Facts and Norms Institute concludes a submission to the United Nations about mercury, gold mining, and obligations deriving from the Minamata Convention in relation to Brazil, Peru, and India
Environmental police deactivates illegal gold mining ferries in Rio Novo, border of the Jamanxim National Forest, Brazil. Felipe Werneck/Ibama, 2017 (Wikimedia Commons)
In preparation for the 51st session of the UN Human Rights Council in September 2022, the United Nations Special Rapporteur on toxics and human rights invited stakeholders to collaborate with information about mercury, gold mining, the Minamata Convention and human rights.
FNI responded to the invitation with a collective effort by researchers Henrique Napoleão Alves, Victoria Ruiz Ledesma, Samyuktha Banusekar, and Tádzio Peters Coelho.
The resulting report, “Mercury, Gold Mining, Human Rights, and the Minamata Convention: Input to the United Nations regarding Brazil, India, and Peru”,covers important topics such as controls on mercury, illegal trade, mercury contamination, and illegal gold mining.
Brazil
In Brazil, illegal large-scale mining disguises as artisanal and small-scale mining (ASGM), particularly in the Amazon region.
The illegal enterprises often employ workers in informal settings which can even amount to contemporary slavery.
Recent years have been characterized by reports of State organs of control and oversight being weakened, as environmental degradation, illegal mining and the invasion of indigenous land increases.
Despite legislation and control over the acquisition and use of mercury, the substance is frequently purchased in the country. Purchases are powered by illegal mining.
Indigenous communities in Brazil suffer from mercury contamination deriving from the invasion and illegal occupation of their land by miners. This contamination even led to children having their neurological development impaired. One way to avoid further contamination is to fully implement the legislation recognizing indigenous peoples' right to land.
Brazil signed the Minamata Convention and the treaty was promulgated by Decree in 2018. Although there is sufficient technology for the country to adapt its ASGM activities, more efforts are necessary to eliminate mercury pollution.
India
India has not prohibited the import or export of elemental mercury. India does not geologically extract mercury and the commercial mercury needs of the country are met through import.
The Minamata Convention was signed by India in 2014, ratified and went into force in 2018. India has requested a deadline extension for the mercury phase-out, until the year of 2025. India's Foreign Trade (Development and Regulation) Act, 1992, and the Export Import Policy provide necessary instructions and procedures for the trade of mercury and its compounds, which is governed under Articles 3 and 4 of the Minamata Convention.
A remedy available when there is continuous accumulation of mercury at dumping sites is the qualification of these places as contaminated sites. The Ministry of Environment, Forest and Climate Change (MoEFCC) has recognised these contaminated sites. The Ministry also launched initiatives to clean up hazardous waste-contaminated places in the country.
There are no specific constitutional or legal rights, granted to indigenous peoples, to prohibit mercury-based ASGM in their traditional lands and territories.
Peru
Peru has a legal trade on elemental mercury for mining corporations. It is illegal, however, to import mercury without the certification of the Tax Authority and custom officers (SUNAT).
The Ministry of the Environment audits mining corporations and small-scale mining businesses. These agencies eventually supervise the use of chemical inputs in mines, according to the environmental legal standards.
In order to be able to utilize mercury, the mining companies must obtain a permission from the Ministry of Energy and Mining and the certification of environmentally safe standards in mining. Mercury importers are registered by Peru’s customs agency (SUNAT), which manages an import database shared with the Ministry of the Environment.
The trade of mercury can be sanctioned whereas it is linked to illegal mining. Peru criminalizes illegal mining activities under article 307 of its Criminal Code, which prohibits “artisanal mining activities that lack formal authorization”, as well as “illegal trafficking of elements that are useful to informal and artisanal mining enterprises”. Nevertheless, the norms do not mention which “elements” are forbidden.
Illegal miners are a considerable part of the small businesses of Peru. The Peruvian government is promoting a legalization process for these small businesses, so that they can become taxpayers and be part of periodical environmental audits.
Peru signed the Minamata Convention in 2013 and ratified it in 2015, and entered it into force in 2017.
In 2016, Peru’s Ministry of Health implemented a special operation in Madre de Dios to attend civilians and indigenous communities affected by mercury. However, our research efforts found no data on how its budget was applied or how effective the operation was.
According to the recent ombudsman's report of 2021, environmental conflicts related to mining activities represent more than 50 percent of social conflicts in the country.
Article 89 of the Peruvian Constitution recognizes communal property to indigenous peoples, who are fully autonomous of the administration of their land. Peru has also signed and ratified ILO Convention No. 169, therefore, no one can explore nor profit off indigenous peoples’ communal lands without their permission in the country.
However, the government has interpreted the 169 ILO Convention as “soft law” of cultural nature, relativizing the importance of the communities’ right to be consulted about economic activities in their lands. This has led to judicial complaints, which have been partially denied.
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