Prior consultation is a right and a mechanism for social participation, a public, special and obligatory process, not a concession from the States, much less from companies. The Consultation meets the need of communities, communes, indigenous peoples and nationalities, Afro-Ecuadorians, Montubios, or other groups and the general public to demand that their voice be taken into account.
Although this right was included in the Constitution of 1998, it is included in the current Constitution and in international instruments such as Convention 169 of the ILO (International Labour Organization) and the United Nations Declaration on the Rights of Indigenous Peoples; in Ecuador its full guarantee has not been achieved within the judicial and administrative systems.
In May 1998, Ecuador ratified ILO Convention 169, thereby including the right to prior consultation in the country's law. Article 6 of this Convention establishes that consultations must be carried out in good faith and in an appropriate manner in order to reach an agreement or obtain consent regarding the proposed measures.
In August 1998, the new Constitution came into force, which includes the right to prior consultation for Indigenous Peoples and the right to be consulted in general.
Four years after the 1998 Constitution was issued, Gustavo Noboa issued the Regulations for Consultation and Participation for the realization of hydrocarbon activities. This decree was unconstitutional in substance and form and emptied the right to prior consultation of its content.
The unconstitutionality of the form lies in the fact that the President could regulate a law, not a right, by decree; this decree was not a regulation for the application of a Law, therefore it could not regulate the right to prior consultation.
Among the fundamental unconstitutionalities, Decree 3401 violated the right to prior consultation, the principle of sovereignty and the state's obligations to defend the country's natural heritage and protect the environment, violated the right to information, the right to participate in the economic benefits generated by state activity, the right to reparation for socio-environmental damages and violated the prohibition of limiting human rights except through a law.
On April 22, 2008, through Executive Decree 1040, President Rafael Correa issued the “Regulations for the Application of the Social Participation Mechanisms established in the Environmental Management Law.” This Decree was published in the Official Registry No. 332 on May 8, 2008, while the 1998 Constitution was still in force and while the Constituent Assembly was meeting to draft the new Constitution.
Decree 1040, which becomes the current regulation regarding prior consultation with indigenous nationalities, reduces the procedure for participation in relation to decree 1897 and repeats several of the unconstitutionalities of form and substance of decree 3401.
It is important to mention that article 9 of this decree states: […] Social participation in environmental management has as its objective purpose consider and incorporate the criteria and observations of citizenship, […] as long as it is technically and economically viable, so that activities or projects that may cause environmental impacts are developed appropriately, minimizing and/or compensating for these impacts in order to improve the environmental conditions for carrying out the proposed activity or project in all its phases. This would mean that the activity will be carried out regardless of whether the decision of the indigenous nationality is to oppose the project.
Decree 1040 also reduces prior consultation to a mere procedural procedure in the execution of extractive activities to which indigenous nationalities have no possibility of objecting. It declares that the opinions of the nationalities will be included to the extent that they are technically and economically viable, and that if the persons of the affected nationality do not attend the consultation events, the project will continue, although it also says that projects in which the consultation process has not been carried out will not be feasible; at no point does it refer to the decision of the community.
This is the regulation that currently governs the right to prior consultation of the general population, including indigenous peoples, and is the one that should be applied before the entry of oil companies into the south-central Amazon, despite having been drawn up under the previous Constitution and therefore being completely unconstitutional at present.
People in other countries such as Peru and Bolivia are currently struggling to make their voices respected. Although the distance separates them, the message is the same. For example, if you listen to the following spots, although they seem to be made in Ecuador and the middle of the country, it turns out that it is a program made for the same reason in Peru.
Without Prior Consultation, There Is No Serious Democracy 1
Without Prior Consultation, There Is No Serious Democracy 2
Sources: Green Alert, Bulletin 163Campaign: Without prior consultation there is no serious democracy
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