Ecuador’s Constitutional Court has selected two previous legal cases, involving the Cofan (2018) and Waorani (2019) Indigenous groups, as a basis to analyze the country’s process of Free, Prior and Informed Consent (FPIC) and how well it adheres to the rights in the constitution.
Judges ruled in favor of both the Cofan and Waorani in their lawsuits against the state, both of whom sued three government bodies for selling, or trying to sell, their land to oil and mining companies without properly consulting the communities.
This review, of which the first hearing will be held in Indigenous territory for the first time in Ecuador’s history, could set new standards for FPIC in the country and grant Indigenous communities more autonomy over their land.
The new conservative government of President Guillermo Lasso has already passed two decrees to double oil drilling and mining in the country to boost its economy, without consulting with communities who live in the regions where these projects will likely be developed.
Before the pandemic, Ecuador’s Indigenous communities were on a roll, winning a series of lawsuits against the state for selling, or trying to sell, their land to oil and mining companies. In the Amazon, two of these trials were of particular importance: the Cofan trial in 2018 that led to 52 mining concessions being cancelled on their territory, and the Waorani trial in 2019 that immediately suspended the possibility of their territory being sold for oil drilling.
In both cases, judges ruled that the communities were not properly consulted before the projects were planned on their territory, a process required both by Ecuador’s Constitution and international law.
Now, the Constitutional Court, the country’s highest court, has selected the two cases as a base to review Ecuador’s free, prior and informed consultation process, and how well it adheres to rights laid out in the Constitution. Its decision could set new standards for Free, Prior, and Informed Consent (FPIC) in Ecuador and grant Indigenous communities more autonomy over their land.
“The judge is just performing an analysis of a right,” says Lina Maria Espinosa, senior attorney with Amazon Frontlines, the environmental NGO that has been supporting the communities with their lawsuits. “The only thing the court can do is pronounce [on that right] in a progressive manner to protect the rights already recognized in the Constitution and advance these rights.”
The court can’t overturn either of the previous rulings, but what it will do is make a ruling on what the right to free, prior and informed consultation really means and how the consultation process should be executed, based on the rights outlined in the Constitution. The state will then have to adhere to these new standards.
But hopefully it doesn’t stop there, Espinosa says. Amazon Frontlines, and other organizations involved in the Alliance for Human Rights supporting the case, are also hoping the Constitutional Court will rule on the necessity for Indigenous communities to give consent to projects planned on or near their territory, not just be consulted.
According to international law, the government must consult with communities before a project is slated on or near their territory, but this must be done with the objective of “achieving agreement or consent” about those plans, according to Convention 169 of the International Labor Organization. Ecuador ratified C169, formally known as the Indigenous and Tribal Peoples Convention, in 1998.
But Ecuador’s own Constitution includes a separate decree, passed in 2012, that allows the state to bypass the need to reach agreement or consent with communities. Decree 1247 stipulates that Indigenous communities only have to participate in the consultation process, not give their consent.
“What happens up to now in the consultation, first, they always do it wrong, but also, it is understood only as a mechanism to give information,” Espinosa says. “If the community says no or says yes, it doesn’t matter because the consultation is not binding, the consultation is merely an informative act.”
Waorani leader Nemonte Nenquimo, the main plaintiff in the 2019 lawsuit against the state, calls the consultation process a “trap.”
“It’s a deception, it’s a trap that they can generate to confuse our nationality,” she told Mongabay while in Quito recently for a series of meetings and protests.
In 2019, the Waorani took three government bodies to court for overseeing a consultation process with the community in 2012 that resulted in their territory being demarcated as an oil block and put up at an international oil auction. During the trial, more than 50 members of the Waorani nation testified to being informed about the benefits of oil, but never being told the environmental repercussions of the drilling during the consultation process. Others said they never fully understood the process because it was conducted in Spanish rather than the Waorani language. The judge overseeing the trial ruled in favor of the community. That effectively suspended the sale of Waorani territory for oil drilling — but only until another consultation process is carried out.
In the case of the Cofan, the community simply wasn’t informed of the mining concessions on their territory, says Victor Quenama, president of the Cofan community of Sinangoe. The community filed a lawsuit against the same three government bodies in 2018 for allowing the sale of 52 mining concessions, some of which were already in operation and leaking contaminants to the community downstream. Again, the judge ruled in favor of the community and cancelled the concessions.
“The government has to do a prior consultation, and if the community says no, it has to be respected,” Quenema says.
Conflicts in Indigenous territories in Ecuador’s Amazon have been growing over the years as oil and mining has expanded across the rainforest, says Carlos Mazabanda, Ecuador field coordinator for Amazon Watch. The 2012 consultation process consolidated these conflicts, he says. It didn’t just affect the Waorani, but the same consultation was conducted with communities across the Amazon, which resulted in the region being divided into oil blocks that the state has been trying to sell at an international oil auction.
Today, conflicts with mining companies have become even more serious, Mazabanda says, as the state looks to expand its mining sector and relieve some of its dependence on oil. Many communities have been divided by mining companies, while conflicts in the southern province of Morona Santiago have resulted in the death and arrest of several Shuar Indigenous people trying to resist projects in their territory.
“Demands by [Indigenous] organizations are becoming more and more frequent,” Mazabanda says. “And they’re directly related to the number of [extraction] projects that governments are promoting.”
Indigenous nations and environmentalists agree that the Amazon faces imminent threats with the new policies of Guillermo Lasso, Ecuador’s conservative president. In office less than six months, Lasso has already passed two decrees to expedite oil production to 1 million barrels per day (Decree 95) and increase international investment in mining (Decree 151) to boost the country’s struggling economy.
Even before the pandemic, Ecuador’s economy was fragile, suffering with the fall in the price of oil, but the economic downfall during the pandemic hit the South American country even harder. More than 700,000 people lost their jobs, and both poverty and extreme poverty jumped to 32.2% and 14.7% (up from 25.5% and 9.5% in 2019), respectively — the highest either have been in more than 10 years.
Since the president campaign earlier this year, Lasso has made clear his position that attracting international investment in the extractive sector is essential to creating jobs to boost the economy, as oil and mining combined account for almost 9% of Ecuador’s GDP.
But Indigenous communities say saving the country’s economy shouldn’t come at their expense. In October, various organizations, including Amazon Frontlines, Ecuador’s national Indigenous federation CONAIE and the Amazon Indigenous federation CONFENIAE, filed another action of unconstitutionality against Lasso’s Decree 95, saying none of the communities who live in areas with proven oil reserves were consulted about this planned expansion. Espinosa says a second lawsuit, against Decree 151, will be filed in the coming weeks.
Both Nenquimo and Quenama say that despite their own legal victories in the past years that safeguard their own territories, they continue to feel threatened by Lasso’s new decrees.
“So what is going to happen over time?” Quenama says. “We’re worried because the government wants to get a lot more [minerals] now, so where is it going to get it from?”
The Constitutional Court has already agreed to hold the first hearing to analyze Ecuador’s FPIC process, which will be held in the Cofan community of Sinangoe in November. Espinosa says this is positive news, as it’s the first time a judge has agreed to hold a hearing in Indigenous territory, and shows a willingness to listen to the community directly without obliging them to travel to the city. The second hearing to analyze the Waorani case is likely to be held early next year, Espinosa says, but a date has not yet been set.
Nenquimo says the Waorani will attend the Cofan hearing, to ensure “respect for the forest for future generations.”
Banner image: Waorani women in their ancestral territory, Pastaza, Ecuadorian Amazon. Image by Mitch Anderson / Amazon Frontlines.