Mirador Mine Claim

LORD JUDGE / LADY CONSTITUTIONAL JUDGE

David Frederick Dene, British citizen with United Kingdom passport No. 546164672, United Nations Expert in Harmony with Nature, domiciled in Spain, with residence card No. X1734405K, and Juan Pablo Sáenz, Ecuadorian lawyer and citizen residing in Quito, we appear before you under the provisions of articles 86 and 87 of the Constitution of the Republic and articles 6, and 26 to 38 of the Organic Law of Jurisdictional Guarantees and Constitutional Control, to request that AUTONOMOUS PRECAUTIONARY MEASURES be issued for prevent an imminent and serious violation of the rights of nature. The objective of this precautionary measure is to avoid an ecological mega-disaster caused by the imminent failure of mining tailings dams that are under construction in the well-known Condor-Mirador project by the company Ecuacorriente S.A. (ECSA). This failure will cause serious and irreversible damage to the maintenance and regeneration of the vital cycles, structure and functions of the Quimi, Tundayme, Zamora and Santiago river basins, as we demonstrate with the “Evaluation of the Design and Construction of the Tailings Dams for the Mirador Mine, Zamora Chinchipe, Ecuador “1 and the legal foundations that we expose next:
SUMMARY: We request a constitutional precautionary measure in order to protect the rights of nature that are seriously threatened by an imminent ecological catastrophe of unprecedented proportions in Ecuador. Everything indicates that the collapse of the dams planned to contain more than 390 million cubic meters of mine tailings in the Cóndor-Mirador project is inevitable. As we will explain in a technical and documented way in this demand, this is a certain future fact, inevitable and with extreme consequences. The way in which the company ECSA is building dams is an act that threatens in a serious and imminent manner to violate the rights of nature. We are not discussing whether or not the company has the permits in order (as did all the dams that have failed in Canada, Brazil or Israel). We are demanding that, independently of those permits, the construction and operation of the dams by ECSA represents a threat of irreversible damage to the rights of nature. This is the construction of two dams (one of which would be the highest in the world), contravening the technical recommendations, in the middle of an area with high rainfall and on a geological fault. Floods and earthquakes will happen with absolute certainty, so experts say that this is the recipe for a disaster.
In application of the principles of precaution and prevention, we cannot simply wait for this to happen because the consequences of this event are irreversible for the rivers that will receive the uncontrollable discharge of tens of millions of tons of (toxic) mining tailings – which will cause the rupture of life cycles, structure and functions that they fulfill (Article 71 CRE). Restoration or compensation in kind would be impossible. In addition, a few months ago a new

1 The Report has been prepared by Dr. Steven H. Emerman, who has a Bachelor of Science (BS) in Mathematics from the Ohio State University, a Master’s Degree (MA) in Geophysics from Princeton University, and is a Doctor ( Ph.D.) in Geophysics from Cornell University. He has 31 years of experience in the teaching of hydrology and geophysics and 66 publications reviewed by experts in these areas. He also owns Malach Consulting, a firm specialized in assessing environmental impacts for mining companies, governmental and non-governmental agencies.

species of frog that lives in the area that would be affected (probably until extinction) by this catastrophe. The extinction of a species always implies an irremediable interruption of its functions in nature. Fortunately, we have time to avoid this disaster and prevent the violation of the rights enshrined in Article 71 of the Constitution. We must prevent the inevitable consequences of building dams predestined to fail in a biodiversity hot-spot such as the Cordillera del Cóndor.
For this purpose, the case will proceed as follows. First, the antecedents that give rise to the present precautionary measure will be described, particularly around the origin of the situation with which the rights of nature are put at risk. Second, the rights that could be seriously and imminently violated due to the inevitable collapse of the mining tailings dams will be identified. Third, it will be indicated how the present demand complies with all the forms foreseen in the Constitution and in the Law of Jurisdictional Guarantees and Constitutional Control. Fourth, active legitimation will be justified to present this autonomous precautionary measure. Fifth, it will be established what is the precise claim of the request for precautionary measures, that is, in short, the immediate suspension of the construction of the mining tailings of the Cóndor-Mirador project to ensure the use of best practices and the best technology available, that allows us to ensure that the probability of failure of the dams of the Mirador mining project has been eliminated.
Content
1. BACKGROUND ……………………………………….. ……………………………..3
1.1. There are currently two dams under construction for the containment of tailings ………………………………………………………………. 5
1.1.1. Relavera Quimi (Alternative 2) …………………………………….. ……..7
1.1.2. Relavera Tundayme (Alternative 1) …………………………………….. .9
1.2. The construction of these dams implies a probability of failure so high that it must be considered as inevitable ……………………………11
1.2.1. Earthquakes ………………………………………….. ……………….13
1.2.2. Construction of dams Upstream or “Upstream” ………. 14
1.2.3. Steep slope ………………………………………… …………………..16
1.2.4. Floods …………………………………………. ………………………….17
1.2.5. High probability of failure due to liquefaction ………………..18
2. CONSTITUTIONAL FRAMEWORK AND CONSTITUTIONAL RIGHTS AT RISK OF BEING VULNERED ……………………………….. ………………….19
2.1. The failure of the dams will cause the violation of the rights of nature…………………………………………………………………………………………..20
2.2. The violation is serious and imminent. ………………………………..24
2.3. On environmental licenses and the rights of nature ………………26
2.3.1. The existence of a license is not an authorization to infringe rights……………………………………………………………………………………………… 26
2.3.2. This action does not need to be directed against the environmental license …………………………………………………………….. 29
2.3.3. Scope of the powers of the central state to regulate the construction of these dams……………………………………………………………… 31
3. PROCEDIBILITY OF THE PRECAUTIONARY MEASURE ………………….32
4. ACTIVE LEGITIMATION ………………………………………. …………………..33
5. PETITION FOR PRECAUTIONARY MEASURES ……………………………..35
6. DECLARATION OF JUSTICE OF NOT HAVING PRESENTED A SIMILAR ACTION ………………………………… ………………………………………….. …….37
7. ACTIONED PERSON AND COMPETENCE …………………………………….38
8. NOTIFICATIONS ……………………………………….. ……………………………38
9. ANNEX ……………………………………….. ………………………………………..38
10. LEGAL SPONSORSHIP AUTHORIZATIONS …………………………………38

1. BACKGROUND
Ecuador has a long history of enthusiasm towards extractive models. It happened first with rubber, then with oil and more recently with mining – all have been presented by its promoters as the panacea. However, history shows that in each of these cases we have suffered terrible consequences, mostly due to the extractive methods used in each case and our ignorance of these activities. In each case the enthusiasm of the State was accompanied by promises of progress, but even more serious, it was framed and empowered by the absence of regulations for environmental protection. This is the case of a new threat that Ecuador faces with mega mining and in the way that is being implemented by the ECSA company in the Cóndor-Mirador mining project.
Reviewing the history of the Cóndor-Mirador mining project (well known to the country) we find that 2 Empresa ECSA obtained a mining concession to exploit gold, silver and copper in the Cordillera del Cóndor, sector Mirador. It is the first open-pit mega mining project in Ecuador. Despite the opposition of many of its inhabitants, the lack of prior, informed and binding consultation, the Government of Rafael Correa (and its courts) considered that this project was of national interest. The company presented its plans and obtained several permits that allowed it to start its activities, however, we will see that, independently of any state permit or authorization for its activities, ECSA is currently building two 3 dams of mining tailings, whose failure is inevitable and consequences extreme.

2EcuaCorriente S.A. (ECSA) is an Ecuadorian subsidiary of the Chinese consortium CRCC-Tongguan, made up of the Chinese state-owned Tongling Non Ferrous Metals and China Railways Construction Corporation.
3 In engineering, a barrier made of stone, concrete or loose materials, which is built to hold water or other materials, is called a dam.
Mining tailings are a mass of toxic waste that result from mining processes, that is, they are the residues of the mining exploitation. They cannot be eliminated in any way, so they are contained in perpetuity by dams designed exclusively for this purpose. As a prelude to the disaster that we intend to avoid with this precautionary measure, we find that the technical aspects for the construction of these type of dams are not regulated by 4 Ecuadorian law.
This demand for precautionary measures does NOT discuss the granting of administrative permits or environmental licenses for this project. What we propose, Mr. Constitutional Judge, is that we consider the design characteristics of the dams built by ECSA, the widely recognized criteria and safety guidelines for the design and construction of tailings dams, the opinions of experts, the state of the technology, statistics, the study of other cases of failures that have happened in other parts of the world, and we frame the situation of Cóndor Mirador with the greatest possible objectivity. With these precautionary measures we intend to prevent the occurrence of a disaster which would be much worse than 5 the spill that occurred in January 2019 in Brazil, where more than 20 million tons of waste were spilled, that is, only a fraction of the threat that looms over our Amazon
4. A review of all Ecuadorian legislation demonstrates that there are no technical regulations that regulate the methods of construction of mine tailings dams. There is a regulation that states that “they must take strict precautions to avoid contamination” (Article 81 of the Mining Law), or that they regulate the information that the concessionaire must deliver to the administrative authority (Instructive Plant Authorizations Benefit, Casting of Tailings, Minesterial Agreement 18, RO 554, of July 29, 2015). There are also generic obligations to use due care and avoid pollution, as well as regulations that refer to the “Location and construction of tailings deposits” (Article 116 of the Environmental Regulation of Mining Activities of the Ministry of Environment), which refers that these should be built “outside areas where seismic faults have been detected” and that “No pools or tailings deposits will be located in sites that favor erosion, subsidence, or in places that may contaminate natural drainages, or underground water flows “. There is not a word about the construction method upstream (illegal in many countries), the slope of the dam, resistance to earthquakes or floods.
5 “The rupture of the mining dam in Minas Gerais has not only caused the contamination of more than 300 kilometers of an Amazon river, but the death of 160 people and the disappearance of more than 150.” See: Brazil’s biggest environmental disaster , available at https://www.servindi.org/noticias/17/02/2019/la-desgracia-ambiental-mas-grande-de-brasil
Let us begin by noting that the failures of a mine tailings dam are much more likely to happen than in a water dam. The United Nations Environment Program (UNEP) confirmed the record of 104 tailings dam disasters since 1990 until 2016. It is not only about complying with the law and having permits. Those responsible for the previous disasters have had their papers in order and the dams have failed. For this reason, the existence or absence of environmental licenses and permits is irrelevant for this precautionary measure. On this particular occasion we will delve into the following section
(2. Constitutional Framework and Constitutional Rights at risk of being Vulnerated).
The underlying problem lies in the conditions or scenarios under which these tailings dams are built and, in the methods, used by ECSA. The sum of these factors contributes to the fact that failure is inevitable. As we will see below, all the risk scenarios converge in this case and the design methods are not adequate. Thus, it is a certain and indisputable fact that;
a) there are currently two dams under construction for the containment of mining tailings, and
b) the construction of these dams implies an inevitable failure and catastrophic consequences.

1.1. Two dams are currently under construction for the containment of tailings
Initially the company ECSA proposed the construction of a dam for mining tailings. This dam would be constructed using the downstream method and with a slope of 1V: 2H (see 1.2.1 for a technical explanation of these issues). However, the company ECSA, is building two “alternatives” to this project that were proposed in a subsequent environmental impact study.
Emerman explains that Alternative 1 (preferred by the mining company) was to replace relavera Quimi with Tundayme relavera in the steep valley of Tundayme River, which would have more space for tailings.
Alternative 2 was to keep the tailings with a minimum moisture content to convert them into a paste and add portland cement to immobilize the heavy metals. The
6 A water dam has a failure probability of 1 in 10,000, while a mine tailings dam has a failure probability of 1 in 700. See: Tailings confinement failures: Are the geotechnical engineers paying attention? Michael P. Davis, Geotechnical News, September 2002, p. 31-36
7 See: Mining and disasters go hand in hand. Available at https://www.servindi.org/actualidad-informe-especial/19/02/2019/mineria-y-desastres-van-de-la-mano
The advantage of dehydration was to reduce the tailings volume, so that twice the mass of the tailings could be confined in the same space. (see figure 11 of the Emerman Report)

The second Environmental Impact Study (Cardno, 2014a) proposed two alternatives to increase copper ore production from 30,000 to 60,000 tons per day. Alternative 1 was to replace the relavera Quimi with the relavera Tundayme, for which the dam would be 260 meters high, the tallest tailings dam ever built. Alternative 2 was to keep Quimi relavera, but increase its capacity by dewatering tailings. Alternative 1 was preferred due to its lower cost, although it would have a greater environmental impact (Cardno, 2014a). Both alternatives are currently under construction, which is inconsistent with the Environmental Impact Study (Cardno, 2014a). Modified Cardno figure (2014a). (Image taken from Figure 11 of the Emerman Report)
Alternative 2 would seem to be the same dam previously planned (or at least in the same site of the Quimi relavera), but its characteristics are different and increase the probability of failure. The initial dike of this dam has already been built, which allows us to foresee that the upstream method is being used and a slope of 1V: 1H (too steep). The other is scheduled to be the tallest mine tailings dam in the world, with a slope similar to its “alternative” and following the central line method. Later we will explain each of these technical concepts, which are necessary to understand why the failure of the dams is inevitable. First we will demonstrate that both dams are under construction and under what conditions.
1.1.1. Relavera Quimi (Alternative 2)
The Quimi relavera was originally planned to receive 30,000 tons per day, but that in its “alternative” doubled this amount. It is important to know that a stability analysis performed by consultants hired by ECSA to the original proposal of the relaver Quimi determined that the total depth of the tailings, as well as the foundation, would be liquefied during the earthquake that is expected during the life of the project. Even under these high-risk conditions, alternative 2, that is, one of the dams that ECSA is building in this same site, has considerably reduced the safety factor in its construction.

The initial dike for the Quimi dam was built on the edge of the road, the other side of which is the Quimi river (see Fig. 11). Since it is not possible to advance the slope farther in the downward direction, the intention must be to build the complete dam using the upstream method (compare Figures 5a-c). This is inconsistent with the design evaluated by Knight-Pièsold (2007) and both environmental impact studies (Walsh Scientists and Engineers, 2010b, Cardno, 2014a), which had included the construction of a central line for the quimi dam. Tailings dams built by the upstream method are more susceptible to faults due to both earthquakes and floods. Due to the impossibility of installing impermeable layers (see Figures 5a-c, 8), their higher water content also makes them more susceptible to failure due to internal erosion, static liquefaction and foundations failures. Photo taken by the author on November 6, 2018. (Image taken from Figure 16 of the Emerman Report)
The Technical Report attached to this request allows us to understand that in the construction of this dam is the upstream method is being utilized(see figure 16 of the Emerman report) and with a greater slope than initially planned. As Emerman explains, it is clear that the location of the initial dike requires the construction method upstream because the road is close to the dike and would prevent the construction downstream or in a central line. Thus, this change in construction method means that the dam is more susceptible to failure due to seismic liquefaction or flooding. To make matters worse, the initial dam has an inclination of 1V: 1H (45 degrees), which is considered the maximum critical angle for the prevention of internal erosion without margin of error. (see figure 17 of the Emerman Report):

The initial slope for the quimi dam has an inclination of 1V: 1H (45 °). This is inconsistent with the design evaluated by Knight-Pièsold (2007, see Figure 10) and both environmental impact studies, which established that the inclination would be 1V: 2H (26.6 °).
An inclination of 1V: 1H is considered the maximum critical angle to prevent the internal erosion of the dam without any margin of error (safety factor = 1.0). In contrast, according to the US Army Corps of Engineers. UU (USACE, 2000), “for sand dams, a downstream tilt of 1V at 5H [11.3 °] is considered sufficiently flat as to avoid infiltration damage that comes out of the downstream slope [internal erosion]. ” Photo taken by the author on November 6, 2018. (Image taken from Figure 17 of the Emerman report)
1.1.2. Relavera Tundayme (Alternative 1)
If alternative 1 were built according to the original designs of the Quimi relavera (ie, central line and slope of 1V: 2H), it would have a failure probability of 66.56% in 30 years of project life. However, the slope was changed to 1V: 1.5H, which is worsened by the fact that this alternative is in a larger basin, which implies that the floods are greater. However, the design of this dam has not been programmed to withstand the probable maximum flood, but only a flood of 500 years. As can be seen (see figure 18 of the Emerman Report), this dam is also under construction.
The sign clarifies that both the Quimi relavera (see Figures 1, 16 and 17) and the Tundayme relavera are currently under construction. This is inconsistent with the Environmental Impact Study (Cardno, 2014a), which listed the two tailings as alternatives. Photo taken by the author on November 6, 2018. (Image taken from Figure 18 of the Emerman report)
This tailings dam is scheduled to become the highest dam in the world, which implies

The sign clarifies that both the Quimi relavera (see Figures 1, 16 and 17) and the Tundayme relavera are currently under construction. This is inconsistent with the Environmental Impact Study (Cardno, 2014a), which listed the two tailings as alternatives. Photo taken by the author on November 6, 2018. (Image taken from Figure 18 of the Emerman report)
This tailings dam is programmed to become the highest dam in the world, which implies a feat of engineering. However, this feat is nothing that we should feel proud It is not the first Ecuadorian skyscraper nor is it a structure that will provide any service to society. A mining tailings dam is a huge toxic dump, full of products that threaten everything in its path in perpetuity. It is clear that we do not want to have the largest, we want the safest: a guaranteed dam to withstand earthquakes, floods and contain tailings in perpetuity. That would be a feat of engineering to be proud of. We believe that ECSA is technically and economically capable of making the necessary investment to build dams safely, but we are sure that it will not do so voluntarily because it would decrease their profit.

The cost of construction would be cheaper for Tundayme relaves because it is possible to take advantage of the steep slopes of the Tundayme valley (shown above) for the confinement of the tailings (Cardno, 2014a). However, the steep slope of the valley (around 13%) in the direction of the Quimi River (see Fig. 11) increases the risk of failure due to the increase in the gravitational force that would act on the dam. In addition, steep slopes pose a risk of landslides into the dam enclosure.
9 Emerman explains, quoting VIck (1990), that: While water retention dams produce economic benefits that presumably outweigh their cost, tailings dams are an economic disadvantage for the mining operation from start to finish. Photo taken by the author on November 6, 2018. (Image taken from Figure 12 of the Emerman Report)
More serious still, in the construction of both alternatives, sulphurous tailings are being used (which increases the possibility of liquefaction), which further decreases their ability to withstand floods and earthquakes. Thus, while the original design presented a probability of failure due to seismic liquefaction of 6.13% during the life of the project, these “alternatives” represent a probability of inevitable failure.
1.2. The construction of these dams implies a probability of failure so high that it must be considered as inevitable
It is important to note that in historical cases of dam failures no signs (such as cracks or fissures) were detected that indicate the presence of a problem. In all cases, the dams had the corresponding permits and their papers were in order. However, looking at it in retrospect, it has been discovered that there were certain scenarios that were configured to cause each disaster. Metaphorically, it is compared to having a loaded pistol, waiting for someone to pull the trigger. Every accident has two parts: first the conditions are created for the disaster, then they are triggered. Thus, the construction of the dams in the Mirador project is equivalent to the loading of a gun; after construction and operating, an earthquake or a flood will pull the trigger and fire the gun, the dams will fail and liquidate all life in the path of the tsunami of toxic waste.
The reality is that ECSA are building these dams under the worst possible scenarios, which increases the high probability of a failure occurring, which must be considered as inevitable and with catastrophic consequences for nature.
In the following table we explain how 10″Omissions associated with the characterization of the site are compared to creating a loaded pistol” (Free translation). Original: “Omissions associated with the site characterization were likened to creating a loaded gun.” See: Tailings dams: the path to zero failure (2015), available at:
https://www.waterpowermagazine.com/features/featuretailings-dams -4650916/
“It was a loaded gun, because the design of the dam was wrong, said the Minister of Mines, Bill Bennet, after a panel of experts presented his report.” Available at https://www.theglobeandmail.com/news/british-columbia/design-failure-caused-mount-polley-tailings-breach-expert-panel-concludes/article22719967/

All of the worst scenarios are met in the Mirador project: large volume and high rates of tailings production, steep slope, confinement to narrow valley, (requires high dam), high precipitation rates and high probable maximum flood, high seismicity and high maximum credible earthquake and a foundational base susceptible to liquefaction.

THE WORST SCENARIOS FOR THE CONSTRUCTION OF MINING RELAVES
CONDOR-MIRADOR PROJECT
Large volume and high tailings production rates ✓
Steep topography ✓
Confinement to the narrow valley (requires high dam) ✓
High precipitation and high probable maximum flood ✓
High seismicity and high credible maximum earthquake ✓
Base susceptible to liquefaction (static and dynamic) ✓
With these present scenarios and the construction methods used by ECSA, dams have a very high probability of failing for any of the five most important causes: floods, earthquakes, static liquefaction, foundation failures and internal erosion. As Emerman explains, each of these five causes can be understood in terms of the phenomenon of liquefaction, which we refer to later.11 Let’s see first how these hazard scenarios come together and the techniques used by the ECSA company to build tailings dams.
THE SUM OF THE WORST SCENARIOS AND THE METHODS OF CONSTRUCTION OF DAMAGES USED BY ECSA WILL RESULT IN FAILURE. –
Although it seems incredible that under these worst scenarios, the company ECSA are not taking the greatest precautions, but are using inappropriate methods of construction that make the failure of the dams imminent. Beginning with the use of the technique of construction of dams known as upstream and the construction of steeply angled slopes, we come to the alarming fact that these dams lack the necessary resistance to survive earthquakes
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11 See Emerman Report P.11
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or floods. Thus, far from a desire to create admiration, the construction of these dams is intended to increase the profit for the mining company by increasing production capacity while minimizing the investments in security.
1.2.1. Earthquakes
In the case of the Mirador project, there is a risk of failure of the dams there is a risk of an earthquake even during the operational life of the mine. We know it is inevitable – the earth will not stop trembling in Ecuador. Ecuador is located on a geological fault line. This is proved by the recent earthquake that struck the province of Morona Santiago. If the dams had already been built and operational, there is no doubt that we would be lamenting a disaster 5 times worse than Brazil’s, due to the spillage of 94 million tons of toxic mining tailings that would initially devastate more than 350 kilometers of Amazon tributary rivers. . Over time this pollution will be dragged even further.
To understand this problem of the Mirador project it is necessary to begin by understanding two concepts: the Maximum Credible Earthquake (MCE) 12 and the Maximum Design Earthquake (MDE). The first is the highest level of earthquake that can be credibly expected to occur, while the second is the maximum earthquake that dams can withstand.
The logical thing is that the dams are built to support the Maximum Credible Earthquake, that is, that the design for the Maximum Design Earthquake must be equal to or greater than the possibility of the occurrence of the Maximum Credible Earthquake. This is what safety manuals around the world dictate – and so does common sense.
Building dams with a design for the Maximum Design Earthquake which is less than a design for the Maximum Credible Earthquake means that a Maximum Credible Earthquake can overcome the design capabilities of the dam and cause a failure.13 As incomprehensible as it may seem, this is precisely the case in the Mirador Mine project, where the Maximum Design Earthquake of the dams does not corelate with Maximum Credible Earthquake, which leads us to assume a high probability of failure of the dams due to a Maximum Credible Earthquake. As Emerman explains
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12 According to the Federal Emergency Management Agency, the maximum credible Earthquake (MCE), is “the largest earthquake magnitude that could occur along a recognized fault or within a particular seismotectonic province or source area under the current tectonic framework” (FEMA, 2005). See Emerman Report (page 17)
13 “For high hazard potential dams, the MDE [Maximum design earthquake] usually equals the control MCE (Maximum Credible Earthquake].” See Report by Emerman (page 17)
In the Report, it is shown that an earthquake can cause dynamic liquefaction, channeling (internal erosion = piping) and / or foundation failure, especially if other factors converge such as the fact that the dam is built upstream, and is steeply sloping or flood prone. All these factors converge in the Mirador Mine Project.
When an earthquake occurs, the water trapped between the particles does not have time to escape. The water becomes compressed and pressure is increased causing the solid particles to separate until they no longer touch each other. In this way, surfaces that were (or seemed to be) solid, become liquid.
In 2007 Environmental Impact Studies carried out seismic stability studies regarding the Quimi relavera as part of the initial plan for its construction, that is, with the downstream method and a slope of 1V: 2H. These studies established that all the tailings and the foundations of the dams would undergo liquefaction with a Richter Scale 7 earthquake producing a particulate acceleration of 0.22 g. (Knight-Piesold). This means that the earthquake of February 22, 2019 would have caused the inevitable failure of both dams. What is worse, the “alternatives” that are under construction with the upstream method and a greater slope, are even more susceptible to earthquake. However, although it seems incredible, the new Environmental Impact Studies of the “alternatives” have not taken into account the previous analysis of seismic instability.
1.2.2. Construction of dams Aguas Arriba or “Upstream”
There are several techniques to build dams. The three main ones are construction upstream, or with a central line or building downstream. The Mirador project initially approved the construction of a dam using the downstream technique, however, the so-called Alternative 2 is being built with the upstream method. The dams built upstream have low seismic resistance and low suitability to store water. However, these dams are preferred by mining companies as they have the lowest cost of other alternatives.
In the upstream method, the dam is being built on the tailings that have not yet been compacted, so that in case of liquefaction of the tailings, collapse of the dam is inevitable because the dam would lose its support. The same tailings that are filling in behind the dam are used to raise the height of the dam (See figure 5 of the Emerman Report). Also, in Upstream construction method there is no place to place a low permeability core or a waterproof layer.
Both the downstream construction method and the central line method allow for the installation of chimney drains and blanket drainages (see Figure 9 of the Emerman Report), which lower the water table, reduce the likelihood of both internal erosion and seismic liquefaction.

14. Blanket drains can be installed using all three construction methods, although chimney drains can be installed using only the downstream and centerline construction methods. These drainages lower the water table and reduce the likelihood of internal erosion of the dam (see Figure 7), seismic liquefaction of the tailings, static liquefaction of the dam or tailings deposit, and failure of the foundation below the tailings. Modified figure by Vick (1990). (Image taken from Figure 9 of the Emerman Report)
The construction method upstream is so dangerous that it is illegal in Chile, 15 precisely because it is a country with a high risk of earthquakes16 (like Ecuador) and upstream constructions were recently banned in Brazil17 (after earthquakes caused both of the last mining disasters. ).
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14 Emmerman’s report (p.13)
15 The National Geology and Mining Service of Chile explains: “The” Upstream Construction “method has been prohibited in Chile since 1970, an example that has been progressively followed in other countries with a mining activities.” See: http: // www .sernageomin.cl / frequent-questions-about-tailings /
16 (Fourie et al., 2013)
17 Free translation: “It is prohibited to use the method of construction or growth of dams called” upstream “throughout the national territory.” Original in portugese: “Art. 2º Fica proibida a utilização do método de construção ou alteamento de barragens de mineração denominado “a montante” em
todo o território nacional” “See: Imprensa Nacional [National Press], 2018, Resolution No.4 of February 15,
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Ecuador should imitate Chile and Brazil and also prohibit upstream design dams. We must not wait for a disaster to happen in order to learn. Unfortunately dams are not regulated by Ecuadorian law.
On the other hand, dams built downstream have high seismic resistance and a much higher ability to contain water. The cost, on the other hand, is relatively higher than upstream dam construction. It is logical to conclude that the company ECSA has opted for the construction of dams upstream based solely on economic considerations, as the characteristics of upsteam construction are far from adequate for a scenario of high seismicity such as that of the Cordillera del Cóndor.
1.2.3. Steep slope
Mining tailings dams must withstand enormous pressures, so it is recommended that steep slopes are avoided. The steeper the slope, the less resistant the dam: the greater the slope, the greater the internal erosion and channeling. As a reference, in the USA a downstream slope of 1 Vertical in 5 Horizontal [11.3 °] is considered flat enough to avoid infiltration damage, i.e. content coming out through the dam [internal erosion] “(Army Corps of Engineers from the USA – USACE, 2000).
In the case of the Mirador project, the initial design, which was approved by license, was not followed. The design evaluated by Knight-Pièsold in 2007 and both environmental impact studies, established that the inclination would be 1V: 2H (26.6 °), which without being the ideal inclination to provide security, was not as dangerous as the one that is being built. The dam ECSA is building is at a slope of 1V: 1H (45 °). This is not an argument to attack the granting of the license. It is important to consider because it is another condition that adds to the conditions for a disaster.
This is important because the inclination of 1V: 1H is considered the maximum critical angle to prevent the internal erosion of the dam without any margin of error, that is, when there are no risk conditions. In the Mirador project, with all the risk conditions present, this angle of inclination is extremely dangerous and further construction must be prevented.
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2019. Published on February 18, 2019, Edition 34, Section 1, Page: 58. Ministry of Mines and Energy / National Mining Agency. Available at http://www.in.gov.br/materia/-/asset_publisher/Kujrw0TZC2Mb/content/id/63799094/do1-2019-02-18-resolucao-n-4-de-15-de-fevereiro- from-2019-63799056
1.2.4. Floods
Floods can cause water to overrun dams, which causes their failure. This probability increases if the upstream construction method is used, as is the case with the ECSA construction. To avoid, or at least decrease, the probability of flood failure, an appropriate flood design must be incorporated in the design. For example, a dam with a low hazard potential should be designed for a flood of 100 years (flood with a probability of exceeding 1% in any given year), while a dam with a significant hazard potential should be designed for a flood of 1,000 years (flood with a probability of exceedance of 0.1% in any given year). However, a dam with a high hazard potential must be designed for the Probable Maximum Flood (PMF), which is defined as the flood that can be expected from the most severe combination of critical meteorological and hydrological conditions that are reasonably possible in the water catchment area. T
The magnitude of the Probable Maximum Flood is normally derived from the Probable Maximum Precipitation (PMP), which is defined as the highest theoretical precipitation for a given period (for details, see Emerman Report, pages 16 and 17).
The Maximum Likely Flood (MLF) is the maximum flood event that is expected to occur at a given site.
In areas of high rainfall, such as the Cordillera del Cóndor, 18 it is recommended that the Probable Maximum Flood be considered as a reference parameter.
This is not the case in the Mirador Mine project, where the tolerance to floods is projected as being much lower than the Probable Maximun Flood.
This increases the possibility of failure of the dam not only due to overflow, but also due to liquefaction.
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18 The eastern region maintains permanent rains for most of the year. In the Cordillera del Cóndor it is 1960 mm / year. See Pluviometric Atlas of Ecuador. Published in 2010 by the International Hydrological Program (IHP) of the Regional Office of Science for Latin America and the Caribbean of the United Nations Educational, Scientific and Cultural Organization (UNESCO).
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When the contents flow over the top of the dam the overflow also destroys the dam through massive erosion.
First – Overtopping. Water flows over the dam dragging material from the top of the dam thus reducing its total weight and consequently its capacity to resist the pressure exerted by the dam’s contents thus leading to collapse. (Emerman 13)
Second, if the dams are insufficiently large to contain the flood, it is almost certain that the dam will suffer a total failure due to liquefaction. When water overflows the crest of the dam it not only causes erosion but also causes saturation, causing excess weight to force the separation of solid particles and liquefaction ensues.
As we have stated, the mixture of hazardous conditions and obsolete construction techniques employed by ECSA has such a high probability of causing a failure due to liquefaction, that the collapse is considered imminent. In this context it is important to understand the phenomenon of liquefaction, its causes and consequences.
1.2.5. High probability of failure due to liquefaction
The dams that are being built by the company ECSA have a high probability of failure due to liquefaction, both static and dynamic. Static liquefaction is the result of an excessive combination of load and water, while dynamic liquefaction occurs due to earthquakes. In the case of the Mirador project, there is a risk of both types of liquefaction. The probability of earthquakes and the design required to support them have already been discussed in the previous text.

In a tailings deposit or a natural floor, although there is interstitial water in the pores between the solid particles, the particles touch each other, so that the load is supported by the solid particles (and partially by the water). In the phenomenon of static liquefaction, a combination of excessive water and excessive load causes the particles to separate, so that the interstitial water carries the entire load. As a result, the mass of solid particles and water behaves like a liquid. The phenomenon of seismic (or dynamic) liquefaction occurs when, during seismic tremor, the particles settle into a higher density state. If this happened slowly, the water between the particles would be forced up and out of the spaces between the particles. However, because the seismic tremor occurs so quickly, the water does not have time to leave between the particles. Instead, the water is compressed and the high water pressure causes the particles to separate so they do not touch each other. Tailings ponds are especially susceptible to both static and seismic liquefaction because the tailings are very wet due to the discharge into the pond without compaction (see Fig. 4). (Image taken from Figure 6 of the Emerman Report)

On the other hand, static liquefaction may occur simply due to tailings settlement or may result from a combination of excessive water and / or loading and an excessive tailings addition rate. In the first case, if the permeability of the tailings is low enough, they can settle without enough time for the water to escape. Instead, the water is compressed and the high pressure causes the particles to separate until they cease to touch each other.
In the second case, foundation failure can occur when the weight of water is excessive and forces the water into foundations with insufficient permeability leading to particle separation and liquefaction and collapse.
A high probability of failure due to internal erosion should also be considered. Internal erosion occurs when water creates pipe formations transporting solid particles through the wall of the dam to the outside causing loss of structural integrity and collapse.
Emerman explains that this “is promoted by an excessively pronounced slope of the embankment and the resulting high hydraulic gradient, which forces water to flow through the dam” (See Emerman Report, p.13).
As we have seen, all these conditions are met in the dams that ECSA is building, so that all the ingredients for a disaster are combined, which we are now in time to avoid.
2. CONSTITUTIONAL FRAMEWORK AND CONSTITUTIONAL RIGHTS AT RISK OF BEING VULNERED
The constitutional article 87, invoked at the beginning of this lawsuit, establishes that precautionary measures may be ordered jointly or independently of the constitutional actions of protection of rights, in order to avoid or stop the violation or threat of violation of a right. For its part, Article 26 of the Organic Law on Jurisdictional Guarantees and reiterates the purpose of the precautionary measures; that is, to avoid the threat or violation of the rights recognized in the Constitution and in international instruments on human rights. Additionally, because it concerns the rights of nature, this demand requires the application of the precautionary principles (396) 19 and, in addition, the direct application of Constitutional obligations on individuals (83.6 and 395.2).
There are three central questions in this case. The first is that the failure of dams could violate the rights of nature? The second is those violations are serious and imminent? We will analyze then, why there is violation to the rights of the nature and, later, why those violations are serious and imminent. Additionally, as it is a case between individuals, in which one of the parties will argue that it acts under a license, it is worth asking: Can individuals rely on an administrative authorization to violate constitutional rights without consequence.?
2.1. The failure of the dams will cause the violation of the Rights of Nature
In this case we denounce that the constitutional right that is at serious risk of being violated is the right to fully respect the existence, maintenance and regeneration of life cycles, structure, functions and evolutionary processes of nature, protected by the article 71 in the constitution.
As described in the background, we are facing a scenario of a major disaster. The dams that are being built by ECSA represent a disaster waiting to happen. When these dams fail, they will spill nearly 100 million tons of toxic waste.20 To have a perspective, remember that the disaster that occurred in Brazil in January 2019 spilled 25 million tons, poisoning and burying everything in its path. When this happens in Ecuador, all life will be killed along the rivers Quimi, Tundayme, Zamora and Santiago. We are facing a case that will lead to the permanent and irremediable rupture of life cycles, the breaking of the structure and the perpetual interruption of the functions of the ecosystem and of the evolutionary processes that occur there. Even worse, it is about the extinction of species and the permanent alteration of the equilibrium of the ecosystems that make up the Cordillera del Cóndor. Let’s see each one of these effects:

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19 Art. 396.- The State shall adopt the appropriate policies and measures that avoid negative environmental impacts, when there is certainty of damage. In case of doubt about the environmental impact of any action or omission, even if there is no scientific evidence of the damage, the State will adopt effective and timely protective measures.
20 Tailings are toxic due to the toxic elements that are associated with mineral bodies, as well as their ability to produce acid mine drainage.
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Rupture of the vital cycles: The vital cycles are the processes that allow life, that is to say, the vital processes of Nature. Prieto, citing De la Torre, explains that from the perspective of biology it is recognized that “life in the biosphere exists and is maintained thanks to two basic and interrelated processes”, which are 1) the flow of energy; and 2) the nutrient cycles “, 21 That is, to understand what are the life cycles protected by the constitutional norm, it is necessary to consider energy flows and nutrient cycles.
Energy flows. All living beings need energy to live, so the supply of energy is essential. The primary source of energy is the sun, which is the only unlimited source of energy. From this first link, solar energy is transformed, through photosynthesis, into chemical energy, which is then absorbed by other living beings along the food chain.22 This means that the organisms that transform solar energy into chemical energy acquire a leading role as the basis of this chain of energy flow. In the case of the Mirador project, the rupture of the dams and the dumping of more than 90 million tons of toxic waste into the upper Amazon river basins will inevitably interrupt this flow. The plants, cyanobacteria and algae, will not be able to perform this task when they are covered by mining tailings. Consequently, all species that depend on them will be affected by losing access to their energy source.
Nutrient cycles Nutrients are also available in limited quantities in nature, so recycling them is essential. Prieto explains: the alive beings absorb the nutrients of other components that surround them and at the same time they secrete others, until the day of their death,
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21 See “Rights of Nature, Foundation, Content and Jurisdictional Requirement” of the New Ecuadorian Law Collection, published by the Center for Studies and Dissemination of Constitutional Law of the Constitutional Court of Ecuador. Julio Prieto (2013) p. 84
22 Quote in Prieto 2013 (p.84): In the words of De La Torre and Yépez, “the chemical energy produced by a plant through photosynthesis passes to another organism, a mouse, for example, when the latter eats the plant. The mouse incorporates that energy of the food in its cells and this energy is, in turn, transferred to another organism, a wolf of the páramo, for example, when the latter eats the mouse. “
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in which all the nutrients that formed the living being return to the ecosystem as simple compounds. Each of these elements has a specific cycle, so that an alteration of the same implies interruptions in this exchange and a transformation or rupture of the equilibrium of an ecosystem. Thus, in the case of failure of tailings dams built by ECSA, we face an interruption of these cycles, because oxygen, hydrogen, carbon, to name a few, would be altered or destroyed after being buried by tons of toxic waste. The algae, plants, fish and bacterial communities of the soil will perish without a doubt. It would be absurd to think that mine tailings could replace rivers as a source of nutrients. The case is totally the opposite: the mining tailings would end forever with the nutrient cycles in the basins of all the impacted rivers: Quimi, Tundayme, Zamora, Santiago and even the Amazon.
Breaking of the structure. It is evident that the rupture of life cycles (energy flows and nutrient cycles) will break the structure of ecosystems in these rivers, their watersheds and all living beings that depend on them. These rivers are a fundamental part of the ecosystem and we cannot afford to lose them due to the lack of care and investment of the ECSA company. There is no living being that can survive the direct impact of the mining tailings spill. Many living beings will be buried and will die immediately, causing an irreversible change in the structure of the biological community. Others will suffer the indirect impact when they are not able to acquire the nutrients and energy they need to live because of the impact of toxic mining tailings. This rupture will be palpable in several indicators, such as changes in biodiversity indexes, relative abundance of species and the decrease of key species in the ecosystem.
Perpetual interruption of functions. The failure of the dams built by ECSA will cause irreversible changes, or even the permanent destruction, of the functions that the rivers, plants, bacterial communities of the soil, animals and all living beings that are part of this ecosystem. None will be able to fulfill its functions of transmitting energy and nutrients, which is an alteration to the integrity of the ecosystem.
It is evident that such a process of rupture of life cycles, irremediable breakdown of the structure and perpetual interruption of the functions and evolutionary processes of all life in the basins of these rivers, constitutes a violation of the constitutional right contained in Article 71. There are even newly discovered species (and probably more to discover) that will become extinct before we can meet them, which is equivalent to burning entire libraries without having read their books. What functions do they fulfill in the ecosystem? The future disaster in the Mirador project is a threat meaning that we will never know the answer to this question.
The future impact on the right to maintenance of life cycles is inevitable in case of failure of the dams that will contain the mine tailings: the inescapable dumping of tens of millions of tons of mine tailings on (the basins of) the Quimi Rivers, Tundayme, Zamora and Santiago will interrupt their cycles forever. There is no doubt about it, but if there is one, let’s see what has happened in Brazil, Canada or Israel. There are two studies and publications available online, available to the public and authorities who want to know about the causes of these cases.23 The Emerman Report also refers to these historical failures. It can be verified, without a doubt, that mine tailings spills constitute ecological catastrophes of extreme impact on the receiving bodies of water and all the life that depends on them. In any case, if you, Mr/s. Constitutional Judge, have doubts, the Constitution indicates the solution through the application of the precautionary principle.
We know with certainty that the dams built by ECSA will fail. If there is any doubt about the consequences of this failure, the Constitution provides the answer: caution, which is diametrically opposed to the temerity with which ECSA is acting in Ecuador. If we do not act now, when the disaster happens (which is an inevitable future event) the fingers of the world will point in our direction – today we have before us the opportunity to avoid it – and we will be judged by history.

José Botin, professor of the Department of Mining Engineering at the Pontificia Universidad Católica de Chile, said: “The mining industry has the technological capacity for a safe mining design and operation, so it is necessary to conclude that the catastrophic risk remaining in mining it is due to the lack of focus in the control of risks in mining projects and operations, either due to lack of technical competence in the company and in the administration, or because of serious shortcomings in business ethics and culture. “See: The Mining Disasters: How to prevent them? Available at http://www.emb.cl/construccion/articulo.mvc?xid=2556&tip=11&xit=los-desastres-mineros-como-prevenirlos

2.2. The violation is serious and imminent.
In this case, it is imminent that the damage will occur. The Royal Spanish Academy defines “Imminent” as “something that is about to happen”. Precisely that is the case with the dams to contain tailings from the Mirador project, because a disaster is about to happen. The construction of the dams of the Mirador project is equivalent to leaving a gun loaded, knowing that a rain or an earthquake could fire it. We cannot stop earthquakes or floods, but we can be careful that the gun is not loaded. The construction of the dams must comply with the maximum safety conditions to eliminate the probability of faults and the risk of disasters.
The imminence in this case is given because the moment to act is now. We cannot wait for dams to be built and operational because it would be too late. It is necessary to urgently stop and modify the way in which ECSA is building the dams because when they are already built it will be impossible to dismantle or deconstruct them. Returning to the analogy of the loaded gun, we would be threatened by a weapon impossible to unload. We must prevent ECSA from loading the gun that threatens the constitutional rights of nature.
The construction of alternatives 1 and 2, as is currently happening, has a probability of failure so high that it is inevitable, which makes this disaster imminent: a catastrophe that is about to happen. That is, it is imminent that the mine tailings dams of the Mirador Project will fail because the risk conditions (over a geological fault and in an area of ​​very high rainfall), added to the construction techniques used by ECSA, guarantee this. After the failure of these dams, millions of tons of toxic waste will be pouring into the Quimi, Tundayme, Zamora, Santiago and Amazonas rivers, causing (inevitably and unjustifiably) the violation of the right to have the existence and maintenance fully respected and the regeneration of life cycles, structure, functions and evolutionary processes of nature as we have explained.
For these reasons, the threat of unavoidable damage makes this precautionary measure the ideal mechanism to protect the rights that are threatened in this case. Allowing ECSA to continue its construction and wait for the dams to be completed and fully operational would have as a foreseeable (and inevitable) consequence the violation of the constitutional rights to the existence and maintenance of regeneration of vital cycles, structure, functions and evolutionary processes of nature. It is not rational to wait until the scenario of a disaster is prepared before preventing it. The consequences will be final and impossible to repair. This imminence of damage makes this precautionary measure the ideal mechanism to protect the rights that are threatened in this case. There is no more suitable mechanism than this precautionary measure to avoid an irremediable violation of the rights that the Constitution guarantees to Nature.
Regarding the violation of the right to maintenance and regeneration of life cycles, structure, functions and evolutionary processes, we can affirm that the effects of this failure on the dams will be irreversible, since it implies the rupture of life cycles, the irremediable breakdown of the structure and the perpetual interruption of the functions and evolutionary processes of all life in the basins of these rivers Quimi, Tundayme, Zamora and Santiago. As we have explained before, it is a danger of real, serious and imminent damage to the rights of nature, since all the equilibrium and functioning of the ecosystem of the Cordillera del Cóndor would be severely affected by tons of toxic contamination: of the poisoning and death of the waters of the rivers, their sediments, the aquatic and wild life that depend on it, and the whole set of biological exchanges and relationships that take place there.
For its part, the seriousness of the violation of these rights is verified because the damage that is to be provoked would be irreversible. When the dams of the Mirador project fail, tens of millions of tons of mining waste will be spilled. This spill will contaminate the Quimi River, Tundayme River, Zamora River, Santiago River and even the Amazon River, since all the previous ones are tributaries of it. The whole basin of these rivers would be irremediably contaminated, buried under the mining tailings. The rivers in question would lose their capacity to sustain all the life that depends on them. This would only be the beginning of a chain of harmful effects that will affect the entire ecosystem and irremediably break the life cycles, structure and functions of nature as we explained before (see 2.1 of this demand).
In addition, the intensity and frequency of these violations would be enormous. It is not a small spill that would affect a river and could eventually be remedied. We are facing a case of massive contamination of all the watersheds involved. It is difficult to imagine an event of greater intensity than the poisoning and death of these rivers after being impacted by a avalanche of almost 100 million tons of toxic waste. The effects of this damage would be permanent, because the ecosystem will suffer them in perpetuity.
2.3. On environmental licenses and the rights of nature
As noted above, the failure of the dams built by the company ECSA can violate the rights of nature in a serious and imminent manner. The main argument of ECSA against this request for precautionary measures will probably be to indicate that they have an environmental license that authorizes them to build the tailings mentioned, or that this is in process, or that its regulation is the responsibility of the Public Administration. By insisting on this argument, the company would be presupposing two things: 1) That as long as the environmental license authorizes them to carry out actions, it does not matter if those actions violate constitutional rights. 2) That if the license is the instrument that authorizes the construction of these dams, then that is the instrument whose constitutionality should be questioned. That is to say, the responsible person would not be the ECSA company but the environmental authority. The two arguments are interrelated. But we will address each one separately in order to explain why this demand for precautionary measures comes from. This is compounded by another problem: 3) The lack of laws that empower the public administration to duly regulate the construction of mining tailings dams.
2.3.1. The existence of a license is not an authorization to infringe rights.
The first argument assumes that the environmental license is an authorization to violate constitutional rights. Mr/s. Justice, a permit to build tailings is not a permit to violate fundamental rights. If in practice, that construction infringes (or may infringe) constitutional rights, ECSA is wholly responsible for the violation of those rights. In other words, Mr/s. Justice, it is irrelevant whether the company has the license or not. The existence of a violation of constitutional rights must be viewed independently of the state authorization for mining exploitation. The opposite would be to think that the State gives concessions and, without being the owner of the constitutional rights, also grants them. Such a position is unacceptable under our constitutional framework. Not only would it be denying the fundamental nature of rights, obligations are directly applicable to the conduct of individuals; 3. It is possible to sue for violations committed by individuals to fundamental rights. While these rights are a direct source of obligations, their violation cannot be justified by rules or licenses that, in any case, are always infra constitutional.
If the Constitution adheres to a traditional vision from which government actors, and not individuals, are responsible for the violation of rights, then we could say that individuals are not obliged to observe respect for those rights. In that case, citizens would have no choice but to demand that the State in turn force or change the terms of its agreement with the company. This is not our case.
The Constitution directly obligates ECSA, regardless of whether or not there is a license, regardless of the terms of that license and regardless of whether the license was granted or not granted. That fact is not of interest for the protection of fundamental rights because, as indicated, through a license the State cannot authorize the violation of rights that are not theirs – constitutional rights are inalienable-; and rights are a direct source of obligations to individuals to the point that the Constitution recognizes channels to demand the observance, respect and protection of those rights by individuals.
It seems important, in addition, to highlight how the Constitution conceives the idea of ​​the rights of nature as a direct source of state and private obligations. In effect, the Constitution recognizes a cross-sectional nature of the rights of nature by establishing that it is the responsibility of all people to “respect the rights of nature, preserve a healthy environment and use natural resources in a rational, sustainable and sustainable manner” .24 The tenor of this provision recognizes, as the specialized literature has pointed out, “an obligation erga homnes, whose compliance evidently supports the effectiveness of the Rights of Nature insofar as it obliges Ecuadorians not only to respect the DDNNs, but a new form of relationship with natural resources, which is not based on its ownership or exploitation right, as most constitutions do “.

24 Article 83 of the Constitution, numeral 6.
23 Prieto, p. fifty

The recognition of rights to Nature, in the Ecuadorian constitutional design, implied two important issues for this demand. The first is that there is an explicit recognition of Nature as a subject of rights. The second, and more significant, was precisely the confirmation of the transversality of Nature’s rights by raising constitutional obligations and restrictions that derive from those rights and that are imposed both for public actors and private actors.
Thus, for example, Prieto points out that it is important to emphasize that the responsibilities established in Article 83 of the Constitution “constitute a legal obligation directed and enforceable for all citizens, but especially we must consider two addressees, who are the protagonists in the vast majority of environmental impacts, We refer of course to private enterprise, which by its very nature is aimed at profit and private benefit, and the State, which fulfills a triple role of controlling, recipient and responsible for various legal and constitutional obligations. The transversality of the rights of Nature throughout the constitutional scaffolding indicates an intensity in the respect of those rights addressed to two subjects. On the one hand, the protection of rights is reinforced and the rights of Nature are intensified with respect to the activities of individuals, especially in the context of administrative concessions. Thus, not only the terms of these concessions, but above all and more important, rights are erected as a direct source of obligations. Their actions must necessarily be framed within the constitutional framework. On the other hand, the constitutional judge is asked to carefully verify due respect for the rights of Nature in order to adequately protect the maintenance and regeneration of their life cycles.
2.3.2. This action does not need to be directed against the environmental license
We advance that another of the arguments that will be presented against the request of this measure is that, being the license the instrument that authorizes the construction of these dams, it is then that the instrument whose constitutionality should be questioned. This argument assumes that the responsible party would not be the ECSA company but the environmental authority. The arguments set forth above with respect to the direct application of the rights to the activity of ECSA, are equally applicable to answer the argument of the existence of the environmental license. As noted, if the Constitution does not establish that the rights are equally opposable to the State and individuals, the argument about attacking the license and attacking the state, may have grounds. But this is not the case, our Constitution which also directly obligates individuals. At this point we would just like to make an additional observation regarding the judge’s obligation to directly apply the constitution in this case, regardless of the existence of a state authorization.
It does not exist in our environmental legislation or laws that develop the constitutional provisions on the environment, exploitation of natural resources or natural rights, norms that regulate the parameters on how the mining tailings dams should be built. For this reason, it is not possible that whatever the environmental license granted to ECSA, this license has been granted under the protection of a law that develops the way to build tailings dams, because such a law does not exist. There are no legal parameters to build these tailings dams and in the absence of these parameters and especially considering that the constitutional rights are of direct application, we request, Judge, that in determining the existence of a serious and imminent threat to the rights of the nature, that you also indicate the appropriate parameters for the construction of tailings dams.
In effect, the constitutional judge must comply with the normative character of the Constitution and rights. This means that the rights bind all public authorities, including judges, who in their capacity as constitutional judges are obliged to ensure the effectiveness and supremacy of fundamental rights. The Constitution, in its article 11, number 3, establishes “the rights and guarantees established in the Constitution and international human rights instruments shall be of immediate and direct application by and before any servant or public, administrative or judicial servant, ex officio at the request of a party. “
In this way, the existence or not of a license is irrelevant in this case considering: 1) The direct application of fundamental rights as a source of obligations of particular actions; 2) The direct application of fundamental rights by judges; and 3) The absence of norms that directly regulate the construction of tailings with technical parameters that preserve the integrity of the rights of nature.
2.3.3. Scope of the powers of the central state to regulate the construction of these dams
The technical aspects of the construction of tailings dams are not regulated by law in Ecuador, so the protection of constitutional rights cannot be left to public offices that are limited in their actions by what the laws empower them. The constitutional rights are of direct application, that is to say that in the absence of a law that establishes parameters for the construction of mine tailings, these can and must be established, at the request of a party, through the application of jurisdictional guarantees.
As a country, we had a very bad experience with Chevron (Texaco), when Petroecuador (CEPE) partnered to exploit oil in the Ecuadorian Amazon. Our lack of experience allowed them to operate using much more polluting and risky techniques than those used in the United States. Far from using the best techniques and the best available technology, Texaco used the most profitable ones. These were technical aspects that were not regulated in the laws, such as, for example, the reinjection of the formation waters or the covering of the pits where the industrial waste was deposited. The results are well known all over the world. This is exactly the case here, only that we have the opportunity to act and force ECSA to use the best practices and technology available in the construction of tailings dams – not the most profitable ones. Repeating the error in this case, and allowing progress in the construction of the tallest mine tailings dam in the world, when we do not have (or anyone has) experience with such a venture, which will cause a disaster of unparalleled magnitude.
If only the victims of Chevron had the possibility of activating judicial guarantees against individuals, they could have prevented the company from poisoning the waters of their rivers in perpetuity. Prevention will always be better than repair, which can be difficult to achieve. Fortunately, the 2008 Constitution has foreseen this possibility of demanding the protection of constitutional rights to individuals. In this case, the protection of the rights of nature is demanded, at imminent risk of being irremediably violated by the future failure of the containment dams of mining tailings of the Mirador project. 100 million tons of toxic waste will cause serious and irreparable damage to the rights provided for in Article 71, as we have explained in detail in this lawsuit.
3. PROCEDIBILITY OF THE PRECAUTIONARY MEASURE
In accordance with our legal system, article 27 of the Organic Law of Jurisdictional Guarantees and Constitutional Control, precautionary measures of a constitutional nature are appropriate when the judge or judge is aware of an act that threatens imminently and gravely with the violation of a right or violation. a right. In effect, it is observed that the present case contains a case in which a situation that threatens imminent and serious way with violating constitutional rights is evidenced, for which the requirements for the granting of the requested precautionary measure are met. In addition, the requested precautionary measure is proportional and adequate, as explained below.
The measure we request is proportional. As you will see when reading our presentations, we are not requesting that the entire Mirador project be stopped. What we ask is to prevent the construction and use of infrastructure that puts constitutional rights at risk, which is totally rational and coherent with the risks that we have explained in this demand. This infrastructure can (and should) be built taking into account the best available practices and using the best available technology. That is logical and what common sense demands – on the other hand, allowing the dangerous alternative only because it is more profitable for the company is selfish, reckless and moreover, unconstitutional.
The precautionary measure that we demand is also adequate. By preventing the construction of dams that have such a high probability of failing, which is considered imminent, we are effectively using the protection of constitutional rights. By forcing this construction to be done following best practices and using the best available technologies, we are undoubtedly safeguarding the effective enforcement of Nature’s rights. This precautionary measure is the appropriate remedy for the problem we face.
We demand that, in application of the principles of precaution and direct application of the Constitution, appropriate measures be taken to guarantee that the constitutional rights of Nature are respected. We are not opposed to a mining project that does not threaten the rights of Nature, but in the case of an imminent threat, such as the one that motivates this request for precautionary measure, it is necessary for a constitutional judge to act. We will see in what we are denouncing here that our petition is not only proportional and adequate, but it is effective and necessary to prevent the violation of the rights of Nature
4. ACTIVE LEGITIMATION
David Frederick Dene interposes this demand for autonomous precautionary measures with the main objective of avoiding the violation of the constitutional right to Nature recognized in Article 71 of the Constitution. Active legitimation is based on Article 86, paragraph 1, which establishes that “any person, group of persons, community, people or nationality may propose the actions provided for in the Constitution”, as well as article 71.2 that recognizes broad legitimacy so that every person, community, town or nationality can demand from the public authority the fulfillment of the rights of Nature.
The aforementioned norms establish POPULAR ACTION because they allow any person to file a constitutional action. By virtue of such a mechanism, which is famously democratic in character, people can access constitutional justice without having to prove another requirement and without justifying a personal or legitimate interest. The only requirement, in the case of these precautionary measures and in accordance with the Constitution, is then to prove the existence of a violation or threat to a constitutional right, as we have done in this case. The legitimate interest in this case is determined by the general interest that there is a violation of the rights of nature, particularly the right contained in Article 71 of the Constitution. In this case, it is understood that the denunciation of the violation of a constitutional right constitutes a way of defending the very supremacy of the Constitution and therefore the survival of constitutional rights. According to Ávila, the reason for the popular action for the filing of jurisdictional guarantees is given that “the state and the community are interested in let it be known when there are violations and that actions that infringe rights are corrected “(emphasis added) .26
Therefore, to present this precautionary measure in order to protect the rights of nature, the judge does not need any instrument that proves the active legitimization of David Frederick Dene in his capacity as a foreign citizen not resident in Ecuador. These two conditions cannot serve to deny their active legitimation. In effect, the Constitutional Court in judgment No. 102-12-SEP-CC has determined that the “procedural model of the protection action- and of the jurisdictional guarantees in general- are devoid of formal requirements and offers, in an agile and dynamic way, an effective protection […] the procedure of jurisdictional guarantees of the rights develops with own characteristics that denote an informality in its sustentación “. Therefore, the possibility of preventing access to justice by Mr. Dene considering his domicile and nationality would be contrary to the spirit of the Constitution guarantee that establishes no condition as to who can lodge a jurisdictional guarantee. When referring to “any person”, the Constitution confers broad active legitimacy and unties it from any conditioning in two dimensions: 1. The person, community, town or nationality does not need to accredit any personal characteristic, for example, that is Ecuadorian, or that reside in the country; 2. The person, community, town or nationality does not need to be the affected of the right that is alleged can or has been violated.
In effect, this broad legitimacy, leading to all persons being able to propose a demand for jurisdictional guarantees without any conditioning, was also reiterated by the Constitutional Court in its judgment No. 170-17-SEP-CC in which it emphasized that This principle is a fundamental pillar to guarantee access to constitutional justice. Thus he established:
Open legitimation, like the aforementioned principles of constitutional justice [procedural economy, conditioned formality and iura novit curia], pursue that the processes of guarantees

26 Ávila, Ramiro, “Guarantees: indispensable tools for the fulfillment of rights. Conceptual advances in the Constitution of 2008 “, in Ávila, Ramiro, Grijalva, Agustín, Martínez Rubén, edit., Constitutional Challenges. The Ecuadorian Constitution of 2008 in perspective, Ecuador, Ministry of Justice and Human Rights, 2008, p. 94

jurisdictional are not constrained by excessive attention to formalities, rigor or unjustified obstacles.
With these considerations, in the sentence indicated, the Court even warned that article 9, letter a) of the LOGJCC, which conditioned the interposition of jurisdictional guarantees to the persons who are affected in their constitutional rights, was a restrictive filter imposed by the legislator who served no constitutional purpose. Consequently, exercising its power to control constitutionality by connection, the Constitutional Court declared unconstitutional the phrase of that article that limited the presentation of constitutional actions to the person “violated or threatened in one or more of his constitutional rights”. The argument of the Court was based, once again, on the idea that the regime of open locus standi (popular action) implies that the direct interest or affectation is independent of the plaintiff is independent “to the facts subject to the claim, since the rights Constitutional rights are objectively important. “
Finally, limiting active legitimation according to categories such as nationality would be a discriminatory action that would violate Article 11 of the Constitution which states “no one may be discriminated against based on ethnicity, place of birth, age, […] nor for any another distraction, personal or collective, temporary or permanent, that has as its object or result to diminish or annul the recognition, enjoyment or exercise of the rights “. In such a way that to prevent the filing of this guarantee by my represented by virtue of his nationality and residence would be a discriminatory act that would infringe the principle and right to equality to access justice. It should also be noted that all notifications will be sent to the judicial mailbox and to the email of your lawyer, so that your residence would not be a problem regarding the knowledge of all judicial proceedings.
5. PETITION FOR PRECAUTIONARY MEASURES
By virtue of this background and in accordance with the provisions of articles 87 of the Constitution of the Republic of Ecuador; Articles 6, 13.5, 26 and 27 of the Organic Law on Jurisdictional Guarantees and Constitutional Control, we request that, in order to prevent the violation of the aforementioned constitutional rights, it should serve as a precautionary measure: • Order the immediate suspension of the construction of the Quimi tailings dam and the Tundayme tailings dam by the ECSA Company, or any subsidiary or contractor responsible for it.
• That it designate a panel of international experts who can review in a more integrated manner the designs and construction plans of both tailings dams.
• That the company ECSA deliver to this panel of experts all the detailed information regarding the design and construction plans of both dams.
• That the suspension of the construction of both dams be maintained until ensuring the application of the best available practices and the best available technology, until eliminating the probability of failure of these.
• That the suspension of the construction of both dams be maintained until demonstrating that the maximum design flood and the maximum design earthquake have been appropriately chosen to avoid catastrophic failures due to earthquakes and floods.
• That a fund be established for the maintenance of both dams, after the closure of the mine and in perpetuity (since the tailings contained in these dams will remain there even after the closure of the mine and requires permanent maintenance to avoid failures).
These precautionary measures that we request are appropriate to the violation that is intended to be avoided or stopped because they are proportional, effective and necessary.
The requested precautionary measure is proportional because it is limited to seeking a remedy for a specific situation that threatens the violation of constitutional rights – it does not ask for the revocation of the environmental license nor does it demand the abandonment of the mining project, but the suspension of the construction of a certain infrastructure with a probability of failure so high that it is inevitable, an issue that seeks to avoid serious and irreparable damage to the rights of Nature.
It is effective because it avoids the happening of a situation that will inevitably cause the violation of Nature’s rights.
It is necessary because this precautionary measure is the only way to prevent the ECSA company from continuing with the construction of the dams and to correct their design to eliminate the probability of their failure.
We cannot allow the dams to be built. Once the dams are built and in operation, there will be no precautionary measure or human action that can do anything about it.
Dams cannot be disarmed and mine tailings cannot be discarded. When the dams are built and operational we will have a loaded gun and deactivating it will be impossible. The time to act is now, so this precautionary measure is timely and appropriate for this purpose.
When the dams are operational, the question is not what would happen if there is another earthquake, but, what will happen when we have the next earthquake? It is a future and certain fact, which will cause an inevitable failure and extreme consequences for the constitutional rights of Nature.
The Organic Law of Jurisdictional Guarantees and Constitutional Control, in its article 33, determines that “… once the judge or judge knows about the request for precautionary measures, if it verifies by the mere description of the facts that the requirements are met provided for in this law, will immediately grant the corresponding precautionary measures.
No evidence will be required to order these measures … “. We request that, in application of the transcribed norm, order the precautionary measure requested or, failing that, another precautionary measure that is capable of having the effect of preventing ECSA from continuing with the construction of the dams for mining tailings of the Mirador project under the conditions that it is doing and forcing it to use the best practices and available technology to eliminate the probability of failure of these dams.
This request is made considering that the purpose of this precautionary measure is to prevent the mining tailings dams built by ECSA from failing because this would cause permanent and irreparable damage to the life cycles of nature, protected by Article 71 of the Constitution of Ecuador.
6. DECLARATION OF JUSTICE OF NOT HAVING PRESENTED A SIMILAR ACTION
We declare, under oath, that we have not filed, jointly or individually, another request for precautionary measures against the same person, for the same act and with the same pretension, as required by articles 10, numeral 6, and 32, third paragraph, of the Organic Law of Jurisdictional Guarantees and Constitutional Control.
7. ACTIVATED PERSON AND COMPETITION
This demand for an autonomous precautionary measure is directed against the company Ecuacorriente S.A., also known as ECSA. This legal entity is domiciled in the city of Quito, so this judicature is the appropriate one to present this demand.
8. NOTIFICATIONS
David Frederick Dene will be notified in the 4822 judicial box of the city of Quito, and to the emails:
– david.dene@gmail.com
– julio.prieto@yale.edu
– juanpasaenz1981@gmail.com
– julprieto@hotmail.com
– marjorie.espinozaplua@yale.edu
With the content of its resolution will be notified to the company Ecuacorriente S.A. (ECSA) in its offices in Av. República del Salvador 1082 and Av. Naciones Unidas, Quito, Pichincha, Ecuador.
9. ANNEX
The report titled “Evaluation of the Design and Construction of Tailings Dams for the Mirador Mine, Zamora Chinchipe, Ecuador” is presented as an annex, prepared and signed electronically by Steven H. Emerman, Malach Consulting, 785 N 200 W, Spanish Fork, Utah 84660, USA UU., E mail: SHEmerman@gmail.com, Tel: 1-801-921-1228
10. LEGAL SPONSORSHIP AUTHORIZATIONS
David Frederick Dene electronically signs this lawsuit. Juan Pablo Sáenz also subscribes to this lawsuit as plaintiff and lawyer. Additionally, lawyer Julio Prieto Méndez and attorney Gabriela Espinoza Plua are appointed as sponsoring lawyers. authorized to present with their sole signature, jointly or separately, all the necessary documents for the promotion of this proceeding to appear at hearings or other procedural steps, in defense of the interests of this cause.
We subscribe with valid electronic signature and jointly as a sponsor attorney,