Implementation of the right to prior consultation in the Andean countries. A comparative perspective

ABSTRACT

During the late 1990s and early 2000s, Andean countries had for the most part adopted the ILO's Convention 169. Once included in the national juridical systems, the right to consultation was positivized by means of different rules, regulations and decisions that eventually subsumed its political substance. In this paper, I analyze the processes to adopt and implement the right to Prior Consultation in Bolivia, Colombia, Ecuador and Peru. In exploring them, I will shed light on the technicalities of the law, which not only depoliticize self-determination but also reshape indigenous peoples.

KEYWORDS:

• Right to consultation
• Andean countries
• legal implementation
• procedimentalization
• legal technicalities

Acknowledgements

I am grateful to the University of Antwerpen, VLIR-UOS (Belgium), and the Pontificia Universidad Catolica del Peru and to VLIR-UOS for funding the project “The human right to water in the context of socio-environmental conflicts in Loreto, Peru” (2016–2018). I am also grateful to the CICAJ research team (Frida Segura and Mayra Sanchez) for revising the article. I would also like to thank the anonymous reviewers of the Journal of Legal Pluralism for their helpful comments and generous suggestions.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. Committee of Experts on the Application of Conventions and Recommendations

2. Here, I will use indistinctively the terms: right to prior, free and informed consultation, right to prior consultation or right to consultation.

3. See also Aidesep et al. (2011, 2012), Aylwin and Tamburini (2014), Guevara and Cabanillas (2017), Yrigoyen (2009a, 2009b). A similar pattern is evident in the USA; see Anaya (1999).

4. International Labor Organization.

5. This is an example of what Sassen (2006) calls ‘global assemblage’, whereby change does not only come from outside, but also the internal state's logic conditions new political formations.

6. By extractive activities, I mean mining, oil and gas extraction.

7. While studies on legal transplants often emphasize a top-down approach exploring how domination, prestige and/or economic goals motivate legal changes (for a critique, see Graziadei 2006, 2009; Moore 1978), the adoption of the right to prior consultation in the Andes shows how legal transplants may be driven from the bottom (Benda-Beckmann 2000; Santos 2002; Merry 1996).

8. See, for example, the aftermaths of the Sarayaku vs Ecuador decision (2012) of the Interamerican Court of Human Rights.

9. I define ‘procedimentalization’ as the process whereby procedural law reigns over substantive law in the Andean legal systems. It implies the development of technicalities that sometimes -as in the case of the right to consultation- end up twisting the original definition of the substantive law.

10. During 2003, a social conflict arose in Bolivia due to President Gonzalo Sanchez de Lozada's decision to privatize gas and export it through a Chilean seaport. Social unrest developed in many cities, which resulted in the loss of many peasant and indigenous lives.

11. Gutierrez-Lopez (2008).

12. The United Nations, and indigenous organizations such as CIDOB and CONAMAQ, participated in this council.

13. Article 7 points that “decisions resulting from the process of Consultation and Participation adopted in common agreement between the Competent Authority and the representation parties of Indigenous and Native People and Peasant Communities, must be respected and considered as basic criteria for the execution of the hydrocarbon activity, work or project to be consulted by the Competent Authority”.

14. Section 15, Article 30 II of the Constitution replicates article 6 from the ILO Covenant 169: “the right to mandatory prior consultation, conducted by the state, in agreement and good faith, will be respected and guaranteed, concerning the exploitation of non-renewable natural resources in the territories they inhabit.”

15. DPLF and OXFAM (2011, 38).

16. See Herrera (2011). In the Mallqu Quota case, forcible relocation without consultation occurred in the process to develop an open-pit mine in a region where lakes, six sub-basins and three Amazonian rivers exist. Local people opposed the project and the government arrested the main authority of the ayllus (DPLF and OXFAM 2011). In the Jach'a Suyu Pakajaqui community in Corocoro, in the province of Pacajes in La Paz, the Bolivian state mining company –COMIBOL- developed a hydrometallurgical project on copper without an environmental impact study. The project redirected a river and nowadays keeps a substantial record of pollution. The CONAMAQ indigenous organization has appealed to the Inter American Commission of Human Rights (DPLF and OXFAM 2011).

17. The Bolivia-Brazil Gas Pipeline (GBB), the construction of bi-national San Miguel-Cuaibá gas pipeline between Bolivia and Brazil, the Margarita gas field that affects the Guarani, the TIPNIS territories, the lands of the communities from the Colcha district that meant the forcible relocation of a community, the communities from the states of Potosi, Chuquisaca and Tarija, in whose lands mining pollution has increasingly affected productive activities such as agriculture, animal and fish farming. Also, the contamination of the Beni river, which affects the communities of the indigenous Esse Eja people, and the pollution of the Desaguadero river and lakes Uru Uru and Poopó in Oruro affecting the Quechua, Aymara and the Uru communities (DPLF and OXFAM 2011).

18. In 2010, the National Council of Ayllus and Markas from Qullasuyu (CONAMAQ) “agreed to form a group of technicians to produce a law proposal on the right to prior consultation and consent” (DPLF and OXFAM 2011, 39). Accordingly, consultation must have two stages: prior to carrying out any project and prior to the evaluation of the environmental impact assessment. In April 2012, a technical commission of CONAMAQ and CIDOB was formed to develop the law proposal.

19. Through a constitutional reform, the Plurinational Constitutional Court that replaced the previous Constitutional Court, was created in Bolivia in 1994. It started to work five years later, after Law 1836 of 01/04/1998 was passed. Now it is regulated through Law 027 of 06/07/2010 (Law of the Plurinational Constitutional Court).

20. ONIC is the National Indigenous Organization of Colombia.

21. For instance, in 1993 the Constitutional Court of Colombia interpreted article 330 of the Constitution in the sense that consultation must be “wide and significant”, which implies that the proposed projects and their eventual impacts should be widely known by the affected people in such a way that they have the chance to discuss them. Sentence of the Constitutional Court of Colombia, T-188 (May 12th 1993).

22. Some cases that deserve special attention in this respect are the “Troncal del Cafe, that affected the Embera Chanu de Cristiana indigenous reservation in Jardin, Antioquia; the U´wa's case for oil exploration in the Sanore block, and the case of the construction and operation of Phase I of the Brisa Multipurpose Port located in the Dibulla District in La Guajira” (Rodríguez 2009, 63).

23. See: Claim presented under the proposed 24th Article of the Constitution of ILO, Colombia, BG, 282/14/3. Administration Council, 282 Meeting, November 2001. ILO (2009a, 66).

24. These matters are “strategies and social-environmental general measures for prevention, mitigation, compensation, control and rehabilitation related to negative socio-environmental impacts, as well as positive socio-environmental impacts that the office in charge of conducting auction processes for hydrocarbons […] consider.” See: Executive Decree 3401. See also, Schilling-Vacaflor and Flemmer (2013).

25. See Saavedra (2011).

26. Rivadeneira (2012) has identified up to nine types of consultation in the existing Constitution of Ecuador. The formulation of the right to consultation unleashed conflicts among groups supporting President Rafael Correa in the Constitutional Assembly. See Saavedra (2011).

27. For a critique of this norm, see Schilling-Vacaflor and Flemmer (2013).

28. In regards to the Waorani people living in the Orellana province, the CONAIE proved that the AGIP Oil Ecuadorian-Italian company had presented a fake document of an alleged agreement with the indigenous people. The company assured it was the result of a consultation process held by the company whereby the Waorani had approved its drilling operations in their lands in exchange for three quintals of rice, three ounces of sugar, three sacks of salt, two soccer balls, etc. (Saavedra 2011).

29. Melo (2008) mentions that in this case the state accepted that consultation was included as a right in the law, but the state did not implement it because it affected strategic interests.

30. In 2002, the Ombudsman presented a Request for Protection before the Constitutional Court (Case N° 170-2002-RA, August 13th 2002, Constitutional Court of Ecuador) on behalf of the chachis communities (FECHE) and black communities (UONNE) from the Cayapas river in the Esmeraldas province. The Ministry of Energy and Mining had issued a mining concession to a private company in an area overlapping communal territories without consulting the communities because, according to it, no regulations were available to consult. The Constitutional court suspended the mining concession, rejected the state argument of lack of regulation to apply the consultation, and rather stated that the lack of consultation implied the invalidation of the concession (ILO 2009b, 114).

31. 150,000 hectares belonging to a Federation of Shuar people (FIPSE), which clustered ten associations that represented 5000 people approximately.

32. Council of Administration, 282nd meeting, November 2001, Ecuador Reclamation, GB 282/14/2.

33. The necessity of a law to regulate the consultation is part of a current debate in Ecuador (Schilling-Vacaflor and Flemmer 2013). Some argue that it would reduce the conflict with the state, while others contend that the law is unnecessary because consultation is a fundamental right of mandatory compliance. Critiques contend that consultation is being used to impose projects on indigenous peoples. Two bills have been presented to the Ecuadorian National Assembly on the Right to Consultation, one of them created by Ecuadorian indigenous organization, CONAIE. See Carrion (2012).

34. Abanto (2009). Particularly, the Ombudsman has mentioned that there are cultural obstacles that obstruct the adequate implementation of the rights of indigenous people.

35. Early in 2015, Carlos Gálvez, former president of the National Society of Mining, Petroleum and Energy, said: “if, in addition, the prior consultation should be done to communities without the profile to be consulted and, if anyone wearing feathers has instantly the right to be consulted, things will be even more difficult [for us] (Melgar 2015) On February (2016), Carlos del Solar, current president of the same institution, made his stance clear in an interview to La Republica, a Peruvian newspaper: “the law of consultation is a stupidity; we don't need it. It is just an obstacle to mining investment” (Lozano 2016).

36. These laws have restrictively included the right to consent: Law 27811 for the Protection of collective knowledge of the indigenous people linked to biological resources (July 24th 2002), Law 28216 for the protection to access to Peruvian biological diversity collective knowledge of the indigenous people (April 7th 2004), Law 26839 - Conservation and Sustainable use of Biological Diversity, and article 43 of the Regulation of the Law of Protected Natural Areas (Supreme Decree 038-2001-AG).

37. CERD (2008b), CIDH (2008, 2009). See, also ILO (2009b, 52).

38. Committee Report designed to evaluate the allegation referred to non-compliance of ILO Convention 169. (Government of Peru, 2008). Presented in 1997, GB.270/16/4.

39. The epitome of neoliberal policies in Peru was the statement of the “dog in the manger” that Garcia propounded during his second term: Indigenous communities neither ‘eat’ nor let others ‘eat’ natural resources. See, Renique (2009).

40. Aidesep sued the state because the definition of consultation was not in accordance with article 6 of the ILO Convention 169: the goal of consultation is to reach an agreement or consent of the proposed measures. Indigenous norms, customs and traditions were disregarded, and citizen participation is considered after granting the mining concession. Participation mechanisms would be implemented before and during the presentation of the EIA, but it is not mandatory to consider the opinion of those affected in order to mitigate or modify activities. The EIA are produced by the company without the participation of indigenous people.

41. Constitutional Court decision N° 5427-2009-PC (30.06.2010).

42. In May 2011, the Ministry of Energy and Mining approved the regulation for the implementation of consultation in mining activities without consultation either. Among other things, the regulation establishes a time limit of 20 days to conduct consultation, and 10 more days to evaluate the process. Citizen participation is confused with right to consultation, see Jesusi (2011). In June 2011, the Congress approved the Forestry and Wild Life Law without an adequate consultation process. See Vallenas et al. (2010).

43. The Bagua conflict, also known as ‘Baguazo’, alludes to a confrontation between Indigenous Peoples and the police that took place on June 5th, 2009 in a northern Amazon region. The first blocked the highway protesting against various government regulations to ease indigenous lands sale without due consultation. Thirty three people died as a consequence of the clash between these parties, twenty three of them were policemen and ten were civilians (Salmon, 2013; see also Comision Multipartidaria Encargada de Estudiar y Recomendar la Solucion a la Problematica de los Pueblos Indigenas, 2008; Peru - Defensoria del Pueblo, 2009).

44. In May 2010, the Plenary of Congress approved the proposal of the Prior, Free and Informed Law of Consultation issued by the Commission of Andean People and agreed upon with indigenous organizations. The government made eight observations to the law. After 3-months of negotiations, the project finally included the points the government had made, of which the most important were that the state has the final decision and that consultation will proceed only in case of lands legally owned. See Jesusi (2011), Vallenas et al. (2010), Anaya (2010).

45. Aidesep et al. (2012). See also Schilling-Vacaflor and Flemmer (2013), Salmon (2013).

46. See the Report of the Experts in Implementation of Treaties and Recommendations about the ILO Convention 169 (ILO 2010), whose second consideration refers to a definition of indigenous people as those “in possession of a piece of land”. The CEACR claims that this reference does not appear in the ILO Convention 169, and that Article 13 should be read together with Article 14 paragraph 1 of the Convention, so that it includes even indigenous peoples who have lost possession of their lands or have been evicted from them (CEACR 2010b). Even more restrictive criteria have been established through Ministerial Resolution 202-2012-MC approving Guideline 03-2012/MC that creates an Official Database of Indigenous or Native People (Guevara and Cabanillas, 2017).

47. Indigenous communities in the Andes are legally called ‘comunidades campesinas’ (peasant communities) (Law 24656), whereas in the Amazon basin, they are legally called ‘comunidades nativas’ (native communities) (Law 22175).

48. The Intercultural Vice Ministry has pointed out that Indigenous Peoples must go to court if they consider that their rights have been violated before the date of entry into force of the consultation law. See Ruiz (2012) for a critique.

49. COMISEDH (2012), Salmon (2012), Aidesep et al. (2012), CNDDHH (2012).

50. In July 2012, Ministerial Resolution N° 350-2012-MEM/DM was approved to regulate the procedures to implement a consultation process on extractive activities without ever consulting indigenous peoples concerned.

51. Retrieved from: http://consultaprevia.cultura.gob.pe/proceso/# (access on January 2016).

52. Oil blocks 164, 165, 169, 175, 189, 190, 191, located in the Amazon basin. They affect the Capanahua, Kukama-Kukamiria, Awajún, Wampis, Shawi, Shéninka, Asháninka, Yaminahua, Amahuaca, Ashéninka, Matsigenka, Yaminahua, Yine, Shipibo-conibo, Yine, Ese-eja, Amahuaca, Yine, Kichwa runa, and Machiguenga (Ministerio de Cultura 2016).

53. Ut supra, p. 24.

54. Private investment promotion agency.

55. Report N° 057-2015-MTC/13 (September 30th, 2015).

56. Consultation process of the Waterways Project. Minutes of the Internal Evaluation. Meeting in Nauta, September 9-10 2015.

57. By this, I refer to the language of the Procedural Law.

58. Importantly, this should not be taken as a closed list.

59. Sassen (2006) contends that globalization has made the executive branch more powerful vis-à-vis other branches of the state.

Additional information

Funding

This work was supported by the Concurso Anual de Proyectos de Investigación 2017, PUCP [grant number CAP 2017]; and VLIR-UOS [grant number Call TEAM projects and South Initiatives 2016].