One month ago, on February 4, 2022, hundreds of people took to the streets in the municipality of Loja in southern Ecuador to protest against the industrial mining activities in the Fierro Urco páramo. Many had arrived in the early morning hours from the nearby páramos to demand action to protect the Fierro Urco, carrying placards reading “Hands off Fierro Urco!”, “Our water is much more important than mining!” and “Get out Cornerstone, Salazar Resources, Adventus, SolGold, and Guayacan Gold!”
Today, March 4, the provincial court of Loja will hold a hearing to review a Protective Measures application filed by the rural, Indigenous, and urban residents of Loja and Fierro Urco. Communities have gathered at the court to reiterate their demand that the courts accept the application which seeks to protect rights guaranteed in the country’s constitution. As such it is considered a constitutional order.
FIERRO URCO
The Fierro Urco Páramo is a fragile ecosystem located at 3,700 m above sea level in the southern mountain range of Ecuador shared between the provinces of Loja and El Oro. As AIDA notes, the páramos "fulfill very important functions in mitigating and adapting to climate change; the concentration of organic matter in the soils of the páramos allows them to store carbon in greater proportion than in other ecosystems.”
The Fierro Urco Páramo is the site for the headwaters of the Guayabal, Santiago, Tenta, Ambocas, and San Luis rivers, as well as several sub-watersheds. Collectively, the páramos are known as the Estrella Hídrica del Sur, for the sheer quantity of rivers that originate in the mountains. It's also home to unique species who call these páramos their home. As explained by Ecuadorian biologist Patricio Meza, “it is also the habitat of endemic species such as the Tiktik rain frog, and the blue-throated hummingbird, and is home to an important population of condors from across the country.”
Indigenous and small farming communities of Gualel who live near the páramos join other neighbouring communities in their concern about mining and the impact mining operations may have on water, their crops (food security) and other agricultural activities, on their livestock, and on the production of cheese which supports the province of Loja.
Piled on are concerns about harms to the social fabric mining companies are causing in the area, where families and communities have been criminalized for defending their rights. A particularly shocking moment took place in October 2020, when 14 community leaders – including two elderly people – were accused of committing aggravated assault, battery, and property damage while trying to peacefully stop the advancement of mining in their territory.
PROTECTIVE MEASURES
The request for protective measures was filed via constitutional order by 38 residents of Gualel in the provincial court of jurisdictional guarantees of the canton of Loja. In the order, they make the case that the following four fundamental rights guaranteed by the Constitution have been violated:
(i) Right to an environmental consultation and to legal certainty
The constitutional order highlights that the environmental consultation which took place in the communities was more an informative session and was based on handouts.
"The mining companies held informal meetings with the community with the objective of gathering signatures and using those signatures to show to the government extensive support for the mining companies.” The request also underscores that within the context of the COVID-19 pandemic, “The signatures were obtained by handing out food rations or other benefits, but not by way of a true consultation.” It points to findings from a 2021 report published by the Ecuadorian Alliance of Human Rights Organizations:
"Mining companies took advantage of the COVID-19 health crisis to position themselves into the lower and southern part of the Fierro Urco mountain range, specifically in the northwestern parish of Gualel in the province of Loja. This triggered further violence, which led to the criminalization of Gualel's water defenders. Residents are contending with the presence of at least three mining companies: Guayacán Gold, Sol Gold, and Cornerstone. The company that has caused the most tension in the area is Guayacán Gold, subsidiary of Canadian company Salazar Resources.
During 2020, these transnational mining companies saw an opportunity to enter the territory of small farmers, offering food and health kits under the guise of the health emergency.”
(ii) Rights of Nature, specifically the rights of the páramo ecosystem
The constitutional order references this right, indicating that:
"The predominant ecosystem within the Fierro Urco is the páramo, but there are also other ecosystems such as wetlands and Andean forests whose [continuous] connection to these water sources is vitally important for human consumption and irrigation, to ensure food sovereignty, and the continuous supply of water.”
And highlights that,
"There is a (i) high likelihood of potentially irreversible risks and serious harm at the ecosystemic, geological and hydrological levels as a result of mining extraction and related activities. Mining has impacts that are felt ‘in perpetuity,’ that go beyond ‘long-term’ given that they persist for centuries, millennia, or even longer periods of time. On a human time scale, these impacts are considered irreversible. Undoubtedly, the lasting impacts of mining the Fierro Urco, Loja, will negatively affect the functionality of the ecosystems upon which many species who inhabit the area – and of course, the people who live in these communities – depend...
As a result of the ways it functions, the Ministry of the Environment, Water and Ecological Transition (MAE) did not sufficiently evaluate the biodiversity and geo-hydrological importance of the area when granting the environmental permits, nor did it fulfill the obligations of the State to apply precautionary principles in accordance with Articles 73, 396 and 406 of the Constitution.
All of this constitutes a clear violation of the rights of Nature and, more specifically, the right to existence for its species and ecosystems, as well as their cyclical regeneration, structures, functions, and evolutionary processes.
Therefore, with the objective of ensuring a multi-faceted and holistic protection of nature, we request that the Constitutional court recognize the Fierro Urco páramos as rights bearers so their rights can be fully restored in accordance with specific technical criteria.”
(iii) The human right to a healthy and ecologically-balanced environment
The constitutional order recalls that,
"The Municipal Planning authority of Loja, through Memorandum No. ML-DP-2021-0235-M, made a strategic diagnosis of the situation of the Estrella Hídrica del Sur in its 2019 resolution “Loja free of metallic mining,” indicating that: The problems and harms caused by anthropic activity contribute to the degradation of ecosystems. Therefore, when speaking about climate change, efforts towards mitigation and adaptation should be taken into account – [specifically] related to problems of pollution that result from non-compliance with current regulations – and that allow for the implementation of sustainable activities that ensure the protection of areas of natural interest and the protection of water aquifers for human consumption and sustainable production use. Harm from deforestation and soil removal [should be] avoided, allowing for the implementation of mitigation efforts to counteract the effects of heavy rainfall.
(...) In the parish of Gualel, the main ecosystem service provider (provisioning, regulation, support, and cultural) is the Páramo, responsible for 28.91% of the vegetation cover, which stores approximately 602,566.41 tons of carbon in the biomass; (...) This knowledge strengthens the call to establish the “Estrella hídrica, as an area protected from metal mining.”
Concluding that,
"The arbitrary granting of concessions for metal mining without consultation in an extremely vulnerable ecosystem like the páramo – without considering its protected status granted by the Constitution, nor the mandates for conservation as part of environmental management – is resulting in a failure to uphold the precautionary and intergenerational principle, and is putting at risk the rights to a healthy environment for current and future citizens of affected parishes.”
(iv) Human right to water
The constitutional order states that,
"The authorized mining concessions directly compromise access to water (...), as well as several irrigation systems on which agricultural and subsistence farming activities depend, affecting the human right to water as well as other rights such as food sovereignty and water access for consumption.”
Several amicus briefs were presented in the defence of Fierro Urco, among them from the Coordination of Kichwa Saraguro Organizations (Coordinadora de Organizaciones del Pueblo Kichwa Saraguro), the National Citizens Observatory (Observatorio Nacional Ciudadano) and a member of the legislative assembly, demonstrating broad support across the province to protect the páramos, water, and life.
Nevertheless, the court hearing which should have been held on February 4 to open the case for the constitutional order was suspended without cause and was rescheduled for one month later, on March 4. For the men and women defenders, this was considered an act of intimidation.
CANADIAN COMPANIES AFFECTED BY THIS LEGAL ACTION
Three Canadian mining companies are affected by this constitutional order: Cornerstone (CGP), Salazar Resources (SRLZF) and Adventus Mining Corporation (ADZN.V) based in Ottawa, Vancouver and Toronto respectively.
In January of this year, the Australian company Newcrest decided to withdraw its investment in Cornerstone’s Caña Brava and Tioloma projects in Fierro Urco, forcing the Canadian company to announce that “the project would be wound down until it could secure another funding partner.” Cornerstone has tried to assure its investors that the company “remains optimistic about the still untested geological potential of the project and appreciates the strong support received from the Gualel community." Nevertheless, these statements – mere attempts to quieten the fears of investors – couldn’t be further from the truth. The longstanding and dignified protests of the people of Gualel, together with the constitutional order, show that this and other mining projects do not have a social license to operate.
It is worth noting that Cornerstone has already been affected by a Constitutional Court decision that ruled in favour of the protected cloud forest communities of Los Cedros who, in 2018, sued the Ministry of the Environment for granting a mining concession in a protected forest and for violating the right to an environmental consultation and the rights of nature by endangering such a fragile area.
Canadian mining companies are attempting to minimize for their investors the repercussions of this court decision. CEO of Salazar Resources Merlin Marr-Johnson assured that “Los Cedros ruling is an isolated case.” But as Jose Cuervo of the Observatorio Minero Ambiental y Social del Norte del Ecuador (OMASNE) points out, “all the violations [for which the Constitutional Court ruled in favour of the Los Cedros constitutional order] apply to Fierro Urco, and therefore, they should accept the constitutional order in favour of Fierro Urco as well."
In the province of Loja, the communities have been defending the páramos since 2002. As Luis Corral Fierro, from the Colectivo de Defensa del Agua y la Vida de Loja says, “the constitutional order is another tool in this struggle against mining.”
MiningWatch Canada joins the calls of the people of Gualel and expects Canadian companies to comply with the constitutional order and stop all activities in the Fierro Urco páramos.
Photo: Red de movilizacion para proteger a Fiero Urco