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Protecting Water in Kimsakocha

October 21, 2022


Contact:

Nizhoni Begay communications@waterprotectorlegal.org


Ecuador – On Friday, October 14, 2022, the Water Protector Legal Collective (WPLC) submitted an amicus brief in defense of Water and in support of Indigenous communities in Azuay, Ecuador opposing gold and copper mining by Canadian company, Dundee Precious Metals, in the fragile ecosystems of the paramos of Kimsakocha.


Indigenous communities of Kimsakocha presented a lawsuit against Dundee Precious Metals for the violation of the human right to water, rights of nature or Pacha Mama, right to prior consultation as Indigenous communities outlined by the United Nations and Ecuador, right to environmental consultation, right to sumak kawsay (good living), and the right to legal security. After Indigenous communities won in the first tribunal (trial court), the government and Dundee Precious Metals appealed to the second tribunal. The amicus brief submitted by the Water Protector Legal Collective was one of 29 amici submitted by environmental and legal experts to the Ecuadorian court in support of Kimsakocha plaintiffs for the October 14, 2022 hearing.


“The present action [by Indigenous communities of Kimsakocha] seeks the immediate and definitive suspension of all mining exploration and exploitation in the Kimsakocha paramos, since the Canadian mining company, Dundee Precious Metals, did not carry out a due process of consultation and free, prior, and informed consent,” stated the WPLC amicus. In addition, the amicus noted that Kimsakocha holds fragile ecosystems which “sustains life in the region and form part of a water protection area, with forest and protective vegetation that is part of the Cajas Biosphere Reserve.” Moving forward with Dundee’s project would violate “communal and individual rights to water” and “the rights of Nature recognized by the Republic of Ecuador.”


Protecting Kimsakocha protects Indigenous life, legal security, and the rule of law.


For thirty years, Indigenous communities that live in the foothills of the paramos of Kimsakocha have defended their waters from the extractive invasion of metal mining. Dundee Precious Metals seeks to carry out a large-scale gold and copper mining project. With support from the government of President Guillermo Lasso, Dundee has gone through “exploration” and is preparing for the “exploitation” phase.


A report presented by Terrae, on the infeasibility of the Loma Larga mining project in Kimsakocha stated:

The mining project intends to extract gold and copper using underground mining techniques over 16 years, extracting 3,000 tons per day. The waste will reach the subsoil, and another 5.5 million tons of tailings ‘will be disposed of in the territory forever.’”

Community opposition to the Loma Larga project has been fierce and unequivocal for thirty years.


Kimsakocha, which means “three lagoons,” is located upstream from the city of Cuenca, Ecuador's third largest city. Two rivers (Tarqui and Yanuncay) originate at Kimsakocha. These vital water sources supply irrigation water to ensure food sovereignty and the livelihood of tens of thousands of inhabitants of the city of Cuenca.


In response to the state's lack of response, communities and human rights defenders organized their own consultations. In three different consultations from 2011-2021, 80-93% of the population in Cuenca voted against mining activity. On October 2, 2011, 93% of the water users of Tarqui and Victoria del Portete objected to mining activity, on March 24, 2019, in popular consultation of the people of Giron with 90% rejected mining activity, and on February 7, 2021, the people of Cuenca with more than 80% who objected to mining in Kimsakocha. Yet in February 2022, extractive machinery was found in the community going against the communities’ vote.


Yaku Pérez Guartambel, member of the Indigenous community of Kimsakocha and attorney for those communities, describes the importance of this case:

“Kimsakocha is a water recharge and regulation zone for the Pacific and the Amazon, and in its flowing irrigates ecosystems and populations, ensuring health and food sovereignty. The Indigenous communities defend Kimsakocha as a source of life for their future; there have been three decades of Indigenous and urban resistance. The resistance against mining extractivism in Kimsakocha is based on community and social alliances against an alliance of political and economic, national and transnational power. We have been successful in complementing the fight with the social struggle, and if the courts rule in favor of Kimsakocha they will establish a precedent that will be a benchmark for defending water in other territories.”


The hearing in the appellate court on Friday, October 14, 2022, lasted over 9 hours, with close to 5 hours by the attorneys representing Dundee Precious Metals and representatives of the Republic of Ecuador defending the mining exploitation as development. After hearing from Dundee and the Ecuadorian state, Attorney Yaku Pérez Guartambel argued in favor of the Indigenous communities and Nature. Manuela Picq, Juan Castro of the Bufete de Pueblos Indigenas de Guatemala, Azuay legislator Bruno Segovia, and community leaders presented on behalf of amici.



Guillermo Lasso’s government tells the Provincial Court that prior consultation in Kimsakocha is not needed arguing that "there are indigenous individuals but that there are no communities". They have to say that Confederación de los Pueblos de la Nacionalidad Kichwa del Ecuador- ECUARUNARI and Confederación de Nacionalidades Indígenas del Ecuador are individuals, not communities.


Anti-Indigenous racism was at the core of attorneys representing Dundee Precious Metals and attorneys representing the Republic of Ecuador arguments. They referred to attorney Yaku Pérez Guartambel and the Indigenous communities as people who just "do not understand” the need for development. They argued that there was no need for prior consultation on the paramos of Kimsakocha because no Indigenous peoples exist there. Dundee and government representatives reiterated that even if they "speak Kichwa, wear Indigenous clothes, and have Kichwa names, that does not make them Indigenous.” This argument uses the language of mestizaje to attempt to delegitimize and erase Indigenous peoples.


Judges will announce their sentence in the coming days.





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