Consultation in Ecuador: Institutional Fragility and Participation in National Extractive Policy

• Author: Diana Vela-Almeida,Nataly Torres
• Published date: 01 May 2021
• Date: 01 May 2021
• DOI: 10.1177/0094582X211008148
• Subject Matter: Articles

https://doi.org/10.1177/0094582X211008148

LATIN AMERICAN PERSPECTIVES, Issue 238, Vol. 48 No. 3, May 2021, 172–191

DOI: 10.1177/0094582X211008148

© 2021 Latin American Perspectives

172

Consultation in Ecuador

Institutional Fragility and Participation in National

Extractive Policy

by

Diana Vela-Almeida and Nataly Torres

Translated by

Mariana Ortega-Breña

An analysis of five lawsuits against the infringement of the rights to participation

illustrates that effective compliance with free prior and informed consultation and popular

consultation on extractive projects in Ecuador is compromised by state institutional fra-

gility. While suits on the rights to participation have served as strategies to halt extractive

projects that lack prior consultation, extractive activities continue to present great risks

to territorial defense and the good-living agenda.

Un análisis de cinco demandas contra la violación del derecho a la participación ilustra

que el cumplimiento efectivo de la consulta previa, libre e informada y la consulta popular

sobre proyectos extractivos en Ecuador se ha visto comprometido por la fragilidad institu-

cional del Estado. Si bien las demandas en torno a los derechos de participación han servido

como estrategias para detener los proyectos extractivos que carecen de consulta previa, las

actividades extractivas siguen presentando grandes riesgos para la defensa territorial y la

agenda del buen vivir.

Keywords: Political participation, Popular consultation, Free prior and informed con-

sultation, Extractivism, Ecuador

Between 2018 and 2019, Ecuador experienced a boom in legal claims moti-

vated by alleged violations of consultation rights involving decisions regarding

extractive projects. These suits resulted in rather favorable judgments for the

plaintiffs and led to the halting, albeit temporarily, of several of these projects.

The boom in consultation-related lawsuits has run parallel to the tumultuous

institutional changes promoted since 2017 by the national government of Lenin

Moreno. Yet, as in other Latin American countries, consultation is located

within a disputed legal field in which citizen participation is highly political

(Schilling-Vacaflor, Flemmer, and Hujber, 2018), and the socio-legal field has

Diana Vela-Almeida is a postdoctoral fellow at the Norwegian University of Science and

Technology. She combines political ecology, ecological economics, and critical geography to study

extractivism, socio-environmental resistance, and social transformation. Nataly Torres is a lec-

turer at the University of Cuenca. She studies rural development policies, peasant economies,

political ecology, and critical geography from a gender and human rights perspective. Mariana

Ortega-Breña is a translator based in Mexico City. The authors are grateful to the people and

organizations who provided valuable information in Ecuador.

1008148LAPXXX10.1177/0094582X211008148Latin American PerspectivesVela-Almeida and Torres / CONSULTATION IN ECUADOR

research-article2021

Vela-Almeida and Torres / CONSULTATION IN ECUADOR 173

become one of the most visible spaces for political tensions involving extractive

projects (Rodríguez-Garavito, 2011: 269). It is therefore important to examine

the possible relationship between the boom in lawsuits and the political context

in which they took place.

The purpose of this study is to analyze the institutionality of participation in

Ecuador’s extractive policy through five lawsuits against infringement of con-

sultation rights. We demonstrate that participation in decisions about extrac-

tive projects is strongly compromised by the political pressures on and the

institutional fragility of the state processes within which the suits are con-

ducted. Our analysis seeks to contribute to the debate on participation in

extractive policy as a fundamental aspect of the national proposal of buen bivir

or good living and to the extensive discussions on the use and control of natu-

ral resources, the practice of democracy, and the guarantee of consultation

rights in Ecuador.

Here we analyze five lawsuits claiming infringement of participation rights

that for the most part resulted in the halting of the related extractive activities.

We selected these cases because they were the first to be tried under Moreno’s

government and the only ones to have followed administrative procedures

with sentences that acknowledged the infringement of the right to popular

consultation or to free prior and informed consultation. Three cases are located

in the Amazon region: the Yasuní and the Waorani of Pastaza cases were both

related to oil activities and the A’i Cofán de Sinangoe case to mining. Two other

cases were in the southern Andes: the Río Blanco–Molleturo and Loma Larga-

Kimsakocha cases both addressed large-scale mining. While new demands for

participation in extractive projects have arisen since then, the judicial processes

have been dismissed. (Claims of violations of consultation rights for hydroelec-

tric projects that mirror similar processes are not included in this study.)1 We

conducted a document analysis of the verdicts in the five selected lawsuits, the

Ecuadorian legislation, press and media reports, and visual materials regard-

ing the cases. Following, we first undertake a theoretical review of political

participation in natural-resource governance and participation tools within

Ecuador’s legal framework. Later, we detail the institutional political context

since 2017 and describe the five lawsuits in this context. We conclude by

addressing institutional risks on the effective guarantee of democracy and ter-

ritorial protection in the face of national extractive policies.

POLITICAL PARTICIPATION IN NATURAL-RESOURCE

GOVERNANCE

Critical studies on natural-resource governance question the effectiveness of

citizen participation in influencing state decisions under the formal institu-

tional framework (Bénit-Gbaffou, 2008; Chess and Purcell, 1999; Coglianese,

1999; Robins, Cornwall, and Von Lieres, 2008; Rodríguez-Garavito, 2011;

Stringer etal., 2006; Vela-Almeida etal., 2021). These studies position participa-

tion mechanisms within the framework of neoliberal governance, which

employs modern state governmentality practices to reproduce hierarchical

power relations (Guzmán-Gallegos, 2017; Jaskoski, 2014; Robins, Cornwall,