Court convenes landmark hearing in Indigenous territory on land consent issue

  • Ecuador’s Constitutional Court held a hearing in Cofan de Sinangoe indigenous territory, in the northern Amazon rainforest, on November 15, the first time the country’s highest court has agreed to visit indigenous territory for an audience.
  • The hearing is a step in a review of the country’s process for free, prior and informed consultation, and to what extent this process in action respects the rights set out in the Constitution.
  • To analyze this process, the Constitutional Court selected two previous indigenous lawsuits, including Sinangoe’s successful 2018 lawsuit against the government for selling mining concessions in their territory without first consulting the community.
  • More than 300 indigenous leaders have arrived in Sinangoe for the audience, coming from all over the Amazon and other parts of Ecuador to support the consultation review process, which will also have an impact on territorial struggles in across the country.

Early in the morning of November 15, five Constitutional Court judges arrived by canoe to the Cofan indigenous community of Sinangoe, in the Amazon rainforest of northern Ecuador, wearing rubber boots and loose clothing to withstand the storm. intense heat of the jungle. The visit marked the first time in the country’s history that judges from the highest court held a hearing in indigenous territory, with the aim of making the justice system more accessible to those who cannot normally make it to the courtrooms. audience of cities.

“I’m very excited because it’s something historic, I’ve never heard of it [judges] attend a hearing in a community, ”Alexandra Narvaez, a resident of Sinangoe and president of the Shamecco women’s association, told Mongabay before the hearing began.

In previous hearings and other proceedings in the city, “only 10 people go, the whole community cannot go. So this audience, we’re all going to talk, ”she said. “Our opinion is important.

Sandra Yanis has her face makeup done by Elsi, both Kichwa natives of Pastaza, on the morning of the Constitutional Court hearing in Sinangoe, November 15, 2021. Image courtesy of Kimberley Brown.
People wait across the river to be picked up and brought to the community of Sinangoe on the morning of the Constitutional Court hearing. Image courtesy of Kimberley Brown.

The hearing itself was part of the tribunal’s process to examine Ecuador’s Free, Prior, and Informed Consultation Process, or FPIC, using Sinangoe’s 2018 trial as a basis for analysis, when the community sued. the government for selling mining claims on their land without consulting the community first, and won.

According to Ecuador’s constitution, indigenous and tribal communities are entitled to the FPIC process before any extractive or infrastructure activity is planned on or near their lands. In examining Sinangoe’s case, the Constitutional Court will assess whether the consultation process, as it operates today, respects these rights. If the court decides not, it could set new standards for consultation, which could grant indigenous communities greater autonomy over their own lands.

“It is not only good for us, but also for other communities and can guide them to defend their territory, to defend the decision they take,” said Nixon Andy, former coordinator of Cofan. Guardian, or a vigilante group, adding that “if indigenous communities say ‘no mining’, it means there is no mining.

Over 300 Indigenous leaders traveled to Sinangoe to show their support for the hearing review and consultation process, and quickly filled the normally calm and peaceful community. People have traveled from all over the Amazon and other parts of the country where territorial disputes are rife with mining, oil and other infrastructure projects.

Oswaldo Nenquimo, indigenous Waorani leader from Pastaza province, explains that their group traveled two days to attend the hearing: one day by canoe to reach the town of Puyo, further south, in the jungle, and another day. by bus. The Waorani community won their own landmark case against the government in 2019 in a consultative process to sell their land for oil, which the community called fraudulent, and the judges accepted .

“We have come almost two days to be a part of this, showcase our strength and wisdom and support this process of Sinangoe struggle, and tie our thoughts to this audience,” Nenquimo told Mongabay. The Constitutional Court has also retained the Waorani case as part of its review, but has not yet set a date for the hearing.

The Cofan Taita, or Shaman, grates the yoko vine to remove the bark, in order to mix it with water so that everyone can drink it. The bitter drink is a quick morning energizer. Image courtesy of Kimberley Brown.
The five judges of the Constitutional Court are guided by the guard of Cofan to walk the corridor of the people who welcome them in Sinangoe. Image courtesy of Kimberley Brown.

For the community and their visitors, the day started at 4 a.m., not with a coffee, but rather with a traditional Cofan drink called yoko, derived from the bark of a special vine of the same name that is only found in the Amazon. Mixed with water, it provides a burst of energy. It is part of the daily routine of the Guardia de Cofan.

When the five judges arrived around 9 a.m., they were greeted by the community with a traditional Kichwa fire ceremony and clean-up by a Cofan. taita, or spiritual healer, to eliminate bad energies.

The hearing lasted nearly four hours, during which the six of the nine Constitutional Court judges (five of whom were present and a sixth who appeared via Zoom) heard testimony from 10 people from the Cofan community, as well as the other departments involved in the initial trial. The Ministry of Energy and Non-Renewable Natural Resources were the only ones with representatives also present in the community, while the Ministry of Environment, Water and Ecological Transition, the Ministry of Energy and Non-Renewable Natural Resources and the Attorney General’s Office also listened via Zoom.

The judges then heard testimony from other communities about their own territorial disputes, resulting, they say, from a failed FPIC process.

Representatives from the Department of Energy and Non-Renewable Natural Resources declined to comment directly on Mongabay on the process. But during the hearing, one of their lawyers, Eduardo Andrés Chang Dávila, told judges that the Constitutional Court must also protect the rights of the state to manage its strategic sectors, such as oil and mining. , which is also described in the constitution, qualifying these sectors as “fundamental pillar of the country’s development”.

Constitutional Court judges stand around the sacred circle, after lighting the candles inside, with indigenous leaders as part of the fire ritual to remove bad energies. Image courtesy of Kimberley Brown.
Three members of the Cofan community give their 5-minute statement to the judges, explaining the dangers of mining along the riverbed that kills medicinal plants used by the community. Image courtesy of Kimberley Brown.
Indigenous Shuar children from the southern Amazon province of Morona Santiago sit at the back of the platform awaiting the hearing. Image courtesy of Kimberley Brown.

The two oil and mining together represent more than 8% of Ecuador’s GDP. Earlier this year, President Guillermo Lasso called for the rapid expansion of both sectors (like Decrees 95 and 151), to deal with the country’s economic hardships which have seen unemployment and poverty rise during the pandemic.

Lina Maria Espinosa, senior lawyer at Amazon Frontlines, the environmental NGO that has supported the Sinangoe community in their legal process, said the acceleration of these industries “clearly puts pressure on indigenous territories.”

She described the ongoing hearing with the Constitutional Court as a “historic opportunity” for the court to listen to communities and properly interpret their rights.

“The challenge for the court is to make this qualitative leap from consultation to consent,” she told Mongabay, calling the current FPIC process an empty formality. “The only way to protect and guarantee the lives of peoples and their territories is with consent. “

The Constitutional Court will now consider the evidence, but it is unclear when a ruling can be expected.

Indigenous Shuar leader Josefina Tunki is on the Constitutional Court’s list after the hearing. Image courtesy of Kimberley Brown.

Banner image: Waorani women are seen lining up with some 300 other visitors, forming a hallway to greet Constitutional Court judges on the morning of the November 15, 2021 hearing. Image courtesy of Kimberley Brown.

Amazon Conservation, Amazonian People, Environment, Environmental Law, Environmental Policy, Featured, Governance, Indigenous Communities, Indigenous Peoples, Indigenous Reserves, Indigenous Rights, Land Rights, Law, Law Enforcement, Conservation of tropical forest

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