THE FUNDAMENTAL RIGHTS OF INDIGENOUS COMMUNITIES IN BOLIVIA
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THE FUNDAMENTAL RIGHTS OF INDIGENOUS COMMUNITIES IN BOLIVIA
Ferrere
La Paz
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ALEJANDRO PEMINTEL ECHENIQUE is a partner in Ferrere's La Paz, Bolivia offices. His practice is focused on dispute resolution related to corporate matters, civil, constitutional and administrative procedures, as well as arbitration and labour. He graduated as an attorney from Universidad Mayor, Real y Pontificia San Francisco Xavier de Chuquisaca and completed a Master's program in Civil Law at the Universidad Andina Simón Bolivar. He is a member of the Bar Association of La Paz, of the National Bar Association of Bolivia and of the International Bar Association (IBA). He is the author of several articles discussing labor issues and has been a speaker at various workshops on labor reforms to be implemented in Bolivia. He specialises in labour and employment, advising on all issues resulting from labour relations, including the design and implementation of hiring policies, the implications of corporate restructurings and liquidations, and representing clients in conciliations and arbitrations with unions. He also has extensive experience in planning, designing, and implementing activities aimed at the efficient resolution of labour disputes, including complex labour negotiations. He has particularly strong experience representing clients in the mining, hydrocarbons, telecoms, construction, and services industries. For example, he has advised major telecoms company AXS Bolivia, Parmalat, Repsol Bolivia Y&P, Petrex, Fopeca, Nestle, Colgate Palmolive, Bureau Veritas, Maersk, Uber, Ericsson, Quimiza, PilAndina, ECLA, Banco Fortaleza and the cooperative COTAS and leading mining companies, EmpresaMineraPaitití (Orvana Minerals subsidiary) and EmpresaMinera San Cristobal (Sumitomo subsidiary).
BIO: Born in Sucre, Bolivia, in 1979. He graduated as an attorney from Universidad Mayor, Real y Pontificia San Francisco Xavier de Chuquisaca and completed a Master's program in Civil Law at the Universidad AndinaSimón Bolivar. He is a member of the Bar Association of La Paz, of the National Bar Association of Bolivia and of the International Bar Association (IBA). He is the author of several articles discussing labor issues and has been a speaker at various workshops on labor reforms to be implemented in Bolivia.
Is a partner at Ferrere's Bolivia offices. His practice is focused experience in dispute resolution related to corporate matters, civil, constitutional and admistrative procedures, as well as arbitration and labour.
He specialises in labour and employment, advising on all issues resulting from labour relations, including the design and implementation of hiring policies, the implications of corporate restructurings and liquidations, and representing clients in conciliations and arbitrations with unions. He also has extensive experience in planning, designing and implementing activities aimed at the efficient resolution of labour disputes, including complex labour negotiations. He has particularly strong experience representing clients in the mining, hydrocarbons, telecoms, construction and services industries. For example, he has advised major telecoms company AXS Bolivia, Parmalat, Repsol Bolivia Y&P, Petrex, Fopeca, Nestle, Colgate Palmolive, Bureau Veritas, Maersk, Uber, Ericsson, Quimiza, PilAndina, ECLA, Banco Fortaleza and the cooperative COTAS and leading mining companies, EmpresaMineraPaitití (Orvana Minerals subsidiary) and EmpresaMinera San Cristobal (Sumitomo subsidiary).
PAPER: The fundamental rights of indigenous communities in Bolivia1
This is a summary of Chapter Two corresponding to Bolivia 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. Introduction
The incorporation of "indigenous" into the 2009 Constitution is the result of a process in which the representatives of the rural native indigenous peoples were involved in the political movement to protect groups of people that were vulnerable during the colonial and republican history of Bolivia.
In 2006, a Constitutional Assembly was installed in Bolivia to draft a new constitution. This process culminated in 2009 with the passing of a new Political Constitution of the State (the "Constitution"). The indigenous notion is an essential element of the Bolivian Constitution. In its Preamble, the Constitution indicates that the Bolivian peoples are of a plural composition and that, among other events, the anti-colonial indigenous uprisings and indigenous marches that took place between 2003 and 2006 inspired the formation of a new Bolivian State.
The Constitution acknowledges the key role of indigenous peoples in Bolivia. In Article 3, it is recognized that "[t]he Bolivian nation is formed by all Bolivians, male and female, the native indigenous peoples and the intercultural and Afro-Bolivian communities that jointly constitute the Bolivian people."
Further, Article 30.I, defines indigenous peoples as "all human collectives that share a cultural identity, language, historical tradition, institutions, territory and worldview, whose existence predates the Spanish colonial invasion."
The definition of indigenous peoples is complex. Article 30.I of the Constitution further defines "indigenous people" as "rural native indigenous people."
It is necessary to develop each one of the components that form part of this concept:
a) The Constitution establishes a definition with three inseparable elements: (i) native, (ii) indigenous, and (iii) rural (campesino). Therefore, the existence of one of the elements is not sufficient to "categorize" a group or an individual as "indigenous"; all three are needed.
b) In turn, the concept of "rural native indigenous" people includes the following elements:
(i) identity, which is determined by ethnic self-identification factors and a language that can be any of the 35 official languages recognized by Article 5 of the Constitution;2
(ii) historical tradition, which refers to the existence of a collective memory;
(iii) institutions, which refers to the existence of their own political systems in accord with their customs;
(iv) territoriality, which refers to the existence of an identifiable territory in which the rural native indigenous people maintain and develop their socio-economic activities; and
(v) worldview, which refers to the existence of an ancestral collective philosophy of how to see and interpret the world.
The third component of the definition is that rural native indigenous peoplehave to have existed prior to the Spanish colonial invasion as discussed in the Preamble of Constitution.3
II. Fundamental rights of indigenous communities in Bolivia
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The fundamental rights of indigenous communities are set out in the Constitution, international treaties, and legislation:
1. Rights of Indigenous people in the Constitution
a) Rights acknowledging their existence and identity
The acknowledgment of the right of native indigenous nations and peoples to exist with all freedoms and the State's acknowledgment of their collective and individual identity and their right to free determination.4
b) Property Rights
Acknowledgment by the State of rural native indigenous peoples' right to the collective ownership of lands and territories,5 and the right to collective ownership of their sciences, learning, and knowledge.6
In addition, the Constitution grants rural native indigenous peoples the right to participate in the benefits resulting from the exploitation of natural resources in their territory, the autonomous management of indigenous territories, and the use and benefits of the existing renewable natural resources in their territory without prejudice to any legitimate right acquired by a third party.7
c) Cultural Rights
Acknowledgment of the native indigenous peoples' right to the protection of their sacred places, and the right to have their traditional wisdom, medicine, languages and rituals, symbols, and attire protected, respected and promoted.8
d) Rights to Political Participation
Acknowledgment of rural native indigenous peoples' right to participate in the different government powers (Judicial Power, Legislative Power, Executive Power and Electoral Power) and State institutions;9 the right to be consulted by appropriate procedures, through their institutions, regarding legislative and administrative measures that could affect them.10
Prior consultation by the State is mandatory (in good faith and with the goal of reaching an agreement11 ) with respect to the exploitation of non-renewable natural resources in territories they occupy.12
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e) The right of recognition of indigenous institutions
Indigenous institutions are a recognized part of the general structure of the State, which, in turn, means that these institutions are given an official role;13 likewise, rural native indigenous peoples are entitled to exercise their political, legal and economic rights in accordance with their customs and worldview, and to create and administer their own communication systems and networks.
f) Right to health and to a healthy environment
Their right to live in a healthy environment with appropriate management and exploitation of the ecosystems. Access to the universal, free healthcare system, respecting their worldview and traditional practices.14
g) Right to education
The right to an intra-cultural, intercultural and multilingual education.15
2. International Treaties
Prior to the 2009 Constitution, Bolivia ratified the following treaties:
• The United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), 16 and
• The International Labour...
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