Request to Revise Original Sentence for Cóndor Mirador Tailings Dams

Plenum of the Constitutional Court of Ecuador, Distinguished Judges of the Constitutional Court of Ecuador,
Re: Revision of sentence
David Frederick Dene and Julio Prieto Méndez, in our capacity as United Nations experts on the Rights of Nature, respectfully allow us to point out a judgment that we consider worthy of selection and review by this Court (article 436 of the Constitution, arts. 25 and 199 of the LOGJCC, and arts. 25, 26 and 27 of the Regulations). 
The judgment responds to a request for an autonomous precautionary measure that sought to prevent an irreversible ecological tragedy. However, this request was rejected, unfoundedly, by the Judge of the Unit on Violence Against Women and the Family Unit – 4, by judgment of March 6, 2019, at 14h41 (judgment No. 17574201900084). 
As we will explain in this request, this case concerns a threat of serious and irreparable harm and presents a unique opportunity for the Constitutional Court to rule on issues of absolute national relevance, for which there are no judicial precedents. 
These issues refer to the constitutional obligations applied between individuals (or what is known as the “horizontal effect”), the difference between imminence and immediacy for the granting of a precautionary measure, and the scope of the precautionary principle in environmental matters.
The jurisdictional guarantee, in this case the autonomous precautionary measure, was intended that the company Ecuacorriente S.A. (ECSA) corrects the designs and practices used for the construction of the dams that will contain more than 300 million tons of tailings at the Condor Mirador project. 
The lawsuit does not attack environmental licenses because Ecuadorian law says nothing about the construction of mining tailings dams. 
Taking advantage of this situation, ECSA is employing economical designs that are unable to withstand earthquakes and floods. In addition, they are being built using techniques that are so dangerous that they have been banned in several countries. Independent experts consider that the possibility of failure of these dams is so high that it can be considered unavoidable.  Faced with this threat of an irreversible ecological tragedy, the precautionary measure sought to have ECSA build the mining tailings dams as safely as possible – rather than the cheapest, which is currently employed. In short, the precautionary measure does not seek to stop the mining project or any economic compensation, but demands that the dams be constructed in a way that eliminates the probability of failure, in order to guard against the imminent violation of nature’s rights.
Unfortunately, the judge issued a sentence denying the request for an injunction. Although the judge copied much of the lawsuit on its merits, she misunderstood the technical arguments and confused the imminence of the damage with immediacy. Thus, for example, there is a technical parameter concerning the capacity of dams to withstand flooding. 
In the case in question, dams were required to be constructed with the maximum capacity to withstand floods, called “1000 year flood resistance”. The Judge made a mistake and understood this reference (which is a technical design parameter) to be an estimate of the time at which the flood would occur – making its entire rationale incorrect. 
Consistent with this confusion, the judge concluded that the threat of harm that would occur in 1000 years was not imminent enough to warrant a precautionary measure.  In other words, as a result of her technical error, the judge confused the constitutional requirement of the imminence of the damage with the immediacy in which it would occur, which led her to disregard the application of the precautionary principle and to leave the constitutional obligations between individuals unapplied.
Imminence and immediacy. – While it is true that dam failure is not something that will happen immediately, it is something that will happen imminently: the failure of dams built by ECSA will occur with absolute certainty and will cause irreversible ecological damage and the loss of hundreds of human lives. 
Waiting for the threat of harm to be immediate in this case is tantamount to waiting for it to be unavoidable. When dams are built, there is no jurisdictional guarantee or human action capable of containing the disaster because the dams cannot be dismantled. In short, we cannot wait for the dam to be built to consider the threat imminent. 
The time to act is now to prevent dams from being built in such a way that they constitute a threat of irreparable damage. This imminent damage can now be stopped; but if we wait until the threat is immediate, there is nothing we can do.  
Precautionary principle. – The threat of harm should be sufficient to trigger the application of the precautionary principle. It is evident that if we wait for the immediacy or the consummation of the damage it would be too late to apply this principle. Moreover, the precautionary principle demands to be applied in case of doubt, and although the imminence of the damage in this case leaves no room for doubt, if any exists, one should act in such a way that constitutional rights are safeguarded. The judge did the opposite by ruling that the damage was not imminent because it was not immediate.  
In any case, when in doubt, this was the ideal case to apply the precautionary principle, which was totally ignored by the Judge’s ruling. Now is the opportunity for the Constitutional Court to pronounce on the matter. 
Although the scientific evidence, provided in conjunction with the application for an autonomous precautionary measure, was sufficient to establish the certainty of the failure of the dams built by ECSA, if the judge had had any doubts, she should have applied the precautionary principle. On the contrary, the judge did not understand and assumed that the damage would occur in 1000 years, so she decided that the threat was not imminent and there was no need to act. That is to say, the judge ignored her own doubt, and turned her ignorance into a sentence, denying the jurisdictional guarantee she should have granted. This inaction is a far cry from the application of the precautionary principle and the State’s duty to protect. 
Constitutional obligations between individuals. – Jurisdictional guarantees are often directed against environmental licenses because it is often argued that the Public Administration gave them improperly. 
However, in this case the environmental license has nothing to do with constitutional rights at risk of being violated. Regardless of the existence of environmental licenses, ECSA must respect the rights of nature. In other words, this case presents the opportunity for the Court to rule on constitutional obligations between private parties, since, according to the constitutional text, individuals are bound by the rights of nature directly and independently of any license or permit granted to them by the administration. It should be noted that the case in question refers exclusively to the rights of nature and constitutes an opportunity to delve deeper into the content of these rights, especially with regard to nutrient cycles and energy flows protected by constitutional law. 
The precautionary measure does not contain any economic pretension or interest in obtaining particular benefits. It does not remove or prejudice acquired rights or question the powers of public administration. It is simply the protection of the constitutional rights of nature that demands obligations to make (care) of a private individual to avoid serious, imminent and irreversible damage to the rivers of the Ecuadorian Amazon. 
Attached is a copy of the application for injunctive relief. Any response or notification will be received in the emails julio.prieto@yale.edu and david.dene@gmail.com
We sign in the quality invoked,
David Frederick Dene Julio Prieto Méndez
NIE X1734405-K REG: 17-2005-58

Published 1 May 2019

New York Times: Myanmar Jade Mine Disaster Feared to Have Killed More Than 50

Published at The Crowd Versus on 24 April 2019

By Saw Nang and Richard C. Paddock

  • April 23, 2019

MANDALAY, Myanmar — At least 54 jade miners in northern Myanmar were believed to be dead on Tuesday after a huge mound of tailings collapsed into an open-pit mine, burying workers and heavy equipment, officials said.

The disaster occurred late Monday night in the remote Hpakant area of Kachin State, where miners produce billions of dollars’ worth of jade each year under harsh working conditions.

Rescuers began searching for survivors after dawn on Tuesday, but officials said there was little chance that anyone would be found alive at the mine, which is about 100 feet deep and covers about five acres.

Three bodies were recovered by late afternoon, said Tin Soe, a member of Parliament who represents the area.

“We don’t hold out much hope because the bodies are buried under mud and it’s really difficult to retrieve them,” said U Naing, a supervisor for Myanmar Thura, one of the companies operating the mine.

Landslides are common in the jade mining area and can claim 100 or more lives at a time. Dozens were swept away by a landslide in Hpakant last year, and at least 120 were buried in 2015 after the collapse of a mound of tailings, a mudlike waste byproduct of mining.

Kachin is Myanmar’s northernmost state and borders China and India. Much of Myanmar has been racked by fighting between the military and ethnic rebels, but the lucrative jade mining area has largely remained under government control.

According to the anti-corruption group Global Witness, in 2014 Myanmar’s jade business was worth as much as $31 billion, almost half the country’s gross domestic product.

Paul Donowitz, the campaign leader for Myanmar at Global Witness, said disasters keep occurring in Hpakant because the jade sector places profit before human life and the government is unwilling or incapable of regulating it.

“This preventable tragedy once again underscores the urgent need to bring accountability to the country’s jade industry and to completely shut down large-scale jade mining operations which continue to kill hundreds every year, fuel violent armed conflict and devastate the local environment,” he said.

Saw Nang reported from Mandalay, Myanmar, and Richard C. Paddock from Jakarta, Indonesia.

A version of this article appears in print on April 24, 2019, on Page A4 of the New York edition with the headline: Jade Mine Collapse In Myanmar Leaves Over 50 Lost in Mud; link to The New York Times article

Picture credit: At the scene of the mining disaster on Tuesday in Kachin State in northern Myanmar. Reuters

Precautionary Measures Requested at Cordillera del Condor, Ecuador

INTERNATIONAL EXPERTS REQUEST PRECAUTIONARY MEASURES TO AVOID AN ECOLOGICAL CATASTROPHE IN THE CORDILLERA DEL CONDOR, THE ECUADORIAN AMAZONIAN WATERSHED

Published 6 March 2019

The Mirador Copper Mine Project presents a serious and imminent danger to the Rights of Nature in the upper Amazon river basin.

Quito, Ecuador – Last Friday, 1 March 2019, two UN Rights of Nature experts presented a request to the Ecuadorian court to suspend the construction of the tailings dams of the mega open- pit mining project “Mirador “. The tailings dams are located in the Cordillera del Condor of the Amazonian province of Zamora Chinchipe.

David Dene and Julio Prieto, experts recognized by the Harmony with Nature program of the United Nations, presented the request based on a rigorous technical report prepared by Dr. Steven H. Emerman, who is an internationally recognized expert on tailings dams and their structural integrity.

Dr. Emerman points out in his report that the current design of tailings dams – the only barrier that protects Nature from the toxic waste generated by Mirador’s mining operations – is not adequate for the natural conditions of the area, which generates a probability of failure so high that it is imminent. It is a serious and imminent threat of around 100 million tons of highly toxic waste (tailings), which will be discharged directly into the surrounding rivers.

A design similar to that of the dams that are being built at the Mirador Mine project was used in the Brazilian mine of Córrego de Feijão, whose appalling collapse in January of this year caused the death or disappearance of around 300 people, and unquantifiable damage to various ecosystems.

“When the Mirador dams fail, they will completely annihilate the life cycles of the Quimi, Tundayme, Zamora and Santiago rivers, which are tributaries of the Amazon,” said Dene. “The catastrophe in Minas Gerais (Brazil) was caused by the collapse of a dam that is small compared to the dams being built at the Mirador Mine. When the Mirador Mine dams collapse – and there is no doubt that they will collapse – the impact on ecosystems and loss of biodiversity will be catastrophic. “

The request for this precautionary measure explains in detail how the sum of adverse natural conditions and the design of dams is a perfect formula for an environmental catastrophe. “The construction method of the dams that ECSA are building at the Mirador Mine is so risky that its construction is illegal in Chile and a few weeks ago was declared illegal in Brazil,” said Prieto. “If we add to this the high seismicity and rainfall of the sector, and its rugged geography, once the dams of the Mirador project have been built, they will be like a loaded gun, ready to kill. We must intervene before the dams are finished; before the gun is loaded,” he added while discussing the case during a conference on the Rights of Nature at Yale University.

The activists are being represented by Juan Pablo Sáenz, an Ecuadorian lawyer, who stated that “this action is aimed at suspending the construction of tailings dams until their design is re-evaluated and updated, for which best practices and technologies should be adopted that guarantee the protection of the Rights of Nature, recognized by the Ecuadorian constitution “. They also have the advice of the expert in constitutional law, Gabriela Espinoza, who specializes in the application of constitutional rights between private parties. As she explains: “Since rights of nature are constitutional rights, the mining company is constitutionally obliged to respect them. Constitutionally, enforcement is a certainty. There is no constitutional grounds for a refusal”.

The mega open-pit mining project Mirador is built and will be operated by Ecuacorriente S.A., a subsidiary of the Chinese state-controlled China Railway Construction Corporation and the Tongling Nonferrous Metals Group Holding Company.

Ecuacorriente S.A. has been encountering resistance from both indigenous and environmental movements in its operations in Ecuador. Mirador’s works were temporarily suspended in November 2018, due to the death of two Ecuadorian workers caused by a failure to comply with occupational health standards.

***

Contact information: Ecuador – Juan Pablo Sáenz: juanpasaenz1981@gmail.com +593 98 4250 700 USA – Julio Prieto: julio.prieto@yale.edu +1 267 356 0298

EU – David Dene: david.nede@gmail.com +34 699 532842

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