The Constitution of Ecuador 2008 guarantees free, prior informed consultation. In addition, Convention 169 of the ILO on indigenous and tribal peoples sets out parameters for the process of consultation of affected peoples. However, despite the fact the indigenous communities and peoples have the right to be consulted, their prior informed consent is not required (it is not binding). The fact that this right has been incorporated into the Constitution does not mean that the regulation is genuinely enforced, and in fact the implementation of public or private projects in indigenous areas in general has been a source of conflicts. The indigenous peoples have requested that their consent be made compulsory, which involves the community agreeing with actions being taken within its territory.
According to Ecuadorian law, the existing regulatory framework has not developed specific mechanisms to delineate the procedures for the implementation of free, prior and informed consent (FPIC) (Zambrano S, 2010 - see http://www.grupofaro.org / publicaciones.php? id = 80). The FPIC process only relies on the presence of some leaders, without this necessarily meaning that the rest of the community is informed. In addition, it is not clear how to proceed in the case of disagreements or to what extent the views expressed by indigenous peoples are considered. Recently in Quinsacocha (Azuay, Ecuador), two communities that will be affected by mining unilaterally organized a consultation process based on the provisions of the Citizen Participation Act (2010) (see http://www.noalamina.org/mineria-latinoamerica/mineria-ecuador/poblacion-de-quimsacocha-rechazo-la-mineria). This is an example of the weaknesses in the legislation, which does not provide institutional mechanisms to resolve conflicts that eventuate between the parties.
|Title||Constitution of the Republic of Ecuador 2008|
|Date||20 October 2008|