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Following a visit to Canada by Ecuadorian President Daniel Noboa and Energy Minister Andrea Arrobo for the 2024 Prospectors & Developers Association of Canada convention (PDAC), the Ecuadorian Ministry of Energy and Mines issued a procedures manual to regulate the right to prior, free and informed consultation.
The document was produced in the absence of an organic law to regulate the issue, which had become a point of concern for foreign investors, particularly in the mining sector.
The manual, which is informed by constitutional standards and international treaties for the implementation of prior, free and informed consultation, was issued by Ministerial Agreement 002 on March 6, 2024.
The guide is considered to be of mandatory application before authorizing the prospecting, exploration, exploitation and commercialization of mineral resources. It also details the processing times for the approval of each of these activities when they are to take place in or around vulnerable communities and Indigenous lands that could be environmentally or culturally affected.
The manual states that prior consultation dialogues may lead to the modification of certain mining projects. However, it also highlights that the results of the prior, free and informed consultation process are not binding, which means that the government could choose to greenlight projects even without the consent of the affected communities.
This last point set off the alarms of environmental groups and on March 8, the Confederation of Indigenous Nationalities of the Ecuadorian Amazon (Cofeniae) issued a communiqué rejecting the manual and saying that it is aimed at ignoring the rights that are protected by what is known as “organic law reservation.” In their view, the manual is an attempt to impose an extractive agenda and bypass democratic controls.
The “organic law reservation” principle states that higher laws are infringed upon when a lower law is issued on a topic that is regulated by the Constitution, as is prior consultation in this case.
“Continuing with its extractivist and neoliberal agenda, President Noboa turns our rights into a mere administrative procedure to facilitate the interests of the mining industry and speed up the approval process of mining concessions,” the statement reads.
The government, on the other hand, defends that the manual was created following previous statements of the Constitutional Court and Article 7 of Convention 169 of the International Labor Organization, which states that no segment of a national population has the right to veto development policies that affect an entire country.
