Tuesday, March 19, 2019
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“The living conditions of a people cannot be modified without their consent”
Elsa Chanduví Jaña
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An interview with Raquel Yrigoyen Fajardo, PhD in Law

Peruvian lawyer Raquel Yrigoyen Fajardo, vice president of the International Institute on Law and Society, has extensive experience on issues like access to justice and indigenous rights, legal pluralism, and indigenous law and justice. She has worked as a consultant for the International Labor Organization, or ILO, in the program to promote and apply Convention 169 on indigenous and tribal peoples.

In the following interview with
Comunicaciones Aliadas director Elsa Chanduví Jaña, Yrigoyen explains when a state is required to use the consultation process with indigenous peoples, and when a people’s prior consent is necessary before making a decision that affects them.

The concept of indigenous peoples varies from one country to another. What is the basic definition according to the main international regulations that promote respect for the rights of indigenous peoples?
There is not an international norm that defines who is indigenous, but there are criteria for identifying to which groups indigenous rights apply.

Article 1 of the ILO’s Convention 169 on indigenous and tribal peoples states that awareness of their identity should be considered a fundamental criterion for determining to which groups this agreement’s provisions apply. It lays out two defining criteria for indigenous peoples: one is that they be descendants of peoples that existed before the Conquista, colonization or the establishment of current borders; the other is that they conserve part or all of their social, cultural, economic, and political institutions, whatever their legal status.

Whether they are recognized or not, or whether the law considers them native or campesino communities, a ronda (campesino community patrol), or an agrarian group, it doesn’t matter. It also doesn’t matter whether they are labeled at all. The important thing is that they themselves are conscious of the fact that they are descendants from a population that existed before the [present] state did and that they have their own institution.

Those criteria are sufficient for the state to be obligated to apply the rights of Convention 169 as well as [the rights] that international law grants to indigenous peoples.

When should the right to prior consultation be applied?
The right to prior consultation is set forth in Articles 6 and 7, and in other parts of Convention 169, and refers to any legislative or administrative action the state could take that would affect them directly. It can be any type of law, rule, regulation, decree, signed treaty, the consultation law itself, or regulations for consultation. It can be an educational or health project, a concession, a tender, a mining petition, or any administrative measure that the state takes on any matter.

Is it possible to adequately apply prior consultation, if the territories have not yet been demarcated and if they have not yet been validated?
In international law, it is not necessary that they have deeds to their lands in order for their rights to property and possession to be recognized.   In Convention 169, from Article 13 on are all of the rights related to territories; it is established that the rights to the land they live on or use should be respected, whether they are titleholders or not.

In the case of the Saramaka People vs. Suriname, in a 2007 ruling the Inter-American Court of Human Rights said that ancestral occupation is enough for property rights to be recognized; therefore, land deeds are not necessary to have consultations with respect to indigenous peoples’ lands, or to take into account the indigenous peoples’ right to ancestral lands.

Suriname did not even have laws to demarcate communal lands, its laws only allowed for individual properties; but the Saramaka people collectively possessed territorial expanses. So the Saramaka people decided to sue Suriname [domestically], but there was no way to do it because there was no law that provided for the recognition of collective ownership, nor were there procedural mechanisms to do it. They ended up at the [Inter-American] Commission [on Human Rights] and then at the Inter-American Court. The Court ordered Suriname to develop legislation to be able to recognize collective lands and mechanisms for collective defense of the land.

Each people has its way of making decisions, and for a consultation to be suitable it needs to respect those ways. Wouldn’t it be necessary then that indigenous peoples’ decision-making processes be legally recognized?
What needs to be recognized is the right of the people and the state’s obligation to conduct prior consultation on any legislative or administrative measure. The law will not and cannot regulate every form of decision-making.

For example, the Mayans have — as part of their worldview— the concept of a calendar; they are governed by the solar and lunar calendars, and make decisions on certain days of the lunar calendar. So there couldn’t be a law that says the Mayans will make decisions on such and such calendar days. What the state is obligated to do, according to the Convention, is to use appropriate procedures.

Let´s say the state proposes something to an indigenous community, gives them all of the relevant information in their languages in a way they can understand; maybe the community won´t decide then and there, they leave, they have their assemblies and ceremonies, they use their decision-making mechanisms, they come back to the state, negotiate, and return to see if it suits them or not.

What needs to be regulated is the establishment of a procedure, not one day, one audience, one consultative workshop, and it´s done. For example, today the regulation [for energy mining activities consultation] in Peru supports information sessions, which is absurd, because that does not guarantee the right to consultation. We have to think about the right to consultation as a process, one that allows that community to develop its internal mechanisms with its own members and its decision-making mechanisms in way that is both informed and appropriate for each case. One thing is consulting if we are going to build a school, another is if we are going to accept a mining project; each consultation will depend on the issue at hand.

In which cases is free and informed prior consent from indigenous peoples necessary for an activity or measure that affects them?
International law establishes specific circumstances under which the state requires prior consent to make a decision.

First, consent is required for the state to take a decision in cases of population relocation. For example, in the case of dams, they generally require population relocations, so it is impossible for the state to take a decision on population relocation without the consent of that community or the communities that will be affected.

Second, when there are going to be megaprojects that impact a community´s subsistence or way of life. So says the Inter-American Court in the case of the Saramaka People vs. Suriname. The case was about a community that was going to be affected by mining activity. In mining, water is generally drained from the subsoil, which of course has an impact on the way of life because people who live off of farming and livestock already will see an impact in their living conditions or way of life, and has to change their way of life. This is why the living conditions of a community cannot be modified without their consent.

Third, when there is going to be storage of toxic substances, for example, as stated in the United Nations Declaration on the Rights of Indigenous Peoples.  For example, mining activities leave fields of tailings where toxic substances are stored; toxic substances cannot be stored without the consent of an indigenous community. So, in practicality, we´d have to say that wherever there is going to be mining activity the state must have the consent of a community before giving the mining concession.

The Declaration also includes other examples, such as military activities, for example if a military base or a shooting range will be built. Under normal circumstances (not in wartime), the state cannot perform military activities without consent.

Article 4 of Convention 169 states that when special measures are necessary to safeguard persons, institutions, property, jobs, culture or the environment, such special measures shall not be contrary to the freely expressed wishes of the communities. Any safeguarding measure — that is to say, if the communities must be relocated because there was an earthquake — the conditions under which they are relocated cannot go against their will, it must always be with their consent.

In addition to the five specific cases already explicitly determined, in other circumstances where fundamental rights are impacted, the state is obligated to (get) consent. We could say there is a general principle — that the state must protect a people’s life, integrity, and existence; thus viewed the other way around, the state cannot take any decision that could eventually jeopardize that integrity, that life, that people. The state cannot commit genocide.

How would you respond to people who say that when there are resources, like oil, gas, wood, and fish, among others, on an indigenous people’s lands, the exploitation of the recourses should be allowed because it can provide work to many people, and doing otherwise would put the brakes on the country’s development?
In principle we have to see if we’re facing cases of consent, because no state has the right to exterminate a people just because there is apparently a majority interest that would be more important, quote unquote, than those of the minority.

On the other hand, there is an obligation of the state contained in Article 7, paragraph 2 of Convention 169, which says that the improvement in living conditions, work, health, and education of the affected communities, with their participation and cooperation, should be a priority in plans for overall economic development in the areas they inhabit; that is, in any case where there is a development plan the first improvements that the state needs to look at are with the  indigenous people who live there.

So it can’t be said: “since this petroleum or gas activity is going to better the work of others, then I have to choose this over the betterment of the lives in this community.” It’s the other way around: in any comprehensive regional development plan the state is obligated to see that this will improve the lives of that people. If petroleum activity apparently is going to give work, or taxes will favor more people quantitatively but will worsen the living conditions of that people, the state would not be entitled to undertake this activity.

Now, it’s worth it to note that the state is in charge of administrating the natural resources that belong to the country, like in the case of minerals or subsurface oil. But if we’re talking about resources like wood or fish, according to Convention 169 the state has no power to make use [of them].  Natural resources cannot be detached from the land. Natural resources like forests, fish, fauna and flora, are part of an indigenous community’s property; therefore the state cannot cede resources on an indigenous community’s territory or give them as a concession.

What is needed for the right to consultation to be respected in Latin America?
First of all, political will. If a government, a state, does not take that political decision, it will violate it all of the time. That implies that governments, the Executive branch, instruct their officials and provide handbooks and regulations for all its public policies.

In order for the state to observe the right to consultation, we need to look at the responsibilities of each agency, each branch of government. The Executive branch must implement the right to consultation; every time the Legislature is going to take action it has to consult the indigenous peoples, but in turn must develop the right to consultation, to participation, to consent, etc. So, a juridical culture of consultation and participation must be created.

For example, the Judiciary in Peru now is interested in developing a law for the right of coordination between indigenous jurisdictions and general jurisdiction; the Judiciary and the state must implement a process of consultation and participation of indigenous peoples for the development of this legislative initiative. That is the duty of all state actors. So while there is no law on consultation, the Executive is nevertheless required to implement consultation when it is going to take an administrative measure that will affect an indigenous community.

I would like to clarify something. Although we are focusing on the right to consultation, this is not the only relevant right, because Convention 169 also discusses the right to participation not only when there is a measure at hand, but throughout the policy cycle.

Article 7 of the Convention says that the communities have the right to participate in the formulation, application, and evaluation of national and regional development plans and programs that may directly affect them. That means that when it comes time to make petroleum policy, mining policy, hydroelectric policy, or of communications, of where highways will pass through, the communities have the right to participate from the formulation stage (where the oil blocks will be, what the zoning will be, where farming will be done, where the livestock will be raised). They also participate when the development plan is applied, and when it is evaluated. So it is a more comprehensive right that the right to consultation, because this right is for plans, development programs, and development policy, and the communities participate in every stage of formulation, application and evaluation, so it makes sense that they could then be consulted specifically about a concrete measure.

The communities participate in petroleum policy, but it is all of the communities and in a general way, but when it comes time to dig a well, a block, in a specific place, that’s where the communities that will be specifically affected will participate; therefore the consultation is for that specific measure, but the participation is for the entire policy.

Throughout the state´s administrative apparatus wherever there will be decisions made about policies that affect them, there should be an indigenous presence or mechanisms to check with them, when a plan for bilingual education, for example, is going to be adopted.  The same goes for elective institutions, in Congress — the indigenous communities should be represented. In some countries they have established this with an indigenous quota, for example. Colombia, Venezuela, and Bolivia all have an indigenous quota that is achieved directly, rather than through political parties. They are elected from indigenous organizations or indigenous authorities and have to speak their indigenous language. They come (into office) through a vote specific to the indigenous quota. In Venezuela it is guaranteed by the 1999 Constitution. It’s the same thing in Colombia, where it is guaranteed by the 1991 Constitution and there is a law to regulate it.

Finally, among the challenges to the implementation of these rights is firstly that the communities know their rights, secondly that they not only use direct measures (mobilization, protests) but also use mechanisms like amparo [a form of constitutional protection], habeas corpus, and constitutional procedures to protect their rights.  But there also is a need for change in the mindsets of judges, prosecutors, and public servants — that they be conscious that they must enforce and respect indigenous rights.


Raquel Yrigoyen Fajardo (Photo: Nieves Vargas Coloma)
Latinamerica Press / Noticias Aliadas
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