Demonstrators gather in Washington, DC, on April 5, 2016, as part of a vigil in memory of human rights and land rights defender Berta Cáceres. In the late hours of the night of March 2, 2016, Cáceres was murdered by armed men who broke into her home in Honduras. The majority of indigenous human rights defenders in Honduras are still not able to operate in a safe and enabling environment—and the absence of their voices in the draft consultation law is telling. (Photo: Keith Lane / Oxfam America)

Latest consultation bill draft in Honduras strips indigenous communities of their right to free, prior, and informed consent on deals that affect their lands and livelihoods.

On May 23rd, the Honduran government presented the latest draft of its national consultation bill to the Honduran Congress.  The bill is supposed to codify Honduras’ international legal obligations to respect indigenous peoples’ rights to free, prior, and informed consent (“FPIC”).

But far from protecting those rights, the latest draft strips them of it amongst others, and will force them to either accept bad deals in rushed consultation processes or lose their rights to negotiate entirely.

It comes as no surprise that indigenous and afro-descendent peoples’ organizations in Honduras are deeply concerned about the latest move.   Along with the UN Special Rapporteur on Rights of Indigenous Peoples, they have long been calling for the Honduran government to stop and let indigenous people—not just representatives selected by government—to be consulted and help develop the content of the bill.  They want a law that respects their rights and does not leave them worse off in their negotiations with mining, oil, and gas companies and other land investors.

Negotiations over the development of this law started more than three years ago.   Multiple versions of the law were distributed; including versions developed by Consejo Cívico de Organizaciones Populares e Indígenas de Honduras (“COPINH”) and the Organización Fraternal Negra Hondureña (“OFRANEH”), although their input into the bill’s content was ignored.  Allegations of coercion and manipulation, as well as real questions about the legitimacy of indigenous representation, followed a series of community consultations that were facilitated in 2016.   As a result, many indigenous peoples do not recognize the meetings held by the government thus far as consultations.   Criminalization, stigmatization, and violence directed towards indigenous and afro-descendant leaders have further aggravated tensions, causing friction between indigenous organizations, and with the government, making negotiations difficult.  And tensions have worsened since the contested national elections last November.

Days before the latest version of the draft law was released, Michael Forst, the UN Special Rapporteur on the Situation of Human Rights Defenders, concluded his first visit to Honduras.  He found that the failure by the Honduran government to renew dialogue on the development of its national consultation law was “one of the root causes of ongoing human rights violations affecting indigenous peoples in Honduras.”

Forst found the vast majority of human rights defenders in Honduras are still not able to operate in a safe and enabling environment.  He heard testimonies from activists all across the country who continue to live in fear for their lives, are being criminalized and charged with trumped up charges for their activities, and suffer stigmatization, including by politicians and the media.  They have few, if any, mechanisms for working in safety or securing justice.

The absence of real indigenous input into the latest draft is telling.  It falls far short of international standards and the recommendations made by the UN Special Rapporteur almost two years ago.  If approved by the Honduran Congress in its current form, the law will leave indigenous and Garifuna peoples’ worse off.   How does it do this?

The bill strips indigenous and Garifuna peoples of their right to withhold consent.  It gives government the power to decide the fate of a project—even when communities oppose the project and even when communities choose not to participate in the state-led consultation processes as a result of their opposition.  The bill fast tracks the entire consultation and agreement-making process, requiring that it be completed between four and six months.  For complex, multigenerational projects like those in the oil, gas, and mining sector, this is a herculean task at best for any skilled negotiation team; and a near impossible one for communities who are under resourced, have limited access to information and independent advisors, and who may be learning for the first time about the social, environmental, and economic impacts of these projects.

Taken together, these and other provisions can only be read as a private sector wish-list, and will force indigenous and Garifuna communities to either accept bad deals in rushed consultation processes or lose their rights to negotiate entirely.

For an administration that is trying to rebuild the credibility, trust and legitimacy that was lost after the most recent presidential election and ease political tensions caused by unresolved allegations of corruption, continuing to ignore indigenous and Garifuna communities is simply untenable.  Unless they stop, consult, and renew dialogue any Congressional approval of this law will only increase existing political tensions, further undermine the legitimacy of Juan Orlando Hernandez’ administration (already questioned by many indigenous organizations), and say goodbye to what, if any, investor confidence remains.