As published in Indian Country Today, April 16, 2012.
IQUITOS, Peru — It’s been said that oil and gas companies follow a bible of sorts here in the jungle, a universal playbook of their most effective methods for convincing locals that their projects will bring them development or, if they can’t be convinced, to otherwise have their way.
The playbook, a spinoff of tactics dating back in spirit to the conquistadores, has worked like a charm until recently as indigenous peoples start sharing notes. Now they’re calling companies out, often appealing to international law and using the Internet to warn others of a threat.
That’s what happened this week when leaders of the Awajún people of the Peruvian Amazon province of Datem del Marañon publically outed the Spanish oil company Repsol for conducting so-called “clandestine workshops” inside Awajún territory to win hearts and minds. Such hand-slapping is heard more frequently these days in Peru as indigenous peoples ally with environmentalists and human rights organizations and demand their rights under international law. Their savvy and profoundly informed debate over the new Law of Prior Consultation is more evidence of that trend.
Wild West No More
The Awajún make a good case. In a complaint published by the Amazonian indigenous alliance AIDESEP last week, the Awajún accused Repsol of “bad practices” and said the company acted in bad faith, gathering villagers in secret meetings without permission from the apus (chosen leaders), thereby subverting the traditional process by which the Awajún decide issues affecting the tribe. They immediately broke off all negotiations with Repsol, according to their statement.
They say the government, under international law, is supposed to protect them from predatory companies against whose playbook and war chests they often stand little chance.
Repsol’s tactics serve its plans to tap oil wells in Lot 109, one of the many oil concessions that now cover more than 75 percent of the Peruvian Amazon and overlap important areas set aside for nature reserves, communally-held indigenous territory or as sanctuaries for voluntarily isolated tribes. Repsol recently announced that it plans to sink some $3 billion into its Peruvian oil and gas operations over the next five years, just one such investment within Peru’s energy sector boom that observers say could double the industry’s oil and gas production over that same period of time.
But the Awajún are no pushovers when it comes to foreigners tromping
around on their land, much less drilling and spilling and cutting up the forest for roads. In 2009, protesting a new forestry law that they believed would give extractive industries unfettered access to ancestral lands, hundreds of Awajún and neighboring Wampi warriors blocked rivers and roads and shut the profiteering down. By the end of several days of violent government reprisals, protesters had killed some 23 police and paramilitaries who were deployed to restore the untenable status quo.
Again, as in 2009, the Awajún are appealing to dialogue first, broadcasting violations to the public and filing complaints with Peru’s official human rights agency, the Defensoria del Pueblo, and with the top ministers of the environment, energy and indigenous issues and others known here as the PCM.
In Peru, the Awajún are far from alone. Repsol’s alleged actions and the Awajún’s quick and public response gives but a snapshot of much the wider debate about how foreign companies get to search for and exploit resources on and under indigenous lands in Peru, where the government owns subsurface resources such as minerals, oil and gas.
Consultation: how and for whom?
As the Awajún struggle against Repsol along the Marañon, leaders of Peru’s mosaic of indigenous peoples — from the Andes to the Amazon — are locked in a high-stakes scrum over the implementation of a new law whose outcome could be critical to their survival on traditional lands. Whether the impasse dissolves into conflict lies mostly with the PCM ministers who have sided with big business in recent conflicts over resources in Peru.
Drafted by the new administration of Ollanta Humala last summer, and passed by Peru’s Congress in the fall, the Law of Prior Consultation, as it is known in English, would finally require the Peruvian government and companies to consult indigenous communities before digging mines or drilling for oil in their territories – projects that, in the past and in a litany of examples today, have benefitted outsiders in the short run but often at a long term cost to locals in terms of environmental degradation and health.
“[The] Law of Consultation is fundamental in terms of the recognition of indigenous rights, and also with respect to what they decide to do in terms of development in their territories,” said Roger Rumrill, author of at least 30 books on the Amazon and perhaps Peru’s best-known expert on the region’s peoples. Rumrill, who has advised President Humala on indigenous issues as part of his transition team, spoke with the nonprofit advocacy group Alianza Arkana during the public elation over congress passing the law last fall.
“They (indigenous peoples) are going to participate in this law and their participation is very important,” he said, adding that of Peru’s estimated population of 29 million, at least 10 million are Andean and Amazonian indigenous people — roughly 43 percent. “It’s not a minority,” says Rumrill. “This law … is a historic moment for indigenous Andean and Amazonian communities.”
Early on, however, Rumrill and other observers spotted potential pitfalls within the law and warned that the devil was in the details, that it risked being a “dead law” if it did not have the teeth of very specific language and the bite of enforcement.
“From 1921 to 1990 there have been 1,800 laws passed regarding Amazonian development — as many laws as there are forests. But they are dead words. So we don´t have illusions that the law itself can change the situation,” he told Alianza Arkana in the fall. “This law can only change the situation if the State executes and completes it, and also if the indigenous people unite, form positions, watch out for and ask that the Peruvian State follows through with and executes the law.”
The Fine Print
In the past and as it stands, the government often leases concessions without community input and then lets the companies and communities hash it out, deploying crack teams of business-friendly negotiators or even government troops when things get hairy. The structural injustice of pitting indigenous peoples against multi-billion-dollar multinationals is as obvious as it is real – a lived experience of former colonial subjects that makes them ever “painfully aware of the mortality of wealth that nature bestows and imperialism appropriates,” as Latin American scholar Eduardo Galeano once wrote.
The consultation law was heralded as great news and radical break with the past, a significant step closer to pulling Peru’s indigenous peoples under the protections of the Peruvian Constitution and progressive international law such as the International Labor Organization’s Convention 169 and the UN Declaration on the Rights of Indigenous Peoples. But indigenous leaders immediately saw that within the boon lay potential for a boondoggle; the law contained many flaws, including language vague enough to leave open for interpretation whether indigenous peoples have a right to consent or merely to have a token place at the table of a done deal.
It also leaves contested terms for who is considered indigenous and who is not – muddy waters not made any clearer by the indigenous groups themselves. Heavily indigenous communities in the Andes, for example, call themselves “original communities,” while in the Amazon it’s often “indigenous” or “native.” Adding to that is the historical process of state formation in which ethnically indigenous peoples have identified as “campesino” or even as just “pobre” – poor – to access state services such as education and health care.
Nothing new under the Inca sun
Of course, leaving such important decisions to transnational corporations or the state didn’t sit well with many indigenous leaders who’ve had 500 years to figure out how the dominant system works. So, after holding a series of intense workshops in a half-dozen Peruvian cities over the last ninety days, indigenous delegations from across Peru finally met in Lima this month to fine-tune the regulations in a self-imposed democratic process of the type they’ve historically been denied.
And there, in Lima, they got stuck.
The two main blocks representing indigenous groups are now at loggerheads over whether to reject and change the law first or accept the law and continue rewriting the implementing regulations – or to work toward both at the sam
e time. The latter, including groups representing Shipibo people of the Rio Ucayáli and several prominent groups from the Andes, say the law is a success representing progress and can be refined once on the books. Don’t look a gift llama in the mouth.
The government seems to be listening to the block wanting to accept the law as is, leaving the others to cry foul and ask whether their participation might be an example of how consultation itself might work, calling the whole process a “new face on old practices.”
The government vice-minister in charge of the process, however, characterized the chasm between viewpoints as a few “minor points” of difference.
“We have said from the beginning that you can’t provide regulations for a law that is unconstitutional,” said Alberto Pizango, the president of the majority Amazonian indigenous alliance AIDESEP, according to Dow Jones.
Time to decide
Along with AIDESEP, the Agrarian Confederation of Peru (CNA) and the National Organization of Andean and Amazonian Women (ONAMIAP) also want the law changed to include measures, for example, that would apply it to existing contracts as well as new ventures. On Monday that block requested an additional 30 days to settle differences out with the other indigenous federations. They also requested that the Inter-American Commission on Human Rights monitor the process at hand.
“They’ve set themselves up for a fight,” said Kukama indigenous leader Alfonso Lopez, whose federation of 57 communities from the lower Marañon River Basin sided with AIDESEP.
Asháninka indigenous leader Ruth Buendía Mestoquiari, president of the Central Asháninka del Río Ene, said that the law as written “does not have the spirit” of international law (citing ILO Convention 169 and the UN Declaration on the Rights of Indigenous Peoples).
Last week Buendia’s federation filed a legal injunction against the Peruvian Congress and the Peruvian Ministry of Foreign Relations to halt an energy agreement that Peru could soon sign with Brazil that would build a series of dams and other hydroelectric projects, displacing thousands of indigenous and non-indigenous people, including uncontacted tribes.
“The rights to life, integrity, freedom, lands and free prior informed consent of indigenous peoples are threatened, as the agreement was never subject to consultation with indigenous peoples,” David Velazco, an attorney for the Asháninka from the legal nonprofit Ecumenical Foundation for Development and Peace (Fedepaz), said in a statement released last week.
“Peruvian and international law mandates that indigenous peoples need to be consulted in matters related to development projects on indigenous lands, and that has not taken place,” he said.
Meanwhile, as the debate over consultation rages on, the Asháninka and Awajún face the prospect of at least 20 dams planned for the Marañon River alone, making the hotly debated particulars of the law a matter of life and death. Likewise, in the Andean north, the massive $4 billion Conga mine project remains at a standstill over similar concerns. The U.S. company Newmont Mining’s gold and copper mine near Cajamarca would destroy alpine lakes and wetlands above several watersheds that eventually drain to the Amazon River. Residents say they were not properly consulted – they did not have enough time or technical expertise to analyze the project or fully participate in the process that led to the project’s approval by the Peruvian government of former President Alan Garcia in 2010.
Echoing AIDESEP, Peru’s Defensoria del Pueblo has also asked the PCM for more time for the parties to decide. Last month the agency reported that of some 228 social conflicts in Peru, more than half involved natural resources.
As it is, says Amazon expert Rumrill, the consultation law “contains elements introduced in the companies’ interests at the expense of the indigenous peoples.”
Monday, 16 April 2012