Contesting Indigenous-Industry Agreements in Latin America

Abstract

In this chapter, I review the contributions of scholars and activists who share my concern that the legal and social contexts that typically inform the formation of Indigenous-industry agreements in Latin America are marked by enormous power disparities and stark epistemological differences. This literature review supports the proposition that it is likely that many Indigenous-industry agreements in Latin America lack legitimacy and perhaps legality. This in turn raises serious questions about whether or not Indigenous-industry “agreements” formed in these conditions could possibly rest on any meaningful notion of consent. I make this important point in order to focus on a narrower question, one of the present but also very much one of the future, as we face the aftermath, in the years and decades to come, of the proliferation of agreements under present circumstances. What happens when a community mobilizes in order to challenge the legality of a past agreement with industry, such as for example by contesting the idea that it actually consented? What if the company and/or the state holds up a document with signatures from past community leaders that allegedly represent consent? If the company and the state are unresponsive to a community’s concerns about an agreement, can it resort to the courts? In this chapter, I explore some of these questions by referring to Peru as a case study. In my conclusion, I explore the significance of this study for ongoing normative developments in relation to Indigenous peoples’ right to consultation, consent and the formation of Indigenous-industry agreements.

Keywords: impact benefit agreements; Latin America; Indigenous rights; free, prior and informed consent; resource extraction; Peru; constitutional law; limitation period

JEL Classification: K2, K33, K4, K41