Development & Aid, Environment, Tierramerica

Illegal Embankment Continues to Harm Argentine Wetland

BUENOS AIRES, Oct 27 2008 (IPS) - An unprecedented ruling in Argentina's environmental jurisprudence has seen almost one year pass while awaiting compliance.

The government of the northeastern Argentine province of Corrientes has not been able to comply with the ruling of the district's highest court, which nearly a year ago ordered the removal of a 30-kilometer embankment that is damaging the valuable ecosystem known as the Esteros del Iberá.

The embankment, 1.5 meters high and six meters wide, was built by the company Forestal Andina without permits and without an environmental impact study in the Iberá (“water that shines” in the Guaraní language), a 1.3 million-hectare reserve of marshes, forests, shallow lakes, pastures and jungles.

The area is habitat to a hundred fish species, 40 types of amphibians, 60 reptile species and some 345 kinds of birds, as well as mammals like the aguará-guazú (Chrysocyon brachyurus or “large fox” in Guaraní), the river otter (Lontra longicaudis) and the Pampas deer (Ozotoceros bezoarticus).

The reserve is shared by the provincial government and private landowners. The authorities control most of its water resources, while most of the land is privatized and used for livestock and forest industries, farming and tourism.

Residents of Paraje Yahaveré, negatively affected by the embankment, brought the lawsuit to the courts in 2005, with legal consulting financed by the Conservation Land Trust, a foundation of U.S. ecologist and millionaire Douglas Tompkins. After a series of appeals, they won the case.

In November 2007, the Corrientes Superior Tribunal of Justice ordered the demolition of the embankment, which had been designed to gain land area back from the water. When the first lower court ruling was issued, the embankment was just 1.5 km long.

The judges ruled that “those who disobeyed the protection order (in the first and second instances) cannot benefit,” because it would set a precedent in environmental issues that “it is always better to litigate over consummated events, because retreating would imply greater harm.”

The court established that if the company did not proceed with the demolition, the task would be left in the hands of the provincial government's water and environment institute, ICAA, which has power over management and policy of the reserve.

But carrying out the ruling has not been so easy.

“The ruling is in the process of being executed,” Patricia McCormack, attorney for the plaintiffs, told Tierramérica, but there are “delays”.

Once the maximum court ruling is announced, compliance is not automatic. “The sentence is firm, but it has to be defined how and when it is going to be demolished, and for that we return to the first instance (lower court), and there is no deadline there,” she said.

The courts are now “giving a foothold to the claims” of the company and of the ICAA “in safeguard of due process.” “The timeframes of justice are slow, but if we don't complete the formalities they can ask to annul the entire process,” said McCormack.

Attorney Juan Delsín, ICAA legal manager, told Tierramérica that the provincial body “has the will to comply with the ruling… We already have the documents for the direct contracting of demolition works and we are waiting for the Executive branch to authorize the expense,” he said.

The cost of demolition is about 500,000 dollars, which will be charged to Forestal Andina, said Delsín. In any case, the steps to begin work could take 90 days once it is established who will carry it out.

The Environment and Natural Resources Foundation, Wildlife and other environmental groups and the federal governments Forest Directorate last week accompanied a horse parade of Yahaveré residents to demand compliance with the ruling.

The groups have organized online to send e-mails to the Corrientes Ministry of Production, which oversees the ICAA. The campaign is called “No to the Embankments – Save the Iberá.”

In spite of it all, the judicial ruling constitutes a precedent in environmental jurisprudence, according to McCormack. “It's the first time that the courts have issued an order with these characteristics,” she said.

Andrés Nápoli, of the Environment and Natural Resources Foundation, agreed that the sentence is unique. “It is the first time in Latin America that a judicial ruling orders the demolition of an illegal construction of this type because of its environmental impact,” he said.