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  • Mining Alert No. 4 - New reform to TULSMA and resolution of vigilance to the consultations by the Ombudsman's Office
Martes, 30 Abril 2019 18:56

Mining Alert No. 4 - New reform to TULSMA and resolution of vigilance to the consultations by the Ombudsman's Office

The TULSMA has been reformed for the second time in less than 3 months in regards to citizen participation processes in order to obtain environmental administrative authorizations for projects, works or activities. Additionally, the Ombudsman has issued a resolution whereby it determines the criteria for the monitoring of due process in good faith, prior and free environmental consultation. These new regulations are analyzed in our Mining Alert no. 4 for 2019.

The Unified Text of Environmental Legislation (hereinafter the "TULSMA") has been amended for the second time in less than 3 months. Through the Ministerial Agreement (AM) 109 of October 2, 2018, published in the Supplement to the Official Registry 640 of November 23, 2018, several reforms were made, mainly in the process of citizen participation, which were analyzed in our Mining News, No. 1 for 2019.

Now, through the Ministerial Agreement 013 dated February 14, 2019, which has not yet been published in the Official Registry, Chapter V was replaced in Ministerial Agreement 109 regarding citizen participation processes to obtain environmental administrative authorization for projects, works or activities of low, medium and high impact.

In addition, the Ombudsman's Office (hereinafter the "DPE") issued resolution number 021-DPE-DD-2019 of February 20, 2019, published in the Official Gazette number 465 of April 10, 2019, whereby it issues the criteria for the monitoring of due process in the process of prior free, informed, in good faith consultation, and the environmental consultation.

The main elements of these two documents are analyzed below.

The following main points are included in Ministerial Agreement 013:

1. The environmental consultation is defined as the process that provides the appropriate opportunity to express points of view, considerations of special circumstances of the groups and specific individuals on the possible socio-environmental impacts of the work, project or activity. The consultative term includes the application of cooperation and mutual respect, both of the person in charge of carrying out the activity and of the members belonging to the area of social influence of the project, work or activity.

2. It is allowed that the processes of citizen participation that started from the issuance of Ministerial Agreement 109 and did not execute the information phase can voluntarily benefit from the provisions reformed by Ministerial Agreement 013.

3. A new organization of the citizen participation process is established, which starts with a favorable technical declaration of the environmental studies and continues with 5 stages: planning of the citizen participation process; announcement; execution of the citizen participation mechanism; preparation of the systematization report; and, the inclusion and revision of population criteria.

4. The process of citizen participation for low impact projects, works or activities is eliminated.

5. The area of indirect social influence is added, defined as the socio-institutional space resulting from the relationship of the project with the political-territorial units where the project, work or activity is carried out: parish, canton and / or province.

6. The informative phase that was to be carried out after the review of the environmental studies was eliminated, and therefore the information workshop was eliminated as a mechanism for citizen participation in environmental regularization.

7. A previous visit by the environmental facilitator is maintained, but the previous visit report is eliminated and the planning report of the citizen participation process is incorporated, which should consider the target public; project communication strategy; tools for opinion consultation; schedule; resources and budget; and must be notified to the proponent within 15 days of the appointment of the facilitator. It is indicated that the guidelines for the planning phase of the citizen participation process will be defined in the technical standard to be issued by the National Environmental Authority.

8. It is determined that the environmental facilitator will establish the most appropriate citizen participation mechanisms based on the project and the results of the environmental impact study and local social characteristics. The additional facilitators are also eliminated.

9. The option of suspending the facilitator for not maintaining independence and impartiality during the process of citizen participation is eliminated.

10. The means by which the environmental facilitators are appointed is eliminated and it is established that the National Environmental Authority will issue regulations for their qualification, designation and evaluation.

11. High impact social networks according to the type of population and segmented according to the target audience are included as a means of call for citizen participation in environmental regularization, as well as other means that are representative of the existing social organization in the area of the project. The obligation to attach an executive summary of the Environmental Study to written communications that serve to convene, is eliminated.

12. It is established that in the execution of citizen participation mechanisms in addition to informing the population about the characteristics of the project, work or activity and about the results of the environmental impact study, a variety of technical tools must also be applied to evaluate the opinion of the population. It is indicated that the guidelines for applying citizen participation mechanisms will be defined in a technical standard defined by the National Environmental Authority.

13. It is included that the facilitator must keep records of the execution of the citizen participation mechanism with at least: participants; opinions and criteria issued by the population and registration of application of consultation tools.

14. The content of the systematization report of the citizen participation process is simplified, which must contain information obtained from the citizen participation mechanisms. A term of 25 days is granted for the issuance of the systematization report from the notification to the proponent of the planning report of the citizen participation process and the Competent Environmental Authority has a term of 10 days to notify the systematization report to the proponent.

15. A term of 5 days is granted from the notification of the systematization report to the proponent to include the opinions and observations generated by the population that lives in the area of direct influence in the environmental impact study, if they are economically and technically viable. The Competent Environmental Authority has a term of 5 days to verify that the observations of the population are economically and technically feasible and in case there are observations, these must be corrected by the proponent in a term of 5 days and the authority will have the same time to respond on the corrections. The observations and opinions that are incorporated into the environmental impact study should be informed to the community.

16. A term of 10 days is granted to correct observations submitted to the operator's response regarding the revision of the terms of reference of the environmental audit.

17. The fourth transitory provision is replaced, granting 30 days from the signing of the environmental administrative authorization to obtain the registration of hazardous and / or special waste for projects, works or activities that have not obtained it until November of the 2018

18. Form 102 of the Internal Revenue Service is added as a requirement for payments for administrative services of regularization, control and follow-up, for the review, qualification of ex post environmental studies and issuance of the environmental license.

19. The percentages of items to be paid to the facilitator designated in the citizen participation processes for the approval of reports when there is partial compliance with the activities are modified: 25% for the approval of the previous visit report, 35% for the approval of the planning report and 40% for approval of the systematization report of the citizen participation process.

Resolution number 021-DPE-DD-2019 includes the following main points:
1. The DPE may make requests for access to information to general consultation procedures, without indicating to whom it may request it.

2. The DPE must make partial reports and a monitoring report on the due process of prior consultation of the preparatory phase, implementation and final part and will deliver them to the administrative body that promotes the consultation process, to the Ministry of the Environment and to the petitioners, before the approval of the environmental license for its consideration.

3. It is not clear if the understanding or interpretation of the DPE is that, in order to obtain an environmental license, a prior consultation must be carried out. Perhaps there is a confusion of the DPE with the process of citizen participation that includes environmental consultation to the population of the area of influence.

4. It is established that the DPE will conduct a verification of the due process of the consultations at the request of the party, applying certain criteria:

a) For the preparatory phase of the consultation, verification of the following:

i. Prior consultation on plans and development programs that may impact "communities, communes, peoples, indigenous, Afro-Ecuadorian and Montubian nationalities and others".
ii. Characterization of communities prior to consultation processes; compliance with economic, social, cultural, environmental, nature and collective rights; and, identification of possible social, environmental and cultural conflicts.
iii. Determination of the existence of norms and own procedures for community decisions.
iv. Processing and implementation of concerted methodologies between the State and the communities, which must be culturally appropriate and respect the rights of those consulted.
v. Planning and development of consultation procedures in reasonable times according to the nature of the project and cultural characteristics of those consulted.
vi. Execution of local and national dialogues with the participation of human rights and nature rights organizations.
vii. Adequate publicity, clarity and complete information of the procedures and documents.

b) For the implementation phase of the consultation, verification of the following:

i. Offers and negotiations in exchange for promoting, developing or concluding consultations or concluding with consent or agreement.
ii. Mechanisms of pressure, blackmail, gifts or criminalization of leaders in opposition to the adoption of administrative measures "in their lands and territories".
iii. Participation of women, youth and spiritual authorities of the peoples and communities.
iv. Participation and respect for the independent technical representatives of the State who identify the repercussions of the activity for the peoples, communities and nature in the consultation.
v. Ways of affecting community cohesion as a means to make the negotiations viable.
vi. Information delivered is adequate and complete for an informed decision making.

c) Regarding the procedure of the decisions or agreements, the execution of a surveillance report that verifies the following:

i. Agreements on access to information and degree of satisfaction of the communities with the information.
ii. Incorporation of visions of women, young people and traditional and spiritual authorities in the agreements.
iii. Implementation of adequate participation mechanisms for people and their cultural forms.
iv. Intercultural judicial and administrative measures to process concerns and complaints regarding the consultation.

5. The DPE must make an annual report on compliance of the right to consultation with information from their own reviews or through the administrative bodies that conducted the consultations. This report will be presented by the DPE in its annual accountability process. The annual report must contain the following elements:

a) Existence of norms that recognize the characteristic of consultations that are previous, free and informed, culturally appropriate and in good faith.
b) Existence of State institutions with competence to promote and implement prior, free and informed consultation processes.
c) Existence of public policies on consultation as a mechanism for social participation.
d) Existence of clear and agreed procedures with communities for consultation.
e) Number of consultations and concertation acts that were carried out without complaints.
f) Percentage of consultations that ended with agreement or consent compared to those that end with a unilateral decision of the State.
g) Reports of observers of human rights and nature organizations.
h) Recommendations and rogatory letters.

For more information please contact:

Xavier Andrade Cadena                                                    Rafael Paredes

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Av. República 396 y Diego de Almagro, Edificio Forum 300, Of. 504
Quito, Ecuador

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