Fighting for the rights of nature in the Constitutional Courts of Ecuador

By Melbourne Rainforest Action Group

A pivotal case is underway to weigh the worth of a biological reserve in Ecuador. A positive ruling could set a precedent to protect all Protected Forests in Ecuador from mining. Equally, a negative ruling might allow mining companies to destroy them.

Ecuador is unique in the world for having the Rights of Nature embedded in its Constitution,1 but a case has not as yet been argued in an Ecuadorian court of law as to how to apply these unique laws in legally titled Protected Forests.

On June 21, the Constitutional Court of Ecuador, the highest court in the land, announced it would hear arguments in the case to preserve the threatened Los Cedros Protected Forest from mining development.2

The Los Cedros Biological Reserve has always been emblematic. Back in 1988 when it was set with the help of a grant from the Australian Government's Development Assistance Bureau and the support of Australian not-for-profit organisation the Rainforest Information Centre, it was one of the first reserves of its kind in Ecuador.3

Not only does it serve as a place where scientists from all over the world can stay and study the unique plants and animals in the area, but it also safeguards four watersheds and provides a buffer of protection against deforestation and development for the 182,109 hectare Cotocachi-Cayapas Ecological Reserve to its north.

In Ecuador, Protected Forests or Bosques Portectores are public, private, or community-owned areas specifically created to protect biodiversity and watersheds where grazing and agriculture are prohibited.

Until 2017, Los Cedros's status as a legally Protected Forest was not up for debate. All that changed when mining concessions covering 2.9 million hectares across Ecuador were handed to mining companies. This included nearly 735,000 hectares of Protected Forests in 41 reserves, and one million hectares of Indigenous territories – around 60% of all concessions sold.4

Canadian mining company Cornerstone Capital Resources was sold two concessions covering two-thirds of the reserve, in collaboration with the Ecuadorian state mining company, ENAMI. Incidentally, Australian miner SolGold put in a hostile takeover bid for Cornerstone on June 30, 2020. Mining giant BHP also holds a concession that covers part of the reserve.

This is despite the Ministry of Environment's own publication citing Los Cedros in its 'Areas of Priority for the Conservation of Biodiversity in Ecuador', and attempts for Los Cedros to be incorporated into the Cotocachi-Cayapas Ecological Reserve.

While not all the areas covered by mining concessions will end up being mined, exploration itself does significant damage. Concessions can be carved up with roads to enable machines to enter and drill for multiple ore samples across the concession, to a depth of hundreds or thousands of meters. 

In June 2019, the local government of Cotacachi won an Action of Protection in the Provincial Court of Imbabura to halt exploration in the Reserve, and ENAMI/Cornerstone were stripped of their operating permits.

ENAMI and the government immediately lodged an appeal with the Constitutional Court. This was accepted in February this year, but may take several years for the case to be heard. Meanwhile, destruction at the reserve continues.

Exploration in the reserve has not halted, in direct contravention of the court order, despite overwhelming opposition in the region, and even though the mining companies no longer hold the appropriate environmental registration and mining permits.

The legacy of Los Cedros and other Protected Forests across Ecuador cannot be understated. Los Cedros itself has more than 4,000 hectares of primary forest and is part of the Choco Phytogeographical Zone, one of the most biologically diverse and endemic habitats on Earth. It is home to thousands of species, including the critically endangered brown-headed spider monkey, which has less than 250 individuals left globally. It is a legacy for humanity and the earth that should never have been put at risk.

This case is vital. It will further formalise the application of Rights of Nature law in Ecuador, and shape what these rights mean for the ongoing protection of Los Cedros, as well as set a precedent for the safety of all the other Protected Forests across Ecuador.

At a time when the ecological future of the earth already hangs in the balance, this is a case we cannot risk losing.

The Melbourne Rainforest Action Group is working on issues of corporate accountability of Australian mining companies operating overseas, particularly Ecuador, which is the world's newest hotspot for international mining investment, especially in copper. Most Australian companies who have stakes in Ecuador already have histories of significant corporate abuses in Australia, especially in Indigenous lands and environmentally sensitive areas. For more information visit https://rainforestactiongroup.org

References

1 https://therightsofnature.org/ecuador-rights/

2 https://therightsofnature.org/ecuador-rights/

3 https://www.rainforestinformationcentre.org/

4 https://ecuadorendangered.com/research/reports/RIC-Mapping-Report-v1.1-20180117-eng.pdf

Published in Chain Reaction #139, national magazine of Friends of the Earth Australia, May 2021. www.foe.org.au/chain-reaction


Whilst you are here, please make a tax deductible donation. Friends of the Earth relies on donations from people like you to keep running campaigns for social and environmental justice.