The Indigenous Paraguayans are Tired of being Sidelined
The rights of the indigenous peoples of Paraguay have received a lot of information in recent weeks. Historic discrimination has resulted in three sentences by the Inter-American Court of Human Rights (IACtHR) on matters related to ancestral land rights. The United Nations Human Rights Committee has recently evaluated the country’s fulfilment of the International Covenant on Civil and Political Rights and have together with NGOs (who have released shadow reports) criticised the government’s negligence when it comes to these rights. The country’s Institute for Indigenous Peoples has been involved with scandals related to the sale of indigenous lands and moreover, one indigenous group has decided to take matters into its own hands.
Discrimination of indigenous groups
Official statistics in Paraguay claim that there are approximately 108.600 indigenous peoples, making up 1.7% of the 6.5 million people that live there. Like other Latin-American countries, the indigenous peoples of here have suffered from widespread discrimination. In education they suffer from disproportionate levels of illiteracy. Health wise they have more difficulties reaching primary medical attention and their maternal and child mortality are proportionally higher. The indigenous population generally also have less access to water and electricity.
The Paraguayan constitution prohibits discrimination (Art.46-48). Nonetheless, these provisions have not translated into effective measures that give actual protection for vulnerable groups. There is in fact no specific legislation designed to combat discrimination in Paraguay. In 2007 one such bill was presented in the Senate, but it has not been met with the political will necessary to convert it into law (primarily since the bill would make reference to sexual orientation). The protection of indigenous peoples can be found in Law 904/81 and the 1981 statute of indigenous communities (amended in 1996). None of these however proportion specific provisions against discrimination.
Ancestral land rights
The right to their traditional lands is vital for indigenous populations, anywhere. It is a crucial element to their identity, their livelihood and way of life. This has been recognized by the UN Human Rights Committee, when it stated that cultural expression for indigenous peoples is closely associated with the use of its land and its resources. The second part of the International Labour Organization’s (ILO) Indigenous and Tribal Peoples Convention sets out the land rights of indigenous peoples. It states that ‘governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories’ (Art.13) and that ‘The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised’ (Art.14(1)). Even if the lands were not exclusively occupied by them, but where they had conventionally had access for traditional activities and subsistence, this access should be safeguarded (Art.14(1)). Which lands these are should be identified (Art.14(2)) and ‘Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned’ (Art.14(3)). Finally, Art.16(1) clearly manifests that indigenous peoples ‘shall not be removed from the lands which they occupy’.
Despite the fact that Paraguay is a state party to the ILO Convention and its rights are unmistakeable, several indigenous groups in Paraguay have nonetheless been forced of their ancestral lands, often to make way for agriculture or animal husbandry. In fact, only 45% of the indigenous peoples in Paraguay were owners of their land in 2002. Even in the Chaco region, where the indigenous people make up 60% of the entire population, the land belonging to them only represented 1.8%. On occasions where ancestral indigenous land has been sold, it has legally been owned by Indi, the Paraguayan Institute for Indigenous peoples, who can only acquire lands to freely transfer them back to indigenous communities. This mismanagement was criticised by the UN HRC, and is particularly scandalous considering that its mission is to ‘Fulfil, assure and ensure the compliance with indigenous peoples’ rights…’. Indi, under the leadership of Ruben Quesnel, has not only failed to assure compliance with the ILO Convention, but it has done quite the opposite. It has violated the indigenous people’s human rights. Fortunately, there seems to be an interest in remedying this situation. Quesnel has been sacked and is facing legal proceedings for the sale of land belonging to the Cuyabia community of the Ayoreo group. The prosecution is based on Art.64 of the National Constitution which expressly prohibits the sale of land destined for the indigenous population. Moreover, on a positive note, Quesnel has been replaced Rodolfo Aseretto, a lawyer and former UN consultant, who claimed he only accepted the appointment by President Franco since he was given extended liberties to legally pursue those who violated the rights of the indigenous peoples. The change of direction however, proves Amnesty International right in that Indi suffers from an institutional frailty as it is very dependent on whom it is governed by.
The Inter-American Court of Human Rights
Paraguay is the only American country to have been sentenced three times by the IACtHR on land rights issues. In 2005 and 2006 the IACtHR ordered the Paraguayan government to return ancestral lands to the exnet groups Yakye Axa and Sawhoyamaxa. These traditionally hunter-gatherer group’s survival has been threatened by cattle farmers, who have been allowed to deforest areas where the indigenous people have lived, to prepare the lands for animal husbandry. For more than 20 years these two communities have been forced to accommodate themselves on the side of a highway, where they have inadequate medical attention, medicines and education. They are a long way from their traditional lands in the Chaco and are unable to live out their traditional activities which are fundamental for their subsistence. The IACtHR sentenced Paraguay for violating the right to a fair trial, a lack of legal protection, for violating property rights and the right to life of these two communities. Despite the fact that their lands were ordered to have been returned by 2008 and 2009 respectively, these communities have continued to live on the side of the road as the court’s sentences have not been fulfilled.
A third exnet group, Xákmok Kásek, also received a favourable ruling by the IACtHR in 2010. Just like the two fellow groups, these have been removed from their ancestral land and the court has set a limit for September 2013 for the return of these lands. According to Amnesty International, some negotiations have taken place, but the court’s orders have not been fulfilled.
Paraguay has established an inter-institutional commission to fulfil international sentences (CICSI), but Amnesty International claims this commission has not been sufficiently effective, especially when it comes to guaranteeing indigenous peoples their land back. The organization says that CICSI has been more concerned with finding alternative land rather than restoring these groups to their ancestral land. The government, however, claims CICSI has been effective as it managed to negotiate a friendly agreement with the Kelyenmagatema group in a process with the Inter-American Commission of Human Rights (IACHR). Alternative land was found, but when analysing their acceptance, one has to take into account that they were exposed to harassment by the private company which owned the land they were claiming. Furthermore, part of the agreement was to better the groups socioeconomic development. Many of these commitments have not been fulfilled.
Taking matters into own hands
In January of 2012 an agreement was reached between the government and the current landowner of Yakye Axa’s ancestral lands, for the group to come back their traditional lands in the Chaco region. The agreement required that the government construct a road so that they could physically return. This was however delayed, according to the government, for meteorological reasons. The fund for their communal development, which was ordered by the IACtHR, was also delayed.
The Sawhoyamaxa have decided to take matters into their own hands. In March 2013, after having waited 23 years and gone through every legal avenue there is, they reclaimed their land. The government has been unwilling or unable to reach an agreement with the current landowner and the Sawhoyamaxa decided that enough was enough. It now represents a dilemma for the government, since they have accepted the court verdicts but have not actually managed to legally return the land. Whatever it decides to do, they must respect the human rights of the native Paraguayans and in the future it must make sure that it consults them when developing laws and policies that may affect them. It is time for the government to live up to its obligations and provide genuine protection for the indigenous population!
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