[Page 1253]
THE INTERNATIONAL CENTRE FOR THE SETTLEMENT OF
INVESTMENT DISPUTES
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In the Matter of Arbitration
Between:LUPAKA GOLD CORP.,
Claimant,
and
THE REPUBLIC OF PERÚ,
Respondent.
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: Case No. ARB/20/46
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- - - - - - - - - - - - - - - - -x Volume 5
HEARING ON THE MERITS
Friday, March 31, 2023
The World Bank Group
1125 Connecticut Avenue, N.W.
Conference Room C3-150
Washington, D.C.
The hearing in the above-entitled matter
came on at 9:27 a.m. before:
PROF. JOHN R. CROOK, President
MR. OSCAR M. GARIBALDI, Co-Arbitrator
DR. GAVAN GRIFFITH KC, Co-Arbitrator
[Page 1254]
ALSO PRESENT:
ICSID Secretariat:
MS. LUISA FERNANDA TORRES
Secretary to the Tribunal
Realtime Stenographers:
MS. MARJORIE PETERS
Registered Diplomate Reporter (RDR)
Certified Realtime Reporter (CRR)
Worldwide Reporting, LLP
529 14th Street, S.E.
Washington, D.C. 20003
United States of America
SR. LEANDRO IEZZI
SR. VIRGILIO DANTE RINALDI, S.H.
D.R. Esteno
Colombres 566
Buenos Aires 1218ABE
Argentina
Interpreters:
MS. SILVIA COLLA
MR. DANIEL GIGLIO
MR. CHARLES H. ROBERTS
[Page 1255]
APPEARANCES:
On behalf of the Claimant:
DR. MARC VEIT
MR. JAIME GALLEGO
MR. LUIS MIGUEL VELARDE SAFFER
MS. GUILLERMINA HUBER
MS. STELA NEGRAN
Lalive (London) LLP
9 Cloak Lane
London EC4R 2RU
United Kingdom
MR. TIMOTHY L. FODEN
Boies Schiller Flexner, LLP
5 New Street Square
London, EC4A 3BF
United Kingdom
Representing Lupaka Gold Corp.:
MR. GORDON ELLIS
MR. LUIS FELIPE BRAVO
MR. JULIO CASTAÑEDA
[Redacted]
[Page 1256]
APPEARANCES: (Continued)
On behalf of Respondent:
MS. VANESSA RIVAS PLATA SALDARRIAGA
MR. JHANS PANIHUARA
Ministerio de Economía y Finanzas
MR. ERICK VARGAS GUEVARA
Presidencia del Consejo de Ministros
MS. ESPERANZA MOLLA LEÓN
Ministerio de Energía y Minas
MR. PAOLO DI ROSA
MR. PATRICIO GRANÉ LABAT
MR. TIM SMYTH
MR. BRIAN BOMBASSARO
MS. ANA PIRNIA
MS. BAILEY ROE
MR. ANDRÉS ÁLVAREZ CALDERÓN
MS. LAURA ARBOLEDA
MS. GABRIELA GUILLÉN
MS. EMILY BETANCOURT
MS. ALEXIA MORÁN
Arnold & Porter Kaye Scholer, LLP
601 Massachusetts Avenue, N.W.
Washington, D.C. 20001
United States of America
MR. HUGO FORNO FLÓREZ
MR. JAVIER BUENO
J&A Garrigues, S.l.p.
Av. Víctor Andrés Belaúnde
332, Oficina 701
San Isidro - Lima
Republic of Perú
[Page 1257]
On behalf of the non-disputing parties:
MR. SCOTT LITTLE
Director and General Counsel
MS. KRISTA ZEMAN
Deputy Director and Senior Counsel
MR. CHRIS KOZIOL
Counsel
Trade Law Bureau
Global Affairs Canada
Lester B. Pearson Building
125 Sussex Drive
Ottawa, Ontario
Canada, K1A 0G2
[Page 1258]
C O N T E N T S
PAGE
PRELIMINARY MATTERS...................................1259
WITNESSES:
ANDRES TRIGOSO
Direct Examination by Mr. Grané...................1264
Cross-Examination by Mr. Gallego..................1265
Questions by the Tribunal.........................1343
NILTON CÉSAR LEÓN HUERTA
Direct Examination by Mr. Grané...................1349
Cross-Examination by Mr. Gallego..................1350
Questions by the Tribunal.........................1399
MIYANOU DUFOUR VON GORDON
Direct Presentation...............................1416
Cross-Examination by Mr. Foden....................1456
Questions by the Tribunal.........................1559
CONFIDENTIAL SESSION: (None)
[Page 1259]
P R O C E E D I N G S
PRESIDENT CROOK: Okay, with that, let's
open this fifth session of the hearing in the case.
We face a threshold procedural issue. The
Tribunal is mindful of the e-mails we received rather
late last night, and has discussed them beginning
rather early this morning.
The Tribunal must inform you, we are simply
not in a position, because of medical concerns that
we've tried to make clear throughout the course of
this hearing, to extend the hearing today. So I'm
sorry, that is just not something that is possible for
us to do.
That said, we're then left with a situation.
We understand that Respondent's wish is that a couple
of their witnesses travel over the weekend, but again,
that's a challenge, but it's not a challenge the
Tribunal has created.
We face this situation because of choices
that have been made in allocating time for some rather
lengthy cross-examinations. So, we've simply reached
the point where we have a last day, and if these
[Page 1260]
witnesses are not going to be available beyond today,
then I think we have a problem, because it is
incumbent upon the Respondent, under the rule, for
securing the appearance of its own witnesses in the
hearing when they have been called. That's 19.5 of
PO-1.
So I'm afraid we're going to have to throw
the ball back in your court. I respect the effort
that was made obviously late at night to try to find a
solution. But for fairly compelling medical reasons,
we are simply not able to accommodate that request.
I'm sorry, we are where we are, so we put it back to
you.
Now, with respect to witnesses' travel
plans, we obviously don't control that, but I think it
might behoove Respondent to take a look at that issue
and see whether there is some room to give because
they do have the obligation under the rule to assure
the appearance of their witnesses.
So I'm sorry, but that's where we are.
MR. GALLEGO: Thank you, Mr. Chair.
Just one comment on that.
[Page 1261]
Today we are, as was announced in the
e-mail, going to start with Mr. Saavedra, and then
move on to Ms. Dufour.
Now, from our perspective, we will be having
a bit of clearer picture on whether we actually do
need to cross-examine Mr. León during the course of
the day; and therefore, this issue may, may go away.
We estimate around mid-afternoon will be a time when
we can determine that.
PRESIDENT CROOK: Well, that's obviously
your call, sir.
Mr. León is in some respects one of the few
witnesses before us who actually has some firsthand
knowledge of these events. A lot of the other
testimony we've gotten has been derivative from what
Mr. León has said to people, and the reports he has
written. So that's--you know, it's your call, but his
testimony is of a witness who has some firsthand
experience.
MR. GALLEGO: Many thanks. We'll take that
into consideration.
PRESIDENT CROOK: All right. Shall we move
[Page 1262]
to the first witness? This is Mr. Saavedra, who I
understand is no longer a government official; is that
correct?
MR. GRANÉ: That's not the case,
Mr. Chairman. He is a government official.
PRESIDENT CROOK: He is now a government
official. Okay.
ESTEBAN SAAVEDRA MENDOZA, RESPONDENT, WITNESS, CALLED
PRESIDENT CROOK: Good morning, sir, and
welcome. Can you hear me?
THE INTERPRETER: No microphone.
THE WITNESS: Good morning, Mr. President.
I hear you perfectly.
PRESIDENT CROOK: Appreciate your being with
us this morning. You should have before you a--an
affirmation or declaration.
Do you see that, sir? I believe it's a
plastic coated piece of paper. We will find your
witness declaration.
While that's being taken care of--ah, good.
There we are.
THE WITNESS: Thank you.
[Page 1263]
PRESIDENT CROOK: Can you read out loud that
affirmation, please.
THE WITNESS: I solemnly declare upon my
honor and conscience that I shall speak the truth, the
whole truth, and nothing but the truth.
PRESIDENT CROOK: Thank you, sir.
You will remain subject to that undertaking
throughout the proceeding. Now, are you familiar with
the procedure that will be followed? You will first
be asked a short series of questions by counsel for
Perú. You will then be cross-examined by counsel for
the Claimant. You then may be asked some additional
questions by counsel for Perú.
Are you comfortable with that procedure,
sir?
THE WITNESS: Yes, I do feel comfortable,
Mr. President, with the procedure you just outlined.
PRESIDENT CROOK: Thank you.
Now, if at any time, you feel the need to
take a break, let us know, and we will try to
accommodate.
THE WITNESS: I shall do so, sir.
[Page 1264]
PRESIDENT CROOK: Thank you.
All right. Shall we turn to the direct
examination.
DIRECT EXAMINATION
BY MR. GRANÉ:
Q. Good morning, Mr. Saavedra. You have your
witness statement on the table in front of you. It's
dated 15 March 2022. I think you have it in hand.
I'd ask you to look at it quickly, particularly the
last page, and to please confirm that this is your
witness statement in this case, that that is your
signature, and that you ratify the content of this
witness statement.
A. Good morning. What I have here is the
statement by Fernando Trigoso.
Q. Just a second, please.
(Pause in the proceedings.)
THE INTERPRETER: Mr. President, this is the
interpreter. If you could ask Mr. Grané to make sure
he stays close to the mic; otherwise, there's a lot of
extraneous sound.
Thank you very much.
[Page 1265]
THE WITNESS: Yes. This is my statement in
Spanish.
BY MR. GRANÉ:
Q. Would you like to make any correction to
your statement?
A. No.
MR. GRANÉ: Thank you. We don't have any
more questions at this time.
CROSS-EXAMINATION
BY MR. GALLEGO:
Q. Good morning, Mr. Saavedra. My name is
Jaime Gallego. We're going to have a conversation
today. I'm going to be putting questions to you. We
have very limited time.
The questions that I'm going to put to you
will often ask for a yes or no answer. I'll ask you
to please focus on the question, and that you answer
the question very concisely.
Of course, you could elaborate, but I would
ask you to please focus on the question and answer it.
That way, we'll be able to move forward.
I understand that you are a public official
[Page 1266]
today?
A. Yes. I'm the director at the ministry
for--the Affairs of Women and Vulnerable Persons.
Q. I understand that you've read the relevant
parts of the claim, the Memorial and the statement of
Luis Felipe Bravo, the first one, that's what you said
in the only statement that you have made here?
A. I have read, because it was put to me to
prepare for coming here, the statement by Mr. Bravo.
Q. Did you read both of the statements by him?
A. Yes.
Q. Did you not have anything to add in the wake
of the second statement by Mr. Bravo, since you've
only filed one statement?
A. It wasn't for me to answer whether I agreed
or not with Mr. Bravo's statement. He does say some
things which, no doubt through this session, we'll be
able to clarify because he does say some things that
are out of context. He extrapolated, so to speak.
Q. But you decided in due course not to present
a written statement responding to Mr. Bravo's second
statement; right?
[Page 1267]
A. Of course, there is a statement here, the
second one, in which I have said some things regarding
Mr. Bravo's witness statement.
Q. You presented a second statement?
A. Of course. It's right here. Isn't this it?
Q. That is the only statement you've presented
that you have before you.
A. This is the statement that I made after I
read Mr. Bravo's statement.
Q. Of course. Well, let's have certain rules
of the game. There are interpreters who are
interpreting our conversation into English. I'm going
to speak, we'll take a brief pause, then you will
speak and vice versa. We can't be speaking at the
same time.
You will see I'm taking a brief pause, and
I'll ask you to do the same, to make a brief pause
before you speak.
After you filed your statement, Mr. Bravo in
turn presented a second statement, and you did not
present a statement responding to what Mr. Bravo said
in his second statement; correct?
[Page 1268]
A. As regards Mr. Bravo's statement--well, he
made a statement, and then I made a statement, which
is the one that is signed right here.
ARBITRATOR GRIFFITH: Sorry. I've
transgressed.
(Comment off microphone.)
MR. GALLEGO: Thank you, sir. I thought I'd
established that I will--
ARBITRATOR GRIFFITH: He hasn't seen the
second statement.
MR. GALLEGO: I thought I had established
that he had, but maybe I haven't. Thank you for that,
sir.
BY MR. GALLEGO:
Q. Have you seen Mr. Bravo's second statement?
A. Yes.
Q. You were Vice Minister for Public Order of
the Ministry of Interior from October 2019 to [recte:
November] 2020; correct?
A. Yes. I was Vice Minister for Internal Order
from the 31st of October 2018 until the 19th of
November 2020.
[Page 1269]
Q. Very well.
During that time, did you give written
instructions to your subordinates about the social
conflict that had Parán and Lupaka at loggerheads?
A. Written provisions?
Q. Instructions, or any type of
information--say, instructions to your subordinates
about how they should proceed?
A. Perú has many conflicts, and Lupaka, which I
didn't know as Lupaka at the time, I knew it as minera
Invicta, it came to my awareness through the
information that the bureau that looks at conflict
prevention passed on to the Vice Minister.
The Vice Minister then follows up on what he
is told, and then is constantly reporting. The need
for this information is in tandem with the partner of
conflict prevention at the Ministry of Interior to the
partner of Mining and to the office that has to do
with the national police. The information goes along
those two vectors, the information, that is, from the
conflict prevention unit.
Q. So I had asked you about instructions that
[Page 1270]
you gave your subordinates, but you have told me
something else.
You have told me that you received
information constantly regarding this conflict. Have
I understood properly?
A. Yes. I received information on that matter
as on others, and all that one says in those meetings
one must continue monitoring because that is the
function based on the vision of public order that
the--to see to it that it not continue to be a
governability issue, and that's where the function of
the ministry and vice ministry is to give instructions
when it's being reported to them.
If it's said that there's going to be a
meeting on day X, they need to say, well, you're going
to have to attend that meeting on day X.
Q. Did you report to the minister in turn on
this conflict?
A. As is natural, the information that comes to
a Vice Minister has to be reported to the minister.
Q. Did you do so in writing?
A. Yes. Communications that run in tandem,
[Page 1271]
information that goes to the ministry.
Now, in this case, when this meeting came
with Lupaka, I had to communicate to the minister that
it had been addressed. I went to address that case
because I had to address it--they didn't direct it to
me, just as I had to deal with others, other mining
companies, such as Anglo American, Choclon, Bambas, or
politicians who would--or politicians who would come
to have meetings with the minister, and the minister
might not be able to handle it, and he would have one
of the vice ministers, there were two vice ministers
to receive that person who had come to the vice
ministry, for one of the functions of the minister is
to receive people who are seeking protection or who
come to the minister with some matter that
requires--that needs to be addressed.
Q. I understand that you would report to the
minister for him to make the corresponding decisions
with respect to this case; is that right?
A. Yes. The information--well, there's a
meeting of the Council of Ministers on Wednesdays, and
at that meeting of the Council of Ministers, the
[Page 1272]
information that was produced within the Ministry of
Interior has to be reported so that the minister can
then share it with his peers, who are at that meeting
of the Council of Ministers.
So information of this nature, like any
other, should be made known there, because in
addition, if you allow me to, please, a vice minister,
when handling a requirement of this nature, does not
do so alone. He is accompanied by other members who
have--who deal with the matter.
Plus, as a matter of transparency, which is
a national law, the prime minister has access to
that--the meeting that we, the vice ministers have.
They keep tabs on us. It's not just that there's a
meeting and that's it. Rather, there is a follow-up
on what is discussed in those meetings.
That's what I wanted to say.
Q. Thank you very much, Mr. Saavedra.
How often was there discussion of the
Invicta case at the cabinet level?
A. I don't know.
Q. In turn, you would give instructions to your
[Page 1273]
subordinates about how they should proceed within the
Ministry of Interior in relation to this Invicta case?
A. A vice minister doesn't have to set out such
provisions. There is a provision, which is the
regulation on the organization and functioning, and
all public officials are subject to the ROF. And the
director for prevention had to do so, that is the
regulation on organization and functions.
Q. I understand that.
But it's not a legal question. It's a
practical question. You were being sent information,
and then you would forward it to the minister. There
would be discussions, I imagine, to make some
decision. And then, one would have to implement that
decision; therefore, logically, there would have to be
a communication to the subordinates.
Did you give instructions to your
subordinates in relation to this specific case in
terms of how they should proceed?
A. In this specific case, like any other
investment, because we are concerned about investment
in the country, which we as a country need--well, all
[Page 1274]
of us officials who work in the state are obligated to
follow up on and provide instructions when appropriate
based on their authority.
Q. Of course, thank you.
It would be only logical that such
instructions be put in writing?
A. There's not a need to put them in writing.
We come to a meeting like this where people talk and
information is shared and a decision is made. And
then it has to be carried out. It doesn't need to be
in writing.
Imagine, so many cases. Only when the case
so merits, when the situation has gone beyond--and the
situation has gone beyond a certain limit and there's
no action, and you've come to learn about it, and you
need to inform that unit, well, obviously, they're
going to say, we are following up on the case.
Q. Excuse me, but you were vice minister.
That's a very high-level position within the Ministry
of Interior. Your decisions are--or instructions are
not an informal matter, and it's not a small ministry,
the Ministry of Interior.
[Page 1275]
So if you make a decision, your subordinates
within the Ministry of Interior need to know about it.
Isn't it only logical that you would issue a
written decision or at least that there would be some
minutes or a report that would be a written
verification of your decision?
A. What we do are internal notes. Where it is
said that there must be follow-up and there is already
a decision on that, and then one works on that basis.
From the time that one learns of it and then
reports, then the document goes back and says, you
should follow up and report. There's nothing else to
add, just continue monitoring, and following up on the
situation.
That is what's issued, and that is what's
written.
Q. Thank you very much.
And I understand that with respect to this
case, there were some provisions that were pulled
together in minutes or some other--memorialized in
some other form that would reflect your decisions;
correct?
[Page 1276]
A. Of course. There are documents on that.
And there are documents on the meeting of the 24th
where a document was drawn up in order for there to be
prevention on the issues. And that makes traceability
possible.
Q. Likewise, with respect to the decisions of
the minister?
A. With respect to the minister, I don't know.
I'm here to answer for my position as vice minister.
Q. Thank you.
At Paragraph 14--let's try to proceed more
or less quickly. If you want us to look at a document
or your statement, we can do so, but we have very
limited time. If I make reference to your statement,
if you have any doubt about it at any time, we'll take
a look at it.
In your statement, Paragraph 14 says that
there are two vice minister offices, one for internal
order and the other for public security; correct?
A. The Ministry of Interior has two vice
ministries, internal order and public security.
Q. Here, we could have--you could have been
[Page 1277]
much shorter. Instead of repeating the question, you
could have simply said yes, that would help us move
forward a little more quickly. Thank you.
A. Thank you.
Q. We've already established that you were Vice
Minister for Internal Order. I understand that you
are also vice minister for public security, the other
vice ministry from November of 2018 to April of 2019?
A. Yes. If you allow me to--
Q. Wait a second.
You didn't mention it in your statement, and
so the question is: Why?
A. Because there, I went to declare as vice
minister for internal order, and not as vice minister
for public security. In that context I was taken into
account [called upon] as the vice minister for
internal order and not as--because what they make is
an assignment. Until they appoint the person who will
hold the position, senior officials decide that it is
the vice minister or it could have been the secretary-
general.
So it doesn't necessarily have to be so. So
[Page 1278]
I handled it because it was an internal--it was a
matter of--because I acted in my competence as
internal order vice minister, not public security vice
minister.
Q. At any rate from November 2018 to April 2019
you held both vice ministries, both vice minister
positions in the two vice ministries, the Ministry of
Interior?
A. That's right.
Q. And as Vice Minister For Internal Order, I
understand that you were in charge of planning,
directing and supervising the functional activity of
the Ministry of Interior in respect of internal order,
and internal security; correct?
A. Yes.
Q. As part of that function, your duty was to
design and formulate guidelines and strategies to
address social conflict within the scope of your
authority; correct?
A. Yes.
Q. And you were in charge of--or you had the
addition of guiding the State with regard to strategic
[Page 1279]
guidelines relating to social conflict; correct?
A. Yes.
What I'd like to note here in answering your
question is that what the office does that has to do
with conflicts is prevention, and this from a
normative standpoint that is not involved in
intervening in respect of public policy. It has to do
with that part because the part of public policy in
charge of implementation goes through the national
police.
There is confusion. When one begins to
speak of the office of internal order, that it is the
bureau that is to carry out operational plans. No.
They sound the alert. They follow up so that those
who are in charge of the functional responsibility for
responding to that conflict can address such conflicts
within the scope of their authority.
Q. Thank you, Mr. Saavedra.
At any rate, the general bureau for public
order, which was directly under you within the
Ministry of Interior has as the function propose,
conduct and supervised the implementation of public
[Page 1280]
policies, plans, programs, strategies and actions for
preventing and providing solutions to social
conflicts. Is that not so?
I'm reading here directly from a regulation
which we can look at, if you'd like. But I suppose
that you already have experience in this.
Can you confirm that for me?
A. What the general office for prevention does
is alert, communicate, follow the guidelines that
exist when there are dialogues. That is the work that
must be done by the office for prevention.
The strategy is that there is a dialogue.
That dialogue has to continue to provide
communication, and follow-up, as appropriate.
Q. So you don't have a duty to supervise the
application of policies, and providing solutions to
social conflicts?
A. From the normative side, yes. From the
executive side, or in terms of implementation, no.
Q. At any rate, the general office for public
order is in charge of guaranteeing internal order, and
would be supervising the police; is that not so?
[Page 1281]
A. No.
Let me--allow me, please.
The interior sector is made up of the vice
ministries of public security and internal order, and
it has under it the national police, the SUCAMEC which
has to do with weapons. It has to do with
immigration, and it has to do with the firefighters
services.
It's not that the minister is the national
commander of the national police. The aspect of
public policy, its design, supervision, and direction
goes through the ministry.
The public policy when it comes to
implementation, there's a pertinent article of the
regulation, what it says there in terms of the
function, well, it explicitly notes that the public
policy in terms of its implementation corresponds to
the national police of Perú.
Thank you.
Q. Thank you.
Let us turn to Tab 50 at the binder you have
before you. This is what I imagine you have in
[Page 1282]
English first, and then in Spanish. Please look for
the blue page, starting in that blue page, you are
going to have it in Spanish.
Here we are looking for Article 83.3. Do
you have it at page 47?
A. Of the Supreme Decree?
Q. Yes. 04/2017. 2017 so here you have the
Supreme Decree that approves all of the roles of
Article 83.
A. Yes, I do have it here in front of me.
Q. You can see that this office is the one in
charge of proposing, promoting, formulating,
conducting, supervising and monitoring the compliance
of public order policies, and strategies in the
prevention and management of social conflicts, in
coordination with the bodies of the sector. That
would be the Ministry of Interior working with the
Directorate General of Public Order.
As well as designing and executing actions
that contribute to the development of social
organizations, rural and native communities in order
to strengthen their contribution to the prevention of
[Page 1283]
social conflicts, and those related to social peace.
It reports hierarchically to you, the vice minister.
Now, let us look at a different provision.
That we find at 54.
This is the Legislative Decree Number 1266,
Article 8.1. I think you have it in Spanish also.
Here it is referring to your powers. I wanted to show
you 8.1.
You, at page 10 of 19--page 10 of 19, and
there it says that you were in charge of, one, to
propose and lead the internal order policy of the
interior sector in the process of formulating the
general policy to you guaranteeing through the
Peruvian National Police internal order and public
order, to fight against organized crime, the
protection of strategic investments as well as the
surveillance and control of national borders in
accordance with State policy.
I just wanted to highlight that this is
something that you need to do through the national
police of Perú.
So I understand that there needs to be some
[Page 1284]
sort of coordination with the police.
A. I thank you for the question.
Let me explain to you.
Public policies are devised, designed by
those who have the ability to do so within the State,
as stated by the Minister. Specific sectors have to
look into specific policies. The Ministry of Interior
has to develop that type of policies, and that's how
during my tenure, we looked into the public policy
against organized crime, against drugs, against
terrorism.
As to the implementation stages of the
policies; that is within the realm of each sector,
within the area of their powers, public policies, just
not one for the whole sector.
The national policy sometimes works with the
national police, but the part of execution,
implementation, this is related to the national
police.
Q. I thank you, Mr. Saavedra.
So I understand that the national police has
certain autonomy, but that you are determining the
[Page 1285]
policies to be followed by the police; correct?
A. This is not determined by the vice minister,
rather, the Peruvian State, the party that
communicates them also with multisectorial
participation. Because for this, we have a
multisectorial provisional commission that works on
this with all of the sectors. And they have the
obligation to contribute their input to the design,
and then the vice minister puts all of this together,
organizes them, analyzes them.
And then once they all say they agree, this
is approved by the Peruvian State. This is not
approved by the vice minister.
At any rate when--then the policy is
implemented, and as part of the implementation, we
have also the various actors.
Q. If there is any doubt regarding a policy,
let's say that the police thinks that there is a need
to participate, but there is a specific policy
regarding that, shouldn't that be consulted with the
politicians to see whether there is a need to
intervene because of a specific policy?
[Page 1286]
A. I thank you for your question, and let me
explain to you the following.
Once that policy has been consulted, and
compiled, it goes through a system that is called CCV.
The CCV, that is to say, the Council of Vice Ministers
in all of the sectors and all of the ministers work on
this.
If one of the elements that is mentioned
there is related to an internal situation, it is done
at that point in time. It is not done anytime, every
time that this happens. It is done precisely at that
moment.
ARBITRATOR GARIBALDI: (Overlapping speaker
with translation.)
I have a question because I didn't
understand the answer.
MR. GALLEGO: Please.
BY MR. GALLEGO:
Q. I am going to ask you to answer my question.
You determined policies at a general level.
Then the police has to implement these policies. If
the police sees that an intervention, a call to action
[Page 1287]
may be against a policy, then that would be taken up
to your level for you to determine whether the policy
should be observed or whether there is an exception or
an exception could be introduced for that policy.
Is the answer yes or no, and please be
brief?
A. No. That's the way it is.
Because the police is not the only one. We
just--we don't have just one police. We have a
justice system that governs the country. If the
prosecutor that is--that has to do with crime--because
the police looks into crime. If there is a situation,
there has to be a participation by the judiciary, and
also by the prosecutor's office.
Q. So on the one hand, you may have a policy
that has some gray areas, and the police has full
autonomy, full autonomy, to proceed as they deem
appropriate, even if that policy has some gray areas
and there could be some doubt as to the intervention
based on that policy.
Please be brief.
A. Yes. Thank you.
[Page 1288]
Yes, at that point in time, the police does
whatever the law provides for. If at that point in
time, one of the parties feels that they have been
impacted, they resort to the public--to the ministry
or to the judiciary.
Q. Thank you.
I understand that the answer was no, that
the police forces would not go to you. Rather--that
this would not be addressed by you; rather, that the
police would implement their plan in an autonomous
manner.
Is this correct?
A. The national police does not report to the
vice minister; therefore, they do not need to tell me
something like that.
If they consider that something has to be
solved, they can resort to the prosecutor, or--to the
public prosecutor or to the prosecutor.
Q. I am having some issues to understand your
answers, your answers to my questions. You're not
answering clearly. I continue even though we have not
found an answer to this question.
[Page 1289]
You also had as part of your competence to
plan and coordinate the relationship of the sector
with the "rondas campesinas" within the scope of
public order, correct?
A. Yes.
Q. The rural rondas?
A. Yes. We have no control. We just train--we
have no control over the "rondas."
Q. Yes, but you do coordinate the relationship
between the office--the Ministry of Interior and the
"rondas campesinas"?
A. No, it is not the vice minister. The
Directorate in charge of the "rondas" carries out that
relationship with the communities where "rondas"
exist.
So for us to have those conversations with
the rural population, we need to have the rural
community that is represented, and for that, we have
the participation to make sure that there is no
violation of the rights of those people that are
trained.
Q. So let's continue.
[Page 1290]
I understand that you were also part of the
National Peruvian Police between 1969 and 2011; is
that correct? During 32 years?
A. Well, I was a police officer for 32 years,
and 22--and for 22 years, I have been outside the
institution.
Q. So you became colonel, that is the highest
rank; correct?
A. Yes.
Q. That is the highest rank; correct?
A. Yes.
Q. You would agree with me that the police
forces have the end of guaranteeing, maintaining, and
re-establishing internal order; correct?
A. Yes.
Q. They also need to guarantee compliance with
the laws and also the safety of public assets and
private assets; correct?
A. Yes.
Q. And therefore, the police has to also
intervene by force in certain assumptions, in certain
areas?
[Page 1291]
A. Well, once the police hears of a situation,
not all of the events that get to the police will
require a police operation.
Sometimes there is verification of the fact,
and also the determination of the party that is
involved in this. So therefore, just the knowledge
that the police may have does not entail a police
operation.
Q. I thank you, but please listen--listen to my
question.
I told you that the police is compelled to
participate using the force in certain situations; is
that correct? Yes or no.
A. Yes.
Q. Now, let us look at those assumptions or
hypotheses. This has also been part of an expert
report by Dr. Meini, who is an expert in criminal law.
This is--we are going to look at Tab number 8. We are
going to see the report there. This is at page 27, I
believe.
I apologize, I don't think there are pages
there, but this is Paragraph 72.
[Page 1292]
Are you looking at Paragraph 72? Then that
paragraph moves on to--continues on the next page.
Towards the end before the a, b, c, d, e listing, it
says "the National Peruvian Police should resort to
force to...". Then you have a list--you have a list
based on Decree 1186, Article 8.2.
You are aware of this; correct?
A. I am not an attorney. I do not know what
this--what Mr. Meini is mentioning.
Q. Well, you were a colonel with the police,
and you were with the police forces for 32 years. I
imagine that you should know at least when
participation is warranted.
A. Well, I was a police officer. I'm no longer
a police officer. And if you allow me, police
officers--
(Clarification requested by the Realtime
Stenographer.)
SPANISH REPORTER: Please come closer.
THE WITNESS: I was saying that I am not a
lawyer and I cannot refer to Mr. Meini's opinion.
BY MR. GALLEGO:
[Page 1293]
Q. Thank you.
Now, if there is a flagrant crime, item (a), is there an obligation to intervene?
A. Flagrancy?
Q. Yes.
A. Yes, without a judicial order.
Q. Without a judicial order and there is rape.
A. Flagrancy.
Q. There is a flagrant crime, there is a rape in front of a police officer. Does he have to intervene? Yes or no?
A. Yes.
Q. Excuse me, yes or no? There is a flagrant crime, there is a rape in front of a police officer. Does he have to intervene, yes or no? Or the officer has to wait for some judicial order to intervene?
A. I have said I am not a lawyer, but the officer does have to intervene when it is a case of flagrancy.
Q. Now, if there is any danger of a crime being committed, and that is something that the police officer is seeing, should there be intervention or
[Page 1294]
not?
A. You have used the conditional "if."
Q. I'm asking you to answer.
Here it says to prevent crimes and violations, and here I'm asking you, because you were a police officer for 32 years and then a vice minister with the ministry of the interior, to prevent a crime, should the police officer intervene or should the person just wait to receive a judicial order?
A. You have said it very clearly. You have said: flagrancy. That is not prevention. The task of prevention is another stage.
Q. So we are looking at the listing of Legislative Decree 1186.
A. I am not a lawyer, but I can--as a former police officer, I can say that police officers know that they need to minimize risks, and that no one is going to act just because there is--they are talking about a fact or to prevent a fact that may happen. If it is something imminent, obviously the police have to intervene, because it is a case of flagrancy.
Q. If someone presents any resistance to the
[Page 1295]
authority, there should be an intervention?
A. Well, if the crime is obvious, and we are talking, again, about a crime that is flagrant, then there has to be participation by the police.
Q. So you're telling me that if a police officer sees that there may be a crime in the near future, you are telling me that the officer has to wait to receive a judicial order rather than prevent that crime?
A. In that case, you're talking about the future. Who can ascertain that there will be a crime in the future?
Q. Let us move on.
Now, regarding each level of opposition, regarding the position of a person to intervene and the use of force, the force used should be in accordance with the opposition received or with the force that is being exerted against the actual officer; is that correct?
A. Well, once again, I cannot--I am not a police officer or a lawyer to say that.
Q. Very well. Thank you.
[Page 1296]
And you were telling me that prior to the meeting with Mr. Bravo that was in January 2018, you were informed in 2018 about the conflict?
A. I had to know that there was a conflict. I had to know about it. And there was evidence--there was evidence already that something was going on.
And they had participated on the 14th. And on the 14th when the police showed up there, they accepted the situation, and there are also minutes with the signature of a person from the company, together with those who had been there, part of the protest, and they took the road because they considered that it was their road.
Q. Very well.
I think you have referred to the 14th. I think it is the 14th, October 14th, 2018. We're now going to talk about that a little bit.
I understand that you were also told about the background of this conflict, that there was an invasion, or that there was a protest in accordance with the terms used by Parán in June 2018; correct?
Were you aware of this; yes or no?
[Page 1297]
A. I learned about this later on because I was not the vice minister.
Q. Very well.
Let, now us look at Tab 15, please, in the binder that you have there in front of you. If you look at this, this is C-170. This is a request for police support dated October 17, 2018, to avoid vandalism, and also possible attacks against our facilities. This was by community members of Parán.
This is being addressed to the police officer of Lima, Gaston César Rodríguez Limo. Were you aware of this document? Did you know of this document?
A. No.
Q. Thank you.
At any rate, we can see that there was some action, or at least something was done. There was a process for this request, for this application, we are going to see at Tab 16. I understand that this is something that you did not receive because it was quite local within the police forces.
Here the colonel for the Huacho area says
[Page 1298]
that he has decided to request operations--has directed or ordered the respective order of operations be formulated.
You can see it halfway down the paragraph.
If you want, you can look at the Spanish version.
A. This is an acknowledgement of receipt.
Isn't this signed by the colonel?
Q. No, this is signed by Andres Rosales Andrade in the Sayán police station.
But it says halfway down the paragraph that in this regard, PNP colonel chief of Huacho has ordered that the respective order of operations be formulated.
Do you see that?
A. Yes, I do.
Q. The order of operations is the same as an operations plan.
A. No, it is not.
Q. What is an order of operations, then?
A. The order of operations are actions that are implemented based on the national plan. The national plan is at this level, and the units below this level,
[Page 1299]
below the police, have the orders of operation. This is on a daily basis, and they go based on topics, prevention, whatever that would be, drug trafficking.
So that's an order of operation.
So the order of operations is a provincial, local level.
The national plan is the large umbrella under which each agency has its order of operations.
Q. I thank you, but I think that we are talking about quite a low level. We are not talking at the level of national plans. We are talking at the level of the decisions by the Huacho chief; therefore, this is an order--or the order of operations, the respective order of operations.
You were not informed of this order of operations, were you?
A. Well, the vice minister does not need to be kept abreast of this type of order.
Q. Yes or no. It's very easy.
But were you aware of this when you prepared yourself for the meeting? I understand you didn't.
That is January 24th of 2019.
[Page 1300]
A. No, I wasn't aware of this.
Q. Let us look at R-113. This is at 58, Tab 58. This report is 07/2020. This is page 2 of 21, and this refers to some background information known to the police much later in 2020, but this is useful to see exactly what the police was aware of.
At page 5--at page 5, you would see Paragraph 6, then.
Can you read it?
A. Yes. I can read it. This is dated November 18.
Q. You don't need to read it. You don't need to read it aloud. Can you read it?
A. Yes.
Q. It refers to a plan of operations that was looking to clear up the roadway that had been occupied since the 14th of October. Do you see that?
A. Yes.
Q. At the end, it says that the plan did not go forward because of the impediment on the part of the members of Parán Rural Community in order to avoid the social cost.
[Page 1301]
Do you see that?
A. Yes.
Q. The reference to social cost has to do with the potential negative repercussions that this could have on society in general because of this idea that the police was not acting appropriately, or fairly.
A. Your appreciation is not correct.
Q. If there is a social cost, my understanding is that this is a problem that goes beyond, or rather, a consideration that goes beyond whether an intervention or not should happen in accordance with the law.
Other broader considerations have to be taken into account, and the decision of not to intervene needs to be made. Yes or no?
A. The situation is the following: That is why they say on day D, hours H, because it has to do with if this is allowable. If there are risks, the potential risks, and the police is not going to intervene.
There are many individuals there that may become victims of the action of the intervention.
[Page 1302]
From my experience in the field of the police, what you are taught is that as a police force, you need to minimize risks. That is a concept that every police person knows. You have to look at the scenario, gather information. If the moment is the right time, you are going to act. If not, you are not going to act.
Q. Thank you.
But Parán was armed; is that right?
A. I have no personal knowledge of that fact that Parán was armed.
Q. I'm telling you this.
The community members of Parán were armed. They had army weapons. They had perhaps their own weapons. They were heavily armed. I can show you a document that evidences this.
In fact, in this very same document, we can go to page 2, please. It talks about the 19 June invasion.
A. On the 18th?
Q. Are you looking at this, 19 June 2018?
A. Thank you.
[Page 1303]
Q. A group of 250 to 300 community members of the rural Community of Parán went up to the mine.
Amongst them, the leaders, including the president of the rural patrol, they had short and long-range firearms, pistols, revolvers, breach-loading shotguns and carbines and violent acts ensued. It says here that the Parán Community leaders, and the Parán Community, all of those individuals were armed; correct?
Just a clarification. When they say armed, who are armed in the population?
A. Again, what a police person does is to verify. He has to see who has the weapons. We cannot say that out of 300 individuals all of them were armed, who of them were armed.
Q. It says here that the president of the rural patrol was there. It says that the leaders were there. There was a mob of 250 to 300 members. When it's identifying here the male leaders of the community, it says here the men were the ones who entered carrying short and long-range firearms, pistols, revolvers, breach-loading shotguns and
[Page 1304]
carbines, the same ones who without any authorization entered the camp of the company demanding an inspection, and then details are given of the violent acts that took place on that date.
So the police, itself, identified the individuals bearing arms.
Did you not know about this?
A. What the police is saying is that the leaders were there. They're not saying that each one was carrying a pistol or a carbine.
Q. Who was carrying those weapons? At any rate, the Parán Community members had pistols in the presence of these leaders, and to their full knowledge and under their authorization.
A. Please we're talking about a fact, we're not talking about flagrancy here.
This is a version of the facts. They're not talking about a current fact. They're talking about a past fact. That's not flagrancy.
That event was known by the prosecutor's office, and as a consequence, you have a prosecutor's office report, and that's the path they should have
[Page 1305]
tread, not dealing with the police.
PRESIDENT CROOK: Would it be possible that we take a five minute break?
MR. GALLEGO: Sure.
PRESIDENT CROOK: Let's rise for five minutes. Mr. Saavedra, we will take a very short break now. You're free to leave the room, but you should not discuss your testimony with anyone during this five-minute period.
Is that agreeable, sir?
THE WITNESS: Thank you very much. That's agreeable.
PRESIDENT CROOK: Thank you very much. See you in five minutes.
(Whereupon, there was a recess in the proceedings, 10:37 a.m. - 10:46 a.m.)
MR. GALLEGO: With apologies, Mr. President. I was just seeing how I could cut to the chase here.
PRESIDENT CROOK: Appreciate that. Worthwhile thing to do.
MR. GALLEGO: Thank you for the opportunity to do that.
[Page 1306]
Just would like to raise whether it would be possible to see Mr. León after Mr. Saavedra. I'm very conscious that that would be a switch, but if he is available then, and if we can finish with Saavedra earlier than we had scheduled, then it would be very much welcome to be able to cross-examine Mr. León straight away.
Is that possible?
MR. GRANÉ: Yes. I think that that would be possible. If you can give us a sense--a general, rough sense of timing just to make sure that we're able to have him ready, and not waste any time--any of your time.
MR. GALLEGO: Well, I think it would be shortly before lunch or shortly after lunch.
MR. GRANÉ: Okay. Can you give me just one-well, I believe that-yes, that would be possible.
MR. GALLEGO: Thank you very much for that flexibility.
THE INTERPRETER: Mr. President, your mic is on.
BY MR. GALLEGO:
[Page 1307]
Q. After the 24 January meeting with Mr. Bravo, Luis Bravo, reference is made to it in your witness statement, you had a WhatsApp discussion with Mr. Bravo.
Do you recall that?
A. Yes.
Q. Let us look at that WhatsApp exchange. It's at Tab 21 of the folder you have there. This is Exhibit C-192. Starting on February 5, Mr. Bravo starts sending messages to you. At 9:59:17, Mr. Bravo says, "To date, we still have a blockade in place and cannot access the camp. We had a meeting at the request of MEM last week with the governing committee of the community, but in the end we could not sign an agreement because they did not want to lift the blockade. Unfortunately, in spite of the steps taken with General Arata and Colonel Arbulú in Huacho, we have not been able to advance with the operational plan to regain control of the operation."
Do you see that?
A. Yes.
Q. Here Mr. Bravo is asking you for help; is
[Page 1308]
that right?
A. He's not asking me for help. He's just telling me what's going on. He's not coming to me and saying, "help me."
Q. On the next day, Mr. Bravo insisted on this. Let us see what the answer is.
"Luis Felipe, good evening. I have not forgotten your issues. Sorry for not responding earlier. I just spoke with General Arata who told me the following." (As read.)
This is what he [Bravo] said at 10:53:07 p.m. of February 6.
Do you see that?
A. Yes, I do recall.
Q. Then it says, "1, The colonel is working on the issue."
I understand that it means that the colonel is working on the operational plan?
A. No.
Q. What is "the issue", then?
A. The conflict. The conflict that they're having, in general. It is the conflict. That's the
[Page 1309]
issue. That's his issue.
Q. It says, "The colonel is working on the issue and is going into the area, but sometimes there are problems due to the rainy weather which does not make access easy."
Then it says, "2, The colonel, with the prosecutor, an official of the DGOP (MININTER) and a leader from the Parán Community will enter the mine on 8 February to check the existence of dynamite."
3, he has no proof whether or not there is dynamite in the mine's explosive magazine, and that is why it is important that the prosecutor and the PNP verify this.
4, that on Saturday the 9th, General Arata will have a report on the situation, which will be used as an input for the next decision." (As read.)
It appears that here a coordination is taking place with General Arata; yes or no?
A. What I am reporting is what is shown here in the communication, what I am saying in the conversation.
(Overlap of speakers)
[Page 1310]
A. I read what is in the conversation.
Q. Yes. But I deduce that you are coordinating things with General Arata; yes or no?
A. Not so much coordinating at every single moment. If somebody puts a problem to me, I have to find out what's going on. That's the minimum that I should do.
Q. Why is it that that was the minimum that you should do?
A. Because, please recall that a country needs investments, and one of the functions of the ministry is to guarantee the investments and the area where the investments are located. That is one of our functions.
Q. So here you were assisting Mr. Bravo that represented the investor?
A. The function is the protection of the community, private individuals, private enterprises, and public persons. When they come to your office, you need to attend to them.
Q. You did not say, "this is not within my competence, go talk to general Arata, or colonel
[Page 1311]
Arbulú"?
A. That's why he tells me he is talking with Mr. Arbulú. But it is not within my competence what Mr. Arbulú has to do.
Q. In any case, he is reporting that the general is coordinating with Mr. Arbulú. Isn't that true?
A. That's what the general told me.
Q. And the colonel, and the prosecutor are going to go up to verify whether the Parán community members had entered the magazine. Isn't that true?
A. Yes. Exactly, I am repeating what they are telling me.
Q. It appears that if Parán had had access to the magazine, that would be used for a decision to be made; correct?
A. If the prosecutor goes there, okay, yes. The prosecutor is the one that prosecutes the crime. Don't forget that.
Q. On 8 February of 2019, the prosecutor went up with the police to the camp; right?
A. Yes.
Q. They went together with Invicta personnel?
[Page 1312]
A. Yes, because the police must provide protection and prevent actions, and there is prevention here because the prosecutor is there, and the prosecutor wants the support of the police, and the police must provide that support.
Q. And you coordinated with General Arata and Colonel Arbulú for the Invicta staff members to be able to go up at that point in time?
A. No, I don't have to coordinate that issue.
Q. Okay. So you're saying that that's a no.
So let me show you. Please turn the page and look at 10:59:52 on February 6.
You say, "It is important that our people go up to be able to verify and provide information on the inventory and location of the explosives since Parán can say anything and evade police and prosecutor's inspection."
Then at 11:09:08, you say, "I don't think there is an issue for someone from the company to go. It's a matter of coordinating so that they can go together."
Mr. Bravo, in turn, says at 11:10:41,
[Page 1313]
"Tomorrow, I will call colonel Arbulú to coordinate with him, but"--this is Mr. Bravo who says this--"but a call from the general to reinforce this is important."
Then at 7:05:36, you say, "Okay, I'm going to call the colonel and the general again."
A. I never communicated with the colonel. The only person I called on one occasion was general Arata, but after that I never spoke to any of them.
Q. Excuse me. We saw before that on the 6th, you spoke with general Arata, and he summarized the things that we said he summarized.
Then Mr. Bravo is asking you to have the Invicta personnel go there in connection with a prosecutorial inspection. And you say, "Okay, I'm going to call the colonel and the general again."
A. But it was not up to me [within my authority or function] to coordinate whether a person from the company did or did not go up. The need was up to me. The police did not have accompanying him [sic; literal translation of incomplete sentence in the Spanish original].
[Page 1314]
Q. Mr. Saavedra, I don't know whether that was within your authority or not, but here you are saying that you were going to do it; that you were going to call the general again to coordinate that ascent to the camp. That's a factual issue. Forget what the law says.
Here, you coordinated directly with the general and with the colonel so that the Invicta personnel could go up there in connection with the inspection to be conducted by the prosecutor; yes or not? It says this very clearly, I don't know how you can deny this.
A. You are misstating what I said.
It doesn't say that I spoke. It's in the future here. It's not that I spoke. It says, I'm "going" to call.
Q. So you are telling me that you did not do this?
A. No, I didn't do this.
Q. Why didn't you do it, in spite of the fact that you expressed it?
A. I was not in charge of coordinating these
[Page 1315]
issues, whether an individual goes up there, doesn't go up there. A vice minister is not going to deal with operational issues; that was something that it was for them to do, if they were interested in going with the prosecutor.
Q. In any case, Invicta personnel did go up there that day, together with the prosecutor, and the prosecutor verified that the magazine had been tampered with by the Parán people.
Do you remember that?
A. No. Therefore, if the prosecutor verified this, the prosecutor had to act in accordance with the law. Remember that the police officers were accompanying the prosecutor. You should ask the prosecutor.
Q. Let's continue. On the 13th of February, at 1:48:29--
A. 13 February?
Q. Yes.
Mr. Bravo said here, "Esteban, yesterday I was in Huacho with Colonel Arbulú looking at alternatives and details to carry out the operational
[Page 1316]
plan. He is very willing to support and carry out the operation since after his visit on Friday, he now has a clear idea of the situation, and that despite his assistance on engaging in dialogue with the company, it is clear to him that they do not want to talk for now or they want to do so with the coercive measure in place."
Once again--
ARBITRATOR GRIFFITH: Excuse me, but the "they," I would read that as being they, the Parán people, but are you able to assist me?
MR. GALLEGO: Sorry. It's just a matter of the Spanish translation. Yes, I--it's clear to me. I will put it to the witness.
Thank you, sir.
BY MR. GALLEGO:
Q. So we were reading. Once again, let's read this part, of the exchange at 1:48:29. About halfway through, it says, "he is very willing to support and carry out the operations since after his visit on Friday, he now has a clear idea of the situation that despite his insistence on engaging in dialogue with
[Page 1317]
the company, it is clear to him that they do not want to talk for now, or they want to do so with the coercive measure in place."
Now, here when it says, "they do not want"--that's a reference to the Community of Parán; is that right?
A. I'm not sure. You'd have to ask who he called.
Q. "They don't want to talk for now, or they want to do it with the coercive measure in place."
Who might it be?
A. It's unfortunate that throughout the hours that I was discussing with him, that all he wanted was the use of force as a solution for something that should be dealt with at a dialogue roundtable.
It's striking that he constantly repeats an operation. An operation that he didn't have any reason to tell the police that they were going to do it.
Q. Thank you for that comment. This is a reference to the Community of Parán; is that right?
A. I don't know.
[Page 1318]
(Clarification requested by the Realtime Stenographer.)
THE INTERPRETER: No microphone.
ARBITRATOR GRIFFITH: A question. I'm asking the witness, if it's not the Community of Parán, who do you suggest that the "they "is?
THE WITNESS: Well, if you allow me, as it was written by the person, I suppose that in that context, it would be those who were mounting an opposition. I could assume so, but that would merely be a supposition.
ARBITRATOR GRIFFITH: Thank you.
ARBITRATOR GARIBALDI: Just for the benefit of my fellow members of the Tribunal, as a matter of Spanish language, the only possible interpretation here is that "they" refers to the Community of Parán. There is no other plural subject that it could be referred to in the context.
PRESIDENT CROOK: Counsel, I do have a question on this particular document, before you leave it. So just if you could signal before you move off it.
[Page 1319]
MR. GALLEGO: Sir, I'm going to spend a little bit of time on this document, still. A few more questions. If it's in relation to this particular paragraph, maybe you'd like to ask it; if not, I'll move on, and I will signal as you have suggested.
PRESIDENT CROOK: Well, my question is simply, who was General Arata? Where was he in the hierarchy. Why was he being consulted?
THE WITNESS: General Mario Arata is the general who is the chief of the entire region of Lima, and Huacho fell within his jurisdiction. And therefore, the colonels who were in those provinces had the opportunity to communicate to him.
BY MR. GALLEGO:
Q. At 1:49:08, Mr. Bravo says, he's only waiting to confirm the support of the special forces of Lima to be able to set the date. That's 13 February 2019.
Now, what are the USES in Spanish?
A. Those are the special services units, but that's something he said. It's not the police who
[Page 1320]
said the special forces were going to go.
Q. Yes, that same day, 13 February, Mr. Bravo indicated at 2:02:11, Finally, yesterday, Colonel Arbulú informed us that he had received a call from Ms. Evelyn Tello from the Ministry of Interior indicating that a meeting was going to take place with the MEM to insist on dialogue.
We spoke with the people of the MEM, Fernando Trigoso, and there was no meeting.
We were at the MEM, and they do not see a negotiated exit for now, but we are discussing scenarios for dialogue for the day after public order is reestablished.
Then he continues, 13 February at 2:03:04, "It is worrying that the insistence of Ms. Evelyn Tello would delay the operational plan that is now ready."
Mrs. Evelyn Tello worked under you; is that right?
A. No.
Q. In any event, she was a subordinate within the Ministry of Interior; correct?
[Page 1321]
A. Yes.
Q. And you did not respond to this WhatsApp message until the 15th, two days later. You--on that day, on the 15th of February at 5:35:03, you said, "Luis Felipe, I spoke with General Mario Arata, who told me that the community has presented a letter to the MEM agreeing to sit down and talk. They await the dialogue."
Then two minutes later, at 5:37:53, you say, "This is in line with the procedures that are followed in the treatment of this type of event, that is, before, the police must not intervene and must respect the dialogue."
So you did speak with Mario Arata a second time; right?
A. I'm saying something that is being reported to me by the agencies dealing with -- sorry. Yes, I am saying what is being said by the Directorate for Conflict Prevention, which has received a letter and that those who are involved in the issue, namely the company and Parán, should re-initiate the dialogue.
Q. Excuse me, did you not speak with General
[Page 1322]
Arata?
A. No.
Q. Here it says clearly, "I spoke with General Mario Arata."
You say so directly.
A. Excuse me. This--that information came through the public order [department], which [whose agents] spoke with the persons. In any event, it has been--it is--because I said that I spoke with him. The occasion--the only occasion on which I spoke with him was when he was shown the points that say, 1, 2, 3.
Q. At any rate what is being communicated here is that because Parán presented a letter, it is decided not to carry out the operational plan.
Do you agree?
A. The operational plan was not known to me because it was not up to me to have knowledge of an operational plan. And I don't know if there was an operational plan for that at that time.
ARBITRATOR GARIBALDI: (Overlapping speaker with translation.)
[Page 1323]
Oh, I'm sorry.
ARBITRATOR GRIFFITH: Who's first? Who is first?
ARBITRATOR GARIBALDI: (In Spanish.)
Mr. Witness, this exchange of communication mentions Ms. Evelyn Tello of the Ministry of Interior. Could you tell us what was the function of Ms. Evelyn Tello at that time?
THE WITNESS: Very well. Ms. Evelyn Tello worked in the directorate for conflict prevention, and she had her boss who was a director, a professional, who follows up on, monitors and sounds alerts on conflicts. He doesn't have the authority to make decisions on a plan or not.
ARBITRATOR GARIBALDI: Who is the director to whom Ms. Evelyn Tello reported?
THE WITNESS: I think it was Manuel Rios.
ARBITRATOR GARIBALDI: Manuel Rios, and Manuel Rios would report to you?
THE WITNESS: Yes.
ARBITRATOR GARIBALDI: All right. Thank you.
[Page 1324]
ARBITRATOR GRIFFITH: Counsel, my inquiry is whether the special forces are an arm of the police or some other entity.
BY MR. GALLEGO:
Q. The special units we were discussing earlier are special units of the police; correct?
A. Yes.
PRESIDENT CROOK: Counsel, I would suggest if convenient, you could go about ten more minutes, and then we would take a ten minute break, if that fits with your plan.
If not, we will do something else.
MR. GALLEGO: Just having a look to see how I can cut down this. Thank you. That's much appreciated, sir.
BY MR. GALLEGO:
Q. Then, Mr. Bravo, in summarizing, or to summarize, tells you that this is no more than a delay tactic by Parán, having presented a letter, and you in turn--well, let's see what you answer.
On the 15th of February, at 7:45:27. It says: "The issue of the conflict has multiple aspects
[Page 1325]
of attention in the country. I understand that you are bothered and indignant. We're at the end of the chain, and for that reason, we'd like the other actors to do their job and that is the path on which we are. There must be political instruction [lobbying] in the Congress for norms to be issued. If we don't adhere to protocols on the use of public force and there are consequences, those will fall back on the country, and the national and international press will do their thing. That is why we must be scrupulous."
So let's take this in parts.
ARBITRATOR GRIFFITH: Can the witness be asked to comment on the statement at 7:39:59, 7:39:59?
MR. GALLEGO: Before going on to this other bit, sir?
ARBITRATOR GRIFFITH: Yes.
MR. GALLEGO: Thank you.
BY MR. GALLEGO:
Q. If you could please take a look at the excerpt of 15 February. At 7:39:59, Mr. Bravo says, "If this problem is not resolved this week, the rival communities, together and belonging to the Paccho
[Page 1326]
district, have agreed last Tuesday to defend their lands against Parán. On Monday, they will give them a 48-hour ultimatum to leave the area; otherwise, they will act, probably next week with a lot of violence, as has happened in the past between these communities."
And you answer at 7:40:36, "José Luis, I will ask at the MEM about the letter, and I will notify you."
One of the members of the tribunal has asked you to comment on this part. In particular, here, you are saying that, yes, you've acknowledged receipt of this communication, and you're going to ask the MEM about the letter.
Was that within your authority to consider this conflicted situation as between the communities?
A. The conflictivity among the communities is to be seen in the context of that rule on conflicts, not because--the public forces are not necessarily going to intervene just because there is a conflict of that sort.
What I'm saying is, if there is going to be
[Page 1327]
a dialogue--because they're talking about a letter--it's possible that they'll refer to that issue.
And second and most important is that Mr. Luis Felipe Bravo was playing with two weapons: On the one hand, he would go to the Ministry of Energy and Mines with one discourse, and on the other hand he sought the intervention of the police.
At that time a letter was being prepared that was for the 26th of February. So he had everything organized. He was following a plan.
So what I told him, well, to get out of it, was that I would "find out." But I never did find out, never called, never actually contacted [...]. That's why you have the partners of the--among--with the different directors. I didn't need to--he didn't have to have--I didn't have to have spoken with the vice minister. I didn't have to ask about the matter of that nature. That was being handled by the directors.
Q. In any event, you say that you will ask MEM and "let him know"?
[Page 1328]
A. Yes.
Q. Let's go back to 7:47:27. You're saying, "we're at the end of the chain."
Here you are referring to--it's a reference to you at the Ministry of Interior; correct?
A. No.
Q. When he says, "we're at the end of the chain," what else is he saying? What else might he be saying?
A. Because we're saying that when the situation got complicated and there's flagrancy, the ones who need to step in are the national police. That is why each of them made an effort for that issue to not reach that level of crisis. And hence, the need to intervene in a timely fashion, with dialogue fora to avoid such risks.
Q. Excuse me, but you're saying, "we are at the end of the chain."
It seems quite clear that it's at least the vice ministry.
A. No, when I say "we," we are talking about the sector. The sector Ministry of the Interior is
[Page 1329]
composed, as I mentioned before, of the Ministry of the Interior, the National Police, Immigration, Explosives, and Firefighters. So we're talking about the whole of what we are.
Q. So the Ministry of Interior is "at the end of the chain", and that is why we want the other--the "others to do their job. And we are on that path." (As read.)
Who are the others?
A. The MINEM. Don't forget that what conflict prevention does is get the information and pass it on to the corresponding sector. In this case, on this specific issue, it was up to Mining. They were the ones who had the authority.
Q. Excuse me, and then you say, "There must be political instruction [lobbying] in the Congress for norms to be issued." I understand that with this you are saying "my hands are tied," correct? "The law requires that we proceed in this fashion, I wish it were not the case and in fact that it should not be the case," right? "The law would have to be changed so that there can be a police intervention in this
[Page 1330]
situation," correct?
Is that not what you are saying, that our hands are tied?
A. Which is what was wanted from the very first meeting Mr. Bravo had with me, he wanted that to happen. That's what he thought could happen or could be done.
PRESIDENT CROOK: Is this an opportune time?
MR. GALLEGO: Give me five more minutes, sir.
PRESIDENT CROOK: Of course.
BY MR. GALLEGO:
Q. Yes, that is what Mr. Bravo is saying, but you are saying "excuse me, Mr. Bravo, we need to do political teaching in the Congress to hand down laws. We need to change the laws." Here you are right. In this case an intervention was the thing to do, right? Or, here we are facing armed people and the thing to do was to intervene. Nonetheless, you cannot do so; you need to do political instruction to change the norms so that intervention is possible.
I think that's what you are saying. Is that
[Page 1331]
not right?
A. That's your interpretation, which I respect.
Q. Well, very well.
When you were saying that "we need to have political lobbying in the Congress or political instruction in the Congress to hand down laws", what are you saying?
A. That if he was not happy with--in terms of our response to what he wanted us to do, that one had to change the rules. We could not simply make use of force from the outset, which is what he wanted us to do.
Q. Then you say, if we [don't] adhere to the protocols on use of force and there are consequences, these will have consequences in the country and "those will fall back on the country, and the national and international press will do their thing." Your words: "That is why we must be scrupulous."
So here you're referring to the national and international press; right?
A. I'm referring to proper compliance.
Q. No. I'm sorry, you directly state "the
[Page 1332]
national and international press." You are referring to this. And you are telling him that in case there are consequences, such as somebody being killed, for example, that that would be reported to the press.
Yes or no?
A. Because of failing to stick to the protocol. Because remember, I began by speaking about the protocol.
Q. And that this would have a negative impact on the country's image, right?
A. If one doesn't comply with due--if due compliance is not done, then any person might think that they are violating that person's rights.
Q. At any rate, that would have a political cost; right? If there were a police intervention, that's what you're saying?
A. That's your interpretation.
Q. Indeed, we can see that in the demonstrations that took place in Lima in November of 2020, and that ended up with your resignation and that of the Minister of Interior as well. Specifically, on 15 November 2020; is that not so?
[Page 1333]
A. I don't understand where are you going with your question.
Q. You had to resign on 15 November 2020 in the wake of some demonstrations that were held in Lima, and indeed, there was major police intervention to counter those demonstrations, and you had to step down as a result of that. Yes or no?
A. It's not up to me to analyze whether it was in that context or not because that's a different context, a different situation, different from Parán.
There, there were 200,000, 300,000 people in the streets. It's not the same thing compared to an issue of somebody bringing an environmental claim, which was their claim. And the most important:
in Perú, one respects the right to protest, justified protest, and that is--well, if you read the points included in the statement, when the man from Invicta went, he says that in assigning the protest, they have taken the roads. That's what he says.
And the protest--protest is guaranteed by the Constitution.
MR. GALLEGO: Thank you Mr. President. We
[Page 1334]
can break now. Thank you for your patience.
PRESIDENT CROOK: All right. Let's rise for a 10-minute break, then.
Thank you.
Again, sir--okay.
(Whereupon, there was a recess in the proceedings, 11:26 a.m. - 11:36 a.m.)
PRESIDENT CROOK: All right. Back to you, sir.
BY MR. GALLEGO:
Q. Mr. Saavedra, we were talking about your resignation of November 2020. That resignation was due to some protests. I think that we agreed with that; right?
A. No.
Q. At any rate, that was due to the police intervention against individuals who were demonstrating, and you already said they were--there were 200,000, 300,000 individuals, but that was due to that; right?
A. No.
Q. What was the reason of your resignation?
[Page 1335]
A. Because every time the minister changes, a vice minister also has to offer their resignation, and I offered my resignation.
Q. But you exercise your power through two different ministers?
A. Five.
Q. Therefore, what you just said is not true that every time that a minister changes, the vice minister changes?
A. No, what you are saying is not correct. If you want, I can clarify it.
Q. I asked you about circumstances. Every time a minister changes, the vice minister also changes, that's what you told me, and then I asked you.
But then you have worked with several ministers, and you said, yes, five. So I am trying to understand your answer.
So are you saying that resignation was due to some police protest in November 2020; correct?
A. No.
We offer our resignation, and then the minister accepts it or not. The other ministers
[Page 1336]
confirmed me in my position, and I stayed with them.
So if they don't accept the resignation, one stays in the position. When they accept, one leaves.
Q. So in this case, due to those events, the minister resigned, and I understand that that led to your resignation, too?
A. No. I offered my resignation with the arrival of the new minister, Mr. Vargas. Ruben Vargas, because if we--you should recall that that day we were left without a president, without a prime minister, without a minister, and the Vice Minister Saavedra of internal order was the only one who was there.
So when Mr. Ruben Vargas arrived at the minister, as I should have done, I offered my resignation, and he had to ratify me or not in my position. He did not confirm me in my position, so I left.
Q. And that change in administration was due to these events of November 2020; correct?
A. Yes. As you may understand, there was a change of administration. There was a president,
[Page 1337]
there was a change of president. There was a political change.
ARBITRATOR GARIBALDI: Would it be possible to clarify what president we are referring to, because many of us are not familiar with the politics in your country.
THE WITNESS: Thank you very much.
We had--so, the president, the incumbent, resigned, Mr. Merino took office.
ARBITRATOR GARIBALDI: Was Kuczynski the one in power?
THE WITNESS: No, it would be the regional Governor, Martin Vizcarra. Martin Vizcarra. Martin Vizcarra presented his resignation. And Merino came into office. Merino was there for a few days, and he resigned due to the events that you just mentioned.
And then when Merino resigned, the prime minister, the minister, and all of the ministers left on that day. That day was terrible. We were left with nothing.
Then Mr. Sagasti came into office. Sagasti came in--after Sagasti, we had Castillo, I think.
[Page 1338]
BY MR. GALLEGO:
Q. So I understand, Mr. Merino, I think you said, resigned because of these events, because of these police intervention against the demonstrators, and the political turmoil that ensued because of this?
A. The reasons for his resignation are beyond my area of concern. He resigned, and I didn't need to know why he resigned.
Q. At any rate, there was a political price to pay due to that police intervention.
A. That's your appreciation.
Q. Do you agree--do you disagree with that point of view?
A. We're not discussing here whether I agree or not.
Q. But do you disagree? You are a fact witness.
A. I am a witness of a fact in Parán, but I am not the witness of a political fact which came later.
Q. You are a witness in connection with any fact of which you have knowledge, Mr. Saavedra. There are no restrictions here in connection with what I can
[Page 1339]
ask you, except that it has to be relevant, and it has to be within your knowledge.
So this question meets those requirements, and this is the reason why I'm asking you this.
A. When I was invited to appear as witness, I was given the scope of my testimony. I am not a lawyer to tell you whether it was a political issue or not.
Q. At any rate, you seem to agree with me, or at least you do not deny it.
Let us now look at the document that we saw before at 58. Tab 58. This is R-113, and we are going to look at page 7, Paragraph 15, pages 7 and 8.
This document refers to an operations plan of February 9 for the preservation of public order that was about to be implemented in Parán because this was going to be blocked or this had been blocked as of October 14.
And then it says, "because of the impediment on the part of the Parán Community and in order to avoid the social cost, the implementation was not possible".
So once again, we are talking about the
[Page 1340]
social cost, the social price to be paid.
So here we seem to be reading that the police had a plan to unblock the road. The road was blocked by the Parán Community members, but this plan is not implemented because of the social price to be paid.
Is this correct?
A. Well, if you go back to the previous paragraph, you are going to see that it states: "on D day at H hour." What is D day at H hour? At any rate, I would like to look at that plan, because that--if the time is known, it is included.
So what does it mean, D, hours, H?
A. So it could have been--it could have had an issuance date. I am not a police officer, but because of my experience, it could have an issuance date, but it doesn't have an implementation date.
The implementation date comes as a result of the sensitive situation on the ground which the chief of operations will [take into account to] determine whether the operation will be carried out or not, bearing in mind the risks, I repeat.
[Page 1341]
Q. Now, since you are answering in this fashion, we are going to look at Paragraph 26. Page 10.
There you mention, and the same is being said, at Paragraph 26.
But now instead of referring to the date--D, day, and H, hours, it is saying June 5, 2019, at 9 hours.
Do you see that?
A. Yes.
Q. Towards the end, it says again, exactly the same. That it won't be implemented because of the social price to be paid.
Are you looking at this?
A. Yes, I am looking at the origin of the document. This not the operations plan. It's a report. This is just a subsequent document. This is what we read in the report. This is not something I should look at. This is not something that I know of. It says at the police level.
So the vice minister does not need to have knowledge of this, and I didn't have any knowledge of
[Page 1342]
this.
Q. Well, but you were telling me before--look--you were actually commenting on the way the police acted because you were saying: no, here the police did not intervene because it was not the thing to do.
This was completely--the time and date were not fixed, and therefore, it was not appropriate to proceed. You stated something along those lines. But now I am showing you that a time and date were indeed fixed in relation with exactly the same plan, and the time and date is June 5, 2019, and once again you tell us that the no intervention was made because of the social cost.
I wanted to talk with you again about this social cost, because I understand that the reason for not intervening here is that there is a political cost.
A. Well, that has to do with the author of this, not me.
MR. GALLEGO: I have no further questions.
PRESIDENT CROOK: Thank you, sir.
Over to--no, no.
[Page 1343]
MR. GRANÉ: We have no questions on redirect.
PRESIDENT CROOK: All right. Let me ask whether my colleagues have any questions.
ARBITRATOR GARIBALDI: I have do one.
PRESIDENT CROOK: Please.
ARBITRATOR GARIBALDI: (In Spanish.)
Mr. Saavedra, in some of the documents that you were shown, there was reference to the conflict between the Parán Community and the other two communities, and the possibility for that conflict to lead to more violent measures by the other communities to defend what they considered to be their territories.
That was the background.
You were aware, as vice minister, of a conflict between the Parán Community, on the one hand, and the Lacsanga and Santo Domingo Communities, on the other hand, as to the extent, as to the limits, the boundaries, of the lands. Is this correct? Were you aware of that?
[Page 1344]
THE WITNESS: I thank you, sir.
I learned of that as a result with the conversation with Mr. Bravo, who told us that there was a territorial situation, that there were some claims, and rights, and why, because at the outset, the mining company, with very--in very good faith attempted work with Parán. But later on, they had some disputes, and they looked for a way out with the other communities, and they offered that exit.
ARBITRATOR GARIBALDI: But I'm not talking about the mining company.
I'm asking about the community conflict.
Were you aware of the conflict among the communities?
THE WITNESS: No, I was not.
ARBITRATOR GARIBALDI: Do you know if there is any body, any agency within the State that is intended to settle those differences, those disputes, territorial disputes regarding boundaries among the communities?
THE WITNESS: I am not a lawyer, I am not an expert in the subject, but for all I know there is a situation of land demarcation in the Prime Minister's
[Page 1345]
office, and it is known by the media that there are some difficulties that are known throughout the country in connection with the boundaries.
ARBITRATOR GARIBALDI: Now, do you know if that same agency or another State agency is meant to facilitate the negotiation among the communities in connection with their boundaries?
THE WITNESS: That would be as a conciliator, as a mediator, as to the institutions, that is, you have--if it an agricultural issue, agriculture will deal with it. If it is mining, this is something led with mining. If it is oil, this is led by the oil area. And if it is road demarcation, this is within the transportation unit.
ARBITRATOR GARIBALDI: But how about the limits between one unit and the other one? Is there any agency within the State that is meant to help the community to come to terms with a problem, settle the problem?
THE WITNESS: Well, the Ministry of Culture does have an area that is in charge of looking for legislation that has to do with native and old
[Page 1346]
cultural relations; but I don't know much about this.
I know when it is something related to culture, spaces, tradition.
ARBITRATOR GARIBALDI: Thank you.
ARBITRATOR GRIFFITH: (Overlapping speaker with translation.)
One issue or question.
Last line of Paragraph 26 on Tab 58 says that "in order to avoid the social costs, its execution was not possible."
Are you able to tell us from that paragraph or otherwise who made the decision not to carry out the exercise, the operation?
THE WITNESS: Based on my experience as a police officer, this has to be seen by the chief of the operational command what is to be--who is the one to determine whether the operation is going to be completed or not.
So you have the operational command, the one it that is on the field, the one that determines whether something is going to be carried out or not.
That's based on my police experience.
[Page 1347]
Now, in this case, it must have been that way. It must have been--they must have been the ones who determined that it was not possible. That party is the party that is on the field and the one that will be sued or will be the subject of a criminal process, if there is one.
So there has to be a lot of awareness to realize whether the conditions are proper or not for an intervention to take place.
PRESIDENT CROOK: I think we have no further questions, and, so we thank you, sir, for your testimony. You are excused. You may now resume normal conversations with anyone you choose.
So we thank you very much for assisting us today.
THE WITNESS: I thank you for the time and also the openness to listen to what I said. Whatever I said, I said it candidly. You all have a good morning.
PRESIDENT CROOK: The same to you, sir.
All right. Next step. I think it was anticipated that Mr. León would be on next. Okay.
[Page 1348]
Good day, sir. Can you identify yourself for the record, please.
NILTON CÉSAR LEÓN HUERTA, RESPONDENT, WITNESS CALLED
THE WITNESS: Good morning, everyone.
My name is Nilton César León Huerta.
PRESIDENT CROOK: We welcome you here today to assist us.
Before you, there should be a declaration.
Do you have that?
Are you hearing me, sir?
THE WITNESS: Yes, Mr. President.
PRESIDENT CROOK: There should be a document in plastic with a declaration on it.
Do you have that, sir? Could you read that declaration out loud, please.
THE WITNESS: I solemnly declare upon my honor and conscience that I shall speak the truth, the whole truth, and only the truth.
PRESIDENT CROOK: Thank you for that, sir.
The procedure that will be followed today, you will first be asked some questions, a short series of questions, by counsel for Perú. You will then be
[Page 1349]
examined by counsel for the Claimant. There may then be a final set of questions from the lawyers for Perú.
Are you clear on this procedure, sir?
THE WITNESS: Yes, Mr. President.
PRESIDENT CROOK: If at any time you feel that you need to take a break to leave the room, please let us know, and we will accommodate.
All right. Are we ready to begin, then?
All right. Over to counsel for Respondent.
BY MR. GRANÉ:
Q. Good afternoon, Mr. León.
You submitted two witness statements in this case. I'm sure you have them there with you. The first, 22 March 2022, and the second 20 January 2023.
I'm going to ask you to please look at the first statement, the one from March 22, 2022, and please let us know whether this is your statement and if you ratify its contents.
A. They are in English. These are in English.
Q. It's behind a blue sheet, the Spanish version is.
[Page 1350]
A. Yes. That's my statement.
Q. Would you like to make any corrections to this first statement?
A. No.
Q. We're going to do the same thing with the second one, of 20 January 2023.
Could you please confirm whether this is your statement, and whether you ratify its contents?
A. Yes. That's my statement.
Q. Would you like to introduce any corrections to it?
A. No.
MR. GRANÉ: Okay. Thank you very much.
We have no further questions.
BY MR. GALLEGO:
Q. Good morning, Mr. León.
A. Good morning.
Q. My name is Jaime Gallego. We're going to be discussing a number of issues with you. This is an official environment, so to speak, and we have to follow some rules so everyone knows what we are
[Page 1351]
talking about.
The first rule is that we have very limited time. That's why I'm asking you to please answer my question specifically.
The second thing is that we are here dealing with interpreters that need to switch channels between English and Spanish so the Tribunal may follow what we are saying.
For that purpose, I'm going to ask you to please take a pause after my question is asked before answering the question. I'm going to do the same.
That way, everyone is going to be able to follow what we are saying.
Could you please let me know how you prepared for this hearing, briefly.
A. Very well.
I have reviewed the documents that were sent to me by the social management office. I work for that office currently in Perú. I have looked at the aide-mémoires and the internal documents, as I said.
More than anything, I looked at the account of the facts that took place and the dialogue that was--that
[Page 1352]
took place between Parán and Invicta.
Q. I understand that you also talked to Perú's external counsel?
A. Yes, correct.
Q. And with other public officials of Perú in connection with your testimony?
A. I spoke to other people that no longer work for the office, trying to refresh my memory in connection with the facts that transpired.
Q. Did you talk to any senior officials in connection with your statement, a superior of yours?
A. What do you mean?
There was a coordinator at the office. We have the head of line, he's the head of the citizen participation office, and then we also have the vice ministers and the ministers, that's the organizational structure.
My statement is related to the facts in which I have been involved--with which I have been involved in my capacity as social specialist.
Q. While you were in your position, you said that on numerous times you went to the project site,
[Page 1353]
and you also went to Sayán, Huacho, and to the community of Parán; isn't that true?
A. That's correct.
Q. And you said that the first meeting with the community leaders of Parán was in 2018, 11 August; correct?
A. Correct.
Q. Do you know that there was a meeting on 28 July 2018; does that ring a bell?
A. That meeting happened in Santo Domingo de Apache.
Q. It wasn't with Parán, a meeting with Parán?
A. 22 July, you said? It was with Santo Domingo de Apache.
Q. You were present in the meetings of October and November 2018; right? With Parán?
A. That's correct.
Q. Parán lodged a number of complaints to withdraw complaints, and to recognize the damage, environmental damage, and to use the Parán roadway; correct?
A. Yes, correct.
[Page 1354]
Q. Invicta asked for the blockade to be lifted and for the operations to stop; right?
A. Yes.
Q. And you intervened in those meetings to explain about the advantages of having a roundtable discussion and also to reach an agreement?
A. Yes, that's correct.
Q. You also asked Parán to lift the blockade of the roadway, and reiterated that dialogue should not be--should not take place with the blockade--
A. I didn't ask that question.
Q. Okay. So you urged Parán to lift the blockade, and you said that the dialogue should not take place while the blockade was in place?
A. Yes, that's correct.
Q. That urging by you to Parán, and by the OGGS, that was something that was constant in the meetings you held with Parán; correct?
A. Correct.
Q. I'm talking about the meetings of 29 January 2019, 26 February, and 26 March; right?
A. That's correct, yes.
[Page 1355]
Q. This, because the petition of Invicta seemed to you logical and reasonable, to set up a discussion table, it was necessary for the blockade to be lifted?
A. That's right. I would like to put my answer into context.
Q. Yes, but before you have to say yes or no.
A. Yes.
Yes, what is you have been stating or you have stated is correct, but if you give me the possibility, I would like to say, Mr. President, that within the OGGS, we always ask the parties in this case, that is to say, the communities that are conducting the blockade of roadways, we always ask them to start the process by clearing the roadways, by lifting the blockade. That's what we ask of the communities.
Oftentimes this does not happen, but that is the request that we always do at the outset.
In this case, we asked that the roads be cleared of the blockade, and we also asked that they stop not letting the company go up to the mining unit.
THE INTERPRETER: Excuse me. The
[Page 1356]
interpreter didn't get the question. I'm sorry. I'm sorry.
PRESIDENT CROOK: Can you repeat your question, please. We're having--Mr. León, going forward, let's take a moment's time before you begin to answer a question, because the question is being interpreted to us in English, and we need a little time for that to happen.
So pause, take a deep breath before you start to answer, if you would, please, sir. Thank you.
Can we have the question again, please.
BY MR. GALLEGO:
Q. Did it seem logical to you, and reasonable to you, that Invicta asked that for a discussion table to be established the blockade had to be lifted? And you answered yes, and then you provided some comments.
Then I asked you, Parán constantly refused to do so, and I understand that you also said yes to that.
That, for the benefit of the Tribunal, I wanted the Tribunal to have this clear in their minds.
[Page 1357]
Would you like to add anything?
A. Yes. What you are saying is correct.
Q. You did not urge anything in connection with the inadequacy of your community relations team in connection with Invicta?
A. I didn't understand your question.
Q. I'll repeat it. Invicta was not urged to do anything in connection with the inadequacy of the CR team; correct, its CR team, Invicta's, correct?
A. Correct.
Q. In your statement, you say that you were surprised to see that the Claimant says that Parán had no intention to reach an agreement with Invicta because it wanted to protect its marijuana business.
Do you recall that? Do you remember that in your statement?
A. That was said to us at a meeting that we held at the OGGS in the presence of the other bodies of the State. Yes, that's correct.
Q. Let us look at your statement, at Paragraph 60 of your statement, and I think it's your second statement. Yes, indeed. It's your second statement,
[Page 1358]
Paragraph 60 and 61.
If we look at Paragraph 60, you make reference to a number of arguments made by the Respondent in connection with marijuana and the operation of the mine.
And at Paragraph 60, you begin by saying, "I was surprised to hear these arguments by Claimant, including those related to an alleged marijuana business by the Parán Community."
And then at Paragraph 61, you continue talking about this, and I would like to summarize what you are saying here. If you think that's okay.
A. Yes.
Q. First, you say that Parán did not have a marijuana business. Then, that Invicta at no time expressed its concern in connection with an alleged marijuana business in Parán, and that this had an influence on the position that the community had.
Is that what you're saying?
A. Mr. President, I would like to look at the Spanish version of this document.
Please repeat the question.
[Page 1359]
Q. Yes, of course.
I was summarizing your testimony. First, you said that Parán did not have a marijuana business, and then the second thing you're saying is that Invicta at no time expressed concern related to an alleged marijuana business by Parán, or that that had an influence in the position of the company.
A. That's right.
Q. Let's look at 41, Tab 41, of the binder that you have right before you. You have to go to that binder. Do you have that document in Spanish right before you?
A. Yes.
Q. We can see that there's an e-mail here from you. It says TEMP OGGS 1227. That's you, right?
A. Yes, that's me.
Q. You have sent this to César Ulloa; correct?
A. Yes, that's correct.
Q. On 20 February 2019.
You attached to that e-mail an aide-mémoire, and the second page shows a series of remarks. At the second paragraph, it talks about the social process
[Page 1360]
that the mining company has with Parán is impaired by interests that are important to the State in connection with marijuana growers that the Ministry knows about this, and is activating the necessary mechanisms.
Do you see that?
A. Yes.
Q. It appears that you recognize here that there are marijuana plantations, and that the production of marijuana is preventing a good-faith negotiation; right?
A. No. That is not what I'm saying in my statement.
If the President allows me to do so, I can read this, and then put my answer in context.
Q. Sir, I'm simply asking what it says here in this aide-mémoire; right?
A. Yes, but--
Q. You're recognizing here that there are marijuana plantations, that the social process that the mining company is maintaining with Parán is negatively impacted by this; right?
[Page 1361]
A. That's correct. Mr. President, that's correct.
THE INTERPRETER: Yes. We can't hear the witness very well, and so the interpreters also didn't hear correctly because--
REALTIME STENOGRAPHER: I just said that sometimes it's hard to hear.
BY MR. GALLEGO:
Q. I'm going to ask you to please speak up.
I know that you have the microphone really close to you, but you need to speak up, please, because if you don't, that's not going to be helpful, but if you do, it's going to be helpful.
I asked you about this paragraph that talks about the social process that the mining company maintains with Parán is affected by the presence interests of the State, producers of local marijuana plantations. In this connection I asked you whether you wanted to say here is that there are marijuana plantations in the Community of Parán, first.
And second, if this dialogue, this quote, unquote, social process between Invicta and Parán, if
[Page 1362]
that is being negatively impacted by this marijuana business; right?
You can answer.
A. Well, Mr. President, before providing an answer, I would like to contextualize this in connection with the reason and the causes that we, as the State issued these kinds of documents.
PRESIDENT CROOK: Sir, you will, in due course, will be asked further questions by lawyers for the Respondent, and I think that might be an appropriate subject, if they want to raise it.
But I should assure you that we are quite familiar with the work of your office, with the record of this case, with the behavior of the parties.
So I don't know that we necessarily need a great deal more context. But as we go forward, if you feel there are specific facts that we should be aware of, you should certainly bring that to our attention.
We have very little time here today, and we are very pressed to complete the work so, for example, you can go back to Lima.
So let's see if we can press on.
[Page 1363]
BY MR. GALLEGO:
Q. Yes.
Mr. León, I was referring you to this paragraph, and I was asking you to confirm my understanding that the social process was affected by the marijuana business.
I understand that you said yes; right?
A. No. It was not being affected by the situation you have just referred.
Q. Excuse me. But here it says that the social process of the mining company maintains with Parán is affected by the presence of interests outside the State, producers of local marijuana plantations.
A. This has to do with the State, and not with the mining process.
Q. What it's saying is interests outside the State. So we're talking about things against the law.
A. Yes.
Q. There is an illegal business. This entails certain interests. These are illegal, and this is preventing a good faith negotiation between the company and Parán; correct?
[Page 1364]
A. That's not true. At no time did the company, during the dialogues of the meetings, say that these kinds of illegal activities were adversely affecting the dialogue. At no time was that an obstacle for us as the government, and for the community, and the company to have a rapprochement.
Q. I'm not talking about what the company said.
I'm talking your assessment, your specific assessment of the situation that you are expressing here in this aide-mémoire; right?
Are we understanding each other in this connection? This is your assessment of this situation. You understand that?
A. Yes.
Q. Not only do you say this, but if we go to the next page where it talks about the "dialogue mechanisms are not to be--are not appropriate in this case because the community leadership manages a double discourse with the government and its population, evidencing with this the presence and active participation of local actors who, in an economy outside the law, subsidize activities contrary to
[Page 1365]
public order against the mining project."
Do you see that?
A. Yes.
Q. It appears that you are making a correlation between these facts here. First, you make comments in connection with the marijuana business within the community that is preventing dialogue.
Then you say, my recommendation in this document is that the dialogue process is not appropriate because of this marijuana business.
That is what you are saying; right?
A. Mr. President, if you take this into account, this document was issued on 20 February 2019, six days after the assessment I make in this document in connection with the lifting by the actors of the circumstances.
And the community and the company came together and engaged in dialogue to lift the blockade after the issuance of this document--six days after the issuance of this document.
So this document is a snapshot of the circumstances at the time.
[Page 1366]
Q. Would you please answer the question about this snapshot.
On 20 February, in your opinion, the dialogue was continuing?
A. The dialogue was not appropriate. On the part of the government, the dialogue was always something that was asked.
Q. But internally, in your recommendation, you're saying that the dialogue mechanisms are not appropriate. Mr. León, please, you're saying this clearly.
A. Again, Mr. President, six days after--well, us, as representatives of the government, always thought that dialogue was the way in which the parties had to engage with each other and try to solve their problems.
Q. Now, what was the purpose of your preparing this aide-mémoire?
A. These are internal documents, aide-mémoires are. They are used to provide context to our superiors of the circumstances surrounding dialogue processes.
[Page 1367]
Q. When you're making reference to your superiors, are you talking about the senior officials of the Ministry?
A. Yes. This was sent, as my e-mail indicates, to my coordinator, Mr. Ulloa. That's not what the e-mail says.
Q. Well, the e-mail doesn't really say anything.
A. The e-mail is directed to César Ulloa, who is my coordinator.
Q. So the idea of this aide-mémoire was to inform César Ulloa, or was it to inform higher levels; specifically, the highest level officials at the Ministry of Energy and Mines, through a filter, which Mr. Ulloa was the filter.
But the idea of the aide-mémoire was for it to go to the senior-level officials; yes or no?
A. The mechanism of the aide-mémoires, which are internal documents--well, I sent it to my coordinator, and then my coordinator has meetings with the director of the OGGS, depending on the time and space for dialogue or during the time that the
[Page 1368]
dialogue process lasted. There have been three heads of the OGGS, Mr. Fernando Castillo, Fernando Trigoso, and Miguel Kuzma.
Q. I think that what you are telling me is that you constantly worked with Mr. Ulloa, and that you would send an aide-mémoire to Mr. Ulloa, the aim being for him to send it on to your superiors; yes or no?
A. That's right. And so analyze strategies for continuing the dialogues.
Q. Let's look at the next document.
ARBITRATOR GRIFFITH: May I ask a question?
MR. GALLEGO: Yes, sir.
ARBITRATOR GRIFFITH: May I ask you, in your reference towards the bottom of the second page, when you say "MININTER is aware of this problem and activating the corresponding mechanisms," could you say what your understanding is of what those corresponding mechanisms were that you referred to?
THE WITNESS: Yes. Each state entity has its functions, and its areas of competence. With respect to that, I can say that Ministry of Interior and--that we--and at MINEM, we had information about
[Page 1369]
marijuana plants, not of the community, but of some community members, and the Ministry of Interior people mentioned that they were going to take actions on that topic.
ARBITRATOR GRIFFITH: Tell us what your understanding of these actions--I mean, this is a reference to the Parán Community.
What actions did you have in mind when you said "MININTER is activating the corresponding mechanisms"?
THE WITNESS: The representative of the ministry did not say what they would be, those corresponding mechanisms. He just said they were going to take action. He didn't tell me what they would be.
BY MR. GALLEGO:
Q. And Ms. Tello, I understand, found out about this through her coordination with the police; correct?
A. She knew that because of what representatives of the company had said.
Q. That they were going to take actions with
[Page 1370]
respect to the marijuana, that the police were going to?
A. I don't get your question.
Q. If here in your aide-mémoire you are referring to--well, in the paragraph that we see, and it begins with "the social process," it says, "Ministry of Interior is aware of this issue, the issue of the marijuana, and is activating the corresponding mechanisms." (As read.)
And in response to the Arbitrator's question regarding how you found this out, you said it was communicated to me by Ms. Tello; correct?
A. Correct. At the end of a meeting.
Q. Ms. Tello, how did she find out?
A. I don't know how she found out, but I would like to add that that issue was also taken up by--or mentioned by the company in a meeting.
Q. In other words, you believe that as of 20 February--or by 20 February, the company had already discussed it with State entities, and that is why Ms. Tello also mentioned it?
A. That, I don't know.
[Page 1371]
Q. Yes, but you raised the company, so I want to understand, chronologically speaking, why it's raised in connection with this comment that you make here, that the MININTER is aware of this problem and is activating the corresponding mechanisms.
It's the MININTER that is activating the corresponding mechanisms. I suppose it would do so on the basis of more than a simple comment by the company; correct?
A. The issue that you refer to, having to do with marijuana, was one in which, I repeat, it wasn't of much interest in connection with the social conflict. And I would state that it was not considered an underlying problem during the negotiations, and it did not affect how--the course of the negotiations.
That's what I can say in response to your question.
Q. Well, I don't really understand what you are telling me, because you are noting it here at the 20 February memorandum that it is a problem, but let's continue, then.
[Page 1372]
So you recall that the company did raise the marijuana problem as such?
A. Correct, yes.
Q. Very well.
Then you'd have to change your statement where you say that the company had never mentioned it.
This is at Paragraph 60, the last sentence. And the company, Invicta, said nothing about concern about marijuana. You clearly state this, so this needs to be corrected; right?
A. The context of my statement, sir, Mr. President, is that if we take the time to read the next paragraph, it was not a matter of concern to the company, the marijuana question, that is. It wasn't tied in with the social conflict. It was separate from the social conflict. This is what I say if one continues reading my statement where the attorney just cited it.
Q. Let us turn to Tab 10. That's Exhibit C-18.
ARBITRATOR GRIFFITH: Sorry, counsel. May I ask a question.
Having regard to your last answer, can you
[Page 1373]
explain how that is consistent with the paragraph that I took you to on the second page of your aide-mémoire where you refer to the social process with the mining company maintains with the Parán Community is affected by the presence outside the State.
Are those two statements inconsistent? What you just told us and this statement here, how do you reconcile them?
THE WITNESS: Sir, the impact has different degrees, or levels. So there is an impact because marijuana production is outside of the law. It's an illegal activity, but it was not very weighty when it came to the dialogue process.
ARBITRATOR GRIFFITH: What I was asking you, aren't you saying the opposite in your aide-mémoire? You say that it is affected. You don't need to answer the question if you can't, but that's the question.
THE WITNESS: Excuse me, sir.
I didn't understand.
ARBITRATOR GRIFFITH: I'm suggesting to you that the statement you make in Paragraph 61 of your witness statement is inconsistent with your statement
[Page 1374]
that the social process with the mining company maintains with the Parán Community is affected by the presence of interests outside the State, producers of local marijuana plantations.
Now, as I understand it, you're saying that these statements are not inconsistent.
If that's your view, just say so.
THE WITNESS: The two statements have different contexts in time, sir.
BY MR. GALLEGO:
Q. Well, let's turn to Tab 10, please. That's Exhibit C-18. Let me mention that this is a meeting, or a meeting summary of a meeting that happened on 27 May in [recte: 2019]. You were there with officials of the PCM the--or 2019, rather.
Mr. Bravo was there on behalf of Invicta. He was general manager. Also Mr. Velasquez, or rather, Mr. Vasquez. And at 9, point 9, which is on page 5, number 9.
You say, that Invicta indicated that the Parán leaders are being individuals and/or financed by persons from outside the community with their own
[Page 1375]
interests, drug trafficking, and informal mining mafias. With which at this meeting, which seems quite formal, because several State entities are represented, you are--they're being told that there are interests from outside the law.
Would you agree with me on that?
A. That is what Mr. Bravo said, yes.
Q. With which, there would appear to be some inconsistency with your statement where you say, in any event, at no time did Invicta argue or express concern over alleged marijuana activity; yes or no?
A. That's correct. But I repeat, they did not say that that was a cause for the parties not sitting down and not reaching an agreement.
Q. Very well. Here, Mr. León, we find ourselves in a desperate situation. This is May of 2019. Seven months have gone by, seven-and-a-half months since the blockade.
Invicta is saying here it's stating its concerns here, the causes of the blockade, and it's saying clearly, that there are illegal interests here, and it's saying that there is drug trafficking and
[Page 1376]
informal mining mafias, who--what they want is to exploit the mine. He is saying it clearly. It's not a comment with no consequences. Rather, it's a comment that he's making precisely because they want to recover the project.
And, he's saying here that these people, community members of Parán, don't want to negotiate because they have illegal interests in mind. The same exact thing that you were saying in 20 February with your memo; wouldn't you agree?
A. May I make a clarification?
The aide-mémoire that you've put before me has the date of 27 February. As of that date, there had already been an agreement and a lifting of the coercive measure which happened 26 February, four months after Parán began the blockade.
This document that you are now putting before me as a reference does say what you are indicating, but it doesn't reflect the reality. There had already been a rapprochement and a lifting of the blockade. There was an understanding of the parties was reached on 26 February.
[Page 1377]
Q. Thank you, Mr. León, but on 20 March, they invaded the site, the Parán Community members did, once again; isn't that so? So once again, we are facing a coercive measure, no?
A. The dialogues have that peculiarity. Any dialogue form has its high points, its middle points, and its low points, and we always understood that that was the mechanics of the mechanism that unfolds in the context of a dialogue.
Q. At any rate, the only thing I want to point out here in showing you this document is that you state in your witness statement that they never said anything about it. The representatives of Invicta, that is, that there were unlawful interests related to marijuana production. And here, it is--it says that the leaders of Parán are being advised or financed by persons from outside the community with their own interests, drug trafficking and informal mining mafias.
You're saying this directly. So is that simply to--correct your statement. That's why we're looking at this, Mr. León; right?
[Page 1378]
A. In the alleged situation, the reference is to leaders, and not the community as a whole.
Q. Well, we have little time, so we're talking here about a meeting that you had with the authority, the same authorities that we're seeing here who were present at this meeting, which was held as of 11:15 a.m. in Lima, and right before that, there was another meeting between just the--just among the authorities of the State to prepare this.
Do you recall that?
A. I do not.
ARBITRATOR GRIFFITH: Might I ask? Sorry to interrupt.
MR. GALLEGO: Sure.
ARBITRATOR GRIFFITH: I'm somewhat concerned about your statement in Paragraph 60 that in any event at no time did the Claimant or Invicta argue or express concern over alleged marijuana activity.
Do I understand you correctly to say that, when you look at Paragraph 9 under Tab 10, that you make a distinction between leaders raising this issue and nonleaders?
[Page 1379]
What I suggest to you is that the statement, "In any event at no time did Claimant or Invicta argue or express concern over alleged marijuana activity," is it possible to read that as consistent with the statement in Paragraph 9? You said there's a difference because it refers to leaders. But are you saying that that does not contradict your statement at the end of Paragraph 60?
THE WITNESS: Correct.
BY MR. GALLEGO:
Q. So let's go to the minutes of the meeting held ahead of time among the various ministers. This is at Tab 47 of the binder. It's at page 3. Where it says, current situation, critical aspect.
First, you come across the English language version, and then you get to the Spanish language original.
A. 46, did you say?
Q. I'm sorry, Mr. León. It's Tab 47.
Once again, we have an aide-mémoire dated 27 May 2019 which has been drafted, it appears by the Presidency of the Council of Ministers, and at page 3,
[Page 1380]
under current situation, critical aspect, mention is made of the meeting prior to the meeting with Mr. Bravo, and we know this because it says, at 9 to 11 a.m., and then in the third paragraph, it speaks of the subsequent meeting with Mr. Bravo, at 11 a.m. to 1 p.m.; right?
A. Yes.
Q. Well, and in that first meeting, you were mentioning several things, but at the end of the second paragraph, you say there is evidence of poppy, marijuana crops in Parán, and in relation to the possession of weapons in the community, it is known that they have weapons that were handed over in the 1990s to the Rondas Campesinas, and specifically defense groups and others that have not been registered. It was suggested that the PNP schedule the corresponding search and seizure.
Do you see that? Do you see that?
A. Yes.
Q. So just before the meeting with Mr. Bravo, even before Invicta mentioned that it was a concern of it, it was also being discussed internally that this
[Page 1381]
was a problem; right? The issue of the marijuana crops?
A. Yes, according to the date, 27 May.
Q. So for you all, it was a concern, the question of the marijuana crops. It was an impediment to reaching an agreement; correct?
A. No, it is not. That is not correct.
Q. So, why are they discussing it here. Here there are several of you authorities who are in charge of the dialogue, including particularly you, and they're here discussing the situation in Parán.
By now, by this time, being seven months have gone by, and you are about to meet with Mr. Bravo, and you are noting the important points that are standing in the way of progress being made in the negotiation.
And two are mentioned: First, marijuana; second, weapons. It seems to me that this was an important consideration on the part of the State in that meeting; yes or no?
A. As I repeat, Mr. President, the marijuana issue was not a priority that we had, as the State,
[Page 1382]
had mapped out in the context of that incident or that activity being at odds with the dialogue going forward. We did not understand that nor did the company understand that.
Had that been the case, then the State--then the company, rather, would have attached the copy of some complaint.
This was a report on the circumstances that need to be put in context. These are situations that need to be mapped out in order to have a response in a different scenario. But I will state once again, the activity referred to was not the preponderant negative in the State going forward to establish a dialogue, since in February, four months after the takeover of the mine, we were able to establish a dialogue.
Q. Very well. And at this point, three months had gone by since that--those minutes of 26 February 2019, several months had gone by, and we are in the situation that's being mentioned here; right? And here--well, you were at that meeting. And what's being said is that there is a concern over the weapons and the marijuana in the community.
[Page 1383]
Can you confirm for me, please, that you did discuss that?
A. It was just mentioned.
Q. Specifically it was suggested that the national police schedule the corresponding registration and search. That would appear to be a very important suggestion, don't you think, to be able to continue with the dialogue? Isn't that so?
A. No. There was no nexus between the searches such as to have it be a requirement for continuing the dialogue.
Q. So in other words, according to you, it was reasonable for the company to negotiate with drug traffickers and with people who were armed. That was the policy of the State; correct?
A. That is not right. That's not correct.
We could not very easily, Mr. President, because of two or three individuals, accuse a whole community of such a serious crime. I think it would be irresponsible on the part of the State, Mr. President, for us to take on that topic.
What I can say, Mr. President, is that we as
[Page 1384]
the State, have always been in favor of dialogue, and that has been a constant throughout the process.
Q. And indeed, at least as long as Invicta was there, there was no search and seizure of the weapons; correct?
A. I'm not able to say.
Q. In other words, you don't know?
A. I don't know.
Q. Nor were the marijuana plantations eliminated while Invicta was there; correct?
A. I don't know that, Mr. President.
Q. In other words, you were commenting during this meeting it seems that that was a major discussion, and it was reiterated by Mr. Bravo, this issue, that is, at the meeting that happened immediately thereafter.
And you are not aware of what happened with that in relation to the weapons, as well as in relation to the marijuana plantations; correct?
A. As you mention it, after May 27th, after the meeting we had, the legal office for social management continued with that up to September, I do not know, I
[Page 1385]
do not know whether some mechanisms were activated on the matter to which you refer, the issue of marijuana and the issue of weapons.
Q. Okay, so we would agree that up to September 2019, nothing was done in connection with these two issues?
A. I do not know. I cannot assert or deny that.
Q. How can you not know this, since you were attempting to promote dialogue? You had to know all of the facts, all of the important facts, and also the factors that could have an impact on the dialogue.
How can you say that, Mr. León?
A. You just said it. It was not a gravitating issue, the issue of weapons and the issue of illicit drug trafficking in this dialogue process.
PRESIDENT CROOK: This is the time for the lunch break. Is this a convenient time for you?
MR. GALLEGO: It is, Mr. President. Thank you very much.
PRESIDENT CROOK: All right. Then let us rise for 40 minutes.
[Page 1386]
Mr. León, during the lunch period, you will not be able to discuss your testimony with anyone, and someone will take you to a nice place for a private lunch, and we will then see you in 40 minutes.
Is that agreeable, sir?
THE WITNESS: Yes, sir.
PRESIDENT CROOK: Good. Thank you.
(Whereupon, there was a recess in the proceedings, 1:02 p.m. - 1:41 p.m.)
PRESIDENT CROOK: I thank everyone for returning so efficiently.
Let's assume the examination.
MR. GALLEGO: Thank you, Mr. President.
BY MR. GALLEGO:
Q. Mr. León, let us look at Paragraph 41 of your second statement, please. Do you have it in front of you?
A. Yes, I do.
Q. At 41, you are saying, Second, in any of these documents there is any recommendation to encourage the use of force, contrary to what Mr. Bravo indicated in the internal memorandum of March 2019. I
[Page 1387]
never referred to the use of force when suggesting the restoration of public order on the part of the MININTER and DGOP and PNP.
To restore public order, restoring public order does not necessarily imply the use of force or the execution of a Police Operational Plan. These entities have other means of dialogue, negotiation and persuasion.
Having read your statement, let us now look at the memorandum that you drafted on March 20, 2019. This is at Tab 46. And this is Exhibit C-576. Do you have it in front of you?
A. What tab?
Q. 46. And this document we know was drafted by you. And we also know that it was on March 20, 2019, since this is what we read at Paragraph--at the paragraph in connection with the current situation.
Almost towards the end of the first page, it says, "As of today, March 20, 2019, approximately 150 community members are once again stationed..."
Do you see it?
A. Yes.
[Page 1388]
Q. In the paragraph "prospects", it says, "Following the community's decision to resume protest actions as a result of the company's noncompliance, the dialogue has broken down. And the executive has exhausted this channel.
To the extent that the noncompliance with the commitment has broken the trust and the credibility of the actors participating in the process, and any exhortation on the matter in favor of one of the actors could generate a perception of bias that allows for the escalation of the protest measure".
Mr. Leon, in other words, there is no longer any room for dialogue, and no entity within the executive branch ought to promote this, correct?
A. That's not the case.
Should I repeat? As the office of social management, we never give up to have dialogue as the best solution to the conflict.
Q. Mr. León, here you are saying on March 20 that there is no dialogue. It has been broken down; yes or no?
[Page 1389]
A. That was an interpretation of the minutes, basically, and the dialogue spaces have some time, and it doesn't mean that the February 20th session was going to bring an end to that dialogue. This is just the beginning, the lifting of that measure, the lifting of the blockade is just the beginning. There is no set duration.
So even though it is true that we were unable, and we should not, and we do not say that one of the parties is responsible for breaking down the dialogue, as stated here. Because, Mr. President, it could well be that one of the parties decides to state that we are biased, and that is not the role of the State, in this case, the Ministry of Energy and Mines.
Q. Mr. León, I find it very difficult to understand what are you telling me, because here it clearly states that dialogue has broken down. If dialogue has broken down, it's impossible to continue with dialogue, and for that reason, in your recommendation, you state, given this situation, it is recommended for the public order mechanisms to be activated by the MININTER, which has an action plan
[Page 1390]
for this. But not signed, given that the current policy is one of nonintervention; therefore, requiring that dialogue be exhausted as in this case.
However, since the beginning of the conflict to date, the policy of nonintervention has prevailed in relation to which a discussion at the highest level between the deputy ministers is proposed to enable the activation of this plan of action in the face of a scenario like the present one.
So in this case, first, are you saying that there is a need to restore public order, and that this will be done by means of a plan of action to this end; correct?
A. Yes.
Q. This plan of action is the Police Operational Plan that you were aware of; correct?
A. No. That is not true.
No, the Ministry of the Interior has as part of its structure the office of public management.
MININTER does not implement an intervention plan.
That office, the office of public order management is the one that has some ability to solve
[Page 1391]
social conflicts.
Q. I apologize, Mr. León, but within MININTER does include the police; correct?
A. No, it is not part of that. The police is autonomous in the decisions, and their operational plans.
My suggestion here is that MININTER--I am suggesting here MININTER, not the national police.
Q. And what is it that is your suggestion, is it MININTER--is it for MININTER to continue with the dialogue; is that what you are saying?
A. I repeat: The MININTER, Mr. President, includes as part of its functions the Office for the Management of Public Order. The discourses given by each sector of the State, Mr. President, are different from that given by the Ministry of Energy and Mines. We see a social aspect here. The Ministry of the Interior, through the OGDP, oversees public order. Their discourse does not relate to the social aspect. To block that public road is a crime, and it has to be opened.
The view of MININTER is exactly that, that
[Page 1392]
is to say to--when we see that there is a crime, the actors are identified, and in this type of process, there is also a prosecutor to prevent the crime. That goes together with the ombudsman, and they have a different discourse; that is to say, there is a social discourse, but there is a marked difference, and that's the reason why we need MININTER to comply with their role, and we never suggested the participation of the police. That was not our role. This is not what we do from our agency, from OGGS.
Q. Mr. León, so you're saying that more dialogue was needed; is that what are you saying?
A. Correct.
Q. For that dialogue to take place, even though if it was broken down, as you said in that document; correct?
A. That is correct. That is correct, yes, Mr. President.
Q. And that in spite of what you mention here that there is a nonintervention policy, that is to say, nonpolice--not intervention by the police, you are suggesting that nonintervention should continue;
[Page 1393]
is that what you are saying, in spite of the letter of this document, Mr. León?
A. Let me reiterate that intervention was not part of the OGGS.
Q. I apologize, Mr. León. We're talking about what you recommended, intervention by MININTER, not an operational plan.
And here, you are suggesting a communication at the highest level with the vice ministers to activate this action plan. This action plan assumes just a dialogue, according to your point of view?
A. Yes. That is correct.
ARBITRATOR GARIBALDI: You're saying in this document, the recommendation is--at the subparagraph on recommendation, there is a reference to MININTER that has an action plan for this, but not signed.
What is the plan of action that MININTER has, the one that you are referring to?
THE WITNESS: That is based on their roles and jurisdiction.
ARBITRATOR GARIBALDI: No, no, no. You are talking about a specific plan, and then later on, you
[Page 1394]
say that allows for this activation of this plan of action. You are talking about, in this paragraph, to a plan, a specific plan.
What is that plan?
THE WITNESS: To meet with the community, as I explained before, with various actors of the State, the office of the attorney--the prosecutor, and the ombudsman's office.
ARBITRATOR GARIBALDI: Did you receive a copy of the plan?
THE WITNESS: Well, that only reflects the ideas that we exchange at meetings.
ARBITRATOR GARIBALDI: So was it a specific plan, the one that you just described?
THE WITNESS: Not as a plan, no.
ARBITRATOR GARIBALDI: They were just ideas.
THE WITNESS: Yes. They were just ideas and guidelines we had. As I have already said, Mr. President, the State has various agencies, ministries. The National Peruvian Police also has a social management office. The use of force, for us as the MINEM, was not part of our plans.
[Page 1395]
MR. GALLEGO: (Overlapping speaker with translation.)
--the end, Mr. President, but just a couple of further questions.
BY MR. GALLEGO:
Q. You have mentioned that here there was a crime. Isn't that correct? And that is the reason why the MININTER's intervention was proper. Isn't that correct?
A. The blockade of roads is a crime in Peru because it goes against the freedom to use the road.
Q. And here, therefore, we were before a crime. You confirmed this earlier. Right?
A. It is a crime.
Q. In spite of the fact that there is a flagrant crime, you are telling me now that police intervention was not warranted, only dialogue; correct?
A. The circumstances that underlie the crimes in this type of acts have a cause. That's why we from the Peruvian state continued to be aware that dialogue is the best mechanism to maintain social peace in a
[Page 1396]
given area.
Q. As a matter of fact, and to conclude, Mr. León, there was a need to talk to drug traffickers and individuals branding weapons; that's what you are telling us; right? That's what you are telling the people here?
A. No, that is not correct.
Q. They were not armed?
A. We did not have a report from the OGGS. There was no documentation from the company verifying what you are just saying, the issue of the weapons and illicit drug trafficking.
Q. I apologize, but you drafted a document on February 20 confirming that they had arms, weapons.
A. The document that you are referring to is a study of the actors of the circumstances that were presented at a specific point in time. And also as part of a dialogue, we cannot, from the point of view of the State, stop from mentioning those acts, but it is also true that as OGGS, we assess if that act or that fact may have any impact on the conflict.
And we were right in that it was not,
[Page 1397]
because the company did not tell us "this is the complaint by the company before the office of the prosecutor." That was not the case. It was not.
[They never said] "I have this statement before the police." They never gave us that. Therefore, we knew that the issue of drug trafficking and weapons was not something impacting the conflict.
The conflict eventually fell on both sides, on both sides. Even though it is true that both accused each other of noncompliance, we as social management were always there encouraging the dialogue.
We were also--the company also blamed the company for noncompliance, but we were there. We encouraged dialogue as the best option after the incursion.
After the invasion, we continued to talk about the dialogue and the importance, and that has been a constant conduct.
Q. Mr. León, if there is a person that attacks your house, the person comes with weapons, takes all of your possessions, and remains there during nine months, according to you, there shouldn't be any police intervention, just talking to that person,
[Page 1398]
having a dialogue, and attempting to have an agreement, even though they are armed and they are drug dealers; is that what are you telling the members of the Tribunal?
A. Are you talking about weapons because of the weapons the company had?
Q. No. Answer my question.
If a drug trafficker goes into your home and stays in your home for nine months--
MR. GRANÉ: (Overlapping speaker with translation.)
I don't know if this is cross-examination, but he is now putting to a fact witness hypotheticals on an issue that is not within this witness's competence which is how you deal with a situation through the use of force, PNP.
We're not in a situation where someone goes into someone's house armed and stays during nine months. It's a hypothetical, and the witness should not be put in the situation having to answer that question.
MR. GALLEGO: I respectfully disagree,
[Page 1399]
Mr. President.
PRESIDENT CROOK: I think that the Tribunal can sort of anticipate if the question were put, what the nature of the answer that we would receive. And so I think, given that, it might not be the optimum use of time.
I know the Tribunal has a number of questions it would like to put to this witness, so we hope we could have some time for that, and we do have yet the need for the redirect.
MR. GALLEGO: Thank you, Mr. President.
That concludes my cross-examination.
PRESIDENT CROOK: Okay.
Redirect?
MR. GRANÉ: No, thank you.
PRESIDENT CROOK: All right. I have some questions. Let me check with my colleagues. All right. Let's start with...
QUESTIONS BY THE TRIBUNAL
ARBITRATOR GRIFFITH: Are you aware, Mr. León, that there's a police report that at about mid-day on the 15th of May, several members of the
[Page 1400]
community disarmed some of the red guards, and shortly after, one of those guards was shot and died?
Are you aware of that report?
THE WITNESS: I do not know, sir.
Could you please show me the document you are referring to?
ARBITRATOR GRIFFITH: It's Paragraph 25 on Exhibit C-640.
But before we do that, are you saying that you haven't heard of a report that on the 15th of May, one of the red guards was intercepted by a few of the Parán Community, and shortly after was shot and died.
Have you not heard of that?
THE WITNESS: No, Mr. Griffith, no. I don't know of that report, per se. I have not seen that report.
ARBITRATOR GRIFFITH: You were closely involved with the community, including in May 2019, were you not?
THE WITNESS: Yes, in 2019.
ARBITRATOR GRIFFITH: Were you aware--
(Clarification requested by the Realtime
[Page 1401]
Stenographer.)
ARBITRATOR GRIFFITH: Were you closely involved with issues concerning establishing dialogue with the community in May 2019? That's a yes or no.
THE WITNESS: That's correct.
ARBITRATOR GRIFFITH: Are you indicating that you're unaware of the fact which is reported in the police report, C-640, that on the 15th of May, members of the Parán Community intercepted some of the red guards, and shortly after, one of them was shot and died; are you aware of that incident?
THE WITNESS: I don't know of the document. I know of the fact, the event.
ARBITRATOR GRIFFITH: Okay. I'm not asking you about the document. I'm asking you about the fact. Don't prevaricate.
Do you know of an incident on the 15th of May whereby it is asserted that members of the Parán Community disarmed and then shot one of the red guards who subsequently died the same afternoon; do you know about that or not?
THE WITNESS: Yes. I knew that there was a
[Page 1402]
confrontation and that one person died.
ARBITRATOR GRIFFITH: Well, arising from that incident, would you regard that incident, which might be described as murder, as being a matter over which dialogue should have priority in its investigation?
What's your view of that? Which is the more important, dialogue or investigation of a murder?
THE WITNESS: The investigation of the murder was not within my authority, within my jurisdiction. There are other entities such as the national police of Perú or the prosecutor's office.
At the OGGS, what we did was engage in dialogue.
ARBITRATOR GRIFFITH: So you don't regard that as a relevant matter? Of the dialogue.
THE WITNESS: From the government, when we found out about the event that you have just relayed to me, well, we held a meeting with the representatives of the company. We wanted them to see that these kinds of attitudes didn't really help dialogue.
[Page 1403]
We in the government responded that incident, we continued, sir, on insisting that the dialogue was the best way to do things.
After the incident, we held meetings in Sayán, and this event transpired in May. Our latest action there as OGGS was in September. We continued having to deal with these negative attitudes, but we were very aware that from the level of the government, we were always open to dialogue. We were supporting dialogue. It was very difficult, sir, that us, as the government, should not lose credibility.
A few days before we had had meetings with the Parán Community, and we said that we were going to sit down and discuss, and try to do away with our differences. But, the company--but the community, rather, did not want the dialogue. They didn't want dialogue. They felt that they had been deceived by the State. We attended a number of meetings, however.
ARBITRATOR GRIFFITH: Thank you. No further questions.
PRESIDENT CROOK: I have two or three questions, sir. First, early in your statement, you
[Page 1404]
referred to how in road closure cases, your organization always asks for lifting of the blockade.
Do you recall saying that?
THE WITNESS: Yes, Mr. President.
PRESIDENT CROOK: Have you personally been involved in multiple road closure cases?
THE WITNESS: Yes, Mr. President.
PRESIDENT CROOK: Can you estimate how many?
THE WITNESS: Four.
PRESIDENT CROOK: In any of those, was there ever any intervention by the police?
THE WITNESS: There was support by the police for security purposes, safety purposes, in connection with some entities of the State.
PRESIDENT CROOK: All right. So in the four cases that you were involved in, there was some role played by the police; is that right?
THE WITNESS: It provided security.
PRESIDENT CROOK: I see. It would be interesting to examine those four cases, but I'm afraid we don't have time to pursue that. But certainly in your experience, there have been
[Page 1405]
situations where police participation in the resolution of a situation made a contribution; is that right?
THE WITNESS: Yes. Again, Mr. President, the police provided support to us in those critical events, specifically, when there are situations that are quite important, such as the blockade of a roadway.
But we, at the OGGS, we were the leaders of the dialogue.
PRESIDENT CROOK: All right.
Now, you have made very clear in your testimony, and in the memoranda you sent up the chain that we have read, essentially that you agreed with Parán's interpretation of the agreement, and held the mining company responsible for its breakdown.
Is that an accurate assessment? Do you understand my question?
THE WITNESS: Could you please repeat the question, sir?
PRESIDENT CROOK: There are two parts.
Do you agree that under the February 26
[Page 1406]
agreement, there was no obligation to remove the road blockade? You did not require that the blockade be removed?
Do you agree with that statement?
THE WITNESS: The agreement had to do with the blockade--
PRESIDENT CROOK: Please, if you would answer my question.
Do you agree with the statement that the 26 February agreement did not require removing the blockade by Parán?
THE WITNESS: That's correct.
PRESIDENT CROOK: So it did not require removing the blockade.
All right, let's turn to the survey.
Your understanding is that there was an agreement for a survey to redesign the road; is that your understanding? It was a road survey.
THE WITNESS: Yes.
PRESIDENT CROOK: Now, are you aware of Mr. Bravo's testimony that that was not what was agreed, that he has a different understanding of
[Page 1407]
that--the purpose of that survey?
Are you aware of that position?
THE WITNESS: On the basis of the witness statements, yes.
PRESIDENT CROOK: All right.
So you think that the witness is not speaking truthfully when he said that was their concern?
THE WITNESS: If you allow me to put this in context in 30 seconds.
PRESIDENT CROOK: We have very little time.
Did you ever speak directly to Mr. Bravo about this issue? The issue of the purpose of the survey.
THE WITNESS: It had to do with the access road to the Parán Community, and consequently, to the mining unit.
PRESIDENT CROOK: I understand, but my question was did you ever discuss Mr. Bravo's concern directly with him?
THE WITNESS: During the meeting of 26 February, yes.
[Page 1408]
PRESIDENT CROOK: Okay. On the 26th of February, you did discuss with him his belief that the survey was for purposes of identifying affected land, and not for purposes of a road; is that right?
THE WITNESS: That's not correct.
PRESIDENT CROOK: Well, I understood that's what you said.
Have you ever discussed directly with Mr. Bravo his understanding of what the language of the agreement was supposed to mean?
THE WITNESS: No.
PRESIDENT CROOK: Okay.
Now, I'm looking at your memo, the one we were just looking at, C-576, and it's captioned, "protest over the mining company's failure to comply for the payment of the services of a topographer."
So in your understanding, the only issue was money, and not the scope of the survey; is that right?
THE WITNESS: Yes.
PRESIDENT CROOK: The scope of the survey had nothing to do with it?
THE WITNESS: No.
[Page 1409]
PRESIDENT CROOK: Now, let me ask you one last question. I'm sorry to press you, but we really are short on time. No, I'm sorry. Have a couple of questions.
Are you aware of current situation at the mine site? Is the mine operating, and if so, who is operating it? Do you have any knowledge of that?
THE WITNESS: I've heard that up until four months ago, there was activity, illegal activity there.
PRESIDENT CROOK: Do you know what happened four months ago?
THE WITNESS: There was illegal mining activities there.
PRESIDENT CROOK: Up until four months ago, suggesting that something happened four months ago, or that's the date of your information?
THE WITNESS: That was the date in which we gained knowledge at the office that activities were being carried out.
PRESIDENT CROOK: Okay. Are you currently in any sort of regular contact with the Parán
[Page 1410]
Community?
THE WITNESS: Because of the fact that we work closely with them, and with Invicta, yes, we have communications with all of the communities in which we have had an involvement.
Yeah, there is a link of communications, just to say how they're doing, just very simple issues.
PRESIDENT CROOK: All right. My last question. I have the sense from your papers, and tell me if I'm wrong, that you regarded the February 26 agreement as a significant accomplishment; is that right?
THE WITNESS: That's correct. Yes, sir.
PRESIDENT CROOK: Did you find yourself personally distressed that it did not succeed?
THE WITNESS: No, Mr. President. We know and we understand that this is part of the dialogue process.
PRESIDENT CROOK: Okay.
Well, thank you, sir, for your testimony.
I think we may have another question from
[Page 1411]
Arbitrator Garibaldi. Thank you.
ARBITRATOR GARIBALDI: Mr. León, in connection with the 26 February agreement, did you understand that that was mandatory for the parties, it was a mandatory agreement for the parties? That was your understanding?
THE WITNESS: Agreements are made to be complied with.
ARBITRATOR GARIBALDI: So it was compulsory?
THE WITNESS: Yes.
ARBITRATOR GARIBALDI: Legally binding?
THE WITNESS: Well, we have these dialogue forums, you have highs and lows in them. All agreements can be perfected, can be made more perfect.
ARBITRATOR GARIBALDI: Okay. They can be made more perfect; that's what you are saying?
THE WITNESS: Yes.
ARBITRATOR GARIBALDI: But is it binding while it is being perfected?
THE WITNESS: Yes. Both parties need to abide by the commitments made. These are commitments. These agreements are commitments by both parties in
[Page 1412]
the framework of the course of dialogue.
ARBITRATOR GARIBALDI: Are they legal commitments?
THE WITNESS: They are social commitments.
ARBITRATOR GARIBALDI: Are they legal or not? What is it that makes these agreements binding?
THE WITNESS: The binding nature has to do with the fact that the government guarantees a follow-up of the agreements made and evidenced in the meeting minutes.
ARBITRATOR GARIBALDI: Thank you.
PRESIDENT CROOK: I'm sorry. I thought I was done, but you just said the government plays a role in seeing these are followed up on.
I thought I remembered someplace in your testimony or the testimony of one of your colleagues that that was not the government's role.
Do I misremember that?
THE WITNESS: Mr. President, when you begin a process of dialogue, when you have the first dialogue measure, and that is--the first thing that we're looking for is for the blockade to be lifted,
[Page 1413]
and that's an achievement for us.
When there is an agreement, we do have an office that follows up--follows up on the agreements.
But we're talking about framework agreements, more. When we are dealing with a more--
PRESIDENT CROOK: (Overlapping speaker with translation.)
I think that clarifies the situation.
So I--again, I don't want to be rude to you, but we have a great deal we have to do yet this afternoon, and a limited time to do it.
So unless there are any further questions from my colleagues, I thank you for your testimony.
You are now relieved. You can begin to have conversations with the rest of humanity, and we thank you for your testimony.
THE WITNESS: Thank you very much, Mr. President. Members of the Tribunal. Thank you.
PRESIDENT CROOK: Welcome, ma'am. Can you introduce yourself--I take it you will be testifying in English.
THE WITNESS: I prefer to speak in Spanish,
[Page 1414]
but I can understand English, so I will be hearing in English, if that is okay with you.
PRESIDENT CROOK: It's okay with me. It's a question of how it works for purposes of the transcription.
Is that an issue?
SECRETARY: No, sir. It's not an issue.
PRESIDENT CROOK: Okay. I'm informed that that will work fine. So we'll see how it goes.
Can I ask you to identify yourself for purposes of the record, please.
THE EXPERT: Yes, sure. My name is Miyanou Dufour von Gordon.
MIYANOU DUFOUR VON GORDON,
RESPONDENT, EXPERT, CALLED
PRESIDENT CROOK: All right. You are, I'm sure, familiar with the procedure that's going to be followed here.
THE EXPERT: Yes.
PRESIDENT CROOK: You should have before you a declaration as an expert. Do you have that?
THE EXPERT: Yes.
[Page 1415]
PRESIDENT CROOK: Could you make that declaration, please.
THE EXPERT: I solemnly declare upon my honor and conscience that my statement will be in accordance with my sincere belief.
PRESIDENT CROOK: All right. Thank you. I'm sure that will be the case.
Now, are you aware that earlier this week, the Tribunal made a ruling with respect to portions of your report. Are you aware of that?
THE EXPERT: Yes. I'm aware and bearing into mind that, I have modified my presentation.
PRESIDENT CROOK: All right. That's very good. I appreciate that. I just wanted to make sure we were good on that.
THE EXPERT: Yes.
PRESIDENT CROOK: All right. I think, then, if there are no further administrative matters to deal with, I understand from counsel that you will be giving us an introductory report; is that right?
Within the agreed 30-minute limit.
THE EXPERT: That's correct.
[Page 1416]
PRESIDENT CROOK: Okay. We look for your report, then.
THE EXPERT: Excellent.
One second, please, because I have a PowerPoint.
PRESIDENT CROOK: While we're waiting for the technology, I should mention that if, at any point, you feel that we should--need to leave the room, let us know and we will certainly accommodate.
THE EXPERT: Excellent. Thank you.
PRESIDENT CROOK: Are we set with the technology now? I see nodding of heads. Very good.
All right. Please.
DIRECT PRESENTATION BY RESPONDENT'S EXPERT
THE EXPERT: I only want to check if it's--perfect. Excellent.
Good afternoon, Mr. President, members of the Tribunal. Good afternoon to everyone. My name is Miyanou Dufour, and I am a lawyer from the Pontificia Universidad Católica del Perú. I have more than 16 years' experience in regulatory, legal, social, and environmental matters in the mining sector.
[Page 1417]
For the past 16 years, what I have done is to provide advice in connection with the development of the strategy for permitting matters for mining companies in exploration projects and operations projects. Rio Tinto, Lumina, Gold Fields, and others that work in Perú, those are my clients.
As I indicated initially, I have adapted my presentation to the ruling made by the Tribunal yesterday, so I'm going to speak only about the licensees that were included in the Memorial by the Republic of Perú, the Counter-Memorial.
We have two parts in my presentation. The first part has to do with a regulatory analysis of the requirements in Perú, and the second one, we're going to speak about social license matters.
First, we are going to talk about the regulations in Perú. The first thing I'm going to talk about, the permits that are needed in Perú for mining activities to be conducted.
I'm also going to talk about the Invicta project, and I'm going to describe it on the basis of the documents on file, and on the basis of that
[Page 1418]
information, I'm going to examine the insufficiency of the permits for mining and for processing.
First, as you can see in my presentation at number 1, I have included here the most important purposes that are required for mining activities to be conducted.
First, we have a group of permits that have to do with environmental certification--we have discussed this at length in the past few days--for mining and processing activities to be carried out, and for that, in Perú, you need an Environmental Impact Assessment, EIA.
If I want to change my mining project, I have to amend the EIA.
As at 2018, the date we're interested in, there were two methods to do this. You could ordinarily modify the EIA, or you could have an ITS.
An ITS, the technical report, is an easier processing.
It takes fewer--less time, and also in general, in connection with the ITS, the amendments shouldn't really be adversely impacting the environment significantly.
[Page 1419]
MR. FODEN: Sorry to interrupt, truly, but I think that the presentation has not, frankly, complied with yesterday's order.
There's discussions of beneficiation, which is not raised in the Respondent's Counter-Memorial.
Similarly, with respect to water sources and the need for permitting for an alternative water source, not the water system, but a water source.
Yet, we still see these in the presentation.
PRESIDENT CROOK: So let's consider as we go. So far, we have heard about the EIA. We know about that. We know that it was subject to modification. We have heard about the ITS, which is not is not--is hardly new. Next item, the mine closure plan. That certainly has been in play.
The stages for the mining operating permit, that has previously been in play.
When we get to water use, we may begin to have some issues, so let's not confront our problems until we come to them, but at least of I think in the first portion, it looks relatively consistent with all that went before.
[Page 1420]
MR. FODEN: Happy to play it as it lays, but I think we will have an issue when it comes to processing.
PRESIDENT CROOK: Let's confront our problems when we confront them.
THE WITNESS: Thank you very much.
As I was saying, in the group of environmental certifications, we have the mine closure plan, and I'm not going to address it here because I don't think it's part of the critical path.
As the second group, we have spoken first of the environmental certification. As the second group, we have the mining permits. Here we have two important groups for the mining and the processing of ore.
One, the mining authorization, which at that time had two stages. One was construction, and the second was operation. The second permit related to processing, which is the permit that one must obtain to be table to process the ore.
Finally, there are, in mining activities, other activities or components that require permits
[Page 1421]
and that are regulated that are independent, the environmental certification, and independent of the mining permit.
On this point, I want to specify three aspects that have been discussed this week. The first with respect to the ITS, Mr. Bravo said that the ITS is a voluntary instrument, which is not so.
For the ITS is compulsory when it is presented, because that is how one can modify the document.
The second point that I wanted to note is in Mr. Castañeda's statement, he said that the environmental management instrument was a responsibility of the environmental consulting company.
Here what I want to say is that in effect an environmental consulting company draws up the record or the report, but it is the mining title holder who is responsible for it and for what's established, and is the one who is subject to inspection and oversight.
As the third point, Mr. Bravo said that after the inspection of the mining permit, what one
[Page 1422]
would get would be a COM. This is not the permit that one gets. It is the permit that one seeks independently so as to be able to have explosives.
What's obtained after the inspection is the mining permit.
I think it's important that we all be on top of the same information so we can have it when rendering the evaluation.
Another important point is when I have calculated the time frames, I have calculated real--average, real time frames, and I must say, as you have seen in my report, that this is the common practice in the mining industry.
In the 16 years that I've been working on this, I have never presented a timetable with the legal time frames, with those that are established in the law and regulations.
What I do and what my mining clients always ask me for is for me to give them predictable, reasonable time frames so that on that basis they have the corresponding milestones at the moments established.
[Page 1423]
But it is important to note that this topic has been discussed, there are time frames that are established in the law, that is true. But those time frames don't mean that once it comes--the deadline comes, I get the permit. That's not what it means.
What it means is that you follow that--if you follow that time frame, then the administered party, the mining title holder, what they can consider as a relief is that they've been denied the permit. That's what they can do.
And they can then submit a challenge motion so that the next level can evaluate it.
In my experience, in the few, the very few cases in which some clients have applied for this relief, the time frame has been much longer than the average times.
I wanted to mention this because on the first day--
PRESIDENT CROOK: This relief, which relief are we talking about?
THE EXPERT: (In English.)
It's an appeal. You can consider if you--
[Page 1424]
PRESIDENT CROOK: We're talking about an appeal of a denial. Is that right?
THE EXPERT: Exactly, yes.
Yes, exactly. I say this because on the first day of this hearing, what was said was that illegal time frames had been used, and that is not so.
What I have used are the time frames which in regular practice are used, and as I indicate, the other time frames are time frames that are established in the law, which you can appeal. But they don't give you the option to consider it approved, except for a couple of cases of positive administrative silence where it's clearly not--does not apply to the environmental certification or the mining license, or mining permit, what they have to be considered as denied.
Now, getting into the description of the project, and also for the benefit of the request, and the rule that you have established, I have noted the paragraphs of the Counter-Memorial for you to verify that this was covered in the Counter-Memorial, and that is why I'm touching upon it in my presentation.
[Page 1425]
To be able to come up with a permitting strategy, I need to become familiar with the project, and in this case, as has been established by the Claimant, an underground mine had been considered with a capacity of 400 metric tons per day, and water use was considered.
The water use is necessary for mining activity. Without using water, it's not possible to carry out mining activity. That is why the EIA of 2009, which is introduced in the claim suggests that one must use water. That's why I'm touching upon it.
And as regards the processing of ore, once again, this topic has been touched upon in the Counter-Memorial because it's in the Memorial. What the Memorial indicates is that the processing will be done outside, and there are some options for doing so.
Based on this description and the law, I have proceeded to undertake an evaluation as of October of 2018 what permits did the project have, and which ones were lacking for them to legally initiate exploitation of the mine. There are three, the environmental certification. As we know, that has
[Page 1426]
been touched on quite a bit here, the mining permit to carry out the mining, and the water use, which as I say is in the initial document, in the Memorial.
Now, as regards the environmental certification that has been a matter of discussion, as of 2018, there were three instruments that had been approved for the Invicta project. The original EIA of 2009, which had a large project. Then, an ITS was submitted in 2015, which reduced the scope of the project, and converted it into only an underground mining project, with the capacity of 400 metric tons per day, and it withdrew many components, including a processing plant.
Initially, they had a plant within, and now they removed it.
And they had a second ITS which is a minor change having to do with a ventilation system inside the mine.
There's a third ITS that was submitted in August 2018. This ITS, as you know, and as has been discussed, was rejected by SENACE which is the authority that evaluates such permits.
[Page 1427]
Why this permit--well, it includes an alternative system for water management at the mine.
This system--just so that we're all on the same page, when you have an underground mine, you have perforated, you have created a mine opening, and at that time, if it were by an aquifer, water is going to begin to come out, naturally.
As was verified by the OEFA, that is what happened. The ministry, when it grants the permit for construction also identifies it. What it tells the company is, okay, I'm going to authorize you to construct--to build the mine, but water is going to come out. Undertake a study of how much water is going to come out and present me a system as to what you are going to do with that water. Are you going to treat it, are you going to discharge it, are you going to reuse it.
Since it is precisely a component of the mine, before beginning to operate the mine, before beginning exploitation, are you going to have to certify this vis-a-vis the authority. You are going to have to secure an environmental certification.
[Page 1428]
That is precisely what Invicta did when it included this in the third ITS. It included it to have it approved and to get a--an environmental certification.
Now, here I would like to note something.
On the first day, what Mr. Velarde said was that this alternative system had been done at the request of the OEFA.
Now, it's true that the OEFA made a request for corrective measure, but it did so in October of 2018. In August, the system had already been built.
So it's not at the request of the OEFA, but rather at the request of the ministry in 2015, that the request of this system be built.
Now, what happens here. When you present a study, the authority assesses it, and if it has technical shortcomings or problems, it asks that information be corrected. That's what is known as observations.
As you will realize, they asked that 49 points be corrected in the instrument. 23 of them were resolved, and the other half were not, and I want to highlight one of them, which I think is very
[Page 1429]
important here, which is precisely from the alternative system for water management inside that mine.
What the SENACE verified in the evaluation is that this system was already built.
In Perú the rule that exists precisely to avoid and prevent environmental impacts is that before building a component and starting it and operating it, you need to apply for environmental certification.
That is the rule that exists.
Now, in this case, there is a clear provision in the law that notes that if the authority verifies when it is assessing an instrument that something's already built, then the authority is under the obligation to declare it improper. That means that it must not environmentally certify that component, and that is precisely what happened in this case.
That is why, as of October 2018, this system did not have environmental certification.
Now, in the initial presentation, it was noted that this information of not being able to build
[Page 1430]
without certification, which is in my report, it's not just--I know this article has been shown here as well, but I simply wanted to note that.
One last point on the ITSes, Mr. Castañeda said in his testimony that it struck him that the ITSes that had been--were considered--we took two months to be considered for approval, whereas his had taken less than one month.
Well, if you look at the record, the first one took less than one month, the second one took three months--so my calculation is more beneficial--and the third one took two-and-a-half months to be disapproved, it wasn't even approved. So the time frames that I am considering are average and they're reasonable.
This issue has been touched on today.
That's why I included it in the presentation, which is the PAD. What Mr. Bravo said is that I can regularize with no problem my component, and he said that that was very common.
In effect, in Perú's history, there have been tools for regularizing components. There have
[Page 1431]
been two in the last ten years, not 10 or 15, as it appeared was trying to be said.
The PAD, this instrument, was approved in late May 2019, and it allowed the opportunity for the mining title holders to fall under this instrument.
Number one, according to the documentation in the record--I've looked at the exhibits--Invicta did not avail itself of the PAD or come under it. You didn't have to go to the field to do so. The first dossier that you have to submit is a very theoretical one, simply stating, in the first 30 days, I wish to avail myself of it. This is the information and then you have much more information to do so.
Second, I repeat, the MEM sought environmental certification, not just presenting the request, but securing the certifications. The PAD, in my experience--and I have seen three or four of them--takes about ten months for--to secure approval.
So this takes us to a time period much beyond what I calculated for a regular, average situation.
Therefore, in my opinion, what was pending
[Page 1432]
as of October 2018 was modifying the EIA so as to incorporate alternative system and to incorporate the water sources, and that required dismantling the system, because if it was operational--or operating, then it wasn't going to get the environmental certification.
The estimated time frame I gave is December 2019 to March of 2020, as environmental certification, and that is going to push back the rest of the permits, because the environmental certification is the master permit for the granting of all of the others.
Second group: Mining permit.
This group we've also discussed quite a bit.
An authorization for construction was sought, it was built, and it was not possible to carry out the supervision, and it was suspended on several occasions.
With respect to this point, what I want to say is the following: Mr. Castañeda said, I went to the ministry and immediately they would give me my authorization. Well, that is not so.
[Page 1433]
What the authority does is it goes up, it verifies that everything has been built in keeping with what was approved, and in this case it was going to verify that there was a change, the whole alternative system because it was in-mine, and then they ask for any number of documents, documents which are not in the record, whether Invicta--it's not clear whether Invicta had them or not. One of these is the guarantee.
In my report, I assumed that Invicta had the guarantee of the mine closure plan, which is a requirement, but from the record, it's not--doesn't appear that they had that.
Now, mindful of that, another permit that was pending was precisely the mining permit, which is what enables you to extract the ore from the deposit.
Now, for this, one of the requirements finally was to have the environmental certification, because as I've said, the very Ministry of Energy and Mines, what they said was, you have to have the environmental certification for the alternative system before you begin exploitation. It is a requirement
[Page 1434]
imposed by the authority, and that requirement was not called into question by Invicta at any time over these years.
Now, based on this, this permit--well, my view is that it could be secured between December of 2019 and March of 2020.
And as the final point in terms of the permits necessary for mining is water use.
As I said, the first EIA notes that there is use of water from a well.
MR. FODEN: The water usage is not one of the items set out in the Counter-Memorial as requiring an additional permit.
PRESIDENT CROOK: We will have to consult the Counter-Memorial. I wonder if Respondent has a quick reaction on that.
MR. GRANÉ: Yes. My quick reaction is the Claimant is wrong. Of course--
PRESIDENT CROOK: You might give as you reason.
MR. GRANÉ: If I may--
PRESIDENT CROOK: Please.
[Page 1435]
MR. GRANÉ: --Mr. President.
The information that was--
PRESIDENT CROOK: Just as a matter of time, I think it's probably not opportune to take this discussion out of the time for the expert's report.
Is that agreed?
THE EXPERT: Yes, please.
SECRETARY: I have stopped the clock, sir.
PRESIDENT CROOK: Well, we could...
MR. FODEN: I certainly wouldn't like it coming out of our time, sir.
PRESIDENT CROOK: Let's take a little Tribunal time for a very brief reaction to why you think this is timely.
Arbitrator Griffith proposes a different way of proceeding. Your view, sir.
ARBITRATOR GRIFFITH: I was just going to suggest that this objection is raised and denied, why not the time risk be on the party that is unsuccessful on the issue?
MR. FODEN: That's certainly fine by me.
PRESIDENT CROOK: I think we have a problem
[Page 1436]
with the--
(Clarification requested by the Realtime Stenographer.)
ARBITRATOR GRIFFITH: I'll say it again.
Why shouldn't the time risk be on the party that's unsuccessful on that issue, whether it's in or out?
PRESIDENT CROOK: The party is agreeable to that?
MR. FODEN: Perfectly suitable to me, sir.
PRESIDENT CROOK: All right.
So let's hear the Respondent.
MR. GRANÉ: Thank you very much, Mr. President.
The matter in which the project was presented in the Memorial, of course, it included, as part of the documents that they had submitted to the government, a water system. The source of that water that would be used in the mining project is what changed with the submission of the Reply.
Initially, under the EIA, the water source was a pond in Huamboy. Now, that changed with the information that was submitted in the Reply. There
[Page 1437]
was no way for the government of Perú to know of that change in the project of Invicta.
The expert has attempted to explain the information that was available at the time would not have allowed to reach that determination. The water source, the creeks that are now the source of the new project, as presented in the Reply, is an issue, again, that could not have been addressed.
Now, our submission is that Claimant has attempted to provide an oversimplified depiction of that change, the project, and the water sources.
Now, we submit that the expert is best placed to explain to the Tribunal what information was available at the Memorial stage, and what information was then provided at the Reply stage, that only then would have allowed Perú to respond.
So our request is that the expert be allowed to explain those technical issues that, of everyone in the room, she is best placed to address.
If the Tribunal afterwards determines that the explanation does not satisfy or comply with the procedural order that was issued by the Tribunal
[Page 1438]
yesterday, then at that moment, the Tribunal will be able to make a determination and disregard that information.
But such an important issue cannot be reduced to an objection, addressed in a couple of minutes, and then lead to vital information to be excluded from the record. Thank you.
PRESIDENT CROOK: Well, the traditional approach to this in a matter of this kind would be for the Arbitrators to go off and huddle and consult a reply, but I can see that taking a good deal of time.
Let me briefly consult with my colleagues how they want to--how we should proceed.
MR. FODEN: Mr. President, I'd like to be heard on this issue, if you don't mind.
PRESIDENT CROOK: Yes.
MR. FODEN: I can make it very brief.
PRESIDENT CROOK: Please.
MR. FODEN: Our colleague just said that an expert who submitted her report with a Reply is best placed to tell this Tribunal what information is available at the Memorial stage. That's just simply
[Page 1439]
wrong. That's multiple references to the Ruraycocha Creek throughout the Counter-Memorial. What they don't say is that we needed a permit to use it.
PRESIDENT CROOK: Well, again, we're getting to a level of detail that is a little bit difficult for the Tribunal to deal with in a few minutes' time without repairing to the Counter-Memorial and doing a word search.
Now, that's not entirely feasible at this point.
Let me pause for a moment, and consult with my colleagues.
MR. FODEN: Before I do, sir, I will also make clear that the section on processing falls within the ambit as well.
PRESIDENT CROOK: Let's deal with that when we get there. Do you mind?
MR. FODEN: We're in your hands, sir.
PRESIDENT CROOK: Okay.
(Pause in the proceedings.)
PRESIDENT CROOK: All right. The Tribunal's assessment is that we cannot in the present context
[Page 1440]
make an instant word search of the Reply to see the extent to which these issues may have been clarified.
So I think our ruling is that the expert should continue with this testimony, but the Tribunal will consider the matter--the objection that has been raised, and if we conclude on the basis of a fuller consideration, that this is out of order, we will simply not--we will not disregard it.
Given that we've arrived at this ambiguous outcome, our ruling is for the time required here be divided between the parties.
So that's where we are on that.
My calculation was at the point where this issue arose, we were someplace around 18 minutes into the report. Can you tell, Madam Secretary?
SECRETARY: Yeah. We were at 19 minutes and 33, so 19 minutes and a half at presentation. I stopped her clock at the time we started the discussion, and I have the separate counts of the parties' time on the discussion.
PRESIDENT CROOK: Okay.
So you stopped her clock sounds so dramatic.
[Page 1441]
Okay. So she has roughly 11 minutes; is that right?
SECRETARY: That's correct, sir.
PRESIDENT CROOK: Ma'am, you have heard that mechanical discussion. You have 11 minutes.
THE EXPERT: It's the same on my clock, so perfect.
PRESIDENT CROOK: Brilliant.
THE EXPERT: Excellent. Thank you very much for that.
So I will be a little more quick now.
As I was saying--
ARBITRATOR GRIFFITH: (Comment off microphone.)
THE EXPERT: As I was saying, the original EIA, the one that was approved indicates that the water is going to be extracted from the tubular well in Huamboy, but in a document that Invicta presented to the OEFA, in a sanction-imposing proceeding where they were sanctioned, Invicta indicated that it was going to use the water from three sources, one, Ruraycocha.
And there I want to note for the record as
[Page 1442]
reports Ruraycocha, in effect it is in the Memorial, and it has also been discussed in the Counter-Memorial, and to make life easier for the Tribunal, I have noted which paragraphs.
Another source noted is the Tunanhuaylaba Creek, and it is noted in the Reply brief. Previously it had not been indicated, but finally, the one permit is useful for the other because it's the same thing because they can be put together.
Finally, the other important permit was the water that would come from inside the mine.
Here, parenthetically, I would note briefly, the alternative system for in-mine water is not just for treating the water. What Invicta proposed was to use that water to re-circulate it, and to use it in the process.
So any use of water, capture and use, surface or underwater, according to Peruvian legislation requires a license.
So established in the general law on water resources, and its regulation.
What's needed to apply for a license? Well,
[Page 1443]
one, the environmental certification, which we've already discussed, and second, having built the works with an authorization for hydraulic infrastructure.
Based on the--what I have seen, and the time frames, after the environmental certification for securing the licenses, we would be talking about some time between June and July 2020, which that is when one would have obtained all of the main permits so as to begin mining at the Invicta project.
Up until that--so far, I have talked about all of the permits for mining. Now I'm going to talk about processing quickly.
As the Claimant has indicated, there were two alternatives--
MR. FODEN: I have to interrupt here as well. The objection remains.
PRESIDENT CROOK: All right. Now, we had multiple representations from the Claimants that whatever obstacles stood in the way of processing could be readily overcome.
THE WITNESS: Mm-hmm.
PRESIDENT CROOK: It seems to me that is an
[Page 1444]
appropriate matter, subject to the views of my colleagues, that that is--at least arguably, a matter that is appropriate for response in the next pleading.
Now, you seem to disagree, so Claimant, explain your view here.
MR. FODEN: I do, because if we look at your ruling, Paragraph 7(b), it says the portions of Ms. Dufour's report setting out regulatory requirements affecting the ability to begin commercial production that were not referred to in the Respondent's Counter-Memorial.
You will not find a single statement in the Counter-Memorial saying that we needed additional permitting to do beneficiation or processing.
PRESIDENT CROOK: All right, but how, then, are we to consider the multiple representations by the Claimant that essentially there was no problem. We can fix the problems on the plants, and move right along?
Is this not, in effect, a response to that?
MR. FODEN: I think we have to take the Respondent at its word, and if you look at Paragraph
[Page 1445]
146, it sets out the three requirements that they said had to be met in order for us to begin production.
That's not one of them.
ARBITRATOR GRIFFITH: Counter-Memorial.
MR. FODEN: Correct. Paragraph 146.
PRESIDENT CROOK: All right. Let me--let's hear briefly from the Respondent, and then we will--the Tribunal will briefly convene.
MR. GRANÉ: Thank you.
The Mallay Plant draft agreement, and of course, the Mallay Plant is one of such processing plants that have been invoked by Claimant as necessary for them to comply with their obligations under the PPF Agreement.
The Mallay Plant draft agreement was submitted with the Reply. That is C-287.
The documents related to the third-party processing plants--so, those were the other plants that the Claimant had considered were produced in response to document production, and in Castañeda's second witness statement, that's C-420, and C-421.
Now, those processing plants were addressed
[Page 1446]
by Perú, so they could cannot argue that they were raised for the first time in the Rejoinder. They were addressed by Perú in the Counter-Memorial, when we mentioned that there's a need for processing permits, and it's addressed in Paragraphs 290, 296, footnote 68.
Then problems with the processing at those mills were mentioned in Paragraphs 307, 309, 716, 748, 766, and 767.
This is not a new issue that was introduced at the Rejoinder.
Now, we understand Claimant's desperate attempt to suppress that evidence, but they're simply oversimplifying.
Thank you.
PRESIDENT CROOK: Let me consult again with my colleagues. Just a moment.
(Pause in the proceedings.)
PRESIDENT CROOK: All right. The Tribunal has determined that it will handle this one on the same basis.
We will let it in the remaining eight
[Page 1447]
minutes or whatever she may have, and we will then consider the various citations that have been given us to this issue in the past, to the extent that permitting has been in the past been raised. Then we will consider this evidence or not on the basis of that assessment.
So that's the Tribunal's decision on this matter.
About I think if we're going to talk about any issues here, we--strike that.
We'll handle this on the same basis as the other set of objections.
THE EXPERT: (In Spanish.)
Thank you very much.
As I was saying, now, I will be dealing with the permits for the processing activity. As you may have heard, and based on what they indicated, there were two alternatives. One was to use Mallay for processing. This is within the Mallay property that they wanted to acquire with the transfer contract with Buenaventura. The other one is through third-party alternatives for processing.
[Page 1448]
As to the Mallay Plant, in the Reply, we saw the draft contract, the draft contract for the transfer of the unit establishes conditions for the closing, that is the transfer of the unit, and also for the determination, that is when the transfers are--when the permits are transferred, and the last payment is made.
Mr. Bravo mentioned that the only requirement to be able to carry out the transfer was the assignment of the easement contract with the Mallay Community.
But if we look into the contract, we are going to be able to see that the closing conditions for both parties were about 10 to 12, and based on what we saw in the--on the record, the only one that is thereby analyzed is the one that has to do with the allocation, the assignment of rights for these way.
The second one is not addressed, and these are things that may take some time, once again, in my analysis, and also for the benefit of Invicta, I have assumed that in March 2019, everything was concluded.
But it is important to say that the record
[Page 1449]
does not have any documents that prove that.
In addition to this, and I think that this is the most important item that applies to this assumption, and the next one, what was going to be processed at these plants, the ore to be extracted from the Invicta project.
As we have indicated in the first section, with the mining permits, the closest time that I, in my opinion as an expert, independent expert, to have obtained all of the permits is July 2020. July 2020 would be the earliest when the ore may be processed in Mallay, and also at third-party plants.
In connection with third-party plants, I am not going to go into details. This is in my report, but let me point out that based on the documents that I reviewed for three plants, Altagracia, San Juan Evangelista and Huancapeti II, there was no reason for them to have the permits, and the permits were obtained later.
So much so that I mentioned about a beneficiation concession and at one point this concession was only obtained in October 2019. That
[Page 1450]
means that they didn't have it before this date.
Something that was striking when I reviewed the record is that there were some sample contracts saying with the three plants saying that the three plants had the permits, but when I went to the exhibits sent to me, I went there, but there were no permits. It has been very difficult to review that all of the permits had been granted, and it basically means--based on what I saw, that they did not have the permits.
Now, thinking of permits, my conclusion is that mining and processing could have only been started under a conservative view, view, that is the one that I would have recommended to any of my clients in July 2020.
Over the last four minutes left, I will try to quickly explain the social license.
I know it is a complex concept. I know that it is something that has been discussed, and I would like to just gather some ideas.
The social license is a goal for the companies to attain, but this is not only a goal for
[Page 1451]
the mining companies, but this goal is met by applying certain principles and tools.
This second portion, and as it is explained in my report, is regulated under the Peruvian regulation, and we will be analyzing this.
But I would like to say that literature also establishes, in addition to legislation, that trust is a very important component. Trust and acceptance that is attained between the mining company, and the social environment for the project, and it is considered social because the project will have an impact on it.
General provisions in Perú, beyond the mining regulation, indicate that there are some principles to develop these tools. For example, sustainable development, citizenship participation, but the most important point has to do with the regulations of the mining framework work.
As I mentioned before, for mining, I do need a guideline, and that guideline does not only include the environmental aspect, but a great deal of the social aspect.
So it covers the direct, social influence
[Page 1452]
area, a baseline to determine who is included; also, identification of impacts, and a Social Management Plan that used to be called community relations plan.
All of the commitments are mandatory, and they need to be complied with.
As part of the instruments for environmental management. This is a direct, social management area that is not modified in the first or second ITS, and as part of the direct social influence, we have the Parán Community. In this drawing, map presented by the company itself, we see that there is a boundary problem between Lacsanga and Parán.
These are some of the ideas that do have an impact on trust. For example, the sanction-imposing proceedings that lead to damages, the noncompliance with the community relations plan, and this is one of the tools to be able to obtain the license.
At some point we heard that these should not be taken into account, because the project was suspended. In order to suspend the project, you also need a permit. In Perú, we do have a great deal of regulations, and we do not see that permit.
[Page 1453]
So within that deadline, this community relations plan had to be met.
The last sanction has to do with the catchment of water. Without permit, the company was obtaining the water without permit.
To conclude, I only have two slides left, and I would like to answer five, brief questions.
Was it important for Parán to participate in the project? Yes. Because it was a social influence area. It was direct influence. It was an important stakeholder. As you have seen, there were some components, and this is something that has already been discussed. Access to Parán on the territory.
PRESIDENT CROOK: Ma'am, your time has expired. We have disrupted you, but if you've got a minute or two to finish up, please.
THE EXPERT: Thank you. Thank you very much.
The second one is Invicta led to expectations within the community, they may have generated the expectations, in my opinion. The answer is, yes, because it was part of the influence area,
[Page 1454]
and it also indicates that there is an access that will be on its land.
Since it is the area of influence, Parán considers, and this is also regulated, that all of the benefits and commitments are thereby established will also be for them.
Third question, that we have already heard. Would they have entered into any kind of agreement? I have two different items. Agreements for surface lands. Here we have the appearance of a component that has to do with the land. One of them is access from the legal point of view, you need an agreement.
As to the social license, yes, the social license is not a document, a permit, an agreement that is signed, but as I mentioned before, there are tools, and those tools, those agreements that are being met throughout time need to be in writing so that there is a measurement of how one is doing or complying or not.
Did Invicta comply with their social obligations based on the information that I had access to as part of the record, it was determined that they did not comply.
[Page 1455]
OEFA determined that there was noncompliance. There was a late payment of an amount that was agreed in 2017. Here, Mr. Bravo also indicated that and Mr. Castañeda indicated that that payment was conditioned. There were no conditions attached. It said 45 days, but it was paid throughout the year.
As I said, water was obtained without a permit, and that clearly impacted the credibility and trust.
To conclude, I believe that in this case we see these--significant mistakes--
PRESIDENT CROOK: You're two minutes over. I think we can probably surmise what your conclusions might be. So it might really be best if you would end at this point.
THE EXPERT: Sure.
PRESIDENT CROOK: Okay. Thank you.
All right.
SECRETARY: Microphone, sir.
PRESIDENT CROOK: The usual procedure. You will now be examined by counsel for Claimants. You
[Page 1456]
will then have the opportunity for redirect by Respondent.
I turn the questioning over to counsel for the Claimants.
MR. FODEN: Thank you, Mr. President.
CROSS-EXAMINATION
BY MR. FODEN:
Q. Good afternoon, Ms. Dufour.
Let's begin with a ground rule. Now the Tribunal's ruling, and some of the uncertainties that have surrounded that ruling that we just explored creates a slightly tricky situation in the context of a cross-examination. Because you have adduced certain annexes to your report that discuss, shall we say, both old and new requirements.
I may want to ask you about components of those documents dealing with the old requirements.
Do you understand?
A. Yes, I understand, but I--
Q. It was just a simple question, ma'am.
There might be times today when I want to test the methodology--
[Page 1457]
A. Okay.
Q. --underlying your assembly of those annexes as a whole. But I want to make clear to the Tribunal, to the Respondent, and the record that in so doing, we are not waiving the Claimant's rights with respect to the exclusion of any of the so-called new requirements.
Now, Ms. Dufour, in the last paragraph of your report, you say that your report is objective, and independent, and you have no conflict.
Is that correct?
A. Yeah. That's correct.
Q. You have been a partner at Hernandez & Cía since 2018; correct?
A. Correct.
Q. Presumably, your partnership shares profits like any other law firm; correct?
A. Correct.
SECRETARY: I'm sorry to interrupt. I know this is going to be an issue because the witness is listening to you in English, and then she's answering in Spanish, and when that happens, we need a pause
[Page 1458]
between the two of you, because the interpreters cannot catch up.
MR. FODEN: I think it would be easier, then, if perhaps the witness listened to me in English on the headphones.
MR. GRANÉ: She can decide for herself what she is going to listen to, Mr. President.
MR. FODEN: It's for the benefit of the interpreters, Mr. Grané.
MR. GRANÉ: I suggest you make a pause, then.
PRESIDENT CROOK: All right. How best do we solve the mechanical problem that we have here.
What's your suggestion?
THE INTERPRETER: They just need to make a small pause.
SECRETARY: When Mr. Di Rosa was cross-examining earlier--there are ways. So if Ms. Dufour, for example, looks at the transcript in the language in which she's not listening, then she will know when the interpreters have stopped.
The same for Mr.--
[Page 1459]
MR. FODEN: Foden. That's all right.
SECRETARY: I'm sorry. Mr. Foden.
PRESIDENT CROOK: All right. So everyone will keep an eye on the transcript and will not begin their next answer or question until the transcript stops rolling.
Is that agreeable all around?
MR. FODEN: Sure.
THE EXPERT: Excellent.
BY MR. FODEN:
Q. So if a partner, for instance in your firm's banking and finance department brings in a big mandate that generates significant fees, all of the partners are going to share in those fees; correct?
A. Yes, but I was hired.
(Clarification requested by the Spanish court reporter.)
THE EXPERT: What I was saying is that in this case, I have been hired as an independent expert on a personal basis.
Q. How did your partners react to that?
A. They have not had any issues because I have
[Page 1460]
explained to them that it was an important opportunity for me, and usually, I have worked this outside my business hours.
Q. So you can make profits for yourself that you don't contribute to the partners applying your legal expertise?
A. Yes. [For example, also within the legal firm], there are persons who are [act as] arbitrators and have direct income [from those activities].
(Clarification requested by the Spanish court reporter.)
THE INTERPRETER: Interpreters are two seconds behind her, so she continues to answer at the same speed. I mean she answers directly we do not have the two seconds we need for us to finish. We can finish but the court reporters cannot transcribe what we are saying. We are occupying the channel that they need to write on.
PRESIDENT CROOK: We are again having the same problem. We have--let's keep an eye on the transcript, and do not begin to speak until the transcript stops rolling.
[Page 1461]
Let's see if we can make that work.
SECRETARY: Ma'am, because you are speaking in Spanish, you would need to look at the English transcript. When that stops rolling, that's when you would start answering.
THE EXPERT: Thank you.
BY MR. FODEN:
Q. Ms. Dufour, your law firm has a procedure in place for running conflicts checks; correct?
A. Correct.
Q. And you are recognized in Chambers Partners and Legal 500 for both mining and environment; correct?
A. Yes. That is public information.
Q. I don't have the Legal 500 on record, but I looked at it.
SECRETARY: Sorry, Mr. Foden. I can see the interpreters. Let me see. Count one, two, three, once Mr. Foden finishes the question, you have to count one, two, three in your head before you start because it's just overlapping, and then the record--neither the audio or neither the transcript is
[Page 1462]
going to be able to reflect that if we keep overlapping.
I apologize.
BY MR. FODEN:
Q. We don't have the Legal 500 on record. I looked it up. I looked up your firm's profile, and I can't help but notice that the Republic of Perú is listed as a key client of your firm in two different locations; correct?
A. I am not certain. I know that the law firm has advised the Republic, but I would like to state that to date, there is another partner that is an independent expert against the Republic.
Q. Now, according to the Legal 500, your firm's mandates for Perú include advising it on a $5 billion sovereign bond issue, in both the US and European markets, and handling two ICSID cases.
Were you aware of those engagements when you prepared your expert report?
A. I know that the law firm has advised local counsel, the Republic of Perú. I do not have the details on that case because I have not participated,
[Page 1463]
and I have not been part of that--of the area--and the area that I lead has not been part of that, and that is the mining area.
Q. What about the bond issue?
A. Not that, either. I have no knowledge.
Q. You didn't know that your law firm was handling the issuance of a $5 billion sovereign bond.
One, two, three.
A. (In English.)
Thank you, Mr. Foden.
(In Spanish.)
Is what I have said is that I know that the law firm has been local counsel of the Republic, and I have also said that I do not have the details. This is the second time I say the same thing.
Q. Respectfully, ma'am. It's not. I'm not talking about acting as local counsel in ICSID cases. I think you need to listen to the question.
The question was about the bond issue, which was from 2021. While you were a partner at the law firm, how many partners are there in your law firm?
A. 20.
[Page 1464]
Q. So you're going to tell me that you didn't know that two years ago one of those 20 partners was handling a bond issue of that magnitude?
A. Yes, that is what I'm telling you.
Q. You realize that the two cases that you referenced, the ICSID cases, are currently pending?
A. I did not refer to them. You mentioned to them, and no, I do not know about the status of those cases.
Q. Ms. Dufour, how did those three engagements manifest themselves when you ran the conflicts check for this mandate as an expert?
A. When I did the consultation to be an independent expert, there was a comment that there were some cases, and it was verified by means of the conflict committee. I'm not a member of that conflict committee, that in this case there was an independent expert on a regulatory issue.
To be an independent expert on a regulatory issue would not mean a conflict.
Q. Did you review Procedural Order Number 1 as part of your mandate?
[Page 1465]
A. Could you please show it to me to review?
Q. No. I asked you a question if you reviewed it.
A. I do not know what rule you are referring to. That's why I'm asking you to see it to be able to confirm.
Q. Well, I'll tell you that Article 15 of our Procedural Order Number 1 incorporates the IBA rules of the taking of evidence in international arbitration as guidelines. Are you familiar with those rules?
A. Would you please show me that to review.
Q. Are you aware of the existence of the IBA Guidelines. It's a question of existence, not text.
A. I am aware that they exist. I am not very aware of the contents. This is the first time that I participate in an international arbitration.
Q. But you say in your CV that you have experience in the mining sector relevant to the potential position for participation as a mining expert in international arbitration.
Does that mean that this part of your CV was simply aspirational?
[Page 1466]
A. Would you please show me that portion.
Q. I'll have to come back to it. One of my colleagues will certainly pull it up.
But in the meantime, I'll come back to the guidelines.
A. Okay.
Q. On--
(Comment off microphone.)
Q. Does this expression simply mean that you were aspiring to be an expert?
A. No, no, no.
(In Spanish.)
No. Would you please show me the Spanish version. There is a problem here with the written translation.
It says, experience in the mining sector relevant to the potential commissioning for participation as a mining expert in international arbitration.
Here I was asked to issue a regulatory opinion. Then what I am including here is my experience, regulatory experience in Perú to see if
[Page 1467]
that qualified to be able to have this task.
Here, I'm sorry, I'm not saying that I am an expert in international arbitration.
Q. No one said you were an expert in international arbitration, and the translation, despite the fact that I don't speak Spanish, says effectively exactly what I asked you.
Is that part of your CV simply aspirational--
A. Yes.
Q. Wait until I finish asking the question.
Is that part of your CV simply aspirational?
A. No, it's not aspirational.
Here I'm saying what my experience is as to regulatory issues in Perú to see if I can comply with this request or not.
I do not understand the doubt here.
Q. What request are you talking about?
A. I did not understand your question.
Q. (Overlapping speaker with translation.)
Have you ever served as an expert in international arbitration before?
[Page 1468]
A. No.
Q. (Overlapping speaker with translation.)
So then why do you have that on your CV?
A. Mr. Foden, here it says experience in the mining sector relevant to a potential--potential participation. I was asked whether I had regulatory experience in Perú.
Q. (Overlapping speaker with translation.)
So Perú asked you to include that in your CV, then?
A. I do not understand why you're putting words in my mouth. No. The answer is no.
Q. (Overlapping speaker with translation.)
Well, ma'am, the translation says that you were asked whether you had regulatory experience relevant to arbitration.
Who asked you?
A. No. Okay. Let me read this again to see if we are able to understand each other.
Could you please show this Spanish version and of this version, please.
ARBITRATOR GRIFFITH: I'm the only--
[Page 1469]
MR. FODEN: I'd love some help, please.
ARBITRATOR GRIFFITH: I'm the only non-Spanish speaker, but I do speak the English language, but I think you can rely upon the Tribunal to look at the point that you obviously are making--
MR. FODEN: Certainly.
ARBITRATOR GRIFFITH: --to form the view as to the proper interpretation, and it's our view on interpretation that counts rather than this witness's.
MR. FODEN: Indeed.
BY MR. FODEN:
Q. So Ms. Dufour, perhaps if you haven't served as an expert before, I can tell you that there are these things called the IBA rules on the taking of evidence in international arbitration, and they serve as guidelines under the procedure of these proceedings.
They're not rules, but they're guidelines.
A. Okay.
Q. Do you understand?
Pursuant to Article--I'll read these rules to you. If my colleagues across the room want to tell
[Page 1470]
me that I got them wrong, they can come do that, but I'm not going to pull the document up. It's not part of record. It's incorporated by reference.
Pursuant to Article 5.2(a) of the IBA rules, an expert is required to present a statement regarding a present and past relationship with one of the parties.
But you made no disclosure in these proceedings of your present and past relationship with Perú, did you?
A. That is correct. Because I have not had a present nor a past relationship with Perú.
As you indicated very well, at any rate, Hernandez is the one that has had it, and I was the one hired. I had never provided services for the State in the past.
As I said, this is the first time that I have participated in international arbitration.
Q. So in your presentation, the second line is that you're a partner at Hernandez & Cía. You have already told me that you share profits with your partners in that law firm, and that law firm has
[Page 1471]
represented or is representing Perú in three different engagements.
Now you're going to tell me that you have no relationship with the Republic of Perú.
How do we get there?
A. I do not have it. I do not have any relationship with the Republic of Perú.
Q. Do you get profits from Mr. Hernandez's fees generated and paid by the Republic of Perú?
Do you share in those profits?
A. What I receive are the proceedings for my participation in Hernandez. That's what I receive, those profits.
Q. And you don't think that forms a relationship with you and the government?
A. No, because otherwise I would have relations with all of my clients, and that's not the case.
Q. They're firm clients, ma'am. You're part of the firm. You're part of the partnership.
A. Mm-hmm.
Q. I need a verbal answer.
A. I am a partner of the law firm, indeed. I
[Page 1472]
do have a stake there. That does not mean that I have a relationship with each one of the clients of the law firm.
Again, in this case, the engagement was done in my personal capacity as Ms. Dufour.
Q. In Perú, does a lawyer have a professional, ethical obligation to act on behalf of a firm's--on behalf of a firm client's best interest?
A. Ethically, of course, yes.
Q. And you also have a duty of independence to this Tribunal, don't you?
A. I do have a duty of independence vis-a-vis everyone here because the engagement has been as an independent expert.
If you had hired me to--
Q. (Overlapping speaker with translation.)
--you had a duty to the Tribunal--
A. (In English.)
Sorry, can I finish my answer.
Q. No, I'd like to ask my next question, which is do you not see--
MR. GRANÉ: Mr. President, the expert is
[Page 1473]
asking for an opportunity to respond. I respectfully request that the Tribunal make a decision whether she is allowed to respond.
PRESIDENT CROOK: I suggest, gentlemen, that this kind of sparring on this sort of matter is not very helpful in this context.
Let me just clarify.
Ma'am, how do you view your relationship to this Tribunal?
THE EXPERT: Independent and also independent with all of the parties.
If I had drafted this report for Invicta, I would have put every, exact word.
PRESIDENT CROOK: All right. So your testimony is that the fact that your partner--a partner in your law firm may act for Perú, in your assessment, has no effect on your independence or your report; is that correct?
THE EXPERT: That is correct. That is my answer.
PRESIDENT CROOK: So it's for the Tribunal to assess whether we accept that or not.
[Page 1474]
THE EXPERT: Exactly.
PRESIDENT CROOK: All right. Why don't we move on.
BY MR. FODEN:
Q. I'd liking to ask you about the instructions that you were given for your report.
Now, we've talked about those IBA Rules, and Section 5.2(b) of those rules requires you, in your report, to include a description of the instructions pursuant to which you're providing your opinions. You didn't include a discussion of any such instructions in your report, did you?
A. (In Spanish.)
Let me review. Paragraph 2 of my report, this report, this legal report is divided into two sections. The first section analyzes regulatory aspects.
Paragraph 3, the second section is an analysis of the social license.
That is the engagement that I have had.
Q. Is that what Perú instructed you to opine on?
[Page 1475]
A. The request that I received from Arnold & Porter was to prepare an independent expert report that analyzes regulatory aspects of the Invicta project and the social license. That is the request I got from A&P.
Q. You're aware, ma'am, that Perú relies on your report to show that, absent the blockade, my client would not have been ready--and I'm quoting from the Rejoinder here, Paragraph 311, "...would not have been ready for lawful commercial exploitation until, italics, July 2020, more than a year-and-a-half after the start date of the Claimant's repayment obligations to PLI Huaura."
My question is: Did you know that this was the purpose for which Perú was going to utilize your report?
THE INTERPRETER: She needs to start again.
BY MR. FODEN:
Q. You have to start again. You really have to take a pause after I ask you a question.
PRESIDENT CROOK: Ma'am, we had an interpretation overlap issue there. So we need to
[Page 1476]
have a little pause, and do you need the question repeated?
THE EXPERT: (In English.)
No.
PRESIDENT CROOK: Let's give your answer again, please.
THE EXPERT: (In Spanish.)
When I was hired by A&P, I know that I was not the only Peruvian lawyer that was contacted. A number of lawyers were contacted and were assessed to see whether we could do this engagement.
What I was asked to do in a very objective manner, was the following: Can you examine the regulatory situation in this case, and can you examine this concept of social licensing.
That's the only information that I received, and a number of documents were provided to me. At the time I did not have a lot of information about this case. We held a conference call with A&P, and with the information that I had, I made general comments, and I said, okay, I was suitable to conduct a regulatory evaluation, because that was part of my
[Page 1477]
expertise.
Also, I could assess the social license, because that's also part of my expertise.
And that was what was told to me, and that was the basis of my engagement, and on the basis of that, I prepared my report.
BY MR. FODEN:
Q. We'll certainly come to that on the social license.
But I wanted to know--at Paragraph 144 of your report--actually, I think that's in the Spanish. It's Paragraph 143 in my English, you make reference to a footnote in a document. It's a draft of the PPF Agreement with Pandion, and it's in Tab--but I happen to notice that you don't actually cite that document in your list of Annexes.
A. Let's see--
Q. (Overlapping speaker with translation.)
--ask a question, which was a poor question, admittedly.
Now, you refer to the draft agreement of the PPF, but not the actual agreement.
[Page 1478]
Did you at any point see the PPF Agreement?
A. I have seen the document later on. In connection with the draft, I am citing the portion that I review is the annex on permits. Unfortunately, in the case file, we didn't have a lot of information of the permits that Invicta has had and which ones were lacking.
Here at Annex H, you can see the ones that were obtained to date and the ones that were lacking and which ones were relevant for regulatory issues.
Q. Just asked if you had seen the amendment.
Can I now take you to Tab 5 in your bundle, please. When you looked at that PPF Agreement, did you only look at the sections dealing with regulatory approvals, or did you look at the time scales for repayment?
What we have here on the screen--I'll just let you know what this is--this is a slide from the opening. You were present for that opening; correct?
A. (In English.)
Yes.
Q. Now, my question is, when you looked at the
[Page 1479]
PPF amendment, did you look at the time scales for repayment or did you focus only on the regulatory section?
A. I have looked at a number of permits--I have looked at a number of documents, excuse me.
I have seen these documents and these timelines, but this has had no impact on my report or any relationship with my report.
Q. I didn't ask you about its impact on your report.
Sorry, I haven't asked a question yet. I just asked you if you had looked at the time scales for repayment under the PPF Agreement.
Have you?
A. (In English.)
Yes.
Q. Now, if you look at the screen, on the next page, you can see that the draft amendment to the PPF agreement anticipated that the Mallay transaction would be completed in November 2018, and the first gold repayment to Pandion would take place in September '19, after a nine-month grace period.
[Page 1480]
Do you see that?
A. Yes, but--
(In Spanish.)
--I hadn't seen this before.
Q. You were here on Monday; correct?
A. Yes.
Q. So you weren't looking at the screen when this was up there?
A. I'm referring to the documents, the drafts. This I had not seen.
Q. Ma'am, you rely on this document in your report. Not this slide, the underlying document.
A. I think my report is very clear when it says that I have relied on Annex H, and no other sections.
Q. Where does it say that?
A. 144.
That's the most recent statement by Invicta that identified the documents of the case in connection with this component, hydrocarbons, is the one in Schedule H of the draft that we are speaking of.
Q. So did you look at the whole draft
[Page 1481]
amendment, or did someone from Perú's legal team just hand you that Section H?
A. No. I had access to the whole document, but I focused on Schedule H.
Q. So you didn't see the schedule for repayment, then?
A. No. I do not recall having seen it. I focused on permit-related matters.
Q. So, if we look at the nine-month grace period in line with that, since Lupaka obtained Mallay's Community consent to proceed with the Mallay transaction in March 2019, would you agree with me that the first repayment obligation would have been due in January 2020?
It's on the table. I can represent to you that's what it says. Do you see that?
A. Mm-hmm.
Q. Now, again, I'm not sure what your calculation of the time frames are following the Tribunal's ruling, but at Paragraph 189 of your report, you refer to what you call an optimistic scenario for the start of mining as early as December
[Page 1482]
2019, and the start for processing activities as early as January 2020; correct?
A. Excuse me, Mr. Foden. I did not answer the question you asked me.
Q. You said mm-hmm.
A. That's when you asked me whether I was looking at the document. I said, yes, I'm looking at the document, but I haven't responded to your question.
Q. Okay. We'll go back.
Did you--
A. Gracias.
Q. Do you see on that table in front of you, when the first repayments are due?
A. Yes. But I think that here this is based on an incorrect premise.
Here, it is said in March of 2019--
Q. You saw them.
PRESIDENT CROOK: I believe she was giving an answer, was she not?
THE Expert: Thank you.
(In Spanish.)
[Page 1483]
As I was saying, I think that this document is based on an incorrect premise. Here it is said that in March 2019, the consent would be received. As I explained in my presentation, the assignment of the contract with the community was a requirement for the closing, but there were other requirements that have not been assessed or evidenced in the file.
I don't know if this is another document or not. I cannot talk about a presumption that doesn't have any kind of merit.
Excuse me.
BY MR. FODEN:
Q. Ma'am, we all know what your case is on the permits, and we will come to them. Trust me.
For now, I'm just establishing that the document set out a repayment deadline--first repayment deadline of January 2020.
Can we agree that the Mallay consent came in March of 2019?
A. No. What happened in March 2019 was just the assignment of the servitude of the easement of the Mallay Community. That it was only the assignment of
[Page 1484]
the easement of the Mallay Community. That was the only thing.
Q. Well, that's--frankly, that is not an issue that's been in dispute so far as I'm aware, that the consent was given in March of 2019.
But it doesn't matter.
For purposes of our discussion, I just want to establish that your optimistic scenario has the start of mining activities in December 2019, and the start of processing activities in January 2020; right?
A. That optimistic scenario, as stated in my report, does not consider the water use permits of the stream that Invicta needed for mining purposes.
Consequently, the conservative timeline, the real timeline, would be between June and July 2020.
That's what I said in my report, and it is clear that Invicta needed to use the water, so much so that it was using the water without a permit.
Q. I understand your submission, Ms. Dufour.
So let's take your optimistic time frame.
We don't need to talk about your conservative time frame. We know you do want to talk about it.
[Page 1485]
But on that optimistic time frame, and looking at the table that we had out, the repayment obligations would have been made, maybe with a month lag time, on your optimistic scenario.
Do you agree?
A. I agree. But without any use of water. There wouldn't be any use of water.
Q. You know that Pandion is a lender, because I know you work in commercial actions as well--as a rational, economic actor, they'd wait a month or two, and provide forbearance and maybe provide penalties and interest if we were perhaps a month late making those repayment obligations?
A. That is not part of my report. I have not looked at that information in detail. Consequently, I cannot give you an answer to your question.
Q. Fair enough.
Now, I want to start our discussion about the regulatory process with a general chat about the various approaches that you take to regulatory deadlines, and then we're going to come to what we consider to be the three outstanding matters.
[Page 1486]
At Paragraph 22, you refer--and I heard you say this in your presentation--to the difference between the legal time frame and the real time frame that's required to modify relevant permits; correct?
A. Correct.
Q. You explain that the legal time frame, and I'm using the English here, is the term that the regulation establishes for the procedure of the permit; whereas the real timeframe is the term that in practice, i.e., the time in reality that it takes to a carry out this procedure; correct?
A. That's correct.
Q. Ms. Dufour, would you agree with me that the administrative procedure in Perú as a general matter is governed by the law on general administrative procedures, Number 27444?
A. That's correct.
Q. You make no reference to that law anywhere in your report; correct?
A. I should look at it.
Q. I can represent to you that you do not and on redirect, my colleague might want to take you to
[Page 1487]
it.
Now, I'm curious, though, taking my representation, why would you provide a legal opinion on Peruvian regulatory law without making reference to the administrative lex generalis. Doesn't it make sense to start at the wider area, and then narrow down on the specific?
A. Let me explain.
We have specific laws in Perú in connection with certain matters. In this case I have relied on specific legislation. When the lex specialis doesn't really have regulations that are applicable, you supplementarily apply the more general rule.
What I have done is to apply the one that imposes no problems, and is within the legal framework.
Q. So I'm going to read out some provisions because you didn't include the general administrative law as an attachment to your report.
You can tell me if you think I've gotten them wrong.
So Article 66 deals with the right of the
[Page 1488]
administered. It says, "The following are the rights of the administered with respect to administrative procedure." At Subsection 7 it says, "The deadline set for each service or administrative act to be complied with and to demand compliance from the authorities."
The next one that I will read is Article 142, which says the mandatory nature of deadlines and terms.
At 142.2, it says, "All authorities must comply with the terms and deadlines under their responsibility as well as supervise that subordinates comply with those at their own level."
At 142.3, "It is the right of the administered to demand compliance with set deadlines and terms for each service."
So, my question to you is very specific, Ms. Dufour.
Does my unofficial translation reflect what the law says, in essence?
A. What you have read is correct. I also have to say that as I explained in my presentation, if the
[Page 1489]
deadlines are not complied with, the administered party has a remedy, which is to put forth a challenge.
I have looked at all of the permits in the Invicta file. A lot of them have gone over the deadline, and I have never seen Invicta issue a complaint or some kind of challenge. In all of the cases, it has waited for the authority to rule on this, and it has gone beyond the deadlines included or provided for in the law.
Q. I accept your submission, ma'am.
But the provisions that I just read are mandatory for every administrative deadline that you've described in your report; correct?
A. That's correct, but like I said, in the case, the administered party is the one that has the possibility of applying for a remedy.
The administered party is the one that can do it, or wait until the authority rules on this, as Invicta did in connection with all of the prior permits that it processed.
Q. So when you talk about your, quote, real-time estimates, you're referring to the fact that
[Page 1490]
the Peruvian agencies frequently do not meet their own legal requirements under the general administrative law; correct?
A. That is correct.
What I've said is that I have used deadlines and general practices as used by the mining industry, and that in my experience, that's the correct thing to do when you are trying to establish a permits strategy.
Q. So effectively then, the time frames that you refer to as real are just as accurately, illegal time frames.
So what I want to know is when a foreign mining investor goes to raise funds or makes an investment, enters into a local agreement, you're saying that they don't have the right to look at the law to determine what those deadlines should be relevant to that agreement; is that your submission?
A. I have to clarify two things here I think.
This is the second time in this arbitration that I hear people saying that the deadlines I've used are illegal. That's incorrect.
[Page 1491]
I have used average deadlines, and I have said that there are certain deadlines provided for in the law, and if they're not complied with, the administered party has the possibility to deem that permit as rejected, and therefore, bring an appeal.
That's important to state.
These are not illegal deadlines.
Please repeat the second part of your question.
Q. So effectively, if a foreign investor invests in Perú, and they want to know how long it's going to take them to get a certain permit, they have to hire you to know what the deadline is going to be?
A. Not exactly.
They could also go ahead and verify the deadlines. The approval of permits, that's public information. You can go to the web pages of the different agencies, and see how long the agencies take to approve the permits.
Yes, in general, many of the mining companies, the foreign mining companies come into Perú, and hire a lawyer, but many of them work
[Page 1492]
in-house, and what they do is to verify, on average, how long these things take.
Then on the basis of this, they conduct their programming, and that is what I would recommend an investor to do.
Q. Now, I hope you will indulge me for a moment, Ms. Dufour, and we explore the timelines that you say shouldn't apply, the legal time frames.
But if you are wrong, and Perú could be trusted to abide by its own laws, I want to talk about what the deadlines would have been for this project.
Can we agree to proceed on that basis?
A. If the legal deadline is used, it's not that the permit is deemed approved. In that case, the administered party may present an appeal for challenge. That takes time. Then to submit that challenge to the same level, there would be a reconsideration, and then new evidence should be submitted, or it could issue an appeal, or rather, bring an appeal to go to the higher level.
In my experience, that takes longer than the average timelines.
[Page 1493]
If you are asking me to take the consolidated text deadlines, and to take those deadlines as compliance, that would be illegal. Because like I said, the administered party may deem that the permit has been rejected, and not granted.
Q. Ms. Dufour, I know that you're a Professor of the faculty of law in the University of Perú, but we don't need a lecture on the process.
The question I asked was much more simple.
Could you and I go through an exercise where I ask you about deadlines under the law?
A. I think that exercise cannot be done, because it would be completely and absolutely hypothetical.
You are asking me to assume a number of hypotheticals, to take a legal deadline, and then to see how long the company would take to prepare documents to lodge an appeal, and then to go and do another hypothetical to see how long the higher authorities would have taken to solve that issue.
I think that what you are asking me to do is a hypothetical on a hypothetical. I don't think that
[Page 1494]
this adds anything in this case.
Q. That's very clear.
But let's look at the slide--the second--excuse me, the first slide that's at Tab 5.
So what I need to understand from you is that maximum legal time frame. Those just have absolutely no relevance, except for the few times in your report where you do say they actually meet reality; is that right?
A. What I'm saying, once again, is that one reaches this deadline established in the law. The administered party may decide to consider the permit denied, and can then appeal. It cannot consider it as approved.
Q. Right.
So basically, it's not the deadline, because you always have to add an appeal, and you have to wait for the appeal to be heard, and then that would be the real timeline, basically, if you were to abide by the law?
A. If you want to follow the rules that are established in the law, if there is negative silence,
[Page 1495]
as in these cases, and if you get to the maximum term, then what you can do is file an appeal.
This is not--I'm--just the last year, two years, these are the general rules that exist for a long time.
And it's one of the first issues that investors who come to Perú check on. What are the applicable rules when it comes to permit approval. As I say, this maximum time does not mean that the permit is approved. It means that the administered party has--may assume that the permit is denied, and then move on to the next level.
PRESIDENT CROOK: Let me interject here for a moment, if I may.
I think it's going to be necessary for us to take our ten-minute break.
Let me also observe that heretofore for this hearing has been conducted with a high level of courtesy and professionalism, although we've certainly had our moments, but I think generally it's been conducted at a very high plane, and I hope we would be able to bring it to a conclusion on that note.
[Page 1496]
Let's reconvene. We'll be back in ten minutes.
(Whereupon, there was a recess in the proceedings, 4:02 p.m. - 4:15 p.m.)
PRESIDENT CROOK: All right. Let's return to the cross-examination.
MR. FODEN: Thank you, Mr. President.
BY MR. FODEN:
Q. I just have one final question, Ms. Dufour, on the legal time frames.
Your view of them--let me make sure I have this right--assumes that there's either no response, or there's a rejection. So an appeal is always going to be necessary; therefore, it's better to just wait until you get a first instance decision.
Is that my understanding of your position? Is that correct?
A. (In English.)
It's almost correct.
Q. Okay. But after that deadline passes, the applicant is effectively just waiting for some arbitrary period that, unless they have consulted you
[Page 1497]
and your crystal ball, they aren't going to be able to know when they will actually get clarity from the relevant administrative authority; is that right?
A. (In English.)
No, that's not right because--
(In Spanish)--the average times that I have considered are not arbitrary times, they are times that have been obtained mindful of how long it has taken the authority in similar procedures, and what has been arrived at as an average.
Even when it comes to modifying the EIA, I consider a term of seven months, even though the last two experiences I've had, one mine in Cajamarca and another in the south have had longer terms.
But what I have done is to have an average time between 2017-2019, and the approvals that have happened.
So it's not arbitrary. It's something that I've constructed based on available information.
Q. Let's talk about the methodology behind that construction.
At Paragraph 23 of your report, you explain
[Page 1498]
that the basis for the determination of what you call the real-time estimates is a review that you undertook of administrative procedures for similar permits obtained by similar permit holders between 2017 and 2019.
So my first question is: Are we to understand that MD-0002 is a review of all administrative procedures for similar permits across the entire country of Perú during that time?
A. No. What you are saying is not correct.
What I am saying is that I have worked on all the records to which I've had access.
Q. So these time frames are based on cases that you handled personally?
A. No.
Q. Sorry. The transcript just said, "What I am saying is that I've worked on all the records to which I've had access," so that's where my confusion comes from.
A. No problem. What I said in Spanish is that I have taken into account the procedures to which I have had access, because they have been a matter of
[Page 1499]
public information.
And in addition to that, what I've done is check, based on my experience, those--whether those times are reasonable.
As I say, in many cases, the average, based on this exercise, which is not a statistical exercise, are less than the authority has taken of late, and that it has taken even in the Invicta case.
There, I cited the example of the ITS. I considered an average time of two months; nonetheless, of the three ITSes that have been considered, one took a month, another three months, and the other two-and-a-half months. Even taking into account just the average of the ITSes in the case of Invicta, we would have a time longer than what I considered.
Q. (Overlapping speaker with translation.)
--that's a recitation of the methodology.
But you would agree with me that you don't set out in your report the criteria upon which you pick the permissions that constitute your Exhibit MD-002?
A. Let me check quickly, please.
[Page 1500]
MR. FODEN: The Exhibit is at 7, Mr. Garibaldi.
A. Mr. Foden, could you tell me the paragraph you're looking at to make my review simpler and quicker?
BY MR FODEN:
Q. I can't, because I couldn't find the criteria in your report, ma'am, and that's what I'm asking you.
You told me--
A. It's right here.
Q. --sorry--it's not a statistical exercise, and I'm trying to understand the nature of the exercise.
What criteria did you apply in selecting the permits that populate these 14 categories?
A. Can I read the relevant part?
It's Paragraph 23. The last two sentences note the real times for the--getting permits in this report have been calculated based on the review of administrative procedures of similar permits obtained by titleholders from 2017 to 2019. The result of this
[Page 1501]
review is found in Annex MD-0002.
I also included a footnote where I note that on an exceptional basis, for the permit on water availability I have taken a longer period, because in the period analyzed, there were permits with very lengthy times, which made the average to be higher than what in my experience, which would have gone against the timeline for evaluation.
Q. I'm glad you brought that up because I did want to come to that. But I have to start with the question that I asked you.
Is it your evidence in front of this Tribunal that the criteria that I asked you for is the word "similar"? You just looked for something similar, but you don't define what is meant by "similar" here, do you?
A. Similar in Spanish means that it's the same. Therefore for an EIA modification I have sought other EIA modifications.
In the ITS, I have taken other ITS approvals, and so on.
Q. But not all of the ITS approvals that are
[Page 1502]
publicly available across the nation during that time period. That's what you told me; right?
A. What I said was that the ones that I've had access to are the ones that I've taken into account.
And I would like to add, as I said at the outset, I work in planning and permits for the last 16 years. I have quite a bit of experience in terms of how long these procedures take.
As I say, in those situations that I saw where there may have been some sort of irregularity in that the time was much longer than regular, what I have done is to remove them so as not to have a negative impact on the timeline for Invicta.
Q. It would be fair to say, then, that the criteria that you apply is your experience and your judgment?
A. I would say that that is the main criterion, but that in this case, in addition to not be the only one, I supported it with a benchmarking of the permits during that time, and the permits to which I had access.
Q. But there's no sort of national survey of
[Page 1503]
these time frames that you could rely on?
A. Let's see. Most of the agencies do have a unified registry. For example, the ITS's, in theory, should be found in the same system. It's not that they're separated out by region.
So the ones that have been available are the ones that I reviewed. That's why I was saying that if you look at this annex, you are going to see that there's a project in Arequipa, just as there's also a project in Cajamarca.
Q. So coming back to your footnote 12, you say, "Exceptionally in the case of water availability permit, I have considered a longer time frame" on the basis that you could not find many permits that had a fairly extended period.
Now, I wonder, Ms. Dufour, can you tell the Tribunal how many administrative resolutions you excluded from your sample on the basis that they didn't meet this so-called fairly extended period?
A. One.
Q. One. But you don't state that in your report.
[Page 1504]
A. (Overlapping speaker with translation.)
No. But that's what I'm answering right now, one, and also if the Tribunal would like, I could make a copy so that you can see that in this case, the time was extended a great deal with--in relation to the average for similar procedures.
That's why, for the benefit of Invicta, and to make this evaluation as objective as possible, I removed it so that there would not be an impact on the time table.
Q. You don't define fairly extended term, but that's the criteria that you applied for lengthening the time scale; correct?
A. No. To reduce it. To reduce the time scale.
Q. So you increased the time scale from 2017 to 2021. That's what you say, and you do that because you only found a few that didn't have a "fairly extended term." But at no point do you explain what is meant by a fairly extended term, nor do you say why that should have any impact on the range of decisions that you've considered, do you?
[Page 1505]
A. If you turn to point 8 of the Annex, which is this permit, there you see the details on the resolutions.
Had I taken into account only 2018 and 2019, I would have had only three permits, and the time would have been much longer.
So, what I have taken are resolutions from 2020, 2021, and 2022, and what that has done has been to finally reduce the average, and bring it closer to what I, in my experience, have seen, in such procedures.
Q. So let's look at Item 8. You include eight administrative decisions in Item 8; correct?
A. Correct.
Q. Whereas in Item 10, you include only two administrative decisions.
Now, my question is, why were you satisfied that two administrative decisions was representative of that category whilst you needed eight to be representative of the accreditation of water availability?
A. Well, yes, no problem. I can answer that
[Page 1506]
question.
In the case of water availability, as I say, it wasn't necessarily because of a number in the sample, but rather, the procedures that were in that sample were not representative. And they would extend the period.
Whereas in the case of water use license, on the other hand, this--these resolutions of 2018 and 2019 coincide with the times that it generally takes to get to the last stage of water use, which is the license.
Once again, I repeat: The main criterion that I have used is my experience.
Q. But there's no description of that sort of delineation that you just provided in MD-002, is there?
A. No, there's no greater detail.
(Overlapping speaker with translation.)
SECRETARY: I'm sorry, sir, we didn't catch the answer, so we need the pause.
THE EXPERT: No, no greater detail.
BY MR FODEN:
[Page 1507]
Q. You don't define what is meant by a "fairly extended term"; correct?
A. Correct. But as I have offered, if necessary, I can present the resolution to the Tribunal so that it can make the comparison of the extended time that that resolution had.
Q. Now, I think you mentioned this earlier, and you said that at footnote 5, you explain that the actual average for the now-irrelevant item number 9 is four months, but then you generously, towards my client, adopted a two-month average period instead; correct?
A. Can you repeat which footnote you're referring to, please?
Q. 5.
A. Of the document, not the report?
Q. You just read it, I believe.
A. No, I did not read it.
Correct.
Q. Now, I appreciate that you're being generous to my client with that particular category, but the approach there seems to be that you selected a subset
[Page 1508]
of three licenses, and then excluded a third of them based on an undefined notion of unrepresentative; correct?
A. Once again, in this case, when I say it's not representative, what it means is that it has a much longer time than what I have seen in my experience.
Q. Now, you also attach a Gantt chart to your report at MD-00032. It's at Tab 8, but I think it's probably more helpful for you to look on the screen because unfortunately, we didn't print this out in color. I wanted to ask you a few questions about it.
Now, this table has been drafted using your real-time estimates; correct?
A. MD-30--
Q. You can look on the screen.
A. (In English.)
No. I have it printed.
Q. You brought your own exhibits?
A. (In English.)
I brought the same exhibits.
Q. Let me just ask the question again.
[Page 1509]
This is based on your--your real-time estimates; correct?
A. Correct.
Q. If I checked the metadata in this Gantt chart, who would tell me assembled it?
A. With certainty, I am the author. And I am the one who presented it.
Q. What's the name of the software program you used to prepare it?
A. Again?
Q. What's the name of the software program that you used to assemble it?
A. (In English) Project.
Q. What construction expert did you consult when you determined the construction time frames that are set out in green?
A. Once again, in this case, I used the experience, for example, how long it takes to build certain components. If you take a look, I considered on approximate time for construction mining facilities, again based on my experience.
Could it take longer? Yes, correct, I could
[Page 1510]
have delayed, but these are the time periods I generally use when I do this type of Gantt.
Q. But you're not an expert in mine construction; correct?
A. Correct.
Q. Now, there are some other areas where you give opinions on matters that I thought perhaps weren't necessarily legal.
So if we turn to Paragraph 163 of your first report, I'll read as you catch up.
You say, "Even if production had started in October 2018, with the material mined during development and preparation, such material would not have been sufficient to supply the processing plants for more than one month."
Now, I'm curious, why would a regulatory expert make an observation about how long IMC could process ore for, Ms. Dufour?
A. (In English.)
Sorry--
(In Spanish) --163 of the Spanish version says something else.
[Page 1511]
Q. I think it's on 357.
A. Yes.
Q. Paragraph 163, in the English. Excuse me.
ARBITRATOR GARIBALDI: (Inaudible.)
(Comment off microphone.)
MR. FODEN: Yeah, in Spanish, it's 163 as well.
THE EXPERT: Page 52.
BY MR. FODEN:
Q. So my question is: Why would a regulatory expert provide any observation about how long IMC could process its ore for?
A. Let me elaborate a little bit on this.
Those of us who work in this mining and in the regulatory area, as time goes by, we start having some experience not only in legal issues, but also in some technical issues. I wouldn't say at the level of an expert, but, we get to know the same way I gave you the example about the aquifer, and the mine access. It is the same situation here.
So I am--I considered that my statement here is not beyond what I could say in a report, or is not
[Page 1512]
irregular.
Q. We have limited time here.
A. Sure.
Q. I realize my questions are not always very articulate, but I'd be really grateful if in respect of that limited time, if you can keep your answer to what I have actually asked you.
What I asked you there is why did you include it in your report? Not whether you have the ability to comment on processing times because frankly speaking, it's not the most complicated maths, but it has nothing to do with what you told me your instructions were.
Why would you comment on whether IMC could continue to supply ore to Mallay?
A. I thank you for the specificity.
I mis--I don't think I understood the question very well at the outset.
As you said, I had to look into regulatory issues, and as part of the documents that I received, I received a report that was issued by Micon, and this report is of a technical nature, but it is based on
[Page 1513]
some regulatory premises.
One of those premises that Micon poses is that it would have been possible to initiate exploitation in September 2018, and they also say that there was stored material to begin processing.
Now, the paragraph that I mention here that has to be read in connection also with the previous one that refers to Micon, and also the premises, it also refers to that; that is, the permits were not available in the material that was stored, if there was a plant, the maximum was for just the processing of a month-worth of work. So this is based on the premises in Micon's report, the ones that I assessed.
Q. I understand that. I have one last question on this point.
We both agree you comment on whether they could have used that stockpiled ore for commercial production. You say from a regulatory perspective, they could not. That's in 162.
A. Mm-hmm.
Q. But then for a reason that I still can't understand, you go a step further, and talk about how
[Page 1514]
long they could have supplied the Mallay Plant for.
Can we just agree that's opinion that probably should be left to the likes of Micon rather than a regulatory expert?
A. No, because it is exactly a comment on Micon's premise on a regulatory issue. I do not understand why I wouldn't be able to say something. I actually did.
Q. I'm aware.
Okay. Let's get into the regulatory milestones, okay?
First of all, mine closure plan. Now, the Respondent said in the Counter-Memorial that we hadn't fulfilled that obligation. I think you've said in your report that we effectively did, and you mention--I notice that you don't bring it up in your presentation.
So can we just strike the mine closure plan off the list?
A. We can remove the closure plan. But what I said is that there is no support that it was presented. That is to say that the guarantee
[Page 1515]
supporting the closure plan was presented.
Q. Understood.
On the mine inspection, you accept at Paragraph 120 of your report that on the 7th of September, 2018, IMC communicated to the DGM that it had completed development and preparation activities and had requested an inspection; correct?
A. Correct.
Q. And you further accept at Paragraph 120 that it had requested the suspension of the inspection on the 17th of October, 2018, owing to the blockade; correct?
A. That's what is stated in the communication, correct.
Q. Then you accept at Paragraph 122 that IMC provided the requested documents, because they had been--requested some documents that they requested a week earlier--and a week earlier, they had requested that the inspection take place; correct?
A. Correct.
Q. And you even accept at 123 that the DGM actually planned to carry out the final inspection
[Page 1516]
between the 23rd and 25th of January 2019; correct?
A. Correct.
Q. But of course, we can agree that the blockade was--
SECRETARY: Sorry, sir.
Again, we're speaking too fast, and the problem is the audio is not catching your answer in Spanish, so we're not going to have an audio of it.
MR. FODEN: Actually, I think this is probably my fault this time. Excuse me, I'm going too fast.
BY MR. FODEN:
Q. So from the 23rd to the 25th of January, there had been some arrangements made to do the inspection; correct?
A. A document was issued by the ministry to schedule the meeting in January, and as part of the scheduling, there was a request for documents that had to be available during the inspection. Yes, that is correct.
Q. We can agree that the blockade was in place during that entire period; correct?
[Page 1517]
A. Based on what I heard throughout these days, yes, in January, there was a blockade.
Q. Therefore, no inspection could take place, and that's why IMC again requested a suspension on the 22nd of January 2019. Is that your understanding?
A. Yes, correct.
Q. But if the inspection had been able to take place at the time of the request, 7 September 2018, and even allowing for an additional week to supply the as-built drawings, the inspection authorization process, and all of the other documents, the inspection authorization process would have been completed within 25 days on the legal basis or, using your deadlines, 64 calendar days from September; correct?
A. Would you please repeat the last portion of your question. I want to understand if the deadline you are mentioning is just to carry out the inspection or is it to consider that the inspection has been complied with?
Q. So what I've done--let's just take your real examples.
[Page 1518]
I've taken your 24 calendar days to schedule, and I've added the 40 calendar days for authorization that you mention, coming out to a total of 64 calendar days from September 2018.
Does that sound about right to you?
A. No. That is not correct. It wouldn't be as of September, because even there were some documents that had not been presented up to December, and there is an additional comment here.
Those 40 days that you just mentioned to issue finally resolution had to be supported with the environmental certification for water treatment, and that was not available.
So we could take those days, but the permit would not have been approved.
Q. We're going to come to the water inspection. Everyone loves talking about that underground water. We'll come to that. But right now, I'm just talking about the inspection.
On the inspection, taking your 64-day time frame, it would run from September, because the blockade was in place; correct? That's what delayed
[Page 1519]
the process?
A. No. It would have been impossible to do the inspection in September or October, November or December, up to the 21st, because it was only then when Invicta presented the documents requested by the ministry.
Q. Ma'am, you're excluding the time period during which the Invicta had requested that the proceedings be suspended.
A. Yes, but suspension doesn't imply that it can be carried out if it is not--if the documents are not ready.
I don't think I'm following you. You can restate your question, but as of September, you could not have that deadline running.
Q. Let's take it in stages.
The request comes in September. Then the time frame's running. There's a mine invasion in October, and a blockade set up.
Now, I respect that you say that the timeline has to run from December because that's when the request for clarification came, but that request
[Page 1520]
for clarification came only when my client thought the blockade had been ended, and it requested to un-suspend the proceedings.
A. Let me see. When one requests the second stage of this permit, one needs to produce certain documents. Those documents include the quality assurance certificate.
So if the submission is not complete, the deadline does not run. The time frame does not run. The certificates requested by the ministry are not related to a field task. These are tasks that are done at the desk-level, maybe in Lima. So it would be incorrect for the time frame to start running at that date.
Q. Ma'am, you've explained and accepted the fact that a week after they asked for, in December, that the proceedings be reinstated, they got this request for three additional documents; correct?
A. No. That is not exactly the case.
In December, it was scheduled, but there was a longer list of documents that was attached to it.
Q. And they provided them a week later;
[Page 1521]
correct?
A. The only thing that they presented on December 21st were the quality assurance certificates.
At that point in time, the ministry issued the scheduling for January, and they also attached a document requesting further information for the inspection.
And the record does not show any support that Invicta had this information.
Q. Ma'am, that's not what you said--
ARBITRATOR GARIBALDI: Excuse me.
Do you have the date of that quality assurance certificate?
THE EXPERT: Yes. It was presented on December 21st, 2018. That is the submission date.
ARBITRATOR GARIBALDI: Is that a document that already existed or was it prepared at that point in time?
THE EXPERT: I do not have that information because, I apologize, the attachments are not there. So they only attach the letter whereby Invicta is sending the ministry the quality assurance
[Page 1522]
certificates. These are quite voluminous documents, and I imagine that's the reason why they were not attached.
But when the inspection was scheduled, so the inspection was requested with the submission of certain documents. The ministry verified the first preliminary stage, and says, okay, fine, now I can schedule. Now they issue a document with additional requirements that need to be available for the inspection.
Those documents are not part of the file, because the final--the inspection finally did not take place, and I think it is very important to highlight, to underscore that the inspection, Mr. Garibaldi, that inspection verified the construction of the mine as approved.
It is likely that in this inspection, the authority that is the Ministry of Energy and Mines, saw a significant modification inside the mine, and that is the alternative system that was explained on the first day as quite a significant component. I didn't have that much information, because I heard
[Page 1523]
that there was digging in the rocks with some ditches, so...
ARBITRATOR GARIBALDI: The Tribunal is aware of all of that. We shouldn't waste our time on that.
THE EXPERT: Excellent.
Please go ahead.
BY MR. FODEN:
Q. So they suspended proceedings on the 14th of October. The request for that--I'm reading from your Paragraph 120 and 121.
The request was answered on the 23rd of October, and in the report, the DGM said, you still have to submit three things: Quality assurance, as well as a final work report, and as-built maps.
You don't say they only provided one of the three. You said that they, December 21st, attached the requirements demanded by the DGM.
But I think it's relevant to that exercise to include the fact that just the week before my client had actually asked to reinstate the proceedings.
So my point to you is, why would they have
[Page 1524]
sent all of that stuff in if they didn't think the inspection could take place because the blockade was in place?
A. I understand the confusion now between us when we're looking at this.
These three requirements that you mention indeed were presented. Those three documents are only to schedule the inspection. To be able to carry out the inspection, you need a broader listing, a wider listing of documents, and the file does not reflect compliance with that list.
That's what I'm saying.
Q. But they scheduled the inspection; correct?
A. Because to schedule the inspection, you need those three documents requested. Yes.
Q. And they were provided, and they scheduled the inspection?
A. Correct.
Q. But in the intervening two months between the point at which they had originally asked for the inspection, and then they supplied the documents, there was a blockade prohibiting anyone from going up
[Page 1525]
to inspect the mine; correct?
A. Correct.
Q. Okay.
You don't take account of those two months when you say that the inspection and the time frames that relate to it, including the water license and the water inspection, could only run from December 21, 2018; correct?
A. Once again, we have a confusion with the permits.
What I am saying here is that in--the inspection for the mining permit could only take place in December because it was only then when the documents would have been available to schedule the mining--the mine inspection.
ARBITRATOR GARIBALDI: I still don't understand that.
THE EXPERT: Mm-hmm.
ARBITRATOR GARIBALDI: If they ask me--if I have applied for some administrative proceeding, and one of the requirements is that I present my birth certificate, and that proceeding is suspended for
[Page 1526]
whatever reason, and then I present my birth certificate three months later, it doesn't mean that I didn't have my birth certificate at the original time.
So we--I have a consensual problem with this, that we--that the Tribunal has to look at this as a but-for scenario, and you are--if I understand your report correctly, you are constraining the but-for scenario on the basis of the real world.
I have conceptual problems with that. Can you comment?
THE EXPERT: Of course, and I deeply thank you for the question.
I agree that presenting it in December does not imply that you didn't have them earlier, but that gives some doubt--some doubt gives room for some doubt.
If they presented the request in September, and they had the documents, why didn't they submit them. They knew it was a requirement.
Why did they submit an incomplete file that would only have the times just take longer?
So this is just a hypothetical situation,
[Page 1527]
but what we saw here is, okay, December 14th, they presented their request and not even then were the documents presented to support it. They were only presented a week after.
So here, my recommendation would have been if you would like for the time frame to be complied with, please do produce the full file because it is important. Sometimes permits do take time because the quality of the file is not good enough, and in this case, the history tells us that they presented five ITS, three of them were not approved due to technical deficiencies.
So I do understand the difficulty to understand the actual time frames, et cetera, but sometimes that goes hand in hand with the quality of the technical material that is presented to the authorities.
As I just mentioned in this case, and this is my personal opinion, I would have presented--if I am short of time--I would have presented full information so as not to delay the inspection.
PRESIDENT CROOK: Let me interject here just
[Page 1528]
to let the parties know that we are about 45 minutes out from our scheduled rising time, and I don't know how that fits with the expectations for the continuing cross-examination and any recross.
But we do have a time bar racing up on us.
MR. FODEN: Sir, I will do my best to finish in the allotted time.
PRESIDENT CROOK: Will there be any time for recross, should Respondent desire it?
MR. FODEN: I'll do my best.
I did take the break to try to cut down.
PRESIDENT CROOK: Yeah, I appreciate that.
But I'm just alerting you that time schedules around here are real.
MR. FODEN: I believe that. I will be judicious, sir.
BY MR. FODEN:
Q. So let's talk about the ITS. Everyone's favorite topic.
We're agreed that on the 12th of November 2018, the DGM rejected the third ITS because it had constructed the component before the environmental
[Page 1529]
assessment; correct?
A. That was one of the observations that was not cured; correct.
Q. You've set out in your 104 that the IMC had to dismantle the alternative water management system, and then reply for the permit, and build it all again, because I think you say, that the use of an ITS was likely a gray area.
Is that roughly your view?
A. You're mixing two topics here in your question. They are completely different.
Q. Okay.
Let's come to the point--you don't cite to any examples in your report of other instances in which a company had to take an entire facet of a mine down, and then get the permit, and then reply; correct?
A. Correct, but in Invicta's own documents, if my memory serves me right, there was a request to dismantle a component that was built without a permit.
But going back to your question, it is true, but at the same time it could be, as we said it in the
[Page 1530]
regulation, if it is built without an approval, it won't be approved.
Invicta needed to have approval to be able to have the authorization for exploitation.
Q. If I may, just again in the interest of the time warning I just received, the question was: Do you provide examples in your report, and I believe the answer was no.
Do I have that correct?
A. (In English.)
Yes.
Q. Okay. Clearly and presumably you were here and disagree with Mr. Bravo's statement that often, you can tear something down and rebuild it, but you will get a fine.
But you do appreciate that Mr. Bravo works for mining companies, also has a legal background, and that's his experience.
You accept that that is his experience; correct?
A. With due respect to Mr. Bravo, yes, indeed, I listened to him yesterday, but Mr. Bravo said
[Page 1531]
several things that are not in this accordance with the legal regulatory system in Perú. Based on the experience that he mentioned, indeed, he has worked with the mining companies, and working with a mining company does not imply that one has the regulatory expertise.
Even being an attorney for a mining company does not imply having the mining regulatory. Most of the companies that I work with, the regulatory area is very well-defined, and separated, for example, from the legal manager who sees more of procedural labor issues.
The regulatory sector is quite specialized, and with due respect, I consider that he did not have complete information on the permits.
Q. Okay.
Now, I appreciate that sometimes legal deadlines are real, and sometimes they're legal, but you'd also understand that sometimes regulations, companies will ask for forgiveness rather than permission, and that's his experience.
Do you accept that that ever happens in
[Page 1532]
Perú?
A. I agree that it happens, but in this case, the issue was not for them to be fined. The issue was that Invicta needed to certify the system. If they had the component built, the authority could not certify it.
So this is not accepting a fine or not. This has to do with the fact that as long as the component was there, it was impossible to certify it.
If it couldn't be certified, it was impossible to have authorization for exploitation, and if they exploited, it would have been an illegal miner.
Q. Let's talk about the MTD and the PAD.
You noted earlier that the MTD, which is sort of embodies this idea of forgiveness rather than permission, was created in 2014; correct?
A. Correct.
Q. For a limited period, right?
A. Correct.
Q. And you--then the PAD procedure was created in May of 2019; correct?
[Page 1533]
A. Correct.
Q. You discard the PAD procedure on that basis, because it was not available as of October 2018; correct?
A. No, that's not correct.
I discard it because of three reasons.
First, because, indeed, in 2014, it was not available, so we couldn't really apply in this case.
Let us move ahead in time, May 2019.
May 2019 comes, and the company must apply this.
The most evident point in my opinion that makes this inapplicable is that in the case file, nothing is said about the application, and then in May 2019, I understand that the dialogue roundtables were there, and they were in a position to present it.
What has happened, I think, is what Mr. Bravo said yesterday. He said that he was focused on lifting the blockade, and that he was not focused on permits. Yes, this existed, the PADs existed, but Invicta did not apply to it.
Let's go one step further. Let's imagine
[Page 1534]
that Invicta had applied to the PAD. I'm sure that you were going to ask me that next.
If it had applied, what would have happened in that case is that perhaps it could have operated, but the environmental certification, which is what the MEM requires for providing the exploitation authorization, that would have come only with the approval of the PAD, and that approval would have been obtained by them, as I said in my presentation, by mid-2020, at least.
Taking into account those three points, I think that it is not applicable in this case.
My opinion is not the most evident thing. The most evident thing is that it was not applied to although it could have applied.
Q. I'm going to again ask you to perhaps keep the answers limited to the questions.
A. (In English.)
I answered your question.
Q. And then some.
A. It was all the answer to the question.
Q. Okay. I didn't ask you about what would
[Page 1535]
have happened if they applied, I did?
A. But I thought it was important.
Q. I gathered that.
ARBITRATOR GRIFFITH: Well, counsel, now we're going on to a detour.
PRESIDENT CROOK: Let's move on.
BY MR. FODEN:
Q. Yeah. So let me just get the timeline straight.
The MTD is available in 2014, and it lapses.
But then in December 2017, there's issued a draft regulation announcing that they are going to make available the PAD.
Do you recall that?
A. No.
Q. Okay. Let's pull it up on the screen. It's Exhibit C-494, and it's at Tab 10 of your bundle.
This is a resolution dated 21 December authorizing the publication of the draft supreme decree creating the PAD procedure.
Have you seen this document before, ma'am?
A. (In Spanish.)
[Page 1536]
I do not recall having seen it in detail.
Q. Okay. Then the second document I want to show is Tab 11, which is C-494, and if we can go to page 10 of this document--495. Excuse me.
A. Which document, did you say?
Q. C-495, which is on the screen in front of you. On the right-hand side.
Now, my understanding is that this document is the actual supreme decree draft, and it's of the same date, 21 December 2017.
If you look--
A. Mm-hmm.
Q. --it has a provision on the 10th page discussing the creation of the PAD.
So my question is: You're aware that it was public knowledge at the time that my client had its ITS rejected that this PAD mechanism was going to be available imminently?
A. I do not agree with you 100 percent, because in my experience, many draft regulations were published that were not passed.
Perhaps in the future that could have been
[Page 1537]
approved. We are talking about a year-and-a-half difference, taking into account the dates you told me.
But my doubt is if they were so sure that the PAD was going to come out, why did they apply an ITS, trying to include a document that was not prepared when the meeting was had?
And the most important point is, if they were so interested in applying the PAD, why didn't they apply for the PAD?
So to apply for the PAD, well, the information that you have to submit is cabinet-related information, cabinet-level information.
So this is not an issue of suspicions. It's an issue of facts. The company did not apply for the PAD.
Q. We're agreed that they didn't apply for the PAD, but there were some intervening events. What I'm asking you is not why they didn't apply for a PAD. They couldn't have in 2018.
But at the time their ITS was rejected, the draft bill had been out for nearly a year. So wouldn't a rational company have said, well, we got
[Page 1538]
the ITS rejected, why don't we just wait to see if we can get a PAD.
That's what a rational company would do; right, Ms. Dufour?
A. No. A diligent company would have never planned its action on the basis of draft regulations.
If the question is that, it is not diligent to rely on a draft piece of regulation.
Q. Ma'am, that's not what I asked you. I didn't ask you if they were planning to do a PAD. I said that when they got the rejection in November, mind you, that rejection came, and you also had the intervening event of the blockade, but in that time, why don't--they could have just said, well, we'll wait for a PAD instead of applying again for the ITS. That was an option that they could have considered.
Whether you think they were diligent or not, I'm not asking that. Do you think that was an option that they could have considered?
A. It wouldn't have been an option that I would have recommended to them.
Q. Okay.
[Page 1539]
Let's move to social license.
Now, looking at your CV, I can't see any coursework that you've undertaken on social license issues in the CV; correct?
A. To answer your question, I think I was clear when I made my presentation that the social license is not a legal concept. I also was clear that this is a goal that you have to obtain via the use of tools.
For example, the compliance with commitments, also citizen participation. In my curriculum--
PRESIDENT CROOK: I think we have an objection. Let's hear what Mr. Foden's objection is.
MR. FODEN: I have very limited time. The question was just about her CV, and I'd really be appreciative if perhaps we could have an admonishment from the Tribunal to simply limit the answers to the questions that I've asked three times now.
PRESIDENT CROOK: I'm not really in the business of admonishing people. I prefer to encourage and persuade, but--
MR. FODEN: Okay.
PRESIDENT CROOK: --it is true that some of
[Page 1540]
these answers are getting a little long.
The question was, have you had academic training that would qualify you to--I understand that was the question, was of that order, and the answer to that, I guess, is either yes or no.
THE EXPERT: Not academic in nature, but yes, in the practical side of things, I have worked in many citizen participation processes, and that are part of the tool used to get social licensing.
And also, I have been involved in many social commitment--or social compliance audits. So I consider that I am qualified.
PRESIDENT CROOK: Okay. We had a statement from the witness of what she regards as her qualifications. Why don't we move on.
BY MR. FODEN:
Q. Did you conduct a site visit to Parán or interview any Parán members when you put together your report on social license?
A. No.
Q. And in your report, you cite to six academic articles on social license and the definition thereof.
[Page 1541]
Did you author any of them?
A. (In English.)
Did you--sorry, I didn't understand.
Q. Author. Did you write any of them?
A. No.
Q. I don't see on your CV that you have ever written any articles on social license?
A. (In Spanish.)
Correct.
Q. Okay. At Paragraph 350 of your report, there's a suggestion that the Parán Community's initial concerns about the environmental impact of the project could somehow legitimate Parán's grievances with IMC.
Do you agree with that interpretation of the paragraph?
A. Just one moment. I'm going to read it.
What I'm saying in this paragraph, the first portion of it, is a fact, that indicates that OEFA has imposed sanctions on Invicta because of noncompliance with environmental and social regulations.
What I said is that those social and
[Page 1542]
environmental breaches may have an impact on the trust that the communities have in connection with the company.
Then what I say is that the Parán Community, on the basis of the documents that I have reviewed, had concern in connection with boundaries, land boundaries, environmental matters, social matters, and that could have created an impact on the relationships that the company had with the community.
Q. Now, after Parán complained to the local water authority, the ALA, on the 10th of April, 2018, about the alleged presence of white water, and then the ALA conducted an inspection that did identify some cloudy water, are you aware that IMC sent laboratory tests to OEFA showing that the mine influence complied with the MPLs?
A. You're talking about two different things. One is the ALA, and then you have talked about results sent to OEFA. What inspection are you making reference to? These are two different authorities that oversee different matters. Could you please explain that, please.
[Page 1543]
Q. I don't need to explain the two different entities. You're aware of that them.
I'm asking if you are aware that IMC sent lab results to OEFA showing that the mine effluents complied with the MPLs. Are you aware of that?
A. We're not talking about the ANA inspection that you indicated first.
Excuse me, you posed me a question, but your question was kind of mixing up things, so I need to make sure what you are asking to be able to--first, you talk about the ANA inspection.
Q. Are you aware that IMC sent lab results to OEFA showing that the mine effluents complied with the MPLS? We can look at the document if you need to.
PRESIDENT CROOK: Excuse me. For operational reasons, we may need to take a brief pause here.
So let's--
SECRETARY: Sir, what I meant is that I know we're pressed for time, but we're really losing a lot of the audio in Spanish, so you really need to pause before you answer.
[Page 1544]
THE EXPERT: Agreed.
PRESIDENT CROOK: Be aware of saying take a pause.
THE EXPERT: No, I don't have any notes.
Can I answer?
PRESIDENT CROOK: Slowly, please.
THE EXPERT: (In English.)
I promise. I think I had too much coffee today, so...
(In Spanish.)
Yes, I am aware of the fact that Invicta sent some monitoring tests saying that--tests saying that they had complied with the regulations, but they sent them as a defense in connection with the sanction-imposing procedure that OEFA initiated against it because it went over the MPLs, and OEFA looked at the information, and they said, okay, when Invicta took these samples, they complied with the regulations, but when OEFA went there, they did not comply with the regulations.
I think they went over the MPLs by quite a lot.
[Page 1545]
We have seen this in the past few days. So a sanction was imposed on Invicta. Not only was a sanction imposed, but also OEFA considered that there was a risk of environmental image. It imposed a corrective measure in order for the company to implement an alternative system.
BY MR. FODEN:
Q. With respect, that's just not correct. If we look at Paragraph 42, and again, I don't speak Spanish, unfortunately, on page 16--
PRESIDENT CROOK: Of what, please?
MR. FODEN: Sorry. Of the exhibit I called earlier, which is R-74, which can be found at Tab 19 of the bundle. Page 16.
BY MR. FODEN:
Q. As I understand it, determines that as of that date, which is the 27th of September 2018, right before the blockade, the MPLs were within--they were within the MPLS. Do you see that?
A. Yes, I see that, but again, this is the sampling that Invicta sent at one point in time.
But if you scroll down in this resolution,
[Page 1546]
we're going to see that Invicta was sanctioned because it went over the MPLS.
Q. Then let's turn to the next tab, Tab 20, at page 10 of the English. This is Exhibit C-408. And then a different agency, the ALA, conducted an inspection of the Invicta Mine, and it reached the conclusion at Paragraph 6.3, and this document is dated the 13th of July, so it pre-dates the exoneration by OEFA, and it says that no direct impact on the water resources of the Parán Community and the surrounding areas.
Do you see that language, ma'am?
A. (In English.)
I see that language, but sorry, you have said--
(In Spanish.)
You have said, and I need to clarify this, that OEFA exonerated Invicta from the penalty. But in the other document you showed me, well, it clearly states that a sanction was imposed. Not only was a sanction imposed but a corrective measure was imposed as well.
[Page 1547]
I wanted to say that in this resolution, no exoneration exists.
Going back to the ANA document, yes, a control was conducted in July, and this inspection, this control, this inspection, ended with a sanction-imposing proceeding not because of an environmental matter, but because of the fact that water was used without any authorization in the Ruraycocha stream.
Just so you know, OEFA looks at the MPLs which is the quality of the effluents, and the ANA looks at the body of water.
Q. I perhaps shouldn't have used the word exonerated. I admit that.
A. (In English.)
You shouldn't.
Q. All I asked you is whether you saw that paragraph. Okay.
At Paragraph 265 of your report, you say a social license is based on mutual trust; correct?
A. (Overlapping speaker with translation. No interpretation.)
[Page 1548]
Q. You would agree with me that there has to be reciprocity between the two counter-parties between actions that create credibility and mutual trust; correct?
A. Yes, correct.
Q. Now, I understand your report to say that you would agree with me that securing surface rights agreements is an important step--not the only step, but an important step in moving up the levels of social license that you identify.
Are we agreed?
A. No.
Q. Okay. At Paragraph 399, you say that surface land agreements, the latter, definitely support social license?
A. That is correct. They support them but as I said in my presentation, one thing is the access to the surface rights, and a different thing is the social license with the corresponding tools.
Yes, that is correct.
Q. Yeah. That's what I said. I said not the whole thing, but it's an important step.
[Page 1549]
You're aware that my client concluded surface agreements with both Lacsanga and Santo Domingo, aren't you?
A. Correct.
Q. Now, you're aware that--you say at Paragraph 397 that IMC was required to cover several items under its EIA such as training activities, education, health support activities within the three communities; correct?
A. Yes, correct.
Q. In the interest of time, I have a number of documents, I can read them out for the record, but you're aware that IMC carried out a series of trainings in agricultural techniques, community management, community relations, and health campaigns in all of the relevant communities; correct?
A. Yes, correct, but there are also documents in which the community relations company says that they only conducted activities in two of the three communities, and it excludes Parán from all of this.
PRESIDENT CROOK: I'm afraid I need to interject. I have now got a very emphatic note,
[Page 1550]
beginning really underscored large print. We need her to pause because there's no audio in the Spanish.
So we really need you to count to three, because otherwise at this stage, we don't have a complete Spanish report. So really, we need you to--
THE EXPERT: (In English.)
I'm very sorry.
PRESIDENT CROOK: Sorry has nothing to do with it, but please pause.
THE EXPERT: Okay.
MR. FODEN: Mr. President, can I and Mr. Grané a question about timings if you don't mind.
PRESIDENT CROOK: I'll be happy to ask him, Mr. Grané, what do you envision in way of redirect?
MR. GRANÉ: As of now, nothing. No redirect.
PRESIDENT CROOK: All right. Can we take that to the bank as of now?
MR. GRANÉ: As of now, yes.
PRESIDENT CROOK: All right.
Does that address your question?
MR. FODEN: It expedites things.
[Page 1551]
ARBITRATOR GRIFFITH: Do you have a target time to finish?
MR. FODEN: I believe our deadline today is 5:40. Let's bang on.
BY MR. FODEN:
Q. Okay. So let's look at one of the documents that establishes what I was just talking about. We'll just look at one. Tab 25, which is Exhibit C-438.
This is a training plan for agricultural techniques.
You see that the place date and the community refers to all three.
Do you see that?
A. (In Spanish.)
Yes, correct.
Q. Okay. Now, this is one of several documents that explains these plans. They're Exhibit C-440 for the record, C-441 and C-442. You don't cite to any of these documents in your report, do you?
A. I would have to look, but possibly, no. I haven't cited all of the documents that were issued by community relations.
[Page 1552]
Q. Did Perú's counsel provide you with those exhibits when you were assembling your report?
A. He gave me access to all of the information in connection with community relations, yes, correct.
Q. You didn't comment on them--you didn't feel necessary to comment on the community relations--I'll get there--community relations training documents that were put on the record?
A. I have made reference to a number of documents from the CR team, but not that one, indeed. But we could ask about many others. I have not made reference to a number of documents, that's correct.
Q. Now, as an expert, I'm allowed to ask you hypothetical questions, all right.
So I want you to accept for the moment that my client's position, that it didn't need a social license with Parán because its mine infrastructure wasn't located on Parán. Just accept that position for purposes of our discussion.
In that event, you haven't actually opined on whether my client obtained a social license with Santo Domingo or Lacsanga; correct?
[Page 1553]
A. The fact that there are no components, that does not mean that the company shouldn't have a social license. The EIA and the ITSes clearly establish--
PRESIDENT CROOK: The question to you was whether in your opinion a social license had been established as to these other two communities.
Do you have a view as to that?
THE EXPERT: Yes, according to the literature that you have had access to, the social license cannot be looked at individually, or independently. It has to be looked at on the basis of the project.
In this case, there are three communities, assuming that there is no component in Parán, the three communities are included in the area of direct social influence on the basis of the EIA--or rather, the environmental management document.
So in order to assess the social license, I have to look at everything together. I cannot exclude Parán.
ARBITRATOR GARIBALDI: Excuse me, but that means that if a community in the area of influence
[Page 1554]
denies a social license, that's enough. Then there is no social license at all; is that what you're saying?
THE EXPERT: In that case, I consider that what the company should do is to invest more time in a dialogue to obtain the social license.
In my experience, I have had a number of clients that have taken years to get a social license, and they are able, then, to start or operate a project.
If we're talking about a community that is located in the direct influence area, both from the social and the environmental viewpoint, there has to be a good relationship with the community.
This is a risk that is known by the mining companies, and all of the mining companies that conduct studies in this regard identify this as one of the main risks, because the ore cannot be moved. The ore is in one location.
ARBITRATOR GARIBALDI: Next question: What happens if a community, in bad faith, for reasons unrelated with mining operation, decides not to grant this social license that you're making reference to;
[Page 1555]
what is the obligation that the company has in that case?
THE EXPERT: In my opinion, and what I have seen in practice in the communities, oftentimes what the companies do is wait some time. For example, they wait until there is a new governing committee, and then they can go and go deeper into the dialogue to obtain the license.
If there is not coexistence between the two parties, the process is not going to be fruitful because they're going to find constant opposition.
What has happened in many cases, if the company has had the bad luck to be faced with opposition, I have seen projects--examples when the project has not moved forward, and that has happened in Perú in some cases.
BY MR. FODEN:
Q. Is there any limit to the time and resources that a company has to put into such an effort?
A. It's not that it has to put it into it. If it considers that it doesn't have the time or resources, it can also decide to not go forward with
[Page 1556]
the project. It's a risk that is identified, not only in Perú, but in many other countries as well, and not only in mining, but also in many of the extractive industries.
Q. So I want to see if I can understand that point.
You're saying it's binary in that you either choose to wait it out, or you don't; is that correct?
A. Well, if you put the question in those terms, it would be wait and do nothing; wait, doing something, engaging in dialogue; or, if it is verified at the end of the day that you are not going to get a positive result, and you also have the option, for example, to sell the project or to withdraw, yes.
Q. Okay. Fair. But that doesn't answer my question of, is there a limit on--what if the company's publicly listed, and it's committed to that project. It's told all of its investors in Canada that it's going to drive forward with that project.
Is there a limit to the amount of time that you, in your expert opinion, they would have to spend before they just basically disregard that one
[Page 1557]
community, and say, do business with the other two? Or do they have to wait ad infinitum?
A. Let's see.
What I'm saying is there's not any regulated limit. There are companies--well, I have a client who waited ten years to engage in relations up until the point the community accepted it, and I have clients who, at the end of the day, after two months, reached the conclusion that it's not worthwhile, but it's the same risk that a mining--the social license is one risk, but also the risk of finding ore, it's a high risk.
But it is a risk that all of the mining companies are familiar with, not only in Perú, as I say. This is a risk of the top five established in all risk assessments that there are, in mining. It's a high risk, but it is the risk that exists.
Q. Coming back to this discussion of mutual trust, do you consider that Parán's takeover of the mine at gunpoint, the use of--its use of firearms, and its violent conduct went further to engendering a sense of mutual trust?
[Page 1558]
A. I don't feel comfortable answering this question because the premises that you have set forth, based on what I have heard in this hearing, are a matter of debate.
I have heard, for example, when [Redacted] testified, that it wasn't clear whether or not there were arms, whether there was or was not violence.
So I don't feel comfortable answering that question, mindful that the facts aren't clear.
MR. FODEN: Okay.
ARBITRATOR GARIBALDI: (Speaker overlapping with interpretation.)
What about hypothesis?
THE EXPERT: I think it's not correct.
ARBITRATOR GARIBALDI: You're an expert. As an expert, you have to respond to hypothetical questions, or questions posing hypotheticals.
THE EXPERT: Very well, then.
If in effect there has been violence, weapons, crimes, bad conduct that is outside of the legal framework, then, yes, I would consider that that's not the correct attitude. I would think that
[Page 1559]
in that case, the community is not acting correctly.
But I would repeat, in this case those facts are under discussion or under debate, and therefore, my answer doesn't apply to the case.
MR. FODEN: I finished early, Mr. President. I'll leave seven minutes there for somebody. Thank you, Ms. Dufour.
THE WITNESS: Thank you.
PRESIDENT CROOK: All right. Well, we have got--that's very admirable, thank you.
We have finished the direct examination. We have no recross.
MR. GRANÉ: (Shakes head back and forth.)
PRESIDENT CROOK: Do we have any questions from the Tribunal?
ARBITRATOR GARIBALDI: Let me try to establish a couple of things about social license.
As I understand it, let's put--let me start again.
Let's put aside all of these specific obligations imposed by the law in connection with the
[Page 1560]
environmental impact statement. I'm not saying that they are not important. I'm saying that let's put them aside for purposes of this discussion.
We have testimony here to the effect that the social license goes beyond those obligations.
Okay.
Do you agree with that?
THE EXPERT: (In English.)
I agree with that.
ARBITRATOR GARIBALDI: Okay. We also have testimony or statements to the effect that obtaining and maintaining the social license is an obligation of the company.
Do you agree with that?
THE EXPERT: It's a goal of the company. Yes, I agree with that.
ARBITRATOR GARIBALDI: It's a goal.
THE EXPERT: Yes.
ARBITRATOR GARIBALDI: But not an obligation?
THE EXPERT: Really, if you want to say it's an obligation, not a legal obligation, but yeah, it's
[Page 1561]
a goal because if there is no social license, it will be very difficult to execute the project.
ARBITRATOR GARIBALDI: Okay.
So you anticipated the question. It's not a legal obligation.
THE EXPERT: Correct.
ARBITRATOR GARIBALDI: Now, it is an obligation of the company, which doesn't have a reciprocal obligation on the part of the community.
The community is not obligated to provide that license; right?
THE EXPERT: That is correct, but the community needs to have, also, a mutual respect with the company.
ARBITRATOR GARIBALDI: It needs to have--doesn't have to have, as I understand it.
THE EXPERT: Social license, no. A social license is one-way. The social license--
ARBITRATOR GARIBALDI: The social license is one-way.
THE EXPERT: Yes.
ARBITRATOR GARIBALDI: It's unilateral.
[Page 1562]
THE EXPERT: Yes.
ARBITRATOR GARIBALDI: It is permanent, so in other words, it can be revoked at any time. It's something that the company has to maintain by doing whatever it needs to do, to obtain it?
THE EXPERT: Yes, because they need to have a good relationship with the communities, and that's how they can maintain the social license, yes.
ARBITRATOR GARIBALDI: All right. So the way I understand it, let's conceive of this as an obligation, although not a legal obligation.
But if it is an obligation of the company, it is an obligation of result; right?
THE WITNESS: There, I need to precise.
It's an obligation of result, but you said that I need to leave aside--
ARBITRATOR GARIBALDI: Yeah. Leave aside all of those things.
THE EXPERT: But they are the means.
ARBITRATOR GARIBALDI: That's fine. They are the means.
THE EXPERT: So it results in means.
[Page 1563]
ARBITRATOR GARIBALDI: Fine. But there exists that extra that the company is obligated to obtain and maintain, that's a result, isn't it?
THE EXPERT: It's the goal, yes, to get the social license.
ARBITRATOR GARIBALDI: All right. Okay.
I think that that's it for my purpose, thank you.
THE EXPERT: Thank you for the question.
PRESIDENT CROOK: Well, I make the observation that I always found that your suggestion that social license is a metaphor is a useful way to think about it.
With that gratuitous observation, I wonder, do we have any further business to transact this evening?
MR. FODEN: Not on the part of the Claimant.
PRESIDENT CROOK: Anything further on the Respondent?
MR. GRANÉ: (shakes head back and forth.)
PRESIDENT CROOK: Okay. So we will--I see we have some of our valuation experts. We will turn
[Page 1564]
the hearing from these Gentlemen--Or Ladies and Gentlemen, whatever we have got on Monday.
I thank everyone for their cooperation.
It's been a busy day. And the witness is now excused.
We thank you for your testimony, ma'am. And I wish you all a good weekend, those who are going to be here. Safe travels for those who are going to be traveling.
We'll see you on Monday, the usual time.
THE EXPERT: Thank you very much.
(Whereupon, at 5:39 p.m. the Hearing on the Merits was adjourned until 9:30 a.m. on Monday, April 3, 2023.)
[Page 1565]
I, Marjorie Peters, FAPR, RMR-CRR, Court Reporter, do hereby attest that the foregoing English-speaking proceedings, after agreed- upon revisions submitted to me by the Parties, were revised and re-submitted to the Parties per their instructions.
I further certify that I am neither counsel for, related to, nor employed by any of the Parties to this action in this proceeding, nor financially or otherwise interested in the outcome of this litigation.
Signature
MARJORIE PETERS