Constitutional Court of Ecuador to Make Landmark “Rights of Nature” Ruling

In what may result in a landmark decision, on October 19^th, 2020, the Ecuadorian Constitutional Court held a hearing to determine whether Cornerstone Capital Resources Ltd. (“Cornerstone”), a Canadian mining company, may proceed with its plans to develop a mining project in an area which comprises part of a nature reserve.

Cornerstone’s area of exploration includes parts of the Los Cedros forest located in northern Ecuador, which has been granted the legal status of “protected forest”. There are currently 186 protected forests in Ecuador, covering an area of almost 2.4 million hectares, which have been designated for the conservation of flora and fauna.

The October hearing arose from a dispute between Cornerstone and local environmental activists. Following the establishment of a joint-venture arrangement between Cornerstone and the Ecuadorian state mining company (ENAMI), Cornerstone was issued a mining exploration permit.  However, opponents of the project subsequently argued that the planned operations and development would breach the Los Cedros Forest’s constitutional rights under Ecuadorian law. Since 2008, the Ecuadorian constitution has granted mountains, forests, and other natural bodies legally enforceable rights to “exist, flourish, and evolve”. In the hearing, opponents of the project argued that the court was required to recognize and enforce the Los Cedros Forest’s constitutional rights and prevent any mining-related activities. The opponents pointed to the fact that the Los Cedros Forest is one of the most biologically diverse habitats in the world and home to a number of species at risk of extinction.

While Ecuador was the first country in the world to provide legally enforceable rights to natural bodies, a number of countries have since taken similar steps. Rights of nature laws have been enacted by various levels of government in Mexico, Bolivia, Uganda, Bangladesh, and New Zealand in response to concerns about habitat loss, environmental degradation, and pollution. Following the United Nations’ first biodiversity summit in September 2020, which was held to build consensus for an agreement to protect the world’s forests and oceans, there has been growing awareness and a movement towards establishing rights of nature laws.

The Ecuadorian Constitutional Court’s decision, which is expected soon, will provide an important insight into how rights of nature laws will be interpreted and balanced with corporate interests.  The decision will likely serve as a marker for similar judicial decisions, and will be of particular importance to Canadian mining companies who have current or planned operations in Ecuador, and in other countries that have enacted similar legislation.