The failure to consult triggers indigenous creativity

Delhi, India – So much for trusting states with prior consultation. It was the hope of UN Special Rapporteur on the rights of indigenous peoples, James Anaya, when he reported on the “catastrophic impact of extractive industries on the social, cultural, and economic rights of indigenous peoples” a year ago.

But as tensions escalate over dams and drilling, indigenous voices from Asia to the Americas proclaim that “your consulting is insulting”, making efforts to establish relations of confidence between their peoples and nation-states seem either foolish or delusional, or both.

Too often governments simply ignore consultation procedures, misinform communities, or claim that consultation does not imply negotiation. Indigenous communities, in return, racket up mobilisation, provoking angered governments to repress peaceful protest or to declare states of emergency.

The trend is increasingly for indigenous communities to systematically invoke international treaties requiring prior consultation to pressure their governments, who in turn merrily continue to violate their legal commitments.

It seems that one can always count on states using their sovereign powers to shun what they perceive to be undesired mechanisms of accountability.

Fortunately, one can also count on the persistent inventiveness of indigenous struggles to find alternatives to the normal channels preferred by nation-states.

Legal loopholes to prior consultation

Whether it is when drilling for oil in the arctic, building dams in the Indian Himalayas, or mining in Guatemala, governments typically want indigenous peoples out of the way.

Many nation-states have recognised Convention 169 of the International Labour Organisation (1989) and ratified the 2007 UN Declaration on the Rights of Indigenous Peoples, which guarantees indigenous rights to participate in development projects affecting their land. Article 19 is unequivocal regarding the obligation of states to consult communities to seek their “free, prior, informed consent”. Yet more often than not, legal commitments evaporate all too easily under the pressure of economic or corporate interests. 

Never mind that international law overrides domestic legislation, as UN member states unanimously agreed in the 1993 Vienna Declaration, or that in many countries, such as Peru, laws on prior consultation have begun to be incorporated in constitutional law as protected as indigenous rights might be in theory, their reality is much bleaker.

States frequently take advantage of loopholes such as the difficulty of defining who counts as indigenous to ignore claims. If communities who contest development projects do not meet the state’s own technical definitions, they may not to be consulted.

This has occurred in the case of La Jagua in Colombia.

The 400-years old community maintains to this day traditional carving, farming, and weaving practices, as well as local sacred areas and petroglyphs.

Yet as far as the government is concerned, they are peasants, not indigenous, which means they are not to be consulted regarding any of the nine hydroelectric plants being developed in El Huila.

One of the latest tactics deployed by governments to bypass indigenous contestation is to consult non-native indigenous communities. This happened to communities in the case of the road project through Bolivia’s Isiboro Sécure National Park and Indigenous Territory (TIPNIS).

International pressure built up after Evo Morales’ government violently repressed a large indigenous march against a road project in “the massacre of Chaparina”. This massacre remains unpunished, but the UN required prior consultation to be respected. This prompted the government to offer last-minute investments in schools to win local support for the road project.

But it also involved a focus on non-native communities that had recently migrated from the Andes to the lowlands – and were therefore less protective of TIPNIS territory. Technically, the government complied with its obligation to consult. In practice, however, it emphasised the votes of non-native indigenous groups who have been in conflict with native TIPNIS communities for encroaching on their lands.

The same tactic of consulting migrant indigenous groups not native to protected territories is also taking place further north. In the Ecuadorian Amazon, for example, the Zapara people are actively resisting oil drilling and the granting of carbon credits based on their territories. While leaders like Gloria Ushigua, from the Zapara Women’s association, are threatened for their outspoken stands, non-Zapara groups who have recently migrated to the area – and are less sensitive, if not oblivious, to the impact of the proposed projects – are being consulted.

Turning indigeneity upside down, governments prefer to consult non-native communities that are more likely to turn a blind eye to the impact of favoured megaprojects.

When conflicts build up, governments practice coerced consultation, refusing to negotiate the outcome of the vote. In TIPNIS, Bolivia’s government undermined native votes opposed to the road project by expanding the consultation process to non-native communities. The strategy consisted in diluting opposition by creating a majority vote, indigenous but not native, supportive to the project, to overwhelm the native opposition.

Such consultation practices are not designed to seek consent but to comply with the formalities of international law – and clear the way for construction not to be interrupted.

So who is to be consulted? Many groups are excluded for not being indigenous enough, whereas dissident voices are diluted among non-native votes, at times coerced to participate in fraudulent consultations intended to keep a facade of compliance.

Indigenous inventiveness at play

Indigenous reactions to such abuses are blossoming in myriad ways, whether it entails delaying fraudulent consultation, resorting to alternative international tribunals, or inventing home-grown community mechanisms. In TIPNIS, indigenous resistance has focused on impeding consultation to take place to block the process. To prevent the Bolivian state from completing a consultation based on a majority instead of agreement, some protesters blocked roads to impede government officials from entering their communities. Since the legality of the road project depends on prior consultation, by delaying consultation indigenous communities are in effect delaying the completion of the road project through their territories.

In the Mexican state of Jalisco, nine indigenous communities have resorted to the Permanent People’s Tribunal (PPT), an international ethical tribunal founded in 1979 to try crimes against humanity. They are protesting El Zapotillo dam, now under construction, claiming it will submerge indigenous towns like Temacapulín as well as sacred burial sites, the Verde River, and 14 centuries of cultural tradition.

A jury composed of local and international experts, notably former UN Special Rapporteur Miloon Kothari, from India, heard the testimonies of nine communities. The PPT condemned the Mexican federal government for deliberate disinformation and consistently failing to consult. Its verdict may be non-binding, but the PPT’s call to cancel all hydropower megaprojects carries a strong moral legitimacy. It gives international credibility to local struggles, documenting the illegality of state procedures, from technical mischief to judicial violations.

Going beyond ad hoc tribunals, indigenous communities defending the waters of Kimsacocha against mining in Ecuador went a step further by revamping the mechanisms of consultation altogether. When mining concessions were granted without prior consultation in 2001, indigenous mobilisation took the streets, accompanied by recurrent governmental repression – from police brutality to military control over drinking water, and the arrest of water defendants on charges of terrorism.

Disillusioned by a decade of broken promises, in 2011 communities in Tarqui and Victoria del Portete took consultation into their own hands. A “community consultation” brought together 13 communities, with over 92 percent of the votes cast against large-scale mining. Community organisers invited local government officials, NGOs and international institutions to observe the transparency of the process, but the government denied its validity.

This community-led consultation provided a platform for indigenous voices, and will likely become an internationally acclaimed “best-practice” inspiring other initiatives elsewhere. This locally-controlled consultation was particularly innovative in that it was completely autonomous from the government, combining international law with indigenous customary practice to relocate consultation outside the state.

One would think that governments should know better by now. Know that prior consultation is about expanded governance and negotiation, not majority votes. Know that to be truly plurinational, states must make room for a plurality of mechanisms of governance, adopting processes of decision-making conceived beyond governmental control. Know that indigenous resistance is not only tireless, but has always been crucial to reinventing politics.

Manuela Picq has just completed her time as a visiting professor and research fellow at Amherst College.