Prior consultation comes under the spotlight in Ecuador

The one-year deadline given by Ecuador’s constitutional court for the national assembly to dispatch a law on prior consultation expires in November.

The requirement complies with the constitutional provision in force since 2008 for extractive projects of non-renewable resources that are carried out in indigenous territories.

With only five months left until the deadline, experts see it as unlikely that legislators will comply with the court's mandate, especially considering that politicians have their sights set on the presidential and legislative elections next February.

According to the constitutional court, prior consultation constitutes a collective right and a mechanism of intercultural dialogue for the adoption of decisions that may affect members of indigenous communities, including environmental and cultural effects on their lands or areas of influence.

In May, the president of the national assembly, Henry Kronfle, presented a bill to regulate the process of prior, free and informed consultation, but it has made no progress in the legislature.

On Tuesday (July 2), the country's largest indigenous organization, Conaie, plans to present its own prior consultation bill to the assembly.

Conaie has traditionally opposed oil and mining activities and its prior consultation proposal would require the mandatory consent of indigenous communities for extractive projects.

The prior consultation law is a pending debt that the State has since the requirement was included in the 1998 constitution, which preceded the current one.

The consultation must be carried out in compliance with domestic law as well as those governing Convention 169 of the International Labour Organization (ILO) on the protection of indigenous peoples.

In a forum on the subject held by Ecuador’s chamber of mines and the jurisprudence college of the Universidad San Francisco de Quito, panelists agreed that the law on prior, free and informed consultation should regulate extractive activities but also take into account the social interaction of the projects with indigenous communities.

Speaking at the forum, Juan Francisco Guerrero, a lawyer in constitutional jurisprudence, said the prior consultation process cannot be a state imposition but neither can it be imposed by a community.

“The State cannot go into a territory with a pre-adopted decision. In the consultation, the communities must be involved in the decision-making process, and sufficient information must be provided to enable them to participate in that process,” said Guerrero.

The lawyer highlighted that international regulations speak of two very specific cases in which the consent of the communities is required: when the project involves a complete displacement of the community or when there is a deposit of toxic waste in the area concerned.

Andrés Martínez, director of the legal research institute of the college of jurisprudence at Universidad San Francisco de Quito, highlighted that Ecuador’s laws and the constitution incorporate into the legal system a series of international treaties on environmental matters.

He said that is why the resistance of social movements, which was previously seen on the streets, has now moved to the courts, where a series of legal measures have been filed, especially injunctions.

Martínez also stressed the need to obtain what he called a social license from the communities, that is, a commitment to good neighborliness.

He called on Ecuadoran society to establish parameters on the governance of natural resources, through basic agreements that define what type of exploitation of natural resources should be done and where.

He added that many in the country prefer the absence of the law because when there is no regulation, other mechanisms are used to resist.

Meanwhile, María Cristina Puente, a member of Ecuadoran forestry and environmental think tank Sedefa, said that when the consultation is not limited to authorization and has a comprehensive vision, with the logic of sustainable development anchored to the territory, and to national and local planning, risks can be mitigated and better results achieved.

Adriana Rodríguez, a professor from Universidad Andina Simón Bolívar, said if Kronfle’s bill is approved, the indigenous movement will take to the streets, "because the crisis of correspondence between the State and collective rights has not been settled."

Injunctions have affected various projects, especially mining ones. According to experts, along with acts of violence, they will continue to be among the tools that activists use to halt projects.