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Free, Prior and Informed Consent in Latin America: Key Struggles Defining the Landscape
by Ximena Warnaars
Recently, Benjamin blogged about the success of indigenous peoples in Bolivia in stopping the construction of a highway through their territory which threatened the environment and the livelihood of indigenous communities. The marchers had protested against the lack of prior consultation, and the fact that the Bolivian government never sought their consent before beginning the project. The events in Bolivia come at a time when the issue of “free, prior and informed consent” (FPIC) is on the political agenda of several countries in the region, and at a time when indigenous peoples have had to go to great lengths to ensure that their voices are heard in defending their territory.
In neighboring Peru, the Law for the Right to Consultation was unanimously passed by Congress in September and is vigorously being debated as the government prepares to codify the law. While international law in the form of Convention No. 169 of the International Labour Organization (ILO) requires previous consultation and guarantees FPIC for indigenous populations, governments in countries that have ratified the ILO convention (like Bolivia and Peru) have a long way to go towards codifying those requirements within their national law.
In Ecuador, the indigenous and mestizo peoples of the rural parishes of Victoria del Portete and Tarqui called for a vote (consulta) at the end of September on implementation of the large scale mining Quimsacocha project, owned by Canada's IAMGOLD. The result was that 92% voted to reject the project. Ecuadorian President Rafael Correa called the consulta illegitimate.
Brazil’s controversial Belo Monte dam is yet another example of the conflicts that arise when governments continue to neglect their indigenous populations and do not apply or even recognize indigenous peoples right to prior consultation. At the end of October, the government of Brazil refused to attend a closed hearing convened by the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS), taking a stance that threatens to set a precedent for human rights and sustainable development throughout the Americas. As a result, hundreds of indigenous leaders, fishermen and riverine people from the Xingu River basin gathered on October 27 to occupy the Belo Monte Dam construction site in a peaceful protest to stop its construction in Altamira, located in the state of Pará in the heart of the Brazilian Amazon. The protestors were evicted from the site the following day, by Brazilian police and the Forca Nacional.
On October 28, the IACHR heard a complaint against Chile, lodged by the Diaguita Huascoaltinos indigenous community in regard to Barrick Gold’s Pascua Lama mining project on the Chile-Argentina border. This case claims that the Chilean government violated the community’s FPIC rights, and did not consider comments submitted by the Diaguita Huascoaltinos in the environmental assessment process that ended with the approval of the mine. The claim also states that Barrick’s claim to land on and near the Pascua Lama project relies on a series of fraudulent claims and titles.
Just one week earlier, on October 17th, James Anaya, the UN Special Rapporteur on the Rights of Indigenous Peoples, gave a statement to the UN General Assembly saying that he receives “on a daily basis, allegations of violations of the rights of indigenous peoples in specific cases.” Anaya added: “I have observed throughout my work that the issue of extractive industries is a major and immediate concern of indigenous peoples all over the world.”
As Anaya’s accompanying report stresses, indigenous peoples’ right to consultation needs to be recognized and respected by governments as well as companies. In the TIPNIS case, even with a government that is generally seen as sympathetic to indigenous concerns – the majority of Bolivia’s population is indigenous and President Moralas is of Aymara descent – indigenous peoples needed to mobilize for months, enduring hardships and government repression to have their voices heard. Throughout Latin America, however, that appears to be precisely what is necessary at this political moment.