A Landmark Lawsuit Sets New Precedent for Indigenous Land Rights in the Amazon

The Waorani community in Ecuador won a historic ruling that may create a new guide for other indigenous communities looking to protect their lands from oil interests.
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Waorani indigenous people march toward the provincial court to demand the non-exploitation of oil in their territory, in Puyo, Ecuador, on April 11th, 2019.

Waorani indigenous people march toward the provincial court to demand the non-exploitation of oil in their territory, in Puyo, Ecuador, on April 11th, 2019.

The indigenous Waorani community in Ecuador won a historic lawsuit against the government late last month when a three-judge panel ruled that a consultation process conducted with the community in 2012 was inadequate and violated the community's rights.

The ruling immediately suspends any possibility of selling the community's territory for the sake of oil extraction. The lawsuit represents 16 Waorani communities that live deep in Ecuador's southern Amazon rainforest, in an area that has long been part of the government's oil development plans.

"Today, we have protected our forest from oil drilling, we have protected our water from contamination, we have protected our children from sickness," said Oswando Nenquimo, spokesperson for the Waorani of the province of Pastaza, in an April 26th press release.

But April's ruling is more than just a win for the Waorani. It also sets an important precedent for other indigenous communities in the Amazon fighting against extraction activities in their territory, and opens the door to reshape the country's controversial free, prior, and informed consent process.

The Trial Against Free, Prior, and Informed Consent

The Waorani community co-filed the lawsuit earlier this year with the Ecuadoran Human Rights Ombudsman against three government bodies—the Ministry of Energy and Non-Renewable Natural Resources, the Secretary of Hydrocarbons, and the Ministry of Environment—for conducting a faulty consultation process with the communities in 2012.

The state then proceeded to divide the southern Amazon into 13 blocks and put them up for sale in an international oil auction, called the Southeast Oil round. This includes Block 22, which overlaps almost entirely with Waorani territory. Last year, the government significantly reduced the auction down to two blocks and removed Block 22; but it emphasized that the region is not exempt from future drilling plans.

According to both national and international law, governments must undergo a free, prior, and informed consent process with communities before undergoing extraction activities on or near their territory.

During the three-day trial in April, the Waorani presented a wide range of evidence to show how the consultation process undertaken in 2012 was deceitful and not in accordance with legal standards in many ways. The evidence they presented included government documents, testimonies from experts, as well as witnesses from the community.

There were more than 50 testimonies by Waorani community members who said officials used the consultation process to promote the economic benefits of oil, but never explained the repercussions or environmental impacts of oil extraction in their territories. Others said they simply did not understand the consultation process or its implications, either from lack of translation into Waorani or a general lack of information.

The ruling went on for almost six hours, as the judges went through each piece of evidence and explained how the consultation process in 2012 was inadequate, not conducted in good faith, and did not take into account the Waorani's cultural differences and communication needs. It also said the consultation process violated the community's right to self-determination.

The regional court then ordered the state to undergo capacity training and apply internationally approved standards to all consultation processes, and redo the 2012 consultation process before trying to sell Waorani territory.

"We are really satisfied with the court's decision, especially because the court recognized that what happened in 2012, and what the state calls a ‘consultation,' never was," says Lina Maria Espinosa, the community's lawyer with the local non-governmental organization Amazon Frontlines.

She adds that her side will immediately begin demanding that the state comply with the judges' ruling before any extraction activities in Waorani territory can advance.

Apart from the immediate victory for the Waorani community, this ruling effectively stops drilling plans in the territory of the seven other nationalities who were consulted during the 2012 process, before the Amazon was divided into oil blocks, Espinosa says. These communities live in the other 12 oil blocks.

This temporarily saves almost 12,500 square miles of Amazon rainforest and indigenous land from oil drilling in the southeast of the Ecuador. Experts say drilling in the rainforest could lead to contamination of the rainforest due to oil leaks, spills, and waste dumping. The creation of roads to access the remote area could also pave the way for other industries, such as agriculture, and lead to massive deforestation.

Historic Opportunity

One of the more important outcomes was the tribunal's decision that the 2012 consultation process also violated the community's right to self-determination. Relating these two issues is "very important," says Espinosa, as it could override a controversial decree in the Ecuadoran constitution.

Under Decree 1247, officials do not have to reach a consensus with communities when they consult with them about extraction projects on their territory. This means the government is allowed to continue with these projects on indigenous land even if those communities say no, thus limiting their territorial autonomy.

But April's ruling reinstates the indigenous right to self-determination. They can now say no to extraction projects, and have stronger legal backing to exercise this autonomy.

"Relating consultation with self-determination becomes a powerful lock, because now it has to be understood that the Waorani have a right to governance over their territory. And with that governance, this capacity to own and make decisions on their territory, the state capacity is removed," Espinosa says.

The ruling also presents an opportunity to reshape the free, prior, and informed consent process in and of itself, which has long been problematic for communities across Ecuador.

A Powerful Ally

Last year, Victoria Tauli-Corpuz, the United Nations special rapporteur on the rights of indigenous peoples, denounced Ecuador's consultation process after visiting the country and speaking with various indigenous groups there. In her end-of-mission statement, she called for the consultation process to be "reviewed and amended or appealed."

"Communities here are not being consulted in any adequate way," she told Mongabay in an interview in December. The consultation process often divides these communities, she added, "and in the end the government will do anything they want anyway ... that's one of the weaknesses of the constitution."

The regional court judiciary acknowledged in the ruling for the first time that the consultation process in 2012 was inadequate. By defending its actions, the court said the state had already shown it doesn't know how that process should be done, Espinosa says.

"This is a historic opportunity," Espinosa says. "Let's sit down with the state, as well as indigenous peoples and nationalities and finally build that standard of prior, free, and informed consultation for Ecuador, which will serve the Waoranis and any other people and nationality."

Espinosa emphasizes the importance of taking into account the cultural differences between communities, and says it's important to avoid creating a homogenous standard to apply to all nationalities.

The Ministry of Energy and Non-Renewable Natural Resources did not respond to Mongabay's request for comment by the time of publication, but it announced via social media that it will file for appeal with the Pastaza provincial court.

Oil has always been an important part of Ecuador's economy. According to the World Bank, it contributed to much of the country's growth from 2006 to 2014, while the income derived from oil and invested in education, health care, and social programs helped lower the poverty rate by 15 percent.

But this economy has also come at a cost. Communities across the Amazon have protested against extraction activities in their territories, saying it causes contamination and community displacements.

This is the second historic victory for Ecuador's Amazon rainforest over the past year. Last year, the indigenous Kofan community from the north of Ecuador won a landmark case against the Ecuadoran government for allowing mining operations to continue in their territory that had not undergone a consultation process. Judges in both the regional court and the provincial court of Sucumbíos ruled in favor of the community, and 52 mining concessions along the Aguarico River were canceled.

This story originally appeared at the website of global conservation news service Mongabay.com. Get updates on their stories delivered to your inbox, or follow @Mongabay on Facebook, Instagram, or Twitter.

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