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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