Tag Archives: right to consultation indigenous peoples

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

Mining Peru: the right to consultation and environmental protection

The first law signed by Mr Humala [Peru’s President] required the government to consult with local communities before approving extractive projects. This was followed by measures to increase the total tax-take from mining by about $1 billion a year. His popularity soared. A year later, conflicts are rising again: the ombudsman’s office reports 149 disputes involving extractive industries. The government has declared a state of emergency in one area, and sent troops to another. Eight protesters have been killed by the police since March. Mr Humala’s approval rating is down to 45%, according to Ipsos-Apoyo, a polling firm.

The fiercest fight involves Minas Conga, a $4.8 billion gold and copper project in Cajamarca, in the north, by Newmont, an American firm, and Peru’s Buenaventura. This would have turned several Andean lakes into reservoirs or tailings ponds. That alarmed peasant communities. After protests flared, Mr Humala promised to invest $2 billion in Cajamarca and ordered a fresh environmental study. This recommended changes, to save two lakes. But Gregorio Santos, Cajamarca’s regional president, has vowed to stop Conga. He may get his way. Newmont has scaled back its investment in Peru this year, and said that Conga will no longer start in 2014, as planned, but perhaps in 2017. Three other projects in the same area, with total investment of $5 billion, are also in jeopardy.

Last month two people were killed and buildings set alight in Espinar, in the southern highlands, in a protest against Xstrata, an Anglo-Swiss company that owns a copper mine at Tintaya and is building another nearby. The government arrested the mayor, who led the protests. He wants Xstrata to raise its contribution to a social fund from 3% to 30% of pre-tax profits. When that gained little support in other parts of the country, he began to complain of pollution. But a dozen studies since 2005 have found the presence of heavy metals in water to be within legal limits.

Mining investment, forecast at over $50 billion in the next five years, is starting to fall. A score of giant projects account for over 85% of the planned spending. Of these, 11 face social conflicts, according to a note by Canada’s Scotiabank. Five legislators have left Mr Humala’s party over the protests, weakening the government in Congress. The president seems to have few ideas as to how to prevent disputes, or how to negotiate when they do break out. Having spent years posing as the protesters’ champion, Mr Humala is now reaping the bitter harvest of dashed expectations

Mining in Peru: Dashed expectations, Economist,June 23, 2012, at 42