- Ecuador’s Constitutional Court struck down a controversial decree that tried to reform how environmental consultations for large-scale infrastructure projects are carried out with communities.
- Environmental and Indigenous groups had filed a motion with the court, calling the decree unconstitutional, and the court agreed, saying consultation processes can only be regulated through an organic law issued by the National Assembly, not through an executive decree.
- However, in a rare move, the court also deferred its ruling, allowing the decree to remain in place until after the National Assembly creates the needed laws.
- Lawyers say the ruling doesn’t clear up the confusion, and the multiple interpretations of the Constitution, that lie at the heart of Ecuador’s consultation processes.
On Nov. 17, Ecuador’s highest court ruled in favor of Indigenous and local communities by rejecting a controversial decree that promised to shape how environmental consultations are carried out.
Decree 754 was signed in May by then-president Guillermo Lasso, less than two weeks after he dissolved the country’s parliament, the National Assembly. The regulation was a means to facilitate the consultation process necessary to grant environmental licenses for large-scale infrastructure projects, but it quickly became controversial and caused conflicts in communities where the government tried to apply the environmental consultation for large-scale mining projects, only to be met with resistance from local farmers.
Indigenous and environmental organizations filed a motion with the Constitutional Court, arguing the regulation and the way it was approved, through a presidential decree, violated the Constitution. Last month, the court struck down the decree, saying consultation processes can only be regulated through legislation passed by the National Assembly, not through executive decree.
“This is a victory for the organizations that filed the motion,” said Mario Melo, an environmental lawyer representing the national Indigenous movement CONAIE against the decree. “It establishes that the court agrees with what is fundamental, that is to say that Decree 754 is unconstitutional … and therefore it is violating the constitutional order of the country.”
However, in a rare and strange move, according to Melo, the court also deferred its ruling until after the National Assembly debates and issues a law regulating environmental consultations. This means the decree will continue to apply until then, even though the National Assembly has been ordered to create this law in other court rulings and still hasn’t done so.
Melo said the ruling is contradictory and will only cause confusion and more conflicts between communities and controversial extraction projects.
More of the same
Ecuador has frequently faced turmoil over its consultation processes, especially for extraction projects near Indigenous and local communities. More than 8% of Ecuador’s GDP relies on oil and mining.
The 2008 Constitution lays out three different consultation processes for citizens: free, prior and informed consultation (FPIC) with Indigenous communities; environmental consultation; and prior consultation for all communities. But there are no laws yet defining these processes or how they should be implemented. The Constitutional Court and the Inter-American Court of Human Rights have ordered Ecuador to create inclusive laws for both FPIC for Indigenous communities and environmental consultations for all communities affected by infrastructure projects planned on or near their lands.
But the state still hasn’t done so, leaving room for multiple interpretations of the Constitution. This has led to many conflicts and lawsuits by communities.
Lasso’s Decree 754 was an attempt to solve some of these issues, but ended up causing conflicts in other communities. The decree made reforms to the environmental code, RCODA, including emphasizing that the consultation is nonbinding, participation is mandatory, and that before moving forward with environmental permits the consultation must have two phases: the informative and consultative phases. It also detailed what tools can be used for informing citizens.
After the decree was passed, authorities entered the communities of Las Naves in the central province of Bolívar and Palo Quemado in the Andean province of Cotopaxi to run consultations for two nearby mining projects. But violent clashes broke out between local antimining protesters and the police and military. This raised alarm bells from various international human rights organizations.
In October, Gabriela Manosalvas, at the time vice minister for the environment, told Mongabay that the decree was a response to the court’s previous orders to make environmental consultations more inclusive. She denied that it was unconstitutional.
But the reforms were far from adequate for community consultation requirements and didn’t include real in-depth participation with local citizens, according to the Constitution, said Alejandra Zambrano Torres, a lawyer with the Quito-based Ecumenical Commission on Human Rights (CEDHU).
The decree remains in effect until the National Assembly passes new laws, which Melo said “is not solving the problem as the country expected.”
The court’s ambiguous, and non-appealable, decision “hurts not only local communities but many government projects that also need clear rules,” he told Mongabay.
As of the time this story was published, the current ministry of environment, under the new administration of President Daniel Noboa who took office on Nov. 23, hadn’t responded to Mongabay’s multiple requests for comment.
Zambrano Torres said the ruling contains another contradiction: the decree can only be applied using the standards for environmental consultation developed by the court itself. Although these standards have been listed in previous rulings, they’ve never been taken into account.They’re also contradictory to several points in the decree itself, causing more confusion and room for varied interpretations based on interests, she said.
Zambrano Torres said it’s important that the court criteria be included in the environmental consultation law, when the National Assembly finally creates one. This includes a strong focus on the right of participation, which means involving the widest number of people possible, and more transparency when assessing who is “directly affected” by extraction projects, especially when contamination spreads through the environment, affecting people further away.
“The law should be a more concrete way, a mechanism, to show how participation should be understood,” Zambrano Torres said. When left to project regulators themselves, participation is usually restricted, she added.
Real participation also means being properly informed, by giving the community a reasonable time frame to understand and assess the complex information about all the effects of the extraction project, and allow for adequate back-and-forth to address concerns, Zambrano Torres said.
The court gave the National Assembly one year to debate and create laws around the environmental consultation process. However, it will be a challenge for the current assembly to comply with this order, as it doesn’t have much time to debate and create new policies. Following Lasso’s dissolution of the National Assembly earlier this year and call for rush elections in order to stop his impeachment trial, the current batch of assembly members has only been in office since November and will only serve for a year and a half before the 2025 elections.
Given Ecuador’s current economic and political crises, it’s unlikely the consultation processes will be a priority, Melo said.
But complying with this ruling, he said, is “absolutely fundamental.”
“They are rights that have been in need of clarification and enforcement for many years,” Melo said, adding that “Ecuadorian citizens have the right to a Constitution that is respected.”
Banner image: Image courtesy of Kimberley Brown.
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Fighting extractive industries in Ecuador: Q&A with Indigenous rights activist María Espinosa
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