Flawed implementation

Latin America has been experiencing a resource boom in recent years. Since the 1990s, commodity exports have been rising, and since 2000, foreign investments in these industries have been growing too. Resource exploitation often takes place in areas inhabited by indigenous peoples (see article by Sheila Mysorekar). In the 1990s, governments increasingly began to acknowledge their rights, especially after the ILO adopted its convention no. 169, that deals with the rights of indigenous and tribal peoples, in 1991. So far, 15 Latin-American countries have ratified the convention.

The right to prior and informed consultation is crucial. The German Institute of Global and Area Studies (GIGA) assesses its implementation in its recent study „Rohstoffabbau in Lateinamerika: Fehlende Bürgerbeteiligung schürt Konflikte“ (Resource exploitation in Latin America: Lack of civic participation in decision making fuels conflicts). According to the ILO convention, governments must consult indigenous groups who will be affected by laws or projects prior to their adoption or implementation. This right is stronger than that of local non-indigenous people who also must be informed about major projects, but need not be involved to the same extent.

Consultation with indigenous groups is meant to uncover risks of human-rights violations, draw attention to local concerns, and result in solutions that are acceptable to all parties. Such consultations should have impacts on the design, implementation and control of project, and they should lead to affected groups benefitting from the expected gains. Environmental protection and maintenance of biodiversity are meant to matter too.

However, the GIGA authors found major flaws in the implementation of the participation laws. Latin-American governments tend to ignore them, and so do private-sector corporations. According to the study, consultations either don’t take place at all or too late. Sometimes they are rushed through, and sometimes only insufficient information is given.

The authors criticise the indigenous groups too and state they use consultations primarily in order to get the highest compensations possible. Human rights and the environment come second, according to the GIGA scholars. The study identifies three main reasons for the deficiencies of the current form of participation:

• Due to extreme power differences between the state and big companies on one side and indigenous organisations on the other, balanced dialogue is almost impossible.
• Serious compromise and equitable solutions are not the real goals of governmental and corporate players. They do not take seriously the concerns and suggestions of consulted groups.
• Governmental institutions lack the political will and independence to strike a fair balance between economic interests and social, cultural and ecological ones.

In many Latin-American countries, the lack or failure of participation processes fuels conflicts, triggering protests that often lead to violence. Peru’s parliament adopted the prior consultation law in 2011. Since then, dozens of people have died in resource conflicts. The example shows that, in practice, a legal right does not necessarily protect indigenous rights. On the contrary, flawed participation processes bear the risk of further marginalisation of already marginalised groups. Thus, positions are likely to harden and conflicts escalate, the study warns.

Katja Dombrowski

Links:
GIGA-Study (only in German):
https://www.giga-hamburg.de/de/publication/rohstoffabbau-in-lateinamerika-fehlende-b%c3%bcrgerbeteiligung-sch%c3%bcrt-konflikte

Environmental justice atlas:
http://ejatlas.org