AIDA et al. Comments to TÜV SÜD Re CDM Validation of Baba Hydroelectric Project (Ecuador)

Comments to TÜV SÜD Re CDM Validation of Multipurpose Baba Hydroelectric Project (MBHP) in Ecuador

TO: TUV SUD Industrie Service GmbH

RE: CDM Validation of Multipurpose Baba Hydroelectric Project

FROM: Interamerican Association for Environmental Defense (AIDA)
Earthjustice International Program
Organization for Environmental Law & Management (ECOLEX)

DATE: September 5, 2008

AIDA, Earthjustice and ECOLEX submit these comments on the Multipurpose Baba Hydroelectric Project in Ecuador (the "MBHP" or the "Project") pursuant to paragraph 40(c) of the modalities and procedures for the clean development mechanism (CDM) as defined under the Kyoto Protocol.¹ Critical information about the Project is not included in the CDM Project Design Document (PDD).² Specifically, we believe CDM validation requirements 37(b) and (c)³ regarding stakeholder consultation, consistency with all mandatory laws and regulations, and environmental impact assessment have not been met.

We therefore urge TUV SUD to review the overwhelming evidence outlined below that indicates the Project does not satisfy the letter or spirit of CDM validation requirements. On the basis of an impartial review of that evidence, TUV SUD should issue a negative validation opinion and post this decision on the CDM website, according to CDM validation procedures.⁴

Summary of Points

The MBHP is ineligible for CDM validation and registration because:

1. 1) the Project Participant failed to adequately consult affected communities, disclose complete and adequate information on Project impacts, summarize stakeholder concerns about the current Project design, and take them into due account;
2. 2) the Project Participant failed to complete an adequate EIA that fulfills the legal obligations of the host Party of Ecuador; and
3. 3) the Project fails to contribute to sustainable development for the host Party of Ecuador, as required by the Kyoto Protocol and the CDM.

A broad range of public institutions, including the Ecuadorian Ministry of Energy and Mining and the Inter-American Development Bank, as well as national and international civil society organizations have, in whole or in part, noted these failures, as detailed below.

A. The Project Fails to Meet the CDM Validation Requirements for Public Participation

The CDM modalities and procedures require TUV SUD, as the Designated Operational Entity (DOE), to review and make a decision on validation based on the PDD and any supporting documentation.

In order to validate a project, TUV SUD must verify that the Project Participant (in this case Hidroeléctrica Nacional Hidronación, hereafter Hidronación) has met CDM modality and procedure requirement 37(b): "Comments by local stakeholders have been invited, a summary of the comments received has been provided, and a report to the designated operational entity on how due account was taken of any comments has been received."⁵

1. The Project Participant Failed to Undertake Adequate Stakeholder Consultation

The PDD states that community opinion was considered in two stages: during the elaboration of the environmental Terms of Reference (apparently in 2004), and before the formal presentation of the Definitive Environmental Impact Statement (EIA) (apparently in 2006).

The MBHP will impact the subsistence livelihoods of several thousand people downstream from the Project who rely on fishing and subsistence agriculture, threatening their right to freshwater, healthy food, and a means of subsistence.⁶ However, with respect to community consultation during the 2004 stage, the PDD cites interviews with just 35 people (apparently only 25 without governmental affiliation). Moreover, with respect to these individuals, the PDD does not clarify meeting dates, numbers of meetings, information presented or discussed, or the comments of the participants. This is clearly inadequate to establish that affected communities were fully consulted.

In the 2006 stage, a public information center was created to receive community opinions, and a public presentation was held that the PDD claims was "attended [by] the same representatives of the community considered in the interviews described below." As in 2004, this is inadequate to establish that affected communities were fully consulted.

In fact, the process of stakeholder consultation for the final project design of 2006 is entirely unclear in the PDD. Again, it does not clarify numbers of meetings, dates, information presented, participants that attended, or comments received. Most importantly, the PDD does not indicate whether any downstream water users, fishermen, or subsistence farmers were consulted.

According to the Definitive EIA of 2006, a meeting was held to "validate and complement the information collected in the [individual] interviews."⁷ Despite the fact that stakeholders submitted several comments related to insufficient downstream water and impacts to downstream communities, these were not taken into account in the final Project design.

2. Summary of Stakeholder Comments Insufficient

With respect to whatever limited stakeholder consultation was conducted by Hidronación or previous project proponents, the PDD summarizes the comments as follows: "The most relevant stakeholders' comments were related with [sic] the loss of agricultural lands and houses."

Hidronación's conclusion that only the "relevant" comments related to loss of agricultural lands and houses is entirely insufficient and misleading. Over the past six years there has been constant public opposition to MBHP by affected downstream communities. Given the magnitude of the impacts of the Project to downstream water users, whatever consultation was undertaken by the Hidronación or others clearly was not representative of the actual concerns of affected stakeholders regarding their rights to freshwater, healthy food, and a means of subsistence. Hidronación's failure to consider the significant concerns of downstream communities, and its reference only to the loss of agricultural lands and houses, indicates that the stakeholder consultation process was wholly inadequate and not compliant with the CDM rules.

3. The Project Participant Failed to Take into Account the Concerns of Impacted Stakeholders

The PDD states that "the achievement of the environmental license proves that a complete and correct process has been made in order to inform the community about MBHP, and that all attainable requests were properly considered in the final project design."

However, the issuance of a license is not sufficient evidence of an adequate stakeholder consultation process, nor does it meet the CDM requirement that the Project Participant provide "a report to the designated operational entity on how due account was taken of any comments."⁸

The PDD presents a table⁹ comparing "original" with "approved" designs, and notes, "Considering the comments received, the original design of the MBHP was modified, reducing the extent of drown [sic] lands, the relocated families, and the affected infrastructure as shown in the next table."

This table is irrelevant to CDM validation requirements, as it refers to stakeholder comments on the rejected 2003 design, not stakeholder comments on the 2006 design for which Hidronación is seeking CDM credits.

Moreover, the PDD states that a new 22 kilometer road (Via Entrelagos) "was necessary to get public approval,"¹⁰ but gives no evidence that there has ever been broad-based public approval for the MBHP, even in its current form.

4. Violence and Intimidation Have Interfered with Public Consultation

According to independent observers, the public consultation process in the design and planning of the MBHP has been hindered by years of intimidation and threats against local people who have voiced concerns about the Project. Despite the atmosphere of intimidation, harassment and violence on the part of local authorities and project proponents, local community members have continued to speak out against the MBHP.¹¹ Many have received anonymous phone calls threatening their lives, even as recently as August 2008.¹² Andrés Arroyo Seguro, a local community leader who spoke out against MBHP, was murdered on June 20, 2005.¹³ His body was dumped in the Baba River at the site where the dam is planned.¹⁴ A few days before his death, Arroyo visited the Ecumenical Human Rights Commission (CEDHU) in Quito to ask for support in bringing a lawsuit against the Project.¹⁵ According to the autopsy report, Arroyo's body showed signs of serious aggression.¹⁶

In 2008, several community leaders who have spoken out against MBHP have been charged with spurious criminal charges, despite an absence of evidence or any court processes moving forward against them.¹⁷ All of these incidents have had a chilling effect on stakeholder consultation and meaningful public participation, and are not considered in the PDD.

5. The DOE Should Ensure that the Stakeholder Consultation Process Met Minimal International Norms on Public Participation

Because of the severe lack of information in the PDD, and independent information that raises serious concerns, TUV SUD should not validate the Project unless it can verify whether people affected by MBHP, including downstream water users, were consulted in a meaningful way. TUV SUD should ensure and that all relevant stakeholders had the opportunity to review and comment on project design and validation decisions, and that their comments were taken into account.

The clear benefits of public participation in environmental decision-making are well recognized under international law. For example, Principle 10 of the Declaration of the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro (Brazil, 1992)¹⁸ emphasizes that environmental issues are best handled with the participation of concerned citizens. The Inter-American Commission on Human Rights has established that "democratic control by society, through public opinion, fosters transparency in State activities and promotes the accountability of State officials".¹⁹

As set forth in the 1998 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ("Aarhus Convention"),

every person has the right to live in an environment adequate to his or her health and well-being.... Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights ... each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.²⁰

Broad-based stakeholder participation is essential for the promotion of sustainable development. The 191 parties to the World Summit on Sustainable Development, including Ecuador, have recognized that public input is vital at all levels of policy development and project decision-making,²¹ as well as water resource management, agriculture, forest management, and mining.²²

While the CDM modalities and procedures do not elaborate on the scope and nature of the stakeholder consultation process, Ecuadorian and international norms and best practice suggest that minimum provisions for public participation should be met prior to validation of proposed CDM projects and should include the following:²³

• The public is appropriately notified of any CDM project activities with potential adverse environmental impacts as early on in the process as possible;
• The public, in areas likely to be affected by the CDM project activities, is permitted to express concerns and opinions regarding the proposed activities early on in the process when all options remain open and prior to the final decision on the CDM proposed activities;
• All notifications and project information provided to the public are available in the local languages and made available to the public using the most appropriate and accessible means (e.g., radio, TV, posters near the project area) in order to eliminate any significant logistical and communication barriers;
• Clear time, place, scope, content, and frequency criteria for local stakeholder consultations are established that ensure that consultations are accessible to all stakeholders and that consultations adequately inform concerned groups of project details and possible impacts, and allow them to express their concerns, share information, and have their questions answered;
• Consultation with stakeholders is conducted in proportion to the level of project impact that is likely to result from a particular CDM project;
• Thorough, understandable, and timely responses to stakeholder comments are published and conveyed to the concerned parties. When comments are submitted in a local language, responses should be provided in the same language;
• A recourse mechanism is included for stakeholders who feel they have not been adequately consulted;
• In making the final decision on the proposed activity, all public concerns are responded to in an understandable and thorough manner, and due account is taken of the results of public input;
• Publication and consultation on environmental and social management plans that set forth in detail the specific measures, timelines, and resource allotments that will be implemented to ensure negative project impacts are appropriately mitigated; and
• Publication of periodic monitoring reports that inform local stakeholders of the progress of the management plan implementation, any unforeseen impacts that the project may be causing, and updated management plans, when relevant.

B. The Project Fails to Meet the CDM Validation Requirement on EIA

CDM modality and procedure 37(c) requires showing that "[p]roject participants have submitted to the designated operational entity documentation on the analysis of the environmental impacts of the project activity, including transboundary impacts and, if those impacts are considered significant by the project participants or the host Party, have undertaken an environmental impact assessment in accordance with procedures as required by the host Party." ²⁴

The PDD states that the MBHP EIAs, both Preliminary (2003) and Definitive (2006), were completed and conform with Ecuadorian law. However, the Inter-American Development Bank has pointed to several shortcomings in the EIA.²⁵ In addition, the Ecuadorian Ministry of Energy and Mining has expressed a series of objections to the project in terms of its adverse environmental impacts, its doubtful benefits to the Ecuadorian public, and various "irregularities" in the design and implementation of the project.²⁶ Moreover, both national and international NGOs have criticized the EIA as inadequate, based on a technical assessment by independent experts.²⁷

Furthermore, a court case is pending in the Ecuadorian Constitutional Tribunal to determine whether the granting of the environmental license and the water use concession violated Ecuadorian law, based on the fact that the EIA and other required studies were incomplete.²⁸

1. The MBHP EIA was not Undertaken in Accordance with Procedures as Required by the Host Party

The Ministry of the Environment of Ecuador issued an environmental authorization for the project in November 2006, despite the fact that environmental and social impact studies did not meet national standards.²⁹ To implement the dam in the manner it was approved disregards the right to live in a healthy and ecologically balanced environment, enshrined in the Constitution of Ecuador, Articles 23 and 86.

The EIA failed to adequately analyze the harm to habitat of endemic and endangered species, including endangered otters, rail birds, small deer, and the Chaleco anteater.³⁰ It failed to adequately evaluate impacts to fish populations downstream from the dam, and failed to consider the public health impacts such as malaria and dengue-carrying mosquitoes that thrive in stagnant water.³¹

In 2007, the Ecuadorian Ministry of Energy and Mines documented irregularities in the project, including technical, legal, social, environmental, economical and financial.³² The Ministry found that project works had begun without completion of necessary studies.
Both the Ministry of Energy and Mines of Ecuador and the General Attorney's Office have requested a review of the environmental impact studies of MBHP.

Due to the failure to comply with applicable laws³³, in 2008, the Ecuadorian environmental civil society organization ECOLEX filed a complaint to the Corruption Control Commission regarding MBHP project development, licensing and approvals process. An investigation by the Commission is now pending.³⁴

2. A Lawsuit in Ecuadorian Courts Challenges the Legality of the EIA and Involuntary Resettlement Plans

In 2007, local residents, represented by ECOLEX, filed suit in Ecuadorian courts to halt Project construction until proper environmental and involuntary resettlement plans have been developed and implemented in accordance with Ecuadorian law and international best practices for adequate environmental impact assessments, adequate consultation processes, and access to information, among others. This trial court dismissed the suit, and the plaintiffs have appealed to the Constitutional Tribunal. To support the local residents' lawsuit and submit arguments based on international law before the Constitutional Tribunal, on June 19, 2008, AIDA, Food First Information Network (FIAN) International, and International Rivers submitted an amicus curiae detailing the international legal obligations of Ecuador to correct such abuses of human rights and environmental health.³⁵

The deliberations of the Tribunal are continuing and anticipated within the year. A finding in favor of the local residents would result in cessation of the project until adequate plans are developed and implemented in accordance with Ecuadorian law.

3. The DOE Should Ensure that the EIA Meets Minimal Standards

Principle 17 of the Rio Declaration provides: "Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority."³⁶ Such assessments help decisions-makers ensure that they have considered all the environmental and social costs and benefits of a project, that affected populations are identified and consulted, and that the most sustainable and least damaging project design is selected.³⁷

Because of the severe lack of information in the PDD and independent information that raises serious concerns, TUV SUD should not validate the project unless Hidronación demonstrates that the EIA meets the following minimum standards and guidance for ensuring effective EIA review:

• The term "impact" should be broadly defined (such as that contained in the Espoo Convention) to include, inter alia, any effect caused by the proposed CDM project activities on the environment including human health and safety, flora, fauna, soil, air, water, climate, landscape, and historical monuments or other physical structures or the interaction among these factors; it should also include effects on cultural heritage and integrity or socio-economic conditions resulting from alterations to those factors; ³⁸
• Situations in which environmental and/or social impacts are presumed to be significant and therefore require an EIA review should be included, as is required under the World Bank standards for Category A projects, which provide:

A proposed project is classified as Category A [and thus requires an EIA] if it is likely to have significant adverse environmental impacts that are sensitive, diverse, or unprecedented. These impacts may affect an area broader than the sites or facilities subject to physical works. EIA for a Category A project examines the project's potential negative and positive environmental impacts, compares them with those of feasible alternatives (including the "without project" situation), and recommends any measures needed to prevent, minimize, mitigate, or compensate for adverse impacts and improve environmental performance.³⁹

• For projects that will significantly impact local populations, the EIA documentation, as well as a non-technical summary of project impacts, should be published in the local language and via media that are accessible to all stakeholders prior to the consultation;⁴⁰
• The consultation and review process should be carried out with sufficient time for the public to participate meaningfully in each of the different stages of the EIA process;⁴¹
• Public notification should be prompt and accessible to all stakeholders, and should include a description of the project's EIA analysis, including the project's projected scope, lifetime, adverse impacts, and management plans;⁴²
• Other minimum EIA requirements. The United National Environment Program (UNEP) and other international institutions have recognized several essential elements for adequate EIA. These include explicit consideration of environmental factors at an early stage in the decision-making process (e.g., scoping); assessment of environmental and social impacts of projects and possible alternatives; selection of the least harmful project design; and, where significant adverse impacts are likely to occur that cannot be avoided, adoption of mitigation measures.⁴³

C. MBHP Fails to Meet the CDM Requirement that it Contribute to Sustainable Development

The Kyoto Protocol Article 12.2 states that "the purpose of the clean development mechanism shall be to assist Parties not included in Annex I in achieving sustainable development...."⁴⁴ CDM modality and procedures requirement 40(a) also requires the host Party to "confirm that the project activity assists it in achieving sustainable development."⁴⁵ Independent information on MBHP indicates that the project violates this basic requirement with respect to human rights, livelihood impacts and public participation.

At a basic level, a project that violates human rights is incompatible with the concept of sustainable development. The Johannesburg Plan of Implementation of the World Summit on Sustainable Development (WSSD) recognizes that respect for human rights and fundamental freedoms is essential for achieving sustainable development and ensuring that sustainable development benefits all members of society.⁴⁶ Respect for the right to a healthy environment, food, health and adequate housing is thus an essential element of any project that meets the CDM's sustainable development requirement.

The MBHP threatens local livelihoods and the rights of affected downstream communities to a healthy environment, adequate water, food and health. The 80% decrease in water flow downstream of the Project will have a negative impact on subsistence agricultural, as lands bordering the river become drier over time, and river water levels may become insufficient for irrigation.⁴⁷

The MBHP also threatens to violate the livelihoods and rights of the people who will be forced to resettle as a result of the Project. The involuntary resettlement of over 29 families will put their health and access to adequate food and housing at risk.⁴⁸ Indeed, the United Nations Human Rights Commission has affirmed that forced resettlement projects have regularly violated the rights of resettled people.⁴⁹ More recently, the United Nations Special Rapporteur on the Right to Adequate Housing has noted that "displacement resulting from environmental destruction or degradation ... [and] evictions often take[s] place without regard for existing human rights and humanitarian standards, including the right to adequate housing."⁵⁰

The MBHP's Indemnification and Resettlement Plan (IRP) is incomplete and lacks appropriate safeguards that will protect and improve the rights and livelihood of resettled people. The IRP leaves important aspects of the resettlement process to be determined in the future. Key gaps include the "definition of a framework for the development of the Plan, social support, records of physical characteristics of the buildings, confirmation of the current housing data, resettlement site selection and implementation of strategies of communication."⁵¹ Indeed, in its review of the IRP, the IDB declared that the IRP was incomplete.⁵² The project's failure to clarify these essential factors threatens the rights and livelihoods of resettled people, a basic component of sustainable development.⁵³

The IRP also fails to present an adequate account of the IRP consultation and public participation processes, and does not fulfill the public participation components of the CDM's sustainable development requirement. In order to ensure that meaningful consultation with resettled people has occurred, it is essential that Hidronación provide a detailed account of the content of its presentations of the IRP drafts, the expressed concerns of resettled people, and explanations of the way in which Hidronación has taken their inputs into account.

The MBHP will violate the affected communities' rights under the American Convention on Human Rights, to which Ecuador is a party. Specifically, the Project threatens the rights to freedom to receive information (Article 13)⁵⁴ and the use and enjoyment of property (Article 21). As outlined above, the Project also threatens the affected people's rights to a healthy environment, health and food as enshrined in the Additional Protocol in the area of Economic, Social and Cultural Rights.⁵⁵

In addition, the MBHP threatens to violate the rights of the Afro-Ecuadorian communities downstream from the Project, whose rights are protected by Article 6 of Convention 169 of the International Labor Organizations (ILO 169), ratified by Ecuador in 1998.⁵⁶ In violation of ILO 169, the Project did not consult with the thousands of potentially affected people, much less provide their community institutions with the resources needed to participate at all levels of decision making for programs which concern them. Consultations were clearly not undertaken with the objective of achieving agreement or consent to the proposed measures, as required by ILO 169.

D. Recommendation to the DOE

According to the Draft CDM Validation and Verification Manual, the DOE is to ensure that adequate local stakeholder consultation took place (42(d)), that any external factors to the project that may affect the decisions of intended users have been documented (44(1)), and that standard auditing techniques to confirm the correctness of presented information have been applied (50). These include crosschecks between information provided in the PDD and information from independent background investigations (50(a)), and follow up interviews that include relevant stakeholders in the host country and other stakeholders as applicable (50(b)). Finally, the DOE shall ensure that no material evidence likely to be available to relevant stakeholders has been omitted from the assessment (50 (b)(ii)).⁵⁷

We urge the DOE to implement the methods of the Draft CDM Validation and Verification Manual before making the validation decision for MBHP in the upcoming months. We anticipate that the validation opinion will be negative, based on the facts that:

1. 1) the Project Participant failed to adequately consult affected communities, disclose complete and adequate information, summarize their concerns about the current project design, and take them into due account;
2. 2) the Project Participant failed to complete an adequate EIA that fulfills the legal obligations of the host Party of Ecuador; and
3. 3) the Project fails to contribute to sustainable development for the host Party of Ecuador, as required by the Kyoto Protocol and the CDM.

Please do not hesitate to contact us for further information, including any of the information sources noted herein.

Contact

Astrid Puentes Riaño
Legal Director
InterAmerican Association for Environmental Defense, AIDA Atlixco 138, Colonia Condesa Mexico, DF 06140 Mexico
Tel./Fax 52-55 52120141
Email: aida [at] aida-americas [dot] org
www.aida-americas.org

J. Martin Wagner
Managing Attorney
Earthjustice, International Program
426 17th St, 6th Floor
Oakland, CA 94109 USA
Tel. +001-510-550-6747
Fax +001-510-550-6740
E-mail: eajusintl [at] earthjustice [dot] org
www.earthjustice.org

Silvana Rivadeneira Arcos
Area Coordinator, Litigation Environmental Management
Organization for Environmental Law & Management (ECOLEX)
Av. Gaspar de Villarroel E-4-50 y Av. Amazonas, Second Floor
Quito, Ecuador
Tel. (593-2) 22 51 446
Fax 593-2 24 54 087
Email: ecolex [at] ecolex-ec [dot] org
www.ecolex-ec.org

¹ Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its first session, held at Montreal from 28 November to 10 December 2005, Addendum Part Two: Action taken by the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol at its first session, UN FCCC/KP/CMP/2005/8/Add.1, 30 March 2006, available at http://unfccc.int/resource/docs/2005/cmp1/eng/08a01.pdf.
² TUV SUD Industrie Service GMBH Carbon Management Service, Clean Development Mechanism Project Design Document Form V. 03.1, Multipurpose Baba Hydroelectric Project, Ecuador, June 28, 2008, opened for public comment on August 8, 2008, available at http://www.netinform.net/KE/files/pdf/PDD_PDD_Multipurpose_Baba_Hydroelectric_Project (MBHP).pdf.
³ Decision 3/CMP.1, 2005 Modalities and procedures for a clean development mechanism as defined in Article 12 of the Kyoto Protocol mechanism, available at http://cdm.unfccc.int/Reference/COPMOP/08a01.pdf#page=6 at 14.
⁴ CDM Executive Board, EB-40 Report Annex 20 pages 1-3, 17 June 2008, available at http://cdm.unfccc.int/Reference/Procedures/valid_proc02_v01.pdf.
⁵ Decision 3/CMP.1 2005 supra note 3 at 14.
⁶ Monti Aguirre et al., Letter to Inter-American Development Bank from International NGOs regarding Baba Hydroelectric Project, April 26 2007.
⁷ Consorcio Hidroenergético del Litoral (CHL), Estudio de Impacto Ambiental Definitivo (EIAD) 2006 P. X-22, available at http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=848349.
⁸ Decision 3/CMP.1 2005 supra note 3, p. 14.
⁹ TUV SUD 2008, supra note 2, Table 9, page 45.
¹⁰ Id. at 16.
¹¹ See for example, photos of protests at http://www.ccondem.org.ec/cms.php?c=467, as well as documentation of widespread public rejection of MBHP.
¹² Silvana Rivadeneira, ECOLEX, personal communication, August 25, 2008.
¹³ Ecumenical Human Rights Commission (CEDHU), Ecuadorian Human Rights Leader Murdered, Andrés Arroyo led fight against dam, June 2005, available at http://www.intagnewspaper.org/Aug05_Arroyo.html.
¹⁴ Id.
¹⁵ Id.
¹⁶ Id.
¹⁷ Silvana Rivadeneira, ECOLEX, personal communication, August 25, 2008.
¹⁸ UN Conference on Environment and Development, June 3-14, 1992, Rio Declaration on Environment and Development, Princ. 10, UN.Doc A/CONF. 151/5/Rev.1 (June 14, 1992) [hereinafter Rio Declaration].
¹⁹ Inter-American Court on Human Rights, Case of Claude Reyes et al. vs. Chile, Series C No. 151, 2006, par. 87, 2006, available at http://www.corteidh.or.cr/casos.cfm?idCaso=245.
²⁰ United Nations Economic Commission for Europe [UNECE], Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters preamble, art. 1, June 25, 1998, available at http://www.unece.org/env/pp/documents/cep43e.pdf.
²¹ World Summit on Sustainable Development [WSSD]. Aug 26 - Sep.4 2002, Political Declaration, par 26. (Sep 4, 2002), available at http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/ English/POIToc.htm. The declaration states that all parties "recognize that sustainable development requires a long-term perspective and broad-based participation in policy formulation, decision-making and implementation at all levels." See also, WSSD Plan of Implementation, par 128, available at http://www.un.org/jsummit/html/documents/summit_docs/2309_planfinal.htm. In the plan, parties agree to "[e]nsure access, at the national level, to environmental information and judicial and administrative proceedings in environmental matters, as well as public participation in decision-making, so as to further principle 10 of the Rio Declaration on Environment and Development."
²² See WSSD Plan of Implementation 2002 supra note 21, par. 25 (b) ("[States recognize the need to] [f]acilitate access to public information and participation, including by women, at all levels in support of policy and decision-making related to water resources management and project implementation"). See also pars 40 (f), 45(h), 46(b) (explaining the participation requirements for agriculture, forestry, and mining projects, respectively); see also United Nations Environment Program Malmo Declaration of the Global Ministerial Environment Forum, May 28 - 31, 2000. (June 1 2000), available at http://www.unep.org/malmo/malmo_ministerial.htm. The Malmo conference was held in pursuance of United Nations General Assembly resolution 53/242 of 28 July 1999 to enable the world's environment ministers to gather to review important and emerging environmental issues and to chart the course for the future, and over 100 of the world's environmental ministers attended. Paragraph 16 of the declaration states that "[t]he role of civil society at all levels should be strengthened through freedom of access to environmental information to all, broad participation in environmental decision-making, as well as access to justice on environmental issues. Governments should promote conditions to facilitate the ability of all parts of society to have a voice and to play an active role in creating a sustainable future."
²³ See generally International Finance Corporation of the World Bank Group. International Finance Corporation's Performance Standards on Social & Environmental Sustainability, 2006, pars 21 and 22, available here
"Informed participation involves organized and iterative consultation, leading to the client's incorporating into their decision-making process the views of the affected communities on matters that affect them directly, such as proposed mitigation measures, the sharing of development benefits and opportunities, and implementation issues. The client will document the process, in particular the measures taken to avoid or minimize risks to and adverse impacts on the affected communities...If affected communities may be subject to risks or adverse impacts from a project, the client will undertake a process of consultation in a manner that provides the affected communities with opportunities to express their views on project risks, impacts, and mitigation measures, and allows the client to consider and respond to them. Effective consultation: (i) should be based on the prior disclosure of relevant and adequate information, including draft documents and plans; (ii) should begin early in the Social and Environmental Assessment process; (iii) will focus on the social and environmental risks and adverse impacts, and the proposed measures and actions to address these; and (iv) will be carried out on an ongoing basis as risks and impacts arise. The consultation process will be undertaken in a manner that is inclusive and culturally appropriate. The client will tailor its consultation process to the language preferences of the affected communities, their decision-making process, and the needs of disadvantaged or vulnerable groups." See also, The Equator Principles: A financial industry benchmark for determining, assessing and managing social & environmental risk in project financing, 2003, available at http://www.equator-principles.com/documents/Equator_Principles.pdf. "[T]he Assessment documentation...or non-technical summaries thereof, will be made available to the public by the borrower for a reasonable minimum period in the relevant local language and in a culturally appropriate manner. The borrower will take account of and document the process and results of the consultation, including any actions agreed resulting from the consultation. For projects with adverse social or environmental impacts, disclosure should occur early in the Assessment process and in any event before the project construction commences, and on an ongoing basis."
²⁴ Decision 3/CMP.1 2005 supra note 3 at p. 14.
²⁵ Inter-American Development Bank, Multipurpose Baba Project Environmental and Social Management Report, April 2007, p. 15-18.
²⁶ President of the Republic of Ecuador, "El proyecto de uso múltiple Baba parece un proyecto de abuso múltiple", 28 de mayo de 2007, available at: http://www.presidencia.gov.ec/imprimir_noticia.asp?noid=9653. The press release of the President's office summarizes and cites a report by the Ministry of Energy and Mining that notes "irregularities" in the design and implementation of the Project. Since the publication of this press release, the Ministry of Energy and Mines has divided into the Ministry of Oil and the Ministry of Electricity and Renewable Energy.
²⁷ Mercedes Lu and Mark Cherniak, Observaciones al Estudio de Impacto Ambiental Definitivo del Proyecto Multipropósito Baba. Environmental Law Alliance Worldwide (ELAW), 2006. See also AIDA, FIAN and International Rivers, Amicus curiae to the Constitutional Tribunal of Ecuador, June 2008, available in Spanish only at: http://www.aida-americas.org/templates/aida/uploads/docs/Baba_Amicus_sp.pdf. See also Aguirre et al 2007 supra note 6.
²⁸ Silvana Rivadeneira Arcos, ECOLEX, Constitutional Injuction (Acción de Amparo) No. 1212-07-RA, before the Ecuadorian Constitutional Tribunal, 2007.
²⁹ President of the Republic of Ecuador 2007 supra note 26.
³⁰ Lu and Cherniak 2006 supra note 27.
³¹ Id.
³² President of the Republic of Ecuador 2007, supra note 26.
³³ President of the Republic of Ecuador 2007, supra note 26.
³⁴ Silvana Rivadeneira, ECOLEX, personal communication, August 25, 2008.
³⁵ AIDA et al 2008 supra note 27.
³⁶ UNCED Rio Declaration 1992 supra note 18.
³⁷ See generally, Sadler et al. United Nations Environment Program [UNEP], Environmental Impact Assessment Training Resource Manual, 2002, available at http://www.unep.ch/etb/publications/EIAman/IntroManual.pdf.
³⁸ Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention), 1991, Article I (vii), available at http://www.unece.org/env/eia/.
³⁹ World Bank. Operational Policy 4.01 on Environmental Assessment, par. 8(a), available here.
⁴⁰ See IFC 2006 and Equator Principles 2003 supra note 23.
⁴¹ Id.
⁴² Id.
⁴³ Sadler et. al. 2002, supra note 38.
⁴⁴ United Nations, Kyoto Protocol Article 12.2, (1998) page 11, available at http://unfccc.int/resource/docs/convkp/kpeng.pdf.
⁴⁵ Decision 3/CMP.1 2005, supra note 3 at p. 15.
⁴⁶ WSSD 2002, supra note 21.
⁴⁷ AIDA 2008, supra note 27 at 22.
⁴⁸ According to the MBHP's Indemnification and Resettlement Plan, at least 29 families will be resettled, but this number varies among different Project documents.
⁴⁹ United Nations Human Rights Commission, Resolution 1993/77, approved March 10, 1993.
⁵⁰ General Assembly of the United Nations, Human Rights Council "Basic Principles and Guidelines on Development-Based Displacement and Eviction. Report of the Special Rapporteur for Adequate Housing, Sr. Miloon Kothari, A/HRC/4/18, February 5, 2007, par. 9, available at http://www2.ohchr.org/english/issues/housing/docs/guidelines_en.pdf
⁵¹ CHL 2006 supra note 7.
⁵² IDB 2006 supra note 25, p. 7.
⁵³ See, for example, General Assembly of the United Nations Human Rights Council, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-Discrimination in this Context, Miloon Kothari, Addendum, A/HCR/7/16/Add.1, March 4 2008, par. 13.
⁵⁴ Inter-American Court on Human Rights, Case of Claude Reyes et al. vs. Chile, Series C No. 151, par. 87, 2006, available at http://www.corteidh.or.cr/casos.cfm?idCaso=245.
⁵⁵ American Convention on Human Rights, available at: http://www.oas.org/juridico/english/sigs/b-32.html. see also Additional Protocol to the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights "Protocol of San Salvador", 1988, available at http://www.cidh.org/Basicos/English/basic5.Prot.Sn%20Salv.htm
⁵⁶ Article 6 of ILO 169 states that Governments shall:

1) (a) Consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;

(b) Establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;

(c) Establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.

2) The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.

⁵⁷ UNFCCC/CCNUCC CDM Executive Board 39, Draft CDM Validation and Verification Manual, 2008, p. 9-11, available at http://cdm.unfccc.int/public_inputs/2008/VVM/vvm.pdf.