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t the time of the murder of Berta Cáceres, she and the Civil Council of Popular and Indigenous Organizations of Honduras (COPINH) –the organization that she coordinated before her death – found themselves in a fight against businesses that constructed 49 hydroelectric dams throughout the country.
In 2014, COPINH had submitted a complaint before the Special Prosecutor’s Office for Ethnicity and Cultural Heritage to assert that the government approved the projects before it had complied with ILO Convention 169 of the International Labor Organization (ILO). This convention, which was ratified by Honduras in 1995, requires that the government complete a consultation with the indigenous communicates affected by the projects before beginning any projects of this kind.
One of the projects reported by Berta was Agua Zarca, a hydroelectric dam by the company Energy Developments, S.A. (DESA). The project was to be constructed on the Gualcarque River in the western part of the country.
Berta, with COPINH, opposed the construction of the dam because the communities along the river, particularly the community Río Blanco, where from the Honduran indigenous group Lenca and their land were therefore considered indigenous territory. An ancestral title dating back to 1890 established Río Blanco as a communal, indigenous land, defining it as protected territory.
According to ILO Convention 169, if a business wants to construct a project en indigenous territory, the State is responsible for conducting an prior and informed consultation of good faith between the business and the indigenous community. The consultation is an obligatory requriment that must be completed before any contracts or licenses can be finalized for the project.
In the case of Agua Zarca, and the 48 other projects reported by Berta, COPINH claimed that the consultation had not taken place. According to the convention, without the consultation, the licenses for the Agua Zarca dam would be invalid and it would be considered a project that was constructed outside of the fringes of the law.
What is ILO Convention 169?
ILO Convention 169 is the main law behind the conflict between the Lenca community and the hydroelectric, mining and deforestation projects. It is a convention elaborated by the Administration Council of the ILO, an institution under the United Nations that proposes labor standards and practices for governments around the world.
VEA CONVENIO 169
In 1989, the ILO revised the convention to adopt new international standards that reflected an evolved understanding of the rights of indigenous communities. Instead of trying to assimilate indigenous communities, the new convention would guide the relationship between the government and indigenous populations to promote their autonomy and their right to develop their community, culture and land.
Why is it important?
March 28th, 1995, Honduras ratified ILO Convention 169. That means that Honduras accepted the convention as a binding law. In Honduras, ratified international conventions have priority over the laws of the country including the constitution of the republic.
The application of this convention is important in Honduras because it protects the rights of all indigenous communities. The convention protects their right to maintain their own land, culture and customs and requires that they have a voice in decisions that will affect them. It serves to impede the government or private entities from taking advantage of indigenous communities.
What does the convention say?
In the sections of the convention relevant to the case of the Agua Zarca dam, ILO Convention 169 says that indigenous communities have a right to land in areas traditionally occupied by indigenous peoples. It established that indigenous communities have the right to develop their territory, maintain their customs in their territories, and resolve problems according to their customs.
Six Relevant Articles from ILO Convention 169
- The indigenous communities have the right to decide on their preferences for the development of their lives, economy, culture, land etc.
- Their wellbeing must be a priority for the development of the country.
- The government must evaluate the impact that development activities could have on indigenous communities.
- The government should protect the environment of indigenous communities.
- The government should respect the cultural and spiritual value of indigenous land or territories.
- The government should recognize indigenous communities’ property rights over land that they traditionally occupy.
- The government should identify and protect the lands that the indigenous communities occupy.
- Adequate policies should exist for resolving indigenous communities’ claims to land.
- The indigenous communities have the right to utilize, administer and conserve the natural resources of their land.
- The State is required to consult the indigenous community before it can grant the use of natural resources in indigenous territory to a project. In doing so it should evaluate the impact of the project and the community should receive compensation for any damages provoked by the project.
- Indigenous communities should not be forcefully relocated off of their land.
- If it is necessary, they should be relocated with consent and knowledge of the cause.
- They should have the right to return to their traditional land.
- If it is not possible to return, they should receive land of equal quality or an equal compensation if preferred.
- They should receive compensation for any loss or damage that they have experienced due to the relocation.
- The government should prevent the unauthorized intrusion of indigenous territories and the unauthorized exploitation of the same, and should punish those that commit these offenses.
What does this have to do with DESA?
ILO Convention 169 demands the completion of an informed consultation. That demand is at the core of the position of COPINH to the hydroelectric dam Agua Zarca. According to COPINH, the consultation never took place.
ILO Convention 169 sates that when a company is interested in exploiting the natural resources of the territory of an indigenous community, the State has the responsibility to facilitate the prior consultation between the community and the company. In this meeting, the government and company should inform the community about the possible benefits as well as the negative impact that the project could have.
The consultation should be a conversation between the three parties – the State, the community and the company – that results in an agreement about the scope of the projects, its benefits for the community and the mitigation and compensation for any damages.
ILO Convention 169 does not state that the company needs permission from the community to construct a project, but that the government must ensure, through the informed consultation, that the rights of the indigenous community will not be violated.
The law places responsibility on any government involved in the licensing process of a project to ensure that the consultation was completed before signing any license or contract.
According to minutes recorded by COPINH, DESA representatives began to hold meetings with the community in 2011 during which, the representatives told the community about different benefits that the project would bring. The promised benefits include jobs, electricity, improvements in community schools and monetary compensation for community land that the company would need for construction.
DESA records suggest that the company held meetings to spread awareness about the project in October of 2011 with the help of Martiniano Domínguez Meza, former mayor Intibucá where the project was located.
However, that would mean that the meetings did not occur until after the environmental license for the project was signed by the vice minister of SERNA on March 25, 2011. Testimonies from community members also call into question the scope of these meetings. Community members state that those who were opposed to the dam did not attend because they knew their position on the dam. Furthermore, there is no evidence to suggest that the government had consulted the community or had facilitated some agreement between the government, the company and the community. The environmental license and the construction permit should not have been signed without the completion of the consultation.
What are the consequences?
According to ILO Convention 169 and the Honduran law, a contract for a project that affects indigenous lands is not valid if the prior consultation was not completed.
The Vice Minister of SERNA, Marco Jonathan Laínez, approved the environmental license of the Agua Zarca Project without the completion of the prior consultation. With this approval, the contract passed through the National Congress for final approval. Another Vice Minister of SERNA, Darío Roberto Cardona, approved an amplification of the license in January of 2012 – again, without the completion of the prior consultation.
The responsibility for verifying that the consultation was completed falls on the officials that approve the project. In this case, the vice-ministers mentioned above are currently facing accusation of abuse of authority for the approval of the environmental licenses. Both are awaiting the Initial Trial. The former mayor of Intibucá was also accused of abuse of authority for approving the construction permit. Dominguez was declared not guilty in April of 2018 on the grounds that there is no protocol for the realization of the prior consultation and, according to the judges, his meetings with the community show good intentions to follow the convention.
Despite the accusations against the officials and reports filed against the project, Agua Zarca continued in construction until July 7, 2017 when DESA made the decision to suspend construction. Various organizations have investigated the validity of the project’s contracts, especially in light of the murder of Berta Cáceres.
What can be done?
In a meeting with Revistazo.com, the current mayor of Intibucá blamed the complexity of the circumstances surrounding the Agua Zarca project on ILO Convention 169, saying that the convention could have multiple interpretations.
Although ILO Convention 169 is quite clear on its regulations, the violence and tension surrounding projects like dams and mines makes it clear that Honduras has serious problems regarding the interpretation and application of this law.
In August of 2017, the Honduran Private Business Council hosted a forum about the application of ILO Convention 169. Representatives of ILO and to other countries that apply the convention came to Honduras to advice the country.
The representatives shared examples of successful consultations between the government, companies, and indigenous communities.
The consultation can function properly to protect the rights of indigenous communities and regulate the projects that use natural resources.
To work well for all of those involved, the government needs clear policies that manage the application of the convention from the moment that a company has the idea to begin a new project. The Honduras needs experts in conflict resolution between indigenous communities and public and private entities who are employed by the government to facilitate a consultation of good faith between the company and the indigenous community and to help them arrive at an agreement and assure that the agreement is beneficial to all those involved.