How the Ecuadorean government uses the vagueness of its constitution to do as it sees fit
Ecuador’s most recent constitution, drafted and voted in by popular approval in 2008, is revolutionary. The first constitution in the world to legally recognize the rights of nature, it also includes a component (Title II, Chapter 4) that discusses the rights of the various communities, peoples, and nations within this pluriethnic nation. Within this chapter, Article 57 specifically outlines the rights of indigenous communities. If one reads Article 57, one will come across point 7, which specifically delineates the rights of the indigenous communities in regard to the extraction of nonrenewable resources. The wording goes as follows: “Indigenous communes, communities, peoples and nations are recognized and guaranteed, in conformity with the Constitution and human rights agreements, conventions, declarations and other international instruments, the following collective rights: 7. To free prior informed consultation, within a reasonable period of time, on the plans and programs for prospecting, producing and marketing nonrenewable resources located on their lands and which could have an environmental or cultural impact on them; to participate 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 in due time. If consent of the consulted community is not obtained, steps provided for by the Constitution and the law shall be taken.” In other words, although the Ecuador government owns all subsurface mineral rights, indigenous communities living on the affected lands have a constitutional right to be consulted before these are withdrawn.
Why is Point 7 of Article 57 of interest? Because Ecuador’s indigenous communities are often caught up in disputes with the government over land and natural resource rights. Not only does a big chunk of Ecuador’s indigenous population reside in one of the most bio-diverse regions in the world (the Ecuadorean Amazon), but it also inhabits some of country’s wealthiest land in a nation that depends so significantly on oil drilling and mining to keep its economy afloat. It should therefore come as no surprise that in recent months, Point 7 has become a disputed matter.
In late March of this year, the Ecuadorean government opened up over 3 million hectors (over 11,000 square miles) of its Amazon rainforest, to bidding by oil companies. Officials launched negotiations by traveling to China to discuss the proposal with Chinese oil companies such as China Petrochemical and China National Offshore Oil. The decision in turn, has been met with a backlash by the seven indigenous communities that would be affected, which claim that they had not been consulted. Government officials have responded by declaring that the Ecuadorean government had indeed conferred with these communities. Secretary of Hydrocarbons, Andrés Donoso Fabara went even further in dismissing these claims by saying: “We are entitled by law, if we wanted, to go in by force and do some activities even if they are against them.” In other words, according to Fabara, although the government did consult the indigenous communities, this was irrelevant because by national law the Ecuadorean government did not have to do so to put the land up for bidding. Is it just me or did he forget about Article 57 Section 7 of the Constitution?
It seems bizarre. How can a government official claim with such certainty that they had the right to come in and do as they see fit with the nonrenewable resources of the land without prior consultation? Isn’t this very practice unconstitutional?
While asking myself this question, it came to my attention that a bill is currently being debated in the nation’s National Assembly that would set the guidelines of how Article 57, Point 7, would to be put into practice. Being that the rights outlined in the constitution are not specific enough, the plan is for a law to be in put in place that would define what ‘consultation’ actually means. “The draft law, comprising 29 articles, is currently being studied in the National Assembly. It 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.”
A big problem with this however, is that the government of Ecuador and the indigenous peoples have a very different idea of what proper consultation means. While the indigenous community seeks to be consulted in a more communal manner many Ecuadorean government officials see this as impractical. Domingo Peas, a leader of the Achuar indigenous ethnic group, declared that “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,” President Rafael Correa, on the other hand, has claimed in the past that non-governmental organizations supporting indigenous causes “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.” He went on to state: “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,” Given the conflicting views on the matter, it seems very unlikely that a resolution will be reached in the near future. Even if a resolution is reached, it seems very doubtful that this case will be bound to the law once it is set in place because the bidding process has already begun. More importantly, it simply wouldn’t be convenient for Correa; whose administration is not only seeking to stimulate economic growth in a country so dependent on the extraction of nonrenewable resources but whose government also has accrued significant debt with China. In fact, it is widely believed that this debt is the principle motivator behind the Ecuadorean government’s willingness to not only auction off such a big chunk of formerly protected Amazon rainforest but also to auction it off to principally Chinese bidders.
The whole situation really goes to show the lack of respect that is given to the principles set forth in the constitution; along with the lack of rule of law that exists in Ecuador. In fact, Rule of Law is an alien concept in Latin American political culture and this is entirely evident by the fact that there exists no Spanish translation for the term.
In an ideal world, the decision of whether to auction off this land should be put on hold until a law is passed. What is more, it is essential that the indigenous people’s concerns be properly assessed while the bill is being debated in the National Assembly. Once this law passed, the government should then consult the indigenous communities in the way that has been stipulated in the law. This is what is to be expected from a country that respects ‘rule of law.’
Not all is in vain however. I do believe that there is a strong chance for the law to be approved with the extensive participation of indigenous interests. After all, the Confederation of Indigenous Nationalities of Ecuador (CONAI), and other indigenous groups are a force to reckon with. Lourdes Tibán, an indigenous National Assembly member from the leftist opposition movement Pachakutik, has stressed that adoption of this law is crucial, because “it will guarantee the participation of indigenous nationalities in decisions on future laws that directly affect them, and will therefore prevent a lack of consensus.”
The problem lies in this: if this bill becomes law, it is highly unlikely that the case at hand will be bound to it. Two scenarios could occur: either a) the lands will be auctioned off before the law is even enacted or b) the auctioning off of these lands will not be bound to the new law because the supposed consultations took place before the law was approved.
Because the government claims to have consulted these communities, it feels justified in having abided by the principles of the constitution, even if a) no evidence has been presented of this and b) members of the indigenous community claim that this is not the case. This opens the door for the government to manipulate the law and interpret the constitution as they see fit.
One thing for sure: if the government decides to go ahead with this without a) passing a law defining consultation and b) having that law apply to the case at hand; things could get ugly; for the indigenous peoples of Ecuador are not keen on backing down when it comes to their rights which have already been written into the constitution- and they shouldn’t back down.
I do not even know how I ended up here, but I thought
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