Complaint against Ecuador for having granted a concession for oil exploration and exploitation and allowing an Argentinean company to begin seismic exploration within the Sarayaku people’s territory without having consulted with the Sarayaku or obtaining their consent. Violations of the right to prior consultation, prior consent, community indigenous land, cultural identity, life, and personal integrity.
The Sarayaku people form one of the oldest settlements of the Kichwa People in the province of Pastaza in the Ecuadorian Amazon, and include approximately 1,300 people. In 1996, Ecuador signed a contract with the Empresa Estatal de Petróleos del Ecuador (PETROECUADOR) and a group formed with CGC (Compañía General de Combustibles, a subsidiary of Chevron, in Argentina) and la Petrolera Ecuador San Jorge S.A. for oil exploration and exploitation in Sarayaku lands. Between 2002 and 2003, CGC, with the help of Ecuador’s armed forces, entered Sarayaku lands without consulting them or obtaining their permission, in order to conduct seismic exploration. The company placed almost 1.5 tons of explosives in the forest. This forcible entry also caused the destruction of sacred sites and led to various confrontations between the Sarayaku, the company, and Ecuador’s armed forces. It also culminated in threats against Sarayaku leaders and violence against Sarayaku community members.
The Inter-American Commission granted precautionary measures in favor of the community in 2003, but the Court did not hand down its sentence until June, 2012, after a historic visit by the Court to Sarayaku in April of the same year. The Court found that Ecuador violated the right to prior and informed consultation, community property rights, and the right to cultural identity. The Court also found that Ecuador was responsible for putting in serious risk the right to life and cultural integrity and that Ecuador had violated the rights to a fair trial and judicial protection of the Sarayaku People. The Court developed its prior consultation standards, reiterating its jurisprudence that consultations should be undertaken with good faith, through culturally adequate procedures, with the aim of reaching an agreement, and the consultation should be prior, informed, and culturally appropriate. It established that the consultation is the duty of the State, and cannot be delegated to third parties. Additionally, it affirmed that the State duty to effectively organize governmental apparatus in such a way that the consultation can be effectively accomplished.
The Inter-American Court of Human Rights decided that Ecuador should clear the Sarayaku lands of the explosives. Also, prior to any resource extraction projects, adequate, effective and full consultation of the Sarayaku people should be conducted with regard to environmental impact. The State should also conduct training programs on the rights of indigenous peoples for public employees working with indigenous peoples, and it should organize a public act on the Sarayaku lands, recognizing its responsibility for the violations. Finally, the Court ruled that the State should pay compensation for both material (90,000 US dollars) and non-material damages (1,250,000 US dollars).
Keywords: Pueblo Indígena Kichwa de Sarayaku vs. Ecuador, Right, Access, Justice, Cultural, Indigenous, People, Land, Natural, Resources, Health
Although it is early to assess enforcement, the Ecuadorian government has publically recognized its responsibility for violations. The Legal Secretary of the President, Alexis Mero, has confirmed Ecuador’s intention of complying with the Court’s decision, although he has not specified by when that would happen. Nonetheless, it remains to be seen if Ecuador removes the explosives from Sarayaku’s territory. Additionally, although Ecuador affirms that it will include prior consultation processes in the upcoming XI Round of Oil Concessions, planned for the year 2012, the government published Executive Decree No. 1247 on July 19, 2012, which purports to regulate prior consultation rights. In the words of the Sarayaku and other indigenous organizations from Ecuador, the Decree “attempts to relegate the consultation to a mere formality or process of information or socialization, thus ignoring the Inter-American Court of Human Rights decision in the Sarayaku Case.”
The decision symbolizes indigenous resistance against oil, logging, and mining throughout the Amazon and it celebrates the solidarity among members of the Sarayaku people in fighting for their lands. According to the Sarayaku’s attorney, Mario Melo, the Court’s decision and intense international attention that it received are the result of a strategy of the Sarayaku that could be used with the same success by other indigenous communities that face the imposition of “development” projects in their lands. The Sarayaku were examples of unity, organization, social cohesion and determination. Moreover, from a normative perspective, the decision clearly establishes criteria for prior and informed consultation that will serve for other cases of development-induced violations of indigenous peoples’ rights in Latin America. It also recognizes indigenous communities themselves as subjects of collective rights under international law (Interview with Mario Melo, documents by CEJIL, Amazon Watch, The Economist).
Fundación Panchamama
Center for Justice and International Law – CEJIL