This is one of the most important and worthwhile cases of this century.
The case to protect the Los Cedros Biological Reserve from mining has been with the Constitutional Court since 19 October, with more than seventeen Ecuadorian and international scientists submitting Amicus Curiae (witnesses), academic papers and other written material about the value of the Reserve.
Situated in north-western Ecuador, the Los Cedros Reserve covers more than 4,800 hectares (nearly 12,000 acres) of primary cloud forest safeguarding the headwaters of four watersheds.
The Reserve is a Key Biodiversity Area (KBA), which makes it critical to the global persistence of biodiversity and the health of the planet. Tucked within its boundaries are hundreds of species with high risk of extinction, five of which are considered critically endangered by the Ecuadorian government, including the brown-headed spider monkey, jaguar and the black-and-chestnut eagle.
Case of the century
Monica Feria-Tinta, a barrister at the Bar of England & Wales specialising in public international law, said: "This is one of the most important and worthwhile cases of this century. Hopefully we will have a precedent that will not just be important for Ecuador, but important for the entire world. It is crucial for climate change discussions, and crucial for the discussions we’re having on biodiversity protection."
Feria-Tinta presented an Amicus Curiae to the court for Los Cedros, arguing that the cloud forest, as a primary forest home to endemic species to be found nowhere else in the world, is protected by the Constitution of Ecuador and international treaties like the 1992 Convention on Biological Diversity, 1972 World Heritage Convention (as Natural Heritage), and the Paris Agreement on Climate Change among others, binding on Ecuador.
Feria-Tinta continued: “Article 36 of the OAS charter clearly lays down the duty that national and transnational companies have to respect the laws of the country where they invest - which means they should do their due diligence to understand the legal framework. Part of the legal framework operations is the Constitution,.”
“It would be unthinkable that an international investment could come and carry out business in Europe, Canada or the US and break the laws – there is a legal framework and you have to respect the legal framework. If it cannot happen there, why would you assume it could happen in Latin America?” Monica Feria-Tinta says.
The Ecuadorian government sold Canadian mining company Cornerstone Capital Resources in 2018 and Ecuadorian state mining company ENAMI permits to explore for copper and gold on the Reserve. BHP also has a concession that overlaps part of the Reserve.
Once the other eight judges have reviewed Agustin Grijalva’s preliminary sentence and any amendments have been made, a final sentence will be voted on by the judges.
The verdict is expected in mid-December. A positive ruling would not only protect Los Cedros’s forests from mining, but could provide a precedent to safeguard all 186 Protected Forests in Ecuador, totalling some 2.4 million hectares (six million acres).
Feria-Tint said: "In 1948, we needed new standards around human rights and that was a big turning point. Similarly, nature (and the inextricable link between a healthy environment and human beings) is now at the centre of a post Covid-19 world.
"Biodiversity loss has reached a critical point. A new legal paradigm is emerging whereby (as in Ecuador) Nature is being granted legal status and substantive rights, marking the law of the future."
Rebekah Hayden works with the Melbourne Rainforest Action Group, which campaigns on issues of extractivism and rainforest protection in Ecuador, including in Los Cedros.