15 and 22Nov11
The APGIG Condemns the Campaign of Intimidation in Respect of its Right to Consultation
Press Release
In light of various press articles published in Tarija, particularly in the newspaper "Nuevo Sur", concerning a campaign intended to intimidate the Guarani People of the Itika Guasu into "authorising" the environmental licence in connection with the Second Phase of the Extension of the Villamontes-Tarija Gas Pipeline, we find ourselves obligated to clarify the following points:
1) The said campaign has been incited by the Ministry of Hydrocarbons and the Environment (MHE) and the company YPFB Transportes S.A. (formerly Transredes SA) with the objective of intimidating and coercing our organisation with an interpretation of the situation that we can only described as racist and which blames the indigenous peoples for not permitting the installation of the gas pipeline.
2) This campaign ignores the fact that it was the MHE itself that forbade the companies Petrobras SA and Transredes from negotiating with our organisation, a fact which is legally documented.
3) YPFB Transportes SA is the corporate successor of Transredes SA and therefore, is legally responsible for the latter's environmental liabilities and other liabilities resulting from the violation of indigenous rights. This point is legally indisputable but nevertheless denied by the official representatives of YPFB Transportes SA who continue to engage in the same practices that violate the rights of the indigenous peoples as did the former Transredes S.A. in Phase I and II of the gas pipeline.
4) On November 9th, 2011, a meeting was held at the request of MHE represented by the lawyer Felipe Calisaya and the environmental representative Mauricio Tejeda. During this meeting, Felipe Calisaya, - who claims to represent the companies Petrobras S.A. and YPFB Transportes S.A. (formerly Transredes SA), although there appears to be no relevant power of attorney giving him such authority - did not alter or amend in any respect the original position of these companies but instead set out the opposition of YPFB Transportes S.A. and of the MHE itself to compliance with the constitutional judgment 2003/2010-R, which they consider "inapplicable" according to the lawyers of YPFB Transportes S.A.. The explanation for this position was not supported by a single document.
5) The APG IG held clearly unproductive meetings with the MHE on April 26th, 2011, June 10th, 2011 and July 21st, 2011. Most of these meetings are documented with notarial minutes that demonstrate that the MHE has acted in violation of the principle of good faith. This is an essential requirement of our right to consultation from both the perspective of international law regarding indigenous rights, and from that of domestic Bolivian law, including constitutional law, which has been ratified in this case by the constitutional judgement 2003/2010-R.
6) With reference to the legal successor of Transredes SA, YPFB Transportes S.A., we attempted to put into motion the necessary negotiations between our organisation and YPFB Transportes S.A. and, in fact, an official document was signed on February 25th, 2011 outlining the negotiation agenda. Despite this, YPFB did not comply with any of the points agreed upon in the official document, and even refused to give due consideration to a proposed agreement drafted by our organisation. Once again, the company's behaviour is marked with bad faith and a denial of our rights, just as in the case of the former Transredes S.A..
Dino Beltrán José Larrazábal 7) On November 11th, 2011, in response to a request for an interview, we met at our headquarters in Entre Rios with Dino Beltrán, Secretary of Hydrocarbons, Marcela Maldonado, Environmental Representative of the Hydrocarbons Secretariat of the Regional Government and Mr. José Larrazábal, executive regional representative of the Federación Departamental del Auto Transporte "15 de Abril".
Due to the statements made by Mr. Dino Beltrán regarding the energy balance in the city of Tarija that implied that the APG IG was blocking the development of the gas pipeline, it was necessary to reply firmly and emphatically, but according to the Rule of Law, to refute each and every point expressed, and to demonstrate that the APG IG is not responsible for this situation; it should also be remembered that relations with the Government of Tarija are practically non-existent as they have failed to comply with any of the APG IG's requirements and/or requests for information.
Mr. José Larrazábal, executive representative of Auto Transporte "15 de Abril" was permitted to participate in the meeting as an observer so that he could verify first hand that the demands that he made in writing to our organisation were based on completely false assumptions.
It was explained to both men that the negotiation which includes the granting of the environmental license, was blocked because of the extraordinary behaviour of YPFB Transportes S.A. and that there can be only two parties to the negotiation: the APG IG and the contractor company. Until YPFB Transportes S.A. decides to begin negotiating seriously and responsibly, our organisation cannot do more than what it has done so far in absolute good faith.
8) Therefore, any statement that the APG IG is responsible for the delay in the gas pipeline project is a falsehood that is unsupported by the facts and is intended to intimidate and humiliate us once again. In neither Phase of the gas pipeline did we receive information concerning the technical plans for the pipeline, which obviously is the responsibility of the contractor company and the authorities whose duty it is to ensure that the company acts in accordance with the law.
9) The right to consultation is set out in the Constitution of the State itself and, in our case, expressly confirmed by the Constitutional Court in the case Sedeca vs. APG IG. Refusing to implement this judgment is not only a serious violation of law, but also means in practice that we have no property rights over our Original Community Territory (TCO) and that the domestic laws and the constitutional judgment are not applicable to indigenous peoples.
10) Both the right to consultation, as well as the property rights over the Itika Guasu TCO are inalienable from the APG IG, not only because it is a right to which we are entitled, but also because if we were to renounce these rights, we would be ourselves breaching the law.
11) For all the above-stated reasons, we call upon the social organisations in the Department of Tarija to contact the relevant authorities and the management of YPFB Transporte SA to ensure that they comply with law and act in good faith. This is the only solution to the current situation, given that, as an indigenous organisation, we are clearly not technically responsible for the planning of the gas pipeline or for its obvious delay.
Additional Points from November 22nd
12) The statements made by the President of YPFB Transportes S.A. (formerly Transredes S.A.), Fernando Vincenti Vargas, after we had already released our communiqué dated November 15th 2011, are completely false and defamatory and are based, as we have already mentioned, on a racist analysis of the conflict. They constitute clear proof that he has no intention to reach an agreement, in flagrant violation of article 6.2 of the Convention 169 and has been acting in obvious bad faith, which necessarily leads to the nullity of all attempts to apply the right to consultation.
13) With respect to the interviews given by our organisation at our headquarters in Entre Rios on the 9 and 11 of November 2011, we only need to clarify that the strategy followed was previously established by our organisation's Board at least one month before the interviews took place and that, as documented by previous correspondence, they were neither a "consultation" nor an "informative assembly". As such, the protocol in these meetings proceeded exactly as foreseen, that is to say we responded point by point to all of the illegal or false proposals that were presented to us as is to be expected in an interview given pursuant to our demonstrated good faith.
14) The comments made regarding what occurred during these interviews fail to reveal that the APG IG Zonal and Communal Mburuvichas, members of the legal department, employees from the project department and the commission of legal supervision were present at both interviews. They were presided by the member of the board responsible for Natural Resources. To attempt to assert blame for the situation on a foreign advisor is just one more manifestation of the racist analysis which we denounce, according to which we as indigenous peoples are ignorant and stupid and do not know what we are doing simply because we have a strategy that does not match the expectations of the intelligent and clear-thinking representatives of the MHE - these being the lawyer Felipe Calisaya and the environmental director Mauricio Tejeda, as well as Dino Beltrán, Secretary of Hydrocarbons, Marcela Maldonado, environmental representative of the Regional Hydrocarbons Secretariat, and Mr. José Larrazábal, Departmental Executive of the Federación Departamental del Auto Transporte "15 de Abril". Their attitude is further exacerbated by the fact that their statements are contrary to the CPE and the constitutional judgment 2003/2010-R.
15) With reference to our consultants, it is obvious that it is within our right of autonomy as an indigenous association to have legal, economic, notarial, environmental or other specialised consultants for our long-term legal strategy, as well to be advised by other human rights organisations, universities and specialists in international criminal law, international commercial law and international environmental law, and that we have no obligation to request permission from any company or from the national or departmental governments.
Entre Rios, November 15th and 22nd, 2011
Never Barrientos
President APG IGFlorentino Zeballos
Vice-president APG IGBenildo Vaca
Natural Resources Representative APG IGGregorio Barrientos
Education Representative APG IGZacarías Cuellar
Infrastructure Representative APG IGÁngela Tagüe
Health Representative APG IGFernando Cuellar
Production Representative APG IG
