Course:CONS200/2021/The Rights to Mother Earth in the Ecuadorian Constitution: Is it the right approach to conserving nature?

In September of 2008 a referendum was passed, “based on an indigenous belief that all life on earth is egalitarian, making Ecuador the first country to recognize the “Rights of Nature” in its Constitution. The Rights of Nature chapter in the constitution changed the legal status of Nature or ecosystems from property to acknowledging that nature and all its life forms have the right to exist, persist, maintain and regenerate its vital cycles. The people of Ecuador have the legal authority to enforce these rights and behalf of ecosystems, wherein the ecosystem itself can be named as the defendant.

Two major factors are credited with influencing the “Rights of Nature” referendum, the Alianza País movement and the Confederation of Indigenous Nationalities of Ecuador (CONAIE). The Alianza País movement was officially founded by the Rafael Correa at the start of the 2006 Presidential Campaign. The movement called for political sovereignty, regional integration, and economic relief for Ecuador’s poor. This government plan was meant to radically alter the status quo at the time, “breaking the dominant paradigm characterized by an anthropocentric and utilitarian relation with nature”, by instilling a new type of politics that would be based on the principles of ‘buen vivir’(the worldview of the Quechua peoples of the Andes) or ‘good living’.

Many argue that the indigenous influence was decisive, as the “Rights of Nature” have their intellectual origin in indigenous traditions. The CONAIE and their political arm, Pachakutik, a left wing indigenist party of Ecuador were successful in introducing the notion of “buen vivir’ into the mainstream political discussions leading up to the 2008 referendum.

Articles of the Rights of Nature

Below are the constitutional articles dealing directly with the nature of nature within the Ecuadorian Constitution:

Art. 71. Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can demand public authorities enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate. The State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem.

Art. 72. Nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems. In those cases of severe or permanent environmental impact, including those caused by the exploitation of non-renewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration and shall adopt adequate measures to eliminate or mitigate harmful environmental consequences.

Art. 73. The State shall apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles. The introduction of organisms and organic and inorganic material that might definitively alter the nation’s genetic assets is forbidden.

Art. 74. Persons, communities, peoples, and nationalities shall have the right to benefit from the environment and the natural wealth enabling them to enjoy the good living. Environmental services shall not be subject to appropriation; their production, delivery, use and development shall be regulated by the State.

Use of Legal Language to Justify Mining Operations

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Although the constitutional articles are made to give rights to nature, the articles have not been able to guaranntee that natural areas within Ecuador are safe from exploitation by industry. Enforcing the rights to Mother Nature has been difficult, as the government and resource extracting corporations have been finding work-arounds that allow them to still practice exploitative operations .The government has been allowing large mining corporations to extract resources from Ecuador, and they have been able to use a legal loophole by "re-interpreting constitutional guarantee" to mean that extracting resources actually complies withing mother nature's rights. Not only has the government said that the mining fits within nature's rights, but they have been advertising that the mining taking place is good for society, and have adapted the motto "Mining for the Good Living." Although the government has put effort into convincing the public that this is in their best interest, rural communities that live in the areas surrounding mining operations have expressed that no matter what they say, the mining operations were not complacent with Mother Nature's rights. The government is aware that the general public would not take well to this, and as such they have enforced mining operations with the military. The government has done what they can to make any mining activities seem like a good thing in hopes that people would either not notice or care, and they have put in effort to silence those who have spoken out against the mining operations.

Issues with Transparency

Another barrier to the success of the rights to Mother Nature is a lack of government transparency in Ecuador. A study was conducted that assessed the transparency of mining projects happening in Ecuador that were done by Canadian companies, and it was found that little to no information on the mining operations were being shared with the public. One of the two Canadian mining projects, La Plata, was found to not have any social media or internet presence, which was considered to be one of the most major ways that the public could access information about projects happening on the land. The information that is available online from the Canadian mining companies is minimal and vague. They mention that their projects are ethical and good for the land, and even mention involving the local communities, however they do not mention how they are doing that and they do not provide evidence to show it. The same study found that almost every company involved with the mining process did not list their agenda anywhere publicly. All but two companies published the names of the people in charge of the projects, so for the most part it was unknown who was heading up the operations. None of the companies revealed the money that individuals were making off the projects, and salaries were not mentioned by them. With all the processes it involves, mining is an invasive process. Many resources are used from the mining itself, exploration to find cites for the mines, and even to maintain the mining projects themselves. Like anything else with rights, it would be assumed that if resources are taken, compensation for their extraction would be fair in order to repair the damage done. However, none of the companies involved with the mining projects even mentioned "compensation to civil society for the social, cultural, and environmental damage caused by the activities." Due to the lack of transparency from the mining companies and the government about the actual implications of their extractive operations, it becomes extremely difficult for anyone to enforce the rights that were supposedly given to nature.

Social and environmental impacts

One criticism of the "Rights of Nature" referendum is that while the constitution gives stronger regulation for the environment, "it also gives the state the power to relax these regulations if found to be in the national interest." The decision to give the state the right to regulate the resources within Ecuador was a point of contention during the first plenary discussion, leading up to the drafting of the constitution. The indigenous factions and some members of the government group were advocating a right to consent, while the official government position was to establish a right to consultation. Ironically, Despite the indigenous philosophies of 'buen vivr' having been attributed by many as bedrock on which the "Rights of Nature" found its way into the political mainstream in Ecuador, the indigenous communities were unable to guarantee their right to consent to resource exploitations in their territories. "On the one hand, they are presented as a moral principle of inclusion, akin to liberating the enslaved (literally so for their proponents). On the other hand, they appear to be a subtle weapon against a state that is unwilling to concede some principles that the indigenous in particular hold dear." During the plenary discussion, opponents of rights for nature argued that, allowing indigenous communities approve or disapprove of resource extraction might block any and all development. On the other side, indigenous communities advocated for consent rather than consultation, hoping to encourage the state to be more inclusive, democratic and sustainable in its future developments. However, the resulting article 408 was drafted into the new constitution, stating "that all natural resources are the property of the state. The state can decide to exploit any natural resources that it recognizes to be of national importance, solely as long as it consults the affected communities, without having any obligation to an agreement.

"In January 2009, for example, the new Mining Law (Ley de Minería) was adopted, and its creation was justified through the exception clause, which merely requires a ‘substantiated request of the President of the Republic’." The Mining law gives the government the power to extract non-renewable natural resources in protected areas, and allows intensive industrial activities focused on large-scale and open-pit mining operations. The new law undermines both the principles of the 2008 Ecuadorian Constitution and the indigenous intellectual concept of 'buen vivir', additionally the law infringes on the rights of nature in indigenous territories with sensitive biodiversity and fragile water resources. Moreover, the indigenous communities claim they were never given the supposed compromise of consultation prior to the drafting of the new mining law, sparking protest, which resulted in illegal detentions and even criminalization of the right to protest. The situation escalated further in 2012 when the government signed the first large-scale open-pit mining contract, which was set to be located in an indigenous territory. in 2013, indigenous and non-governmental organization filled a constitutional lawsuit, based on the infringement of the rights of nature, however the court ruled against the indigenous organizations stating that "the development of the project represented the public interest in that it was necessary to achieve the state’s sustainable economic development and to enable the state to achieve its social development aims." An appeal to the court decision was made, but the Appellate Court confirmed the decision at first instance. Instances such as these show that the biocentric articles and claims made in the Ecuadorian constitution are do not carry the legal authority necessary to resist destructive commodity extraction, suggesting a general disregard for the rule of constitutional law in Ecuador.

Conclusion

When the rights to Mother Nature were implemented into the Ecuadorian Constitution, the articles had a promising outlook. It was heavily supported by the general public and was influenced by the beliefs of indigenous communities who know how to properly care for the land. It brought a lot of hope to people that there would be a break from the seemingly endless pattern of environmental exploitation during a time at which the environment is in a critical state of health, especially when resource extracting operations have been heavily increasing in Latin America within the past 20 years. The actual implications of the introduction of rights to nature have been shown to not guarantee its safety from resource heavy extraction operations. The Ecuadorian government has found ways to work around what has been written in the constitution. They have attempted to change the public attitude towards mining operations positive by claiming that it is good for society and neccessary for nature's health, and have shut down the voices of those who oppose it. The government has also not been holding mining corporations responsible for their lack of transparency on almost every aspect of the mining projects. The government itself has also shown a lack of transparency with communicating to people what is actually going on with resource extracting operations.

Initially, indigenous communities had a say in whether or not operations were a smart idea and whether they should be carried through or not. However, the government edited the rights to nature in order to give itself more power, and they have claimed that it is now their decision to decide what operations take place, essentially giving them free reign to extract whatever they want, however they want. In addition, due to laws that were enacted by the government before rights to nature were added to the Ecuadorian constitution, the government is still able to mine almost completely unrestrained. As people have tried to speak out and protest against the government's actions, they have been quickly shut down, sometimes by military intervention, and the government dealt with it by simply outlawing protesting.

The rights to Mother Nature listed in the constitution have not successfully garunteed the safety to nature from exploitative practices. There is a severe lack of accountability and enforcement due to the fact that the government is working with national and international mining companies to keep resource extraction going as it always has. The people have tried to speak out against the fallacies being committed against supposedly protected lands, but they have been unsuccessful due to the power of the government. Perhaps international intervention, or local action in large numbers may change things in the future, but for now, the rights to nature have little to no effect on what is actually done to nature.