A NOT SO UNCOMMON VICTORY: Inadequate Consultation trumps resource rights

May 30, 2019

 

Plaintiffs celebrate a court victory against an oil block concession in Ecuador (source phys.org)

While in Ecuador last month to document a client project's community engagement process, a provincial court ruled against the government's right to auction oil concession block 22 in the Ecuadorian Amazon. The court denial was based on the finding that the consultation process undertaken by the government of Ecuador with Waoroni communities did not constitute "Free, Prior, and Informed Consent".

 

Indigenous rights challenges to projects are common across the Americas, often these are launched against against a specific project development, but increasingly they are going against the granting of concession rights by governments. However, unlike the referenced New York Times article, the success of these challenges is anything but uncommon. Reason being? Going through the motions of consultation is easy. Demonstrating it meets international standards (which most nations have signed up to), is anything but.

 

Why was "Free Prior Informed Consent" deemed not achieved in this case? Published findings in the Ecuador ruling cited; "box-ticking" consultation with a lack of serious dialogue; lack of proper court-approved interpretors, short visits to communities, and consultation sessions held far from the Waoroni villages amongst other reasons. Other recurring ways project proponents have failed include not taking into account the indigenous people's mechanisms for decision-making or their representative organizations.

 

Continued lack of clarity in many jurisdictions (Mexico and Ecuador have yet to publish prior consultation protocols for instance) for how countries can comply, means that the only way to reduce risk is to go clearly beyond on all aspects of the ILO 169 definition. This must be done and requires considerable time and resources, but even then there is no guarantee. The strongest way to assure a successful formal consultation process is the relationship you develop with communities and their formal representatives prior. Start early, this can easily take a year or two. You need to position yourself as and become considered a trusted partner in development - and document, document, document!

 

For further details on achieving FPIC, the UN FAO published a guide http://www.fao.org/3/a-i6190e.pdf . Or feel free to reach out to me, I'm always glad to share my experiences.

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