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Indigenous organizations file unconstitutionality action against mining decree 151

Published on January 04, 2022

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This is the second unconstitutionality action presented to the Constitutional Court by indigenous organizations against decrees of President Guillermo Lasso.

On Wednesday, December 22, 2022, several indigenous and civil society organizations presented before the Constitutional Court an unconstitutional action against the country’s mining policy, which is contained in executive Decree 151.

The  decree was issued by President Guillermo Lasso in August 2021, and aims to create an Action Plan to promote the development of the Ecuadorian mining sector.

The presentation of this unconstitutionality action was forewarned by indigenous organizations last October, when they presented a similar action against Decree 95, which outlines the new oil policy. They were scheduled to present this challenge at the end of October, but the process has taken two more months than planned.

Who presented the action?

The unconstitutionality action that is already in the hands of the Constitutional Court, the highest court in the country, was presented by four organizations:

The Confederation of Indigenous Nationalities of Ecuador (Conaie)

The Confederation of Indigenous Nationalities of the Ecuadorian Amazon (Confeniae)

The Alliance of Human Rights Organizations of Ecuador, and

Amazon Frontlines, an organization that seeks to defend the indigenous rights of the peoples and nationalities of the Amazon rainforest.

What does the claim of unconstitutionality allege?

The lawsuit filed by the indigenous organizations asks that the decree be annulled because it is unconstitutional and because it is a “threat of human rights violations.””

The action claims that the decree was issued without prior consultation – a matter on which the Court ruled a few weeks ago. It also argues that business interests were placed above the rights of indigenous communities, peoples and nationalities, as well as those of nature. The organizations’ statement says that the decree will affect 48% of the national territory with mining concessions. The presidential order, says the bulletin, “goes back on established citizen decisions such as the popular consultations in Girón and Cuenca.”

One of the spokespersons for the Amazon Frontlines legal team, Jorge Acero, says that at least 13 of the 17 indigenous nationalities in the country could be affected by Decree 151 in their territories.

In addition, he says that the demand was not only driven by nationalities and indigenous peoples, but also by the communities of Intag, in the province of Imbabura, and Pacto, in the province of Pichincha and Loja, in the south of the country, where there are strong threats from projects miners.

Acero says that the fundamental challenge of the lawsuit is “to make it clear to the government that before proposing plans, programs or public policies, a participatory process must be developed.” And, although he thinks that there is a probability that the demand will not be accepted, he explains that the organizations hope that several articles of the decree will be modified because “the increase in mining production will undoubtedly affect the rights of indigenous peoples and other communities.”

Prior consultation was not done

The environmental lawyer Gustavo Redin says that this decree calls for the acceleration and simplification of the processes that grant permits to carry out mining activities in Ecuador.

Therefore, the demand is correct, says Redin, because prior consultation was not made, which is a right of indigenous peoples and nationalities protected by the Constitution of Ecuador and international conventions.

The consultation is a mechanism for citizen participation that forces the state to prior consultation with the communities, indigenous peoples and nationalities, Afro – Ecuadorian people and montubio about plans, projects, programs or works of exploitation that affect their rights and are to be conducted in their ancestral territories.

Redin explains that prior consultation is a right enshrined in Convention 169 of the International Labor Organization (ILO), in the Constitution of Ecuador and in various judgments of the Inter-American Court of Human Rights (IACHR). “Therefore, it is directly applicable as it is part of the country’s constitutionality bloc,” says Redín, who is also president of the Ecuadorian Coordinator of organizations for the Defense of Nature and the Environment (CEDENMA).

The lawyer says that the Decree151 suffers from unconstitutionality “because the mining concessions, for the most part, are on the lands of indigenous populations and, in the absence of this pre-legislative consultation [prior consultation], the right to consultation of the indigenous peoples is being violated.”

Amazon Watch, an organization that is part of the complaints, expressed concern about Decrees 95 and 151. “Both decrees enable institutional channels to expand extractivism,” said the organization in a statement, “it is omitted to explain the way in which the rights of nature, human and collective of indigenous peoples will be guaranteed.”

The new mining policy

Decree 151 against which the organizations filed the action was issued by President Guillermo Lasso on August 5, 2021, less than three months after he promised to move towards an ecological transition.

The decree lays out an “Action Plan for the Mining Sector of Ecuador” to begin within 100 days of its issuance. It details that the primary objective is “to develop efficient and environmentally and socially responsible mining” —an objective that has been questioned by environmentalists around the world.

The decree says that the Plan seeks to promote national and foreign investment and improve practices for mining exploitation.

Mining in Ecuador

According to data from the Central Bank of Ecuador (BCE), in the first four months of 2021, export mining products represented the fourth most important item of the national economy, with 5.35% of total exports, totaling $421 million.

In addition, a statement from the Ministry of Energy and Non-Renewable Natural Resources announced that, in June 2021, Ecuador reached the highest monthly export level in the country’s mining history with a value of almost $179 million.

Despite the economic importance of mining in Ecuador, Consuelo Fernandez-Salvador, a cultural anthropologist specializing in Politics and Identity in Indigenous Populations, explains that one of the main problems facing indigenous nationalities today is the loss of territory due to State mining projects, which are superimposed on those of nationalities. “In the constitution you can see that we are a plurinational country, that indigenous nationalities are respected and recognized,” says Fernandez-Salvador, “but if there is a project of interest, in a Huaorani or Kichwa territory, the interests of the state will prevail.”

According to the anthropologist, an example of this is the Mirador project, in which large-scale, open-pit mining activities are carried out in the Morona Santiago and Zamora Chinchipe provinces. Mirador would put 4 thousand species of plants at risk, allowing the extinction of amphibians and reptiles that are not found elsewhere in the world.

In addition, according to data from Conaie, the Shuar nationality lives in these provinces, one of the 11 indigenous nationalities of the Amazon. Currently, its legally recognized territory is more than 700,000 hectares and it is estimated that approximately 668 communities live here.

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