A/HRC/42/37/Add.1
which was not adequately consulted with indigenous peoples, establishes procedures for
requesting legalization of rural properties and ancestral territories. Many of the
requirements for recognition of indigenous land rights lack an intercultural approach and
are not consistent with international standards.
23.
The Constitution provides that indigenous peoples may create indigenous territorial
districts, which must be incorporated into the political and administrative structure of the
decentralized State. Regulations governing the establishment of these districts were
subsequently laid down in the Organic Code on Territorial Organization, Autonomy and
Decentralization (2010). The complex process for establishing indigenous territorial
districts, the lack of State action and subordination to the administrative division and
procedures of the State, are factors that explain the limited progress in establishing such
districts.
24.
There are also other limitations that hinder the ability of indigenous peoples to
exercise effective control over their lands and territories even when they have titles to them,
given that the State has exclusive ownership of natural resources and controls the lands and
territories included in reserves and protected areas. The conceptualization of land from a
utilitarian and production-oriented perspective makes it difficult to harmonize the State’s
and the indigenous peoples’ views of indigenous land rights and the need to respect and
protect them.
B.
Exploitation of natural resources and other activities in indigenous
territories
25.
The situation created by the failure to properly recognize indigenous land rights is
compounded by the impact of large-scale extraction of natural resources in their lands and
territories. In his 2010 report, the Special Rapporteur, Mr. Anaya, stressed the challenge
presented by the exploitation of natural resources vis-à-vis the obligations arising from the
rights of indigenous peoples over their land and resources. 4 Since then, the necessary
measures to address this challenge have still not been taken, and concessions have
continued to be granted without proper consultation with or the consent of indigenous
peoples, leading to conflicts and serious human rights violations in many regions of the
country. Concessions for extraction projects have been granted in almost all of the
traditional territories of some villages and communities, jeopardizing their survival as a
people. Of particular concern is the cumulative effect of activities, both for extraction and
for conservation, as well as construction of infrastructure and agro-industry, among others.
26.
Mining concessions have multiplied throughout the country. At an assembly of
indigenous peoples from the highlands that was held in Victoria del Portete, the Special
Rapporteur met with representatives of communities in Molleturo parish who were affected
by the Río Blanco project, which is currently under concession to Ecuagoldmining South
America S.A. The concession is located within the Molleturo-Mollepungo protective forest
and the Cajas World Biosphere Reserve. The lack of a proper consultation process has
generated division in the communities and has led to violence, confrontations and the
criminalization of more than 30 opponents of the project. There were also environmental
impacts, as Cruz Loma Lake dried up, and rivers were polluted. The Provincial Court of
Azuay received the application for constitutional review relating to the violation of the right
of the Molleturo community to be consulted about the project and ordered that the project
be suspended. 5 The Ministry of Energy and Non-Renewable Resources requested
disciplinary measures against the judge in the case. There were also reports of serious
impacts, confrontations and criminalization of the communities affected by the
Quimsacocha (Azuay) mining project. Many communities in the Sierra, including the
Saraguros of the Fierro Urco mountain range, were especially concerned about the impact
on water sources in the Andean páramos and the difficulty of access and control over this
critical resource.
4
5
6
A/HRC/15/37/Add.7, para. 37.
No. 01333-2018-03145.
GE.19-11328