Ecuadoran government moves against the Shuar, who are fighting plans for a huge open pit copper mine on their land

Al Jazeera reported on December 29 that the government of Ecuador has deployed thousands of military and police personnel to impose a “state of exception” across the Amazonian province of Morona Santiago—which encompasses the ancestral territories of the Indigenous Shuar People. The mobilization and “state of exception” were announced as a response to the death of a police officer during a Shuar attempt to take over a mining camp on December 14. No evidence has been provided to show the cause of death.

The Shuar are protesting an invasion of their homelands by a Chinese mining company—EcuaCobres SA (EXSA)—that would create the world’s second largest open pit copper mine, estimated to generate $1.2bn in annual profits. The company has already begun advanced exploration for gold and copper extraction.

The area planned for the mine lies within a 41,000 hectare “concession” (more than 100,000 acres) arranged by the Ecuadorian government to convert the legal status of Indigenous lands into private property owned by the company. Nearly 50% of the “concessions” are on Shuar homelands. Al Jazeera described the area as “the uniquely biodiverse Cordillera del Condor, a mountain range connecting Ecuador’s southern Andes with the Amazon.”

The Shuar, allied with mestizo farmers and environmental activists like the organization Accion Ecologica, have been protesting the mining plan since it was first proposed by a Canadian company in the 1990s. In 2006, they succeeded in expelling EXSA from the region and followed up by establishing settlements to maintain Shuar presence and assertion of ownership.

Since 2006, Shuar leaders and their families have been targeted by government forces. In August 2016, government troops forcibly evicted the Shuar from their homes, saying the settlers were “illegally occupying” company land. The government has developed a “most wanted” list of “militant” Shuar leaders, causing some of the most vocal to go into hiding.

Severino Sharupi, a leader in the Confederation of Indigenous Nationalities of Ecuador, told Al Jazeera the government and company “want to imprison some of the main spokespersons of the resistance so that there cannot be any opposition in the territory… The state needs to have an authority there that gives permission to the company and allows them in….”

But Domingo Ankuash, one of the most vocal Shuar leaders, said the Shuar will not back down: “This is the beginning of a fight to exterminate the Shuar people because we are the only nation that have strongly defended our territory. If they have to exterminate us, they can do it. Maybe then they can go on with the mining. But until then we will continue to defend the land they have conceded to the mining companies.”

The courageous words and actions of these Shuar leaders indicate they understand the dynamics of colonial invasion—that they are not dazzled by the company’s offer of “jobs” nor willing to accept the government’s “ownership” claims. In the face of that kind of aware and informed leadership, it seems likely the conflict will continue.

Unfortunately, lawyers for the Shuar have yet to take a stand at the most basic level of the government’s legal claims.

The Al Jazeera report quoted Shuar rights lawyer Tarquino Cajamarca as saying the government holds no obligation to consult landowners for concessions since technically they own the land, but not the subsoil: “A concession is a property title over a subsoil for mining operations,” Cajamarca told Al Jazeera, “and it is the state that owns the subsoil, as well as the rivers, the mountains, etc.”

Cajamarca’s statement reads a bit confusingly—the reference to “they” own the land, but not the subsoil. You need to read further to see that “they” refers to the Shuar; at that point, you wonder: If the Shuar own the surface but not the subsoil, do they not have a legal right to stop the extraction from the subsoil?

Many jurisdictions—especially in areas where minerals, gas, and oil are prevalent—allow a legal separation between “surface” ownership and ownership of the underlying minerals. North Dakota offers a U.S. example: Mineral rights “severed” from surface ownership are dominant over the surface rights; if and when minerals are extracted, state law requires “compensation” for surface damage, but the surface owner has no say about whether the extraction should happen at all.

What do we make of this? We have seen it all too often: Lawyers representing Indigenous Peoples fail to mount a challenge to the fundamental issue—namely, the claim by the settler-state government that it “owns” any part of Indigenous lands—surface or subsoil.

If the courageous Shuar leaders are to be backed up by their lawyers, the lawyers must move beyond “normal” state laws. The lawyers must challenge those laws. Specifically, the Shuar lawyers should not concede ownership of the subsoil to the state.

The Ecuadoran claim to “own” Indigenous lands—the rivers, the mountains, etc.—rests on the same basis as the United states claim to “own” Indigenous Peoples’ lands—the doctrine of colonial domination called “Christian Discovery.”

By now—given increasingly high profile calls for “revocation” of the papal bulls that originated the doctrine—every lawyer for Indigenous People ought to open any litigation with a critique of Christian Discovery and a rejection of all state claims based on that doctrine.

The legal challenge needed to support the Shuar leaders involves a rejection of the notion that the Ecuadorian state “owns the subsoil, as well as the rivers, the mountains, etc.” The lawyers make a fundamental and dangerous mistake when they concede the principle of basic ownership.

Ecuador adopted into its Constitution in 2008 a chapter stating that “Nature” has fundamental rights, and that “the state will…promote respect towards all the elements that form an ecosystem.” We cannot put a lot of weight on this provision, because it includes a reference to “severe or permanent environmental impact, including the ones caused by the exploitation on non renewable natural resources,” and gives power to the State to “establish the most efficient mechanisms for the restoration.”

Nonetheless, the Ecuadoran situation presents an unusual opportunity to mount a basic challenge to state claims of ownership based on colonial doctrines of domination under the doctrine of Christian Discovery. The Shuar themselves—and other Indigenous Peoples—must assert the right and power to prevent “severe or permanent environmental impact” to their lands.

The importance of the Shuar making this argument takes on added urgency after Ecuadoran President Correa issued a statement of support for the EXSA mine, saying, “the most important thing about nature continues to be the human being and the primary ethical and moral duty is to defeat poverty.”

Indigenous worldviews do not privilege humans over Nature, but see humans as part of the natural world, with responsibilities to live in balance with rather than dominate the earth. President Correa’s added line about “defeating poverty” adds nothing to the human relationship with Creation and instead stirs up confusion based on economic desperation brought about by the capitalist extractive system that damages the land and humans.

Ecuador has its own “water protectors,” who, like those at Standing Rock, who are taking on an increasingly important task in the face of extractive industries. Ecuador also has an active collaboration of Indigenous and non-Indigenous environmental activists, led by the Confederation of Indigenous Nationalities of Ecuador (CONAIE).

Ecuador thus has the ingredients for a strong stand against destruction by extraction. The local leadership needs lawyers who will back up that stand with the most powerful arguments that can be made.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.