The case for Rights of Nature in face of the Mirador Open Pit Copper Mining Project

In March 2012, the government of Ecuador signed a contract with Ecuacorrientes (ECSA), a company of Chinese capital to extract copper, gold and silver from the Condor Highland in  southeastern Ecuador.  Today the humid tropical forest of the Condor Highland is one of the richest and most biodiverse areas of South America.

Condor Highlands of Ecuador
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The proposed Mirador Project includes 6 open pit industrial mining concessions in an area encompassing almost 10,000 hectares (25,000 acres). Mirador’s open pit mines will eliminate all the vegetation and the superficial soil layer of the mined area including 4,000 species of vascular plants that contain the richest biodiversity in South America.  Over 6,000 hectares (15,000 acres) the Protected Forest of the Condor Highland will be affected.  The strong case highlights that that Walsh Consultant, hired to make the Environmental Impact Assessment by ECSA, determines that species of amphibians and reptiles, endemic from the zone could go extinct since the fragile habitats where their life depends on will be completely removed with the project and water sources and aquifers will be polluted. In spite of this report the Environmental License was given and the contract signed.

Environmental, human rights, indigenous organizations, and local community members from the Condor region in Ecuador have joined together to file a lawsuit to stop the Mirador Mining Project.  The suit claims that the mine would violate the protected rights of ecosystems guaranteed in the Articles 71-73 on Rights of Nature in the Ecuadorian Constitution. The case is now being analyzed by the 25th Civil Court of Pichincha against the Ministry of Non Renewable Resources, the Ministry of Environment and Ecuacorriente with the plaintiffs asking to stop the Mirador Mining Project using the precautionary principle to guarantee Rights of Nature, Right to Water and Right to a Decent Life.

The following provides a summary of actions being taken and the case upholding Rights of Nature.

Click on map for a pdf version that includes legend and descriptions of the area.

Map of mine without legend

Summary of the Action for Injunctive Relief for Rights of Nature:

Open Pit Copper Mining Project Mirador


Since the emergence of new economic actors in the world’s political sphere, and with the creation of new global hegemonies living within a model of development based on consumption and growth, the needs to exploit natural resources have rapidly ascended. China, one of the important actors of this international struggle for economic hegemony, has seen Ecuador as a strategic enclave to solve its energetic and mineral demands.

Hence, Ecuacorrientes, a company with Chinese capitals, signed a contract to exploit minerals with Ecuador on March 2012, with the award of the Environmental License that allows the open pit exploration and exploitation of thousands of hectares in the Ecuadorian territory, within an area of priceless biodiversity, pristine ecosystems and hydrological basins in perfect state.

The socio-environmental studies, done by the Consultancy Company hired by the same company, Walsh, reveal the irreversible environmental and hydric impacts, of the Project, even leading to the extinction of various species of amphibians and reptiles.

In this sense, the Constitution, that guarantees Rights to Human Beings and Nature, is clear when establishing the Right of Nature to exist and maintain its vital cycles, Rights, which beyond doubt will be violated with the big scale mining activities in Mirador Project.

In like manner, the Ecuadorian Constitution and the Law for Jurisdictional Guarantees and Constitutional Control, establish the mechanisms to guarantee the Rights contained in the Constitution and the national laws. These mechanisms are called Constitutional Guarantees.  One of these guarantees is the “Acción de Protección” or Action for Injunctive Relief, which was created precisely to repair or impede the violation of a constitutional right, in this case, the Rights of Nature, and the Human Right to Water.

In this concrete case, the act that violated the mentioned rights is the Mining Project “Mirador”, including the Project’s Legal Authorization or Grant “Concesión”, the Environmental License and the Contract between Ecuacorriente and the Ecuadorian State.  Hence, the Action’s Legal Pretention in the definitive suspension of the Project, since, invocating the precautionary principle, it attempts against the Rights of Nature and the Human Right to Water.

Description of the Open Pit Mining Project Mirador

On March 5th, 2012, the Ministry of Non Renewable Resources of Ecuador, signed in Quito the Contract for Mining Exploitation of Mining Project Mirador with the Company of Chinese Capitals, Ecuacorriente (ECSA). This Contract, allows the company to exploit the area located in the Condor Highland for 60 years with the option of extending the period.

The Mirador Project plans the exploitation of copper, gold and silver in a deposit located in the Condor Highland. This Project includes 6 mining concessions in an area of 9,928 hectares (24,532.62 acres).

For ECSA to extract the minerals of the Mining Project Mirador, it will have to make a site of 1.25 km (0.77 miles) of depth, the equivalent of the altitude of 10 buildings similar to Quito’s Basilica. For this purpose, ECSA will extract 60.000 tons of rock per day, the equivalent of approximately 46,000 Grand Vitara cars per day.

Only in 17 years, the mine will generate 144 million tons of rock residues, similar to 5 times the residues the city of Quito generates every year.

At the end of the productive life of the mine, the Company expects to recover a total or 2,208 million pounds of copper and 535.500 ounces of gold.

Impacts on Nature and the Environment with the Mining Project Mirador

According to the socio-environmental information developed by Walsh Consultant for the Environmental Impact Assessment, hired by Ecuacorriente, that then allowed the approval of the Environmental License by the Ministry of Environment, the Mining Project Mirador will have to pump 140 liters of water per second from the rivers Wawayme and Quimi to be used for the chemical treatment of the rock and other services. After the use of the water, it will be mixed with the chemicals and the acid rock with high concentrations of sulfate, to be stored in the landfills for solid wastes and tailings ponds.

The Project will consume 30.6 MW of electric energy, the equivalent of the consumption of the city of Ibarra in Ecuador (with 130 thousand people).

One of the most damaging pollutions caused by the mining activity is the Acid Mine Drainage and the leachates from tailings ponds which occur when rain waters or air get in contact with rocks that have been taken from the subsoil to the surface due to mining activity. This creates the oxidation of sulphurate minerals.

The drainage waters follow their curse until they reach superficial and underground waters and make them acid. The Acid Mine Drainage can irreversible affect the quality of superficial waters and underground aquifers in the affected basins, killing entire species of fish and becoming a danger to human consumption.

Especially in a unique place like the Condor Highland, with so many water sources and aquifers, with intense rains and seismic danger, this Project becomes the perfect formula for an environmental disaster.

It is estimated that the flora of the Condor Highland exceeds the 4,000 species of vascular plants, and according to experts, the regions can have the richest flora of an area of such size in all America.

The exploitation area is a refugee of sensible endemic species, in the edge of extinction, and of great importance for the correct running of the area’s ecosystems and science. Those areas will be majorly affected by the vegetation clearing that will take place before starting the operation of the mine and the dump, causing the complete removal of the habitats of various species, especially of reptiles and amphibians of the area, leading to their extinction.

The Environmental Impact Assessment confirms the danger of extinction of three species of amphibians (allobates kingsburyi, pristimantis prhodostichus and pristimantis incomptus) and a reptile (enyalioides rubrigularis), endemic of the zone of the Condor Highland, in addition to other species considered vulnerable, that could also disappear with the open pit mining project when it eliminates the ecosystems that allow their existence. This does not only mean a direct violation to the Rights of Nature (Art. 71-73 of the Ecuadorian Constitution), but an effect on life itself, as well as the opportunities for creating alternative development activities such as tourism.

Impacts to the Human Right to Water

The Mining Project Mirador is located specifically in the micro basins of the Tundayme and Wawayme rivers, which start at the foothills of the Condor Highland. The Tundayme River begins at a waterfall in this high mountain zone, and the Wawayme River is born at a wetland zone.

These rivers can be affected by the Acid Mine Drainage by introducing highly toxic persistent contaminants that affect the quality of water and that will turn out to be the greatest environmental and economic responsibility that the mining industry currently faces, pollution that can occur during years and decades and that can continue over centuries.

The processes that try to neutralize the acidification of water caused by the Acid Mine Drainage do not eliminate the heavy metals produced by the industry such as cadmium, copper, zinc, arsenic, selenium, among others, that can settle, forming a mud that contains dangerous chemical elements, potentially lethal for all forms of life of the affected ecosystems.

Constitutional Arguments for the Rights of Nature and Water Defense

In Article 73, the Ecuadorian Constitution demands the State to apply “precautionary measures and restriction to activities that can lead to the extinction of species, the destruction of ecosystems or the permanent alteration of natural cycles.”  Moreover, it prohibits the introduction of organic or inorganic organisms and material that can permanently alter the national genetic patrimony.   However, this direct prohibition is eluded when this activity is accepted by the State, knowing that the contaminating pollutants will end up in rivers and ecosystems, permanently altering the natural cycles and the genetic heritage.

The Mining Project Mirador, conceived as an open pit industrial mining, will eliminate all the vegetation and the superficial soil layer, meaning that it will eliminate the Tropical Humid Forest of the Condor Highland which remains in good state of conservation. It will eliminate 4,000 species of vascular plants that contain the richest biodiversity in South America, it will cause the complete removal of the habitats in which endemic amphibians and reptiles in the edge of extinction live, affecting a total area of 6,220 hectares (15,369.95 acres) of the foothills of the Protected Forest of the Condor Highland.

The extinction of species of amphibians and reptiles in these zones is catastrophic considering that these are unique and endemic species; and in general, in the whole ecosystem of the Condor Highland, there will be an irreversible impact due to its magnitude and the time that mining activities last.  This means, that ecosystems will be permanently modified, in spite of their high biodiversity of fauna species, in spite of being one of the largest areas of sandstone with the highest biodiversity of the Andes, and an area of refugee and transit for sensible, endemic species, in the edge of extinction, and of great importance for science.

On the other side, the Mining Project Mirador will affect this mega diverse area without a restoration program related to the impacts on its flora, and without complete studies to cover the lack of information there is about the edge effects on flora and fauna of the zone; without an adequate program to manage and rescue the fauna, and without taking into account the dynamic and profound interconnection of the population of species considered bio indicator species that are now threatened to become extinct.

Due to these reasons and the arguments stated above, and since Article 41 in the Law of Jurisdictional Guarantees and Constitutional Control states that this type of action can be used against a non-judicial public authority that violates, undermines, lessens or cancels the possession and exercise of their rights, in this case, of Rights of Nature, the action demands to Declare the Mining Project Mirador itself, as a violation of Rights of Nature, including the Project’s Legal Authorization or Grant “Concesión”, the Environmental License emitted by the Ministry of Environment and the Contract for Mineral Exploitation signed by the Ministry of Non Renewable Resources with ECSA, since these are State actions that will produce major damage and infringement of the Rights of Nature, the Right to Water and the Right to a Dignified Life establishes in Articles 71, 73, 66.2, and 12 of the Constitution of the Republic of Ecuador.

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