Bolivia: Law to suspend road through TIPNIS national park
11 October 2011
Dario Kenner, La Paz
Daily updates on TIPNIS conflict at Twitter: @dariokenner
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This morning a draft law was approved in Bolivia´s Chamber of deputies that suspends the road through the TIPNIS national park and autonomous indigenous territory – pending consultation. The law will very likely be approved by the Senate tonight or tomorrow morning. The government claims if this law is passed it solves the main demand of the march by indigenous movements CIDOB and CONAMAQ, who have marched from the Bolivian Amazon since 15 August, to demand respect for their right to prior consultation about whether a road goes through the TIPNIS.
Reactions to the proposed law
Tonight Adolfo Mendoza, Senator for the ruling Movement Towards Socialism (MAS) party and key player in drafting the law, confirmed the law in the process of being approved means there will be a process of free, prior and informed consultation to decide in favour or against the road project. Mendoza said the consultation would only be with the indigenous communities of Trinitario-Mojeño, Yuracaré and Chiman peoples who are the owners of the TIPNIS indigenous territory. He said there would not be a referendum. This had previously been proposed by President Evo Morales. Earlier in the day Finance Minister and President of the lower house Héctor Arce said the draft law included demands from the indigenous march.
This evening I asked one of the key leaders at the indigenous march what they would do now. Rafael Quispe, Mallku of the Commission on Extractive Industries of CONAMAQ, said, “We will continue. They can pass whatever law they like but we will get to La Paz because we have to stop this road going through TIPNIS. This law is anti-constitutional because any legislative measure in relation to indigenous peoples has to be consulted with them. The consultation on the road has to be before, not after. And it must be in good faith. The indigenous peoples of the TIPNIS through their self determination and self government have already decided no to the road in 2010”.
The indigenous deputy Pedro Nuni rejected the law saying the Morales government was using the law to legitimise its road project. “As indigenous peoples we did not ask for the suspension of the second section of the road. Instead we ask that no road goes through the TIPNIS”.
Roxana Liendo who resigned from her position in the Vice Ministry of Rural Development immediately after the police repression of the indigenous march on 25 September said: “The law does refer to a legal framework which backs up the demand of the indigenous peoples march. I think the intention is good but once again the parliamentarians are confusing the issues. The project should be completely suspended pending a prior consultation and agreement on the route of the road”. She adds, “Prior, prior to what? It is not just about suspension of the second section. While there is not a final design of the road agreed upon that goes from each starting point, from San Ignacio to Villa Tunari, the road building should not continue”. See full interview from today with Roxana Liendo.
Analysis: Does this draft law solve the TIPNIS conflict?
The quick answer is no it does not. Having read the draft law the crucial part is Article 3 “Suspension and Prior Consultation”. It says construction on the second section of the inter-departmental road between Villa Tunari and San Ignacio de Moxos that passes through the TIPNIS is suspended and the process of free, prior and informed consultation of the indigenous peoples of TIPNIS will begin respecting their own norms and procedures (this means the indigenous peoples representative organisations and institutions) in line with the Bolivian Constitution, ILO Convention 169 and the United Nations Declarations on the Rights of Indigenous Peoples. It is a positive sign that there will not be a referendum because this complies with the Bolivian Constitution and international norms – they set out prior consultation only applies to the owners of an indigenous territory. A referendum could have meant other peoples outside the TIPNIS indigenous territory would have been able to decide on whether there was a road or not.
Suspension of the second section of the road
The proposed law suspends road building on the second section of the road. It is important to clarify that the road between Villa Tunari and San Ignacio de Moxos is one project. The government claims there exist three separate sections but the contract with Brazilian company OAS (available here in Spanish) only refers to one entire project which is to be completed in its entirety. The majority of reports say full road building has not begun inside the TIPNIS. So even if a “second section” did really exist it means nothing to suspend work that has not even started.
Road building has not stopped on the “first section” of the road and therefore there cannot be prior consultation on the “second section” of the road. For any consultation to be prior road building has to stop and a project agreed upon jointly with the indigenous peoples who live inside the TIPNIS (see part 3 of this article). Prior consultation means not just asking the indigenous peoples of the TIPNIS if they want the road or not. It also requires the indigenous communities participate in deciding on development in their territories (Article 7 of ILO Convention 169 and Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples). The Bolivian government has repeatedly stated there is no final design for the supposed “second section” of the road going through the TIPNIS. But how can this be the case when the contract with Brazilian company is for a road that is 306 km long and costs US$442 million? How can these calculations be made if there is no final design?
Other parts of the law: Alternative routes and future development projects
Article 4 sets out that alternative routes outside the TIPNIS will be studied and that these alternatives must also respect the rights of the indigenous peoples and the ecological balance of the TIPNIS. It would be nice to think the government was seriously considering alternative routes but it is unlikely because since the indigenous march began on 15 August President Morales, Foreign Minister David Choquehuanca and ministerial delegations sent to dialogue (eight failed attempts) have all said the road has to go through the TIPNIS.
Roxana Liendo comments “this article should be before Article 3. This could contradict Article 3 because Article 3 only refers to the second section” and not the entire road. If taken seriously an alternative route would be a good basis for dialogue and could potentially solve the TIPNIS conflict as the indigenous marchers have made it clear they do not oppose a road as long as it goes outside their territory.
Article 5 guarantees that the rights of indigenous peoples and the rights of Mother Earth as set out in the Bolivian Constitution and international norms will be not be violated in the case of development, megaprojects, extractive and infrastructure projects, programmes, works and activities. If this is the case it would set a huge precedent for all types of development projects in the other indigenous territories in Bolivia and its 20+ Protected Areas (Areas Protegidas). The test case is the TIPNIS and so it would depend on how and when consultation is done with the indigenous peoples who live in this territory. This Article could cause multiple problems the next time the government wants to exploit natural resources inside indigenous territories or national parks with the aim of redistributing income in social programmes as it does now (Mother Earth and the need to develop).
Article 7 prohibits illegal settlements inside the TIPNIS and explains they will be removed. This article is important because the southern area of the national park has already been occupied (see part three of this article). It would be a very positive move but the ability of the state to enforce this has to be questioned given what has already happened in the southern part of the park.
Even though the proposal of a law to suspend the road going through the TIPNIS is positive it does not actually change much because for the right to prior consultation to be properly respected there have to be several steps backwards including halting of road construction. The march of indigenous movements continues on its way to La Paz. They want a law that prohibits any road going through any part of the TIPNIS autonomous indigenous territory. The law that will probably be approved does not guarantee this. So in a way we are back at square one: the Bolivian government wants to build the road at all costs whilst the indigenous marchers are determined to prevent this and demand any consultation be prior. The final outcome will depend on whether the Bolivian government comes under enough pressure once the indigenous march gets to La Paz to force it to change its mind. Tomorrow we will find out how much support the Morales government can count on to continue with the road project. Social movements allied to the MAS have promised a huge march through central La Paz.