Opinon of the Constitutional Court of Ecuador of 10 November 2021 No. 1149-19-JP/21

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Date10.11.2021

TypeNational

JurisdictionEcuador

Court / State organConstitutional Court of Ecuador

Parties-

biodiversity mining forest

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Opinion No. 1149-19-JP:21 (ENG).pdf Opinion No. 1149-19-JP:21 (ESP).pdf

Description

The Opinion resulted from the Constitutional Court’s review of the appellate judgment rendered in an action originally brought by the Autonomous Decentralized Municipal Government of Santa Ana de Cotacachi, on behalf of the Los Cedros Protected Forest, and the Mayor of Cotacachi County, Auki Tituaña Males, against the Ministry of Environment, Water and Ecological Transition and the Empresa Nacional Minera (National Mining Company, hereinafter “ENAMI EP”).

The Constitutional Court of Ecuador is the supreme national authority responsible for constitutional review, constitutional interpretation, and the administration of constitutional justice. Acting under Article 436(6) of the Constitution and Articles 2(3) and 25 of the Organic Law on Jurisdictional Guarantees and Constitutional Control, the Court exercised its special jurisdiction to review selected final judgments rendered in proceedings concerning constitutional guarantees and to establish binding constitutional precedent. In this case, it reviewed the appellate judgment of the Multijurisdictional Chamber of the Provincial Court of Justice of Imbabura in an action for constitutional protection concerning mining concessions and environmental authorizations affecting the Los Cedros Protected Forest.

Applicable law included the Constitution of Ecuador (particularly provisions on the rights of nature, the right to a healthy environment, the right to water, and environmental consultation), the Mining Law, Organic Environmental Code and the Regulations to it, Organic Code of the Environment, Environmental Management Law, Organic Law on Water Resources, Uses and Management of Water, other environmental acts, as well as municipal ordinances. The Court also relied on United Nations General Assembly Resolution 64/292 of 28 July 2010, practice of Inter-American Court of Human Rights, United Nations Committee on Economic, Social and Cultural Rights, and United Nations Human Rights Council.

In the underlying action, the petitioners argued that the mining concessions and the environmental authorizations violated the constitutional rights of nature, the right to water, the right to a healthy environment, and the right to environmental consultation. They contended that the proposed mining exploration posed serious risks to the Los Cedros Protected Forest, including its unique ecosystems, endemic and endangered species, ecological integrity, and ecosystem services. The respondent public authorities and ENAMI EP maintained that the mining concessions and the related administrative authorizations had been issued lawfully, that the applicable legal requirements had been satisfied, and that no constitutional rights had been infringed.

In its opinion of 10 November 2021, the Constitutional Court confirmed the protection of Los Cedros and accepted the constitutional claims. The Court indicated that the extinction of species in the Los Cedros Protected Forest necessarily leads to the destruction of the ecosystem and the permanent alteration of its natural cycles, which constitute a clear violation of the rights of nature and specifically to the existence of its species and ecosystems, as well as to the regeneration of its cycles, structure, functions and evolutionary processes (para 134). The Court held that the rights of nature had been violated and developed binding jurisprudence on the constitutional status of nature. It emphasized the intrinsic value of ecosystems, species, and ecological processes, independent of their utility to humans (para 337). The Court applied the precautionary principle and found that mining activities posed unacceptable risks to biodiversity, endemic species, endangered fauna and flora, water resources, and ecosystem integrity (paras 124-126). The Court further held that environmental consultation had not been properly conducted and that constitutional guarantees of participation were violated (paras 265-282). Consequently, the mining authorizations and related environmental approvals affecting Los Cedros could not stand.

The Los Cedros judgment is widely regarded as one of the most important biodiversity decisions worldwide. The Court devoted extensive analysis to biodiversity, ecosystem functions, endangered species, ecological corridors, genetic diversity, and the scientific characteristics of cloud forest ecosystems. The judgment strengthened the practical application of the Rights of Nature provisions of the Ecuadorian Constitution and clarified the operation of the precautionary principle where scientific uncertainty exists. It is particularly significant because the Court relied extensively on scientific evidence regarding species extinction risks, ecosystem services, and ecological connectivity, and established binding constitutional precedent protecting biodiversity-rich ecosystems from extractive activities. The case is frequently cited internationally as a leading example of rights-of-nature litigation and biodiversity-centered constitutional adjudication.

Original language: Spanish

Full text

Ruling No. 1149-19-JP/21 Reporting Judge: Agustín Grijalva

Quito D.M., November 10, 2021

CASE No. 1149-19-JP/20

THE PLENARY SESSION OF THE CONSTITUTIONAL COURT OF ECUADOR, IN EXERCISE OF ITS CONSTITUTIONAL AND LEGAL POWERS, HEREBY ISSUES THE FOLLOWING

OPINION

Collateral Review Case No. 1149-19-JP/20

I. Proceedings before the Constitutional Court

1. On July 19, 2019, the Constitutional Court of Ecuador received a certified copy of the opinion for Case No. 10332-2018-00640, which sought an action of injunctive relief¹, the opinion being issued by the Multijurisdictional Chamber of the Provincial Court of Justice of Imbabura, on June 19, 2019. The case was assigned the number 1149-19-JP.

2. On May 18, 2020, based on paragraphs a) and b) of paragraph 4 of Article 25 of the Organic Law of Jurisdictional Guarantees and Constitutional Control (LOGJCC), the Selection Chamber of the Constitutional Court decided to accept the case.

3. On May 27, 2020, the case was assigned to constitutional judge Agustín Grijalva Jiménez, who, by order dated August 21, 2020, acknowledged receipt of the case.

4. By order dated October 7, 2020, the judge summoned the parties, interested third parties, and amici curiae to a public hearing which was held on Monday, October 19, 2020 at 10:00 a.m.² In the same order, the judge requested that national or international academic institutions that had performed scientific research on the Los Cedros Protected Forest (hereinafter referred to as “Los Cedros Protected Forest”, or “Los Cedros”) to submit any information they considered relevant for the resolution of the underlying matter.

5. By order dated October 21, 2020, the constitutional judge requested information from the then-Ministry of Environment and Water (now Ministry of Environment, Water and Ecological Transition or MAATE), the Empresa Nacional Minera (hereinafter ENAMIEP), and the Autonomous Decentralized Municipal Government of Cotacachi (hereinafter referred to as GAD of Cotacachi). These institutions submitted the required information within the allotted 72 hours.

6. On November 5, 2020, the Review Chamber, consisting of Judge Teresa Nuques Martínez² and Judges Agustín Grijalva Jiménez and Ramiro Avila Santamaría, approved draft opinion No. 1149-19-JP, to be heard by the Plenary of this Court.

II. Jurisdiction

7. In accordance with the provisions of Article 436, paragraph 6, of the Constitution of the Republic of Ecuador, and in accordance with Article 2, paragraph 3, and Article 25 of the LOGJCC, the Plenary of the Constitutional Court has jurisdiction to issue opinions that constitute binding jurisprudence or precedent in all constitutional proceedings received and accepted by the Court through its selection process.

8. In Opinion No. 159-11-JH/19, the Court decided that the time frame contemplated in Article 25, paragraph 6 of the LOGJCC, “is inapplicable when the Court shows that, in a case selected for a violation of constitutional rights, the damage exists at the time of the ruling and has not been adequately addressed”³In this case, the Court notes that although the appellate decision under review accepted the need for injunctive relief and declared certain rights to have been violated, as discussed further below, other charges alleged by the petitioners were not analyzed. As a result, the relief granted was inadequate. Given these considerations, the Court deems the time frame contemplated in Article 25, paragraph 6 of the LOGJCC to be inapplicable in this case.

III. Preliminary information

General description of the Los Cedros Protected Forest

9. On October 19, 1994, the Ecuadorian Institute of Forestry, Natural Areas and Wildlife (INEFAN), through Ministerial Agreement No. 57⁴, declared 6.400 hectares of the property known as “Los Cedros”, — located in the García Moreno parish, Cotacachi canton, Imbabura province — as a Protected Forest and Vegetated Area. This ministerial agreement states in its preamble that “according to the physical, chemical and biological characteristics of the soils studied, as well as their agrology, it is determined that the vegetative cover of these lands should be permanently conserved for the purpose of protection”, and in its Article 2 sets forth:

The prohibition of all activities that are not compatible with the purposes of the area, which as of the signing of this Resolution will be subject to the forestry regulatory framework, whose administration is the exclusive responsibility of this Institute, through the National Forestry Directorate, and for which reason this area may not be affected by the Agrarian Reform.

10. Los Cedros is located in Imbabura province, Cotacachi canton, García Moreno parish, Valle de los Manduriacos sector, on the Chotal-Brillasol road.⁵Its western border is shared in part with the Cotacachi Cayapas National Park, and in part with the El Madrigal Cooperative. To the south and west, it borders several communities in the Manduriacos Valley.⁶

11. In Ecuador, the existence of different ecosystems is generally tied to the meteorological records of a given region and its altitude, measured in meters above mean sea level (hereinafter “mamsl”). Parameters such as temperature, precipitation or rainfall, and relative humidity are fundamental because they determine the type of vegetation that can inhabit a region and, therefore, the animals and microorganisms associated with it.⁷

12. The elevation of Los Cedros ranges from 980 to 2,200 mamsl. In ecological terms, this means it is categorized as a lower montane rainforest, also known as a cloud forest.⁸ The Los Cedros Research Station is located at an altitude of 1,300 meters. According to its 15 years of meteorological records, the forest receives 2903 ±186 millimeters of rain per year, but at higher elevations there is considerably more precipitation.⁹The temperature ranges between 15 and 18 degrees Celsius.

13. The characteristics of this ecosystem and the species that comprise it will be discussed further based on verified scientific information, and will be analyzed in the corresponding section, below, alongside the rights alleged to have been violated. This information of a strictly scientific nature has been submitted to this Court during the underlying proceedings; its sources have been verified and are cited in footnotes at the bottom of the page.

IV. Facts of the Case

14. Through Resolution No. MMSZM-N-2017-0041-RM, dated March 3, 2017, the Ministry of Mining granted to ENAMI EP the metallic mineral mining concession “Rio Magdalena 01”, cadastral code No. 40000339. The mining concession¹⁰ is located in the Llurimagua sector, García Moreno parish, Cotacachi canton, and consists of an area of 4920 contiguous mining hectares.

15. Through Resolution No. MM-SZM-N-2017-0042 RM, dated March 3, 2017, the metallic mineral mining concession “Río Magdalena 02”, cadastral code No. 40000340, was granted in favor of ENAMI EP, located in the Llurimagua sector, García Moreno parish, Cotacachi canton, Imbabura province. It has an area of 4989 contiguous mining hectares.

16. On December 12, 2017, the Ministry of Environment, through Resolution No. 225741, granted the environmental registration for the initial exploration phase of mining concession No. MAERA 2017-3159921 Río Magdalena Mining Project, consisting of the Río Magdalena 01 (Code: 40000339) and the Río Magdalena 02 (Code: 40000340) concessions, located in Cotacachi canton, Imbabura province.¹¹

Map 1 Mining concessions in the Los Cedros Protected Forest

Source: Georeferenced mining cadastre.

17. On November 5, 2018, Jomar José Efren Cevallos Moreno, in his capacity as mayor of Cotacachi canton and Jhesica Liseth Almeida Herrera, the legal representative of the Municipality of Cotacachi, filed an action for injunctive relief against Manuel Humberto Cholango Tipanluisa, in his capacity as Minister of the Environment, and against Carlos Alberto Otero López, General Manager of ENAMI EP. The action for injunctive relief challenged the aforementioned administrative acts,¹² specifically the environmental registration and the environmental management plan, because, according to the petitioners, they would have affected the rights of nature by allowing mining activity within the Los Cedros Protected Forest. The petitioners also alleged that neither the constitutional requirements for an environmental consultation, nor those related to the consultation of indigenous peoples and communities, were observed.

18. According to Article 24 of Ministerial Agreement 061, dated April 7, 2015, of the then existing Ministry of Environment and in force at the time, the environmental registration was defined as the environmental permit granted by the corresponding Environmental Authority with jurisdiction over the matter, through the Unified System of Environmental Management (SUIA), and which is mandatory for projects, works or activities considered to be of low environmental impact and risk. For projects with a higher environmental risk or impact, the regulations required an environmental license.

19. On November 13, 2018, the judge of the Multijurisdictional Judicial Chamber of Cotacachi rejected the action, holding that no constitutional rights were violated and that, in accordance with Article 40 of the LOGJCC, “this is a strictly administrative matter, and would be better suited for analysis by judges competent in that subject matter.”

20. The representatives of the GAD of Cotacachi filed an appeal against the ruling of the lower court. On June 19, 2019, the Multijurisdictional Chamber of the Provincial Court of Justice of Imbabura accepted in part the action for injunctive relief, and found there to be a violation of the right to participation as contemplated in Article 61, paragraph 4 of the Constitution. As part of the relief granted in the decision, the challenged portion of the administrative act was held to be no longer in force,¹³ and the Court ordered the respondents to publish the Court’s decision on their websites, as well as to offer public apologies to the communities that inhabit the area impacted by the project.

21. On August 6, 2019, ENAMI EP — and on August 7 of the same month and year, the MAAE (former Ministry of Environment) and the Autonomous Decentralized Municipal Government of Santa Ana de Cotacachifile — filed an extraordinary action for protection against the court order of June 19, 2019, issued by the Multijurisdictional Chamber of the Provincial Court of Justice of Imbabura. The extraordinary action for protection filed by ENAMI EP alleging the violation of the right of legal certainty, the right to the impartial administration of justice, the right to counsel, and the right to an explanation of legal reasoning, was received on February 7, 2020.¹⁴ The claims filed by the then-Ministry of Environment and the GAD of Cotacachi were deemed inadmissible.

III. Constitutional analysis

22. In this appellate decision, the Constitutional Court will divide its analysis as follows: (A) The rights of nature, (B) The right to water and a healthy environment, and (C) Environmental consultation.

A. The rights of nature

23. In the case under review, the GAD explicitly argued the violation of the rights of nature or Pachamama, on whose behalf it appeared. Specifically, in its complaint it cites Article 73 of the Constitution regarding the application of precautionary measures and the restriction of activities that may lead to the extinction of species, the destruction of ecosystems, or the permanent alteration of natural cycles.

24. The respondents asserted that the alleged violation of the rights of nature has not occurred because there is no environmental damage, given that the activity of the mining companies in Los Cedros is currently in its initial exploration phase.

25. According to Article 10 of the Constitution, nature is the subject of those rights that the Constitution recognizes. Among these rights, the Court highlights in the present case two of those included in Article 71 of the Constitution:

i) The right to have its existence fully respected. ii) The right to maintain and regenerate its cycles, structure, functions and evolutionary processes.

26. In order to resolve the underlying case, the Court considers it indispensable to analyze the rights of existence held by the animal and plant species of Los Cedros, as well as the right of this ecosystem to maintain its cycles, structure, functions and evolutionary process.

27. In order to carry out this analysis it is appropriate first to examine the rights of nature as constitutional values and principles, then examine the normative force and scope of these rights, so that the intent of the precautionary principle, enshrined in Article 73 of the Constitution, may be considered as relate to the rights of nature, specifically in relation to the existence of the ecosystem of the Los Cedros Protected Forest, in conformance with the allegations set forth by the petitioner.

28. In its preamble, the Ecuadorian Constitution celebrates nature or Pachamama, of which we are a part and which is vital for our existence. Accordingly, the conception of nature developed by the Constitution in Article 71 includes human beings as an inseparable part of the same, and of the life that it reproduces and forms in its bosom.

29. This constituent declaration of the Ecuadorian people, weaving an intercultural convergence of the knowledge of indigenous peoples and modern Western science, draws upon the universal archetype of the mother and thus recalls the essential relationship between human beings and nature.

30. In highlighting this relationship, the Constitution, in its preamble, emphasizes that Nature, Pachamama, “is vital for our existence”. Here the Constitution perceives that the very existence of humanity is inevitably tied to that of nature, since it conceives humanity as part of nature. Therefore, the rights of nature necessarily encompass the right of humanity to its existence as a species.

31. This is not a rhetorical lyricism, but rather a transcendent statement and a historical commitment that, according to the preamble of the Constitution, demands “a new form of civic coexistence, in diversity and harmony with nature”.

32. The Court emphasizes that these values form part of the constitutional preamble in which the fundamental values of the Ecuadorian people are summarized, and which are expressed throughout the entirety of the Constitution, including those related to right living - sumak kawsay - and the model of development.

Rights of nature and ecological justice

33. The Court observes that, in the case under review, the Provincial Court of Justice concentrates its analysis on the environmental consultation, while the lower court judge reviewing the action for injunctive relief does not develop an analysis regarding the GAD’s allegation concerning the violation of the rights of nature, but rather rejects the requested precautionary measures, limits himself to affirming that the matter dealt with a matter of mere legality, and finds the action for injunctive relief to be inadmissible.

34. It is of much concern to this Court that the rights of nature, to which the Constitution grants express recognition and guarantees, are not being timely and adequately considered by some judges, public authorities and individuals.

35. The rights of nature, like all the rights established in the Ecuadorian Constitution, have full normative force. They do not constitute mere ideals or rhetorical statements, but rather legal mandates. Thus, in conformance with article 11, paragraph 9, integrally respecting - and ensuring respect for - these rights, along with all the other constitutional rights, is the highest duty of the State. This duty of the State is reiterated by the Constitution in article 277, paragraph 1, upon establishing norms for development.¹⁵

36. Along these lines, respect for the rights of nature also includes the duty of every entity with regulatory power to formally and materially adapt said norms to these rights, as well as to all the other constitutional rights, as provided in article 84 of the Constitution. Likewise, in article 84, the Constitution provides that public policies shall be intended to effectuate right living and all rights, including, by extension, the rights of nature.

37. Regarding the duties and responsibilities of citizens in general, Article 83, paragraph 6 of the Constitution expressly includes respect for the rights of nature, the preservation of a healthy environment and the rational, sustainable use of natural resources.

38. The Court notes that the normative character of the Constitution applies not only to the rights of nature, but also to all applicable guarantees and principles of constitutional interpretation. Article 71, second paragraph of the Constitution establishes that “any person, community, people or nationality may demand from the public authority the fulfillment of the rights of nature. In order to apply and interpret these rights, the principles established in the Constitution shall be observed, as applicable”. For an effective protection of nature, the Court highlights among these principles direct application and the pro natura principle.

39. In accordance with Article 11, paragraph 3, the rights and corresponding guarantees that the Constitution recognizes for nature are directly and immediately applicable by, and before, any public servant, administrative or judicial, ex officio or at the request of a party.

40. Regarding the pro natura preference principle, all public servants, in accordance with article 11, paragraph 5 of the Constitution, must apply the norm and interpretation that most favors the effective enforcement of rights and guarantees, including the rights of nature.¹⁶ In the event there are several interpretations of the same provision, the in dubio pro natura principle is also relevant, in accordance with article 395, paragraph 4 of the Constitution, whereby when in doubt about the specific scope and exclusive nature of environmental legislation, it should be interpreted in the most favorable to the protection of nature. This Constitutional Court additionally determined that these principles should be applied when interpreting the constitutional provisions themselves, since this is what best aligns with the integrity of the Constitution and most favorably allows for the full exercise of rights, in conformance with Article 427 of the Constitution.

41. Within this framework, judges hearing actions for injunctive relief and requests for precautionary measures for possible violations of the rights of nature are obligated to conduct a careful examination of such allegations and petitions, in the same terms that this Court has established for other constitutional rights. In particular, these petitions and claims cannot be denied, as occurred in this case in the lower court, under the mere assertion that the cases deal with purely administrative matters whose adjudication corresponds to the ordinary justice system.¹⁷

Intrinsic value of nature

42. The central idea of the rights of nature is that nature has value in itself and that this should be expressed in the recognition of its own rights, regardless of the utility that nature may have for human beings. Article 71 of the Constitution expresses this in the following terms:

Nature or Pachamama, where life is reproduced and realized, has the right to full respect for its existence and the maintenance and regeneration of its vital cycles, structure, functions and evolutionary processes. (emphasis added)

43. It is a systemic perspective that protects natural processes for their own value. Thus, a river, a forest or other ecosystems are seen as life systems whose existence and biological processes merit the greatest possible legal protection that a Constitution can grant: the recognition of inherent rights to a subject. In the Ecuadorian case, there is a general recognition of rights of nature in the Constitution that — as expressed by the Court in Court Order No. 22-18-IN/21, referring to mangrove rights — can be concretized in specific holders; the specific recognition does not imply that recognition is necessary for protection, but rather helps to configure the protection in a manner appropriate to the specific holder of rights, in this case the Los Cedros Protected Forest.

44. In this regard, it is important to understand the ecological tolerance principle, which holds that natural systems can only function adaptively within an environment whose basic characteristics have not been altered beyond what is optimal for that system. This principle is closely related to the right to the existence and reproduction of cycles, for as an environment is modified, it becomes more and more difficult, and eventually, impossible, for the adaptive behavior of the ecosystem to function. For each particular characteristic of the environment (amount of rain, humidity, solar radiation, etc.) there are limits beyond which organisms can no longer grow, reproduce, and ultimately survive.¹⁸ Thus, when the ecological tolerance level is exceeded, it is impossible to exercise the right to reproduce life cycles. A protected forest can withstand an impact within certain limits, but beyond those it will lose its structure and be unable to continue exercising this right to reproduce its life cycles, as established in article 71 of the Constitution.

45. The cloud forest is one of several types of ecosystems in Ecuador, and is the ecosystem found in the Los Cedros Protected Forest. The Organic Environmental Code (hereinafter “COAm”) in its respective glossary defines an ecosystem as “a structural, functional and organizational unit, consisting of organisms and the biotic and abiotic environmental variables of a determined area”. In other words, an ecosystem is a community or group of organisms that live and interact in a given environment.¹⁹ This supposes that the ecosystem is defined not only by the interrelationships involved therein, but also by its biotic and abiotic components (sunlight, water, minerals and others).

46. The biotic component of the ecosystem is the species that constitute it. A species is defined as the set of organisms capable of interbreeding and producing fertile offspring, though not with members belonging to other species in a natural state.²⁰ Often, over geological time, individuals that separate from the original population and become isolated from the rest may reach a sufficient degree of differentiation to become a new species.²¹

47. A diverse ecosystem is considered to be one with a high number of interacting species. Biodiversity acts as a natural insurance for the ecosystem because it allows it to recover from the events that affect it. If there are several species that fulfill a similar function, such as feeding on plants, it is feasible that in the event that one of them decreases in population numbers due to natural catastrophes, the others can make up for this deficiency and the ecosystem will recover its stability.²² Both the species and biodiversity of ecosystems are intrinsically valued in the Ecuadorian Constitution.

48. The intrinsic valorization of nature through the recognition of rights is difficult to understand from a rigidly anthropocentric perspective, which conceives of human beings as the most valuable species, while reducing other species and nature itself to a set of objects or resources for the satisfaction of human needs, especially those of an economic character.

49. This vision of nature as a simple source of resources to be exploited at will has been deeply questioned from various perspectives of the natural and human sciences. The rights of nature represent this questioning in the world of law.

50. The intrinsic valorization of nature implies, therefore, a defined conception of the human being about himself, about nature, and about the relations between the two. According to this conception, the human being should not be the only subject of rights, nor the center of environmental protection. On the contrary, while recognizing specificities and differences, a complementarity is proposed between human beings, other species, and natural systems, given that,they integrate common life systems.

51. In this regard, this Constitutional Court highlights what was stated by the Inter-American Court of Human Rights (IACHR) regarding the objectives of environmental protection as stated in Advisory Opinion 23-17:

The aim is to protect nature and the environment not only because of their connection with a utility for human beings or because of the effects that their degradation could have on other human rights, such as health, life or personal integrity, but also because of their importance for the other living organisms with which the planet is shared, also deserving of protection in themselves.²³

52. This is a change in the legal paradigm because historically the law has functioned for the instrumentalization, appropriation and exploitation of nature as a mere natural resource. The rights of nature propose that in order to harmonize relationships with nature, it is the human being who must adequately adapt to natural processes and systems, hence the importance of having scientific knowledge and community knowledge, especially indigenous knowledge due to their relationship with nature regarding such processes and systems.

53. This adaptation must also occur within production processes. Indeed, the Constitution itself recognizes in Article 74 that “individuals, communities, peoples and nationalities shall have the right to benefit from the environment and natural resources that allow them to live well”.

54. In conclusion, the notion of the intrinsic valorization of nature is of particular relevance to the constitutional analysis regarding the rights of nature provided for in the Constitution. Since the petitioners claim in their lawsuit that the mining activity in Los Cedros would cause serious and irreversible damage to the species at risk which are present there and to the ecosystem as a whole, and invokes the precautionary principle to that effect, the Court will examine this constitutional principle.

Precaution and prevention

55. The essential idea of the precautionary principle is that, even in the absence of sufficient scientific evidence, it is better not to assume certain risks when these could result in serious damage, which may be irreversible.

56. In the underlying case, the GAD expressly invoked the precautionary principle contained in Article 73 of the Constitution in its complaint, so as to argue the violation of the rights of nature. This article states:

The State shall apply precautionary and restrictive measures for activities that may lead to the extinction of species, the destruction of ecosystems or the permanent alteration of natural cycles.

57. The respondents and in particular ENAMI EP, however, claim the precautionary principle does not apply in this case, since it already would have been observed precisely upon the granting of the respective environmental registration. Instead, there would be certainty about the environmental impacts of the mining activity and therefore the applicable principle in this case would be the prevention principle.

58. The Court observes that neither the trial judge nor the Provincial Court analyzed the precautionary principle or the prevention principle, even though that this was an express allegation of the GAD relevant to this case.

59. The Court considers it essential to elucidate in this case the scope of the precautionary principle because in its article 73, the Constitution applies the precautionary principle to the risk of species extinction and the destruction of ecosystems, considering both situations as violative of the aforementioned rights of nature, and to the full respect of its existence, maintenance and regeneration. All of these concepts are relevant to the case of Los Cedros.

60. According to Article 396 of the Constitution, the precautionary principle determines that “in case of doubt about the environmental impact of any action or omission, even if there is no scientific evidence of damage, the State shall adopt effective and timely Protected measures”.

61. Article 396 includes generic references to the basic components of the precautionary principle in relation to the rights of nature and to a healthy and ecologically balanced environment. More specifically, article 73 of the Constitution applies this principle to the extinction of species, the destruction of ecosystems, and the permanent alteration of natural cycles.

62. Based on these provisions in environmental legislation and constitutional law,²⁴ this Court develops the following elements of the precautionary principle:

1) The potential risk of serious and irreversible damage to the rights of nature, the right to water, to a healthy environment or to health. In order to apply the precautionary principle, it is not enough that a risk simply exists; it is necessary that this risk refers to serious and irreversible damage. Article 73 illustrates this situation well when referring to the extinction of species, destruction of ecosystems and permanent alteration of natural cycles, since all of these are damages so serious and irreversible that the Constitution has included them in the section on the rights of nature, considering them a violation of the same.

2) Scientific uncertainty about these negative consequences, either because they are still the subject of scientific debate, or because of lack of knowledge, or because of the difficulty of determining such consequences due to the high complexity or numerous variables involved. This is the fundamental characteristic of the precautionary principle, and what differentiates it from the prevention principle. Scientific uncertainty for the purposes of the precautionary principle consists of: lack of scientific certainty, which refers to relatively clear or possible effects of an activity or product, but without adequate evidence to assign probabilities²⁵, or ignorance, which refers to the lack of knowledge both of these probabilities and of some of the possible damages or effects. In contrast, the prevention principle applies only when both the effects and their probabilities are known in advance.²⁶

Examples of application of the precautionary principle include human contact with substances or materials such as lead or asbestos²⁷, about which for decades there was no scientific certainty, but only hypotheses of their negative effects on human health, which if precautionary measures had been adopted in a timely manner would have prevented serious illnesses and numerous deaths. It has also been applied to phenomena such as the depletion of the ozone layer,²⁸ the loss of biodiversity²⁹, climate change³⁰, genetically modified organisms³¹, or human exposure to electromagnetic radiation³², among many others. Although all or some of the potential harms or negative effects that these produce are known a priori, the specific cause-effect relationships between the activity or product and these harms have not been scientifically established, with established probabilities. This limitation of scientific knowledge may be due to the high complexity of a system or phenomenon. Scientific uncertainty may also be evidenced by unresolved scientific debates or absence or insufficiency of knowledge about these effects.

3) Adoption of timely and effective Protected measures by the State. When there is a risk of serious and irreversible damage, but also a corresponding uncertainty surrounding scientific knowledge, it is precisely due to this uncertainty that the State must not assume the risk and instead take certain measures in a timely and effective manner to avoid these possible negative effects.³³ In other words, when there is no scientific certainty about the impact or damage caused by an action or omission to nature, the environment, or human health, the State must adopt effective and timely measures to avoid, reduce, mitigate or cease such effects³⁴. Therefore, the precautionary principle favors, in the face of scientific uncertainty, the plausible hypothesis of the worst case scenario: serious and irreversible damage, even if this occurs in the long term. It should be clarified that the prohibition of a product or process is not the only Protected measure that may be adopted, although sucha prohibition may be justified if the potential harm is very serious and irreversible.

63. The precautionary principle differs from the prevention principle in that the latter is applied when there is scientific certainty about the impact or harm, that is, when both the effects and their probabilities are known in advance. In terms of article 396 of the Constitution, “The State shall adopt appropriate policies and measures to avoid negative environmental impacts, when there is certainty of damage”. In other words, the prevention principle entails the State’s obligation to demand compliance with provisions, norms, procedures and measures aimed primarily at eliminating, avoiding, reducing, mitigating and ceasing the impact.³⁵

64. Consequently, Article 73 of the Constitution, concerning precaution in the fact of the risk of species extinction and destruction or serious disruption of ecosystems, constitutes a principle of application of the rights of nature, which is complemented by Article 396 of the Constitution.

65. Article 73 also establishes a duty of the State by imperatively stating that it “shall apply precautionary and restrictive measures”. This is not a conditional power or option, but a constitutional obligation derived from the intrinsic value that the Constitution places on the existence of species and ecosystems through the rights of nature. In effect, the risk in this case does not necessarily relate to the effects on human beings, although they may be included, but rather to the extinction of species, destruction of ecosystems or permanent alteration of natural cycles or other types of serious or irreversible damage to nature, independently of such effects³⁶.

66. It should be emphasized that according to article 396 of the Constitution, precautionary and restrictive measures must be effective and timely. They are effective insofar as they actually fulfill, in a material and not only formalistic sense, the objective of avoiding the violation of the rights of nature implied by the extinction of species or destruction of ecosystems. They are timely insofar as they are announced and complied with immediately, and applied in time, such that they meet the protection objectives.

67. Application of the precautionary principle by constitutional judges must be determined on a case-by-case basis, taking into account the individual and concrete characteristics of the case, the existence of a risk of serious and irreversible damage, as well as scientific uncertainty. This uncertainty refers to the debate still existing in the scientific community about the harm generated by an activity or product, or to insufficient scientific knowledge on the issue. Therefore, these judges, even if there is no conclusive scientific information, but availing themselves of the available scientific and technical information, should identify and analyze the risk of serious and irreversible damage due to the development of an activity or a product in order to duly substantiate in each case the application or non-application of the precautionary principle.

On the extinction of species and destruction of ecosystems

68. A violation of the right of nature to the full respect for its existence occurs through activities that lead to the extinction of species. This is a violation of such magnitude that it would be equivalent to what genocide means and implies in the field of human rights. Once a species is extinct, the laborious process that has taken nature sometimes millions of years results in an irreparable loss of diversity and knowledge. Article 73 of the Constitution applies the precautionary principle to these cases precisely due to the serious and irreversible nature of harm occasioned by the extinction of species.

69. Likewise, given the systemic relationships that all animal and plant species maintain, the disappearance of one or more of them can lead to the extinction of others, or even the destruction of entire ecosystems or the permanent alteration of natural cycles referred to in the same article 73 of the Constitution. This destruction or alteration could also be generated for reasons other than the extinction of species, but the Court wishes to emphasize here the systemic nature of these phenomena. Furthermore, these violations to the rights of nature may have unsuspected negative effects on human beings, which would also violate other rights, such as the right to water and to a healthy environment, as analyzed below in this opinion.

70. In order to analyze the situation of these rights of nature and the application of the precautionary principle in the case of the Los Cedros Protected Forest, the Court first sets forth a description of this ecosystem based on the scientific information received during the verified evidentiary proceedings of this case, including the endemic, threatened, unique and rare species present in the ecosystem.

Los Cedros is a remnant ecosystem of the northwestern forests of Ecuador

71. Various researchers have pointed out that, in the last fifty years, Ecuador has lost almost all of its vegetative cover. In the year 2000, it was estimated that approximately 96% of the old-growth forest land in the west of the country had been deforested. Much of the remaining 4% has since been lost. Both low altitude forests (below 600 mamsl) and mountain forests, including cloud forests, typical of the foothills, have almost disappeared.³⁷

72. For further context, in 1938, in an area of approximately 70,000 km² of the Ecuadorian coast, about 60,000 km² of forests existed.³⁸ Today, the largest remnants of forest in the region, which together total less than 5,000 km², are only four in number: the Awa Ethnic Reserve (Awa), the Mache Chindul Ecological Reserve, the Chongón Colonche Protected Forest, and the Cotacachi Cayapas National Park. Only two, the Awa Ethnic Reserve and Cotacachi Cayapas National Park, maintain remnant cloud forest protected areas. These forest types, as life zones, have been poorly represented within the National System of Protected Areas.³⁹ Los Cedros, with its 6,400 hectares, is one of the last remnants of western cloud forest that remains relatively unaltered.

Los Cedros is an ecosystem at the confluence of two regions of high diversity: the tropical Andes and the Chocó Bioregion

73. Two high biodiversity zones converge in Los Cedros: the Tropical Andes Bioregion and the Chocó Bioregion.⁴⁰ Biological diversity is a measure of the genetic richness (wealth of genetic information) of a given life zone. The higher the number of species that inhabit a place, the greater its biodiversity.⁴¹

74. The Andes in Ecuador are biodiverse because in addition to being in the world’s equatorial zone, which is home to tropical rainforests such as the Amazon, they are mountains of more than 4000 meters. These two characteristics are exceptional and only occur in the north, in Colombia and Venezuela, and in the south, in some areas of Bolivia and Peru, and in the northernmost regions of Argentina and Chile⁴².

75. The Chocó Bioregion extends from eastern Panama along the Pacific coast of Colombia and the Ecuadorian coastline to border the dry forests of southern Ecuador. Its extremely high levels of precipitation and humidity (3,000 to 11,000 mm per year)⁴³, its tropical condition, its unique geological history and its isolation (being separated from the Amazon basin by the barrier of the Andes mountains) have made the Chocó one of the 34 most diverse places in the world as it gathers 3% of the total number of plant species on the planet, that is some 11,000 species in less than 0.2 of the earth’s surface.⁴⁴

76. Biodiversity also includes the concept of endemism. A species is endemic when it is only found in a certain geographical area (province, region, country or continent) due to the presence of natural barriers (rivers, mountains, canyons, oceans, etc.) that prevent populations of that species from interbreeding or reproducing with other populations of the same species. By limiting the crossing of genetic information over long periods of time, the endemic species becomes so differentiated that it is no longer possible for it to interbreed with the original species. This is the case of island species such as Galapagos or Hawaii, which originally descended from continental species but are now endemic.

77. Scientific studies indicate that the Chocó is also a center of endemism. There, approximately 2,750 plants are endemic.⁴⁵

Los Cedros is an ecosystem with endemic species.

78. Los Cedros is not accessible by road and is one of the most remote forests in the northwest. It is this inaccessibility that has kept the Los Cedros Protected Forest almost intact, but it has also meant that it has been less scientifically⁴⁶ explored than other remnants of forest in the region, such as the Mashpi and Maquipucuna reserves.

79. Many plants in this forest are local endemics with small distribution⁴⁷ ranges. This means that due to a special combination of microclimate barriers and/or rugged relief within the forest, populations of a given species are less able to cross the barrier and reproduce with other similar populations of the same species. Over time, said population becomes increasingly isolated and in turn differentiates from its original population until it finally becomes a new species limited to areas as small as, for example, the western side of a ravine, the top of a hill, or the edges of a seasonally flooded area and is not in any other part of that same forest, thus becoming a local endemic. This makes them particularly vulnerable to disturbances such as earthquakes, floods and changes in land use⁴⁸.

80. This seems to be the case within the orchid group⁴⁹, about which verified information has been documented, and a record of 236 species identified. According to the catalog of the Los Cedros Reserve, there are twelve endemic species in this forest.⁵⁰ Of these welve species, nine have been confirmed as endemic by studies carried out by specialists in the taxonomy of this group of plants. These are: Brachionidium ingramii, Dracula morleyii, Dracula pubescens, Lepanthes morleyii, Platystele gaileana, Platystele cedriendsis, Platystele rhinocera, Porroglossum lorenae, Trisetella dalstroemii.⁵¹

81. Studies are needed to determine an approximate total number of endemic species by taxon (family, genus, etc.) in Los Cedros. However, when considering that 27% of the total number of plants in Ecuador are endemic,⁵² and that this forest is part of the Chocó where approximately 25% of plant species are endemic,⁵³ it is reasonable to infer high levels of endemism in the organisms that inhabit the vegetative cover.

Los Cedros is an ecosystem with a high number of endangered species

82. Extinction is a biological process that leads to the disappearance of species. A species is considered extinct when its last specimen dies. Extinction is certain when there is no longer any individual capable of reproducing and giving rise to a new generation. A species can also become functionally extinct, that is, a very small fraction of its members survive but are unable to reproduce due to factors such as health problems, age, great geographic distance between their remaining populations, lack of individuals of both sexes, and other reasons.⁵⁴

83. A species may also become locally extinct. In this case, the species in question ceases to exist in a given area but continues to exist elsewhere. This phenomenon is also known as extirpation. An example of a local extinction or extirpation in Ecuador is that of the tawny-throated dotterel (Oreopholus ruficollis), a bird that once inhabited the southwestern Santa Elena Peninsula but is now currently considered extinct in the country, although it still inhabits areas from Peru to Argentina.⁵⁵ As a result of industrial development and human population growth, it has been seen that local extinctions of a given species can lead to total extinction of the species.⁵⁶

84. Because of the number of relationships that a species establishes with other species in the ecosystem, its extinction can lead to what is known as an extinction chain. In this case, the disappearance of a single species can cause extinctions both up and down the food chain of which it is a part.⁵⁷

85. The International Union for Conservation of Nature (IUCN)⁵⁸ has established several categories that assess the probability that a known species will disappear. These are, from greatest to least risk of extinction: i) EX, extinct species, ii) EW, extinct in the wild, iii) CR, critically endangered, iv) EN, endangered, v) VU, vulnerable, vi) NT, near threatened, vii) LC, least concern for this species.

86. According to the IUCN, there are two species of mammals at maximum risk of extinction in Los Cedros, level CR. These two species are the jaguar (Panthera onca) and the brown-headed spider monkey (Ateles fusciceps fusciceps).

87. With respect to the jaguar, studies in 2013⁵⁹ have shown that the species has been practically extirpated from the lowland tropical forests of the northwestern part of the country due to habitat loss and the need for large territories for breeding.⁶⁰ Its presence has only been recorded in Cotacachi Cayapas⁶¹ National Park, and in Los Cedros, less than five kilometers from the Mandariacu River.⁶²

88. The case of the brown-headed spider monkey is similar. Only two populations have been recorded in the northwestern part of the country. One within the Awa Ethnic Reserve and the other within the Cotacachi Cayapas National Park.⁶³

89. In addition, Los Cedros protects a considerable extension of the south face of the Toisán mountain range where, due to its inaccessibility, it is likely that populations of threatened birds can take refuge and thrive. Among these birds, Quito’s flagship species, the black-breasted puffleg (Eriocnemis nigrivestris) is critically endangered on both the IUCN list and Ecuador’s⁶⁴ red list of birds. The original habitat of this bird included the montane forests that extended to the northwest of Pichincha, Esmeraldas and Imbabura. Having disappeared, and with very few records of it, this bird was thought to have been extirpated from its habitat but in 2008 a small population (48-108 individuals) was rediscovered at Cayapachupa in the Toisán mountain range on the border between Esmeraldas and Imbabura⁶⁵.

90. Other notable mammals in varying degrees of threat that have been reported in Los Cedros include the spectacled bear Tremarctos ornatus (VU), two species of felines: the margay Leopardus wiedii (NT) and the oncilla Leopardus tigrinus (VU), and two other primate species, the white-faced capuchin Cebus capucinus (VU) and the mantled howler monkey Alouatta paliatta (EN).⁶⁶

91. The category of birds consists of 309 species recorded at Los Cedros, of which 26 face varying degrees of threat.⁶⁷ Of particular importance are the iconic long-wattled umbrella bird Cephalopterus penduliger, the banded ground cuckoo Neomorphus radiolosus and the baudo guan Penelope ortoni. The first two are in the vulnerable category (VU) and the third in the threatened category (EN).⁶⁸ These three birds can still be seen within Los Cedros.⁶⁹

92. In 2005, the non-governmental organization Birdlife International declared the Los Cedros Protected Forest an “Important Bird Area” (IBA).⁷⁰

93. These forests also host several species of threatened migratory birds that depend on sufficient available forest habitat to arrive after their long journeys to escape winter in Canada and the United States, such as the cerulean warbler Setophaga cerulean (IUCN category VU) and the olive-sided flycatcher Contopus cooperi (IUCN category Near Threatened - NT).⁷¹

94. The category of toads is very important because worldwide their species are suffering a significant decline due to the influence of global warming on their populations. In Los Cedros, almost all species are threatened and are only found within Los Cedros and in nearby local cloud forests (Mashpi, Maquipucuna). There are three Critically Endangered (CR) species: the longnose stubfoot toad Atelopus longirostris, the confusing rocket frog Ectopoglossus confusus and the Quito rocket frog Hyloxalus jacobuspetersi.⁷²

95. Reptiles and bats still need to be systematically evaluated in terms of their threat categories and to confirm the species present in the forest, especially bats, given that little is known about them. ⁷³

96. The threatened plants include two species of orchids, Dracula alcithoe and Masdevallia ventricularia, both of which are in the IUCN⁷⁴ EN category, as well as nine additional species, all endemic to Ecuador and in the IUCN EN category, five of which are tree species, three of which are herbaceous, and one fern.⁷⁵

97. The microorganisms studied at Los Cedros are mainly fungi that decompose organic matter, including four species that are listed in a recent IUCN initiative to identify species of this group that may disappear. These four species of fungi are: Lamelloporus americanus, Hygrocybe aphylla, Tamnomyces chocoensis, and Callistodermatium aurantium. All of these have been collected in Los Cedros.⁷⁶

Los Cedros is an ecosystem with unique and rare species

98. In 2018, a comparative study was published examining species occurrence in the few remaining remnants of northwestern montane cloud forest, such as the Mashpi and Maquipucuna Reserves, Los Cedros and the Intag Valley. Of the four localities studied, only in Los Cedros were 157 species identified as unique, that is to say they were not found in any of the other study sites. Of these, 106 are orchids, 33 are birds, 7 are mammals, 7 are reptiles and 4 are amphibians.⁷⁷

99. Advances in technology have also allowed the use of camera traps to study wildlife. Thanks to this and other novel remote viewing systems at Los Cedros several rarely observed animal species have been recorded, including: the Mountain Lion (Puma concolor), the jaguarundi (Herpailurus yagouaroundi), the very rare northern nakedtailed armadillo (Cabassous centralis), the nine-banded armadillo (Dasypus novemcinctus), the little red brocket (Mazama rufina), the lowland paca (Cuniculus paca), the agouti (Dasyprocta punctata), and the rare western dwarf squirrel (Microsciurus mimulus).⁷⁸ Several of these animals are nocturnal and due to the difficulties inherent to their study, the status of their populations has not been evaluated or updated in the cloud forest remnants of the northwest.

Los Cedros is an ecosystem with a rich and unknown genetic heritage

100. The gene pool or genetic heritage of an ecosystem can be defined as the totality of genes present in each and every one of the organisms that inhabit it. In recent years several new species have been discovered in Los Cedros. The following can be mentioned:

101. In 2015, a frog was discovered and named Pristimantis mutabilis. This amphibian has a high capacity to modify the texture of its skin as it can change its appearance from smooth to granular in a few minutes.⁷⁹ Also, in this group and in the same year, biomolecular techniques were used to identify two new species of toads (Pristimantis cedros and P. pahuma), which were originally believed to be a single species. This study concluded that it is very likely that there are many more species of this type that are referred to as cryptic species and that therefore the increase in biodiversity and the conservation status of these species needs to be evaluated.⁸⁰

102. Other new species exist within the group of begonias⁸¹ and the Sabiaceae family (Meliosma gracilis)⁸² that would have ornamental and medicinal applications. Among the Solanaceae, in Los Cedros, a species of Cuatresia has been discovered: C. physalana, which could have agricultural and/or pharmaceutical value due to its relationship with potatoes and tomatoes, since it is known that members of this genus have antimalarial compounds in their cells.⁸³

103. In the plant group, orchids have made contributions such as the discovery of two new species of the Platystele genus: P. cedriensis and P. decouxii.⁸⁴ In Los Cedros it has been proven that in addition to contributing new species, each orchid species can be a center of biodiversity in itself, expanding the richness of the gene pool of the area. This happens because orchids are highly specialized organisms that establish multiple and complex ecological relationships with other organisms in their microecosystem such as the pollinators that visit them. One study found that more than 60 unknown species of fruit flies pollinate a single species of orchid (Dracula lafleurii)⁸⁵. These new fly species are related to Drosophila melanogaster, a model fruit fly, which has contributed immensely to the knowledge and development of molecular genetics and neurobiology.⁸⁶

104. Another important potential is found in the decomposer fungi species of Los Cedros. These organisms, with their ability to transform substances into their simplest components, are currently being used in the field of bioremediation. Some of these organisms are being used to process oil spills, decomposition of plastic substances, and other pollutants⁸⁷. In Los Cedros several studies have been carried out in this field and some 300 genera belonging to 81 fungal families have been collected, among which there are undescribed species whose ecology is unknown”.⁸⁸ This figure supposes a very high biodiversity in terms of gene pool.

105. Additionally, the trichoptera or caddisflies, a group of aquatic insects that populate the waters of forest ecosystems, must be mentioned. They are usually collected as larvae in streams to determine the state of health of the ecosystem because they are very sensitive to the presence of foreign substances. A great diversity in this group assumes unpolluted waters. Their usefulness, then, is to be bioindicators, but in addition, their larvae make a type of silk fiber with which they form a waterproof cocoon that protects them during their metamorphosis to the adult stage. Due to current biotechnology, genes taken from organisms such as spiders have led to the development of fibers with exceptional flexibility, strength and light weight.⁸⁹ In Los Cedros, after three nights of collection, 40 species were found, of which more than a third, roughly 15, are likely new to science.⁹⁰ Considering that trichoptera is only one of the 11 macroinvertebrate groups in the region⁹¹, the potential number of new species at Los Cedros is high.

Los Cedros is a buffer zone that protects the Cotacachi Cayapas National Park from the “edge effect”

106. In the area where Los Cedros has been deforested to make way for crops, pastures or human settlements, an ecological condition called the “edge effect” is experienced. This term is used to refer to the boundaries created between a natural environment and one artificially generated by humans. The edge of the forest that is exposed by logging begins to dry out, both because it no longer maintains the equilibrium of humidity that previously existed, and due to the entry of more sunlight. This makes forests more susceptible to fires and to the invasion of alien species that compete with native species and can displace them.⁹²

107. Additionally, since the border is closer to roads and thoroughfares, it is more likely that logging will continue and the agricultural frontier will advance, slowly but progressively diminishing the vegetative cover.

108. Los Cedros provides protection for the western edge of Cotacachi-Cayapas National Park. Long before it was declared a Protected forest in 1994, the forest has served as an area that received the brunt of the harmful effects of illegal logging on its perimeter, hereby allowing the western zone of Cotacachi-Cayapas National Park to be preserved.

109. In fact, within Los Cedros there are three areas of illegal encroachment. They were detected in 2005 by the forest’s administration and communicated to the entities in charge of the forest’s control.⁹³ In addition to being a buffer zone for the national park, Los Cedros is a barrier to land invasion into the park as well.

Los Cedros is an ecosystem that is a corridor for biodiversity

110. Species present in the forest such as birds and mammals, insects and others require mobility to fulfill their basic functions such as reproduction and foraging. Plants and fungi, in turn, require territory to disperse and expand their range. As human actions diminish the areas they previously inhabited, it has become necessary to establish areas called biodiversity corridors, that is, protected areas that are at least large enough for animal and plant populations to move through them and maintain ecological viability.

111. Los Cedros is a corridor that connects with the Awá Ethnic Reserve to the northwest, and with the Mashpi and Maquipucuna reserves to the southwest. In addition, the link between Los Cedros and the Cotacachi Cayapas National Park is essential for the ecological functioning of western corridors such as the Andean Bear Corridor, the Chocó Corridor, and the recently proposed Northwestern Biosphere Reserve.⁹⁴

5.1 Precautionary Principle and the Los Cedros Protected Forest

112. Once the biodiversity present in the Los Cedros Protected Forest has been described, it is necessary to analyze whether or not the constitutional precautionary principle is applicable in the underlying case, taking into account the allegation of the GAD. The Court considers that, taking as a basis the relevant constitutional and legal provisions previously mentioned, the precautionary principle implies the identification of at least the following elements:

i) The potential risk of serious or irreversible damage that a product or the development of an activity may have on the rights of nature, the right to water, the right to a healthy environment, and the right to health.

ii) Scientific uncertainty about these negative consequences, either because they are still the subject of scientific debate, due to lack of knowledge, or because of the difficulty of determining such consequences due to the high complexity or numerous variables involved.

iii) The adoption of effective and timely Protected measures by the State. Faced with the risk of serious and irreversible damage for which we have no scientific certainty, measures should be adopted that best protect the rights of nature, water, a healthy environment and health.

113. Additionally, an environmental consultation is a participatory mechanism that can contribute in certain cases to the application of the precautionary principle. For example, the adoption of effective Protected measures may arise from the consultation, or the consultation may help to identify risks. This aspect will be reviewed in greater detail below when analyzing the environmental consultation.

114. The Court also clarifies and emphasizes that the application of the precautionary principle must always be carried out in a reasonable and proportional manner, that is to say, only when the effective concurrence of the aforementioned elements is effectively established, and under a careful and motivated analysis of each individual case, considering its specificities and concrete characteristics.

115. The Court now proceeds to examine the risk of serious and irreversible damage, the scientific uncertainty, and the adoption of effective and timely measures to determine whether the application of the constitutional precautionary principle to the species and biodiversity existing in Los Cedros is appropriate. It is important to note that the scientific information presented here deals exclusively with the biodiversity and hydraulic importance of Los Cedros, but not with the effects that mining activity would have on this Protected forest. There are no technical studies on the latter issue, which contributes to the element of scientific uncertainty inherent in the precautionary principle, as will be discussed below.

5.1.1. The risk of serious and irreversible damage that a product or the development of an activity may have on the rights of nature, the right to water, to a healthy environment or to health

116. The GAD, upon invoking articles 71 and 73 of the Constitution, has asserted that the extractive activity of metallic mining in Los Cedros violates nature's right to an integral existence by causing the extinction of species. Likewise, mining activity in Los Cedros would violate nature’s right to maintain and regenerate its vital cycles, structure, functions, and evolutionary processes. This right is violated by destroying the ecosystem or causing permanent alteration of the natural cycles of this forest.

117. On the other hand, the respondents claim that mining activity in this Protected forest can be carried out adequately because it would be possible to avoid, reduce, mitigate, and cease the environmental impact of mining activity by complying with the norms and measures established by the State. The following table shows the 178 species known to inhabit Los Cedros that are at high risk of extinction as of March 2018.

Table 1 Species at Risk of Extinction in Los Cedros

Group	(CR)	(EN)	(VU)	(NT)
Orchidsᵃ	0	2	57	12
Birds	0	4	9	13
Mammalsᵇ	2	2	9	4
Reptiles	0	1	3	8
Amphibians	0	6	4	5
Other plantsᶜ	0	9	17	11
TOTAL	2	24	99	53

1. There is no exact translation for “Acción de Protección” in English for the Anglo tradition of common law, since the action is presented in Ecuador under the Latin tradition of civil law. The literal translation is Protection Action. However, this text will use the nearest translation that is “Action of Injunctive Relieve”. It must be noted, however, that it is an action for Constitutional Rights.

2. The hearing was attended by the GAD of Santa Ana de Cotacachi, Mayor Auki Tituaña Males, attorney José Proaño, attorney for the GAD of Santa Ana de Cotacachi, and attorney Jhesica Almeida Herrera, in their capacity as petitioners; and on behalf of the respondents, attorney Pablo López Vaca, Director of Judicial Sponsorship and attorney Juan Andrés Delgado Garrido, General Director of Legal Counsel of the Ministry of Environment, Water and Ecological Transition; and on the National Mining Company, the director of legal counsel, attorney Luis Araque. For the Attorney General’s Office, attorney Karola Samaniego Tello; for the Ministry of Energy and Non-Renewable Natural Resources, attorney Eduardo Andrés Chang; for the Ombudsman’s Office of Ecuador, Mélida Pumalpa and Javier Morales. As interested third parties to the case, attorney Xavier Andrade Cadena, representing the company Cornerstone Ecuador S.A. As amicus curiae: Bitty A. Roy, professor emerita of the University of Oregon; Dr. Andrew Roo Vandegrift, for the Institute of Ecology and Evolution; Daniel Thomas, professor at Whitman College; Merlin Tuttle, Merlin Tuttle’s Bat Conservation; Linda D’Amico, Winona State University; Elisa Levy, scientific research coordinator for the Los Cedros Research Station; Tobias Policha, Department of Biology, University of Oregon; Luis Baquero, researcher specializing in orchids; Blanca Ríos Touma, member of the Academy of Sciences of Ecuador and Research Group on Environment, Biodiversity and Health -- UDLA; Dr. Mika Peck, University of Sussex; Rafael E Cárdenas, Faculty of Exact and Natural Sciences of PUCE; Phd. Juan Manuel Guayasamín, USFQ; Sarah Jane Wilson, University of Victoria; Osman Poma Jumbo, geologist for Conerstone Ecuador S.A; Juan Carlos Valarezo, Executive Director for Aves y Conservación Ecuador; Inty Arcos, Biologist Mancomunidad Chocó Andino-Ecuador; Alejandro Olivera, Centro para la Diversidad Biológica, La Paz, MX; Citlalli Morelos Juárez, Fundación Jocotoco; Sebastán Kohn, Fundación Cóndor Andino del Ecuador; Ab. Juan Francisco Guerrero, for the Chamber of Mines of Ecuador; Natalia Greene López, Earth Law Center, Global Alliance for the Rights of Nature and others; Fernando Benalcázar Saavedra, consultant in non-renewable natural resources; Ab. Emilio Suárez Salazar, for the company Inv Minerales Ecuador S.A; Esperanza Martínez Yánez, auditor and environmental biologist; Roberto Paz y Miño and Agustín Zambrano Albuja for the Chamber of Industries and Production; Ab. Patricia Carrión for the Ecumenical Human Rights Commission; César Zumárraga, legal attorney Ecuasolid S.A.; Mónica Feria- Tinta, attorney and member of the bar of England and Wales; Oscar Vela, legal attorney for Valle Rico Resources S.A and Green Rock Resources S.A; Elizabeth Bravo, PhD, Fundación pro Defensa de la Naturaleza y sus derechos; Ab. Andrés Larrea, Condormining Corporation S.A.; Ab. David Cordero Heredia and Ab. José Valenzuela, Centro de Derechos Humanos de la PUCE; Ab. José David Ortiz for Exploraciones Mineras Andinas Ecuador S.A; Viviana Morales on her own behalf; Ab. Santiago Yépez for Goldminez S.A.; Daniela Sánchez and María Paula Marroquín for the Observatorio de Derechos y Justicia; Ab. Carlos Andrés Izquierdo for the Observatorio de Derecho Minero Constitucional; Jorge Acero for Amazon Frontlines; Juan Carlos Herrera and Alejandra Soriano, Compañía Cóndor Gold S.A.; Dr. Hugo Echeverría, Center for Democratic and Environmental Rights; Alberto Acosta on his own behalf; Ab. Andrés Ycaza Palacios for the company Toachiec Exploraciones Mineras S.A.; environmentalist and solutionist; María Isabel Aillón, Women in Minnig [sic] Ecuador; Angel Almeida Vallejos, community leader for the García Moreno parish; Felipe Alfonso Cortes, Washu project director; attorney Gabriela Obando Balseca, on her own behalf; Ab. Verónica Potes, university professor; José Cueva Vera, agronomist for the Observatorio Social y Ambiental del Norte del Ecuador; Mery Almeida, President Comuna Brillasol; Nicholas Peter Shear, director of the Asociación de Propietarios de Tierras Rurales; Edwin Lomas López, Comuna El Paraíso; Tatiana Rivadeneira Cabezas, Movimiento Animalista Nacional; Digna del Carmen Espinoza, ASOPROARTE workers; Luis Fernando González Leiva, Comité Ecoturístico Comunitario Manduriacos; Ab. Edgar Merlo, Cielo Verde community; Olger Tabango, Comuna Magdalena Alto; Ab. Fred Larreátegui for CEDENMA; Julio Cabezas member of the Magdalena community; attorney Francisco Hurtado Caicedo on his own behalf.

3. It is hereby stated for the record that Constitutional Judge Teresa Nuques Martínez approved the draft opinion in Case No. 1149-19-JP, with the intent that it may proceed forward and be made known to the Plenary of this Court, without prejudice to the observations made therein, particularly in the section constituting the decision in the presented draft opinion.

4. Constitutional Court of Ecuador, Opinion No. 159-11-JH, para. 11.

5. Ministerial Agreement 57 of INEFAN published in Official Gazette No. 620 of January 26, 1995.

6. ECOLEX-MAE. 2015 Final Report. Determinar la factibilidad de la ampliación, desarrollo del plan de manejo e identificar la tenencia de la tierra del Bosque Protector Los Cedros.

7. Ibid.

8. Various authors, Enciclopedia del Ecuador, Barcelona, Editorial Océano, n.d. p. 93 and following.

9. Jørgensen, P. León-Yánez, S. 1999. Catalogue of the Vascular Plants of Ecuador. 3 January, 2012: Missouri Botanical Garden Press. In Roy, et al. 2018 New Mining Concessions Could Severely Decrease Biodiversity and Ecosystem Services in Ecuador. Tropical Conservation Science Vol. 11: 1-20.

10. Roy, B., Zorrilla, M., Endara, L., Thomas, D., Vandegrift, R., Rubenstein, J., Policha, T., Ríos-Touma, B., Read, M., 2018. New Mining Concessions Could Severely Decrease Biodiversity and Ecosystem Services in Ecuador. Tropical Conservation Science Vol. 11: 1-20.

11. Pursuant to Article 30 of the Mining Law, a mining concession is an administrative act that grants a mining title over which the holder has a personal right, which is transferable in accordance with legal regulations. According to Article 31 of the same law, the mining title confers to the holder the exclusive right to prospect, explore, exploit, benefit, smelt, refine, commercialize and dispose of all mineral substances that may exist and be obtained in the area of said concession.

12. This environmental registration would have been based on Articles 16, 66.14, 276.3 of the Constitution, Articles 19 and 20 of the Environmental Management Law, Articles 12, 14 and 24 of Ministerial Agreement 061, enacted April 7, 2015 of the then-existing Ministry of Environment, and Article 1 of Ministerial Agreement 026 enacted March 17, 2016, of the same Ministry.

13. The GAD requested the repeal of Resolution No. 225741, dated December 12, 2017, issued by the Ministry of Environment granting the environmental registration for the initial exploration phase of mining concession No. MAERA 2017-3159921 Río Magdalena Mining Project, consisting of the Río Magdalena 01 (Code: 40000339) and Río Magdalena 02 (Code: 40000340) concessions, located in Cotacachi canton, Imbabura province, as well as the repeal of the approval for the impact study and environmental management plan of the National Mining Company.

14. In the opinion issued by the Provincial Court of Justice of Imbabura on June 19, 2019, the right to participation is determined to have been violated as follows: “Whereas it is hereby declared as having been violated the right of participation, established in Article 61, paragraph 4, of the Ecuadorian Constitution, guaranteeing the environmental consultation established in Article 398 ibidem, and which should have been carried out with the communities located in the area impacted by the Río Magdalena Mining Project, consisting of the concessions Río Magdalena 01 (Code: 40000339) and Río Magdalena 02 (Code: 40000340), located within the “Los Cedros” Protected Forest, Llurimagua sector, García Moreno parish, Cotacachi canton, Imbabura province”.

15. The case has been assigned case no. 2436-19-EP. It should be noted this Court has resolved appeals while other related constitutional proceedings have been pending, such as in case no. 983-18-JP/21 regarding the extraordinary action of protection no. 84-21-EP, and case no. 41-20-IS in relation to case no. 711-20-JP/21.

16. Article 277, paragraph 1 of the Constitution states: “For the attainment of right living, general duties of the State shall be: 1. Guaranteeing the rights of persons, collectivities and nature”.

17. Article 11, paragraph 5 of the Constitution. Article 395, paragraph 4 of the Constitution also establishes that when in doubt, environmental legislation should be interpreted in the sense most favorable to the protection of nature.

18. See court orders in Case No. 1-16-PJO-CC, from March 22, 2016 Case No. 989-11-EP/19 from September 10, 2019; and Case No. 16-16-JC/20, from September 30, 2020.

19. Goldsmith, E., 1993. The Way. An ecological World-view. Shambhala Publications, Inc. Boston.

20. Fundación Multimedios Ambiente Ecológico. (n.d). Ecological Dictionary. Reviewed in 2021: http://www.ambiente-ecologico.com/ediciones/diccionarioEcologico/diccionarioEcologico.php3

21. UN Glossary of Environmental Statistics. Department for Economic and Social Information and Policy Analysis. Statistics Division. p. 69.

22. Understanding Evolution. (n.d.). Reproductive Isolation. Reviewed at: https://evolution.berkeley.edu/evolibrary/article/0_0_0/evo_44_sp

23. Vargas Ríos Orlando. 2011. Ecological Restoration: Biodiversity and conservation. Colombian Biological Act. National University of Colombia. Bogotá. Vol 16, No. 221-2462.

24. IACHR Court, Advisory Opinion 23-17 on Environment and Human Rights, para. 62. In the same line: IACHR Court, Case of indigenous communities members of the Lhaka Honhat Association (Nuestra Tierra) vs Argentina. Judgment of February 6, 2020, especially para. 203.

25. The precautionary principle is included in numerous international instruments, such as: The Rio Declaration in its Principle 15, the Framework Convention on Climate Change in its Principle 3, the Cartagena Protocol on Biosafety to the Convention on Biological Diversity in Article 1, the WTO Agreement on Sanitary and Phytosanitary Measures, Article 5, the Agreement on the Conservation and Management of Straddling and Highly Migratory Fish Stocks in Article 6, among many others.

26. “Possibility” is that which may or may not happen; “probability” is a statistical quantification of possibility.

27. Holdway Aaron, Reducing Uncertainty: The Need to Clarify the Key Elements of the Precautionary Principle, Consilience, (20081), pp. 37-51.

28. UNESCO - COMEST, Report of the Group of Experts on the Precautionary Principle, Paris, UNESCO, 2005, pages 10 and 11.

29. Montreal Protocol on Substances that Deplete the Ozone Layer (1987)

30. Rio Convention on Biological Diversity, principle 15 (1992).

31. United Nations Framework Convention on Climate Change, article 3 (1994)

32. Cartagena Protocol on Biosafety to the Convention on Biological Diversity, article 1 (2000)

33. Bourguignon Didier, The Precautionary Principle, European Parliamentary Research Service, December 2015 - PE 573.876

34. Other possible measures include suspension, providing information about the risk, and conducting studies, amongst others.

35. Organic Environmental Code, article 9, paragraph 7.

36. Organic Environmental Code, article 9, paragraph 8.

37. A close relationship between the precautionary principle and the intrinsic valorization of nature is made in Advisory Opinion 23-17 of the IACHR Court, when it states: “the right to a healthy environment as an autonomous right, unlike other rights, protects the components of the environment, such as forests, rivers, seas and others, as legal interests in themselves, even in the absence of certainty or evidence of risk to individual persons”.

38. Myers, N, Mittermeier, R. Mittermeyer, C. da Fonseca, G. and Kent, J. 2000. Biodiversity hotspots for conservation priorities. Nature, vol. 403, 853-858.

39. Dodson, C. Gentry. A. 1991. Biological Extinction in Western Ecuador. Ann Mo Bot Gard. vol. 78, 273-95.

40. Endara L., Williams N. León-Yánez, S. 2009. Patterns of endemism of Ecuadorian endemic orchids: perspectives and priorities for conservation. In: Pridgeon, A. M. Suarez J.P (Eds). Proceedings of the Second Scientific Conference on Andean Orchids. Universidad Técnica Particular de Loja, Loja, Ecuador, 63-70.

41. Roy, B. Zorrilla, M. Endara, L. Thomas, D. Vandegrift, R. Rubenstein, J. Policha, T. Rios-Touma, B. Read, M., 2018. New Mining Concessions Could Severely Decrease Biodiversity and Ecosystem Services in Ecuador. Tropical Conservation Science, vol. 11, 1-20.

42. BYJU’S. n.d. Biodiversity and its types - Genetic Biodiversity. Retrieved from: https://byjus.com/biology/biodiversity/

43. Cuesta, F. Peralvo, M. Valarezo, N. 2009. The Montane Forests of the Tropical Andes. A regional assessment of their conservation status and vulnerability to the effects of climate change. Serie Investigación y Sistematización # 5. Programa Regional ECOBONA-INTERCOOPERACION. Quito.

44. Gentry A. H. 1986. Species richness and floristic composition of Chocó region plant communities. Caldasia, vol. 15, 71-75.

45. Christenhusz M. J., Fay M. F., Chase M. W. (2017). Plants of the world: an illustrated encyclopedia of vascular plants. London: Kew Publishing, 792 p. 10.

46. Mittermeier R. A., Turner W. R., Larsen F. W., Brooks T. M., Gascon C., 2011. “Biodiversity hotspots,” in Global biodiversity conservation: the critical role of hotspots. Eds. Zachos F. E., Habel J. C. (London: Springer-Verlag).

47. Roy, B. Zorrilla, M., Endara, L. Thomas, D., Vandegrift, R. Rubenstein, J. Policha,T., Ríos-Touma, B., Read, M., 2018. New Mining Concessions Could Severely Decrease Biodiversity and Ecosystem Services in Ecuador. Tropical Conservation Science Vol. 11, 1-20.

48. Ibid.

49. Understanding Evolution. (n.d.). Reproductive Isolation. Retrieved from: https://evolution.berkeley.edu/evolibrary/article/0_0_0/evo_44_sp

50. Roy, B. Zorrilla, M., Endara, L., Thomas, D., Vandegrift, R., Rubenstein, J., Policha,T., Ríos-Touma, B., Read, M., 2018. New Mining Concessions Could Severely Decrease Biodiversity and Ecosystem Services in Ecuador. Tropical Conservation Science Vol. 11,1-20.

51. Los Cedros Reserve. n.d. Orchids. Retrieved from: https://loscedrosreserve.org/orchids.

52. Amicus Curiae filed by Luis Baquero in case no. 1149-19-JP.

53. Leon-Yánez, S., Valencia, R., Pitman, N., Endara, L., Ulloa-Ulloa, C. and Navarrete, H. 2012. Libro Rojo de las Plantas Endémicas del Ecuador, 2nd ed. Pontificia Universidad Católica del Ecuador.

54. Mittermeier R. A., Turner W. R., Larsen F. W., Brooks T. M., Gascon C., 2011. “Biodiversity hotspots,” in Global biodiversity conservation: the critical role of hotspots. Eds. Zachos F. E., Habel J. C. (London: Springer-Verlag).

55. Holsinger, Kent. 2001. Local extinction In: Population Viability Analysis: Bay Checkerspot Butterfly. Internet Archive Wayback. Machine. Retrieved from: https://archive.org/web/

56. Granizo,T., Pacheco, C., Rivadeneira M., Guerrero, M., Suárez, L., (Eds.). 2002. Red Book of the Birds of Ecuador. SIMBIOE/Conservación Internacional/Ecociencia-Ministerio de Ambiente/UICN. Serie Libros Rojos del Ecuador, Vol. 2.

57. Holsinger, K. 2001. Local extinction In: Population Viability Analysis: Bay Checkerspot Butterfly. Internet Archive Wayback. Machine. Retrieved from: https://archive.org/web

58. Quince, C., Higgs, P. and Mckane A., 2005. Deleting species from model food webs. Oikos 110: 283- 296

59. The International Union for Conservation of Nature (hereafter “IUCN”) is an institution currently composed of 1400 governmental and civil society entities, and 18000 experts, which was founded in 1948 with the aim of preserving biodiversity worldwide. Among its tasks is maintaining an updated list of globally endangered species (IUCN Red List of Threatened Species).

60. Zapata-Ríos, G. and Araguillin, E. 2013. Conservation status of the jaguar and the white-lipped peccary in Western Ecuador. Revista Biodiversidad Neotropical, 3 (1): 21-29.

61. De la Torre, J. González-Maya, J. Zarza, H. Ceballos, G. and Medellın, R. 2017. The jaguar's spots are darker than they appear: Assessing the global conservation status of the jaguar Panthera onca. Oryx, 52, 300-315.

62. Zapata-Ríos, G. and Araguillin, E. 2013. Conservation status of the jaguar and the white-lipped peccary in Western Ecuador. Revista Biodiversidad Neotropical, 3 (1):

63. Jost, L. 2016. Jaguar returns to our Mandariacu reserve. https://ecomingafoundation.wordpress.com/2016/0921-29/19/jaguar-returns-to-our-manduriacu-reserve/

64. Tirira D. 2004. Current status of the brown-headed spider monkey (Ateles fusciceps Gray, 1866) (Primates: Atelidae) in Ecuador. Lyonia. Journal of Ecology and Application. Vol. 6(2).17-24.

65. Granizo, T., Pachecho, C., Rivadeneira, M.B., Guerrero, M; Suarez, L. (Eds.). 2002. Red Book of the Birds of Ecuador. Simbioe /Conservación Internacional/ EcoCiencia/Ministerio de Ambiente UICN. Serie Libros Rojos del Ecuador, volume two. Quito, Ecuador.

66. Jahn, O. 2008. Rediscovery of Black-breasted Puffleg Eriocnemis nigrivestis in the Cordillera de Toisan, north-west Ecuador, and reassessment of its conservation status. Cotinga 29, pp 31-39.

67. Roy, B. Zorrilla, M. Endara, L. Thomas, D. Vandegrift, R. Rubenstein, J. Policha, T., Ríos-Touma, B., Read, M. 2018. New Mining Concessions Could Severely Decrease Biodiversity and Ecosystem Services in Ecuador. Tropical Conservation Science Vol. 11: 1-20.

68. Ibid.

69. Granizo, T. Pacheco, C. Rivadeneira M. Guerrero, M. Suárez, L. (Eds.). 2002. Red Book of the Birds of Ecuador. SIMBIOE/Conservación Internacional/Ecociencia-Ministerio de Ambiente/UICN. Serie Libros Rojos del Ecuador, Vol. 2.

70. Freile, J. and Santander, T. (coord), 2005. Important Areas for the conservation of Birds in Ecuador. Aves y Conservación, Birdlife International, Conservation International and Ministry of Environment of Ecuador. Quito Ecuador.

71. Birdlife International and Conservation International 2005 Important Areas for the conservation of birds in the Tropical Andes: Priority Sites for Biodiversity Conservation. Quito Ecuador

72. Roy, B., Zorrilla, M., Endara, L., Thomas, D., Vandegrift, R., Rubenstein, J., Policha, T., Ríos-Touma, B., Read, M., 2018. New Mining Concessions Could Severely Decrease Biodiversity and Ecosystem Services in Ecuador. Tropical Conservation Science Vol. 11: 1-20 Online Appendix 2.

73. Ibid. Online Appendix 3.

74. Ibid. Online Appendix 4.

75. Ibid. Online Appendix 5.

76. Ibid. Online Appendix 6.

77. Appearance of Row Vandegrift (INABIO-University of Oregon) at the hearing convened by this Court on October 19, 2020.

78. Roy, B.A., Zorrilla, M., Endara, L., Thomas, D., Vandegrift, R., Rubenstein, J., Policha, T., Ríos- Touma, B., Read, M., 2018. New Mining Concessions Could Severely Decrease Biodiversity and Ecosystem Services in Ecuador. Tropical Conservation Science Vol. 11: 1-20.

79. Roy, B. Zorrilla, M. Endara, L. Thomas, D. Vandegrift, R. Rubenstein, J. Policha, T. Ríos-Touma, B. Read, M. 2018. New Mining Concessions Could Severely Decrease Biodiversity and Ecosystem Services in Ecuador. Tropical Conservation Science Vol. 11: 1-20. Online Appendix 1.

80. Guayasamin, J. Krynak, T. Krynak, K. Culebras, J. and Hutter, C. R. (2015). Phenotypic plasticity raises questions for taxo-nomically important traits: A remarkable new Andean rainfrog (Pristimantis) with the ability to change skin texture. Zoological Journal of the Linnean Society, 173(4): 913-928.

81. Hutter, C. and Guayasamin, J. 2015. Cryptic diversity concealed in the Andean cloud forests: two new species of rainfrogs (Pristimantis) uncovered by molecular and bioacoustic data. 37-59.

82. Tebbit, M., Hughes, A. Perez, P. Moonlight. 2017. Taxonomy of the Begonia tiliifolia group including descriptions of two new species. Edinburgh journal of botany.74(2), 199-215.

83. Cornejo, X. 2008. Four new species of Meliosma (Sabiaceae) from Ecuador and Bolivia. Harvard Papers in Botany, 13(1), 93-102.

84. Orozco, C. and Canal. D. Cuatresia nomala and Cuatresia phylasana (Physaleae, solanaceae) two new species from Colombia and Ecuador. Caldasia vol 33 no. 1. Retrieved from https://revistas.unal.edu.co/index.php/cal/article/view/36377

85. Baquero R., Luis E., and Galarza Verkovitch, Denisse. 2019. Two new species and new records of Platystele (Pleurothallidinae: Orchidaceae) from Los Cedros Reserve in Ecuador. Lankesteriana, 19(1), 5-13.

86. Endara, L. Grimaldi, D. and Roy, B. 2010. Lord of the flies: Pollination of Dracula orchids. Lankesteriana, 10(1). 1-11.

87. Roberts, D. 2006. Drosophila melanogaster: The model organism. Entomologia Experimentalis Et Applicata, 121. 93-103.

88. Corral, M. March, 10, 2016. The bacteria that eats plastic. El Mundo. Retrieved from: https://www.elmundo.es/science/2016/03/10/56e1c141e2704e7a6a8b4629.html.

89. Appearance of Row Vandegrift (INABIO-University of Oregon) at the hearing convened by this Court on October 19, 2020.

90. Gomez, C. May 29, 2015. Crean una telaraña artificial casi tan fuerte como la de la Naturaleza. Club Nuevo Mundo. Retrieved from: https://tendencias21.levante-emv.com/crean-una-telarana-artificialalmost-as-strong-as-nature's_a40533.html.

91. Ríos-Touma, B. Morabowen, A. Tobes, I. and Morochz, C. 2017. Altitudinal gradients of aquatic macroinvertebrate diversity in the Choco-Andean region of Ecuador. Oral Presentation. Paper Presented at the Society for Freshwater Science Annual.

92. Knee, K. and Encalada, A. 2014. Land use and water quality in a rural cloud forest region (Intag, Ecuador). River Research and Applications, 30(3). 385-401.

93. Murcia, C. 1995. Edge effects in fragmented forests: implications for conservation. Trends in Ecology and Evolution 10 (2). 52-62

94. ECOLEX-MAE. 2015 Final Report. Determinar la factibilidad de la ampliación, desarrollo del plan de manejo e identificar la tenencia de la tierra del Bosque Protector Los Cedros.

95. Roy, B. Zorrilla, M. Endara, L. Thomas, D. Vandegrift, R. Rubenstein, J. Policha, T. Rios-Touma, B. Read, M., 2018. New Mining Concessions Could Severely Decrease Biodiversity and Ecosystem Services in Ecuador. Tropical Conservation Science, vol. 11, 1-20.

96. Article 285 of the Regulations to the Organic Code of the Environment contemplates amongst the functions of Protected forests: “a) Conserve ecosystems and their biodiversity; b) Preserve watersheds, especially in areas of high rainfall and areas adjacent to water sources, springs or reservoirs; c) Protect mountain ridges, areas of rugged topography to prevent soil erosion due to runoff effects. d) Constitute areas of interest for scientific, environmental and forestry research; e) Contribute to the conservation of fragile ecosystems and act as buffer zones and connectivity corridors between the National System of Protected Areas, reducing the pressure of anthropogenic activities.”

97. Other sources of scientific uncertainty are: a) ambiguity, that is, when the existence of negative effects of a process or product are the subject of scientific debate, as in the case of the harm that may be caused by genetically modified foods, b) lack of knowledge or ignorance, whereby neither the effects, nor the probabilities of these effects, are known. Bourguignon D. 2015. The Precautionary Principle - Definitions, Applications and Governance. European Parliamentary Research Service. 1-28.

98. Article 19 of the Environmental Management Law: “Public, private or mixed works and public or private investment projects that may cause environmental impacts will be qualified prior to their execution by the decentralized control agencies, in accordance with the Central Environmental Management System, whose guiding principle shall be precautionary”.

99. Constitutional Court, Opinion No. 32-17-IN/21, para. 73.

100. Glossary of Terms, COAm

101. Article 424 of the COAm, which was not in effect at the time the environmental registration was granted in Los Cedros, currently requires an environmental feasibility report, when projects, works or activities intersect not only with the National System of Protected Areas and intangible zones, but also with the National Forest Heritage, which includes the Los Cedros Protected Forest.

102. Article 59 of the COAm establishes: “Environmental buffer zones shall be areas adjoining areas of the National System of Protected Areas or urban expansion zones, which are public, private or community property, to contribute to the conservation and integration of protected areas, balance in urban-rural development, and their ecosystemic connectivity.”

103. According to a 2006 study by MAE and Ecociencia, Los Cedros is one of the most suitable forest areas for maintaining the integrity of Cotacachi-Cayapas National Park. See MAE, Plan de Manejo Parque Nacional Cotacachi Cayapas, Proyecto GEF Ecuador: Sistema Nacional de Áreas Protegidas, 2007, p. 160.

104. Distinct from an environmental impact study, which is carried out prior to exploitation and therefore is not applicable in the present case. In addition, see Articles 24 and 32 of the Unified Text of Secondary Environmental Legislation in force at the time.

105. According to Article 9, second paragraph of the COAm, “Environmental principles must be recognized and incorporated in all acts of public administration, as well as in judicial decisions within the juridical sphere.” This includes the precautionary principle.

106. Organic Environmental Code, article 56, paragraph 2.

107. Ibid, article 59.

108. Dirección Provincial del Ambiente de Imbabura. 2018. Technical Report No. 0025-UCA-DPAI-MAEO of May 21, 2018. Ministry of Environment. fjs. 21-29 of the file for the action for injunctive relief.

109. Ibid.

110. As mentioned in previous paragraphs, in this case there was no environmental impact study, but there was an environmental registration and an environmental management plan in the exploration phase.

111. Appearance of attorney Luis Araque Cordovez, legal coordinator of Empresa Nacional Minera (ENAMI EP), in the hearing held by this Court on October 19, 2020.

112. Constitution of the Republic of Ecuador, article 66, paragraph 2.

113. Constitution of the Republic of Ecuador. “Art. 313.-...The following are considered strategic sectors: energy in all its forms, telecommunications, non-renewable natural resources, the transportation and refining of hydrocarbons, biodiversity and genetic heritage, the electromagnetic spectrum, water, and others as determined by law.”

114. Constitutional Court, Opinion No. 232-15-JP/21, para. 27.

115. United Nations General Assembly, Resolution 64/292 of July 28, 2010, para. 224

116. ESCR Committee, General Comment 15 on the right to water, para. 2.

117. United Nations Rapporteur, Report on the Human Right to Water and Sanitation, 2015, para. 4.

118. I/A Court H.R., Lhaka Honhat (Tierra Nuestra) v. Argentina, para. 222.

119. Ibid.

120. Constitutional Court, Opinion 232-15-JP/21, para. 34.

121. ESCR Committee, General Comment No. 15 (2002) The right to water (articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), para. 12.

122. Constitution of the Republic of Ecuador, article 3, paragraph 1.

123. Constitution of the Republic of Ecuador, article 314.

124. Constitution of the Republic of Ecuador, article 264, paragraph 4.

125. Constitution of the Republic of Ecuador, article 281, paragraph 4.

126. Constitution of the Republic of Ecuador, article 282.

127. Constitution of the Republic of Ecuador, article 415.

128. Constitution of the Republic of Ecuador, article 412.

129. Constitution of the Republic of Ecuador, 318.

130. Constitution of the Republic of Ecuador, article 282.

131. Constitution of the Republic of Ecuador, article 313.

132. Constitutional Court, Opinion 232-15-JP/21, para. 38.

133. GAD Cotacachi. 2011. Plan de Ordenamiento y Desarrollo Territorial. Informe Final del PDOT. Mapa de microcuencas, pág. 32.

134. Rodríguez, O., V. León, J. C. Ronquillo, S. Dillman and E. Mejía. Eds. 2000. Informe final del Proyecto Toisán “Estudio y Conservación de los bosques de la Cordillera de Toisán, al Noroccidente del Ecuador”. Fundación Ornitológica del Ecuador (CECIA), Defensa y Conservación de la Zona de Intag (DECOIN), Fundación Sobreviven, Programa de Conservación de la British Petroleum-BirdLife International- Flora y Fauna Internacional, Quito.

135. Bruijnzeel, L. A., Mulligan, M., and Scatena, F. N. 2011. Hydrometeorology of tropical montane cloud forests: Emerging patterns. Hydrological Processes, 25(3): 465-498.

136. Rodríguez, O., V. León, J. C. Ronquillo, S. Dillman and E. Mejía. Eds. 2000. Informe final del Proyecto Toisán “Estudio y Conservación de los bosques de la Cordillera de Toisán, al Noroccidente del Ecuador”. Fundación Ornitológica del Ecuador (CECIA), Defensa y Conservación de la Zona de Intag (DECOIN), Fundación Sobreviven, Programa de Conservación de la British Petroleum-BirdLife International- Flora y Fauna Internacional, Quito.

137. Ordinance that creates and delimits the Intag-Toisán municipal conservation and sustainable use area (ACUS-MIT). Municipal Council of the Autonomous Decentralized Municipal Government of Santa Ana de Cotacachi. Official Registry No. 879 of April 18, 2019.

138. ECOLEX-MAE 2015. Appendix BOSQUES DEL PREDIO LOS CEDROS DEL CANTÓN COTACACHI. Ministerial Agreement 57. Official Registry 620 of January 26, 1995. In: Informe Final. Determinar la factibilidad de la ampliación, desarrollo del plan de manejo e identificar la tenencia de la tierra del Bosque Protector Los Cedros.

139. Ibid.

140. Ordinance that creates and delimits the Intag-Toisán municipal conservation and sustainable use area (ACUSMIT). Table #10 Cuencas, subcuencas y microcuencas. Municipal Council of the Autonomous Decentralized Municipal Government of Santa Ana de Cotacachi. Official Registry No. 879 of April 18, 2019.

141. Salazar, R. 2017. Etnoictiología y Diversidad de Peces de la Parte Media-Baja de la Microcuenca del Rio Magdalenca, Cantón Cotacachi-Imbabura. Degree dissertation prior to obtaining the title of Engineer in Renewable Natural Resources. Technical University of the North. Ibarra.

142. Ordinance that creates and delimits the Intag-Toisán municipal conservation and sustainable use area (ACUS-MIT). Municipal Council of the Autonomous Decentralized Municipal Government of Santa Ana de Cotacachi. Official Registry No. 879 of April 18, 2019.

143.

144. Amicus Curiae in audiovisual format presented by Brígida Nogales, Susana Anrango, residents of the Magdalena Alto community in Case No. 1149-19-JP.

145. Ibid.

146. Ayuda Memoria No. 084-CCS-UGS-ENAMI-EP-2017", prepared by Mr. Douglas Ochoa, Social Management Supervisor of ENAMI EP, dated November 16, 2017, in the Brillasol community.

147. ECOLEX-MAE 2015. Appendix BOSQUES DEL PREDIO LOS CEDROS DEL CANTÓN COTACACHI. Ministerial Agreement 57. Official Registry 620 of January 26, 1995. In: Informe Final. Determinar la factibilidad de la ampliación, desarrollo del plan de manejo e identificar la tenencia de la tierra del Bosque Protector Los Cedros.

148. The approximate calculation of inhabitants per community was made based on surveys conducted by ECOLEX, which establishes that “in the Mandariacus Valley, there are approximately 800 families, each with an average of 5 members per family” (3.4.1.2 Social Characteristics).

149. Stauffer, B. and Spuhler, D. n.d. Catchment of rivers, lakes and reservoirs (reservoirs). Retrieved from: https://sswm.info/es/gass-perspective-es/tecnologias-de/tecnologias-de-abastecimiento-dewater/captaci%C3%B3n-de-r%C3%ADos%2C-lakes-and-reservoirs-%28reservoirs%29.

150. Amicus Curiae submitted by José Cueva in Case No. 1149-19-JP.

151. ECOLEX-MAE. 2015 Final Report. Determinar la factibilidad de la ampliación, desarrollo del plan de manejo e identificar la tenencia de la tierra del Bosque Protector Los Cedros. Graph 9 and 10.

152. Ibid.

153. GAD Cotacachi. 2015. Actualización del Plan de Ordenamiento y Desarrollo Territorial del Cantón Santa Ana de Cotacachi 2015-2035, pgs. 68 and 69.

154. Constitutional Court, Judgment No. 32-17-IN/21, para. 80.

155. Organic Law on Water Resources, Uses and Development of Water, article 64.

156. Article 106 of the Organic Law on Water Resources and Water Use, for example, provides that, “respecting the order of priority as regulated in this Law, the Unified Water Authority will grant authorizations for the productive use of water for the generation of electricity, preferentially for projects of national priority that are contemplated in the electrification master plan, incorporating the principles of environmental sustainability, precaution, prevention and efficiency.”

157. Ángel H., Andrés. 2019. Impacts in Perpetuity. The Legacy of Mining. In: Green Ideas. Heinrich Böll Stiftung, Edts. Bogota D.C.

158. National Forestry Commission. March 24, 2020, Government. of Mexico. Retrieved from: https://www. gob.mx/conafor/en/articulos/los-bosques-y-el-ciclo-del-agua?idiom=en

159. Constitutional Court, Judgment No. 32-17-IN/21, para. 80.

160. Ibid.

161. Contamination from Mining Activities, retrieved from: http://edafologia.ugr.es/conta/tema16/impact.htm

162. Resolution of August 9, 2018 within administrative proceeding No. 180-2017-CNA (Magdalena River Concession 02) and Resolution of August 9, 2018 within administrative proceeding No. 181-2017- CNA (Magdalena River Concession 02). Both resolutions are included in the file for the action for injunctive relief under review

163. Environmental Record fjs 35-41 of the file of the action for injunctive relief under review.

164. The United Nations Human Rights Council, through a resolution adopted on October 5, 2021, recognized the human right to a safe, clean, healthy and sustainable environment.

165. The complaint for the action for injunctive relief states: “d. Violation of the right to prior consultation Article 398 of the Constitution...”. Also in its appeal, the GAD states: “we maintain in the present case that, the population and the inhabitants of the communes of the García Moreno parish, which are settled in the area of direct and indirect influence of the mining concessions Magdalena River 01 and Magdalena River 02, should have been consulted prior to granting the environmental registration and determining the viability or lack thereof for the mining project. From the Resolution, by which the Minister of Environment granted the Mining Registration in favor of Empresa Nacional Minera (ENAMI EP), it is clear that there was no prior consultation with the population of the affected area, nor with the communities”.

166. The Provincial Court of Justice pointed out: “the importance of the consultation is clearly directed toward obtaining the consent of the community, and to achieve this certain established minimum requirements must be met, such as good faith and the manner by which to carry out the consultation as appropriate for the circumstances, with the purpose of effectively guaranteeing citizen participation, taking into consideration the criteria of valuation and objections regarding the activity subject to consultation. This allows for the reaching of an agreement, or examining the proposed measures. The consultation is applicable not only when there is imminent danger, but also when there is an impact or harm to the community or the environment as a consequence of the activity intended to be carried out by the authorities or private companies holding a concession for a public work or for natural resources (....) the State is responsible for implementing processes of participation and community consultation, a responsibility that cannot be delegated to any private entity (...) there must necessarily be a process in accordance with the Ecuadorian legal system of citizen participation and community engagement, in which the minimum democratic guarantees are fulfilled, such as: 1. Preparation of the consultation; 2. Election day; 3. Computation and results of the consultation; 4. Challenges to the results; and 5. Declaration of validity (…) it is not sufficient merely to inform the community of state decisions regarding acts that could affect people; rather, it is necessary to secure the right of participation to be consulted, established in article 61, paragraph 4 of the Constitution of the Republic, in order to achieve the participation of the community. Therefore, any communication must be provided respecting its context, dialoguing in good faith with all community leaders, and reaching agreements in which it is established in a transparent way that the criteria of the community have been considered. This is what constitutional law currently requires with respect to state decisions on the environment that may directly affect a community”.

167. Principle 10 of the Rio Declaration on Environment and Development states: “Environmental issues are best handled with the participation of all concerned citizens, at the appropriate level. At the national level, everyone should have adequate access to environmental information held by public authorities (...) as well as the opportunity to participate in decision-making processes. States should facilitate and encourage public awareness and participation by making information available to all...”. The World Charter for Nature, adopted by the United Nations General Assembly, in turn states: “Everyone, in accordance with national legislation, shall have the opportunity to participate, individually or collectively, in the process of preparing decisions which directly concern his environment...”. At the international level, article 7.2 of the Escazú Agreement also obligates the Ecuadorian State to guarantee public participation on “decisions (...) that have or may have a significant impact on the environment, including when they may affect health”.

168. Although strict observance of the principle of active participation is a necessary requirement for the development of extractive activities in light of the Constitution, this principle is by no means a sufficient or sole condition. The Constitution recognizes other environmental principles interrelated with the principle of participation such as precaution, prevention, sustainable development, biodiversity conservation and especially the rights of nature. These principles and rights must also be strictly observed when carrying out extractive activities. Article 408 of the Constitution states precisely that “these goods [referring to non-renewable natural resources] may only be exploited in strict compliance with the environmental principles established in the Constitution”. Citizen participation in environmental matters is closely linked to the precautionary principle. The information resulting from the participation and consultation processes, for example, can be fundamental to determining the risks of serious and irreversible harm and identifying the most effective Protected measures. As noted supra, these elements link participation, environmental consultation and the precautionary principle.

169. For citizen participation to be active, it must have an impact on the planning, execution and control of public environmental policies. As the Inter-American Court of Human Rights has pointed out, the State has the obligation to “allow the expression of opinions” and “integrate the concerns and the knowledge of citizenship in public policy decisions that affect the environment”, through the various participation mechanisms.

170. Ibid, para. 232. In addition, see: Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters (Bali Guidelines), adopted in Bali on 26 February 2010 by the UNEP Council, Decision SS.XI/5, part A, guideline 8; Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), entered into force on October 30, 2001, art. 6. Likewise, the Constitution, in its article 395, paragraph 3, views participation as a transversal process in the stages of “planning, execution and control of any activity that generates environmental impacts”.

171. Article 61 of the Constitution establishes that “Ecuadorians enjoy the following rights: (...) 4. To be consulted”.

172. Opinion No. 22-18-IN/21, para. 135.

173. The Court recalls that the Environmental Management Law (LGA) was the applicable regulation to grant the environmental registration for the initial exploration phase of the mining concessions of the Magdalena River Mining Project, comprised of the Río Magdalena 01 concession (Code: 40000339) and the Río Magdalena 02 concession (Code: 40000340) in the case under review. Article 28 of the LGA states that “any natural or legal person has the right to participate in environmental management, through the mechanisms established by the regulations, including consultations, public hearings, initiatives, proposals or any form of association between the public and private sectors. Individuals may denounce those who violate this guarantee, without prejudice to civil or criminal liability for reckless or malicious complaints or accusations. Failure to comply with the consultation process referred to in Article 88 of the Political Constitution of the Republic [referring to the 1998 Constitution] will render the activity in question unenforceable and will be grounds for nullity of the respective contracts”.

174. At the regulatory level, the Court notes that various regulations, such as Executive Decree No. 1040, which issued the Regulations for the Application of the Social Participation Mechanisms established in the Environmental Management Law (Official Gazette No. 332 of May 08, 2008), the Instructions to the Regulations for the Application of the Social Participation Mechanisms established in Executive Decree No. 1040 (Official Gazette No. 607 of October 14, 2015), the Unified Text of Secondary Environmental Legislation, and Articles 474 et seq. of the Regulations to the COAm, which regulates entities that participate in “processes of social participation” in enviromental matters.

175. It should also be noted that Executive Decree No. 1040, in force at the time of the facts of the case under review, established: “State institutions and companies, in the area of their respective competencies, are the appropriate authorities for the organization, development and application of the mechanisms of social participation, through the corresponding technical unit. In the case of activities or projects that affect the whole or part of the National System of Protected Areas, Protected Forests and Vegetation and State Forest Heritage, the competent authority shall be the Ministry of Environment” (emphasis added).

176. Article 215 of the Constitution states: “The Ombudsman's Office shall have as its functions the protection and guardianship of the rights of the inhabitants of Ecuador and the defense of the rights of Ecuadorians who are outside the country....”.

177. Article 2 of said Resolution states: “The Ombudsman’s Office, through the General Directorate for Protection, will prepare a report monitoring the due process of prior consultation, which will include partial reports in the preparatory phase, during implementation, and in the final stage, and will be delivered to the administrative body that carries out the consultation process, that being the Ministry of the Environment, and to the petitioners, for its consideration prior to the approval of the environmental license.”

178. According to Article 263, paragraph 4 of the Constitution: “The provincial governments shall have the following exclusive competencies, without prejudice to others determined by law: (...) 4. Provincial environmental management.”

179. Article 264, paragraph 8 of the Constitution establishes as exclusive jurisdiction of the municipal governments: “8. Preserving, maintaining, and disseminating the (...) natural heritage of the canton and to build public spaces for these purposes”.

180. Article 267 establishes that the parish governments will establish the following exclusive jurisdictions: “... 4. Incentivize (...) the preservation of biodiversity and the protection of the environment”.

181. Article 399 of the Constitution establishes that “the integral exercise of state protection over the environment and the co-responsibility of citizens in its preservation will be articulated through a decentralized national system of environmental management, which will be responsible for the defense of the environment and nature”.

182. Ministerial Agreement No. 121 issued by the then-Ministry of the Environment of Ecuador, Instructions for the evaluation, qualification and registration of environmental facilitators, Official Gazette No. 553 of March 20, 2009.

183. Article 18 of the Constitution states: “All persons, individually or collectively, have the right to: (...) 2. Freely access information generated by public entities, or by private entities that manage State funds or perform public functions. There shall be no reservation of information except in cases expressly established by law. In cases of the violation of human rights, no public entity shall deny information”.

184. Escazú Agreement, articles 5.1 and 5.2.

185. It is worth noting that Article 10 of Decree 1040 states: “Social participation will be mandatory for the responsible environmental enforcement authority, in coordination with the promoter of the activity or project, prior to the approval of the environmental impact study”.

186. Opinion No. 9-19-CP/19 of September 17, 2019.

187. Article 27 of the Mining Law states: “For purposes of application of this law, the phases of the mining activity are: a) Prospecting, which consists of the search for signs of mineralized areas; b) Exploration, which consists of the determination of the size and shape of the deposit, as well as the content and quality of the mineral in it. Exploration may be initial or advanced and also includes the economic evaluation of the deposit, its technical feasibility and the design of its exploitation; c) Exploitation, which inculudes the various operations and labors dedicated to preparing and developing the mineral deposit, and the extraction and transportation of the minerals; d) Beneficiation, which consists of a set of physical, chemical and/or metallurgical processes to which the minerals resulting from exploitation are subjected in order to increase their useful content or grade; e) Smelting, which consists of the process of smelting minerals, concentrates or precipitates thereof, in order to separate the metallic product to be obtained from other minerals that accompany them; f) Refining, which consists of the process of converting metallic products into high purity metals; g) Commercialization, which consists of the purchase and sale of minerals or the execution of other contracts for the purpose of converting metallic products into high purity metals; and h) Mine Closure, which consists of the termination of mining activities and the consequent dismantling of the facilities used in any of the previously referred phases, if they are not of public interest, including environmental remediation according to the closure plan duly approved by the corresponding environmental authority....”.

188. Opinion No. 9-19-CP/19 of September 17, 2019.

189. Article 26 of the Mining Law states: “Prior administrative acts.- In order to execute mining activities, it is obligatory and required that certain administrative acts be previously carried out by the following institutions within the scope of their respective jurisdictions: a) The respective environmental license must have been duly granted by the Ministry of the Environment; and, b) Acts required by the Unified Water Authority examining the possible impact on surface and/or subterranean water bodies and in fulfillment of the order of priority for the right to access water. Additionally, the mining concessionaire shall submit to the Sector Ministry a sworn statement made before a notary public stating that the mining activities do not affect: roads, public infrastructure, authorized ports, sea beaches and seabeds; telecommunications networks; military installations; oil infrastructure; aeronautical installations; electrical networks or infrastructure; or archeological remains or natural and cultural heritage”.

190. Article 11 of the RAAM states: “For the initial exploration period the National Environmental Authority, through the Unified Environmental Information System, will grant the Environmental Registration, which must contain the Registration Form and the EMP presented by the Holder of the Mining Rights”.

191. Article 23 of the RAAM states: “Prior to the start of activities in the exploitation, beneficiation, smelting and refining phase, the corresponding environmental impact study shall be submitted to the Environmental Authority in accordance with the provisions of these regulations and other environmental regulations in force.” Article 26 of the RAAM states: “Once the corresponding fees have been paid, the respective Environmental License will be issued; an indispensable prerequisite for the mining owner to carry out the mining activities contemplated in the approved environmental studies”.

192. At the time of the facts of the case under review, Article 3 of the Unified Text of Secondary Environmental Legislation (Executive Decree No. 3516, Official Gazette 2 of March 31, 2003) established that the environmental registration “is the mandatory environmental permit granted by the Corresponding Environmental Authority, which certifies that the developer has complied with the regularization process of its project, work or activity”. The same article stated that the environmental license, “is the environmental permit granted by the Corresponding Environmental Authority to a natural or legal person for the execution of a project, work or activity. It establishes the obligation of the regulated party to comply with the applicable environmental regulations in order to prevent, mitigate or correct the undesirable effects that the authorized project, work or activity may cause in the environment. For the issuance of the environmental license in the mining sector, the provisions of the Mining Law shall apply”.

193. The Court likewise highlights that Article 88 of the Mining Law establishes: “From the granting of a mining concession and during all stages thereof, the concessionaire, through the State, must adequately inform the competent authorities, decentralized autonomous governments, communities and entities representing social, environmental or trade union interests, about the possible impacts, both positive and negative, of the mining activity. The environmental authority shall give free access to formally requested environmental and social studies, as well as to reports and technical resolutions issued by the competent authority, in the manner determined by law”.

194. Opinion No. 22-18-IN/21 of September 9, 2021, paragraph 146.

195. Ibid., para. 147.

196. In addition, from page 323 to 329 of the procedural case file there is Service Commission Report No. 48-CCS-UGS-ENAMI-EP-2017, dated August 24, 2017, prepared by Mr. Douglas Ochoa, on the “Community Engagement regarding the Cooperation Agreement between ENAMI EP - Cornerstone Ecuador S.A., mining concession areas of the Magdalena project”.

197. Appearance of Edgar Merlo Lopez, attorney for the “Cielo Verde” Community and Julio Cabezas, member of the Magdalena community at the public hearing on October 19, 2020.

198. Article 10 of Executive Decree No. 1040 established that, “social participation shall be mandatory for the responsible environmental enforcement authority, in coordination with the promoter of the activity or project, prior to the approval of the environmental impact study”. Article 2 of the Instructions to the Regulation of Community Participation, issued by Ministerial Agreement No. 103 of the then-MAE, states: “the Community Participation Process (PPS) will be mandatory in all projects, works or activities that require an Environmental Study for their regularization”.

199. Although the COAm was published in the Official Gazette on April 12, 2017, its Final Provision states, “The Organic Environmental Code shall enter into force after twelve months have elapsed, counted as of its publication in the Official Gazette.” The First Transitory Provision of the COAm establishes: “the administrative procedures and other regularization procedures that at the effective date of this Code have been initiated or are in process, must be fulfilled and concluded, in accordance with the applicable laws and regulations in force at the date of initiation of the procedure”. In the case under review, the mining concessions were granted to ENAMI EP through administrative resolutions No. MMSZM-N-2017-0041-RM and MM-SZM-N-2017-0042 RM, issued by the then-Ministry of Mining, on March 3, 2017,while the environmental registration of said concessions was granted on December 12, 2017, via administrative resolution No. 225741 of the Ministry of Environment.

200. Resolution of the Constitutional Court issued in Case No. 679-2003-RA, on April 8, 2004.

201. Article 18 of the LOGJCC: “In the event that a violation of rights is declared, full reparation for material and non-material damages shall be ordered. Comprehensive relief shall seek that the holder or holders of the violated right enjoy the right in the most adequate manner possible and that the condition prior to the violation be restored. Relief in the form of reparation may include, amongst other forms, restitution of the right; economic or patrimonial compensation; rehabilitation; satisfaction of a judgment; guarantees that the event will not be repeated; the obligation to refer to the competent authority for investigation and sanctions; measures of recognition; public apologies; provision of public services; and health care.”

202. Constitutional Court, Opinion 335-13-JP/20, para. 146.