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Ecuador: Analysis

Provisions on access to public information

Ecuador has an Organic Law on Transparency and Access to Public Information (LOTAIP), which has been in existence since May 2004. In addition, national forest regulations, specifically the Environmental Management Law and the Law on Forests and Conservation of Natural areas and Wildlife, and the Model of Forest Governance published in 2011, recognise transparency as fundamental to the management of the sector.

The Public Ombudsman (DPE) is the body responsible for promoting and ensuring compliance with LOTAIP. It has developed software to make it easier for public institutions to deliver their annual transparency reports, as set out in article 12 of the law. This system is currently in a trial phase, and is expected to begin functioning at the end of 2012. Further progress recorded within the DPE is that, apart from provincial delegates, they now have regional commissioners, which facilitates contact between public institutions and citizens on a local level.

Annual reports presented by the Ministry of Environment (MAE), the national forest authority, are quite complete. They include information on activities and budgets, and report notable progress in a variety of projects related to the forest sector. The MAE is also working on several processes designed to facilitate access to environmental information. These include:

  • Single System of Environmental Information (SUIA): this system seeks to integrate all the environmental information in a single location, to generate indicators and analysis for the public as a whole. At the moment it is necessary to have a user name and password to enter the system, which to a certain degree restricts access to users.
  • Programme of Environmental and Social Restoration (PRAS): this is a decentralised public body, attached to the MAE, which carries out research and planning, provides advice, and formulates guidelines for the development of socio-environmental management tools nationwide. PRAS is the starting point for a system with a set of indicators and indices making it possible to discover whether there are negative socio-environmental impacts caused by economic activities and makes it possible to act in the most affected areas in an efficient and integrated way.

In addition, the National Institute for Statistics and Censuses (INEC), in coordination with the MAE and the National Secretariat of Planning and Development (SENPLADES), has launched a programme of environmental indicators which shows, amongst other things, the number of companies with an environmental licence, those which have carried out environmental impact studies and which invest in environmental protection, and also the consumption of energy and the management of waste in homes and municipalities.
In short, the progress made in transparency matters in the forest sector demonstrates that there have been praiseworthy efforts made by the DPE, the MAE and other institutions both public and private, which require continuity. It must be taken into account, however, that not all the population, particularly in rural areas, has internet access; although these tools constitute significant progress, other mechanisms need to be sought so that the information can reach forest users and they can access information more easily and participate in the decision-making processes more actively.

Forest land tenure and customary rights

The State guarantees the right of private ownership of forested lands and forests in the private domain, with the respective legal limitations. Ecuadorian legislation also guarantees the participation of indigenous peoples and communities in decision-making on activities to be carried out in their territories and establishes that they will have priority in the use of community lands and forest products.

Many indigenous and poor peasant communities in Ecuador depend on the forests to obtain food, firewood, natural medicines, and ecosystem services. The majority of forest lands are owned privately or communally; however, there are many problems relating to the insecurity of tenure. It is estimated that the 14 indigenous nationalities own around 75% of the country's natural forests, but only 50% of this land has a legalised title deed (1).

The Ministry of Agriculture, Livestock, Aquaculture and Fisheries (MAGAP) has created a land under-secretariat which is designed to take a strategic management role in the formulation, application and implementation of policies, programmes, rules of access, distribution, redistribution, regrouping, legalisation and use of the land. The responsibilities assigned by law to the Land Under-Secretariat prioritise redistribution processes, which includes geo-referencing of the progress made in issuing title deeds. According to one of the directorates of the Land Under-Secretariat, there is a preference for prioritising title deed projects intended for forest purposes; however, this prioritisation is merely informal in nature, as it has not been regulated. There is no land policy document as such, to orient the actions of the competent public institutions, but there are legal provisions to align the way the institutions operate.

At the moment, Ecuador does not have a full register of lands, which makes it difficult to establish the rights of the players related to the resources and resolve disputes over how they should be used. The MAGAP has the National Information and Management System of Rural Land and Technological Infrastructure Programme (SIGTIERRAS), which is designed to establish a system of administration of rural lands nationwide, guaranteeing their tenure and providing basic information for development planning and territorial planning. Maintaining property register maps would allow the creation of policies in tune with the distribution of land on a national level. Complementary to this, a number of maps of the National System of Protected Areas are available on the MAE website. There is also a list of land allocations and maps of protected forests. It should be noted that not all the maps are geo-referenced.

The MAE also has a base line for deforestation, which has allowed the creation of maps of forest coverage in the country for the periods 1990, 2000 and 2008. Comparisons made between these maps have made it possible to determine the types of conversion which have taken place, the rate of deforestation country-wide, and the identification of critical areas of deforestation in the country. This is key information for the generation of public policies to deal with the problems.

It should be pointed out that there are various institutions in the public sector concentrating their efforts on territorial matters; however, despite the progress made, there is no coordination between the organisations working on this subject in terms of the information generated.

At the time of writing the only document available is the final proposal for a preliminary draft of the Land Law and there are doubts about the process for approving this bill. In May 2012, the National Assembly's Food Sovereignty Commission announced that a number of forums would be created involving the interested stakeholders, including collectives, producers and indigenous peoples, amongst others, to incorporate their proposals into the bill. At that time, the government had five projects, two of them presented by indigenous and peasant organisations. These organisations have demanded that this law be approved, believing that it is essential to deal with important questions such as redistribution of lands, issuing title deeds for lands, and the creation of the National Land Fund.

Legal and regulatory framework for the forest sector

An ample legal and regulatory framework, which generally incorporates sustainability principles, applies to the forest sector. This guarantees forest activities such as use and commercialisation, provided certain requirements have been met. At one time, consideration was given to the need for an environmental code (mentioned in the National Joint Plan for REDD+ Ecuador) which would establish a new environmental institutional structure in the country. However, there is no news of the progress made to date, as this has not been made public.

Having a broad regulatory framework does not guarantee transparency in forest sector activities. It is important to point out that the MAE is directing its efforts through the National Forest Directorate to attempt to strengthen compliance with the law and guarantee sustainable management of forests. For example, as part of the strategy for sustainable forest development in Ecuador and the creation of Ministerial Agreement 038 on Regulations for the Forest Governance System, the MAE has established the Forest Regency System as the mechanism through which it appoints forest engineers, freely exercising their profession, to take responsibility for technical assistance activities and monitor and supervise the execution of sustainable management of forest resources. These activities are subject to monitoring, tracking, inspection and assessment by forestry technicians from the National Forest Directorate (DNF). In addition, the MAE has published a list of authorised and unauthorised technicians, as one of its functions is to withdraw temporarily or permanently the functions conferred on them if they fail to carry out their work correctly.
In addition to this, the MAE has begun a campaign for a Register of Forest Industries in the Forest Administration System (SAF). It states that "The aim is to extend the register to the small, medium-sized and large industries managing forest resources nationwide. The campaign is designed to strengthen inspection and monitoring of the origin of the forest resources and the final destination of the timber, and also reduce the level of use of illegal timber, particularly from native forests and conditional forest species that are prohibited" (http://www.ambiente.gob.ec/mae-inicia-registro-de-industrias-forestales-a-nivel-nacional/).

Participation in the governance of the forest sector

The Constitution of Ecuador (2008) and the Law on Citizen Participation guarantee participation in decision-making. The Secretariat for Peoples, Social Movements and Citizen Participation (SPPC) provide advice to ministries for them to create Sectoral Citizen Councils, forums for dialogue and monitoring of public policies of a national and sectoral nature; they constitute a mechanism for monitoring the evolution of ministerial policies. The MAE has embarked on an official process for the formation of these Councils, defining the lines of action and thematic boards in which they will work. However, there is no further information on how these councils are progressing. It should be emphasised that the lack of pre-legislative consultation in the country has held up important processes such as the draft Organic Law on Hydrological Resources, Use and Operation of Water. On this point, the recent Sarayaku case set a precedent for prior consultation processes. This community obtained a ruling in its favour from the Inter-American Court of Human Rights in its case brought against the state of Ecuador for granting an oil production licence without having consulted the affected parties in advance, thereby violating their rights (2). This experience is very timely in a country in which various mining operation projects are already under way in community lands.

Fiscal systems

A tax is applied to forests subject to exploitation, which can be interpreted as "stumpage" tax charged on each cubic metre of timber extracted. It should be emphasised that there is no relation between the amounts collected under this tax and budgetary allocations, as the latter depend on a number of parameters such as institutional planning and budget capacity.
There is also a tax on rural lands, which is imposed on the ownership or possession of lands with an area greater than 25 hectares, but wetlands and natural forests duly classified by the environmental authority are exempt from payment of this tax. Updated information on taxes collected is available on the Internal Revenue Service website.

In Ecuador a variety of incentives are promoted for both conservation and reforestation. As far as conservation is concerned, the Socio Bosque programme aims to conserve a variety of ecosystems and improve the livelihoods for their inhabitants. At the time of this assessment, the programme currently has 1,566 agreements, covering a total of 881,933.25 hectares of forest and benefiting approximately 90,255 people (23,505 families).
With regard to reforestation, up until approximately May 2012, the country operated the Socio Árbol programme, one of the sub-components of which was an incentives programme for reforestation in which the state and the land owner formed a kind of "partnership" for a specific piece of land.

Finally, the President of the Republic has announced a plan to develop the forest sector, with a view to making Ecuador a forestry power, with an initial investment of USD$ 147 million to reforest 20,000 hectares. The President also said that incentives are being planned for reforestation. The principal beneficiaries of these include cooperative associations and communes, local governments and non-profit making organisations. This is a clear sign of progress for the forest sector, given that in the 2011 national investment plan a mere USD$ 7.13 million was invested in the Socio Bosque conservation programme.

Strategic development and extra-sectoral activities

Ecuador has a framework for establishing public policies and development priorities, which is focussed on the analysis of the political, economic, social, technological, cultural and environmental context. It includes regulations for carrying out impact assessments which measure the degree of compliance which must be met by the objectives of a certain action. The framework for drawing up sectoral public policies is based on the National Plan for Well-Being. These policies are complemented by inter-sectoral policies contained in the agendas of the policy councils and the policies of the ministries and state secretariats.

On a practical level, it is important to emphasise that the MAE has made some progress in articulating a national agreement for economic and environmental sustainability by generating, for example, a Manual of Best Environmental Practices which has been extended to 36 ministries, and which has been used to initiate agreements with the Private Sector. It has also formed an inter-institutional committee for the calculation of the Green GDP and the Ecological Footprint, and a tool has been designed to allow companies to calculate and reduce their ecological footprint.

Despite this regulatory framework, in practice it is important that to note that the progress made is more complicated. A clear example of the difficulty in coordinating the activities of a variety of sectors and establishing priorities is the case of crude oil drilling operations in the Amazon region, where there are no clear agreements with the population and where there are claims of lack of prior consultation.

Emerging questions

Article 74 of the constitution of the Republic of Ecuador states that: "Environmental services may not be appropriated; their production, provision, use and operation shall be regulated by the State". Since the constitution was approved in 2008, to the present day, there have been no changes or specific regulations related to this article. The country has experimented with funds for conservation rather than for payment for environmental services, for example the Water Protection Fund (FONAG) is an economic and financial mechanism that uses revenues to co-finance activities, projects and programmes for rehabilitation, conservation and maintenance of the hydrological basins which provide the water supply for the inhabitants of the Metropolitan District of Quito and its areas of influence for their human and production needs. Experiences like this must also contribute to clarifying the relevance or not of making a change to Article 74 of the constitution.

As far as the Reducing Emissions from Deforestation and Forest Degradation (REDD+) mechanism is concerned, the MAE's Under-Secretariat for Climate Change created two participative bodies between 2010 and 2011 with representatives of the government, civil society and communities, indigenous peoples and nationalities: the Committee for Monitoring the UN-REDD Programme and the National Committee of Social and Environmental Standards for REDD+. These bodies were formed with objectives and specific functions to enable them to work on topics related to preparation for the implementation of REDD+ countrywide. Once these bodies completed their work, the MAE has identified the need to have a single citizen participation body, the REDD+ Working Committee. This committee will be made up of eight representatives from civil society and seven representatives from the indigenous communities, peoples and nationalities, Afro-Ecuadorian peoples, the Montubio people and communes. The application process for forming part of the REDD+ Working Committee concluded in August 2012, and work is scheduled until December 2013. However, there is no further information at the moment on the progress made in this process.

(1) Añazco, M., M. Morales, W. Palacios, E. Vega, A. Cuesta (2010). Sector Forestal Ecuatoriano: propuestas para una gestión forestal sostenible. Serie Investigación y Sistematización No. 8 (Ecuadorian Forest Sector: proposal for sustainable forest management. Research and Systemisation Series No. 8). Regional Programme ECOBONA-INTERCOOPERATION. Quito
(2) Inter-American Court of Human Rights. Indigenous Kichwa De Sarayaku People Vs. Ecuador. Judgment of 27 June 2012 (Reparation and Costs)

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