- Ecuador’s national mining company, ENAMI EP, has been given exploration rights to 68% of Los Cedros Protected Forest.
- The process was riddled with irregularities, similar to what has happened with other extractive projects, opponents of the mining exploration say.
- The autonomous government of the canton of Cotacachi, where the forest is located, filed a lawsuit to protect the forest.
- Although the Cotacachi government won in provincial court last year, the mining company has lodged an appeal with the Constitutional Court, which remains pending.
For nine months, the communities near Ecuador’s Los Cedros Protected Forest have been unable to fully celebrate a win in a provincial court to protect the forest. The decentralized autonomous government of Cotacachi, a canton in Imbabura province, had filed the lawsuit in 2018 against Ecuador’s national mining company, ENAMI EP, and the Ministry of the Environment to halt mining exploration in Los Cedros. On June 19, 2019, the court ruled in their favor. It appears the celebration will have to wait.
The company continued exploring within the forest, which is home to at least 216 species of birds, 180 species of orchids and 600 species of moths. In addition, ENAMI appealed the decision to the Constitutional Court, the highest court in Ecuador and the one that is responsible for the interpretation and administration of the constitution.
On Feb. 7, 2020, the Constitutional Court accepted the appeal. The communities of Los Cedros fear that ultimately the court’s decision will reverse what they thought they had achieved: keeping Los Cedros Protected Forest free from mining.
While the court decision remains pending, biologist Elisa Levy said ENAMI continues to operate in the area illegally and without a valid environmental permit.
A history of hearings and appeals
Everything began on March 3, 2017, when the Ecuadoran government awarded two mining concessions to ENAMI for exploration of the sites for medium- and large-scale mining of metals and non-metals. The Río Magdalena project, as it’s known, is located in Los Cedros Protected Forest in the Llurimagua area of Cotacachi. Nearly 36 square kilometers (14 square miles) were awarded in the concession, amounting to 68% of the forest.
ENAMI and its strategic partner, the Canadian company Cornerstone S.A., began operations four months later, in July 2017. Eighteen months after that, on Nov. 5, 2018, the Cotacachi autonomous government filed an action for protection before the Cotacachi Canton Court. Such lawsuits requesting protection can be filed where there is a perceived violation of constitutional rights, which in this case involved the rights of nature, according to the Cotacachi government. In the lawsuit, they argued that legal certainty had been violated because a protective forest is a legal conservation concept.
“According to the Unified Text of Secondary Legislation on the Environment … in effect when we filed the lawsuit, there are certain activities that cannot be carried out in a protective forest, such as mining,” said environmental lawyer Fred Larreátegui. He added that the current regulations of the Organic Code of the Environment also prohibit mining in protective forests.
The lawsuit states that, although Los Cedros is not part of the National System of Protected Areas, in 1994 the Ecuadoran Institute for Forestry, Natural Areas and Wildlife declared it an area of protected forest and vegetation. The lawsuit demanded revocation of the company’s environmental registration, a permit that allows mining exploration to take place.
The legal case claimed that, in addition to the violation of the rights of nature, the right to prior consultation — a stipulation of Article 398 of the Constitution — was also violated.
The document reads, “In this case, as we sustain, the residents and inhabitants of the communes of the parish of García Moreno, which are located in the direct and indirect influence areas of the Río Magdalena 1 and Río Magdalena 2 mining concessions, must be given prior consultation in order to award the environmental registration and determine the viability or non-viability of the mining project.” It adds that ENAMI “did not carry out prior consultation of the population in the impacted area, nor of the existing communes.”
Four days after the lawsuit was filed in 2018, a hearing was held in the Cotacachi Canton Court. There, Judge Óscar Coba Vayas denied the action, arguing that prior consultation could not take place, since there are no communes or communities inside the protective forest. In addition, the judge said, according to the decision available in the Judiciary Council, “ENAMI EP cannot be blamed if evidence of environmental damages has not been brought before this judge.”
“The judge’s attitude is outrageous,” said Elisa Levy, a biologist and research coordinator from the Los Cedros scientific station. “He said things like, ‘You talk about the rights of nature that are in the Constitution, but who are we judges going to ask? The trees? The birds?’”
Levy said these comments don’t acknowledge that nature has rights, which it does, according to Article 71 of the Constitution of Ecuador, and that “all persons, communities, peoples, or nationalities may call upon public authorities to enforce the rights of nature.”
Article 184 of the Law on Mining holds that the competent authority, in this case the Ministry of the Environment, is to inform the population of potential social and environmental impacts expected and advise on what actions should be taken. But in the case of Los Cedros, this consultation didn’t happen. Darwin Cumba lives in Magdalena Alto, one of the communities that would be impacted by the mine. He said nobody asked the community whether they wanted mining. “They came and continued doing their work,” Cumba said. “Later, they held some meetings, but they never asked if the community wanted it or not, and they kept working.”
Lack of consultation with the communities affected by the mining projects is just one of the various problems the communities face. “There aren’t regulations that provide for [the matter of prior consultation] in a specific way,” only that it should be carried out “before the concession or before the environmental registration is issued,” Larreátegui said.
When the canton judge denied the case, the Cotacachi government appealed. The case went up to the provincial court of Imbabura. At one of the hearings, the judges agreed to visit the area and the communities of Brilla Sol, Magdalena Alto and El Paraíso that would be most affected, all of which are mestizo and Afro-Ecuadoran communities.
After two hearings and a field visit, on June 19, 2019, the provincial court accepted part of the petition: It recognized that the communities had not been consulted, but it did not address the issue that the awarded concessions are in protective forests.
The ruling also required that the environmental registration be revoked, which should have brought the initial exploration to a halt.
“They had to stop operations from the moment they were notified of the decision,” Larreátegui said.
However, “To this day, they continue exploration without an environmental registration,” Levy said.
ENAMI did not respond to Mongabay Latam’s request for comment. But the company’s official Twitter account put out a tweet on March 5, 2020, with photographs of backhoes. The tweet reads, in Spanish, “ENAMI EP machinery that was provided as a loan for use to the parish decentralized autonomous government of García Moreno, begins to carry out road repairs benefitting the communities of Magdalena Alto and Brilla Sol as part of #ProyectoMagdalena [Magdalena Project], province of Imbabura. #MiningWithResponsibility” — possible evidence that the mining project is continuing.
In a press release on the ruling, ENAMI said, “[T]he provincial court recognizes that there did not exist, nor do there exist, environmental damages affecting nature in the concessions where the project is to be developed.”
The partial decision by the provincial court left several issues unresolved, including the recognition of the importance of the ecosystem of the protective forest. In August 2019, the Cotacachi government filed a second lawsuit, known as an extraordinary action for protection, with the Constitutional Court. But the request was denied. The Constitutional Court contended that the assessment criteria of the appeals judge was not part of the extraordinary action for protection.
In turn, ENAMI also filed its own extraordinary action for protection with the Constitutional Court, and this one was accepted. According to the Constitutional Court, ENAMI claims that the provincial court confused the environmental consultation with the popular referendum. The confusion arose when the ruling affirmed that “a process should exist … for citizen participation and social control in which the minimum democratic guarantees are realized,” such as preparation for the consultation, a set election day, and dissemination of the results of the consultation. These are characteristics of a referendum, the company contends, and not of a prior consultation.
According to Larreátegui, it would have been very interesting for the Constitutional Court “to rule on the forest’s legal certainty when awarding a mining permit where mining could not be done.”
Consequences for the environment
Like many other mining projects in conservation areas, the consequences of continued exploration could be devastating. Protected forests are often located at the headwaters of watersheds or in areas that, because of their climate, are not suitable for agriculture or ranching. Their purpose is to conserve the water, soil, and wild plants and animals.
Los Cedros Protected Forest shares a border with the Cotacachi-Cayapas Ecological Reserve, and the area is home to unique species, many of them in danger of extinction. According to research published in the journal Tropical Conservation Science, 178 threatened or near-threatened species live in the area. These include three monkey species: the critically endangered brown-headed spider monkey (Ateles fusciceps fusciceps), the endangered mantled howler monkey (Alouatta palliata), and the vulnerable white-headed capuchin (Cebus capucinus) and. There are also jaguars (Panthera onca), categorized as near threatened on the IUCN Red List.
“If mining started in Los Cedros, species would go extinct, without a doubt,” said Roo Vandegrift, a biologist and researcher at the University of Oregon. He also said there would be water pollution due to tailing ponds, where waste material is deposited after extraction, made worse in a region that experiences more than 400 centimeters (157 inches) of rainfall annually. “[W]hich means it will be impossible to avoid leaks in the ponds,” Vandegrift said.
In recent years, Ecuador has seen the development of mining projects in areas of high biodiversity. For example, the Mirador project in the Cordillera del Cóndor, which is considered a diverse ecosystem, was the first large-scale surface mine in Ecuador.
Between 2016 and 2017, more than 29,000 km2 (11,200 mi2) were awarded as concessions for mining exploration. These activities will take place in protected forests, indigenous territories and headwater ecosystems. Several protected forests have more than 50% of their total area under mining concessions. Some have up to 90%, like the Molleturo-Mullopungo Protected Forest, according to a study commissioned by Australia’s Rainforest Information Centre.
Almost 70% of Los Cedros’s land is under concession. Although the provincial court initially ruled in its favor, the Constitutional Court has not yet issued a decision with regard to ENAMI’s lawsuit to continue mining activities. Larreátegui, the lawyer, said the court’s response may take years, since it is currently ruling on extraordinary actions for protection from 2013 and 2014.
In the meantime, “Everyone hopes that mining is not allowed in Los Cedros,” said Magdalena Alto resident Darwin Cumba.
Banner image of women protesting against the Río Magdalena mining project, courtesy of DAN Fotografía.
This article was first published by Mongabay Latam on April 8, 2020.
Roy, B. A., Zorrilla, M., Endara, L., Thomas, D. C., Vandegrift, R., Rubenstein, J. M., Policha, T., Ríos-Touma, B., & Read, M. (2018). New mining concessions could severely decrease biodiversity and ecosystem services in Ecuador. Tropical Conservation Science, 11, 194008291878042. doi:10.1177/1940082918780427
Vandegrift, R., Thomas, D. C., Roy, B. A., & Levy, M. (2017). The extent of recent mining concessions in Ecuador. Retrieved from Rainforest Information Centre: https://ecuadorendangered. com/research/reports/RIC-Mapping-Report-v1, 1-20180117.