Ecuadorian court ruling leaves legal gray area in environmental talks

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  • Ecuador’s Constitutional Court has rejected a controversial decree that sought to reform the way environmental consultations with local communities are conducted on large infrastructure projects.
  • Environmental and indigenous groups petitioned the court to declare the decree unconstitutional, and the court agreed, stating that the consultation process could only be regulated by an organizational law issued by Congress, not by presidential decree.
  • However, in an unusual move, the court postponed the ruling and allowed the statute to remain in place until the National Assembly enacts the necessary legislation.
  • Lawyers argue that the ruling does not resolve the confusion and multiple interpretations of the constitution that are at the heart of Ecuador’s consultation process.

On November 17, Ecuador’s Supreme Court ruled in favor of indigenous peoples and local communities, rejecting a controversial decree that promised to define how environmental consultations would be conducted.

Decree 754 was signed in May, less than two weeks after then-President Guillermo Lasso dissolved Congress. The regulation was a means of facilitating the consultation process required to grant environmental permits for large infrastructure projects, but it quickly became controversial and in communities where the government sought to apply environmental consultation to large mining projects. caused a conflict. There is a possibility that it will encounter resistance from local farmers.

Indigenous groups and environmental groups filed a complaint with the Constitutional Court, arguing that the regulation and the way it was approved by presidential decree violate the constitution. A court struck down the decree last month, saying the consultation process can only be regulated by laws passed by parliament, not presidential decrees.

aerial view of amazon
Ecuador frequently faces confusion over the consultation process, especially for mining projects near indigenous and local communities. Image from Amazon Watch.

“This is a victory for the groups that filed the complaint,” said Mario Mello, an environmental lawyer who heads CONAIE, the national indigenous movement that opposes the legislation. “This proves that the court agrees on something fundamental: Decree 754 is unconstitutional and therefore violates the country’s constitutional order.”

But in a rare and bizarre move, the court also deferred its ruling until Congress deliberates and enacts a law regulating environmental consultations, according to Melo. This means that even if Congress is ordered to enact this law by another court decision and has not yet done so, this statute will continue to apply until then.

Mello said the ruling was contradictory and would only cause confusion and further conflict between communities and the controversial mining project.

more of the same thing

Ecuador frequently faces confusion over consultation processes, especially for mining projects near indigenous and local communities. More than 8% of Ecuador’s GDP is dependent on oil and mining.

The 2008 Constitution provides for three different consultation processes for the people. One is Free Prior Informed Consultation (FPIC) with Indigenous communities. Environmental consultation. Prior consultation for all communities. However, there is still no law defining these processes or how they should be implemented. The Constitutional Court and the Inter-American Court of Human Rights have ordered Ecuador to provide comprehensive coverage for both FPIC for indigenous communities and environmental consultation for all communities affected by infrastructure projects planned on or near their lands. He ordered that a law be enacted.

However, states still do not do so, leaving the Constitution open to multiple interpretations. This has led to many disputes and lawsuits by the community.

Lasso’s Decree 754 was an attempt to resolve some of these issues, but ended up causing conflict in other communities. The Decree sets forth environmental standards, including emphasizing that consultations are non-binding, that participation is mandatory, and that consultations must be divided into two stages: an information phase and a consultation phase before proceeding with an environmental permit. Reformed RCODA. We also detailed what tools can be used to inform the public.

Ecuador's indigenous leaders are demanding an end to new oil and mining concessions on their land. Photo by Kimberly Brown, Mongabay, 2017
Ecuador’s indigenous communities have a long history of confronting extractive industries on their land. Mongabay image by Kimberly Brown.

After the decree was passed, authorities entered the villages of Las Naves in central Bolívar state and Palo Quemado in Cotopaxi state in the Andes Mountains to discuss two nearby mining projects. However, violent clashes broke out between local anti-landmine demonstrators and police and military forces.This raised alarm bells from various quarters. International Human rights organization.

In October, then-undersecretary of the environment Gabriela Manosalvas told Mongabay that the ruling was a response to the court’s previous order to make environmental consultations more inclusive. She denied it was unconstitutional.

However, Alejandra Zambrano Torres, a lawyer with the Quito-based Ecumenical Commission for Human Rights (CEDHU), said that according to the constitution, the reforms do not sufficiently meet the requirements for community consultation and that they do not have practical implementation with local residents. said that it did not include the full participation of .

The decree will remain in effect until the National Assembly passes a new law, but Melo said it “has not resolved the problem as much as the country had hoped.”

The court’s ambiguous and non-appealable decisions “harm not only local communities but also many government projects that require clear rules,” he told Mongabay.

As of this article’s publication, the current Ministry of the Environment, under the new government of President Daniel Novoa, who took office on November 23, had not responded to Mongabay’s multiple requests for comment.

An indigenous man takes a boat through the Amazon River in Ecuador. Image provided by: © Amazon Watch.

Zambrano-Torres said the ruling contained another contradiction: it could only be applied using the court’s own standards for environmental consultation. Although these criteria have been mentioned in previous judgments, they have never been considered and are inconsistent with some aspects of the statute itself, creating further confusion and room for diverse interpretations based on interests. She said there is.

Zambrano-Torres said it is important that the court’s standards be incorporated into the Environmental Consultation Act when Congress ultimately enacts it. This includes an emphasis on the right to participation, that is, as many people as possible participate, and who is “directly affected” by extractive projects, especially when pollution spreads through the environment and affects people far away. This includes increased transparency in assessing whether the

“The law should be a more concrete method, a mechanism that shows how participation should be understood,” Zambrano-Torres said. Participation is usually limited when it is left to the project regulator itself, she added.

Zambrano-Torres said true participation means giving communities a reasonable period of time to understand and assess complex information about the full range of impacts of a mining project, and allowing for appropriate interactions to address concerns. By doing so, he said, it also means getting the right information.

The court gave parliament one year to discuss and enact legislation on the environmental consultation process. However, this order will be difficult to comply with as the current Congress does not have much time to debate and develop new policies. The current caucus has only been in office since November after Russo called for a surprise election to dissolve Congress and halt the impeachment trial earlier this year. It will be a year and a half. .

Given Ecuador’s current economic and political crisis, a consultation process is unlikely to be a priority, Melo said.

But he said complying with the ruling was “absolutely fundamental”.

“These are rights that have long needed clarification and enforcement,” Melo said, adding that “Ecuadorian citizens have the right to a respected constitution.”

banner image: Image courtesy of Kimberly Brown.

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deforestation, environmental law, governance, indigenous communities, indigenous groups, indigenous peoples, indigenous rights, land conflicts, law enforcement, mining

Ecuador, Latin America, South America

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