ECUADOR Law and Practice Contributed by: Roque Bernardo Bustamante and Claudia Bustamante, Flor Bustamante Pizarro & Hurtado
tected areas and in areas declared as intangible, including logging. Exceptionally, such resourc - es may be exploited at the justified request of the Presidency of the Republic and following a declaration of national interest by the National Assembly, which, if it deems it appropriate, 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 promi - nent 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 practices can help to overcome community and community lead - ers’ opposition to mining projects. It is usual for community leaders and local politi - cians to file constitutional actions before the local judge, requesting suspension or termination of mining rights. The usual arguments are environ - mental damage and lack of proper indigenous or environmental consultation. How the local judge is going to rule is unpredictable. 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 possible 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 hold - ers must have a Community Relations Plan that reduces, mitigates and compensates for the socio-environmental impacts of their activity.
This plan will be developed with the communi - ties 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 The Ecuadorian Constitution provides for several types of consultations, to indigenous aborigi - nal communities, to the affected population on environmental matters and even to the general population on any matter. In accordance with the Ecuadorian Constitution and the Indigenous and Tribal Peoples Conven - tion, 1989 (“ILO 169”), prior consultation is only mandatory for indigenous communities; how - ever, 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 uncer - tainty for mining projects. The Constitution recognises and guarantees indigenous communes, communities, peoples and nationalities free, prior and informed con - sultation, within a reasonable time, on plans and programmes for the prospecting, exploita - tion and commercialisation of non-renewable resources found on their lands that may affect them environmentally or culturally, allowing them to participate in the benefits that these projects 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. The consul - tation to be carried out by the competent author - ities shall be obligatory and timely. If the consent
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