Rights of Nature in Ecuador: Constitutional Court selects cases to develop the “content” of the legal rights of nature
When we think of Ecuador, the first thing that may come to mind are the Galapagos Islands — a place out of history, where Charles Darwin thought big thoughts amidst giant tortoises, iguanas, and finches.
For others, Ecuador may conjure images of the Amazon or the Andes, mangroves or rainforest. All of these ecosystems and species are wonderous, and yet they remain under threat.
It may not seem surprising that Ecuador, with these extraordinary ecosystems and biodiversity, would be a world leader in protecting them.
In 2008, Ecuador took the extraordinary step of enshrining the legal rights of nature — or Pachamama — in its national constitution. It was the first country to do so. And in so doing, it established the highest legal protections for nature that exist in Western law.
As a person privileged to have participated in that process, I continue to marvel that the nation took that step. It’s never easy to go first.
Over a decade later, as we work in a range of countries to advance the rights of nature, we are witnessing a significant shift in how people, civil society, governments, and even courts think about nature and humankind’s relationship to her.
We have now seen national laws securing rights of the natural world enacted in Uganda, New Zealand, and Bolivia. In Colombia, courts have recognized legal rights to “protection, preservation, maintenance and restoration” for the Amazon region, the Atrato River, paramos, and other ecosystems. Courts in India and Bangladesh have similarly recognized rights of river and other threatened ecosystems. In the United States and Brazil, dozens of local municipalities have enacted rights of nature laws. Tribal nations have adopted laws and resolutions recognizing rights of rivers, species, and nature. And, rights of nature legislation has been introduced into parliaments in Sweden, Philippines, and Australia.
This is a growing movement, focused on transforming how nature is treated by legal systems — from an object whose use and exploitation is codified and legitimized by human laws — to nature being recognized as a subject of rights, including rights to exist, flourish, regenerate, evolve, and be restored.
This transformation in how we treat nature under the law is ever more important as we witness overlapping environmental crises around the world. This includes the dying off of coral reefs, species extinction rates that are far beyond natural background rates, and of course, climate change.
In the face of this, there is a growing chorus of people, institutions, and governments shouting “Enough is enough, bastante es bastante!” Courts are joining their voices, as did Colombia’s Constitutional Court, which declared that it’s time for humankind to take a new path forward before “it’s too late.”
Rights of Nature Court Cases
Since the ratification of Ecuador’s new constitution in September 2008, there have been numerous cases that have been brought in court to enforce and defend the constitutional rights of nature. Importantly, Article 71 of the constitution provides the people of Ecuador with the legal authority to go to court to enforce the rights of nature. This means that if, for example, a river is being harmed by human activity, an individual can file an action in court to attempt to stop the harm and restore the river. This is exactly what happened with the Vilcabamba River, the first rights of nature case decided in Ecuador, in which the river was being harmed by road construction.
The 2015 Marmeza case involved the revocation of a permit to conduct shrimp farming in a fragile mangrove ecosystem within the Ecological Reserve of Cayapas-Mataje. The Constitutional Court reversed the provincial court’s ruling, citing its failure to consider the impacts on the rights of nature, and sending the case back down to the lower court for reconsideration. In perhaps a foreshadowing of how the Court may rule going forward, in the Marmeza, case the Court wrote: “…all the State’s actions, as well as those of individuals, must be done in observance and adherence with the rights of nature.”
Over the past year, and in particular over the past several months, the Constitutional Court — the highest court in the land — has selected several rights of nature cases for review. The Court has indicated that it seeks to provide “content” and standards for the rights of nature.
In May, the Court selected a case involving mining within a protected forest called Los Cedros. Impacts on the area’s extraordinary biodiversity, including at-risk species such as the spider monkey and the Andean bear, are of great concern. As the Court explained in its selection of the case, “(T)he case is novel because it would allow the Constitutional Court to rule on the content of the rights of nature.”
In March, the Court selected a separate case involving mining. The case involves mining concessions being issued in the Podocarpus-El Cóndor Biosphere Reserve and Cerro Plateado Biological Reserve — protected areas in the southern part of Ecuador.
In choosing to review this case, the Court explained that it would provide an opportunity to consider the rights of nature involving extraction activities near protected areas, as well as “the responsibilities of the entities in charge to monitor and follow up on these activities.”
The Court selected a third case this spring to stop oil exploitation, which focuses on the rights of nature and the rights of indigenous peoples to free, prior, and informed consent. Waorani communities are leading this case. The collective rights of indigenous peoples to protect against extraction and the rights of nature not to be exploited are at stake.
In addition, in 2019, the Constitutional Court selected a rights of nature case involving the Dulcepamba River. This involves a hydroelectric energy project on the river which caused flooding and death of residents of the community of San Pablo de Amalí community. In choosing this case, the Court explained that it would consider the impacts on the rights of nature from the exploitation of natural resources.
Implementing the Rights of Nature
As we await the rulings of the Court, we continue to work in Ecuador on ways to implement the rights of nature. This includes providing inputs to the Court and the National Assembly on developing content and standards for enforcement and practical ways to shift environmental governance to uphold the constitutional rights of nature.
Constitutional rights are the highest form of legal protection. Protecting those rights is foremost. This means that government actions are to be consistent with and uphold constitutional rights. To achieve this requires making meaningful changes in law and policy.
Thus far, Ecuador has included some mention of the rights of nature within the country’s Organic Code of the Environment (CODA). Article 6 of the Code states, “Nature’s rights are those recognized in the Constitution which include the integral respect of their existence and the maintenance and regeneration of their life cycles, structure, functions and evolutionary processes, as well as restoration.”
By comparison, Article 5 of the CODA describes numerous elements that comprise the human right to a healthy environment (which is secured in Article 14 of the 2008 Ecuador Constitution). For the rights of nature, the CODA leaves this to the environmental ministry.
The result is that there has not yet been a strong step in the direction of implementation of the rights of nature. Meaning, that environmental decision making in Ecuador — including how the central government reviews and considers activities and practices that will impact nature — is not yet consistent with the rights recognized at the constitutional level.
What might this look like in practice? Consider the idea of a “Rights of Nature EIS” (environmental impact statement) in which the first step in a government decision making process is to determine if a proposed activity (a mine, a forestry project, etc.) is consistent with and upholding of the constitutional rights. If it is found to be so, then the proposed project could move onto the next phase of review.
It is more important than ever to meaningfully implement and enforce the rights of nature. In selecting the recent cases, the Constitutional Court has taken a significant step in making real the promise of these rights.
To learn more about Ecuador’s constitutional rights of nature provisions and the recent selection of cases by the Constitutional Court, watch this June 2020 webinar with our Ecuador attorney, Hugo Echeverria.