https://doi.org/10.37955/cs.v8i2.348
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eISSN: 2600-5743
Right to water: the situation of the
Cuenca canton and the popular
consultation
Derecho al agua: la situación del cantón Cuenca y la
consulta popular
Edison Saul Paredes Campaña
Estudiante Universidad Tecnológica Indoamérica. Carrera de Derecho
https://orcid.org/0009-0006-3486-8854
eparedes12@indoamerica.edu.ec.
Ana Cristina Pachano Zurita
Abogada de los Tribunales de la República del Ecuador, Magíster en Derecho Laboral y
Seguridad Social
Docente de la Universidad Indoamérica
https://orcid.org/0000-0003-0677-7593, anapachano@uti.edu.ec
ABSTRACT
Popular consultation in the basin stands out as a crucial pillar for
safeguarding the right to water and preserving local ecosystems. This
process of citizen participation not only constitutes an essential
democratic exercise, but also emerges as a powerful tool to empower
the community in crucial decisions that affect their access to water
resources. By providing citizens with a voice, the community becomes
an active advocate for their collective interests, advocating for
sustainable access to water and contributing to a future that balances
human needs with the responsible preservation of natural resources.
The selected research methodology is qualitative, allowing an
exhaustive interpretative analysis of diverse expert perspectives on the
contamination of water sources by mining exploitation in the Canton
of Cuenca. It seeks to deepen in theories, approaches and
contributions, identifying nuances, contexts and significant
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connections. The objective of the article is to analyze the results of the
popular consultation from legal and environmental perspectives,
evaluating its impact on the protection of the right to water and nature
in Ecuador. This research will contribute to a more complete and
detailed understanding of the problem, enriching the quality and
breadth of the analysis.
RESUMEN
La consulta popular en Cuenca se destaca como un pilar crucial para
resguardar el derecho al agua y preservar los ecosistemas locales. Este
proceso de participación ciudadana no solo constituye un ejercicio
democrático esencial, sino que también emerge como una poderosa
herramienta para empoderar a la comunidad en decisiones cruciales
que afectan su acceso al recurso hídrico. Al proporcionar voz a los
ciudadanos, la comunidad se convierte en defensora activa de sus
intereses colectivos, abogando por el acceso sostenible al agua y a la
contribución a un futuro que equilibra las necesidades humanas con la
preservación responsable de los recursos naturales. La metodología de
investigación seleccionada es cualitativa, permitiendo un análisis
interpretativo exhaustivo de diversas perspectivas de expertos en la
contaminación de las fuentes hídricas por la explotación minera en el
Cantón de Cuenca. Se busca profundizar en teorías, enfoques y
contribuciones, identificando matices, contextos y conexiones
significativas. El objetivo del artículo es analizar los resultados de la
consulta popular desde perspectivas jurídicas y ambientales,
evaluando su impacto en la protección del derecho al agua y la
naturaleza en Ecuador. Esta investigación contribuirá a una
comprensión más completa y detallada de la problemática,
enriqueciendo la calidad y amplitud del análisis.
Keywords / Palabras clave
popular consultation, contamination, right to water, environment
consulta popular, contaminación, derecho al agua, medio ambiente
Introduction
Access to water is an inalienable fundamental right and essential for
the development of life. Despite this universal affirmation, the right to
water faces global threats, especially from pollution and mining
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activity. A clear example is the situation in the canton of Cuenca, where
the community has mobilized through a popular consultation as a
mechanism for citizen participation to safeguard this vital resource
and local ecosystems.
This analysis becomes crucial due to the pressure exerted by certain
mining companies that seek to weaken this democratic exercise
through legal actions and political pressure. It raises a question about
the intersection between the individual rights of companies and the
collective protection of the right to water, the right to live in a healthy
environment and the rights of nature.
The main water sources in the canton of Cuenca are the four rivers that
flow through it: the Tomebamba, the Tarqui, the Yanuncay and the
Machángara. These rivers are fed by the waters originating in Cajas
National Park, where more than 4,000 lakes are interconnected.
According to Doumet Chilán et al.(2023), this park, characterized by
its outstanding biodiversity, plays a crucial role as a water recharge
area for the city of Cuenca and the province of Azuay. However, the
integrity of these water sources faces threats from mining projects.
Cajas National Park has been declared a core zone of the Biosphere
Reserve by UNESCO because of its rich biodiversity. The park's water
resources and fragile ecosystems make it a specially protected area.
However, mining concessions have affected the quality of the water
sources that originate in these moors, affecting the flora and fauna, but
above all the inhabitants of Cuenca.
According to Salazar Vintimilla (2020), water sources play a vital role
in supplying human consumption, crop irrigation, water supply for
animals, and maintaining ecological flows that cross the Cajas
National Park. In this sense, the effects of water pollution generate a
series of repercussions that persist over time, even after mining
activity has ended, due to the presence of toxic metals such as arsenic
and mercury.
Water pollution in the Canton of Cuenca has diverse roots, being
notable among them: indiscriminate dumping of domestic and
industrial wastewater; excessive application of agrochemicals in
agriculture, whose residues infiltrate the soil and rivers; and
deforestation of water recharge areas, which decrease water retention
and infiltration capacity (Pauta-Calle et al., 2019).
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Mining contamination in the water sources of the Cuenca canton is
alarming due to the presence of more than 200 mining concessions
surrounding its moorlands. This scenario compromises vital strategic
interests for Cuenca, as mining activity in the water recharge areas of
the aforementioned rivers significantly affects the right to water of its
residents and the rights of nature.
The right to water enshrined in Article 3 of the supreme law establishes
that the State has the primary duty to guarantee the effective
enjoyment of the rights prescribed in the Constitution and
international instruments, particularly with regard to water, health,
food, education and social security for citizens (Constitution of
Ecuador, 2008).
From that first definition, during the session of the Constituent
Assembly in Montecristi, fundamental principles were supported, as
clearly evidenced in Article 12 of the Constitution, which states the
following: "the human right to water is fundamental and inalienable.
Water constitutes strategic national patrimony of public use,
inalienable, imprescriptible, unseizable and essential for life".
(Constitution of Ecuador, 2008).
However, the effective application of these rights is not perceived when
concessionaires carry out medium and large scale exploitation.
Unfortunately, due to the considerable generation of economic income
for the Ecuadorian government through mining exploitation, the latter
overlooks the rights, being mostly violated the rights of nature and, to
the same extent, the right to water, the right to health and other related
rights of communities residing in the vicinity of water sources.
Rights of nature
The rights of nature represent an essential pillar that transcends the
mere conceptualization of water as a resource for humanity. These
rights, enshrined in the Constitution of the Republic of Ecuador,
confer on water the status of strategic national heritage, inalienable,
imprescriptible, unseizable and essential for life. This comprehensive
vision recognizes nature as an entity with its own rights, independent
of its usefulness for human beings, and establishes an ethical and legal
framework.
In the mining scenario, the rights of nature take on crucial importance.
Environmental degradation and water pollution resulting from these
activities raise ethical questions about how to balance human needs
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with the preservation of ecosystems. The Ecuadorian Constitution, by
recognizing nature as a subject of rights, invites a reconsideration of
the relationship between human activity and the integrity of nature.
From a legal perspective, the rights of nature offer a normative
framework that seeks to harmonize human development with
environmental preservation. This approach implies the need to
regulate and limit activities that may negatively affect ecosystems.
Citizen participation is a key mechanism for ensuring that these
regulations are implemented and respected.
The recognition of the rights of nature not only raises ethical
questions, but also demands a rethinking of priorities in economic
development. The popular consultation in Cuenca, as a mechanism for
citizen participation, reflects the community's resistance to possible
threats to these rights. Effective implementation of the rights of nature
implies considering long-term sustainability over short-term benefits,
promoting a harmonious balance between human progress and
conservation of the natural environment.
In Ecuador, the preservation of nature plays a fundamental role that
reflects the country's unwavering commitment to environmental
protection. This commitment is materialized through Ecuador's active
participation in various international agreements designed to support
and strengthen initiatives aimed at safeguarding biodiversity and
ecosystems.
One of these agreements of vital importance is the Nagoya Protocol, an
international agreement that seeks to guarantee equitable access and
fair distribution of the benefits derived from the use of genetic
resources. Since its ratification, the country has been immersed in the
elaboration and development of a regulatory framework at the
national level that regulates access to genetic resources for specific
objectives, such as research, bioprospecting and commercial activities
(Sarmiento, 2014).
Within the framework of this initiative, the National Secretariat of
Higher Education, Science, Technology and Innovation (Senescyt)
assumes a central role, as it is the competent entity regarding access to
genetic resources and their derivatives, whether linked or not to
traditional knowledge. Consequently, Senescyt is positioned as the
national focal point for the implementation and supervision of the
provisions of the Nagoya Protocol in the Ecuadorian context.
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Participation in the Nagoya Protocol demonstrates Ecuador's
commitment to environmental governance and the responsible
preservation of its genetic resources, thus contributing to the
consolidation of practices that promote sustainability and equity in the
use of biodiversity.
This agreement aims to contribute to the preservation and responsible
use of biological diversity. It extends to the genetic resources included
in the Convention on Biological Diversity (CBD), as well as to the
traditional knowledge associated with these resources and the benefits
derived from their use (Secretariat of the Convention on Biological
Diversity, 2011).
Mining in the Jatunyacu River has left a trail of negative impacts on
the environment. The release of mercury-containing mining waste has
led to the extinction of the lower reaches of two rivers and has had
adverse consequences on the life of aquatic macroinvertebrates. In
addition, according to a report by Mongabay Latam, authorities found
official machinery linked to municipalities and provinces during an
operation led by the Ministry of Government and the Ministry of
Defense. This finding suggests that illegal mining not only affects the
environment, but also has implications at political and social levels
(Alvarado, 2022).
Despite the above, it is essential to highlight that mining plays an
indispensable economic role in Ecuador, thanks to its abundant
mineral and metal resources. Mining represents an economic,
commercial and industrial activity focused on the exploitation and
extraction of mineral wealth present in the soil and subsoil through
mines and mining operations (Estupiñan et al., 2021).
This industry not only contributes significantly to the country's
income, but also generates employment and development
opportunities in the regions where these operations are carried out.
However, it is imperative that mining operations are carried out in a
responsible and sustainable manner, with strict adherence to
environmental and social regulations, to ensure an adequate balance
between economic growth and the preservation of the natural
environment and the well-being of local communities.
This mining activity not only has a positive impact on the country's
economic growth, but also contributes significantly to improving the
quality of life of the population, according to information provided by
the Central Bank of Ecuador. Mining has become a crucial source of
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income for the country, playing an important role in economic
development. In addition, it translates into an important source of
employment, generating significant job opportunities for the
Ecuadorian population (Morales et al., 2016).
Right to health
The recognition of the right to health at the global level is consolidated
as a result of the Universal Declaration of Human Rights, a milestone
that emerged as a response to the events following the Holocaust.
In the State of Ecuador, on January 15, 2007, as part of the actions of
the Government of the Citizen Revolution to highlight the importance
of health as a fundamental human right, the Ministry of Public Health
and the National Health Council (CONASA) carried out consultations
through meetings and assemblies in 22 provinces of Ecuador. These
initiatives culminated in the III National Congress for Health and Life
in Cuenca, April 8-10, 2007. The main focus of the congress was the
proposal for the National Constituent Assembly, with the intention of
promoting essential changes in the health sector and effectively
guaranteeing this right (Pan American Health Organization, 2008).
The consolidation of this right is most prominently visualized with the
2008 constitutional reform, specifically in the principles established
in Article 32, which indicates that the State by ensuring health is
promoting the exercise of various rights, such as the right to water,
education, work, social security, healthy environment, and others that
support the ideal of quality of life (Alarcón Cedeño & Suárez Montes,
2020).
Human health in the Canton of Cuenca is linked to water quality,
outlining a panorama in which the preservation of this resource
acquires a critical magnitude for the wellbeing of the population. The
problem of water pollution, exacerbated by various anthropogenic
activities, including mining, is a latent threat that directly affects the
health of the local inhabitants.
Mining activity, with its emissions and discharges, introduces
chemical compounds and heavy metals into water sources, generating
an imminent risk to public health. In this context, a detailed analysis
of the determining factors reveals a complex network of
interconnections between water quality and human health (Salazar,
2021).
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Mining, by contributing significantly to the contamination of water
sources, poses health risks ranging from acute effects such as
gastrointestinal diseases to chronic consequences, such as the
accumulation of toxins in the body over time that can lead to cancer of
the esophagus, lung, larynx and bladder. In children, metals derived
from this activity, such as arsenic, can cause a reduction in IQ (Sánchez
Gómez, 2022).
Ecuadorian regulations, in line with international human rights
principles, consider it fundamental to safeguard the right to health of
the population. However, the effective implementation of these
regulations becomes a challenge, especially when faced with economic
and political pressures from the mining industry.
Adequate preservation of water resources is not only essential to avoid
adverse health consequences, but is also a central component in
building resilient and healthy communities. Public awareness, citizen
participation and the effective implementation of policies aimed at
water protection are fundamental pillars for safeguarding the health of
the population in the Canton of Cuenca and guaranteeing an
environment conducive to the flourishing of life and general wellbeing.
A clear example of the violation of the right to health can be seen in the
exploitation of the Yasuní National Park. In 2007, Ecuador proposed
the Yasuní-ITT Initiative with the objective of preserving oil reserves
in this park in exchange for international financial compensation,
seeking to protect the unique biodiversity and uncontacted indigenous
communities. However, in 2013, the initiative was suspended due to a
lack of international financial commitments. Since then, tensions and
debates have arisen about oil exploitation in the region, generating
concerns about possible environmental impacts on local communities.
Exploitation of Yasuní has posed significant risks to the right to human
health due to oil activity in the region. Potential negative impacts
include water and soil contamination from spills and leaks. In
addition, the forced displacement of indigenous communities, who
depend on natural resources, can have serious consequences on their
physical and mental health. The environmental and social
management of extractive activity can influence the magnitude of
these impacts, evidencing the violation of the rights of nature (Allen
Pachana, 2022).
Right to citizen participation
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Citizen participation in decision-making on the right to water in the
canton of Cuenca has become an essential component in developing
policies that reflect the needs and priorities of the community. The
implementation of participation mechanisms has allowed residents to
become actively involved in the definition of water-related strategies
and policies, creating a space for the expression of their opinions and
concerns.
Transparency of information is a key component of citizen
participation. It is essential to provide accessible and understandable
data on water quality, ongoing projects, and proposed policies to
ensure that citizens are informed and can contribute more effectively.
Continuing education on water issues, including community rights
and responsibilities, also strengthens participation by providing
citizens with the knowledge necessary to make informed decisions.
We find this right established in the Constitution of the Republic of
Ecuador in Article 61 numeral 4, which establishes in a taxative
manner that all Ecuadorians enjoy being consulted(Garcés Villamil &
Rapalino Bautista, 2015).
Citizen participation is not only about being informed, but also about
having the ability to influence decisions. Participatory processes in
Cuenca Canton seek to empower the community, allowing them to be
an integral part of decision-making on crucial water-related issues.
This approach contributes to more inclusive and democratic
governance, where policies and actions better reflect the needs and
aspirations of those who depend directly on the water resource.
In order to analyze how the right to citizen participation was exercised
through the mechanism of the popular consultation in the canton of
Cuenca, it is essential to know the background of this event. According
to Opinion No. 6-20-CP/20 of the Constitutional Court of Ecuador,
this process began on September 8, 2020, date on which a request for
a preliminary ruling on constitutionality was filed before the
Constitutional Court by Pedro Palacios Ullauri, in his capacity as
mayor of the Decentralized Autonomous Government of the Cuenca
Canton and Antonio Sacoto, in his role as trustee attorney of the GAD
of Cuenca.
As a result of the automatic draw of cases carried out by the
Constitutional Court, the responsibility of handling this matter fell on
Constitutional Judge Karla Andrade Quevedo. The aforementioned
constitutional judge, by means of a ruling issued on September 15,
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2020, assumed jurisdiction over the present case. In said document,
she granted the petitioners a term of 24 hours to submit digitally the
certification of the minutes of the corresponding session of the
Decentralized Autonomous Government (GAD) of Cuenca, which
should include the voting record related to the call for the referendum
(Constitutional Court of Ecuador, 2020).
Between September 14 and 18, 2020, several amicus curiae briefs were
filed, which will be taken into account by this Court for the resolution
of the case. Specifically, on September 14, 2020, Rodrigo Izurieta
Andrade, as attorney-in-fact of the company Gold S.A., and Pablo
Agustín Zambrano Albuja, as executive president of the Chamber of
Industries and Production of Cuenca, together with another amicus
curiae who holds the position of president of the National Federation
of Chambers of Industries (Constitutional Court of Ecuador, 2020).
Likewise, on September 15, 2020, Nidia María Soliz Carrión presented
the perspective of the Cabildo por las Mujeres del cantón Cuenca;
Fabián Carrasco Vintimilla, as legal representative of HUBBARD
PERFORACIONES CIA. LTDA, offered his vision from the industry;
and Fernando Luis Benalcázar contributed with his position in another
capacity of representation (Constitutional Court of Ecuador, 2020).
These interventions highlight the diversity of perspectives and actors
involved in the cause, from representatives of the mining industry to
voices from civil society and the governmental sphere. The plurality of
opinions presented through the amicus curiae briefs reflects the
complexity and importance of the matter at hand. It is now incumbent
upon the Court to consider these valuable contributions in order to
reach an informed and equitable resolution. This process, which
incorporates diverse voices and experiences, underscores the need for
a comprehensive and fair approach to address the challenges raised in
this case (Constitutional Court of Ecuador, 2020).
In this consultation, five questions related to the prohibition of large-
scale metal mining in the water recharge zone of the Tarqui River were
unveiled. According to Montaño (2021) the questions posed during the
popular consultation resulted in significant support from 80% of the
population of Cuenca, who expressed their support for the prohibition
of mining activities in the water recharge zones of the Tomebamba,
Tarqui, Yanuncay, Machángara and Norcay rivers. These five rivers
play a crucial role in providing water to the population of Cuenca,
which is the third largest in the country.
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The questions posed in the popular consultation were directly related
to the protection and conservation of the right to water, which
according to Article 12 of the Constitution of the Republic of Ecuador,
water is an essential resource for nature and the survival of species,
being a fundamental human right that contributes to well-being, food
and food security.
In accordance with this right, the Constitution establishes in Article 14,
the fundamental right of individuals, communities, peoples and
nationalities to live in a healthy and ecologically balanced
environment, in order to ensure sustainability and good living.
The Popular Consultation, as stated in Article 105 CRE, is positioned
as a mechanism for citizen participation aimed at obtaining the
opinion of the people on issues of importance at the national,
provincial, regional or local level. For Garcés Villamil & Rapalino
Bautista (2015) the popular consultation is a participation mechanism
through which the people exercise their sovereignty, making known
their opinion on issues of public interest.
Citizen participation, as provided in Article 95 CRE, involves the direct
exercise of power, decision making in matters of public interest and
the supervision of those who hold public functions. In addition, it is
governed by the principles of autonomy, popular control and public
deliberation. This means that through this right citizens can actively
influence government policies and actions, especially those involving
their rights.
Article 318 of the law establishes that water is a strategic national
patrimony of public use, with characteristics of inalienability,
imprescriptibility, unseizable and essential for life. This legal provision
reinforces the protection and responsible management of water, since
without the adequate preservation of this resource the existence of
nature and the human race would be compromised.
Article 408 of the supreme law states that the State has the obligation
to guarantee the protection and conservation of biological diversity,
natural resources and ecosystems, to ensure the quality of life of
citizens. In addition, Article 395 of the same legal body establishes the
environmental principles that allow environmental management to
identify, foresee and assess the direct and indirect effects on the
environment.
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Materials and Methods
In the development of this scientific article, we will address four
subtopics. In the first place, the environmental impact that affects the
water sources of the Canton of Cuenca. This first subtopic will allow an
integral understanding of the interactions between the aquatic
environment and human activities, as well as possible mitigation and
preservation measures.
The second sub-theme to be addressed is the rights of nature, we will
focus on analyzing how human activities affect their application,
specifically in water management. This approach will allow us to
explore how the Constitution of the Republic of Ecuador is used to
ensure other related rights. In this context, a conceptual framework
will be established that encompasses both ethical and legal aspects.
In the third sub-theme, we will delve into the health impacts of water
quality through a detailed analysis of the determinants and their direct
impact on human well-being. Mining exploitation will be highlighted
as a preponderant element, due to its significant contribution to the
contamination of water sources. In addition, we will examine how
Ecuadorian law, aligned with international human rights principles,
safeguards the right to health. This legal perspective will allow us to
contextualize the importance of regulations in the preservation of
water quality and its consequent impact on health.
Finally, we will focus on the importance of citizen participation in
decision making concerning water sources in the Canton of Cuenca. In
the same way, we will analyze the planning and execution of measures
aimed at positively affecting access, distribution and conservation of
water resources in this region.
Citizen participation, conceived not only as a fundamental right, but
also as a real driving force, is an essential pillar that catalyzes
sustainability practices in the field of water management. Recognizing
the interdependent nature of our society and the natural environment,
it underscores the importance of conscious citizen participation in
water-related decision-making.
This collective commitment is presented as the cornerstone for
consolidating a comprehensive and equitable approach to water
resource conservation. It is through community participation that
more inclusive strategies and policies adapted to local needs are
forged. In this sense, citizen participation becomes an effective vehicle
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for empowering society, allowing their voices to be heard and taken
into account in the formulation of policies that directly impact the
quality of life and well-being of the population.
In this context, this article aims to comprehensively analyze the
process and results of the popular consultation in Cuenca, from both a
legal and environmental perspective, evaluating its impact on the
protection of the right to water and the rights of nature in Ecuador.
Results
Mining activity in Cantón Cuenca poses a serious threat to access to
water and the integrity of local ecosystems, which has triggered
community mobilization through popular consultation as a
mechanism for citizen participation. However, this democratic
exercise is undermined by legal actions and political pressures, raising
questions about the intersection between the individual rights of these
companies and the collective protection of water and environmental
rights.
Popular consultation, as an instrument of citizen participation, is a
tool designed to empower citizens to express their opinion on matters
of public relevance. In the specific context of mining activity in the
Cuenca Canton, this legal mechanism was used with the purpose of
obtaining citizen support for the prohibition of mining exploitation, in
order to preserve the integrity of the water resources associated with
the Tomebamba, Machángara, Yanuncay and Tarqui rivers. However,
despite the results, the negative impact of mining activity in the region
persists, which implies a violation of the constitutional mechanism of
citizen participation and, therefore, an affectation of human rights.
The failure to comply with the results of a popular consultation
constitutes a clear violation of the right to citizen participation
enshrined in Article 61 of the Constitution, compromising the
fundamental principle of the Ecuadorian State, by virtue of its nature
as a democratic State.
This omission not only undermines the exercise of the democratically
expressed popular will, but also undermines the legitimacy of the
institutions and calls into question the effective protection of the
fundamental rights of citizens and the rights of nature. In a
constitutional state of rights and justice such as Ecuador's, respect for
the results of the popular consultation is fundamental to guarantee the
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full validity of democratic principles and to safeguard popular
sovereignty as the basis of the political system.
The right to water is a universal right that is related to a series of
fundamental rights, including the right to life, health, food, and a
healthy environment, among others. When the right to water is
violated, not only basic survival needs are compromised, but also
people's ability to enjoy other human rights. Water scarcity or
contamination can lead to disease, malnutrition and unhealthy living
conditions, directly affecting people's quality of life.
The rights of nature are also violated due to mining activity in the
canton of Cuenca. Water contamination, deforestation, loss of
biodiversity and other environmental impacts associated with mining
endanger the integrity of natural systems and affect nature's ability to
maintain its balance and sustain life. This contamination is
significantly aggravated because it compromises a protected area such
as Cajas National Park, which is home to fragile ecosystems that are of
utmost importance for environmental conservation and regional
ecological balance.
It is worth mentioning that Ecuador's Constitution recognizes nature
as a subject of rights, establishing a legal framework that guarantees
its protection and recognition. However, its integrity in Cuenca Canton
is compromised when mining activity is allowed despite the fact that a
popular consultation has supported the prohibition of mining activity
with a large majority, as in the specific case in which 80% support was
registered. This situation constitutes a clear violation of the rights of
nature, by disregarding the will expressed by the citizens in the
exercise of their right to participate in decisions of environmental
relevance.
The authorization of mining activity in contravention of the will of the
people not only contravenes fundamental democratic principles, but
also represents a direct threat to the integrity of the country's
ecosystems and biodiversity. It is imperative that government
authorities and stakeholders involved in decision making respect and
abide by the results of the popular consultations, thus ensuring the
protection and preservation of the rights of nature in the Ecuadorian
legal context.
The protection of the right to water and the recognition of nature as a
subject of rights are fundamental aspects of contemporary
environmental and social management. In the first place, the right to
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water is internationally recognized as a basic human right,
indispensable for guaranteeing the health, well-being and dignity of
people. This right implies not only physical access to water, but also its
availability in sufficient quantity and quality to meet basic human
needs, including food, hygiene and sanitation.
On the other hand, the recognition of nature as a subject of rights
represents a significant change in the way we conceive of our
relationship with the environment. By granting legal rights to
ecosystems, rivers, forests and other non-human life forms, it
recognizes their intrinsic value and establishes a legal framework for
their protection and preservation. This implies that ecosystems have
rights, and must be considered in all decisions affecting their integrity.
The importance of protecting the right to water and the right of nature
lies in their interconnection with other key aspects of sustainable
development and social justice. Equitable access to water is
fundamental to reducing poverty, promoting gender equality and
improving living conditions in the most vulnerable communities.
Likewise, the protection of nature contributes to biodiversity
conservation, climate change mitigation and the promotion of
sustainable economic development.
Given the problems posed by mining activity in Cuenca Canton, which
threatens fundamental rights and the Sumak Kawsay of citizens, a
response framed in respect for human rights and nature is required, as
well as compliance with the mechanisms for citizen participation
established in Ecuadorian legislation. It is essential to recognize and
respect the result of the popular consultation as an exercise of direct
democracy, enshrined in the country's legal system.
The majority support obtained in said consultation for the prohibition
of mining activity implies the need to abide by said popular will in
governmental decision-making related to mining activity in the area in
question. In addition, it is imperative to strengthen measures to
protect the right to water, considered a fundamental human right, as
established in international and national legislation. This implies
ensuring equitable, sustainable and safe access to drinking water, as
well as preserving the quality and availability of the water resource for
current and future generations.
It is necessary to recognize and safeguard the rights of nature, as
established in the Ecuadorian Constitution, which recognizes nature
as a subject of rights. This protection implies considering the interests
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and integrity of local ecosystems in all government decisions related to
mining activities, ensuring their preservation and restoration in the
event of negative environmental impacts.
Likewise, it is essential to promote a sustainable development
approach that integrates environmental protection and human rights
in all policies and actions related to mining activity. This includes the
adoption of responsible mining technologies and practices, as well as
the promotion of sustainable economic alternatives that diversify the
local economy and reduce dependence on mining activity.
Conclusions
The case of Ecuador, and specifically the canton of Cuenca, offers a
complex scenario between economic development driven by mining
and the preservation of fundamental rights, such as access to water
and environmental protection. The global recognition of the right to
health, linked to the Universal Declaration of Human Rights, is
reflected in Ecuador's efforts to ensure health as a fundamental right.
The consolidation of this right is manifested in the 2008 constitutional
reform, which establishes the interrelationship between health and
other essential rights.
However, the intrinsic connection between water quality and human
health, especially in the Canton of Cuenca, is threatened by mining
activity, especially illegal mining. The health risks to both mine
workers and local communities are evident due to the contamination
of water, soil and air with toxic substances and heavy metals.
The Ecuadorian government's response, marked by popular
consultations, such as the one held in Cuenca in 2021, highlights the
importance of citizen participation in making crucial decisions about
mining exploitation. Through this consultation, the population
expressed its support for the prohibition of mining activities in critical
areas for water recharge, demonstrating the relevance of balancing
economic development with the preservation of essential natural
resources.
The recognition of the rights of nature in the Ecuadorian Constitution
adds another dimension to the analysis. These rights, focused on
environmental preservation, provide a normative framework that
seeks to harmonize human development with the protection of
ecosystems. Citizen participation becomes a crucial mechanism to
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ensure that these regulations are effectively implemented and
respected.
Mining, on the one hand, contributes to economic growth and
generates employment, according to official sources. On the other
hand, its negative impacts on human health and the environment pose
significant challenges. The popular consultation in Cuenca, with broad
public support for a ban on mining activities, suggests a collective will
to preserve health and the natural environment.
Ultimately, Ecuador faces the challenge of balancing the economic
benefits of mining with the need to protect the health of the population
and preserve the environment. Effective implementation of policies
aimed at water protection, citizen participation and responsible
management of natural resources are crucial to achieve this balance
and ensure long-term sustainable development.
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