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Abstract
This article considers the relationship between gold mining, violence(s) and Indigenous peoples through the lens of legal pluralities with a focus on the dimension of time. Drawing on the specific case of the Embera Chamí of the Resguardo Indígena [Indigenous Reserve] of Cañamomo Lomaprieta in Colombia, I ask: What can an analysis through the lens of time unearth around the type of violence(s) that extractives engender for Indigenous peoples and their ancestral lands? I ground my analysis with concepts emerging from the literature around extractives and legal pluralities, such as Stuart Kirsch’s (Citation2014) “politics of time’; Boaventura Santos’ (2002) “instant” and “glacial time”; and the “lethal” and “ancestral time” that emerge from my own work with Indigenous and Afro-Descendant peoples in Colombia. I develop a typology of actors and legalities vying to regulate the Resguardo’s gold, further developing my concept of “raw law” through the dimension of time. And I show what happens when the Resguardo’s authorities appropriate free, prior and informed consent as a tool towards self-government within this context of inter-i-legality. I take up Lemaitre and Sandvik’s (2015) call to theorize differently contexts of violence, reflecting also critically on ethical implications for activism and collaborative research.
Acknowledgments
My thanks to the people of the Resguardo Cañamomo Lomaprieta and the Palenke Alto Cauca for our ongoing collaborations. While drawing on community perspectives, I am solely responsible for the interpretations in this article. This article synthesizes the principal ideas of Chapter 7 of my doctoral thesis, and I want to acknowledge the invaluable insights I received from my thesis director, Rachel Sieder (CIESAS-DF); and my committee members, Arturo Escobar (U. North Carolina, Chapel Hill), Teresa Sierra (CIESAS-DF) and Colin Scott (McGill University). Thank you also to the International Commission on Legal Pluralism for selecting this article for the 2018 Young Scholar’s Award, and to the anonymous peer reviewers of this journal for their insightful comments.
Notes
1 All citations from interviews in this article are taken from Weitzner (2018).
2 Home states are the countries where companies are headquartered.
3 As senior researcher, Governance and Natural Resources, at The North-South Institute based in Ottawa, I led a decade-long programme on Indigenous perspectives to consultation and decision-making on extractives in the Americas, beginning fieldwork with the Embera Chamí of the Resguardo Indígena Cañamomo Lomaprieta in 2009. See http://www.nsi-ins.ca/governance-of-natural-resources/extractives-and-ethnic-rights-in-colombia/
4 The Forest Peoples Programme, www.forestpeoples.org
5 Ethnic rights is a term that has been accepted and used in Colombia to refer to peoples who receive special rights recognition under Colombia’s normative framework, including Indigenous peoples; Afro-Descendant, Palenquero and Raizal peoples; and the Rom people.
6 Among other instruments, Colombia has ratified ILO Convention 169; the Convention for the Elimination of Racial Discrimination; the American Convention on Human Rights; and it has signalled approval of the UN Declaration on the Rights of Indigenous peoples. Its 1991 Constitution recognized the special jurisdiction of Indigenous Peoples, a certain level of autonomy, and importantly, the state provides transferencias, funding to recognized Resguardos.
7 Gow (Citation1997, Citation2004) notes that Life Plans are Indigenous ‘counterproposals’ to government plans (cited in Lozano and Suárez, 2017). They are long-term proposals developed by Resguardo authorities setting out long-term integral visions and aspirations for their territories and peoples.
8 Escobar writes: “What occupies territories is a specific ontology, that of the universal world of individuals and markets (the Global World) that tries to transform all the other worlds into only one. In interrupting the neoliberal globalizing project of constructing a Global World, many Indigenous, Afrodescendant, Peasant and urban poor communities are promoting ontological struggles. The Zapatista axiom is the one that best represents the struggle to maintain multiple worlds—the pluriverse—a world in which many worlds can fit. Many of these worlds are committed to struggles for the pluriverse” (Escobar 2016, 20, my translation). See also Escobar 2018.
9 By 2016, the Constitutional Court decision T530/2016 clarifies that a total of 20 mining concessions overlap with Resguardo territory. However, the Ministry of the Interior registered that only 3 concessions holders had requested certificates regarding the presence of Indigenous communities, the first step that would trigger a prior consultation: “As a consequence,” according to the Court Magistrate Vargas, “the National Mining Agency understood that the way was free for it to issue concessions within the territory … and individuals have been able to initiate their mining activities without consulting the communities” (par 116).
10 In Colombia, there are a variety of “criminal armed actors” from those most associated with the internal armed conflict, namely the Revolutionary Armed Forces of Colombia (FARC) and those associated with paramilitarism, such as the ELN; to members of international narcotrafficking rings or gangs, known as bandas criminales or BACRIM.
11 See for example, Defensoria del Pueblo 2010; Fox Citation2012; Jamasmie 2013 a, 2013 b; Massé and Camargo Citation2012; Becerra Citation2013; Idrobo et al. Citation2013; Semana Citation2013; Green Citation2016; Massé and Munevar Citation2016.
12 As of February 2018, ASOMICARS registers as active some 58 mines in the Resguardo (of over 90). This number—and the number of active miners which is around 400—fluctuates over time (internal project narrative, Resguardo Indígena Cañamomo Lomaprieta, April 26, 2018), likely linked with the price of gold in relation to other economic and productive possibilities within the Resguardo..
13 According to Colombia’s Ombudserson’s website, between the 1st of January 2016 and the 31st of December 2018, 431 human rights defenders were assassinated. In 2017, Colombia’s Ombudsperson Negret Mosquera stated that “one of the principal causes of this phenomenon is the pretension of illegal armed groups to take the spaces of the territory from which the FARC has retired in order to control the illegal economies that have been the fuel for war in Colombia.” http://www.defensoria.gov.co. See also the United Nations Special Rapporteur on the situation of human rights defenders Michel Forst’s end of mission statement following his Nov 20-December 3, 2018 visit to (United Nations Citation2018); and Frontline Defenders (Citation2019) analysis of the Global situation of human rights defenders, which shows Colombia and Mexico accounting for 54% of all reported murders in 2018.
14 Lemaitre (2011), for example equates this stance with radical legal pluralism that goes against a more progressive interpretation and use of the law.
15 For example, in a 2009 panel on FPIC at the annual meeting of the Prospector and Developer’s Association of Canada, Chief Stan Beardy of Nishnawbe Aski Nation in Ontario, Canada, said: “When we talk about free, prior and informed consent, it’s not only about human and Treaty rights for us as First Nations; we’re talking about our very existence, our survival. Because long after the mining is done, and the mining companies are gone, we still need to be on the land. And that’s why it’s so important that we have a say what happens within our homelands.” Going back to the Colombian context, Rodríguez-Garavito quotes a Kankwamo leader who stated: “The real subject of consultation is life” (2011, 35).
16 I have argued previously that aside from the several power imbalances that underpin FPIC processes, there is also something telling about the word ‘consultation’ in and of itself: because someone is doing the consultation (the active party), and someone is being consulted (the passive party). The word implies a power imbalance, and a more passive role for affected communities right from the get-go. Whereas the word consent implies far more agency: the act of giving or withholding consent is the result of a collective decision-making process that does not make reference to an outside party—it comes from within the collectivity (Weitzner Citation2002, 2011).
17 When asked if he knew of any successful processes, the Director responded that, “of more that 4000 protocolizations of prior consultation, 17 have concluded without an agreement. That reflects without a doubt that the process has generally been efficient, and successful.”
18 Lemaitre and Sandvik (Citation2015) identify one effect of violence in Colombia being the continuous efforts of the state to appear to be in control rather than on unstable grounds through the copious rules-making, guidance, decretos and laws it issues; which are constant reminders of its ‘legitimacy’ and control. This is certainly the case with consulta previa, and the many proposals to regulate this fundamental right.
19 Article 10 defines FPIC as: “A right of ethnic peoples that is intimately linked with the fundamental right to free, prior and informed consultation, it is the right that makes material and gives useful and pragmatic life to this right—consultation cannot be understood without consent. In addition, it is the process by which following consultation, the Indigenous community or people takes a negative or positive decision with regards to what was consulted. It must be free of pressures, before actions by those external interested parties and there must information must be broadly disseminated in order to make a good decision.”
20 Drawing on the arguments put forth in the Resguardo’s Tutela, and in amicus curiae’s submitted by the Forest Peoples Programme (Citation2016) and Colombian legal support NGOs Reiniciar and CAJAR.
21 As of January 2018, a group of academics and NGO activists has been meeting regularly to review progress in implementing T530/16, and to provide advice to the Cabildo particularly around the delimitation of Resguardo’s lands.