Study: 9 Countries and the Way Laws Affect the Indigenous Peoples

Rick Kearns

The ways that laws affecting Indigenous Peoples in Latin America are interpreted by courts – including those dealing with control of natural resources, property and prior consultation – has been compiled into a 279-page digest that analyzes the legal debates and judicial decisions that impact indigenous communities in nine countries.

The Due Process Foundation in Washington, D.C. just published “The Digest of Latin American Jurisprudence Dealing with the Rights of Indigenous Peoples in participation, prior consultation and community property” by legal experts María Clara Galvis Patiño and Ángela María Ramírez Rincón.

The authors examine national and international laws and judicial decisions involving cases that have reached the highest courts of Argentina, Bolivia, Colombia, Chile, Ecuador, Guatemala, Nicaragua, Panamá and Perú. Many of the decisions are from cases involving conflicts between indigenous communities and all of the nations listed in the book.

The four major sections of the digest address: how indigenous communities deserve special protection; political participation; the right to prior consultation; and the rights to ownership of the land, the territory and natural resources.

In the introduction to the digest, the authors acknowledge the importance of certain laws established in the 20th century such as Covenant 169 of the International Labor Organization (ILO) which spells out rights for indigenous communities in all the countries that signed the pact. However they assert that court decisions in the 21st century have made even more progress for the communities.

“…in a short time an important body of decisions has been produced that protect the rights of Indigenous Peoples, in particular at the level of interamerican jurisprudence and the pronouncements of the Special Rapporteur of the United Nations on the human rights situation and the fundamental liberties of the indigenous,” state Galvez and Ramirez.

“This body of fundamental international laws,” the authors continue, “of Indigenous Peoples influences more and more the decisions of national judges that have incorporated international juridical norms into internal juridical orders, and in more than a few occasions have gone beyond the international standards in the material to orient the design of public policy or to influence, not always successfully, a change in governmental practices that do not recognize the rights of Indigenous Peoples.”