Imbabura Ecuador
In 2018, the Mayor of the Cotacachi canton and the Judicial Attorney of the Municipality of Cotacachi filed a protective action against the Minister of the Environment and the General Manager of the National Mining Company of Ecuador (ENAMI EP), for the granting of the environmental registration of the Río Magdalena Mining Project (made up of two concessions), which would allow the mining of metallic minerals within the Los Cedros Protected Forest, which is declared as an “area of Protected Forest and Vegetation”.
The plaintiffs argued that the authorized project violates the rights of nature, the right to a healthy environment, and the right to water by permitting mining activity within the Los Cedros Protected Forest. "They also alleged that constitutional norms regarding environmental consultation and those related to consultations with indigenous peoples and communities were not observed."
The protective action was assigned to a judge of the Multicompetent Judicial Unit of Cotacachi, who rejected it, arguing that there had been no violation of constitutional rights. The plaintiffs filed an appeal, which was resolved by the Multicompetent Chamber of the Provincial Court of Justice of Imbabura. The court partially accepted the protective action, declared a violation of the right to participation, annulled the challenged administrative act, and ordered, among other things, that the defendant entities offer public apologies to the communities living in the project's area of influence.
Against the ruling of the Multicompetent Chamber, the defendant authorities filed an extraordinary protection action which was resolved in 2021 by the Constitutional Court of Ecuador in the sense of confirming the decision adopted by the Chamber, accepting the protection action and developing binding jurisprudence on the subject.
Thus, the Constitutional Court resolved, among other issues, the following:
Declare the violation of the rights of nature corresponding to the Los Cedros Protected Forest.
Declare the violation of the right to water and a healthy environment of the communities surrounding the Los Cedros Protected Forest.
Declare the violation of the right to be consulted on decisions or authorizations that may affect the environment.
In its ruling, the Constitutional Court of Ecuador referred to the environmental services provided by the cloud forest, such as its ability to maintain a reliable flow of water downstream, even during dry periods, "which helps to mitigate the impacts of an increasingly pressing global warming."
He also indicated that species in this ecosystem are being threatened, such as the group of toads, which is suffering a significant decline due to the influence of global warming on their populations.
The Court noted that Article 414 of the Constitution obligates the State to take "measures for the conservation of forests and vegetation, and to protect the population at risk." This constitutional provision seeks to protect nature and the population from the various ways in which the environment is currently threatened globally, such as deforestation and climate change. Therefore, activities like mining can only be carried out by rigorously observing protective measures that adhere to constitutional principles.
Finally, the Court indicated that the Constitution recognizes the right to a healthy environment and that this implies having an environment free from pollution, which is in line with the international instruments developed to mitigate the effects of pollution, such as the United Nations Convention on Climate Change and the Kyoto Protocol, of which Ecuador is a party.
- Mayor of the Cotacachi canton
- Legal representative of the Municipality of Cotacachi
- Minister of the Environment
- National Mining Company of Ecuador (ENAMI EP)
The court ruling states that Los Cedros is located in the province of Imbabura, canton of Cotacachi, parish of García Moreno, in the Valle de los Manduriacos sector, along the Chotal-Brillasol road. Its western boundary partially borders the Cotacachi Cayapas National Park and partially borders the El Madrigal Cooperative. To the south and west, it borders several communities located in the Valle de los Manduriacos.
Likewise, the ruling points out that on October 19, 1994, the Ecuadorian Forestry and Natural Areas and Wildlife Institute (INEFAN), through Ministerial Agreement No. 574, declared 6,400 hectares of the "Los Cedros" property as a Protective Forest and Vegetation Area, and therefore these lands must have their vegetation cover permanently preserved for protection purposes.
Rules:
- Political Constitution of the Republic of Ecuador
- Regulations of the Organic Environmental Code
- Ministerial Agreement No. 57 of INEFAN published in Official Registry No. 620 of January 26, 1995
- Escazú Agreement
Beginning:
- Caution
- Stake