This submission by Amnesty International Canada is in response to the Government of Canada’s invitation to consult with Canadian stakeholders regarding our views, reflections and priorities in relation to a possible free trade agreement (FTA) with Ecuador.
Your invitation states that: “Because we seek to ensure that more Canadians have access to the benefits and opportunities that flow from international trade and investment, we welcome input and submissions on the potential gender, environmental and social impacts of launching FTA negotiations with Ecuador.”1 It is with regards to these issues and with the goal of protecting human rights that we are taking part in this consultation.
Amnesty International Canada works together with Indigenous women human rights defenders in Ecuador who form a collective called Mujeres Amazónicas Defensoras de la Selva (Amazonian Women Defending the Forest). The defenders belong to the Shiwiar, Zapara, Kichwa, Shuar and Waorani Indigenous Peoples. Members of the organization have faced dangerous threats and attacks as they have spoken out and sought to stop multiple harms caused by resource extraction projects in their territory.
More than 9,000 concerned supporters of Amnesty Canada have called on the Ecuadoran government for investigation to bring everyone behind the threats and attacks to justice, as well as for other measures to ensure protection for the women and their communities. The danger to Indigenous women who speak out continues, as does their opposition to resource extraction projects that will negatively impact their territory and human rights, and which proceed without their free, prior and informed consent, in violation of international human rights standards.
We have communicated with our partners at Mujeres Amazónicas Defensoras de la Selva about Canada’s consultation about a possible free trade agreement with Ecuador.2
We also shared comments published in Canada by Ecuador’s Ambassador Carlos Játiva that the proposed free trade pact will focus on “fostering increased mining opportunities in Ecuador” and that to boost mining investment, “Ecuador is in favour of having an investor-state dispute settlement (ISDS) provision within the agreement”.3
Concerns of Indigenous women human rights defenders in Ecuador regarding consultation and consent
Mujeres Amazónicas Defensoras de la Selva told us that the Indigenous peoples they represent had received no information in their country about the launch of free trade talks with Canada, the goals of the government of Ecuador and what it wants included in the deal, despite the far-reaching consequences for Indigenous peoples in territories that are of interest to resource extraction companies. The Indigenous women’s collective and their ally organizations in the Indigenous movement in Ecuador, have not been invited to a consultation in their country, nor offered the opportunity to provide their perspectives or priorities with regards to a possible Canada-Ecuador free trade agreement.
Amnesty International Canada wishes to use this consultation space to urge the Government of Canada to consider the serious concerns and call for full compliance with international human rights standards outlined in the following Public Statement prepared by Mujeres Amazónicas Defensores de la Selva regarding a possible free trade agreement between Canada and Ecuador:
“Since November 2022, Ecuador and Canada have been in talks about a free trade agreement. Such an agreement poses a grave threat to the human rights of Ecuadorian citizens and Indigenous peoples, in particular, due to the possible protections it would grant to foreign companies, including Canadian companies.
Currently, our rights and our territories are being seriously threatened by Canadian companies like Solaris Resources and Aurania Resources, which do not respect the collective rights of Indigenous peoples and operate illegitimately in Indigenous territories in Morona Santiago.
Therefore, without the participation and the free, prior and informed consent of Indigenous peoples, such an agreement would pose a clear violation to our rights, which have been recognized at the international level by the United Nations Declaration on the Rights of Indigenous Peoples, Convention 169 of the ILO on Indigenous and Tribal Peoples, and the American Declaration on the Rights of Indigenous Peoples.
Regarding free trade and investment agreements that will directly impact Indigenous peoples, the Special Rapporteur of the United Nations Human Rights Council on the rights of Indigenous peoples has clearly recognized that such agreements are in themselves ‘a violation of the rights to free, informed and prior consent, participation, consultation and self-determination’.4
In addition, the United Nations Committee on the Elimination of Racial Discrimination urges states to ensure that no decisions directly related to the rights and interests of Indigenous peoples are taken without their informed consent.5
Therefore, any decision or treaty that could affect our rights and territories without our free, prior, and informed consent would be illegitimate and invalid. Within the framework of the right to self-determination, autonomy, and self-government, Amazonian women, members of various nationalities and Indigenous peoples of the Ecuadorian Amazon remain committed to exercising our rights.”6
Concerns regarding failures to respect Indigenous rights in Ecuador and to ensure safety for Indigenous rights and territory defenders
Amnesty International Canada shares the calls of Mujeres Amazónicas Defensoras de la Selva for guarantees that no free trade agreement will advance without meaningful consultation with affected Indigenous peoples and their free, prior and informed consent, in compliance with Canada’s obligations under international human rights standards.
We also share concerns about the potential threat to Indigenous peoples posed by any agreement which contains provisions that provide the right to corporations to sue governments claiming millions of dollars in damages for the impact on their investments of public interest regulations and other legitimate government actions, or when judicial decisions are reached in favor of the rights of communities and the protection of ecosystems. This can act as a deterrent to governments acting to protect rights and the environment. 7 The UN Working Group on the issue of human rights and transnational corporations and other business enterprises has called on States to ensure that all existing and future investment agreements are compatible with their international human rights obligations, including by replacing investor-State dispute settlement with a dispute resolution mechanism that is fair, transparent, independent, predictable and accessible to all parties on an equal footing.8
In our 2022 report Ecuador: The Amazon at Risk, Amnesty International concludes that “both authorities and companies have continued to disregard Indigenous peoples’ rights through policies and largescale projects, such as oil and mining, that have not received their free, prior and informed consent and/or that have affected their territories, environment, health, water and/or food sources.9
Amnesty International is also deeply worried about the link between resource extraction projects in Indigenous territory and increased violence against Indigenous women and girls, a situation that could be exacerbated by the promotion of more resource extraction projects via a free trade agreement. Mujeres Amazónicas Defensoras de la Selva has called for “an in-depth and historic investigation into the sexual and gender violence associated with mining and oil activities, as well as with the militarization, in order that the necessary sanctions be applied and to provide assurances that there will be NO repetition in the Amazonian Indigenous territories of Villano, in the Northern Amazon.” They have also called for investigation of particular cases of physical and sexual violence, including prostitution, in order to establish a public policy appropriate to the context of Indigenous women from the different nationalities living in the Ecuadorian Amazonian region.10
Human rights defenders continue to lack appropriate protection mechanisms to safeguard their lives and personal safety. Authorities have failed to ensure effective investigations into threats and attacks against human rights defenders, particularly those working to defend Indigenous peoples’ rights and the environment.
Indigenous women defenders tell us about the gendered dimensions of attacks. “Women are by definition more at risk than men,” Sarayaku defender Patricia Gualinga told us. “Women can be threatened sexually, physically … we women unite because we have to.” 11
Attacks on human rights defenders have frequently gone unpunished, while authorities’ unfounded accusations against them, that have the purpose of intimidating them, have been immediately investigated. Authorities have yet to design and implement a policy to protect human rights defenders at risk, including a protocol for adequately investigating threats and attacks against them.
Amnesty International has exposed failures of the Attorney General’s Office in response to a series of attacks and death threats in 2018 in the Pastaza province against women human rights defenders Patricia Gualinga, Nema Grefa, Salomé Aranda and Margoth Escobar, members of the Mujeres Amazónicas collective. The authorities’ lack of capacity and will to adequately and effectively provide protection and conduct criminal investigations into the attacks and death threats against these defenders, placed their lives at risk. The lives of others protecting the Amazon from political and economic interests linked to large-scale extractive projects in Indigenous territories have also been at risk.12
No one has been brought to justice in connection with threats and attacks against these human rights defenders. In June 2020, the prosecutors in charge of the cases of attacks and threats against human rights defenders Patricia Gualinga and Margoth Escobar requested to close the investigations without any relevant progress.13
Concerns regarding environmental and human rights harms of resource extraction in Ecuador and obstacles to remedy
In October 2019, the Sarayaku People filed an action in local courts to demand the full implementation of a 2008 ruling by the Inter-American Court on Human Rights that ordered Ecuador to apologize, consult with and recompense the Sarayaku People over an oil project which damaged their ancestral lands and put their lives at risk.14
On 7 April 2020 an oil spill in the Amazon polluted the Coca and Napo rivers, affecting the environment, water, food and livelihoods of nearly 120,000 people, of whom approximately 27,000 were Indigenous of the Kichwa and Shuar nationalities (ethnicities) living in 105 communities.15 The oil spill was caused by the rupture of pipelines of the Trans Ecuadorian Oil Pipeline System (SOTE) and the Heavy Crude Oil Pipeline (OCP), owned by the state oil company Petroecuador and the private company OCP Ecuador, at Cascada de San Rafael, in Sucumbíos province.
On 29 April 2020, a group of Indigenous and human rights organizations filed constitutional protection proceedings and requested precautionary measures on behalf of the people affected by the oil spill. On 1 September 2020, a judge rejected the petition and refused precautionary measures, stating that the petitioners had not proved a violation of rights. The petitioners claimed that there had been procedural irregularities in the case and that the judge had not respected due process guarantees. That month, the judge filed a criminal complaint against the petitioners for allegedly endangering his and his family’s physical integrity. Since then, the petitioners, who are human rights defenders, have faced a criminal investigation.16
In March 2021, the Orellana Provincial Court rejected an appeal submitted by communities affected by the 2020 oil spill in the Coca and Napo rivers. In May 2021, the Constitutional Court agreed to review rulings in the case and in June 2021, it agreed to review a request to protect their human rights.
In 2018, the A’i Cofán people of Sinangoe initiated legal proceedings against the Ecuadorian state for having granted 20 mining concessions and processing another 32, in violation of their rights to free, prior, and informed consent, to a healthy environment and to water, among others. The first instance ruling, issued in August 2018, recognized “that there was contamination in the water of the rivers that are part of the territory of the Sinangoe community.” Additionally, in November 2018, the second instance ruling ordered to leave the granted concessions without legal effect and to definitively suspend those that were pending. In 2019, the Constitutional Court decided to analyse the case to establish jurisprudence in this regard. On 27 January 2022, the Constitutional Court issued a ruling confirming the violation of their “rights to prior consultation, to nature, to water, to a healthy environment, culture and territory”, as well as ordering comprehensive reparation measures.
Recommendations
In light of the concerns we have raised, and the Public Statement by our partners at Mujeres Amazónicas Defensoras de la Selva, Amnesty International Canada urges Canada to comply with its obligations to international human rights standards, including the UN Declaration on the Rights of Indigenous Peoples and the UN Guiding Principles on Business and Human Rights by:
- Guaranteeing that no free trade agreement with Ecuador will advance without broad, transparent meaningful consultation with all affected Indigenous peoples in Ecuador, creating conditions for and ensuring the participation of Indigenous women and their organizations, including Mujeres Amazónicas Defensoras de la Selva – and that no agreement advances without their free, prior and informed consent.
- Acting on the recommendations of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises which call on States to ensure that all existing and future investment agreements are compatible with their international human rights obligations, removing investor-State dispute settlement provisions and ensuring ex ante and ex post human rights impact assessments of investment agreements on human rights and the environment, in line with UN guidelines, and paying particular attention to the impact on Indigenous peoples, racialized people, women and girls, and other marginalized persons, as well as on the regulatory space available to them under national and international laws.
- Ensuring mandatory human rights and environment due diligence, through a legal framework enshrined in legislation, and access to remedy when rights are breached by Canadian companies operating in Ecuador, and around the world.
[1] Government of Canada, Join the discussion: consulting Canadians on possible free trade agreement negotiations with Ecuador, 6 January 2023.
[2] We noted to our partners that the consultation webpage states that Canada and Ecuador launched exploratory discussions toward a potential Canada-Ecuador Free Trade Agreement on November 24, 2022. The same webpage states that as of 2021, Canada had the largest stock of foreign direct investment in Ecuador at $3.7 billion, led by investments in Ecuador’s mining sector.
[3] Neil Moss, “Potential Canada-Ecuador trade pact to navigate tricky investment protections field”, Hill Times, 25 January 2023.
[4] United Nations General Assembly, Report of the Special Rapporteur of the Human Rights Council on the rights of indigenous peoples, Victoria Tauli-Corpuz, submitted in accordance with Human Rights Council resolution 27/13, A/70/301, paragraph 31, 7 August 2015.
[5] UN Committee on the Elimination of Racial Discrimination, General Recommendation 23, Rights of indigenous peoples (Fifty-first session, 1997), U.N. Doc. A/52/18, annex V at 122 (1997), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.6 at 212 (2003).
[6] Mujeres Amazónicas Defensoras de la Selva, Las Mujeres Amazónicas Defensoras de la Selva ante posible tratado de libre comercio (TLC) entre Canadá y Ecuador, 17 February 2023.
[7] Hadrian Mertins-Kirkwood, On the Offensive How Canadian companies use trade and investment agreements to bully foreign governments for billions, Canadian Centre for Policy Alternatives, May 2022; and Interamerican Association for Environmental Defense (AIDA) – Committee in Defense of the Water and Páramo of Santurbán – Center for International Environmental Law – MiningWatch Canada – Centre for the Investigation of Multinational Corporations (SOMO), “Organizations condemn Eco Oro Minerals’ warning that it could sue Colombia over water protection measures”, 14 March 2016.
[8] UN Working Group on the issue of human rights and transnational corporations and other business enterprises, Human rights-compatible international investment agreements, A/76/238, 27 July 2021.
[9] Amnesty International, Ecuador: The Amazon at Risk, Amnesty International’s Submission to the 41st Session of the UPR Working Group, November 2022, March 2022, AMR 28/5384/2022.
[10] Amnesty International, “They will not stop us”: Justice and protection for Amazonian Women, Defenders of the land, territory and environment, 30 April 2019, AMR 28/0039/2019.
[11] Amnesty International, Ecuador: Press Authorities to Uphold their Promises to Protect Amazonian Women Rainforest Defenders, 26 August 2020.
[12] Amnesty International, “They will not stop us”: Justice and protection for Amazonian Women, Defenders of the land, territory and environment, 30 April 2019, AMR 28/0039/2019.
[13] Amnesty International, Ecuador: Concern over impunity for attacks against Amazonian women, 3 August 2020, AMR 28/2836/2020.
[14] Amnesty International, Ecuador: The Amazon at Risk, Amnesty International’s Submission to the 41st Session of the UPR Working Group, November 2022, March 2022, AMR 28/5384/2022
[15] Amnesty International, Ecuador: Indigenous communities of the Ecuadorian Amazon, whose lives and safety are threatened by an oil spill and COVID-19, demand respect for due process as they take legal action to defend their rights, 11 May 2020, AMR 28/2294/2020.
[16] Amnesty International, Ecuador: Amnesty International urges judiciary to promptly notify oil spill ruling to affected Amazon Indigenous Peoples, 22 September 2020, AMR 28/3102/2020
