So far this year two Argentine court decisions reinforced the requirement of consultation prior to any legislative or administrative action affecting indigenous peoples.
The decisions by the Court of First Instance and the Superior Court of Justice, or STJ, in the southern province of Neuquén, regarding the Mapuche communities of Huenctru Trawel Leufú and Mellao Morales, are important in Argentina, where very few rulings address these issues, and where consultation is not instituted as a State practice. The verdicts halt the development of two mining projects, one for hydrocarbons and another for metal mining.
In February, Judge Mario Tommasi of the Court of First Instance No. 2 in the city of Cutral Co, Neuquén, rejected an appeal filed in 2007 by Petrolera Piedra del Águila, a domestically-funded firm. The appeal sought to ensure the company’s entry into the fields of Los Leones, Umbral and Ramos Mexia, which were blocked by the Mapuche community of Huenctru Trawel Leufú, since these are on their territory.
Despite the provincial government’s decrees (1271/97, 4716/99 and 0278/07) that supported the company, the magistrate denied the activity because it sought to enter indigenous territory without having “demonstrated full and proper compliance with the procedures for consultation and participation” as prescribed by Article 75 of the Constitution (with the specifications contained in Articles 6, 7 and 15 of the International Labor Organization’s Convention 169 on the Rights of Indigenous and Tribal People, which was ratified by Law 24 071) as well as by Article 53 of the Provincial Constitution, and Articles 10, 19, 29 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples.
“It is the first time that the full extent of ILO Convention 169 has been recognized, and that the United Nations Declaration is cited; it is a ruling that totally complies with the rights of indigenous communities,” said Juan Manuel Salgado, the lawyer for the Huenctru Trawel Leufú community and director of the Observatory of Human Rights for Indigenous Peoples. He stressed that “at first glance, [the verdict] justifies that the community not allow in the oil company.”
The decision to “protect the territory” cost the villagers — not only there were several criminal cases lodged against them, but they were also subjected to arson attacks and for four years suffered harassment by security forces and civilians.
Court backs the Mapuche community
The community of Mellao Morales filed a case in 2008 to annul the contract between the Corporación Minera Neuquina, or Cormine — which belongs to the provincial government — and the Chinese firm Emprendimientos Mineros. The lawsuit alleged that the agreement gave the Asian company control of a disseminated copper deposit in indigenous territory, in violation of indigenous and environmental legislation. The community also filed an injunction to halt the project until the substantive issues were resolved.
Trial judge Paula Stanislavski, of Neuquén’s Court No. 1, declined jurisdiction and referred the case to the STJ. On September 28, 2009, the province’s highest court returned the case to the lower court, but before that ruled in favor of the Mapuche regarding the injunction, based on the ILO Convention 169 that protects the right to “collective existence, cultural identity, to their own institutions and the right to participation. In particular, as support for the injunction, we refer to the text of Articles 6.1, 6.2 and 15 — the right of consultation.”
The Public Prosecutor for the State of Neuquén and Cormine appealed. On March 29, the Superior Court of Justice rejected the appeal and upheld the arguments of the earlier decision. Meanwhile, the trial to annul the contract is ongoing.
“These rulings are rare. I think judges have moved a little outside of the judiciary’s logic and the letter of the law. So now maybe that will have a contagious effect, or maybe they will just be isolated incidents. Obviously supporting this is the backing of indigenous peoples, who no longer accept that mega-projects saunter into our territories,” said Jorge Nahuel, werken [spokesman] for the Neuquén Mapuche Confederation, or CMN, and lonko [political authority] for the Nehuén Mapu community.
“It took 10 years before the judiciary could understand that it is urgent and fair to apply the principle of right to consultation!” he stressed, highlighting the decade since Argentina’s ratification of the ILO Convention 169 in July 2000.
For her part, Silvina Ramírez, president of the Argentine Association for Indigenous Rights, emphasized that in addition to its legal value, both rulings have particular relevance for having been issued by courts in Neuquén, “where the tension between the State and indigenous peoples is evident and the relationship has always been very traumatic.”
Meanwhile, Elena Picasso, a lawyer for the Morales Mellao community and member of the Catholic Church’s National Pastoral Aboriginal Team, or Endepa, said: “We are at a level where there is a greater recognition of indigenous rights through the Superior Court, which marks a different perspective.”
Salgado, however, expressed objections to that statement and noted that recent STJ rulings undermined indigenous legislation. He pointed out that in November 2010 the provincial high court rejected the request to declare unconstitutional the 2004 establishment of the municipality of Villa Pehuenia, which took place on three Mapuche communities’ territory without consulting them.
Disputed oil concessions
In 2007 the province’s executive government gave the concessions of Laguna Blanca and Zapala to oil companies Pluspetrol and Enarsa, a decision that affected the territory of 14 Mapuche communities. Pluspetrol and CMN are currently negotiating how both parties can implement consultation.
To that end, werken Relmu Ñanku explained that “it would be something basic that could become a consultation within a legal framework, that is, with the State.”
Nahuel noted that “the current framework says that the State, before approving or studying a possible project that would affect indigenous lands, must conduct a consultation process. Here we see the converse — the concession is given, and then the company is forced to negotiate with the community, and the responsible party for this situation, which is the State, often offers to mediate.”
Just like Neuquén, the province of Rio Negro, as part of its 2006-2007 provincial hydrocarbon exploration plan, invited tenders for 14 areas in Mapuche territory without implementing consultation mechanisms.
In July 2008 the Union of Education Workers of Rio Negro — along with the Indigenous Advisory Council of that province, an organization of the Mapuche people — reported the situation to the ILO Committee of Experts on the Application of Conventions and Recommendations, or CEACR.
CEACR’s 2009 report lamented not having received the required information from the Argentine government with regards to the case, and urged that province ensure consultation and participation procedures. Latinamerica Press.