Ecuador Freshwater Resource Rights Report

Summary

This report analyzes Ecuador’s legal approach to freshwater resource rights and community-based management of freshwater resources. For purposes of this study, freshwater resources, or FWR, are defined as “any body of water that is fresh (not salty), together with its associated species and ecosystem resources, including aquatic plants and animals such as fish.” FWR rights can be framed as either “use rights” or “control rights.” The primary FWR use rights analyzed in this study are access rights (i.e., “the right to enter freshwater bodies or pieces of land from which FWR can be accessed”) and withdrawal rights (i.e., “the right to remove water, fish, or other FWR”). The primary FWR control rights analyzed in this study are exclusion rights (i.e., “the right to prevent other from using the FWR” in question), alienation or transfer rights (i.e., “the right to redistribute, sell, rent, gift, or bequeath rights over FWR”), and management rights (i.e., “the right to make decisions about FWR, such as flow regulation, aquaculture, or fishery management”).

When measured against best practices and global indicators, the report concludes that Ecuador maintains a legal framework largely supportive of community-based management of freshwater resources and associated rights. Key features of Ecuadorian law supporting this conclusion include but are not limited to (1) treating water as a human right, (2) recognizing ecosystem needs and the rights of nature, (3) a clear prioritization scheme governing uses, (4) opportunities for community participation in management and decision-making, and (5) mechanisms for legal recourse. 

Yet, strong rights on paper do not always translate into strong rights in practice. Accordingly, the report also identifies apparent shortcomings in implementation, such as the perception that the State overlooks the requirement of “ecological flow” in licensing decisions, as well as ambiguities in the law (e.g., uncertainty regarding the full extent of indigenous communities’ power under prior consultation norms).

Citation

Fromherz, N., & Lyman, E. (2021). Ecuador Freshwater Resource Rights Report. Global Law Alliance.

Keywords: freshwater; local communities; Indigenous Peoples; rights; Ecuador