Ministerial Accord No. MEM-MEM-2024-0002-AM

On March 6th, the Ministry of Energy and Mines issued the Manual for the Operationalization of Free and Informed Prior Consultation (hereinafter “Manual“), recognized in Article 57, paragraph 7 of the Constitution of the Republic of Ecuador (hereinafter “Constitution“). The purpose of the Manual is to develop the constitutional standards for the operationalization of consultation. These standards have been established by the Constitutional Court and international treaties.

The Constitution recognizes the collective right of communes, communities, peoples, and nationalities (hereinafter “consulted subjects“) to free, prior, and informed consultation.  The manual provides that such consultation is mandatory prior to the issuance of administrative measures on plans and programs for prospecting, exploration, exploitation, and commercialization of non-renewable resources that are in the territories of the consulted subjects and may affect them environmentally or culturally.

The results of the prior, free, and informed consultation shall be of a non-binding nature. As a consequence, in cases where the State chooses to implement a project even without the consent of the consulted parties, it must: i) give reasons why it has not been possible to adapt the project in accordance with the observations of the consulted parties; ii) establish the reasons that justify the continuity of the project; and, iii) the measures that minimize the possible impact and maximize the benefits for the consulted parties.

The main aspects of the Manual are detailed below:

I.       Scope of application

Free, prior, and informed consultation shall be carried out prior to the administrative measure issued for prospecting, exploration, exploitation and commercialization plans for mineral resources and mining concessions on indigenous lands. It shall be carried out by the Sector Ministry (hereinafter “consulting subject“).

II.    Principles

Free, prior, and informed consultation shall be governed by the principles of obligatory nature and timeliness; flexibility; good faith; interculturality and plurinationality; systematicity and formality; publicity and information; reasonable time; and ample and necessary information.

III.    Stages of the mining concession

•    Exploration
•    Exploitation

Prior consultation is mandatory before each stage. In small-scale mining, the two stages can be carried out simultaneously and prior consultation is adapted to this reality.

IIII.    Phases of free, prior, and informed consultation

The free, prior, and informed consultation has four phases: i) preparation; ii) public call and registration; iii) registration, information, and execution of the consultation; and iv) analysis of results and closure of the consultation.

a. Preparation phase

The consulting subject will issue an administrative act identifying the consulted subjects of the lands and territories where the mining project will be developed, after requesting information from the Ministry of Agriculture and Livestock.   Once the consulted subjects have been identified, the consulting subject will establish a schedule identifying:

•    The administrative measure on the prospecting, exploration, exploitation, or commercialization program to be consulted.
•    The consultation procedure; and,
•    The phases of the consultation.

b. Public call and registration phase

The consulting subject shall inform via the media of the initiation of the free, prior and informed consultation procedure. And, in turn, shall open information centers for the consultation.

c. Registration, information, and execution of the consultation phase

The information centers will carry out the registration process for the dialogue between the consulting subject and the consulted. The centers will guarantee access to information to make known to the consulted subjects the scope of administrative measures on plans and programs for prospecting, exploration, exploitation, and commercialization of mineral resources.

d. Phase of analysis of results and closure of the consultation.

Within a maximum term of 20 days, the consulting subject shall compile the results of the free, prior, and informed consultation. Lack of attendance or actions that seek to impede or delay the completion of the consultation shall not vitiate it nor shall it be interpreted as motivated opposition.

Once all the information has been compiled, a dialogue table will be set up where the results of the consultation and the observations of the consulted subjects regarding the administrative measure to be issued will be discussed. After the dialogue table is concluded, the consulting subject will prepare a final report containing all the information discussed, especially the consensuses and dissensus reached by the parties. With the results of the consultation, the administrative measure will be issued, and the schedule will be defined with the commitments and benefits agreed with the consulted parties. Once the prior consultation process has been carried out, the consulting party will maintain channels of communication and participation with the consulted parties throughout the project execution process.


DISCLAIMER: The previous text has been prepared for informational purposes. CorralRosales is not responsible for any loss or damage caused as a result of having acted or stopped acting based on the information contained in this document. Any additional determined situation requires the specific opinion and concept of the firm.