Ecuador’s Supreme Court Makes Historic Ruling Recognizing Indigenous Right to Consent Over Oil and Mining Projects

Ruling is a victory for Indigenous and climate movements, and deals a major blow to Ecuadorian President’s plans to double oil production and advance mining deep into the Amazon

For more information, contact:​ 

Kelsey Flitter at +1.215.680.6191; Kelsey@amazonfrontlines.org

Photos, video and spokespeople available upon request.

Quito, Ecuador, February 4, 2022 – Today, the Constitutional (Supreme) Court of Ecuador, the country’s most powerful judicial body, published a ruling recognizing, for the first time, the right of indigenous communities to have the final decision over oil, mining and other extractive projects that affect their lands. Ecuador now has one of the most powerful legal precedents in the world on the internationally recognized right of Indigenous peoples to Free, Prior and Informed Consent, a powerful legal tool for Indigenous survival and the protection of huge swaths of forests and mega-biodiverse ecosystems.

The ruling stems from the A’i Kofán community of Sinangoe’s 2018 lawsuit that annulled 52 gold-mining concessions granted by the government along their most important river. Sinangoe hosted the Court’s first ever hearing in Indigenous territory in the heart of the Amazon on November 15th, 2021. Today’s decision signals that the nation’s highest court backs the right of all Indigenous peoples to have the final say over extractive projects that may affect over 23 million acres of Indigenous lands and forests nationwide.

The ruling highlights the need for the State to obtain the consent of the affected communities before undertaking oil, mining or other extractive plans or projects, based on Indigenous peoples’ right to self-determination. The Judges cite ex-United Nations Special Rapporteur on the Rights of Indigenous Peoples James Anaya to explain: “A direct or considerable effect in the lives or territories of Indigenous peoples establishes a solid presumption that the proposed measure should not be adopted without the consent of the Indigenous Peoples. In determined contexts, that presumption can convert into a prohibition of the measure or project if consent of Indigenous peoples does not exist.”

Coming only two months after the COP 26 meeting in Glasgow, where governments, including Ecuador, recognized the crucial role indigenous communities play in meeting the world’s forests, climate and biodiversity goals, today’s victory and Sinangoe’s years-long battle against gold-mining is an example of the type of frontlines Indigenous-led climate action needed in order to meet those goals and stave off a global climate crisis. Indigenous territories worldwide cover an estimated 22% of the Earth’s surface, safeguard 80% of the world’s biodiversity and hold at least 17% of all forest-stored carbon.

“This is a very important ruling for our community and others that face similar problems. After a long road of struggle and resistance, we were anxiously awaiting the favorable outcome from the Court. This decision is an enormous victory for Sinangoe and to now have a legal instrument that guarantees the rights to our communities, where there needs to be a historical precedent of free, prior and informed consent within the national territory, demonstrates the power of unity. We demand, as ancestral people, in our territories that our constitutional rights be respected, guaranteed and fulfilled,” says Wider Waramag, a leader with the A’i Kofán community of Sinangoe.

The Court’s decision deals a major blow to President Guillermo Lasso’s plans to ramp up resource extraction throughout the Amazon as part of their COVID recovery economic plans, as Indigenous lands cover 70% of the mineral-rich Ecuadorian Amazon. The recent major pipeline ruptures in April 2020 and January 2022 that spewed toxic oil into Amazonian watersheds in Indigenous Kichwa territory highlighted the dangers of oil production in the Amazon, and the potential shift of decision-making power now that future pipelines will require Indigenous consent to proceed. The Court underlines that the right to consent must be applied even if “the plans or projects pursue the satisfaction of legitimate ends in a democratic society”, a clear nod to government discourse around the need to drill or mine for the greater good of the national economy. In July 2021, President Lasso issued Executive Decree 95 that seeks to double oil production to reach 1 million barrels per day (bpd), and Executive Decree 151 that looks to expand the mining industry and relax environmental controls.

Yet according to average total carbon stock data published by the UN and the ministry of the Environment of Ecuador, Indigenous Territories of Ecuador store between 2.4 to 2.9 billion tonnes of carbon in their forests and soils, with 68% of that carbon stored in Amazonian indigenous lands. Additionally, with nearly 4.6 billion barrels of oil found throughout the country, this Court victory has significant climate implications for Indigenous communities throughout Ecuador.

Jorge Acero, lawyer for Sinangoe from Amazon Frontlines explained, “Indigenous peoples in Ecuador, and in much of the world, are being forced to endure various forms of dispossession and violence on their territories. This ruling is the result of a sustained process of enforceability of rights. It is the recognition of the constitutional right of ancestral Peoples to decide what happens on their territories and to their lives, and the obligation of the State to recognize and guarantee that right over economic and corporate interests.” He continued, “This decision is an essential tool to ensure that consent is respected in Ecuador and throughout the region. By acknowledging the life, history, and future of Indigenous Peoples, this also recognizes the long-term value of maintaining natural environments for humans around the world.”

Nonetheless, the Constitutional Court did not completely close the possibility of the State moving ahead with extractive projects against an Indigenous communities’ will in “exceptional circumstances.” The ruling will however require strict justification by the State for doing so and expressly prohibiting the State from implementing projects that imply “unreasonable sacrifices” from the Indigenous peoples. The Indigenous movement maintains that any oil or mining project in their ancestral territories against their will implies unreasonable sacrifices.

The next court battle to further clarify Indigneous peoples’ right to consent in Ecuador is on the horizon. This year, the Constitutional Court will hear oral arguments and rule on the Waorani of Pastaza’s right to stop the government from auctioning off their ancestral lands to oil companies. In the Waorani case, the Indigenous movement hopes that the Court will also provide clearer standards on how the State must conduct a culturally adequate process to obtain a communities’ consent and also declare that recently contacted Indigenous peoples, like the Waorani who were first contacted by Westerners in 1958, must always give consent before a project can move forward, without exceptions.

For more information about this case and the right to consent in Ecuador, please visit:

https://www.amazonfrontlines.org/who-should-decide/

For more information about Sinangoe, their territory and their historic case, please visit the community’s interactive map:

https://sinangoe.amazonfrontlines.org/content/sinangoe-map/

Additional Statements:

Leonidas Iza, President of Confederation of Indigenous Nationalities of Ecuador

“The Supreme Court, in this ruling, has cemented our rights to free, prior and informed consent, which has as a central tenet the necessity of consent of Indigenous peoples based on their self-determination over their territories and, in turn, their lives, cultures and survival. This ruling is a tool for historical reparations, for the conservation and protection of culture and life.”

Marlon Vargas, President of the Confederation of Indigenous Nationalities of the Ecuadorian Amazon

“This sentence sets a historic precedent for the defense of our territories, not just because it confirms the 2018 ruling of the lower court, but because it guarantees the protection of more territories in the Amazon and across Ecuador. We salute the decision and maintain firm in our defense of the Amazon rainforest.”

Kate Horner, Acting Executive Director of Amazon Frontlines. 

“This victory is a testament to the capacity of Indigenous peoples’ power to lead the way in the fight against climate change.  Around the world, Indigenous peoples have protected their lands and forests from the kind of natural resource extraction that is fueling the climate crisis, and their efforts need to be supported if we are to have any hope of a safe climate future.”

Silvana Nihua, President of the Waorani Organization of Pastaza

“For us this is great news, the Constitutional Court is a reference for Indigenous peoples and nations, because we are the ones facing the risks and threats of extractivism. Now, our right to consent must be guaranteed by the state. But we remind the Court that the Waorani case is still pending, and we ask the judges to hear and resolve our case soon.”

About Amazon Frontlines

Founded in 2011, Amazon Frontlines is an non-governmental organization that works to support the struggles of indigenous peoples to defend their rights to land, life, and cultural survival in the Amazon Rainforest. Comprised of an interdisciplinary team of human rights lawyers, journalists, filmmakers, scientists and activists who live and work throughout Ecuador and Peru, Amazon Frontlines strives to enact change and battle the climate crisis by securing Indigenous Guardianship throughout the upper Amazon.