Los Cedros Reserve to be protected from mining after comprehensive Ecuador Constitutional Court ruling on Rights of Nature and the environment
Los Cedros river. Image credit Rafael Cardenas
In a significant ruling on December 1, the Ecuador Constitutional Court revoked the water and environmental rights of Cornerstone Capital Resources and the Ecuador state mining company (ENAMI) for the Rio Magdalena concessions that cover most of the internationally renowned Los Cedros Reserve.
The ruling sets an important precedent for Ecuador, which was the first country in the world to enshrine the rights of nature in its rewritten constitution in 2008.
“The Court stated that the companies had been responsible for a number of constitutionalviolations. These included violating the rights of nature, the rights of nearby communities to clean water and environment and the rights of communities to consultation over the mining projects. In addition, the Court ruled that the companies failed to acquire adequate environmental and water permissionspertaining to the extraordinary diversity and vulnerability of the region,” says Liz Downes from the Rainforest Action Group, an advocacy and research group investigating the actions of Australian mining companies in Ecuador.
The Court also ordered the government to adopt regulations so that future environmental licenses and water licenses for mining and other extractive industries do not risk violating the Rights of Nature.
“This order could become a precedent to protect significant water sources and other Protected Forests. There are 2.4 million hectares of Protected Forest in Ecuador currently at risk due to large scale mining,” says Liz Downes.
Brown-headed spider monkey at Los Cedros Reserve. Image credit Mike Peck
“Mining activities – even at early exploration stage – in the high-altitude cloud forests and grassland regions of the Ecuadorian Andes risk contaminating and depleting the water sources of local communities and the farms they depend on, as well as risking the extinction of thousands of endemic and endangered species. Across Ecuador, communities on the frontline say they have never been consulted about mining, and this ruling potentially gives weight to their argument, ” says Liz Downes.
Around 30% of mining concessions in Ecuador granted by the government since 2017 – just over 700,000 hectares – are owned by Australian companies, who are exploring for copper and other base metals. Mining companies potentially impacted by the ruling include SolGold, who are developing 13 priority projects nearly all of which cover protected areas.
Hanrine (Hancock Prospecting) and BHP each have several concessions in the region around Los Cedros in north-western Ecuador, which almost without exception overlap the buffer zones of mega-biodiverse and threatened forests like Los Cedros and Cotacachi-Cayapas National Park. Communities in this area have strongly resisted mining for decades.
Cornerstone Capital Resources, in a press release, says it has made a submission to the Constitutional Court requesting further details about the impact of the ruling on its activities.
“It is unclear as yet as to how the ruling will be enforced in terms of legislation. But this is set as a precedent case with no legal appeal possible,” says Liz Downes.
A plan to manage and care for Los Cedros Reserve will be established jointly with the Ministry of the Environment, Water and Ecological Transition, residents of the neighbouring communities, local and state councils, as well as researchers, scientists and academics who have conducted studies in the Protected Forest. In accordance with the ruling, this process is to be overseen by the Ombudsman's Office.
On September 12, members of Intag's local government and organisations sent a letter to the CEOS of BHP, Cornerstone Capital Resources, Codelco and Sunstone Metals, stating that unconsulted mining in their territories was threatening water sources, and demanding they stop explorations in the area.
The email below was sent to the CEOs of BHP Billiton and its subsidiary Cerro Quebrado S.A.; Cornerstone Capital Resources Inc. and its subsidiary Cornerstone Ecuador S.A.; CODELCO, and its subsidiary Exploraciones Mineras Andinas Ecuador Emsaec s.a.; with copies to President Guillermo Lasso, Ministries of the Environment and Water, and the Ministry of Energy and Non-renewable Resources. Visit DECOIN for more information.
We, the undersigned representatives of the Autonomous Decentralized Parochial Governments and the principal social organizations of the Intag area, Cotacachi County, Province of lmbabura, send you our most sincere greetings. At the same time, we would like you to listen to the voice of the majority of the population of the Intag area, which has been struggling since January 1995 to prevent the development of metallic mining projects in our territories.
1) Please be aware, CEOs and Ministers, that mining concessions were granted in the Intag area without prior consultation with the potentially affected populations, in flagrant violation of Article 398 of the Constitution of the Republic of Ecuador. In addition to contradicting the Development and Land Use Plans of the decentralized autonomous governments, the mining projects ignore the pronouncement of the Assembly of Unity of Cotacachi County, a space for citizen participation and which has, since 1996, rejected extractivism.
The nearly 90,000 hectares under concession, and being processed, include dozens of communities, productive agricultural lands that supply several cities in Ecuador with food, as well as organic export markets, tourist attractions, 21 micro and sub-watersheds, and includes an important extension of primary and secondary cloud forests. We remind you that the forests of Intag are within the Tropical Andes Biodiversity Hotspot, the most biodiverse of all the Hotspots of global importance. They are home to critically endangered species of mammals, birds, amphibians, fish and trees, including one of the world’s most endangered primates, as well as sheltering and protecting the water of 50 communities. Some species, such as the Longnose Harlequin Frog and the Rocket Frog, have only been reported in the forests of a mining concession and nowhere else in the world.
3) At least 48 water sources that supply the population of rural communities in the Intag area with this vital liquid are located entirely within the mining concessions. In addition, there are more than 200 natural sources of water for human consumption and food sovereignty for local peasant families.
4) Several mining concessions of BHP-Billiton and Cornerstone overlap the Los Cedros, Cebu and El Placer-La Florida Protected Forests, as well as thousands of hectares of forests registered in the Socio Bosque forest conservation program, where mining activities will directly contribute to the degradation of the sites’ biodiversity and worsen the climate crisis.
5) All mining concessions in the Intag Zone, without exception, intersect with the protection zone known as the Buffer Zone of the Cotacachi Cayapas National Park, considered one of the most biologically important on the planet. In the buffer zones, as should be obvious, only sustainable activities that serve as an environmental buffer should be allowed.
6) 100% of the concessioned areas in Intag are within the ACUSMIT, the Intag-Toisan Municipal Conservation and Sustainable Use Area, approved by municipal ordinance in 2019, in whose strict protection and conservation/recovery macrozones no mining activities are allowed. This is not the only municipal ordinance in Cotacachi County that prioritizes conservation and prohibits mining. In 2000, an ordinance was passed declaring Cotacachi an Ecological County. The Ordinance, as well as the ACUSMIT, is still in effect.
7) Intag currently has 38 Community Hydrological Reserves covering some 12,000 hectares of cloud forests and micro-watersheds. All but one of the reserves are located within the mining concessions. Apart from contributing to climate stability and biodiversity conservation, the reserves supply thousands of inhabitants with clean water, and are jealously protected by the communities. Any activity that degrades the vegetation cover is prohibited in the reserves, as is hunting and logging. Mining is expressly prohibited within the reserves.
8) According to a preliminary environmental impact study for a small copper mine in the Llurimagua area prepared by Japanese experts, Intag’s copper deposits are mixed with highly toxic substances. The expert authors of the study predicted the contamination of our rivers with arsenic, lead, cadmium and chromium. Likewise, massive deforestation is predicted, which would lead to the drying of our climate, and the relocation of four communities. Subsequently, they reported the presence of an even larger deposit.
With all this background, we call on you to preserve our right to live in peace and in a healthy environment, rights enshrined in the Constitution of Ecuador, laws and international agreements. We will not allow those business practices that have proven to be sources of conflict in our communities, nor mining activities that cause degradation of our forests, biodiversity and especially our water sources. Therefore, we strongly reject the unconsented presence of mining companies, and, even more so in times of global climate emergency, and we call on national and international bodies to join us in defending the Intag area and in building a future without extractivism.
Signatures follow below:
It is worth mentioning that these organizations, unlike the ones that support mining, have never received a penny from the mining companies.
Final hearing for endemic species case at Llurimagua mining concession to be held on March 11, 2021
A Constitutional Injunction brought against the Ecuadorian Ministry of the Environment and the State Attorney General in August 2020 over concerns the rights of endemic species were being violated is to have its final hearing at the Multicompetent Judicial Unit of the Cotacachi canton on March 11 2021.
Confusing Rocket frog Image credit: Luis Coloma
Judge Carmen Jaramillo Cevallos ruled in September that the Ministry of the Environment had failed to protect endemic and critically endangered species on the Llurimagua mining concession, and gave the Ministry of the Environment 90 days to solve omissions and irregularities detailed by the Nation's Comptroller General in its March 2019 report.
Environmental licenses on the concession will be revoked if these issues are not remedied to the judge’s satisfaction. The process will be overseen and validated by the Municipal government, the Universidad de San Francisco (Quito) and the Public Defender's Office (Ombudsman).
Carlos Zorrilla, a founder of DECOIN was fundamental in the case, and believes the judge appeals court will rule in the favour of endemic species and rights of nature.
Carlos Zorrilla says: “The measures [that must be complied with] include things that will be technically impossible to remedy, given that one of the most important irregularities was that the Ministry of the Environment approved the environmental license in 2014 without proper or sufficient baseline information – including not having a valid information from a meteorological station, which takes years of data collecting.”
“The case hinges on two species of frogs threatened by the Llurimagua mining project: the Longnose Harlequin Longnose Frog and the Confusing Rocket Frog. Both were thought extinct until their unexpected rediscovery in 2016 and 2019 respectively. Both are endemic to forests covered by the mining concession,” says Carlos Zorrilla.
“The full ruling released on October 22 last year states that Nature has intrinsic rights that are completely independent to human or civil rights; that these rights were violated when the State did not control mining activities in the Llurimagua concessions; that the Ministry did not take into account adequate protection for species in danger of extinction; and that the judicial protection was also violated,” says Carlos Zorrilla.
Intag as a Sanctuary of Life. Image credit: Carlos Zorrilla
“The judgement states that while the destruction of a few trees or a couple of the last remaining frogs of a certain species may not be significant from the public interest perspective, it is certainly significant to those specific species,” Carlos Zorrilla says.
The ruling would also pave the way for other similar cases to halt mining activities in areas where endemic species are found. Ecuador’s high rate of endemism means this could apply to most of the country.
“Besides it being a watershed ruling to protect endangered species and their habitat and stop extractive development in fragile ecosystems, the ruling creates jurisprudence in support of the concerted effort to insert Rights of Nature statues into local and national throughout the world,” says Carlos Zorrilla.
A campaign “Intag as a Sanctuary of Life” is strongly backed by the Cotacachi County Government, with the Mayor publicly expressing an interest in creating a local law to declare all of Intag and Manduriacu a Sanctuary for Life. This would put it at loggerheads with the national government, which has been threatening local governments with criminal proceedings if they pass anti-mining ordinances.
Huge road signs have been erected by the local government to support the campaign, and on March 3, the ordinance was officially turned over to the Municipality for approval. The moves indicate the level of resistance to mining in the region.
FOR MORE INFORMATION PLEASE CONTACT CARLOS ZORRILLA, +593 98 664 7518, toisan06@gmail.com
Protest in Ecuador over UNESCO Biosphere Reserve threatened by SolGold, BHP and other miners
Yesterday marked 60 days of protest against mining for people in the Parish of Pacto in Ecuador. In December, the Pacto parish declared an indefinite protest, arguing that mining activity threatens the biodiversity and water sources of the Chocó Andino reserve, home to the endangered Andean Bear.
One of the incredible amphibian species of the Choco Andino Biosphere Reserve
UNESCO added the Chocó Andino reserve to its list of Biosphere Reserves in 2018. The reserve covers 286,000 hectares of the Chocó Andino, and represents around a third of the Province of Pichincha, of which the parish Pacto is a part. The cloudforest is home to around 350 bird species, hundreds of orchids and bromelias, and 100 species of mammals, including the spectacled bear.
In 2011, the Quito Metropolitan Board declared Pacto’s micro-river basins be protected due to their importance for ecosystems in the area, explicitly prohibiting mining and drilling activities. However, in 2018 a number of mining concessions in the area were handed out.
"The Chocó Andino Reserve is now surrounded by dozens of mining concessions, and illegal mining is encroaching within the reserve. Community organisations say that mining is threatening the water sources of the reserve," says Rebekah Hayden, a writer and researcher for the Rainforest Action Group, an advocay and research group.
"SolGold subsidiary Valle Rico Resources holds several concessions around the Reserve, including two in neighbouring province Esmeraldas. BHP's Sabeleta concessions are just to the north of the Pichincha border, while Ecuador state company ENAMI is exploring on concessions within the Reserve area," says Rebekah Hayden.
"Sources in Pacto tell us that Gina Rinehart’s Ecuador subsidiary Hanrine has put in a bid for two concessions in the Pichincha province – Lorena 2 and 3, which are expected to be accepted once the mining cadaster opens again in April," says Rebekah Hayden.The Reserve includes nine Protected Forests, the Andean Bear Ecological Corridor, three Conservation and Sustainable Use Areas, multiple private reserves and a National Park: the Pululahua Geobotanical Reserve.
UNESCO map showing Choco Andino Biosphere Reserve
In October 2020, the Metropolitan Board passed a resolution to support conservation in the area, but Pacto communities say mining exploration is continuing regardless, and is contaminating the Reserve.
Elcomercio reports conservation groups as saying mining is “not compatible with the biodiversity of the area, nor with the sustainable production that is part of the management plan for these areas. They pointed out the use of dynamite and other explosive materials, the contamination of the water, the fragmentation of the communities, the damage to the landscape”.
On December 18 2020, the Parish of Pacto declared the protest, demanding the departure of the three mining companies operating their concessions in the sector, and calling for greater control of illegal mining activities by authorities.
"Illegal mining has proliferated in Ecuador since the expansion of legal mining concessions, with illegal mining operations increasingly run by armed militia connected to cocaine cartels and ex-FARC dissidents. In January 2020, police uncovered an illegal mining operation in Pacto, which contaminated the area with hazardous wastes, while hydrocarbons, dynamite and materials for mining were seized," says Rebekah Hayden.
"Resistance to mining projects across Ecuador is growing with a popular consultation on February 7 in Cuenca showing 80% of the population wants to prohibit large and medium- scale mining activities in their river water recharge zones," says Rebekah Hayden.
"The consultation is expected to form the basis of a major legal challenge at the Constitutional Court level and could halt the development of mining projects in the region. SolGold project El Cisne 1A is in the Cuenca province," says Rebekah Hayden.
Google Earth map showing Pacto and all mining concessions outlined in red. SolGold concessions are shaded in green. Dark green shaded areas indicate Protected Forests. Compare with UNESCO map above showing Biosphere Reserve which covers much of the Pacto Parish.
Australian concessions within Pichincha province: Fortescue: Santa Ana 1, 2a SolGold: El Decanso 1b; San Miguel 1,2,3,4
Closest Australian concessions to Pacto: BHP: Sabeleta 3,4 in Imbabura province SolGold: Aurora 1,2 in province of Esmeraldas
Llurimagua case for endemic species looks set to be lost by the Ecuadorian Ministry of the Environment in significant blow to plans for mining in the area
A case for protecting endemic species at the planned Llurimagua mine site had another win last week when Carmen Jaramillo Cevallos, Judge of the Multicompetent Judicial Unit of the Cotacachi canton, issued her full judgment on the case.
Contamination from exploration. Image credit: Carlos Zorrilla
The Constitutional Injunction was brought against the Ecuadorian Ministry of the Environment and the State Attorney General in August out of concerns that the rights of nature enshrined in Articles 71 and 73 of Ecuador’s Constitution of the Republic would be seriously impacted by mining activities within the Llurimagua concession in north-western Ecuador’s biodiverse cloud forests.
In a preliminary ruling released on September 24, the judge had ruled that the Ministry of the Environment had failed to protect endemic and critically endangered species on the Llurimagua mining concession, and gave the Ministry of the Environment 90 days to solve omissions and irregularities detailed by the Nation's Comptroller General in its March 2019 report.
If these are not remedied in the timeframe, environmental licenses on the concession will be revoked. Additionally, the court decreed that the process must be overseen and validated by the Municipal government, a University and the Public Defender's Office (Ombudsman).
“The measures [that must be complied with] include things that will be technically impossible to remedy, given that one of the most important irregularities was that the Ministry of the Environment approved the environmental license in 2014 without proper or sufficient baseline information – including not having a valid information from a meteorological station,” says Carlos Zorrilla, a founder of DECOIN and one of the petitioners in the case.
“They may install a meteorological station in the area now, but it takes years of data collecting to validate the information. It will be technically impossible for them to comply – especially with the civil society oversight,” Carlos Zorrilla says.
BHP and Gina Rinehart’s Ecuador subsidiary Hanrine have both been slated as likely buyers of the government-owned mining company’s share in the Llurimagua concession. The difficulty of meeting the measures in the required time will almost certainly mean the environmental permits for Llurimagua will be revoked, and makes any mining plans for the area increasingly unlikely.
The full ruling released on October 22 states that Nature has intrinsic rights that are completely independent to human or civil rights; that these rights were violated when the State did not control mining activities in the Llurimagua concessions; that the Ministry did not take into account adequate protection for species in danger of extinction; and that the judicial protection was also violated.
“The judgement states that while the destruction of a few trees or a couple of the last remaining frogs of a certain species may not be significant from the public interest perspective, it is certainly significant to those specific species,” Carlos Zorrilla says.
The ruling would also pave the way for other similar cases to halt mining activities in areas where endemic species are found. Ecuador’s high rate of endemism means this could apply to most of the country.
Australian mining companies BHP, Newcrest, SolGold, Fortescue and Hancock Prospecting, who all have subsidiaries in Ecuador, had hoped to take advantage of a pro-mining government eager for international investment, despite an overwhelming majority of Ecuadorians who do not want mining to take place in forested areas, on indigenous territory or near urban areas.
Another Rights of Nature case was heard at the Ecuadorian Constitutional Court on October 19 arguing that the country’s system of legally ‘Protected Forests’ should receive increased protection from mining based on the threats to fragile ecosystems and endangered species.
Again, a key argument in this case is that nature has intrinsic and inviolable rights, which Ecuador’s Constitution is unique in enshrining. A positive ruling would not only protect Reserva Los Cedros from mining, but could provide a precedent to safeguard all 186 Protected Forests in Ecuador, totalling some 2.4 million hectares (6 million acres).
Mining concessions currently cover over 800,000 hectares of Protected Forests in Ecuador, with Australian and Canadian mining companies holding the largest share.
“These Ecuador cases have implications internationally, with many several Indigenous and community groups in Australia currently looking to explore legislation to give rights or legal personhood to, and protect, the intrinsic value of rivers, waterways and other natural features,” says Liz Downes, a member of Rainforest Action Group, an advocacy and research organisation.
“Legislation based on legal personhood principles gave additional protection to Yarra River (Birrarung) in Victoria in 2017, by empowering its Wurundjeri Traditional Owners. Other rights of nature cases being explored include the Great Barrier Reef, the Fitzroy River and the Murray-Darling river system,” says Liz Downes.
Landmark Rights of Nature case to be heard in Ecuador’s Constitutional Court on October 19
The outcome of this significant case to protect the Los Cedros Reserve from mining would set a precedent for all future Rights of Nature cases, and could dramatically limit the ability of mining companies to operate in Ecuador.
In 2018, Canadian mining company Cornerstone Capital Resources was given a permit to explore on the Los Cedros Reserve in a joint-venture arrangement with the Ecuadorian state mining company, ENAMI. BHP also has a concession that overlaps part of the Reserve. A positive ruling at the Constitutional Court level would not only protect the Los Cedros Reserve from mining, but could provide a precedent to safeguard all 186 Protected Forests in Ecuador, totalling some 2.4 million hectares (6 million acres).
Los Cedros Reserve in north-western Ecuador is one of the most biologically diverse habitats in the world, with more than 4,800 hectares (nearly 12,000 acres) of primary cloud forest safeguarding the headwaters of four important watersheds. It also protects incredible diversity, including over 200 species facing a high risk of extinction, five of which are regarded as critically endangered by the Ecuadorian government.
One of these species is the critically endangered Brown-headed spider monkey. Only 250 of these rare monkeys remain, around a quarter of which live at Los Cedros. Los Cedros is a Key Biodiversity Area, which makes it critical to the global persistence of biodiversity and the health of the planet. In May, the Constitutional Court of Ecuador specifically cited the biodiversity at Los Cedros and the presence of “the last populations of the spider monkey in a critical state of conservation, and the Andean (spectacled) bear [which is] in danger of extinction” as reasons for hearing the case.
On October 19th, the Court will be examining evidence concerning whether or not mining should be allowable within Los Cedros, which is a type of protected forest known as a bosque protector. The upcoming hearing is predicted to focus on the application of the Rights of Nature, which were guaranteed in Articles 71–74 of Ecuador’s constitution.
Natalia Greene, the vice president of CEDENMA and a member of the executive committee for the Global Alliance for the Rights of Nature, and a member of Los Cedros’s legal team, says, “The Rights of Nature in Article 71-73 are quite important to understand the case of Los Cedros. It's an amazing place, threatened by mining. By reading these articles, you can understand that, if nature has rights — especially nature with such a big biodiversity, with so many species that are unique and that are on the verge of extinction — then Article 71 and 73 need to be applied in Los Cedros since it is facing such a big threat.”
Edgar Merlo who heads the legal team for Los Cedros, said: “The [Constitutional] Court’s ruling in this case would be a first in Ecuador: on the Rights of Nature, the right to prior consultation of communities, and the right to legal certainty, since concessions were granted without respecting the declaration of protective forests. The final judgment by the Constitutional Court in this case could change the legal focus in Ecuador, South America, and the entire world on the Rights of Nature and the rights of local communities, so that mining concessions are not granted in Protected Forests.”
The rapid expansion of mining in Ecuador since 2017 has seen a 300% increase in new concessions for mining exploration, totaling over 2.9 million hectares (6.17 million acres) of land.
A recent ruling indicates that these mining concessions may not be legal, given that affected communities did not give Prior and Informed Consent, since concessions were granted without respect for the national networks of Protected Forests and Indigenous Territories, and given that the granting of concessions impedes upon the Rights of Nature enshrined in the Constitution.
“Our legal case has been based on the argument that mining in Protected Forests is a violation of the legal status of declared Protected Areas, the Rights of Nature, and the right of communities to prior consultation, even before considering potential environmental damages,” says Jose DeCoux, manager and founder of Los Cedros reserve.
“Ecuador was the first nation to include the Rights of Nature in its constitution. It could now become the first nation to protect large swathes of biodiversity, based upon this constitutional innovation. This would set an invaluable precedent worldwide,” says Jonathon Porritt, one of the UK’s leading environmentalists.
The Los Cedros case is not the only case currently being heard on the Rights of Nature. A Constitutional Injunction won at the Cotacachi Court on September 24 may give endemic species all over Ecuador protective rights from mining through the Rights of Nature clause.
The Constitutional Court has chosen these cases to test how the Rights of Nature in the Constitution should be applied on a judiciary level. The outcome will serve as a precedent for all future Rights of Nature cases, and could have implications for the future of mining throughout the country.
Scientists and academics are expected to put forward testimonies about the importance of the Los Cedros Reserve as a crucial habitat for endangered species at the hearing, and the need to safeguard legally protected forests from extractive industries such as mining. All phases of mining are scientifically proven to decrease biodiversity through the collective impacts of road construction, deforestation, and associated river sedimentation and pollution.
The Constitutional Court required scientists to submit research supporting the value of Los Cedros to an online web portal by October 15. However, issues with the portal meant no-one was able to login and submit testimonies in the required format. Some scientists were able to email or send these letters in hardcopy by the due date, but there are concerns that these submissions may not be accepted, or that vital testimonies may be lost due to this technical hitch.
“It is impossible to understate how important the habitat that Los Cedros protects is, and the science shows that very clearly. It houses incredible diversity that we haven’t even begun to fully understand, plays a vital role in the water cycle, is an important carbon capture, and so much more. There’s so little intact primary forest left. Los Cedros is the last refuge for countless organisms,” says Professor Bitty A. Roy from the University of Oregon’s Institute for Ecology and Evolution.
There has already been significant international outrage at the threat to the reserve, with more than 19,000 signatories to a petition set up by the US Center of Biological Diversity in August. A separate scientists petition was signed by over 1200 scientists, including Jane Goodall, EO Wilson, Peter Raven, and Rosemary and Peter Grant.
Given the climate emergency, the need to keep reserves like Los Cedros intact takes on added urgency. Beyond the extraordinary biodiversity of these forests, they are vital to sequester carbon and water.
Meanwhile mining company Cornerstone Capital Resources continues to explore within the Reserve, without the appropriate permits, despite overwhelming opposition in the region, and in direct contravention of Protective Measures granted by the Provincial Court of Imbabura in June 2019.
FOR MORE INFORMATION PLEASE CONTACT:
Jose Cueva - Media spokesperson intaglibre@gmail.com +593 99 9347230 Josef DeCoux - Los Cedros Reserve jose@reservaloscedros.org +593 99 277 8878 Bitty Roy - Biologist at University of Oregon bit@uoregon.edu +1 541-343-3896
A Constitutional Protection Action win at the Cotacachi Court on September 24 may stop mining companies destroying the habitats of endemic species in Ecuador
The Confusing Rocket Frog, one of the endemic species from the case. Image credit: Luis Coloma
“In a huge win for the environment, on Thursday 24 September a judge at the Cotacachi Court ruled that the Ministry of the Environment failed at its job of protecting species on the Llurimagua mining concession in northwestern Ecuador’s biodiverse cloud forests. The case has implications for mining companies operating throughout Ecuador,” says Rebekah Hayden, a member of the Rainforest Action Group, an environmental research and advocacy group.
The Constitutional Injunction (Medidas Cautelares) was brought to the Cotacachi court in late August to immediately stop the Llurimagua copper mining project. The case argued that extractive activities in all habitats where endemic species are found should be prohibited.
“Two endemic species of frogs are threatened by the Llurimagua mining project: the Longnose Harlequin Frog and the Confusing Rocket Frog. The case was put forward by environmental and community groups DECOIN, GARN, CEDENMA and the Jambatu Centre. More than three dozen other species including several bird species, two species of monkeys, and the spectacled bear are also in danger of extinction from the mining project,” says Carlos Zorilla, a founder of DECOIN.
The team presented several expert testimonies, including Ecuador's best-known herpetologist Juan Manuel Guayasamin and Amicus Curiae (Friends of the Court) from mammal biologist Professor Diego Tirira, University of Sussex biologist Mika Peck, and lawyers from Ecuador’s Ombudsman’s office, Nature Rights expert Natalia Greene, among others.
“The Llurimagua copper mining project is being jointly developed by Ecuadorian state miner ENAMI and Chile giant Codelco in an extraordinarily biodiverse region. However, community resistance, a highly flawed environmental impact study and conflict between the two companies over how to split the profits, means there hasn’t been any exploration on the site since 2018. Aussie companies BHP and Hanrine (a subsidiary of Gina Rinehart’s Hancock Prospecting) are contenders to buy ENAMI’s share, with the sale expected to happen in the next few months,” says Rebekah Hayden.
The court ruled in favour of the Rights of Nature over the economic rights of the mining companies, giving the respondents - the Ministry of Environment and the Attorney General - three months to remedy the illegalities and irregularities detected in the first stage of exploration. This process will be overseen by a number of civil society groups, including universities.
“The judge ruled that if the government can’t show they can adequately protect these species from extinction, the mining permits will be revoked. This ruling also indicates that similar cases to protect other endemic species around Ecuador may succeed in the courts. Given Ecuador’s high rate of endemism, it could stop a large part of the country from being mined,” says Carlos Zorrilla.
The government has said it will appeal the decision, but the Rights of Nature team are confident they are more likely to win at a higher court.
“We are prepared to take the case all the way to the Supreme Court, as we feel there is indisputable evidence that mining in Intag’s forests will violate the Rights of Nature,” Carlos Zorrilla says.
The prospect of a lengthy court case, particularly when Rights of Nature are such an important part of the Ecuadorian Constitution may affect BHP and Hanrine’s decision to invest in the project.
The Imbabura Province where Llurimagua is situated has been a hotbed of conflict since the early 1990s, with two mining companies forced out since then.
“With BHP emerging as a likely contender to buy out ENAMI, and their standstill agreement with SolGold expiring in October, allowing it to make a bid on the company, a winning bid for both SolGold and ENAMI’s share of Llurimagua would give BHP the largest number of concessions in the region, and increase its holdings across Ecuador to over 300,000 hectares,” says Rebekah Hayden.
“The case for the rights of endemic species could make it a very bad investment for BHP if they go ahead with these bids,” says Rebekah Hayden.
FOR MORE INFORMATION, CONTACT:
Carlos Zorrilla toisan06@gmail.com (DECOIN) Centro Jambatu andreateran84@gmail.com Natalia Greene secretariat@therightsofnature.org, presidencia@cedenma.org (GARN, CEDENMA)
Visit: www.decoin.org Intag Santuario de Vida Facebook
For additional information about the frogs see: https://bit.ly/331VNUf and https://bit.ly/307I2kV
A Constitutional Protection Action could protect the Rights of Nature over the economic rights of transnational companies in Ecuador's Intag Valley.
Originally published in The Ecologist by Rebekah Hayden
The Intag valley in the Imbabura province, high up in north-west of Ecuador, should be a peaceful place. Forested mountains are blanketed so thickly in fog that the sub-tropical rainforests are known as cloud forests.
These forests shelter a biodiverse treasure in the plants and animals found here – many of which are critically endangered or at risk of extinction. Some are found nowhere else on earth. A study in 2018 found 287 endangered species in the Intag area alone. That number keeps going up as new species are discovered.
On the valley floor, farmers hold small plots of land, growing coffee, bananas and other subsistence crops. Yet beneath the subsoil lies bright seams of copper. To get to it, chunks of the valley and the mountains must be torn apart.
Mining
Atelopus longirostris. Image credit: Carlos Zorrilla
The Intag region has been a hotbed of conflict since the early 1990s, when miners exploring for copper discovered the valley’s mineral riches, and the community first voiced their opposition. Since then, communities in Intag have denounced mining companies for violations of permits and licenses. Two mining companies have since been forced out by peaceful, but determined community resistance.
Backed by local government, communities have presented evidence of serious human rights abuses, contamination of the Junín river, illegal logging, unauthorised land-use, and demanded the area be recognised as a mining-free zone, highlighting the region’s other sources of wealth, including its biological diversity and ecotourism potential.
A preliminary Environmental Impact Study conducted in 1996 found even a small copper mine in the Intag region would lead to massive deforestation and contamination of waterways with heavy metals. It predicted relocation of four communities, a reduction in rainfall and an increase in climate instability, a serious concern for a region already at grave risk of climate change.
Despite all this, the government continues to parcel up the land and sell it to transnational companies.
The Llurimagua copper mining project has a complicated history. Ecuadorian state miner ENAMI and Chile giant Codelcostarted exploring the site in 2015 – but only after it had been secured by hundreds of police. Conflict over how to split the profits, community resistance and a damning environmental impact study has stopped any exploration since 2018.
In 2019, the Comptroller General and the Ombudsman's report on the mining project found glaring violations to the law and strongly suggested the forest within the mining area should be given rights due to its biological significance. ENAMI is now planning to sell off its share.
Mining
Also in Imbabura, but fifty kilometres north-east of Llurimagua, Australian miner SolGold holds the Cascabel mining concession, which could equal Chile’s Escondida copper mine in size if it is developed. In 2019, Ecuador's Comptroller General published the results of a special investigation revealing many irregularities linked to the project.
Just below Cascabel, operations are degenerating into fiasco at a concession held by Hanrine, a subsidiary of Hancock Prospecting, and owned by Australia’s richest person, Gina Rinehart.
In 2019, the military had to kick thousands of illegal miners off the concession, while in recent months Hanrine’s General Manager was arrested for possession of military-style weapons and its main mining camp was burnt down. Illegal mining has contributed to a range of social problems at nearby townships, and now locals are wary of large industrial mining as well.
BHP also has a concession close to SolGold’s Cascabel project. Like the others, it is an area lush with primary and secondary cloud forest. On August 27, local authorities called for a halt of all mining projects in the area for fear of stoking social conflicts and environmental contamination.
Impact
BHP is emerging as the mining company which might have the largest impact on the region. Not only does it hold five concessions in the Intag area, but as a majority shareholder in SolGold holding a 14.7 percent stake, it stands to benefit from their concessions as well. BHP have been under a standstill agreement with SolGold which expires in October, allowing it to make a bid on the company. BHP is also a major contender in the race to buy ENAMI’s share of Llurimagua, along with Hanrine.
If BHP wins its bids for both SolGold and ENAMI’s share of Llurimagua, not only would it have the largest number of concessions in the region, but its holdings across Ecuador would total over 300,000 hectares.
As the biggest mining company in the world, BHP likes to appear socially and environmentally responsible. That has not been the experience of people on the ground in the Intag.
BHP’s concessions in Intag cover thousands of hectares of the local governments’ watersheds, primary and secondary forest reserves, farmland and the water sources for several communities. They also cover farmland, and seven communities who view the sale of land for mining as illegal, as they were never consulted by the government or gave consent – in direct violation of the Ecuadorian Constitution.
BHP obtained permits and conducted its first explorations for copper without community consent, and has repeatedly tried to divide the community. In January 2020, the affected communities voted to declare the area a mining-free zone. It is nearly three years since BHP has been able to access the concession.
Protections
BHP has a clearly worded charter that states it will not explore or extract resources within or adjacent to the boundaries of International Union for Conservation of Nature (IUCN) Protected Areas, or operate where there is a risk of causing the extinction of an IUCN Red List Threatened Species.
Yet five of BHP’s concessions lie within the Cotacachi-Capayas Ecological Reserve Buffer Zone, the habitat of several IUCN-listed species; there are at least two IUCN-listed species at LLurimagua; and many more across the concessions it might inherit if it bids for SolGold as well.
With BHP’s AGM coming up on October 14, there is a small hope that shareholder pressure may caution BHP to not invest further in these projects.
Ecuador is unique in the world for not only recognizing that nature has rights, but embedding these in its Constitution. DECOIN (Organizacion para la Defensa y Conservacion Ecologica de Intag), the team leading the Llurimagua Rights of Nature case, believes Rights of Nature are equivalent to the right to life, and that both of these rights are violated by the economic rights of transnational companies.
The Los Cedros Biological Reserve is also making a case with the Rights of Nature clause at the Constitutional Court, arguing that it should give Protected Forests greater protections from mining and other extractive industries.
Good living
Carlos Zorilla, a founder of DECOIN, says a positive ruling for the Lluriamgua case would have a much wider impact than only safeguarding Protected Forests. It would prohibit extractive activities in all habitats where endemic species are found. All endemic species would be included – whether the species have protection or not. Given Ecuador’s high rate of endemism, it could stop a large part of the country from being mined.
A public awareness campaign based around Buen Vivir or “good living”, a cornerstone concept of the Ecuadorian Constitution – Intag as a Sanctuary for Life – is strongly backed by the Cotacachi County Government, with the Mayor publicly expressing an interest in creating a local law to declare all of Intag and Manduriacos a Sanctuary for Life. This would put it at loggerheads with the national government, which has been threatening local governments with criminal proceedings if they pass anti-mining ordinances.
The first Constitutional Injunction (Medidas Cautelares) to immediately stop the Llurimagua mining project was heard by the Cotacachi court on 11 September.
The case hinges on two species of frogs threatened by the Llurimagua mining project: the Longnose Harlequin Frog and the Confusing Rocket Frog. The former was listed by the IUCN as extinct until its unexpected rediscovery last year; both are endemic to forests covered by the mining concession. Another two dozen species including the Andean Eagle, a species of spider monkey, and the spectacled bear are also in danger of extinction.
At the hearing, Ecuador's best-known herpetologist Juan Manuel Guayasamin gave a testimony on the endemic frogs, while mammal biologist Professor Diego Tirira, University of Sussex biologist Mika Peck, and Javier Morales from the Ombudsman’s office presented Amicus Curiae (Friends of the Court) on the importance of the region and the threats various species face.
Communities
By contrast, the government’s attorneys only brought forward a flawed Environmental Impact Study with 235 observations they were still “working to resolve”.
Carlos Zorilla said: “A problem facing all court cases based on the Rights of Nature is that it is rare to find a judge or lawyer who properly understands it.
"If we lose, we will take the case all the way to the Supreme Court, as we feel there is indisputable evidence that mining in Intag’s forests will violate the Rights of Nature, causing the two endemic frogs to go extinct, and push others closer to extinction.”
Regardless of the outcome of the case, it should not be incumbent on communities or courts to ensure the good behaviour of mining companies or governments. They must come to recognise themselves that mineral rights do not give them the green light to commit gross environmental crimes or human rights abuses.
The world needs places that stay untouched; where the risk of what we might lose outweighs any potential economic benefit. Intag is one of these places.
Sunstone Metals agreement to acquire El Palmar, a copper-gold project in northern Ecuador is an ecological nightmare fraught with risks. El Palmar abuts the Los Cedros Biological Reserve, a scientific observational and research site, with a case for protection soon to be heard at the Constitutional Court in Ecuador.
Mining concessions in and around Los Cedros Reserve. Image credit: Rainforest Action Group
Los Cedros Biological Reserve in north-western Ecuador has one of the most biologically diverse habitats in the world, with over 200 species with high extinction risk, five of which are regarded as critically endangered by the Ecuadorian government. The reserve covers more than 4,800 hectares (nearly 12,000 acres) of primary cloud forest, and safeguards the headwaters for four rivers, the Rio Manduriacu, the Rio Verde, the Rio Los Cedros, and the Rio Magdalena Chico.
“The challenge of establishing a mine in this area cannot be underestimated. The hills are precipitous, and the main road through the region is barely wide enough to take a single vehicle with a sheer drop on one side. The challenges for transporting mineral ore are enormous. Add to this new laws by the Ecuadorian Ministry of Mines which prevent mining companies from establishing tailings dams upstream. In an area like this, there is nowhere tailings can be safely stored,” says Rebekah Hayden, a member of the Rainforest Action Group.
The elevations at the Sunstone concession climb from 800m to 1400m in less than a kilometre.
“The area forms the watershed for a number of important rivers, including the Rio Manduriacu which runs at the base of the El Palmar concession. The steepness of the site means contamination of the waterways are inevitable,” Rebekah Hayden says.
“Previous owners of El Palmar halted plans for exploration once they realised how difficult the terrain is for such little gain. Sunstone’s purchase may well lure in investors whose money will end up at Bramaderos,” says Anthony Amis, a researcher for the Rainforest Action Group.
Sunstone Metals are just the latest mining company to circle the reserve. The Ecuadorian state mining company ENAMI is jointly exploring the reserve with Chile giant Codelco and Cornerstone Capital Resources. BHP also has claims directly adjacent to, and slightly overlapping the reserve.
The scientific importance of this area was emphasised by a letter-writing campaign organised by the US Centre for Biological Diversity in July to the CEOs of the various mining companies, which was signed by 1200 scientists including Jane Goodall and EO Wilson.
“The local community is strongly opposed to mining, with an ongoing legal campaign against ENAMI and Cornerstone Capital Resources about to go to the Constitutional Court. A new mine in the area could not be established without a protracted legal campaign and active community resistance,” says Rebekah Hayden.
“After several years of fighting the mining companies in courts,in May the Constitutional Court of Ecuador announced it will take on the case of Los Cedros, in a move which could prevent other Australian companies like BHP, Newcrest, Hancock Prospecting, Fortescue Metals and Solgold from mining in Protected Forests,” says Rebekah Hayden.
Los Cedros Reserve was established in 1988 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.
Contamination from exploration activities, 2017. Junin community reserve. Image credit: Carlos Zorilla
Government officials and the press also conveniently leave out that the only way the government and Codelco was able to insert themselves in Intag was by illegally and violently occupying the whole Intag valley in 2014 with the “cooperation” of 389 elite police and military personnel. And then, only after a campaign of intimidation by falsely arresting a community leader and jailing him for 10 months without sentencing. And, I’m sure the government officials are telling prospective buyers that where Codelco and Enami are planning on exploring and previously explored, is within the Junin community forest reserve and in the middle of an unexplored pre-Incan site. Right?
Oh, and then there is that minor issue the copper ore laying beneath primary cloud forests that are part of the Tropical Andes, by far the most diverse of the world’s 36 Biodiversity Hotspots. In fact, the forests within the mining concession harbor HUNDREDS of animal and plant species in danger of extinction. Many are critically endangered, and some are found here and nowhere else on the planet. Another minor detail the greenwashers might be forgetting to mention is that, in Ecuador, since the 2008 Constitution, Nature has rights. Species extinction would certainly violate such rights.
Did I forget to mention that in 1996 Japanese scientist produced a preliminary Environmental Impact Study for a small copper mine? What they predicted might turn you off to mining in Intag. “Massive deforestation”; drying up of the local climate; contamination of rivers and streams with lead, arsenic, cadmium and chromium, and relocation of hundreds of families from four communities are just some of the findings. Two years later they reported the ore deposit could be 5 times larger. Add the fact that the ore is, according to the latest estimates, very low grade (0,44%), that by all indications it seems to be very deeply buried, that the area gets between 3 and 5 meters of rain annually, that it is located in a seismically active part of the Andes, in extremely steep terrain, and you have the ingredients for creating one of the world’s worse environmental nightmares. Especially since Codelco is “guesstimating” the ore body might possibly hold 17 million tons of copper, incrusted in 4 billion tons of ore. If it’s ever confirmed, the ore body would be 55 times larger than what the Japanese used to base their apocalyptic social and environmental impacts on. Then there is the pesky issue of profitability. Low grade deposit, deeply buried, mixed with arsenic and lead plus, at the very low-price tag of USD $2.00 per ton to remediate the mining site, the project would become instantly unprofitable. But then again, who’s worrying about numbers?
If these reasons are not enough to dissuade any reasonable thinking person, there are plenty others.
