By Rebekah Hayden
The outcome of a case to protect the Los Cedros Reserve from mining will set a precedent for all future Rights of Nature cases in Ecuador.
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 , including , five of which are regarded as critically endangered by the Ecuadorian government.
“It is impossible to understate how important the habitat that Los Cedros protects is, and the science shows that very clearly, said Professor Bitty A. Roy from the University of Oregon’s Institute for Ecology and Evolution.
Scientific
"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.”
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 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.
The hearing focused on the application of the Rights of Nature for Bosques Protectores (legally Protected Forests), which have been guaranteed in Articles 71–74 of Ecuador’s Constitution. "national and international academic institutions that have carried out scientific research” on Los Cedros to present their findings.
Natalia Greene is the vice president of CEDENMA, a member of the executive committee for the Global Alliance for the Rights of Nature and a member of Los Cedros’s legal team.
Bat
She said: “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.”
Elisa Levy, research coordinator of the Los Cedros scientific station, added: “Evidence was presented to the court about the high degree of biodiversity within Bosques Protectores, and the damaging impact of even rudimentary exploratory mining operations on rivers, biodiversity, and endemic species,” says
For the entire day on Monday, Ecuador’s highest court heard a series of Zoom testimonies. Scientists included Ecuador’s best-known herpetologist, Juan Manuel Guayasamín, fresh-water ecologist Blanca Ríos-Tourma, and many international scientists, including Mika Peck, Bitty Roy, and Roo Vandegrift.
The court also heard from Merlin Tuttle, the world’s foremost bat biologist. Other witnesses speaking on behalf of Los Cedros included ex-Minister of Mining and economist Alberto Acosta and Dr. Hugo Echeverría, a lawyer specializing in Rights of Nature and the Constitution.
Mining
Dan Thomas, a biologist from Whitman College who has been working with economists from Notre Dame and Duke, testified that the existing carbon stocks at Los Cedros are estimated to be worth at least $210 million.
CEDENMA spokesperson, Natalia Greene, told the court on Monday: "The Constitutional Court of Ecuador has an opportunity while the world is watching to employ the Rights of Nature as guaranteed in the Constitution, and make a decision that protects a highly threatened ecosystem from mining.”
Esperanza Martínez of Acción Protección, Jose Cueva, the spokesperson for Los Cedros, and representatives from Birdlife International, Amazon Frontlines, and the Center for Biological Diversity made strong arguments about the value of Bosques Protectores and the impossibility of conducting any kind of exploration within them without risking the extinction of many species.
Mining companies tried to justify mining in Bosques Protectores by saying that the Rights of Nature did not apply to these Forests, as they were not specifically mentioned in the Constitution. However, these statements were countered by legal experts, who quoted Article 71 of the Constitution (1), saying the Rights of Nature were universal rights, granted by the Constitution to all of Ecuador, and not just limited to National Parks (PANE).
Chamber of Mining officials were concerned that any restriction to mining operations might affect Ecuador’s “judicial security”, potentially risking the State being sued by mining companies, as in 2014 when a US court ruled the government had to pay Chevron millions in compensation for violating a bilateral investment treaty.
Damages
Those speaking in favour of mining in Protected Forests included Fernando L. Benalcázar, the Vice-Minister of Mining; Pablo Mendez, the legal representative of Canadian mining company Cornerstone Capital Resources; and Oscar Vela for Australian SolGold subsidiaries Vallerico Resources and Green Rock Resources.
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 percent increase in new concessions for mining exploration, totalling over 2.9 million hectares (6.17 million acres) of land. Communities believe the Ecuadorian government has acted illegally for selling these concessions without their knowledge or consent, and acting without respect for the national networks of Protected Forests and Indigenous Territories.
“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.
Nature
Canadian mining company Cornerstone Capital Resources was given a permit to explore for gold at 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 would not only protect Los Cedros’s forests from mining, but could provide a precedent to safeguard all 186 Protected Forests in Ecuador, totalling some 2.4 million hectares (6 million acres).
A positive ruling would also impact the ability of mining companies to operate in Ecuador. 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 Los Cedros case is not the only case currently being heard on the Rights of Nature. 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.
Rights
Jonathon Porritt, one of the UK’s leading environmentalists, said: “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."
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 , including Jane Goodall, EO Wilson, Peter Raven, and Rosemary and Peter Grant.
A sign-on letter of support presented to the court was signed by more than fifty Ecuadorian and international organisations, including Global Wildlife Conservation, CEDENMA, Amazon Watch, and Comité pour les droits humains en Amérique latine (CDHAL).
Despite the court case being streamed over Zoom due to the pandemic, crowds of supporters remained outside the Constitutional Court in Quito for the entire proceedings, playing music and dancing while chanting “Justicia Los Cedros” (Justice for Los Cedros) and “Bosques Sin Minería” (Mining out of forests).
However, other supporters were prevented from attending, with at least one bus detained at Cotacachi by the Ecuadorian National Police. Social and environmental group OMASNE stated it was concerning that police were limiting the rights of citizens to protest, while allowing miners to pass unimpeded.
Sustainable
“Law enforcement blocks the passage and tries to stop the legitimate right to protest, an abuse of free expression and above all evidence that the powers of the State benefit the interests of transnational companies,” OMASNE said in a .
The had 15,000 views as of Monday 19 October evening Quito time, with strong engagement by Ecuadorians predominantly in favour of protecting the Reserve.
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.
“In addition to protecting biodiversity, the reserves also serve surrounding communities by providing sustainable jobs, which have gradually increased over time, and through ecosystem services such as abundant, clean water. Short-term national gains from mining will not compensate for permanent biodiversity losses, and long-term ecosystem service and economic losses at the local and regional levels,” says Bitty Roy.
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.
The Court will consider the testimonies along with other submitted evidence until the 23rd October, after which the Court is expected to make a decision deciding the future of Los Cedros. The Constitutional Court is the final hope for the Los Cedros Reserve to safeguard its future as a biological sanctuary. A positive ruling would not only protect Los Cedros’s forests from mining, but could provide a precedent to safeguard all 186 Protected Forests in Ecuador, totalling some 2.4 million hectares (6 million acres).
This Author
Rebekah Hayden campaigns with the Rainforest Action Group (Melbourne), a grassroots working group committed to securing the earth's ecological future and a sustainable and equitable society in Australia, Ecuador and beyond.
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