finally held a meeting with GlencoreXstrata representatives. The NCP then requested a meeting with CEDHA, at which time it presented the case information to the new NCP members (a repeat of the original meeting in 2011).

In a September 2013 letter, CEDHA urged the company once again to address glacier impacts at its El Pachón and Filo Colorado projects. CEDHA also requested that the UK, Swiss and Australian NCPs use their power of good offices to engage GlencoreXstrata at the headquarters level and encourage them to consider mediation. The NCPs declined to do so, but did contact the Argentine NCP to offer their assistance in dealing with the case. The Argentine NCP declined their offer, and the UK, Swiss and Australian NCPs took no further action.

Unable to get GlencoreXstrata to come to the table, the Argentine NCP finally issued a final statement closing the case in October 2014. In its statement, the NCP laments GlencoreXstratas refusal to engage in mediation. The case highlights the weakness of NCPs that refuse to make determinations in cases or use other tools at their disposal (such as fact-finding) to contribute to dispute resolution. The Argentine NCPs refusal to accept the offer of assistance from other NCPs once again raises concerns about cooperation among NCPs and highlights the need for more active home-country NCP involvement.