Avoided Deforestation (REDD) and Indigenous ... - Amazon Fund

the constitution which still has not been consolidated. It will be the legislative development and
constitutional law which determine the real content and extent of consultation with indigenous
people. 93
Article 90 of the mentioned law refers to the obligation of performing consultations with
indigenous people according to Article 398 of the SPC, 94 which refers to the right of all Ecuadorian
citizens to participate in decisions relating to environmental impacts that may affect them. In
this way the mining law intends to circumvent the specific legislation for indigenous people
which guarantees the right to free, prior and informed consent, reducing it to an environmental
consultation with less binding power and informational in nature. 95
Finally, with relation to the rules relating to climate change, Ecuador has ratified all of the
applicable international norms and is an enthusiastic participant in the international conferences.
In fact, it is one of the countries in the Amazon region which has tried to put proposals regarding
the valorization of natural forests on the negotiation table. The SPC of 2008 itself also refers to the
responsibility of the Ecuadorian State to reduce GHG through its voluntary commitment to limit
the deforestation of natural forests and adopting measures for their conservation. 96
However, in this country there is no current legislation that regulates the legal nature of
carbon credits, which does not preclude that they may be object of legitimate legal transactions.
93 Regarding the techniques for avoiding the consultation of indigenous people in the Mining Law, see: http://
clavero.derechosindigenas.org/?p=1705.
94 Art. 398 – Any state decision or authorization which could affect the environment should be consulted with
the community, who will be fully informed in a timely manner. The individual consultant will be the State. The
law will regulate the previous consultation, citizen participation, the period, the individual to be consulted and
the valorization and objection criteria regarding the activity submitted to consultation. The State will value the
opinion of the community according to the criteria established in the law and the international human rights
instruments. If through the aforementioned process of consultation a majority opposition of the respective
community results, the decision to execute the project or not will be made by a duly reasoned resolution of the
corresponding superior administrative body in accordance with the law.
95 The degree of discordance between the new mining law and constitutional rules is so strong, that the CONAIE
has already demanded its unconstitutionality before the Constitutional Court. Said action will constitute one of
the first that the new court will have to decide to define the extent of indigenous people’s right to consultation,
both regarding their participation in legislative matters that affect them, as well as regarding the consultation of
natural resources exploitation in their territories. To see the request to declare the mining law as unconstitutional
and approval of the request, please see: http://www.socioambiental.org/ist/esp/consulta_previa/?q=node/37.
96 SPC 2008. Art. 414. – The State will adopt adequate and cross-cutting measures for the mitigation of climate
change through the limitation of greenhouse gas emissions, deforestation, and atmospheric contamination; will
take measures for the conservation of forests and vegetation, and will protect the population in risk. (Emphasis by
author.
54 Av o i d e d d e f o re s t A t i o n (redd) A n d i n d i g e n o u s p e o p l e s: experiences, chAllenges A n d o p p o r t u n i t i e s in t h e A m A zo n c o n t e x t