Indigenous World 2020: Paraguay

Written on 11 May 2020. Posted in Paraguay

The population that self-identifies as belonging to one of the 19 Indigenous Peoples of Paraguay can be split into five different linguistic families: Guaraní (Aché, Avá Guaraní, Mbyá, Pai Tavytera, Guaraní Ñandeva and Western Guaraní), Maskoy (Toba Maskoy, Enlhet Norte, Enxet Sur, Sanapaná, Angaité and Guaná), Mataco Mataguayo (Nivaclé, Maká and Manjui), Zamuco (Ayoreo, Yvytoso and Tomáraho) and Guaicurú (Qom). According to the 2012 National Indigenous Population and Housing Census, the total Indigenous population numbers 112,848 people.

Chapter V of the 1992 Constitution recognises Indigenous Peoples as groups with cultures that precede the formation and organisation of the Paraguayan state, recognising their rights to ethnic identity, communal property, participation and an education that takes into account their specific cultures, etc.

Paraguay has a legal framework that guarantees and recognises a fairly wide range of rights to Indigenous Peoples, having ratified the main international human rights instruments, both in the universal and inter-American systems.

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

Indigenous Peoples and climate change

Indigenous Peoples are among those who have contributed the least to the problem of climate change and they are also the ones who are making the most ecosystemic contributions in the struggle to combat its effects; yet they are also the ones who are suffering its worst consequences. The environmental impacts of climate change now represent a serious threat to Indigenous Peoples’ rights. Increased rainfall and droughts are seriously affecting Indigenous food and nutrition levels. Deforestation on their territories, one of the greatest sources of global carbon emissions, is linked to extractive, agro-industrial and large infrastructure projects.

Heavy rainfall caused some of Paraguay’s main rivers and streams to burst their banks towards the end of 2018, flooding the surrounding areas. This situation deteriorated during the first quarter of 2019, continuing in some places until almost the middle of the year and affecting different departments of the country, including the capital itself. Given the country’s topographic and mountainous landscape, the impact was even worse in some regions, for example the Western region, both in terms of area affected and vulnerability of the people and services compromised.

Constitutionally empowered to pass  emergency  laws  in  cases  of public disaster or catastrophe, Congress passed laws declaring an emergency situation in the departments of Boquerón, Presidente Hayes and Alto Paraguay, in the first case for 90 days, the second for 120 and the last without any stated time limit.¹

In such extreme conditions, Indigenous Peoples are disproportionately affected by natural disasters or public emergencies. They are particularly vulnerable to these frequent and foreseeable events because of a constant and structural denial of their rights, and the state takes no measures to mitigate the damage or to help them become more resilient to such events, for example by constructing roads or providing additional resources. Against this backdrop, Congress passed Law No. 6319/19 declaring a situation of national emergency in the Indigenous communities of the 19 peoples living across the Republic’s territory. To give you just some idea, in Teniente Irala Fernández municipality (Presidente Hayes department) alone there were 12,000 victims, primarily in the Indigenous communities, who lost between 70 and 100% of their crops.

The bursting of the riverbanks also had a terrible effect on the health and lives of Indigenous people, who were exposed to a number of illnesses due to the damp and insalubrious conditions in the area.

Insufficient investment in road infrastructure for the Indigenous communities, added to the isolation caused by the flooding, resulted in a lack of access to assistance centres, health supplies and services, all of which a state is duty bound to provide within geographic reach of the most vulnerable sectors. And yet the state invests enormous sums from the public purse in constructing and maintaining roads linking the powerful economic sectors. Alongside this, the Indigenous Peoples, pushed to extremes and without any notable or substantive progress in their rights, with no all-weather roads offering access to their communities, are forced to consider different legal strategies such as lodging a right of way demand or expropriation laws.

In some cases, even if they manage to obtain transport, Indigenous communities find it impossible to reach the assistance centres. The fact that road concessions are privately run means there are “road committees”, mostly made up of representatives from the cattle companies. Their workers think only about preserving the embankments and so deny anxious Indigenous parents with seriously ill children permission to travel along roads closed due to rain, with the excuse that they have to monitor them.

In the middle of August 2019, a forest fire was recorded in the Paraguayan marshes, on the shared border with Brazil and Bolivia. This largely took hold in the Bahía Negra zone, affecting part of the Paraguayan Marshlands Reserve and part of the Río Negro National Park, and also extending to the area of the Chovoreca Natural Monument. Law No. 6373/19 declared an environmental emergency due to wildfires in the departments of Alto Paraguay and Boquerón in the Western region for a 60-day period. The law was approved on 22 August 2019 by the Chamber of Senators and on 4 September 2019 by the lower chamber. The government enacted it on the 9th of that month. The very next day, the NGO Guyrá Paraguay issued a press release bearing witness to the critical levels of active fires in other departments of the country such as Canindeyú, San Pedro, Amambay and Concepción, while ongoing uncontrollable fires in the Chaco were affecting the Chovoreca sector. A total of 4,592 wildfires were reported in the Eastern region during the week of 3 September, with the same pattern of forest burning being reported that was used in 2007 to prepare land for agriculture, even in some protected areas and forested areas where agriculture is prohibited.²

The National Forestry Institute (Infona) opened investigations into 15 instances of fire in Alto Paraguay department that were suspected of having been deliberately caused.³ According to some estimates, around 312,528 hectares were affected in the north-east Paraguayan Chaco alone,⁴ where 2,000 Indigenous people whose communities were directly affected by the fires recorded a large number of respiratory problems.⁵

Approval of the prior consultation protocol

One of the most celebrated and promoted actions of the government in 2019 was the approval of Decree No. 1039/18 on the “Protocol for a process of free, prior and informed consultation and consent of Indigenous Peoples in Paraguay”.

Discriminatory resolutions

The Paraguayan Indigenous Institute (Indi) has been issuing resolutions with a paternalistic and protectionist slant with regard to banning the sale and marketing of alcohol and drugs in the communities. They appear to be stuck in an historic paradigm that views Indigenous Peoples as the objects of protection rather than the subjects of rights.⁶ The punishment for breaking these rules disproportionately affects leaders of Indigenous groups or communities because they attend public demonstrations with Indigenous children or adolescents, and the argument is that it would be exposing them to danger.⁷ This is, however, in violation of Article 46 of the National Constitution and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

The lack of a comprehensive and universal social protection system for Indigenous Peoples can be seen in the incomplete, isolated, irregular, sectoral and regionalised actions of the Teko Porã, Elderly and Sustainable Rural Development programmes – along with the assistance of the Department for National Emergencies (SEN) – and these poor efforts are clearly indicative of the state’s outstanding debt in this regard.

Nearly all Indigenous protests bear witness to this – and to an important process of own representation that goes far beyond any external support – and the state’s lack of desire to provide comprehensive social protection can be seen across all ministries, albeit in some more clearly than others, for example the Ministry for Public Works and Communications and the Ministry of Public Health and Social Well-being, as illustrated by the totally preventable deaths of Indigenous children due to impassable roads and a lack of primary health care.

The Abdo government and the Allen administration – as well as the current administration of Édgar Olmedo – have all been party to a gradual process of reducing and fragmenting the state’s indigenist policies, particularly in terms of the issue of territorial recovery, moving it towards a privatised model, punitive and minimal in relation to Indigenous Peoples and communities. Any possibility of progressing, continuing or opening a process for land recovery is thus being closed off, only available in final or simply procedural cases,⁸ and this even relates to the rights of communities with titled lands who are being fiercely attacked and robbed by agribusiness using both legal and illegal means, for example, renting, invasion or eviction.

Territorial recovery

The Tekoha Sauce case

Despite living on their traditional territory, the Itaipú hydroelectric company considers that the Tekoha Sauce Avá Guaraní community have invaded the protected forest area of Limoy. The company therefore lodged a complaint with the courts in 2019 requesting a warrant for their eviction based on a report submitted in 2016 that states that this is a recovery and restoration area and consequently no kind of use is permitted.

However, at the same time as they are seeking to evict the Indigenous people through the courts, the Itaipú hydroelectric company has also been handing part of the reserved area over to agribusiness in the zone, where they have been operating a port for some 20 years without the necessary permits, according to the National Customs Office.⁹ In addition, since 2000, an Environmental Management Master Plan has been used to cede plots for multiple uses within the reserved area, with a total of 24 current concessions so far and another 26 in the pipeline.

Better late (and little) than never? Titling takes 30 years

Some of the state’s noteworthy actions with regard to the territorial recovery of Indigenous Peoples include the cases of the Tarumanymi communities of the Mbyá Guaraní people of Luque; the Wonta Santa Rosa community of the Manjui people; and the Río Apa community of the Guaná people.

The first of these cases was an historic event. In May, 50 families from the departments of Canindeyú, Caaguazú, Guairá and Concepción received the title to eight hectares of land in Luque, purchased more than a decade ago by the then Secretariat of Social Action.¹⁰ In the second case, in September, the community located in Mariscal Estigarribia district was the beneficiary of the title to some 12,228 hectares.¹¹ Finally, after more than three decades of negotiations, the Río Apa community of the Guaná people obtained the consolidation of their traditional lands, coincidentally on International Day of the World’s Indigenous Peoples.

The Guaraní community of Loma has had less luck despite having 10,079 hectares of state land recognised as a National Indigenous Colony since 1984. In more than 35 years of legal and administrative proceedings, they have been unable to obtain the title to their lands and, since 2010, have been suffering systematic threats and harassment from individuals who want to grab these lands.¹² Moreover, attacks on the Ysati community in Itakyry district were again reported this year, with houses and crops burned by unknown individuals,¹³ the community already having been forcibly evicted by armed civilians.¹⁴

Compliance with judgments passed and friendly settlements reached through the Inter-American system

During the first half of 2019, the Inter-American Court of Human Rights passed a resolution with regard to monitoring compliance with judgments passed in the cases of the Yakye Axa, Sawhoyamaxa and Xákmok Kásek communities, which it had visited in 2017. There has been some progress in complying with the judgments  passed and friendly settlements reached in these cases, for example, disbursement of the first instalment of three planned over three years for development projects with the stated communities. The establishment of committees to implement the community development funds has also been considered, included by the Paraguayan  state in the same resolution, within the framework of complying with and implementing the judgments of the Inter-American Court and friendly agreements concluded  through  the  Inter-American Commission in these cases. The commissioner from the Inter-American Commission, Joel Hernández, held working meetings in which cases progressing through this body were addressed in relation to complaints made by the Indigenous communities of the Ayoreo Totobiegosode people, Yaka Marangatu of the Mbyá people, and Kelyenmagategma of the Enxet people.¹⁵

Observations of the Human Rights Committee regarding Indigenous issues

In July 2019, the UN Human Rights Committee approved its Concluding Observations on the state’s fourth periodic report on compliance with the International Covenant on Civil and Political Rights.¹⁶ It emphasised the need to implement the rulings of the Inter-American Court with regard to the Sawhoyamaxa, Yakye Axa and Xákmok Kásek cases, as well as to guarantee protection of the resources and lands of the Ayoreo Totobiegosode, in addition to strengthening the Paraguayan Indigenous Institute. It also indicated the need to guarantee effective access to conflict resolution procedures and to speed up the return and registration of land and natural resources, as well as ensure access to education and health for all Indigenous Peoples and to enforce the national consultation mechanism that guarantees free, prior and informed consent.

Mario J. Barrios Cáceres is a lawyer and university lecturer. He is President of the Directorio de Tierraviva a los Pueblos Indígena del Chaco.

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

Notes and references

1. Official Available at http://www.gacetaoficial.gov.py/index/ getDocumento/59251.
2. Guyra Press release dated 10 September 2019. Available at: http:// guyra.org.py/alarmante-nivel-de-incendios-en-todo-el-pais/.
3. Última Hora, 18 September Available at: https://www.ultimahora.com/ infona-investiga-15-estancieros-incendios-forestales-el-chaco-n2844492. html.
4. Reporte de focos de calor sobre la República del Paraguay. 01 October 2019. Available at: http://infona.gov.py/application/files/9615/6994/4188/ monitoreo_focos_conjunto_20191001_lq9y21vh.pdf.
5. La Unión 800 AM, 18 September Available at: https://www.launion.com.py/ comunidades-indigenas-son-los-que-mas-sufren-incendios-en-chaco-122567. html.
6. Resolution P/N.º 447/19, 9 September
7. Resolution P/N.º 448/19, 9 September
8. For example, in the case of future claims, recently made or which may be made, responding automatically based on insufficient quantity or quality of land for a large number of indigenous
9. Última Hora, 26 September Available at: https://www.ultimahora. com/indigenas-son-invasores-itaipu-pero-sojeros-si-usan-area- protegida-n2845895.html.
10. Última Hora, 17 May Available at: https://www.ultimahora.com/indi- otorga-titulo-indigenas-la-ciudad-primera-vez-n2819837.html.
11. Indi’s Facebook Available at: https://www.facebook.com/ institutoparaguayo.delindigena/.
12. Gente, Ambiente y Boletín February 2019. Available at: http://gat.org. py/boletin/2019/Febrero/1853
13. La Nación, 4 March Available at: https://www.lanacion.com.py/ pais/2019/03/04/indigenas-denuncian-incendio-de-cultivos-y-viviendas/
14. Última Hora, 26 January Available at: https://www.ultimahora.com/ indigenas-fueron-desalojados-un-inmueble-itakyry-n2793958.html
15. Ministry of Foreign Affairs, 15 October Available at: https://www.mre. gov.py/index.php/noticias-de-embajadas-y-consulados/comisionado-de-la- cidh-se-reunio-con-el-canciller-y-continuaran-los-encuentros-con-distintos- organismos For more information, see the article referring to the International Human Rights Protection Systems, in this volume.
16. United Nations (2019). Human Rights Committee. Concluding observations on the fourth periodic report of Paraguay. CCPR/C/PRY/CO/4. Available at: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download. aspx?symbolno=CCPR%2fC%2fPRY%2fCO%2f4&Lang=en.

Tags: Land rights, Climate, Human rights