August 2018. Important article by Ecuadorian economist, Alberto Acosta , a former Minister of Energy and Mines, former president of the Constituent Assembly and former candidate for the Presidency of the Republic of Ecuador.
"Río Blanco, Justice for The Rights of Nature" looks at the far-reaching implications of the August 3 court decision to suspend mining in Rio Blanco.
Río Blanco, Justice for The Rights of Nature
Alberto Acosta (1)
August 7, 2018
"Anything that is contrary to Nature is also contrary to reason, and anything that is contrary to reason is absurd. " Baruch Spinoza (1632-1677)
The decision by the Azuay Provincial Court of Justice to suspend mining in Rio Blanco, taken on Friday August 3 of this year, is an historic milestone.
After a long and intense struggle by the communities in Molleturo in the province of Azuay, the campaign to suspend mining in Ecuador's’ Río Blanco is beginning to bear fruit. Little by little the resistance of the comuneros has raised awareness in the area, and especially in its capital, which has in turn provoked a powerful reaction within the framework of The Assembly of Citizens for the defence of water and the Paramos of Cuenca.
Only a month prior, Judge Paul Serrano decided to suspend the activities of the Chinese mining company Ecuagoldmining in response to requests of protection of local communities. Since then, Ecuador’s Minister of Mining and also by the Minister of the Environment have been fighting to lift the suspension. This has come as no surprise considering the government’s past campaigns to promote "responsible" extractivism, be it mining or oil.
The central point however, as in many other mining ventures, is that this particular gold mining project, one of the 5 projects considered to be “strategic”, was imposed upon communities without consent and without regards to the effects on the environment.
Let's not forget that the extraction of resources demands violence. Violence is not a consequence of mining, but rather a necessary element for it’s existence. These are usually activities which do not take into account their damaging impacts, be they social, environmental, political, cultural and even economic. This is apparent it in other places across the country as well: Cordillera del Condor in Morona Santiago and Zamora Chinchipe; INTAG in Imbabura.
The Provincial Court’s ratifying decision recognizes the importance of the area, highlighting the declaration of Macizo del Cajas as part of the global network of UNESCO Biosphere reserves in 2013.
This inclusion - as the ruling recognizes - is due to the fact that the area has the physical, biological and socioeconomic conditions required to be listed under UNESCO and, therefore needs to be protected. This Biosphere Reserve covers the Pacific and Atlantic slopes of the Cordillera de los Andes.
With a total area of almost one million hectares, it includes the territory of the provinces of Azuay, Cañar, El Oro and Guayas.
That is to say, it has desert, wetlands, mangroves and marine ecosystems. Due to its geographical and climatic conditions there is exuberant biological diversity in this territory: in the core zone there is the Cajas National Park which contains 71 endemic species, of which 16 are unique to the area. In addition, there is a sustainable economy, which includes crops and other manufacturing activities. It is a region with a population of approximately one million people.
This ruling also sets an historic legal precedent by defending several constitutional rights including ‘sumak kawsay’ (Good Living), Human Rights, territorial and community rights and the Rights of Nature. It recognized that the State had failed to guarantee the right to free, prior and informed consultation of indigenous communities and, even less, to seek the express consent of the people in a region that has resisted mining for more than 20 years; something which has continued to occur with the majority of mining projects across the country.
The ruling even referred to the result of the referendum of February 4, 2018, which had asked in the fifth question; “Would you agree to an amendment of the Constitution of the Republic of Ecuador which would ban mining, without exception, at any stage, in protected areas, intangible zones and urban centres?” This was answered with a resounding YES both nationally and in the Molleturo parish (where about 70% of the population were in agreement). A result that, according to the ruling, supports the prohibition, without exception, of mining heavy metals in protected areas. And, as the same sentence indicates, the Cajas National Park is a protected area.
The ruling advanced even further in its reasoning, and went on to emphasize the need to overcome human domination over the environment in order to to give way to a biocentric view, which is the basis of the “Rights of Nature”. Since its constitutional approval, the crystallization of these rights has been complex, but progress is being made, with the understanding that these rights constitute a gateway to another possible world. Thus, this document establishes that:
"The human rights recognized in different international documents and even within the domestic laws of each country, had at one time a completely anthropocentric vision of environmental law. But today, we speak of another type of positioning of environmental law which is called biocentric or ecocentric, which considers that humans do not constitute the only beings in need of protection and of importance. All living beings and even the very land, are nature itself, are entities that deserve respect and to be protected by the legal system of a country. In this sense it can be said that the recognition of the human right to a healthy environment does not have as a single objective to grant human beings their necessary conditions for their development of life; but also through this recognition what is sought is the conservation and protection of the environment. Nature should be seen as an alliance, within which different ecosystems coexist, living beings, natural resources, and humankind; who is also part of that system and therefore, being part of a
whole, must protect the place where he lives; This biocentric or ecocentric position is recognized in our Constitution by granting rights to nature and considering humans to be part of it.”
The importance of these rights goes beyond our borders. Eduardo Gudynasalta has recently spoken out to emphasize the importance of the “Rights of Nature” as approved constitutionally in Montecristi, pointing out that:
"The idea of considering Nature as an entity with rights has ceased to be a rarity. It has already been ten years since the first major step in this direction, which occurred with the constitutional recognition granted in Ecuador. A new understanding of Nature not only as an entity, but as an intercultural being, associating the idea of Nature with that of Pachamama.
This formulation has generated both criticism and skepticism, and its application does have weaknesses, but it has served as an example. And it is so that in the last decade other trials have begun, in Latin America (Bolivia, Colombia and Argentina), and in other continents (India and New Zealand, for example) (2)
The ruling on Río Blanco, without doubt, increases its historical significance, by defending the right to ‘sumak kawsay’ Good Living, affirming that;
“We can not ignore that Ecuador, through the validation of the new Constitution, has decided to constitute a new form of citizen coexistence in diversity and in harmony, in the search for good living (sumak kawsay). This is defined as: “Sumak”- meaning the ideal, the beautiful, the good, the manifestation; and “Kawsay”- life, in reference to a dignified life, in harmony and balance with the universe and the human being. In synthesis, “sumak kawsay” means “the fullness of life.”
Additionally it should be noted that this mining project also was no compliant with the Constituent Mandate number 6, known as the mining mandate, issued in Montecristi on April 18, 2008. In that constitutional provision -among other points disregarded by the Correa and Moreno governments- all mining that affects water sources and springs is prohibited. That is to say, there should not be mining activities in Paramos, rivers, lakes and lagoons, wetlands, mangroves, forests and primary forests. This is a vital point because, as well as water and biodiversity, the life of the communities and the future of Ecuador is at stake.
This really is an important breakthrough. It is a potent recognition of the spirit of Montecristi, where ten years ago a Constitution was drafted and approved by the majority of the Ecuadorian people at the polls on September 28, 2008, and which has been questioned since its inception by conservatives of all types of ideologies, who for some years have been clamouring for a new constituent, a call to which the the Correistas have also added their voices.
This decision, combined with the slow process of decriminalization of defenders of Human Rights and Pachamama, -as has happened with those persecuted in Saraguro- is in line with other similarly important successes of our present time.
Another judicial resolution of importance to the planet, and equally historic,
comes from the Constitutional Court of Ecuador, issued on June 27 and handed out on July 10 of this year. The Court rejected the protective action filed by the transnational Chevron-Texaco, who lost their case relating to the social and environmental damages they had caused in the Ecuadorian Amazon during the time they were operating there between 1964 and 1992. The transnational oil company is obliged to pay compensation of 9.5 billion dollars. With this resolution the legal battle in the Ecuadorian courts has been effectively won. For 25 years the indigenous communities and settlers affected by the company have been demanding justice, in a process full of shortcuts taken by the company, and in collusion with Ecuadorian governments, including the government of Correa. (3)
It is a struggle that continues internationally and that would continue, as both the company's executives as well as Pablo Fajardo, one of the lawyers for the people affected would affirm, “up to the borders of hell”.
This process is building, step by step, what will constitute "a triumph of humanity”, as I noted in 2011:
"This ruling, in short, reaches further than the Amazon. It goes beyond what Texaco will or will not eventually have to pay. Their actions, just as those of BP and many other extractive companies in different parts of the world would also do decades in the future, have affected all of humanity. This ruling, therefore, constitutes an opportunity to control and curb pollution caused by petroleum and mining activities, which are currently sustained by the combination of political power with the power of transnational companies over the discourse which encourages the exploitation of petroleum (and now in Ecuador also of large-scale mining) as a basis for achieving economic development; A discourse which sustains policies which obscure the reality, intimidate those who oppose this exploitation, humiliates and forgets the victims ...
"With this ruling, there emerges with force the need for a global ecological justice which would enforce Human Rights and the Rights of Nature in the world . The validity of these Rights requires the existence of adequate international legal frameworks, taking into account that environmental problems are issues which concern the whole of Humanity as a group. Therefore, this ruling against Texaco represents a triumph for Humanity. "
Another important case was also heard in the Amazon. The Judge of the Multicompetent Unit of the Gonzalo Pizarro region, in the Sucumbíos province, Jorge Sacancela, ruled in favour of the Amazonian community Cofán Sinangoe and the Peoples Defence of Sucumbíos, who filed a Protection Action to stop the mining of gold which had been granted in their territories. The judge declared that the peoples right to previous consultation, and free access to information had been infringed upon, and ordered the immediate suspension of all the mining concessions, including those still being processed. These concessions covered some 31,000 hectares adjacent to the Cayambe Coca National Park, and the territory of Cofán community. The judge argued that if mining, prospecting, exploration or exploitation activities are initiated, the rights to water, territory and life of the Ai Cofán de Sinangoe community and of the indigenous and farming communities that inhabit the banks of the Aguarico river, would be seriously compromised.
The elimination of the Constitutional amendments imposed illegally by the Correa Government in 2015 can also be added to this list of successes. This has meant that citizens and autonomous, decentralized governing bodies have recovered their constitutional right to run public referendums on important issues. This was brought about by a controversial ruling by the Constitutional Court. An example is the referendum held by the Yasunidos collective, which Rafael Correa, a big mining advocate, attempted to annul with the aforementioned Constitutional amendments of 2015.
Despite these achievements, the heavy threats of extractive industries are still present. Their defenders will fight back strongly. So much so that they are already attempting to use a series of misconstrued laws via the Ministry of the Environment to try and weaken the appeal ruling on the Río Blanco mining project. They argue that the ruling must have confused “protected area” with “protective forest”. But for now we can say that it seems that breezes of autonomy are blowing through the Ecuadorian justice system ... something unthinkable in the era of the leader of the XXI century: Rafael Correa, who would have simply ordered the sanction and/or dismissal of the judges who passed these rulings.
We live in an historic time. We must redouble our efforts, reap the benefit of the enormous efforts deployed by the various communities that have, for many years, fought for Life, and resisted the pressures of transnational mining interests, which have been promoted above all by the governments of Rafael Correa and Lenin Moreno.
Undoubtedly in is not a fair fight, but one in which hope never wanes. A struggle where only sustained political action will detain the “mining feast” of the 21st century, and permit the construction of a democratic Ecuador.
- Ecuadorian Economi University Professor. Ex-Minister of Energy and Mining. Ex- president of the Constituent Assembly. Ex- Presidential candidate of the Republic of Ecuador. NOTE: This article includes the rulings of these respective cases; Rio Blanco, Chevron- Texaco and Cofanes.
- Under these considerations, the Rights of Nature can and are acting as an additional element for the defense of the territory, as was the case in the public action to prevent the construction of the Hydroelectric dam in Bello Monte, Brazil. In the lawsuit it was pointed out that, with an express reference to the Constitution of Ecuador, “There could not be a more didactic, clear and opportune a moment to apply the “Rights of Nature” in order to halt the destruction of the territory of Xingu".
- Keeping in mind that in order to get his sovereign bonds into the international financial market in August 2016, Correa pressured those affected by the Chevron-Texaco case to lift the embargo on the resources that they were owe Chevron Texaco had won against Ecuador in an arbitration (one of these perverse systems with which transnational companies protect their own interests) Therefore, instead of the those Amazonians affected receiving their money, the State ended out paying the company some 112 million, including interest. This money, by judicial disposition (in a normal,sovereign country) should have gone to those affected… but Correa - who decided to fight Chevron Texaco using a million dollar propaganda campaign - instead condemned those affected so that the money would go to the company, and he would be able to maintain a facade of economic recovery using his sovereign bonds. His illogical argument was that he was doing it so that Chevron-Texaco would not “smash” the country.