• A court in Ecuador’s Sucumbíos province has ordered that the mining concessions already in operation on territory claimed by the Cofán indigenous people, and those currently in the process of being granted, must be canceled, affecting some 324 square kilometers (125 square miles) in total.
• The ruling also requires that reparations be made for any impacts caused by recent mining.
• For the community, the court’s decision is a victory that represents a milestone for the rights of all indigenous communities in Ecuador.

In January 2018, the Cofán indigenous people of Sinangoe, Ecuador, discovered several machines mining the Aguarico riverbed near Cayambe Coca National Park. This came as a surprise to them because they’d never been consulted about any mining projects in their territory. They decided to speak out against the violation of their rights to prior consultation as well as the rights of nature and a healthy environment, which are both recognized in the Ecuadoran constitution.

After nearly a year of legal struggle to halt the mining and the water pollution that came with it, the provincial court of Sucumbíos ordered that the concessions already in operation and those currently in the process of being granted must be canceled, affecting some 324 square kilometers (125 square miles) in total. With the court’s ruling, mining will not be allowed in any of those areas. Additionally, the decision requires the reparation and/or remediation of the areas already affected by mining. Before any new concession is granted, miners must begin the prior consultation process with the Cofán de Sinangoe community.

When members of the Cofán community learned of the verdict in October 2018, they were overjoyed. “Sinangoe is fighting for the well-being of everyone, not only for the A’i Cofán community, but for everyone in Sucumbíos province: for the A’i Cofán, Siona, Secoya, Kichwa, and for other nationalities that are uniting to defend their rivers,” said Mario Criollo, the president of the Cofán community of Sinangoe. “This victory is a great achievement for our children and for future generations. We will continue to watch over our land and fight to have our property titles.”

Not only was the violation of their right to prior consultation recognized, the court also reaffirmed their rights to water, a healthy environment, and the right of nature. “These themes were included in the community’s initial complaint, but they were not recognized in the court’s first decision,” said María Espinosa, coordinator of the Amazon Frontlines legal program and a lawyer for the Cofán de Sinangoe. “We are pleasantly surprised that this judge has done such an extensive analysis of rights. [This decision] extends its analysis to indicate that other communities and groups are equally affected.”

This victory, in Criollo’s words, sets an important standard for the Cofán community and for all the indigenous communities in Ecuador defending their territories from mining. Also in October, Ecuador’s National Water Secretariat (SENAGUA) recognized the Cofánes, Chingual and Aguarico rivers as protected waters, a move that reinforces the court’s decision and represents a step forward in the application of the rights of nature.

A nearly year-long legal battle

Following the discovery of mining activities, the Cofán community requested a protective action with the help of the Ombudsman’s office to halt the mining. In an article published by Mongabay Latam in September 2018,  Nicolas Mainville, the coordinator of the environmental monitoring program at Amazon Frontlines, described how the mining was affecting the area. “In [the Puerto Libre concession], 37 acres [15 hectares] of trees were cut down, over one mile [1.6 kilometers] of road was constructed, and seven different sites were added that included pools and camps,” he said.

According to Mainville the levels of pollution in the Aguarico River were not being measured, so it is unknown how much cyanide was used in the mining operations. Members of the Cofán community had requested these measurements many times, arguing that they could see a change in the water color.

Halfway through the year, they received good news: in a historic decision on July 27, a judge from the canton of Gonzalo Pizarro, an administrative division in Sucumbíos province, ruled in favor of the Cofán community and the Ombudsman’s office. The judge declared that the community’s right to free and informed prior consultation had been violated, ruling against the Ministry of Mining, the Ministry of Environment, the Mining Regulation and Control Agency (ARCOM), and SENAGUA. The court ordered the immediate suspension of all 20 mining concessions that had already been granted, along with the 32 concessions that were still being processed. This decision affirmed the communities’ claims regarding their right to prior consultation, but not to water, a healthy environment or the rights of nature.

However, the decision was immediately appealed by the defendants. At the appeal hearing on Sept. 5, the institutions named as defendants in the case claimed that it had not been necessary to do the prior consultation process because, they said, the mining activity did not take place within Cofán territory, nor did it affect the interests or rights of those in the community.  “There is a clear lack of knowledge and an act of bad faith on the part of the ministries,” Espinosa said at the time.

In the midst of these tensions, the three judges hearing the appeal decided to postpone their verdict until after they visited the area to observe the damages and analyze the arguments given by the parties. Uncertainty and anxiety in the Cofán community grew until Oct. 22, when the judges issued the historic ruling in their favor.

Consultation or notification?

Espinosa spoke to Mongabay Latam about the importance of this case. “This [ruling] confirms that their right to prior consultation was violated. It recognizes that they are the ancestral owners of that land and that decisions affecting them can’t be made without consulting them or knowing their opinions, especially for mining activity,” she said.

However, Espinosa pointed out that even if the Cofán community was to be consulted before future mining concessions were granted, there were no guarantees the community’s position would be adhered to since there are no laws in Ecuador regulating the prior consultation process.

“The guideline applied by the government for the consultation turns it into a process of simply notifying and informing the communities, but it doesn’t take into account their opinions,” Espinosa said. “Therefore, until a law exists that is created by consulting and agreeing with members of the community, they will not accept nor yield to any consultation processes.”

Banner image caption: Members of the Cofán community of Sinangoe walk along the Aguarico River as a backhoe removes land in the background. Image by Jerónimo Zuñiga for Amazon Frontlines.