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Cablegate: Rights of the Environment in Ecuador's New

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DE RUEHQT #0913/01 2671847
ZNR UUUUU ZZH
P 231847Z SEP 08
FM AMEMBASSY QUITO
TO RUEHC/SECSTATE WASHDC PRIORITY 9414
INFO RUEHBO/AMEMBASSY BOGOTA 7752
RUEHBR/AMEMBASSY BRASILIA 3990
RUEHCV/AMEMBASSY CARACAS 3190
RUEHLP/AMEMBASSY LA PAZ SEP LIMA 2812
RUEHGL/AMCONSUL GUAYAQUIL 3812

UNCLAS QUITO 000913

SENSITIVE
SIPDIS

FOR USAID/LAC

E.O. 12958: N/A
TAGS: SENV ECON SOCI PGOV EC
SUBJECT: RIGHTS OF THE ENVIRONMENT IN ECUADOR'S NEW
CONSTITUTION

REF: QUITO 369

1. (U) Summary: Ecuador's proposed constitution contains
possibly significant changes in the area of environment,
generally centralizing management while expanding the basis
for conservation and enforcement. Nature, or "Pachamama" (a
Quechua-Spanish hybrid word for "earth mother"), is given
explicit rights to exist and be maintained. It is unclear
how these rights will be applied, how they will conform to
other sections of the draft constitution dealing with water,
protected areas, and indigenous territories, and whether they
will change environmental policy or practice in Ecuador. End
summary.

2. (U) The following is Embassy's analysis of the most
important environmental provisions in the draft constitution:

3. (U) Right of Nature to Exist (articles 10, 14, 32, 71,
72). The new constitution describes environmental rights in
the context of "collective rights," emphasizing that human
communities must coexist with nature. Nature has a right to
exist and to be maintained, but humans also have the right to
benefit from nature to live well (concepts of "buen vivir" or
"sumak kawsay" ) roughly "good living," articles 14, 32).
The central government will be responsible for limiting
activities that may contribute to the destruction of species
or ecosystems. As such, the environment has status equal to
that of citizens of Ecuador, and all current legislation
touching upon the environment notionally will need to be
revised to reflect this. The draft constitution also
stipulates that the state will not be party to any treaties
which may be harmful to the sustainable management of
biodiversity, human health or the "collective rights of
nature" (article 403).

4. (U) Claims of Environmental Damage. The constitution
will create a new Environmental Prosecutor's Office
("Defensoria") to manage claims of environmental damage
(article 399). Part of the guidelines laid out for this
office say that individuals or companies accused of
environmental damage will now be guilty until proven
innocent. Apparently any individual may present a claim to
the Prosecutor's Office on behalf of the environment. An
economic analyst has pointed out that, using the case filed
against Chevron claiming damages of $8-16 billion as
precedent, state oil company Petroecuador could also now be
responsible for billions of dollars of environmental damage
(note: Petroecuador accounted for 90 percent of all oil
spills in Ecuador last year, according to official government
data quoted by local newspaper El Universo). It is not yet
clear to which part of government the Environmental
Prosecutor's Office will report, but some have suggested it
will report directly to Ecuador's new National Assembly
(Congress).

5. (U) New Superintendency of Environment. The constitution
defines an environmental superintendency as a technical
agency that will have responsibility for supervision,
auditing, and control of environmental activities by public
and private entities (article 213). There are already plans
underway (under the existing constitution) to create a
Superintendency by Presidential decree in the near future,
and planning has been in process since January with technical
assistance from USAID. This entity will reportedly be
distinct from the Environmental Prosecutor's Office (though
the differences are not yet established), and will have
direct authority to sanction violations of environmental law.

6. (SBU) New strategic sectors. The draft Constitution
specifically identifies "strategic sectors" to include energy
in all forms, non-renewable natural resources, water (the
draft identifies water as an inalienable right of nature and
of humans), and biodiversity (article 313). The central
government will now be responsible for "guaranteeing" water
conservation and the integrated management of hydrological
resources (articles 314, 318, 411). "All forms of
privatization" of water are prohibited, but public or
community agencies may allocate water resources for
consumption, agriculture, nature, or productive uses (in that
order). Article 408 specifies that the central government's
share of earnings from non-renewable resources, including
water, must now be no less than 51%. Environmental and
"ecosystem" services (potentially carbon markets) may also

possibly be subject to the 51% rule (note: controversy arose
in early September when PAIS members of the Constituent
Assembly told the press that article 408 had been added to
the draft subsequent to, and outside of, the committee review
process).

7. (U) Biodiversity. The constitution declares Ecuador
"free" from genetically modified agriculture and seeds
(GMOs), except in the case of national interest decreed by
the President and approved by the national assembly (article
401). This contrasts with the 1998 constitution, which says
only that the state must strictly regulate GMOs. In a
completely separate part of the constitution (Art. 15), there
is a prohibition on the production, sale, or importation of
GMOs that are harmful to human health or ecosystems.

8. (SBU) State Management of Protected Areas. The state
must now "fund the sustainable management" of protected areas
(article 405), and no protected area may be opened for
exploitation, except by presidential decree. The latter is
currently the case, but this point has now been elevated to
constitutional status. The constitution also states that any
development (commercial or otherwise), that may have
environmental or cultural impacts requires "prior
consultation" with people living on or around the land in
question. (Note: this will be particularly important if the
GOE decides to open the Ishpingo-Tambocoha-Tiputini (ITT)
field in Yasuni National Park to drilling (reftel); but as
with so many sections, the implications cannot be known until
the implementing laws regarding protected areas are written.)

9. (SBU) Property. The constitution's new clauses on
property say that the state may expropriate property, with
compensation, in order to pursue social development plans, to
"sustainably manage" the environment, or for the collective
well-being (article 323). It prohibits all forms of
confiscation, however, saying that expropriation can happen
only after property values and compensation have been
established. The current constitution has similar provisions
- that municipalities may expropriate property in order to
"conserve the environment for future development" (article
32) - but the draft constitution suggests that the federal
government could play a more active role in defining the
social or environmental function of land.

10. (SBU) Galapagos special regimen. Currently, the
Galapagos islands are governed by a special law enacted in
1998. The new constitution confirms the special status of
the islands, but stipulates that a new "special regimen" law
for the islands will be written (articles 242, 245). It
proposes a governing council for the Galapagos made up of
mayors, a representative of the President, a representative
of parish committees, and possibly other parties. The text
does not mention the Galapagos National Park, and says that
the islands should be governed with attention to
"conservation and 'buen vivir'," apparently placing the two
on equal footing. Once again, the new implementing law will
determine the real importance of these changes. (Comment:
New GNP director Edgar Munoz, appointed August 11, is rumored
to be an advocate of the tourism industry and affiliated with
entrenched political and economic interests in the
archipelago. In a meeting with Post, he seemed to have no
strong opinions about the draft constitution, even though the
National Park * the only institution in Galapagos charged
with conservation * appears to lose significant power. End
comment.).

11. (SBU) Comment: The proposed constitutional changes
could greatly increase environmental protections, although
setting up potentially serious conflicts with development
activities. The draft constitution does not ban extractive
activity (as certain environmentalists in the Constituent
Assembly had hoped), and the Correa Administration has the
flexibility to move forward with mining and petroleum
projects (and it appears that it wants these projects and the
income they will generate). How this plays out will depend
on the detail and direction of implementing laws enacted
later, as well as the balance the government will seek
between the environment and development, since it will have
considerable discretion to move either way. End comment.
CHRITTON

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