Litigating Indigenous Dispossession in the Global Economy: Law's Promises and Pitfalls

Abstract

Based on documents collected with local community members and advocates over the course of more than a decade, this paper begins by describing the legal processes whereby the Campesino Community San Andres de Negritos allegedly “consented” to its own dispossession in favor of the large foreign-owned Yanacocha Mine located in Northern Peru. It frames this story within the larger unfolding story of Agrarian Reform, neoliberal globalization, transnational resource extraction, the rise of community-based activism, and the emergence of Indigenous rights in international law and domestic constitutions in Latin America. In this highly-textured context, this paper describes how advocates developed an innovative rights framework for problematizing the Negritos Community’s dispossession and challenging the legality of Yanacocha’s operations. This unprecedented turn to the law ultimately reveals a disjuncture between the expansion of Indigenous rights recognition at one level, and the absence of appropriate causes of action and procedures for operationalizing these rights on the ground. As the Negritos Community litigates its case against one of the most powerful mining companies in the world, it has faced numerous challenges inside and outside of the courtroom. This paper critically analyzes the response of the state, the company and the domestic legal system. It focuses in particular on the limitation period procedural rule and the formalist and discriminatory view of consent that has permeated the courts’ decisions to date. In formulating this critique, the paper theorizes “the dynamics of dispossession” and reflects on human rights law’s promise and pitfalls as an instrument of global economic justice. The conclusion articulates this study’s findings and consequences for future research and law reform.