Derechos | Equipo Nizkor
The agreement signed by ABC with the APG IG allows the asphalting of the Entre Rios- Palos Blancos highway to be put out to tender
On 18th December 2013 the Bolivian Highway Administration (la Administradora Boliviana de Carreteras -ABC) published in the database of the State Contracting System (Sistema de Contrataciones Estatales - SICOES) a call for public tenders for works described as "Asphalting of the highway Entre Rios-Palos Blancos". With this administrative step the ABC commenced the phase of contracting for these roadworks which have a budget of 536.218.755 Bolivianos (approximately USD$ 77,600,400). The ABC is thus complying with the deadlines announced during its press conference in Tarija on 14th November 2013 which was attended by, among others, the President of the ABC, Mr Antonio Mullisaca Díaz, and the President of the Assembly of the Guaraní People of Itika Guasu, Never Barrientos.
In this way the ABC put into motion the roadworks which were planned during the time of Prefect Mario Cossio and continued by the current regional Government under the baton of Bass Werner and the experts from SEDECA (Departmental Road Service of Tarija - Servicio Departamental de Caminos) who drew up the contract documentation without, in any way, taking into account the owners of the TCO (Original Community Territory) Itika Guasu. The owners are the 36 Guaraní communities who are represented by the APG IG and a large part of the 66 km length of this highway will cross their territory.
On 26th March 2013, the APG IG sent a notarised letter to the Regional Director of the ABC, Mr Marcelo Sosa, reminding him of the legal obligations incumbent on his position and that the project should be subject to prior consultation with the APG IG, given that it is the legal owner of the territory of the TCO Itika Guasu.
In response to this letter, Marcelo Sosa made a statement to the press that "The Board of the APG have sent us a notarised letter specifically so that we do not put this project out to tender without prior consultation with them. This is news to ABC Tarija because SEDECA (Departmental Roads Service) who were studying this beforehand did not warn us and, as the route will affect APG land; consultation and so on are established in the Political Constitution of the State. We thus have no option but to comply with it. We simply were not aware that the road was subject to these laws and we will proceed to carry out a prior consultation before putting this section of highway out to tender."
The Regional Government's racist campaign and "El País"
SEDECA and the regional Government had concealed the fact that the highway passed over indigenous territory and thus in the contract documentation they misrepresented various matters; such as the statement that there were no indigenous population in the lands crossed by the road. They included a list of persons who would have proprietorial rights to the affected lands. The information given was manifestly untrue.
The intervention by the APG IG provoked a violent reaction from the official Walter Ferrufino [Sectional Executive of the O'Connor Province, Department of Tarija] and from Roberto Ruiz Bass Werner [Executive Secretary of the Regional Government], which was disseminated in an article published by the racist newspaper "El País" on May 1st, 2013. This in turn resulted in a joint response from the Board of the APG IG and from Equipo Nizkor who denied the statements of the two public officials and of the newspaper itself, given that none of the representations made were correct and that there was a clear racist motive behind them. In their statements they had accused both organisations of blocking the project and of demanding millions of dollars as compensation.
Walter Ferrufino stated that "the NGO Nizkor, with its transnational interests always opposes any enterprise which is connected to improving the quality of life of our people and to the development of the Department and is always causing difficulties and using as an excuse the legitimate right of the peoples such as the right to consultation. But it is clearly focussed on directing matters so as to benefit only one sector and to its own enrichment as an NGO"
The reason for this reaction from both Walter Ferrufino and Bass Werner is that they already knew that ABC had made a decision to annul the call for tender prepared by the regional Government and SEDECA and that it did so in order to comply with Constitutional Judgement 2003/2010 - R, as to have done otherwise would be to commit the same criminal offense as that committed by the now indicted Walter Ferrufino.
These issues were explained by the President of the ABC, Mr Antonio Mullisaca Díaz, during a meeting to ratify the agreements at the headquarters of the APG IG in Guaye on 13 November 2013. His statements were widely broadcast on television and radio in Guaye for general public dissemination, and, for the first time, the public received true information about the negotiations and the circumstances behind them.
The Tarija media deliberately withheld this information. As of the date of this article they have not published anything concerning the agreement reached and this demonstrates that the information provided by the other officials and some of the local press on this matter was manifestly false.
Prior consultation and the Constitutional Judgement
The claim of the APG IG is based on the indigenous right to property and the right to consultation established in the Constitution. However, in reality, the regional Government of Tarija and the Local Sectional Executive of O'Connor have never complied with the same and have made it clear privately and publicly that they never will comply.
This fact is easy to prove if one analyses any of the programmes of the Regional Government led by Lino Condori, whether educational, sanitary, medical or developmental. In no case has the Government considered compliance with the right to consultation of the original indigenous peoples of Tarija.
With specific reference to the APG IG, in its 2008 Assembly the APG IG approved a legal strategic plan which enabled it, for the first time, to deal with this kind of conduct inherent in the ruling classes of whatever political leaning and characterised by clear racial segregation
To achieve this, an agreement was reached between the APG IG and Equipo Nizkor, who, since then, has been advising the APG IG with respect to the management of legal and organizational conflicts in the areas of production, health and legal access as well as with respect to the training of the leaders who, according to uses and customs, represent the 36 Guaraní communities based in the Original Community Territory of Itika Guasu.
The contract with Repsol Bolivia S.A. (and the other companies participating in the contract of operation) was concluded in 2010 and the companies who were party to it recognised the indigenous ownership of the TCO IG, the uses and customs of the peoples involved and furthermore, the liability for environmental damages. This agreement, for the first time in the history of this indigenous people, enabled them to be accorded valid legal recognition as well as formal guarantees that environmental damages would be remedied and that at expiry of the contract the land would be restored to its original state. At the same time, the agreement consolidated and guaranteed the largest gas exploitation in the Plurinational State for the lifetime of the contract of operation- estimated to be about 28 years (representing approximately 80% of total Bolivian production). [Detailed information is available online at http://www.derechos.org/nizkor/bolivia/infomain.html#repsol]
One of the consequences of this agreement was that the indigenous organization constituted the Itika Guasu Investment Fund which, as is known, entered into effect on 11th March 2011. Never Barrientos expressed it as follows: "This fund is the first of its kind in Bolivia and in Latin America and is part of our long-term financing strategy, which will allow us to progress in our own development. This guarantees our true autonomy and that of our children."
On 12th April 2011 the APG IG was formally notified by the Judgement Court of Entre Ríos of Constitutional Judgement 2003/2010-R of 25th October 2010, the content of which was commented on in detail on 20th April 2011 in a communiqué from the indigenous organization, entitled: "Declaration of the APG IG regarding Judgement 2003/2010-R of the Constitutional Court 25th October 2010", which clearly explains the legal strategy and its consequences.
This Constitutional Judgement is the first of its kind in Bolivia and touches on various key aspects of indigenous law, those being principally:
a) territory as one of the criteria for the definition of an indigenous people; and
b) the right to prior consultation under the constitutional body of laws
The Judgement orders as follows:
"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 [Law of the Constitutional Court], 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."
The obligation to comply with and execute a judgement of this nature is obvious but it has not been accepted by the government authorities of Tarija, and this fact is the basis for the conflict with the APG IG and for the claim recognised in its entirety by the ABC as a simple legal imperative.
On 2nd December 2013 the Judgement Court of Entre Ríos, in a decision concerning the obligation to perform the Constitutional Judgement stated: "That as Constitutional Judgements are of binding and obligatory character and given that the measures necessary for their performance should be adopted pursuant to art. 17 of Law nº 254, in exhorting all State organs and entities, it is hereby resolved..." [emphasis added]. And in substantiating the decision made in the judgement, the court thus made clear that the performance of constitutional judgements is obligatory in nature.
Notwithstanding all this doctrinal argument, the defence of Walter Ferrufino Gaite, the well-known Tarija lawyer, Doña Mónica Ugarte, denied this binding and obligatory nature on 2nd April 2013 in an oral hearing in the courts of Entre Ríos (Tarija), at the conclusion of which the indictment of the Departmental Executive Walter Ferrufino was confirmed, consistent with the charges brought by the prosecution and the prior petition of the Assembly of the Guarani People of Itika Guasu.
Prior free and informed consultation
The right to prior consultation is recognised in Law Nº 1257 of 11th July 1991 which incorporates into the Law of the Republic the ILO Convention nº 169 on Indigenous and Tribal Peoples in Independent Countries, promulgated by the then President Jaime Paz Zamora; and also in Law Nº 3760 by which the United Nations Declaration on the Rights of Indigenous Peoples was incorporated into the law of the Republic on 7th November 2007 promulgated by President Evo Morales Ayma. (This legislation was later amended in Law Nº 3897 of 26 June 2008).
Constitutional Judgement 2003/2010-R to which the APG IG was a party, upholds that the following is applicable:
... [T]he 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."
"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".
But more important still is the statement:
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."
These are the principles which the APG IG consider non-negotiable, given that they are of obligatory performance by any citizen and given that, in the case of the APG IG as a "party" to the Constitutional Judgement, there is an additional obligation to carry out the judgement under penalty of committing an illegal act.
These are also the principles recognised by the ABC at the beginning of the consultation in a letter dated 26th June 2013, signed by the Interim Executive President, Mr Antonio Mullisaca Díaz, and to which the President of the APG IG duly replied on 4th July 2013.
Following an exchange of letters, a meeting was fixed for 30th July 2013 at the headquarters of the APG IG in Guaye and in which, according to the relevant notarised minutes, the parties agreed the conditions for the prior consultation. The minutes were signed by the Regional Manager of the ABC and by Benildo Vaca as head of Natural Resources for the APG IG as well as by some of the other persons present at the meeting, such as Teófilo Murilllo, Guarani councillor in the Municipality of Entre Ríos, Jazmine Romero, lawyer for the ABC, Ernesto Loza, Coordinator for Social Movements for the ABC and Javier Romero, Coordinator with Social Movements of the Regional offices of ABC in Tarija.
The principal conditions were that ABC agreed to send all technical documentation in physical and digital format to the APG IG prior to 14th August 2013; that the APG IG would carry out the technical analysis within 15 days following the receipt of such documentation and that, in the technical meeting that followed, a date would be agreed to sign an agreement ratifying and validating all the agreements reached in the consultation process.
After various meetings and receipt of more extensive information, the expert appointed by the APG IG for these works, Henrry Guardia, prepared a final report to the authorities ( in accordance with uses and customs) of the organization and the result of the conclusions of this report were communicated to the ABC. This gave rise to some meetings at the headquarters of ABC in Tarija in the presence of technical and legal staff, from both the regional offices of Tarija and the National Directorate, as a result of which consensus was reached.
Finally, at the request of the Executive President of the ABC a meeting was held to ratify the agreements of prior, free and informed consultation at the Headquarters of the APG IG in Guaye on 13th November 2013. The authorities of the ABC, members of the Board of the APG IG, almost all of the communal Mburuvichas, members of the Council of Sages and technical and legal personnel of the indigenous organization were all present at the meeting.
In addition, participating as observers and witnesses were the Mayor of Guaye, Teodoro Suruguay and Teófilo Murillo, Guaraní councillor, given the existence of the "Inter-Institutional Agreement on the right to consultation" signed on 22nd March 2012 between the Municipal Autonomous Government of Entre Ríos and the APG IG.
The meeting for the ratification unanimously approved the agreements which were presented in detail by the President of the ABC, Mr Antonio Mullisaca Díaz, and the President of the Assembly of the Guaraní People of Itika Guasu, Never Barrientos.
The contract to ratify the agreements on the prior consultation process concerning the "Asphalting of the Entre Rios-Palos Blancos Highway" was notarized by the Public Notary of Entre Ríos, Jose Luis Sandoval, and the minutes were signed by Never Barrientos as President and Benildo Vaca as heads of the Projects Department for the APGIG and by Mr Antonio Mullisaca Díaz, Executive President and Marcelo Sosa Castellanos, Regional Manager Tarija, for the ABC.
Principal agreements reached
The main issue agreed in the contract is the recognition that the TCO IG is owned by the APG IG. This is a direct result of giving effect to the Constitutional Judgement 2003/2010-R, and thanks to that the original indigenous organisation of the APG IG gave its consent to the project.
The President of the ABC, Mr Antonio Mullisaca Díaz, explained these issues in a detailed and compelling way, and clarified the reason for the cancellation of the tender prepared by the Regional Government and SEDECA and for the fact that in the new tender process no other party was participating except for the ABC and the APG IG. Mr Antonio Mullisaca Díaz apologised for not having complied with the terms of the Judgement from the outset and made it very clear that as a public official he has no alternative but to comply with the same, and more so when the norms are established by the highest court of the Plurinational State, the Constitutional Court.
The legal solution proposed by the APG IG is to grant by contract an usufruct of the land necessary for the highway with the same criteria applied to the so called Chaco diversion road as were accepted by the Tarija Prefecture at the time. The draft of the said contract appears as an annex to the agreement and the contract agrees a term of 100 years, the price for the contract being 1 (one) boliviano per annum, that is to say, a price of 100 bolivianos at the 2014 value.
The ABC and the APG IG will form a team, each with the same number of representatives, to monitor compliance with the agreements reached.
Finally, as part of the mitigation for the environmental damages still to be determined, the tender offer will contain the construction of a multi-function complex with the objective of ensuring highway safety. The said complex will attend to the needs of the highway users and will offer rest and recreation areas, food and sanitary facilities as well as facilities for the treatment of solid residues which permit unloading in the said area.
This complex will be owned by the APG IG, and will be the first construction of its kind in Bolivia.
All this will be complemented by other subsidiary facilities which are within the competence of authorities other than the ABC and which will therefore be the object of joint applications between the APG IG and ABC before the appropriate authority. This includes an electronic weighing station for lorries and other vehicles, an alcohol measuring unit and a gas station. All of these are necessary legal conditions.
The contract also provides for a system of real time communications to co-ordinate traffic during the period of the works as well as a provisional and a final road marking system for the highway.
According to the ABC, this contract will serve as a model for addressing the problem of indigenous ownership and the right to consultation, particularly in the case of Original Community Territories.
For the APG IG it signifies the recognition by a State enterprise of the right to indigenous ownership and of the fact that roads of any kind within the TCO IG are part of that ownership and that community lands are of intangible nature.
It is therefore completely established that the objective of the APG IG is perfectly consistent with the defence of its legitimate and legal rights and that it has no illegitimate aim. In addition, it is clear that its principal claim is that of respect for constitutional law and indigenous rights.
By contrast, what is clear is that the campaign carried out by the Regional Government as well as by the local Sectional Executive and widely reproduced in the press and media of Tarija, is motivated by racism which has incited the violation of constitutional law and, further, that the assumptions made in that campaign were false.
[1 USD = 6.91000 BOB]
Radio Nizkor editorial desk, Charleroi and Guaye, 05 January 2014
DDHH en Bolivia
|This document has been published on 18Feb14 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.|