Landmark Cuenca court decision allows voters to decide if mining projects pose environment threats

Nov 13, 2020 | 2 comments

A Constitutional Court decision allows the voters of Cuenca to decide the fate of mining projects in the Cajas Mountains and elseswhere in the canton that affect the water quality.

By Vincent Ricci

A historic court ruling in Ecuador that will let a community vote on whether to allow mining in its midst could set the stage for a region-wide grassroots pushback against extractive projects.

An anti-mining protest in Cuenca’s Parque Calderon in September.

Pedro Palacios, the mayor of Cuenca, had submitted the request for a referendum to Ecuador’s Constitutional Court on Sept. 8, following mounting concerns about planned gold-mining activities impacting water supplies. Ten days later, the court ruled that the referendum, as framed, could go ahead in the next election.

“It’s a strategy that could set back mining companies using political means and we can see once more that the residents don’t want mining in Cuenca,” Paola Granizo, an activist with the civil society group Yasunidos Cuenca, told Mongabay in a recent interview.

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The proposed mining operations that precipitated the push for the referendum are the Río Blanco project, run by Chinese firm Ecuagoldmining South America S.A., and the Loma Larga project, run by Canada-based INV Metals. Río Blanco would not be affected by the outcome of the referendum because it is already in a phase of exploitation. But it remains on hold under a May 18 court order after the government was accused of not consulting with local communities prior to the start of operations. Loma Larga has not yet been approved for exploitation, pending a review of its environmental impact study, but has already obtained mining rights; in a Sept. 21 statement, INV Metals said it expects the project to be allowed to proceed, regardless of the referendum.

David Fajardo, from the group People’s Council for Cuenca’s Water, welcomed the ruling but said the court appeared to hedge in not making the results of the referendum retroactively applicable to existing mining projects.

“The ruling of the Constitutional Court is rather cautious in the sense that the court laid down certain situations that would prevent international lawsuits against the Ecuadoran government,” he said.

For other communities around Ecuador, news of the ruling has inspired similar pushes to decide on the fate of mining projects through the ballot box, Fajardo said.

“When the news was known that the court had approved and ruled favorably on the referendum, many other communitieis called me asking for our support,” he said.

Ripple effect
Beyond Cuenca, other communities in biodiverse areas are already pushing back to protect the rights of nature, as enshrined in Ecuador’s 2008 Constitution. On Oct. 19, the Constitutional Court held a hearing that will determine if the rights of nature will be backed in the protected Los Cedros forest in Imbabura province in northern Ecuador.

Former Azuay Province Prefect Yaku Perez and now presidential candidate protests in August outside the court in Quito.

The hearing was conducted online and featured Mayor Auki Titauña of the city of Cotacachi, representatives from mining companies and the Ministry of Environment, 11 scientists from Ecuador and abroad, and more than 50 citizens, academics, NGO representatives and many others offering testimony.

With mining companies already seeking to operate in the area, Titauña said the area has been under an ecological ordinance since 2000, strengthened under the country’s newest Constitution that protects the rights of nature and buen vivir, or “good living.” The mining companies have argued that Los Cedros forest is a protected woodland but not a protected area, according to Linda D’Amico, a professor of global studies at Winona State University, who testified.

“[Scientists] have documented Los Cedros’s value as a living corridor for endangered fauna and flora as well as a buffer zone for Cotacachi Cayapas National Park,” D’Amico said.

With the precedent of the Cuenca ruling, cities like Cotacachi may have to turn to referendums to block mining if courts fail to uphold what the Constitution grants.

“Hopefully, during these trying times, co-citizens can come together and construct the future we want, where there’s increased social equity and an ecological commons that generates well-being for us all,” D’Amico said. “The Cuenca case advances those ideas and practices for sustainable futures through socioecological justice.”

The use of referendums to challenge large mining projects isn’t uncommon in Azuay province, of which Cuenca is the capital. In February 2018, President Lenín Moreno held a controversial nationwide popular referendum containing seven questions to make amendments to the Constitution. The result was an overwhelming call, by nearly 69% of voters, to prohibit mining at all stages in different zones. More than 90% percent of Azuay voters supported the prohibition, according to Fajardo.

In March 2019, the small city of Girón, south of Cuenca, was approved to hold a referendum that led to a ban on mining there — and an end to INV Metals’ operations after years of community organizing. The results indicated that nearly 87% of voters in Girón voted against mining.

That same year, voters across Azuay elected Yaku Pérez Guartambel as the provincial prefect, running on an ecology-first and an anti-mining agenda that drew attention well beyond the province. On three separate occasions in the span of a year, Pérez requested that the Constitutional Court approve questions for a provincial referendum to let voters decide the future of mining across Azuay.

He was rejected all three times, but his crusade against mining was hailed by environmentalists and various social organizations that have spent years trying to get public officials to back their cause. Pérez has since been nominated to be the presidential candidate for the Indigenous political party Pachakutik.

A fragile ecosystem
Cuenca is the third-largest city in Ecuador, with a population of 700,000 people. It sits at an elevation of about 2,560 meters (8,400 feet) and is home to a unique alpine tundra ecosystem known as páramo. To its west lies El Cajas National Park and Reserve, whose hydrological system is crucial for the city’s freshwater supply.

Most Andean cities are highly dependent on the surface water of the páramos for their consumption, irrigation, and hydropower generation needs, since underground sources are difficult to extract in the highlands. Eighty-five percent of the water supply for Quito, the capital, relies on this source; in Cuenca, it’s 100%.

Mining projects are known to use vast amounts of water that they ultimately release back into the hydrological system. The impacts of mining operations on the páramo ecosystems aren’t fully known, due to a dearth of efforts to model its hydrology. They’re also difficult to conceptualize for various reasons, such as the high organic carbon content of the soil.

An independent 2016 report commissioned by MiningWatch Canada on projects near Cuenca warned that “mining impacts due to subsidence and hydrological factors are very likely to have significant but difficult to predict and interpret impacts on páramo ecosystems.”

It concluded that the mitigation measures being proposed by the Río Blanco and Loma Larga developers were “inadequate,” and that both projects lacked plans for long-term monitoring and water treatment. The report recommended that the two proposed projects at the time “not be developed,” citing financial unfeasibility and a lack of established environmental regulatory oversight.

Sooner rather than later
With its referendum on future projects guaranteed to go ahead, the city of Cuenca now faces the challenge of actually holding the vote. An election date hasn’t been confirmed, and while the president of the National Electoral Council (CNE), Diana Atamaint, said on Oct. 2 that it would be best to hold the referendum on Dec. 13, there would need to be approval from the Ministry of Finance to cover the extra costs.

Activists say the sooner the vote can be held, the better, to prevent mining proposals currently in the pipeline from being licensed. But city officials say they’re concerned about the expense of holding a referendum outside the electoral calendar, estimated at $1 million.

Ecuador is slated to hold its presidential election in February next year, with a runoff, if needed, in April. But Fajardo from the water defense group said the money saved by delaying Cuenca’s referendum until then would pale in comparison to the cost of the environmental cleanup for mining projects approved in the meantime.

“It’s quite a bad argument [to hold the referendum later] and easy to debunk if we start to make calculations of how much it costs Cuenca to have a million-dollar referendum versus how much the environmental impacts would cost the city resulting from mining,” he said. He added that opting to pay $1 million now is the right democratic decision to make before more mining companies are granted operating licenses.

But city officials are unconvinced, citing the existing financial burden of dealing with the Covid-19 pandemic. City Council member Iván Abril said municipal resources must be used efficiently over the next few months.

“I’m in favor of optimizing resources,” he said by phone. “The referendum should be held on the day of the presidential elections to save funds.”

The electoral council will have the final say on the matter. For now, the people of Cuenca await that decision from Quito on when they, too, will get to have the final say on the integrity of their unique ecosystem.
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Credit: Mongabay  

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