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PBI interviewed ProDESC to learn more about consultation processes. Alejandra Ancheita is a lawyer, founder and Executive Director of the Economic, Social and Cultural Rights Project (ProDESC), an organization that defends human rights, specifically the right to land, territory and natural resources of agrarian communities, indigenous peoples, and labor rights. Dedicated to legal defense and also the strengthening of organizational processes, the organization also creates visibility for the gender difference with respect to human rights violations committed against men and women in indigenous and agricultural communities and among workers.

In October 2016 we interviewed ProDESC to learn their point of view on the challenges of prior consultation and free, prior and informed consent in the current human rights context in Mexico, and particularly its effects on the security situation of individuals and community defenders. ProDESC was part of the Observation Mission of the Consultation on Wind Power in Juchitán, Oaxaca. Due to irregularities identified within the consultation process, three injunctions were filed, of which one was dismissed and the other two were eventually rejected.

Context

One of the main elements that moved the North American Free Trade Agreement (NAFTA) forward, and which was identified as contributing to the deterioration of economic, social and cultural rights were reforms carried out prior to the execution of NAFTA. In 1992, the constitutional reform to article 27 was issued, and the characteristics of inalienable, imprescriptible and unlimited, which opened the possibility for communal land to be leased, sold, or subjected to other commercial acts. Subsequently, in 1993, the foreign investment law was created to prepare the right conditions for signing of NAFTA.

In addition to easing regulations on the exploitation of lands, the Treaty establishes the possibility of greater flexibility on labor rights, creating economic insecurity in the lives of millions of workers in both urban and rural settings. This is only one example of the potential implications trade agreements and international economic conventions can have, resulting in a tendency to privatize what used to be collective rights. Then, with the energetic reform that had been developing for several years, and which began in 2013 with the reforms to article 26, 27 and 28 of the Constitution; and later, in 2014 with the so called ‘Energy Package' reform, the possibility of exploration and exploitation practically without the permission of the owners as a prior condition for initiating a project, to the detriment of what was established in the international standard for the right to consultation defined clearly in the Convention 169 of the ILO.

The violation on the cultural rights of indigenous peoples

The right to consultation and free, prior and informed consent is a fundamental right of indigenous peoples. Unfortunately, in Mexico there are still deficiencies -- a deficiency of the Mexican government in its duty to carry out its obligation to protect, guarantee and promote human rights. The consultations that are taking place even after the energy reform do not necessarily occur in compliance with minimum international standards.

ProDESC in collaboration with other civil society organizations, such as PODER and Código-DH, closely monitor the different stages of consultation, and identified a series of violations of the maximum standards in terms of consultation and free, prior and informed consent. Most of the consultations that have been carried out are not meeting the condition of being prior, and occur once work has already begun on the exploration or exploitation of natural resources located in the land and the territory, in many cases of indigenous peoples. On many occasions, information on the project is given outside the context of consultation and without regard to the requirement of being previous to initiation of the project, and is not even provided in the language of the local people. This involves a very specific violation, mainly because one of the points that indigenous communities have raised is that, although in many of these villages the inhabitants are bilingual, the language in which they make their transactions and reach agreements is their native language, not necessarily the Spanish language. If work is not done previously by the different Governmental institutions to ensure that permission is not given under conditions of coercion, that all the information is given in the language of the communities, and that information is given prior to project commencement – that is, before issuance of any concession or permit, as well as to the companies coming to do any work either exploration or exploitation to such land or to that territory -- it will mean the constant violation of the right to a free, prior and informed consultation.

Defenders at risk

One of the trends that ProDESC has identified through our accompaniment to cases of the defense of the land and territory has effectively been the criminalization of community human rights defenders, who are basically the owners of the land and territory. They begin a process of resistance and the different levels of government build what they call 'common offences', and start to criminalize them. This has resulted in the demobilization of communities which are organized and also creates an atmosphere of fear and anxiety among those who would maintain a process of resistance and defense of their land and territory.

Community defenders often work in very isolated locations, which means of course that the risks increase when processes of criminalization occur and also increases the difficulty when we want to facilitate protection processes with those human rights defenders in the community. They almost always experience surveillance by unidentified subjects, are followed when they travel, there are threats (death threats) usually by phone, or that are communicated from person to person. And already at pivotal moments in their defense and resistance process there have even been physical and very head-on clashes by opposition groups or unidentified persons who attack the physical integrity of the human rights defenders.

Other situations that we have observed include arbitrary detention, we have identified specifically that human rights defenders from the community are detained by the police without a warrant, and, in many cases, aren’t presented to the public prosecutor, but instead they drive them around in circles without informing them of what is happening, they threaten them and then eventually release them. This limits the opportunity of the defender to file a complaint that such detention occurred, since there is no formality in detention process the police simply deny that this occurred. There are recurrent patterns of arbitrary arrests. We observe a clear difference in the implications of threat and criminalization against community defenders versus more traditional defenders from urban areas with easy access to the media or to the Federal Protection Mechanism for HRDs and Journalists run by the Mexican government.