In February, after a legal battle lasting nearly two decades, little-known indigenous communities in Ecuador’s Amazon region won a multi-billion dollar landmark ruling against the oil giant Chevron. The company was accused of polluting a large part of the Amazon basin by dumping billions of litres of chemical-laden materials, which campaigners said destroyed crops, killed livestock and increased cancer rates among the local population.
The oil firm is appealing the ruling, so the indigenous population and other residents affected by the years of environmental damage may never see a cent from Chevron for the clean-up of their lands. Yet, whatever the outcome, it is rare for indigenous people in Latin America to be awarded compensation for damage to their ancestral lands. From northern Mexico to the southern tip of Chile, it’s more usual for commercial interests to get their own way when it comes to development projects affecting indigenous people or their territories.
In Brazil, for instance, the construction of the Belo Monte dam, which will flood a huge area, is going ahead even though it will force the displacement of indigenous Amazon tribes, threatening their very survival. In Guatemala, gold extraction at the Marlin mine continues despite an international ruling calling for the suspension of mining operations, and regardless of the fact that the resulting pollution is detrimental to the health of the surrounding indigenous Maya communities.
Against the wider backdrop of a struggle that pits the ancestral owners of untapped natural resources against greedy governments and corporations, Peru‘s new law on the right of indigenous people to prior consultation may set a regional precedent in avoiding lengthy legal battles and, more importantly, in the prevention and reduction of social conflicts.
Getting to the law has not been easy. In June 2009, more than 30 police officers and indigenous protesters were killed in Bagua, in the Peruvian Amazon, after months of demonstrations over the sale of rainforest for oil and mining exploitation turned violent. The deadly clashes in Bagua prompted the Peruvian congress to grant indigenous people the right to prior consultation on legislation or infrastructure projects that would affect them or their territories. But it wasn’t until Ollanta Humala became president two years later that the bill finally became law.
The bill was signed on Tuesday in the town of Imacita, in Bagua province itself. Afterwards, Humala dismissed the reasoning behind his predecessor’s veto. Alan García had argued that foreign investment in indigenous land was needed for Peru’s economic growth; the mining sector represented some 60% of the country’s exports last year. Instead, Humala told state TV that the new legislation would “strengthen investment” because the government would be able to use consultations to reduce the risk of social conflicts that drive investors away.
The Inter-American Court of Human Rights praised Peru for finally complying with its international obligations and catching up with the rest of the region. But for Carla García Zendejas, from the Washington-based Due Process of Law Foundation, Peru’s new law goes further in its regional accomplishment. “It marks an important moment for Latin America,” she says. “The hope is that other countries will follow [in Peru’s footsteps].”
All Latin American countries with considerable indigenous populations are signatories of International Labour Organisation Convention 169, which recognises tribal people’s land ownership rights and envisages the right to prior consultation. But Peru is “the first [nation] to fully implement the language of the ILO convention,” continues García Zendejas, who believes this is an important precedent as “some countries think it’s not necessary [to have a law] because they have signed international treaties”. It’s the absence of mandatory national legislation that makes politicians believe they can “still push forward development projects without consultation”, in disregard of their countries’ international obligations, says García Zendejas.
The need for Peruvian-style legislation has most recently become evident in neighbouring Bolivia, where the language used in its constitution in recognition of the right to prior consultation is vague and subject to interpretation. Indigenous people believe that being consulted implies having the right to veto. But the Bolivian government argues consultations are not binding, and has pushed ahead with the construction of a controversial highway without seeking the approval of locals. As a result, indigenous people from the lowlands have been marching since mid-August in protest at the government plan, saying their constitutional right is not being respected.
Peru does now have a law with more precise language than Bolivia, but the legislation follows the argument of the Bolivian government nevertheless; it gives the state, and not indigenous people, the right to make the final decision if a dispute arises. It may have succeeded in greatly reducing the likelihood of another Bagua. But the law does not eliminate the risk of social conflicts altogether: the government and indigenous people could clash again if they find themselves unable to compromise after having carried out consultations in good faith. Like his Bolivian counterpart, Evo Morales, Humala may come to realise that adopting a consultative approach to government is not necessarily easier. Across the continent, meanwhile, indigenous people, governments and corporations alike will be watching how Peru fares.