Mining 2025

ECUADOR Law and Practice Contributed by: Roque Bernardo Bustamante and Claudia Bustamante, Flor Bustamante Pizarro & Hurtado

of the community consulted is not obtained, the Constitution and the law shall apply. Article 398 of the Constitution establishes that any State decision or authorisation that may affect the environment must be consulted with the community, to which ample and timely infor - mation shall be provided. This type of consulta - tion is known as the environmental consultation. The consulting subject shall be the State. The law shall regulate the deadlines, the people con - sulted and the criteria for assessment and objec - tion to the activity submitted for consultation. If the referred consultation process results in a majority opposition of the respective 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 competent environmental authority shall inform the population that could be directly affected about the possible realisation of projects, works or activities, as well as the possible expected socio-environmental impacts and the perti - nence of actions to be taken. The purpose of the participation of the population will be to col - lect their opinions and observations in order to incorporate them in the Environmental Studies, provided that they are technically and economi - cally viable. A key aspect of the Environmental Impact Study is to include mechanisms of socialisation and citizen participation, so that the population is informed of the environmental impact of carry - ing out projects; this will be channelled through the tools set out in the Organic Code of the Envi - ronment.

In March 2023, an Executive Decree was passed regulating environmental consultations; howev - er, indigenous groups filed an unconstitutional - ity action to the Constitutional Court claiming that the Executive Decree was unconstitutional. The Constitutional Court ruled that the Executive Decree will be in force until the National Assem - bly issues a new law regulating environmental consultation. As of January 2025, such a new law regulating environmental consultation has yet to be issued. Regarding indigenous/ancestral consultation, in March 2024, an Executive Decree was issued regulating this consultation. However, similar to the Executive Decree regarding environmental consultation, a group of people made a filing before the Constitutional Court claiming that this Decree was unconstitutional. The Constitutional Court has not yet issued a decision. Therefore, as of January 2025, the only references and parameters to indigenous/ancestral consulta - tion are those provided in the Executive Decree that is being challenged, in ILO 169 and in the parameters set by the Constitutional Court. 2.5 Impact of Specially Protected Communities on Mining Projects Ecuador is made up of a large ethnic mix of indigenous peoples and immigrants who arrived a few centuries ago. Technically, only the indig - enous/ancestral communities are required to have prior consultation but, considering the large and diverse ethnic mix, everybody claims to be a community subject to consultation and special rights. The issue has to be analysed on a case-by-case basis, and it is impossible to pre - dict an outcome.

169 CHAMBERS.COM