Case #1. Gndevaz residents against ministries
In 2015 eleven residents of Gndevaz decided to appeal the permits of the Ministry of Environment (former: Nature Protection) and the Ministry of Territorial Administration and Infrastructure (former: Energy) regarding the operation of the Amulsar gold mine. Lydian Armenia CJSC was recognized as the third party defendant.
Gndevaz is considered an affected community by the Amulsar project, where public hearings were held with multiple violations and yet these documents became the basis for the project. Meanwhile, Jermuk, which is the largest community, did not participate in the decision-making process in accordance with the law, since the state had not recognized the largest community as an affected one, therefore no one from Jermuk could legally challenge the issued permits.
In 2015, Ecodar and Eco-Right NGOs joined the residents of Gndevaz in the Administrative Court of the Republic of Armenia, demanding that the permits issued for Amulsar were revoked.
You can learn more about the content of the claim in the opening speech (in Armenian) of the lawyer Hayk Alumyan. In the past, the court hadn’t recognized NGOs as plaintiffs for environmental matters when the permits of another mine in Teghut were being appealed. However, the law on NGOs was later amended and NGOs tried again to justify their right to appeal administrative permits in case of the project in Amulsar.
In 2016, the judge of Administrative Court of the Republic of Armenia (RA) - Karen Zarikyan, excluded the NGOs from the trial on the Amulsar project case, after which the NGOs appealed to the RA Court of Appeals. Only 4 years later, the Administrative Court of Appeal restored the right of NGOs to appeal on environmental issues and returned it to the Administrative Court.
During this time, Lydian Armenia CJSC continued construction work till June 2018, when local residents decided to block all the roads leading to Amulsar mountain, thus preventing the project implementation. As it turned out, appealing judicial acts is not an effective way from the point of considering the case in due time or for trying to impose a ban on the activity.
Armenia’s legal sphere has many obstacles for environmental cases, one of which is that the state may not carry out proper impact assessment and expertise when issuing positive Environmental Impact Assessment (EIA ) conclusions, while collecting evidence about the harm of the projects is left on the shoulders of citizens.
The RA Administrative Court considered that the positive EIA conclusion for Amulsar project is not an administrative act and thus it is not subject for an appeal. The lawyer of the plaintiffs Hayk Alumyan found another method to overcome this obstacle suggesting that the court considers that document as evidence. It must be noted that the administrative act has the status of a higher legal document than ordinary evidence.
Along with that evidence the plaintiffs managed to force the court to also consider the opinions of the experts presented by the plaintiffs. The court had to accept the lawyer's request.
Ministries didn’t participate in court sessions in the early years: all questions were answered by the lawyer of the company, Sayad Badalyan. Since there was no such precedent in the legal history of Armenia, the process of involving an expert in the court should be presented in more detail.
Each side submits to the court information about an expert who has researched the Amulsar project. If the research is not in Armenian, it must be translated into Armenian. After discussion, the court decides whether to involve the given expert in the judicial process or not. The expert is called to court, both sides ask questions, after which decision is made about their involvement. During this period, with the support of Armenian-American Harout Bronozian, new experts were involved, including Anne Maest, and research was carried out. The plaintiff managed to involve Ms. Maest’s scientific works in the court case. Plaintiff's other experts are: Karen Manvelyan from the World Wide Fund for Nature (WWF), Doctor of Geological Sciences and founding director of the Center for Ecological-Noosphere Studies of the RA National Academy of Sciences (NAS) (late) Armen Saghatelyan, Candidate of Chemical Sciences and current director of Aram Nalbandyan Institute of Chemical Physics of the RA NAS Seyran Minasyan.
The problem is that the positive expert conclusion of Amulsar's EIA was assessed only by one expert at the Environmental Impact Assessment Center, who had to check several hundred pages of documents of Lydian Armenia CJSC. These documents covered issues of land, water, subsoil, biodiversity, etc.
During this time, the roads leading to Amulsar mountain were still closed. In order to resolve the conflict that arose after the 2018 revolution, a decision was made to start a criminal case and involve international experts within that case, paying them 450,000 USD from the RA state budget.
The international expert group consisting of ELARD and TRC studied the documents of Lydian Armenia and wrote their opinions about the incomplete, suspicious, unreliable data presented by the company, as such revealing all the risks in case of Amulsar project's operation. All these documents were submitted to the RA Administrative Court (in Armenian, English).
The Amulsar administrative case that lasted for about 7 years, entered the trial stage in August 2022. During this period, the Ministry of Environment and Ministry of Territorial Administration either repeated the views of Lydian Armenia or denied the previously published documents. For example, the plaintiff submitted to the court the 13-point document (in Arm.) written in 2019 by the former Minister of Environment - Erik Grigoryan, which proved the existence of new ecological factors and the omissions made by the company.
The Law on EIA and Expertise defines all circumstances when a positive EIA conclusion can be revoked. According to these circumstances, the document presented by the former minister in 2019 was about new environmental factors based on which the EIA could be revoked. However, during the session of November 7, 2022, the representative of the Ministry of Environment presented the court with claims that contradict and refute the document published by the former minister Erik Grigoryan. These claims particularly state that, "Taking into account the results and justifications of the above-mentioned calculations and comparing them with the explanations presented by Lydian Armenia CJSC, it should be stated that the difference in the evaporation calculation indicators is not significant and cause no need for project changes, therefore it cannot be considered a new ecological factor, thus there is no need for additional discussion for a new EIA" - chief specialist of the Ministry of Environment O. Grigoryan.
Along with this controversy, the lawyer of Lydian Armenia Sayad Badalyan targeted the plaintiff’s experts in his opening speech at the session of September 7, 2022, questioning their professional qualities and studies. The lawyer mentioned: “When considering Ms. Maest’s recent comments, it is necessary to take into account her own professional experience, as well as the professional experience of other authors cited by her. In this regard it is important to note the fact that Maest is first and foremost an environmental activist who has no relevant experience in the mining sector apart from protesting against mines, and it is also necessary to consider corruption cases related to her, which happened in the past. It is important that the scientist demonstrates unbiased observation based on the presented data.
Maest's entire professional career is based on the fight against projects. She regularly collaborates with local groups, NGOs and activist groups protesting and opposing various resource and mining projects. Therefore, she cannot be considered an objective and impartial evaluator of mining projects. Maest is a professional opponent of the mining industry, therefore her knowledge and awareness of the modern mining industry is limited to purely theoretical research. She has many publications and has never worked for any mining company or consulting company for mining solutions. Ms. Maest is also known for corruption cases. In particular, a lot has been said about her active involvement in the non-governmental organization fighting against mining exploitation in Ecuador. She falsified data, deliberately presented misinformation and even fabricated an independent report by writing a report on behalf of some independent professional and presenting it as an independent professional's objective opinion. Moreover, in this document regarding that case, in addition to the professional position, we have an appendix, where I presented some details of that case. A case heard in Ecuador, again against a mining project, its essence, presented in writing, is that both in this case and in another case, there was a need to give a professional opinion, Ms. Maest and her colleagues gave it, then it turned out that it was actually false, that it was done for other purposes. In the framework of that case a criminal case was initiated; in the end Ms. Maest renounced all the reports she had presented. Maest concludes her witness statement with the following statement: "I disclaim any and all conclusions and findings of my reports on the Ecuadorian project."
In this regard, I should note that there is a video, which I have presented to the court for examining it at the stage of evidence examination. I will describe it; it is within the framework of that case, with the participation of Ms. Maest about how to present false data to the court and get their desired judicial result".
However, during the question-and-answer phase, answering the questions of the plaintiff's attorneys Hayk Alumyan and Nazeli Vardanyan, Sayad Badalyan said that he has no evidence that Ann Maest was involved in a corruption deal proven by the court. During the question-and-answer phase, the plaintiff also requested clarifications from the defendants whether the groundwater in Amulsar had been studied and whether there is a map of groundwater. The company's attorney did not provide specific references to the groundwater maps availability, only stating that there are such studies included in the EIA.
As for not implementing public hearing in Jermuk town, the representative of the company explained that Jermuk town was not involved in the public hearings, since it was not an affected community, therefore the company is not obliged to organize hearings in all communities. Meanwhile, not holding public hearings in Jermuk is a violation of the law.
During the court session on December 7, 2022, the Company engaged another expert, who tried to answer the question of the plaintiff’s lawyer Hayk Alumyan regarding the existence of the groundwater map in Amulsar. The respondent showed one photo from the EIA report, which turned out to be something else, rather than the groundwater map. The details of the trial are in the video (in Armenian).
The trial continues, the court will move to the stage of examining the evidence (hearing No1).
Tehmine Yenokyan – plaintiff
President of Green Armenia environmental, educational NGO
The article was prepared within the “Community Resource Exchange” program of the Coalition for Human Rights in Development