Towards a Legal Proposal in Favor of Wild Animals: Fires in the Province of Corrientes
At the beginning of January of the year 2022, a series of igneous sources took place, which advanced in large portions of the territory of the Province of Corrientes.
The fire advanced over mountains, fields and wetlands, causing notorious negative impacts on the environment, as well as economic damage to certain inhabitants who lived in the vicinity of said areas. In addition, these fires had a notorious impact on the fundamental rights of various wild animals.
Throughout this article, we intend to first address the context in which these events took place. Secondly, we will refer to the responses assumed by the Government of the Province of Corrientes, as well as by the National Government regarding the fires. Thirdly, we will point out legal foundations that support the need for state intervention. Fourthly, we will specify the legal proposal in favor of wild animals against fires.
In order to better understand the topic addressed, we consider it appropriate to make a brief mention of the special geographical characteristics of the Province of Corrientes.
It is one of the twenty-three Argentine provinces that make up the Argentine Republic. This entity is geographically located in the northwest of Argentina. Corrientes limits to the north with Paraguay, to the west with the provinces of Chaco and Santa Fe, to the south with Entre Ríos. To the east this province limits with the province of Misiones, with the Eastern Republic of Uruguay and Brazil.
The lagoons and the numerous estuaries that cross the province do not integrate an organized hydrographic system.
This province is characterized by a deep biological diversity. Among these manifestations we find the presence of wild animals typical of tropical zones, among which we can highlight alligators, capybaras, the river wolf, the wild cat, the jaguar or ocelot, coypu, maned maned, brown deer or guazuncho, the carayá or howler monkey, the mountain fox, cuices and otters. Several of these species reside in the Esteros del Ibera, which appear as a shallow network of lagoons, estuaries and marshes of 793,000 hectares.
The importance of this area for the preservation of biodiversity has led the National Congress to declare it a National Reserve through Law No. 27.481/18.
Effects of Fires in the Province of Corrientes
The various fires affected numerous areas of the Province of Corrientes, estimating that the affected area extended to 1,042,514 hectares, which was equivalent to 12% of the province being affected by fire.
Among the most affected areas were Ituzaingo, Santo Tomé, San Miguel and the Esteros del Ibera. Regarding this last site, we cannot fail to mention that species of wild animals in danger of extinction lived there, such as the maned wolf, the Pampas deer. In fact, this particular situation of vulnerability of these non-human animals has led the Government of Corrientes to declare them natural monuments.
Causes of Fires
According to FARN, among the main causes of recent fire production in Argentina are the effects of climate change that favor the birth of critical situations, such as high temperatures and droughts. In this sense, this institution mentions that the drought, which has been sustained since 2019 and which has been one of the most intense in the last 20 years, has mainly affected the central and northern provinces of the country, including Corrientes. To this should be added, the downspout of the Paraná River.
Another factor that contributes to fires are human activities that intentionally, or due to negligence that allow burning to become fires. Regarding the intentional activities, FARN highlights that the fires are used as a tool when it comes to deforesting virgin territory, but also seeking to clear the land to develop another crop or for subsequent regrowth in order to feed “cattle”. These intentional fires tend to get out of control and move to places where they were not planned.
In addition to the aforementioned activities, we must add that fire is deployed as a means to expand urbanization. In this regard, FARN points out that in the Gran Chaco, for example, linked to urbanization, land with poor soils and little rainfall is deforested, to speculate on the real estate market. Certain actors buy land and deforest it to sell it once the value increases. A cleared hectare is worth more than double that of one with forest.
Role of States
The Argentine constitution establishes a scheme of coordination of faculties between the National Government and the Provinces regarding the adoption of environmental public policies. The lawer Bidart Campos calls this coordination scheme as concertation federalism.
Despite the promising regulatory framework, political reality openly contradicts it. Thus we observe that the National Government has sought to omit its duty to preserve the environment through a series of concrete actions. This state entity has made a significant budget reduction to the Comprehensive Risk Management System created by the Law 27.287/2016. According to the Alem Foundation, a reduction is observed in the following items: a) flight hours of the aerial fire prevention and fighting system (3,500 flight hours planned for 2021, against 6,230 hours projected for 2020 and 7,200 for 2019) ; b) the training of agents (which decreased to 1,000 by 2021, in contrast to the 1,800 in 2020 and 2,000 in 2019) and c) the equipment for regional units (it decreased to 3, compared to the 25 equipped brigades in the 2019 budget). .
Another fact that reflects the evasions of the National Government is given by the failure to provide resources destined to the National Fire System to the investigation of fire prevention.
In addition to the omissions mentioned, we must point out the lack of coordination between the National State and the Provinces. In this sense, we must remember that Law 26.815 created the Fire Management Plan through specific agreements and with a legal framework that governed it based on pre-existing provincial and national laws.
Despite the fact that this plan sought a coordination scheme, in practice the National Government ended up centralizing decisions in an executing unit without representation from the provinces involved.
To this complex scheme, in the case of the aforementioned fires, was added the incessant climate of confrontation that existed between the National Government and the Province of Corrientes. Thus, according to the National Government, the Province of Corrientes rejected each offer of assistance to combat the active sources of fires. The provincial government denied the veracity of these statements.
Argentine law is traversed by an anthropocentric gaze, understood as one that gives precedence to non-human interests over those belonging to other beings.
Despite this situation, we consider that various legal norms can be interpreted in a dynamic sense, that is, in light of the new sociopolitical circumstances. An example of this look is given by the reinterpretation of the term person that was made by Judge Liberatori in the leading case AFADA vs. GBA, in which she understood that this expression included all sentient beings.
In articles 14 and 41 of the national constitution, the word inhabitant is mentioned without any type of addition. Regarding this, we consider that from a dynamic reading the term inhabitant can cover any sentient being that resides in Argentine territory.
Now, every inhabitant has a minimum of rights, among which we can mention the right to equality before the law. By virtue of this principle, arbitrary restrictions cannot be introduced to the fundamental rights to life, health, the environment or habitat.
Respect for this principle requires state intervention to preserve these rights of each sentient being. Regarding this intervention, we cannot fail to mention that public policies must be guided by the in pro natura principle. In the leading case Majul vs. c. Municipalidad de Pueblo General Belgrano y otros s/acción de amparo ambiental. The Supreme Court of Justice of the Nation specified that this principle implies that in case of doubt, all processes before judicial bodies and other decision makers must be resolved in favor of preserving the environment.
Article 19 of the national constitution enshrines the principle of autonomy, which we understand implies deploying the vital project of each sentient being. The only limit to autonomy would be given by the damage that can be caused to third parties.
This principle is not limited to repairing the damage generated to vital projects. In addition, it implies that whoever caused damage must prevent its continuation, such as fires. This principle is enshrined in Law 25.675.
Wild Animals Rescue Action Protocol
As can be seen throughout this article, Argentina is not exempt from large forest fires and it was observed over the years that there is no action protocol for special brigades or firefighters who are in the line of fire know what to do when they find a wild specimen escaping or caught by the flames.
That is why we think of this protocol as the best way to respond and act to save a non-human animal that is facing an imminent threat of danger, provide its immediate needs when necessary and deliver it to a center where it receives definitive care. so that it can recover and eventually be returned to the wild.
What stands out in these cases is that the rescue focuses on the individual that is in danger, sick or injured and not on the populations of that species or its conservation category. For this reason, it must be taken into account that capture is a method that should only be used when the animal needs medical attention or it is necessary to be removed from risk areas. Containment and management techniques must be applied to avoid or reduce the tension, suffering and pain of the animals.
Management Methodological Cycle
When we talk about a management cycle, we refer to having a plan to achieve adequate risk management, which consists of having a detailed series of activities and being able to detect and reduce risks in the face of different catastrophes that can happen. , or power by minimizing losses and increasing recovery capacity.
Based on what is established in the “Basic operational manual for rescue and rehabilitation of wildlife in disaster situations”, we will take from there the four phases that are described:
1.- PREVENTION PHASE: here the actions and procedures prior to the occurrence of the event must be drawn up, with the aim of avoiding or reducing the harmful effects that could be generated.
2- RESPONSE PHASE: it must be associated with the collection and analysis of all available information, phenomena that occurred, potential consequences and most importantly, identify the emergency, disaster or catastrophe area(s), its circumstances, and the chances of implementing an appropriate response based on available resources. The information that must be collected is the following:
- Inventory of immediate needs to respond.
- Evaluation of the number of dead animals.
- Number of affected animals.
- Geographical distribution of the animals.
3.- OPERATION PHASE: it is related to the actions to follow, after analyzing the event that occurred and the associated damages, a protocol to be followed is created and implemented. In this phase you must:
- Dispose of carcasses and all biological and contaminated materials
- Identify the availability of safe areas, especially in relation to the nature of the emergency and free of zoonotic diseases.
- Implementation of Primary Care Centers
- Availability of supplies for Primary Care Centers.
4.- RECOVERY PHASE: activities after the destructive event are carried out here, where the damage suffered in the affected ecosystem must be identified and the ecological restoration process started. This phase considers the stages of: a) Rehabilitation: consists of the recovery and future reinsertion of an animal into the wild as long as it is in optimal health, physical, mental, and behavioral conditions for its species; and b) Reconstruction: consists of ecological restoration.
Wild Animals Rescue Coordination Commitee
In order to carry out a good implementation of the protocol, we believe it is important to create a coordination committee to carry out the different actions and tasks. Said committee should be divided into four areas: a) Prevention; b) Rescue, c) Assistance and d) Environmental Restoration and each area must have a director who coordinates internally and with the other areas the decisions and actions to follow.
For their part, all the staff that make up this committee will receive training, mainly in the rescue area, to know what to do when faced with an affected specimen of fauna, how to catch and handle it, give first aid and know where and how to move it.
The idea, beyond taking into account the management cycle in terms of the preventive aspect, is to put together an action protocol to have a document that establishes, in a clear and organized way, the steps and stages to follow and who would be responsible for implementing the actions necessary to act in a given situation.
In the case of the fires that occurred in Corrientes, it was possible to see that since there were two kinds of jurisdictions: 1) National, within what was the Esteros del Ibera National Park, and 2) Provincial in the rest of the territory from Corrientes, and it was possible to observe that the members of each jurisdiction acted and managed in different ways, this being able to cause damages against the fauna.
It is for this reason and for everything that has already been stated that we believe in the need to have this protocol at the national level so that there is uniformity in the way of acting and thus be able to save the greatest amount of life of wild specimens and then reinsert them back in their natural habitat.
- Decreto de Declaración de monumentos naturales del Poder Ejecutivo de Corrientes. Decreto n.º 1555/1992
- Ley de Creación de Reserva Nacional Iberà. Ley 27.481/18
- Ley de Sistema Nacional de Gestión Integral de Riesgos y la Protección Civil. Ley 27.287/2016
- Ley General de Ambiente. Ley 25.675/2002
- Asociacion de Funcionarios y Abogados por los Derechos de los Animals y otros Contra GCBA Sobre Amparo, EXPTE, A2174-2015/0. Juzgado Nº 4 en lo Contencioso Administrativo y Tributario del Poder Judicial de la Ciudad Autonoma de Buenos Aires. Sentencia del 21 de noviembre de 2015. Online at https://www.projetogap.org.br/wp-content/uploads/2015/10/sentencia-orangutan-sandra.pdf (accesed 3 May 2022)
- Majul Julio Jesús c. Municipalidad de Pueblo General Belgrano y otros s/acción de amparo ambiental, Corte Suprema de Justicia de la Nación, 11 de julio de 2019.
- Bidart Campos G, Manual Elemental de Derecho Constitucional (Ediar 1999)
- FARN. Argentina incendiada. “Lo que el fuego nos dejó”, 2021, online at https://farn.org.ar/nuevo-documento-farn-argentina-incendiada-lo-que-el-fuego-nos-dejo/ (accesed 3 May 2022)
- Fundación para la Innovación Agraria (FIA) – Ministerio de Agricultura Santiago, Chile.
- Fundación Alem, ”Incendios en la Argentina.”, 2021, online at http://fundacionalem.org.ar/assets/uploads/documents/incendios-en-la-argentina.pdf?fbclid=IwAR1zYE3TKHOOQeHRZunkkprAbwh_xmW6mI_ZHrzdQ9caWvNZaf7UpoCUWCU (accessed 3 May 2022)