By Kevin Koenig in Amazon Watch on February 15, 2022.
Ecuador’s plans to greatly expand oil and mining extraction in the Amazon hit a major snag last week as the nation’s Constitutional Court handed down multiple decisions that affirm Indigenous rights and limit extraction.
In a major victory for Indigenous rights in Ecuador and beyond, the court set a new legal precedent in guaranteeing the right to consent for Indigenous peoples over extractive projects on their lands. While the country’s constitution enshrines the right to Free, Prior, and Informed Consultation, Ecuador currently has no law regulating the consultation process. The landmark decision clarifies that the outcome of any consultation process with Indigenous peoples must be consent before a project may proceed.
The case was brought by the A’i Kofan community of Sinangoe who challenged gold mining activity underway on their territory without their approval. The ruling gives all 14 Indigenous nationalities in the Ecuadorian Amazon the right to veto any project slated for their territories. More importantly, this decision recognizes Indigenous communities’ right to life and culture. It assures their right to live in their territories free of resource extraction and the threats to life that come with it.
Amazon Watch, through the coalition of Ecuador’s Alliance for Human Rights, supported the case – brought forth and led by Amazon Frontlines – with two amicus briefs and communications support. We welcome these victories for Indigenous communities, adding to a long list of wins for their right to self-determination and justice against extractive industries. Ecuador has had a toxic legacy stemming from decades of drill and dump practices from oil companies, and the impunity that the industry has enjoyed. This February 14th marked the 11th anniversary of the judgment that found Chevron liable for $9.5 billion in damages for contamination and rights violations, which the company still refuses to pay, leaving communities to deal with its toxic legacy for generations. That ruling has remained a major blow to the oil industry, and these recent wins show that Ecuadorian law is recognizing the impacts of Amazon crude and its responsibility to guarantee the rights of Indigenous communities.
Before the Sinangoe decision, Indigenous peoples had no meaningful mechanism to exert their right to consultation, much less consent. For decades, projects have been imposed on communities against their wishes and in violation of their rights as defined in the United Nations Declaration on the Rights of Indigenous Peoples.
In the era of ‘corporate responsibility’ and commitments to environmental, social, and governance guidelines (ESG), the government was eager to tout stakeholder buy-in and social license to operate. It conducted sham consultations, often “consulting” people not affected, in a language not native to them, or merely showing a PowerPoint presentation to communities and pointing to the attendance sign-in sheet as proof of agreement for the project. But with the Sinangoe decision now the law of the land, it should put an end to government efforts to manufacture consent for extraction projects. Now, communities have a vote on any proposed project and if rejected, it can’t move forward.
It’s a sea change in the balance of power for Indigenous peoples, who hold title to almost 70% of the country’s Amazon, where opposition to extraction is widespread. Though the ruling did carve out exceptions in rare instances, the verdict clarifies that “under no circumstances can a project be carried out that generates excessive sacrifices to the collective rights of communities and nature.”
Additionally, in a reprieve for Indigenous peoples living in isolation inside of Ecuador’s Yasuní National Park, the country’s top court declared Decree 751 unconstitutional, permanently prohibiting drilling in the park’s buffer zone. In a 6-to-1 vote, the court rejected the decree, which was issued by former President Lenin Moreno in 2019. It permitted drilling in the buffer zone that surrounds a “no-go zone” protected area inside Yasuní National Park established for the nomadic Tagaeri-Taromenane, two Indigenous peoples living in voluntary isolation.
Together, these decisions are a major setback for the oil industry that has already built a road to the edge of the buffer zone. Specifically, the ruling against Decree 751 effectively prohibits the construction of seven planned oil platforms, an estimated 250 wells, and the development of roughly 80% of the largest oil field in Yasuni. It also underscores that consent from Ecuador’s last Indigenous peoples under isolation can not be obtained without violating their right to live in voluntary isolation, and therefore drilling cannot occur here.
The decree stemmed from a 2018 referendum in which voters signaled support for the expansion of the protected area. But in a betrayal to voters, Moreno redrew the zone’s boundaries, which increased its size but green-lighted drilling. The decision in the case brought by the grassroots collective Yasunidos was based on procedural issues rather than the threat drilling poses to the Tagaeri-Taromenane. But Ecuador’s constitution has specific protections for both peoples, which factored into the decision.
A third decision from the court gave residents of Quito and the surrounding area the right to a referendum on mining activity in the Andean Choco region, a recognized sensitive region. A “no” vote would thwart several proposed projects and provide momentum to a growing movement that won similar restrictions in provinces in the southern Andes.
This follows a major decision from December when the Constitutional Court revoked the environmental permit for the Rio Magdalena mining project in the Los Cedros cloud forest northwest of Quito, a biodiversity hotspot home to spectacled bears, endangered frogs, dozens of rare orchid species, and the brown-headed spider monkey. That ruling found that the project violated the rights of nature, as well as the right of neighboring communities to be consulted and participate.
The decisions came as crude oil continued to contaminate the Coca River and surrounding forest stemming from a major spill on January 28. The rupture of the OCP heavy crude pipeline stained Ecuador’s rainforests black and sent a cascade of crude sludge gushing down to the river below. It was the second major spill in the last two years and has once again contaminated the water source for tens of thousands of Kichwa Indigenous peoples that call the river banks and lands in the watershed of the Coca River home. Communities are reporting contamination downriver, entering lagoons in protected areas, and reaching Yasuni National Park along the border with Peru.
After days of silence, government agencies finally released spill data, reporting that 6,300 barrels of crude polluted the Coca river. But this latest oil disaster was both preventable and predictable. Ecuador’s oil infrastructure is built to spill. Reverse erosion from the upstream Coca Coda hydroelectric dam complex has plagued both national pipelines which snake along the curves of the river and bring crude from Amazon oil fields, up over the Andes mountain range, and down to Pacific ports where it is put on tankers destined for California. The pipelines cross 94 seismic fault lines along the way and have been rerouted close to 30 times. Despite warnings from geologists that a dam would produce extreme erosion and threaten pipeline integrity, its construction continued recklessly. Between 2015 and 2021, there were 899 officially registered oil spills. In 2020, the average was almost two per week, though many spills go unreported or remain unregistered. Petroecuador alone was responsible for 130 over the last three years.
Neither the spill nor the legal cases were mentioned at Ecuador’s Annual Conference for Oil and Energy held in Quito last week, where the government affirmed its ambitious plans to double oil production to 1 million barrels per day, primarily by opening new wells in Yasuní National Park and offering new oil concessions on Indigenous territories in Ecuador’s roadless southern rainforest. Outside the event, leaders of the Confederation of Indigenous Nationalities of the Ecuadorian Amazon (CONFENIAE), Confederation of Indigenous Nationalities of Ecuador (CONAIE), and the Coordinating Body of Indigenous Organizations of the Amazon Basin (COICA) rejected any plan to expand extraction and auction of new blocks.
These legal victories and the devastation wrought by ongoing oil spills may be the “death knell” to the government’s plans to double oil extraction and increase mining. Northern actors complicit in the corruption, pollution, and human rights violations entangled in Amazon crude are taking note. Banks responsible for 80% of the trade of crude sourced from the Ecuadorian Amazon have already pulled their financing based on Indigenous rights violations, spills, and climate impacts of drilling for fossil fuels incompatible with the Paris agreement underneath standing forests essential for climate stability.
Our groundbreaking report together with Stand.earth, recently revealed that California is the number one destination for crude sourced from Ecuador. The state’s consumption of Amazon crude is a driving force behind Ecuador’s oil expansion plans into Yasuni and beyond, and it also shares responsibility for the impact of chronic contamination from crude destined for its refineries.
Our next steps in solidarity with Indigenous communities celebrating these major wins are to call on those banks to adopt a more significant Amazon exclusion policy and to ramp up pressure on Governor Gavin Newsom to walk the talk of his climate promises by reducing the use of Amazon crude, domestic production, and a rapid reduction of crude refining statewide. It would be wise for California to take swift and decisive action to end its consumption of Amazon crude because these major victories will hopefully make it much more difficult to obtain.
See the original post in Amazon Watch.
Photo credit: Photo by Kyla Flanagan on Unsplash