'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.

ART AND HERITAGE DISPUTES - CALL FOR PAPERS

From Dr Valentina Valdi, a Marie Curie postdoctoral Fellow of the Faculty of Law at Maastricht Universit, we received an invitation for a conference on ‘Art and Heritage Disputes’ to be held at Maastricht University on 24-27 March 2013. The invitation is to everyone who is interested in participating, either presenting a paper or writing an article OR even both!

Abstract (up to 500 words) for consideration should be submitted by 1st December.

The publication reads as follows: “This Special Issue aims to identify, map and critically assess the number of art and heritage disputes which have arisen in the past decades. The return of cultural artifacts to their legitimate owners, the recovery of underwater cultural heritage, the governance of sites of outstanding and universal value, the protection and promotion of artistic expressions, and the protection of cultural sites in time of war are just some of the issues which have given rise to art and heritage related disputes.”

Themes that are considered include: 1) Cultural rights 2) Tangible cultural heritage 3) Intangible cultural heritage 4) Underwater cultural heritage 5) Art law 6) Dispute settlement mechanisms

For more info contact Dr Valentina Vadi at v.vadi@maastrichtuniversity.nl.

The passing of Russell Means

The passing of indigneous activist and leader Russell Means on October 22, 2012 is noted with a great deal of sorrow. Russell Means has played a key role in the shape of indigneous rights today. He was one of the generation of activists that helped to wake the world up to the need for recognition of indigneous rights, and that moved indigneous rights to a platform in the international community. The movement of indigneous rights to the international arena brought a very high profile to state actions that had long been carried out without much comment with a focus on assimilating indigenous peoples.


This video contains a very moving tribute to Russell Means and his contribution to indigenous peoples around the world.

Addressing the Legacy of Columbus Day

Some time in mid-October various permeations of “celebrations” of “Columbus Day” occur. These are meant to commemorate the landing of Columbus in 1492 on a small island near the American continents. This is not seen as a day of celebration, however, by many indigenous peoples, and others who believe that observances of the day as a celebratory one of European colonial aspirations are appropriate. Such a view is seen as obscuring the brutal acts aimed at indigenous peoples which often had a single intent of removing or destroying indigenous groups from desired lands.


Many places now offer a different view of this day. South Dakota has replaced it with “Native American Day.” Berkeley, California observes Indigenous Peoples Day.

Elsewhere efforts are made to change Columbus Day observances to ones which recognise indigenous peoples. Students are promoting this change at the University of Wisconsin-Madison. Some events focus on trying to educate people about another view of the events that began in 1492, replacing a politically correct gloss of a holiday with facts and figures aimed at revealing a perhaps uncomfortable reality hidden behind myths.


Other commentary points out that although the events in 1492 may seem to be in the dim and misty past, their effects continue into the present day.

Perhaps the truest lesson from the recognition of “Columbus Day” is to realise that while the past cannot be undone, certainly its effects in the present and future can and must be not only recognised but addressed. A focus on what followed from an October day in 1492 reveals there is much need to address its legacy.

Mining and human rights in Colombia and Latin America

ABColombia and the Human Rights Consortium invites to a conference regarding the impact that mining do have in different sectors in Latin America, more specifically in Colombia. The invitation was forwarded by Prof Graham Dutfield, University of Leeds and we thank him for it.

The event provides us with an opprotunity to hear experts from disciplines such as: public bodies; legal scholars and practitioners; as well as the mining industry [I guess a coin not only has two sides]. Moreover and closelly related to this blog is the fact that the conference will give space to indigenous communities who will be participating in it. The latter will share the impact that mining has in their communities.

The conferece takes place on Monday 12 November 2012, 9am-6pm at Beveridge Hall, Senate House,Malet Street, London, WC1E 7HU. Entry is £20/£10 (concessions).

For more information contact Laura Ouseley, Information and Communications Officer, ABColombia at abcolombia@abcolombia.org.uk

Deferring Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in Australia: When Partisan Politics Really Gets in the Way

This blog has discussed in the past the issue of constitutional recognition of Aboriginal and Torres Strait Islander Peoples in Australia, and how a referendum was being called for after an expert panel convened by the government recommended so. Surprisingly, the referendum met with support from all sides of the political spectrum, including the two major political parties. A campaign went underway, led by You Me Unity (here), an organization created by the government for the purposes of consultation with indigenous groups and also raising awareness to the referendum, so as to guarantee its passage. But work has been slow, and a significant part of the Australia population (61%) is still unaware the referendum is even on the political agenda. Most of this segment of the population is concentrated in rural areas, which are the ones where Aboriginal peoples are more likely to inhabit.

Professor George Williams of the University of New South Wales published an op-ed piece in the Sydney Morning Herald (can be read here) precisely exploring some of these issues, and highlighting the need for popular involvement with the referendum. He even suggests a nationwide popular competition for the drafting of the new preamble, similar to the contest for the design of the Australian flag led in 1901.

As a result of this unforeseen difficulty of raising awareness, and the upcoming federal elections in Australia next year, the current (Labor) government has proposed that the referendum be postponed, and that an “Act of Recognition” be passed instead, making the recognition happen through a federal statute initially. This Act of Recognition would then contain a sunset clause, determining that a referendum be held within three years of the act’s passage.

The Act of Recognition strikes me as an elegant solution because it would pass much more quickly (it only requires voting in the two federal legislative houses, as opposed to referenda in all eight states and territories), and also because it would bind the next government (regardless of who wins the election) to really go through with the referendum. It also importantly buys more time to build consensus around the country.

But then the opposition (Liberal) leader went on to criticize the government’s move, saying it is inadmissible that the current government may seek to bind the following government to go through a referendum process. I see two possible (and not mutually exclusive) explanations for this move. The first one is a principled approach from the Liberal opposition to having the Labor government command them even after it (possibly) stops being the government (polls indicate a slight edge for the Liberals to win the next election). This possibility also speaks to the cheap political game in Australia, where the opposition spends its time decrying every single act by the government out of principle, regardless of the acts merits. After all, if the opposition supported the referendum, and wants constitutional recognition to go through, why would it oppose what is considered to be the best strategy to do so?

This leads to the second possibility: the opposition is in fact not interested in constitutional recognition, and is pushing for the referendum to happen before the elections so the referendum will fail, as You Me Unity suspects it will if the referendum is done now.

Regardless of what the reason is for the opposition’s reaction to the Act of Recognition, the fact of the matter is that the recognition of Aboriginal and Torres Strait Islanders peoples in Australia is long, long overdue, and that petty politics should give way to the greater good of peoples who have already endured colonization and are now deeply marginalized and disenfranchised. Constitutional recognition is an essential first step in making amends and allowing these peoples to flourish in Australia, their country.

Post written by Lucas Lixinski.

The Sarayaku Community Case in Ecuador: Community Involvement in Resource Exploitation

In April 2012, the Inter-American Court of Human Rights issued a judgment in the case of the Sarayaku Community v. Ecuador. In this case, the State of Ecuador was charged with violating the rights of members of the Sarayaku people for allowing indiscriminate oil exploitation in their territory, at the expense of their ancestral lands, including spaces of memory, mourning and ritual.

This was the first time the Inter-American Court sent a delegation to an indigenous community for fact-finding and to conduct hearings. A video (in Spanish) produced by Olger Ignacio Gonzalez (here), a lawyer at the Court’s Secretariat, documents the work of the delegation and the testimonies given to the Court. During those hearings, Ecuador acknowledged their responsibility for violating the rights of the Sarayaku community, including their right to Free, Prior and Informed Consent.

The video is particularly powerful in showing how the Sarayaku live, and how they were affected by the oil exploitation on their lands. But it is also a stark reminder of what many have referred to as “strategic essentialism” (which has been the object of discussion in this blog in the past). One can see how the Sarayaku members giving testimony struggle to package and frame their grievances in terms understandable to their audience, and easily translatable into human rights claims. However salutary the effort of the Inter-American Court (and Ecuador’s acknowledgment of responsibility), it is also somewhat worrisome that, in an era where pluralism is flagged as the word of the day, and constitutions across South America claim to be multi- and / or intercultural, that this problem in translation is still so acute.

Post written by Lucas Lixinski.