ordered the company to obtain permission
The ruling states that, to work there, the company must have permission of the Mapuche community. A precedent for communities in conflict throughout the country. By Dario Aranda
In indigenous communities, and between indigenous law attorneys can be heard in a while a statement, a mixture of hypothesis and desire, but also legal support: indigenous rights be respected, the businesses and governments can not move forward unilaterally on indigenous territories. The Court of Neuquén has just taken a step in that direction. Ruled against an oil company that sought to prevent the claims of the Mapuche community Wentru Trawel Leufu (Men Gathered River) affected by the invasion of their ancestral territory. The ruling, the first of its kind in Neuquén and will be a precedent for other causes of the country, states that violated the law by failing to inform and obtain the approval of the community to exploit natural resources, stresses the obligation to respect leafy legislation (national and international) that protect indigenous rights and also points to the role of other powers: "Any government neglect (the laws cited) should be considered as a discriminator of indigenous peoples."
In January 2007 the government gave the oil Neuquén Piedra del Aguila granting 3800 hectares in the region of Leufú Picún in the center of the province. In the place you live from the middle of last century Trawel Leufu Wentru community. In late 2007, the company came to the place and demanded land rights, but banned from entering the community. In July 2008, returned with new strategy offered money for permits for exploration and extraction. "The oil industry is opposed to our way of life. We did not authorize, "was the unanimous answer. The oil entered by force Mapuche territory, attacked members of the community and hired 40 people, assuming the label of unemployed waiting for a job repressed indigenous families, killed nearly a hundred animals, set fire to two houses and a vehicle, and sustained a process of attrition to evict the community from their land. Began a strong local and provincial campaign to hold the Mapuche for allegedly locking oil investments, which, as requested by the company, would imply benefits for the people and jobs. This newspaper became aware of these episodes in the edition of February 10, 2008.
pressure on the community included the prosecution: the company filed an appeal to Justice Mapuche community prohibits direct actions that would "hamper" the extraction of hydrocarbons in the Community territory. Within 24 hours, Judge Graciela Blanco issued an injunction which ordered the members of the community to refrain from preventing the work of the company. The defense claimed that no account was taken of indigenous law.
appeal ensued and, after three years, the statement, issued by the Civil Court Cutral-Co 2, denied the request and prioritized under Indian law. "It rejected the action brought by Petrolera Piedra del Aguila", sums up the court ruling unprecedented and inconsiderate remarks that action by companies and governments violates the Constitution and of Neuquén, and international treaties supraley Range (Convention 169 of the International Labour Organization). Also disregarded the United Nations Declaration on the Rights of Indigenous Peoples. The ruling highlights the need to implement these standards and denies that, as often happens in the courts, it seeks to impose the Civil Code on the Constitution and international treaties.
"community recognizes and acknowledges the EU territory and constitutional. States that the common ownership of indigenous peoples is not the individual possession of the Civil Code. Based on the pre-existence to the state, "said director of the Observatory of Human Rights of Indigenous Peoples (Odhpi), Juan Manuel Salgado.
The ruling, issued on Feb. 16 but released this week, also highlights an essential right in indigenous territories. "You must ensure the participation of indigenous peoples in the management of their natural resources and other matters affecting (...). Affirming the right of participation implies that communities should always be consulted when they intend to adopt legislative or administrative measures which may affect, either directly or indirectly, "said the judge Mario Tommasi, and explained that participation indigenous communities should be free and fully in all stages of the process and that consultation should be made prior to the adoption of decisions that affect them.
Regarding the case, ruling: "It has not shown compliance with full and proper consultation and participation procedures prescribed by Article 75, paragraph 17 of the Constitution, the ILO Convention 169 and Article 53 of Provincial Constitution (...). No warning has been given effect to the procedure of consultation or joint management of resources. On the contrary. " Even
cites case law to the Superior Court of Neuquén, the highest court of the province: "The right of consultation with indigenous peoples is, in essence, a fundamental collective right, which the State is required to establish procedures in good faith intended to collect the views of those free and informed communities, where shares in sight governmental, legislative or administrative measures which may affect them directly. "
The ruling does not address whether the company should leave the site, but makes it clear that you can perform tasks of exploration and exploitation without prior consultation and community involvement. "Justice proved us right now is the Mapuche people mobilized, with road cuts, which prevent operating and pollute our land, "said Juan Carlos Curruhuinca, community Trawel Wentru Leufu.
Although focused on one case (Petrolera Piedra del Aguila and the Mapuche community) over the decision rights approach issues that may extend to the conflicts between native peoples from around the country against extractive industries (oil, Mining, soybeans and forest, etc.). The ruling recognizes that the management of natural resources to the provinces (Article 124 of the Constitution), but in the same sentence they mark a clear limit to the governors to warn that they can not move unilaterally: "A community Indigenous people is guaranteed (by law) participation in issues concerning them. "
Cover photos: Hernán Scandizzo
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