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Sarayaku wins case in the Inter-American Court of Human Rights but the struggle for prior consent continues

[Credit : Dolores Ochoa/AP]

By Leah Temper

On 25 July 2012, the Inter-American Court of Human Rights (IACHR) – in the case Sarayaku v. Ecuador – ruled in favor of a Kichwa community’s right to consultation prior to industrial projects on their land. Yet despite celebrations that united hundreds of Sarayaku to celebrate the victory on August 12 with hours of revelry, drumming, singing and dancing, fuelled by chicha, the traditional libation of choice, the implications of the ruling for the community and for hundreds of other indigenous communities across America remain cloudy.

There are two main points to consider. First, Sarayaku has managed to keep oil companies out even without resorting to formal consultations under Convention 169 of ILO or outside it. Second, the IACHR, speaking to governments, recognizes the right to previous consultation. What will be the effects of such consultation? Is previous consent required from indigenous communities?

The historic resistance of the Kichwa community of Sarayaku in Ecuador dates back to 1989 when the company stopped ARCO/Oriente, operator of Block 10, from performing exploration for oil on their territory. Later, along with the Shuar and Achuar communities they prevented oil exploration activities in blocks 23 and 24, in the provinces of Pastaza and Morona Santiago.

In late 2002 and early 2003, faced with an illegal incursion into their territory by the Argentinean company CGC, backed by police and the military, they were forced to physically resist the entry of the oil company. Thanks to the strength and courage of the Kichwa people of Sarayaku, and primarily the role the women played, the company was forced to abandon seismic work and leave the territory. But not before they had placed 1.54 tons of high-grade explosives beneath the earth for seismic trials, damaging local water sources in the process. It was at this point that the community went to court to protect their territory.

Sarayaku’s position has been to reject all oil activities in their territory because they conflict with their own life plans, their worldview and the preservation of their cultural and spiritual identity. The Sarayaku cosmovision is called Kawsay Sacha o Selva Viviente, “Living Rainforest” – and is based on a life in harmonious coexistence with nature. As Franco Viteri, the Sarayaku leader says: “The forest is already “developed”, the forest is life”.

Yet while the human rights court found Ecuador (under the government of the time) guilty of violating the right to prior consultation and threatening the physical and cultural wellbeing of the Sarayaku people by allowing the oil company to enter their territory, it does not assure 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, despite the fact that Ecuador has ratified the convention.

Tellingly, only days before the Sarayaku sentence went public; the Correa administration released Executive Decree 1247 on how consultations for oil or mining projects will be carried out that states that the goal of consultation is participation, not necessarily to achieve consent as stipulated under international law, and affirms that the final decision lies with the superior powers, even if the project is rejected by the majority of the community.

Bidding is set to start on October for a new series of oil exploration, known as the “11th Round,” 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 and primary rainforest. Sarayaku territory is among them, now located within block 74.

Thus amidst the bitter-sweet celebrations, the Kichwa and the CONAIE released a statement denouncing the future plans of Correa’s government and affirming their commitment to resistance:

“We denounce the illegal intromission of the Sub-secretariat of Hydrocarbons in the territory of the Sápara Nation and other nationalities of Pastaza, Napo, and Morona Santiago, with the desire of imposing the illegal Presidential Decree 1247 of July 19th, 2012, which intends to delete consultation, replacing it with a simple procedure of socialization or information, ignoring the sentence of the Inter-American Court in the Sarayaku case.

We declare ourselves in a state of maximum emergency and alert within all indigenous territories in the provinces of Napo, Pastaza, and Morona Santiago where they want to implement the 11th Round oil auction.

We will stand firm and will apply our own norms, statutes, and laws to anyone who tries to invade our territories.”

Hopefully, Correa will realize that the perseverance of the Sarayaku community is not something to be trifled with, as even an oil executive, the spokesman of CGC, Diego Sherriff, did before leaving Ecuador, saying: “We will not enter and nor will any other company, because there would have to be an understanding first with the Sarayaku community to exploit oil. And that is very unlikely as they are radically opposed and one cannot use violence to force them.”

EJOLT’s next video Sarayaku v. Ecuador, about this case, is currently in post-production. You can watch the trailer here:

http://www.youtube.com/watch?v=Vk1SU6D49C4&feature=player_embedded

[Picture Credit : Dolores Ochoa/AP]

 

 

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