At the core of the current legislative push to reverse the 2011 special protection law for the Isiboro-Sécure National Park and Indigenous Territory is the 2012 government-run consultation process. Government advocates and the sponsors of the legislation, Patricia Chávez and Romona Moye, repeatedly claim:

It’s the request of the people, the community members, their corregidores [a traditional leadership post] and leaders, through the prior consultation carried out within the territory itself. We have exercised our right to be consulted as Bolivians and as indigenous people who inhabit the region.

“Es el pedido del pueblo, comunarios, los corregidores y dirigentes, a través de la consulta previa desarrollada en el mismo territorio; nosotros hemos ejercido nuestro derecho a ser consultados como bolivianos e indígenas que habitamos esa región”

When proponents of the law have talked about how the law, the highway, and the revocation of the protective law have been discussed among the communities of TIPNIS, they are referring only to one and only one thing, the 2012 consultation. While there are real disagreements about it, all signs indicate that the consultation process was fundamentally flawed.The consultation, authorized by Law 222 of 2012, was an one-of-a-kind process in Bolivia, although other projects have consultations on different models. By the time it was held, the government had begun to interpret the law protecting the territory as “an intangible zone” to mean that nearly all economic activities – including eco-tourism, sustainable nut and cacao harvesting, and other projects previously approved – must be suspended. The Subcentral TIPNIS had negotiated a different interpretation of intangibility with the government in December 2011, but this was discarded.

The subjects of the consultation included Mojeño-Trinitario, Yuracaré, and Tsimané community members within the TIPNIS territory (or TCO) and living within Polygon 7, the zone colonized by cocaleros. Residents of the Polygon generally affiliate with the pro-road CONISUR. Eighteen CONISUR communities were consulted, about a third of the 58 communities listed. We now have a government-produced enumeration of participants in the consultation, which shows that 834 of the 2084 residents counted in the consultation—fully 40% of the total—were from CONISUR communities.

The government took full advantage of its power to frame the consultation. It organized the process around four questions:

1. Should TIPNIS be made an “intangible zone” as stated in Law 180, or should the law be abrogated?;
2. What safeguards against environmental degradation should be taken?;
3. What development priorities do communities have?;
4. What conditions should be placed upon the design and construction of the highway?

The consultation team tabulated YES and NO positions on Question 1, and building the highway, on a community-by-community basis. There is no record of individual views. The consultation was accompanied by the public bestowing of gifts and development assistance that were implicitly or explicitly conditioned on acceptance of the highway. Questions 2 and 3 implicitly linked future government development assistance and restrictions on new land invasions to the construction of the highway. Unless communities refused to state any conditions under which they would accept it, their answers to question 4 were counted as support for the highway.

According to the government’s report: A half dozen communities demanded that indigenous authorities decide on the final route, two said “yes, but not through the middle of TIPNIS,” and others accepted an “ecological highway” that wouldn’t damage the park; all these were counted as “in favor of the highway.” (Ministerio de Obras Públicas, Servicios y Vivienda, Informe Final, 300–307.)

The consultation was conducted from July 29 to November 25, 2012. The government produced a final report on the consultation claiming that 57 of 58 consulted communities rejected Law 180, and 55 accepted the highway, but these headline numbers are disputed and conceal radical disagreements. The same report recognized 11 more communities that refused the consultation altogether. Six solidarity activists, led by lawyer Ivan Bascopé, accompanied a CIDOB–Subcentral TIPNIS delegation on a tour of the territory from August 29 to September 26, where the latter held a series of workshops on the consultation process in 17 communities. They provide a list of 30 communities that rejected the consultation process altogether (Informe del Recorrido). A joint delegation of the Catholic Church, Permanent Assembly of Human Rights–Bolivia (APDHB), and the International Federation of Human Rights (FIDH) visited 36 communities between November 29 and December 13 (their report) Contradicting the government report, they found that sixteen of these communities had not received the government consultation team and that just three of the nineteen consulted communities accepted the highway. Community leaders were bypassed, the consultation team could arrive suddenly and unannounced, and consultation meetings often involved only those in agreement with the process.

This may all seem a little abstract until you see it in action. A newly released documentary clip shows the process in San Pablo del Isiboro. In this case, the consultation team responded to local opposition by organizing a new meeting at a private residence outside of town on October 5, 2012.

The official consultation report claims that “Both the corregidor of San Pablo, Erwin Flores, as well as the residents made it clear that those who opposed the process were not families belonging to San Pablo.” (A government observation report omits any mention of opposition or relocating the meeting.) The notion that any opponents of the consultation process came from outside San Pablo is belied by the fact that the community hosted a multi-community gathering on the theme of “The Defense of TIPNIS Continues in its Communities and its Resistance” on September 5–7, 2012. A handwritten resolution from that gathering, rejecting the consultation process, was signed by several San Pablo community members (see Subcentral TIPNIS. Comisión Recorrido and Iván Bascopé Sanjinés, Informe Del Recorrido Realizado Por Las Comunidades Del TIPNIS: El Proceso de Consulta Propio y La Visión de Desarrollo Para El Territorio Indígena (La Paz, Bolivia: Red Jurídica Amazónica – Fundación Construir, 2012), p. 85–88). What is clear from the video is that the government consultation team offered outboard motors and other supplies. The APDH report found they also, “offered an electrical generator [motor de luz], 150 cows for a milking station, and the building of a school.”

In the end, both the solidarity team and two separate independent evaluators, the Church-APDH-FIDH team and the Defensoría del Pueblo, found the consultation in violation of international standards. The APDH team found, “numerous irregularities and violations of the principle of good faith, as well as of the right to free prior and informed consultation.” The Defensoría likewise found numerous faults in the process (Defensoría del Pueblo, Sin los Pueblos Indígenas No Hay Estado Plurinacional, p. 137–140) including “the fact of realizing the giving of public works and projects, signing of cooperation agreements, and taking on other promises in circumstances before and during the carrying out of the consultation in TIPNIS constitutes acts contrary to [the principle of] good faith.” Likewise the Defensoría criticized the lack of information on the proposed highway project, inaccuracies in counting YES positions on the highway, sudden arrival of consulting teams, late night sessions that are inaccessible to many residents, and failure to adequately respond to questions about the road project. In short, both reports found that the consultation was poorly informed and lacked respect for the free choice of indigenous residents.