Right to nature

Lucy Mayhew

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The author looks at recent events in Ecuador and suggests that if human societies are to survive, all countries must follow its lead and align legal systems with the laws of Nature.

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For the past fourteen years, a bitter legal battle has been waged on behalf of 30,000 Ecuadorian Amazonians against Chevron, America’s second-largest oil giant, which bought Texaco in 2001.

The suit alleges that Texaco dumped more than 16 million gallons of oil and 20 billion gallons of oily waste water into 1,700 acres of pristine Amazon rainforest, much of which was seepage from 916 open waste pits. Indigenous communities say that high rates of cancer and miscarriages and other chronic health problems are the result of this contamination.

Some legal practitioners have referred to this ecological crisis as a crime against humanity and there have even been mutterings of genocide because the populations of some Indigenous groups are said to have dropped to the brink of extinction, whilst one (the Tetete) has disappeared altogether.

But every claim made during the legal battle that has ricocheted between courts and lawyers in America and Ecuador for so long has its own stinging counter-claim. For example, Chevron rubbishes the allegation of tribal decline, saying there is evidence to show that some tribes have actually increased in size.

The corporation also contends that Texaco contributed to a government-approved clean-up programme between 1995 and 1998, in which 38% of the oil pits were decontaminated, a portion it feels absolves it from any further clean-up responsibilities in the region. That the remediation work has largely been dismissed as ineffectual is also denied by Chevron.

It has been suggested that Chevron is the target of the litigation because the American personal injury firm financing the case stands to profit, and that the state oil company, Petroecuador, which had a 66% interest in the oil operations during Texaco’s 26-year stay, should also bear some of the responsibility and costs. There are those close to the case who suggest the entire lawsuit is riddled with corruption and motivated by greed.

But what is hard to contest is the existence of billions of gallons of contaminated waste spilled during the Texaco years which still impacts on the ecosystem today. Impoverished families continue to live, wash, fish and drink next to abandoned and active parts of the oil concession.

I recently visited one such family: Mercedes Jaramillo, a 35 year-old mother of two, had built her house on top of a supposedly decontaminated pit. Her only drinking water came from a polluted stream close by. She was suffering from skin cancer at its most advanced stage and a litany of other debilitating health complaints but had money for neither bottled water nor medical treatment. Scores more people have similar tales of suffering.

Oil companies worldwide are keeping a sharp eye on this high-stakes litigation. Whilst the interminable case drags on, Pablo Fajardo, the chief Ecuadorian lawyer, comments, “Looking to extract oil or resources in the cheapest way possible the world over means Indigenous peoples are deemed not to count but get to pick up the bill which they pay usually with their lives.”

Kevin Koenig, a spokesman for Amazon Watch, who remains hopeful of a payout by the oil giant, explained, “Texaco operated in an extremely egregious manner and set a precedent for low-standard future oil extraction. [Its] impunity to date has sent a clear signal to other oil companies that drilling and dumping is acceptable. This case maintains that companies must be held accountable for such reckless behaviour.”

Regardless of the verdict, there is hope that such a case and, more importantly, the circumstances leading to it will never be repeated, and this hope springs from laws that have just been passed in Ecuador’s new constitution. These laws are the first of their kind anywhere in the world because they grant Nature its own rights to exist and, more importantly, to “persist” and “flourish”.

Until now, Nature - forests, rivers and oceans - has been subject to property laws, making it something to be owned, exploited and very often destroyed as it is used to serve human interests. These new laws are being hailed as an evolutionary leap in constitutional thinking, as profound as the laws that eventually granted rights to slaves, women, children and, most recently, black South Africans.

The South African environmental law and governance expert Cormac Cullman suggests that this legal tidal shift is arguably “as great as moving from an understanding that the sun revolves around the Earth to the contrary position”. This is because it brings into the limelight the understanding that if human societies are to survive, we must align our legal systems with the laws of Nature.

The new laws state that “Natural communities and ecosystems possess the unalienable right to exist, flourish and evolve within Ecuador ... and it shall be the duty and right of all Ecuadorian governments, communities and individuals to enforce those rights.”

Thomas Linzey, a US lawyer who worked on the new constitution, explains that “the new laws will allow people the right to sue on behalf of an ecosystem, even if they are not actually injured themselves.”

There are numerous “what-ifs” surrounding the practical issues of applying the law, especially when almost half of Ecuador’s population live below the poverty line and the majority of the country’s wealth relies on extractive industries.

But Zoe Tryon, an environmental campaigner for the Pachamama Alliance who worked closely with the Ecuadorian Assembly developing the Rights for Nature laws, believes that in future “the rest of the world will look to this tiny country as one that has been incredibly brave and ambitious; the first to put the Rights of Nature in its constitution.”

She continues, “It may be too late for the Chevron case but it will be an effective deterrent for similar operations and an added kick to all oil and mining companies to stop and think about the least impactful way of extracting natural resources.”

The Pachamama Alliance is already working with Ecuador’s environment minister Marcela Aguinaga to protect part of the Ecuadorian rainforest called Yasum National Park. The 1.5 million-acre tract of pristine forest has more species of plant and animal in one hectare than can be found in all of North America, but there are also 920 million barrels of oil beneath the forest floor.

- Third World Network Features

(The writer is a freelance journalist with a special interest in social and humanitarian, environmental and ethical issues)