ECUADOR Law and Practice Contributed by: Roque Bernardo Bustamante and Claudia Bustamante, Flor Bustamante Pizarro & Hurtado
There are also several subsidiary regulations that detail further the pertinent procedures for obtaining a mining concession, maintaining it and all procedures for environmental and social matters. The Ecuadorian Constitution provides that natu - ral resources belong to the State of Ecuador, that their exploitation shall be conducted in accord - ance with all environmental and social provisions and that the benefit to the exploiting company shall always be lower than the benefit to the State of Ecuador. It also provides that environ - mental consultations and engagement between mining companies and indigenous communities shall be conducted in pertinent cases in accord - ance with the treaties entered into by Ecuador. The Mining Law and regulations cover all aspects of the granting of a mining concession, payment of maintenance fees, royalties, passing into different stages, including advanced explo - ration and exploitation, and all other aspects concerned with a mining concession. The Environmental Law and regulations provide all the aspects regarding environmental licences indispensable for mining activities. The Civil Code is a set of general rules applicable for all matters when there is no special provi - sion for a particular matter. The Tax Code and related laws and regulations also apply to mining activities, in addition to the Labour Code for all employment matters. All Ecuadorian legislation is applicable to com - panies operating in Ecuador and therefore all mining subsidiaries holding mining concessions in Ecuador are subject to all the laws applicable in Ecuador.
The Constitutional Court of Ecuador has the capacity to qualify requests for public consulta - tion on different matters, including mining mat - ters. Its decisions are binding. While several international treaties provide for consultation with indigenous communities, a law defining to whom, when and how a communi - ty consultation should be made has not been passed, in part due to the Constitutional Court prohibiting the issuance of a ministerial decree in that regard. In March 2023, an Executive Decree was issued regulating the environmental consultation pro - cess; however, this Executive Decree will only be in force until the National Assembly issues an Organic Law regulating such consultation. 1.3 Ownership of Mineral Resources In Ecuador, mineral resources belong to the Republic of Ecuador. The State of Ecuador has the right to explore and exploit all minerals and it can do this through the national mining company ENAMI ( Empresa Nacional Minera ). However, ENAMI does not have sufficient financial means and technical resources. Therefore, on the few projects it is handling, it has looked for partners. The central government acting on behalf of the State of Ecuador is allowed to grant mining con - cessions for the exploration and subsequent exploitation of metallic and non-metallic miner - als. Mining concessions for construction materi - als are granted by municipalities. Article 1 of the Constitution mentions that the non-renewable natural resources on the territory of the State belong to its inalienable and impre - scriptible patrimony. The central government will have exclusive competence over energy, miner -
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