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Consultation or prior consent?
Luis Ángel Saavedra*
7/17/2011
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In Ecuador, the right to informed and prior consultation before the implementation of governmental or private programs in communal lands is a source of constant protests, some of which achieve their goals; but most end up embroiled in complex legal processes which benefited the state, or companies acting with the state’s consent.

Already in 1998, the indigenous peoples’ right to be consulted before any interventions by government programs in their territories was incorporated into the Constitution. That same year the International Labour Organization’s Convention 169 on Indigenous and Tribal Peoples was ratified, incorporating into Ecuadorian jurisprudence the rights of indigenous peoples as specified in this convention.

While the 1998 constitutional declaration on prior consultation was also embodied in the 2008 Constitution, it did not signal a real effect on policy. On the contrary, the statement itself was a source of conflicts within the Constituent Assembly, causing the first fissures among factions that in 2006 supported the election of President Rafael Correa.

The indigenous leader Mónica Chuji, who chaired the Natural Resources Board in the Constituent Assembly that drafted the 2008 Constitution, remembers the first confrontation that occurred within the ruling party’s assembly members.

“Those of us who were linked to the indigenous population demanded that the Constitution establish the requirement that indigenous peoples give their consent before implementing government programs in their territories, and not merely be consulted,” said Chuji.

The confrontation of concepts, at first glance, was a response to what had been happening with the 1998 Constitution, which provided for prior consultation as the only requirement before intervention in indigenous territories. But little to nothing of value resulted from these consultations, since community decisions were not taken into account.

Governments and companies interested in extracting resources from indigenous lands essentially resorted to a number of ruses to ensure that they complied with the requirement within prior consultation.

One of the most used was to call community assemblies in which they were informed about the upcoming plans, but at no time were they asked if they accepted — or not — the proposed plans.

“To convene a meeting of the community, or to call together certain leaders, to inform them about government plans is not a consultation, since there was no opportunity for the community to express their agreement or disagreement with the proposal; thus we demand that the Constitution speak of prior consent,” said Chuji.

Prior informed consent implies that the community agrees with the intervention in its lands. This in turn requires that the outcome of the prior consultation be binding. Neither consent nor the requirement to comply with the outcome of any prior consultation was incorporated into the 2008 Constitution.

Constitutional ambiguities
The ambiguity of the Constitution led to social organizations and government representatives to go head to head in court and press for the development of secondary legislation that define the nature and procedures needed to legitimize prior consultation.

The government won the approval of two legal instruments that, in practice, destroyed the achievements won by the social movements in the constitutions of 1998 and 2008, such as Decree 3401 in 2002, and Decree 1040 in 2008.

According to David Cordero, a lawyer for the Regional Foundation for Human Rights Consulting, or INREDH, Decree 3401, which established regulations for the implementation of prior consultation, in addition to trying to regulate a law that did not exist — and even now does not exist — violated the right to participation of the communities that should be consulted, as it did not mandate the presence of all the people in the community but only of certain representatives that could act on their behalf.

“Companies interested in entering indigenous territories could convince three or four people and get them recognized as representatives of communities, and avoid having to confront the entire community,” said Cordero.

Moreover, under this regulation, community input was not taken into account, because it stated that in the case of “dissent or not reaching resolutions, whoever coordinated the consultation should take note of these disagreements and continue with the process.”

“Under this law what was important was that there should be a meeting; if there was no agreement, or if there were no resolutions, this was not of the slightest importance, since the important thing was that it complied with the act,” says Cordero.

Meanwhile, Decree 1040 incorporates an element so that the community input can be considered: it must be “technically and economically viable.”

“If a community is opposed to extractive activity, this opposition may be considered as long as is technically and economically feasible, that is to say, if it can economically offset the earning that a company would lose out on by not exploiting a territory’s resources. How can a community financially compensate the earnings of a company?” inquires Cordero.

A history of resistance and legal struggle
With rigged legislation, the only possibility that the views of indigenous people will be considered when designing plans to intervene in their territories have been with mobilization and implementation of innovative legal remedies that appeal to international agreements and treaties.

Most of these battles have been against the involvement of the extractive industries such as oil and mining. Within these struggles, significant gains have been made by the Independent Federation of Shuar People, or FIPSE, in 1999, by opposing the entry of US-based oil company Arco Oriente in their lands in the Amazonian province of Morona Santiago; they were able to get the Constitutional Court to recognize that community organization should be respected, and not splintered.

Another significant victory was achieved by the Waorani nation in the province of Orellana against the Italian oil company AGIP Oil Ecuador. The Confederation of Indigenous Nationalities of Ecuador, or CONAIE, showed how a company deceived a nation by passing a pseudo-agreement for compensation as prior consultation. AGIP got the Waoranis to allow oil drilling in exchange for three quintals of rice, three pounds of sugar, six buckets of lard, three bags of salt, two footballs, a referee´s whistle and a stopwatch.

Emblematic cases like the Kichwa community of Sarayaku, in Pastaza, which also last year was able to protect its territory against the onslaught of oil firm CGS Argentina, when it took its case before the Inter American Commission on Human Rights by arguing that in Ecuador the outcome of prior consultation was not mandatory, have led other communities to follow the same course; indeed, an example of how a true prior consultation should be is the case of the village of Rukullacta in the province of Napo.

Proactive internal consultation
Rukullacta is planning to perform an “internal consultation” to determine whether to allow oil companies to enter its territory.

“Rukullacta has decided to initiate an information process on oil exploration; to that end, it has invited government representatives, oil company officials [Ivanhoe Energy of Canada and its national partner company Transsepet] and environmentalists to participate in meetings in each of the communities. During these, the leaders will also explain the plan de vida, or life plan designed for Rukullacta, based on conservation, human development and investment in ecotourism,” said Rodrigo Varela, another INREDH lawyer.

As put forth, this process would conclude with a secret ballot by every inhabitant of Rukullacta, and with the presence of international observers, government officials and indigenous leaders.

“Detailed information, participation of all actors involved and, above all, support from indigenous leaders, will allow for the realization of a genuine consultation where, if the indigenous side loses, it would be lost fair and square, and not through misleading or deceptive processes. And if they win, the people of Rukullacta will stand their ground on the victory attained during the consultation,” says Varela.

“Rukullacta’s internal consultation will be an example of how the state should handle prior consultation, with binding results and total respect for the rights of indigenous peoples, and not as it is now, a consultation where the outcome does not matter, but rather what the president decides does,” says Varela.
—Latinamerica Press.


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Community of Rukullacta will decide on allowing in oil companies following internal consultations. (Photo: Andrea Cuji)
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