In the early stages of colonization, indigenous peoples were not yet deprived of their land titles and communities could still use their territories communally. With the spread of colonial tyranny and the consolidation of the extractivist economic model, this changed rapidly. The colonial masters brutally appropriated indigenous land that had been collectively managed as well as indigenous labor, which led to a demographic catastrophe. It radically changed the living conditions of the indigenous population and excluded them from decisions about commons. The end of colonial rule did not mean, however, that indigenous peoples regained their rights and the control over their ancestral territories. Only in recent decades has the increasingly strongly organized indigenous population succeeded in asserting its political demands for autonomy and self-determination as well as for recognition of pluralistic legal concepts or even plurinational states – such as in Bolivia and Ecuador – and in regaining or defending its territories.
The constitutions of numerous Latin American countries have been amended, obliging the state to restore self-government of indigenous territories, for instance in Colombia, Panama, Bolivia and Ecuador. Simultaneously, the collective rights of indigenous peoples have gained increasing recognition at the international level. A prime example is the Indigenous and Tribal Peoples Convention of 1989, also known as ILO Convention 169, which was further strengthened by the United Nations Declaration on the Rights of Indigenous Peoples in 2007. In theory, both host and home states of extractive companies are now legally responsible for ensuring that economic activities do not violate the human, environmental and cultural rights of these peoples and that participation rights – at all stages of project planning and implementation – are guaranteed.
Limited access to the judicial system
The reality often tells a different story. Lack of information and monitoring undermines free, prior and informed consultations. Given the limited access of indigenous communities to the judicial system (due to racial discrimination, language barriers, lack of knowledge of legal instruments and limited economic resources) and the lack of autonomy of the courts, companies can still count on lenient penalties or acquittal for violating human rights or environmental standards. As a result of economic priorities and the urgent need to attract foreign investment to service debt, countries often restrict hard-won rights and allow companies to operate with impunity. It often happens that even countries that have signed the ILO Convention 169 only recognize the results of a consultation process as legally binding if it was carried out by a state institution or on the basis of state requirements.
This paves the way for invasive projects that often lead to serious and protracted conflicts as they go hand in hand with a dramatic deterioration in soil and water quality in the affected communities and the loss of biodiversity as well as the loss of cultural identity and (traditional) knowledge on the protection of ecosystems. Conflicts have long since ceased to be limited to the raw materials sector. Between January 2010 and September 2020, the Business and Human Rights Resource Center registered more than 2,300 complaints of human rights violations in 17 Latin American countries against companies developing renewable energy megaprojects in indigenous territories. Extractivist industries also engender gender-based violence: sexual assaults in the context of mining and other megaprojects are commonplace. These projects also benefit from the unpaid and thus invisible care work of indigenous women and girls. The Inter-American Commission on Human Rights has issued numerous statements condemning extractive projects for undermining the fundamental rights of indigenous peoples, such as the right to collective ownership of their lands and natural resources, cultural identity, health and protection from forced displacement. It has called for the ratification and implementation of ILO Convention 169 and other international regulations.
New legislative initiatives with many shortcomings
The new legislative initiatives of the European Union, such as that aimed at reducing deforestation and the EU Critical Raw Materials Act, have many shortcomings. The former only obliges companies to comply with the laws of the country of origin rather than with international standards. The latter focuses primarily on securing the supply of raw materials and reducing dependence on individual countries. Shortened time periods for environmental impact assessments could lead to a violation of the consultation and participation rights of indigenous communities – not to mention the fact that indigenous rights do not even feature in the act. This is in blatant contradiction to the declarations of the European Parliament, which have emphasized that the rights of indigenous peoples should be more robustly protected and their effective involvement in decision-making processes ensured.
Europe should not only condemn the increasing number of extrajudicial killings and the persecution, intimidation and criminalization of indigenous peoples and remind countries of their obligation to guarantee their rights, but also be prepared to question its own way of life and contemplate ways to drastically reduce the consumption of raw materials in the European Union.
Ingrid Hausinger is the Program Coordinator for Social-Ecological Transformation at the Heinrich Böll Foundation office in San Salvador. She has worked on issues of environmental governance and climate and gender justice in Central America from an ecofeminist perspective for 15 years.