The ABC of Free, Prior and Informed Consultation in Ecuador

Free, prior and informed consultation is a collective right of indigenous peoples and nationalities that is enshrined in number 7 of article 57 of the Constitution of the Republic. What is free, prior and informed consultation? Where does this obligation come from? Who must fulfill this obligation? ¿Who are the subjects of consultation?

What is Free, Prior and Informed Consultation?

In accordance with article 1 of the Constitution, Ecuador is a constitutional State of rights and justice, social, democratic, sovereign, independent, unitary, intercultural, plurinational and secular. Free, prior and informed consultation is a collective right of indigenous peoples and nationalities that is enshrined in number 7 of article 57 of the CR. It is important to point out that the Carta Magna extends this right to the Afro-Ecuadorian and Montubio peoples.

Where does this obligation come from?

The recognition of the rights of indigenous peoples and therefore their protection and promotion stem from Convention 169 of the International Labor Organization on Indigenous and Tribal Peoples in Independent Countries of 1989 (CONVENTION 169 ILO). Subsequently, in 2007, the General Assembly of United Nations approved the United Nations Declaration on the Rights of Indigenous Peoples.

Who must fulfill this obligation?

In accordance with number 7 of article 57 of the Constitution of the Republic of Ecuador, free, prior and informed consultation with indigenous peoples and nationalities is an inalienable obligation of the State.

Who are the subjects of consultation?

In accordance with article 1 of ILO CONVENTION 169 in which Dr. Alberto Wray Espinosa agrees in his publication “Indigenous Justice: Its Constitutional limits”, the subject of consultation must meet the following elements: i) a historical element: it is of human groups that descend from populations that inhabited the territory already at the time of the conquest or colonization; ii) a cultural element: the group has among its distinctive characteristics the total or partial preservation of its own social, cultural and political institutions; and, iii) finally, an element of psychosocial differentiation: awareness of their indigenous identity is what unites the group and serves both to differentiate itself from others and to relate to others.

What is the status of the regulation of free, prior and informed consultation in Ecuador in mining matters?

Currently, there is no regulation in Ecuador regarding prior, free and informed consultation on mining matters. Despite this, in 2010 the Constitutional Court issued Judgment No. 001-10-SIN-CC in an unconstitutionality action filed on various articles of the Mining Law. In the aforementioned judgment, the Constitutional Court established a series of parameters for the implementation of free, prior and informed consultation.

What is the role of the Constitutional Court, currently, in structuring clear rules for prior consultation?

The Constitutional Court in its Judgment No. 38-13-IS/19 of December 13, 2019, resolved to grant the National Assembly a maximum period of 1 year to issue the corresponding organic laws that regulate the right to prior and pre-legislative consultations on the basis of the minimum parameters established in Judgment No. 001-10-SIN-CC and in international human rights instruments.

What does the pre-legislative consultation refer to?

Like the prior, free and informed consultation, the pre-legislative consultation is also a collective right of indigenous peoples and nationalities, Afro-Ecuadorian peoples and montubios that is enshrined in number 17 of article 57 of the CP on being consulted before adoption of a legislative measure that may affect any of their collective rights.

What is the relationship of free, prior and informed consultation with the case in the Inter-American Court of Human Rights of the Kichwa Sarayaku People v. Ecuador?

In 2012, the Inter-American Court of Human Rights IACHR issued its judgment in the Pueblo Kichwa Sarayaku vs. Ecuador. In said ruling, among other things, it ordered the State “to carry out an adequate, effective and full consultation before starting natural resource extraction projects.”

Does the Constitution of the Republic of Ecuador provide for more than one type of consultation?

Indeed, the Constitution of the Republic of Ecuador provides for various types of consultation in its text, which are as follows: i) Free and informed prior consultation as the exclusive collective right of indigenous peoples and nationalities enshrined in number 7 of article 57 CR; ii) Pre-legislative consultation as the exclusive collective right of indigenous peoples and nationalities enshrined in number 17 of article 57 of the CR; iii) Referendum enshrined in Article 104 of the CR on any matter but after the constitutional court declares the question constitutional, by virtue of a right of direct democracy that all citizens have; and, iv) Environmental Consultation enshrined in article 398 of the CR under the rights of nature and the environment. It is important to emphasize that all the aforementioned consultations have a different mechanism, purpose, source of obligation and subject. Therefore, cannot and should not be applied or understood as if it were the same consultation, as this would go against the constitutional text itself and the rights that are sought to protect.

Disclaimer: This document is informative and does not, and is not intended to, constitute legal advice.