Dario Kenner, La Paz
[Senator Adolfo Mendoza is a member of the Movement Towards Socialism (MAS) party led by President Evo Morales. He played a pivotal role in drafting the law suspending construction of the road through the TIPNIS. This law was approved in the senate yesterday. Bolivia Diary analysis on content of the law – Dario Kenner]
What does the approval of this law mean?
There was the need to establish a law because dialogue between the indigenous march and the executive branch was not working. The Plurinational Legislative Assembly and the indigenous march proposed draft laws. Work began between the indigenous deputies (such as Bienvenido Zacu) and MAS parliamentarians. Five out of the six articles from the indigenous marcher’s proposal are included in the approved law (still to be enacted by President Evo Morales). This was a consensus law for three reasons. Firstly, we agreed to use the indigenous march proposal as the basis for the law. Secondly, the proposal from the executive branch was rejected. Thirdly, the proposed referendum was rejected (see this article explaining why this is important). The only Article there was no consensus on was the one dealing with the suspension of the road.
This law proposes what should always have been done which is respect of the right to consultation of the owners of the territory. No one else can decide apart from the Mojeños, Yuracarés and Chimanes peoples who live inside the TIPNIS. There are several other provisions in the law such as preventing illegal settlements and a comprehensive management plan of the TIPNIS national park. (explained here)Is this law a solution to the TIPNIS conflict?
I don´t think this is a solution because some of the leaders at the indigenous march have rejected it. It opens up the possibility for a dialogue and eventual solution.
What is strange is that some leaders at the indigenous march such as Rafael Quispe (key leader in indigenous movement CONAMAQ – see his views here) who are not from the TIPNIS reject this proposal to begin a process of free, prior and informed consultation. This is very bad for the Mojeños, Yuracarés and Chimanes.
The press are distorting the issue of whether the consultation is binding or not. This is a false discussion for several evident reasons. The Bolivian Constitution and international norms say indigenous peoples have the right to be consulted by the state. So free, prior and informed consultation is to reach an agreement that does not violate the rights of indigenous peoples. So it is arbitrary to discuss if it is binding or not. The word binding is not in the Bolivian Constitution, ILO Convention 169 or the UN Declaration on the Rights of Indigenous Peoples.
Like all roads lead to Rome, all the paths to solve this conflict are through consultation.
Pagina Siete (Bolivian newspaper) has distorted what President Evo Morales said yesterday (the newspaperreported Morales as saying consultation would not be binding). What he was actually talking about was the case put before international courts between Saramaka and the state of Surinam that is an emblematic case on prior consultation.
[The question of whether the consultation is binding or not is still not clear. For example this afternoon Bolivian Vice President Álvaro García Linera said the government would respect and guarantee the decision the result of the prior consultation with the indigenous peoples of the TIPNIS]
How can the consultation be prior if work has already begun on the road?
There are some important things to get across here. On 23 September 2011 the United Nations representative in Bolivia said in relation to the TIPNIS issue that it would be convenient to stop road building and do prior consultation. On 28 September 2011 James Anaya, Special Rapporteur on the Rights of Indigenous People on Indigenous Issues, said from Geneva that the way to solve the TIPNIS issue was to do prior consultation. The spirit of this law is to open the process of prior consultation.
The entire road does not go through the TIPNIS indigenous territory. There are two key elements. Two of the sections do not pass through the TIPNIS. The first section between Villa Tunari and Isinuta already exists; it does not touch the TIPNIS. TIPNIS has a boundary but it is not that where the boundary ends it is the moon or some imaginary place, it is part of Bolivia. If the state decided to build a road that was within 1 kilometre of the national park it would still affect it.In the contract between the Bolivian Highway Authority and Brazilian company OAS it does not mention three sections, just one road. Can you explain this?
The contract with OAS has three sub-credits. Sub-credit A refers to the initial operations. Sub-credit B refers to the first and third sections. Sub-credit C refers to the second section. There is no final design for this second section and road building has not begun.
If there is no final design for the second section how can there be a calculation for the entire distance of the road and total cost?
How was the cost calculated? This was done through technical studies and based on comparing costs of other roads. OAS (Brazilian company building the road) has a proposal for the second section but there is no final design. There are several proposals on the table including going through the middle of the national park and on its borders. Another option would be to build a via-duct 55 kilometres long between Ichoa and Santo Domingo. The sub-credit C will not be disbursed until there is a final design and the results of the consultation.
Republished from Bolivia Diary