Through judgment No. 1296-19-JP/25 of November 13, 2025, the Constitutional Court of Ecuador (the “CCE”) established binding standards on free, prior, and informed consultation (the “FPIC”) applicable to indigenous peoples and nationalities, with special emphasis on peoples of recent contact, specifying their purpose, scope, methodology, legal effects, and state duties for their implementation. The scope of the decision and the operating standards established by the Court are described below.
1. Purpose and scope
The CCE reviews case 1296-19-JP/25 and systematizes binding criteria on how the FPIC of Article 57.7 of the Constitution of the Republic of Ecuador (the “CRE”) should be implemented when it comes to indigenous peoples of recent contact. The axis of the judgment is to establish operational parameters for the State (obligations, methodology and effects) with special consideration for the cultural characteristics and vulnerability of these peoples.
2. Key definitions
The CCE adopts references from the Inter-American Court of Human Rights (the “IACHR”) and the Office of the United Nations High Commissioner for Human Rights (the “OHCHR”) to specify that peoples of initial or recent contact are those who maintain intermittent or recent contact with the majority society, even when, despite the time that has elapsed, they do not know the codes of relationship of non-indigenous society due to situations of semi-isolation or intermittent bonding; this category is linked to that of peoples in voluntary isolation and is protected by the regime of collective rights of article 57.7 of the CRE.
In its conclusions, the CCE stresses that these peoples have close interdependence with their ecosystems, high vulnerability (even risk of extinction) and full ownership of rights, demanding reinforced treatment.
3. Intercultural approach
Intercultural dialogue is the democratic method that must guide all public and private decisions that affect these peoples; in the FPIC, it implies culturally appropriate initiatives, respectful of their forms of organization and, in the case of recent contact, with greater intensity, thoroughness and care. The State should appropriately identify the subjects consulted (e.g., through anthropological studies, community mapping, and expert support) to ensure effective participation.
4. Implementation parameters (characteristics and methodology)
The FPIC is mandatory, prior, free and informed, in good faith and with cultural adaptation to the reality of the people consulted. It must provide clear and accessible information, set reasonable deadlines according to cultural times and correctly determine the subjects of the consultation (authorities and structures of its own). These criteria, developed as standards and parameters in the judgment, respond to the need to avoid formalities and ensure real deliberations.
5. Legal effects of FPIC (consent, accommodation, motivation)
The CCE summarizes its jurisprudence and describes three specific effects:
1.Free and informed consent: the purpose of FPIC is to obtain consent or reach agreements; It is not a mere formality or simple socialization.
2.Duty of accommodation of the State: the initial design of the project must be able to be modified or cancelled in the light of the results of the FPIC.
3.Obligation to state reasons: State decisions subsequent to the FPIC must be based on the findings of the process, explaining why they accept or reject the proposals of those consulted (according to the table of effects and their development).
6. State ownership and charge
The FPIC is an unavoidable and non-delegable obligation of the State: neither companies nor individuals can carry it out. The State must seek majority representative participation and respect for related rights, reinforcing these obligations when it comes to peoples of recent contact.
7. Binding decision and effects
The CCE assumes competence to develop binding jurisprudence (erga omnes) in the framework of the review of the case, which arises from controversies on the FPIC in Block 22 and previous procedural precedents, and establishes mandatory rules for extractive processes that may affect these peoples.
8. Exceptionality
The CCE admits that, exceptionally, the State may execute a project even without consent, provided that it proceeds in accordance with the Constitution and the law and sets forth a reinforced motivation that justifies such a decision. This standard is linked to the duty of accommodation (real ability to modify or even cancel the project in the light of the consultation) and does not turn the FPIC into a mere formality.
This possibility is not exclusive to peoples of recent contact: it is formulated in a general way for indigenous peoples and nationalities; however, when it comes to peoples of recent contact, the standard is stricter, requiring greater methodological care, substantive accommodation and a justification of proportionality that avoids excessive sacrifices to collective rights and of nature.
In contrast, a dissenting opinion proposes to prohibit execution without consent in the case of peoples of recent contact, which confirms that the majority admits the exceptional route, but under strict controls.
9. Operational recommendations
In view of this jurisprudential development, we suggest that the following elements be considered:
- Early design: incorporate anthropological studies, social cartographies and linguistic profiles before any administrative decision, to define subjects and consultation protocols in accordance with their organization.
- Appropriate methodology: ensure clear and accessible information, reasonable deliberation times and translation into one’s own languages, taking care of non-coercion and free decision.
- Real effects: document how the FPIC modified the project (duty of accommodation), the agreements reached or, if there were none, the reinforced motivation of the state decision.
- Governance and legitimacy: map traditional authorities and own structures (e.g. community bodies) and validate their representative participation at all stages.
For more information, please do not hesitate to contact us.
This is a summary of legal developments of interest, and therefore cannot be considered as provided advice. If you have any questions, please contact the AVL team.