Note: This is (hopefully) now a historical correction. This is assuming that the Morales government carries through its October 21 promise to prohibit any highway through TIPNIS. The misrepresentations of the Morales government on this issue (see below), however, suggest interested journalists and supporters of TIPNIS should stay tuned until the new legislation is finalized. Additionally, the Eighth Indigenous March has fifteen other points of demand, which are currently under negotiations with the Morales government. For comprehensive background on the issue see this briefing paper on the arrival of the march to La Paz (written October 16) and past articles on this blog. Happily, the English-language press has sent some impressive on-the-ground journalists who are covering this, alongside consistent bloggers like Dario Kenner. — CBJ, 21 October

Legislation passed by the Bolivian Chambers of Deputies and under consideration by the Bolivian Senate will not resolve the ongoing conflict over the proposed highway through Isiboro Sécure Indigenous Territory and National Park (TIPNIS). The indigenous communities of the territory, joined by the Confederation of Indigenous Peoples of Bolivia (CIDOB) and the highland National Confederation of Ayllus and Markas of Qollasuyu (CONAMAQ) have led a 59-day protest march in opposition to the proposed Villa Tunari–San Ignacio de Moxos highway, which would split the territory and accelerate already significant deforestation. The legislation, like prior government proposals, will not allow the indigenous people of the territory to freely choose the location or the absence of the road, as required by international standards. Nor will the law stop construction on the other two segments of the road, making the final segment a possible fait accompli.

Update, Thursday October 13: The executive branch has weighed in today. Evo Morales, speaking at the fulfillment an international business deal with a Chinese company, unequivocally said that the consultation will be non-binding, in the case of the highway and many other natural resources issues “of state concern.” As reported by the community radio network Erbol, Evo stated:

They ask that the consultation be binding, it’s impossible, that is non-negotiable. Prior consultations, consultations are always guaranteed by the Constitution and by international norms. We will always respect [consultation], but for a group of families to say to us, “Don’t do this,” would mean to paralyze our projects in the electrical and hydrocarbon sectors, and to paralyze our industries.

There are some matters that cannot be negotiated because it is a question of state, it is a question of the Bolivian people. [translation mine]

Nos piden que la consulta tenga carácter vinculante, (eso) es imposible, eso no se puede negociar, las consultas previas, las consultas siempre están garantizadas por la Constitución y por las normas internacionales, siempre vamos a respetar (la consulta), pero que un grupo de familias nos diga que no se haga (eso) significa paralizar todas nuestras obras en el sector eléctrico, en el sector hidrocarburífero, nuestras industrias.

Hay temas que no se pueden negociar porque es una cuestión de Estado, es del pueblo boliviano.

Evo Morales was not the executive official to weigh in today. Foreign Minister David Choquehuanca, widely regarded as the figure who urged Evo to retreat on the gasolinazo in December 2010, also spoke out.

Journalist: If they say they don’t want the highway, will that be accepted?

Choquehuanca: That’s it, that’s it. Otherwise, why are what are we doing the consulatation for?

Journalist: So, it will be binding?

Choquehuanca: It must be.

Morales’ statement came hours after Choquehuanca, and he continues to lead the government, so there is no doubt that Evo’s is the official position. However, Choquehuanca continues to be a crucial moral compass for the MAS government.

Note: This fact check is necessary in part because some English-language media (e.g., AFP) uncritically repeated the government’s spin that the road project has been stopped or suspended.

Government Proposal for Consultation Will Be Non-Binding

Legislators from the governing Movement towards Socialism (MAS) are currently advancing legislation on the TIPNIS conflict. While, some of them have claimed this legislation reflects the demands of the Eighth National Indigenous March, a delegation of MAS legislators failed to reach agreement with the marchers or indigenous deputies. On the night of October 8, after nine hours of debate, the Bolivian Chamber of Deputies passed the modified MAS proposal. It requires Senate approval and Presidential signing to become law. The modified MAS proposal does the following:

• Suspends construction on Segment 2 pending “free, prior and informed consultation of the TIPNIS indigenous peoples, respecting their own norms and procedures in the framework of the Constitution,” ILO Convention 169, and the UN Declaration on the Rights of Indigenous Peoples.
• Authorizes a study of alternatives for the Villa Tunari–San Ignacio de Moxos highway, with alternatives required to “guarantee the rights of indigenous peoples in their territory and the ecological equilibrium of TIPNIS.” (Relevant text appears here)

The indigenous march, and six indigenous deputies who represent lowland indigenous communities have raised several objections to this legislation (see after the jump). However, it has now come to light that the consultation process will not be binding; that is, the repeated indigenous opposition to the project, stated since 2003, may be ignored by the government under the law. Three MAS legislators—Deputy Ingrid Loreto (who helped to draft it), Deputy Emiliana Aiza, and Senator Rhina Aguirre—stated to the press (La Paz daily La Razón) that the legislated consultation does not require the government to carry out its results.

A binding process, rather than mere consultation, is the requirement of the UN Declaration on the Rights of Indigenous Peoples, which the government of Evo Morales incorporated into its national laws. Article 32 of the Declaration states in part, “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources.” A recent letter from sixty-one organizations from five continents to President Evo Morales also urged, “We support a free and binding consultation process for the Villa Tunari–San Ignacio de Moxos highway and the right of the indigenous people of TIPNIS to say no to this development within the Territory and National Park.” Likewise, an online petition with nearly 500,000 signatures (from Avaaz) calls for a “binding and inclusive” consultation.

Construction continues on the highway

Meanwhile, construction continues on Segments 1 and 3 of the Villa Tunari–San Ignacio de Moxos highway. The Cochabamba daily Los Tiempos also reports that a bridge from Isinuta (the endpoint of Segment 1) and Puerto Patiño, the first step in Segment 2 inside TIPNIS, is being prepared. The promise of Evo Morales, made in the wake of the September 25 police attack on the march, to suspend construction only applies to Segment 2. The same would be true of the suspension under the proposed legislation. However, as can be seen in the accompanying map, Segment 2 between Isinuta and Monte Grande would have to cross through TIPNIS if the other two segments are built as planned.

Map and other indigenous concerns about the law follow…

Indigenous Objections to the Draft Law

Indigenous deputies released a letter to the Chamber stating their objections to the proposed law. These include:

• Including a lesser level of legal protection for TIPNIS than in the indigenous draft
• Failure to recognize the Subcentral TIPNIS as holder of title for the territory and as representative of its indigenous peoples, and failure to include “this organic structure of the TIPNIS communities” in the “elaboration, execution, and fulfillment of a an integral plan for sociocultural protection and sustainable development” proposed in the legislation.
• Failure to affirm that the highway should not cross TIPNIS
• The process of consultation proposed fails to meet the conditions of being “prior, free and informed, agreed upon [with the communities involved], and in good faith from the beginning.” The consultation “should have been done legislatively before approving the contract between the State and OAS [the construction contractor], and before the elaboration of a strategic environmental study.”
• The goal of consultation is to “achieve consensus on Segment II, when the March has critiqued the project in its integral totality, and if a new alternative would throw out the possibility of a new segment … this would imply modifying Segments I and III.”
• Doubt about the willingness of the government to carry out its constitutional and international obligations to comply with consultation when it has failed to do so in other instances.