Environmental Justice Stopped by the Pandemic

19 de Noviembre de 2020
By: Priscila Hernández Flores and Pablo Hernández Mares.

Latin American environmental defenders denounce how while the pandemic locked up a large part of the population, extractive megaprojects continued their path, taking advantage of how difficult it is to protect territories from virtuality. The lawyers Ximena Ramos, in Mexico, and Liliana Ávila, in Colombia, narrate the impact that confinement has had on the administration of justice in the region. Report of the international journalistic series #DefendingWithoutFear coordinated by Agenda Propia.

The quarantine due to the Covid-19 pandemic not only left the communities without defense in their territories, the legal investigations were also suspended when the courts were closed and the deadlines for legal procedures were extended in the government offices. The Mexican Center for Environmental Law (CEMDA by its acronym in Spanish) and the Inter-American Association for Environment Defense (AIDA by its acronym in Spanish) are two civil organizations that know how environmental justice has deteriorated due to the health contingency. Through the experiences of  Ximena Ramos, from CEMDA, and Liliana Ávila, from AIDA, it is possible to know the consequences that the health emergency has left. 

Both lawyers, recognized in Latin America for their trajectory in the protection of natural resources, shared how the pandemic has impacted their work. Especially that of accompanying men and women who take care of the territories from their communities and protected areas.

Mexico: Judicial Paralysis as Megaprojects Advance

Ximena Ramos, regional director of the CEMDA Gulf of Mexico Office, talks about the past, the last time she was physically accompanying the communities, and how she now advises them. She remembered when we still walked without a mask and social distancing; when Covid-19 did not exist.

She brings to mind the last place she went before the pandemic. “On March 16, I went to Felipe Carrillo Puerto, in Quintana Roo, to talk about the mega-project called Tren Maya (Mayan train),” she says that trip, in southern Mexico, was made to listen and document the complaints of the residents who opposed this megaproject that includes a circuit of almost 1,500 kilometers of railway lines for passengers and cargo. The Mayan train aims to promote the growth of new population centers and development areas in five states in the southeast of Mexico.

According to Ximena, these construction works would have irreversible impacts on the Mayan jungle, one of the most biodiverse areas in the world and the second-largest tropical forest in Latin America after the Amazon.

Based on the plans of the president, Andrés Manuel López Obrador, the Mayan Train will pass through one of the most important Protected Natural Areas in the country: the Calakmul Biosphere Reserve where species such as the jaguar, the peccary, and the Cougar live. This area is protected by farmers, indigenous Ch’ol and Mayan communities.

On March 21, the government Declared Health Emergency for Covid-19, which caused the closure of official activities. Ximena recalls that since then, she has not been able to reconnect with the communities. In order to prevent the spread of the virus, one of the measures implemented was the closure of public offices and the cessation of non-essential procedures.

One of those pauses was that of the courts, which began to reopen, gradually, from the beginning of August. The problem is that since the offices were closed for more than four months, Ximena explains, now they are addressing the delay they had while receiving new cases. "The judiciary is overwhelmed, so the decisions are not arriving in the timeliest manner," she says.

Although the courts were suspended, the same did not happen with all activities. The government, through daily press conferences reporting on the progress of the pandemic, infections and deaths from Covid-19, also announced a series of activities that would continue in the contingency, including mining, the construction sector, and the assembly factories with large production lines. These three branches have been particularly questioned by defenders of the environment and human rights.

These constructions included the work on the Tren Maya megaproject. In the middle of quarantine, the President ignored the recommendations of his health cabinet (such as not attending mass events, not shaking hands) and gave a green light to start the project.

The above, even when the National Human Rights Commission issued precautionary measures so that the works were not continued. This last petition was also presented by communities and groups that asked the government to stop construction not only because of the environmental effects that the train will cause but also because of the risk of increasing coronavirus infections.

Accompanying the southern communities, where construction is taking place, is one of the issues that attorney Ximena follows upon. From CEMDA, there is a critical stance to the construction of the Mayan Train because "more than half (53%) of the train's line is on ejido lands, affecting a total of 177 ejidos." Ejidos are a form of communal land ownership in Mexico.

Beyond the contradiction of starting a megaproject when quarantine was requested, the beginning of the construction work caused that with the arrival of the workers the virus also reached areas where there were no infections of the disease, as denounced by the community.

Another case that Ximena accompanies is that of the Masewal people in the Sierra Norte of Puebla, in eastern Mexico, where three mining concessions were granted. There, open-pit metal extraction occurs in "concessions located where water and springs are recharged, which have a symbolic value and also help to satisfy the communities' human right to water," she details.

The trial of this case began in 2015 and the legal protection has already been granted. Meanwhile, lawyers of these communities, such as Ximena, presented a revision appeal that is yet to be decided in the Supreme Court of Justice (SCJN by its acronym in Spanish). At the same time, the Ministry of Economy (official agency) and the companies also presented their appeal for review when the SCJN granted the protection to the communities.

Even when there were no activities due to the pandemic, the SCJN resumed tasks remotely. While they did so, civil society and the residents of the area gathered more than 3,000 signatures to request declaring the Mining Law unconstitutional.

Organizations like the Environmental Defender Law Center (EDLC) and the Inter-American Association for the Defense of the Environment (AIDA) joined in this statement and, together with CEMDA, have questioned whether this law was not agreed upon with the indigenous people, does not respect the rights of the people, and benefits the mining concessions in their territories.

For now, the works are suspended and the SCJN is analyzing the case. While this is happening, the community thanked them saying in Masewal language: “Timotasohkamatih”, which in English means: “We fell in love with your accompaniment.” With these words, they highlighted the national and international support that led the SCJN to declare that legislation unconstitutional.

CEMDA trains communities and empowers them with information for the defense of their territory. 

To the accompaniment she gives to the communities affected by the construction of the Mayan Train and to the Masewal people who denounce how the mining companies want to take advantage of their territory, one must add the legal actions and advice that Ximena gives to the indigenous people who are resisting the construction of the Transisthmian Train (Tren Transístmico in spanish), another of the mega-projects of the Mexican government.

This project consists of the expansion of the ports of Coatzacoalcos in the Gulf of Mexico and the port of Salina Cruz, on the Pacific coast. Additionally, the remodeling of the railways between the two piers and the construction of gas pipelines and factories.

The lawyer remembers when in April 2020, on WhatsApp, the Mixes Ayuuk indigenous community of San Juan Guichicovi, in Oaxaca, south of Mexico (one of the most multi-ethnic places in the country where the work of the Transisthmic Train is carried out as part of the Interoceanic Corridor),  asked her if she knew what engineers were doing in their community and if they had permission to be there. 

Ximena states that if there were no pandemic, these doubts could have been resolved by requesting information to the government, backed by the law on the delivery of public data that has been in force since 2002, a useful tool for defending the territory. “When the residents ask us, we cannot answer them because (the authorities) do not answer us. Since April a request has been made, but as the dates for responding have passed, the data may be delivered later. For this reason, we cannot initiate other actions,” the lawyer laments and explains that “on one hand they are suspending this indigenous consultation process so that there is no risk of contagion between the communities. On the other hand, as it is one of the main projects of this administration, they have tried to continue with the works."

Ximena also warns that the community could be at risk of being displaced, so the inhabitants of San Juan Guichicovi have chosen to expel the workers and engineers to defend their territory.

So far, State authorities have only presented an environmental impact statement for a section of the Trans-isthmian Train work. When indigenous leaders and civil organizations requested precise information from the company Ferrocarriles del Istmo and the Ministry of the Environment and Natural Resources (Semarnat acronym in Spanish), they responded that they cannot provide the information because they are not requesting it "through the appropriate channels.” The community, with support from CEMDA's lawyer, made the request through legal resources, but they have not yet received a response.

Not being able to request information is one of the processes stopped by the health contingency, but not the only one. Another detained process is that the agencies in charge of environmental issues in Mexico, such as Semarnat and the Federal Attorney for Environmental Protection (Profepa), have reduced their work to a minimum with the closure of their offices.

Without being able to be in the territory, “the phone calls have saved us, WhatsApp and some meetings with Zoom (meeting platform). We have found tools to continue communicating and documenting these situations that have been happening. Then, when the time comes and we can return to normality we can file these claims," explains Ximena, although she recognizes that face-to-face meetings and the workshops, as well as the assemblies that are normally held in different communities for decision-making are necessary.

Even though the human rights of access to information, participation, and access to justice have not been guaranteed in the pandemic, the lawyer emphasizes that they have tried to adapt to virtuality, “but it is not the same. There are many communities that do not even have internet or as soon as the rain comes they lose communication for two days. That's the hardest part of maintaining these advocacy processes with these restrictions to meet.”

Nowadays, in all these cases, Ximena takes them from her home and virtually. She  acknowledges that she wishes to return to the territory and know what is happening there. For now, she has adapted to long hours of teleworking to continue advising and maintaining a dialogue with the communities.

Before the pandemic, the CEMDA team went to the territory to listen directly to the communities affected by megaprojects. Now that dynamic depends on virtuality. 

Legal Paralysis Repeats itself in Latin America

What happens in Mexico and Ximena Ramos must overcome, is repeated in other countries. This is the case of lawyer Liliana Ávila García, from the Human Rights and Environment program of the Inter-American Association for Environmental Defense (AIDA). She follows the protection of indigenous communities against dams and mining in the Amazon.

Liliana, who lives in Bogotá, the capital of Colombia, also remembers the last time she was in these territories.

 “My last trip was to Brazil to accompany the communities affected by the construction of the Belo Monte dam and at risk from the development of a gold mining project, Belo Sun.” If that project is completed, it would become the third-largest dam in the world, after the Three Gorges in China. Since then, Liliana has not been able to travel. First, because for six months (end of March to mid-September), international flights from Bogotá to other countries were closed (decision of the Colombian government) and, second, due to Covid-19 infection prevention measures.

The lawyer provides legal assistance on issues related to air quality, pollution by toxic metals, and affected by dams. From north to south, in Latin-America, there is a constant, as Liliana explains: “In terms of environmental democracy, the pandemic has indeed led to serious impacts on the possibilities for citizens to be informed, and for them to access justice mechanisms.” 

When the quarantines began in the different countries, the States focused on the health emergency, which has caused, according to an AIDA expert, "a weakening of the rule of law throughout the continent resulting from the declarations of emergency, the absence of political control and, in general, public attention to issues arising exclusively from the pandemic.”

This organization also legally supports the opposition to hydrofracking (fracking) in Colombia and Argentina and is part of the Latin American alliance against this mode of gas or oil extraction. AIDA also follows the cases of people affected by dams in Brazil, Mexico, Colombia, and Guatemala.

While the quarantines or mandatory isolations were prolonged, Liliana and her co-workers received messages from the communities on WhatsApp denouncing threats, murders of indigenous leaders, and many more concerns, such as ignoring collective rights, including prior consultations.

Those cases that worsened during the pandemic motivated this association to generate the call #AlertaAIDA to monitor threats to defenders and the environment. This organization has indicated that "the authorities have changed consultation formats, relaxed protection, and surveillance measures and neglected the most vulnerable people, such as indigenous peoples, rural communities, and defenders."

One of these alerts was the one released by the study "Voices from the territory," in which they confirm that several countries have named mining as an essential activity (as did Mexico) and continued to work in the middle of the quarantine affecting communities and the environment while benefiting the mining industry.

One more warning is what happened in Colombia, where the government intended to install a virtual pre-consultation, in response to a proposal made by businessmen. However, the indigenous peoples rejected this action for violating their rights and the measure was rejected.

Another alert is the fast spread of Covid-19 infections in the Amazon region. Some of these lawsuits have been able to resort to international bodies such as the case of the Yanomami indigenous peoples in Brazil, where the Inter-American Commission of Human Rights (IACHR) granted precautionary measures for the protection of this community affected by this disease, extractive projects, and deforestation.

Environmental defenders have also been attacked in times of pandemic, something that AIDA monitors throughout the region. “It has been a horror,” says Liliana, “because in countries like Colombia, Mexico, and Honduras, the context of attacks against defenders has increased. In times of pandemic, we clearly see a lack of response from the State that adds to its systematic faults, but it is especially serious in this situation of confinement. We see a failure in the duty of the State in relation to the protection of defenders at risk.”

Liliana recognizes that although justice was stopped, the same did not happen with the defense in the territories. The risks, the quarantine, and even the lack of connectivity in many rural areas led to the community bases organizing themselves differently.

A successful case is that of the messenger network with the communities they created in Guatemala. “We identified the women who had access to the internet or data and with them, we have been sharing information so that, in turn, they share it in their communities. That has been a valuable aspect that we have rescued, the importance of looking for other ways to get in touch and communicate with people in the communities,” says the lawyer.

The defender says that all these situations in times of pandemic are a challenge. She has also had to adapt to new ways of working. Liliana shares that fortunately in AIDA they have made the schedules and dynamics more flexible so that the employees of the organization, based from the United States to Argentina, can continue with their assignments and, in turn, with the dynamics of working at home taking care of their children and family. 

Public Resistance

That access to justice is stopped by the pandemic does not mean that the resistance and struggle of the communities stopped too. Despite the connectivity failures with rural sectors or areas far from the cities, social networks become allies for the dissemination of problems and a way of resistance.

Both CEMDA and AIDA agree that their complaints about violations of environmental rights in times of pandemic will not stop. Both litigants agree that if the environmental justice issue is not addressed, there will be greater impunity and damage against territories and natural areas.

This is going to be seen in the long run. We are not succeeding in stopping these processes that are going to have severe effects. Right now, we're not going to see these impacts so much, but it's going to be long term. I do believe that the issue of justice will be totally affected," concludes Ximena.

Environmental conflicts have not ended because of the pandemic much less have they been suspended. On the contrary, says Liliana, these “will generate greater social discontent, they will continue to delegitimize the States and, of course, they will continue to weaken the States of Law. They will provoke attacks against women defenders and will continue to compromise the responsibilities of the States.”

Ximena will continue in environmental defense. She has led cases that have marked the legal agenda in Mexico (such as the fight against transgenic soy permits, which was the second ruling in which the Supreme Court decided on indigenous peoples and megaprojects, referring to the importance of the  Prior and Informed Consultation). Now, she knows that with the pandemic the challenges are different, but she is willing to continue.

The same goes for Liliana. One of the emblematic cases that she took and that have made a mark on her is the legal accompaniment to Afro-descendant people affected by the planting of African palm in the Bajo Atrato in the Chocó region in Colombia, where a paramilitary occupation of their territories caused the displacement of these population.

Meanwhile, the virus continues to spread in the region, without an effective vaccine and with extractive projects underway. The communities, although they seem to be isolated, are not alone because there are lawyers like Ximena and Liliana who are willing to accompany and defend them without fear.

Note. This article is part of #DefendingWithoutFear, a journalist series that tells the story of women and men who struggle to defend the environment in a time of pandemic. Developed by Agenda Propia, in coordination with twenty journalists, editors and allied media in Latin America, the series is made possible thanks to support from the Environmental Investigation Agency (EIA), a global NGO.