Tag Archives: Inter-American Commission for Human Rights

Neither Free, Nor Informed: indigenous peoples in Ecuador

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The Constitution of Ecuador adopted in 2008 establishes a broad range of rights for indigenous peoples and nationalities, including the right to prior consultation, which gives them the opportunity to influence decisions that affect their lives. But this right has yet to be fully translated into legislation, as the bill for a Law on Consultation with Indigenous Communities, Peoples and Nationalities is still being studied by the National Assembly.

Article 57, section 7 of the constitution guarantees “free, prior and informed consultation, within a reasonable period of time, on plans and programmes for exploration, exploitation and sale of non-renewable resources located on their lands which could have environmental or cultural impacts on them.” The constitution also stipulates the right of indigenous peoples “to share in the profits earned from these projects and to receive compensation for social, cultural and environmental damages caused to them. The consultation that must be conducted by the competent authorities shall be mandatory and timely.”  “If the consent of the consulted community is not obtained, steps provided for by the Constitution and the law shall be taken,” it adds.  Legal grounds for consultation are also established in Convention 169 of the International Labour Organization (ILO), which Ecuador ratified in 1998, and the United Nations Declaration on the Rights of Indigenous Peoples, adopted in 2007.

Nevertheless, recent mining and oil drilling projects have put the government’s commitment to respecting the right to consultation to the test, and spurred indigenous organisations to take action.  On Nov. 28, 2012, hundreds of indigenous representatives converged in Quito to protest the lack of consultation prior to the 11th oil auction round, in which exploration blocks containing an estimated total of 1.6 billion barrels of crude oil would be put up for bids from private companies. At the time, Domingo Peas, a leader of the Achuar indigenous ethnic group, declared that “the government says it has carried out prior consultation, but this is not true.”  “The consultations carried out among the peoples and nationalities in the areas of influence are invalid, because there was no participation by indigenous peoples and nationalities in determining the way they were conducted, they did not respect their traditional methods of decision-making, and cultural aspects, such as language, were not adequately taken into account,” he stressed.  Overall, said Peas, the consultations “were neither prior, nor free, nor informed, and were conducted in bad faith.”

The president of the influential Confederation of Indigenous Nationalities of Ecuador (CONAIE), Humberto Cholango, believes that the authorities have not done enough. “Prior consultation is still pending, we have still not seen the results we would like to see. We need the law to be approved; that would be a major advance,” he told Tierramérica*.

The draft law, comprising 29 articles, refers to consultation on legislative measures and establishes four stages: preparation; a public call for participation and registration; the actual holding of the consultation; and analysis of the results and conclusion.  In accordance with the law, the government will determine if a proposed bill affects the rights of certain communities, in which case the National Assembly will convene a prior consultation that will be conducted through the National Electoral Council…

One year ago, President Rafael Correa stated in one of his regular Saturday broadcasts that non-governmental organisations “want prior consultations to be popular consultations and to be binding; that means that for every step we want to take, we will need to ask the community for permission.”  “This is extremely serious. This is not what the international agreements say. This would not mean acting in the interests of the majorities, but rather in the interest of unanimity. It would be impossible to govern that way,” he declared.  In response to these statements, indigenous organisations sought reinforcement, calling on agencies such as the Inter-American Commission on Human Rights and the ILO to supervise the implementation of prior consultation.

In fact, indigenous communities in Ecuador have already turned to some of these mechanisms in the past. In 2003, the Quechua community of Sarayaku filed a complaint with the Inter-American Commission on Human Rights against the state for authorising oil exploration in their territory, without prior consultation.  The community, located in the province of Pastaza, in Ecuador’s Amazon rainforest region, denounced damages to their territory, culture and economy. In June 2012, the Inter-American Court of Human Rights ruled in favour of the community and against the state. The government is still studying how to pay the required compensation – a total of 1,398,000 dollars for material and moral damages and legal costs – and how to finish repairing the physical damage caused

By Ángela Meléndez, Ecuador’s Indigenous People Still Waiting to Be Consulted, Inter Press Service, May 2, 2012

Indigenous Peoples Rights and Energy Projects: the Inter-American Court of Human Rights

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Deep in the rainforest, the village of Sarayaku is two days by river from the nearest town. But its 1,200 Kichwa Indians are now in the spotlight. On July 25th the Inter-American Court of Human Rights ruled that Ecuador’s government had ignored the rights of Sarayaku’s residents when granting permission for an energy project—putting governments in the Americas on notice that big physical investments are not legal until the indigenous people they affect have had their say.

The dispute began in 1996 when Petroecuador, the state oil firm, signed a prospecting deal with a consortium led by Argentina’s Compañía General de Combustibles (CGC). Much of the area it covered was the ancestral land of Sarayaku’s residents, who were not consulted. CGC later offered locals medical aid for their consent. Some villages signed up, but Sarayaku held out.  Nonetheless, by early 2003 CGC had drilled 467 boreholes around the town for seismic surveying, and packed them with 1,433kg of high explosives. They were never detonated, and remain buried in the forest. As well as felling trees and destroying a sacred site, the company ruined some of Sarayaku’s water sources. Work ceased in 2003, and CGC’s contract ended in 2010.

The court found that the state had breached the villagers’ rights to prior consultation, communal property and cultural identity by approving the project, and that CGC’s tests had threatened their right to life. It ordered the government to pay damages, clear the remaining explosives and overhaul its consultation process. In future affected groups must be heard in a plan’s “first stages…not only when the need arises to obtain the approval of the community.” However, the judges did not ban prospecting on Sarayaku lands. The right to consultation does not grant a veto.

The ruling will be studied closely in the myriad Latin American countries struggling to balance big investments with local rights. A narrow reading of the decision suggests that governments must tiptoe around indigenous concerns, but can act more boldly when other groups protest, since the ruling was based partly on the International Labour Organisation’s Indigenous and Tribal Peoples Convention.

The ruling also shows that the regional justice system has not lost its mettle. In 2011 the Inter-American Commission on Human Rights, which litigates cases at the court, asked Brazil to halt work on the huge Belo Monte dam because its neighbours were not given a sufficient chance to speak up. Brazil’s government, which had authorised the dam only after a long public debate, saw this as a violation of its sovereignty. It did not comply, and stopped contributing money to the commission.  The commission was weakened by angering the region’s biggest country and by the criticism that it had exceeded its mandate. After Brazil presented new evidence in the case, the commission reversed its stance on Belo Monte. Moreover, last month the Organisation of American States voted to draft a reform plan for the commission, which some fear could strip it of important powers. Ecuador was among the commission’s loudest critics.

The Sarayaku case was not as heated as Belo Monte, since Ecuador’s government had already promised to pay damages. However, the court’s decision did strongly reassert its right to intervene in development cases. Moreover, Ecuador’s government plans to tender a big chunk of the Amazon for oil exploration later this year, despite indigenous opposition. If neither side backs down and the protesters appeal, the court’s next ruling on development in Ecuador may be far more contentious.

Indigenous rights in South America: Cowboys and Indians, Economist,July 28, 2012, at 32