On November 9, 2023, the Plenary of the Constitutional Court (the “Court”) issued its judgment in case 51-23-IN (the “Judgment”), regarding the public action of unconstitutionality of Executive Decree number 754 of May 31, 2023, through which reforms were made regarding environmental consultation in the Regulations to the Organic Environmental Code (the “Decree”). The Court ruled that the Decree was unconstitutional because it “transgresses the principle of reservation of law.”

The Court issued its order of clarification and extension of the Judgment at the request of the Ministry of Environment, Water and Ecological Transition (the “MAATE”) on 5 points. The Court accepted only one request for clarification and denied the others.

On the only point that the Court agreed to clarify, it indicated that “until the corresponding Prior Consultation Law is issued, when projects that affect indigenous peoples are executed, contracted or concessioned by state entities, those same state entities will be responsible for executing, from the planning of said project, the prior consultation. Whereas, when projects affecting indigenous peoples are executed by private entities autonomously, the ministries of the sector whose subject matter the project is concerned will be responsible for the execution of the prior consultation processes, from the planning of the project.” 

He also added that “the national environmental authority will be in charge of verifying the completion of the prior consultation, as a requirement to deliver the licenses, registrations or permits that the project requires.”

In addition, the Court confirmed that “the judgment in the case clearly established that the execution of the environmental consultation must be the responsibility of the environmental authority and that the latter may not delegate responsibility for the execution to the project operator. In addition, the ruling specifically prohibited the delegation to said operator: (i) the financing and (ii) the provision of information.”

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