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.

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.”

Update on Online Petition Opposing the Tarsands Keystone Pipeline

According to this article in the end over 800,000 signatures opposing the Keystone XL Pipeline were obtain on an online petition. This was well over the target of 500,000 signatures that the online petition organisers had hoped to obtain.

But debate on the tar sands issue does not stop there. According to this article, the European Union will be debating a measure which would "class fuel from tar sands as highly polluting."

And the Indigenous Environmental Network was one of several signatories to a letter setting out grounds for opposing the pipeline. Other signatories include "CEOs of Major Environmental Regulations."

The depth and breadth of opposition to the pipeline has been demonstrated, but the recent moves to amend proposed federal legislation to include a non-related amendment to permit the pipeline to go ahead shows that the political battles to over-turn President Obama's denial of permission for a permit are far from over.

Senate to Vote on Keystone XL Pipeline

The Keystone XL pipeline issue is back--quicker than anyone might have predicted. The Indigenous Environmental Network has raised an alert that a vote in the Senate might occur as soon as 14 February, and is urging people to take note of this, and sign an online petition opposing the pipeline. More information and access to the online petition is available at the Indigenous Environmental Network website.

More on the Tar Sands Project and Implications for Indigenous Rights and Well-Being

The controversy over the tar sands extraction and planned pipeline is featured in an article in the current edition of the International Journal on Human Rights. The article, by Jennifer Huseman and Damien Short, “A slow industrial genocide’: tar sands and the indigenous peoples of northern Alberta” examines the effects of environmental pollution on the indigenous peoples near the tar sands project. This article is important in pointing out the severe effects the tar sands project has on indigenous communities and their health.

This concern was of course outlined in the Mother Earth Accord (and which is evidence of the well-organised indigeneous activism on this and other issues) which was briefly discussed in an earlier post on this blog. The Mother Earth Accord document itself calls attention to the health problems that nearby indigenous communities have which have been “potentially linked to petroleum products”: “The Assembly of First Nations of Canada called on the United States government to take into account the environmental impacts of tar sands production on First Nations in its energy policy, citing the high rates of cancer in the downstream Fort Chipewyan community, which prominent scientists say are potentially linked to petroleum products;”

Concern about the tar sands project is not new. This link here details activity that has been ongoing to raise concerns and protest the tar sands project effects on indigenous peoples in Canada. See also this link here which raises issues about the violation of Treaty 8 in the tar sands project.

Treaty 8 is a treaty that was entered into between indigenous peoples in Canada and Queen Victoria of England. It set aside certain portions of land for the use and occupation of indigenous peoples and is one of a series of numbered treaties involving the indigenous peoples of Canada. (Click here for more information on Treaty 8)

The tar sands issue is one that has many complex and issues with both immediate and far-reaching consequences. There are short and long term environmental and health effects. There are further issues about what recognition will be given to the principle of free, prior and informed consent that is raised in the Mother Earth Accord, and is enshrined in the UN Declaration on the Rights of Indigenous Peoples. It might be tempting to think that the land-taking and disregard for not only the cultural integrity but the simple health and well-being of indigenous peoples is a thing of the past. But the tar sands issue shows that these are very much issues of the present day.

The responses of Canada and the United States, who both originally opposed the adoption of the UNDRIP, in particular to the claims raised about free, prior and informed consent, may be very telling as to how the rights in the UNDRIP will be received or resisted in these two countries.

Written by Sarah Sargent.