ECUADOR Law and Practice Contributed by: Roque Bernardo Bustamante and Claudia Bustamante, Flor Bustamante Pizarro & Hurtado
ate, may convene a popular consultation. All types of metallic mining in any of its phases are prohibited in protected areas, urban centres and intangible zones. 2.3 Impact of Community Relations on Mining Projects Community consent constitutes the most prominent issue for most mining projects in Ecuador. Opposition, political activism and community claims are common. There is no magic cure for the problems caused for mine owners by the issue; only companies’ best prac - tices can help to overcome community and commu - nity leaders’ opposition to mining projects. It is usual for community leaders and local politicians to file constitutional actions before the local judge, requesting suspension or termination of mining rights. The usual arguments are environmental damage and lack of proper indigenous or environmental consulta - tion. How the local judge is going to rule is unpredict - able. The decisions of the local judge can be appealed to a superior court that, again, has broad scope on how to decide. From the superior court it is possi - ble to file an extraordinary protection action with the Constitutional Court; however, this Court hears only a limited number of cases and takes quite some time to resolve them. The Mining Law establishes that all title holders must have a Community Relations Plan that reduces, miti - gates and compensates for the socio-environmental impacts of their activity. This plan will be developed with the communities located in the area affected by the project, and in co-ordination with the development plans of the local governments involved. 2.4 Prior and Informed Consultation on Mining Projects Constitutional and International Framework for Consultations The Ecuadorian Constitution provides for several types of consultations, to indigenous aboriginal com - munities, to the affected population on environmental matters and even to the general population on any matter. In accordance with the Ecuadorian Constitu - tion and the Indigenous and Tribal Peoples Conven - tion, 1989 (“ILO 169”), prior consultation is only man - datory for indigenous communities; however, other
forms of consultation, such as with the public at large, can also block a project. The Constitutional Court has rejected some of the general requests for consultation but has not been able to provide a clear rule on how and when consultations are possible. Therefore, the issue is still uncertain and remains a great uncertainty for mining projects. The Constitution recognises and guarantees indige - nous communes, communities, peoples and nation - alities free, prior and informed consultation, within a reasonable time, on plans and programmes for the prospecting, exploitation and commercialisation of non-renewable resources found on their lands that may affect them environmentally or culturally, allow - ing them to participate in the benefits that these pro - jects bring and to receive compensation for the social, cultural and environmental damages caused to them. This type of consultation is known as indigenous/ ancestral consultation. It is obligatory for the com - petent authorities to carry it out and they must do so in a timely manner. If the consent of the community consulted is not obtained, the Constitution and the law shall apply. Environmental Consultation Obligations and Participation Mechanisms Article 398 of the Constitution establishes that any State decision or authorisation that may affect the environment must be consulted on with the affected community, to whom ample and timely information shall be provided. This type of consultation is known as the environmental consultation. The consulting subject shall be the State. The law regulates the deadlines, the people consulted and the criteria for assessment and objection to the activity submitted for consultation. If the above-mentioned consultation process results in a majority opposition of the respec - tive community, the decision to execute the project, or not, will be adopted by a duly motivated resolution of the corresponding higher administrative instance in accordance with the law. The Environmental Law establishes that the compe - tent environmental authority must inform the popula - tion that could be directly affected of the possible real - isation of projects, works or activities, as well as the possible expected socio-environmental impacts and
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