Bolivian indigenous leaders discuss the right to prior consultation
12 March 2012
Dario Kenner, La Paz
Updates on Bolivia: https://twitter.com/dariokenner
The debate on the right of indigenous peoples to prior consultation is at the heart of the current conflict over the proposal of the Evo Morales government to build a road through the TIPNIS national park and indigenous territory.
The anti-road march by indigenous peoples between August and October last year was precisely because the 63 indigenous communities inside the TIPNIS indigenous territory (TCO) were not consulted before the Bolivian government signed a contract with Brazilian company OAS in 2008 (contract in Spanish) and road building started in 2011. The anti-road march pressured President Morales to pass a law in October 2011 banning any road inside the TIPNIS.
Following a pro-road march by CONISUR Morales passed another law on 10 February 2012 but this time it was to begin a process of consultation with the communities inside the TIPNIS (more information about CONISUR and the TIPNIS consultation law).
Last week I attended a workshop on the right to prior consultation with indigenous movements CIDOB and CONAMAQ who marched against the road project. According to representatives of CIDOB (Confederation of Bolivian Indigenous Peoples) this movement represents nearly 1 million indigenous peoples (34 nations mainly from the Amazon and Chaco regions). CONAMAQ (National Council of Ayllus and Markas of Qullasuyu) represents Aymara and Quechua peoples from the western highlands and central valleys.
In summary the main outcomes of the workshop (see declaration below in Spanish) are that CIDOB and CONAMAQ agreed to work on a joint proposal for a Framework Consultation Law they will present to the Bolivian government. They also criticise what they see as the criminalisation of protest in regard to their opposition to the road through the TIPNIS.
In the next few days indigenous communities inside the TIPNIS will decide via their representative social organisations, affiliated to the CIDOB, if they will begin another march in opposition to the road project.
I spoke to indigenous leaders from CONAMAQ and CIDOB to ask why the right to prior consultation is so important.
More detailed information on the TIPNIS conflict can be found in previous posts on this blog.
Interview: Félix Becerra, Jiliri Apu Mallku (head of) CONAMAQ (National Council of Ayllus and Markas of Qullasuyu)
Why is the right to prior consultation important for CONAMAQ?
The government of CONAMAQ (indigenous structure) is the legitimate organisation that represents indigenous peoples from the highlands. The right to prior consultation is included in conventions, in the Constitution and the United Nations Declaration [on the rights of Indigenous Peoples]. Based on this the CONAMAQ government wants this to be applied. We are the legitimate authorities of our territories based on our structures etc.
According to the law if the government wants to do any measure it needs to consult indigenous peoples before doing it. The indigenous peoples can decide Yes or No and the government needs to respect this.
The proposal from the CONAMAQ government is for a Framework Law on Consultation. This is not to bypass the existing laws and conventions on this right. This is to legitimise and exercise the rights of indigenous peoples.
Why is territory important for indigenous peoples?
As indigenous peoples we live in our territory. We maintain our cosmovision of Mother Earth. To care for the environment, to stop pollution, preserve our native products. This has been our desire from before.
Respect for Mother Earth is in the law. As indigenous peoples we live with Mother Earth: it might rain or not, or there might be a frost. We are worried about climate change and pollution. We need to protect the health of Mother Earth.
Why are you here today talking about consultation when this right is enshrined in the Constitution and there is an indigenous government?
The government is Bolivian. For the first time we consider it to be of the people. The laws are there. The government needs to comply with the laws but it is not complying on consultation. This is why we propose a Law on consultation. We just want to guide what the government does. But the government does not do it, to respect the rights of indigenous peoples.
The President is surrounded by advisors and Ministers; they are the ones who govern. We are not against the government, we just want to guide them so they comply with the laws. The process of change is not finished, it needs to be deepened to fulfil the Constitution.
Why does CONAMAQ support the CIDOB on the TIPNIS issue?
This is national park of all Bolivians and so it is all ours. As indigenous peoples we consider it to be the lungs of the earth, that is where rain comes from. This park is also titled as an indigenous territory (TCO) and is protected by various laws. There were decrees that protect it as a national park.
The way we see it is if our national park [the TIPNIS] is wrecked with a road through the heart of it then all other national parks will be affected and the government can enter them. As it is also an indigenous territory (TCO) we also have these TCOs in the highlands. This means the government can enter these indigenous territories (TCO) without consultation, this has already happened. This is also not just about TIPNIS this is about the defence of Mother Earth. Some say we are against the road. We are not against the road but it should go around the border of the park outside the indigenous territory. We are against the changes it would mean for the environment.
Interview: Lázaro Tacó, former leader of CIDOB, now an advisor:
I am a member of the Chiquitano peoples and am a former leader of political coordination of CIDOB in Santa Cruz. I currently provide technical advice to CIDOB.
Why is the right to prior consultation important for CIDOB?
Historically indigenous peoples have had their own territory. There has not always been a something signed on a piece of paper. It took work over decades throughout the world to get these two norms: ILO Convention 169 and more recently United Nations Declaration on the Rights of Indigenous Peoples. We are also currently consolidating the Bolivian Constitution approved in 2007 that includes all these rights.
After the colonisation and the Republic we are re-establishing the right to consultation. Indigenous peoples have always existed and had territory, maybe not always titled, but the point is they are not affected.
The right to prior consultation is applied in the case of mega projects that could affect indigenous peoples. The state has the obligation to do the consultation before. Why? Because we know any major project will have many impacts; cultural, economic, social etc. All the different types of impacts there could be on a people who have historically lived in peace and harmony with nature. These projects will always affect indigenous peoples.
So the right of the consultation is to explain to them, as the norm says in good faith, the pros and negatives. And so when the community knows the pros and negatives of a project then they decide either to reject or approve it. The right to consultation is ratified by law in this country and in the Constitution. This is our legal arm to guarantee our rights.
Why is territory so important for indigenous peoples?
It is the basis of the survival of the culture of these peoples, their language, their way or life and they way they organise themselves. This could be as a cacique as the Guarani’s call it. This cannot be based on thin air, it has to be based on a territorial space. It is not just about the use of earth but also the cosmovision of how to live on this territory. Indigenous autonomy has to be based on an indigenous territory.
Why are we you here today talking about the right to prior consultation with an indigenous government?
Evo Morales was born in the highlands in an indigenous community. By migrating to the tropical valley´s he lost this collective and spiritual indigenous cosmovision. In the highlands following the Spanish colonisation people were taught to be more mercantilist, to trade more, they have a more individualist mentality. President Morales was born in a native indigenous community but he acquired an individualist, mercantilist attitude which does not coincide with the collective way of life of indigenous peoples.
At the international level the President has used a discourse about indigenous peoples. But he has not known how to care for this. By defending indigenous peoples rights and trying to build a road, this is the conflict we have had over TIPNIS, this is a contradiction of his own discourse.
In addition he has also made a mistake by thinking “I am an indigenous President and so I do not need to speak to or coordinate with indigenous peoples. I am indigenous and so I decide for them”. This is not correct, he is the state. There should be a tri-partite agreement between the government, indigenous peoples and international cooperation or transnationals. Just because he says he is indigenous does not mean he can speak on behalf of indigenous peoples. This is the difficulty we have, he no longer understands the indigenous world, and he has an individualist mentality, not the collective mentality of indigenous peoples.
Why are we here today? After we marched last year we achieved the Law 180 that protects TIPNIS [law banning the road through TIPNIS] he was not convinced that we had the majority of support from society and so he promotes another march by the cocagrowers [cocaleros]. The result of that march was Law 222 on consultation specifically on TIPNIS.
We say we need a framework consultation Law for all territories, not just a specific law on TIPNIS. So what we are doing here with CONAMAQ, from the highlands Quechua and Aymara, and CIDOB from the lowlands, is to find common ground and join forces to present a joint proposal to the national government. We are here to share information to draft the law.
Can you explain why CIDOB says they will march against Law 222 on consultation on TIPNIS?
The Eighth March [against the road] achieved Law 180 that protect the TIPNIS, that was enough for us. Even though they say this Law 222 on consultation does not revoke Law 180 it affects it implicitly. The norm says that consultation is prior to a legislative or administrative measure that affects indigenous peoples. They already signed a contract with Brazilian company OAS. So the consultation should be before that contract was signed.
This is why we overwhelmingly reject Law 222 because the consultation is afterwards. The Constitution does not refer to consultation afterwards, it stipulates prior consultation, in this case for example before the government signed the contract with OAS.
Interview: Aniceto Ayala Lopez, Secretary of Climate Change and Environment, CIDOB
I am from the Wenayek peoples in the South of Bolivia, the Tarija region part of the Bolivian Chaco. We have various experiences of consultation. We are around 6,000 people. This means we usually know what is happening in our territories. Our territories are not titled but they are recognised by decrees.
It was around ten years ago. Even though we didn´t know what the laws were in Bolivia but we made them respect us and our territory. To begin with we didn´t know how to read or read in Spanish. TransSierra (company website) entered our land and had their camp and machines ready. We went with our leaders to see what was happening and they showed us all the documents including an environmental license from the Bolivian government and an Environmental Impact Study. We told them this was private property and they needed permission to be there. We said if they wanted to enter our territories then they needed to speak with us and that we would return the next day.
They turned up with the regional and municipal authorities, the police and the army. They pressured and practically threatened us. We said to them “with all due respect to you police or army colonel we do not have a problem with you, if we do we will go to your offices or you will come to our homes. So we do not understand why we need to talk to you”. We told them that if they did not respond to us we said we would come back with more of us. We gave them 48 hours to take all their machinery and leave, and if they didn´t leave there would be problems. If the police intervened it would mean there would be deaths and it would be the responsibility of the company. This is what is lacking in the TIPNIS. They need to take a firm decision. After this they said they wanted to dialogue. They told us that they had funds for compensation over 20 years and could build schools, hospitals etc.
What did you think when they offered you this compensation?
The positive thing was that we made them respect us, we did not cry or complain. We were not scared to make them respect us. Anyone who enters our territory needs to speak to us. We received significant amounts of money, this was a lot of money for us, we had never ever seen this amount of money. Our indigenous social movement receives around US$80,000 – US$100,000 each year from the company TransSierra.
The negative aspect was the effect on our natural resources, we didn´t notice these impacts straight away. The most immediate impact was social. It does not matter if it is US$10 million or whatever. Indigenous leaders do not earn anything and then suddenly they have nice cars and have many things. So where did they get this from? This leads to mistrust and weakens the social movement. My regional social movement [the CIDOB is made up of around twelve regional movements that together represent 34 indigenous nations] is weaken than other regional movements precisely because of this. There start to be conflict between community leaders, communities, families and brothers. We need to find a way to stop this or slow it down. They corrupt us. How can we change this?
There are schools but there is no money to pay for teachers. There is the infrastructure but it does not work. There are no medicines or doctors. My people have had a very negative experience.
When I see the communities inside the TIPNIS I kind of already know what is going to happen. The government is giving out mobile phones, TV antennas, clothes etc. This does not improve the quality of life. It has not improved our quality of life.
What is your experience of consultation?
In our experiences of consultation there are no set steps to take. Consultation means they need to explain what the impacts of the project will be and how they will recuperate the environment when they leave. But this does not happen after one meeting, it is process of various stages over a period of time. It means that people know when the machines arrive why they are there.
If they are going to enter our territories we do not want to end up with nothing. There is a beautiful discourse about self-determination but we also need to benefit, it has to be both. There is a tax on the profits of oil companies but this money never comes back to our communities.
We thought that with an indigenous government, a brother government things would improve. But we are worse off now. Because Evo he thinks he is an indigenous brother he can do whatever he wants, but it is not like that.
Summary of talk on the right to prior consultation: Sarela Paz, sociologist
The right to prior consultation is a political right to self-determination. It is for indigenous peoples to decide what happens in their territory. This means any result is binding because this is about the right to self-determination. This right is enshrined in the Bolivian Constitution, ILO Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples. There can be consultations with Bolivian citizens but this is different from the right to prior consultation which is specifically of indigenous peoples.
The main experience of the process of consultation is in the Chaco region (south east of Bolivia) where oil companies have done consultations with indigenous peoples. However, these experiences have highlighted problems because when oil companies have consulted Guaraní or Wenayek peoples they were also an interested party. This is a bad legal precedent.
In addition indigenous peoples need to clearly identify their objectives. What is the objective of consultation? Is it only a mechanism to obtain economic benefits from the activity that will affect them? Or is it to defend a right to make decisions on their territories, to defend their right to self-determination?
Based on the same logic the state also cannot be an interested party in a consultation process. It is very important that there is a third party to resolve the interests of the state, represented by the government, and of indigenous peoples. A third party should help with the consultation process to ensure it is not politicised and is not only dealt with in a political space.
It is very important the indigenous peoples clearly define who will represent them in the process of free, prior and informed consultation. This decision on representation should be respected by governments. If this factor is not clear then it can be manipulated politically. This is what is happening today in the TIPNIS with the Law 222 on consultation.
Declaration from the workshop between CONAMAQ and CIDOB on the right to prior consultation, 8 March 2012.