A/HRC/42/37/Add.1
more were being processed. The community brought an action for protection against the
State institutions responsible. The judgment handed down by the Provincial Court of
Sucumbíos in October 2018 reverted the mining concessions because they violated the
rights of the people of the A’i Cofán community of Sinangoe to nature, water, a healthy
environment, prior consultation, culture and territory. 11 It also called for redress of the
damage caused. The Provincial Court of Azuay ordered suspension of the Río Blanco
project owing to the lack of consultation.
42.
With regard to pre-legislative consultation, in 2012 the National Assembly adopted a
directive on pre-legislative consultation which must be implemented by the Assembly
through the appropriate committee before the adoption of any laws that might affect the
indigenous peoples. According to information provided by the Government, several prelegislative consultations have been carried out. These consultations have followed the
model for public consultations without taking into account the standards applicable in the
case of indigenous peoples.
43.
The Special Rapporteur received information about the options being discussed to
enforce the right to prior, free and informed consultation and consent, including regulations
issued in the form of a law, institutions to be in charge of the procedures and indicators of
implementation. In this regard, she wishes to stress that any initiative should be the result of
an inclusive dialogue conducted in good faith between the indigenous peoples and the State
(“consultation on consultation”) to ensure the implementation of these rights, which are
important safeguards for the fundamental right of indigenous peoples to self-determination.
E.
Recognition of indigenous forms of governance
44.
The Constitution recognizes the right of indigenous peoples to preserve and develop
their modes of social organization and their authorities. Communities must register their
government councils in order to ensure that they are recognized as legitimate authorities
vis-à-vis the public agencies. Until 2015, the Council for the Advancement of the Nations
and Peoples of Ecuador was responsible for legalizing and registering the statutes, boards
and governing councils of indigenous peoples and nations. These duties were transferred to
the National Secretariat for Policy Management in the Office of the President, which
manages the Single Register of Civil Society Organizations.
45.
Registering indigenous authorities and organizations under the same requirements as
any other non-governmental organization is contrary to their constitutional status. The
requirements placed on indigenous authorities and the inadequate status under which they
are recognized limit their right to autonomy and self-government. Furthermore, there were
reports of undue interference with the registration of elected authorities, which is
tantamount to censorship and control. For example, the Sápara nation and the
Ombudsman’s Office reported the non-recognition of the President-elect of the Sápara
nation. Information was received about several cases involving the registration of parallel
authorities that were close to the Government.
F.
Coordination and cooperation between justice systems
46.
The Constitution (art. 171) recognizes the right of indigenous authorities to perform
judicial duties and to apply judicial rules and procedures that are not contrary to the
Constitution and internationally recognized human rights; it also provides that adequate
coordination and cooperation must be established between indigenous and ordinary justice
systems. It also establishes the State’s obligation to guarantee respect for the rulings of
indigenous courts, which are subject to review for constitutionality. The Organic Code on
the Judiciary (2009) outlines the competencies and functions related to the promotion of
intercultural justice that would be within the purview of the Council of the Judiciary.
11
10
Case No. 21333201800266.
GE.19-11328