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Constitutional Court could save Australian Government funded Reserve in Ecuador from mining

A forest reserve in one of the world’s most biodiverse regions, originally set up with Australian Government support and home to over 200 species at risk of extinction, has been scheduled for a landmark legal case. In a precedent-setting move, the Constitutional Court of Ecuador has announced it will take on the case of the Los Cedros Protected Forest, which is threatened by grand-scale copper and gold mining, by using unique Rights of Nature laws enshrined in the constitution. 

Edgar Merlo, who heads the legal team for Los Cedros, says: “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 judgement 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.”

One of the UK’s leading environmentalists, Jonathon Porritt echoed this view: “Ecuador was the first nation to include the Rights of Nature in its constitution,” he said. “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.”

Plate-billed Mountain Toucan. Image credit: Murray Cooper

Los Cedros Biological Reserve in north-western Ecuador 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.

Los Cedros is one of the most biologically diverse habitats in the world, with more than 4,800 hectares of primary cloud forest, and it safeguards the headwaters of four important watersheds. It protects over 200 species with high extinction risk, five of which are regarded as critically endangered by the Ecuadorian government. (see Roy et al. 2018, iNaturalist, and the Los Cedros website for more information.)

“The remoteness and high-quality of the habitat explain why there are six species of cats and three species of primate, including some of the last critically endangered brown-headed spider monkeys in the world, as well as the endangered Andean spectacled bear. New species are also being discovered every year,” explained Dr Mika Peck from Sussex University.

“This biodiversity was recognised when the Constitutional Court specifically cited the importance of Los Cedros in preserving the last populations of the spider monkey and the Andean spectacled bear which is in danger of extinction,” says John Seed, founder of the Rainforest Information Centre.

José DeCoux, the manager of Los Cedros says: “Mining in Protected Forests is a violation of the legal status of declared Protected Areas, the collective rights of indigenous peoples, the Rights of Nature, and the right of communities to prior consultation before potential environmental damages.”

Mining concessions in and around Los Cedros Reserve. Image credit: Rainforest Action Group
Mining concessions in and around Los Cedros Reserve. Image credit: Rainforest Action Group

In 2017, the Ecuadorian government announced new concessions for mining exploration on over 2.9m hectares (6.17m acres) of land, a roughly 300% increase. Many of these exploratory concessions are in previously protected forests and indigenous territories. Mining exploration is also occurring in headwater ecosystems and biodiversity hotspots of global importance like Los Credos, and appears to be in violation of Ecuadorian law and international treaties.

“More than 30% of Protected Forests have been under imminent threat from mining since 2017, when a policy change within the Ecuadorian government allowed these protected lands to be included in mining concessions,” explained Paul Gilding, former Executive Director of Greenpeace Australia and Greenpeace International.

As part of this rapid mining expansion, BHP and Canadian mining company Cornerstone Capital Resources were given mining permits in collaboration with the Ecuadorian state mining company, ENAMI.

“The permit for mining was given despite the Ministry of Environment’s own publication citing Los Cedros in its ‘Areas of Priority for the Conservation of Biodiversity in Ecuador’,” says John Seed.

The Los Cedros Protected Forest authorities won their case for an Action of Protection in the Provincial Court of Imbabura in June 2019, which stripped the mining companies of their operating permits. The government, working alongside the mining companies, subsequently appealed against the decision.

Meanwhile, the mining company Cornerstone Capital Resources continued exploration within the protected area in direct contravention of the court order, despite overwhelming opposition in the region, and without the appropriate permits.

“This case expresses the current conflict between the Ecuadorian government and its intention to open the country’s untapped oil and mineral reserves to foreign investment and the long-held public sentiment in Ecuador against extractionist economic development,” says John Seed.

“The case will help determine the balance between short-term economic gains through mining development and the slower — but generally more sustainable — economic development that accompanies long-term biodiversity conservation,” explained John Seed.

“This case has implications not just for Los Cedros, but for all 186 Protected Forests in Ecuador, totalling some 2.4m hectares,” said Dr Bitty Roy, Professor of Biology at the University of Oregon and one of a number of scientists for whom Los Cedros is a research base.

Globally, this is the first case where constitutional protections for nature will be evoked at a national level to protect an ecosystem from large-scale mining. Ecuador remains the only country in the world to have enshrined these rights in its Constitution. It is also a country that has recently attracted a massive amount of interest from transnational mining companies, who see vast potential in its mineral wealth, particularly copper and gold.

Australia is Ecuador’s biggest investor, with companies like SolGold, BHP, Newcrest, Hancock Prospecting, Fortescue Metals, Titan and Tempus Resources pouring millions into copper and gold exploration.

Around 750,000 hectares of legally Protected Forests across the country are currently covered by mining exploration concessions. Australian mining companies stand to be impacted by any positive ruling on the case, with at least 67 concessions covering, in whole or part, Indigenous territories or Protected Forests.

Aussie miner SolGold would be most impacted by the ruling, with 19 concessions covering Protected Forests and 18 covering Indigenous territories.

Full media release here.

Australian company offer for controversial Llurimagua project

A major Australian company has reportedly put in a US$420 million offer for the controversial Codelco-ENAMI Llurimagua project in the Intag region of Ecuador according to mineral expert lawyer.

Minerals expert lawyer Stevie Gamboa Valladares said in Prensa Minera on April 10: "Llurimagua is a mining project located near the Intag forest, an area of enormous conflict. It is a strategic alliance between the National Mining Company of Ecuador ENAMI and CODELCO, which is the National Copper Corporation of Chile. This project, which is part of a binational agreement, has been suspended for several months as both countries have failed to define the appropriate conditions for their alliance and association."

Twenty three reasons why Codelco should stay out of Intag

By Carlos Zorrilla | Nov 11, 2019

Originally published here.

This then, is an attempt to draw attention to some of the hurdles Codelco, or any mining company, would face if they tried to open up a mine in Intag.

Cloudforest. Image credit: Carlos Zorilla

Studies and more Studies

To justify their existence in certain projects, mining companies, when  they can afford it, hire hot-shot NGO’s to carry out interviews and studies to ascertain popular perception on mining, identify key players, and confirm that they are loved. Then they actually go ahead and base their decisions on the study’s results!  Even though they know they are lies at worst, or at best, written to please the funders.  As if an area’s complexity and attitudes could be studied in a few days or weeks.

A Brand New Century

If there’s anyone interested in investing in Intag’s mining project reading this, you probably know- or should know- as all responsible mining companies can attest to (as well as key players like the World Bank), that support from the Executive Branch of government is not nearly enough guarantee a project’s success. You need genuine (not manufactured or self-delusional) social license issued freely, without pressures or intimidation.  In fact, national government support is no guarantee at all the project will succeed. So, do NOT bank on the government’s enthusiastic endorsement.  You’ll lose. Big time.

I am positive that if most INVESTORS were find out about all the risks and obstacles facing mining in this corner of Ecuador, they would pull out.

This, then, is one more attempt to try to inform of the reality behind the lies and distortions being generated around the Junín mining project, and just 21 of the reasons why this project, as BN Americas pointed out, is bound to fail (click here).

 IMPACTS

Equipment installed in Junin by Codelco.

A. Based on the Bishi Metals Environmental Impact Assessment of mining in Intag, and on a small (450,000 ton) copper mine (a couple of years later they inferred the existence of 5x more copper)

1. Intag is no like the Atacama desert, where Codelco has its copper mines. Besides being super biodiverse, there are communities all over the place. According to the Study, the mining project would relocate hundreds of families from four communities.  Afterwards, the Japanese found more five times more copper, which could increase the number of communities affected by two- at the very least. Relocation of communities is more than enough to stop most extractive projects.

2. It would impact primary cloud forests.  What’s so special about cloud forests?  Less than 2.5% of the world’s tropical forests are cloud forests. They are not only exceptionally biologically diverse- as well as severely threatened-  but they play an outsize role in protecting important headwater watersheds.

3. The project would cause massive deforestation (in the words of the experts preparing the Study). The small mine would directly impact 4,025 hectares.

4. The deforestation, according to the Japanese, would lead to drying of local climate, affecting thousands of small farmers (the EIA used the word desertification). You think communities will let this happen once they truly get the picture???

A rare frog from the Intag region. Image credit: Carlos Zorilla

5. Intag’s forests belong to the world’s top Biodiversity Hotspot; the Tropical Andes. The scientist working on the study identified 12 species of mammals and birds facing extinction that would be impacted by the project, including jaguars, spectacled bears, mountain tapirs and the brown-faced spider monkey. (Based on incomplete studies, Decoin identified more than 30 species of threatened or endangered plants and animals, and there could be dozens more).

Every year new species are found in Ecuador’s cloud forests, and this includes the spectacular Prince Charles frog, as well as the only carnivore discovered in the Western Hemisphere in the last 35 years.  In addition, the area has several other endemic species, such as the recently discovered Shape-shifting frog (Pristimantis mutabilis), and the Black-breasted Puffleg Hummingbird, which exists in only two patches of high altitude cloud forests- one of them located in Intag.

6. There are pristine rivers and streams everywhere within the concession.  The EIA predicted they would be contaminated with lead, arsenic, chromium, cadmium and other toxic substances.

7. The project would, unquestionably, destroy pre-Incan Yumbo archeological sites.  This is one of the least studied cultures in Ecuador.

8. It would impact the Cotacachi-Capayas Ecological Reserve (one of the world’s most biologically diverse protected areas and the only large one in all of western Ecuador).

Besides these very worrying impacts identified in the Study (for a mine a fraction of what it could end up being)…  there are other significant hurdles.

B. Legal hassles

9. Large-scale mining would violate the legally-binding Cotacachi County Ecological Ordinance created in 2000.  Only the Constitutional Tribunal can rule on the validity of the Ordinance in light of the new Constitution. And the Tribunal has not.

10.  Ecuador’s new Constitution demands that communities be consulted before any project impacting their social or natural environment takes place; a Constitutional guarantee that has been disregarded from day one. The Constitution also grants nature rights, and the people right to Sumak Kawsay, or a Good Life (also translatable as Harmonious Life) .  Good luck trying to convince a decent government and world opinion that open pit mining will not violate these two fundamental rights (no matter how obscenely the government decides to define the indigenous concept of a “Good Life”).  Just because a government does its best to distort the Constitution does not mean a future one will do the same.

Waning political support

11.  One of the things the government likes to underline is that it has the area´s political support. As of February 2014 this is no longer true, as the president’s party, Alianza País, lost badly in local government elections in Imbabura province, site of the mining project.  In fact, Imbabura was one of the provinces where Mr. Correa’s party lost more municipalities (5 out of 6) than anywhere else in the country. One of those Municipalities is the Cotacachi, which encompasses the Llurimagua mining concession. The new Mayor, Jomar Cevallos, is firmly opposed to mining.

Protests in the capital, Quito. Image credit: Carlos Zorilla

C. Opposition

There is widespread opposition to the Intag mining project. This includes:

12. The Parish township governments the concession is located at, plus County-wide indigenous and campesino organizations. The new threat has actually mobilized more organization at the local, county and national level, than ever before.

Community Opposition. Most communities surrounding the mining project are still, after all these years, opposed to the project. Eighteen years of resistance has honed their skill in resisting (the right to resist is now a right protected by the Constitution). In fact, on November 2013 the government tried to carry out an environmental impact study were stopped by the communities- in spite of heavy police presence, and military in the area..

D. Human Rights

13. After years of stopping dozens of attempts by government and private companies of accessing the mining concession that overlap communal land in order to carry out the environmental impact study and begin exploration, the government and Codelco only succeeded in carrying out the study in May of 2014 with the help of hundreds of police that terrorized the area for two months and violated rights, such as the right to freely circulate. To intensify the intimidation, a month earlier Javier Ramírez, president of the Junín community was arrested and jailed under highly irregular circumstances, which have been denounced by human rights organizations such as Amnesty International, and The International Human Rights Federation, as well as several national human rights groups. Javier was released after being sentenced in February of 2015 but only after serving 10 months in jail. His brother Victor Hugo remains in hiding accused of sabotage, the same criminal offense as his brother, for putting up resistance to the presence of Enami employees in their territory.

14. 90% of NGO’s in Cotacachi County and Intag oppose the project. In late 2012, the most important civil society organizations in Intag wrote a letter to Chile’s president to make sure he understood that the organizations would again rise to defend the area if Codelco or anyone went ahead and tried to revive the project.  .

Looking at contaminated waterfalls. Image credit: Carlos Zorilla

E. Exaggerated Copper Claims

15. In 2007, Micon International, the entity contracted by Ascendant Copper to evaluate the Junin copper deposit, said that it could not confirm their earlier estimates due to degradation of samples. Copper Mesa had been saying all along that the Junin copper deposit had four times more copper than what the Japanese inferred after years of exploration.   In all, 2.26 million tons were inferred by the Japanese, which is a little less than 1/10th of what the world consumes annually (and it would take decades to mine it all out).

The pristine waters of Intag, under threat. Image credit: Carlos Zorilla

F. Further environmental challenges

16. The area receives between 3000 and 4000 millimeters of annual rainfall. Heavy rainfall, abundant underground aquifers, and heavy metals in the ore make for a deadly mix.  Not only that, but they raise the price of mining considerably, while greatly increasing the risks of man-made disasters, such as landslides.     For an idea of what a landslide can do in an open pit mine, go here:

17. The ore contains toxic heavy metals and sulfur (which will cause Acid Mine Drainage).

18. There is a superabundance of underground water (according to Japanese EIA). This is bad news for mining companies and even worse news for the environment.

19. The area where they found the copper is exceptionally steep and mountainous, making mining much more difficult and expensive than most mines.

20.  There are clear indications that Junín’s copper is very deep, making mining much more environmentally destructive and economically risky.  Emphasis on Economically risky.

21. The Toisan Range has many geological faults, posing significant earthquake risks.

22 & 23. The 2019 discovery of the two endemic frogs (see above) that will, without a doubt, become extinct if mining is permitted. An issue ripe for the equivalent of the Supreme Court to decide if it violates the Constitutional Rights of Nature.

There are, in fact, more than 23 reasons for Codelco to stay out of Intag. But these should suffice for any company that considers itself responsible and to realize that Intag’s forests and inhabitants should be a no go zone.  https://youtu.be/QRinnhejBIw

Further Reading

BnAmericas article here http://www.bnamericas.com/news/mining/codelco-enami-exploration-project-in-ecuador-faces-bumpy-future-possible-failure

www.codelcoecuador.com

www.decoin.org

www.codelcofueradeintag.blogspot.com

Australian mining companies complicit in unrest

The Rainforest Action Group is deeply concerned about the implications of the State of Emergency declared by Ecuadorian president Lenin Moreno on October 3rd. The action gives police and military the power to use extreme force to repress the widespread mobilisation of the populace occurring throughout Ecuador after the implementation of austerity measures known as the “paquetazo” (package) on October 1.

Alicia Cahuiya, leader of the Waorani women's organisation (AMWAE) standing beside the crowd in the central square of Quito

The US $20 billion fiscal reform package includes axing fuel subsidies – a move that saw diesel prices rise from US$1.03 to $2.30 per gallon, and petrol rise to US$2.39 from $1.85. Public service wages were cut by 20 per cent, and workplace security and job security safeguards removed. Thousands of public-sector employees were also dismissed and education and healthcare spending slashed. The resulting protests have seen hundreds injured and at least one dead, with police shooting unarmed protesters and the government leaving the capital over safety concerns. Hundreds of people have also been arrested.

“The reforms by the Ecuadorian government are part of IMF mandates that seek to open Ecuador further to international investment, and pave the way for widespread copper and gold mining despite resistance from the population. Austerity measures in a country where the level of structural poverty sits at 25.5% and extreme poverty levels of 9.5% is unfathomable. Given the isolated terrain of much of Ecuador, the fuel price rises will see the poorest Ecuadorians and small-scale farmers hit the worst,” says Rebekah Hayden.

“The move directly implicates Australian mining companies in the repression of the populace, who overwhelmingly voted last year against mining in Indigenous territories and protected forests in the Amazon and Andes. Despite this, the government continues to move ahead with plans to increase mining concessions, axing taxes so that mining companies can operate with lower overheads, and providing armed forces to ensure the security on the sites of these proposed mines. The IMF loan was provisioned on foreign investment, particularly the strategic mining projects such as SolGold’s proposed Cascabel mine which acts as collateral for the loans.” Ms Hayden added.

Australian mining companies are leading investment in Ecuador, holding almost 30% of mining concessions across the country, totalling 536,101 hectares in early 2019.

“Australian mining companies like to promote mining as an opportunity to provide jobs and increase local wealth, however these austerity measures by the government indicate that local communities will be far worse off after foreign investment than they were before,” Rebekah stated.

Protesters occupying Ecuador's National Assembly. Click for video.

The Confederation of Indigenous Nations of Ecuador (Conaie) released a statement in mid 2018 denouncing the Government’s selling of around 2 million hectares of Indigenous territories and protected forests to mining companies, and declaring a unilateral stance against all industrial foreign investment projects, including mining, oil and hydroelectricity, in indigenous lands. Last week, in response to the release of the austerity package, indigenous people apprehended and detained around 50 police and military personnel trying to enter communities in the Andean provinces of Chimborazo and Imbabura. To date, many of those held have not been released. In a statement on 3rd October, Conaie declared: “Military and police who approach indigenous territories will be detained and subjected to indigenous justice.’

Meanwhile, also on 3rd October, protestors burned down a mining camp at Río Blanco in the province of Azuay. Río Blanco, owned by Chinese company Ecuagoldmining, has been for several years a social and political flashpoint. Sustained community resistance against the gold mine resulted in a legal case which in June 2018 forced the project to shut down. However, as part of his swathe of new enforcements following the signing of the IMF deal, President Moreno promised to do whatever it took to re-open Río Blanco.

In recent months there have been a number of other declarations released by communities denouncing moves to mine their land. They say they were not consulted about plans to mine. An assembly in the province of Intag on August 20th was attended by 1500 people, who released a statement giving mining companies, including BHP (five concessions in the area) and Gina Rinehart’s Hanrine, two months to withdraw from their communities.

On August 23rd, the Shuar Arutam Indigenous People’s government declared itself free of mining, demanding the exit of mining companies which include Australian companies SolGold, Andrew Forrest’s Fortescue Metals Group, Newcrest (who part-owns the flagship gold mining project Fruta del Norte) and BHP. More than 50% of Shuar territory is covered with mining concessions, and nearly 100% is concessioned to oil companies. At this moment, Shuar Arutam demonstrators are being harshly treated by the military, being gassed, shot at and beaten.

“Australian companies are naively pushing ahead with mining in communities that do not want them to operate on their land, in an environment that is increasingly fraught, and at a time when global concerns about climate change require deeper scrutiny of any new mines – particularly in such vital forests as the Amazon. Any mining in Ecuador can only go ahead with increasing force against the populace – making Australian companies directly responsible for any fatalities that result.” Ms Hayden concluded.

As this is being written, Ecuador is in lockdown due to a nationwide strike and escalating unrest. Citing security fears, the government has temporarily moved from the capital, Quito, to Guayaquil.

Contacts and full media release here.