Acción de protección y su aplicabilidad como garantía eficaz frente a la vulneración de los derechos de las comunidades indígenas.

Abstract

The general objective of this case study is to legally analyze the Protection Action, signed with No. 16171-2019-00001, which was heard by the Court of Criminal Guarantees with Headquarters in the Pastaza Canton, which was followed by a group of representatives of the Waorani People, and directed against the Ministry of the Environment and the Ministry of Energy and Non-Renewable Natural Resources, for understanding that the right of the Waorani People to exercise effectively and free of vices the right to prior consultation was violated. free and informed, violating in a related way the right to self-determination. The background of the case is related to the actions taken by the Secretariat of Hydrocarbons of Ecuador (later annexed to the Ministry of Energy and Non-Renewable Natural Resources), which was carrying out a prior, free and informed consultation process in order to publicize a extractive process that was going to take place in indigenous territory, more precisely, in Block 22 of the Ecuadorian Amazon. The process, as evidenced by an analysis of the aforementioned constitutional guarantee, was riddled with vices, such as the lack of contact with leaders of the indigenous communities, the lack of evidence that these talks and meetings were given in the indigenous languages communities (waotetero) and it is not specified what information was delivered and socialized, nor is it determined what type of methodology was used to deliver said information. The call for the delivery of information, in 2012, was made through radio and television media, without taking into account that in some remote communities, there is no signal to receive such transmissions. Another point that supports the lack of information is that the space provided by the Permanent Consultation Office was inoperative for several days, when its activities should have been constant. This did not guarantee that the prior consultation process would exhaust all the doubts that the Waorani People might have regarding the extractive activities that were going to be carried out. Regarding the meetings, it was found that although there were Public Hearings and General Feedback Assemblies, these were merely procedural in nature, and that in some cases, in a single session, very complex issues were dealt with, with terminology that was not accessible to this People, which derives in an ineffective delivery of information, which does not allow the Waorani People to make an informed decision. For the analysis and construction of this case study, the inductive, deductive, analytical, descriptive and hermeneutical methods were applied; based on a documentary analysis, with support in constitutional regulations and other laws of a lower nature. As a result of this analysis, it is concluded that the jurisdictional decision is correct, since from all the evidence carried out, as well as from the exculpatory evidence presented by the defendants, the violation of the rights of self-determination, prior consultation, free and informed and a detrimental impact on the dignity of the indigenous peoples of the area. A series of recommendations is arrived at that revolve around the need to monitor the rights of indigenous peoples, guaranteeing the effective application of their constitutional rights, above all, in processes where the characteristics of these communities (their language, the lack of means of communication and the distance from populated centers) makes the violation of their rights more feasible. The State, as responsible for ensuring the rights of these communities, cannot ignore these guarantees, and must promote through them an effective participation of the indigenous peoples, communities and nationalities.