Community Protocols as Tools for Collective Action 189
well as normal use – for their artisanal salt extraction activities, but also for their
small-scale agriculture and livestock. Fresh water is a resource in short supply in
the area, which is one of the most arid on the planet. A central claim was thus for
information about how much water would be used in mining, and about risks
that saltwater could be introduced into fresh water sources.
From the beginning, then, the actions of the communities did not focus
necessarily against mining, but rather against the failure to consult and inform
them as rights-holders on their lands. The communities’ main demand centred
on their recognition as rights-holders. Although communities in the area hold
legal status as indigenous communities, and as such have the right to the land in
which they live, community land rights titles have not officially been granted and
hence, a struggle for recognition was undertaken.
The recognition of communities as such, and especially the right to be consulted as rights-holders over their land, formed the basis of their first legal action.
With the assistance of community lawyers based in the province, the communities filed complaints before Argentina’s Supreme Court of Justice in 2010
(Ferradás Abalo et al., 2016). The case was rejected in a sentence that argued that
there was no “case” due to the lack of factual evidence and enough proof provided by the communities on the existence of mining permits on their land that
would enable the development of an FPIC process. The government of Jujuy had
denied in the audience called by the Supreme Court on the 28th of March 2012
the existence of any permit granted by its mining authorities, and suggested that
any company intervention in the area was not officially authorized.
8
When the case was rejected, the communities filed another complaint, this
time before the Inter-American Commission on Human Rights. In late 2011,
the group also made presentations to the UN Economic Social and Cultural
Rights Committee and to the UN Special Rapporteur Anaya, who visited the
country at this time (Ibid).
After the rejection of the national case, and based on the fact that the government of Jujuy claimed there was no specific provincial or national regulation that
would specify how consultation should be implemented, and how it should be
done in the context of EIA process, which was true, the communities decided to
proactively devise a way forward that would call for a substantial dialogue in a
way that would support their legal claims.
This, combined with the experiences of other local communities in the area
and exchanges with other external organizations, underpinned the decision to
draft a community protocol. The communities were aware of similar processes
that had unfolded at other salt flats, including the relatively nearby Olaroz flat.
There, a small group of concerned community members had tried to express
their concerns via EIA processes, but were frustrated with how these had been
carried out – more as information meetings rather than opportunities for dialogue, but without the provision of accessible information before local meetings,
which were also accompanied with various promises tied to community consent
(for a full discussion, see Marchegiani et al., 2020).
well as normal use – for their artisanal salt extraction activities, but also for their
small-scale agriculture and livestock. Fresh water is a resource in short supply in
the area, which is one of the most arid on the planet. A central claim was thus for
information about how much water would be used in mining, and about risks
that saltwater could be introduced into fresh water sources.
From the beginning, then, the actions of the communities did not focus
necessarily against mining, but rather against the failure to consult and inform
them as rights-holders on their lands. The communities’ main demand centred
on their recognition as rights-holders. Although communities in the area hold
legal status as indigenous communities, and as such have the right to the land in
which they live, community land rights titles have not officially been granted and
hence, a struggle for recognition was undertaken.
The recognition of communities as such, and especially the right to be consulted as rights-holders over their land, formed the basis of their first legal action.
With the assistance of community lawyers based in the province, the communities filed complaints before Argentina’s Supreme Court of Justice in 2010
(Ferradás Abalo et al., 2016). The case was rejected in a sentence that argued that
there was no “case” due to the lack of factual evidence and enough proof provided by the communities on the existence of mining permits on their land that
would enable the development of an FPIC process. The government of Jujuy had
denied in the audience called by the Supreme Court on the 28th of March 2012
the existence of any permit granted by its mining authorities, and suggested that
any company intervention in the area was not officially authorized.
8
When the case was rejected, the communities filed another complaint, this
time before the Inter-American Commission on Human Rights. In late 2011,
the group also made presentations to the UN Economic Social and Cultural
Rights Committee and to the UN Special Rapporteur Anaya, who visited the
country at this time (Ibid).
After the rejection of the national case, and based on the fact that the government of Jujuy claimed there was no specific provincial or national regulation that
would specify how consultation should be implemented, and how it should be
done in the context of EIA process, which was true, the communities decided to
proactively devise a way forward that would call for a substantial dialogue in a
way that would support their legal claims.
This, combined with the experiences of other local communities in the area
and exchanges with other external organizations, underpinned the decision to
draft a community protocol. The communities were aware of similar processes
that had unfolded at other salt flats, including the relatively nearby Olaroz flat.
There, a small group of concerned community members had tried to express
their concerns via EIA processes, but were frustrated with how these had been
carried out – more as information meetings rather than opportunities for dialogue, but without the provision of accessible information before local meetings,
which were also accompanied with various promises tied to community consent
(for a full discussion, see Marchegiani et al., 2020).