Environmental Engineering Reference
In-Depth Information
allow the state to authorise the exploitation of mineral resources to natural or legal
persons, whether local or foreign, by granting them mineral rights and duties. These
legal provisions essentially transfer access and withdrawal rights.
In spite of the similarities between both mining laws, one major point of departure
between the two legal instruments relates to the power and scope of the state's role in
the extractive industry. In the 2009 law, the state essentially acquires a more prominent
role and has an enlarged oversight of the sector. With that goal inmind, the 2009mining
act also established a series of regulations aimed at restructuring the bodies governing
and overseeing mining. Thus, the Ministry of Non-Renewable Natural Resources was
established and separate entities to direct and regulate mining and oil affairs were
also created: the Agency for Mining Control and Regulation, the National Institute
for Geological, Mining and Metallurgic Research and the National Mining Company
(known as ENAMI for its Spanish acronym).
7.5.3 Mining and land ownership issues
One of the most important property rights granted to all parties participating in mining
activities under the Mining Acts of 2000 and 2009 is that, as concession titleholders,
their rights of ownership are distinct and independent from the ownership of land on
which the concession is located, even if both belong to the same person. This is an espe-
cially sensitive issue, because many of the mineral concessions of interest are located
in areas settled by indigenous communities. This is for example the case for Intag
in the Northern Highlands, as well as Zamora Chinchipe in the Southern Amazon,
where Shuar Indigenous communities reside. In terms of the property rights frame-
work, where rights correspond to duties, these regimes have essentially established a
series of limits to the property rights over territories by indigenous people and farmers,
who now have de facto duties to respect mining rights superimposed on their lands.
On the other hand, both the 1998 and 2006 Constitutions, as well as the Mining
Acts of 2000 and 2009, contain laws and regulations for the protection of indige-
nous people´s rights, which includes the right to their ancestral land. For example,
both Constitutions ratify the ILO Convention 169 on the right to prior and informed
consent. Likewise, in Article 57 of the current constitution, Indigenous people's com-
munities and nationalities are recognised, and collective rights in order to conserve
their land are guaranteed. Furthermore, the constitution declares indigenous peoples'
lands as “inalienable and indivisible'' and establishes that indigenous groups may not
be displaced.
The Mining Act of 2009 does include a chapter dealing with “Social Management
and Community Participation'' to address mechanisms for citizens´ right to informa-
tion and consultation that apply to all communities affected by mining, independent
of ethnicity. In fact, the law names the State as the responsible actor for providing
information and arranging the necessary processes for participation and consultation.
Article 90 calls for the compulsory consultation of communities and nationalities that
may be affected by mining activities, and Article 91 names the Ministry of the Envi-
ronment as the entity responsible for managing any complaints for social, cultural or
environmental damages derived from mining activities.
In spite of these advances, Article 87 of the current mining law also stipulates
that, “In the event that a consultation process results in the majority of opposition
Search WWH ::
Custom Search