Minería y Desarrollo Sostenible

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Consulta a los Indígenas en el Perú: Reflexiones desde Norte América


I. Introduction

Greetings everyone. I am pleased to be here with you today. I wish to first offer my thanks to the organizers of this Annual Meeting, and particularly to Leonardo Palhares for kindly inviting me to appear here today.

Over the last twenty years I have been a private attorney and a full-time law professor in the United States. The primary focus of my professional work has been on the application of domestic environmental law to the territories of American Indian tribes. My work has put particular emphasis on governmental roles Indian tribes can assume to regulate or otherwise influence industrial activities that pollute or degrade the natural environment.

In 2009, I expanded my study to Canadian law. The United States Council for the International Exchange of Scholars granted me a Senior Fulbright Scholar award for a research visit to the University of Alberta in Canada, where I studied domestic legal mechanisms available to Canadian First Nations for protecting their peoples and territories from the environmental impacts of natural resource development. I am currently in the process of conducting a comparative analysis of the U.S. and Canadian systems.

Today, I will speak briefly on those approaches, and conclude with some thoughts on how they might offer insight into addressing some of the indigenous issues facing Central and South American states.

II. United States Law – Treating Tribes Like State Governments

Understanding the U.S. approach requires some familiarity with modern environmental law in the United States, which began in the 1970s. The modern paradigm is referred to as cooperative federalism, which relies on partnerships between the federal government and individual state governments, where states implement federally prescribed programs under federal supervision. These federal-state partnerships help balance states’ inherent governmental powers to regulate for the welfare of their people,
with the federal government’s constitutional power over issues of national concern.

One important issue of national concern is the country’s relation with its first inhabitants. As with many countries, Indian affairs in the United States have historically been a federal matter. Because of that federal nature, state governments generally lack full jurisdiction in the territories of Indian tribes, called Indian country. So in the context of modern environmental law, federal-state partnerships were perceived ineffective for environmental protection of Indian country.

To remedy that apparent regulatory gap, the federal Environmental Protection Agency (EPA) and the U.S. Congress created specific regulatory roles for tribes within the system of federal environmental laws. These roles stemmed from the recognition that under federal Indian law, tribes have retained aspects of the inherent governmental sovereignty they possessed pre-contact. With some limits, these roles offered opportunities for Indian tribal governments to assume environmental regulatory roles nearly identical to those played by state governments in the cooperative federalist system.

Tribes are generally subject to similar eligibility and program operation requirements as states. And like states, tribes may set standards more stringent than federal minimum requirements (and adjacent state standards). But, unlike state standards, tribal standards may reflect the unique cultural and socio-economic values of indigenous communities.

Once approved as meeting federal requirements, tribal programs carry the same potential as state programs to influence environmentally harmful activities. The main consequence is that tribal environmental value judgments are translated into federal program rubrics, and thus become federally enforceable against non-Indians within Indian country. An additional consequence of some note is that where development outside Indian country will have transboundary impacts, federal and state pollution permits must be conditioned to ensure compliance with the affected tribe’s standards. Two federal courts have rejected industry challenges to more stringent tribal air and water standards that EPA applied to affect non-Indian development adjacent to Indian country.

III. Canadian Law – Duty to Consult and Accommodate

The opportunity for indigenous communities in the United States to influence development outside their territories through exercises of governmental power seems to me quite unique, and so I proposed to compare it with Canadian law when I applied to the U.S. Council for the International Exchange of Scholars for a Fulbright Scholar award. As I expected, I found no similar domestic environmental law mechanism available to Canadian First Nations for protecting their territories. But outside of environmental law, I did find a potentially powerful mechanism rooted in the Canadian Constitution, which bears striking similarities to the new Peruvian prior consultation law.

In 1982, Canada adopted its modern Constitution, declaring independence from Britain. The 1982 Constitution also recognized and affirmed existing aboriginal and treaty rights. Early court cases affirmed that aboriginal and treaty rights are rights of constitutional magnitude, and while they are not absolute, any infringements must be justified. In 1997, the Canadian Supreme Court held that justification for Aboriginal rights infringements turned in part on the government’s fiduciary duty to aboriginal peoples, which might be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands, as well as the accommodation of their interests in the final actions taken.

Two decisions of the Canadian Supreme Court in the mid-2000s applied the evolving duty of consultation and accommodation to the environmental context. In the first case, the Court stopped a provincial government from issuing timber harvest licenses in First Nation territory because the Province failed to consult with the First Nation in advance. The Court said the government’s prior duty to consult and where appropriate accommodate Aboriginal interests is “grounded in the honour of the Crown,” which is not served by unilateral exploitation of lands and resources formerly held by the aboriginal group. The ultimate goal of consultation is reconciling aboriginal interests with those of the majority society, and so the process must be “meaningful” and conducted in good faith; the government must, the Court required, have the intention of “substantially addressing” aboriginal concerns on the proposed action.

In the second case, the Canadian Supreme Court stopped a federal road project initially sited through and later adjacent to a First Nation’s traditional territory. The federal government held public hearings and specifically invited the First Nation to participate, but made no effort to “engage directly with [the First Nation and] … solicit and listen carefully” to its concerns in good faith. The Court said the government’s duty conferred to Aboriginal peoples a procedural right to notice and an opportunity to convey its concerns, as well as a substantive right to accommodation through project modifications designed to protect aboriginal rights and/or minimize adverse impacts on them. Again the Court rebuked the government for its unilateral action taken with no real regard for the Aboriginal interests at issue.

In the wake of those decisions, First Nations have successfully challenged regulatory and environmental review processes for a variety of natural resource projects, including pipelines, mineral exploration, siting new mines, timber harvests, coastal development, and roads. These judicial decisions suggest the government’s constitutional duty to consult and accommodate now lies at the heart of Canadian Aboriginal law, and offers perhaps the most potent tool for addressing environmental degradation of traditional native lands caused by natural resource development in Canada.

IV. Conclusion

Before I conclude with some very preliminary thoughts on how the North American experience might inform the discussion in Latin America, let me be clear on one matter: neither the United States nor Canada have uniformly or comprehensively implemented the theoretical approaches noted above. In the U.S., only a few dozen of 572 recognized Indian tribes have shown interest in or developed the capacity to assume the regulatory program roles available under the treatment-as-a-state model. Barriers to full tribal implementation abound: tribes may decide the Euro-American model of environmental regulation is inconsistent with their cultural values; tribes that wish to assume regulatory roles may lack requisite governmental infrastructure or technical capacity; the federal government has offered tribes less technical and financial assistance than it offered states; states and non-Indian firms frequently challenge tribal regulation of non-Indians in federal court; and the U.S. Supreme Court has shown limited tolerance for tribal regulation of non-Indians in recent years.

In Canada, there are multiple pending First Nation legal claims that the federal and provincial governments are failing to engage in genuine consultation over the environmental impacts of proposed developments on indigenous communities. These claims also allege the governments are failing to modify proposals in order to accommodate the interests of First Nations and aboriginal communities.

The context for a number of those pending claims has particular relevance, I believe, for issues in Latin America. The world’s largest deposit of bitumen sands, also called oil sands or tar sands, occurs in the Canadian Province of Alberta, the province where I conducted my study. The existing industrial complex is a massive development, and it is expanding rapidly with more than 12,000 approved or proposed leases for oil and gas exploration, timber harvests, road building, laying seismic lines, and in situ projects for mining the bitumen sands.

Despite the massive terrestrial footprint of these developments, their extensive air and water waste discharges, and the lack of any proven final disposal process for mine wastes, the provincial government has consistently concluded that proposed projects will have no significant environmental impact. Several Canadian First Nations downstream have challenged that suspect conclusion, as well as the province’s curious decision to delegate its constitutional consultation responsibilities to commercial operators. Although the Supreme Court of Canada has said the duty to consult and accommodate cannot be discharged by delegation to private companies because the Crown alone is legally responsible for the consequences of its actions and interaction with third parties, Alberta claims it maintains ultimate consultation responsibility because it reviews the adequacy of the private firm’s consultation process even though the provincial government never directly engages with the affected aboriginal community

In terms of scale and speed, development of the Canadian bitumen sands is not unlike the Initiative for the Integration of the Regional Infrastructure in South America (IIRSA). The IIRSA proposes 300-500 major projects including dams, highways, deforestation, and resource extraction, and involves twelve South American governments, several multi-lateral development banks and multi-national corporations of every sort.

In the last decade or two, Latin America has already seen significant conflicts over energy and resource projects affecting indigenous land rights and indigenous cultures. Similar conflicts, but on a much larger scale, can fairly be expected to blossom as the IIRSA gains traction. Already, Latin American indigenous groups like the National Authority of Indigenous Governments in Columbia and the National Indigenous Organization of Ecuador are organizing and reaching out to their North American brothers and sisters for assistance.

As they do, I predict two things will occur. First, the language of environmental justice will begin to appear in Latin American contexts. In the 1990s in the U.S.,
racial minorities and indigenous peoples organized to highlight disproportionate environmental impacts from development. They demonstrated that dangerous industries
like chemical manufacturers and toxic waste disposal sites were more often located in
low income communities and communities of color than others and that government enforcement was slower and less rigorous in their communities.

In part, EPA’s Indian program and the treatment-as-a-state model arose in response to the domestic environmental justice movement. In just the last few years, First Nations and aboriginal groups in Canada who are working with established environmental and indigenous groups in the U.S. have begun using the language and principles of environmental justice. Neither U.S. nor Canadian courts have yet embraced environmental justice as a basis for judicial relief, but the language of environmental racism and injustice has resonated with the media and the general public, garnering additional attention for the plight of particular indigenous groups.

The second development I expect to occur in Latin America has already begun to appear: Indigenous groups and their supporters will increasingly refer to international concepts of human rights in their demands for environmental and cultural protection. The 1989 United Nations ILO Convention 169, which many Latin American countries have ratified, directs that governments should consult the peoples concerned whenever consideration is being given to legislative or administrative measures that may affect them directly, including cases where environmental protection and conservation may be necessary for cultural identity and survival. The 2007 United Nations Declaration on the Rights of Indigenous Peoples, also supported by many Latin American countries, directs that states consult and cooperate in good faith with indigenous peoples prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

The sharpened focus of the United Nations on indigenous peoples is occurring, of course, at a time when international attention is increasingly focused on global environmental risks and human rights. Just this year, Latin America has seen two international gatherings of indigenous peoples focused on the environmental issues associated with global climate change. The Second Latin American Summit on Climate Change and its Impact on Indigenous Peoples occurred in January in Peru. The World People’s Conference on Climate Change occurred in April in Bolivia.

So as Latin American countries move forward with the IIRSA in an effort to increase their participation in the global economy, they face a context wherein indigenous communities are increasingly organized and assisted by experienced transnational organizations devoted to environmental protection and indigenous rights. Many of these organizations come from the experience of the United States and Canada, which have deliberately and distinctly moved away from leaving the cultural survival of their indigenous peoples solely to politics, and toward developing legally enforceable mechanisms designed to ensure that governments and industry consider and take account of indigenous interests before taking actions affecting them.

All of which suggests that Latin American countries will shortly face a significant challenge, which is how to effectively balance legitimate and desirable economic development like the IIRSA with enforceable legal mechanisms that fairly and genuinely account for and address the impacts of such development on the internationally recognized rights of indigenous peoples to their lands and culture.

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