A Halt on Illegal Mining in Bolivia

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Mining in the Madre de Dios River. Photo: MMAYA

Gold mining is booming on the banks of the rivers that cross Indigenous territories and national parks in the Bolivian Amazon. Faced with mercury contamination, the Indigenous Peoples of northern La Paz won a constitutional court action that puts a stop to illegal mining activities. The ruling allows a discussion of the way in which free, prior and informed consultation and consent are being applied, and reflection on the collective use of the commons. Looking to the future, this historic resolution strengthens the development of autonomous protocols and the position of the territories that have decided to declare themselves free of mining.

Organized in the Central de Pueblos Indígenas de La Paz (CPILAP), the Tacanas, Mosetenes, Tsimanes, Uchupiamonas, Lecos and Araonas that inhabit the Northern Amazon are fighting against the advance of illegal gold mining in the region. As a result, they filed a Popular Action and obtained a favorable Constitutional Resolution that has paved the way for the defense of territories, life and water, as well as for the re-signification of their right to self-determination.

One of the central aspects of this legal conquest has been to put back on the table the scope and purpose of the Indigenous right to free, prior and informed consultation and consent (FPIC), [Consentimiento Libre, Previo e Informado CLPI, in Spanish]. No longer as a mere procedure functional to the prevailing development model, rigged by extractivist actors and state complicity. But as a political tool that allows people to freely deliberate on their common future and to enforce their own visions of development.

At this moment, CPILAP is trying to avoid the onslaught from the mining cooperative sector and is facing the unwillingness of the Central Government to comply with the Constitutional Resolution. At the same time, and more importantly, it is undergoing a process of deep reflection on the use, management, administration and territorial control that is not limited to the decisions that a single community or territory can make, but to what the broader collective that is interrelated through the rivers wants.

Mining activity between Guanay and Teoponte, north of La Paz. Photo: José Carlos Solón

Mercury Contamination in the Bolivian Amazon

In 2023, a scientific study carried out by the Central de Pueblos Indígenas de La Paz (CPILAP) together with the Universidad Mayor de San Andrés (UMSA) revealed that 75 percent of Indigenous Peoples in the northern Amazon are poisoned with high levels of mercury. In the most extreme cases, there are people who exceed 10 parts per million of mercury, nine times the level allowed by the World Health Organization (WHO). This level of exposure affects neurological development, causing tremors, memory loss, motor dysfunction, headaches and is dangerous for intrauterine development.

Countering mining critics about the absence of scientific data, the study collected hair samples from 302 people from 36 communities in various Indigenous territories. The results revealed that the peoples with the highest mercury levels are those living in the lower part of the Beni river basin: the Ese Ejja and the Tsimanes. Although these people do not engage in mining activities, they come into contact with the substance through the consumption of fish, their main daily source of protein. This means that mining activity in the upper reaches of the rivers impacts the people in the lower areas.

The publication of this data has triggered a serious discussion within CPILAP’s decision-making spaces, whose territorial organizations had already been feeling the effects of legal and illegal mining activity on the contamination of their water sources, the health of their populations and the increase in social conflict. At the same time, it has created tension between two contradictory visions regarding the collective use of the region’s common goods: while some communities are engaged in mining activities, there are territories that declare themselves free of mining.

Most of the six Indigenous Peoples represented by the Central de Pueblos Indígenas de La Paz have legally consolidated living spaces. In some cases, they even have a double quality of protection, as they overlap with Protected Areas such as the Madidi National Park and the Pilón Lajas Reserve. However, this is not enough, and they face a dispute over the use of their territories with private, public and even Indigenous stakeholders.

Hair sampling in a community. Photo: CPILAP

A Popular Action in Defense of Life

Based on the results of the study, the leaders of CPILAP filed a Popular Action for the violation of their rights to self-determination, to free, prior and informed consultation and consent, to a healthy environment, to health and to the integrity of the Indigenous territories north of La Paz. The organization blamed illegal mining activity in the Beni, Madre de Dios and their tributaries (the Kaka, Alto Beni, Tuichi and Quiquibey rivers).

The Popular Action is a defense action recognized in the Political Constitution of the State that proceeds in the face of any act or omission of authorities or persons that violate or threaten to violate collective rights. It is related to patrimony, space, safety, public health and the environment. According to the plaintiffs, the authorities had failed in their duty to control illegal gold mining activity using toxic substances such as mercury. In addition, they had failed to take effective measures to protect Indigenous rights.

On September 8, 2023, the Public Court of Rurrenabaque, constituted as Tribunal of Constitutional Guarantees, granted the protection requested by CPILAP and through Resolution No. 05/2023 ordered the suspension of all illegal mining activities and those without environmental licenses in the Beni and Madre de Dios rivers and their tributaries. At the same time, it established the prohibition of granting new mining rights in their basins until effective controls are conducted on environmental liabilities and programs are implemented to rehabilitate the waters. In addition to this judicial halt to the illegal gold mining advance, other measures were taken to ensure that the State redress Indigenous rights to health, participation and integral management of their territories.

This decision is historic. Not only for the peoples of the Northern Amazon, but for all Indigenous Peoples of Bolivia, as it sets a fundamental precedent against mining that devastates rivers, protected areas and territories. In this way, the Constitutional Resolution becomes a tool for demanding guarantees in the exercise of collective rights and demonstrates the state’s obligation to conduct effective control to prevent the proliferation of illegal mining activities in the country.

CPILAP leaders in front of the Departmental Court of Beni. Photo: Daniela Vidal

The Resignification of the Right to Consultation and Consent

In Bolivia, mining consultation is regulated by Law No. 535 of 2014. The procedure only covers new exploitation requests (not exploration cases) and contemplates a maximum of three meetings financed by the potential mining operator. The last word is left to the Ministry of Mining, in case the “consulted” subjects do not express their agreement. Financing is not a minor issue because whoever puts up the money sets the rules and, in this way, the State omits its duty to guarantee a symmetrical and impartial process.

It is important to clarify that, according to Law 535/2014, the mining operator must only “consult” the communities in which its work grid would be located and not all those that would be affected by its activity (such as those downstream). At the same time, it is not obliged to report on the socio-environmental impact it will cause, nor to propose mitigation measures. Concurrently, the legislation exempts from the consultation obligation those productive actors with pre-constituted mining rights (a legal figure whose scope is uncertain), who must only adapt to the new mining regime.

In this context, the Court of Guarantees emphasized that consultation and free, prior and informed consent is a state duty and a principle of governance. This implies a type of relationship between the State and Indigenous Peoples, as a mechanism for exercising direct and participatory democracy: “Consultation must be in good faith, legitimate, free, appropriate to the circumstances, sufficiently informed and concerted, with the aim of reaching an agreement or, where appropriate, obtaining consent with respect to the issues consulted”.

In addition to mentioning ILO Convention 169 (ratified by Law 1257/ 1991) and the United Nations Declaration on the Rights of Indigenous Peoples (ratified by Law 3760/2007), the Court recalled the ruling of the Inter-American Court of Human Rights on the Case of the Saramaka People v. Suriname: a consultation is an active process, which contemplates constant communication between the parties, and cannot be carried out only when the need arises to obtain the approval of the community. In this way, it emphasizes that FPIC is a permanent democratic dialogue in which the State must intervene to ensure that the fundamental rights of the peoples are not violated.

Indigenous Peoples pay the price for gold mining. Infographics: CPILAP

An Opportunity to Redefine the Consultation

In addition to stopping illegal mining, this Constitutional Resolution opens the possibility of discussing and rethinking the way in which the right to consultation and free, prior and informed consent is being applied in Bolivia. In this sense, the Court of Guarantees orders the Mining Administrative Jurisdictional Authority (AJAM) to “develop true processes of prior consultation”, according to international standards. The judicial decision states that this process must also cover cases of suitability for pre-constituted rights.

The Court points out that Law No. 535/2014 has “suspicious categories ignoring the right to prior consultation”, a right that acquired constitutional rank in 2009, but that was already part of the conventional norm since 1991, with the ratification of ILO Convention 169 and, therefore, already required an obligatory compliance for the State. Thus, the judicial authority holds that, although the mining law establishes a procedure to conduct the consultation, it cannot disregard the referred standards because they have “preferential application because they have primacy over any other normative provision”.

In relation to pre-constituted mining rights, it is still necessary to clearly establish their scope, since there is a legal vacuum that is being used by the mining sector to legalize its activities within protected areas and ancestral territories. In any case, the Judicial Resolution considers that the pre-constituted condition should not be an argument for the mining actor to disassociate itself from the obligation to conduct an adequate consultation since, being a constitutional right, it must be guaranteed even if it is delayed. Otherwise, an unconstitutional situation would be maintained indefinitely.

In practice, the consultation processes suffer from a lack of credibility. There are even territories within the CPILAP that, not wanting gold mining activities, refuse to be consulted because they consider that the procedures are manipulated in favor of mining interests. What is being questioned is that there are no guarantees that the State will respect collective decisions. For this very reason, the constitutional interpretation expressed in Resolution 05/2023 opens the ground for disputing the legal scope and political meaning of the consultation, whose central principle is self-determination.

In November 2023, in protest of the court ruling, thousands of mining cooperative members paralyzed La Paz. Photo: APG

The Next Steps

Although the constitutional resolution against illegal gold mining provides a more favorable scenario for Indigenous territorial struggles, CPILAP still has to face three conflicting scenarios: an institutional framework that favors the interests of mining over collective rights and the rights of nature; a strong mining cooperative sector with national mobilization capacity that constantly obtains concessions from the government; and the increase of mining activity within the organizations themselves.

Consequently, in the context of a profound judicial crisis in Bolivia, compliance with Judicial Resolution No. 05/2023 has yet to be achieved almost six months after its pronouncement. Even though these types of constitutional decisions require immediate and mandatory execution, the authorities responsible for complying with the Court’s provisions are reluctant to take effective action. For its part, the CPILAP has pointed out that the Popular Action obtained cannot be renounced and is non-negotiable.

At the same time, this judicialization process has initiated a more important discussion: the elaboration of autonomous protocols for consultation and free, prior and informed consent based on the collective definition of procedures and forms specific to each of the peoples that make up the CPILAP. The protocols should reflect a consensus regarding the limits of mining activities in the territories of the upper river basins, while at the same time respecting those territories that have decided to declare themselves free of mining and do not wish to undergo any consultation process because they have already deliberated their rejection of this activity.

These discussions will have to recognize the existing tensions surrounding the use of the territorial commons, in a regional context threatened not only by gold mining, but also by large public projects such as the monoculture of sugarcane to obtain sugar and African palm to produce biofuels. For this reason, this is a fundamental debate that explores the possibility of the right to free, prior and informed consultation and consent as a real tool to guide Indigenous Peoples towards their self-determination.

Fátima Monasterio Mercado

Fátima Monasterio Mercado is a lawyer and researcher at the Solón Foundation. She is also the Coordinator of the Indigenous Peoples, Autonomies and Collective Rights Working Group of the Latin American Council of Social Sciences (CLACSO).