OBSTACLES TO JUSTICE FOR THE INDIGENOUS
Awas Tingni
Nicaragua
In 1996, Nicaragua issued
a Korean corporation
permission to cut trees
in the communal lands of
the Mayagna indigenous
community, the Awas
Tingni. The community
responded and tried, albeit
unsuccessfully, to prevent the
company from proceeding.
Community members
attempted to solve the
problem first by negotiating
with the government and
then by resorting to the
national judiciary. Finally,
the case was brought to the
Inter-American Commission
on Human Rights, and then
before the Inter-American
Court of Human Rights. This
case marked the first time
the Court had been called
on to address the property
rights afforded to indigenous
populations in the Americas
and the first time the Court
recognized the right to
collective property rights.
down decisions in Paraguay, Nicaragua and Suriname ordering those
states to delimit the territories of the
indigenous communities. Similarly,
the use and exploitation of natural
resources have not been properly regulated. All too often, governments
legislate without prior consultation
with indigenous or tribal communities, in clear violation of ILO Convention 169 14 and the Inter-American
Court of Human Rights rulings.
This June, riots erupted in Peru
after the state passed decrees regulating the use of indigenous lands
and their natural resources without
consulting the indigenous communities affected by these norms. Protests led to clashes with police that
left at least 30 activists and 22 police
officers dead. 15
In contrast, in neighboring
Colombia, the constitutional court
has repeatedly recognized consultation as a fundamental right of indigenous peoples and those of African
descent, and declared laws such as
the General Forest Law (2006) and
the Statute for Rural Development (2007) unconstitutional. 16 The Colombian government has had to renegotiate these laws to act within the Constitution and
to allow consultation with indigenous groups.
Ensuring Justice for All
Meeting these challenges should be high on the
agenda of Latin America’s governments. First, states
must enforce the rights guaranteed in the Inter-American Convention on Human Rights as well as
in international treaties such as ILO Convention 169
and the UN Declaration on the Rights of Indigenous
Peoples that concern delineation of property and
respect for indigenous common law and language.
Second, indigenous authorities must be incorporated
into official justice systems to guarantee equal justice for all citizens. In practice, this is already occurring in many countries, but establishing it as a norm
would ensure that the rule of
law benefits Latin America’s
poorest and most marginalized
citizens.
Third, states should ensure
that their actions do not violate indigenous rights to land,
territory and natural resources,
in particular the right to be
consulted and to participate in
decisions affecting communities at risk. This would not only
ensure that they are in compliance with Convention 169, but
with jurisprudence developed
in national constitutions and
by the Inter-American Court of
Human Rights.
Finally, nongovernmental
institutions must play a stronger role. Traditional legal training should reflect the realities
of an entire society—including
the rural and indigenous.
The region’s law schools
should offer courses on the
application of legal norms in
rural and indigenous communities. Improved legal training for translators and
other court professionals, as well as support for civil
society organizations can contribute to the development of a legal “safety net” for otherwise disenfranchised citizens.
The task is clearly not easy. It requires overcoming
centuries of bias and institutional weakness, along
with structural barriers of poverty, geography and language. The challenge is acute in countries with large
indigenous populations, such as Bolivia, Mexico, Brazil, and Peru. But even in countries with smaller indigenous populations, such as Nicaragua, Argentina and
Chile, judicial systems and the network of civil society organizations need to be strengthened. Until this
happens, the rule of law will still remain a hollow
promise in much of the hemisphere.
