COMPARATIVE REPORT ON DEVELOPMENT OF THE RIGHTS TO PRIOR CONSULTATIONS, TERRITORY, HEALTH, EDUCATION, RECOGNIZED IN CONVENTION 169 OF THE INTERNATIONAL LABOR ORGANIZATION: BOLIVIA, BRASIL, COLOMBIA, ECUADOR, VENEZUELA AND PERU COORDINATOR OF THE INDIGENOUS ORGANIZATIONS OF THE AMAZON BASIN-COICA COORDINATOR OF THE INDIGENOUS ORGANIZATIONS OF THE AMAZON BASIN-COICA COMPARATIVE REPORT ON DEVELOPMENT OF THE RIGHTS TO PRIOR CONSULTATIONS, TERRITORY, HEALTH, EDUCATION, RECOGNIZED IN CONVENTION 169 OF THE INTERNATIONAL LABOR ORGANIZATION: BOLIVIA, BRASIL, COLOMBIA, ECUADOR, VENEZUELA AND PERU Created with the support of: Rights, Environment and Natural Resources DAR Research team: Carlos Quispe, Francisco Rivasplata, Fernando Ríos, Oscar Cuadros. Revision and updating team: Diego Saavedra, Iris Olivera, Erick Mormontoy December 2016 COMPARATIVE REPORT ON DEVELOPMENT OF THE RIGHTS TO PRIOR CONSULTATIONS, TERRITORY, HEALTH, EDUCATION, RECOGNIZED IN CONVENTION 169 OF THE INTERNATIONAL LABOR ORGANIZATION: BOLIVIA, BRASIL, COLOMBIA, ECUADOR, VENEZUELA AND PERU Author Coordinadora de las Organizaciones Indígenas de la Cuenca Amazónica-COICA Research team Carlos Quispe, Francisco Rivasplata, Fernando Ríos, Oscar Cuadros. Review and update team Diego Saavedra, Iris Olivera, Erick Mormontoy Edited by: Derecho, Ambiente y Recursos Naturales Jr. Huáscar N° 1415, Jesús María, Lima-Perú Phone: 511 - 340 3780 | 511 - 3403720 Email: [email protected] Website: www.dar.org.pe Designed and printed by: Sonimagenes del Perú SCRL Av. Gral. Santa Cruz N° 653, Ofic. 102, Jesús María, Lima-Perú Phone: 511 - 277 3629 | 511 - 726 9082 Emailo: [email protected] Website: http://sonimagenes.com Cover photo Media Ninja /Flikr Nelson Pombo Jr. /Flikr Cover design Freepik First edition December 2016s Print December 2017 The partial or total reproduction of this book, its computer processing, its transmission by any form or means, electronic, mechanical, by photocopy or others is allowed; with the necessary indication of the source when it is used in publications or dissemination by any means. This publication has been prepared with the assistance of the European Union, the Ford Foundation, 11.11.11-Coalition of the Flemish North-South Movement and Oxfam. The content of the same is the exclusive responsibility of the Coordinator of the Indigenous Organizations of the Amazon Basin-COICA and the teams of investigation, revision and update of the material and in no case should be considered that reflects the views of the European Union, the Ford Foundation, 11.11.11-Coalition of the Flemish North-South Movement and Oxfam. Printed and made in Peru Índex Introduction. .5 1. Free and Informed Prior Consultation ...................................................10 1.1 At the Constitutional level ........................................................10 1.2 At the policy level ...............................................................12 1.3 At the institutional level. .........................................................19 1.4 Involved Indigenous Institutions ..................................................22 1.5 Principal conflicts and rulings ....................................................25 1.6 Official Reports (National and International) regarding prior, free and informed consultation ....................................................................35 FINAL CONSIDERATIONS ON PRIOR CONSULTATION .....................................41 2. Land and Territory ....................................................................48 2.1 At the Constitutional level ........................................................48 2.2 At the normative level ...........................................................50 2.3 Regarding titled territories .......................................................55 2.4 Property in natural resources .....................................................57 2.5 Movement of indigenous populations due to investment projects and/or internal conflicts ................................................................59 2.6 Institutions that fight for the respect of the right to territory ..........................59 2.7 Rulings of National Tribunals over the Right to Territory .............................61 2.8 Cases before the IACHR .........................................................66 FINAL CONSIDERATIONS ON LAND AND TERRITORY .....................................70 3. Intercultural Health ...................................................................74 3.1 At the Legal and Constitutional Level ..............................................74 3.2 Entities responsible for the design and implementation of public policies on intercultural health ...........................................................84 3.3 Coverage ......................................................................89 3.4 Conflicts .......................................................................93 FINAL CONSIDERATIONS ON INTERCULTURAL HEALTH ..................................94 4. Intercultural Education ................................................................98 4.1 Legal Framework in intercultural education ........................................98 4.2 Plans, programs and projects (coverage and curricula that include BIE) ..............104 FINAL CONSIDERATIONS ON INTERCULTURAL EDUCATION. .120 Bibliography ............................................................................123 ON DEVELOPMENT OF THE RIGHTS TO PRIOR CONSULTATIONS, TERRITORY, HEALTH, EDUCATION, RECOGNIZED IN CONVENTION 169 OF THE INTERNATIONAL LABOR ORGANIZATION: BOLIVIA, BRAZIL, COLOMBIA, ECUADOR, VENEZUELA AND PERU 5 Introduction The Amazon is shared by nine countries (Venezuela, Colombia, Ecuador, Peru, Bolivia, Brazil, Guyana, Suriname and French Guyana) and has an estimated population of 44 million people, including approximately 2.6 million indigenous inhabitants, grouped in more than 390 towns, including 60 groups living in voluntary isolation (COICA, 2016).1 Indeed, with these numbers, conducting a study of the implementation of the obligations of these countries in relation to compliance with the rights of indigenous people is a complex task. However, this Regional Report (regarding implementation of the rights to prior consultation, land, education and health in Bolivia, Brazil, Colombia, Ecuador, Peru and Venezuela) has taken up the challenge, not only to evaluate the level of development for each aforementioned country, but also to provide some proposals to further optimize the rights of indigenous people. We cannot ignore that indigenous people have been victims of a dehumanizing system which, since colonial times, has created a dividing line of an ontological character (civilized /barbarian) through which indigenous people, as well as their form of life, have been labeled regressive. (colonialism of being and knowing);2 a situation which, by the way, did not end with the advent of the republics (inequality in access to health services, cited in this report, is a clear example). Therefore, it is necessary to act, to go one step beyond the declaratory level of development (the signing of treaties like the C169) and join efforts towards effective implementation of the rights of indigenous and tribal people. In this way, references to the rights of health and intercultural education are not random, but rather point to their visibility in a context in which development has been meager, even more so given a context of repeated environmental disasters, which have exerted a clear impact on multiple rights. Consider, for example, that Peruvian official figures indicate that between the years of 2009 and 2015 there were 150 oil spills, and the greatest percentage of these occurred in the Amazon. What doubt can exist on the incidence of a spill on the health of affected children, adolescents and adults? However, will that be the only kind of impact? Should we also consider the existence of cultural impacts?3 The idea of this report is to understand, from a holistic perspective, the rights of indigenous people and the specific requirements of these rights, which must be defined by a process of intercultural dialogue. The update of this report was made possible through a dialogue and exchange carried out in October 2016 as part of the Third Regional Summit of the Amazon, which brings together the Amazonian indigenous people and national organizations from nine countries: Bolivia (CIDOB), Brazil (COIAB), Ecuador (CONFENIAE), Colombia (OPIAC), Guyana (APA), French Guiana (FOAG), Peru (AIDESEP), Venezuela (ORPIA) and Suriname (OIS), with representatives from these states as well as international organizations. The event concluded with the Order of the III Amazon Summit whose first article 1 Available at the following link: http://coica.org.ec/web/iii-cumbre-amazonica- octubre-2016/ (Visited 11/18/16) 2 Please read (Suggested reading): Quijano, Aníbal. Cuestiones y horizontes: de la dependencia histórico-estructural a la colonialidad/descolonialidad del poder. Selección y prólogo a cargo de Danilo Assis Clímaco (2014, 1st Ed.). Buenos Aires: CLACSO. pp. 805-ss 3 División de Supervisión de Hidrocarburos Líquidos del OSINERGMIN. Available at the following link http://www.numero- zero.net/2016/06/30/peru-mas-de-150-derrames-de- petroleo-en-los-ultimos-siete-anos/ (Visited on 07/07/16). 6 COMPARATIVE REPORT proposes: “Intervention by the ILO and UN in response to complaints of violations in the Amazon countries, especially Venezuela (Health, Education, Arco Minero