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Legal Frameworks to Protect the Amazon Are Being Sorely Tested

ECUADOR / 8 NOV 2022 BY INSIGHT CRIME EN

Environmental crime thrives across the Amazon as a result of low state resilience. Some efforts have been made to combat it. However, corruption, a lack of political will, and limited articulation between public agencies form an explosive mixture that has resulted in soaring deforestation.

Legislative Framework

Each of our countries of study has its own legislative framework designed to protect the environment. However, contradictions, ambiguities, and legal gaps mean that these often fall short of combating environmental crime.

In Bolivia, a number of laws are in place to target environmental crime. However, legal gaps and contradictions mean that perpetrators are rarely punished.  

The Law of Mother Earth and Integral Development for Living Well in Law 300 of 2012 lays out the government’s commitment to protecting the environment and promoting sustainable living. This has been the legal basis of norms used to regulate the management of natural resources across the nation, including water and hydrocarbons. However, alongside this, successive governments have promoted expansive agricultural activities and cattle rearing, which are often linked to land grabbing. This raises questions about how effective the law has been in curbing environmental crime.

SEE ALSO: State Resilience: Little Political Will for Protecting Peru's Amazon

Otherwise, the nation’s penal code outlines penalties for a number of environmental crimes. Article 358 states that anybody who destroys forests, jungles, pastures, or crops should receive a prison sentence of between one to six years. Article 206 details that anybody who creates a fire to make way for agriculture (that spreads and damages other properties) faces two to four years of imprisonment. Fires continue to incinerate Bolivia’s Amazon and other regions, suggesting this legislation has failed to fend off perpetrators.

As for wildlife trafficking, penalties are light. Law 1333 of 1992 punishes illegal hunting, fishing, and capturing animals using explosives with one to three years in prison.

In Venezuela, the Organic Environmental Law of 2006 provides guidance for the management of natural resources and lays out constitutional rights to a safe, healthy, and ecologically-balanced environment for all. Articles 64 and 71 highlight a public right to access information on the environment. The state is tasked with controlling its dissemination. However, the Maduro regime has not fulfilled this function. In 2012, the government stopped publishing environmental datasets. This has made reliable data on environmental crime, deforestation, and biodiversity loss incredibly hard to come by. 

The Penal Law of the Environment (Ley Penal del Ambiente) of 2012 lays out how environmental crimes in the nation should be handled. The illegal occupation of protected areas is punished by two months to one year of imprisonment. Illegal hunting faces a maximum sentence of five years and those involved in non-metallic mining, like coal or sand, in or near water sources can spend up to eight years in prison.  

Gold mining, however, is not included. On the contrary, it has been promoted by the Maduro regime. In February 2016, President Nicolás Maduro created a new legal framework for mining that included the formal creation of the Orinoco Mining Arc. This has been used to boost mining activity. Despite this “legal framework,” a lack of regulation and enforcement, corrupt officials, and the power of NSAGs mean that unrestrained gold mining has fueled deforestation.

Laws designed to target environmental crime in Ecuador have been relatively lax and, in some cases, contradictory.

A landmark decision was made in 2008 to legally recognize nature as having inherent rights when the nation rewrote its constitution. This included a new chapter on the “Rights of Nature.” Articles 71 and 72 detail how nature in all its forms has the “right to exist, persist, maintain, and regenerate.” As a result of this, ecosystems themselves can be named as “defendants” in Ecuador. The new constitution, however, also permitted mining in protected areas, on special request of the president and the National Assembly’s approval.

Most environmental crimes committed in the nation are punished with relatively light penalties. 

Chapter Four of the nation’s penal code provides guidelines on how to punish a wide range of environmental crimes. These include forest fires, crimes against flora and fauna, and illegal mining.

For most of these crimes, offenders are punished with one to three years in prison. Article 246 similarly punishes anyone who directly or indirectly causes fires in native forests. Article 245 lays out the same punishment for anybody who invades protected areas. 

Anybody involved in the hunting, fishing, capture, collection, extraction, trafficking, possession, transport, exchange, or trade of endangered species also faces this sentence. Julia Salvador, at WCS Ecuador, revealed that, in many cases, those caught for wildlife trafficking who receive the maximum sentence of three years "get out free in a year or are not even sent to prison.”

In contrast, Guyana has a robust legal framework used to target environmental crime. Successive governments have regularly updated this as fresh challenges have emerged. 

Unlike its Amazonian counterparts, Guyana is known for its strict laws and regulations when it comes to the management of natural resources. Its government has developed a green state development strategy that lays out a “green agenda” that is expected to run until 2040. The agenda will reportedly work towards a “green economy defined by sustainable, low-carbon, and resilient development that uses its resources efficiently, and is sustained over generations.” 

The most important piece of legislation used to combat environmental crime in the nation is the Environmental Protection Act of 1996. This recognizes the Environmental Protection Agency (EPA) as the main agency tasked with handling environmental issues in Guyana. This act also provides guidelines on the management, conservation, and protection of the environment, as well as the sustainable use of natural resources. 

Unlike other countries in the region, Suriname’s legal framework dances between national and departmental mechanisms. This dynamic makes it challenging to enforce laws. 

When it comes to legal procedures, mining, in particular, is a problematic area for the nation. 

Legal concessions are relatively easy to obtain. They are issued by the Geology and Mining Department (GMD) of the Ministry of Natural Resources. Before a concession is approved, Indigenous groups or other locals present in the affected area are supposed to be consulted. Then, a district commissioner submits non-binding advice to the ministry. 

However, there is no way local people can appeal against official decisions to allocate concessions on their lands. What’s more, in practice, concessions are typically granted without a full consultation, paving the way for deforestation to occur. 

Political Will and Leadership

Some clear attempts to fight environmental crime in the Amazon have been made by successive governments in our countries of study. However, the political will to fight deforestation and biodiversity loss in the region has largely been inconsistent. At times, public rhetoric and proposals have clashed with actions later taken.

In Bolivia, successive governments have promoted cattle rearing and agricultural activities as key motors for economic development. Initially, when these dynamics were first being promoted under Morales, an attempt was made to reconcile the relationship between land use and conservation. However, this rhetoric largely offset attempts to fight deforestation in the nation’s Amazon region.      

After the end of Morales' term in office, it has become commonplace to see this contradictory political messaging continue. Luis Arce, Bolivia’s current president, has promised to reactivate the country's economy, which has been hit hard by the COVID-19 pandemic. Promoting agricultural activities will be at the forefront of this recovery plan

“The current government is a continuation of that of [former President] Evo Morales,” a Bolivian journalist explained. “The expansion of the agricultural frontier to promote development in the country is a policy that will persist. It is stipulated in the National Development Plan."

SEE ALSO: Latin America's Massacres of Environmental Defenders Continue with Impunity: Study

Successive governments have also continued to promote mining and the creation of mining cooperatives to facilitate economic growth. As a result, mining has been carried out in protected areas such as Madidi National Park and areas surrounding the Beni River.

Alongside this, high-level attempts to safeguard the nation’s Amazon region from illegal acts have lacked any real bite. For example, successive governments have failed to take any substantial action to curb uncontrolled fires used to make way for agricultural expansion

In part, the lack of a political will to combat environmental crime results from the strong rapport between the governing MAS party and economic groups that benefit from agriculture and mining.

Venezuela has shown itself to be even less willing to target environmental crime in its Amazon. As in Bolivia, unrestrained mining activity is actively promoted by state officials. 

During the nation’s ongoing crisis, the Maduro regime’s finances have been hit hard by US sanctions and falling oil prices. As a result, the regime has increasingly promoted gold mining to attempt to make up the difference. Rampant deforestation has been a direct result of this policy.

This will likely persist for as long as Maduro is in power. Gold is a major source of financing for the current government, the military, and NSAGs allied with it. Meanwhile, the opposition rarely brings up the environment as a topic of political interest. As such, there is no real political will to restrict the activity or reduce its impact

Venezuela is one of just a few countries that did not submit a voluntary carbon emission reduction target as part of the 2016 Paris Climate Agreement, which aimed to foster a global response to climate change.

Environmental datasets have also been hidden from public view. There is no official data available on deforestation, endangered wildlife, or mining in Venezuela. Environmental impact studies have not been undertaken and Indigenous peoples have not been appropriately consulted as plans for mining are made. 

When combined, these factors show that the political will to combat environmental crime and deforestation in Venezuela’s Amazon is largely non-existent. 

In contrast, some steps have been taken in Ecuador to show the nation is taking environmental crime more seriously. The 2008 landmark decision to recognize nature as having inherent rights was a leap forward, in rhetoric at least. 

However, as in Bolivia, this has been offset by the state’s ongoing promotion of industrial activities (like mining, oil exploration, and palm oil cultivation) across the nation’s Amazon. Palm oil cultivation has been linked to land grabbing in the nation’s Amazon region, while illegal miners have encroached on protected territories. It is difficult to say that the government is clamping down on environmental crime while these dynamics are at play.

This paradox looks set to continue. President Guillermo Lasso, who was sworn in on May 2021, promised to boost extractive industries during his electoral campaign.

On top of this, a lack of consistent public data available on deforestation points to a low political will to monitor and resolve environmental crimes. This correlates with the weakness of environmental institutions in the nation. A high turnover of ministers, budget cuts, and the unexplained dismissal of personnel have led to a gradual weakening of the nation’s Ministry of the Environment and Water. 

When taken together, these factors show a relatively low political will to target environmental crime in Ecuador’s Amazon in any meaningful way.

In Guyana, the ongoing evolution of Guyana’s legal framework to protect the environment and its international commitment to preserve its forest indicates the country is committed to fending off environmental crime, especially illegal logging. At the same time, however, the country is in a race to exploit its mining and oil resources, which has had an impact on the degradation of its ecosystems.

Meanwhile, in Suriname, some political will to combat deforestation and its drivers moving forward is apparent. However, the results of recent promises are yet to be seen. 

President Chan Santokhi, who has led the country since July 2020, has promised to better regulate the mining sector, in order to reduce its environmental impact and increase tax income

On top of this, the current government has advocated for Indigenous rights to be considered as mining concessions are handed out. 

With its plan to create a new mining department in the Ministry of Natural Resources, it seems Indigenous groups will finally have a voice in these processes. The department plans to engage with local communities and no longer grant concessions without local approval. If successful, this will be a leap forward in a country where Indigenous communities have long been ignored when concessions have been granted.

Unfortunately, according to members of local communities affected by mining, informal relationships between state officials and miners still decide who is allowed to mine legally and who is not. As such, Suriname still has some challenges to overcome when it comes to transparency around activities like mining.

However, steps are being taken in the right direction. The mining department implemented a program for concession applications to be submitted online starting in 2019, to make processes more transparent. While there is some political will to make proactive changes, the results are yet to be seen.

Multilateral Cooperation

Our countries of study largely fail to cooperate between themselves (and with other nations in the region and beyond) to tackle environmental crime in the Amazon. This is a clear area for improvement.

In Glasgow, the majority of the Amazonian countries pledged to end deforestation in under a decade. The international community promised nearly $30 billion in funding “to help unleash the potential of forests and sustainable land use.” 

Despite the fanfare, there are clear shortcomings in the agreement, with Bolivia and Venezuela not signing up and the commitment of the Amazonian countries that did, especially Brazil, being called into question. Ultimately, the goal spelled out at COP26 is just that: a goal without a substantive roadmap to get there, or legislative teeth to enforce it along the way. At the regional level, similar degrees of divergence on environmental protection become clear. 

Some treaties and formal alliances between Amazonian countries exist in name. The Amazon Cooperation Treaty Organization (ACTO) was established in 2002. It is made up of Brazil, Bolivia, Colombia, Ecuador, Guyana, Peru, Suriname, and Venezuela. ACTO’s origins date back to 1978 when the eight countries signed the Amazon Cooperation Treaty (ACT).

The organization is currently working on a new Strategic Agenda for the 2021-2030 period. To date, it has set up different projects to strengthen institutional and civilian efforts around the management, handling, and monitoring of water and forest resources, as well as species of flora and fauna. 

However, the impact of these efforts has been limited. Amazonian countries have traditionally struggled to strike a balance between environmental protection and economic development. This trend has hampered collaborative efforts to fight deforestation and environmental crime in some cases. 

On top of this, ACTO lacks financial resources and faces internal difficulties. Decisionmaking is slow and projections fall short of what they set out to achieve. In this context, it should be a priority for future research to be able to contribute to the construction of a dialogue that supports cooperation with ACTO.

With ACTO struggling, the Leticia Pact was signed by Colombia, Peru, Bolivia, Ecuador, Brazil, Suriname, and Guyana in 2019. 

The agreement seeks to strengthen coordinated action to fight deforestation in the Amazon rainforest, facilitate cooperation and the exchange of information, create an Amazonian Network for Cooperation in the face of natural disasters, and promote research and technological development to fight environmental crime and deforestation. The Inter-American Development Bank (IDB) provided funding so each signatory can set up initiatives to combat deforestation within the pact’s framework

Finally, the Escazú Agreement, a regional treaty approved in 2018, seeks to expand access to environmental information, enhance public participation in environmental decision-making, and protect environmental activists in Latin America and the Caribbean. It is important to note that while Bolivia, Ecuador, and Guyana have ratified this agreement, Venezuela and Suriname have yet to sign it. There is no real indication that they will. 

While both the Escazú Agreement and Leticia Pact mark a step in the right direction, their results are yet to be seen. For them to work effectively, each country must get on board and a number of challenges must be overcome. 

Environmental expert María Antonia Tigre explained that international cooperation to protect the Amazon comes with difficulties, including “political challenges, conflicts of interests, the financial ambitions of countries, as well as biological, ethnic, and social diversities between them.” However, if environmental crime is to be combated in the Amazon, these challenges must be overcome.

Civil Society

In many cases, our countries of study have seen more effective action taken by civil society organizations than state authorities in tackling environmental crime across the Amazon.

While most state responses in Bolivia have been contradictory, civil society organizations in the nation have made focused, active attempts to combat illegal logging, mining, and wildlife trafficking in its Amazon region.

Casa Verde, a platform created by the Conservation Strategy Fund (CSF), has promoted sustainability in Bolivia by bringing local communities on board and raising awareness of the damage environmental crimes cause. The platform connects individuals and businesses with environmental organizations so they can work together on sustainability projects.

A number of civil society groups have also acted to combat wildlife trafficking in the nation. These include Bolivian Network to Combat Wildlife Trafficking (Red Boliviana de Combate al Tráfico de Animales Silvestres – RE-BOCTAS), Animal S.O.S., La Paz Municipal Zoo, Love for Animals Association (Asociación Amor por los Animales Bolivia – APLAB), the Earth Foundation, and CONTIOCAP.

To date, these initiatives have wielded greater success than national-level attempts to combat environmental crime in Bolivia.

Like in Bolivia, civil society groups play a more active role in monitoring environmental crime across Venezuela’s Amazon region than the state. Civilians, non-governmental organizations, and universities are keen to protect the rainforest, but they rely on economic support from overseas to act effectively.

SOS Orinoco, an advocacy group set up in 2018 by a group of experts inside and outside of Venezuela, has been a key player in documenting environmental crime south of the Orinoco River. It has investigated mining in the region, as well as the criminal organizations involved in it. The group has also documented the destruction mining causes to raise international awareness and make proposals to combat it.

In other cases, Indigenous communities have defended their territories as criminal organizations with an interest in mining have encroached. This resistance has put some Indigenous groups living in Venezuela’s Amazon in great danger. However, it has meant that some have been able to protect their lands from environmental crime.

Similarly, in Ecuador’s Amazon, some Indigenous communities have taken an active role in combating environmental crime. They have been pushed to do this as a result of scarce state efforts to tackle crimes, such as illegal logging. 

Local communities in the region often collaborate with non-governmental organizations, which provide them with training to better patrol their territories using technology. 

On the other hand, Ecuador’s Ministry of the Environment has been involved in a handful of programs that bring aboard local communities and NGOs to target environmental crime. 

The ministry’s “Socio Bosque” program, launched in 2008, provided economic incentives to get communities involved in forest conservation. While it offered some promise, its impact was limited by the nation’s subsequent economic crisis. 

Non-governmental organizations have also collaborated with the nation’s Ministry of the Environment. From 2014, WCS Ecuador and the Ministry of Environment started working toward the official implementation of a platform called SMART (Spatial Monitoring and Reporting Tool), which is used to record illegal activities in ten protected areas across Ecuador.

Prior to this, in 2001, the ministry worked with private sector groups to develop an independent forest control system. It established a control body called Green Surveillance (Vigilancia Verde), which monitored timber trade flows from forests to markets. It also introduced a body of independent forestry advisors, called Forestry Advisory (Regencia Forestal). Finally, it handed over administrative and inspection duties to the private sector.

The impact of this specific initiative was questionable, as illegal logging and timber trafficking have since continued to thrive in Ecuador. On top of this, it is important to note that these collaborative initiatives undertaken with the Ministry of Environment’s backing are still relatively rare. More often, local communities work with NGOs or come up with their own solutions to fend off environmental crime.

However, if implemented efficiently, and with the correct expertise, public-private partnerships offer great promise in tackling environmental crime across Ecuador’s Amazon. 

In contrast to Bolivia, Venezuela, and Ecuador, civil society groups in Guyana are hardly involved in fighting environmental crime, as environmental education in the country is relatively low.

However, members of some Amerindian communities have fought back against those encroaching on their territories. On top of this, a handful of civil society organizations have worked with these communities to help them tackle the aftermath of environmental crime, including mercury pollution.  

In Suriname, civil society groups largely perform an awareness-raising function to combat environmental crime. However, their impact in reducing such activities is limited, due to the state’s lack of interest and logistical difficulties in reaching remote zones of the nation’s interior.

Local initiatives like the “NO KWIK,” a project funded by the Environment and Mining Foundation of Suriname and Suriname Conservation Foundation, raise awareness around the impact of mining activities, sharing the dangers of mercury pollution with local communities.  

Other non-governmental organizations like the Amazon Conservation Team Suriname (ACT Suriname) and the Foundation for Forest Management and Supervision (SBB) also work to raise awareness.

At an international level, the Alliance for Responsible Mining (ARM), World Wildlife Fund Guianas, the Institute of Research and Development (IRD), and the University of Quebec in Montreal (UQAM) united to work on the “Supporting Mercury Phase-out in the Guianas” project. This, too, aimed to raise awareness around the impact mercury used in mining can have on people and surrounding ecosystems.

These organizations have made great leaps in raising awareness around environmental crimes in Suriname. However, such groups can do little to fully stamp out these activities without authorities onboard.

NGOs are largely based in the nation’s capital, Paramaribo. They have limited access to the nation’s interior, where environmental crimes are being committed. Meanwhile, successive governments and state authorities have failed to curb environmental degradation themselves. This has placed an overwhelming burden on NGOs to address a large part of these crimes alone. 

*Juan Diego Cárdenas, Katie Jones, Nienke Laan, Javier Lizcano, Julian Lovregio, Scott Mistler-Ferguson, Isaac Norris, and María Fernanda Ramírez contributed to this investigation.

InSight Crime has partnered with the Igarapé Institute – an independent think tank headquartered in Brazil, that focuses on emerging development, security and climate issues – to trace the environmental crimes and criminal actors driving deforestation across the Amazon. See the investigations.

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