Government Land Grabs in Ecuador: Something Doesn’t Add Up

By: Douglas Johnson

“The government expropriated our land and paid us less than a quarter of its appraised value, and most other owners have still, after more than eight years, not been paid.” -Anonymous Yachay-landowner

In movies, when a police officer takes the nearest car to apprehend an assailant, viewers can easily see the state’s compelling interest in such a taking—private property or not, the cop has to catch the bad guy! However, when the private property at issue is land, not a car, the stakes are higher and people are not so understanding of the government’s reasoning for depriving them of their property. Regardless of what people want or with what they agree, most countries have constitutional provisions or legislation empowering them to expropriate private property against the owner’s will so long as the underlying reason advances some public purpose.[1] In the United States, the Fifth Amendment to the Constitution grants the government the power of “eminent domain,” which requires “just compensation” for private property that is taken for public use.[2]

Like the United States, Ecuador also has such a process, however, the Ecuadorian government’s track record regarding land rights has a tendency to show that it takes what it wants at whatever price it sees fit, regardless of the actual value and the reasonable necessity for the taking.[3] For example, Ecuador’s protection of indigenous people’s ancestral lands is not as noble as it sounds when you examine it in practice—Ecuador’s constitution allows indigenous people “to maintain possession of their lands.”[4] Embedded within Ecuador’s protection of these land rights is the state’s retention of ownership of subsoil products, such as oil, by virtue of simply “Prior and Informed Consent.”[5] Ecuador’s constitution has a provision much like the United States’, which states:

For the purposes of implementing plans for social development, sustainable management of the environment and public welfare, State institutions may, for reasons of public utility or social and national interest, declare the expropriation of goods, following fair appraisal, compensation and payment pursuant to the law. Any manner of confiscation is forbidden.[6]

While the foregoing provision seems to strongly support property rights, it has not been so in practice.

In the highly publicized recent example of Yachay, the Ecuadorian government, under President Rafael Correa, expropriated 4,462 hectares of land in Urcuqui, from more than 100 owners.[7] Beginning in 2011, following the government’s “declaration of public utility” for the land, owners were forced into purchase agreements for a portion or all of their lands.[8] The majority of the land was owned by only 13 families with one having owned as much as 900 hectares.[9] Some of the landowners agreed to the purchase and some did not, opting instead to sue the government. According to an anonymous Ecuadorian government official, the owners generally said “[t]hat’s not what my land is worth” and then proceeded to enter into the judicial process.[10] President Correa promised Yachay to be a hotbed of technological innovation with a university, Yachay Tech, at its heart, drawing comparisons to the United States’ Silicon Valley. Interestingly, the government chose to expropriate all of the nearly 5,000 hectares of land at one time as opposed to going about it on an as-needed basis.[11] The government’s rationale was that it wanted to avoid speculation and urbanization based on the hype surrounding the project, despite the fact that it would be many years before a good deal of the land would even begin to be developed for the university.[12] Furthermore, this plan made for huge feasibility issues because the land had been primarily used for agriculture, and once acquired by the government those operations ceased and the land started to erode and degrade severely.[13]

Yachay Tech is now operational but it is not the university that President Correa promised it would be, nor has his “city of knowledge” come to fruition.[14] Yachay Tech is a failure as a world-class research institution and the project, including the city as a whole, was unsuccessful.[15] The entire project, under the guidance of Yachay EP, the company formed to enact Correa’s plan, “has been plagued with accusations of corruption, overpaid administrators who live overseas, unfinished or malfunctioning buildings, and announcements of international investments that never existed.”[16]

Examining the case of Yachay from the standpoint of fairness and equity it seems that the government did indeed have the right to expropriate private lands to promote the purpose of a public university and planned city. However, its methods are the problem. In a recent interview, one landowner, who wished to remain anonymous, said that while his family was one of the lucky few who were actually paid, they received only $1 million, even though the government appraised the property at $4 million, and the family’s appraiser put it at $5 million. Therefore, painting the Ecuadorian government in the best light, it underpaid by $3 million. Additionally, much of that land still sits vacant and its buildings in disrepair.[17] So, regardless of whether payment in full is ever received, this family as well as others have lost property that held significant familial and economic importance to them. The aforementioned anonymous landowner said that his family’s ranch was quite productive in all manner of agricultural pursuits as well as dairying and tourism at the time of the expropriation.[18]

The sad conclusion to be drawn from Yachay is that the Ecuadorian government can in all actuality take the private lands and property of its citizens so long as it makes a minimal attempt at compensating, or simply agreeing to compensate, the owners. The Ecuadorian government has not come close to satisfying its constitutional charge, however, as its efforts have seemingly been just compliant enough to perpetuate the practice.

#Ecuador #Johnson #Property #Takings #International #Law #Blog #Post

[1] See generally, Antonio Azuela, Taking Land Around the World: International Trends The Use of Eminent Domain, July Land Lines Magazine, 14 (2019), https://www.lincolninst.edu/sites/default/files/pubfiles/1261_Taking%20Land%20Around%20the%20World.pdf.

[2] See U.S. Const. amend V.

[3] See generally, Risk & Compliance Portal, Ecuador Corruption Report (Last updated Jan. 2016), https://www.ganintegrity.com/portal/country-profiles/ecuador/.

[4] Frances Jenner, Indigenous group wins historic land battle against the Ecuadorian government, Latin America Reports (April 30, 2019).

[5] Id. Woarani elders assert that the government did not obtain “prior and informed” consent, but rather only engaged passive socializing in which the subject of subsoil rights was discussed—the Ecuadorian does not dispute the claim but instead said such discussion was sufficient. Id.

[6] Constitution of the Republic of Ecuador October 20, 2008, Ch. 6 § 2, art. 323 (Ecuador).

[7] See José David Gómez-Urrego, The Intersections Between Infrastructures and Expectations: Repair and Breakdown in Yachay, the City of Knowledge in Ecuador, 2:1 Tapuya: Latin American Science, Technology and Society, 495, 518 (2019), https://doi.org/10.1080/25729861.2019.1649963.

[8] See Id. at 520.

[9] See Id.

[10] See Id.

[11] See Id. at 522, 527.

[12] See Id. at 522.

[13] See Id.

[14] See Karina R. Vega-Villa, Missed Opportunities in Yachay, 358 Science 459, 459 (2017).

[15] Id.

[16] Id.

[17] Facebook Message from anonymous owner of land expropriated for Yachay project, to author (Aug. 23, 2020, 18:00 EST) (on file with author).

[18] See Id.