The Constitutional Court (CC) issued judgment number 22-18-IN/21 of September 8, 2021 by which it partially accepts the public action of unconstitutionality proposed against several norms of the Organic Code of the Environment (COAM) and its regulations, which are related to mangroves, monocultures, the rights of nature and the regulation of the right to prior consultation and environmental consultation.

Regarding prior consultation and environmental consultation, the Court ruled as follows:

1. Article 184 of the COAM, interpreted in isolation, is contrary to the Constitution and international human rights instruments.

• It conditions the constitutionality of Article 184[1] of the COAM provided that it is applied in accordance with the provisions of the Judgment, the Constitution regarding environmental consultation, the jurisprudence of the Court including those judgements on prior consultation in what is applicable, and the Escazú Agreement of 2018.[2]

• It clarifies that Article 184[3] of the COAM, which deals with the process of citizen participation for environmental consultation, does not apply or replace prior consultation for indigenous communes, communities, peoples, and nationalities.[4]

• Declares articles 462 and 463[5] of the COAM regulations unconstitutional. The first because “its purpose is to regulate the right to prior consultation, which is contrary to the principle of reservation of organic law and the provisions of the jurisprudence of this Court.” The second, because the environmental consultation is not limited to collecting opinions and observations but an assessment of the opinion of the community. Therefore, the Court determined that they are contrary to articles 57 (7) and 398 of the Constitution, respectively, and the judgment of the case Sarayaku v. Ecuador.

• Orders that the Presidency of the Republic to adapt the regulations to the COAM in accordance with what is indicated in the Judgment.

Regarding prior consultation, the Court indicated the following:

1. That this is a right of “indigenous peoples on legislative or administrative measures that may affect them directly”, citing articles 18 and 19 of the United Nations Declaration of Indigenous Peoples.

• That in the case Sarayaku  v. Ecuador, the Inter-American Court of Human Rights (hereinafter the “IACHR Court“) established that this must be carried out  “in all phases of planning and development of a project that may affect the territory on which an indigenous community is based.”

• Citing this case, the Court upholds the “essential elements” of prior consultation:  “(a) the prior nature of the consultation; (b) good faith and the purpose of reaching an agreement; (c) appropriate and accessible consultation; d) the environmental impact study, and e) informed consultation”.

• The Court also recalled its judgment 001-10-SIN-CC of 18 March 2010, in which it incorporated the parameters of the ILO Convention 169 and the case Sarayaku v. Ecuador.[6]

Regarding the environmental consultation, the Court indicated the following:

1. Environmental consultation has two important elements: (i) access to environmental information and (ii) environmental consultation itself.

• As for the first point, it states:

1. Article 184 of the COAM “only establishes the obligation of the State to “inform” and omits the rest of the elements that an environmental consultation must contain” according to the Constitution and the Escazú Agreement.

• That “the norm (article 184 of the COAM) restricts the purpose of citizen participation to “the collection of their opinions and observations to incorporate them into the Environmental Studies, provided that they are technically and economically viable.” This purpose is distinct and incompatible with the object of the environmental consultation.”

• That the Escazú Agreement is subsequent to the COAM, so it does not include its content. The Court mentions 3 important points of the Escazú Agreement.[7]

As for the second point, it states:

1. That “[the] end of citizen participation is not achieved only by informing. The purpose of the consultation is that of a complete dialogue before making a decision on a policy, or project, during the implementation of the policy and project (if it was decided to implement it participatively), and for the duration of its execution. Dialogue cannot start with a decision previously taken. If there is a prior decision, then it is not a consultation but the mere fulfillment of a formality that consists in informing […].”

• It should be timely and inclusive and seek a “social consensus”[8].

• In addition, it states that “where applicable, consultation should incorporate elements of the right to prior consultation with indigenous peoples, such as prior nature and good faith”.

The Court compares prior consultation with environmental consultation, indicating the following:

1. Prior consultation of indigenous peoples and environmental consultation are distinct and should not be confused.

• Prior consultation is a right that is held by indigenous communes, communities, peoples and nationalities. The environmental consultation is aimed at people in general who may be affected by a State decision or authorization that may affect the environment.

• Prior consultation refers to environmental, cultural or any decision that affects the exercise of their rights. Environmental consultation refers exclusively to environmental matters.

• Prior consultation is a manifestation of the right to self-determination and its sources are the ILO Convention 169, the United Nations Declaration of Indigenous Peoples, the judgments of the Inter-American Court and those by the Court. Environmental consultation is a manifestation of the right to participation and its sources are the Constitution and the Escazú Agreement, among other international environmental standards.

• Prior consultation must be carried out by “any state entity that carries out activities that affect these peoples“. The environmental consultation must be carried out by the competent environmental authority.

• Prior consultation and environmental consultation are similar in that they seek to involve incumbents in decision-making.

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[1] Article 184.- Citizen participation. The Competent Environmental Authority must inform the population that could be directly affected about the possible realization of projects, works or activities, as well as the possible expected socio-environmental impacts and the relevance of the actions to be taken. The purpose of the participation of the population will be the collection of their opinions and observations to incorporate them into the Environmental Studies, provided that they are technically and economically viable.

If the aforementioned consultation process results in a majority opposition of the respective population, the decision to execute or not the project will be adopted by duly reasoned resolution of the Competent Environmental Authority.

In the mechanisms of social participation there will be environmental facilitators, who will be evaluated, qualified and registered in the Single Environmental Information System.

[2] “it will be constitutional provided that its purpose and content are interpreted and complemented by the constitutional norm that establishes the right to environmental consultation, the jurisprudence of the Court on applicable prior consultation, the rules of the Escazú Agreement and with the provisions of this judgment, which determine the necessary elements to guarantee this right.”

[3] Article 184.- Citizen participation. The Competent Environmental Authority must inform the population that could be directly affected about the possible realization of projects, works or activities, as well as the possible expected socio-environmental impacts and the relevance of the actions to be taken. The purpose of the participation of the population will be the collection of their opinions and observations to incorporate them into the Environmental Studies, provided that they are technically and economically viable.

If the aforementioned consultation process results in a majority opposition of the respective population, the decision to execute or not the project will be adopted by duly reasoned resolution of the Competent Environmental Authority.

In the mechanisms of social participation there will be environmental facilitators, who will be evaluated, qualified and registered in the Single Environmental Information System.

[4]The Court resolves:“To declare that Article 184 of the Organic Code of the Environment does not apply or replace the right to prior, free and informed consultation of indigenous communes, communities, peoples and nationalities  …”

However, according to the Court, Article 184 of the COAM could be applied for prior consultation (Article 57 (7) of the Constitution) or environmental consultation (Article 398 of the Constitution), so an analysis of its constitutionality is necessary.

However, he then acknowledges that this is not the case: “In the present process both the Presidency and the PGE have argued that Article 184 of the COAM does not refer to the prior consultation established in the Constitution, so it is not applicable to matters related to the aforementioned constitutional law. This Court agrees with this point of view and understands that its scope does not and should not replace prior consultation with indigenous, Afro-Ecuadorian and Montubian communes, communities, peoples and nationalities.”

[5] Article 462. Prior consultation with communes, communities, peoples and indigenous nationalities. Prior, free and informed consultation on plans and programs for the prospection, exploitation and commercialization of non-renewable resources that are located on the lands or territories of communes, communities, indigenous, Afro-Ecuadorian or Montubian nationalities that may affect them environmentally or culturally, as contemplated in the Constitution of the Republic of Ecuador, shall be carried out by the respective sectoral ministries,  in compliance with the regulations issued for this purpose.

Article 463. Object of citizen participation in environmental regularization. Citizen participation in environmental regularization aims to publicize the possible socio-environmental impacts of a project, work or activity as well as to collect the opinions and observations of the population that lives in the corresponding area of direct social influence.

[6]“(a) the flexible nature of the consultation procedure; (b) prior nature of the consultation; (c) the consultation must be public and informed; (d) the consultation is not exhausted by mere information or public dissemination of the measure; (e) obligation in good faith; (f) public dissemination of the process; (g) prior and concerted definition of the consultation procedure; h) the prior and concerted definition of the subjects of the Consultation; (i) respect for the social structure and systems of authority and representation of the peoples consulted; (j) the systematic and formal nature of the consultation; (k) the opinion of the respondents has a special legal connotation; (l) State liability for non-compliance with the consultation. “

[7] (i) the objective of “guaranteeing the full and effective implementation of the rights of access to environmental information, public participation in environmental decision-making processes”; (ii) “obligation to ensure the right of participation of the public in environmental decision-making processes for which it must implement “an open and inclusive participation in decision-making processes …”;” and (iii) “obligation to make public participation processes effective, understandable and timely; that before decision-making, the right of public participation should include “the opportunity to submit observations by appropriate and available means, in accordance with the circumstances of the process”.

[8] “To make it timely when it is ensured that participation is carried out from the initial stages of the decision-making process. To be timely, it must also contemplate reasonable deadlines so that the consulted subject has sufficient time to inform himself and participate effectively. Consultation should be inclusive. In order for it to become inclusive, it must be adapted to the social, economic, cultural, geographical and gender characteristics of the subjects consulted. “