Stop by TN for my latest thoughts on the TIPNIS conflict, including a discussion of the government’s plan for a consultation with park residents. Here’s a snippet:
On October 24, 2011, Bolivians breathed a collective sigh of relief. After a two-month struggle, culminating in massive protests in front of the Presidential Palace in La Paz, Evo Morales signed a bill declaring the Territorio Indígena y Parque Nacional Isiboro-Secure (TIPNIS) “untouchable.”
The controversial road connecting Villa Tunari with San Ignacio de Moxos would not pass through the national park and protected indigenous territory. The peoples’ cry to defend TIPNIS had been heard; “Evo Pueblo” had lived up to his moniker, even if only under extreme pressure, and had listened to his constituents. He even said so himself: “The TIPNIS issue is resolved,” he declared. “This is governing by obeying the people.”
Or so we thought. Though many were probably skeptical from the start, many others—myself included—thought the case was closed. The government would still likely construct a road between Villa Tunari and San Ignacio de Moxos, but the new law dictated that it would skirt the park. That, not prohibition of a road altogether, had always been the goal.
As the last few weeks have shown, however, the victory dance was premature. On February 10, 2012, President Morales signed a new law bringing back from the dead the possibility a road through TIPNIS. Three-and-a-half months after declaring the park “untouchable,” Morales signed a law calling for a “prior consultation” to determine whether the road should go forward as originally planned. How did this happen, and how can we make sense of it?
Read the rest here. Thanks again to TN’s Rhodri C. Williams for the opportunity to post on his great site.
-NF
Consultation or Consent?
As I’ve mentioned in the comments, there seems to be a fair bit of confusion, perhaps unresolvable, over whether Bolivian law requires community consultation or community consent in the case of a proposed government project that will impact the environment. By its literal terms, the Bolivian Constitution seems to suggest the former. It provides that the government must engage in “consulta previa, informada y libre”–prior, informed, and free consultation. Yet, according to many with whom I’ve spoked, the government pitched this during the ratification process as signifying informed consent, essentially giving the people a veto power. If so, this would mark a major distinction between Bolivian environmental law and the dominant world model.
Of course, it would also have serious implications for the TIPNIS case. In fact, the government seems to know this. This article in today’s Los Tiempos shows that the government is firm in its position: the consultation is not “binding.” In other words, the government says the law requires consultation–as we normally think of it in environmental law–not consent.
This meshes with my initial read of the constitution. But even if that’s what the constitution says, would the result change if the text was sold as actually meaning something different? If the people thought they were approving a provision that gave them a veto? I’m not sure. I’d love others’ thoughts on this.
I’m particularly interested in this topic because it bears on my present research. Here’s a draft abstract of the paper I hope to write (working title: “From Consultation to Consent: Community Approval as a Prerequisite to Environmentally Significant Projects”):
-NF
UPDATE: The Morales administration is now saying it will “respect” the outcome of the TIPNIS community consultation and “fulfill” the community’s desire. It’s not clear whether this is a one-time deal or a legal interpretation that the government expects to follow in all cases.
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Posted in Bolivia, South American Environment
Tagged Bolivia, Bolivian Constitution, Bolivian environmental law, consultation versus consent, Environmental law, National Environmental Protection Act, NEPA, public comment, TIPNIS