SUMMARY OF PARAGUAY CHAPTER ON THE BOOK INDIGENOUS RIGHTS IN SOUTH AMERICA--FPIC AND OTHER KEY ISSUES FOR NATURAL RESOURCE DEVELOPMENTS

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment (April 2017)
CHAPTER 18D
SUMMARY OF PARAGUAY CHAPTER ON THE BOOK INDIGENOUS RIGHTS IN SOUTH AMERICA--FPIC AND OTHER KEY ISSUES FOR NATURAL RESOURCE DEVELOPMENTS
Marta Martínez
Associate
Vouga Abogados
Asunción

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MARTA GISELA MARTÍNEZ is with Vouga Abogados in Asunción, Paraguay. She received her law degree from the National University of Asunción (2008), Master in Public Administration from Political and Social Sciences School at the Complutense University of Madrid (2010) and Master in Public Law from the Law School of the University Complutense of Madrid. She has a pending thesis defense for the PhD in Administrative Law at the Complutense University of Madrid. As a teacher, she was hired as an honorary collaborator of the Department of Administrative Law at the Complutense University of Madrid for several years. She has participated in several research projects and has published several articles, of which the most distinguished are "El proceso contencioso administrativo en la República del Paraguay: Evolución histórica,marco legal vigente y Análisis comparado" in the collective work: "Por el Derecho y la Libertad," a tribute book to Professor Juan Santamaria Pastor. Editorial Iustel, 2014. p. 443-492 and "Reflecciones sobre la incidencia de la Ley de Economía sostenible en la Ley de Defensa de la Competencia", published in the Gazeta Jurídica de la Unión Europea y Defensa de la Competencia. No. 22, 2011. Page 9-21. In the professional field she worked at the Judiciary, as well as in several institutions of the executive branch. On issues of indigenous law her work stands out as consultant from the World Bank's for the regularization program of indigenous lands, providing functions as a lawyer in the "Instituto Paraguayo del Índigena" (2009). Matters of regulations, she has been an attorney for the "Comisión Nacional de Telecomunicaciones" (2014-2016). She has also served as General Secretary of the Ministry of Justice in 2016.

BIO: Graduated from the National University of Asuncion (2008), Master in Public Administration from Political and Social Sciences School at the Complutense University of Madrid (2010) and Master in Public Law from the Law School of the University Complutense of Madrid (2011).

She has a pending thesis defense for the PhDin Administrative Law at the Complutense University of Madrid. As a teacher, was hired as a honorary collaborator of the Department of Administrative Law at the Complutense University of Madrid for several years. She has participated in several research projects and has published several articles, of which the most distinguished are "El proceso contencioso administrativo en la República del Paraguay: Evolución histórica, marco legal vigente y Análisis comparado" in the collective work: "Por el Derecho y la Libertad", a tribute book to Professor Juan Santamaria Pastor. Editorial Iustel, 2014. p. 443-492 and "Reflexiones sobre la incidencia de la Ley de Economía sostenible en la Ley de Defensa de la Competencia", published in the Gazeta Jurídica de la Unión Europea y Defensa de la Competencia. No. 22, 2011. Page 9-21.

In the professional field she worked at the Judiciary, as well as in several institutions of the executive branch. On issues of indigenous law her work stands out as consultant from the World Bank's for the regularization program of indigenous lands, providing functions as a lawyer in the "Instituto Paraguayo Del Índigena" (2009). Matters of regulations, she has been an attorney for the "Comisión Nacional de Telecomunicaciones" (2014-2016). She has also served as General Secretary of the Ministry of Justice in 2016. Now she is currently working at the Vouga Paraguay Law firm.

Paper: Summary of Paraguay Chapter on the Book Indigenous Rights in South America - FPIC and Other Key Issues for Natural Resource Developments

This is a summary by Marta Gisela Martinez of Chapter Eight corresponding to Paraguay of the Book Indigenous Rights in South America - FPIC and Other Key Issues for Natural Resource Developments, Ed. Rocky Mountain Mineral Law Foundation, U.S.A. Colorado, 2016.

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I. Is there a definition of indigenous people? And are mixed heritage communities or other traditional communities included in the definition?

In Paraguay the matter of indigenous peoples is mainly regulated by articles 62 to 67 of the National Constitution ("Constitution"); the Statute of Indigenous Communities, Law No. 904/81 (in Spanish, Estatuto de las Comunidades Indígenas) ("Indigenous Communities Statute"); and Law No. 234/93, which "Approves the ILO Convention No. 169" (ILO 169).

The relevant articles of the Constitution are as follows:

• Article 62: This Constitution recognizes the existence of the indigenous peoples, defined as cultural groups existing prior to the formation and the organization of the Paraguayan State. ¹

• Article 63: The right of the indigenous peoples to preserve and to nurture their ethnic identity on their traditional lands is recognized and guaranteed. They have the right, likewise, to freely apply their systems of political, social, economic, cultural, and religious organization, as well as to freely follow their customary laws in internal matters, as long as they do not infringe upon the fundamental rights established in this Constitution. ²

• Article 64: Indigenous peoples have the right to communal ownership of land, sufficient in size and quality to preserve and develop their own lifestyles. The State will provide them with these lands free of charge, and the lands will be indivisible, not subject to seizure or the statute of limitations, non-transferrable, prohibited from leasing or use as security to guarantee contractual obligations, and exempt from taxes. The removal or transfer of the indigenous peoples from their lands without their express consent is prohibited. ³

• Article 65: The right to participate in the economic, social, political and cultural life of the country is guaranteed to the Indigenous peoples in accordance with their customary practices, the Constitution, and the national laws. ⁴

• Article 66: The State will respect the cultural heritage of the indigenous peoples, especially those related to formal education. In addition, they will be protected from decline in population, the degradation of their lands, environmental contamination, economic exploitation, and cultural alienation. ⁵

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• Article 67: The members of the indigenous peoples are exempt from providing social, civil or military services, as well as from the public responsibilities or burdens established by the law. ⁶

In order of hierarchy, the Constitution is the supreme law in Paraguay, followed by international treaties, then local laws, and then decrees, resolutions and ordinances.

Therefore, after the Constitution we must consider the definition provided by ILO 169, to which Paraguay is a party, which defines indigenous people as (i) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; and (b) people in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

Next is the Indigenous Communities Statute that, as the principal internal law, establishes a two-tier definition: (1) indigenous communities are a group of large families, clans or group of clans, that (a) possess a culture and authority system of their own, (b) speak an indigenous language, and (c) live on communal lands; and (2) sub-groups of two or more indigenous communities with the same characteristics that identify themselves under the same group.

Notwithstanding all of the above, the definition provided by the Indigenous Communities Statute is the one relied upon by the National Institute of Rural and Land Development (In Spanish Instituto Nacional de Desarrollo Rural y de la Tierra) (INDERT)⁷ for administrative procedures, such as legal entity recognition, or verification and acquisition of lands.

II. Are indigenous or traditional communities' rights protected by supranational, national or sub-national norms? Has any part of the legislation been implemented with the purpose of conforming to ILO 169? Have any rights been recognized by the courts which potentially expand the laws on the topic?

Rights of indigenous communities in Paraguay are protected by the Constitution, which secures, inter alia, the right to common ownership of enough suitable land to ensure the viability of their particular lifestyle. As a result, the Paraguayan State (the State) has the obligation to provide such lands to these communities. These lands will be (i) indivisible, (ii) not subject to forfeiture, seizure, sale or transference, (iii) exempt from any taxes, and (iv) not subject to use as security for any type of contractual obligation. Indigenous communities may not be removed or relocated from their communal land without their express consent.

This constitutional provision is supported by several other international treaties to which Paraguay is a party, such as ILO 169,⁸ the Convention on the Development Fund for Indigenous Communities of Latin America,⁹ and the American Convention on Human Rights ("American Convention").¹⁰

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Regarding internal regulation of the rights of indigenous communities, no further laws have been enacted with the intention to implement ILO 169. In general the...