Derechos | Equipo Nizkor
Español | Français
Constitutional Judgement recognises the right to consultation and the ownership of the TCO in a case which affects the Assembly of the Guarani People of Itika Guasu
CONSTITUTIONAL JUDGEMENT 2003/2010-R
Sucre, 25 October 2010
Judge Rapporteur: Dr. Marco Antonio Baldivieso Jinés
On review of Decision 1/08 of 29 February 2008, located at pages 268 to 271, issued by the Technical Judge for the O'Connor Province Judgement Court of the Superior Court of the Judicial District of Tarija in the context of an action for violation of constitutional rights (formerly an appeal for violation of constitutional rights) submitted by Mirtha Natividad Arce Camacho on behalf of Miguel Ángel Rojas Zamora, Technical Director of the Servicio Departamental de Caminos (SEDECA) Tarija (Regional Highways Service) against Never Barrientos, President of the Assembly of the Guaraní People of Itika Guasu, alleging violation of its rights of assembly and association for legitimate purposes and for reasons of work under conditions that do not prejudice the collective good, citing to that effect art 7 paras. c) and d) of the (now repealed) Political Constitution of the State (the "CPE").
I. RELEVANT BACKGROUND
I.1. Basis of the action
In the claim submitted on 28 February 2008, located at pages 32 to 35, the attorney for the appellant affirms:
I.1.1. Circumstances of the claim
In 21 August 2008, the firm PETROSUR SRL signed an agreement with SEDECA Tarija, by which the latter would make available its camp located in the Community of Cañadas for a period of four months from 21 January to 21 May 2008 and PETROSUR SRL would undertake the necessary refurbishment of the camp, which would later be used by its employees to carry out highway repairs in the area.
By means of a note received on 21 February 2008 by PETROSUR SRL, the appellee, on behalf of the Assembly of the Guarani People of Itika Guasu, stated that he did not consent to the agreement signed with SEDECA Tarija, in the absence of compliance with Law 1257 of 11 July 1991 and Law 3760 of 7 November 2007, both of which establish that any activity that might affect their territory must be the subject of prior consultation. Similarly, the President of the Assembly of the Guarani People of Itika Guasu let PETROSUR SRL know that its conduct generates doubt and distrust because it did not require SEDECA Tarija to respect the national laws in effect.
Given this response, PETROSUR SRL became concerned as to whether there had been due respect for the laws in effect concerning indigenous peoples and above all the validity of the signed agreement and advised SEDECA Tarija that it should return the amount of US$55 000 (fifty-five thousand United States dollars) which had been invested in the refurbishment of the camp in the community of Cañadas, in the event that the agreement was not carried out.
A review of the laws on which the appellee relied in his letter to PETROSUR SRL, shows that Law 3760 incorporates as (domestic) law the 46 Articles of the United Nations Declaration on the Rights of Indigenous Peoples approved at the 62nd Session of the General Assembly of the Organization of the United Nations; Law 1257 approves and ratifies Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries, which provides in its art. 6.1 that governments shall consult the peoples concerned whenever consideration is being given to legislative or administrative measures which may affect them directly. From this it is inferred that the agreement executed between PETROSUR SRL and SEDECA is not part of legislative or administrative measures likely to directly affect the Guaraní people.
I.1.2. Rights and Guarantees allegedly violated
The attorney for the appellant claims that the appellee violated the appellant's rights of assembly and association for legitimate and work reasons on terms that do not prejudice the collective good, citing to that effect art. 7 c) and d) of the (repealed) CPE.
I.1.3. Appellee Authorities and petition
An appeal for violation of constitutional rights is presented against Never Barrientos, President of the Assembly of the Guaraní People of Itika Guasu, petitioning that protection be granted to the appellant to the effect that the letter sent by the Assembly of the Guarani People of Itika Guasu to PETROSUR be declared null and of no effect and declaring in full force and effect the executed agreement between the two firms.
I.2. Hearing and Decision of the Judge for constitutional guarantees
During the public hearing held on 29 February 2008, located on pages 266 to 268, at which the appellant, the appellee, the interested third party and a representative of the Public Ministry attended, the following actions took place:
I.2.1. Ratification and expansion of the appeal
The appellant ratified the terms of the appeal and added that by Supreme Decree (Decreto Supremo)(DS) 24215 in its art. 4, the Regional Highways Services (SEDECA) is established in each region together with the transfer of equipment and infrastructure; similarly Supreme Decree (DS) 25134 legislates the limits of ownership rights insofar as they affect the right of way on State highways.
I.2.2. Report of the appellee authorities
The appellee during the hearing stated:
SEDECA Tarija is within Guaraní territory which is in the process of regularisation ("saneamiento") and there exists a resolution of immobilisation with respect to Itika Guazu. Thus the letter sent to PETROSUR SRL has not violated any right; nor do the Guaraní people require cancellation of the contract with SEDECA Tarija; nevertheless, the Guarani people should have been consulted; their rights, granted by the Bolivian State by virtue of the Law of the Environment, are not being respected and these laws enable them to express their lack of consent when the environment is about to be harmed. For the foregoing reasons, the appellee, as it has not violated any rights, requests that this appeal be dismissed as being without merit.
I.2.3. Intervention of the interested Third Party
In the course of the hearing, Hernán Rojas, stated the following: Following the execution of the agreement of PETROSUR SRL with SEDECA Tarija to use the camp which is in a state of abandonment, the former visited the appellee to request its consent to the company's presence in the area and forwarded a copy of the agreement. Upon receipt of the refusal to consent to the same, the company forwarded this to SEDECA for it to take the appropriate steps.
I.2.4. Intervention of the representative of the Public Ministry
The representative of the Public Ministry at the hearing, stated: The action for violation of constitutional rights brought by SEDECA Tarija is in respect of property which it owns in Cañadas and which was assigned to PETROSUR SRL by way of an agreement. The property is in a state of disrepair for which reason it was necessary to invest a substantial amount of money in refurbishment; the Assembly of the Guaraní People sent a letter expressing its refusal to consent to the SEDECA agreement with the company. Given this, it is requested that the appeal be granted because the terms of the letter undermine the said agreement.
The Decision dated 1/08 de 29 February 2008, pages 268 to 271 of the Technical Judge for the O'Connor Province Judgement Court of the Superior Court of the Judicial District of Tarija, granted the requested protection, requiring that the representative of the Assembly of the Guaraní People should revoke the provisions of the letter sent to PETROSUR SRL, basing the decision on the following: 1) The appellant had demonstrated that the camp in Cañadas, O'Connor Province is property of SEDECA pursuant to arts. 8 to 17 of DS 24215 of 28 July1995 and art. 10 et seq. of DS 25134 of 31 August 1998; 2) The agreement between SEDECA Tarija and PETROSUR SRL refers exclusively to the use of the property for accommodation for the employees of PETROSUR SRL in exchange for the improvement to the property for a period of four months; and 3) The representative of the Assembly of the Guaraní People had not substantiated his argument that the environment would be affected by the oil and gas activities in which PETROSUR SRL is involved, which activities are not the subject of the agreement between SEDECA and PETROSUR SRL. The lack of consent to oil and gas activities may be notified to the relevant authorities.
I.3. Proceedings in the Constitutional Court
This constitutional appeal was referred on 10 March 2008; however, in light of the resignation of the Judges of the Constitutional Court, pending cases remained unresolved. Further to the appointment of the new authorities and the recommencement of jurisdictional work by virtue of a Jurisdictional Agreement 001/2010 of 8 March, this case was drawn by lot on 2 September 2010. As a result this decision was issued within the procedural time limits.
From a review of the record, the following conclusions can be drawn:
II.1. By an agreement dated 21 January 2008, between SEDECA Tarija and PETROSUR SRL, it was agreed that the former, in its capacity as owner of the Cañadas camp, O'Connor Province, would grant in favour of PETROSUR SRL the right to the use and enjoyment of the said camp and its facilities for the purposes of accommodation and other similar uses not incompatible with those for which the said construction was designed, and for a period of four months ending on 21 May 2008. In exchange, PETROSUR SRL undertook to refurbish the camp in order to make it habitable. Similarly, it was agreed that, among other undertakings, SEDECA Tarija would guarantee to PETROSUR SRL the right to use the facilities at the Cañadas camp for the duration of the agreement (see pp.13 to 15 of the record).
II.2. By a facsimile note received on 21 February 2008 by PETROSUR SRL, Never Barrientos, President of the Assembly of the Guaraní People of Itika Guasu advised that he did not consent to the agreement entered into with SEDECA Tarija concerning the Original Community Land (Tierra Comunitaria de Origen - TCO) of Itika Guasu, stating that in accordance with Law 1257 and 3760, all activities that may affect their territory must be the subject of prior consultation and therefore, he awaited rectification of their conduct (p. 20)
II.3. By a note dated 21 February 2008, the Director of Construction of PETROSUR SRL notified the Technical Director of SEDECA that if the opposition of the Assembly of the Guaraní People to the effect of the contract could not be resolved, it would be obliged to annul the same and SEDECA Tarija would be obliged to return the amount of US$55,000, the amount invested in the refurbishment and implementation of the camp in Cañadas (p. 23).
II.4. By notes sent on 22 and 27 February 2008, by SEDECA Tarija to the President of the Assembly of the Guaraní People of Itika Guasu and to the President of the National Assembly of the Guaraní People respectively, the former requested the withdrawal of the letter sent to PETROSUR SRL, alleging a violation of its rights (pp 26 and 27 and 30 to 31).
II.5. By a Resolution of Immobilisation ref. RAI-TCO-0017 of 18 July 1997, the Acting Director of the National Institute for Agrarian Reform (Instituto Nacional de Reforma Agraria - INRA), ordered the immobilization of certain land areas, including the land of Itika Guasu, pursuant to the claim for registration of ownership of the Guarani territories filed on 17 September 1996 by Nicolás Montero, Bonifacio Barrientos, Rogelio Aireyu, Valerio Mena et al. (Pp. 225 to 231).
III. LEGAL REASONING OF THE JUDGEMENT
The principal of the appellant, now claimant, asserts that the appellee and defendant, violated its rights of assembly and association for legal purposes and work purposes insofar as it sent a note to PETROSUR SRL requiring it to nullify the contract executed with SEDECA Tarija, relying on the right to prior consultation provided in Laws 3760 and 1257, without consideration of the fact that the signed agreement is not a part of legislative or administrative measures which might affect the Guaraní people. It is therefore appropriate, that this review analyse if such assertions are correct and if they merit the protection afforded by such constitutional remedy.
III.1. Considerations as to the application of the Political Constitution of the State currently in effect.
As this appeal, now an action, was submitted to and resolved by the Court for constitutional protection subject to the Fundamental Law then in effect and now repealed, it is necessary to determine, before analysing the merits of the decision subject of this appeal, which constitutional norm is applicable.
Therefore, according to the reasoning set out in the decision SC 0006/2010-R of 6 April, based on the principle pro hómine, contained in arts: 5 of the International Covenant on Civil and Political Rights; 29 of the American Convention on Human Rights, 13.IV and 256 of the CPE, the judge must apply those norms which are most favourable to the person, his freedom and rights and further must interpret these norms as widely as possible.
Similarly, according to the principle of progressive interpretation of the norm, faced with various possible understandings, the judge should select the one which limits as little as possible the right or guarantee which is claimed to be violated; in other words, the judge should select the most extensive interpretation with respect to the recognition of rights and the most restrictive one when establishing the limitations to the exercise of the same.
In accordance with said principles, and given that as a general rule, the Fundamental Law in force is the most protective, it is natural to apply it; however, in any specific case, analysis of the constitutional norms will be carried out to give preference to those which are most favourable to the appellant, now claimant.
III.2. Concerning harmonisation of constitutional procedural terminology
The Political Constitution of the State, in reference to actions to defend fundamental rights, envisages in its art. 128 the action for constitutional protection, in which proceeding art. 129.III, establishes that: "The defendant authority or individual will be cited in the manner provided for in an action for freedom....". Thereafter in paragraph IV it adds: " The final decision will be announced during a public hearing immediately following receipt of information from the defendant authority or individual, and in the absence of this, it will be announced on the basis of the evidence offered by the claimant. The judicial authority will examine the competence of the defendant public service or individual and if it determines that the claim is correct and valid, it will grant the protection sought...".
For its part, the Law of the Constitutional Court in its art. 97.I and II, defines the person who brings the action for protection, as the appellant and the person against whom the action is brought as the appellee. It is consistent however with respect to the form of the decision, in that it provides in art. 102.1 that: "the decision will grant or deny protection....".
As a result the terminology to be used to refer to the person who commences a protective action is that of a "claimant" and the authority or person against whom such an action is brought is a "defendant". Similarly, with reference to the terminology for the relevant mechanism, if the protection is granted, the term "concede" will be used and otherwise the protection will be "denied".
In those cases where a fundamental analysis is not carried out, it is worth noting that although pursuant to the decisions of SC 505/2005-R and AC 107/2006-RCA, the Admission Committee reviews those actions for judicial protection which have been found inadmissible or rejected by the constitutional courts, there are also circumstances where, a case is initially admitted to court, and a hearing is held and a decision issued, but when it is appealed to this Court, following a draw by lots, the Plenary Court might find that it is not possible to enter into a fundamental analysis of the merits. This may be the case for the reasons set out in art. 96 of the Law of the Constitutional Court ("LTC"), such as evident violation of the principle of subsidiarity, the lack of timeliness of the action, or for some other reason, such as failure to observe the requirements for admission set out in art. 97 of the LTC. On this point, this Court in SSCC 494/2001-R and 652/2004-R, inter alia, up to and including SC 820/2007-R, stated that in such cases, it is correct to declare the action "inadmissible".
Nevertheless, to safeguard the constitutional provision and in order to maintain harmony and not generate confusion with respect to the correct terminology to be used during the admission phase, it is appropriate in these cases to "deny" the protection claimed with the clarification that "an analysis of the fundamental issues was not entered into" given that the claimant in these cases can bring a further action for protection, provided always that he complies with the admissibility requirements.
In order to unify and harmonize the criteria for procedural order, it is stated here for the record that commencing with this decision, hereafter the terminology in the form set out above should be used and this will be binding in character, as set out in arts. 4 and 44 of the LTC, on all judicial authorities which act as courts of constitutional guarantees as well as on this Court.
III.3. Constitutional protection as preventive protection
Just as with habeas corpus, the repealed Constitution granted constitutional protection as a remedy, and it was described similarly in the Law of the Constitutional Court, whereas the current Constitution in force and Law 27 of 6 July 2010 use the words action for constitutional protection, understanding it as a right which a person - individual or collective - has to activate constitutional justice in defence of fundamental rights and constitutional guarantees, to deal with illegal actions of public officials or private persons.
Constitutional protection comprises a series of procedural actions, such as the claim, the report, the hearing, the decision of a judge or a court of constitutional guarantees and its later review on appeal by the Constitutional Court which make up the independent constitutional process, one which is extraordinary in character and comprising a special summary proceeding, and in which there is a right or guarantee allegedly violated and a claim, parties who disagree, a specific proceeding to consider the protection sought and a court (whether one judge or a tribunal) to decide the matter.
In addition to the concept of constitutional protection as an action - a right - and a proceeding, it is also a jurisdictional means of defending rights and guarantees, and on this point, it should be understood as a guarantee provided in favour of persons to defend their fundamental rights and constitutional guarantees. Thus the definition provided in the Political Constitution of the State, Chapter II, Title IV of the 2nd Book of the CPE, can be understood, as it refers to jurisdictional guarantees and actions in defence, and situates constitutional protection among such actions.
The current action for constitutional protection maintains the procedural mechanism provided in the repealed Constitution, albeit with some insignificant modifications such as the clarification concerning the admissibility of the action against illegal or undue acts or omissions of public servants, individual or collective persons. This action shares many of the features of the action for freedom: it is a summary action, of an immediate character of protection, as it is designed to be a fast and simple proceeding with few formalities, and one of generality, which means that the action can be submitted without exception against public servants and private persons.
Thus, the objective of constitutional protection is to assure persons of their effective enjoyment of their fundamental rights and constitutional guarantees, protecting them from all illegal or arbitrary threat, restriction or suppression arising from acts, decisions or omissions of public servants, private persons, whether individual or collective. As a result, constitutional protection can be either corrective (repairing) or preventive:
Corrective or Repairing. The action for protection is invoked to address existing restriction or suppression of rights and guarantees as a result of illegal or undue acts, decisions or omissions. In this case, the court of (constitutional) guarantees will grant protection in order to re-establish with immediate effect the rights and guarantees that have been infringed.
Preventive: This is when the action is invoked to address a threat of imminent restriction or suppression of fundamental rights or constitutional guarantees. The constitutional protection in this case has the objective of avoiding the harm to a right or a guarantee, and therefore, where the threat is evident, the supervising judge shall adopt the necessary measures to prevent the implementation of the illegal act or decision, avoiding in this way, the infringement of rights or guarantees; however, for this type of constitutional protection to be admissible, the threat must be certain and imminent pursuant to the interpretation of the Constitutional Court in SC 0819/2010-R of 2 August, when it stated:
" ... there must exist the conviction that the rights which are alleged to be violated are being harmed or will be harmed if the protection is not granted; if the appellees have committed an action which is likely to produce such a threat; and in addition, if it is shown that the threat from the appellees is about to be carried out and there is therefore a substantiated certainty of an offence (:::) issues which will determine the admissibility or not of the remedy of constitutional protection for which an analysis from various perspectives must be carried out: first, to identify the nature of the subjects who threaten to restrict or suppress a right: what is the situation of these parties with reference to the appellant; why is the possibility of the actual violation of the right greater if those who are making the threat have certain privileges with respect to the common citizen which place them in a better position; then, one must analyse the truth of the events that have occurred and the possibility that these violate the right to dignity, taking into consideration also the social environment where these might occur..."
On the same matter, the SC 0819/2010-R, stated:
"(...) Persons initiate protective actions because they are persuaded that their fundamental rights are being violated or, at least, that they will be harmed if the constitutional jurisdiction does not grant them protection: in other words, that there is a specific threat against their rights. Now this carries with it an obligation on the part of the claimant to clearly demonstrate that there is an offence, or that - in a certain and imminent way - there is about to be an offence, which genuinely affects, violates or harms his fundamental rights, or at the least threatens them, this being the essential element which will determine the admissibility or otherwise of the action for constitutional protection. On this understanding, the claimant should demonstrate the risks which exist against his rights and guarantees, and therefore, he is obliged to ascertain and identify those persons who are violating or threatening to violate them, and demonstrate that the acts which are the subject of his claim - as well as being true - do genuinely affect or threaten the fundamental rights or constitutional guarantees of the claimant".
III.4. The territory of the original indigenous and peasant peoples and nations
III.4.1. Territory as one of the criteria of the definition of indigenous people
Territory is closely linked to the definition of indigenous peoples, as it constitutes an element of their characterisation. This definition, although then with an integrationist and subordinated vision, has its origin in the Convention 107 of the International Labour Organisation (OIT) of 1957 which provides in its art. 1 that the Convention applies to: "(a) members of tribal or semi-tribal populations in independent countries whose social and economic conditions are at a less advanced stage than the stage reached by the other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) members of tribal or semi-tribal populations in independent countries which are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation and which, irrespective of their legal status, live more in conformity with the social, economic and cultural institutions of that time than with the institutions of the nation to which they belong;" thereafter, the ILO Convention 169, ratified by Bolivia by virtue of Ley 1257, in its art. 1 established that the Convention applied to: "b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions." The Convention goes on to say that "2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply." Martinez Cobo, in his "Study of the Problem of Discrimination Against Indigenous Populations", affirms that "Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that, developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them (...) and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems" (MARTINEZ COBO, José, Study of the Problem of Discrimination against Indigenous Populations - Conclusions, Proposals and Recommendations, United Nations, 1987, p. 30). On the other hand, international organizations and experts have established criteria for the definition of indigenous people which have been summarised by Irene A. Daes thus: (a) Priority in time, with respect to the occupation and use of a specific territory; (b) The voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions; (c) Self-identification, as well as recognition by other groups, or by State authorities, as a distinct collectivity; and (d) An experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist. (United Nations Economic and Social Council, Standard-Setting Activities: Evolution of Standards Concerning the Rights of Indigenous People, United Nations, 1996, p. 22). In Bolivia, initially, in the constitutional reform of 1994, the terms indigenous peoples and indigenous communities and peasants were used. Currently the Constitution in force uses the following terms as one unit: "Original indigenous and peasant peoples and nations."
Art. 30 of the Constitution, offers the following as a definition of original indigenous and peasant people and nations,: "(…) a human collectivity which shares a cultural identity, language, historical tradition, institutions, territoriality, and cosmovision whose existence predates the Spanish colonial invasion".
As can be seen, in Bolivia various terms have been united (original indigenous and peasant people and nations) which together have a meaning similar to the meaning internationally attributed to the term indigenous peoples, as it contains most of the international criteria for such definition. Thus, with respect to the requirement of priority in time with respect to the occupation and use of a specific territory, this definition requires the existence of a human collectivity that predates the Spanish invasion; with respect to the requirement of a cultural distinctiveness, it is provided that the said collectivity must share a cultural identity, language, historical tradition, institutions, territoriality and a cosmovision; with respect to the experience of marginalisation or exclusion, although art. 30 does not specifically mention this element, it is implied in the preamble to the CPE where it is stated "In times immemorial mountains rose, rivers changed their course and lakes were formed. Our Amazonia, our Chaco, our Altiplano and our plains and valleys were verdant and covered in flowers. We populated our sacred Mother Earth with different faces, and we have understood since then the existence of a plurality in everything and of our own diversity as human beings and as cultures. Thus we formed our peoples, and we never understood racism until we suffered it in those terrible times during the colony...".
Thus, one of the elements which characterises the original indigenous and peasant people and nations is territoriality and hence international norms and the CPE itself highlight the recognition of rights over lands which have been ancestrally occupied.
III.4.2. The right to land and territory
The ILO Convention 107 recognises the importance of land and provides in its art. 11 Part II: "The right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognised".
Subsequently, the ILO Convention 169 in its art.7, provided: "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".
Art. 13 of the same Convention requires that in applying the provisions of Part II of the Convention (Land), "governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship".
The Convention adopts a comprehensive interpretation of the term "lands" as, according to art. 13.2 this term includes "the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use" (emphasis added).
Art 14 of the Convention provides that: "The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect". (emphasis added).
Paragraph 2 of this article states that "Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession". And paragraph 3 provides that: "Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned."
For its part, the United Nations Declaration on the Rights of Indigenous Peoples, ratified by Bolivia in Law 3760, states, in art. 26:
"1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. (emphasis added)
Art 27 of the said Declaration provides that:
"States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples' laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process" (emphasis added).
Art 28.1 of the Declaration provides that: "Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent".
On this point, the preamble of the Bolivian Constitution provides that "We, the Bolivian people, plural in composition since the depths of history, inspired by the struggles of the past, by the anti-colonial, indigenous uprising, by independence, by the popular freedom struggles, the indigenous, social and union marches and the wars of water and the October war, by the struggles for land and territory, and in the memory of our martyrs, construct a new State".
In the context of these international norms and the preamble, article 2 of the CPE guarantees the right to free self-determination of original indigenous and peasant people and nations within the context of the unity of the State, consisting of the right to autonomy, self-government, the right to their culture, the recognition of their institutions and the consolidation of their territorial entities. On this subject, arts. 30.4), 6) and 15) of the CPE recognise the right to self- determination and territoriality and the collective registration of lands and territories.
On the other hand, it should be borne in mind that the current territorial organization of the State, according to art. 269 of the CPE, consists of " departments, provinces, municipalities and original indigenous peasant territories", territories which should be recognised as a whole, as pursuant to art. 403 of the CPE, these comprise areas of production, areas of exploitation and conservation of natural resources and areas of social, spiritual and cultural reproduction.
From the norms set out above which form the block of constitutionality, according to art. 410 of the CPE, it can be understood that the original indigenous and peasant people and nations have the right : 1) to lands and territories which they have traditionally possessed, occupied, used or acquired: 2) to possess, use and control the said lands and territories; 3) that the State guarantees legal recognition and protection of the said lands and territories, including the resources existing therein.
In addition to the foregoing, the Inter-American Commission of Human Rights in its Report on "Captive Communities: Situation of the Guaraní Indigenous People and Contemporary Forms of Slavery in the Bolivian Chaco" of 24 December 2008, stated in its recommendations that to prevent, investigate and punish such forms of slavery, it is necessary to:
"13. Provide the economic, technical, and human resources necessary to strengthen the National Agrarian Tribunal, and facilitate the capacity of that Tribunal, in coordination with the Public Ministry and other institutions of the administration of justice and agrarian reform, to collaborate in the investigation and punishment of practices similar to slavery in the Chaco and other regions of the country. To give impetus to the resolution, by this body, of the challenges to the reversion orders or other orders as part of the process of clearing title so as to benefit the Guaraní people".
With respect to the specific recommendations to reconstitute the territory of the Indigenous Guaraní people, it stated: "16. Adopt a comprehensive plan for the territorial reconstitution of the Guaraní indigenous people with special attention to the rights to collective property, self-government, education, health, housing, and training services in the area of agriculture and other economic activities". "18. Ensure that the current measures taken by the State in this area, such as the process of clearing title under the agrarian legislation and the 2007-2008 Transitory Inter-Ministerial Plan for the Guaraní People are in line with international standards as to the scope and contents of the rights of indigenous peoples to their lands, territories, and natural resources; forms of social, political, and cultural organization; and the right to consultation and to the prior, free, and informed consent of the indigenous peoples. In this respect, special attention should be given to the provisions contained in the international human rights instruments ratified by the State, particularly ILO Convention 169 on indigenous peoples, the United Nations Declaration on the Rights of Indigenous Peoples, and the standards established in the case law of the inter-American human rights system as interpretation of the rights enshrined in the American Convention on Human Rights."
"19. Ensure that all the measures taken by the State for the restitution of the territory of the Guaraní people, such as clearing title, expropriation, and reversion of lands, be taken with the consensus of the Guaraní people, in keeping with their own procedures for consultation, values, uses, and customary law."
"22. Guarantee the right of the communities of the Guaraní people, before and after obtaining legal recognition of their territories, to determine and articulate their own priorities and strategies for development and to participate actively in the design and determination of their health and housing programs and all other economic and social programs that concern them and that they administer those programs through their own institutions."
"24. Ensure that the collective property rights acquired by the Guaraní communities also guarantee the rights over the natural resources in their territories."
"25. In terms of other types of measures, activities, laws, or policies that affect the interests of the communities of the Guaraní people, the State should ensure the participation of those communities by means of a process of consultation that entails the obligation to obtain their prior, free, and informed consent in keeping with their own customs and traditions."
"27. Identify and resolve possible unmet demands of the Tierras Comunitarias de Origen, particularly in the Alto Parapetí, as a result of prior processes of clearing title undertaken in the region. The resolution of those demands should conform to the same standards on the rights of indigenous peoples mentioned above".
Similarly, with respect to the recommendations to guarantee access to justice for the Guaraní indigenous people and all other indigenous peoples in Bolivia, it states the following:
"28. Adopt and reform national policies and laws so as to institute effective procedures to solve the indigenous peoples' land claims - with special attention to the situation of the Guaraní communities in the Chaco region"
"29. Adopt and reform the national legislation so that the indigenous peoples can institute legal proceedings, personally or through their representative bodies, to ensure respect for their human rights. Such procedures should be fair and equitable and lead to prompt decisions with effective reparations for harm to their individual and collective rights. Particular attention should be given to the cases related to injuries suffered by indigenous individuals who have been victims of acts of violence".
"30. Ensure that the administrative steps of the procedures for claiming indigenous lands are accessible and simple, and that the bodies in charge of them have the necessary technical and material conditions for providing a timely response to the requests made by the indigenous peoples in the context of those procedures (...)".
III.5 The right to prior consultation in the norms contained in the block of constitutionality
The right to prior consultation was recognised in respect of indigenous peoples in the ILO Convention 169 which established in its art. 6.1 that in applying the provisions of Convention 169, 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;"
Art. 6.2 of the Convention states: "The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures."
The consultation, according to art. 15.2 of the Convention 169 applies equally to all resources existing on the lands of indigenous peoples, as it provides that in cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands.
These norms were broadened and made more specific in the United Nations Declaration on the Rights of Indigenous Peoples, which provides in its art. 19 that:
"States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them."
In addition, art. 32 of the Declaration, specifically with respect to lands and territories, states:
"1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact."
For its part, the CPE recognises in its art. 30.15) the right: "To be consulted by means of appropriate procedures and in particular through their institutions, whenever legislative or administrative measures are envisaged which are likely to affect them", adding subsequently that "the right to obligatory prior consultation shall be respected and guaranteed and carried out by the State in good faith and by pre-arrangement with respect to the exploitation of natural and non-renewable resources in the lands which they inhabit".
With respect to natural resources, art. 403 of the CPE recognises the entirety of the original indigenous and peasant territory which includes the right to the land, the use and the exclusive exploitation of its renewable natural resources, to prior and informed consultation and to participation in the benefits of exploitation of the natural non-renewable resources which are located in their territories.
Therefore, in light of the constitutional and international norms concerning the rights of indigenous peoples which - as indicated - form part of the block of constitutionality, in accordance with the provisions of art. 410 of the CPE, it can be concluded that prior consultation is a duty of the State, both at the centralised level and at the level of the autonomous territorial entities, which consultation must be carried out through the representative institutions of the indigenous peoples.
This consultation must be carried out in good faith and in a manner appropriate to the circumstances in the following cases:
a. Prior to adoption or implementation of legislation or measures which might directly affect indigenous peoples (arts. 6.1. of the Convention 169, 19 of the United Nations Declaration on the Rights of Indigenous Peoples, 30.15 CPE);
b. Prior to approval of any project which might affect their lands or territories or other resources (art. 32.2. of the United Nations Declaration on the Rights of Indigenous Peoples);
c. Prior to authorisation or undertaking any programme of exploration or exploitation of natural resources which are located on lands inhabited by indigenous peoples (arts. 15.2 of Convention 169, 32.2. of the United Nations Declaration on the Rights of Indigenous Peoples, 30.15 and 403 of the CPE); and,
d. Prior to using indigenous lands or territories for military activities (art. 30 of the United Nations Declaration on the Rights of Indigenous Peoples)
This consultation must be implemented with the objective of achieving agreement with the peoples or their prior, informed and free consent. Now, it must be clearly stated that this consent constitutes the purpose of the consultation but is not a right per se, except in two situations set out in Convention 169 and in the United Nations Declaration on the Rights of Indigenous Peoples : 1) Removals from the land they occupy and their relocation (arts. 16.2 of the Convention 169 and 10 of the United Nations Declaration on the Rights of Indigenous Peoples) and, 2. Storage or disposal of hazardous materials on lands or territories of indigenous peoples (art. 29 of the Declaration).
To these two cases, one should add a third, established in jurisprudence by the Inter-American Court of Human Rights in the case of the Saramaka People v. Suriname, in which the right to consent was recognised: " (...) regarding large-scale development or investment projects that would have a major impact within Saramaka territory, the State has a duty, not only to consult with the Saramakas, but also to obtain their free, prior, and informed 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 Judgement, it was stated that "(…) the UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples 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 ". [T]he principal effects [...] 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."
As a result, the UN Special Rapporteur concluded that "[f]ree, prior and informed consent is essential for the [protection of] human rights of indigenous peoples in relation to major development projects" (I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 28, 2007 Series C No. 172).
Pursuant to the above, to implement projects falling within any of the above three descriptions, the consent of the indigenous peoples is a requirement, which means that in these cases the peoples have the power to veto the project; in other cases when the consultation proceeds in good faith, with appropriate methodology and information, the indigenous peoples have a right to participate in the development of the project and the State should act within margins of reasonableness and subject to laws, principles and values contained in the CPE, including the principle of legality and the prohibition against arbitrariness, respecting the rights of the original communities, avoiding any harmful impact to their habitat and modus vivendi.
III.6. Analysis of the legal problem at issue
The appellant, by its attorney, and now as claimant, states that the appellee damaged its right to assembly for legal purposes and for the purposes of work, insofar as the appellee sent a note to PETROSUR SRL advising that the agreement with SEDECA Tarija was of no effect, in reliance on the right to consultation provided by Laws 3760 and 1257, without considering that the executed agreement is not inherent in the legislative or administrative measures which might affect the Guaraní people.
From the information on the record, it is evident that the defendant, Never Barrientos, President of the Assembly of the Guaraní People of Itika Guasu sent a note on 21st February 2008 to PETROSUR SRL, expressing his "non-consent" (sic) to the agreement signed by that company with SEDECA Tarija, claiming that all activity that might affect their territory must be a matter of prior consultation, requiring the rectification of their conduct and expressing "the hope that it is not an institutionalised practice to ignore indigenous rights". However it is also evident that this note does not damage the rights of assembly and association for legal purposes or the purposes of work as alleged by the appellant. Nor is there a certain and imminent threat to a violation of these rights.
On this point, it is necessary to point out that although by a note dated 21 February 2008, the Director of Construction of PETROSUR SRL, advised the Technical Director of SEDECA that if the opposition of the Assembly of the Guaraní People to the existence of the agreement could not be resolved, it would be necessary to annul the same and SEDECA Tarija would have to return the amount of US$50,000, invested in the refurbishment and operating of the camp in Cañadas, this note in no way threatens to restrict the right to the freedom of association nor the right to work, as it is understood that these rights are not absolute. They must be exercised within the limits envisaged by the norms comprised in the block of constitutionality and by the laws.
Thus, in accordance with the norms of the block of constitutionality set out in the Legal Arguments III.4 and III.5 of this Judgement, indigenous peoples have the right to prior consultation, a right which - contrary to the affirmation of the claimant - includes the approval of any project which affects their lands, territories and other resources (art. 32.2.the United Nations Declaration on the Rights of Indigenous Peoples ). This is because of the particular relevance that land has for indigenous peoples, as has been explained in the above Arguments.
In this case, the execution of the agreement between PETROSUR SRL and SEDECA Tarija was in respect of the use of the facilities of the camp at Cañadas located in the territory of the Itika Guasu region of the Guaraní People, and as a result, there should have been a prior consultation concerning the agreement with the said people, in accordance with the norms contained in ILO Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples, which both form part of the block of constitutionality.
It is necessary to point out that, notwithstanding the fact that art. 8 of DS 24215 of 12 January 1996 provides for the transfer to each Department Highways Service (SEDECA) of the facilities and other property of the District Offices of the National Highways Service, and that art. 10 of DS 25134 of 21 August 1998 provides that for the purposes of the use and exploitation of the highways in the Basic Network, the lands occupied by such highways are the property of the State, comprising the area consisting of the border of land along each side of the roads (including a verge of 50 metres), and that the National Highways Service can use or authorise the use of the affected zone for reasons of public interest or when necessary to improve the highway service, nevertheless, it must be borne in mind that on the date of submission of the action for constitutional protection and the date of the hearing, there was a Resolution of Immobilisation in existence, RAI-TCO-0017 of 18 July 1997, by which the Acting Director of the National Institute for Agrarian Reform (Instituto Nacional de Reforma Agraria), declared various areas immobilised, including that of Itika Guasu, following the claim for registration of ownership of Guaraní territory made on 17 September 1996 by Nicolás Montero, Bonifacio Barrientos, Rogelio Aireyu,Valerio Mena et al., who based the claim on the historic and traditional territory of the Guaraní people and the need to preserve the entirety of their territory.
On this point it must also be borne in mind that, pursuant to the provisions contained in the norms of the block of constitutionality set out in Legal Argument III.4 of this Judgement, the original indigenous and peasant peoples have the right to the lands and territories which they have traditionally possessed, occupied, used or acquired, to control the said lands and territories, and the right that the State guarantee the recognition of the same. Pursuant to this, the Guaraní People of Itika Guasu - and any original indigenous and peasant community - have the right to their territory and to know about, participate in or at the least to be previously consulted on projects - in this case, agreements - which could affect their territory. This is even more the case given the existence of the Resolution of Immobilisation RAI-TCO-0017 of 18 July de 1997, by which the State, through the National Institute for Agrarian Reform (INRA) acknowledges the initiation of the recognition of original community land of the Indigenous Guaraní People.
For the foregoing reasons, it is evident that the defendant has not committed any illegal act, as he merely sent a note to PETROSUR SRL, in defence of the rights of the indigenous people which he represents, requiring compliance with international norms ratified by Bolivia such as Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples, which both form part of the block of constitutionality, the interpretation and application of which is set out in art. 256 of the CPE.
On this matter, it was the duty of SEDECA Tarija to regularise the situation created by the agreement signed with PETROSUR SRL, by complying with the above stated norms, particularly given that there was no certain or immediate threat to harm those rights asserted by the representative of the claimant, and noting that, if the omitted consultation had previously taken place, the observation made by the defendant would have been rectified.
For the reasons set out herein, the Judge of constitutional guarantees, in granting protection, did not properly apply the law set out in art. 19 of the repealed CPE nor art. 128 of the current CPE.
The Constitutional Court, in virtue of the jurisdiction and competence conferred on it by arts. 4 and 6 of Law 003 of 13 February 2010, known as the Law on the Need for Transition to New Entities of the Judiciary and Public Ministry; and art. 7 para 8) and 93 of the LTC, under revision, resolves:
1° TO REVOKE Resolution 1/08 of 29 February 2008, recorded at pp. 268 to 271 issued by the Technical Judge for the O'Connor Province Judgement Court of the Superior Court of the Judicial District of Tarija and, as a result, this Court DENIES the constitutional protection requested.
2° With respect to the recommendations of the Inter-American Commission on Human Rights in the report on "Captive Communities: Situation of the Guaraní Indigenous People and Contemporary Forms of Slavery in the Bolivian Chaco" dated 24 December 2008 TO URGE the organs of public power and state institutions to comply with international and constitutional norms concerning indigenous peoples, specifically:
a. The Executive, through its relevant Ministries to comply in a co-ordinated manner, with the said Report of the Inter-American Commission, and to adopt policies and plans for the territorial reconstitution of the original indigenous and peasant people and nations and, in particular that of the Guaraní people. Likewise, through appropriate mechanisms, to make effective the right to consultation of the original indigenous and peasant people and nations, pursuant to the reasoning contained in this Judgement.
b. INRA to finalise the claims pending in respect of original community land, including that of the Guarani people in the context of the requirements of the Seventh Transitory Provision of the CPE.
c. The National Agrarian Court to give priority to those proceedings in which original indigenous and peasant people and nations are involved.
This judgement to be recorded, notified and publish in the Constitutional Gazette.
The President, Dr. Juan Lanchipa Ponce does not appear in this Judgement as he did not intervene in this matter.
Signed. Dr. Abigael Burgoa Ordóñez
Signed. Dr. Ernesto Félix Mur
Signed. Dra. Ligia Mónica Velásquez Castaños
Signed. Dr. Marco Antonio Baldivieso Jinés
DDHH en Bolivia
|This document has been published on 29Oct12 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.|