COLLECTIVE RIGHTS
AND ENVIRONMENTAL CONFLICTS
I want my grandmother to live.
Neither the government nor Occidental is
going to kill her,
She is going to live and she knows
how.
Song of Matilde Payaguaje, Indigenous
Secoya, Ecuador
The concept of "collective rights"
emerges from the failings of individual
human rights to adequately protect
indigenous peoples and other traditional
minorities that have unique collective
characteristics. Indigenous rights are
customary rights, and collective rights
arise as a response to the violation of
these customary rights.
A number of legal instruments recognizing
these rights already exist, including the
International Labour Organization's
Convention 169, as well as the political
constitutions of a number of nations,
especially in Latin America.
Participation
One important collective right is the
right to participate in certain activities
or decisions, including those that weaken
other recognized collective rights.
However, this participation can take place
on a number of levels. The highest level is
that of freely expressed consent, based on
full knowledge. This includes the right to
reject or to veto actions by the state with
which the people are in disagreement. For
example, some countries recognize the right
to object to activities or decisions based
on cultural grounds.
The next level is consent, in which the
possibility of a certain amount of
manipulation by the state exists, as
consent can be given without all the
relevant information being available or
through the exercise of pressure.
Less desirable than this is an agreement
in which there is no possibility of veto.
Even if agreement is not reached, the state
can "attempt to reach an agreement" and
continue its actions even in the absence of
consensus.
The difference between participation and
consultation is significant. Participation
means that the concerned indigenous peoples
can participate in the decision-making
process and that their points of view will
be considered and incorporated to a greater
or lesser extent. Participation may allow
the concerned indigenous peoples to play a
significant role in the development and
administration of the proposed
measures.
With consultation, neither agreement nor
the taking into account of opposing
viewpoints is required. It is of no concern
that the population might be opposed to the
proposed action, as long as a symbolic
consultation has been carried out. This is
the method most commonly used by
states.
The Case of the Secoya
An example of inadequate consultation is
the Code of Conduct signed between the
Ecuadorian Secoya people and the Occidental
Petroleum Company. The Secoya, an
Ecuadorian indigenous nationality that was
greatly affected by the era of rubber
exploitation, have a population of only 350
people living in three small communities.
They have traditionally opposed the impacts
of the oil companies operating in their
territory, the major part of which is
located within an oil exploration
concession under the control of Occidental.
Occidental has signed a number of
agreements with their organization, most of
them under pressure and with insufficient
information. One of these agreements is the
Code of Conduct, which applies only to the
dialogue between the two sides.
Even though the rights to participation,
information, consultation and
self-determination of the Secoya people
have been recognized, the Code also
mentions the reciprocal respect of rights.
This implies that subsoil resources are the
property of the Ecuadorian state, in turn
eliminating any possibility for the
indigenous people to veto oil activity. The
Code is simply an agreement regulating the
consultation process: neither the company's
work agenda nor its plans to operate within
the indigenous territory can be altered as
part of the dialogue. This agreement also
constitutes implicit consent for the
company to begin its operations.
It is true that the Secoya people, through
an indigenous organization, signed this
Code of Conduct, and this could be seen as
a form of participation on their part and a
general recognition of the rights of
participation and consultation. However,
the presence of the oil company has in
practice involved a violation of the
collective rights of the Secoya as various
aspects of their lives as a people have
been violated from the cultural, social and
environmental points of view.
An indigenous people occupy a territory,
which is theirs collectively, and is
therefore imprescriptible, inalienable,
inembargable and indivisible according to
Ecuador's constitution. The constitution
further recognizes the right to
participation in the use, enjoyment,
administration, and conservation of
renewable natural resources, but as in the
majority of countries of the world, subsoil
resources are the property of the state.
This creates a contradiction, as the
subsoil cannot be accessed without
affecting the land, nor without affecting
the way of life of the people that inhabit
it.
Characteristics of Collective
Rights
Collective rights are intergenerational.
The right to territory must be understood
from this perspective, since present
generations inherit territory from past
generations and are obliged to hand it over
to future generations. Thus, indigenous
territory does not come under the rubric of
property, but is rather heritage.
Although every indigenous people has its
own form of representation, transnational
companies operate under a system based on
western democracy. In the western system,
it is generally the young who take on
leadership positions, being better able to
communicate with the external world as they
speak, read and write the country's
dominant language. The traditional
authorities are thus often left out of the
decision-making process.
Indigenous peoples are composed of a
number of communities that inhabit a
territory, and collective rights must
therefore reflect this fact. The decision
of a community can affect the territory of
other communities belonging to the same
people. Thus, if a community enters into an
agreement with an oil company allowing it
to enter its area, it could be violating
the right of other communities to maintain
the integrity of the entire territory.
The territory, from the perspective of the
cosmovision of many indigenous peoples, is
not only a physical space but also the
place in which their productive systems
(fishing, hunting, agriculture, extractive
activities, etc.) take place. They depend
upon the possibility of managing the
resources found within the territory.
The knowledge, innovations and practices
that have allowed the communities to
survive as a people, and that have assisted
them in maintaining biodiversity and
natural resources, upholding traditional
mechanisms of internal control, and keeping
alive culture and world views, are also
part of the territory as defined under
collective rights.
For indigenous peoples, then, making
agreements with oil companies is thus to
profane the earth of their ancestors and
future generations, and to break the
cyclical perception of past and present
that is part of their cosmovision.
Elizabeth Bravo
, FoE
Ecuador
