The Yaqui and their water: While not binding, the consultation only legitimizes dispossession against the indigenous, say experts
**They urge that the country recognise indigenous communities as subjects of public law
**In the Yaqui conflict over water, they should be “participants in the discussion, not those who are expropriated.”
La Jornada, 5th January, 2014
Three experts on indigenous issues, Magdalena Gómez, José del Val and Francisco Lopez Barcenas, maintain that the official practice of holding “free, prior and informed” but non-binding consultations with indigenous peoples regarding use of their lands, when their rights may be affected by administrative or legislative action, qualifies as “an exercise in simulation” which will increase social conflict.
They agreed that to comply with Convention 169 [the Indigenous and Tribal Peoples Convention] of the International Labour Organization (ILO), which is law in Mexico, it is urgent to include in the Constitution the recognition of indigenous peoples as subjects of public law [independent legal agents] and that it make such consultations binding, even if this results in the denial of the carrying out of any project in their territory.
Interviewed in relation to the consultation with the Yaqui tribe of Sonora, ordered by the Supreme Court of Justice of the Nation (SCJN) with regard to the construction and operation of the Independence Aqueduct, which “could affect” the rights Yaquis have to 50 per cent of the water from the La Angostura dam, Gómez [a lawyer specializing in indigenous rights] stated that indigenous peoples use the consultation for, ultimately, defending their right to their territory.
When this is not satisfied, she said, due process is being violated. She stressed that the version of the consultation contained in the General Law of Ecological Balance is “absolutely a violation” of the right to use this instrument. After that, there are only international bodies to appeal to, and when legal channels are closed, people resort to taking actions, she said.
Del Val, director of UNAM’s Mexico Multicultural Nation Programme, said that currently the consultation is a way “to legitimize dispossession”. In the case of the Yaqui it is “also a pretence, because when the Supreme Court ordered the consultation to be held, they ought to have stopped work on the aqueduct, but state authorities said they wouldn’t do so. The court issued another legal order and, meanwhile, millions of cubic meters of water were leaving. It is a trick to say that the water is for Hermosillo… it has to do with guaranteeing cheap water …for the 270 valves that are in the Independence Aqueduct which are for big businesses and farmers in the region,” he said.
He proposed indigenous peoples demand to be project partners who are consulted and who share in the profits of the businesses, so it isn’t an expropriation, i.e., so that development is not based on neo-colonial dispossession.
He said that in the case of the Sierra Norte of the state of Puebla, 70 mining concessions have been granted, many of them for open pit mines, and the people flatly refuse to accept this because it will wipe out their lands, forests, rivers and springs. Del Val said, to start with, Mexico, like Canada, should definitely ban open-pit mining. [Translator’s Note: the majority of mining companies are Canadian.] “It leaves behind acidified groundwater and the government doesn’t assume responsibility for the destruction of nature and the implications that what they leave behind will have for us.”
He stressed that it is necessary to accept the “No” of indigenous communities, “because we must also dispel the myth of development, which has made the people abandon their land, their productive capacities, and wait to see what the State will give them. One has to say: ‘it has to do with the good life and this is something different.’ I asked them (in Totonicapan, Veracruz): ‘Why would all of you want to be planting vanilla, if the price will crash after a while, or coffee? Start planting as you always did here: corn, beans, peppers, squash, have your chickens and you will live well. Don’t wait for the state to give you a project that it won’t give you …” In addition, there is much land grabbing, he said.
He also emphasized that because the [original] peoples are not recognized as subjects of public law, “everything is very fragile, and they will end up expropriating [their lands]. The Mexican state strips them of a property that could have a lasting value.” He then proposes that one outcome of the consultation with the Yaquis may be for them to want to be partners in the aqueduct, in all the business that is generated by the water that is theirs, and that it be established where a measurement can be taken to know how much they are owed for every litre that is taken, and that they do not accept the expropriation.
To question is an obligation of the State
Del Val also proposes establishing a prosecutor to oversee indigenous rights concerning culture, language and other things, with a deputy prosecutor for indigenous territories, similar to that which exists in the U.S. model. He felt that “what is in the Constitution is enough for a prosecutor to operate”, but some things would have to be regulated.
Regarding what the law on consultations should include, Lopez Barcenas [a lawyer specializing in indigenous rights] stated that it should define the right of indigenous peoples to express their opinion and the State’s obligation to ask those who will be affected by the action to be performed. It ought to define that the authority which is responsible for the action should carry out the consultation, as in the case of the Yaqui, he said.
“Convention 169 says that the consultation is carried out so that there can be consent or agreements. In every case, it should be binding,” he stressed, and added that “there may be many variants: the people give their consent to the project, they give a ‘yes’ conditional on the project being modified, or that they want to be a partner of it or have a partial agreement. For example, the Yaquis may say, ‘the aqueduct is very large’ and only allow one part of it, or outright say ‘we don’t want it’.”
Besides, he said, “it must be taken into account that the consultation is a process, as in the case of the Yaqui. As there is [currently] no law or regulation, the rules must be agreed upon, from how information is provided, in which language, in print or audio … that if the information isn’t understood because it is very technical, the people can contract with advisers in whom they have confidence, paid for by the responsible authority.”
Also, one has to consider the scheduling: in the case of the Yaqui, there are eight groups. Do they hold a consultation all at once or one by one, at the times that each usually holds its community assembly, and would the actual act of consultation would be at the end, to see if they all agree?
Finally, what about the result? Lopez Barcenas mentioned that in the federal Planning Act it is stated that the government may contract under public law with individuals in the development process and the outcome of the consultation must be recorded in the minutes of public law, that is, it does not have to be taken to a court to become valid. He believes that this would give certainty to the parties regarding the outcome.
Translated by Reed Brundage
Translator’s Note: Convention No.169 is a legally binding international instrument open to ratification, which deals specifically with the rights of indigenous and tribal peoples. To date, it has been ratified by 20 countries, including Mexico. Once a country ratifies the Convention, it has one year to align legislation, policies and programs to the Convention before it becomes legally binding. Countries that have ratified the Convention are subject to supervision with regards to its implementation.