This story originally appeared in openDemocracy on March 7, 2022. It is shared here with permission under a Creative Commons (CC BY-NC 4.0) license.
The recent decision by Ecuador’s highest court in favour of Indigenous people’s rights was a huge victory, not just for them but for nature too.
The ruling by the country’s Constitutional Court, in favour of Indigenous people’s rights and their authority to decide on extractive projects that affect their land, upheld a landmark lower court ruling in 2018.
The ruling was one of three handed down in January in favour of Indigenous communities. One (No. 273-19-JP) protects the A’i Cofán community from any extractive project on their land. Another (No. 28-19-IN) says that Indigenous peoples’ consent will now be required for oil and mining projects throughout the Ecuadorian Amazon.
The third (No. 45-15-IN) declares the water law, in force since 2014, unconstitutional because it fails to guarantee the resource as a public and communal good. Indigenous groups have long expressed concern that the law could allow for state intrusion into their rights to water and land use. The court also affirmed that reparations ordered by lower courts must be paid, by private companies and the government.
The rulings are a massive victory for Ecuador’s Indigenous people, who make up 70% of the population of the Ecuadorian Amazon.
The verdicts are also an undoubted blow to Ecuador’s recently arrived president, Guillermo Lasso. Last July, within months of being sworn into office, he issued a new hydrocarbons policy that promised to double oil production in Ecuador. Lasso did so in open defiance of Indigenous peoples’ concern for millions of acres of pristine rainforest as well as the physical and cultural survival of Indigenous nations.
An old struggle
The Constitutional Court’s rulings followed a protracted battle waged by the A’i Cofán community of Sinangoe, who live in Sucumbíos province in the north of the Ecuadorian Amazon. Their territory is composed almost entirely of virgin forest. Due to the threat posed by extractive projects, the A’i Cofán have designed and implemented territorial monitoring and defence techniques, and even written their own law for the control and protection of ancestral territory.
In 2018, the A’i Cofán mobilised against mining in their territory after seeing heavy machinery appear for the first time on the banks of their most important river, the Aguarico. Environment ministry officials claimed this was a case of illegal mining, but when the A’i Cofán learned that the government had allowed it, they sued.
They challenged 52 gold-mining concessions in Sucumbíos province. The Ecuadorian government had already granted 20 concessions to multinationals and another 32 were in the pipeline.
In July 2018, a judge in Gonzalo-Pizarro, in Sucumbíos province, ruled in their favour. The ruling stated that the Indigenous peoples’ right to free, prior and informed consultation had been violated by the authorities. The judge ordered the immediate suspension of all mining concessions, including those in the process of being granted.
It seemed that the A’i Cofán had won the battle, but they hadn’t. An appeal against the ruling was immediately lodged. In September, the mining companies and environmental authorities insisted that prior consultation was not necessary, arguing that the activities were not taking place on Indigenous territory. A few weeks later, a provincial court upheld the Gonzalo-Pizarro ruling.
After a two-year wait, in an unprecedented hearing last November, the Constitutional Court said publicly that Indigenous communities’ rights had been violated, including their constitutional right to prior consultation before extractive activity on their lands is given the green light.
It is important to recognise that prior consultation is a basic right for Indigenous peoples, as enshrined in the International Labour Organisation’s (ILO) Convention 169. This is fundamental to addressing the pressures exerted by extractive industries. In Ecuador, there is a history of abuse and disregard of Indigenous communities, which renders them invisible. It is common for companies to violate or manipulate the right to prior consultation in order to get the government to grant them operating licences for extractive projects.
The court’s three January rulings bring to an end the saga of the 2018 ruling and the 2021 hearing. They make clear that the court will not allow Indigenous peoples’ rights to be violated. This gives hope to many other communities fighting for their rights in the region.
The Constitutional Court’s second ruling also declared unconstitutional some articles of a 2019 decree that allowed oil exploitation of the Yasuní National Park, which has been recognised as a biosphere reserve by UNESCO. Yasuní has the greatest diversity per square metre of any area on the planet. The ruling is crucial because it will prevent seven oil platforms, currently planned for Yasuní, from operating.
On 7 February, Ecuador’s ministry of energy and non-renewable resources said that this particular ruling would not affect oil production because there are no concessions near the biosphere reserve. However, it did not offer any evidence to support its claim.
Ecuador’s Constitutional Court has set an important precedent, not just for the country but for the region, one badly affected by deforestation and where Indigenous peoples’ rights are routinely violated. The rulings underline Ecuador’s unique status within Latin America as the only country where nature is recognised as a subject of rights. That means that as part of the country’s absolute constitutional rights, nature has the same rights as a citizen.
As the Indigenous peoples of the Amazon struggle for their rights, they continue to challenge and halt deforestation, river pollution, and the degradation of biodiversity, practices that threaten the planet.