Neoliberal State: Deregulating Mineral Extraction
Promotion of Investment and Privatisation
Alongside generalised political and economic crises, the 1980s saw stagnation in Peru‟s mining sector partly due to lack of investment and inefficient management of mining SOEs. However, since the 1990s the sector has been revitalised. The recent increase in international capital inflows and a parallel mining boom requires an explanation in terms of both the international and domestic environment.81 In line with three World Bank pillars for a new development strategy, the Peruvian government promoted foreign capital investment in extractive industries (particularly mining) in the country: to create favourable conditions in order to attract investment in mining; to reform the state as a regulator; and to privatise State- owned enterprises (Urteaga, 2011: 24). The Fujimori regime adopted policy reform geared to attract foreign investors and to privatise mining SOEs, making the sector the promoter of economic growth.82 During 1991 and 1992, Fujimori introduced a raft of new legal regulations with the aim to provide judicial protection for investment and tax incentives for foreign investors.83 In early 1991, the Law for Promotion for Foreign Investment (la Ley de Promoción de la Inversión Extranjera, Legislative Decree No. 662) came into force, a piece of legislation intended to encourage foreign direct investment in all economic sectors (Bury, 2011: 82). Another legislative decree for the Promotion for Private Investment (Ley Marco para el Crecimiento de la Inversión Privada, Legislative Decree No. 757) was approved on 13 November 1991. With this decree, the government eliminated obstacles which could generate additional costs for companies‟ economic activities and resource extraction, including a modification of the 1990 Environmental Code (de Echave, 2009a: 297). The
81 For the international context, see Chapter 2.
82 Starting from August 1990, the Fujimori government implemented the stabilisation programmes, called Fujishock, in order to make the country‟s re-entry into the international financial community by confronting hyperinflation and serving external debts. The following decade saw a series of structural adjustment programmes (SAPs) dictated by orthodox neoliberals: trade and financial liberalisation; deregulation of every sectors including the labour market and the land market under the banner of improving market efficiency; privatisation; fiscal reform involving the reorganisation of the SUNAT. For more on the process of SAPs, see Gonzales (1998). For the political and economic context of the neoliberal reform during the 1990s, see Chapter 3.
83 The Fujimori government promulgated 923 decree laws between March 1991 and December 1992 with an
aim to implement neoliberal economic reform under the leadership of then minister of Economy and Finance, Carlos Boloña (Gonzales, 1998: 43).
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regime introduced the Law of Promotion for Investment in the Mining Sector (la Ley de Promoción de Inversiones en el Sector Minero, Legislative Decree No. 708) on 14 November 1991, which was designed to attract investors. The Fujimori administration identified the status of the mining sector as a national priority and modified the process of mining investment, including simplification of the mining concession process (de Echave, 2009a: 297-298). In June 1992, the government approved the TUO (el Texto Ú nico Ordenado de la Ley General de Minería), via Supreme Decree No. 014-92-EM. This regulation combined a series of modifications to the 1981 Mining Law (Ley General de la Minería, D.S. No. 109) and reaffirmed the emphasis on private investment and the smaller role of the state in the sector, while also providing tax stability contracts and incentives (Campodónico, 1999: 17- 19).84 The state signed a fiscal stability contract (contratos de estabilidad tributaria) with 20 companies which were involved in 30 mining projects according to Article 80 of the TUO (de Echave, 2009a: 298-299).85 In line with legal reforms, the government attempted to provide foreign corporations with another form of investment guarantees by making bilateral or multilateral agreements (Bury, 2011: 82). For example, the country ratified the convention of MIGA and entered into a bilateral agreement with 28 countries before 2000 (Bury, 2011: 82- 83). In this way, the Fujimori administration made legal changes favourable to foreign investors in the mining sector, which has become a priority of new development strategy.
As a backdrop of the privatisation policies introduced under COPRI, the Fujimori regime initially sold the state‟s shares in medium-scale private mining companies, such as the
Buenaventura and Condestable mines in the 1991 and 1992, respectively (Campodónico, 1999: 25).86 From late 1992 onwards, mining SOEs were officially put up for public bidding and sold to multinational corporations: Hierro Perú to Shougang in November 1992; during 1993 and 1994, Cerro Verde to Cyprus Amas and Tintaya to BHP, as well as refineries at
Cajamarquilla (to Cominco/Marubeni) and Ilo (to SPCC); and finally Centromín Perú to
Doe Run Perú in 1997 (Campodónico, 1999: 25-27). Multinational companies were actively involved in the privatisation of already existing mines rather than new exploration activities,
84 The TUO is composed of 15 titles, 54 chapters, 226 articles, 15 transitory regulations and 8 final regulations. 85 Of 30 projects, the contract for 15 projects was for 15 years, with 14 others lasting for 10 years and with one
until the company – the Santa María mining company – recovers its investment (de Echave, 2009a: 298-299).
86 Since June 1991 the government started to sell SOEs (mainly primary resources and service sectors,
including gas, electricity and telecommunications) and transfer administrative functions and services to private sectors (Gonzales, 1998: 55-56). As a consequence, 132 SOEs were privatised by 1997 (Gonzales, 1998: 55).
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in which junior companies were the main participants (Campodónico, 1999: 28).87 As a result, „more than 200 mining operations were privatised in the period 1992-2000, generating US$ 1200 million (of) direct income‟, and by 1999 nearly 95 per cent of mining operations in Peru were conducted by private corporations, particularly foreign capital (Bury, 2011: 90; de Echave, 2009a: 294).
As a consequence of the mining boom stimulated by international involvement in mining investment and domestic economic reform, Peru has enjoyed economic growth and macroeconomic stability over the 1990s and 2000s. While the mining sector has only contributed between 4 and 6 per cent to national production over the last two decades, its share in the nation‟s export and FDI has an important significance.88
Mining exports occupied 45.5 per cent of total exports in 1997, increasing to 61.8 per cent in 2006 and to 61.1 per cent in 2010 (ICMM, 2013: 26). During the period 2001-2003, foreign investment in the mining sector made up 37 per cent of total FDI (Bebbington, et al. 2007: 5). In addition, the proportion of FDI in the mining industry increased 65 per cent between 2002 and 2007 (Arellano-Yanguas, 2011: 620). Moreover, the expansion in mineral exports has contributed to the national coffers. In 2010 alone fiscal revenues from the hydrocarbon and mining sectors were 20 per cent of total revenues, of which 60 per cent originated from mining (ICMM, 2013: 24). In the meantime, the country‟s economic structure, being dependent on the export of primary resources, has not been diversified to a significant degree, leading to a structural vulnerability to the international price of minerals. In addition, while profits were unequally distributed, the impact on employment and the local economy turned out to be weaker than expected.89
87 Several MNCs became involved in large-scale mining projects either as part of consortiums with other
domestic or foreign mining companies: e.g Yanacocha in Cajamarca and Antaminas in Ancash. Junior mining companies of Canada in particular were actively involved in the exploration of new mines: Canadian capital invested in Peru amounted to approximately US$ 8 billion, of which the mining and financing sectors are the most important: there are 90 Canadian mining companies working in Peru, most of them are junior (i.e. at anexploration stage). See „Inversiones canadienses en Perú suman casi US$ 8,000 millones‟, Gestión, 28 September 2013.
88 The proportion of mining revenues as part of GDP was 4.4 per cent in 1990, 6.6 per cent in 2005 and 4.9 per
cent in 2011 (ICMM, 2013: 26).
89 On the impact of mining activities on local the population and development, see Chapter 5: the case of
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Deregulation of Territory/Land
Against the backdrop of a favourable investment environment, Peru has seen a mining boom since the 1990s. Peru is an important contributor to the production of various mineral resources such as copper, zinc, gold, tin and silver („the Map of the Mining Project‟, a Ministry of Energy and Mining‟s publication on the mining projects, both in exploration and production, MINEM 2013).90 Mining operations can be divided into three categories: large-, medium- and small-scales.91 Large-scale mining projects in Peru mainly concentrate on two metals – copper and gold. The Swiss-based multinational company Glencore Xstrata has been involved in several large-scale copper projects in central and southern Peru, including: Las Bambas (a US$ 4.23 billion project in Apurímac department); an important shareholder of the
Antamina mines of the Compañía Minera Antamina (CMA) (the current portfolio comprised of BHP-Billiton (33.75 per cent), Xstrata (33.75 per cent), Teck Corporation (22.5 per cent), Mitsubishi (10 per cent) in district of San Marcos, Ancash) and Antapaccay (a US$ 1.5 billion invested in Espinar province, Cusco).92 Another important copper investment is the Toromocho project (a US$ 4,832 million operation dominated by Chinese capital, Minera Chinalco Perú S.A.) in the department of Junín (district of Morococha, Yauli province).93
90 In Latin American terms, Peruvian production by volume of gold, zinc and tin ranked first and copper and
silver second. At the international level, gold occupied sixth place and zinc, tin, copper and silver each ranked third(see „the Map of the Mining Project‟ [MINEM, 2013], available at
http://www.minem.gob.pe/minem/archivos/file/Mineria/PUBLICACIONES/MAPAS/2013/MP2013%20- %20BR.pdf).
91 There are also artisanal and small-scale mining operations conducted using low-level technology and capital
investment. While this activity provides important employment opportunities for poor miners, it has become a serious challenge for the government due to its negative impact on the environment and precarious labour conditions. The issue of small-scale mining is beyond the focus of this dissertation, but increasing numbers of policymakers and academics have devoted attention to it recently, particularly the use of mercury in gold extraction and its impacts on health and environment (Gardner, 2012; Ashe, 2012). The incumbent Humala government made an effort to regulate small-scale gold mining activities in the Peruvian Amazon, particularly in Madre de Dios department, by ordering the registration of artisanal mining operation in February 2012, which caused a clash between small-scale miners and police, leaving three people dead in March the same year (Gardner, 2012).
92 On 13 April 2014, Glencore Xstrata announced that it had sold the Las Bambas mines to a Chinese
consortium (Minmetal Corp. Ltd. (62.5 per cent); GuoXin International Investment Corp. Ltd. (22.5 per cent); Citic Metal Co., Ltd. (15 per cent)) for US$ 5.85 billion. See „Glencore Xstrata vende Mina de Cobre Las Bambas en US$ 5,850 millones‟, Gestión, 13 April 2014.
93 Increasing demands for minerals in China created its search for mineral investments around the world. Four
Chinese mining companies – Chinalco, Minmetals, Shougang and Zijin – are expected to invest more than US$ 7.4 billion in various projects between 2013 and 2017 (Els, 2012, „Chinese miners to pour $7.4bn into Peru‟, mining.com). Chinese capital has invested in other mining projects in Peru, such as Shougang Hierro Perú‟s investment in the Marcona iron mine in Ica (US$ 1,480 million for the project‟s expansion), a US$2.5
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The Cerro Verde copper project entered into its second phase of operation ($US 4.4 billion) in Arequipa (construction for expansion started in 2013 and its full production is expected to initiated from 2016),94 while Yanacocha‟s expansion plan of the gold mining project Conga
(US$ 4.8 billion) is temporarily suspended due to the opposition of local residents since 2011.95
As a consequence, more than 20 per cent of national territory is currently under mining concessions (CooperAcción, 2013).96 Nearly a third of departments have more than 40 per cent of their territory under mining concessions. In Moquegua more than two thirds of its territory is affected in this way (75.68 per cent), in Apurímac (66.45 per cent) and La Libertad (63.92 per cent).97 Alongside decree laws and tax incentives designed to promote mining investment, other reforms have been carried out with an aim to reduce barriers which were considered as unfavourable to investment conditions. Regarding mineral extraction, the state has the right to exploit natural resources and it is the state which concedes the authority for mineral extraction to a third party. However, while the mining concession contains the right to explore and exploit the subterranean minerals, it does not include the right to the land where mineral deposits are located.98 In 1995, the Land Law (Ley de Promoción de la Inversión en las Actividades Económicas en la Tierras del Territorio Nacional y de las Comunidades Campesinas y Nativas, or simply Ley de Tierra, Law No. 26505) was passed and facilitated a subordination of communal land property to mining or energy projects (Pinto,
billion El Galeno project by Lumina Copper S.A.C. (a consortium of Minmetals Corporation [60 per cent] and
Jiangxi Copper [40 per cent]) in Cajamarca. In addition, Rio Blanco copper project (US$ 1.5 billion) is invested by Zijin mining consortium (Zijin Mining Group [45 per cent], Tongling Nonferrous Metals Group [35 per cent] and Xiamen Construction and Development [20 per cent]) in Piura, despite a temporary suspension of its development. See „Empresas chinas son los nuevos actores de la minería peruana‟, El Comercio, 15 April, 2014.
94 See „Cerro Verde Copper-Molybdenum Mine, Peru‟, available at http://www.mining-
technology.com/projects/cerro-verde-copper-molybdenum-mine/ (accessed 10 August 2014).
95 Cajamarca is one of the leading departments for gold production due to the presence of the MYSA (Minera Yanacocha S. A.)mining complex. For the implication of MYSA‟s mineral extraction in Cajamarca, see Chapter 5. The mobilisations against MYSA‟s recent Conga project will be treated in detail in Chapter 6.
96 By June 2013, there were 60,647 mining concessions at national level, occupying 21.02 per cent
(26,752,220.08 hectares) of national territory (CooperAcción, 2013, „Concesiones Mineras y Conflictos‟,
available at http://www.cooperaccion.org.pe/Descargas-Infografias/13-12-12_Infografia13OCM.pdf).
97 Some 57.79 per cent of the territory in the department of Ancash is under mining concession, 57. 04 per cent
in Tacna, 53.83 per cent in Lima, 53.28 per cent in Arequipa, 52.33 per cent in Huancavelica and 45.17 per cent in Cajamarca (CooperAcción, 2013,„Concesiones Mineras y Conflictos‟).
98 „The mining concession transfers the right to the exploration and exploitation of conceded natural resources
to the title holder… The mining concession is a property distinct from the land where minerals are located‟ (Texto Ú nico Ordenado de la Ley General de Minería, Article 9: my translation).
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2009: 89). Article 11 of the law requires two thirds of votes in agreement at a general assembly in which community members participate when a mining company intends to access communal land. In 1996, the regulation of the Land Law officially recognised the process required for access to communal lands and stipulated that a mining company should make adequate compensation for land use in the case of its failure to strike a direct agreement with the community (de Echave, 2009a: 314).
Mining and Sustainability in Peru
Sustainable Mining
Since the 1970s increasing attention has been devoted to the relationship between development and the environment. Within the international development community, „sustainable development‟ has become a dominant catch-all term since the 1990s, despite its vagueness.99 Regarding the mining sector, the scope of mineral extraction and its use of advanced technology have raised many concerns over its impact on human health and the environment.100 In the meantime, decision making regarding mineral extraction has been highly concentrated on the central government since rights to exploit minerals legally belong to the state.101 However, increasing pressure from international institutions and multinational capital to reduce state intervention in resource extraction multiplied the activities of various non-state actors in terms of becoming involved in decision-making processes, alongside „the growing relevance of transnational legal regimes for investment, such as IFC and MIGA, decision-making in the mining sector‟ (Himley, 2010: 3272). Simultaneously, an increased demand and pressure for accountability on the part of mining operations came from „national and international NGOs, legal agencies, and individual lawyers, a globalizing media‟ who werecommitted to sustainable development (Ballard and Bank, 2003: 289). There are several
99 By the term international development community, I mean international development institutions,
organisations, including IFIs, development banks, national and international development NGOs, national development agencies, academics, etc.
100 The development of modern technology and its various impacts will be examined later in the chapter. 101 „Natural resources, renewable or non-renewable, are patrimony of the Nation. The state is sovereign
authority in their utilization. The Act determines the conditions of their use and granting to private individuals. Such concession grants the title-holders a real right subject to those legal regulations‟ (See Article 66, Chapter II Environment and Natural Resources, 1993 Constitution, available at
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international and national NGOs which are concerned with the negative impact of mining activities on the environment and local communities: the U.S.-based Earthworks, OXFAM America, Mining Watch Canada, Mineral Policy Institute (Australia), the region-wide OCMAL (the Obersevatorio de Conflictos Mineros de América Latina) and the Lima-based CooperAcción, Red Muqui, and Cajamarca-based GRUFIDES, and so on.102 Some of these organisations became involved in a campaign designed to promote sustainable mining operations and to protect the environment and communities affected by mineral extraction: e.g. the Earthworks‟s „No dirty gold campaign‟ and Mining Watch Canada‟s involvement in the „Open for Justice‟ campaign.103
As Ballard and Bank elucidate, „[A] loose international alliance of environmental, human rights, and indigenous rights NGOs have been able to direct attention to particular mining projects through a series of campaigns‟ (2003: 304). The activities of these NGOs played a certain role in promoting policy changes in mining companies concerning social responsibility and environmental sustainability, despite the former‟s personnel and financial resources limitations (Ballard and Bank, 2003: 304).
Faced with pressure and the opposition to mineral extraction from civil society, the international mining industry sector has devoted increasing attention to sustainable mining
102 Earthworks is „a nonprofit organization dedicated to protecting communities and the environment from the
adverse impacts of mineral and energy development while promoting sustainable solutions‟ and is comprised of two organisations which were integrated in 2005: Mineral Policy Center (created in 1988) and the Oil and Gas Accountability Project (founded in 1999) (see http://www.earthworksaction.org/about). Mining Watch Canada is „a pan-Canadian initiative supported by environmental, social justice, Aboriginal and labour organisations from across the country‟ and created in 1999 with an aim to „address the need for a co-ordinated public interest response to the threats to public health, water and air quality, fish and wildlife habitat and community interests posed by irresponsible mineral policies and practices in Canada and around the world‟ (see
http://www.miningwatch.ca/about-us-1). Mineral Policy Institute was founded in 1995 „in response to a recognised lack of capacity and expertise to engage in mining issues, particularly where Australian mining companies were working overseas without adequate legislation, regulation and monitoring‟ (see
http://www.mpi.org.au/about/). OCMAL was a product of an increasing concern about mining activities across Latin America since 1990s and more directly concerning the meeting of various organisations in Oruro, Bolivia in 2007. The goal of the OCMAL is to protect communities and population who are affected mining activities in the region. For more on the Observatorio, see http://www.conflictosmineros.net/?view=featured. For Peruvian NGOs, see Chapter 6.
103 The „No dirty gold‟ campaign was launched by the Earthworks, „an international campaign working to
ensure that gold mining operations respect human rights and the environment. The No Dirty Gold campaign seeks to educate consumers, retailers, manufacturers about the impacts of irresponsible gold mining, and to enlist their support to persuade the mining industry to clean up its act‟ (see the Earthworks website, available at http://nodirtygold.earthworksaction.org/about_us). The „Open for Justice‟ campaign aims „to allow those who have been harmed by the international activities of Canadian mining companies to come to seek justice in Canada‟, in which Mining Watch Canada participated (see the Mining Watch Canada website, available at