Court convenes historic hearing in Indigenous territory on land consent issue

Nov 17, 2021 / Mongabay / Story by Genevieve Belmaker

  • Ecuador’s Constitutional Court held a hearing in the Indigenous Cofan territory of Sinangoe in the northern Amazon rainforest on Nov. 15, the first time the highest court in the country agreed to travel to Indigenous territory for a court hearing.
  • The hearing is a step in a review of the country’s process for free, prior and informed consultation, and how well this process in action adheres to the rights outlined in the Constitution.
  • To analyze this process, the Constitutional Court selected two previous Indigenous lawsuits, including Sinangoe’s 2018 winning lawsuit against the government for selling mining concessions on their territory without first consulting with the community.
  • More than 300 Indigenous leaders arrived in Sinangoe for the hearing, traveling from all over the Amazon and other parts of Ecuador to support the consultation review process, which will also have an impact on territorial struggles across the country.

Early on the morning of Nov. 15, five Constitutional Court judges arrived by canoe to the Indigenous Cofan community of Sinangoe in Ecuador’s northern Amazon rainforest, wearing rubber boots and loose clothing to weather the intense jungle heat. This visit marked the first time in the country’s history that judges from the highest court have held a hearing in Indigenous territory, in an attempt to make the judicial system more accessible for those who normally can’t travel to courtrooms in the cities.

“I’m very excited because this is something historic, I have never heard of [judges] going to a hearing in a community,” Alexandra Narvaez, a resident of Sinangoe and president of the women’s association Shamecco, told Mongabay before the hearing began.

In previous hearings and other procedures in the city, “Only 10 people go, the whole community cannot go. So this hearing, we are all going to talk,” she said. “Our opinion is important.”

Sandra Yanis gets her face painted by Elsi, both of whom are Indigenous Kichwa from Pastaza, on the morning of Consitutional Court hearing in Sinangoe, on November 15, 2021. Image courtesy of Kimberley Brown.
People wait across the river to be picked up and brought to the community of Sinangoe the morning of the Constitutional Court hearing. Image courtesy of Kimberley Brown.

The hearing itself was part of the court’s process to review Ecuador’s free, prior and informed consultation process, or FPIC, using as a basis of analysis Sinangoe’s 2018 lawsuit, when the community sued the government for selling mining concessions on their territory without consulting with the community first, and won.

According to Ecuador’s constitution, Indigenous and tribal communities have a right to the process of FPIC before any extraction or infrastructure activity is planned on or near their land. In looking at Sinangoe’s case, the Constitutional Court will assess whether the consultation process, as it works today, adheres to these rights. If the court decides that it doesn’t, it could set new standards for consultation, which could grant Indigenous communities greater autonomy over their own land.

“This isn’t only good for us, but also for other communities and can guide them to defend their territory, to defend the decision they take,” said Nixon Andy, former coordinator of the Cofan guardia, or self-defense group, adding, “if Indigenous communities say ‘no mining’ it means no mining.”

More than 300 Indigenous leaders traveled to Sinangoe to show support for the hearing and consultation review process, and quickly filled the normally calm and quiet community. People traveled from all over the Amazon, and other areas in the country where territorial conflicts are prevalent with mining, oil and other infrastructure projects.

Oswaldo Nenquimo, Indigenous Waorani leader from the province of Pastaza, says their group traveled two days to attend the hearing: one day by canoe to reach the jungle city of Puyo farther south, and another day by bus. The Waorani community won their own historic lawsuit against the government in 2019 over a consultation process to sell their territory for oil exploitation, which the community said was fraudulent, and judges agreed.

“We have come almost two days to be part of this, to present our strength and wisdom and to support this process of struggle of Sinangoe, and to link our thoughts in this hearing,” Nenquimo told Mongabay. The Constitutional Court has also selected the Waorani case as part of its review, but has not yet set a date for the hearing.

The Cofan Taita, or Shaman, grates the yoko vine to remove the bark, in order to mix it with water for everyone to drink. The bitter drink is a quick morning energizer. Image courtesy of Kimberley Brown.
The five Constitutional Court judges are guided by the Cofan guardia to walk through the corridor of people welcoming them to Sinangoe. Image courtesy of Kimberley Brown.

For the community and their visitors, the day began at 4 a.m., not with coffee, but rather with a traditional Cofan drink called yoko, derived from the bark of a special vine with the same name found only in the Amazon. Mixed with water, it provides a burst of energy. This is part of the daily routine of the Cofan guardia.

When the five judges arrived at around 9 a.m., they were greeted by the community with a traditional Kichwa fire ceremony and a cleansing by a Cofan taita, or spiritual healer, to clear away bad energies.

The hearing lasted nearly four hours, during which the six of the nine Constitutional Court judges (five of whom were present, and a sixth who appeared via Zoom) heard testimony from 10 people from the Cofan community, as well as the other ministries involved in the original lawsuit. The Ministry of Energy and Nonrenewable Natural Resources were the only ones with representatives also present in the community, while the Ministry of Environment, Water and Ecological Transition, the Ministry of Energy and Non-Renewable Natural Resources and the Attorney-General’s Office also tuned in via Zoom.

Judges then heard testimony from other communities about their own territorial conflicts, stemming, they say, from a failed FPIC process.

Representatives from the Ministry of Energy and Nonrenewable Natural Resources refused to comment directly to Mongabay on the process. But during the hearing, one of their attorneys, Eduardo Andrés Chang Dávila, told judges that the Constitutional Court must also protect the rights of the state to manage its strategic sectors, such as oil and mining, which is also outlined in the constitution, calling such sectors a “fundamental pillar of the development of the country.”

The Constitutional Court judges stand around the sacred circle, after lighting the candles inside, with Indigenous leaders as part of the Ritual of Fire to clear bad energies. Image courtesy of Kimberley Brown.
Three members of the Cofan community make their 5-minute statement to the judges, explaining the dangers of mining along the riverbed that kills medicinal plants the community uses. Image courtesy of Kimberley Brown.
Indigenous Shuar children from the southern Amazon province of Morona Santiago sit in the back of the platform awaiting the hearing. Image courtesy of Kimberley Brown.

Both oil and mining combined account for more than 8% of Ecuador’s GDP. Earlier this year, President Guillermo Lasso called for the rapid expansion of both sectors (as Decree 95 and 151), to address the country’s economic woes that have seen unemployment and poverty rise during the pandemic.

Lina Maria Espinosa, senior attorney with Amazon Frontlines, the environmental NGO that has been supporting the Sinangoe community with their legal process, said expediting these industries “obviously generates pressure on Indigenous territories.”

She called the current hearing with the Constitutional Court a “historic opportunity” for the court to listen to communities and adequately interpret their rights.

“The challenge for the court is to make that qualitative leap from consultation to consent,” she told Mongabay, calling the current FPIC process an empty formality. “The only way to protect and guarantee the life of the peoples and their territories is through consent.”

The Constitutional Court will now review the evidence, but it is unclear when a ruling can be expected.

Indigenous Shuar leader Josefina Tunki partakes in the lineup to embrace the Constitutional Court judges following the hearing. Image courtesy of Kimberley Brown.

Banner image: Waorani women are seen lining up with some 300 other visitors, forming a corridor to welcome the Constitutional Court judges the morning of the hearing on November 15, 2021. Image courtesy of Kimberley Brown.