See

discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/259296811

Conflicting Rights and Interests in Indigenous

Territories. The Limits of Exploitation and
Conservation of Natural...

Chapter · December 2012

CITATIONS READS

0 103

2 authors, including:

Olivier Petit
Université d'Artois
118 PUBLICATIONS 225 CITATIONS

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

RISC Environmental Working Group 2010 View project

Groundwater economy in North Africa View project

All content following this page was uploaded by Olivier Petit on 07 June 2014.

The user has requested enhancement of the downloaded file.

 Conflicting Rights and Interests in
Indigenous Territories: The Implications
of Exploitation and Conservation of
Natural Resources

Marcela CEBALLOS MEDINA, Olivier PETIT

Universidad Nacional de Colombia, Colombia & CLERSE-CNRS,

Université d’Artois, France

Introduction
Indigenous communities have always developed strong links with
their territory, defined as a common heritage and as a social-ecological
system made up of the interaction between natural resources and human
communities in a place. Mining activities (by oil companies for
instance) and contemporary conservation policies aiming to protect
biodiversity have endangered the physical and cultural links between
indigenous communities and their territories. These policies have
sometimes resulted in forced displacements and, more frequently,
cultural changes (most of them related to self-government and ways of
self -provisioning) in certain areas.
The aim of this paper is to understand the conflicts inherent to such
situations (conflicts over conceptions of property rights, impacts in
terms of environmental justice, territory, the common interest, etc.) and
their consequences for indigenous communities. It is framed by the
following questions: What are the impacts of environmental
conservation and strategic resources exploitation projects on indigenous
rights and what kind of social-ecological system do they promote? What
types of social-ecological conflicts emerge from conservation and
exploitation projects and how are they solved?
In relation to this general question, this paper addresses several
important issues related to the concept of territory:
 The distinction between territorial “sovereignty” and
territorial “autonomy” in the case of indigenous rights

15
  The difference between the concepts of “patrimony/heritage”
and “property” in the case of natural resources?
 The relationships between the concepts of “governance” and
cultural systems in the case of indigenous communities?
In order to answer these issues, our paper is divided into three parts.
The first part explores the analytical links between rights (human rights,
environmental rights, property rights) and territory. How can this bundle
of rights help to understand the coexistence of diverse conceptions of a
territory? The second part identifies tendencies (driven by global as well
as regional imperatives) of both exploitation and conservation of natural
resources such as protected natural areas and oil-mining exploration and
exploitation. These tendencies will help to illustrate the links between
these resource activities, the conflicting interpretations of a territory and
their relation with the bundle of rights. Exploitation and conservation of
strategic resources are often presented as the two opposite sides of a
large spectrum of relationship between Man and Nature, in terms of its
impact on ecosystems. However, we argue that both exploitation and
conservation of natural resources can have similar social and cultural
impacts on communities living in places where exploration and
exploitation of natural resources occur, as well as in protected areas.
Among these impacts, displacements of local populations are probably
one of the first stakes.
The last part is dedicated to the study of the “Coatí” oil exploration
project in the Cofan indigenous territory, located in southern Colombia.
The licence of exploration was delivered by the national government to
the Columbus Energy Consortium, but the latter had to begin a Prior
Consultation process with the indigenous communities because the
exploration area overlaps with the legally constituted Cofan territory.
Here we contrast the arguments of the State, the petroleum company and
the Cofan community, as manifest in public consultations for this
project. We try then to understand which conception of territory is
mobilized by each of the stakeholders and how they relate to arguments
in terms of different types or levels of interest (general interest,
individual interest, community interest) and rights. The conflict between
the concepts of property/ownership and heritage/patrimony is one way
to understand the various conceptions of a territory by different
stakeholders. We examine the outcome of the prior consultation process
by studying some of the main aspects of the decision-making process
related to exploration and exploitation activities.
 Conflicting rights and interests in indigenous territories

1. Bundle of rights and indigenous territories: legal thought

According to Stavenhagen (2000), it is possible to identify three
tendencies in contemporary thought on the human rights of indigenous
peoples. The first focuses on individual rights. It centers primarily on
the equality of human beings in the protection of indigenous peoples
against any form of discrimination. The second tendency focuses on the
protection of minorities and emphasizes the need for affirmative action
by governments in order to promote the human rights of specific
vulnerable social groups1. The third tendency focuses on the right of
self-determination; it emphasizes cultural identity, pluralism and
diversity as the main principles of pacific coexistence (Stavenhagen,
2000).
At the same time, it is possible to identify five principles of the
international human rights regime (ONIC, 2003):
 The right of difference and particularity, against
homogenization,
 The right of equality of indigenous peoples in relation to
others groups of society (it includes the right of participation
in any political decision that affects their culture and
territories),
 The right to self-determination (it refers to the respect of their
culture, practices according to their identity),
 The right of dignity (it includes access to public policies that
search for better social, economic and cultural conditions of
life),
 The right of a preferable treatment by the States (such as
reparation measures in context of violence or economic
intervention, special protection when social vulnerability is
identified).
These principles recognize a group of rights to indigenous peoples as
collective actors: the right of cultural and ethnic integrity, the right to
preserve their natural habitat (ecological integrity), the right to collective
forms of property (including the right to their own territory which
prevents external interventions that could threaten their survival).
However, these principles are in tension with other principles in
international law, and in particular, with the territorial sovereignty of
States as we discuss below.

1
Some indigenous communities are skeptical about this approach because they do not
consider themselves as demographic minorities.
1.1. Conceptual Framework of the human rights of indigenous
peoples: land, resources and territories
Defining “Indigenous Peoples”
There is no single definition of indigenous peoples in the
international human rights system. Nevertheless, the most commonly
used definition, coined by Jose R. Martinez Cobo in the Study on the
Problem of Discrimination against Indigenous Populations, defines them
as pre-colonial societies that consider themselves distinct from other
sectors of the societies now prevailing on their territories, which are
conceived at the present as “dominant”. Indigenous peoples are
determined to claim the right to their ancestral territories as the basis of
their ethnic identity2.
This definition recognizes the right of “occupation” or “settlement”
of the original – aboriginal – populations, but not the right of
“possession” or property. At the same time, it recognizes the systematic
violation of occupation of that right through conquest and/or
colonization. The second part of the definition deals with the
“determination” of indigenous peoples to preserve, develop and transmit
to future generations their ancestral territories and ethnic identity. This
implies the political decision of the indigenous peoples to vindicate their
rights in the public sphere by establishing a dialogue with the State and
other political and economic actors. In other words, the indigenous
peoples are recognized as a collectivity and political subject with their
own legitimate cultural patterns, legal systems and social institutions,
which are distinct from the rest of society3.
Lands, resources and territories
Three basic concepts in the international human rights system define
the approach to indigenous peoples´ human rights: “lands”, “territories”
and “resources”. The Permanent Forum on Indigenous Issues examines
the development of these concepts throughout history. It concludes that
the international legal construct known as the Doctrine of Discovery –
since the XVth century still operating today.
The word “lands” in the Discovery Doctrine refers to empty regions,
with no human beings, and indigenous peoples were not considered part
2
E/CN.4/Sub2/476; E/CN.4/Sub.2/1982/2; E/CN.4/Sub.2/1983/21.
3
According to the Draft American Declaration on the rights of Indigenous Peoples:
“Self-identification as indigenous peoples will be a fundamental criteria for
determining to whom this Declaration applies”. It establishes that the rights of
indigenous peoples to lands, territories and resources are permanent, exclusive,
inalienable, and not prescribed or subject to embargo.
 Conflicting rights and interests in indigenous territories

of this category in the papal bulls (they were not Christians). The
commercial codes and the development of property rights regimes
resulted in a new meaning. This word acquires now a commercial
connotation in the normative UN and OAS framework: the land as a
commodity subject to transaction or as a strategic good for the States
and the international community. Thus, it is subject to different kinds of
intervention with different purposes: environmental preservation or the
protection of areas and resources of special interest, exploration or
exploitation of renewable or non-renewable natural resources. This
orientation is clear in the Rio Declaration on Environment and
Development (lands include the environment of areas occupied by
indigenous peoples), The UN Convention on Biological Diversity and
the UN Convention on Climate Change (1992).
The implementation of this approach without any consideration of
the cultural framework of indigenous peoples that live in regions subject
to preservation or exploitation has affected their access to land rights4.
The permanent Forum has noticed the negative effects of large-scale
development projects on indigenous economic systems, on their cultural
heritage and on their social networks by expropriation of territories
(Permanent Forum on Indigenous Issues, E/c.19/2010/14).
The word “resources” in the international human rights regime is
used to refer to goods considered as “patrimony” of humanity,
distinguishing between tangible (lands, territories and resources) and
intangible (culture). In this meaning, the preservation and conservation
of resources are part of a strategy to prevent human intervention in
goods of global interest. Those goods are patrimony when they
contribute to the cultural diversity of humanity, to environmental
sustainability or to sustainable development. In this way, the
conceptualization of “resources” implies a separation between human
beings and nature which is radically opposite to the indigenous
conception of the cultural and spiritual character of territory, understood
as a system in which nature and humans interact permanently5.

4
Some indigenous peoples consider the climate change policies inappropriate because
they conceive resources as merchandises (Permanent Forum on Indigenous Issues,
E/c.19/2010/7). The Draft American Declaration says that the States won´t be able to
create protected areas or conservation programs in indigenous lands without their
free, previous and informed consent (article 8, paragraph 7).
5
The Convention 169 of International Labour Organization (ILO) establishes that
indigenous people have the right to participation in the “use, administration and
conservation” of resources in their lands, resources that must be specially protected
by the States (article 15, paragraph 1). It establishes that each State will preserve the
pertinent knowledge, practices and innovations of indigenous communities to the
conservation and sustainable use of biological diversity (article 8).
 When the State has the right of property over minerals, sub-soil
resources or any other resources in lands occupied by indigenous
peoples, it is necessary that governments maintain the procedures of
consultation with interested populations, before beginning any activity
in this sense. In cases where such activities have already taken place, it
anticipates indemnification or compensation for the damages caused to
indigenous peoples.
In addition to this, the UN Declaration rejects military activities in
territories of indigenous peoples unless justified by a relevant public
interest or otherwise freely agreed with or requested by indigenous
peoples concerned (article 30). In the same way, it condemns the
displacement or movement from their territories (article 10). In practice,
the public interest is not the exception but the rule in relation to the
militarization of indigenous territories because it always has to do with
national security or economic activities considered as the hard core of
national development.
The word “territory” refers to the interaction between indigenous
peoples and nature. It is associated with the right of self-government and
with the recognition of Indigenous Law (including collective forms of
property, occupation and autonomy on uses in accordance to their
traditions and cultural patterns). In this sense, the right of self-
government is broader than the concept of “governance”. The Draft
American declaration (Article IV, part 2) recognizes that collective
rights are a necessary condition of their existence.
Following this background, it is possible to identify two main
tensions in the international human rights regime. The first tension is
between the right of sovereignty of national States (not in contradiction
with the protection of human rights but in tension with the autonomy
calls of special groups as indigenous) and the right of self-
determination of indigenous peoples. The normative framework
establishes that the States are able to limit the right of self determination
when a public interest is threatened, respecting the consultation
procedures (in accordance to the Convention 169). A second tension
occurs between the equality in rights and the right of difference. This
tension has to deal with the difference between the approach to
indigenous rights by conceiving them as minorities and the approach
that conceived of them as political subjects with cultural identities that
recognizes their right to self- determination. The conflicting rights
exposed in these tensions are not solved and shows a dilemma that
results from giving the indigenous peoples the status of an independent
political entity similar to that of the Nation State or incorporate
indigenous peoples as part of the State’s regime, even though this
incorporation means, in some circumstances, that they have to resign to
 Conflicting rights and interests in indigenous territories

the right to self-determination. The first option could result in a more

vulnerable condition for the indigenous peoples when they don’t have
the institutional support needed to interact / negotiate with transnational
economic corporations or foreign powers.
1.2. Indigenous territories: property rights, heritage/patrimony
and governance issues
As mentioned above, indigenous territories concentrate several
sources of rights-based conflicts, especially in a context of exploitation
and/or conservation of natural resources.
First, there are generally conflicts over property rights. In the case of
the Amazon region, even if national legislations are different, one can
identify several common aspects. Most of the countries in the region
have inherited a conception of property rights from the Roman law
tradition. This conception distinguishes three bundles of rights (Di
Gregorio et al., 2004: 7):
 Usus is “the right to use the asset, which can include right of
access (to enter the resource domain, e.g. the right to go
into a forest) and withdrawal (to remove something, e.g. to
extract kindling, fodder, or fish)”;
 Usus fructus is “the right to appropriate the return from the
asset (usus fructus), including earning income from it”;
 Abusus is “the right to change its form, substance and
location (abusus), which includes many decision-making
rights such as management (to modify or transform a
resource, e.g. by planting trees or shrubs, enlarging a
canal, or restricting what can be harvested), exclusion (to
determine who else may use the resource)”.
Moreover, following Bromley (1991), one can distinguish four
property regimes: public, private, common property and open access.
The conflict over property rights is historically based on different ways
of understanding property regimes, and especially, on a confusion
between common property and open access (Ciriacy-Wantrup, Bishop,
1975). This can be illustrated with the case of Ecuador:
The 1964 Law of Fallow Lands, classified large portions of the Amazon as
`unoccupied', despite the fact that they were occupied and used by
indigenous populations. This law allowed colonists to claim 50 hectares
plots of 'unoccupied land' along roads and also promoted deforestation by
requiring proof of `improvements' in order to establish legal land titles. At
the beginning of this period, there were no specific laws protecting the land
and resource rights of indigenous peoples, which caused frequent clashes
 among indigenous groups, colonists, oil companies and the government
over land and resource rights. (Bremner, Lu, 2006: 506).
Most of the indigenous communities living in the Amazon region
have a complex relation with their lands and resources. Many scholars
consider that this is a kind of common property regime (Bremner, Lu,
2006), but the spiritual aspects and the strong links between territory
and group identity are sufficient to mention, to understand that the
relation between indigenous communities and their territories is much
more complex. Indigenous communities are generally conceiving their
territory as a heritage/patrimony, which must be protected and
conserved for future generations.
Moreover, even when property rights are legally defined, there is a
persistent ambiguity over the rights of the different stakeholders. For
instance, the 1988 Brazilian constitution considers the Amazonian
Forest as a public property. Conservation of natural resources is the rule
and all the activities generating harm to biodiversity are, in theory,
forbidden. Amazonian indigenous lands in Brazil are in the same
situation, even if indigenous communities benefit from exclusive usus
fructus rights on natural resources located on their lands. In fact, this
example shows that, most of the time, national legislation is very
ambiguous and doesn’t clarify explicitly what indigenous communities
can or cannot do and, moreover, what is the share of responsibilities
over the sustainable management of natural resources (Filoche, 2007:
41).
The question of withdrawal rights is also an important element of
contention between stakeholders and especially between indigenous
communities and mining interests. According to Bremner and Lu (2006:
508-509):
Under Ecuadorian law, the state retains subsurface mineral rights on all
land. Thus, indigenous groups possess access and withdrawal rights to
surface resources, while oil companies can lease subsurface rights from the
government. This has led to a relationship between oil companies and the
indigenous in the NEA6 that is often depicted as adversarial. Oil companies
usually will negotiate access with communities by providing infrastructure
(schools, roads and electricity) and services to community members in
exchange for acquiescence to oil activity on indigenous lands.
Second, the conflicts over property rights can generate a conflict
between stakeholders. NGO’s, national administrations, indigenous
communities, firms, workers, local authorities, etc. have to commonly
share the same space according to different needs and interests. Even in

6
NEA: Northern Ecuadorian Amazon.
 Conflicting rights and interests in indigenous territories

the public administration for instance, people in charge of economic

development, agriculture and environmental protection don’t share the
same values and are driven by different (sometimes opposing) goals.
They don’t have the same idea of territorial development and don’t
operate at the same scales. According to Brockington et al. (2006: 252):
Contemporary protected areas not only affect the people living in them,
adjacent to them, and displaced by them, but also the people working for the
nongovernmental organizations (NGOs) and government agencies that
create and manage the protected areas. They also change the face of the
Earth by renaming places, drawing boundaries around areas, and erasing
boundaries between states.
Third, if the conflict over rights and values can generate a conflict
between stakeholders sharing the same territory, there can be a conflict
on the governance process. Each of the stakeholders does not have the
same power in the negotiation processes, in economic as well as
political terms. Moreover, even if we talk of indigenous communities, as
if there was a common set of values, there is in fact an increasing
heterogeneity between groups, due, among others things, to
modernization and westernization processes (education, migrations,
etc.). This group heterogeneity has an important impact on the
governance structures of indigenous communities. Even when
indigenous rights are recognized, the difficulty remains to find the
adequate persons able to defend these rights at the various decision
scales.

2. Exploitation and conservation of natural resources and

their impacts on local communities: global tendencies
and implications for the Amazonian region
Since the 1990’s, awareness of the ecological and social impacts of
the exploitation of natural resources has become a major topic of debate
at the international level (Earth Summit, Rio de Janeiro, 1992). In order
to preserve natural areas and design exploitation of natural resources in
a more sustainable way, several policies have been implemented at the
global level, focusing on “hotspots” of biological diversity. As a
consequence of these policies largely driven by globalized
environmental NGO’s (International Union for Conservation of Nature -
IUCN, Conservation International, World Wildlife Fund - WWF, etc.)
and international organizations (World Bank, UN programmes, etc.),
‘natural protected areas’ have been designed, with the aims to protect
natural resources from intensive use and exploitation, and conserve
natural habitats and species for future generations. But, as will be shown
 in this section, both exploitation and conservation of natural resources
can impact indigenous communities.
2.1. Impacts of the Conservation of Protected Areas on
indigenous communities
At the global level, there has been an important increase of the total
surface covered by protected areas since the beginning of 1990’s.
Conservation of protected areas currently cover almost 20 million km2
worldwide (Rodary, Milian, 2008). In fact, the term “protected area” is
used to designate diverse situations: National Parks, National Reserves,
Protection Forests, Communal Reserves, etc. Each of these categories
assumes a different relation between the conservation of natural
resources, biodiversity and human activities.
At the global level, we have witnessed an important increase of the
total surface covered by protected areas since the beginning of 1990’s.
The proportion of terrestrial and marine (territorial waters up to 12
nautical miles) areas protected grew from 8.6% in 1990 to 11.9% in
2009 worldwide (excluding Antarctica). In Latin America and the
Caribbean, the figures were, respectively 9.4 (in 1990) and 19.3 (in
2009). The countries of the western Amazon region (Bolivia, Brazil,
Colombia, Ecuador and Peru) cover about 3.5 million km2 (see Table 1)
of nationally protected areas7. As stated above, this expansion of
protected areas is a consequence of global policies aimed at preserving
and protecting biodiversity. Moreover, the role of protected areas in the
fight against climate change is another reason of this increase,
particularly in the Amazon region.

Table 1: Total protected area (terrestrial and marine)

in 2008 in the Western Amazon region
All nationally designated Terrestrial nationally Marine nationally designated
protected areas (terrestrial and designated protected areas protected areas
marine)
Country / Total Total area Total terri- Total Total area Total Total Total area Total
Territory number of protected torial area number protected terrestrial number protected (km2) marine
nationally (km2) of all (%) pro- of (km2) of area (%) of marine of marine pro- area (%)
designated nationally tected per terres- terrestrial protected protected tected areas pro-

7
Among which 3.3 million km2 are terrestrial and 200,000 km2 marine protected areas
(United Nations, World Database on Protected Areas, 2008, http://www.wdpa.org/).
Note that this figure includes all the Brazilian protected areas which are, for a large
part, outside of the western Amazon region.
 Conflicting rights and interests in indigenous territories

protected designated coun- trial protected per coun- areas tected

areas protected try/territory pro- areas try/territory per
areas tected coun-
areas try/terri-
tory
Bolivia 53 232,988.3537 21.21 53 232,988.3537 21.21 0 0 0,00
Brazil 1448 2,536,290.414 28.92 1444 2,524,088.936 29.64 58 12,201.47799 4.78
Colombia 263 371,617.7242 30.32 263 298,441.1688 26.20 15 73,176.55537 84.19
Ecuador 105 205,516.4514 15.13 104 72,124.1214 25.44 3 133,392.33 12.41
Peru 61 179,262.4374 13.24 61 177,252.5374 13.79 2 2,009.9 2.92
Total 1930 3,525,675.381 108.807351 1,925 3,304,895.117 78 220,780.2634
Source: United Nations, World Database on Protected Areas, 2008,
http://www.wdpa.org/ consulted March, 15th, 2010.

In the field of natural protected areas, there is no global assessment

of the social impacts of conservation practices on local communities.
Nevertheless, several meetings of the Conference of the Parties (COP)
of the Convention on Biological Diversity (CBD) have discussed the
issue of equity in protected areas. A specific Programme of Work of the
CDB is dedicated to protected areas and stresses the main goals in terms
of equity and benefit sharing (UNEP-CBD, 2004). These goals include:
 Adjust policies to avoid and mitigate negative impacts, and where
appropriate compensate costs and equitably share benefits in
accordance with the national legislation.
 Recognize and promote a broad set of protected area governance
types related to their potential for achieving biodiversity
conservation goals in accordance with the Convention which may
include areas conserved by indigenous and local communities.
 Use social and economic benefits generated by protected areas for
poverty reduction, consistent with protected-area management
objectives.
Most of the works and reports dedicated to the impact of protected
areas on community livelihoods are case studies. But a growing number
of publications and press articles are pointing the social consequences of
natural conservation strategies:
Conservation, the argument goes, has led to the displacement of tens of
millions of people who formerly lived, hunted, fished, and farmed in areas
now protected for wildlife, watersheds, reefs, forests, or rare ecosystems.
The critiques compare the magnitude of human evictions and suffering to
that caused by civil wars, mega-development projects, and high modernist
state interventions (Schmidt-Soltau 2005; Brockington et al. 2006: 250;
West and Brockington 2006: 613). (Agrawal and Redford, 2007: 4).
It is necessary, nevertheless, to distinguish different strategies for
addressing local communities in protected areas management.
According to Deverre (2009), the ways in which public and private
managers of protected areas integrate/reject local populations can be
grouped into the following fours strategies: exclusion, marginalization,
selective integration, and participation.
The consequences of the first two strategies are generally dramatic
for indigenous communities because there is a complete transformation
of their rights to land and natural resources in the name of biodiversity
conservation. These strategies are, according to Deverre (2009),
primarily operating in South Asia, but also in some parts of North and
South America.
The others strategies (Selective integration and participation) are two
ways to better integrate natural and cultural identities in (natural and
cultural) biodiversity conservation/protection. The general movement
for “Community-Based Natural Resources Management” (CBNRM)
followed by international donors such as the World Bank is one of the
forms of integration of local communities in biodiversity
conservation/protection. But, such strategies, even if they take into
account indigenous rights more clearly, still have important
consequences for the livelihoods of local populations (Ballet, 2007) as
we will show in the following section.
2.2. Impacts of oil exploration and exploitation activities on
indigenous communities
Economic development and the increase of the production and
consumption of energy-related resources are two linked processes.
Among these resources, oil is probably the most strategic and the search
for new oil fields is becoming more intense since a discourse on the end
of petroleum (peak oil) is now a common political currency. As a
consequence, many regions are now experiencing major changes in their
relation with the world petroleum industry. Some countries, like Gabon
for instance, are trying to diversify their oil-dependent economy and find
ways of conversion to other sources of economic development. Others
parts of the world are experiencing an increase in oil and gas exploration
and development activities. This is the case of western Amazon
countries (Bolivia, Colombia, Ecuador, Peru and Brazil).
The western Amazon region counts 180 oil and gas blocks (see
Figure 1), operated by at least 35 multinational companies and covering
688,000 km2 of forest. These blocks sometimes overlap protected areas,
home of the richest part of the Amazon for endemic species. But they
also overlap indigenous territories, causing, therefore, threats to
indigenous communities (Finer et al., 2008). Even if this problem is not
new in this region (see for instance Kimerling, 1991), the extent and
intensity of the impacts are unprecedented.
 Conflicting rights and interests in indigenous territories

Figure 1: Oil and gas blocks in the western Amazon

Source: Finer et al., 2008 : 2

Peru has also witnessed an impressive increase of the total surface of

oil and gas concessions over the past few years. This increase is
particularly alarming for indigenous people and territories8 and
contestation of such concessions even led to deadly confrontations
between police and indigenous protesters, in June 2009. According to
Finer and Orta-Martinez (2010: 8-9), this increment in the number and
total area of hydrocarbon concessions9 can explain the frustration of
indigenous people who have been in struggle to get a legal recognition
of ancestral territories:
Concession creation and subsequent project development without the
previous consent of local peoples and potential health-related impacts (…)
are two of the most volatile hydrocarbon-related social issues. Subsequent
acculturation of indigenous peoples and their integration into the market

8
Over half of all legally titled indigenous territories in the Peruvian Amazon are
covered by hydrocarbon concessions (Finer, Orta-Martinez, 2010).
9
42% of the territorial reserves, and over 60% of the proposed territorial reserves,
were covered by hydrocarbon concessions in 2009 (Finer, Orta-Martinez, 2010).
 economy (…) can lead to another major threat to biodiversity conservation
(…)” (Finer, Orta-Martinez, 2010: 8-9).
The direct impacts of hydrocarbon exploration and exploitation
activities include deforestation and contamination from oil spills and
wastewater discharges. New roads built to facilitate the access to
concessions also have indirect effects such as an increase in logging and
hunting, caused by the colonization process along the oil access roads
(Finer et al., 2008).
Such impacts are well documented and oil and gas companies, are
now aware of the problems involved in mining activities, especially
impacts on local communities. As mentioned by Kimerling (2007: 449),
“It was not until 1990 that Ecuador formally recognized indigenous
land rights and began systematically granting land titles to indigenous
groups. By that time, oil development and internal colonization had
displaced native peoples from many areas, significantly reducing their
traditional territories”. That is why oil companies now try to stress the
economic and social benefits of the mining industry on indigenous
communities. For instance, the following statement by Shell is striking:
Oil and gas operations sometimes require temporary or permanent access to
areas of land or sea that were previously the basis of economic livelihood
for local people. This disruption can damage a community’s fabric or
lifestyle. In some cases, projects may require the permanent physical
relocation and resettlement of communities, which can affect social
cohesion. We recognise our responsibility to minimise these impacts and, if
relocation is required, to help communities to re-establish themselves and to
restore their livelihoods. (Shell website, consulted on May, 3, 2010).
Nevertheless, as will be shown in the next section, the huge increase
of exploration and oil extraction activities in the Western Amazon
region has important impacts on indigenous communities’ livelihoods.
The case study of a petroleum exploration process in the Cofan
indigenous territories (South of Colombia) helps to understand the key
issues at stake.

3. Oil exploration and exploitation in Cofan indigenous

territories, Colombia10
In this section, we address two questions: what are the impacts of oil
exploration and exploitation on indigenous territorial rights? How the

10
This case study includes some of the results of the study of sociocultural impacts
developed as part of the prior consultation process between the Cofan people and
Columbus Energy (between March and December, 2009). Marcela Ceballos Medina
participated in that study.
 Conflicting rights and interests in indigenous territories

territorial conflicts are solved and what type of socio system do the
solutions promote?
3.1. Context and normative framework
Petroleum income plays an important role in the Colombian
economy and this fact has direct effects on the nature of the socio-
environmental conflicts that result from exploration and exploitation
activities in indigenous territories. Basically, it implies an association
between the State and private entrepreneurs who become allies in order
to pursue a shared interest in increasing oil production and the
associated revenues from the hydrocarbons sector (Fontaine, 2007).
Between the years 2004 and 2009, Colombia registered an increase in
petroleum activity as well as in its share in State revenues: almost half of
the national territory has been assigned – or is in preparation to be
offered – to different companies for hydrocarbon exploration and
exploitation11. In the Putumayo province alone, where our case study is
located, more than thirty petroleum blocks have been identified (See
Figure 2).

11
There are 592 identified petroleum blocks which cover 100,372,354 hectares (48.5%
of the Colombian national territory). There was an 87% increase in the areas with oil
exploration activities between the years 2003 and 2006; in the year 2009 a 200%
increase in technical evaluation areas. In 2010 the State will offer 60 million
additional hectares. Between the year 2000 and the 2009 there has been a 9,8%
average annual increase in State revenues from regalias or exploitation royalties. The
petroleum proven reserves in the year 2000 were 1,972 million barrels and in 2009
this amount reached the 2,500 millions of barrels.
 Figure 2. Evolution of the petroleum land blocks in Colombia 2003-2009

Putumayo

Source: National Hydrocarbons Agency

30
 Colombian legislation establishes that the subsoil is the property of
the Nation. Since 2004, the firms willing to exploit hydrocarbons have
to contract with the National Hydrocarbons Agency (NHA) (Decree
1760 of 2003)1. In Colombia, the Prior Consultation process officially
begins once the contracts between the NHA and the firms have been
signed (the contracts allow exploration activities). This practice
undermines the prior consultation principles.
On the other hand, we find that environmental legislation in
Colombia is guided by the Political Constitution:
1) The recognition of the universal right to a healthy natural
environment and the right of participation (Article 79),
2) The environment as a “common patrimony” that establishes the
need for protection and conservation actions (Article 63),
3) Sustainable development as a strategy to generate economic
growth, improve the quality of life and social well being, without
exhausting nonrenewable natural resources and the environment (Article
80).
The Colombian State is one of the Parties to the International
Convention on Biological Diversity and has a National System of
Protected Areas (SINAP) covering 10% of the national territory. This
system is managed by the Ministry of Environment, Housing and
Territorial Development2.
The 1991 National Constitution made important headway in
recognizing indigenous people’s right to territory as well as their rights
to political representation and participation. First, they included the
election of congressmen for special indigenous circumscriptions
(articles 171 and 176). Second, it made clear the national government’s
mandate for the titling of territories (resguardos) in this legal context-
historically occupied by indigenous peoples. The National Constitution
recognized these lands as collective property and their attributes as
inalienable, imprescriptible and not subject to embargo as part of the
principle of ethnic and cultural diversity3. Third, it recognized the
1
Until the year 2003, Ecopetrol was in charge of these functions (Ecopetrol currently
carries out exploration, exploitation, production, transportation and refinement of
these resources).
2
The Colombian State has signed a concession contract with Aviatur (a firm
specialized in touristic activities) for the administration of national parks. This
decision reflects the application of “market” logic based on the attraction of foreign
investment and the notion that tourism businesses will improve the profitability of
protected areas.
3
Nonetheless, resguardos with no legal titles are exposed to different methods of
intervention.

31
resguardos as political and administrative entities (cabildos) at the local
level with elections to establish their own governments (article 286).
Fourth, Law 21 of 1991 ratified the Indigenous and Tribal Peoples
Convention and Law 99 of 1993 defined the Ministry of Environment’s
competence in prior consultation processes. Thus, this institution has
been responsible for delivering environmental permits to investors as a
prerequisite to develop economic projects in protected areas4.
The courts in Colombia have had an important role in protecting
indigenous peoples’ rights by controlling national government policies
and practices. The “Auto 004 of 2009” of the Constitutional Court is
one of the most relevant decisions in order to “Protect the fundamental
rights of indigenous individuals and peoples forcibly displaced or in risk
of being displaced because of internal armed conflict” (Constitutional
Court, Auto 004 of 2009). The Court declared the State’s responsibility
in the prevention of indigenous peoples’ forced displacement and
identified exploration and exploitation of hydrocarbons in indigenous
territories, among others, as causes of this phenomenon5). Finally, the
Court declared that the territory historically occupied by ethnic groups is
a fundamental – vital – need, a sine qua non condition for its existence
and survival (Constitutional Court, Sentence T-188).
3.2. The prior consultation process and socio environmental
conflicts
Collective actors and their claims
We have identified four different types of collective actors involved
in the prior consultation process and two types of claims in the
indigenous communities: one defending the collective property,

4
When conflicts between the U´wa people and the Occidental Petroleum Company
started in the Arauca Province, the Colombian government thorough the Ministry of
Energy and Mining approved Decree 1320 (in the year 1998). This decree limited the
previous consultation to an analysis of the possible damage or impacts caused by the
exploration and exploitation of natural resources in indigenous territories. With this
decree the petroleum activities were legitimate until the indigenous people could
prove the contrary, ex post (Fontaine, 2007).
5
The United Nations system has played an important role. The report of the UN
special rapporteur for the indigenous rights and freedoms, registered several
situations that threaten the physical and cultural survival of indigenous peoples in
Colombia (UN, A/HRC/15/34/January 8, 2010). Some of them are: the absence of
mechanisms for protecting the indigenous lands and natural resources, the absence of
previous consultation in developing macroeconomic projects, the militarization of
indigenous territories including the resguardos, armed confrontation in these
territories and the murder of indigenous leaders.

32
 The Governance of Transboundary Aquifers

autonomy and self government throughout the legal figure of

resguardos. The other one promoting the figure of natural reservations
as protected areas which are part of the national conservation legal
framework. This calls for the recognition of indigenous participation in
the global governance of natural resources.
The first group of collective actors includes the Cofan indigenous
associations which have been legally constituted. The Cofan are a
binational indigenous people whose territory includes part of Ecuador
and a population of approximately one thousand. Its population is
distributed among nine settlements (with cabildos and/ or resguardos).
Most of them are part of the “Permanent Working Group for the Cofan
people and Indigenous Cabildos of Valle del Guamuéz and San
Miguel.” This organization was created in the 1990’s and includes
indigenous cabildos of different peoples who have settled in the Cofan
ancestral territory (Awá, Quichua, Embera, Nasa). Its purpose is the
defense of rights related to the reaffirmation of indigenous cultural
identity, the strengthening of the social networks between different
indigenous peoples, the organization and unity of indigenous peoples,
and the right of participation and autonomy. In a context characterized
by internal armed conflict, the Association of Traditional Authorities
calls for the respect of human rights and of International Humanitarian
Law. The titling of indigenous territories is a primary goal in the defense
of their collective rights.
The Association of Traditional Medical Authorities of the Cofan
People (ASMIC) was created during the prior consultation process and
its goals are the protection and strengthening of traditional knowledge6.
Its claims have to do also with the reaffirmation of ethnic and cultural
identity, but specifically as Cofan indigenous people as distinct from
from other ethnic groups settled in the same territory, and contrary to the
alliance between Cofan and the other indigenous peoples proposed by
the “Permanent Working Group for the Cofan people and Indigenous
Cabildos of Valle del Guamuéz and San Miguel”.
These two associations are in a political struggle for monopolizing a
direct dialogue with the State and oil companies. Whereas the pursuit of
resources from international cooperation and from oil companies has
generated a second type of conflict.
Nonetheless, their discourse appeals to the same group of actors:
civil society organizations and the United Nations system, claiming the
6
Traditional knowledge relates to the medical uses and properties of Amazonian
plants and to the spiritual attributes and powers of the yagé, considered as a sacred
plant (used in ritual ceremonies for visionary experiences as a way to access sacred
knowledge).

33
recognition of life and ethnic integrity as universal values, and referring
to ecosystems and traditional knowledge as sacred resources
(patrimony). In addition, they argue for the indigenous peoples’ function
of preserving the environment as a way to ensure sustainable
development for future generations.
ASMIC has established alliances with environmental NGO’s such as
ACT (Amazon Conservation Team) and WWF. These are a part of the
second type of collective actors, who focus their local actions in relation
to a global strategy based on sustainable development. The framework
of reference includes International Conventions for the protection of the
environment and the Millennium Development Goals. They support
national governments in identifying areas subject to special protection
and have established alliances with the Ministry of Environment,
Housing and Territorial Development, through the National Unity of
Natural Parks.
The Fauna and Flora Sanctuary “Ingi Ande” in Putumayo was
created with the support of these organizations. Their objectives are in
tension with the legal titling of indigenous resguardos, basically
because the national government is in charge of the administration of
natural resources in protected areas, while the cabildos and indigenous
authorities (legally constituted) are in charge of the administration of
natural resources in resguardos –with the important exception of the
subsoil.
The third type of collective actor includes human rights NGO’s
allied with State institutions such as the Attorney General’s Office and
the Constitutional Court as well as United Nations Agencies such as
UNHCR. They demand the protection of human rights focused on civil
and political rights in a context of internal armed conflict and political
persecution. The NGO Minga Association followed the prior
consultation process and has supported the Association of Traditional
Authorities. There are tensions between this group of actors and the
second one, because some juridical actions of MINGA Association are
against the national government (related with human rights violations).
They have played a crucial role in the Association of Traditional
Authorities’ collective action against the militarization of indigenous
territories by the State and the economic intervention of the private
sector.
The fourth group includes the national government, which holds
property rights over the subsoil and which has a primary decision-
making role for the national economy. The Ministry of the Interior is an
institution in charge of certifying indigenous presence in territories
where the exploration or exploitation of natural resources is planned.
The Ministry of the Environment manages the approval of

34
 The Governance of Transboundary Aquifers

environmental permits. The national government claims its sovereignty

right in alliance with the oil companies that seek broader economic rents
and call for free enterprise. Thus, the State plays a double role, as a
public institution and as an economic actor that gathers economic
resources from petroleum activities. There are currently seven
companies or consortiums in the Putumayo Province with contracts
assigned by the NHA. Three of them have participated in the prior
consultation process with the indigenous peoples in south Putumayo:
Andean Petroleum Operations, the Columbus Energy Consortium and
Gran Tierra.
The common purpose of this Alliance has been to legitimize oil
interests as representing the general interest, while characterizing
indigenous claims as those of ‘minorities’ or as defending ‘particular
interests’. The State Council’s decision concerning the conflicts
between the Occidental Petroleum Company and the U´wa indigenous
people, clearly establishes this position7.
The analysis model
There are different factors that determine the actors’ alliances and
strategies to defend their interests. First, the importance of petroleum
activities in the local economy (its magnitude)8. Second, the internal
armed conflict dynamics in Putumayo and the illegal lucrative activities
of guerrillas (Colombian Revolutionary Armed Forces, FARC) and
paramilitary groups (self-defense armies that rearmed after the 2006
demobilization process). Third, the increased militarization of
indigenous territories and the human rights violations, that affect
indigenous communities.
We suggest that the nature of the socio environmental conflicts, and
the way in which they are solved, affect two structural political
dimensions. This includes, first, democratic governance, defined as the
State’s capacity to institutionally solve these conflicts and its function in
protecting the national population’s rights9, and second, the notion of a
multicultural nation (as it is established in the National Constitution),

7
“The non-existence of a consensus between the government and the affected
communities, or their rejection for participation in the prior consultation process,
does not affect the petroleum project’s legality, but it is necessary that its
environmental analysis takes into account – when reasonable – the observations
and objections of the affected communities” (State Council, Rad. 1708 February 2,
2006).
8
35% of the province incomes in the year 2006 came from the regalías and in the year
2008, this figure increased to 47.8%.
9
Even though the capture of public revenues is in the middle of the struggle.

35
which is subject to economic pressures over the interests of special
groups as indigenous.
The Prior Consultation Process
Phase 1: Reentry consultation
In 2005, the Ministry of the Environment authorized the re-
assignment of the “Temblón 1X” oil well to the Andean Petroleum
Operations S.A company (OPA). This oil well is located in the San
Miguel municipality, inside the Yarinal and Afilador Indigenous
Reservations of the Cofan people. After a contract signed with the
NHA, OPA began exploration activities in the indigenous territory
without any consultation process.
The “Permanent Working Group for the Cofan people and
Indigenous Cabildos of Valle del Guamuéz and San Miguel” wanted to
formalize dialogues with the company, but OPA denied the existence of
indigenous communities in this area. The Association of Traditional
Authorities then tried to talk with the Ministry of Interior and Justice
which argued that OPA was not extracting oil but water (!) and that its
activities were part of a “reentry process”10 Nevertheless, the Ministry
recognized the need for a prior consultation process.
The “Permanent Working Group for the Cofan people and
Indigenous Cabildos of Valle del Guamuéz and San Miguel” asked for a
meeting in order to clarify what was going on and how the prior
consultation process would be developed. The meeting took place in
Putumayo (Valle del Guamuéz municipality) with the participation of
the Ministry of Environment, The NHA, OPA S.A, The National
Ombudsman’s Office, The General Attorney’s Office, indigenous
governors and traditional authorities, MINGA Association and The
Colombian Commission of Jurists (NGOs). The position of the Cofan
Association was to stop all the exploration activities until the rules of
the prior consultation were clear. The Ministry of Environment asked
OPA to begin a consultation process on the 26 of July, 2006. OPA
successfully worked to reverse this decision and the Ministry of
Environment started a consensus building process – not a prior
consultation – with the indigenous communities settled in the San
Marcelino resguardo, Afilador and Yarinal reservation.
The final agreements were:

10
The first oil exploitation project in the Cofan territory began in the 1960’s in the
Orito municipality. In 1966 the Texas Petroleum Company began exploration of the
“Temblón 1” oil well, which was later closed. In the year 1982 Ecopetrol began the
drilling of “Temblón 1X” but also abandoned it.

36
 The Governance of Transboundary Aquifers

1) Economic compensation to the Cofan people because OPA had

not developed a prior consultation,
2) Once the compensation is paid, the prior consultation could begin
(one process for each oil well),
3) The activities that will be developed in indigenous territories will
be limited to the study of the productivity of potential oil wells,
4) The option of judicial review if any of these agreements are
violated.
During this phase, State decisions “complied with” the company
interests and the prior consultation began when indigenous communities
requested it. The National Ombudsman’s Office and the General
Attorney’s Office were only observers.
Phase 2: The consultation
In 2007, when the agreements were fulfilled, the prior consultation
process for the perforation of a new oil well (COATI 1) began. The
“Permanent Working Group for the Cofan people and Indigenous
Cabildos of Valle del Guamuéz and San Miguel”, the Ministry of
Interior and Justice, the NHA and OPA S.A participated in the
installation meeting. The National Ombudsman’s Office and the
General Attorney’s Office were not represented. Since this moment,
government and the State institutions were absent and left the process in
the company’s hands.
The indigenous communities, through the “Permanent Working
Group for the Cofan people and Indigenous Cabildos of Valle del
Guamuéz and San Miguel”, presented a methodology which was
approved and this Association was recognized as representing the 5
indigenous peoples involved in the prior consultation process. OPA S.A
made a contract with a consultant company (ISAC) in order to develop
the Study of Environmental impacts of the exploration phase. The study
was completed and presented in 2008 to the indigenous communities. In
2009, OPA transferred its exploration rights in the COATI block to the
Columbus Energy consortium (nonetheless the employees remained the
same).
A first conflict between OPA and the indigenous peoples resulted
from the difference in the criteria considered by each one, to identify the
impacts of oil exploration activities. The conclusions of the
Environmental Impact Assessment were that there were no significant
effects and that the activities would not affect the water sources, the soil
or the atmosphere. They argued that the area of interest was too small to
generate significant impacts. The logic of reducing the territory into
pieces (the area of interest or direct influence area and the COATI
block, See Fig. 3) meant that the study did not take into account future

37
damage in other areas located outside the area of interest but socio-
ecologically connected with it.
Figure 3. COATI Block, area of interest, indigenous resguardos and
reservations

Source: ISAC LTD (2008), Environmental impacts Study, Area of interest, exploration
phase, COATI 1.

For the indigenous peoples it is impossible to divide their territory

because it is a sacred unity, understood as a social-ecological system (or
network) based on a set of interactions between nature as a universe and
the indigenous communities as a collective organization. In this
meaning, any intervention in a portion of land could affect the whole
unity and its system of relationships.
At this point, the dialogue between the consultant (ISAC) and the
“Permanent Working Group for the Cofan people and Indigenous
Cabildos of Valle del Guamuéz and San Miguel” was stalled because
the scientific language used by the ISAC team ignored the indigenous
communities’ logic. On the other side, the indigenous people could not
manage the technical tools to demonstrate possible environmental
damages and measure them. Then, the Association of Traditional
Authorities asked for a socio-cultural impacts study, as part of the prior
consultation process. From this moment, the indigenous communities’
strategy consisted in calling for the protection of their ethnic and

38
 The Governance of Transboundary Aquifers

cultural integrity and the prevention of indigenous people’s extinction as

a mechanism to gain other collective actors´ support. This determined
their alliances with human rights NGO´s as a way of exerting pressure
on the oil company.
Phase 3: Measuring socio-cultural impacts
The study of socio-cultural impacts was conceived –by the
consortium as well as by the indigenous communities– as part of the
prior consultation process, introducing an additional group of factors to
consider during the discussions. The study showed the possible effects
of oil exploration and extraction on the Cofan cultural rights and the
negative impacts on the territorial rights (mainly self government).
Nonetheless, once the Cofan community decided to participate in the
Prior Consultation Process, it was implicit –for the government and for
the oil company at least- that they would allow exploration activities in
their territories if management and compensation measures were
adopted. The study of socio-cultural impacts empowered the Cofan to
claim for cultural rights as a way to stop or delay the exploration
projects and as an opportunity to call for the respect of the resguardos.
The Columbus Energy Consortium asked the Association of
Traditional Authorities to carry out the Study of Sociocultural impacts
of the exploratory phase activities. This decision had several
consequences and new conflicts emerged. The expectation of a contract
with –supposedly- the transfer of a considerable amount of money to the
“Permanent Working Group for the Cofan people and Indigenous
Cabildos of Valle del Guamuéz and San Miguel” created distrust inside
the indigenous communities (governors of the cabildos and leaders of
the Association). The participation of some individuals in this study was
characterized by the tacit demand of a “payment” or economic
recognition. Moreover, the different levels of organization and ethnic
consciousness between the different indigenous peoples resulted in
confrontations between some leaders and other groups with a high level
of acculturation.
The precarious living conditions and the anonymous extortion
towards some leaders of the Association of traditional Authorities,
imposed new difficulties. Another previous consultation processes to
develop different infrastructure projects and oil exploration activities –at
least eleven- increased the pressure.
In this context, the environmental NGOs WWF and Amazon
Conservation Team supported the constitution of a new indigenous
association: ASMIC. This association started a competition with the
“Permanent Working Group for the Cofan people and Indigenous
Cabildos of Valle del Guamuéz and San Miguel” in order to establish a

39
direct relationship with Columbus Energy and a separate prior
consultation process. ASMIC promoted the constitution of the Flora and
Fauna Sanctuary “Ingi Ande” – an environmental protected area. The
Association of Traditional Authorities publicly opposed this project,
making explicit the differences between both claims and the territorial
dimension of this conflict:
We reject the constitution of the Flora and Fauna Sanctuary Ingi Ande in
Orito municipality, and the superposition with our indigenous resguardos
and reservations (…) we declare that our territories must be managed and
governed according to our usages and traditions, as part of a strategy whose
purpose is the legal recognition, constitution and expansion of our
resguardos (…)
In the background there was the dispute for the legitimacy of these
associations in representation of the “real voice” of the indigenous
peoples and communities.
This situation sharpened the divisions inside the Cofan people
because of the confrontation of two kinds of claims. The first one seeks
the constitution and expansion of the resguardos, as part of a call for the
recognition of autonomy and self-government. The second claim the
preservation of strategic areas based on the global importance of
medicinal plants.
These two types of claims have different implications in terms of
governance: the first one allows the indigenous peoples -through the
legal figures of the resguardo and cabildo, as political and
administrative entities- to exercise the functions of local government.
The second one leaves the administration and management of the whole
territory and its natural resources in the hands of the national
government (Ministry of Environment), under the legal figure of natural
protected areas. In such areas, the national government can authorize the
exploration and exploitation of subsoil resources.
Some members of ASMIC started to fail attend the meetings and
activities related with the study of socio-cultural impacts, and developed
parallel meetings. The need for experts and external consultants in
developing the study increased the tensions and divisions inside the
indigenous communities. In the middle of the process, the Constitutional
Court ordered the national government to negotiate a Safeguard Plan
with the Cofan people (Auto Number 004 of 2009). This legal
framework opened a window of opportunity for the Cofan claims,
attaching them to a more powerful and obligatory jurisprudence, by
involving a new actor: the Constitutional Court.
This position was clearly established in the study of socio-cultural
impacts (2009: 12):

40
 The Governance of Transboundary Aquifers

The oil exploration and exploitation should not be in contradiction with the
Constitutional Court (Auto 004 of 2009) which establishes the urgent need
for protection of the physical, ethnic and cultural integrity of indigenous
peoples. The prior consultation must be articulated to these dispositions.
The prevention, mitigation, correction and compensation measures should
contribute to the objectives of the Auto 004 in order to guarantee the
existence and survival of indigenous peoples. In consequence, they must be
incorporated to the safeguard plan.
The Safeguard negotiation process became an additional scenario of
struggle between ASMIC and the Association of Traditional
Authorities.
3.3. The conception of territory and ethnic integrity
The meaning of territory for the indigenous peoples is associated
with the source of life. According to indigenous people, it is impossible
to understand their physical existence separate from their relation with
nature. In this context, the oil block and the area of direct influence are
meaningless categories. Columbus Energy and the national government
understand the oil block as a delimitation of the subsoil in which the
State has the sovereign right of exploitation, according to the country’s
petroleum legislation. These differences determined different
conceptions of the prior consultation process. Indigenous peoples
understand prior consultation as a decision-making process. The oil
companies and the national government understand prior consultation as
a consultation mechanism which cannot become an obstacle to the oil
activities (the contracts with the NHA are already signed).
Conflicts derived from those different conceptions of territory allow
us to say that absolute ownership over the land does not exist. The
normative frameworks´ contradictions produce an intersection of
interests and rights in a single space, which are solved in the course of
political negotiation processes.
The COATI Block is located in the legally constituted indigenous
reservations in the Valle del Guamuez and San Miguel municipalities.
The area of direct influence is located in the indigenous reservations
Santa Rosa del Guamuez, Yarinal and Afilador Campoalegre (a total
area of 25,000 hectares, part of which has been invaded by campesinos)
Only a small part of the reservations are legally constituted as
resguardos (5,000 hectares). The area of interest covers approximately
40% of the Yarinal – San Marcelino resguardo and 100% of the area
occupied by la Raya indigenous community in the reservation Afilador
Campo Alegre. Two other resguardos are located outside of the area of
interest but the communities’ access roads cross the exploration area.

41
 Figure 4. Socio cultural measurement of the exploratory phase, oil well
COATI 1

Source: Study of Socio cultural impacts, Putumayo, 2009

Criterion used by the five indigenous peoples which belong to the

Association of Traditional Authorities to measure the socio-cultural
impacts took into account the normative framework of the United
Nations, The ILO and the Constitutional Court, in defining ethnic and
cultural integrity. According to the study of sociocultural impacts11, it is
possible to identify five dimensions of this concept: cultural practices
(uses and traditions), spiritual dimensions, physical integrity, self-
government and social organization (system of social relations,
solidarity and exchange). Each activity of the oil exploration phase has a
set of impacts on each of the dimensions mentioned above. Each of the
impacts was scored (from 1 to 3). A score of 1 reflects a severe impact
on the spiritual dimension and on the physical integrity and an
immediate impact (1 to 4 years). A score of 2 reflects a mild level of
impact on the cultural practices, self-government and social organization
in a medium term (5 to 10 years, can be prevented). A score of 3 reflects
a moderate impact on any of the five dimensions in a long term (10
years or more). Figure 4 illustrates the territorial dimension of these

11
The methodology presented here is part of the study of sociocultural impacts
(unpublished manuscript).

42
 The Governance of Transboundary Aquifers

impacts (three levels shows different influence ratios of the exploration

activities).
The Study concludes that the activities with a severe impact are: the
perforation of 3.5 km under the ground, the building and improvement
of access roads to the oil well, the removal of vegetable cover, the
extraction of materials from the river margins used to build the roads,
the militarization of indigenous territories (national army divisions) as a
security measure for the company. These activities would affect sacred
places (yage plantations and ceremonial houses) that were
georeferenced, they would break the natural balance by disrupting the
ecosystems, the spiritual dimension (the noise and the perforation during
ceremonies), the contamination of water sources, soil and air.
Militarization would threaten life because armed occupation is
associated with human rights violations and International Humanitarian
Law infractions12. Restrictions imposed by the public force on the
human mobility and hunting and fishing threaten food security and self-
government in indigenous territories.
In addition, militarization would increase the possibilities of
confrontation between the army and guerrillas as well as formation of
illegal alliances with the army and paramilitary groups. Indigenous
peoples concluded that these effects have no management plan or
measures because their consequences are irreversible.
The first and second levels included activities such as infrastructure,
colonization derived from the building of roads in indigenous territories,
and labor contracts that impose changes in the cultural practices and
traditional ways of social organization as well as in traditional ways of
production. The mid- and long-term consequences of these impacts are
acculturation.
The main effect is the displacement of traditional authorities
(grandmothers, grandfathers and spiritual authorities). This would
produce the displacement of more families and means the beginning of
indigenous cultural extinction. The census realized by the Cofan
communities during the study revealed that a third of the Cofán people
had been displaced as a consequence of the internal armed conflict. The
Cofan community perceives a series of causes of environmental
pollution including the liquid residues, aerial fumigations with

12
The Cofan census implemented during the study in Cofan communities shows that
the 42% of human rights violations that affect indigenous people correspond to
homicides. The Army and the Police are responsible for the 32% of the human rights
violations; the guerrilla groups are responsible for the 20% and the paramilitaries for
the 23%.

43
glyphosate13 used by the national government in the forced eradication
of coca crops, oil spills and oil exploitation.
The management plan did not include monetary costs of the impacts
nor compensation measures (this will be a second part of the
consultation process). The management plan included 13 programs
focused on capacity building, protection of sacred places during
exploration and mechanisms to guarantee agreement with enforcement.
The programs became projects and the final negotiation will depend on
the company budget to fund the projects.
The outcomes
The study increased the level of consciousness about the impacts on
different generations. The stakeholders involved in this study decided to
continue with the consultation - negotiation process with the company,
accepting the exploration and eventually exploitation activities in their
territories under specific conditions (according to the management plan).
The Ministry of Interior and the NHA participated in the meeting
when the Association of Traditional Authorities presented the Study of
Socio-cultural impacts. There was an agreement between the two parts
on the dimension of the impacts and the management plan. This
consensus can be explained because the indigenous peoples did not
oppose the exploration activities.
One of the main strategies used by the indigenous peoples was the
requirement of a single channel of dialogue with the national
government to face the different previous consultation processes in their
territories. Then the State was obliged to assume the indigenous
peoples´ right of participation and the responsibility of protecting their
fundamental rights (against abuses committed by the armed forces, the
companies or public employees). This strategy aimed to diminish the
companies’ political power during the process.

Conclusions
In this paper, we have argued that the diverse alliances between
private, public and collective actors, as well as the role of the State in
solving the social-ecological conflicts derived from exploitation and

13
Non selective herbicide developed to eliminate undesirable herbs in great scale
agriculture. Glyphosate is the active component of the “Roundup” herbicide,
patented by the transnational company Monsanto. It has been subject of a strong
debate about the transgenic production and its health damages. The patent of this
product has expired in the year 2000; nonetheless, glyphosate is used in many
countries with different commercial names.

44
 The Governance of Transboundary Aquifers

conservation of natural resources in indigenous territories, define the

consolidation of a particular socio system in their way of life.
Indigenous communities should decide between the territorial order
promoted by the mining exploitation projects in one hand and the other
one promoted by the conservation of natural resources. Both of them
affect their principles of self government and community relationships
with the environment, allowing the oil companies and international
institutions the right to establish the rules that regulates the
administration of natural resources. On the other side, the indigenist
legislation and the constitutional human rights framework claim for the
protection and legal constitution of resguardos and indigenous
reservations. This figure promotes a territorial order in tension with
environmental conservation and protected areas
As shown in our case study, each of the four groups of actors had,
during the prior consultation process, a normative framework to
legitimate its interests and reach its goals. The environmental and
petroleum legislation are not in opposition, because they establish that
the administration of natural resources and the decisions about the use
of the territory is a primary function of the national government. These
frameworks claim a sovereign right for the State and determine a
particular territorial order. On the other side, the indigenist legislation
and the constitutional human rights framework (mainly the
jurisprudence related with the prevention and attention of forced
displacement) claim for indigenous peoples the right of autonomy based
on self government and participation as conditions to guarantee their
ethnic integrity. The respect of these rights is a struggle for the
protection and legal constitution of resguardos and indigenous
reservations. It promotes a territorial order in tension with
environmental conservation and protected areas.
The way these tensions and conflicts are solved depends on the
alliances between actors and their ability to integrate different normative
frameworks. The role of the Constitutional Court in the decisions in
preventing the indigenous forced displacement has been a crucial
strategy used by the indigenous communities. With the prior
consultation processes a transformation in the social and cultural
structure of indigenous communities started. The internal division
caused by the competition for economic resources as well as the
professionalization of indigenous associations (in order to generate
economic gains) could transform the indigenous peoples into small
companies. The result would be the loss of traditional ways of
production, cultural practices and ways of life that characterize them as
ethnic groups.

45
 If no changes take place to influence global economic structure and
ways of producing and consuming energy, indigenous peoples could
disappear as distinct cultural entities while an unstoppable economic,
military and cultural intervention continues. This calls for a multi-level
governance approach to the question of indigenous territories, and the
need to recognize and enforce, from the international to the local level,
the rights of indigenous communities with respect to their traditional
territories.

Acknowledgements
The authors would like to thank David Tecklin for his helpful
comments and suggestions on a previous version of this paper. Some of
the ideas discussed in this paper also have benefited from a fruitful
discussion with Stephen Cornell. Of course, the usual disclaimer
applies.

REFERENCES
Agrawal, A., Redford, K.H., “Conservation and Displacement: An Overview”,
in: Redford, K.H., Fearn, E. (Eds), Protected Areas and Human
Displacement. A Conservation Perspective, Wildlife Conservation Society,
Working Papers, 2007, 29: 4-15, http://www2.fiu.edu/~brayd/wcswp29.pdf
Ballet, J., « La gestion en commun des ressources naturelles : une perspective
critique », Développement durable et territoires, Varia, mis en ligne le 29
août 2007, Consulté le 11 juin 2010. URL:
http://developpementdurable.revues.org/index3961.html
Bremner, J., Lu, F., “Common Property among Indigenous Peoples of the
Ecuadorian Amazon”, Conservation and Society, 2006, 4 (4): 499-521.
Brockington, D., Igoe, J., “Eviction for Conservation. A Global Overview”
Conservation and Society, 2006, 4(3): 424-70.
Bromley, D.W., Environment and Economy: Property Rights and Public Policy,
Blackwell, 1991.
Corte Constitucional de Colombia, Sala segunda de revisión, Auto 004 de 2009,
Protección de los derechos fundamentales de las personas y los pueblos
indígenas desplazados por el conflicto armado o en riesgo de
desplazamiento forzado, 2009.
Deverre, C., “Le gouvernement de la nature-patrimoine. Science, Pouvoir et
Populations locales”, Séminaire patrimonialisation et appropriation, INRA,
Corte, 3-4 décembre, 2009.
Di Gregorio, M. et al., “Property Rights, Collective Action and Poverty: The
Role of Institutions for Poverty Reduction”, Tenth Biennial Conference of
the International Association for the Study of Common Property (IASCP),
Oaxaca Mexico, 9-13 August, 2004.

46
 The Governance of Transboundary Aquifers

Filoche, G., Ethnodéveloppement, développement durable et droit en Amazonie,

Bruxelles, Bruylant, 2007.
Finer, M., Jenkins, C. N., Pimm, S. L., Keane, B., Ross, C., “Oil and Gas
Projects in the Western Amazon: Threats to Wilderness, Biodiversity, and
Indigenous Peoples”, PLoS ONE, 2008, 3(8),
http://www.plosone.org/article/info:doi/10.1371/journal.pone.0002932
Finer, M., Orta-Martínez, M., “A second hydrocarbon boom threatens the
Peruvian Amazon: trends, projections, and policy implications”,
Environmental Research Letter, 2010, 5(1), http://iopscience.iop.org/1748-
9326/5/1/014012/fulltext
Fontaine, G., El precio del petróleo. Conflictos socio-ambientales y
gobernabilidad en la región amazónica, Quito: FLACSO Ecuador-Instituto
Francés de Estudios Andinos-Abya Yala, 2007.
Kimerling, J., “Disregarding Environmental Law: Petroleum Development in
Protected Natural Areas and Indigenous Homelands in the Ecuadorian
Amazon”, Hastings International and Comparative Law Review, 1991, 14 :
849-903.
Kimerling, J., “Transnational Operations, Bi-National Injustice: Chevrontexaco
and Indigenous Huaorani andKichwa in the Amazon Rainforest in Ecuador”,
American Indian Law Review, 2007, 31(2), Symposium: Lands, Liberties,
and Legacies: Indigenous Peoples and International Law (2006/2007): 445-
508.
Rodary, E., Milian, J., “Extension et diversification des aires protégées : rupture
ou continuité ?”, in : Aubertin C., Rodary E. (dir.), Aires protégées espaces
durables ?, Paris, IRD Editions : 33-53, 2008.
Roque, R., Castaño, S., Sánchez, E. , Minería en territorios indígenas de
Colombia, Perú, Venezuela petróleo, carbón, bauxita, oro y diamantes,
Bogotá, ONIC, 2003.
Shell, Managing the Social Impact of our Oil and Gas Operations, 2010,
http://www.shell.com/home/content/environment_society/society/our_neighb
ours/managing_the_social_impacts_of_our_oil_and_gas_operations/managi
ng_the_social_impact_of_our_oil_and_gas_operations_000407.html
Stavenhagen, R., “Derecho consuetudinario y Derecho Positivo: el caso del
Derecho Indígena”, presentado en el XVIII Curso Interdisciplinario en
Derechos Humanos, Costa Rica: Instituto Interamericano de Derechos
Humanos, 2000.
Study of Socio cultural impacts, COATI Block (exploration phase), Putumayo:
Asociación de Autoridades Tradicionales, Mesa de Trabajo Permanente por
el Pueblo Cofán- Columbus Energy, 2009.
UN Special Rapporteur, The situation of the Indigenous peoples in Colombia:
follow up of the recommendations made by the previous rapporteur,
A/HRC/15/34/January 8, 2010.

47
 UNEP-CBD, Decisions adopted by the Conference of the Parties to the
Convention on Biological Diversity at its seventh meeting, Kuala Lumpur,
Malaysia, February, 2004, http://www.cbd.int/convention/cops.shtml
West, P., Brockington, D., “An Anthropological Perspective on Some
Unexpected Consequences of Protected Areas”, 2006, Conservation Biology,
20 (3) : 609-616.
West, P., Igoe, J., Brockington, D., “Parks and Peoples: The Social Impact of
Protected Areas'. Annual Review of Anthropology, 2006, 35: 251-77

48

View publication stats