Mining 2024

Last Updated January 25, 2024

Ecuador

Law and Practice

Authors



Flor Bustamante Pizarro & Hurtado has a team of 12 senior partners and 25 attorneys, offering multidisciplinary advice for carrying out petroleum, energy, and mining production projects. Headed by Roque Bustamante and Andres Ycaza, the mining law team is composed of eight lawyers. Ecuador, a country blessed with a massive amount of natural resources, relies tremendously upon those resources. Nonetheless, investments in natural resources are subject to unstable political and economic scenarios, so the firm begins with a legal and financial analysis of each project, anticipating the potential risks during execution. The team’s experience enables it to find the best investment opportunities and to maintain a stable and reliable projection for each project. It always offers clients assistance for warranting stability and balance, starting with the initial phase of acquisition, up to the completion of the negotiation, exploration and production phases. The firm designs legal strategies for protecting clients’ interests during the entire process, always looking to safeguard their investments.

Ecuador’s main export for several decades has been oil. Minerals have not constituted a major export of Ecuador and the first large-scale mines production only started in November 2019, when the Fruta del Norte Project, operated by Lundin Gold through its local subsidiary Aurelian, started producing gold, and the Mirador Project, operated by Chinese Tongling and China Railway through its local subsidiary Ecuacorriente, started producing copper. Both projects are located in the south-east of Ecuador, in Zamora Chinchipe province. It is expected that together the projects will have combined sales of more than USD1 billion per year. Therefore, mining will jump to become one of Ecuador’s biggest export products.

On 10 December 2019, the Fruta del Norte Project made its first export of 177 tons of gold concentrate. The project has a total investment of USD2700 million and expects to produce 310,000 ounces of gold per year and 400,000 of silver. In 2020, the Mirador Project, owned by Ecuacorriente, also started production in the first large-scale copper mine in Ecuador.

Ecuador has not yet been fully explored for minerals and its potential has in recent years attracted important companies such as Newcrest, Anglo American, BHP, Codelco and others. However, even though mining activities are fully regulated and legally possible, political opposition from different groups makes investment move slowly, with the need to overcome legal and constitutional actions repeatedly brought against mining projects.

Ecuador is a civil legal system; the main sources of legislation are the Ecuadorian constitution, the mining law, the environment law, plus all the general systems applicable for all activities, including, but not limited to, the civil code, the labour code and tax laws.

There are also several lower regulations underneath the laws that detail further all the pertinent procedures for obtaining a mining concession, maintaining it and all the procedures for environmental and social matters.

The Ecuadorian Constitution provides that natural resources belong to the State of Ecuador, that its exploitation shall be conducted in accordance with all environmental and social provisions and that the benefit to the exploiting company shall always be lower than the benefit to the State of Ecuador. It also provides that ancestral and environmental consultations shall be conducted in pertinent cases in accordance with the treaties entered into by Ecuador.

Mining law and regulations provide all aspects of the granting of a mining concession, payment of maintenance fees, royalties, passing into different stages, including advanced exploration and exploitation, and all other aspects concerned with a mining concession.

The Environmental Law and regulations provide all the aspects regarding environmental licences indispensable for mining activities.

The civil code is a set of general rules applicable for all matters when there is no special provision for a particular matter. The tax code and related laws and regulations also apply for mining activities, in addition to the labour code for all employment matters.

All legislation existing in Ecuador is applicable to companies operating in Ecuador and therefore all mining subsidiaries holding mining concessions in Ecuador are subject to all the laws applicable in Ecuador.

The Constitutional Court of Ecuador has the capacity to qualify requests for public consultation on different matters, including mining matters. These decisions of the Court become binding.

While several international treaties provide for consultation with ancestral communities, a law defining to whom, when and how a community consultation should be made has not been passed, in part due to the Constitutional Court prohibiting the issuance of a ministerial decree in that regard.

In March 2023, an Executive Decree was issued regulating the environmental consultation process; however, this Executive Decree will only be in force until the National Assembly issues an Organic Law regulating such consultation.

In Ecuador, mineral resources belong to the Republic of Ecuador. The State of Ecuador has priority to explore and exploit all minerals and it can do this through the national mining company ENAMI (Empresa Nacional Minera). However, ENAMI does not have sufficient financial means and technical resources. Therefore, on the few projects it is handling, it has looked for partners.

The central government acting on behalf of the State of Ecuador is allowed to grant mining concessions for the exploration and subsequent exploitation of metallic and non-metallic minerals. Mining concessions for construction materials are granted by municipalities.

The Constitution in its Article 1 mentions that the non-renewable natural resources of the territory of the State belong to its inalienable and imprescriptible patrimony. The central government will have exclusive competence over energy, minerals, hydrocarbons, water, biodiversity and forest resources.

Article 408 of the Constitution mentions that non-renewable natural resources and, in general, products of the subsoil, mineral and hydrocarbon deposits, substances whose nature is different from that of the soil, including those found in the areas covered by the waters of the territorial sea and maritime zones, as well as biodiversity and its cultural heritage and the radio-electric spectrum, shall be the inalienable, imprescriptible and unseizable property of the State. These assets may only be exploited in strict compliance with the environmental principles established in the Constitution.

The State will participate in the benefits of the use of these resources, in an amount that will not be less than that of the company that exploits them.

The State shall guarantee that the mechanisms of production, consumption and use of natural resources and energy preserve and recover natural cycles and allow for dignified living conditions.

In spite of the fact that all subsoil products belong to the State, the decentralised autonomous governments in whose territory non-renewable natural resources are exploited or industrialised will have the right to participate in the income received by the State for this activity, in accordance with the law.

The role of the state is always grantor-regulator. However, since the State is also the owner of mineral resources, it can operate through its wholly owned company ENAMI, which is not usually the case. In this case, however, it may be simultaneously grantor-regulator and owner-operator through different government legal entities.

The National Mining Company (ENAMI) shall have the preferential right to apply to the Ministry of Energy and Mines for the concession of any free mining area, in accordance with the certification issued for this purpose by the Energy and Non-Renewable Natural Resources Regulation and Control Agency. It shall also have the right of first option to apply for the concession of areas whose rights have been extinguished due to expiry, extinction or nullity, or which have been restored to the State.

Mining concessions are always granted and regulated by the State, independently of those that are granted to a government-owned company or any other petitioner. Once production starts, the role of the State, in addition to controlling environmental, social and labour matters, is to collect royalties and verify that the rule which states that the benefits must always be higher for the State of Ecuador than for the mining concession-holder is satisfied.

The mining sector is structured as follows:

  • the Sectoral Ministry (Ministry of Energy and Mines);
  • the Energy and Non-Renewable Natural Resources Regulation and Control Agency ;
  • the National Institute of Geological, Mining and Metallurgical Research;
  • the National Mining Company (ENAMI); and
  • the municipalities in the competences that correspond to them.

Article 8 of the Mining Law establishes the creation of the Mining Regulation and Control Agency (ARCERNNR) as the technical-administrative body in charge of exercising the state power of surveillance, auditing, intervention and control of the phases of mining activity carried out by the National Mining Company (ENAMI), mixed-mining companies, private initiative, small-scale mining and artisanal and livelihood mining, in accordance with the regulations of this law and its regulations.

The ARCERNNR has the competence to supervise and adopt administrative actions that contribute to the rational and technical exploitation of the mining resource, and to the fair perception of the benefits accruing to the State as a result of its exploitation, as well as to the fulfilment of social and environmental responsibility obligations assumed by the holders of mining rights.

The ARCERNNR has the following attributions, among others:

  • to keep a register and cadastre of mining concessions and publish it by electronic means;
  • to inspect the mining activities carried out by the holders of mining rights and titles; and
  • to grant licences for the commercialisation of mineral substances determined in the present law.

The ARCERNNR also regulates the assignment and transfer of mining rights as well as other industry issues, as it is the regulating entity.

All minerals and products thereof found underground belong to the State of Ecuador, as per the provisions of the Ecuadorian Constitution. The law allows the State of Ecuador to grant a mining concession through the issuance by the central government of a mining concession title, which, subject to the provisions of the law, including environmental laws and regulations, enables the mining concession-holder to explore and produce minerals. Mineral rights granted through concessions do not have the status of property, but of rights to explore and produce. Once the minerals are produced, they become the property of the concession-holder, who can sell them freely on the market.

Any natural or legal person, national or foreign, except those prohibited by the Constitution of the Republic and this law, has the power to prospect freely, for the purpose of seeking minerals, except in protected areas and within the limits of mining concessions, in urban areas, populated areas, archaeological areas, goods declared to be of public utility and in Special Mining Areas.

The President of the Republic of Ecuador may declare Special Mining Areas, subject to Article 407 of the Constitution of the Republic, in those areas in which there is potential for mining development and which are not concessioned, with the purpose that the Ministry of Energy and Mines, through its attached entities, carry out cadastres, geological-mining investigations or other types of activities of scientific interest, within their respective competencies.

The declaration of a Special Mining Area shall expressly establish the term of validity of the Special Mining Area, which may not exceed four years; once this term has expired, it shall be lifted without the need for any provision that so declares. In all cases, the declaration will respect the legally established rights or those derived from them.

Natural or juridical persons, national or foreign, who are holders of mining rights or who carry out mining activities, are subject to the laws, courts and judges of the country.

Mining Scale

Mining concessions are divided into large-scale concessions, medium-sized mining and small-scale mining.

Small-scale mining is considered to be that which, due to the characteristics and geological conditions of the deposits of metallic and non-metallic mineral substances and construction materials, as well as their technical and economic parameters, makes their rational exploitation viable in a direct manner, without prejudice to the fact that exploration work precedes it, or that exploration and exploitation work is carried out simultaneously.

Medium-sized mining is considered to be that which, due to the size of the deposits and depending on the type of metallic and non-metallic mineral substances, has been able to quantify reserves that allow the exploitation of those reserves over the processing volume established for the special regime for small-scale mining and up to the volume established by law.

Large-scale mining is considered to be that which exceeds the maximum volumes established for the medium mining modality.

Mining Regime

The exploration and exploitation of non-metallic mining must comply with the general rules applicable to mining concessions in the terms provided by the Mining Law and its Regulations.

In the case of construction materials, the State, through the Ministry of Energy and Mines, may grant concessions for the use of surface clays, sands, rocks and other materials of direct employment in the construction industry, with the exception of river beds, lakes, sea beaches and quarries that shall be governed by the limitations established by law.

In the framework of Article 264 of the Constitution, each municipal government shall assume the powers to regulate, authorise and control the exploitation of arid and stone materials found in the beds of rivers, lakes, lagoons, beaches and quarries, according to the Special Regulations that will establish the requirements, limitations and procedures to that effect. The exercise of competence shall be limited to the principles, rights and obligations contemplated in the municipal ordinances that are issued in this regard. They shall not establish conditions and obligations other than those established in this law and its regulations.

The granting authority is the central government, through the Ministry of Energy and Mines, which in turn has agencies in different regions of the country.

The granting of a mining concession is an administrative act issued in a form and substance predetermined by the law and in a format pre-established from time to time by the Ministry. The terms and conditions of the administrative act are not negotiable. All mining concessions have the same terms except for the area and remaining term of the concession. The law recognises different types of mining: small-scale, medium-scale and large-scale, plus non-metallic and construction material mining concessions.

Ecuadorian laws are applicable to all mining concessions and the mining title does not contemplate international arbitration.

For the granting of mining concessions, the sectoral Ministry will call for a public auction for the granting of all metallic-mining concessions. Likewise, it will call for a public auction for the granting of mining concessions on areas of concessions that have expired or that have been returned or reverted to the State, in which the petitioners shall participate and present their respective offers in accordance with the procedure established by the law.

The mining concession is an administrative act that grants a mining title, over which the holder has a personal right, which is transferable prior to the mandatory qualification of the suitability of the transferee of mining rights by the sectoral Ministry, and on this may be established pledges, assignments in guarantee and other guarantees provided by law, in accordance with the prescriptions and requirements contemplated in this law and its general regulations.

The mining title, without losing its personal character, confers on its holder the exclusive right to prospect, explore, exploit, benefit, melt, refine, commercialise and dispose of all the mineral substances that may exist and be obtained in the area of that concession, becoming a beneficiary of the economic yields obtained from those processes, within the limits established in the present regulation and, after compliance with its tax obligations, the mining concessionaire may only carry out the activities conferred by this title once the preliminary administrative acts (environmental licence and eventual affectation to bodies of water) have been met.

The mining concession shall have a term of up to 25 years, which may be renewed for equal periods, provided that a written request from the concessionaire has been submitted to the Ministry of Energy and Mines for that purpose prior to its expiry and a favourable report has previously been obtained from the ARCERNNR and the Ministry of the Environment.

The mining concession will be divided into an exploration stage and an exploitation stage. During the exploration stage, a distinction will be made between the initial exploration period, the period of advanced exploration and the period of integral economic evaluation of the deposit. It will incorporate the main, secondary and other minerals of economic value.

Mining holders may suspend activities when the protection of the health and life of mining workers or communities located in a perimeter of the area where mining activity takes place so requires, as provided in the general regulations of the law, when required by the Civil Defence or when non-compliance with the environmental licence by the competent environmental authority is verified. In any case, the provision of suspension of mining activities shall be ordered exclusively by the Minister of the Sector, by means of a reasoned resolution.

A mining concessionaire who is prevented from carrying out their mining activities normally, due to force majeure or a fortuitous case duly proven, may apply to the Sectoral Ministry for the suspension of the concession term for the period that the impediment lasts. For this purpose, the Ministry of Industry, by means of a reasoned resolution, shall admit or deny any such request.

Mining concessions are granted through a competition process where the first applicant has the right to match other offers, except in the case of applications made by ENAMI.

Unfortunately, the mining registry and procedure for new applications, called “Catastro Minero”, has now been closed for almost six years and it is impossible to predict when it will be reopened. Therefore, the only possible way to enter now is to partner with somebody who already holds mining rights or with ENAMI.

In accordance with the mining law, a mining concession has four years on initial exploration, four years on advanced exploration, two years renewable to an additional two years on economic evaluation and the remaining up to 25 years on exploitation. The exploitation period can be extended for up to another 25 years.

Once the initial exploration period or the advanced exploration period, as the case may be, has been completed, the mining concessionaire will have a period of up to two years to carry out the economic evaluation of the deposit and request, before its expiry, the beginning of the exploitation stage and the corresponding subscription of the Mining Exploitation Contract, in the terms indicated in this law. The mining concessionaire shall have the right to apply to the Ministry of Energy and Mines for an extension of the period of economic evaluation of the deposit for a period of up to two years from the date of the administrative act accepting that application.

In the event that the mining concessionaire does not request the start of the exploitation stage in the terms indicated in the foregoing, the mining concession shall be declared extinguished by the Ministry of the Sector.

Within six months from the resolution declaring the beginning of the exploitation stage, the mining concessionaire must sign with the State, through the Ministry of Energy and Mines, a Mining Exploitation Contract containing the terms, conditions and terms for the construction and assembly, extraction, transportation and commercialisation stages of the minerals obtained within the limits of the mining concession.

The holder of a mining concession may not carry out exploitation work without having previously signed the respective contract.

Maintenance fees per hectare “patente” must be paid annually during exploration and exploitation stages, on a scale that is adjusted annually in proportion to the minimum wage of Ecuador (USD450 for the year 2023). For small-scale mining, the patente is equivalent to 2% of the minimum wage (USD9 per mining hectare). For medium and large-scale mining, the patente shall be paid as follows:

  • initial exploration, 2.5%, equivalent to USD11.25 per mining hectare;
  • advanced exploration and economic evaluation, 5%, equivalent to USD22.5 per mining hectare; and
  • exploitation, 10%, equivalent to USD45 per mining hectare.

The benefits of the project are understood to be the revenues from the sales of minerals, minus amortisation of investments, minus operating costs and minus all pertinent taxes, government royalties and profit-sharing, to become the benefit to the company that must be lower than the benefit to the State that is formed by all taxes and royalties paid by the company in the same fiscal year. An adjustable formula called “ajuste soberano” is incorporated into the contracts to maintain this effect of the benefits to the State being higher than the benefits to the operating company.

If a project is considered to be large-scale before entering into the exploitation stage, the concession-holder must execute a contract with the State of Ecuador where minimum investments on the project and future royalties are set up.

The State of Ecuador may declare unilateral termination of a mining concession if the company has breached certain provisions of the law, including non-payment of annual per-hectare maintenance fees or royalties, not meeting minimum commitment investments, employment of children, material environmental damage duly proven through the Ministry of Environment and pertinent courts, and transference of mining rights without prior approval of the ministry.

Unilateral termination is conducted through a process where the company has the right to defend itself and, if possible, remediate the cause of generating unilateral termination.

Mining rights are transferable, provided prior approval is granted by the Ministry of Energy and Mines. For the transfer process, a request must be submitted to the Ministry specifying the percentage of the area to be transferred and attaching supporting documents. If the documentation is complete, the Ministry will request the ARCERNNR to issue three reports: legal, technical and economic. With these ARCERNNR reports, the Ministry will issue a resolution approving the transfer of concessions. This resolution must be registered in the Mining Registry under the charge of the ARCERNNR. Subsequently, a Public Deed must be executed between the assignor and the assignee, attaching the registered approving resolution. At the end of the process, the Public Deed must also be registered in the Mining Registry under the charge of the ARCERNNR.

The mining law establishes the right to free commercialisation; the holders of mining concessions can commercialise their production freely inside or outside the country. However, in the case of gold from small-scale mining and artisanal mining, the Central Bank of Ecuador will market it directly, or through public and private economic agents previously authorised by the Bank.

Natural or legal persons who, without being holders of mining concessions, are engaged in the marketing or export of metallic mineral substances or in the export of non-metallic mineral substances, must obtain the corresponding licence from the Ministry of Energy and Mines, in accordance with the provisions of the general regulations of the law. The same licence must be obtained by the mining concessionaires who trade in metallic mineral substances or export non-metallic substances from areas outside their concessions.

Natural or legal persons engaged in the internal commercialisation of non-metallic mineral substances, as well as jewellery artisans, will not require this licence. The marketing licences granted are valid for periods of three years, are non-transferable and can be renewed for the same periods.

Clandestine trade in mineral substances is considered in the case of:

  • holders of mining concessions who trade internally in metallic mineral substances, or export metallic or non-metallic minerals from other concessions, without the required licence; or
  • mining producers who sell metallic mineral substances to persons or entities not authorised to commercialise them.

Before any activity on a mining concession can start, an environmental licence granted by the Ministry of Environment must be obtained. There are different types of licence depending on the activity contemplated. For initial exploration activities, the licence can be obtained faster than for advanced exploration or exploitation, for which it can take up to two years to obtain a licence.

In addition, it is a requirement that an independent certificate from the water authority be obtained, evidencing that the proposed activities shall not have any impact on water sources.

As a signatory of different international treaties, Ecuador also requires community consultation in cases involving indigenous communities and, in all cases, it is mandatory to disclose and inform the people of the area about the potential environmental impacts of each activity.

Community rights and continuous constitutional actions against mining companies brought by political leaders are a serious concern for mining investors and have to be analysed carefully before entering into any project in Ecuador.

Environmental licensing is an obligatory process for mining concessionaires, so that they can proceed with the different mining stages, and this must be managed through the Unified Environmental Information System (SUIA).

In order to obtain the Environmental Licence, it is necessary to request an Intersection Certificate which verifies the location of the concession within protected areas, or not, since, if this is the case, it will be necessary to act differently.

In all cases, the mining title-holder must obtain from the National Environmental Authority the Intersection Certificate from which the intersection of the mining rights in relation to the National System of Protected Areas, Protected Forests and Vegetation, State Forest Heritage or other conservation areas declared by the National Environmental Authority is detached.

If the mining right intersects with the National System of Protected Areas, as far as extractive activities are concerned, it will proceed according to the provisions of Article 407 of the Constitution of the Republic of Ecuador and the competent environmental regulations.

In the event that the mining right intersects with Protective Forests and Vegetation or the State Forest Heritage, the mining title-holder, prior to the start of the environmental licensing process, must apply to the National Forestry Directorate of the Ministry of the Environment for certification of environmental viability qualified with the report on the feasibility of the mining right. This certification will be issued by the National Forestry Director.

The intersection certificate will be issued for the mining rights, among others authorised by the Ministry of the Environment, or for those cases in which the title-holder requires only the Environmental Licence of the operating area.

It is the responsibility of the mining title-holder to contract an external consultant qualified by the Ministry of the Environment, who will be in charge of carrying out the Environmental Impact Study within which a technical file of the project must be included, a description of the study area and a complete description of the project prior to the beginning of any stage of exploration, exploitation or others.

Likewise, in conjunction with the Environmental Impact Study, it is necessary to carry out the Environmental Management Plan, which includes methods of evaluation and monitoring of the project, as well as a general schedule containing a budget within which the environmental policy requested by the same ministry is included.

The Environmental Impact Study must identify, describe, quantify and evaluate, in a precise manner and according to the characteristics of each case, the foreseeable effects that the execution of the mining project will produce on the different environmental and socio-economic aspects.

The Environmental Management Plan will also include aspects of monitoring, evaluation, monitoring and contingency, partial closures of operations and closure and abandonment of mining operations, with their respective programmes, schedules and budgets.

There are different types of environmentally protected areas throughout Ecuador. In most of them, mining is not possible; however, in certain buffer zones it may be possible with the Ministry of the Environment’s prior consent.

The Ministry of the Environment creates the National System of Protected Areas, which guarantees the conservation, management and sustainable use of biodiversity, as well as the functional connectivity of terrestrial, insular, marine, marine-coastal ecosystems and the rights of nature.

Protected areas are priority spaces for conservation and sustainable development. Decentralised autonomous governments should incorporate protected areas into their land-use planning tools.

The National Environmental Authority will carry out periodic technical evaluations in order to verify that the protected areas comply with the objectives recognised for them. If necessary and considering the results of such technical evaluations, the National Environmental Authority may delimit them or change them under technical considerations, as appropriate.

In all cases, the mining owner must obtain from the National Environmental Authority the Certificate of Intersection indicating the intersection of mining rights in relation to the National System of Protected Areas, Protected Forests and Vegetation, State Forest Heritage or other conservation areas declared by the National Environmental Authority.

Article 407 of the Constitution prohibits the extraction of non-renewable resources in protected areas and in areas declared as intangible, including logging. Exceptionally, such resources may be exploited at the justified request of the Presidency of the Republic and following a declaration of national interest by the National Assembly, which, if it deems it appropriate, may convene a popular consultation.

All types of metallic mining in any of its phases are prohibited in protected areas, urban centres and intangible zones.

Communities constitute the most prominent issue on a mining project in Ecuador. Opposition, political activism and community claims are usual. There is no magic rule on the issue; only companies’ best practices can help to overcome community and community leaders’ opposition to mining projects.

It is usual for community leaders and local politicians to file constitutional actions before the local judge, requesting suspension or termination of mining rights. The usual arguments are environmental damage and lack of proper ancestral or environmental consultation. How the local judge is going to rule is unpredictable. The decisions of the local judge can be appealed to a superior court that, again, has broad scope on how to decide. From the superior court it is possible to file an extraordinary protection action with the Constitutional Court; however, this latter option takes just a few cases and takes quite some time to resolve.

The Mining Law establishes that all title-holders must have a Community Relations Plan that fulfils the purpose of reducing, mitigating and compensating the socio-environmental impacts generated by their activity. This plan will be developed with the communities located in the area of influence of the project, and in co-ordination with the development plans of the local governments involved.

The Ecuadorian Constitution provides for several types of consultations, to ancestral aboriginal communities, to the affected population on environmental matters and even to the general population on any matter.

In accordance with the Ecuadorian Constitution and OIT 169, prior consultation is only mandatory for ancestral communities; however, other forms of consultation, such as with the public at large, can also block a project. The Constitutional Court has rejected some of the general requests for consultation but has not been able to hold a clear rule on how and when consultations are possible. Therefore, the issue is still uncertain and remains a great uncertainty for mining projects.

The Constitution recognises and guarantees indigenous communes, communities, peoples and nationalities free, prior and informed consultation, within a reasonable time, on plans and programmes for the prospecting, exploitation and commercialisation of non-renewable resources found on their lands that may affect them environmentally or culturally, allowing them to participate in the benefits that these projects bring and to receive compensation for the social, cultural and environmental damages caused to them. This type of consultation is known as indigenous/ancestral consultation. The consultation to be carried out by the competent authorities shall be obligatory and timely. If the consent of the community consulted is not obtained, the Constitution and the law shall apply.

Article 398 of the Constitution establishes that any State decision or authorisation that may affect the environment must be consulted with the community, to which ample and timely information shall be provided. This type of consultation is known as the environmental consultation. The consulting subject shall be the State. The law shall regulate the deadlines, the people consulted and the criteria for assessment and objection to the activity submitted for consultation.

If the referred consultation process results in a majority opposition of the respective community, the decision to execute the project, or not, will be adopted by a duly motivated resolution of the corresponding higher administrative instance in accordance with the law.

The Environmental Law establishes that the Competent Environmental Authority shall inform the population that could be directly affected about the possible realisation of projects, works or activities, as well as the possible expected socio-environmental impacts and the pertinence of actions to be taken. The purpose of the participation of the population will be to collect their opinions and observations in order to incorporate them in the Environmental Studies, provided that they are technically and economically viable.

A key aspect of the Environmental Impact Study is to include mechanisms of socialisation and citizen participation, so that the population is informed of the environmental impact of carrying out projects; this will be channelled through the tools set out in the Organic Code of the Environment.

In March 2023, an Executive Decree was passed regulating environmental consultation; however, indigenous groups filed an unconstitutionality action to the Constitutional Court claiming that the Executive Decree was unconstitutional. The Constitutional Court ruled that the Executive Decree will be in force until the National Assembly issues a new law regulating environmental consultation.

Regarding the indigenous/ancestral consultation, there has not yet been issued any regulatory law. Therefore, the only references and parameters to indigenous/ancestral consultation are those provided in ILO 169 and the parameters set by the Constitutional Court.

Ecuador is made up of a large ethnic mix of indigenous peoples and immigrants who arrived a few centuries ago. Technically, only the indigenous/ancestral communities are required to have prior consultation but, considering the large and diverse ethnic mix, everybody claims to be a community subject to consultation and special rights. The issue has to be analysed on a case-by-case basis and it is impossible to predict an outcome.

Community development agreements are possible, but not mandatory. It is advisable to have co-operation agreements with local communities and to include them as much as possible as part of the project.

Former president Guillermo Lasso issued Executive Decree No 754 by which the Regulations to the Environmental Organic Code were reformed, and a chapter regarding environmental consultation was included. Environmental consultation must be carried out during the process to obtain environmental registry for initial exploration and environmental licensing for advanced exploration and exploitation. Indigenous groups filed a constitutional action against the Executive Decree, claiming that environmental consultation shall be regulated by virtue of an Organic Law and not Regulations. The Constitutional Court ruled that the Execute Decree No 754 is not constitutional because environmental consultation shall be regulated in an Organic Law. However, it ruled that the Executive Decree will be valid and in force until the National Assembly issues an Organic Law regulating environmental consultation.

The worst example is Cooper Mesa v Republic of Ecuador, regarding a large copper deposit. After several years of debate between the company and the community leaders, and independently of winning in court, the government of Ecuador declared unilateral termination of the mining concessions. This resulted in Cooper Mesa winning an arbitration award. The project is now being developed by ENAMI, the Ecuadorian mining company, in association with the Chilean mining company CODELCO.

One of the difficult issues to overcome in Ecuador is illegal mining. Lately, the government has been making important efforts to combat this, but it has not yet been controlled.

The best example of community relations/consultation is the Lundin, Fruta del Norte Project that, with a good integration programme with surrounding communities in place, started production on a large-scale mine for gold.

There are no concerns about climate change in general in Ecuador. The big issue is community consultations.

No legislation is being passed regarding mining and climate change. What is being discussed is the right of the population, whether indigenous or not, to vote in a referendum or other type of consultation against mining projects.

Ecuador has many NGOs; some of them promote sustainable development, but most of them simply oppose mining projects, and blocking mining development seems to be their ultimate goal.

There are no legislative initiatives related to the increasing demand for the so-called energy-transition minerals, such as lithium and nickel, in Ecuador. Political opposition to mining has caused the government to refrain from leading any mining initiative.

The main rule originating in the Constitution is that the benefit to the State shall always be higher than the benefit to the operating company.

The benefit to the State is mainly formed of 12% of profit-sharing, 25% of income tax, royalties between 3% and 8% and VAT. It is important to note that community support or generation of employment is not treated as a benefit for purposes of satisfying the constitutional rule.

The benefit to the operating company is the total amount of sales minus amortisation of investments in accordance with applicable accounting rules, minus all operating costs (it is important to note that contributions to community development are not tax-deductible), minus all amounts paid in royalties between 3% and 8% on large-scale mining projects, minus 12% profit-sharing currently being paid to the central government and minus 25% of income tax.

There is no different treatment for national or foreign investors. While a tax of 2% applies to all transference of funds from Ecuador abroad, it is exempted for dividends.

There are no material incentives, since the rule of the government benefit being greater than the company benefit is a constitutional concept that does not admit any exemptions.

On large-scale mining projects, it is necessary to execute a contract before entering production. In that Exploitation Contract, stabilisation clauses may be possible, provided that the aforementioned benefit rule is maintained.

The general tax regime provides for capital gains of up to 10% on the transference of mining concessions’ rights or shares, except when the local project represents less than 20% of the value of the total transaction.

Ecuador had a boom in the attraction of mining investment in 2016 and 2017, due to several factors, being mainly:

  • exploration potential;
  • at that time it was possible to apply for new mining concessions directly from the government; and
  • political and community opposition was manageable.

While the exploration potential remains, the other two factors are not so clear: it is uncertain when it will be possible to apply for new mining concessions and how the judges and courts are going to rule on constitutional actions aiming to block mining projects.

There are no restrictions on foreign investments. Foreign and Ecuadorian capital and companies receive the same treatment.

Ecuador resigned from most of the treaties it had signed for protection of investments from other countries, called bilateral investment treaties (BITs). The protection of investments can only be achieved from local judges and courts or, eventually, through clauses on the exploitation contract before the production period or a protection of investments agreement with the Ministry of production aiming to achieve international arbitration for disputes between the parties.

Exploration, development and mining have been financed from different sources in Ecuador, depending on the type of company behind the projects. Most of the junior mid-sized companies seek capital in foreign stock exchanges and finance their activities with loans by finding a major as a partner. The few majors that have arrived have their own resources.

The domestic securities market has not been a player in the financing of exploration, development and mining in Ecuador. Most of its financing comes from abroad.

It is possible to take security on the shares of the local subsidiaries, the mining concession itself and the assets. Security must be registered on local registers.

Production of copper on the Mirador Project and gold on the Fruta del Norte Project, both large-scale projects, indicates a sign of opportunity in Ecuador.

The arrival into Ecuador of Newcrest, Anglo American, BHP, CODELCO, Fortescue and others in 2016 and 2017 was a sign of trust in the country and eventually a sign of moving into becoming a mining country in place of the existing oil exports that may start to decline at some point.

However, the recent aggressive opposition of local leaders and politicians and the uncertain signs given by local judges and courts are probably slowing the pace of investment that the majors had made. It is a period of expectation of clearer signs of society welcoming reliable mining investments from the major players.

Flor Bustamante Pizarro & Hurtado

Office 803
Torre 6 Building
Av. 6 de Diciembre y Juan Boussingault
Quito
Ecuador

+593 999 463 866

roque.bustamante@fbphlaw.com www.fbphlaw.com
Author Business Card

Trends and Developments


Authors



Flor Bustamante Pizarro & Hurtado has a team of 12 senior partners and 25 attorneys, offering multidisciplinary advice for carrying out petroleum, energy, and mining production projects. Headed by Roque Bustamante and Andres Ycaza, the mining law team is composed of eight lawyers. Ecuador, a country blessed with a massive amount of natural resources, relies tremendously upon those resources. Nonetheless, investments in natural resources are subject to unstable political and economic scenarios, so the firm begins with a legal and financial analysis of each project, anticipating the potential risks during execution. The team’s experience enables it to find the best investment opportunities and to maintain a stable and reliable projection for each project. It always offers clients assistance for warranting stability and balance, starting with the initial phase of acquisition, up to the completion of the negotiation, exploration and production phases. The firm designs legal strategies for protecting clients’ interests during the entire process, always looking to safeguard their investments.

Environmental Consultation in Ecuador

In Ecuador, there are four types of consultation that are related to the mining sector and natural resources in general:

  • popular consultation (Article 104 of the Ecuadorian Constitution);
  • free, prior and informed consultation to indigenous/ancestral communities (FPIC) (Article 57.7 of the Ecuadorian Constitution);
  • pre-legislative consultation with indigenous/ancestral communities (Article 57.17 of the Ecuadorian Constitution); and
  • environmental consultation (Article 398 of the Ecuadorian Constitution).

This chapter will focus on the environmental consultation.

What is the environmental consultation?

The Ecuadorian Constitution provides in Article 398 that any government decision or authorisation that may affect the environment must be consulted with the community. This consultation is independent of the ethnicity of the members of the communities.

The Organic Environmental Code and its Regulations, as well as the Environmental Regulations for Mining Activities, differentiate between low-impact projects and medium- and high-impact projects: they provide that low-impact projects (ie, mining initial exploration) need to obtain an environmental registry and medium- and high-impact projects (ie, mining advanced exploration and exploitation) need to obtain an environmental licence. Environmental registries and environmental licences are not only required for mining activities, but for whichever activities that generate high, medium or low environmental impact respectively. However, this chapter will only be discussing the environmental consultation relating to the mining industry.

The Organic Environmental Code provided that during the environmental regularisation of medium- or high-impact projects aimed at obtaining environmental licences, it was necessary to carry out a citizen participation process (which was commonly interpreted by the State authorities and concessionaires as the environmental consultation process established in Article 398 of the Constitution). In this sense, the environmental consultation/citizen participation process was only required prior to obtaining the environmental licence for advanced exploration and exploitation; it was not required for obtaining the environmental registry for initial exploration.

Manglares and Los Cedros Case

However, in ruling No 22-18-IN/21, dated 12 October 2021, known as the “Manglares Case”, the Constitutional Court determined that the citizen participation process necessary to obtain environmental licences is not the same nor does it replace the environmental consultation established in Article 398 of the Constitution. In this ruling, the Constitutional Court established that environmental consultation must comply with the Constitution, international treaties such as the Escazú Agreement, and with the parameters imposed by the Constitutional Court itself.

As a result of this ruling, the Ministry of Environment established that all projects that initiated their environmental regularisation process before 12 October 2021 (before the Manglares Case) may continue with the citizen participation process, and all projects that initiate their environmental regularisation after 12 October 2021 (after the Manglares Case) must carry out an environmental consultation process.

On 1 December 2021, the Constitutional Court issued ruling 1149-19-JP/2021, known as the “Los Cedros Case”. This was an important environmental and mining case in which the Constitutional Court revoked some environmental licences for having been granted within a protection forest and for not having carried out the environmental consultation process. In this ruling, the Constitutional Court provided that the environmental consultation must be carried out in all mining phases, including initial exploration, prior to obtaining the environmental registry.

So, based on the Manglares Case and the Los Cedros Case, all new environmental regularisation processes initiated after 12 October 2021, whether to obtain an environmental registry or an environmental licence, needed to carry out an environmental consultation.

The problem was that there was no law regulating the procedure and the parameters of the environmental consultation. Therefore, the environmental regularisation process was suspended and no new environmental licences were granted. This suspension had a strong impact on Ecuador’s productive activities and all other activities needing environmental permits, such as hospitals.

Executive Decree No 754 regulating the environmental consultation

Finally, after almost a year and a half, on 31 May 2023, former President Guillermo Lasso issued Executive Decree No 754 reforming the Regulations to the Organic Environmental Code and regulating the environmental consultation. This Executive Decree allowed for projects in different industry sectors to continue with their environmental regularisation processes and commence the environmental consultations.

The Executive Decree provided the principles, parameters and procedure of the environmental consultation. Some of the most relevant provisions are as follows.

  • The environmental consultation shall be carried out prior to obtaining an environmental licence for medium- and high-impact activities in all industries, and prior to obtaining an environmental registry for low-impact activities only for hydrocarbons and mining activities.
  • The purposes of the environmental consultation are:
    1. to guarantee the communities adequate, broad and timely access to the information corresponding to the environmental technical instruments of the project to be executed;
    2. to generate spaces for dialogue between the community and the competent environmental authority;
    3. to collect, systematise and evaluate the opinions and observations of the community; and
    4. to consult the community on the granting of the environmental permit.
  • The principles to be applied during the environmental consultation are:
    1. equality and non-discrimination;
    2. timely access;
    3. inclusion;
    4. interculturality;
    5. good faith;
    6. legality, legitimacy and representativeness; and
    7. transparency.
  • The consulting party is the State, through the Ministry of Environment.
  • The consulted people will be determined according to the project’s area of direct social influence. There will be a registry of consulted people, constituted by a list of members of the communities in the area of direct social influence. If someone does not belong to the area of direct social influence and considers that their environment may be affected by the issuance of the environmental permit, they may present their grounds for inclusion and the Environmental Authority will determine their inclusion or not. In the event that the people consulted do not exercise their right to participate in the process, having been summoned, the process will continue, without these constituting grounds for nullity or suspension of the process.
  • The technical environmental documents subject to consultation are:
    1. Environmental Impact Study;
    2. complementary studies; and
    3. Environmental Management Plan.
  • If the process results in a majority opposition, the decision to grant the environmental permit or not must be made by the competent environmental authority and must be supported.
  • The costs of the participation process for prior consultation will be borne by the project operator.
  • Environmental permits granted by the competent environmental authority prior to the issuance of the Executive Decree (before 30 May 2023) are in force.

The environmental consultation process is divided into two phases: (i) information phase; and (ii) consultation phase.

Information phase

During this phase the environmental authority is required to undertake an in situ visit to the area of direct social influence and provide information to the consultees through the following possible mechanisms:

  • informative meetings;
  • websites;
  • informative videos;
  • delivery of informative documentation on environmental technical instruments;
  • public information centres; and
  • environmental socialisation workshops.

Reports shall be issued by the environmental authority, including the comments and opinions of the community regarding the technical documents. The operator shall include the opinions and observations generated during the informative phase in the environmental technical documents, provided that they are technically and economically feasible.

The entire information phase will last approximately two months.

Consultation phase

During this phase, an assembly will be convened to discuss the amended technical documents.

In the case of approval by the consulted communities, the competent authority will issue a final report ending the environmental consultation process and will order the continuity of the environmental regularisation process. If there is opposition by the communities, the decision whether to continue with the process for the granting of the environmental permit must be motivated and supported by the competent environmental authority.

The entire consultation phase will last approximately one month.

Constitutional legal action against Executive Decree No 754

On 13 June 2023, the Confederation of Indigenous Nationalities of Ecuador (CONAIE), the Confederation of Indigenous Nationalities of the Amazon of Ecuador (CONFENAIE), and other indigenous groups, filed an unconstitutionality action before the Constitutional Court against Executive Decree No 754. Their main arguments were:

  • that the right to environmental consultation should be regulated in an Organic Law and not in an Executive Decree reforming a Regulation, since the Regulation is of lower normative hierarchy;
  • that pre-legislative consultation was not carried out; and
  • that Executive Decree No 754 confuses environmental consultation and indigenous consultation.

On 31 July 2023, the Constitutional Court ordered precautionary measures and suspended the effects of Executive Decree No 754. By virtue of these precautionary measures, all environmental regularisation processes that required environmental consultation were suspended, not only for mining projects, but for all industries. This again caused a great impact on Ecuador’s productive activities.

On 9 November 2023, the Constitutional Court issued Ruling No 51-23-IN/23 regarding the unconstitutionality of Executive Decree No 754, which was published on 17 November 2023. The main points are as follows.

  • The Constitutional Court declared Executive Decree No 754 unconstitutional due to its form, sustaining that the environmental consultation should be regulated in an Organic Law and not in a Regulation. This is contradictory because it was the Constitutional Court itself, in the Manglares Case, that ordered the President to adapt the Regulation to the parameters established by the Constitutional Court in that ruling (and that is what the former President did).
  • The Constitutional Court is silent on the need for pre-legislative consultation prior to the issuance of regulations governing environmental consultation. The silence of the Constitutional Court is of concern because it is not clear whether (or not) the issuance of the Organic Law regulating the environmental consultation must go through a pre-legislative consultation beforehand.
  • The Constitutional Court is also silent on whether the Executive Decree confuses environmental consultation with the indigenous/ancestral consultation. This point also concerns the mining industry because Executive Decree No 754 regulates solely the environmental consultation, and those who are confused about the differences in the consultations are the plaintiffs themselves.

Regarding the effects of the declaration of unconstitutionality of Executive Decree No 754, the Constitutional Court provided as follows.

  • The Constitutional Court deferred and postponed the effects of the declaration of unconstitutionality so that Executive Decree No 754 will be in force and is applicable until the National Assembly issues the Organic Law regulating the environmental consultation.
  • The Constitutional Court established that the standards developed by the jurisprudence of the Constitutional Court should serve as guidelines for the application of Executive Decree No 754. Among those guidelines are the following.
    1. Executive Decree No 754 should not be applied to indigenous communes, communities, peoples and nationalities. These groups should be consulted through an indigenous consultation under Article 57.7 of the Constitution and by the standards developed by the jurisprudence of the Constitutional Court (this is a problem because there is no law regulating indigenous consultation).
    2. Information should be comprehensive and timely.
    3. The purpose of the consultation is a two-way dialogue and is not achieved by merely “informing”.
    4. The consulted people are the members of any community regardless of their ethnicity. Any person who has not been considered in the environmental consultation and who considers, in a substantiated manner, that the measure affects them should be included.
    5. The consultation shall be undertaken by the State. The State cannot delegate the process to the operators of the project in any aspect (ie, provision of inputs or financing). Executive Decree No 754 establishes that the operator must provide the economic funds to carry out the consultation; however, the Constitutional Court clarifies that the operator cannot intervene in the consultation.
    6. The environmental consultation for mining projects shall be done prior to obtaining the environmental registry and prior to obtaining an environmental licence.
    7. The consultation must be free, bona fide, participatory, and inclusive, accessible, clear, objective and complete.
    8. The Constitutional Court explicitly clarifies that until the National Assembly issues the corresponding Environmental Consultation Law, the application of Decree No 754 must also comply with the parameters of the Constitutional Court and, in case of non- compliance, a protection action is the appropriate guarantee to claim for violation of the environmental consultation right.

The Constitutional Court ordered the Ombudsman’s Office to follow up on the environmental consultation bills that are in process in the National Assembly or to prepare a new bill regulating environmental consultation and ordered the National Assembly to approve the environmental consultation law within one year from the date the Ombudsman’s Office follows up or presentation of a new environmental consultation law.

Additionally, the Constitutional Court drew attention to and insisted the National Assembly issue the Indigenous Consultation Law, and gave the National Assembly one year to issue the Indigenous Law.

Although the Executive Decree No 754 was declared unconstitutional, it is positive for the mining industry, and in general for any productive industry that needs to obtain environmental permits, that the Constitutional Court has declared Executive Decree No 754 to be in force until the issuance of an Organic Law, because this will allow for the environmental regularisation processes to continue without being paralysed and affecting the country’s productivity.

Flor Bustamante Pizarro & Hurtado

Office 803
Torre 6 Building
Av. 6 de Diciembre y Juan Boussingault
Quito
Ecuador

+593 999 463 866

roque.bustamante@fbphlaw.com www.fbphlaw.com
Author Business Card

Law and Practice

Authors



Flor Bustamante Pizarro & Hurtado has a team of 12 senior partners and 25 attorneys, offering multidisciplinary advice for carrying out petroleum, energy, and mining production projects. Headed by Roque Bustamante and Andres Ycaza, the mining law team is composed of eight lawyers. Ecuador, a country blessed with a massive amount of natural resources, relies tremendously upon those resources. Nonetheless, investments in natural resources are subject to unstable political and economic scenarios, so the firm begins with a legal and financial analysis of each project, anticipating the potential risks during execution. The team’s experience enables it to find the best investment opportunities and to maintain a stable and reliable projection for each project. It always offers clients assistance for warranting stability and balance, starting with the initial phase of acquisition, up to the completion of the negotiation, exploration and production phases. The firm designs legal strategies for protecting clients’ interests during the entire process, always looking to safeguard their investments.

Trends and Development

Authors



Flor Bustamante Pizarro & Hurtado has a team of 12 senior partners and 25 attorneys, offering multidisciplinary advice for carrying out petroleum, energy, and mining production projects. Headed by Roque Bustamante and Andres Ycaza, the mining law team is composed of eight lawyers. Ecuador, a country blessed with a massive amount of natural resources, relies tremendously upon those resources. Nonetheless, investments in natural resources are subject to unstable political and economic scenarios, so the firm begins with a legal and financial analysis of each project, anticipating the potential risks during execution. The team’s experience enables it to find the best investment opportunities and to maintain a stable and reliable projection for each project. It always offers clients assistance for warranting stability and balance, starting with the initial phase of acquisition, up to the completion of the negotiation, exploration and production phases. The firm designs legal strategies for protecting clients’ interests during the entire process, always looking to safeguard their investments.

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