The battle over the viability of the Crucitas gold mine in northern Costa Rica took a new course this week.
On Friday, April 16, the judges of the Constitutional Chamber of the Supreme Court (Sala IV), in a 5-2 vote, ruled that Industrias Infinito S.A., the Costa Rican subsidiary of the Canadian-based mining company Infinito Gold Ltd., can continue with all phases of the open-pit gold mine.
Last week’s ruling came nearly 18 months after the court received the first petition against the project on Oct. 20, 2008. The court ruled that based on the information that it had received, the mine does not violate the constitution’s guarantee of a healthy and ecologically balanced environment.
Now gold mine opponents are taking their case to the Administrative Contention Tribunal in hopes of defeating the project based on legal inconsistencies relating to the mine’s environmental impact studies.
Immediately after the high court ruling – a decision that nullified 18 complaints against the mine – members of the Association for the Preservation of Wild Flora and Fauna (APREFLOFAS) requested that the administrative tribunal place a stop order on the mine.
A judge with the court accepted the petition, which effectively halted movement on the project for three business days while challengers to the project prepared their case.
The following Wednesday at 4 p.m., members of APREFLOFAS presented the document detailing their arguments against the Crucitas gold mine to the judges of the administrative tribunal. Judges have until the beginning of next week to decide whether to extend the order and continue to block work at Crucitas, or to remove the motion and allow the project to advance.
APREFLOFAS claims that the Crucitas mine will cause irreparable damage to the area’s natural environment and that the approved environmental impact studies are not valid; this was also a central argument of mine opponents during the Sala IV’s public hearings in November 2009.
According to APREFLOFAS, the nearly 200 hectares of trees that Industrias Infinito must clear in order to build and operate the gold mine will destroy endangered yellow almond trees, which are also the principal food source of the critically endangered great green macaw.
APREFLOFAS’ motion before the administrative tribunal also claims that mining chemicals will affect the area’s water and air.
During gold mining, cyanide is used to extract gold from ore, and APREFLOFAS claims the toxin will be spread through airborne dust particles as well as rain runoff, causing severe negative impacts on air and drinking water quality in northern Costa Rica.
Mine opponents also assert that chemicals could enter and negatively impact the Río San Juan, which forms the border between the two countries and is an important source of transportation and food for northern zone residents. The mine is located 4 miles from the river.
During the November 2009 public hearings before the Sala IV, researchers with the National Groundwater, Irrigation and Drainage Service (SENARA) denied that harmful chemicals would reach the Río San Juan. At Crucitas, SENARA officials said, groundwater does not flow towards the Río San Juan, also adding that the mine would not affect groundwater sources in the area.
Industrias Infinito documents claim that cyanide pollution should not be a part of the equation because the company plans to install a system called Cyplus CombinOx. According to the mining company, this system captures the cyanide from the mine and drains the chemical into steel tanks through an enclosed piping system, thus preventing it from entering the air and water.
But APREFLOFAS Executive Director Gino Biamonte doesn’t buy that installing this technology will solve the pollution problem.
“That’s their argument, but they neglect the fact that there is a tectonic fault beneath this zone,” Biamonte said. “What happens when that fault trembles and cracks the tanks and pipes in the system?”
Several environmental groups have backed APREFLOFAS’ argument, including Preserve Planet and UNOVIDA. All three organizations told The Tico Times this week that their strategy is to hold a public hearing at which expert witnesses can testify against the mine and demonstrate its environmental and health risks.
Members of the groups are contacting scientists from Costa Rica’s public universities to aid their case.
For the moment, Industrias Infinito and Infinito Gold are not required to present anything to the administrative tribunal. When The Tico Times requested a comment from a mining representative, a secretary informed the newspaper that the company’s spokesman in Costa Rica, José Andrés Soto, was busy with meetings this week.
More Legal Hurdles Await
In October 2008, Oscar Arias signed an executive decree declaring that the open-pit gold mine in Crucitas was in the “public interest,” a move that gave Industrias Infinito the legal legs it needed to begin construction and operation of the mine.
Alvaro Sagot, an environmental lawyer, plans to challenge the legality of this decree.
Costa Rica’s forestry law states that in order for a project to be classified as in the public interest, thus allowing for the cutting of trees that would otherwise be protected, a cost benefit study must be completed.
According to the law, the study must establish that “the proposed activities bring social benefits greater than the socio-environmental costs that they provoke.”
Industrias Infinito’s documents claim that the Crucitas gold mine will directly employ 260 people and create 1,000 indirect jobs in Costa Rica. The same document asserts that the mine will generate $329.6 million for Costa Rica over the 10-year duration of the project.
But during the Supreme Court hearings in November 2009, Industrias Infinito’s lawyer could not produce an officially approved cost benefit study.
“This is one of the most important aspects of the discussion,” Sagot said. “Without that study, this project cannot be declared of public interest. And if the public interest decree falls, everything falls.”
University of Costa Rica geologist, Allan Astorga, has found what he believes to be another legal shortcoming.
The most recent environmental viability study for the Crucitas mine was issued in December 2005. The study described a project in which 126.4 hectares of land would be cleared in order to dig a 20-meter deep pit.
In 2007, the company requested modifications to the mine. The area where mine would be built shrank to 50 hectares, but the depth of the pit grew to 60 meters.
The change, Astorga argues, should have necessitated a new environmental impact study, which was never done.
Still, the National Technical Secretariat (SETENA) of the Environment, Energy and Telecommunications Ministry, the agency charged with reviewing the environment impacts of proposed projects, approved the modifications.
“The project is different now and it will generate new impacts that were never considered in the first environmental impact study,” Astorga said.
Sagot and Astorga are preparing their cases for the administrative tribunal and said they will present the documents to the judges within the next few days.
All of the arguments will be joined under APREFLOFAS’ initial motion. Judges will analyze each complaint to decide if the notion that Crucitas was given a legally faulty thumbs-up is, in fact, true.
“If my calculations are correct, the magistrates of the Sala IV are going to say that many of the issues in the case are matters of legality,” Sagot said. “The Sala IV doesn’t look for legality. They look for constitutionality, and most of them found it. That’s why we are in the administrative courts, challenging the project’s legality.”