Commentary on the amendment to the Electoral Regime Law, the draft amendment of the Hydrocarbons Law and the right to prior consultation in the Constitution of Bolivia (CPE)
Radio Nizkor reports....
After having discredited them, weakened them and created divisions among them, Evo Morales began the process to open a dialogue with the indigenous communities from the lowlands, who are marching towards La Paz demanding respect for the right to consultation and full autonomy.
At approximately six o'clock in the morning of the 26th of June, Roberto Fernández, ex candidate for mayor of Santa Cruz for the Movement to Socialism party ("MAS"), arrived at the site where a contingent of protesters had spent the night in order to deliver them a letter from the Minister of Autonomy, Carlos Romero.
The letter dealt with the Government's proposal in response to the requests of the Bolivian Confederation of Indigenous Peoples (CIDOB), principally regarding the issue of autonomy. The letter also invited them to enter into discussions on that same afternoon at 4:00 P.M. in the city of Santa Cruz.
The president of the CIDOB, Adolfo Chávez, announced that the protesters would meet for the purpose of evaluating the Governmental proposal and would present a counter proposal to the delegate of the Executive Branch; nonetheless, he foresaw that the discussions should take place at the site of the protest so that the indigenous leaders would not have to go the capital of Santa Cruz.
The chancellor, David Choquehuanca, visited the members of parliament representing indigenous constituencies that had commenced a hunger strike the previous night in support of the march organized by the CIDOB and in protest of the decision made by the MAS parliamentary group to ignore their requests.
"We have exchanged views, I have come to listen to the concerns of our indigenous brothers and I will pass them on to the President so that he may initiate a dialogue", stated the leader of the Bolivian diplomatic corps, to whom indigenous members of parliament had presented their comments on the draft Electoral Regime Law .
Meanwhile, the member of parliament, Pedro Nuni, affirmed that the six members of parliament that had commenced a hunger strike the previous evening would continue with this extreme measure until the governing authorities addressed the demands of the protesters and the group of indigenous parliamentary members.
As part of the changes to be made to the Bolivian State structure to increase the representation of the lowlands and highlands communities, the indigenous members of parliament are demanding that the number of special seats in the Legislative Assembly (National Congress) be increased from seven to eighteen.
They also point out that the draft Electoral Regime Law, passed on June 26th by a majority in the Chamber of Deputies, restricts the right to consultation and participation of the original indigenous peoples and peasant communities in extraction projects.
The members of parliament representing indigenous communities reiterated once again their position that the Ministers of the Presidency and for Autonomy, Oscar Coca and Carlos Romero respectively, should publicly retract their accusations that the indigenous movement was being financed by the United States Agency for International Developmet (USAID).
President Evo Morales enacted a regulatory law that restricts the right of indigenous communities to be consulted or informed by the State prior to any exploitation of natural resources on their land.
The MAS government considers prior consultation to be a "waste of time" and an "obstacle" that impedes the accelerated growth in the mining and hydrocarbon industries, the pillars of the national development plan.
The Plurinational State of Bolivia adopts a form of government which is democratic, participative, representative and community.
Article 11 of the Constitution of Bolivia establishes that direct and participative democracy is exercised by means of referendums, popular legislative initiatives, revocation of mandate, deliberative assemblies and councils, and the prior consultation of indigenous peoples and communities with respect to the exploitation of natural resources on their land.
Article 30 of the CPE recognizes the right of original indigenous peoples and peasant communities "to be consulted through appropriate means, and particularly through their institutions each time a legislative or administrative measure is considered that could possibly affect them."
In addition to being a right that the State is obliged to respect and guarantee, the Magna Carta establishes that the prior consultation of original indigenous peoples and peasant communities is a mandatory procedure as a condition for the exploitation of non renewable natural resources.
Before beginning any extraction project, the State must in good faith and in cooperation with interested parties organize a free and informed prior consultation on the land inhabited by the affected parties, and respectful of their own norms and procedures. (Article 352)
Article 304 of the CPE specifies that "participation in, and development and execution of consultation mechanisms relating to the application of legislative, executive and administrative measures that affect them" are the exclusive jurisdiction of original indigenous peoples and peasant communities.
In summary, the right to prior consultation in a direct and participative democracy is very different from the right to political participation of a community democracy (of indigenous communities), by means of election, appointment or nomination of authorities and representatives, pursuant to the communities' own norms and procedures. (Article 11)
With this understanding, the Magna Carta establishes clearly that the Electoral Authority will supervise the electoral procedures of original indigenous peoples and peasant communities relating to community democracy (election, appointment and nomination of representatives) (Article 26), if and only if they are not subject to equal, universal, direct, secret, free and mandatory voting, and otherwise will ensure the strict compliance with the norms and procedures of the original indigenous people and peasant communities. (Article 211)
Nevertheless, these constitutional provisions have been weakened by the Law of the Plurinational Electoral Authority (OEP) that was approved on June 15th, 2010 by the Senate of the National Congress of Bolivia and enacted the following day, June 16th, by President Morales.
Article 6 of the new Electoral Law states that the jurisdiction of the OEP includes the "supervision of prior consultation processes and the observation and support of "community assemblies and councils."
Moreover, the departmental electoral tribunals, under the regulations of the Supreme Electoral Tribunal, have the obligation to present reports based on their supervision of the processes of prior consultation, and observation and support of community assemblies and councils. (Articles 38 and 39)
The problem with Evo Morales' government is that it has decided to give into the pressure exercised by Repsol Bolivia SA and other multinationals present in the region of the Bolivian Chaco because of the need to maintain and increase the production of gas, which has been suffering from investment delays of more than four years.
The source of these delays have nothing to do with the indigenous communities from the north of La Paz who are accused of having been financed by USAID, and this is simply because gas production is located in the area of the Chaco, where there are only indigenous Guarani communities, especially in the Original Community Territory (TCO), Itika Guasu, which has been in a long conflict with the Government and the multinationals, dating from at least 1997.
The delay in petroleum investments and, consequently, in the industrialization of gas, basically began with the collapse of the functional structure of YPFB SA, which was in turn caused by the arrest of its president, Santos Ramírez, and also of a number of the company's senior management in a corruption case.
Santos Ramírez, Evo Morales' successor-designate in the MAS, was charged with the assassination of Jorge O'Connor in January 2009, and for his involvement in a financial operation that allowed him to steal approximately 26 million dollars, which accusations are still under preliminary investigation.
This is simply an attempt to deny legal recognition to the Original Community Territories where there exist gas or petroleum resources, and to authorize YPFB SA to engage in pure and simple expropriation of indigenous lands and to limit the rights of way or rather the communication routes which the multinational oil companies consider necessary for exploitation operations, without consideration of the interests of the indigenous peoples and or of even minimal preventative measures for the protection of the environment.
There is a general opinion within the MAS, especially in the Ministry of Hydrocarbons and the management of YPFB, according to which the right to prior consultation of indigenous communities should be eliminated. The true intention is to eliminate any obstacle that may limit the activities of the multinationals. This is a case of deregulation of the sector that would allow the multinationals direct intervention through the non regulated control of YPFB SA.
In a letter presented to the President Evo Morales, the Itika Guasu Guarani People's Assembly (APG IG) stated that on April 28th, 2010, they received a letter from YPFB SA in which they were officially informed that this company did not recognize them legally and that the problems with oil companies were unilateral, pertaining only to the private sector; in other words, that YPFB would not offer APG IG any cooperation, or legal or operational assistance within the framework of the licences and Contracts of Operation currently in effect in the TCO Itika Guasu.
This policy was reinforced by a refusal to legally register the ownership of the TCO, as this prevented consolidation in legal terms of the community property of the TCO, property which in many cases has been recognised since the enactment of the Agrarian Reform Law in 1951.
Since then, there has been a gradual recognition of occupying landowners, who were authorized by the National Institute of Agrarian Reform (INRA) to register land in their name. In this way, the extent of the original lands within many TCOs has been reduced de facto by more than 40 percent, notwithstanding that none of the land registrations have complied with the conditions stipulated in Bolivian law since 1951.
In reality, this is a process of deliberate destruction of the TCOs, reinforced by the refusal to legally recognize the communities who live in them.
In their letter to President Morales, the APG Itika Guasu also reported that in 2007 they were victims of an attempt of fraud by Repsol Spain SA which they had communicated at the time to the Minister of Hydrocarbons and the Vice President of the Plurinational State but that neither of them had deigned to reply to the demands of the 36 indigenous communities which make up the APG Itika Guasu. Indeed the exploitation operations in the normal - but completely illegal - way continued.
In the same letter,the APG IG explained that there had been another failed attempt at negotiation by YPF SA personnel who appeared as representatives of Repsol YPF E&P Bolivia SA, notwithstanding that as of the date of the APGIG's letter, they had not produced any powers of attorney to evidence such representation despite a request to do so by the APGIG's legal department; nor had they had ever produced a legally reliable response in writing.
This fact provoked a harsh response from the APG IG to Repsol YPF E&P Bolivia SA last June 12th, 2010, in which, among other issues, the indigenous organization declared "A negotiation takes place between two parties that have independent and separate legal personality and therefore it must scrupulously respect the principle of legal equality between the parties. The "agreement proposal" that you have prepared for us violates this principle and submits our organization to a form of "legal guardianship" not envisaged by law, nor by custom and, which we could consider racist."
Although, Repsol YPF E&P Bolivia SA has not until now responded to the aforementioned letter, it notified APG IG on July 16th, 2010 that two employees had been granted powers of attorney which, according to the APG IG spokesperson, have been sent to an expert for verification since there are reasonable doubts as to whether they comply with the principles of good faith and legality.
This is the first appointment as regards the negotiations with the APG IG carried out by Repsol YPF E&P Bolivia SA since Repsol España SA began activities in Bolivia and it may represent progress provided always that the company acts according to the principle of good faith, given that until now this has not occurred.
The company granted powers of attorney to Mauricio Mariaca Álvarez and Elizabeth Betty Abette Yllescas, although the APG IG spokesperson explains that, to his surprise, these individuals have very limited powers given that it is Roberto Alfredo Dominguez, who appears as the legal representative of Repsol YPF E&P Bolivia SA, and who would have to give prior and express authorization to any agreement or contract. This is the reason why APG IG decided to investigate whether these powers are acceptable for the indigenous organization, independently of their legal effect.
The problem of the APG Itika Guasu is a result of the existence of the megafield Margarita on their land, and, because of this, the multinational companies and the Bolivian Government have decided not to recognize them legally and not to grant them any kind of benefit.
These communities are merely subsisting, without even minimal sanitation services, a situation which will condemn them to extinction within a period of 10 to 15 years.
In addition to the amendment to and the limitation of the right to consultation by means of the blatantly irregular Electoral Law, the draft amendment of the Law 3058 in its second version of November 2009 goes much further in pursuit of the practical elimination of the right to consultation, and even guarantees the YPFB the right to expropriation.
This bill eliminates from the Hydrocarbons Law the recognition of the Original Community Territories (TCO) and even facilitates the non- recognition in law of the indigenous communities directly affected.
The aim of the employees of the Ministry of Hydrocarbons and the YPFB is to reach general agreements, without any practical application, with national associations such as the National APG, thereby ignoring the communities who own the relevant ancestral lands and avoiding any specific discussions regarding indigenous rights.
This proposed amendment to the Hydrocarbons Law, as it stands now in the draft of the Ministry of Hydrocarbons, would create an obvious reversal in indigenous rights, which up until now have been merely declaratory without any practical application.
The staff of the YPFB led by Carlos Villegas, eminent theorist of deregulation in this sector, do not bear in mind that the neoliberal amendments of the Hydrocarbons Law cannot be applied retroactively, for which reason the legal conflict in the long term does not have a solution given that the non-compliance with the applicable law and regulation by the multinational companies, the government and YPFB SA, insofar as it concerns the indigenous communities, has been continuous and systematic in all operations of gas exploration.
The government is attempting to exploit hydrocarbons in the north of La Paz for the purpose of making money and "building roads, generating petrochemicals, industry, improving the health and education of the people", but certain NGOs are stirring up the indigenous communities of the region and are blocking the "progress of the country using as an excuse the protection of the environment", complained the Vice President Alvaro García Linera a few days ago.
According to the vice ministry of Governmental Coordination, Wilfedo Chávez, the indigenous leaders block extraction projects because of European and American NGOs with dubious interests. The international right-wing, headed by the U.S. and its operating agencies infiltrate into social organizations in order to generate forces to destabilize Bolivia's democracy, President Morales reported last Saturday.
The right to prior consultation, recognized by international treaties and by the Magna Carta, is absolutely guaranteed by the State; nonetheless, this right has been wrongly interpreted and must be regulated by law, stated the Vice Minister Chávez during an interview with Erbol.
"Because of bad management of the consultation issue, those channels must be closed and in their place a procedure of prior consultation for the peoples will be established on the basis of a community democracy", explained Chávez.
Article 25 of the new Electoral Law establishes that it is the competence of the Supreme Electoral Tribunal to register, by direct consultation, the norms and procedures of original indigenous peoples and peasant communities , and to verify the respect for the principle of equivalency and the criteria of equality and alternance between men and women.
Therefore, as of now, indigenous communities must report on the mandatory process of prior consultation so that this process becomes verified and legalized by the Law of the Plurinational Electoral Branch (OEP).
Pursuant to Article 4 of the Electoral Law, a principle of mandatory compliance that governs the nature, organization and functioning of the OEP is "interculturality", defined as the recognition, expression and coexistence of cultural, institutional, regulatory and linguistic diversity, and the exercise of individual and collective rights guaranteed by the Constitution, as part of a society based on respect and equality between everyone, to live well.
This principle makes reference to the respectful integration between cultures such that no cultural group prevails over others, promoting at all times the integration and coexistence between cultures.
Chávez announced that in the processes of prior consultation, the rights of the State as guaranteed by the Constitution would certainly be taken into consideration. This means that while indigenous rights willl be recognised and respected, the rights of the society and economic interests of the State will take preference.
For further information on human rights in Bolivia you can visit Equipo Nizkor's documentation website, where you can find a specialized web page on this country
This program has been brought to you with information from news agencies Erbol and Bolpress of La Paz, Bolivia along with information coming directly from the Assembly of the Guarani People of Itika Guasu, from Entre Ríos, Bolivian Chaco and have been produced originally in Spanish in our studios in Belgium on July 18th, 2010.
Documentation Note: This program has been translated into English by Equipo Nizkor on October 27th, 2010 from its original Spanish version dated July 18th, 2010.
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