Interviews: Views on law suspending road project in TIPNIS national park
14 October 2011
Dario Kenner, La Paz
Daily updates on TIPNIS conflict at Twitter: @dariokenner
Facebook Page: http://www.facebook.com/BoliviaDiary
Below are three interviews about a law that was approved yesterday by Bolivia´s senate that proposes suspending construction on a road through the TIPNIS national park and indigenous territory. It is waiting to be enacted by President Evo Morales. This afternoon I talked to MAS Senator Adolfo Mendoza who in the past week has been a crucial actor in the drafting of the law. Last night I spoke to indigenous deputy Bienvenido Zacu who was involved in the negotiations on behalf of the indigenous who movements have been marching against the road project since the 15 August from the Bolivian Amazon. The indigenous march (as it is called in Bolivia) is due to arrive in La Paz next week. Finally, today I spoke to Sarela Paz, an expert on TIPNIS who was a member of the team that completed a Strategic Environmental Evaluation of the TIPNIS earlier this year.
Bolivia Diary analysis of the what the law means for the TIPNIS conflict
Bolivia Diary detailed background information on TIPNIS issue
Adolfo Mendoza: MAS Senator for Cochabamba
[Senator Adolfo Mendoza is a member of the Movement Towards Socialism (MAS) party led by President Evo Morales. He played a pivotal role in drafting the law suspending construction of the road through the TIPNIS. This law was approved in the senate this morning. Bolivia Diary analysis on content of the law – Dario Kenner]
What does the approval of this law mean?
There was the need to establish a law because dialogue between the indigenous march and the executive branch was not working. The Plurinational Legislative Assembly and the indigenous march proposed draft laws. Work began between the indigenous deputies (such as Bienvenido Zacu) and MAS parliamentarians. Five out of the six articles from the indigenous marcher’s proposal are included in the approved law (still to be enacted by President Evo Morales). This was a consensus law for three reasons. Firstly, we agreed to use the indigenous march proposal as the basis for the law. Secondly, the proposal from the executive branch was rejected. Thirdly, the proposed referendum was rejected (see this article explaining why this is important). The only Article there was no consensus on was the one dealing with the suspension of the road.
This law proposes what should always have been done which is respect of the right to consultation of the owners of the territory. No one else can decide apart from the Mojeños, Yuracarés and Chimanes peoples who live inside the TIPNIS. There are several other provisions in the law such as preventing illegal settlements and a comprehensive management plans of the TIPNIS national park. (explained here)
Is this law a solution to the TIPNIS conflict?
I don´t think this is a solution because some of the leaders at the indigenous march have rejected it. It opens up the possibility for a dialogue and eventual solution. What is strange is that some leaders at the indigenous march such as Rafael Quispe (key leader in indigenous movement CONAMAQ – see his views here) who are not from the TIPNIS reject this proposal to begin a process of free, prior and informed consultation. This is very bad for the Mojeños, Yuracarés and Chimanes.
Like all roads lead to Rome, all the paths to solve this conflict are through consultation.
The press are distorting the issue of whether the consultation is binding or not. This is a false discussion for several evident reasons. The Bolivian Constitution and international norms say indigenous peoples have the right to be consulted by the state. So free, prior and informed consultation is to reach an agreement that does not violate the rights of indigenous peoples. So it is arbitrary to discuss if it is binding or not. The word binding is not in the Bolivian Constitution, ILO Convention 169 or the UN Declaration on the Rights of Indigenous Peoples.
[The question of whether the consultation is binding or not is still not clear. Yesterday media reported President Evo Morales as saying any consultation was not binding. While this afternoon Bolivian Vice President Álvaro García Linera said the government would respect and guarantee the decision the result of the prior consultation with the indigenous peoples of the TIPNIS]
President Evo Morales at pro government rally 12 October (credit: Dario Kenner)
How can the consultation be prior if work has already begun on the road?
The spirit of this law is to open the process of prior consultation. The entire road does not go through the TIPNIS indigenous territory. There are two key elements. Two of the sections do not pass through the TIPNIS. The first section between Villa Tunari and Isinuta already exists; it does not touch the TIPNIS. TIPNIS has a boundary but it is not that where the boundary ends it is the moon or some imaginary place, it is part of Bolivia.
In the contract between the Bolivian Highway Authority and Brazilian company OAS it does not mention three sections, just one road. Can you explain this?
The contract with OAS has three sub-credits. Sub-credit A refers to the initial operations. Sub-credit B refers to the first and third sections. Sub-credit C refers to the second section. There is no final design for this second section and road building has not begun.
If there is no final design for the second section how can there be a calculation for the entire distance of the road and total cost?
How was the cost calculated? This was done through technical studies and based on comparing costs of other roads. OAS (Brazilian company building the road) has a proposal for the second section but there is no final design. There are several proposals on the table including going through the middle of the national park and on its borders. Another option would be to build a via-duct 55 kilometres long between Ichoa and Santo Domingo. The sub-credit C will not be disbursed until there is a final design and the results of the consultation.
Bienvenido Zacu: indigenous deputy (MP) from Guarayos, Santa Cruz region
[Zacu is one of the key indigenous deputies speaking in Bolivia´s Plurinational assembly on behalf of the march by indigenous movements in defence of the TIPNIS. He is a deputy for the Movement Towards Socialism (MAS) ruling party]
Does the approval of this law solve the TIPNIS conflict?
This is not a solution. One hour ago I got a call where they told me President Evo Morales said in a speech in Potosi about consultation they if they say no to the road then we will still do it. Our right to prior consultation is in the Bolivian Constitution, ILO convention 169 and the United Nations Declarations on the Rights of Indigenous Peoples. Evo has not fulfilled his discourse at the international level about defending Mother Earth.
Was the law agreed upon with indigenous deputies as MAS (Movements Towards Socialism – ruling party) politicians say it was?
No. With the six indigenous deputies there was meant to be a consensus. Yes we had meetings and debates but did not reach any consensus.
How can the TIPNIS conflict be solved?
There are legal norms that protect the rights of indigenous peoples set out in the Bolivian Constitution. We will fight at the international level by taking our cause to the Inter-American Commission on Human Rights (of the Organisation of American States).
In your opinion what is the process of change?
We are all part of the process. There is a new Constitution to replace the colonial system. This is what we have to take forward.
No one owns the process. Not Evo, not me. We are the process of change. There were deaths in El Alto (in October 2003) and in the east we suffered political persecution. Over 60% of people voted for the process. We have all built this process. Evo was a regional cocalero leader. And we are leaders from the lowlands who brought many people together. No one can say “it was me”.
Indigenous movements march in defense of TIPNIS a few days ago (credit: Communications Commission of the march)
Sarela Paz: Member of the team who wrote the Strategic Environmental Evaluation of TIPNIS
[Sarela Paz is an expert on TIPNIS who was a member of the team that completed a Strategic Environmental Evaluation of the TIPNIS earlier this year. The evaluation was overseen by the Bolivian Agency for Protected Areas (SERNAP) ]
What was your reaction to the law suspending the road through the TIPNIS?
This law violates the Bolivian Constitution because the consultation has to be prior. The project cannot have already begun. The proposal from the indigenous march is to suspend the road to begin a prior consultation. Prior consultation is an obligation for the state at the level of the executive branch and legislative branch. In April 2011 the legislature approved a law for the road project. This violated the right to prior consultation because the results of a consultation with the indigenous peoples must be taken into account. Yesterday the Constitution was violated again because when a legislative measure is approved that affects indigenous peoples it needs to be consulted with them and have their consent.
What is the aim of consultation?
The state has the obligation to obtain the consent of the indigenous peoples. The process of consultation should end in agreements between the state and the indigenous community. This agreement then has to be respected. James Anaya, Special Rapporteur on the Rights of Indigenous People on Indigenous Issues, has mentioned in a report represented to the United Nations Human Rights Council on 20 September 2011 that consultation is a measure that cannot advance without the consent of the indigenous peoples. And therefore when there is an absence of consent there is in effect a prohibition of the project.
Are there actors taking advantage of the TIPNIS conflict?
I have been interviewed a lot recently on TV and radio and shared panels with people who are right wing and opposed to this government. I want to make it very clear that I support the implementation of the Bolivian Constitution and I do not agree with the people on the right who are saying the Constitution is useless. At the moment the right wing are being very vocal about the indigenous people’s right to consultation. However, in the Tarija region the Governor Mario Cossio in 2009 violated the right to consultation of the indigenous peoples of the Itika Guasu to build a road through an indigenous territory. This shows us that there is a problem of institutional order to proceed with consultation that affects political forces linked to the government and to the right wing opposition.
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