solution is agreed upon by the parties at the domestic level, the State must: (i) determine the
number of points where the pentolite is buried; (ii) bury the detonator cables so that they are
inaccessible and the explosive can degrade naturally, and (iii) mark the burial locations
appropriately, even planting local tree species that do not grow roots deep enough to cause an
accidental explosion of the pentolite. In addition, the State must adopt the necessary measures to
remove any machinery, structures and non-biodegradable waste that have remained as a result of
the oil company’s activities, and reforest the areas that may still be affected by the opening up of
trails and campsites for the seismic survey. These tasks must be carried out following a process of
prior, free and informed consultation with the Sarayaku People, who must authorize the entry and
presence on its territory of the material and persons required to this end.
295. Compliance with this measure of reparation is an obligation of the State, and it must
complete it within no more than three years. For the purposes of compliance, the Court decides that,
within six months, the State and the Sarayaku People must establish by mutual agreement a
schedule and a work plan that includes, among other aspects, the determination of the location of
the superficial pentolite and of the material buried at a greater depth, as well as the specific and
effective steps to deactivate, neutralize and, as appropriate, remove the pentolite. Within the same
period, the parties must provide the Court with information in this regard. Once this information has
been submitted, the State and the Sarayaku People must report on the measures taken to comply
with the work plan every six months.
B.2 Guarantees of non-repetition
a) Due prior consultation
296. The Court has been informed by the State and the representatives that, in November 2010,
PETROECUADOR and the CGC signed an Act of Termination by Mutual Agreement of the partnership
contract for the exploration of hydrocarbons and exploitation of crude oil in Block 23 (supra para.
123). In addition, the representatives referred to several announcements by authorities of the
State’s hydrocarbons sector regarding a call for new bids for oil exploration in the south-central
Amazonian region of Ecuador, in the provinces of Pastaza and Morona Santiago. In particular, it was
alleged that at least eight blocks were to be exploited in the southeastern part of Amazonia, which
includes the province of Pastaza, and that the new bidding round would include the Sarayaku
territory.
297. Furthermore, it was reported that, in November 2010, the State had signed a “Contract
modifying the contract for provision of services for the exploration and exploitation of hydrocarbons
(crude oil) in Block 10” of the Ecuadorian Amazonian region349 with a company holding the
concession for this new “Block 10,” the redefined area of which would include a portion of around
80,000 hectares of Block 23. This would affect the territory of Kichwa communities in the upper
watershed of the Bobonaza River and the Achuar Association of Shaime, as well as a portion of the
Sarayaku territory.
298. In this regard, it should be recalled that, when acknowledging the State’s responsibility in
this case, the Secretary for Legal Affairs of the Presidency of the Republic of Ecuador stated that:
[…] There will be no oil exploitation here without prior consultation. […] No new round will begin without informed
consultation. […] We will not do any oil exploitation behind the back of the communities, but rather through the
dialogue that will take place at some point, if we decide to begin oil exploitation […] here. There will be no oil
development without an open and frank dialogue; not a dialogue undertaken by the oil company, as has always been
denounced. We have changed the law so that the dialogue is initiated by the Government and not by the extractive
sector […].
299. While it is not incumbent on the Court to rule on new oil bidding rounds that the State may
have initiated, in the present case, the Court has determined that the State is responsible for the
349
Final Negotiation Report. “Contract for the provision of services for the exploration and exploitation of crude oil in
Block 10. AGIP ECUADOR OIL B.V, of November 21, 2010 (evidence file, tome 18, folios 9711 and 9736).
81
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