Following the arrival of the CONISUR march in La Paz, the governing MAS party shifted its public position towards being an arbiter between indigenous groups in TIPNIS. After welcoming CONISUR march, President Evo Morales and MAS legislative leaders backed away from CONISUR’s proposal to simply revoke Law 180 protecting TIPNIS. Instead, they coalesced around a new legislative initiative: a “prior consultation” law on the issue.

Prior consultation is a fundamental principle of indigenous rights, and an important part of the environmental review process. In the case of the Villa Tunari–San Ignacio de Moxos Highway, currently under construction, consultation with indigenous communities has been anything but prior. Indeed, no consultation was pursued at all on Segments I and III of the highway, despite some complaints from the Multiethnic Indigenous Territory I, which is crossed by Segment III. Negative environmental reviews were avoided by the firing of Vice-Minister of the Environmental Juan Pablo Ramos in 2010, and the official responsible for TIPNIS in the National Protected Area Service, Vladimir Ortolini, in October 2011.

Now with Segments I, III, and a small portion of Segment II under construction, the government proposes a public consulatation with indigenous peoples inside of TIPNIS. The consultation is to be authorized under a new law, which has already passed the Senate and has been reviewed without change by the Chamber of Deputies’ Constitution Committee. The consultation will be organized by the independent electoral branch of the Bolivian government, be conducted under the norms and procedures of indigenous governance, and take place in five languages. The issues at hand are:

• “Consideration and definition of whether the Isiboro Sécure Indigenous Territory and National Park is an intangible zone, and about the construction of the Villa Tunari – San Ignacio de Moxos highway.” Consideración y definición sobre si el Territorio Indígena y Parque Nacional Isiboro Sécure – TIPNIS, es zona intangible o no, y sobre la construcción de la carretera Villa Tunari – San Ignacio de Moxos;

• “Consideration and decision concerning the safeguard measures for protecting the Isiboro Sécure Indigenous Territory and National Park, as well as those measures to prohibit and remove immediately illegal settlements within the demarcating line, and to determine the measures to maintain the zoning specified in the TIPNIS management plan.” Consideración y decisión sobre las medidas de salvaguarda para la protección del Territorio Indígena y Parque Nacional Isiboro Sécure – TIPNIS, así como las destinadas a la prohibición y desalojo inmediato de asentamientos ilegales, dentro de lal ínea demarcatoria, y determinar los mecanismos para mantener la zonificación establecida en el Plan de Manejo del TIPNIS.

In effect, this gives TIPNIS indigenous communities, from the Subcentral and CONISUR a round of consultation, lasting up to 120 days. There have been no statements offering to suspend construction during this time. These issues are precisely those addressed by last October’s Law 180, and agreed between the Subcentral and the government in late November. Apparently, that agreement will go unimplemented.

Evaluations of the law

The proposed consultation has been widely critiqued for its timing, which clearly is not prior to the project in question. The Andean Information Network argues that this model for consultation is “potentially viable,” but comes too late for TIPNIS where “it is improbable that this initiative will alleviate tensions or resolve protracted friction.”

The Subcentral TIPNIS and CIDOB are not impressed by this new consultation, and are preparing to re-mobilize should it pass. Yolanda Herrera, president of the Permanent Assembly for Human Rights in Bolivia; the Bolivian Forum on the Enviornment; and Adolfo Moye of the Subcentral have all spoken out against the proposed law. Human Rights Ombudsman Rolando Villena warned that the “unilateral” drafting of the law would “increase the resulting divisions within the lowland indigenous movement and affect its unity and strength, as well as [unleash] a series of probable conflicts at the national level” “aumentar los eventuales desencuentros al interior del movimiento indígena de tierras bajas y afectar su unidad y fortaleza, además de una serie de probables conflictos a nivel nacional.”

Left by the wayside again are alternate proposals for the highway route. As has been noted here before, leaving Segments I and III in their current locations makes a deforestation-inducing route through TIPNIS inevitable. However, numerous engineering groups have proposed alternate routes for a Cochabamba–Beni highway, and will do so again tonight in La Paz (webcasted, even). In the US context, where environmental impact assessment (but not prior consultation) has long been a required part of every “major Federal action” (under the National Environmental Policy Act), the presentation of genuine alternatives is the required first step for meaningful assessment. Bolivia would do well to follow that model.