Cristina Gualinga remembers when she first saw helicopters spiral above the canopy of the Amazon. It was in the late 80’s, and the US-owned oil company ARCO/Oriente was attempting to operate in the ancestral territory of the Kichwa Indigenous community of Sarayaku, in the south central region of the Ecuadorean Amazon.
Photo by Lauren Johnson
Gualinga and other leaders of the community (that also goes by the name Sarayaku) had heard stories about Texaco’s work in the Northern Amazon. They had heard about the bellowing refineries that spit fire, the poisoned water sources, and the stubborn stench of oil that clung to the once fragrant air. So they said, “not in our communities!”
Through non-violent protests and the help of allies, the Sarayaku people succeeded in expelling ARCO/Oriente from its territory in 1989. But only since last week have the 1,200 residents of Sarayaku been really able to breathe a sigh of relief into the pristine Amazonian air.
On July 25, the Inter-American Court of Human Rights ruled in favor of the Sarayaku in a decade-long legal showdown called Sarayaku vs. Ecuador. Sarayaku took legal action in the early 2000’s when another foreign oil company — the Argentine Compania General de Combustibles in partnership with American ConocoPhillips/Burlington Resources — entered Sarayaku and placed 1.54 tons of high grade explosives beneath the earth for seismic trials, damaging local water sources in the process.
The Ecuadorean government had allowed the oil company to enter Sarayaku without consulting any of it’s residents first, therefore violating the community’s right to a free, prior, and informed consultation and consent-making process — a right that is recognized in the UN Declaration of Human Rights and the International Labor Organization Convention 169, which Ecuador has ratified.
Last week the human rights court found the Ecuadorean government guilty of violating the right to prior consultation and for threatening the physical and cultural wellbeing of the Sarayaku people.
“The ruling sends a clear message to the government that they will not be able to trample over these communities and Indigenous rights,” said Kevin Koenig, Ecuador Program Coordinator of Amazon Watch, a US-based nonprofit that has supported Sarayaku for the past 10 years of it’s legal battle. “Sarayaku has not only waged an effective legal battle, but a very savvy media campaign as well. They have put the eyes of the world on this corner of the rainforest, and the similar struggles of many other front line communities facing oil extraction. That itself is a very important advance for justice and indigenous rights.” he said.
This ruling certainly offers hope to the Indigenous people fighting various projects in the Amazon that threaten their land and way of life, such as the Belo Monte dam in Brazil that will destroy about 62 miles of the Xingu River and the proposed highway that will cut through the Isiboro Secure Indigenous Territory and National Park (TIPNIS) in Bolivia.
The court ruling states that the Ecuadorean government must consult with Sarayaku residents before conducting any more activities within the community’s ancestral territory. Furthermore, it must overhaul its consultation process in general when working with Indigenous communities. The government is also responsible for paying reparations for the damage caused by the initial exploration processes. The state will also be responsible for removing the explosives from beneath the earth.
Alexis Mera, legal secretary to President Rafael Correa, said that the government apologizes for the harm done to Sarayaku, and has agreed to pay $1.4 million in reparations. But he has also been quick to point out that the oil company entered Ecuador when it was under a prior administration.
The court’s sentence is legally binding in Ecuador, said Dr. Mario Melo, attorney for Sarayaku from the Quito-based Fundación Pachamama. In addition to safeguarding human rights in Ecuador, it would also set “a mandatory precedent” for other members of the Organization of American States, he said. “The court has been very clear and reiterative regarding the consultation process; they have repeatedly conveyed that consultations should be conducted in good faith following appropriate cultural procedures and must aim to reach an agreement,” Melo said. He explained that the point of a consultation is not for the community to listen passively, but rather use it to reach a consensus.
Koenig explained that legally, the courts could not make a ruling based on the need for consent, because the Compania General de Combustibles had entered Sarayaku without even conducting a consultation process. Therefore, the violation of the right to consultation became the key issue at hand.
Coincidently, just days before the Sarayaku sentence went public; the Correa administration released a mandate, Executive Decree 1247, on how consultations for oil projects will be carried out. “I hope in the coming days and weeks a legal analysis will be issued comparing and contrasting the procedures outlined in the decree with those mandated by the court’s sentence,” said Andrew Miller, advocacy coordinator for Amazon Watch.
Miller pointed out that the decree states that the goal of consultation is participation, not necessarily to achieve consent as stipulated under international law. The decree refers to article 83 of Ecuador’s Organic Law of Citizen Participation, which suggests that the “superior administrators will decide the final decision” even if the project is rejected by the majority of the community, he said.
Sarayaku President Jose Gualinga said that the court ruling was a “victory,” but he emphasized that his community will “continue the fight to ensure that the government follows through with its obligations as well as respects the human rights of all Indigenous peoples of Ecuador.”
Gualinga is right to be cautious. Currently, a new series of oil exploration, known as the “11th Round,” is being developed in the central and southern Amazon that offers oil companies the chance to bid for explorations in 21 oil blocks that could potentially affect about 8,220,000 acres of ancestral Indigenous lands.
Though leaders from the Indigenous Achuar, Kichwa, Shiwiar, Shuar, Waorani and Sápara nationalities have rejected these plans, Eucador legal secretary Mera said that the state has no intention of calling off the 11th Round. Bidding is set to begin in October. Which is why the Confederation of Indigenous Nationalities of the Ecuadorean Amazon, CONFENIAE, has announced that it is in “a state of permanent alert” despite the favorable Sarayaku sentence.
“We would like say to the national government that it is once again violating the rights of Indigenous peoples because without having carried out the due processes of consultation and consent,” stated the CONFENIAE in an open letter on July 30. “We will be vigilant and active to demand the compliance with the sentence of the Inter-American Court in the Sarayaku case,” the letter stated.
The 11th Round oil auction “is going to be a flashpoint in terms of the reality of how the government deals with steadfast Indigenous opposition to oil activities,” Miller said
For the moment, though, the residents of Sarayaku and Indigenous rights advocates are celebrating their court victory. “The sentence indicates that the consultation processes with the communities must begin before contracts with the companies are signed,” Koenig said.
“When I heard about the court’s decision, I cried,” said Cristina Gualinga. “I thought, ‘After fighting for so long, after 30 years of invasions, the companies are finally going to leave us alone’.”
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