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Declaration of the APG IG regarding Judgement 2003/2010-R of the Constitutional Court
In light of the decision of the Constitutional Court in the case Sedeca vs. APG IG, and following the analysis carried out by our Legal Department, the Board of the Assembly of the Guaraní People of Itika Guasu has decided to make public some of its conclusions:
1) In view of the formal notification dated April 12th, 2011 by the Court of Entre Ríos of the Constitutional Court Judgement 2003/2010-R dated October 25th, 2010, deciding a constitutional appeal by SEDECA, we express our satisfaction with this decision, which ratifies the legal position that we have maintained regarding the right to consultation and to property of our Original Community Territory (TCO).
2) The application for constitutional protection arose out of a letter that we sent to PETROSUR in February of 2008. As a result of this experience, we realised that it was necessary to proceed with caution and discernment. Thus, on March 13th, 2008, a meeting was held with the Ministry of Hydrocarbons and Energy (MHE) in which the representative of the MHE refused to sign the minutes of the meeting. Consequently, a letter was sent to the Vice-Minister Jorge Ortíz on the same date, March 13th, 2008, to which we never received a response.
A second meeting was held with MHE in April 2008, this time in the presence of members of the Office of the Superintendent of Hydrocarbons and YPFB, in which we were informed that the company Transredes SA had already been granted an exploitation licence without regard to our right to consultation. As a consequence, the APG IG sent a letter on April 21st, 2008 to the then Minister of Hydrocarbons, Carlos Villegas.
These were the first documents with clear legal content sent by the APG IG to the Government, to which we have hitherto received no response.
3) In the Regional Assembly of the APG IG held in the Lagunitas community, Zone 3 on April 28th and 29th of 2008, the central topic of the debate of the 36 communities was focussed on whether its should continue following a legal strategy or a merely political strategy, which until that point had led nowhere.
Never Barrientos proposed to follow a legal strategy developed according to the principles of indigenous customary law, international human rights law and the jurisprudence of the Inter-American Court of Human Rights . This proposal was approved by the Assembly and has been upheld until the present day.
The debate was intense and lasted a period of two days. The representatives of CERDET (who at that time participated in our assemblies) opposed the position taken by our President. They included: Justino Zambrana Cachari - currently a departmental assembly member self-appointed in violation of our uses and customs for which reason he has never been recognised by the Assembly of the APG IG; Andrés Segundo Tejerina - current secretary of a liaison office of the Entre Ríos Municipality and former Chief of the Indigenous Affairs Unit (UDAIPO) under Prefect Mario Cossío; and former candidate for indigenous Representative of "Convergencia Nacional" (party of Mario Cossío and Manfred Reyes Villa). All opposed the application of any legal strategy including the defence of our uses and customs.
4) Among the most obvious results of the approved legal strategy include the socialisation of indigenous law and the strengthening of our uses and customs, the latter being reflected in the following documents:
a) The legal recognition by way of the Resolution dated August 25th, 2009 of the Tarija Prefecture, after which an agreement was concluded with the same prefecture for the construction of a proposed road in the Itika Guasu TCO. In this case, the Prefecture recognised for the first time our property and usufruct rights on the Itika Guasu TCO, and especially the fact that there are no expropriation rights over our land, in cases of road construction of any kind. This was the first, and, to date, the only agreement of this nature, which respects the principle of customary law according to which Community Territories are not subject to expropriation.
This agreement was only partially observed as a result of a violation by SEDECA and the current deliberate obstruction of Governor Lino Condori, who considers the legal issues of "secondary importance".
b) The agreement with Repsol Bolivia SA signed on December 29th, 2010 which incorporates all of the legal principles that concern us included in the decision of the Constitutional Court.
c) The definitive establishment on March 11th of the "Itika Guasu Investment Fund", the first indigenous fund to exist in Bolivia and in Latin America, which allows us to come closer to achieving the principles of indigenous autonomy by guaranteeing a long-term funding of our development, as described in our communiqué dated March 15th, 2011.
5) In light of the above, we are pleased with the tenor and the depth of this judgement as we can now state that the highest Court has confirmed the principles that we defend and while it affects us directly, its application extends to all indigenous communities, and especially to those who own Community Territories. The decision also reflects the right to consultation.
6) The judgement incorporates a legal doctrine based on the application of international human rights instruments, declarations of specialised bodies of the United Nations and even some reports of Special Rapporteurs, transforming them into applicable doctrine and making it crystal clear that decisions of the Inter-American Court are applicable within the Bolivian domestic jurisdiction. To this end, the decision refers to the case Saramaka People vs. Suriname, an exemplary decision that we used for our own legal training and which we defended unsuccessfully before the National Government, the Governor of Tarija and the Municipality of Entre Ríos, as well as the companies that are present in our Community Territory.
7) We hope that the legal professionals, such as lawyers, prosecutors and judges in our jurisdiction take due note of the resolution of the Highest Court of the Plurinational State of Bolivia and act accordingly and in compliance, thereby modifying their recalcitrant opposition to the application of indigenous law according to our uses and customs, the principles derived from the decisions of the Inter-American Court and international human rights law.
Regarding the Right to Consultation
8) The Constitutional Court ratifies the right to consultation in the widest sense coinciding fully with the criteria defended by our organisation and especially in certain aspects that we would like to underline, whilst making it clear that we uphold the integrity of the decision:
a) "With respect to natural resources, article 403 of the CPE (Constitution of Bolivia) recognises the entire indigenous and campesino Original Community Territory, which includes the right to the land, the use and exclusive benefit of renewable natural resources, prior and informed consultation and participation in the benefits arising from the exploitation of non-renewable resources that are located on their territory."
b) "In accordance with the above, in order to implement projects falling into the three above categories, the consent of the indigenous peoples must be obtained, which means that in such cases, these peoples have the power to veto a project; in other cases when a consultation takes place in good faith using appropriate methods and information, the indigenous peoples have the right to participate in the development of a project, requiring the State to act within reason, subject to the norms, principles and values included in the Constitution of Bolivia, including the principle of legality and the prohibition of arbitrariness; respecting the rights of the original communities, and avoiding negative impacts on their habitat and modus vivendi."
c) In this way, in accordance with the norms in the constitutional body of law outlined in this decision under Legal Grounds III.4. and III.5., the indigenous peoples have the right to prior consultation, a right that - in contrast to the plaintiff's submissions - includes the approval of any project that would affect their lands, territories and other resources (article 32.2 of the UN Declaration on the Rights of Indigenous Peoples); this is due to the particular relevance that the territory holds for indigenous peoples, as explained above.
In the case at hand, the celebration of the agreement between PETROSUR SRL and SEDECA Tarija dealt with the use of facilities provided in the Cañadas camp located in the Itika Guasu region of the Guaraní People and, consequently, it was necessary to carry out prior consultation regarding said agreement of said people, in conformity with the norms included in the ILO Convention 169 on Indigenous and Tribal Peoples and the UN Declaration on the Rights of Indigenous Peoples, which form part of the constitutional body of law.
d) In addition to the two points set-out above a third point must be added, which was established by the jurisprudence of the Inter-American Court of Human Rights in the case Saramaka vs. Suriname, according to which the right to consent was recognised "(...) regarding large-scale development or investment projects that would have a major impact within the Saramaka territory, the State has a duty, not only to consult the Saramakas, but also to obtain their free, informed and prior consent, according to their customs and traditions. The Court considers that the difference between "consultation" and "consent" in this context requires further analysis."
In the same decision, it was established that "(...) The U.N. Special Rapporteur on the state of human rights and fundamental freedoms of indigenous people has similarly observed that:
[w]herever [large-scale projects] occur in areas occupied by indigenous peoples it is likely that their communities will undergo profound social and economic changes that are frequently not well understood, much less foreseen, by the authorities in charge of promoting them. […] The principal human rights effects of these projects for indigenous peoples relate to loss of traditional territories and land, eviction, migration and eventual resettlement, depletion of resources necessary for physical and cultural survival, destruction and pollution of the traditional environment, social and community disorganization, long-term negative health and nutritional impacts as well as, in some cases, harassment and violence
Consequently, the U.N. Special Rapporteur determined that "[f]ree, prior and informed consent is essential for the [protection of] human rights of indigenous epopels in relation to major development projects". (Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations, and Costs, Judgement of November 28, 2007 Series C No. 172.)
In accordance with the above, in order to implement projects falling within the above three categories, the consent of the indigenous peoples must be obtained, which means that in such cases, these peoples have the power to veto a project; in other cases when a consultation takes place in good faith using appropriate methods and information, the indigenous peoples have the right to participate in the development of a project, requiring the State to act within reason, subject to the norms, principles and values included in the Constitution of Bolivia, including the principle of legality and the prohibition of arbitrariness; respecting the rights of the original communities, and avoiding negative impacts on their habitat and modus vivendi.
9) Given that we were notified formally by the Governor of Tarija, D. Lino Condori of criteria completely contrary to the tenor of this judgement in a meeting that took place at his request at our headquarters in Entre Ríos on March 16th, 2011, we now require that the Governor comply with this judgement and implement it without delay by giving the appropriate and irrefutable instructions to his employees, representatives and obviously SEDECA to ensure that there remains no doubt whatever as to the obligation to observe the judgement in its integrity and without restriction.
10) We expressly demand that the Mayor of Entre Ríos, D. Teodoro Suruguay, comply with this judgement and especially take into account that all activities of whatever nature, be they cultural, social, administrative or relating to investment that affect the Itika Guasu TCO must be the subject of prior consultation with the APG IG in the manner affirmed by the Constitutional Court.
This is especially relevant given that this is the jurisdictional authority that most affects our people and nonetheless has never taken into account the right to consultation but instead acts in flagrant denial of our uses and customs.
11) We demand that the Prosecutor of Tarija give precise instructions so that the District Prosecutor III of Yacuiba, Dr. Narda V. Dorado Romero, as well as the Prosecutor of Entre Ríos, Dr. Juan Carlos Ferrufino, comply with this judgement in its entirety, and especially in its imperative aspect that affects us directly and regarding which the Superior Court says the following:
On the other hand, regarding the recommendations to guarantee access to justice of the indigenous Guaraní People and other indigenous peoples in Bolivia, the following measures should be taken:
"28. The adoption and reform of national policies and laws in order to institute effective procedures that resolve land claims submitted by indigenous peoples -with special attention to the situation of the Guaraní communities in the Chaco region"
"29. The adoption and reform of national legislation so that indigenous peoples can commence legal proceedings, whether personally or by way of its representative organisations, in order to ensure the respect of their human rights. Such proceedings must be equitable and just and lead to prompt decisions that provide effective reparations for violations to their individual and collective rights. Special attention must be given to cases concerning injuries suffered by indigenous individuals who have been victims of acts of violence."
In this way the Court applies our uses and customs and respects the ownership of our Itika Guasu TCO precisely as has been demanded by our organisation in exercise of its right of representation on repeated occasions. It does so notwithstanding that this has been denied in an absolutely arbitrary manner and in violation of due process, which has led to our organisation being left in a state of complete defencelessness by the legal and police authorities of the Entre Ríos jurisdiction.
Regarding the Right to Ownership of the Itika Guasu TCO
12) On this issue, and given the complexity of the issues and the parties involved, we wish simply to express our great satisfaction regarding the terms of the judgement which adopts our position as expressed to the national authorities and to its own INRA (the "National Institute of Agrarian Reform") on several occasions in writing and publicly notwithstanding that to date they have not formally responded to our claims.
We only wish to make clear to those authorities who assert competence in this area that any action taken without our formal and legally effective participation terms will not be recognised by us and, therefore, we herewith advise them that only authorities legally representing our organisation according to our uses and customs, and therefore, the 36 communities that make-up the APG IG, can effectively act on our behalf both in terms of legitimacy and legality.
13) With respect to the companies that are present in our Itika Guasu TCO, we reiterate that the principles that we have maintained to date coincide completely with the judgement of the Constitutional Court and, therefore, any company whether private or public, must comply with this judgement in its entirety.
This is especially relevant to those companies with whom we have not achieved an agreement. We refer to Petrobras Bolivia SA, who is studying a legal proposal submitted by the APG IG and which complies entirely with the judgement of the Constitutional Court. We hope to be able to reach an agreement on the basis of our proposal and that would allow us to consent to the "3D San Antonio Block Seismic Exploration Project".
In the case of the public company YPFB Transportes S.A., we call on it to analyse the judgement with extreme care, since its current leaders have taken positions which do not comply with the judgement either in form or substance, especially in terms of the "principle of good faith" and in relation to what the Court describes as "proposals with the intention to reach agreement". On this matter, we will notify them accordingly in due time and form through the appropriate legal means, given that in the present state of the negotiations, our Legal Department has not yet finalised the analysis of the counterproposal submitted by the senior management of this company.
14) Finally, we urge all of the indigenous communities to make use of this judgement and the documents that it mentions so that they can put them to use directly and with any social intermediation, adapting them to the uses and customs of each community or indigenous people in order to build a more just future with genuine autonomy.
Entre Ríos, April 30, 2011
Assembly of the Guaraní People of Itika Guasu
Informes sobre DDHH en Bolivia
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