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The APG IG signs an "Inter-Institutional Agreement on the right to consultation" with the Autonomous Municipal Government of Entre Ríos, in application of Constitutional Court Judgement
On 22nd March 2012 the Autonomous Municipal Government of Entre Ríos, represented by Mayor Teodoro Suruguay, and the Assembly of the Guarani People of Itika Guasu, represented by its President Never Barrientos, signed before a Public Notary an "Inter-Institutional Agreement on the right to consultation".
This agreement is the first of its kind in Bolivia and its purpose is to give effect to the provisions of the Constitutional Judgement 2003/2010-R of 25th October 2010, notified to the APG IG on 12th April 2011.
The Municipality of Entre Ríos acknowledged receipt of the notification effected by the APG IG in May 2011. After a brief negotiation, the execution of the Constitutional Judgement has been effected by the parties entering into the said Inter-Institutional Agreement.
Since 22nd March this year, the co-coordination between the Assembly of the Guarani People of Itika Guasu and the Municipality has enabled a different approach and each project to be submitted both at the level of the deliberative body of the municipality (Municipal Council) and at the departmental level (Departmental Legislative Assembly) is first reviewed by the APG IG. Once any modifications have been outlined and the pros and cons have been analysed, the proposed project is submitted for approval and presentation before the applicable organ.
Thanks to this system, for the first time in Bolivia, municipal projects within the Itika Guasu Original Community Land (TCO), owned by the APGIG, are being carried out respecting the right to prior consultation and the active participation of the indigenous peoples affected by projects within their territory, which shows that the realisation of projects complies with the provisions of both the Constitution of Bolivia and of the Constitutional Court by means of the aforementioned Judgement.
Main aspects of indigenous law recognized in the Agreement.
Among the aspects of indigenous law which arise from the Constitutional Judgement and which are incorporated in the Inter- Institutional Agreement is Article 26 of the United Nations Declaration on the Rights of Indigenous Peoples, dated 13 September 2007, which became domestic law in Bolivia after being ratified by Law 3760 dated 7 November 2007, which states:
"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)
The Judgement echoes Article 27 of the same Declaration which holds 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." (Emphasis added) [...]
With reference to the ownership of the TCO Itika Guasu, the Inter-Institutional Agreement incorporates the finding of the said Judgement when it states: For its part, art. 41.5 of Law 1715 of the National Service for Agrarian Reform (amended by Law 3545), provides that: "The Original Community Lands are the geographical areas which constitute the habitat of the indigenous and native peoples and communities, to which they have traditionally had access and where they maintain and develop their own forms of economic, social and cultural organisation in such a way as to ensure their survival and development. They are inalienable, indivisible, irreversible, collective, composed of communities or associations of communities, unattachable and imprescriptible."
Regarding the right to prior consultation, the Inter-Institutional Agreement incorporates the ruling of the Constitutional Judgement which held that the right to prior consultation was recognised for indigenous peoples in the ILO Convention No. 169, Art. 6.1 which establishes that in applying the provisions of this Convention governments shall: "(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly."
With respect to the right to self development, the following principle mentioned in the Constitutional Judgement is incorporated:
"Art. 32 of the Declaration [on the Rights of Indigenous Peoples], with respect to the lands and territories, provides:
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"
The Inter-Institutional Agreement expressly recognizes the principle that the consultation must be carried out in good faith and in a manner appropriate to the circumstances in the following cases:
a. Before adopting or applying laws or measures which might directly affect indigenous peoples (art. 6.1 of the ILO Convention 169, art. 19 United Nations Declaration on the Rights of Indigenous Peoples, and art. 30.15 of the Bolivian Constitution);
b. Before approving any project which affects their lands or territories or other resources (art. 32.2 of the United Nations Declaration on the Rights of Indigenous Peoples);
This formal recognition, which has legal effect, of the Itika Guasu TCO's ownership rights, the right to determine both their own priorities for development and, consequently, to determine the use of budgetary funds which affect the Communities, is part of the implementation of the Constitutional Judgement 2003/2010-R, that directly affects our organisation , and which fully incorporates indigenous law within the internal law of Bolivia. Ee are pleased to be, once again, the first in Bolivia to create an instrument that will serve as an example to other indigenous peoples and communities.
Assembly of the Guaraní People of Itika Guasu
Owner of the Itika Guasu TCO
Guaye, 07 August 2012
DDHH en Bolivia
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