Ness Disputes in Indigenous Territories

The State in Waiting: State-ness Disputes in Indigenous Territories

By Juan Carlos Mart´ınez CIESAS Centro de Investigaciones y Estudios Superiores en Antropologıa,´ Social Pacıﬁco´ Sur Resumen

Este art´ıculo analiza los l´ımites del estado mexicano de garantizar los derechos de las comunidades ind´ıgenas y los pasos que han tomado las comunidades para intentar y asegurar que sus derechos sean garantizados en la practica.´ Este analisis´ contribuye alaantropolog´ıa del estado, espec´ıﬁcamente la que discute que la formacion´ y las funciones del Estado tiene lugar fuera de las instituciones gubernamentales. El caso de la presa Cerro de Oro y el proyecto de conversion hidroelectricaenelestadodeOaxaca´ revela como´ los derechos son ignorados por los servidores publicos´ y subordinados a los intereses del gran capital trasnacional en la nueva fase de expansion´ capitalista. Mi principal hipotesis´ es que el estado neoliberal genera una tensa contradiccion´ al tratar simultaneamente´ de garantizar los intereses de las grandes empresas y los derechos de los pueblos ind´ıgenas. En esta contradiccion,elgobiernomexicanohaabandonadoel´ ejercicio de la soberan´ıa, generando disputas entre empresas privadas y comunidades locales para asumir funciones del estado creando sus propias condiciones de Estado o lo que algunos autores en America´ Latina han llamado “estatalidad”. [globalizacion,´ derechos humanos, pueblos ind´ıgenas,ley,Mexico,´ antropolog´ıa social] Abstract

This article analyzes the limits of the Mexican government´s ability to guarantee the rights of indigenous communities and the steps taken by those communities to try to ensure that their rights are guaranteed in practice. This analysis contributes to anthropological literature on the state, and shows that state formation and state functions may take place outside of governmental institutions. The case of the Cerro de Oro

The Journal of Latin American and Caribbean Anthropology, Vol. 00, No. 0, pp. 1–23. ISSN 1935-4932, online ISSN 1935-4940. C 2017 by the American Anthropological Association. All rights reserved. DOI: 10.1111/jlca.12251 This is an open access article under the terms of the Creative Commons Attribution-NonCommercial- NoDerivs License, which permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no modiﬁcations or adaptations are made.

The State in Waiting 1 hydroelectric plant project in Oaxaca, Mexico, reveals how rights are ignored by state ofﬁcials and subordinated to powerful economic interests in a new phase of capitalist expansion. The main hypothesis here is that the neoliberal state generates a situation of tense contradictions by simultaneously trying to guarantee the economic interests of transnational enterprises and the rights of indigenous people. Within this con- tradiction, the Mexican government abandons the exercise of sovereignty, generating disputes among private enterprises and local communities as they attempt to assume the functions of state, or state-ness. [globalization, human rights, indigenous people, law, Mexico, social anthropology]

When I visited the Cerro de Oro dam in southern Mexico in mid-2011, I was with a group of indigenous campesinos (peasants), NGO members, engineers, corporate financiers from Mexico and the United States, and an Argentinian mediator. I was working for the Mexican NGO Fundar’,1 Center for Analysis and Research, and acting as an advisor to the communities. As a lawyer and anthropologist, my role was to insist that the international and national laws that recognize indigenous rights could not be ignored in the construction of a hydroelectric plant. Over time, I came to reflect on this experience and the transformations in the law and in the state during the 20 years since I had qualified as a lawyer. We passed through a devastated area with felled trees and ripped up earth: it was almost impossible to walk through, and heavy machinery was standing by. A few months earlier, construction companies had started operations to build a hydroelectric plant, using a dam that was already in place. As the detrimental impact on the local environment became evident, this had prompted opposition from local inhabitants. I approached an older man, part of the visiting group, who was a distinguished engineer, to find out his perspective on these events. He told me that 30 years ago he had helped to construct the dam and that they had not needed anybody’s permission. For him, the dam was “proof of Mexico’s development and the great capacity of its engineers. We are internationally famous,” he told me. In his view, consulting indigenous people was simply an obstacle to the contribution that big business could make to this country of poor people: “These people are ignorant and easy to manipulate; they don’t even know why they’re here obstructing the works and investments that Mexico needs.” To him, the interests of the companies were synonymous with the interests of the country. He believed that “these people’s” laziness and greed were preventing development: “They just want to receive money without having to work.” Without challenging his views, I asked him what had changed since the dam was built. “The government,” he answered, without any

2 J ournal of L atin A merican and C aribbean A nthropology hesitation. “Before the government planned and executed [it] . . . it ensured it was obeyed.” He continued, “Now they ask everyone about everything, and if people oppose . . . Well look, there’s nothing we can do.” He said the state had changed, and had lost its previous function of issuing orders that would be carried out. Perhaps the engineer was not entirely wrong, but he was unaware that, actually, it was only the companies that benefited from this new, apparently passive, state. This article analyzes the ways in which the Mexican state demonstrates a weak capacity to guarantee rights; it favors corporate interests in conflicts against the rights of indigenous people. The following research explores both the material and the ideological conditions that enable indigenous communities to make their rights effective in practice. It also focuses on how private enterprises use the “emptiness of state” to introduce their own forms of estatalidad: Rene Zavaleta Mercado (1990) refers to conditions of estatalidad, or “state-ness,” as enabling certain state functions to be performed outside of formal governmental institutions. In the case explored here, indigenous communities allied with other national and transnational networks to appropriate some of the state’s functions, fostering emerging conditions of estatalidad, or state-ness. At the same time, private enterprises brought their own normative frameworks into play; however, outcomes depended far more on factors external to the legal realm than on the formal logic of the law (Bourdieu 2014). This research differs from anthropological studies that highlight the pre- eminence of capitalist enterprises and the legal weakness of indigenous peoples’ rights—and specifically, the right to consultation (Composto and Navarro 2014; Cruz Rueda 2013; Ornelas1990). In contrast, it points to conditions where communities do manage to build state-ness. This work challenges those studies that from a juridical perspective assume that nation states can become “intercultural states of law2” given sufficient political will (Schonbohm¨ 2011). I argue that rather than political will expressed through law, it is, in fact, transformations in the political economy of the Mexican state that have unintentionally opened up a space for another kind of nonhegemonic legality and state-ness to emerge. Although the studies mentioned above ably illustrate how national governments have favored international finance and capital, they tend to assume that governments have full control of all institutions, overlooking the fact that at any moment each group can strategically appropriate resources that are no longer under the direct control of the state and its traditional corporatist networks. Studies that emphasize the power of the law assume that indigenous peoples’ rights can be guaranteed by strengthening the capacities of public servants and by reducing corruption. However, such perspectives fail to consider that indigenous rights are in fact part of an alternative political economy that challenges and at times opposes the logic and interests of capital accumulation.

The State in Waiting 3 The corporatist model that for a long time sustained the Mexican state has more recently experienced an erosion of its material and ideological bases. For this reason, organizations within society, using the contradictory norms of a neoliberal state and their own material resources, are creating alternative institutions that are different from those offered by the centralized state. This new form of state-ness cannot be reduced to a set of principles, norms, or procedures for the management of the commons (Ostrom 1990), or be understood simply as spaces of resistance and dispute (Zibechi 2014). Rather, this state-ness creates forms of representation and deliberation, and generates material and symbolic means that fill the gaps left by the nationalist state, while appropriating the rights and norms that best suit the interests of organized groups beyond the will of formalized institutions. Communities sometimes succeed in taking control over certain processes, and in some cases even achieve results that can be totally or partially against the interests of governments and big enterprises. This article analyzes the processes that halted a private investment project, which had planned to use a public dam in the state of Oaxaca, Mexico, to generate electricity to be sold to transnational companies. This case generated a controversy that did not find a resolution through Mexican formal institutions. Instead, the investment was withdrawn because of the discourse built by communities using the safeguards of the lending financial institution.3 Be- tween 1974 and 1986, some 26,000 Chinanteco indigenous people had been summarily expelled from their ancestral lands to facilitate the construction of this dam (Bartolome´ and Barabas 1990; Ewell and Poleman 1980). However, after 1992, indigenous lands were afforded special legal protections, and these included indigenous peoples’ rights to prior consultation about public actions that would affect them. The new legislation supposedly signaled the guarantee of these rights. Such rights were fiercely disputed in other countries4 (Assies et al. 2000), yet in Mexico these disputes did not become salient until the 2010s, possibly because Mexican agrarian law allowed communities to defend their territories through legal channels. Structural reforms enacted by recent Mexican governments have taken away the special protections for land that had been granted by agrarian law, and this has generated increasing pressure on natural resources and territories. The case of Cerro de Oro indicates not only that a formal consultation process following international legal standards did not occur; it also illustrates that given a lack of government action to guarantee indigenous rights, private companies and communities may make use of resources and institutions that in effect replace the formal functions of the Mexican state. After complaints mounted in 2011, the U.S. government’s Overseas Private Investment Corporation (OPIC), which was lending money to the Cerro de Oro project, halted the works and opened a negotiating panel to discuss the project’s

4 J ournal of L atin A merican and C aribbean A nthropology continuation with regard to the rights that were allegedly being breached. The negotiations failed, and no agreement was reached, but the local indigenous communities succeeded in halting the project. At the time of writing this article, the hydroelectric plant project was still on hold. Nevertheless, in 2014, the Mexican federal government approved a radical energy reform program to protect private investment in energy generation, and locals expect the works to restart at any time.5 The communities of Santa Ursula,´ Los Reyes, Paso Canoa, and Cerro de Oro generated an emerging social movement together with new forms for deliberation and institutionalization of their decisions. They collaborated with civil society organizations from Mexico and the United States in order to oppose plans to convert the Cerro de Oro state-run dam into a hydroelectric plant managed with private resources from the Mexican companies Electricidad de Oriente S.A de C.V. (EOSA) and Comexhidro S.A. de C.V.—bothsubsidiaries of the transnational Enel S.p.A. and North American Conduit Capital Partners LLC (CCO). The project was financed by OPIC, yet paradoxically, OPIC’s safeguards were used to prevent the project’s progression. So far, the outcome has been the result of a number of factors, including (1) mobilization by the communities; (2) strategic use of the international standards that regulate OPIC, as well as the nationally and internationally recognized rights of indigenous peoples6; and (3) the creation of networks among local, Mexican, North American, and Latin American civil society organizations. Heeding the warnings of Radcliffe-Brown (1940) about not turning the state into a concrete object or subject of empirical research, here, the state is understood as a field of power in which the organization of society and the distribution of resources are decided, together with who will monopolize legitimate violence, both physical and symbolic (Bourdieu 2014). This idea of what the state should be is permanently in dispute and under construction by actors seeking to legitimize their own power in order to develop their specific projects (Trouillot 2001). From this perspective, the Mexican government legitimates its power by promoting a “denationalized” state, which is represented by officials who are almost entirely ignorant of the new legal frameworks for indigenous communities and who are biased in favor of corporate interests. Ethnographic data on the case of Cerro de Oro were collected during short stays that amounted to approximately 7 months between 2011 and 2012. During this period, I was trying to identify community ideas about their relationship with the government and the legitimacy of their own organization to decide on matters concerning resources in their territories. We organized workshops and participated in meetings to define strategies, and I was able to observe the daily life and organizational practices of local people. I also participated in the negotiation process on the arbitration panel opened by OPIC, where I had the opportunity to talk to and interview business people and civil servants, and to observe the weight

The State in Waiting 5 of international institutions and their associated soft law, legitimizing different ideas about the state. This proximity enabled me to approach the case from a dialogical and collective perspective, which not only provided an epistemological focus, but also aligned my research objectives with the demands and processes of the actors and the organizations allied to their cause (Hale 2002; Leyva Solano et al. 2008). In this sense, the research is positioned in relation to, and privileges the vision of, the people in the communities, since it considers the rights recognized in law to be fundamental for defending alternative spaces of governability and maintaining local power in the face of the interests of international capital. Together with the communities, we developed the strategies for the case and faced intense and difficult negotiations with business people and civil servants in emerging spaces of organization, which were partly defined by the “soft law” of the companies and partly defined through negotiation with communities. This methodological approach generated solidarity and dialogue (Fals Borda 2007), al- lowing for understanding of the positions and feelings of the petitioners. As such, it attempts to subvert, or question, the coloniality of scientific approaches (Mignolo 2006; Quijano 1997; 2001), whether these involve sympathy with, or questioning of, the communities’ knowledge and actions.

Denationalization and the State as a “Guarantor of Rights”

The Mexican government recognizes the rights of private and international entities that in practice contradict indigenous rights. The legal pluralism existing under neoliberalism includes collective rights along with rights relating to indigenous alienation and the commercialization of public and collective goods. How is this tension expressed in practice? And with what effects? The Cerro de Oro case demonstrates the outcomes of some of the economic changes produced by globalization; although these are not new, today they involve an acceleration of capitalism, which brings into question basic elements of clas- sical theories of the state (Arrighi 1997; Braudel 1986). The novelty of this “new economy” lies in its scale, reach, velocity, and complexity—elements that radically transform the effects of capitalist development on the daily lives of people throughout the world. These transformations have modiﬁed the material and symbolic elements with which the Mexican contemporary state is constructed, along with the pacts that previously maintained local communities within a corporatist scheme. I am particularly interested in understanding the daily contradictions that construct the Mexican state (Sieder 2013): on the one hand, the state seems to have given up basic elements of the 19th-century concept of sovereignty, surren- dering control of its territory and its capacity to guarantee rights. On the other, it maintains a discourse of legal legitimacy, permitting it to offer its territory and resources to private enterprises and to restrict the use and ownership rights that

6 J ournal of L atin A merican and C aribbean A nthropology communities have long held. In effect, as the extraction of resources intensifies, the state’s centrality is displaced, in a process that, paradoxically, is supported by the state itself. The retreat of classic state sovereignty generates spaces of dispute to define who will control what were previously centralized functions (Sieder 2013). When we focus on the “effects” (Mitchell 1999) produced by these changes in the balance of power and “ideas of state,” we observe a rupture in the symbolic agreement once achieved by the state. This rupture opens new spaces for social and state violence (Sieder 2013), but it also allows for new local spaces in which state functions may be exercised. In other words, actors take advantage of the contradictions and use different material and symbolic resources to show their “strength” and “reason.” According to Sassen (2010), contemporary states are not necessarily losing force in the face of globalization; in fact, they are reinforcing their role as enclaves for the expansion of financial flows and the intensification of global commerce. However, these processes are often ambiguous. States’ decisions result in a loss of sovereignty in favor of the disproportionate weight of international businesses on national agendas, but they attempt to simulate control and promote a rights discourse that favors their legitimization. The Mexican state, which developed a powerfully nationalistic project following the Revolution at the beginning of the 20th century, is effectively being “denationalized.” Nationalist discourse was a tool for the expansion of domestic industrial capitalism; although this coexisted with the export of raw materials and the import of industrialized products, together with artisan production, it provided an important source of national pride and identity (Sennet 1998). Contemporary production processes have been radically transformed. Productive systems and economic exchanges almost do not need borders, but do require that local subjects are “dispossessed” of their resources (Harvey 2003). This betrays the “idea of [the] state” that communities built over time and pushes them to oppose some of the government’s measures. Today, it seems that what is “national” only serves to facilitate the flow of assets and services, while the flow of people remains much more difficult. The denationalization of the project of the state has permitted the resurgence of subnational and cultural identities that take root in specific territories and seek to maintain or gain the capacity to decide over them. As Cesar Rodr´ıguez-Garavito and Luis Carlos Arenas (2005: 244) suggest,

The simultaneity of the turn towards neoliberalism and the rise of the indigenous movement in Latin America is not accidental. Beginning in the mid 1970s and gaining momentum in the 1980s, these two processes have developed in ex- plicit confrontation with each other, as shown by the massive indigenous protests against neoliberalism since the early 1990s, from those that have driven neoliberal presidents in Bolivia and Ecuador out of ofﬁce to those of the Zapatistas in Mexico.

The State in Waiting 7 The case of the Cerro de Oro hydroelectric dam underlines one of the more signiﬁcant challenges posed by indigenous communities in defense of their territories, using resources to build their own conditions of estatalidad as the material and symbolic basis on which to retain a margin of control over their own processes in this new economy. As Rachel Sieder (2013) points out, indigenous movements defy state sovereignty but not with subversive acts. Instead, they construct “another order” that is closer to their own values and to the values promoted by the international rights community. Communities might not use the expression gobierno propio (own government), but neither do they see the government’s institutions as their own. They regard the state as an external actor that looks to control them and to appropriate their resources. As a leader from Santa Ursula´ recalled,

we already know that government easily tricks us and currently the government is more of the companies and foreigners; but Natalie and Comala—the North American lawyers—were completely sure that they could help us win through this mechanism that they knew, and they had up to now. We will see [what happens] later on.7 For this reason, resort to an international rights discourse and the soft law of international funding institutions becomes a powerful mechanism for legitimacy, although it can also create new contradictions. In 2011, an important reform afforded international treaties on human rights the status of constitutional law in Mexico, while economic reforms in 2013 and 2014 amplified opportunities for the privatization of strategic resources. Recognition of the right to self-determination for indigenous communities in recent years brings the collective decision-making capacity of communities closer to the concept of sovereignty that the denationalized state has abandoned.8 The present case shows that the line between state and society is diffuse, as Gupta and Sharma (2006) and others have argued. It shows that the social relations that once served to consolidate the nation state are now playing against the consolidation of the neoliberal state. Laws are not an unequivocal reference for state action, but do produce state forms that other actors dispute in order to legitimate their own positions. Yet, for many, the recognition of rights to self-determination has simply been another way of undermining the special protection of their territories—understood as a type of property right expressed in article 27 of the Mexican Constitution, and as the ancestral lands of an indigenous people recognized in ILO Convention 169, which was ratified by the Mexican government in 1990. Researchers of indigenous movements (Barre´ Chantal 1988; Stavenhagen and Iturralde 1990) indicate that historically their central demand has been what is now called the right to territory, which, as we know, together with government regulation, population policies, and the defense of sovereignty, is a key element in the classic definition of the “state” and its functions. With the neoliberal shift, the struggle to control these functions has

8 J ournal of L atin A merican and C aribbean A nthropology intensified, as laws in effect become strategic materials of state-ness, appropriated by different actors to legitimate their varying positions. In every historical period this has assumed different forms, since its recognition in colonial Cédulas Reales9 to the agrarian reform laws of the 20th century (Romero Frizzi 1996). Today, the struggle for territorial protections takes the form of defense against large-scale investment projects. In many cases, land alone cannot sustain the material reproduction of communities, with factors such as migration, drug trafficking, and governmental support to combat poverty increasingly monetizing campesino economies. However, territory continues to be the basis of indigenous peoples’ identity and cultural reproduction (Mart´ınez Mart´ınez 2011). This issue is particularly relevant in relation to ILO Convention 169, which obliges governments to respect the cultural importance and spiritual values that indigenous communities attribute to their relationships with the lands and territories that they occupy or use in any way. Nevertheless, private companies also generate their own rules in the dispute for state-ness. In this case, OPIC’s10 rules were useful because of the intervention by the Accountability Counsel, a San Francisco-based environmental and human rights campaigning organization, which became part of the alliance working to defend the interests of indigenous campesinos opposed to the Cerro de Oro project. It is evident that companies’ measures to ensure “self-regulation” are a response to ever-more frequent mobilizations and the transnationalization of the defense of indigenous territories. Although these regulations are not a central part of my analysis, it is important to show how soft law becomes a resource to construct state-ness in concrete cases, and how its strategic deployment can in fact challenge unequal rules such as NAFTA chapter XI, which protects foreign investments. On the one hand, the development of soft law in these areas demonstrates the adverse effects that business practices, particularly of extractive industries, have on indigenous peoples’ territories. On the other, it also indicates the ongoing process of state denationalization. International mobilization on this issue, as well as the expectations of more moderate sectors about the responsibilities that businesses should assume, tends to generate safeguards. These can become either a means to construct other estatalidades that confront the new “idea of state” assumed by the Mexican government, or a trap, with movements ending up playing a game that they initially fought against (Clark et al. 2003).

Cerro de Oro Communities and the First Phase of the Process

The ejidos11 directly affected by the work on the Cerro de Oro hydroelectric plant are Los Reyes, Santa Ursula,´ Cerro de Oro (Cerrito), and Paso Canoa, in Oaxaca state in southern Mexico. The communities are situated in a tropical agricultural

The State in Waiting 9 region, which has been depleted by extensive livestock farming. Nevertheless, this area is one of Oaxaca’s breadbaskets: water, humidity, and good soil are abundant and it is also possible to ﬁsh here. A lot of pineapple and corn are produced in the region, as well as sugar cane, rubber, tobacco, almonds, and citrus fruits. Between 2007 and 2009, company representatives approached the communities, particularly Los Reyes, giving the ejidatarios (ejido owners) confusing information about where the proposed works would be developed:

They told us that they were going to buy the land at a very good price . . . they said that they wanted it for works related to the dam, but they didn’t say what they were going to do. Maybe they told the [ejido’s]12 commissioner, but not us.13

No government representative contacted locals about the proposed project during this period:

[B]usinessmen arrived, but nobody from the government did. We didn’t know if this was legal, if it was authorized . . . to tell you the truth, we didn’t expect much from the government, but if they had given away our lands they should have at least showed their faces.14

This absence of government ofﬁcials increased people’s distrust of the project. As the proposed works were to be carried out in the ejido Los Reyes, an extension15 of the Santa Ursula´ ejido, most dialogue took place with the people living there. Land was purchased and two business people were incorporated as ejidatarios with the approval of the National Agrarian Registry—a governmental institution. During a meeting held on March 6, 2011 in Los Reyes, the atmosphere became heated: the ejido’s hall was full, and people demanded to be heard. When the discussion reached the point of deciding whether or not the proposed works would be accepted, tensions erupted between the residents with agricultural rights16 (the ejidatarios), and those who lacked these formal entitlements (known as avecindados).17 The majority of the ejidatarios were in favor of the project while the avecindados unanimously rejected it. While the majority were concerned about the damage to the environment and increased risks, some ejidatarios, with a short- term commercial outlook, simply did not care. The company strategy of divide and rule through individual negotiations with the ejidatarios had succeeded here. The ﬁrst 3 years of the project were preparatory; the companies started operations in June 2010 without clearly informing the communities. Dynamite was used in this phase, which is what alerted the region’s campesinos to the companies’ operations. Campesino representatives sought the advice of the activist and researcher Dr. Guillermo Padilla, and the lawyer Komala Ramachandara from the Accountability Counsel, who visited the communities in October of that year to inform them about the rights that were being violated.

10 J ournal of L atin A merican and C aribbean A nthropology Figure 1 Damaged Communities. Source: General Census INEGI, 2010.

The four communities are heterogeneous in terms of religion, educational levels, and poverty rates. Paso Canoa is the wealthiest and most literate community, followed by Santa Ursula,´ Los Reyes, and then Cerrito. All of the communities were created in the 20th century, except for Cerrito, with Paso Canoa and Santa Ursula´ established by the Cardenist land reforms of the 1930s.18 Santa Ursula´ was founded on land granted from an estate, and is populated with Chinanteco workers from the old hacienda, ex-residents of communities that are now under water following the initial construction of the dam, together with some people from Puebla and Veracruz. 19 The original population of Paso Canoa has a similar composition, but the majority of the community is originally from Puebla and Veracruz. The communities have some charismatic leaders, such as Don Fidel Meza from Paso Canoa—an old social activist, coffee cultivator, and active participant in a movement of coffee growers. The other key ﬁgure was Gabino Vicente from Santa Ursula,´ a young broker (Wolf 1957) who weaves networks of political clientelism in his region among those not allied to the PRI.20 On one occasion while we were at Gabino Vicente’s house, a local representative of the Worker’s Party and her husband, who is the son of a former state governor and a former Federal Secretary of State, explained how they planned to build alliances with the state government to support resistance against the hydroelectric plant. Gabino Vicente listened attentively and then cut them off, stating, “If the government clearly

The State in Waiting 11 Total populaon 1400 1200 1000 620 800 women 600 436 men 400 535 206 200 411 149

Number of inhabitants 151 209 0 Paso Canoa Santa Úrsula Los Reyes Cerro de Oro

Figure 2 Populations of Communities. Source: General Census INEGI, 2010.

supports us, I will make sure the people join.”21 However, the promised support never materialized from the state government of Oaxaca. The four communities do not have a strong history of organization and the links between people tend to be personal in nature, rather than collective. In Cerrito, for example, a woman told us, “I didn’t really believe the people from Paso Canoa; they’re landowners. Why would they care about poor campesinos like us?”22 However, their leaders’ vision and the organizational work of the NGOs involved managed to create a united position among the communities, which enabled them to achieve agreements and negotiate with the companies.

Other Actors in the Conﬂict and Controversy

National and international NGOs and academics played a key role in legitimizing the communities’ position and translating it into a rights discourse. Guillermo Padilla worked with Prujula´ (an international network of Latin Amer- ican lawyers),23 Fundar, and the Accountability Counsel: they had become interested in the issue of prior consultation and were looking for cases to test the effectiveness of rights with the strategic use of existing resources. Members of the Accountability Counsel and Prujula´ visited all of the communities, talked with the authorities, ran workshops and information sessions about rights, and requested information about the project. Once they received the endorsement of the communities, they lodged the ﬁrst legal appeal, which led to the establishment of the OPIC negotiation panel. As this process developed, Fundar and various public sector organizations also become involved. The Electricidad de Oriente and COMEXHIDRO companies began operations in 2007 to convert the dam. The dam was originally constructed in the 1980s as a ﬂood barrier, but was now to be transformed into a hydroelectric dam to generate

12 J ournal of L atin A merican and C aribbean A nthropology 14.5 megawatts per 30 cubic meters per second.24 The conversion was being financed by OPIC as part of the project Latin Power III, an energy-generating strategy for transnational companies based in Mexico and the Caribbean.25 Water was to be taken from the dam and channeled through massive pipes to electricity-generating turbines; finally, the water would be deposited in the Arroyo Sal reservoir.26 Arroyo Sal captures drinking water and is also used for recreation and fishing by the communities of Los Reyes, Santa Ursula,´ and Paso Canoa. The federal government’s support for business and its failure to take the views of local inhabitants into account has been apparent since 2007. Between 2007 and 2010, the companies obtained their official permits without even informing the communities. All of these actions conform to the characteristics typical of a neoliberal state and are far removed from those of a state project focused on guaranteeing citizens’ rights. Federal authorities—such as the dam’s operator, the National Water Commission (CONAGUA), the Federal Electricity Commission (CFE), which would receive the energy generated to be transferred to transnational companies, as well as the Ministry of Environment, Natural Resources and Fishing (SEMARNAT)—approved the project without considering its environmental and social impact. At the beginning, the companies also obtained an irregular permit to change the classification of land use from the municipal government of San Juan Bautista Tuxtepec, Oaxaca.27 The Office of the Attorney General for Agrarian Affairs, a federal institution, took charge of formalizing negotiations between the companies and Los Reyes community leaders, without consulting their communal assembly.28 In 2009, businessmen Mauricio Justus Villarreal and Carlos Jinich Ripstein from Electricidad de Oriente were given the status of ejiditarios in Los Reyes. This allowed plots in the ejido to be made available without requiring a collective contract with the companies. When the residents of Los Reyes found out about this maneuver they rebuked their authorities, with one resident shouting: “Now your masks have slipped! You’re selling the community while we’re dying of hunger here.”29 On November 30, 2010, the Accountability Counsel (accompanied by the other organizations and representing Paso Canoa and Santa Ursula)´ presented a complaint to OPIC’s Office of Accountability (OA). The complaint referred to the possible impacts of the project, alleging that it violated rights to health, the environment, and sustenance, and placed particular emphasis on the limited access to hydroelectric plant resources. Later, residents from Los Reyes and Cerro de Oro also concurred with the complaint, which was ultimately admitted by the OA. In January and February 2011, OA personnel visited the region, led by their director Keith Kozloff and an Argentinian mediator who had been contracted specifically for the case. They evaluated the possibility of opening a negotiating process between the communities and the companies. Once they were confident

The State in Waiting 13 that the parties would negotiate, on March 3, 2011, OPIC informed the Mexican government about the process that they would initiate and the international rules applicable to the case. Although no written response was issued, government officials arrived at the negotiations, first as observers and later in open support of the companies. The activation of soft law processes may act as a substitute for the regulatory frameworks of the state, specifically in reference to enforcing collective rights over territory. For this reason, local authorities with limited faculties—such as Municipality Agents and Ejidal Commissioners—can perform an active role to guarantee rights in place of federal authorities, and not only as rights petitioners. The first agreement between the companies and the communities was signed in March 2011 at the Gran Tuxtepec Hotel, which was where all the meetings were held. It was determined that works would be suspended, and an alternative design would be developed, so that the dam conversion would not affect water access for the communities. Experts would be asked to certify the dam’s safety, and permits and details of the project would be provided to the communities by the company. Information assemblies were held in the communities, where people’s percep- tion of the problem began to change. While initially they had demanded compen- satory measures, they ended up demanding that they should be the ones to decide what to do with the region’s resources. The comisariado ejidal from Paso Canoa explained this process in the following terms: “[Y]es, at the beginning we asked the company to help us with an irrigation system, but now what we want is that they leave. We own this territory.”30 Initially, they had had a restricted notion about land tenure that subsequently changed to a more encompassing notion of land as territory. As a woman from Los Reyes pointed out: “It is not about who are the owners of a piece of land and who are not, but that this is going to affect the way we live, and it is not only going to affect the owner of a plot. That is why we must beconsultedtobeabletodecidewhatisbestforus.”31 In May 2011, a second round of negotiations was held. The discussions were heated, but the mediator’s efforts were ultimately successful. The principal diffi- culty proved to be that of discussing the matter from a rights perspective. When, as part of their strategy, the communities requested that Mexican state officials be invited to certify the negotiations and safeguard the rights that were in play, one of the businessmen argued,

What we have here are agreements that should be respected by the parties, because we are signing of our own free accord. The government doesn’t have anything to say. If you have rights, we have more because we have the permits and we have paid for the land. Don’t get yourselves into problems; just observe the agreements we have reached.32

14 J ournal of L atin A merican and C aribbean A nthropology The company representatives refused to allow any publicity about the negotiations: media access was barred, and only a handful of advisers were allowed to attend the hearings. In spite of this, the communities succeeded in imposing their demands. Federal government representatives attended a third meeting in July 2011. One of the officials who defended the project most vehemently had been sent by the Energy Regulatory Commission (CRE), a decentralized administrative body of the Ministry of Energy (SENER) created in October 1994, at the peak of Carlos Salinas de Gotari’s neoliberal government. The CRE was created as an autonomous technical body to regulate in a transparent, impartial, and efficient [way] the industry of gas, refineries, derivatives of hydrocarbons, and electricity, generating certainty that encourages productive investment, stimulating healthy competition, promoting adequate coverage and attending to the reliability, quality and security of the supply and service delivery, at competitive prices, to the benefit of users.33 Their objective was to ensure that private investors had a guarantor at a state level and, in theory, to support energy consumers. The CRE official took his role seriously as the investors’ defender. At the meeting, this official warned the campesinos that collective rights do not exist in Mexico; he even told them, “we are not in Cuba.”34 When the community representatives read out the relevant articles of the Constitution and ILO Conven- tion 169, the official was silent for two rounds of exchange, but during the third he accused them of an “ideological reading” of the laws. During the same meeting, he threatened the ejidatarios, declaring that they would have to “pay millions of dollars to the businesses that would demand compensation.” When the communities’ advisors questioned the official’s openly probusiness attitude, he responded, “The gentlemen obtained their permits and this generates rights that come before yours.” He did not explain exactly what he was referring to with the word “before,” but according to his interpretation, business rights carried more weight than those of the communities. In fact, he did not even know that indigenous communities were recognized within the Mexican Constitution. At the end of the meeting, Don Fidel from Paso Canoa expressed his view of the public servants: “You’re a disgrace; much worse than the entrepreneurs. If we had known, we would not have called you. We are better off without you. ‘Better alone than ill accompanied’.”35 Another example of the government’s bias was apparent when Electricidad de Oriente S.A. de C.V. obtained rights to an exemption from paying for their permit to use the dam. CONAGUA argued that the measure was taken because it was for water, which is a renewable resource. They also argued that the measure would favor “the opportune and efficient supply of electricity, which is one of the pillars on which the country’s development rests and constitutes a necessary condition for achieving the goals of growth.”36 CONAGUA failed to mention, however, that the energy to be generated through the project was already promised to

The State in Waiting 15 transnationally owned factories in the region. With regard to the permit, they also stated,

the project conforms to the criteria and guidelines of national energy policy; it is not inappropriate for the country and does not affect the security, efﬁciency or stability of the public electricity service . . . the applicant is committed to make the extra electricity produced available to the Federal Electricity Commission.37 The question of whether the project’s impact on the territories and cultures protected by the Constitution represented “a disadvantage” for the country was never posed. The passion and the quality of the arguments made by the communities’ representatives in this third round of negotiations were clear, but they lacked technical proof. During a walk, one ejidatario from Los Reyes showed us cracks clearly visible on the fac¸ade of his house, commenting,

Now they want us to demonstrate that the damage was caused by the explosion. We were still shaking at dawn from the fright that woke us up, thinking that our house was going to fall down. But now, we have to give them proof that it’s their fault this happened. How on earth do I get proof? If that is a law, I do not accept it.38 When I tried to catch the eye of the mediator and one of the businessmen, both of whom were listening, they looked away. During the same walk, I asked a businessman his opinion on the damage. He responded, “Ah, but if they let us ﬁnish, in the end all this will be a lot nicer. I’m going to take you to other dams we’ve made and you can see how we leave grass and trees; it’s really pretty.”39 Taking up arguments that the campesinos had made, I asked him about the species that would die, like the pepesca ﬁsh40 and turtles. He responded,

What species? Wehave studies by the National University (UNAM),41 which say that there are no effects on species. Are you also going to doubt the UNAM? SEMARNAT also supports us. Here, there’s nothing more than the word of these people. But look, if they want little turtles or fish, we can get them, if they just let us work and they’ll see how it’ll be. It’s all possible, but if they don’t let us advance, well . . . this is how it is going to stay. The conversation ended when I asked the businessman about the right of people to take care of their own land. Visibly annoyed, he responded, “What rights?” He remained silent for a moment, fixing me with a challenging stare. A few seconds later he cited something that had evidently just occurred to him—the biblical landscape of creation: “If we don’t transform the world that God gave us, our accounts won’t balance.” I was reminded of the colonial justifications for conquering native American communities as a result of their supposed ignorance

16 J ournal of L atin A merican and C aribbean A nthropology of the true God. In effect, this Mexican businessman continues to believe that land was given to them providentially by God in order to be conquered and exploited. In response to the negotiations, the companies presented an alternative project on July 20, 2011. This OA meeting was attended by municipal, state, and federal officials. The new proposal included a revised design for construction in order not to affect the Arroyo Sal reservoir. It was agreed that the federal institutions would carry out an evaluation of the new project and that CONAGUA would check the safety of the dam. However, it immediately became apparent that the CRE, CONAGUA, and SEMARNAT wanted to rush through the evaluations and award the companies new permits. Despite what had been agreed with the other communities, Los Reyes was in favor, while Paso Canoa and Cerrito rejected the new proposal. Santa Ursula´ also rejected it, but occasionally its leaders seemed ambivalent, because the companies had convinced them that they would no longer be affected. For some people in Santa Ursula´ this signified a qualified success for the movement, while for Paso Canoa and Cerrito only cancelation of the project would represent a victory. At the end of the day, one of the leaders of El Cerrito commented, “[T]he only thing that we want is that the project gets cancelled and the companies leave. We don’t want anything else—no projects, nor programs or aid, we want to be left alone.”42 The intervention of technical experts to obtain impartial studies was a key element in the negotiations. In this case, the principal expert was the engineer Raul´ Flores, who participated in all the meetings between July and November 2011. His studies on the safety of the dam were paid for by OPIC and confirmed the project’s feasibility. However, his conclusions about the viability of the project failed to convince the communities. Advisors like me who were accompanying the process regarded his evaluation of the dam’s safety as being somewhat hastily conceived: no technical assessments of the quality of the dam’s walls had been made during the previous eight years, so it was impossible to know whether or how the dynamite used in the project might affect them. The engineer accepted that his results could not be credible without these studies, but emphasized that, “according to his experience,” he could assure us that the project was safe. Experts such as Flores form part of a small circle of consultants that are frequently contracted by the companies that are promoting the mega projects. This undermines their independence, given that a negative judgment in such a closed professional circle could determine whether or not they are called upon to carry out future studies. One Paso Canoa resident asked another expert contracted by OPIC, “If [CONAGUA’s] instruments are broken, if you don’t have data, how are you so sure that everything is going to be okay?”43 The expert responded,

I have more than 30 years’ experience in this business; I ask you to trust me. I can’t put my reputation on the line and risk a judgment on such a small job. They pay

The State in Waiting 17 me the same whatever my conclusions. Also, Mexico is internationally famous for the security of its dams.

The resident replied, “Yes, yes. That’s all well and good; we know that you are an eminence. But how can you know that everything is okay without data, if no damned instrument works?” The expert insisted, “I can only ask you to trust me.” These reactions reveal a lack of confidence in the government, the companies, and the specialists. At this point, their distrust meant that they were reluctant to demand more action from state representatives, or “experts.” Instead, they began to generate their own means to look for justice. Between November 12 and 13, 2011, the experts and companies made their final presentations. After numerous assemblies and much reflection, the communities arrived at a position: to reject the new proposal. The process had been a success; the organization of the communities and the strength of their arguments left little room for maneuver by OPIC. The Conduit Capital representative, Marc Frishman, apologized to the communities for the way that they had behaved and asked them to support the new project. However, on this point the communities were adamant; they would not give their consent. OPIC’s credit was permanently canceled. However, the Mexican state has not canceled the project, but neither is it clear how it could be restarted. The communities are currently waiting to see what the impact of the 2014 energy reform will be. This legislation offers new formulas to carry out projects that would circumvent communities’ rights.

Conclusion

This case demonstrates that the Mexican state does not enforce rights. However, although its neoliberal project beneﬁts the interests of large commercial enterprises, abandoning the nationalist agenda has opened new spaces to dispute legitimacy over natural resources. In this case, communities managed to build legitimacy, questioning the sovereignty of the state over water resources. There have also been other cases in Mexico in which communities have managed to stop large- scale infrastructure projects.44 There is a growing consciousness among civil and social organizations that they need to use their rights, without expecting that any enforcement of them will come from local and national governments. All the relatively successful cases share common elements with the Cerro de Oro case, which include (1) a process of community organization, although this takes an exhausting toll on the participants; (2) the effective technical management of rights discourse, or legal arguments for the case, including the use of the companies’ self-regulation mechanisms (this makes the difference between being viewed as delinquents who seek justice by their own hand and being parties who have been offended against, who defend the law better than the government does);

18 J ournal of L atin A merican and C aribbean A nthropology and (3) a web of alliances and networks that range from the local/regional to the international, preferably including a strategic use of media—a dimension that was not apparent in this particular case. This last element may generate international solidarity, visibility, and protection against repression. In the service of a global economic project, the Mexican government oscil- lates between bureaucratic clumsiness and an uncritical development discourse, avoiding the role of balancing social forces in conflict. Finally, this discourse is whatever officials consider represents “national interests,” even when these end up benefitting transnational corporations. Contemporary capitalism no longer requires the protection of local industry; therefore, the idea of the nation has limited value against the deployment of technologies that are able to connect productive processes across the globe and to distribute administrative, financial, and productive functions between and among different countries. This is how the interests of indigenous people can be pitted against “development” or “the national interest,” but not against rights discourses and a growing global sensi- bility about the environment, alternative ways of life, and cultural diversity. This local and global alliance questions the legitimacy of “national governments” when they act as protectors of transnational capital. The Cerro de Oro case shows why the defense of rights is ever more complex and requires local and international frameworks, where national laws are just another link in the chain. Defending the rights of indigenous communities is as globalized as the economic processes themselves. Communities build their capacity to organize their people, establish authorities, norms, and procedures, and control their territories, with the support and alliances of external and global actors. This does not mean that these institutions are built up from nothing; in effect, the old structures of the postrevolutionary state are repurposed by the communities, filling the gaps left by governments that pursue a neoliberal state project. It is important to observe that these communities achieve state legitimacy using a rights discourse. This allows them to be perceived neither as lawbreakers nor as citizens defending their rights, but rather as the true guarantors of the law.

Acknowledgments

I appreciate the reviews and recommendations of Rachel Sieder, Daniela Ramirez, Monica´ Moreno Figueroa, and Anna Barrera.

Notes

1A Mexican think tank with national coverage and many international links, dedicated to research issues relating to democracy and citizen participation. See http://fundar.org.mx/.

The State in Waiting 19 2From a pluralist perspective, the rule of law cannot be understood as a good proposal of “order” and “distribution,” as defined by certain elites, and imposed on the whole of society, even if these elites have been elected under a scheme of representation. Assuming that within any national society different notions of “good order” and “good distribution” coexist, an intercultural state of law assumes margins for the local community to define their own models of political economy and turns rights into a dialogue between a common minimum “universal” and rules that define each community, and turns it away from the notion of rule of law as a punitive system and enforcement of an alien order. 3This article does not discuss the abstract possibilities and meanings of the right to consultation and consent recognized by states and international entities. It argues that independent of legal content, actors create strategies to legitimize their positions using a rights-based discourse. 4Indigenous peoples in the Latin American region found solid arguments in the resolutions of the Inter-American Court of Human Rights, which used advanced criteria in cases such as Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001), Saramaka People vs Surinam (2007), Yakye Axa Community vs Paraguay (2005), and Sarayaku People vs Ecuador (2012). 5Mexican energy reforms have made private investment opportunities in energy generation flexi- ble; they have created rules to protect private investment and facilitate the expropriation of resources from landowners. 6Interestingly, these rights are contained in the Political Constitution of the United Mexican States and in ILO Convention 169, ratified by Mexico. However, in this case, so-called soft law (the rules of engagement assumed by different parties) proved more useful, despite the fact that the state is not obliged to apply it. Managing disputes through soft law is a way of leaving the state on the margins, permitting negations between two asymmetric actors: the companies and those people affected in impoverished countries. 7Former government official municipal Tuxtepec. Interviewed on October 15, 2011. I offered all respondents the option not to use their real names because at that time the situation was very troubled. I made this offer to farmers, entrepreneurs, and public officials. The atmosphere of social tension that has prevailed in Mexico since 2006 has forced me to make this offer to my interviewees, in many cases, to achieve rapport and a relationship of trust during the talks. 8The second article in the Mexican Constitution states: “The nation is multicultural, based originally on its indigenous tribes. Descendants of those inhabiting the country before colonization . . . preserve their own social, economic, cultural and political institutions, or some of them . . . Indige- nous peoples’ right to self-determination shall be subordinate to the Constitution in order to guarantee national unity. State and Federal District constitutions and laws must recognize indigenous peoples and communities, taking into account the general principles established in the previous paragraphs, as well as ethnic-linguistic and land settlement criteria” (own translation). 9Property titles granted by the King of Spain during the colonial period. 10See, for example, OPIC’s operational guidelines: https://www.opic.gov/sites/default/files/ files/opic-procedures-manual-2012.pdf. Consulted August 24, 2016. 11The ejido is a legal entity in Mexican agrarian law. Originally, it referred to an organized group of campesinos that had usufruct rights over a portion of state land. In 1992, a reform resulted in the ejido losing its character as social property; it became possible to recognize a campesino’s full ownership of land, with the result that ejido lands acquired commercial value and became part of the land market. For indigenous communities, the ejido has been a space of self-government, continuing a tradition of local semiautonomous spheres that dates back to the colonial period. 12The commissioner is the ejidos’ representative who addresses the state and third parties. 13Farmer. Interviewed in August 18, 2011. 14Farmer. Interviewed in November 15, 2011.

20 J ournal of L atin A merican and C aribbean A nthropology 15Before 1992, Mexican agrarian law permitted the “extension” of lands if it could be proved that campesinos required more land, and if more land was available. 16Before the constitutional reform in 1992, ejidos were created via a Presidential Resolution, which included a list of campesinos defined as the owners of the land, while people who arrived later—or the children of ejidatarios—usually do not have land rights. It is clear that the notion of land as an individual’s property is in conflict with the community’s collective right over its territory. 17Avecindados are peasants who live in the community but who do not have rights over the land. 18Between 1936 and 1940, Mexican President General Lazaro´ Cardenas´ del R´ıo led significant social reforms and sped up the land distribution established by the Mexican Revolution. During his presidency, 18 million hectares of land were awarded to campesinos. 19PueblaandVeracruzareotherstatesoftheMexicanFederation. 20The Institutional Revolutionary Party (PRI) evolved as a corporate mechanism of the Mexican government to group together diverse social sectors. Toward the beginning of the 21st century, the PRI stopped being the dominant party in Mexico, but it continues to be hegemonic. Although it lost the presidency in 2000, it recovered it in 2012. 21Casual conversation. September 9, 2011. 22Farmer. Interviewed in February 6, 2012. 23An international network of Latin American lawyers promoting legal pluralism in Latin America. 24Data from the project presented by the companies to the communities in January 2011. 25See https://www.opic.gov/sites/default/files/files/funds-list-fy2015.pdf and http://www. conduitcap.com/expertise.htm. Consulted August 24, 2016. 26Project presented by the companies in January 2011—in response to demands made at a meeting in December 2010 by communities who were fighting against the project. 27Information obtained by Fundar, Center for Analysis and Research—following requests for access to public information during 2011 and 2012. 28Information obtained in a workshop carried out in Reyes on February 19, 2012. 29Meeting in “Los Reyes.” November 9, 2011. 30Communal authority. Interviewed in April 16, 2011. 31Meeting in “Los Reyes.” November 9, 2011. 32Businessman. Interviewed in May 14, 2011. 33The department’s mission: http://www.cre.gob.mx/articulo.aspx?id=11. Consulted August 24, 2016. 34Negotiation meeting. November 12, 2011. 35Negotiation meeting. November 12, 2011. 36Permit for carrying out works and the extension of the Arroyo La Sal’s channel. Archive, Section Xalapa, CONAGUA. June 14, 2010. 37Permit for carrying out works and the extension of the Arroyo La Sal’s channel. Archive, Section Xalapa, CONAGUA. June 14, 2010. 38Farmer. Interviewed in May 7, 2011. 39Businessman. Interviewed in May 7, 2011. 40It is a species of fish typical of this region. 41The Universidad Nacional Autonoma´ de Mexico´ (the National Autonomous University of Mexico). 42Negotiation meeting. July 20, 2011. 43Negotiation meeting. July 20, 2011.

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