Mining in a protected region of the Ecuadorian rainforest violates the rights of nature, Ecuador’s Constitutional Court ruled on Wednesday, in a landmark decision interpreting the country’s constitutional provisions that grant rights and confer protections to ecosystems.
The decision means that Ecuador’s government will have to revoke mining permits granted to Enami, Ecuador’s state mining company, and its Canadian partner, Cornerstone Capital Resources, for exploratory operations within the Los Cedros protected area in Ecuador’s northwest region. Seven justices voted in favor of the ruling and two abstained.
“[T]he risk in this case is not necessarily related to human beings…but to the extinction of species, the destruction of ecosystems or the permanent alteration of natural cycles…” Judge Agustín Grijalva Jiménez wrote for the majority in the decision, which has been translated from the Spanish version.
Enami did not respond to requests for comment, and Cornerstone Capital Resources referred Inside Climate News to a press release on the ruling. In the release, the company said that it had obtained all of the required permits for its activities, that it consulted with local communities beforehand and that no environmental damage had occurred.
The company also said in the release that it is working with Enami to determine what steps it will take next, including submitting a new application that complies with the deficiencies cited by the court. Cornerstone Capital Resources is planning to file a petition with the Constitutional Court, the highest tribunal in Ecuador, seeking clarification about parts of the ruling, according to the press release.
Ecuador’s constitution recognizes the rights of “Pachamama,” or Mother Earth, to exist and to “maintain and regenerate its cycles, structure, functions and evolutionary processes.” In 2008, the country was the first in the world to enshrine the rights of nature in a constitutional document, affording nature the highest form of legal protection.
The case is part of a series of Constitutional Court rulings interpreting and applying Ecuador’s rights of nature laws. In September, the court issued a ruling in favor of mangroves. At least one other case is pending with the court.
In 2017, Ecuador’s Environmental Ministry granted permits to Enami and Cornerstone Capital Resources to conduct exploratory activity in Los Cedros, a forest that has been protected since 1995.
Santa Ana de Cotacachi, a nearby municipality, filed a lawsuit contesting the legality of the permits and arguing that they violated the rights of nature, the human right to a clean environment, clean water and prior consultation.
A lower court agreed with the plaintiffs and in 2019 the country’s Constitutional Court selected the case for review.
The voluminous Los Cedros decision stands out because it addresses mining activity, a contentious issue in Ecuador. At 119 pages, the opinion provides detailed analysis of the legal consequences of violating rights of nature, according to Constanza Prieto Figelist, Latin American legal director at the Colorado-based Earth Law Center.
The Los Cedros decision is widely seen as a victory for the global rights of nature movement, which seeks to upend the worldview and prevailing legal doctrine that construes nature as a thing to be used for humans’ benefit.
Jiménez wrote that the main idea behind the rights of nature is that nature has inherent value and that value must be recognized in and of itself, regardless of its usefulness for humans.
Civil society organizations applauded the ruling and described it as evidence that the laws can work in practice.
“The verdict indicates that the Constitutional Court of Ecuador is taking the new constitutional rights of nature very seriously,” Hugo Echeverría, an Ecuadorian attorney affiliated with the Spokane, Washington-based Center for Democratic and Environmental Rights, said in a written statement about the ruling. “This is a good day for the species and fragile ecosystems of Ecuador.”
Central to the court’s ruling is the application of what’s known as the “precautionary principle,” which means that absent adequate scientific evidence, it is better to avoid certain risks that could lead to irreversible damage of ecosystems.
Neither the government nor the mining companies had performed or provided the court with technical studies on the effects that mining would have on Los Cedros, the court said. Instead, the companies had argued that by complying with existing government regulations, their activities would respect the rights of nature.
The court disagreed, citing scientific studies that show Los Cedros is a delicate and endangered forest. As of 2000, about 96 percent of the country’s western primary forests had been lost, the court said. And the preserve is one of the country’s last remaining elevated rainforests, or “cloud forests.” It is rich in biodiversity and home to about 2,700 types of plants and at-risk species like the jaguar, spider monkey and spectacled bear.
The ecosystems in Los Cedros are complex, the court said, and their ability to adapt to harm becomes more difficult, and eventually impossible, with each injury it sustains. The loss of one species, it said, can cause an “extinction chain” of other species loss. And these ecological connections are little understood by humans.
The government’s failure to conduct studies looking at the fragility of Los Cedros coupled with the uncertainty of the effects from the permitted mining activity violates the rights of nature to exist and regenerate, the court ruled.
The Human Right to a Clean Environment
The court also found that the government’s lack of environmental studies and consultations with local communities violated those communities’ rights to a healthy environment, to water and to prior consultation.
Those human rights, the court said, are interconnected with the rights of nature.
“…The very existence of humanity is inevitably tied to that of nature, for he conceives it as part of himself,” Jiménez wrote. “Therefore, the rights of nature include necessarily the right of humanity to its existence as a species. It is not a rhetorical lyricism, but a transcendent confirmation and commitment that, according to the preamble to the Constitution, requires ‘a new form of citizen coexistence, in diversity and harmony with nature.’”
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The court also rebuffed an argument from mining companies that the constitutional rights of nature provisions only apply within Ecuador’s environmental protection areas.
The rights of nature, the opinion said, apply throughout the country.
“It would not be logical to state that the rights of nature, the right to water, and the human right to a healthy and balanced environment are valid only in protected areas,” Jiménez wrote. “On the contrary, the obligations of protection of these rights apply to public authorities throughout the national territory…”
The court expressed concern that some government officials and judges have not adequately considered the rights of nature in their decision making processes.
“The rights of nature, like all the rights established in the Constitution Ecuadorian law, have full normative force. They are not only ideals or rhetorical statements, but legal mandates,” Jiménez wrote.
The opinion went on to impose obligations on Ecuador’s Ministry of the Environment to create a plan for managing Los Cedros and ensuring the protection of the rights of nature and the human right to a healthy environment. The judges also directed the government to adopt procedures to ensure that future permits do not violate the rights of nature.