The Transcendence of Intag’s Rights of Nature Ruling and the Future of Mining in Ecuador
Carlos Zorrilla
About four years ago I wrote the first of what would eventually be three versions of the “21 Reasons why Codelco Should Stay Away From Intag.” Not too long afterwards, it became Twenty-two when a new species of frog which thought extinct was discovered in the Llurimagua mining area that Chile’s Codelco was exploring for copper. Three years later it was Twenty-three reasons when an even more unique species of frog, likewise thought extinct, was discovered in the same mining concession.
In all the versions, I pointed out the main reasons why I thought it was a terrible idea to mine in Intag’s cloud forests. These include: location of the mine would be in one of the world’s most biodiverse and threatened forests; presence of hundreds of species in danger of extinction; very high annual rainfall; the area is riddled with pre-Incan archeological sites; high risk of earthquakes; very steep topography; the mine would force relocation of several communities; and a highly organized civil society movement responsible for expelling two transnational mining companies from Intag since 1995. These and other factors have the makings of a world class social and environmental nightmare.
These seemed to me more than enough to make any responsible company think thrice about risking hundreds of millions of dollars to develop a copper mine, but then I also pointed out that Ecuador sees Nature as a holder of rights. This right was incorporated into the country’s 2008 Constitution; the only country in the world to do so. In other words, not just people and corporations have rights, Nature has intrinsic rights that are independent of human welfare or needs. A pivotal concept that in the eyes of a growing number of people is self-evident.
Besides highlighting the social, biological and geological reasons mentioned above, I also mentioned that sooner or later the Rights of Nature would inevitably be used to stop mining development in Intag. This is because I am convinced that if there is one economic activity that clearly violates this right, it is large-scale mining. Since the Rights of Nature is still a fairly novel concept I thought that in cases like ours it would be difficult for the lower courts to recognize and act on them, which is why I thought it likely that we’d have to wait for a Supreme Court ruling, something that can take years.
However, I and the others who took part of preparing the case, were ecstatic by the lower court ruling this last September 24th. On that date, the Cotacachi court ruled that indeed, impacting the habitats home to endangered species is in violation of the Rights of Nature. It is the first ruling in Ecuador using specific endangered species as the principal argument under the Rights of Nature protection to stop a mining project. It is for sure bound not to be the last.
The ruling called for stopping all mining activities and any process of approving new permits to resume advanced exploration. The prohibition will stay in place until the Ministry of the Environment can prove to independent parties (County government and a University) within 90 days that the measures put in place will guarantee the rights of not just these two amphibians, but of all endangered species within the mining concession. The thing is that there are dozens of endangered species in the 4,929 hectare concession, at least six of which are critically endangered; including a spider monkey, a fish, and not less than three frog species. Importantly, the process of compliance will be overseen by the Ombudsman’s Office. If compliance is not independently verified, the mining company’s permit will be revoked. If compliance was just left for the Ministry of the Environment, I would have serious doubts as to the outcome. The fact that it will be verified by a totally independent mechanism, should guarantee the end of the mining project.
Advancing the Biocentric Paradigm
I believe the most important aspect of the ruling is the legal concept it is advancing; that nature has intrinsic rights. In parts the judge expresses it very eloquently. For example, when the judge highlights that the rights of nature are independent of the human right to a healthy environment. She also pointed out that the disappearance of a species may not be of public interest, but it is so for these particular species. In effect, she is advancing the change of paradigm the world so desperately needs; from an anthropocentric paradigm to a bio-centric one.
Needless to say, the government, embodied in the Ministry of the Environment and the Attorney General’s office, the defendants in the case, responded by saying they will appeal to the Provincial Court, based in Ibarra. For us, however, the big hurdle was the County Court, which we cleared unambiguously.
Appeal or no appeal, the fact is that there is a clear tendency in the last two years of the Ecuadorian courts ruling in favor of Nature. There is another case from the Intag region, the Los Cedros Protective Forest case, right now in the Supreme Court. The case was, in fact, chosen by the court because it was seen promising for setting legal precedents for the Rights of Nature in these types of protected areas (the case was originally won in the Provincial court based on the absence of prior consultation with communities). The case should be decided in the next few weeks and should set a precedent for Ecuador’s protective forest.
Other cases have been won using the rights of nature against mining in the past two years, including one by the Indigenous Cofán tribe in 2019 (Sinangoe case). What differs these positive rulings from ours is that they were not based on the rights of endangered species to exist. Our case also differs from others in that its effect should be applicable to wherever any of Ecuador’s over 2,000 endangered species are found. And there are very few natural areas in Ecuador devoid of endangered species.
What Next?
Exploratory activities have stopped in the Llurimagua mining concession since November of 2018. Apparently the two companies, Ecuador’s state-owned ENAMI and Codelco, can’t come to terms on how to split the ore-body pie. The latest plan is for Ecuador to sell its share of the project to the highest bidder which, according to sources, could be BHP (world’s largest miner). That, however, is far from the whole story. In 2018, Intag organizations challenged the Environmental Impact Study presented to expand exploration in the LLurimagua mining concession. In the discovery phase of our lawsuit, the Ministry of the Environment recognized they were “working to address” 233 flaws detected in the study and it would not be approved until they were all addressed. If that wasn’t bad enough, the lawsuit forced the Ministry to address the damming observations contained in the March 2019 Comptroller General’s report on the mining project. The latter are the main focus of the judge’s ruling and include gems like the Ministry of the Environment approving an earlier environmental impact study lacking basic baseline information, and not revoking the environmental license when it had plenty of reason to. Given that the Ministry has been, to date, unable to correctly address the observations, it is extremely unlikely they will be able to do so in the next 90 days*.
As of this writing (November 10th) we are waiting for clarification from the Judge and are preparing for the appeal. In the meantime, all exploratory activities have come to a halt and the clock is ticking.
Keep tuned.
*The 90 days will start after the judge clarifies certain aspects of the ruling