Tag Archives: prior notification and consultation

Neither Free, Nor Informed: consultation of indigenous peoples in Ecuador

Ecuador_bridge over the Pastaza. Image from wikipedia

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

Damming the Mekong River

What looked like an admittedly temporary reprieve for the swift currents and extraordinary biodiversity of the Mekong river is now over. In December the Mekong River Commission (MRC), an intergovernmental body made up of Cambodia, Laos, Thailand and Vietnam, called again for approval of a potentially devastating dam at Xayaburi in northern Laos to be withheld until more is known about its effect on the lower Mekong. Apart from high up in the gorges of south-western China, the Mekong remains undammed. But now CH. Karnchang, a Thai construction giant contracted to build a $3.8 billion dam at Xayaburi has told the Bangkok Stock Exchange that dam construction officially began on March 15th, and that 5,000 workers have just been hired.

The news has triggered an angry response from riparian neighbours. The December agreement, calling for further scientific study of the environmental impacts, included Laos. Opponents of the dam argue that the Xayaburi dam will cause immense harm to ecosystems and imperil 65m South-East Asians who rely on the Mekong, the world’s biggest inland fishery, for their sustenance.  Cambodia’s water-resources minister, Lim Kean Hor, sent a strong protest letter to Laos. He called for an immediate halt to construction until an independent assessment has been completed. Japan has just agreed to fund a study on Mekong dams, under the auspices of the MRC. Vietnam strongly backs Cambodia, and has repeatedly called for no more dams to be built on the Mekong for at least ten years. The Lao government’s failure formally to notify its Mekong partners about the construction, allowing the dam to proceed under the radar, clearly undermines the credibility of the MRC’s consultation processes. (pdf) In truth, though the Mekong Agreement signed in 1995, which gave birth to the commission, requires the four nations to consult and respect neighbours’ concerns, final decisions are left to each sovereign state.

A “Save the Mekong” campaign, chiefly among Thai non-government organisations (NGOs) has been gathering force. The NGOs complain of silence from the commission’s head office, based in the Lao capital of Vientiane. The MRC appears incapable even of sending a monitoring team to the dam site.   Perhaps Cambodia will file a complaint against Laos in an international court. More likely, as Niwat Roykaew, chairman of the Chiang Khong Mekong Conservation Group, suggests, local residents might have no choice but to use sit-ins and other obstructions in order to shut down the Mekong “friendship bridges” between Thailand and Laos, should the MRC fail to compel Laos to suspend the dam construction.

A dam on the Mekong: Opening the floodgates, Economist, May 5, 2012, at 43