WHEN COURTS MEET NATURE
A REAL CASE ON RIGHTS OF NATURE
Hugo Echeverría – Environmental Lawyer*
A SUI GENERIS CASE
It took place in Ecuador between 2012 and 2015.
It happened in a remote area, a frontier-area with many socio-environmental conflicts where law enforcement is challenging.
There, a local Court addressed a case about a shrimp farm located inside a protected natural area, the famous Cayapas-Mataje ecological reserve, home to the tallest mangroves in the world—up to sixty meters high. The Ecuador environmental authority removed the shrimp farm and the shrimp farm’s owner challenged the order.
In Ecuador, there are 161.835 hectares of mangrove in five estuarine areas including the Cayapas–Mataje area in the Northwest side of the country. In fact, the establishment of the ecological reserve of 51.300 hectares was entirely based upon on the protection of this ecosystem.
Despite the relevant environmental argument, the local Court addressed the case from a property-rights perspective and focused on whether the shrimp farm was installed before or after the establishment of the ecological reserve. In spite of satellite images showing the farm being installed after the establishment of the ecological reserve, the local Court ruled in favor of the shrimp farm’s owner.
In 2015, the case went to highest court of constitutional justice in the country for review under a rights of Nature perspective.
In Ecuador, the Constitution considers mangroves a fragile ecosystem. This means the mangroves must be protected by the Ecuadorian State and preserved by the citizens. This constitutional recognition is consequence of a three-decade effort to fully protect this ecosystem against the expansion of the shrimp industry.
RIGHTS TO NATURE
The Constitution of Ecuador recognizes Nature as a subject of rights. This recognition, dating back to 2008, has been of difficult to integrate and to apply in complex situations because traditionally humans consider Nature as an object, or more specifically, as a resource. Accordingly, Courts of Justice have not given Nature a voice. However, in this case, the Constitutional Court —in a turn of Copernican proportions—recognized Nature as a subject to constitutional rights.
NATURE AS A SUBJECT OF RIGHTS
The Constitutional Court of Ecuador reviewed the case and concluded that the local court exclusively addressed the issue on the basis of the right to property, and not the rights of Nature.
Taking into account that in Ecuador all constitutional rights share equal legal significance, the Court stressed that it was unusual for the judicial reasoning to disregard the significant environmental impacts arising from the shrimp farm in a fragile ecosystem. Based upon this argument, the Constitutional Court noted:
¨This Constitutional Court has been emphatic in highlighting the importance of rights to nature, which result in the obligation of the State and its officials to encourage and promote respect for all the elements that are part of an ecosystem, as well as for Nature’s right to be respected in her entirety. These aspects have obviously not been observed … in a case whose central issue is the installation of a shrimp farm within the Cayapas-Mataje ecological reserve, a place possessing a system of mangrove with a wide variety of species of fauna and flora.¨
The Constitutional Court ruled the case should be comprehensively reexamined, this time including a rights of Nature perspective.
The Constitutional Court’s decision sets an important precedent, which not only serves as guidance for cases relating to mangroves, but to all cases regarding natural protected areas and fragile ecosystems.
ACCESS TO JUSTICE
Shortly after this judgment, Ecuador enacted a new law granting full legal standing to Nature. The same law provides for Nature’s representation at trial by any person or the Ombudsman.
¨SHOULD TREES HAVE STANDING?¨
In the 1970s, this question was put forward by Professor Cristopher Stone. Today we can say that, in Ecuador, nature has full standing and, in fact, mangrove trees had their day in court and won. In the following years, courts have granted legal personhood to not only trees, but also to rivers in Colombia, India, and New Zealand.
Professor Stone was right.
* To access the full text of the judgment, click on this hyperlink
Original Spanish Text
*Para acceder al texto íntegro de la sentencia, hacer clic en este hipervínculo
*About the Author, Hugo Echeverria
Attorney at Law and Doctor of Jurisprudence granted by Pontificia Universidad Católica de Quito, Ecuador. Master of Laws (LL.M) granted by McGill University in Montreal – Quebec, Canada. Alumni of the Chevening Fellowship Program, directed by The Foreign and Commonwealth Office, on Environmental Governance at Wolverhampton University – United Kingdom.
Hugo Echeverria works in environmental law since 2001, with emphasis on international law and biodiversity conservation as well as the environmental rule of law; areas in which he practices as an attorney and a consultant.
He also lectures environmental law in Ecuador, at undergraduate and graduate levels. Between 2014 and 2017, he coordinated the minor on Environmental Law at the Faculty of Law of Universidad San Francisco de Quito. He has written books as well as essays and articles on environmental law for national and international publications. His book on environmental due process, Tutela judicial efectiva en material ambiental, is the first in Ecuador examining the issue from a constitutional perspective.
Hugo Echeverria is a member of the World Commission on Environmental Law of IUCN as well as a member of the Ecuadorian Foro de Abogados. He is also collaborator of the Latin American Network of Environmental Public Ministry.
Hugo lived in the Galapagos Islands for five years, where he worked on marine and coastal legal issues from the perspective of world natural heritage sites, enforcement rights and access to justice.
Hugo’s current academic and professional interests focus on a comparative approach to constitutional environmental rights (constitucionalismo ambiental latinoamericano); rights of Nature; the environment in the Interamerican system of human rights; the role of citizens and NGOs in promoting environmental rights, and the role of the judicial system in advancing the environmental rule law.