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Derechos | Equipo Nizkor
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Derechos | Equipo Nizkor
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17Jan14
About Margarita Well X6
On 23rd December 2013 during a press conference, the President of the Plurinational State of Bolivia, Evo Morales, happily announced that the gas well Margarita X6 had produced a historic record quantity of 6 Mcfd (Thousand cubic meters per day).
What he did not say, even at the inauguration of the 2nd Phase of the Margarita plant on the 1st October 2013 is that this well is located in the Original Community Territory of Itika Guasu (TCO Itika Guasu), owned by the Assembly of the Guarani People of Itika Guasu (APG IG).
This omission not only constitutes a lack of respect for the existence of a people but also a lack of respect for the fact that the conduct of this indigenous organization is tangible proof that the exercise of the indigenous right to Prior Consultation in no way represents a restraint on energy development in the country, nor is it an obstacle to the implementation of policies by Evo Morales' government.
Let us look at the reasons:
1. The APG IG and the conflict with REPSOL
When the company REPSOL commenced operations in the TCO Itika Guasu, it had to deal with a conflict with the APG IG, a conflict which originated in the non-recognition of the APGIG as a legal person with rights. As a result, and relying on the actions of the Bolivian State, REPSOL obtained an environmental licence without the consent of the owner of the lands where the multinational was actually operating.
In 2003, following organised pressures, the APG IG and Repsol reached an agreement which was notably defective but which incorporated language concerning respect for indigenous rights.
In the hope that significant changes would be made as a result, on 17th February 2006, the APG IG had a historic meeting with President Evo Morales Ayma and Vice-Pesident Alvaro García Linera, at which the APG IG requested the protective intervention of the State to resolve the conflict.
The response of the President was not expected. Two weeks later a commission headed by the President of YPFB [Bolivia's state hydrocarbons company] arrived at the TCO Itika Guasu and verified a series of irregularities arising from conduct which failed to respect indigenous rights.
Notwithstanding this, the actions of ministers and deputy ministers, as well as the state organisation YPFB itself, obliged the APG IG to find its own solution to the conflict, given that the state authorities, in complete denial of the principle that States are meant to guarantee rights, repeated over and over again that the conflict between the APG IG and Repsol SA was a "private matter".
The APG IG finally ended the conflict on 29th December 2010 with the signing of an Agreement which regulates the relationship between the organization and the multi-national and the term of which is the same as that of the contract of exploitation executed between the Bolivian Government and Repsol Bolivia SA.
The agreement is considered the first of its kind in the country, indeed in Latin America and in which indigenous rights are fully applied. By means of this agreement, Repsol Bolivia SA and the other companies who are parties to the contract of exploitation (British Gas, British Petroleum and E&P) legally recognise that the TCO IG is the community property of the APG IG and further recognise indigenous law. This permits the legal regularisation of the licences which had been illegally obtained and it initiates a new era in the relationship of the indigenous people and the company. It further allows for the implementation and full co-ordination of the Development Plan which Repsol Bolivia SA entered into with YPFB in conditions of complete normality.
2. The pitiless attack on the APG IG and its successes.
There have been many attempts to drag through the mud the Agreement between Repsol and the APG IG: from descriptions thereof claiming that the APG IG had "sold" itself, to speculations that the beneficiaries of the agreement were not the Indians but the NGOs.
Apparently the crime committed was that of having been compensated and, worse still, of having converted that compensation into an Investment Fund, a Fund that is the property of the Guaraní Indians of Itika Guasu and that of using this Investment Fund so that they can attend to their health, education and production needs.
The ink is still not dry on the words written in the press and even in cyber-space constituting accusations that the APG IG was an organization which was always asking for money, that the APG IG was about to turn itself into a "mini-republic", and that the APG IG was using the exercise of its right to consultation to fill the pockets of its advisers. One need only look at what has been written in the press in the city of Tarija from October 2011 to April 2012.
It is even known that orders were issued from the Ministry of Hydrocarbons to other companies not to follow the example of Repsol, in other words, the orders were instructions not to respect indigenous rights nor the right to consultation.
The situation has been so tense that the office of the President Evo Morales has drawn up a draft law on Prior Consultation to "guarantee" that what the APG IG achieved 29th December 2010 would not be achieved again.
3. The Constitutional Judgement established that we were right
Do the indigenous peoples of Bolivia have property rights or do they not? Or, as they used to say in the period of colonisation - Do the Indians have a soul? This appears to be the logic behind the general attitude whenever the issue of indigenous rights is discussed.
This kind of logic might be understandable coming from a Government such as that of Mario Cossio who, in February of 2008, filed a claim for Constitutional Relief against Never Barrientos, the president of the APG IG. What was the crime? - To demand prior consultation before any actions were carried out on the indigenous territory.
With reference to these proceedings for Constitutional Relief, the Court in Tarija ruled in favour of the Prefecture led by Mario Cossio, and against Never Barrientos and the APG IG. In other words, in the opinion of the judge and the Prosecutor's office of Entre Rios and Tarija, the APG IG did not have a right to demand prior Consultation..
However on 25th October 2010, the highest court of Bolivia, the Constitutional Court, put an end to this violation of those domestic and international laws which protect the rights of indigenous peoples to their land and territory, when it decided the constitutional appeal submitted to it. On that date the highest court in our country issued a Constitutional judgement (Judgment 2003/2010-R) repealing the decision of 29th February 2008 issued by the O'Connor province Judgement Court of the Superior District Court of Tarija and set out an excellent explanation of the nature and application of indigenous rights to territory and to prior consultation.
This judgement, notified to the APG IG months later, goes to confirm that the Contract signed between Repsol and the APG IG on 29th December 2010 was on the right lines.
In addition, this decision shines some necessary light on the matter, such that the conduct of public officials (ministers, deputy ministers, etc.) should comply with the law.
At the time, we wrote that given the findings of the Constitutional Judgement 2003/2010-R, nothing that went on in the TIPNIS conflict had any legal sustain.
Notwithstanding this, the obstinacy of the Minister of Hydrocarbons was shameless, and in a wrongful way he sought to distort the terms of the constitutional mandate. He was unable to do so because, as many would say, there is now a people who have been empowered by its rights.
The big news which should cause us to reflect.
Today, as 2013 ends, looking at everything that has happened in the last three long years, it is good to know that our President is so happy about the success of the Margarita X6 well; the only thing that is not so good is that those surrounding the President keep on saying to him that the exercise of indigenous rights is prejudicial, that to establish respectful relations in a context of legal equality will frighten off investment and that the only way to work with indigenous peoples is by means of charity, cooption and permanent tutelage.
The APG IG have told Minister Sosa in a notarised letter in January 2013 that they do not agree with the draft Law on Consultation because it has not been subject to consultation in the terms set out in the Constitutional Judgement 2003/2010-R which is of obligatory performance.
This means that the said draft violates the ILO Convention nš 169, now incorporated into domestic law by Law nš 1257 and the United Nations Declaration on Human Rights of Indigenous Peoples, now also part of domestic law following its ratification in Laws nš 3760 and nš 3897.
The million-dollar question is therefore: When will they be convinced that the conduct of the APG IG is not obstructive but constructive?
Hopefully in January 2014, when the entire cabinet meets in order to carry out the annual management evaluation, as is the custom of President Evo Morales, they will reflect on the success of the Campo Margarita and will stop trying to conceal the real facts.
Dear Ministers, Campo Margarita operates within an indigenous territory and the APG IG as the owner of that territory, when it demanded prior consultation, did NOT put a brake on development. Once its rights to the territory and, as a result, its rights to prior consultation were recognised, it allowed all Bolivians today to obtain the benefit of natural resources such as the gas at Margarita well X6.
[Source: By Henrry Moisés Guardia Mérida, Guaye, 17Jan14]
 | This document has been published on 18Feb14 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. |