Ruling of Constitutional Judge rejecting the protection action against mining projects in Loja

May 18th, 2022

On March 28, 2022, the Constitutional Judge of the Civil Judicial Unit based in Loja, issued an oral judgment rejecting the protection action filed by a group of members of the community of Gualel against 4 mining concessions (hereinafter the “Concessions”).

On May 10, 2022, the Judge notified the written sentence (hereinafter the “Judgment”) which was resolved on the violations alleged by the plaintiffs to the rights to environmental consultation and legal certainty, to the rights of the nature, specifically the paramo ecosystem, the human right to a healthy and ecologically balanced environment, and the human right to water, as well as the request for precautionary measures.

For this purpose, the following considerations were made in the Judgment:

Regarding the alleged violation of the rights of environmental consultation and legal certainty: The Judgment states in this regard that the environmental consultation “constitutes a relevant mechanism for citizen participation and the Constitution has recognized that the communities impacted by a concession for the exploitation of natural resources have the right to be consulted by the State prior to the start of the process of activities and that the opinion of the community is fully valued. But it is the Constitution itself that also determines that decisions on the exploitation of natural resources correspond exclusively to the Central State in full exercise of sovereignty over its territory.”

The Judgment points out that, although environmental consultation is a constitutionally enshrined right, this right is not in conflict with the exclusive power that the Constitution grants to the State, which can decide “whether or not it is appropriate to carry out an activity for the exploitation of natural resources”.

Additionally, the Judgment indicates that “[t]he Plaintiffs admitted that the process of citizen participation was carried out, but it did not meet the standards that, in their opinion, have formal and material validity. “, in this regard in the Judgment added that this “leads to glimpse that a process of social participation took place and in compliance with the legislation in force at the date of consultation.” In relation to the standards of the environmental consultation the plaintiffs requested to apply those ruled by the constitutional court in the process “Los Cedros” (1149-19-JP/20) against which the Judgment indicated that the standards and regulations that the plaintiffs intend to be applied to the social participation process carried out, were not in force at the date of completion of the aforementioned process and that, as justified in the process, the plaintiffs agreed to the citizen participation process with “which There is no violation of any constitutional precept, nor has any right been violated in this regard.”

Regarding the right to legal certainty, it was pointed out in the Judgment that the retroactive application of the standards in the form that the plaintiffs have requested, would constitute a violation of the principle of legal certainty because it would imply the regressivity of the application of standards that the Constitutional Court itself determined to be applied starting from their issuance.

Regarding the violation of the rights of nature, the right to a healthy, ecologically balanced environment and the right to water: The Judgment indicated that in accordance with the Mining Law, this is an activity that is divided into different phases: prospecting, exploration, exploitation, benefit, foundry, refining, commercialization and closure of the mine.

The Concessions involved in the Protection Action are in the initial exploration phase; in which only preliminary technical analyzes and scientific research are carried out. On the one hand, it points out that the evidence provided by the plaintiffs does not determine “that the activities carried out by the mining companies currently cause damage to nature that results in damage to the environment and that it affects the right of the inhabitants of Gualel to live in a healthy environment.”

On the other hand, that the State unrestrictedly complied with the regulations for the granting of environmental licenses and registrations. The Judgment points out that the plaintiffs did not present evidence that: a) Concessions are located in a protective forest, in a territory considered a buffer zone or a duly declared protected area, b) endangered or endemic species are in Gualel, c) justifications to warn of foreseeable environmental damage that warrants protection or to apply the precautionary principle and d) Concessions areas must be considered as an area of high diversity with an extensive number of endemic species. The Judgment states that the alleged violations do not exist.

Regarding the request for precautionary measures, the Judgment states that the request did not meet any of the necessary characteristics for the admissibility of a precautionary measure, this are urgency, necessity, and immediacy. No violation of any constitutional right was found nor was the imminence to issue the requested precautionary measures justified, so the Judgment states that these are not appropriate.

Finally, the judge decided to deny the protection action. It should be noted that the plaintiffs orally filed an appeal against the Judgment which is pending.



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