Chile: consultation is needed.

This year Chile has seen several mining projects blocked after local opposition. A recent case, EL Morro mine in northern Chile shows the importance of ‘prior and informed consent’ since the community affected i.e. Diaguita was not consulted.

The BBC reports that back in April, a national court actually rejected the case to which the community appealed. The Diaguita peoples argued that Goldcorp, did not conducted proper consultations with local communities (as required by the ILO Convention 169 and UNDRIP – both signed and ratified by Chile).

Maglene Campilley, a Diaguita’s leader, acknowledged that the community is ‘happy’ to see that justice is on the side of those that ‘defend Mother Earth’.

What is next? A consultation needs “to take place before an environmental permit can be awarded allowing mining to take place.”

Christine Marks, Goldcorp spokesperson, said that “The company remained committed to open and transparent dialogue with its stakeholders and to responsible practices in accordance with the highest applicable health, safety and environmental standards."

Well...we have to wait and see. The Diaguita community noted that the project ‘could pollute a local river’. On the other hand, the said mine is value at almost $4bn. Will justice be on the side of mother Earth?

Source BBC.

The Undetected Lion King

No everybody knows Solomon Linda; but you may know the song ‘the lion sleeps tonight’ right? Well, that is probably the moment when you think of Disney’s ‘The Lion King’ and ask yourself what Salomon Linda has to do with it.

Solomon Linda is a Zulu musician, who composed this song and he is a victim of intellectual property. While The Walt Disney Company earned millions of Dollar by using his song, he died poor in a Southafrican township. It is a tragedy and scandal that companies (like Disney) exploit traditional knowledge (TK) without obeying international legal standards.

However, the situation is tricky. One the one hand, immense treasures of TK exist, values that go beyond ethical materialism or consumerism and on the other hand, cruel market policy expedited by globalisation forces the competition of companies. Realisable regulations are needed to protect TK and enforce the indigenous right to determine what happens to traditional values, be it music, designs or handicrafts.

Article 11 paragraph 2 of the United Nations Declaration on the Rights of Indigenous Peoples (UBDRIPI) marks the starting point for a bold approach. It implies the right to revitalize and develop cultural traditions and customs of indigenous peoples. The use of a traditional song in a successful animated film is quite a revival and a gain. The only way to guarantee that the utilization of a traditional song is not only a gain for the producing company but also for the composer, is to make an indigenous approval condition for the commercialisation. Within the Declaration and the ILO Convention 169, the achievement of the Free, Prior and Informed Consent (FPIC) could provide assistance. If states ensure that commercialisation of TK is only permitted if indigenous consent is granted, two beneficial aims could be achieved. A natural protection of the TK and the foundation of compensation. Therefore indigenous consent has to be interpreted as the power to decline or accept marketing strategies. By making the obtaining of indigenous consent obligatory for companies and states, the biggest obstacle would have been conquered.

FPIC, a legal affirmation of adequate socio-legal behaviour and decency, needs to become an every day practice in protecting TK. If this, or the truly implementation of the Declaration into national legal systems, were possible, you would have heard of Solomon Linda before.

Posted written by Lisa Albanis (LLM candidate, University of Buckingham).
Source The Guardian.



 
 

Colombia: consultation is a must!

From Colombia we heard news that a Judge in the region of Choco (situated in the west of Colombia on the Pacific coast) has suspended for six months the licenses, concessions and studies granted to mining in more than 50,000 hectares.

Going back to October 2012 the Land Unit from the Ministry of Agriculture filed a lawsuit against the National Mining Agency. At that time the Mining Agency has issued 13 titles covering 40,000 hectares, 13,000 of which were part of indigenous lands. The judge ordered security forces to recover, in the shortest time possible, the territory and ordered to the companies involved to withdraw personnel and machinery from the territory.

It is said, according to the Agencia Intercultutral de Noticias de Bolivia (AINI), the judge based the case on the fact that the Indigenous communities living in the area were never asked; in other words they were not consulted as required by the ILO Convention 169 and UNDRIP – both signed and ratified by Colombia.

'better early than late'

In Chile we heard of a case brought by indigenous communities against a geothermal energy investigation to take place on indigenous territories. The third chamber of the Court of Appeal of Santiago received three applications filed by three different communities: Huenchullán; Consejo de Pueblos Atacameños; and comunidad Manquilef Hueche regarding an exploration permit granted by Ministry of Energy in the regions of Araucanía and Antofagasta.

 The Court of Appeal unanimously rejected the lawsuits on the grounds of extemporaneousness in the filing of this constitutional action. Moreover, the Court explained that “there has been no illegal or arbitrary action by the Minister of Energy” because the said permit meets a legal and duly founded procedure. In regards of the action been extemporaneous the Court of Appeal noted that at this stage of the geothermal examination, the permit will only allows the party involve to recognize, inquire or ascertain the existence of energy if any, in the subsoil. Therefore, it is not possible to know if the project will affect communities or individuals. However the Court extended to say that a ‘consultation and participation’ of indigenous communities that may be affected by the project is necessary at a later stage - in compliance with Articles 6, 7 and 8 of the ILO Convention No 169.

Haven’t you heard of the expression ‘better early than late’? This is what did cross my mind while I was reading the case. You may also think of ‘the early bird catches the worm’ ie avoid losing time and recognize now that anything that happens in indigenous lands they need/must be consulted...full stop.

Chile is not strange to this type of cases -- conflicts over indigenous lands and the exploration and exploitation of their natural resources and moreover, referring to consultation and participation of indigenous peoples in decisions relating to this issue (see previous posts here and here). What is of curiosity is the fact that the Ministry of Energy is a body of the State and it should know better. The government should be an example of responsibilities and obligations pursuant ILO Convention No 169. Also Chile is a member of the United Nations Declaration on the rights of Indigenous People (UNDRIP) and although it is a non- binding resolution, it is a reaffirming piece that Chile has opted to follow.

Sources: Poder Judicial and Indigenous News.

Indigenous land FOR SALE!

Back in 1993 the Chilean law 19.253 (here in Spanish) on ‘protection, promotion and development’ of indigenous peoples created the National Indigenous Development Corporation (CONADI) and which also established key policies providing resources and protection for native ethnic groups. As in every other legislation some flaws were noted; one of them being Article 13 which prohibits disposing of, seizing, or acquiring by prescription Indigenous lands, unless it is between Indigenous communities and/or indigenous people. This lands whose owners are Indigenous Communities cannot be leased, given on loan; cannot be transferred to third parties to use, benefit from or administer.

For this reason a new proposal, headed by Mr René Manuel García and backed on by several MPs, has been made in the ‘Camara de Diputados’ (Chamber of Deputies) to “add a subsection to Law 19.253, in order to allow the Indians to sell their land” but only if used exclusively for the construction of social housing and associated infrastructure.

Mr García noticed the constraints to indigenous ownership which prevent the landowners to generate resources by way of lease or sale of property, forcing owners land to stay with the same piece of land, unable to have another option that may mean an economic benefit.

I wonder if the Indigenous Communities have participated in this project. It comes to mind the ILO Convention 169, to be more specific:

Article 6

§  1. In applying the provisions of this Convention, governments shall:

  (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;

Article 7

§  1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.

But more importantly is:

Article 17

1. Procedures established by the peoples concerned for the transmission of land rights among members of these peoples shall be respected.

2. The peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community.

I guess that when Law 19.253 was proposed these matters were considered (?). 

Finally, if this proposal is accepted how the following would be stop from happening:

§  3. Persons not belonging to these peoples shall be prevented from taking advantage of their customs or of lack of understanding of the laws on the part of their members to secure the ownership, possession or use of land belonging to them.

The right of... to be NOT consulted (?)

Back in 2011 the Chilean government passed a regulation (Decreto Supremo N° 50),that lays out a process by which state-protected areas can be opened up for tourism and hence, tourism concessions are to be granted – this regulation was published in April 2012. The Council of the Atacameño People (an organization that has leaders from many different Atacameño communities) argues that such regulation affects their interests and requests that they, as well as any other indigenous communities, shall be consulted -- grounds founded under article 6 of the ILO Convention 169.

"1. In applying the provisions of this Convention, governments shall:

(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly"

However, the Santiago Court of Appeals ( hearing the case) unanimously rejected such grounds on the basis that the said regulation “has caused no harm nor affected indigenous peoples to an extent that it requires consultation.” Yet, the Court went on to establish at numeral 10 that “any concessions that affected indigenous communities were to be held to the strict standards of consultation laid out in Articles 6,7 and 8 of ILO Convention 169, especially the reference to the participation of these communities in making decisions that affect the territories where they live.”

Source Indigenous News here.

The decision can be read here.

Indigenous Peoples from 4 continents call on UK to ratify ILO Convention 169

It might be tempting to sometimes think of indigenous rights as something that is relevant "elsewhere"--perhaps particularly with the concerns in Europe over economic stability of various countries. But a story carried by Survival International highlights that indigenous rights are truly a global matter.

The news story carried by Survival Internation highlights a request to the United Kingdom government to ratify International Labour Convention 169.

On May 17, 2012, several different indigenous groups were represented by signatories on a letter that was sent to William Hague, MP, the Secretary of State for Foreign and Commonwealth Affairs in the United Kingdom. The letter states:

"We are aware that there are no tribal or indigenous groups in the United Kingdom, however, we respectfully remind you that British companies operate on indigenous land, British aid money funds projects on tribal territories and Britain funds World Bank and IMF development schemes planned for tribal land. Most importantly, we are certain that ratification [of ILO Convention 169] by the United Kingdom would provide extremely strong motivation for other states to ratify the Convention. Let the United Kingdom be an example to other governments, so that they may ratify."

Several key issues are raised by this letter. Firstly, the continued importance of ILO Convention 169 on indigenous matters. It is sometimes in the shadow of the UN Declaration on the Rights of Indigenous Peoples. The ILO Convention 169 is a binding "hard law" international instrument and is the only such international instrument on indigenous rights. Secondly, of course, is that indigenous issues are not confined to the boundaries of certain countries that have indigenous inhabitants. Indigenous rights and issues are global matters. Thirdly, is the symbolic importance of instrument ratification. In the international community, where arguably politics predominate decisions and relations, the value of symbolic support for indigenous rights by the United Kingdom is great.

To consult or not to consult (?)

In light of the news that the Chilean Supreme Court nulls once again (this year) an environmental assessment due to irregularities including consult with the Indigenous Peoples, I therefore, question: shall we consider to consult or not to consult?

The answer is pretty simple, it is not a question, it is a fact! Indigenous peoples have a right to consultation when development projects are taking place on their lands – as stated in the International Labor Organization’s Convention 169 (ILO 169).


Background of the case
The case involves the 'Comunidad Agrícola los Huasco Altinos' and the “El Morro” mining project, owned by Sociedad Contractual Minera El Morro, represented by Golport, based in Vancouver, Canada. In order to exploit the mine and continue with the project, Golport needed an environmental assessment, which was granted by the Regional Environmental Evaluation Commission back in March 2011. However, according to ILC news, the case presented a ‘twist’ since the community called the Diaguita people, was not technically recognized as an ‘indigenous people’ until 2006. Therefore, the land that the project affects, and which are titled to the community, are not technically recognized as 'indigenous lands' because it predates the said year.

Nevertheless the community succeed bringing the case claiming that “when environmental impact studies were conducted for the El Morro project, and when the government assessed those studies, both the company and the Chilean government failed to apply legal protections that relate specifically to indigenous peoples.” It refers to Chile’s 1993 Indigenous Law and ILO Convention 169 both of which include:

• protection for indigenous lands, and natural resources;
• and consultations.

None of these were applied when the project evaluation took place.

In due course, the Supreme Court decided in favour of the Diaguita Huascoaltinos Indigenous and Agricultural Community and ordered that the environmental assessment be repeated taking into consideration indigenous legislation and rights.


Some unprofessional conduct
Mr Campusano, Community’s president, together with Nancy Yáñez, attorney who is representing the Community refer to certain practices that they have encountered:
1.- Denial of Indian status being used just to make possible this type of project .
2.- The company in charge of the project has approached individuals in the community, offering cars and money (a lump sum per year per family)in order to override the resistance to this mining project.

More info here and here.

Stop that Damn Dam! Indigenous Participation, Culture and Development in Central Brazil

Last month, a Judge at the Brazilian Federal Court of the State of Mato Grosso declared a license for the construction of a hydroelectric power plant to be null and void, because of the lack of consultation with affected indigenous populations. The Teles Pires Hydroelectric Plant, on the river with the same name (which makes the border between the Sates of Mato Grosso and Pará) is meant to produce 1820 MW (by comparison, the Three Gorges Dam in China produces 21000 MW), and its reservoir would cover an area of about 152 km2.

Teles Pires river

According to Judge Célia Regina Ody Bernardes, the sacred meanings they attribute to the area, and the uses of the area for indigenous livelihood, should have been taken into account by the governmental authorities who green-lighted the project, especially in light of provisions of ILO Convention No. 169 which require indigenous consultation, and provisions of the Brazilian Federal Constitution.

The judgment highlighted that the Brazilian Environmental Agency (IBAMA, for its name in Portuguese) authorized the construction of the dam, but did not follow up with the Brazilian Indigenous Foundation (FUNAI, for its name in Portuguese), to see whether any of the affected indigenous populations had anything to say on the matter. This case is a classic example of the panoply of regulatory agencies that affect any one indigenous community, and how anyone trying to understand the workings of indigenous law (or any area of law, for that matter) must be able to navigate an incredible maze of regulation in a series of cognate areas. Background rules are just as important as foreground rules, and, by failing to observe them, it is easy for important things to fall through the cracks. This judgment, incidentally, is still subject to appeal. So, let’s see how this story unravels...

And then there’s another thing I’m not quite sure what to make out of: the focus on the religious / sacred uses of the area that would be flooded. While I understand that this focus simply derives out of factual matters (that is, that the affected communities indeed have a religious attachment to that site, and this connection should be preserved), I also worry about how this can be spun by those who still want to push for the project (I am guessing there are plenty of unhappy shareholders of the electric company out there), and about the long-term impacts of this narrative. While it seems for the most part laudable that cultural considerations are paramount in this case, at the same time non-cultural factors are nowhere to be found, which in a way orientalises the affected communities, and presupposes that it is only because of their spiritual connection that the land must go untouched. That necessarily leads to the conclusion that, should this connection cease to exist, the dam could go ahead. So, in a certain way, the idea of translating indigenous participation claims into cultural ones limits the debate, and obscures what should really be at stake: indigenous sovereignty over the area. Adopting a somewhat radical standpoint, I do not think indigenous sovereignty over the area should be conditioned to a religious connection, it should be granted in a full, no-strings-attached manner. But, perhaps that’s just naiveté, and the compromise found by this judgment is the best one can hope for (at least for now). I guess the call still stands, though: however important this victory is, one should know that it is not enough, and that it is only one step towards full sovereign recognition to indigenous peoples.

Source FUNAI.

Written by Lucas Lixinski.

And another one...

No 1 drill we hate!

March appears to be ‘the’ month for Chile’s indigenous peoples. The issue surrounds indigenous peoples’ right to consultation when development projects are taking place on their lands – as stated in the International Labor Organization’s Convention 169 (ILO 169). That said, on the 30th of March the Chilean Supreme Court ordered - its second time in a month, consultation with Indigenous peoples (see previous blog here).

The case was brought by Aymara communities against Compañía Paguanta S.A. and in regards of drilling occurring on their territories. The Supreme Court unanimously held to stop the drilling until an environmental impact study is performed and the Aymara people are consulted. It stated that “the project started before proper consultation had taken place and ordered that the rights outlined in Convention 169 must be respected before the project can move forward.”

The ILC News published an interesting report regarding the issue of consultation. The article is written by two US attorneys who are working in International and Indigenous Rights law and whose residence is in Santiago de Chile for the moment. They noted that these cases of ‘development projects’ and the matter of consultation have been truly been “... in the context of applying environmental protection laws, which require citizen participation for certain types of invasive projects that present negative impacts.” For this reason, they observed that the Court ordered such consultation when it finds those impacts that involve environmental laws and then it combines environmental law with ILO 169 consultation rights.

The note continues to explain that they are two different things and emphasise that “the circumstances that trigger consultation are broader than the environmental legislation” since regardless of whether the prject can have a positive or negative impact, the aim of consultation “is to give indigenous peoples a voice in all decisions that affect them.”

Finally, they stated that putting together ‘citizen participation’ (as required by environmental law) and ‘indigenous consultation’ (required by ILO 169) is problematic since the latter has “very specific requirements, most of which are not present in the established citizen participation laws that exist on Chile’s books.”

"Another one bites the dust And another one gone and another one gone"

Last week the Chilean Supreme Court held a verdict in favor of a Huilliche-Mapuche community . The community was trying to stop the company Ecopower from building 56 wind turbines on the island of Chiloé under the grounds (inter allia) that they were never effectively consulted about the project. Moreover, they argued that the said project would have a negative effect on Mapuche ceremonial sites and burial grounds.

The Supreme Court agreed that consultation had not occurred and ordered the company to stop the project until consultation has been done.

Here we can notice several arguments based on the International Labor Organization’s Convention 169 (ILO 169). Firstly, the right that indigenous peoples be consulted about development projects that directly affect them (Art 6). Secondly, according to the Mapuche community the project will affect their cultures and spiritual values – a violation on Art 13.

Chile ratified ILO 169 in 2008 and recently we posted a similar decision hold by Temuco Appeals Court regarding the same situation: indigenous peoples no being consulted in projects that may affect them.

Yet, the defendants argued that COREMA (the Regional Environmental Commission) approved the environmental impact study and so allowing the wind farm project to move forward. Moreover, it is also argued that COREMA held meetings and invited citizen participation to occur before reaching its final decision. However, the Huilliche community argued that because such consultation did not occur when it was supposed to. The Supreme Court agrees with the Mapuche community establishing that “COREMA’s actions did not amount to meaningful consultation with the Huilliche community, in part because even if the community had fully participated in such meetings they still lacked any meaningful opportunity to influence how the project would ultimately move forward.”

The title today comes from the song 'another one bites the dust' written by John Deacon and sung by Freddie Mercury...that was the feeling I got. The message that the Chilean courts are sending is pretty clear: listen and learn (but mostly consult with the right people!)