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«Measures that can affect the collective rights of indigenous peoples are not being consulted»

Ana Leyva, director of CooperAcción, takes stock of the prior consultation processes in the extractive industries that have been developed in the country. She says that in almost all cases, operational decisions are being consulted, excluding those that are most relevant and that can affect the rights of indigenous peoples. Among them are the decisions on the use of the territory and the Environmental Impact Study (EIA).

By Nylva Hiruelas

P.-Three years have passed since the prior consultation in mining was implemented, the number of prior consultations concluded has exceeded those carried out in the hydrocarbon sector started five years ago. What do you think about it?
The mining guild no longer sees the prior consultation in mining as a hindrance because the way in which it has been implemented makes it just a formality. Throughout the cycle of the mining project, the Ministry of Energy and Mines has decided to consult the last administrative acts of the chain of decisions, we can say, the least important ones.

Q.-What legal effects does the authorization of the initiation of exploration activities produce in indigenous peoples?
It is unimportant, it is an operational decision that has no greater legal consequences on the rights of indigenous peoples. When this authorization is granted, almost everything about the project is decided and none of it can be changed.
«The consultation has become a tool to legitimize projects»

P.-It seems that there has been a before and after period in the Mining guild. Earlier they noted that it was an obstacle to investment, and now after being implemented, Carlos Gálvez president of the National Society of Mining, Oil and Energy (SNMPE), said last year, that positive consultations could be taken as a model and sometimes «Ghosts are created before the unknown. » Why that change?
Because the prior consultation in mining has been neutralized. The consultation has become an instrument of legitimization of the projects. None of the acts that are consulted allow us to participate in the decisions on whether or not the project is going or on the conditions necessary to prevent its impacts on indigenous rights or to determine measures to mitigate or compensate them. In addition, the process does not allow for actual dialogue on the measure. According a study conducted by CooperAcción that analyses 10 developed consultations, it can be observed that only three arrived at the dialogue phase, previous to the final decision. Why did the majority of consultations conclude after the internal evaluation stage ended and did not arrive at the dialogue phase? Because there is no matter to discuss. In view of this problem, the methodology leads participants to discuss general impacts of mining activity. But in general terms, nothing concrete is reached and agreements end up referring to obligations that the State already has legally, regardless of the consultation. The ombudsman said that the agreements do not deal with concrete actions to prevent the rights of indigenous peoples from being affected.

Q.-What are the agreements that are reached?
They are very general. For example, that the State complies with monitoring and supervising the activities of the company, that the community is informed of the activities of the project, that the company complies with its environmental and social commitments or that the breaches there are sanctioned by the OEFA or OSINERGMIN. A large part of the cases did not reach the dialogue phase because there were no discrepancies between the communities and the representatives of the State on those proposals. In those cases, the dialogue was exhausted. Considering that were already in the law or in the commitments set out in the environmental management instruments, the meetings at each stage were meaningless. The cases that call attention, are the two consultations carried out almost simultaneously on the project Apumayo that correspond to the almost final decisions on exploration and exploitation, something that materially had to be impossible. Even more, some meetings of the consultation on the measure referred to the exploitation were given before those that corresponded to the authorization of initiation of the exploration.

Q.-You affirm that the EIA should be consulted. What could indigenous peoples decide if it was consulted?
If consulted, the process could discuss the environmental, economic, social and cultural impacts that the project will have on the collective rights of indigenous peoples. For example, the tailing fields could endanger any water source or be located in a culturally important space. The noise could scare away the animals and thus hinder the hunting. The arrival of foreign people could weaken cultural identity. If the EIA was consulted these topics would be the subject of the consultation.

Consultation does not channel indigenous people’s concerns.

Q.-What information is available to indigenous peoples who will be consulted on a project?
They talk about the impacts of the activity in general. They present a generic impact table without giving specific details of the project. They avoided to refer to the environmental study because it could generate the expectation of making changes and that is not possible because the study is already approved. In this regard, we can say that the consultation does not channel the concern of indigenous peoples.
On the other hand, the information provided is very technical, and unaffordable for indigenous peoples. Moreover, although there are translators, they generally translate what the technicians say, but not the comments made by the representatives of the peoples and that should be heard by the officials. This means that there is no real dialogue.

Q.-In the case of hydrocarbons, is the measure being consulted more relevant than in mining?
There are several acts that are consulted, but only one of them has relevance, I mean the approval of the contract. The contract establishes the socio-environmental clauses that are closely related to the rights of indigenous peoples. It is for that reason that the communities in the area of influence of Lot 192 have claimed to be consulted on the new contract to be held to continue exploring and exploiting the lot.