Last week, in an historic verdict, the Ecuadorian Constitutional Court ruled in favor of more than dozen Indigenous communities after an eight year legal battle, profoundly changing the landscape for indigenous rights and establishing important new precedent for many ongoing struggles.
Eight years ago, Kichwa and Siona Indigenous communities living along the Putumayo and San Miguel River, the natural borderline separating Ecuador and Colombia, found out that the Ministry of the Environment had unilaterally declared their ancestral territories as the “Triangle of Cuembi Forest Reserve” and then gave control of the 100,000 hectare area to the Ecuadorian military. Indignant and determined to keep autonomous control of their ancestral homelands, the Indigenous communities filed a lawsuit with the highest court of Ecuador.
Last week, in ruling that the Ministry of the Environment’s actions violated the Constitution, the Court set new landmark precedent on the Indigenous right to be consulted before enacting new laws or regulations that affect them, not just individual projects, the right to limit the activities or presence of military on their ancestral territories, and the right to possess and hold formal ownership of their ancestral territories.
The effects of this ruling go well beyond the Triangle of Cuembi Forest Reserve, and provide powerful legal tools to protect Indigenous rainforest territories, promote Indigenous autonomy and stop potentially damaging or destructive government policies. Here is a breakdown of how this new Court ruling will bolster Indigenous struggles in the years to come:
1. The Ecuadorian government can’t pass laws or regulations that impact Indigenous peoples without consulting them first.
Historically excluded from decisions by the State that transformed and devastated their way of life and ancestral territories, the 2008 Ecuadorian Constitution and international law give Indigenous peoples the right to be consulted before new laws or regulations that could impact them or their territories are enacted. It’s the same principle behind the more well known right of Indigenous peoples to be consulted before the government can carry out extractive or infrastructure projects that impact Indigenous territories. Yet for decades, the Ecuadorian government has held that this right to consultation only applies to laws enacted in Congress, but not to executive decrees, administrative acts or ministerial regulations. Countless laws, decrees and regulations that have devastating impacts on Indigenous peoples have been passed without so much as informing them, much less seeking consultation and consent. Oftentimes Indigenous communities didn’t know what hit them until years later.
Not anymore. In last week’s verdict, the Constitutional Court made it crystal clear that Indigenous peoples must be consulted on any law, decree, administrative act or regulation that affects them, whether from Congress, the executive branch or local government. The ruling ensures that Indigenous peoples have a say in government decisions at every level, from the granting of new oil concessions to the environmental approvals of infrastructure projects like hydroelectric dams to ministerial decrees that define their rights in practice, Indigenous peoples must always be consulted.
2. Dozens of bad laws are now fair game for constitutional challenges, and the Ministry of Energy’s recently announced draft regulation on prior consultation processes for new mining projects is dead in the water
As the Ecuadorian government looks to double-down on natural resource extraction and hydroelectric projects in the Amazon, this verdict will not only give Indigenous communities a powerful tool to prevent future bad laws and policies, but also to strike down laws and policies that never went through a prior consultation process. Since the Ecuadorian government misinterpreted their obligation to consult Indigenous peoples for decades, as enshrined first in international treaties and then explicitly in the 2008 Constitution, this is a monumental decision that puts dozens of bad laws on subjects ranging from oil and mining regulations, Indigenous land titling, and even laws on intercultural education and health at risk of being declared unconstitutional by the courts.
Moreover, the verdict makes it impossible for the Ministry of Energy and Non-Renewable Resources to sign into law quick fixes in the form of ministerial decrees to sidestep both Indigenous peoples and Congress in order to fastrack favorable policies and regulations for extractive industries. A recently announced draft ministerial decree aimed at regulating Indigenous peoples’ right to prior consultation on mining projects in their territory, which Indigenous peoples and civil society groups including Amazon Frontlines were preparing to challenge, is now made clearly untenable. For Minister of Energy René Ortiz, who recently said that Ecuador was “sitting on Ferraris” and needed to get every drop of oil and every gram of gold out of the ground, this is a major blow.
3. Indigenous peoples have the right to own and enjoy their territories, and can no longer be “parked out” of their ancestral lands to make room for a national park or reserve
The story of Kichwa and Siona Indigenous peoples finding out without warning that the rainforest lands inhabited by their elders and ancestors was now a “park”, and that they were now just visitors, is neither uncommon nor new. Over the last 50 years, the government of Ecuador has unilaterally declared at least 1.4 million hectares of ancestral Indigenous lands as national parks or protected areas, granting sole ownership to the government with few exceptions. While in certain areas and under certain legal frameworks nationally protected areas can provide important environmental protections to fragile ecosystems, Ecuador in particular has a poor history of controlling illegal invasions, logging and poachers and even allows for oil drilling and other extractive activities in national parks due to loopholes in the law. Moreover, recent studies show that formal control and ownership by Indigenous peoples of their land advances forest conservation and result in almost 10% less deforestation than protected natural areas outside of Indigenous territories.
What the Court makes clear in this verdict is that the government’s interest in providing increased environmental protection to an area, while legitimate, does not outweigh and cannot infringe upon Indigenous peoples’ right to occupy and have formal ownership of their ancestral territories. In this particular case, the declaration of the Triangle of Cuembi Forest Reserve implied a de facto prohibition on land-titling for Indigenous peoples in the reserve area. The Court notes that Indigenous peoples’ “relationship with the earth is not merely a question of possession and production, but rather a material and spiritual element that should be fully enjoyed, including to preserve their cultural identity and transmit it to future generations.” Moreover, “the lack of possession and access to their territories has an impact on [Indigenous peoples’] use and enjoyment of the natural resources they need to survive, such as traditional activities of agriculture, hunting, fishing and gathering, among others.” The Court observed that since the State’s decision to create the park could affect, reduce or extinguish Indigenous rights to collective property of their territories, the State needed to consult and obtain consent from those Indigenous peoples beforehand. For dozens of Indigenous communities and nations across the country, this precedent is essential to finally getting formal land title over their lands.
4. Indigenous peoples have the right to autonomously control and govern their territories, and limit unwanted military activities and presence
In this particular case, there was a clear ulterior motive behind the Ecuadorian executive branch’s declaration of the Triangle of Cuembi as a nationally protected forest reserve. The Putumayo river is the lifeline of the Kichwa and Siona communities who live along its banks, but it is also the border to Colombia. The Ministry of the Environment created the Triangle of Cuembi reserve in 2010, at the height of the armed conflict with the FARC, guerilla movement,and paramilitary groups. The Putumayo region is one of Colombia’s most active in coca leaf production, and the Putumayo river and its inlets are key narco-trafficking corridors for armed-actors. Indigenous nations like the Siona have borne the brunt of the armed-conflict and narco-violence, but have continuously fought for autonomous control of their territories through their own Indigenous land-patrols, saying that military presence infringes on their autonomy and only makes things worse.
In an unprecedented move, the same Ministry of the Environment decree that approved the Triangle of Cuembi Forest Reserve also granted the Ministry of Defense the role of protecting and controlling the environment and biodiversity of the reserve. In essence, under the pretext of environmental protection, the government militarized the ancestral homelands of the Kichwa and Siona. On this issue, the Court takes a more aggressive tone in admonishing the Ministry of the Environment for taking the absurd position that the military could and should take on the role of environmental protection. But more importantly, while the Court emphasized the important role the military plays in securing the border, it also clarified that Indigenous peoples have the right to limit military activities in their territories, and in this case that right was violated by a ministerial decree that “wasn’t passed by Congress and never went through a process of prior consultation nor had the prior consent of the Indigenous communities required for these types of military activities.” The Court’s ruling affirms Indigenous people’s rights to autonomy and self-governance, especially for trans-border Indigenous nations in conflict-zones.
5. The ruling builds on recent Indigenous legal victories in Ecuador, and provides momentum for a major court battle on the right to free, prior and informed consent currently before the Court.
Indigenous peoples have proven time and again that they are best-positioned to fight for their rights, their rainforest territories and our global climate. With nearly 70% of the Ecuadorian Amazon in Indigenous hands, the country is a key battleground for Indigenous peoples and the broader struggle to protect our planet’s most important rainforest. The right to prior consultation is a fundamental tool that Indigenous communities are exercising to protect their lands, forests and way of life from the onslaught of extractive threats planned for their territories. In late 2018, the A’i Kofán of Sinangoe won a court victory that protected more than 32,000 hectares of primary rainforest from the impacts of gold mining and forces authorities to set in place restoration measures in an area that had been already heavily impacted by the mining operations. Then in 2019 the Waorani won a verdict indefinitely suspending the auctioning of Waorani lands to oil companies, immediately protecting nearly 200,000 hectares of forest land and calling into question the planned auctioning of 16 oil blocks over nearly 3 million hectares of Indigenous territory. In both cases, the court ruled that the government failed to adequately consult Indigenous peoples.
In early 2020, the Constitutional Court of Ecuador selected the Sinangoe and Waorani rulings for review out of thousands of cases, setting up the country’s first real opportunity for national jurisprudence on the application of Indigenous rights to prior consultation and self-determination. The outcome will determine whether these constitutional rights exist only on paper or are actually applicable in practice. This most recent ruling is yet another powerful wind in the sails of Indigenous rights in Ecuador and a warning shot to the government that Indigenous peoples must always participate in the decisions that impact them.
Amazon Frontlines filed an amicus curiae brief in this case and provided legal accompaniment to the Siona and Kichwa community of San José de Wisuya. The Ecuadorian human rights organization INREDH provided legal representation of the impacted communities. To learn more about our work with the Siona and Kichwa communities along the Putumayo River, please visit: https://www.amazonfrontlines.org/sionasurvival/