Ecuador court ruling sets example for land rights and climate change struggle worldwide
The country's top court breaks new ground on indigenous peoples' rights to being consulted and giving their consent
A tiny village of several dozen families in remote Ecuador has just won an extraordinary legal victory. A ruling by the country’s Constitutional Court states that, among other things, the objective of any consultation process between the government and indigenous peoples regarding any kind of measure, investment or extractive project in or potentially impacting their territories must be to obtain the latter’s consent, i.e rather than merely “consult” them about it. Although what is stated about this “objective” is arguably rather vague, and despite elsewhere including a potentially dangerous loophole, some immediate interpretations of the ruling are that it effectively gives indigenous peoples the right to say no to - or have “the final say” or “final decision” about - oil, mining and other extractive projects on their lands.
No small step, indeed. Especially in a country like Ecuador, so ravaged and menaced by the oil industry. And especially now that the president, Guillermo Lasso, has been planning on doubling production.
The ruling came about after the A’i Kofan community of Sinangoe, in the north-eastern Ecuadorian Amazon, and the national ombudsman, the Defensoría del Pueblo, filed a lawsuit in July 2018 that led to the annulment of 52 mining concessions upriver from the community along the banks of the River Aguarico and its tributaries, on the grounds that the A’i Kofan hadn’t been consulted about them. The following year, in October 2019, the Constitutional Court chose Sinangoe's case as part of a process to set national jurisprudence on indigenous peoples’ rights, and after holding a hearing in the community in November 2021, which included receiving testimonies from various children and adolescents, the Court made its ruling public this month.
As I’ve previously reported in The Guardian, and then via Substack, I visited Sinangoe in early 2018 and travelled with numerous members of the community up the River Aguarico to visit one of the offending mining concessions. It was a short, stunning, sometimes even dangerous trip and the most immediate, urgent concern was: are the miners using mercury? This was back when the A’i Kofan were trying to stop the mining without resorting to legal action, several months before they filed the lawsuit that ultimately led to the Court’s ruling.
Reaction from those directly involved and others in Ecuador has been exuberant, to say the least. “A great victory” and “historic precedent” in the struggle by indigenous peoples for their land rights was how Sinangoe leader Wider Waramag described it in a co-authored media statement from numerous organisations including the Quito-based national indigenous federation CONAIE, the Amazonian indigenous federation CONFENIAE, the pan-Amazon indigenous federation COICA, and Sinangoe itself, among others. That statement called the ruling a “powerful tool for indigenous peoples and nations throughout Ecuador, Latin America and the world”, and stated that it has “important implications for the climate change struggle” because “every global climate solution depends on the possibility of indigenous peoples being able to say NO to extractive projects and protect their territories for future generations.”
But how exactly does the ruling mark an improvement on what has come before, either in Ecuadorian jurisprudence, or international laws and other legal instruments? According to Brian Parker, senior attorney at the NGO Amazon Frontlines (AF), which has been supporting Sinangoe, the ruling is clearer and more specific than either the legally-binding International Labour Organisation’s (ILO) Convention 169 or the United Nations (UN) Declaration on the Rights of Indigenous Peoples because it requires consent except only in “exceptional cases” and “strictly prohibits projects without consent if they “imply unreasonable sacrifices” to the community, their rights, or Nature.”
“But beyond the language, in practice, a recent precedent by the Supreme Court is easier to enforce than a decades-old international treaty [as is ILO Convention 169], even though legally it shouldn’t be,” Parker tells me. “The ruling is immediately binding and final - not even Ecuador’s Congress can pass legislation to overturn it. This ruling just holds a lot more weight than the treaty language when fighting against Ministry of Energy bureaucrats.”
Like Parker, Vivian Idrovo, coordinator of Ecuador’s Alianza de Organizaciones por los Derechos Humanos, emphasises the significance of what the Court says about consent, as well as self-determination and the state’s responsibility to recognise indigenous peoples’ self-governance.
“The ruling has established that no extractive project can go ahead without consultation with and the consent of indigenous peoples not only in their own territories - irrespective of whether the state has formally recognised them as such - but also in areas which they use or in areas which could affect them,” Idrovo, who submitted an amicus curiae to the Court, tells me. “It also stated that if indigenous peoples’ consent is not obtained, the project can’t go ahead if it means “unreasonable sacrifices” for them.”
An analysis by the Quito-based NGO Acción Ecológica highlights, similar to Idrovo, what the Court says about Sinangoe’s “ownership rights” extending to their ancestral territories beyond what has been demarcated for them, and says that on consultation specifically the ruling sets “new standards.” These include the state’s responsibility to be “sufficiently flexible to be able to modify the initial design of the project or even cancel it” following a consultation, and the assertion that if there is no possibility of modifying the project then it isn’t genuine consultation.
For Veronica Potes, a law professor at the Universidad Central del Ecuador who also submitted an amicus curiae, the ruling is “very important for the future of indigenous peoples’ collective rights.” Like both Idrovo and Acción Ecológica, she emphasises what it says about ancestral territories as well as formally titled land, and talks of a “consulta profunda” - literally, “deep consultation.”
“Deep consultation is not just any process involving information-sharing and listening to peoples’ opinions,” Potes tells me. “It implies a special process for each specific case. It implies too that the state must have as its objective arriving at a legitimate agreement with the indigenous peoples consulted. The court has insisted that the state must demonstrate it is sufficiently flexible to alter - or even cancel - the proposed project as a result of the consultation process. The state is not free to decide according to its own discretion: it can only proceed without consent in exceptional circumstances, and only then if the project doesn’t violate constitutionally recognised rights and principles or involve unreasonable sacrifices.”
An indication of the importance of Sinangoe’s case was the number of individuals, such as Idrovo and Potes, who submitted amici curiae to the Court prior to its ruling: more than 80, the vast majority from Ecuador, some from abroad. One of the latter, James Anaya, former UN special rapporteur on indigenous peoples’ rights who was quoted in the ruling, describes it as “an important, thoughtful judicial opinion.”
“It sets a highly progressive standard for consultations with indigenous peoples with emphasis on the need for the government to ordinarily obtain their consent before allowing development activities on their territories,” Anaya tells me.
Of course, a Court ruling is one thing, respecting and implementing it another. How will Ecuador’s government respond - no appeal is possible - and what will the oil and mining industries make of it? No word yet from president Lasso’s administration.