In the world that exists today, the pressure and monetary incentive to find new areas of development for the purpose of extracting resources is greater than ever, and Latin America presents one of the most promising areas for exploration and exploitation. This exciting time for the energy sector does however come at a steep price. The lands that are most prime for development are also home to numerous indigenous peoples whose families have occupied the area for centuries and who hold a view of the land that does not correlate with that of domestic and foreign companies. Not surprisingly, these issues date back to the colonial period of European occupancy and have continued to progress since. The struggle between the demand for energy from the state and world market against the right of the indigenous peoples to define how to develop their land and maintain their free existence still continues.  

Immediately following the arrival of Europeans to the so called “New World” began the lingering notion that the native people were a “lesser” people and needed guardianship, which led to subjection and control. This idea of guardianship would prove important in justifying assimilation techniques. Once freedom from the Spanish crown was achieved and the era of the new the republics arrived, constitutional liberalism came into form bringing with it the model of nation-state, the idea of a uniform culture for all inhabitants, and the desire for the conversion of indians into citizens, dissolving any previous agreements such groups had with European royalty.

The Mexican revolution a decade into the 20th century and the ratification of the country’s constitution in 1917 began a shift in thinking from individualism to collective rights. This change was helpful towards the recognition of indigenous lands, but little has done to improve any level of equality. The indigenous peoples were now seen as a matter for integration.

More than half a century later, international organizations finally provided support for indigenous rights through various propositions, such as Convention 169 of the International Labor Organization in 1989. The contents of the convention were a dramatic shift away from any assimilation or integration policies and looked to recognize the will of the indigenous people, through several anti-discriminatory measures. Convention 169 promotes the right to self-recognition, and gives the indigenous groups the rights to consolation, consent and active participation with regards to use of their ancestral lands. This proposition is founded under the notion that indigenous people have equal dignity and an equal ability to control their futures with respect to the rest of the population, laying the groundwork for a mutually beneficial relationship with the state that would deem irrelevant the colonial ideology of the past.

In the same decade, constitutional reforms began throughout Latin America that would continue to develop into the 1990’s. The 1980’s saw new constitutions that introduced the idea of cultural diversity and a multi-cultural state, falling just short of recognizing legal pluralism. The 1990’s first saw the introduction of the notion of legal pluralism in new constitutions, while further cementing indigenous equality by incorporating many of the ideas of Convention 169. While equal rights were now formally ingrained within national and international law, the necessary mechanisms for implementation into society were still lacking, providing room for continued if not increased extraction actives and intrusion on indigenous lands.

Bookmarking this period was the United Nations declaration of 2007, which like the newest constitutions of Latin America adopted the principles of Convention 169, adding greater clarity and legally ending any forced integration or assimilation practices. After centuries of being guests on their own lands, Indigenous peoples now had the legal backing guaranteeing prior consolation and the requirement for consent before any development or intrusion would be made, touting equal participation in every step as a key to fair practice.

With all the legal means necessary for self-determination, the reality does not match the underlining concept, as can be seen in the current indigenous peoples struggles against the energy sector’s desire for extraction and the state’s continuing mantra of the need for one king of “development”. It’s important to realize that there are norms in place to respect indigenous rights in any extractive activity. With the groundwork firmly in place, the next step is proper implementation, something the Indigenous peoples need and demand. All of the binding stipulations presented by Convention 169, the UN resolution of 2007, and the state’s own constitutions clearly promote the right to free determination through prior consultation, the right to consent and proper compensation, and active participation in every phase by the indigenous peoples with regard to any activity in the land they occupy. The acceptance of the recognition of legal pluralism should give a clear voice to the decisions of said peoples, and ensure equal rights to all.

All of the needed norms for development that respect indigenous rights are present and available, leaving it up to the state to act in good faith towards implementation. The pressure and influence from outside entities should not modify those norms. While matters have changed drastically since the days of colonization, the next steps need to be taken to ensure the betterment and free will of the indigenous peoples, which should be placed at a higher value than economic incentive.

Mayor Información: 

- IIDS/IILS: www.derechoysociedad.org , prensaiids@derechoysociedad.org 

Jr. Nazca 458, Of. 101, Jesús María, Lima 11, Tel. (51-1) 330 - 9139.