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El Salvador's Mining Ban and Mining in Ontario's Ring Of EL SALVADOR’S MINING BAN AND MINING IN ONTARIO’S RING OF FIRE FROM THE LENS OF ECOLOGICAL LAW CarlaSbert*† INTRODUCTION...........................................................................................517 I. THE LENSOFECOLOGICAL LAW ............................................................518 II. EL SALVADOR’S MINING BAN...............................................................521 A. BriefContext ....................................................................................521 B. TheLaw ProhibitingMetal Mining fromthe Lens of EcologicalLaw......................................................................................523 1. Ecocentrism...................................................................................524 2. EcologicalPrimacy .......................................................................524 3. EcologicalJustice..........................................................................527 III. MININGINONTARIO’S RINGOFFIRE...................................................529 A. BriefContext ....................................................................................529 B. Selected RulesGoverning Mining in theRingofFire from theLens of Ecological Law...................................................................531 1. AccessingMineralsand Land UsePlanning.................................532 2. Consultationand Free Priorand Informed Consent......................534 3. Minimizing and RedressingHarm................................................536 C. Lens of EcologicalLaw Analysis.....................................................537 1. Ecocentrism...................................................................................538 2. EcologicalPrimacy .......................................................................539 3. EcologicalJustice..........................................................................541 CONCLUSION ..............................................................................................545 INTRODUCTION As thetopicofthe workshop at whichthisEssay waspresented indicates, one of thechallengesofthe Anthropoceneisto shift from environmentaltoecologicallaw.Iunderstandecological lawasanew legal paradigm aimedatconstrainingeconomic activity within ecological limits and at promotingand supportinganecologically just society. To better *Ph.D. candidate, University of Ottawa,Faculty of Law. ThisEssay waspresented at the Joint E4A Law andGovernance Initiative/ELGA Workshop, From Environmental to Ecological Law: An AnthropoceneChallenge,whichwas heldOctober 17–18, 2017 in Montreal,Quebec, Canada. †Thisresearch wasgenerously supported by the the Sciences and Humanities Research Council of Canadaand the University of Ottawa. 518 Vermont Law Review [Vol.43:517 understandthe challenges and opportunitiesfor ashift to this new paradigm,Ihave proposed a lens of ecological law and hereIapply this lens in twodifferent cases concerning mining. TheAnthropocene wouldnot have occurred without theBronze Age and it will not unfoldwithout minerals.Mineral extractionhas greatly expanded with theGreat Acceleration,1 contributingtoecological degradationand grave social impacts.2 We maybeunabletoimagine human civilizationwithout minerals, but we have to reimagine their extractionand usetoavoid harm to thelandscape, water, wildlife, workers, women, and communities. Ecological lawisone important leverto transform mining in theAnthropocene. Understanding how current laws differfromecologicallaw can contribute to this transition. To shed some light on this question, this Essay appliesalens of ecological law to twocase studies:ElSalvador’smetal mining banand theproposed mineral developmentinOntario’s Ring of Fire. I. THE LENSOFECOLOGICAL LAW The lens of ecologicallaw is an analytical tool forcritiquing existing lawtoidentify majorobstacles and opportunitiesfor ashift to ecological law.3 It is comprisedofthree interconnectedprinciples: 1. Ecocentrism: “[r]ecognize and [r]espect the[v]alue of all [b]eings” and theinterconnectednessamong them,equally “[p]romotingthe [i]nterests of [h]umanand [n]on-[h]uman [m]embersofthe Earth community.”4 1. MARINA FISCHER-KOWALSKI ET AL., UNITED NATIONS ENV’T PROGRAMME,DECOUPLING NATURAL RESOURCE USE AND ENVIRONMENTAL IMPACTSFROM ECONOMIC GROWTH 10 (2011);Will Steffen et al., The Trajectory of theAnthropocene:The Great Acceleration,2ANTHROPOCENE REV.81, 89 (2015). 2. See,e.g.,CLIVE PONTING,AGREEN HISTORY OF THE WORLD:THE ENVIRONMENT AND THE COLLAPSEOFGREAT CIVILIZATIONS 325, 327–28 (1993) (“The massive increase inmining operations to produce metals ...has inevitably made amajor andhighlyvisible impact on the environment.”); THE GAIA FOUND., UNDER-MINING AGRICULTURE:HOW THE EXTRACTIVE INDUSTRIES THREATEN OUR FOOD SYSTEMS 9(2014), https://www.gaiafoundation.org/wp-content/uploads/2015/11/ UnderMiningAgriculture_Report_lowres.pdf (“Given theEarth’s current ecological fragility, anyfurther devastationand ‘toxification’ of lands, soils,watersand biodiversity by mining wouldbeplanetary suicide”). 3. For adetailed discussion of ecological law,see Carla SbertCarlsson, AmparosFiled by Indigenous CommunitiesAgainst Mining Concessions in Mexico: Implications foraShift in Ecological Law,10MEXICAN L. REV.3,7(2017). 4.Id.at8. 2019] Mining from theLensofEcological Law 519 Theprinciple of ecocentrism considers the view of thehuman-Earth relationshipunderlyingthe law; whether theinterconnectedness of all membersofthe Earth community is recognized; and whether human and non-humanbeings areequally valued.5 2. EcologicalPrimacy: “[e]nsurethat [s]ocial and [e]conomic [b]ehavior and [s]ystems are[e]cologically [b]ound, [r]especting PlanetaryBoundaries.”6 Theprincipleofecological primacy involvesseveral relatedelements: ensuringhuman development is pursued without irreversiblyimpairing ecologicalintegrity7 or crossing planetaryboundaries;8 constraining materialand energyuse within ecologicallimits;9 and restoring and maintainingecological integrity.10 Some ecologicallaw scholars arguethat the“Holocene concept”11 of ecologicalintegrity shouldbealignedwith the concept of theAnthropocene.12 Iuse theParksCanadaAgency’s definition of “ecological integrity,” whichstatesthat“ecosystems haveintegrity when they havetheir nativecomponents(plants, animals and otherorganisms) 5.Id. 6.Id.at9. 7. See,e.g.,Stephen Woodley, Ecological Integrityand Canada’sNational Parks, 27 GEORGE WRIGHT F. 151, 158-59 (2010) (“In Canadian national parks, ecological integrity has evolved from ascientific idea into amanagement system.”);JackManno, Whythe Global EcologicalIntegrity Group? The Rise, Declineand RediscoveryofaRadicalConcept, in CONFRONTING ECOLOGICALAND ECONOMIC COLLAPSE:ECOLOGICAL INTEGRITY FOR LAW,POLICY AND HUMAN RIGHTS 36–37 (Laura Westra, PrueTaylor &Agnès Michelot eds.,2013) (recognizing how theindustrial use of chemicals affectsecologicalintegrity); Kate Turner&Karen Beazley, An ExplorationofIssues and Values Inherent in theConcept of EcologicalIntegrity,32ENVIRONMENTS 45, 46 (2004) (exploringthe “various controversies andperceptions associated with thedefinitionofecologicalintegrity and of the rolesofscience and philosophyembodied in theconcept”);ECOLOGICAL INTEGRITY:INTEGRATING ENVIRONMENT,CONSERVATION, AND HEALTH 22 (DavidPimentel, Laura Westra &ReedF.Nosseds., Island Press2000) (“[T]hereisagrowingbody of policyand lawthat mandates theprotectionand restorationofecologicalintegrity.”). 8. JohanRockström et al., PlanetaryBoundaries: Exploringthe Safe Operating Space for Humanity,14ECOLOGY &SOC’Y 32, 37, 52 (2009),https://www.ecologyandsociety.org/vol14/iss2/ art32/. 9. SbertCarlsson, supra note3,at11. 10.Id. at 20. 11.For example,Peter Burdon referred to ecological integrity as a“Holocene concept”during aquestionand answer session following an Economicsfor the Anthropocene Presentation. Carla Sbert, The Ring of Fireand theElSalvador Mining Ban fromthe Lens of Ecological Law,YOUTUBE (Jan.17, 2018),https://www.youtube.com/watch?v=m_zuIVL4DqI&feature=youtu.be. 12.Geoffrey Garver, AComplex Adaptive LegalSystemfor the Challenges of the Anthropocene, in ECOLOGICAL SYSTEMS INTEGRITY:GOVERNANCE,LAW AND HUMAN RIGHTS 232, 235 (LauraWestra et al.eds.,2015). 520 Vermont Law Review [Vol.43:517 andprocesses (such as growth and reproduction) intact”13 with the understanding that “ecosystemsare inherently dynamic, and have ahistory of human interventionand evenmanagement.”14 3. EcologicalJustice: “[e]nsure [e]quitable[a]ccess to theEarth’s [s]ustaining[c]apacity for[p]resent and [f]uture [g]enerations of [h]umans and [o]ther [l]ife [f]ormsand [s]ystems,and [a]void the[i]nequitable[a]llocation of [e]nvironmental [h]arms.”15 Theprincipleofecological justice is basedprimarilyonKlaus Bosselmann’sconcept,which includes intragenerational,intergenerational, and interspeciesequity.16 Theprincipleofecological justiceprobeswhether thelaw provides ethical grounding fordecisions that lead to theequitable useofthe planet’ssustainingcapacity and promotes taking onlywhatone needs and thefairdistributionof—and restrainton—wealth.17 Finally,this principleaskswhether environmental harms areequitablydistributed among current and future generations of humansand otherbeings.18 In thecasestudies that follow,Iusethis lens of ecological law to reflect on theimplications of ashift from environmental to ecological law in thecontextofmining. By looking to El Salvador, Iconsiderwhether the first attemptbyacountry to banmetal mining is astepinthe direction towardsecological law.19 In considering themineral
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