by DGR News Service | Aug 4, 2014 | Colonialism & Conquest, Lobbying
By Will Falk / Deep Green Resistance San Diego
There’s a common joke I’ve heard many indigenous people tell. It goes like this: “What did indigenous peoples call this land before Europeans arrived? OURS.”
This joke – or truth – reflects many of the problems inhering to the Supreme Court of Canada’s recent ruling in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. From my radical view, the Tsilhqot’in decision leaves much to worry about. In this article, I examine the decision written by Chief Justice Beverly McLachlin to show why the decision is not as helpful it would seem and I anticipate how the government and corporations will bend the decision to their goals.
For me, the term “radical” denotes going to the roots of the problem. First Nations are suffering under the yoke of colonialism. Colonialism is the problem. To undermine colonialism, we must understand the processes making colonialism possible. One of the most powerful institutions perpetuating colonialism is the Canadian government and the Canadian court system as a branch of the Canadian government. It is my view that – for now – we must read the Tsilhqot’in decision not so much as a victory, but as another step down the long road of insidious colonialism.
First, there’s the general and underlying defeat that comes with the fact that colonialism has been so dominant in Canada that First Nations must submit to decisions made by Canadian courts. My second problem with the decision involves facing that there can be no true ownership of land when a dominated people must ask the courts of their conquerors for validation of their right to their own homelands. Placing the burden on First Nations to prove their land claims is another act of arbitrary power that works against cultural survival. Finally, I am deeply anxious about how clearly the Court spells out just what kind of governmental projects would be the type that the Court would sign off on. These projects include mining, forestry, agriculture, and the “general economic development of the interior of British Columbia.”
What Appealing to the Legal System Means
When celebrating what we view as a “good” decision by an imperial court it is easy to forget that the goal is to dismantle the power that gives the court its authority. We must not begin to view the so-called justice system as something like a benevolent paternal figure to appeal to when big-bad corporations come to destroy the land.
We must never forget that there will never be true justice in the courts of the oppressors because the courts of the oppressors are designed to protect the oppressors. Private property laws are the perfect example of this. What happens if you’re starving, walk into Walmart, take a loaf of bread, and are caught? You will be charged with transgressing property laws, dragged into court, and punished by the court for your transgression. Walmart’s right to a loaf of bread trumps your right to eat.
What does it mean, for example, that the Tsilhqot’in had to ask the courts to give them a right to land that they have lived on for thousands of years? Can a people ever truly own their land if they have to ask an occupying court to recognize their claims to land? The court protected the Tsilhqot’in after twenty-five years of deliberation, but what happens to the next aboriginal group that appeals to the courts and loses?
How is Aboriginal Title Established?
First, the Court lays out the process for establishing Aboriginal title. The burden falls on the Aboriginal group claiming title to prove its title. This means that a First Nation existing on its land for thousands of years must pay lawyers and subject its people to the stress of a legal proceeding – in courts established by settlers with access to First Nations land through centuries of genocide – to prove that the land is, in fact, theirs.
Aboriginal title is based on an Aboriginal group’s occupation of a certain tract of land prior to assertion of European sovereignty. A group claiming Aboriginal title must prove three characteristics about their occupation of a certain tract of land. First, they must prove their occupation is sufficient. Second, they must prove their occupation was continuous. Third, they must prove exclusive historic occupation. (¶ 50)
Proving Sufficient Occupation
To prove sufficiency of occupation, an Aboriginal group must demonstrate that they occupied the land in question from both an Aboriginal perspective and a common law perspective.
The Aboriginal perspective “focuses on law, practices, customs, and traditions of the group” claiming title. In considering this perspective for the purpose of Aboriginal title, the court “must take into account the group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed.” (¶ 35)
The common law perspective comes from the European tradition of property law and requires Aboriginal groups to prove they possessed and controlled the lands in question. As the Court explains, “At common law, possession extends beyond sites that are physically occupied, like a house, to surrounding lands that are used and over which effective control is exercised.” (¶ 36)
Simply put, proving sufficiency of occupation requires that the group claiming Aboriginal title were involved with the land in question more deeply than just using it in passing.
Proving Continuity of Occupation
Proving a continuity of occupation “simply means that for evidence of present occupation to establish an inference of pre-sovereignty occupation, the present occupation must be rooted in pre-sovereignty times.” So, the group claiming Aboriginal title must provide evidence that they were on the land in question in pre-sovereignty times. (¶ 46)
Exclusivity of Occupation
The last of the three general requirements for establishing Aboriginal title burdens a group with proving they have had the intention and capacity to retain exclusive control over the lands in question. As with sufficiency of occupation, the exclusivity element requires that the court view the evidence from both the Aboriginal and common law perspectives. According to the Court, “Exclusivity can be established by proof that others were excluded from the land, or by proof that others were only allowed access to the land with the permission of the claimant group. The fact that permission was requested and granted or refused, or that treaties were made with other groups, may show intention and capacity to control the land.” (¶ 48)
What Rights Does Aboriginal Title Confer?
This is one of the most important issues addressed by the Court in Tsilhqot’in – for what it says and what it does not say. The important thing to know here is that Aboriginal title does not provide Aboriginal groups with complete control of their own land. It may be common sense to assume that once an Aboriginal group gains Aboriginal title to their ancestral lands they are free to use their land how they see fit free of government interference. This simply is not true. And the Court is very clear to explain that this is not true.
According to the Court, “Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.” (¶73)
In the English common law, “fee simple” refers to the highest form of ownership of land. Traditional rights associated with “fee simple” are the ones mentioned in the quote above. As the Court explains, “Analogies to other forms of property ownership – for example, fee simple – may help us understand aspects of Aboriginal title. But they cannot dictate what it is and what it is not.” (¶72) The Court quotes Delgamuukw, “Aboriginal title is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts.”(¶72)
It is important to note, of course, that Aboriginal title does not actually give Aboriginal groups full ownership of their own land. Aboriginal title has some key restrictions.
The Court explains: Aboriginal title “is collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land. Some changes – even permanent changes – to the land may be possible. Whether a particular use is irreconcilable with the ability of succeeding generations from the land will be a matter to be determined when the issue arises.” (¶74)
So, once Aboriginal title is established, Aboriginal groups can only sell or give their land back to the Crown. On top of this, the Court creates open doors for future litigation with all the restrictions. Aboriginal groups will be subject to defending their decisions from accusations that they do not know how to manage their own lands for the benefit of future generations. Forcing Aboriginal groups to defend their actions in Canadian courts is a statement that the courts know how to manage Aboriginal lands better than Aboriginal peoples.
Finally, through Tsilhqot’in, Aboriginal title is subject to being over-ridden by governments and other groups on the basis of the broader public good – which often spells disaster for First Nations and natural communities.
Infringing on Aboriginal Title
Government and other groups may infringe on Aboriginal title – or use Aboriginal lands against the wishes of aboriginal peoples – on the basis of the broader public good if it “shows (1) that it discharged its duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective, and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group.” (¶ 77)
The Duty to Consult
The Court predicates the duty to consult on what it calls the “honour of the Crown” and says that the “reason d’etre” of the duty to consult is the “process of reconciling Aboriginal interests with the broader interests of society as a whole.” (¶77 and 82)
It sets up a sliding scale for adjudicating just how hard the government or other groups must try to consult Aboriginal groups. The duty to consult is strongest where Aboriginal title is proven and weaker where the title is unproven. The Court quotes the Haida decision, “In general, the level of consultation and accommodation required is proportionate to the strength of the claim and the seriousness of the adverse impact the contemplated governmental action would have on the claimed right. The required level of consultation and accommodation is greatest where title has been established.” (¶ 79)
Nowhere does the Court say that a government or other group must literally accommodate the wishes of Aboriginal groups. Yes, the government has a duty to consult. But, the government is not charged with an absolute duty to respect the wishes of an Aboriginal group with title to land the government wants. No never actually means no when the government is concerned.
Compelling and Substantial Objectives
The Court is very careful to articulate that there are compelling and substantial objectives that would justify infringement on Aboriginal title. Just like we saw with the duty to consult, the Court will view what objectives will justify infringement through a desire to reconcile Aboriginal interests with the broader interests of society as a whole.
On its surface, this sounds great, but then the Court quotes the Delgamuukw decision to illustrate just exactly what kinds of activities might qualify as a compelling and substantial objectives (when reading this list, keep in mind the kinds of projects we are fighting against right now): “The development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.” (¶ 83)
We have to recognize how dangerous this language is. Enbridge has long anticipated the language. You could pick any number of prominent quotes from Enbridge’s Northern Gateway website www.gatewayfacts.ca to see how Enbridge is already spinning rhetoric to match the Court’s Tsilhqot’in ruling.
Take this one, for example, under the heading, “A boost for our economy,” “Northern Gateway will bring significant and long-lasting fiscal and economic benefits. Economically, the project represents more than $300 billion in additional GDP over 30 years, to the benefit of Canadians from every province.”
Or this one under the heading “Building communities with well-paying jobs,” “The pipeline sector creates thousands of jobs across the country. In B.C. alone, Northern Gateway will help create 3,000 new construction jobs and 560 new long-term jobs. The $32 million per year earned in salaries will directly benefit the families and economies of these communities.”
This is exactly the type of governmental objective that the Court in Tsilhqot’in suggests is compelling and substantive enough to pass constitutional muster.
It is important to understand how easy it is to be misled by our desire for good news in the fight to defend the land and First Nations communities. While there are helpful aspects of the Tsilhqot’in ruling on Aboriginal title, the Court is a long way from giving First Nations total control over their own lands. It may be safer for land defenders to assume that nothing really has changed. Yes, Aboriginal title has been defined, but how meaningful is that title if governments and corporations can override title by pointing to the “general economic development of the interior of British Columbia”?
The Crown’s Fiduciary Duty
The final hurdle a government or other group must clear in infringing on Aboriginal title is proving that the proposed action is consistent with the Crown’s fiduciary duty to the Aboriginal group. This fiduciary duty supposedly requires the Crown to act solely in Aboriginal groups best interests. The problem, of course, is that it is the courts that decide what is in an Aboriginal groups best interest.
The Court explains that the Crown’s fiduciary duty impacts the infringement justification process in two ways. “First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations…This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.” (¶ 86)
The second way it impacts the infringement process is by imposing an obligation of proportionality into the justification process where the government’s proposed infringement must be rationally connected to the government’s stated goal, where the government’s proposed action must minimally impair Aboriginal title, and where the benefits the government expects to accrue from the proposed action are not outweighed by adverse effects on Aboriginal communities. (¶ 87)
Another glimpse at the Enbridge’s Northern Gateway website (http://www.gatewayfacts.ca/benefits/economic-benefits/) demonstrates how Enbridge anticipates the Court’s ruling. Under a heading titled “Aboriginal inclusion” the website reads, “First Nations and Metis communities were offered to become equity partners providing them a 10% stake in the project. With the $300 million in estimated employment and contracts, it adds up to $1 billion in total long-term benefits for Aboriginal communities.”
I do not think it is a stretch to expect that Canadian courts will rule that Aboriginal groups denying projects like the Northern Gateway are working contrary to their own best interests. But, this isn’t even really the point. The point is, for all the progressiveness we want the Tsilhqot’in decision to stand for, it still allows the courts to decide what the best interest of First Nations is and not First Nations themselves. The longer this system remains intact, the longer First Nations communities will be in danger.
by DGR News Service | Mar 4, 2014 | Lobbying, The Solution: Resistance
By Amaranta Herrero / eJolt
On the 14th of February, the regional government of Castilla y León cancelled the plan for Mountaintop Removal Coal Mining (MRT) in Laciana Valley (Spain).
During the last twenty years, irreversible changes have been taking place in the Southwestern Cantabrian Mountains, in an area of great ecological value, which is protected by EU environmental legislation.
The extractive technique known as Mountaintop Removal Coal Mining (MTR) has illegally modified during this time the topography and the life of people in Laciana Valley (León). Although it is literally an explosive industrial process, this mining activity developed in relative silence, away from public opinion. In general, MTR operations are remote, located beyond the landscape seen from city centers. At first glance, only a well-trained eye can detect the landscape morphological transformations involved in the amputation of the top of a mountain and its subsequent artificial reconstruction. But for the 10.000 inhabitants directly affected by this activity, mostly connoisseurs of mountain valley profiles, MTR is constantly visible and audible.
In the past two decades, Laciana Valley has fallen into severe socio-economic decline. Coal mining has gradually reduced, partially driven by EU liberalization measures of the energy market that reduce State subsidies for the extraction of coal. Since 1990, coal production has shrunk 67% in Spain. Surface mining in Spain began in the 1970s, but it was not until 1985 that MTR, much less labour-intensive, started replacing underground mining on Laciana’s private land. The number of coal mining jobs were reduced by 85,7% in the last 20 years in Spain. In 2010, the 6,429 jobs in the Spanish coal-mining sector included directives, technicians, administrative stuff and workers from underground mining and MTR.
The local population has been highly polarised with regard to the continued existence of MTR and the future of the valley. Coal mining has been for far too long an economic monoculture in Laciana, maintained by the very close relations between the political and the economic powers in the area. Suspicion of corruption has always surrounded the coal mining sector since the 90s. Victorino Alonso, the owner of Laciana’s MTR company, Coto Minero del Cantábrico, and the main Spanish coal entrepreneur was declared guilty of fraud in 2010. On the 10th of February 2014 all Spanish coal companies have been brought in front of the Court accused of fraud related to Coal Aid.
Laciana MTR mines have been active without the legally required environmental and planning permits. At the same time, these illegal activities have, curiously, been intensively subsidised by the Spanish government and indirectly by the EU. As a result of the illegalities, the biggest private mining company in Spain, Coto Minero del Cantábrico (CMC), was brought before a Spanish court by individuals and local environmental groups. In fact, some of the inhabitants of Laciana Valley together with regional environmental groups, autonomous activists and Members of the European Parliament, have spent twenty years opposing and struggling against this industrial activity. This heterogeneous ecological resistance movement has addressed the destruction of natural resources and environmental services and the residents’ future. They sued the company and the Town Council, appealed to the European Court, wrote articles and documents, tried to reach the media, organised talks, camps, and they have even put in more than one occasion their bodies in the middle to stop the mountain destruction. This movement has fought for a different future, based on economic activities that are truly compatible with the protection of the environment. This local environmental movement in Laciana has also faced an intense process of stigmatisation and scapegoating within the Valley.
In 2006, CMC received the highest environmental fine in the country’s history (approx. €170 million) and was ordered to stop activities by the regional Administrative Court. In November 2011, the European Court of Justice also recognised the environmental crimes in Laciana. Disregarding the legal verdict, the fine remaining unpaid, the company continued MTR activities and planned expansion. This expansion plan had been presented in 2008 by the regional government. It also represented a threat to Laciana’s inhabitants, ecosystems and future, until last 14th of Februrary. With the MTR expansion plan cancelled, Laciana’s people can start a promising transition towards different, diverse and environmentally lower impact economies.
Congratulations to everybody who fought against MTR coal mining in Laciana for their long and intense ecological resistance and their final victory. If we want to promote a new and sustainable energy model, as well as having a chance of avoiding runaway climate change, it is a must to challenge the coal industry, to end fossil fuels subsidies and to leave coal underground.
From eJolt: http://www.ejolt.org/2014/02/victory-no-more-mountaintop-removal-coal-mining-in-laciana-valley-spain/
by DGR News Service | Feb 1, 2014 | Lobbying, Obstruction & Occupation
By Inter Press Service
Residents of a town in Argentina have won the first victory in their fight against biotech giant Monsanto, but they are still at battle stations, aware that winning the war is still a long way off.
For four months, activists in Malvinas Argentinas, a town in the central province of Cordoba, have maintained a blockade of the construction site where the U.S. transnational company is building the world’s biggest maize seed treatment plant.
In this previously peaceful town, protestors continue to camp in front of the construction site and to block access to it, even after a provincial court order this month put a halt to the works.
The campaign against the plant, led by Asamblea Malvinas Lucha por la Vida (Malvinas Assembly Fighting for Life) and other social organizations, began Sept. 18 in this town 17 kilometers from the capital of Cordoba.
Tense situations ensued, with attempts by the provincial police to disperse the demonstrators and provocations by construction union envoys, but a provincial labor court ruling on Jan. 8 upheld the activists’ cause.
“The ruling shows that the residents’ arguments are just, because they are claiming basic rights that are recognized and established in the constitution and federal legislation,” Federico Macciocchi, the lawyer representing opponents of the plant, told IPS.
The court ruled that the municipal ordinance authorizing construction of the plant in this mostly working class town of 15,000 people was unconstitutional.
It ordered a halt to construction work and banned the Malvinas Argentinas municipality from authorizing the construction until two legal requirements are fulfilled: carrying out an environmental impact assessment and a public hearing.
“This is a big step forward in the struggle, achieved by working together on institutional demands, along with social activism on the streets,” Matías Marizza, a member of the Malvinas Assembly, told IPS.
“This struggle has resulted in guaranteeing respect for the law,” the activist said.
The Malvinas Assembly and other organizations have decided to continue to camp out at the site and block access until the project is abandoned for good.
Monsanto replied to IPS’s request for comment with a statement that describes local activists as “extremists” who are preventing their contractors and employees from “exercising the right to work.”
The court ruling arose from a legal appeal lodged by local residents and the Club de Derecho (Cordoba Law Club), presided by Macciocchi.
The labor court has ordered an environmental impact study and a public hearing, he emphasized.
The views expressed in the public hearing will be “highly relevant,” he said, although under the General Environment Law, participants’ objections and opinions “are not binding.”
However, the law does stipulate that if the opinions of the convening authorities differ from the results of the public hearing, “they must justify them and make them public,” he said.
Now the Malvinas Assembly also wants a public consultation with a secret ballot.
Such a ballot would comply with the environmental law and “guarantee citizens’ full rights to decide on which model of local development and what kind of social and economic activities they want for their daily life, and what environmental risks they are prepared to take,” Víctor Mazzalay, another resident, told IPS.
“It is the people who should have that information and decide whether or not to accept the costs and risks involved,” said Mazzalay, a social researcher funded by the National Scientific and Technical Research Council (CONICET) at the University of Cordoba.
“An environmental impact assessment should include a public consultation so that citizens can provide the ‘social license’ necessary for developing any social, economic and productive activity that may affect their environment and health,” he said.
Monsanto’s statement said the company does not agree with the court ruling, but respects judicial decisions and will abide by the verdict.
The company stated that it had already conducted an environmental assessment, which is currently under review by the provincial Secretary of the Environment.
In Macciocchi’s view, the court’s ruling is definitive and “brings the legal conflict to an end.”
“The ruling arose from a legal appeal, so there is no further recourse in ordinary law,” he said.
Monsanto can still appeal to have the decision overturned by the provincial High Court (Tribunal Superior de Justicia, TSJ).
The company has already said that it will appeal. “We consider our right to build legitimate since we have complied with all legal requirements and have obtained authorization to build according to the regulations, as confirmed by the ruling of the Court of First Instance of Oct. 7, 2013,” their statement said.
However, in Macciocchi’s view “this appeal will not overturn the labour court ruling.”
“If we consider how long the TSJ takes to process an appeal, by the time there is a decision, the Malvinas municipality and the Environment Secretariat will have complied with the laws they previously violated,” he said.
According to the lawyer, the high court takes up to two and a half years for appeals lodged by individuals under sentence, and five to seven years in labor or civil cases.
“It would create a real institutional scandal if the TSJ were to deal with this case by leap-frogging all the other cases that have lain dormant in its offices for years,” he said.
The Jan. 8 ruling cannot prevent the definitive installation of the plant, which Monsanto plans should become operational during 2014.
“But if the citizens’ demonstrations against the plant and the environmental impact assessment are unfavorable to the company, Monsanto will not be able to instal the plant in Malvinas Argentinas,” Macciocchi predicted.
Mazzalay emphasized that the “substance” of the arguments of opponents to Monsanto’s plant was “the defense of the people’s right to decide on the kind of productive activities and the type of environmental risks they wish to undertake.”
The company announced it was planning to build more than 200 maize silos, and to use agrochemical products to treat the seeds. Monsanto is one of the world’s biggest manufacturers of herbicides and genetically modified seeds, and has operated in Argentina since 1956 when it established a plastics factory.
“It is frequently argued that there is a reasonable doubt that this productive activity is harmless to human health,” Mazzalay said.
In his view, “a multiplicity of scientific studies have shown negative effects on health from both seed transportation and handling of and exposure to different agrochemical products.”
“When there is a health risk related to environmental issues, reasonable doubt should bring the precautionary principle into play, that is, an activity should not be developed until it has definitely been proved to be harmless,” he said.
From Upside Down World: http://upsidedownworld.org/main/argentina-archives-32/4669-argentine-activists-win-first-round-against-monsanto-plant
by Deep Green Resistance News Service | Jan 13, 2014 | Indigenous Autonomy, Lobbying
By Natalia Ruiz Diaz / Upside Down World
The Sawhoyamaxa indigenous community in Paraguay have spent over 20 years fighting to get back their land, which they were pushed off by cattle ranchers.
They started the new year by collecting signatures to press Congress to pass a bill that would expropriate their ancestral territory from ranchers, in order for the state to comply with a 2006 ruling by the Inter-American Court of Justice ordering the restitution of their land.
“More than 20 years after being expelled from our ancestral land and living [in camps] along the side of the road, watching the cows occupy the place where we used to live, we decided to return because that land is ours,” the Sawhoyamaxa said in a message accompanying the petition drive.
“Che rohenói, eju orendive, aldeia unida, mostra a cara” (I am calling you, come with us, the people united, show your face) thousands of people sang at the “Todos con (everyone with the) Sawhoyamaxa” intercultural festival in Asunción in mid-December.
The event launched the start of their new crusade demanding enforcement of the Inter-American Court sentence, which ruled that they be given back their territory and that they be provided with basic services, such as medical care and clean water.
The “Che rehenói” chorus was heard over and over again in a mix of Guaraní (one of Paraguay’s two official languages, along with Spanish) and Portuguese, sung by the hip hop ban Brô MC’S, whose members belong to the Jaguapirú Bororó indigenous community from Brazil.
The goal set by the Sawhoyamaxa leaders is to gather 20,000 signatures, to pressure Congress to approve the expropriation of the land.
The epicentre of the community’s two-decade struggle is the Santa Elisa settlement, where the largest group of families are camped out along the side of the road 370 km north of Asunción en Paraguay’s semiarid Chaco region.
They are living “in extreme poverty, without any type of services, and waiting for the competent bodies to decide on the land claim they filed,” according to the 2006 Court ruling.
The Sawhoyamaxa form part of the Enxet linguistic family. There are 19 indigenous groups belonging to five language families in Paraguay, spread out in 762 communities mainly in the east of the country and the Chaco region, a vast dry forest area.
According to the 2012 census, 116,000 of Paraguay’s 6.7 million people – or 1.7 percent of the population – are indigenous, with over half of that group belonging to the Guaraní people. However, the overwhelming majority of the population is “mestizo” – people of mixed European (principally Spanish) and native (mainly Guaraní) descent.
The Sawhoyamaxa, who had no title deeds to the land where they had always lived, were displaced from their land, which was taken over by large cattle ranchers.
“They don’t want us to progress in our way of life,” the leader of the community, Carlos Cantero, told IPS. “We want the land to dedicate ourselves to our ancestral activities, like hunting and gathering in the forest.”
He was referring to the powerful cattle industry, which has successfully lobbied to block implementation of the 2006 binding sentence handed down by the Inter-American Court, an autonomous Organisation of American States (OAS) body.
Cantero said it was important for the situation to be resolved immediately because “there is still a little forest left on our land, some swamps and streams; but if the state does not take a stance on this soon, those reserves are going to disappear.”
Cattle ranchers have steadily advanced on Paraguay’s Chaco region, where in November 549 hectares a day were deforested, according to the local environmental organisation Guyra Paraguay.
The Chaco scrub forest and savannah grassland, which covers 60 percent of Paraguay but accounts for just eight percent of the population, makes for good cattle pasture.
Since the 19th century, the worst dispossession of indigenous people of their lands in this landlocked South American country occurred in the Chaco, especially after the 1932-1935 Chaco War with Bolivia, when the government sold off huge tracts of public land to private owners.
Today, less than three percent of the population owns 85 percent of Paraguay’s arable land, making this the Latin American country with the greatest concentration of land ownership.
The Sawhoyamaxa community is fighting for 14,404 hectares of land.
In a largely symbolic move, when the final deadline set by the Inter-American Court expired in March, the native community began to “recover” their land, setting up small camps on the property to which they are waiting to be awarded a collective title.
Their fight for the return of their ancestral lands dates back to the early 1990s. After exhausting all legal recourse available in Paraguay, they took the case to the Inter-American Human Rights Commission in 2001, which referred it to the Court.
The Sawhoyamaxa case is one of three in which the Inter-American Court has handed down rulings against the Paraguayan state in defence of the country’s native people. None of the resolutions has been fully complied with.
After the 2006 sentence, the government attempted to acquire the land in question in order to live up to the resolution and return the property to the native community. But it failed, due to the refusal by the rancher who holds title to the property, Heribert Roedel, whose 60,000-hectare estate includes the land claimed by the Sawhoyamaxa.
“The other route for expropriation is through the legislature, for which a bill was introduced, currently being studied in the Senate,” said Oscar Ayala, a lawyer with Tierraviva, which supports indigenous communities in Paraguay.
This local non-governmental organisation and Amnesty International Paraguay are the main civil society supporters of the cause of the Sawhoyamaxa.
The bill Congress is debating was presented by the government in August for the expropriation of the land, in order to fulfil the Inter-American Court order.
According to Ayala, there is a more positive environment than in the past. “The impression we have is that there is greater openness” for an eventual solution and for justice to be done in the case, he said.
On Dec. 18, the Senate commission for audit and oversight of state finances pronounced itself in favour of expropriation of the land.
“This first favourable ruling is a good indicator; these questions are always complex because caught up in the middle is that deeply rooted economistic view of land, but in this case those issues are no longer in debate,” Ayala said.
The bill will now go to the agrarian reform and finance commissions and then on to the Senate floor, before being sent to the lower house.
Some 120 families – around 600 people, half of them children and adolescents – are living in the Santa Elisa settlement.
The Court also ordered the state to provide food and healthcare assistance to the community. But while the situation in this respect has improved in the new settlements, much more needs to be done.
“We have a health promoter but no health post,” Cantero said. “The worst affected are the children, who are suffering from dehydration because of the bad quality of the water.”
The settlements receive clean water every month, but it is not enough, and they depend on rainwater, which is scarce in the semiarid Chaco.
To find a solution, Sawhoyamaxa men and women have been knocking on doors everywhere, showing people papers that describe the history of their community, their struggle, and the Court ruling, in search of support.
“We won’t stop until we are living on our land; our very survival depends on that,” Cantero said.
From Upside Down World: http://upsidedownworld.org/main/paraguay-archives-44/4629-sawhoyamaxa-battle-for-their-land-in-paraguay
by Deep Green Resistance News Service | Nov 13, 2013 | Lobbying, Toxification
By Amazon Watch
In a major setback for Chevron, the Ecuadorian National Court issued its long-awaited decision in favor of a $9 billion pollution judgment against Chevron upholding and affirming lower court rulings. The court’s decision is final.
In its 222-page opinion, the supreme court affirmed earlier decisions by a Lago Agrio court and the appellate court for $9 billion but rejected the additional $9 billion in punitive damages previously imposed for not apologizing, given that provision is not explicitly permitted in Ecuadorian law. The supreme court also lamented the plaintiffs waiting 20 years for justice and attributed this largely to delaying tactics by Chevron. This ruling constitutes a landmark case for corporate responsibility.
“This is an extraordinary, unprecedented triumph for indigenous and local communities over one of the world’s worst polluters,” said Donald Moncayo, a representative from the Amazon Defense Coalition for 30,000 Ecuadorian rainforest villagers and plaintiffs, who was in New York to testify in a retaliatory lawsuit filed by Chevron against lawyers for the plaintiffs in the Ecuador case.
Meanwhile, at the trial in New York, Judge Kaplan repeatedly assisted Chevron in intimidating and attacking key Ecuadorian witnesses and the defendant’s legal team.
In the retaliatory RICO lawsuit, Moncayo was subjected to a lengthy cross-examination by Chevron, after which Judge Kaplan ordered him to turn over a copy of his hard drive to the court.
Christopher Gowen, a legal ethics professor at American University Washington College of Law, was present in court and commented, “Watching an American judge threaten a foreigner in an American court with criminal penalties without the advice of counsel on a highly questionable court order defies everything our justice system stands for.”
“Ecuador’s supreme court has given careful consideration to each of Chevron’s conspiratorial claims, and has rejected them one-by-one,” said Han Shan, spokesperson for legal team representing the Ecuadorian Villagers. “While the company’s complaints have found a sympathetic ear in Judge Kaplan’s courtroom, the fact remains that Chevron has been found liable by the court it fought to have the case heard by, and that decision has now been upheld at the highest level.”
“We witnessed outrageous abuse of power by the very pro-Chevron Judge Kaplan and there was nearly no mainstream media and no cameras to capture it,” said Atossa Soltani of Amazon Watch. “This can only have a chilling effect on the willingness of witnesses in human rights cases to come forth to provide facts and pertinent information in an impartial setting where they are not going to feel threatened.”
The Ecuadorians and their supporters have called for an end to Chevron’s retaliatory lawsuit and the ongoing “rigged show trial” before Judge Kaplan, who has displayed outright hostility to the Ecuadorians’ legal efforts to demand a cleanup. Judge Kaplan has also made repeated disparaging on the record comments about Ecuador’s judicial system.
Chevron has no assets in Ecuador, forcing the communities to pursue the oil giant’s assets around the world through enforcement actions currently underway in Brazil, Argentina and Canada.
Texaco operated in Ecuador until 1992, and Chevron absorbed the company in 2001, assuming all of its predecessor’s assets and liabilities. Chevron has admitted to dumping nearly 18 billion gallons of toxic wastewater into rivers and streams relied upon by thousands of people for drinking, bathing, and fishing. The company also abandoned hundreds of unlined, open waste pits filled with crude, sludge, and oil drilling chemicals throughout the inhabited rainforest region. Multiple independent health studies have shown an epidemic of oil-related birth defects, cancers, and other illness.
From Amazon Watch: http://amazonwatch.org/news/2013/1113-ecuadorian-court-upholds-9-billion-judgment-against-chevron
by Deep Green Resistance News Service | Nov 7, 2013 | Lobbying, Mining & Drilling
By Grand Canyon Trust
For the second time in as many decades, operations to open the Canyon uranium mine six miles south of Grand Canyon National Park have been suspended. The Havasu Tribe, which had previously challenged the mine, and conservation groups have been working to stop this mine because of potential harm to waters and wildlife of Grand Canyon, as well as cultural resources.
Pursuant to an agreement with the Havasupai Tribe and conservation groups, and citing “business reasons,” Energy Fuels Resources, Inc. decided to place the mine in non-operational, stand by status on Tuesday. Uranium prices have dropped to a five-year low during the last three months. The mine was previously placed on stand by in 1992, after uranium prices plunged to record lows. The company resumed shaft-sinking operations in early 2013; the current cessation will last at least until a pending district court ruling or Dec. 31, 2014.
“The Canyon Mine threatens irreversible damage to the Havasupai people and Grand Canyon’s water, wildlife, and tourism economy, so this closure is very good news,” said Roger Clark with the Grand Canyon Trust. “The closure is temporary. Under current policy, federal agencies will permit this mine— like other “zombie mines” across the region— to reopen next year, or 10 or 20 years from now without any new environmental analysis or reclamation. That needs to change.”
The Havasupai Tribe and conservation groups sued the U.S. Forest Service in March over its 2012 decision to allow the controversial mine to open without adequate tribal consultation and without updating a 1986 federal environmental review. The mine is within the Red Butte Traditional Cultural Property, which the Forest Service designated in 2010 for its religious and cultural importance to tribes, especially Havasupai. It threatens cultural values, wildlife, and water, including aquifers feeding Grand Canyon’s springs. The lawsuit charges the Forest Service with violating the National Historic Preservation Act for not consulting with the Havasupai Tribe to determine whether impacts of the mine on Red Butte could be avoided prior to approving mining. It also alleges violations of the National Environmental Policy Act for failing to analyze new circumstances and science since the mine’s outdated 1986 environmental impact statement. Those include the designation of the Red Butte Traditional Cultural Property, reintroduction of the endangered California condor, and new science showing the potential for uranium mining to contaminate deep aquifers and Grand Canyon seeps and springs.
“It’s been clear for years that the public doesn’t want uranium mining around the Grand Canyon. Now that this mine has been put on hold, the Forest Service has yet another opportunity to do the right thing: protect people, wildlife and this incredible landscape from industrial-scale mining and all the pollution and destruction that come with it,” said Robin Silver of the Center for Biological Diversity.
The mine falls within the million-acre “mineral withdrawal” zone approved by the Obama administration in January 2012 to protect Grand Canyon’s watershed from new uranium mining impacts. The withdrawal prohibits new mining claims and mine development on old claims lacking “valid existing rights” to mine. In April 2012 the Forest Service made a determination that there were valid existing rights for the Canyon mine, and in June it issued a report justifying its decision to allow the mine to open without updating the 27-year-old environmental review.
“It is time to halt this mine — permanently,” said Sandy Bahr, director of the Sierra Club’s Grand Canyon Chapter. “It was a bad idea 27 years ago when the now-dated environmental impact statement was issued, it is a bad idea today, and it will certainly be a bad idea tomorrow. Now we know even more about how much Canyon Mine threatens the water, wildlife and cultural resources of Grand Canyon.”
Plaintiffs on the litigation include Havasupai Tribe, Grand Canyon Trust, the Center for Biological Diversity and Sierra Club.
Background
The Canyon Mine is located on the Kaibab National Forest, six miles south of Grand Canyon National Park. The mine’s original approval in 1986 was the subject of protests and lawsuits by the Havasupai Tribe and others objecting to potential uranium mining impacts on regional groundwater, springs, creeks, ecosystems and cultural values associated with Red Butte.
Aboveground infrastructure was built in the early 1990s, but a crash in uranium prices caused the mine’s closure in 1992 before the shaft or ore bodies could be excavated. Pre-mining exploratory drilling drained groundwater beneath the mine site, eliminating an estimated 1.3 million gallons per year from the region’s springs that are fed by groundwater. A 2010 U.S. Geological Survey report noted that past samples of groundwater beneath the mine exhibited dissolved uranium concentrations in excess of EPA drinking water standards. Groundwater threatened by the mine feeds municipal wells and seeps and springs in Grand Canyon, including Havasu Springs and Havasu Creek. Aquifer Protection Permits issued for the mine by Arizona Department of Environmental Quality do not require monitoring of deep aquifers and do not include remediation plans or bonding to correct deep aquifer contamination.
Originally owned by Energy Fuels Nuclear, the mine was purchased by Denison Mines in 1997 and by Energy Fuels Resources Inc., which currently owns the mine, in 2012. Energy Fuels has been operating the mine since April 2013, sinking the shaft and preparing the facility for uranium ore excavation.
