Ecuador’s top court rules for stronger land rights for Indigenous communities

Indigenous leader and CONAIE President Leonidas Iza and other Indigenous leaders hold a press conference outside the Constitutional Court before filing their lawsuit against Ecuador’s President Guillermo Lasso, October 18th 2021. Photo Mitch Anderson / Amazon Frontlines
Indigenous leader and CONAIE President Leonidas Iza and other Indigenous leaders hold a press conference outside the Constitutional Court before filing their lawsuit against Ecuador’s President Guillermo Lasso, October 18th 2021. Photo Mitch Anderson / Amazon Frontlines

By Kimberley Brown, Mongabay (CC BY-ND 4.0).

QUITO, Ecuador — Indigenous communities across Ecuador celebrated over the weekend after a historic ruling by the country’s highest court declaring that Indigenous communities have more autonomy over their territory and a much stronger say over extractive projects affecting their lands.

“This has been a very big news, very important for the community, for all of us who have been on this path,” said Nixon Andy, from the Indigenous Kofan community of Sinangoe in Ecuador’s northern Amazon rainforest.

Ecuador’s Constitutional Court, the country’s highest court, made the ruling on Feb. 4 after reviewing Sinangoe’s 2018 lawsuit, in which the community sued three government ministries for selling mining concessions on their territory without consultation. Provincial judges at the time ruled in favor of the community and the rights of nature, overturning 52 mining concessions.

But last week, the Constitutional Court took this ruling one step further. After reviewing the evidence and traveling to Sinangoe to hold a historic hearing in Indigenous territory last November, the judges found there was a violation of a number of the community’s rights. This includes their right to be consulted before extractive projects are developed on their land.

As a result, the court ruled that the state has an obligation to ensure that communities undergo a consultation process before any extractive activity is planned on or near their territory. This process must also be “clear and accessible” for the whole community, and be carried out with the purpose of “obtaining consent or reaching an agreement with” the communities, according to the 39-page ruling.

Lina Maria Espinosa, a senior attorney with Amazon Frontlines, the environmental NGO that has been supporting Sinangoe, said the ruling will have an immediate impact on any oil or mining activity in any Indigenous territory in the country, as they must now undergo a consultation process with communities and obtain the community’s consent.  

“The sentence seems to be an advance in the recognition of the rights of Indigenous peoples to consent [to projects affecting their land], which is the ultimate purpose of the consultation,” Espinosa wrote to Mongabay in a text message.

“This goal must be pursued by the state ALWAYS,” she wrote.

Absent and faulty consultation process

According to Ecuador’s Constitution, Indigenous communities must be consulted before any oil, mining or other extractive projects begin on or near their territory. This is upheld internationally, under Convention 169 of the International Labour Organization, which guarantees Indigenous communities access to free, prior and informed consent (FPIC).

Despite these legal mechanisms, prior consultation has been a major point of conflict in the small South American nation. Many Indigenous communities say they were either never consulted before oil or mining projects were developed on their land, such as the community of Sinangoe, or that the process was faulty.

In 2019, Ecuador’s Waorani sued the state for conducting a flawed consultation process with the community in 2012, which they said was based on lies, misinformation, and a lack of translation necessary for elders who don’t speak Spanish. The court ruled in favor of the community, calling the process fraudulent. This ruling put into doubt all other consultations the government had conducted with communities across the Amazon in 2012, a process that led to the division of the rainforest into oil blocks to be sold to international investors. 

The A’i Kofan guardia of Sinangoe finds heavy gold-mining machinery along the Aguarico river in their lands, January 2018, Ecuadorian Amazon. Photo Jerónimo Zúñiga / Amazon Frontlines
The A’i Kofan guardia of Sinangoe finds heavy gold-mining machinery along the Aguarico river in their lands, January 2018, Ecuadorian Amazon. Photo Jerónimo Zúñiga / Amazon Frontlines

Andres Tapia, communications director with Ecuador’s Amazon Indigenous federation, CONFENIAE, said the consultation process had been reduced to an “administrative process.”

“They complied with the requirement to say that [communities] had been consulted, when in reality there was no real relevant consultation process,” Tapia told Mongabay.

The Constitutional Court’s ruling is “historic,” Tapia said, as it “provides a guideline for the right to consent, whereby the community has the final decision on whether or not to allow any extractive activity,” he added.

President Guillermo Lasso has not yet commented on the ruling, as he is currently in China trying to renegotiate his country’s massive debt with Beijing. The ruling could hamper his administration’s plans to double both oil and mining across the country, in order to address Ecuador’s economic crisis that has seen unemployment and poverty spike during the COVID-19 pandemic. Oil and mining account for a combined more than 8% of Ecuador’s GDP.

The Constitutional Court ruling leaves the door open for the government to advance with certain extractive projects without consent from the community in “exceptional circumstances.” But, it stipulates, these initiatives can never “generate disproportionate sacrifice to the collective rights of communities and nature.”

Waorani women in their ancestral territory, Pastaza, Ecuadorian Amazon. Photo Mitch Anderson / Amazon Frontlines
Waorani women in their ancestral territory, Pastaza, Ecuadorian Amazon. Photo Mitch Anderson / Amazon Frontlines

There are 14 Indigenous nations in Ecuador, many of them living in areas rich in oil and mineral deposits. This is particularly true in the Ecuadoran Amazon, where the vast majority of the country’s crude oil reserves are located. At the same time, 70% of the region is also designated Indigenous territory, CONFENIAE said. Scientists also say that an intact Amazon is essential to tackling climate change.

Of the nine Constitutional Court judges hearing the recent case, five ruled in favor of this final ruling, three ruled against, and one abstained.

“The Constitutional Court ratified that the state has to listen to us, so this sets a very important precedent for us, and for the whole Indigenous world, because our voices are not always listened to,” Andy told Mongabay.

Climate change is a justice issue – these 6 charts show why

Photo by Gyan Shahane on Unsplash
Photo by Gyan Shahane on Unsplash.

By, Sonja Klinsky, The Conversation (CC BY-ND 4.0).

Climate change has hit home around the world in 2021 with record heat wavesdroughtswildfires and extreme storms. Often, the people suffering most from the effects of climate change are those who have done the least to cause it.

To reduce climate change and protect those who are most vulnerable, it’s important to understand where emissions come from, who climate change is harming and how both of these patterns intersect with other forms of injustice.

I study the justice dilemmas presented by climate change and climate policies, and have been involved in international climate negotiations as an observer since 2009. Here are six charts that help explain the challenges.

Where emissions come from

One common way to think about a country’s responsibility for climate change is to look at its greenhouse gas emissions per capita, or per person.

For example, China is currently the single largest greenhouse gas emitter by country. However, Saudi Arabia, the United Arab Emirates, the U.S., Australia and Canada all have more than twice the per capita emissions of China. And they each have more than 100 times the per capita emissions of several countries in Africa.

Annual carbon dioxide emissions produced per capita

These differences are very important from a justice perspective.

The majority of greenhouse gas emissions come from the burning of fossil fuels to power industries, stores, homes and schools and produce goods and services, including food, transportation and infrastructure, to name just a few.

As a country’s emissions get higher, they are less tied to essentials for human well-being. Measures of human well-being increase very rapidly with relatively small increases in emissions, but then level off. That means high-emitting countries could reduce their emissions significantly without reducing the well-being of their populations, while lower-income, lower-emitting countries cannot.

How rising emissions intersect with human development

Low-income countries have been arguing for years that, in a context in which global emissions must be dramatically reduced in the next half-century, it would be unjust to require them to cut essential investments in areas that richer countries already have invested in, such as access to electricity, education and basic health care, while those in richer countries continue to enjoy lifestyles with high consumption of energy and consumer goods.

Responsibility for decades of emissions

Looking at current emissions alone misses another important aspect of climate injustice: Greenhouse gas emissions accumulate over time.

Carbon dioxide stays in the atmosphere for hundreds of years, and this accumulation drives climate change. Carbon dioxide traps heat, warming the planet. Some countries and regions bear vastly more responsibility for cumulative emissions than others.

For instance, the United States has emitted over a quarter of all greenhouse gases since the 1750s, while the entire continent of Africa has emitted only about 3%.

Who has contributed most to global CO2 emissions?
Cumulative emissions, 1751-2017, by country. Hannah Ritchie/Our World in Data, CC by the author Hannah Ritchie.

People today continue to benefit from wealth and infrastructure that was generated with energy linked to these emissions decades ago.

Emissions differences within countries

The benefits of fossil fuels have been uneven within countries, as well.

From this perspective, thinking about climate justice requires attention to patterns of wealth. A study by the Stockholm Environment Institute and Oxfam found that 5% of the world’s population was responsible for 36% of the greenhouse gases from 1990-2015. The poorest half of the population was responsible for less than 6%.

Who bears responsibility for carbon emissions growth?
Share of emissions growth by wealth rank. Stockholm Environment Institute and Oxfam, CC BY-ND.

These patterns are directly connected to the lack of access to energy by the poorest half of the world’s population and the high consumption of the wealthiest through things like luxury air travel, second homes and personal transportation. They also show how actions by a few high emitters could reduce a region’s climate impact.

Similarly, over one-third of global carbon emissions from fossil fuels and cement over the past half-century can be directly traced to 20 companies, primarily producers of oil and gas. This draws attention to the need to develop policies capable of holding large corporations accountable for their role in climate change.

20 companies account for one-third of emissions

Who will be harmed by climate change?

Understanding where emissions come from is only part of the climate justice dilemma. Poor countries and regions often also face greater risks from climate change.

Some small island countries, such as Tuvalu and the Marshall Islands, face threats to their very survival as sea levels rise. Parts of sub-Saharan Africa, the Arctic and mountain regions face much more rapid climate change than other parts of the world. In parts of Africa, changes in temperature and precipitation are contributing to food security concerns.

Many of these countries and communities bear little responsibility for the cumulative greenhouse gas emissions driving climate change. At the same time, they have the fewest resources available to protect themselves.

The countries most vulnerable amid climate change

Climate impacts – such as droughts, floods or storms – affect people differently depending on their wealth and access to resources and on their involvement in decision making. Processes that marginalize people, such as racial injustice and colonialism, mean that some people in a country or community are more likely than others to be able to protect themselves from climate harms.

Strategies for a just climate agreement

All of these justice issues are central to negotiations at the United Nations’ Glasgow climate conference and beyond.

Many discussions will focus on who should reduce emissions and how poor countries’ reductions should be supported. Investing in renewable energy, for example, can avoid future emissions, but low-income countries need financial help.

Wealthy countries have been slow to meet their commitment to provide US$100 billion a year to help developing countries adapt to the changing climate, and the costs of adaptation continue to rise.

Some leaders are also asking hard questions about what to do in the face of losses that cannot be undone. How should the global community support people losing their homelands and ways of life?

Some of the most important issues from a justice perspective must be dealt with locally and within countries. Systemic racism cannot be dealt with at the international level. Creating local and national plans for protecting the most vulnerable people, and laws and other tools to hold corporations accountable, will also need to happen within countries.

These discussions will continue long after the Glasgow conference ends.


Sonja Klinsky, Associate Professor and Senior Global Futures Scientist, Arizona State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

This story is part of The Conversation’s coverage of COP26, the Glasgow climate conference, by experts from around the world.

Amid a rising tide of climate news and stories, The Conversation is here to clear the air and make sure you get information you can trust. Read more of The Conversation’s U.S. and global coverage.