Consult the Indigineous Counterplan - Northwestern 2013 Sophomores

8/11/2019 Consult the Indigineous Counterplan - Northwestern 2013 Sophomores

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Consult Indigenous Peoples CP

Northwestern Sophomores


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Shells


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1nc Indigenous Energy CP

Text --- The United States federal government should enter into prior binding

consultation with the relevant indigenous peoples of [Cuba/Mexico/ Venezuela] over

The United States will advocate throughout the process of consultation

and implement the result.

---Prior consultation with Latin American indigenous peoples over energy

engagement is critical to avert cultural and physical annihilation.

Kinnison 2011Akilah Jenga, J.D. Candidate, University of Arizona James E. Rogers College of Law, Indigenous Consent: Rethinking U.S. ConsultationPolicies in Light of the U.N. Declaration on the Rights of Indigenous Peoples, 53 Ariz. L. Rev. 1301Due to the nature of large-scale extractive activities, there seems to be a shift in the international arena toward viewing states' duty to consult withindigenous peoples as falling on the consent end of the consultation-consent spectrum. Some argue that, where activities directly impactindigenous peoples' right to "use, enjoy, control, and develop their traditional lands," there is a norm developing that recognizes that full consent,rather than just meaningful consultation, is required. 206 For instance, former Special Rapporteur on the Situation of Human Rights and

Fundamental Freedoms of Indigenous People Rodolfo Stavenhagen has stated that "the free, informed and prior consent , aswell as the right to self-determination of indigenous communities and peoples, must be considered

as a necessary precondition " for "major development projects" affecting indigenous lands. 207 Such"major development projects" include "the large scale exploitation of natural resources including subsoil resources." 208 Stavenhagen has argued

that indigenous peoples have the "right to say no" to certain development projects. 209 [*1329] Furthermore, there arestrong arguments for why, even if such a norm has not yet crystallized, states should adopt this interpretation of FPIC for large-scale extractive

activities. First, the power to withhold consent can be seen as necessary to enforce other important

indigenous rightsbeyond rights of consultation and participation. 210 This is particularly true in the context of

extractive industries, whose projects implicate numerous other indigenous rights due to their ability

to threaten indigenous peoples' physical and cultural survival . 211 For instance, the ability to withhold consentallows indigenous communities to enforce their community property rights, protect their sacred spaces, and maintain their culture and relationship

with the land. Additionally, there are reservations about how "meaningful" indigenous participation can be

in the absence of the power to withhold consent. 212 As Professor Brant McGee comments: " Absent the ability

to walk away from the bargaining table, indigenous groups would simply be participating in a

meaningless exchange of views designed to fulfill a legal requirement." 213 Given the stakes and zero-sumpotential of large-scale extractive projects, "there is no such thing as partial consent in this context." 214 Therefore, indigenous peoples must beequipped with the ability to withhold consent in order to engage in meaningful negotiation. Special Rapporteur Anaya has stated: "The principlesof consultation and consent are aimed at avoiding the imposition of the will of one party over the other, and ... instead striving for mutual

understanding and consensual decision-making." 215 Yet without the power to withhold consent in zero-sum

situations where destructive impacts on indigenous lands and culture are high, indigenous people

are left with little bargaining power and therefore may be unable to participate in meaningful

consultation . Promoting an interpretation of FPIC that gives indigenous peoples the right to

withhold consent in the context of large-scale extractive projects is also good policy from the state

and corporate perspectives because it can make projects more successful . Professor Lisa J. Laplante and

attorney Suzanne A. Spears propose that extractive industries can diffuse costly opposition to projects by

engaging in community "consent processes." 216 Conflicts with communities can [*1330] createobstacles for a particular project as well as for the corporation itself. 217 Global campaigns against

particular companies have been waged- as exemplified by "ProtestBarrick.net," which is a campaign entirely devoted topublicizing opposition to Barrick Gold Corporation. 218 Such campaigns can damage a company's reputation, which Laplante and Spears refer to

as "an extractive industry company's lifeblood." 219 Additionally, opposition can be costly due to the public relations

campaigns corporations must launch in response to community opposition, 220 legal costs to fend


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off efforts to shut down projects, and losses in profitability. For example, after the Ninth Circuit Court of Appealsissued a limited injunction against Barrick in the Cortez Hills case, the company's stock dropped 8.43%, despite the fact that the project did notultimately shut down. 221 Thus, when states believe a development project is in the public interest, they should seek to engage the community inconsent processes, rather than consultation processes, both to protect the rights of indigenous peoples and also to promote the long-term benefit ofthe project itself. As Laplante and Spears explained: Whereas consultation processes require only that extractive industry companies [or the state]hear the views of those potentially affected by a project and then take them into account when engaging in decision-making processes, consent

processes require that host communities actually participate in decision-making processes. Consent processes give affected communities the

leverage to negotiate mutually acceptable agreements under which projects may proceed ... . 222 Interpreting FPIC as respecting

the right of indigenous peoples to withhold consent for large-scale extractive projects, therefore,

gives communities the tools necessary to protect their rights as well as to bargain with state and

corporate actors in order to move forward with development projects on mutually beneficial terms.[*1331] In sum, within the context of large-scale extractive industries, it is in the best interest of states to take a consent-based approach tooperationalizing the principle of FPIC found in instruments such as the U.N. Declaration. Conclusion: Shifting Toward a Consent-Based

Framework The United States has articulated a commitment to the importance of indigenous consultationboth through its endorsement of the U.N. Declaration on the Rights of Indigenous Peoples and its domestic policies, such as E.O. 13,175 and

President Obama's Tribal Consultation Memorandum. However, in order to fully realize this commitment, the United

States should embrace a policy shift away from the currently articulated meaningful consultation

standard. U.S. law and policy should move toward viewing indigenous consultation as involving a

spectrum of requirements - with good-faith, meaningful consultation as a minimum and with

consent required in certain contexts, including large-scale extractive industries.

---The impact is cultural genocide.

Smith 2006Andrea, Assistant Professor of Media and Cultural Studies at UC Riverside, Appropriation of Native American Religious Traditions,Encyclopedia of Women and Religion in North America, Vol. 1, pg. 104-105

Native spiritualities are land basedthey are tied to the landbase from which they originate. When Native peoples fight for cultural/spiritualpreservation, they are ultimately fighting for the landbase which grounds their spirituality and culture. For this reason, Native religions aregenerally not proselytizing. They are typically seen by Native peoples as relevant only to the particular landbase from which they originate; theyare not necessarily applicable to peoples coming from different landbases. In addition, as many scholars have noted, Native religions are practicecentered rather than belief centered. That is, Christianity is defined by belief in a certain set of doctrinal principles about Jesus, the Bible, etc.

Evangelical Christianity holds that one is saved when one professes belief in Jesus Christ as ones Lord and Savior. But what is of

primary important in Native religions is not being able to articulate belief in a certain set of

doctrines, but being able to take part in the spiritual practice of ones community. In fact, it may be moreimportant that a ceremony be done correctly than it is for everyone in that ceremony to know exactly why everything must be done in a certainway. As Vine Deloria (Dakota) notes, from a Native context, religion is a way of life rather than a matter of proper exposition of doctrines.

Even if Christians do not have access to church, they continue to be Christians as long as they believe in Jesus. Native spiritualities, bycontrast, may die if the people do not practice the ceremonies, even if the people continue to believe in

their power. Native communities argue that Native peoples cannot be alienated from their land

without committing cultural genocide. This argument underpins many sacred sites cases, althoughusually to no avail, before the courts. Most of the court rulings on sacred sites do not recognize this difference between belief-centered and

practice-centered traditions or the significance of land-based spiritualities. For instance, in Fools Crow v. Gullet (1983), the Supreme Court ruledagainst the Lakota who were trying to halt the development of additional tourist facilities in the Black Hills. The Court ruled that this tourism wasnot an infringement on Indian religious freedom because, although it would hinder the ability of the Lakota to practice their beliefs, it did not

force them to relinquish their beliefs. For the Lakota, however, stopping the practice of traditional beliefs destroys the

belief systems themselves. Consequently, for the Lakota and Native nations in general, cultural

genocide is the result when Native landbases are not protected. When we disconnect Native spiritual

practices from their land bases, we undermineNative peoples claim that the protection of the land base is integral to thesurvival of Native peoplesand hence undermine their claims to sovereignty. This practice of disconnecting Native spirituality from its

land base is prevalent in a wide variety of practices of cultural and spiritual appropriation, from New Agers claiming to be Indian in a former lifeto Christians adopting Native spiritual forms to further their missionizing efforts. The message is that anyone can practice Indian spiritualityanywhere. Hence there is no need to protect the specific Native communities and the lands that are the basis of their spiritual practices.

---Cultural genocide risks extinction --- Each loss risks crossing an invisible

threshold.

Stavenhagen 1990Rodolfo, Professor @ the United Nations University, The Ethnic Question pg. 73The struggle for the preservation of the collective identity of culturally distinct peoples has further implications as well. The cultural diversity of

the worlds peoples is a universal resource for all humankind. The diversity of the worlds cultural pool is like the


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diversity of the worlds biological gene pool. A culture that disappears due toethnocide or cultural

genocide represents a loss for all humankind. At a time when the classic development modelsof the

post war era have failedto solve the major problems of mankind, people are again looking at so called traditional

cultures for at least some of the answers. This is very clear, for example, as regards to agriculturaland

food production, traditional medicine, environmental managementin rural areas, construction techniques, social

solidarity in times of crises, etc. The worlds diverse cultures have much to offer our imperiled planet. Thus the defense of

the collective rights ofethnic groups and indigenous peoples cannot be separated from the collectivehuman rights of all human beings.


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Cultural Genocide N/B


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Consultation (S) --- Cultural Genocide N/B

---Consultation creates procedural norms and cultural protections that are literally

the difference between life and death for indigenous peoples.

Rodriguez-Garavito 2010Cesar, Associate Professor of Law and Director of the Program on Global Justice and Human Rights, University of the Andes (Colombia);Hauser Global Fellow, New York University Law School; Founding member, Center for Law, Justice, and Society, Ethnicity.gov: GlobalGovernance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields, Indiana Journal of Global Legal Studies Vol. 18 #1(Winter), http://burawoy.berkeley.edu/Public%20Sociology,%20Live/Rodriguez.Global%20Governance.pdf

The reverse of the domination effect consists in the emancipatory possibilities presented by consultationprocesses. In practice, consultation is simultaneously a means to both perpetuate and challenge profoundinequalities among actors situated in minefields. While they dilute indigenous political demands,procedural norms alsocreate precious opportunities and toolssometimes the only onesavailablefor halting (or at least postponing) irreversible cultural and environmental harm andfounding or re-founding processes of collective mobilization. The ethnographic evidencedemonstrates that consultations emancipatory effectcan be direct or indirect. The effect is directwhen subaltern actorsindigenous communities and their alliesdemand compliance with

procedural norms and propose interpretations of them that mitigate power asymmetries vis--visconsultations dominant actors. The process itself has emancipatory potential, to the extent that itestablishes strict requirements that reduce the gap between the conditions of actual consultations,on the one hand, and those necessary for genuine deliberation, on the other. As we saw earlier,procedural regulations are not irrelevant. Once they are put into operation, they make a differencethat can be, literally, a difference between life and death. For example, an indigenous peoplessurvival can depend on the possibility that not only do their members have standing to participate inconsultation, but so do allied national indigenous organizations whodue to their legal expertise orexperience in other consultationscan help balance out power relations. As the U.N. Rapporteurship andthe Inter-American Court of Human Rights have recognized, whether the standard of consultation or thestandard of consent is applied can determine the fate of an indigenous people affected by a large-scaleeconomic project. The Embera of northern Colombia have experienced this difference between life anddeath literally.

---The land has traditional, cultural, and spiritual meaning to indigenous people

lack of prior consultation could lead to human rights violation and massacres

Pasqualucci, 2006(Jo., Professor of Law, University of South Dakota School of Law, S.J.D, GeorgeWashington University Law School; J.D., University of Wisconsin School of Law, The Evolution of International

Indigenous Rights in the Inter-American Human Rights Systemhttp://www.utexas.edu/law/journals/tlr/sources/Issue%2089.7/Garcia%20Sayan/fn131.garciasayan.pdf)HarbeckWhen peoples hold their ancestral land communally and have a close spiritual and cultural

relationship with that land, the Inter-American Court will apply its jurisprudence on indigenous

land rights and other related rights.58 In the Moiwana v Suriname case, the Court applied the case law t hat it developed inindigenous rights cases to the peoples of the Ndjuka Maroon community who had been driven from their traditional land by a massacre

perpetrated by the Surinamese military.59 The ancestors of the inhabitants of this community had been brought to the territory, which is now

Suriname, in the 17th century as African slaves.60 Over time, many of them escaped to the rainforest, where they established autonomouscommunities and came to be known as Maroons.61 The Ndjuka People, whose village was massacred, are one of the six Maroon communities

having their own language, history, cultural traditions and religion.62 The villagers have not been able to return to their

traditional lands since the 1986 massacre and are living as internally displaced people in Suriname

or as refugees in French Guiana. 6 3 Although they are not technically indigenous to the area, the Court applied its

jurisprudence on indigenous land rights to the Ndjuka tribal people in accordance with international law.64 Their tradition of

sharing land communally, their relationship to the land and the pre-eminent role they accord

custom and common religious and spiritual practices is sufficiently similar to the practices and

customs of the indigenous peoples for them to merit similar protection.The diversity of a democratic society
http://www.utexas.edu/law/journals/tlr/sources/Issue%2089.7/Garcia%20Sayan/fn131.garciasayan.pdfhttp://www.utexas.edu/law/journals/tlr/sources/Issue%2089.7/Garcia%20Sayan/fn131.garciasayan.pdf


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is equally enhanced by protection of the life style and values of peoples such as the Ndjuka. E. ContinuingViolations of Indigenous Rights

Generally, an international human rights court has jurisdiction ratione temporis if the alleged

violation takes place during a time when the court has jurisdiction over the State. States may filepreliminary objections to the courts jurisdiction 57 Moiwana Community v SurinameIACtHR Series C 124 (2005) at para. 133. 58 Ibid. atparas 131^4. 59 Ibid. 60 Ibid. at para. 86.1. The Ndjuka Community now numbers approximately 49,000 people. (Ibid. at para. 86.3.) 61Ibid. at para. 86.1. 62 Ibid. at paras 86.1 and 86.4. 63 Ibid. at paras 86.19, 86.27 and 86.43. 64 Ibid. at paras 133^5. Evolution of InternationalIndigenous Rights 291 at University of Texas at Austin on March 14, 2011 hrlr.oxfordjournals.org Downloaded from because the violation

occurred before the entry into force of the treaty for that State or before the State accepted the jurisdiction of the tribunal.65 Many violations ofindigenous rights, especially land rights, took place before the American Convention entered into force for any State or before the 1980s and

1990s when most States Parties to the Convention accepted the jurisdiction of the Inter-American Court. Thus, were there no

exceptions to this principle , even the current continuing effects of these violations would be

beyond the jurisdiction of the Inter-American Court and other international adjudicative

bodies.


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A2 Activism Tradeoff --- Cultural Genocide N/B

---No Tradeoff --- Demand for prior binding consultation is empirically successful in

mobilizing effective activism.


Further, I show that FPICs impact on indigenous peoples is also ambiguous. On the one hand, thejuridification of indigenous claims and demands through FPIC has converted at least part of themovements political energy into legal discussions that favor procedure and has transferred part of theresponsibility for initiating and controlling these claims to external legal advisors. FPIC thus dilutes anddisplaces collective demands and turns them, at least partially, into procedural observations. On the otherhand, evidence indicates that in the extreme circumstancesof social minefields, sometimes FPIC isthe only mechanism effective at slowing down extractive economic projects dizzying pace andcontesting governmental decisions that back them. In fact, in some cases, the consultation processes(and the litigation that surrounds them)

have been catalysts for the political mobilization of affectedpeoples, along with national and international activist networks. As such, consultation has assertedits place among the political priorities of the international indigenous movement, just as it took bystorm the discussion that night in the Urr minefield.


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A2 Power Inequalities --- Cultural Genocide N/B

---Power inequalities dont takeout solvency --- Consultation is still empirically a

critical tool for protecting indigenous cultures.


Given the abysmal disparities in power and resources between the actors involved, it is

unsurprising that FPICs procedural rules constantly reinforce and legitimate the relations of

domination among them. Yet consultations have served as a forum for resisting these relations. Thedetails pertaining to procedural norms(e.g., who will participate, how long will the consultation last,what type of compensation should be accorded, etc.) can open up opportunities for indigenous politicalmobilization. And, they may offer a last recoursea last inconvenience in the way of deathto whichindigenous peoples cling to in the face of all odds, as the Colombian Embera communities continue todo in their struggle against collective annihilation.


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Politics N/B


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CP No Link --- Politics N/B

---The counterplan avoids the domestic politics D/A --- Enjoys bipartisan support.

Cornell & Kalt 2010Stephen, professor of sociology and director of the Udall Center for Studies in Public Policy, University of Arizona and co-founder (in 1987) and

co-director of the Harvard Project on American Indian Economic Development, Joseph P., Ford Foundation Professor of International PoliticalEconomy and co-founder (in 1987) and co-director of the Harvard Project at the John F. Kennedy School of Government, American Indian Self-Determination: The Political Economy of a Successful Policy, http://nni.arizona.edu/pubs/jopna-wp1_cornell&kalt.pdf

The era of federal support for tribal self-determination through selfgovernment has enjoyed notable stability. Evidence from patterns

of support in the U.S. Congress indicatesthat this is, in part, because of the ability of self-determination to

appeal to both liberals and conservatives. From a liberal perspective, self-determination clearly contains an element of supportfor human rights and decolonization for Indigenous people. From a conservative perspective, self-determination is manifested in self-sufficiency,

reduced dependency on the U.S. federal government, and devolution of formerly federal authorities to local governmental units. This bi-

ideology, bi-partisan appeal of self-determination has thus far allowed it to last through multiple

changes in party control of the federal government. This is critical in so far as, on its own, the political influence of NativeAmericans could not plausibly be sufficient to sustain the self-determination framework.


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Solvency


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Prior Consultation K (Latin America) --- Solvency

---Prior consultation with indigenous peoples over energy engagement in Latin

America is critical to protect against the destruction of key religious and cultural

sites that threatens their continued survival.Latinamerica Press 11(Comunicaciones Aliadas, governmental organization that produces reliable information and analysis,Latinamerica press, 7/30/13,http://alainet.org/images/14PI_consultation_lp.pdf)bchoWhy is prior consultation a fundamental right for indigenous peoples? In Latin America, social

conflicts related to the exploitation of natural resources on indigenous lands are becoming morefrequent. The revenue from natural resource exportation is an important factor in Latin Americancountries economic growth. In light of this national interest, states grant concessions onindigenous lands to extractive firms without taking into account how those activities affect theirway of life. States argue that investments in mining, petroleum, hydrocarbons, and timber bringdevelopment to the country, but this isnt necessarily true, since the majority of the time developmentdoes not benefit the indigenous com-munities living on lands where the extractive activities are

happening. Not only do they not benefit, but their habitat is destroyed, the land that they considertheir pharmacy, their market, their hardware store, their space to connect with their beliefs,spirituality and culture.Is it that national interest takes precedence over the right to existence of ahuman collective, an indigenous people? Or is it perhaps not the obligation of states to protect the

existence of all of its inhabitants? When extractive activities alter the way of life for indigenous

peoples, it endangers their very existence , to the point that they feel it necessary to take dramaticmeasures in order to be heard and respected. Unfortunately, those measures sometimes turn into clasheswith law enforcement and result in deaths or injuries. In this context, free and informed prior

consultation with indigenous communities, before taking any decision that would affect them

directly, would avoid the proliferation of these conflicts, as well as so much death and resentment .Prior consultation is one of the fundamental rights included in the international legal framework,such as the International Labor Organizations Convention 169 concerning indigenous and tribal

peopleswhich has constitutional status in the countries that have ratified itand the UnitedNations Declaration on the Rights of Indigenous Peoples. And prior consultation is fundamental inthat it recognizes the right of a people to make decisions that could affect its existence. The communitieshave the power to say we dont want this activity that is going to affect our way of life and our basicrights, that is going to produce toxic waste, that is going to contaminate the water, that is going to floodour land. No community is obligated to commit suicide in the name of national interest. Likewise, astate does not have the authority to conduct an activity that will be at the expense of a communitys basicrights. Recognizing the importance of the application of prior consultation with indigenous communities,Comunicaciones Aliadas, with the support of the American Jewish World Service, or AJWS, has preparedthis special report that addresses the status of this right in nine countries in Latin America.
http://alainet.org/images/14PI_consultation_lp.pdfhttp://alainet.org/images/14PI_consultation_lp.pdf


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Prior Consultation K (Cuba) --- Solvency

---U.S. needs to consult w/ the indigenous people of CubaKey to stop the endless

cycle of genocide, discrimination, colonization & resource exploitation

Gonzalez 5/20 (OSCAR LEN GONZLEZ is Deputy Permanent Representative of Cuba to the UnitedNations, INDIGENOUS PEOPLES PARTICIPATION IN DECISIONS IMPACTING COMMUNITY, LAND ,CULTURE - CRITICAL TO THEIR HUMAN RIGHTS, SPEAKERS TELL PERMANENT FORUM - DespiteGap between Instrument, Practices, Special Rapporteur States We Are Here Challenging Obstacles, Preparing for

2014 World Conference, http://www.un.org/News/Press/docs/2013/hr5134.doc.htm, 5/20/13) DengOSCAR LEN GONZLEZ (Cuba) noted that indigenous peoples had been victimized in genocides ,

discrimination and resource exploitation. In Cuba, too, some indigenous communities had been exterminated over the few

decades of colonization. The adoption of the Declaration was a historic victory, which would help indigenous peoples to achieve their ancestral righ ts.Minor progress had been made in that field and much remained to be done. Welcoming the holding of the World Conference on Indigenous Peoples in 2014, he

affirmed that Cuba would contribute to a tangible outcome at the Conference by sharing best practices. It was a regrettable reality that

indigenous peoples were suffering from discrimination, marginalization, violence, denial of land and resource

exploitation.The representative of the Navajo NationalHuman RightsCommissionsaid the United States should adopt

the Declaration, and that all Government departmentsreplace the word consultation with the international

standard, free, prior and informed consent, particularly with regard to sacred places, since current consultation policy did notprovide for consent. Despite its general trust responsibility towards indigenous peoples,the United States frequently allowed desecration of

indigenous sacred sites for non-indigenous commercial gain. He then made recommendations in

three areas: prioritizing self-determination, lands, territories and resources; effective measures to

implement the Declaration; and formal participation by indigenous nations.


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Prior Consultation K (Mexico) --- Solvency

---The affirmatives failure to consult removes indigenous peoples from participation

in public affairs --- Prior and binding consultation with the indigenous communities

of Mexico is critical to preserve culture.Trejo 11(Karen, chief of staff at EOG Workforce Solutions, responsible for human resource PVMinsurance, Human resources Mendez Group Business Advisors, LAPress, 7/30/13http://www.lapress.org/articles.asp?art=6426)bchoThe violation of the right to consultation, which is constitutionally established, is systematic inMexico, as is the right to participation in public affairs. One of the primary reasons, according toreports from civil society organizations, has to do with a governmental strategy to illegally imposeinfrastructural megaprojects in indigenous and rural areas, as well as in nature reserves. This problemhas been aggravating social and agrarian conflicts in various regions of the country; this in turn hasincreased the vulnerability of indigenous communities that, not having been informed or consulted,are seriously threatened with the dispossession of their lands, environmental degradation andforced displacement. Priscila Rodrguez, a lawyer with the Mexican Center for Environmental Law, or

CEMDA, explains that among the factors that prevent the indigenous communities from fully securingthe right to consultation is the failure to apply Article 2 of the Mexican Constitution, which requiresauthorities to carry out consultation processes when it comes to planning and implementing legislation,development programs, and infrastructural construction projects that impact the communities territoriesand natural resources. In March 2010, a debate began in the House of Representatives over a bill calledthe Consultation with Indigenous Peoples and Communities to regulate that article; from December toMay, a consultation process was conducted with indigenous peoples and communities in several statesacross the country to discuss the project. The result was not encouraging. While this initiative, promotedby the center-right Partido Revolucionario Institucional, or PRI, envisages the obligation of federal andstate governments, as well as the legislature, to ensure the right to prior consultation with theindigenous communities on issues relating mainly to the establishment of legislative measures, the careand enjoyment of natural resources in their territories, and the implementation of operating rules and

regulations in social programs at all three levels of government, it also maintains that neither publicbudget allocation nor the appointment of leaders in charge of the specialized agencies that deal withindigenous peoples, except the delegates of the National Commission for the Development of IndigenousPeoples, or CDI, may be the subject of consultation.Nor can it be considered binding lawbecause itdoes not impose penalties on officials and/or private companies for breach of agreements or if theconsultations are n/ot performed properly. Against this backdrop, social activists for the rights ofindigenous peoples in Mexico have formally requested the Inter-American Commission on HumanRights, IACHR, to chair a working group with the Mexican state and civil society to bring this bill in linewith standards for the protection of human rights established by international treaties that Mexico hasratified. This proposal has not yet materialized.

---Mexican energy sector change needs consultation of the indigenous peopleany

alternative action violates their constitutional and human rights.Amaiz and Josephs 11 (Cecilia Remn Arnaiz and Leslie Josephs are editors at LatinAmericaPress, a nonprofit newsorganization that has extensive coverage on multiple issues in Latin America,Prior consultation for indigenous PeoPles,http://www.latinamericapress.org/objetos/informe/14PI_consultation_lp.pdf,June 2011) DengGovernment imposes infrastructure projects without taking into account opinion of affectedcommunities. The violation of the right to consultation, which is constitutionally established, is

systematic in Mexico, as is the right to participation in public affairs. One of the primary reasons, according to reports from civil society organizations,

has to do with a governmental strategy to illegally impose infrastructural megaprojects in indigenous and rural areas, as well as in nature reserves This

problem has been aggravating social and agrarian conflicts in various regions of the country; this in
http://www.latinamericapress.org/objetos/informe/14PI_consultation_lp.pdfhttp://www.latinamericapress.org/objetos/informe/14PI_consultation_lp.pdf


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turn has increased the vulnerability of indigenous communities that, not having been informed or consulted, are

seriously threatened with the dispossession of their lands, environmental degradation and forced

displacement.Priscila Rodrguez, a lawyer with the Mexican Center for Environmental Law, or CEMDA, explains that among the factors that pr event the

indigenous communities from fully securing the right to consultation is the failure to apply Article 2 of the Mexican Constitution, which

requires authorities to carry out consultation processes when it comes to planning and

implementing legislation, development programs, and infrastructon projects that impact the

communities territories and natural resources. In March 2010, a debate began in the House of Representatives over a bill called theConsultation with Indigenous Peoples and Communities to regulate that article; from December to May, a consultation process was conducted with indigenouspeoples and communities in several states across the country to discuss the project. The result was not encouraging. While this initiative, promoted by the center-rightPartido Revolucionario Institucional, or PRI, envisages the obligation of federal and state governments, as well as the legislature, to ensure the right to priorconsultation with the indigenous communities on issues relating mainly to the establishment of legislative measures, the care and enjoyment of natural resources intheir territories, and the implementation of operating rules and regulations in social programs at all three levels of government, it also maintains that neither publicbudget allocation nor the appointment of leaders in charge of the specialized agencies that deal with indigenous peoples, except the delegates of the NationalCommission for the Development of Indigenous Peoples, or CDI, may be the subject of consultation. Nor can it be considered binding law because it does not impose

penalties on officials and/or private companies for breach of agreements or if the consultations are not performed properly. Against this backdrop, social

activists for the rights of indigenous peoples in Mexico have formally requested the Inter-American

Commission on Human Rights, IACHR, to chair a working group with the Mexican state and civil

society to bring this bill in line with standards for the protection of human rightsestablished by internationaltreaties that Mexico has ratified. This proposal has not yet materialized.


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A2 Normal Means --- Solvency

---No such thing as normal means w/ indigenous consultation.

Routel & Holth 2012Colette, Associate Professor of Law, Jeffrey, J.D. candidate 2012, William Mitchell College of Law, Tribal Consultation In The 21st Century,

William Mitchell College of Law, LEGAL STUDIES RESEARCH PAPER SERIES, http://ssrn.com/abstract=2012002Despite all of this activity, there is no consensus regarding the components of the consultation duty. In fact,

federal agencies even have differing views about what consultation means. Does it simply require

notificationof and the ability to comment on federal actions that could impact tribes?Or does it require

meaningful dialogue between federal and tribal officials?This article highlights the current inconsistencies ininterpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by thelegislative, executive or judicial branches.


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A2 Say No --- Solvency

---Indigenous people support oil and energy development as long as it doesnt

disrupt important cultural locations and practices.

Kelly & Vasquez 2004Andrew, Patricia, Burlington Urged to Exit Amazon Blocks, International Oil Daily, http://amazonwatch.org/news/2004/0421-burlington-urged-to-exit-amazon-blocks

An Amazonian Indian leaderwearing a head-dress made of red, yellow and black Toucan feathersurgedBurlington Resourceson Wednesday to drop plans to explore for oilon two large tracts of landin the jungles of southeast Ecuador. "My people are not going to permit this oil development," PabloTsere, president of the Shuar People's Federation, told the company's annual shareholder meeting inHouston Wednesday. "We askyou to withdraw from our land." Burlington Chief Executive BobbyShackouls told Tsere that the company is sensitive to the concerns of indigenous people in the area andwill continue to consult with them. "We respect your traditions and your lands," he said. However,Shackouls gave no indication that the company is considering withdrawal from Block 23, in which itholds a 25% stake, and Block 24, which it operates and owns outright. Environmental and human rightsgroup Amazon Watch says there is widespread opposition to oil exploration and development in the two

areas among the indigenous Shuar, Achuar and Kichwa people. Tsere saidthe Shuar people will takewhatever measures are necessary to prevent exploration and development. "We will defend our territory,"

he told reporters. "We will not allow ourselves to be humiliated." Shackouls said most indigenous

people support oil exploration, which he said would bring benefits such as healthcare, roads and

infrastructure . Burlingtoncurrently has a modest amount of oil production, less than 10,000 barrels perday, from two blocks in the OrienteBasinin Ecuador. It has not yet undertaken any exploration activity onBlock 24 in the Amazon Basin.


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Permutation Ans


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A2 Do Both --- 2nc Permutation Ans

---Permutation do both fails --- Consultation must happen prior to exploration,

exploitation, or relocation to prevent deliberate and inadvertent cultural

destruction.Tamang 05(Parsuharm. Indigenous expert, UN member. Department of Economic and Social Affairs. January 17-19,2005.https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&ved=0CDUQFjAB&url=http%3A%2F%2Fwww.un.org%2Fesa%2Fsocdev%2Funpfii%2Fdocuments%2Fworkshop_FPIC_tamang.doc&ei=fWX1UbzpAYWWrgHzmICYDw&usg=AFQjCNF5rEZ6DyHFYN3q6mSr9dcoV-LVeQ&sig2=2afHkknmQTU37Lc2nW7fQA&bvm=bv.49784469,d.aWM )JiA. ILO convention(Human Rights Law): 29. ILO 169/1989 refers to the principles of FPIC: Article6, 7, 16, 16 and22 provides that the government shall: (a) consult the peoples concerned, throughappropriate procedures (b). in particular through their representative institutions; establish meansby which these peoples can freely participate to at least the same extent as other sectorsofpopulation; (C) assist these peoples own institutions and initiatives andin appropriate cases providethe resources for these purposes. 30. In general the Convention specifies that consultation should take

place specifically in the following circumstances: (a) When considering legislative or administrativemeasures that are likely to affect indigenousand tribal peoples{article 6.1 (a)}; (b) Prior to

exploration or exploitation of sub-surface resources(article 15.2); ( c). When any consideration isbeing given to indigenous and tribal peoples capacity to alienate their lands or to transmit them

outside their own communities(article 17); (d). Prior to relocation , which should take place onlywith the FPIC of IPs(article 16); (e). On the organisation and operation of special vocationaltraining programmes (article 22).
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&ved=0CDUQFjAB&url=http%3A%2F%2Fwww.un.org%2Fesa%2Fsocdev%2Funpfii%2Fdocuments%2Fworkshop_FPIC_tamang.doc&ei=fWX1UbzpAYWWrgHzmICYDw&usg=AFQjCNF5rEZ6DyHFYN3q6mSr9dcoV-LVeQ&sig2=2afHkknmQTU37Lc2nW7fQA&bvm=bv.49784469,d.aWMhttps://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&ved=0CDUQFjAB&url=http%3A%2F%2Fwww.un.org%2Fesa%2Fsocdev%2Funpfii%2Fdocuments%2Fworkshop_FPIC_tamang.doc&ei=fWX1UbzpAYWWrgHzmICYDw&usg=AFQjCNF5rEZ6DyHFYN3q6mSr9dcoV-LVeQ&sig2=2afHkknmQTU37Lc2nW7fQA&bvm=bv.49784469,d.aWMhttps://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&ved=0CDUQFjAB&url=http%3A%2F%2Fwww.un.org%2Fesa%2Fsocdev%2Funpfii%2Fdocuments%2Fworkshop_FPIC_tamang.doc&ei=fWX1UbzpAYWWrgHzmICYDw&usg=AFQjCNF5rEZ6DyHFYN3q6mSr9dcoV-LVeQ&sig2=2afHkknmQTU37Lc2nW7fQA&bvm=bv.49784469,d.aWMhttps://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&ved=0CDUQFjAB&url=http%3A%2F%2Fwww.un.org%2Fesa%2Fsocdev%2Funpfii%2Fdocuments%2Fworkshop_FPIC_tamang.doc&ei=fWX1UbzpAYWWrgHzmICYDw&usg=AFQjCNF5rEZ6DyHFYN3q6mSr9dcoV-LVeQ&sig2=2afHkknmQTU37Lc2nW7fQA&bvm=bv.49784469,d.aWMhttps://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&ved=0CDUQFjAB&url=http%3A%2F%2Fwww.un.org%2Fesa%2Fsocdev%2Funpfii%2Fdocuments%2Fworkshop_FPIC_tamang.doc&ei=fWX1UbzpAYWWrgHzmICYDw&usg=AFQjCNF5rEZ6DyHFYN3q6mSr9dcoV-LVeQ&sig2=2afHkknmQTU37Lc2nW7fQA&bvm=bv.49784469,d.aWMhttps://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&ved=0CDUQFjAB&url=http%3A%2F%2Fwww.un.org%2Fesa%2Fsocdev%2Funpfii%2Fdocuments%2Fworkshop_FPIC_tamang.doc&ei=fWX1UbzpAYWWrgHzmICYDw&usg=AFQjCNF5rEZ6DyHFYN3q6mSr9dcoV-LVeQ&sig2=2afHkknmQTU37Lc2nW7fQA&bvm=bv.49784469,d.aWM


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A2 Do the CP --- 2nc Permutation Ans

(__) The permutation is severance --- Thats a voting issue

---Plan is topically required to be an immediate and definitive course of action ---

Websters Revised Dictionary 1996 ((1.) RESOLVED MEANS HAVING A FIXED PURPOSE; DETERMINED;RESOLUTE)

& American Heritage Dictionary 2000 ((2.) ESTABLISH MEANS TO INTRODUCE AND PUT (A LAW, FOR

EXAMPLE) INTO FORCE).

This is best; the alternative eviscerates timely neg research by repealing or delaying

the plan until after our offense resolves.

(__) The permutation is intrinsic --- Thats a voting issue --- Neither the plan nor cp

contain non-binding consultation --- Allows 2ac unpredictable solvency comparisons

and advantage plan planks like do the plan and ban nuclear war that destroynegative ground.


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A2 Consult on Other Issues --- 2nc Permutation Ans

---The permutation is intrinsic --- Adds which isnt in the plan or

counterplan text --- Intrinsic permutations are a voting issue --- Allow unpredictable

combinations that make winning offense impossible while justifying infinite amountof advantage cp that detract from topic focus.

---Permutation doesnt solve.

(A.) Other issues wont solve concerns over sacred site protection --- Extend

Kinnison --- Prior consultation is key to avoid disruption.

(B.) Indigenous leaders explicitly requested consultation and veto power over energy

production.

Tamang, 2005(Parshuram, ICC member of International Alliances of Indigenous and Tribal Peoplesof the Tropical Forests, President of International Tamang Council, Chief Advisor and former NationalChairman of Nepal Tamang Ghedung, Indigenous Expert, An Overview of the Principle of Free, Priorand Informed Consent and Indigenous Peoples in International and Domestic Law and Practices, January19, 2005, www.un.orgesasocdevunpfiidocumentsworkshop_FPIC_tamang.doc) HarbeckIndigenous Peoples right to free, prior and informed consent (FPIC) has been recognized by a

number of intergovernmental organizations, international bodies, conventions and international

human rights law in varying degrees and increasingly in the laws of State1/. 2. Development

projects and operations, legal and administrative regimes have had and continue to have a

devastating impact on indigenous peoples, undermining their ability to sustain themselves

physically and culturally.These threats have been documented by many studies and experiences that thePrinciples of FPIC of IPs to development projects and plans that may affect them has emerged as the desiredstandard to be applied in protecting and promoting their rights in the developmental process2. 3. The UnitedDevelopment Programme (UNDP) presented a report of the Inter-Agency Support Group on Indigenous Issues on

FPIC at the Permanent Forum in May 2004 (E/C.19/2004/11). Some UN agencies have, to some extent,implemented FPIC on an ad hoc basis in line with their general guidelines or legal instruments and principles toenhance their partnership with Indigenous Peoples (IPs). However, it states that there is no internationally agreeddefinition or understanding of the principle or mechanism for implementation. 4. The World Commission onDam states that the principle of FPIC should guide the building of dams that may affect IPs and ethnic minorities.The World Banks Extractive Industries Review (EIR) concluded that recognition and implementation of

the rights of affected people to prior and informed consent is a necessary condition for extractive

projects to be successful in contributing to poverty alleviation and sustainable development. 5.The Working Group on Indigenous Populations (WGIP) set an agenda item on FPIC in July20043/ as a possible

1. FPP briefing paper, indigenous peoples right to free, prior and informed consent and the World BanksExtractive Industries Review.

2. Bridging the gap between human rights and development: From Normative Principles to OperationalRelevance. Lecture by Mary Robinson, DC., 3 Dec. 2001. Report of Special Rapporteur on the situation ofhuman rights and fundamental freedoms of indigenous people, Mr. Rodulfo Stavenhagen, submitted pursuant toCommission resolution 2001/57. UN Doc. E/CN.4/2002/97, para. 56 (E/CN.4/2003/90). Striking a BetterBalance. The World Bank Group and Extractive Industries. The Final Report of the Extractive IndustriesReview, Vol. 1, December 2003, 41.

3. Preliminary working paper on the principle of free, prior and informd consent of indigenous peoples inrelation to development affecting their lands and natural resources that would serve as a framework for the


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future standard setting activity (E/CN.4/Sub.2/ AC.4/2003/3). The third session of the Permanent Forum onIndigenous Issues (UNPFII) has decided a workshop to seek common understanding of the principle of FPIC inactivities relating to Indigenous Peoples and to report the outcome of the workshop to the Forum at its FourthSession in May 20054/. 6. The purpose of the paper is to provide background information how FPIC has been inuse in international and domestic legal instruments, to provide an interpretation of the principle of FPIC within thecontext of international human rights, environment and development law, as well as to derive guidelines on howthe principle should be respected in activities relating to indigenous peoples in practice, and to recommend furtherimprovement of policy framework to strengthen indigenous peoples consent practices and harmonize its

implementation among various agencies, disciplines and states. II. The Principle of Free, Prior and InformedConsent in International and Domestic Law and Practices A. International Level: 7. International LabourOrganisations Convention on Indigenous and Tribal Peoples in Independent Countries - 169/1989 refers theprinciple of free and informed consentin the context of relocation of indigenous peoples from their land in its article6. In article 6, 7 and 15, the convention aims at ensuring that every effort is made by the States to fully consult withIPs in the context of development, land and resources. 8. Rotterdam Convention on the Prior Informed Consentprocedure for certain hazardous chemicals and pesticides in international trade, 1998 (Enforced in February 2004)applies to banned or severely restricted chemicals; and severely hazardous pesticide formulations that may impacton human health and the environment. This Convention was developed on the works undertaken by the UNEP andFAO in the operation of voluntary prior informed consent procedure, as set out in the UNEP amended Londonguidelines for the Exchange of Information on Chemicals in International Trade and the FAO International Code ofConduct on the Distribution and Use of Pesticides. (It does not refer to IPs). 9. UN Draft Declaration on the

Rights of IPs (UNDD) (Sub-Commission resolution 1994/45, annex) is an emerging instrument on the rights ofindigenous peoples that explicitly recognizes the principle of FPIC in its articles 1, 12, 20, 27 and 30. UNDD refersto the Ips right to determine and develop priorities and strategies for the development or use of their lands,territories and other resources, including FPIC from state in connection with development and utilisation of surfaceand subsurface resources such as: (a). Article 10 on forced relocation; (b). Article 12 on culture and intellectual

property; (c). Article 20 vis--vis legislative and administrative measures taken by the States (d). Article 27with regards to indigenous peoples lands, territories and resources, and (e). Article 30 with development

planning. 10. UN Committee on the Elimination of Racial Discrimination (CERD) madeobservation and general recommendations on State obligations and indigenous rights under

convention and calls upon States to ensure that membersof indigenous peoples have rights in

respect of effective participation in public life and that no decisions directly relating to their rights

and interests are taken without their informed consent(GR XXIII 51 concerning IPs adopted at theCommittees 1235thMeeting, 1997). 11. In 2000, in its concluding observation on Australias report, the CERDreiterated, its recommendation that the State party ensure effective participation by indigenouscommunities in decisions affecting their land rights, as required under article 5C of the Convention

and the General Recommendations XXIII of the Committee, which stresses the importance of

ensuring the informed consent of indigenous peoples5/. 12. In 2001, the UN Committee onEconomic, Social and Cultural Rights on report of Columbia in relation to traditional lands (E/C.12/I/Add. 74, para.12) in its concluding observation, noted with regret that the traditional lands of indigenous peoples have

been reduced or occupied, without their consent, by timber, mining and oil companies, at theexpense of the exercise of their culture and the equilibrium of the ecosystem.

drafting of a legal commentary by the Working Group on this concept submitted by Antoanella-Iulia Motoc andthe Tebtebba Foundation, E/CN.4/Sub.2/AC.4/2004/4.

4. Draft Decision of the Third Session of UNPFII, ECOSC, Official Records 2004, Supplement No. 23.5. Marcus Colchester, Forest Industries, Indigenous Peoples and Human Rights, Dec. 2001, FPP, UK. FergusMackey, A Guide to Indigenous Peoples Rights in the Inter-American Human Rights System, Octobe 2001, FPP,UK.


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A2 Timeframe --- 2nc Permutation Ans

---Timeframe Permutations are a Voting Issue --- Skew Negative strategy allowing

the affirmative to sequence their way out of core topic offense.

---Empirics prove prior consultation keyno consultation towards indigenous

people lead to no values or benefits

Fajardo 11 (Raquel Yrigoyen Fajardo, vice president of the international institute on lawand society, extensive experience with indigenous rights, prior consultation: afundamental right for indigenous people, lpspecialreport, June 2011,http://www.latinamericapress.org/objetos/informe/14PI_consultation_lp.pdf)YouThe indigenous leader Mnica Chuji, who chaired the Natural Resources Board in the Constituent

Assembly that drafted the 2008 Constitution, remembers the first confrontation that occurred

within the ruling partys assembly members.Those of us who were linked to the

indigenous population demanded that the Constitution establish the

requirement that indigenous peoples give their consent before implementinggovernment programs in their territories, and not merely be consulted, said Chuji.

ECUAdoR Luis ngel Saavedra in Quito Consultation or prior consent? The confrontation of concepts,

at first glance, was a response to what had been happening with the 1998

Constitution, which provided for prior consultation as the only requirement before

intervention in indigenous territories. But little to nothing of value resulted from these

consultations, since community decisions were not taken into account.

Governments and companies interested in extracting resources from indigenous

lands essentially resorted to a number of ruses to ensure that they complied with

the requirement within prior consultation. One of the most used was to call community

assemblies in which they were informed about the upcoming plans, but at no time were they asked if theyaccepted or notthe proposed plans. To convene a meeting of the community, or to call together certain

leaders, to inform them about government plans is not a consultation, sincethere was no opportunity

for the community to express their agreement or disagreement with the

proposal; thus we demand that the Constitution speak of prior consent , said Chuji.Prior informed consent implies that the community agrees with the intervention in its lands. This in turn requires

that the outcome of the prior consultation be binding. Neither consent nor the

requirement to comply with the outcome of any prior consultationwas incorporated into the 2008 Constitution.
http://www.latinamericapress.org/objetos/informe/14PI_consultation_lp.pdfhttp://www.latinamericapress.org/objetos/informe/14PI_consultation_lp.pdf


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Consult Good --- 2nc Theory

---At the top is our offense

(1.) Encourages good affirmatives --- Its a key test of the word Should and

Resolved that encourage affirmatives with identifiable timeframes for their harms

and defenses of unconditional fiat.

(2.) Logical policymaker justifies --- Net Benefits provide a germane warrant for

choosing the CP over the plan.

(3.) Not a voting issue --- They speak first/last and have infinite prep --- just reject

the cp; all net benefits are disadvantages to the opportunity cost of the plan.


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A2 Artifically Competitive --- 2nc Theory

---The CP is not artificially competitive --- We read links specific to both the process

and the policy of the affirmative. Proving opportunity cost with either disproves the

desirability of the plan.

---No Impact --- The counterplan competes through net benefits and is critical to

heg against indefensible status quos --- No different than reading an executive order

counterplan to provide uniqueness for a pres powers da.


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A2 Internally Conditional --- 2nc Theory

---The CP is not internally conditional

(A.) We defend tribal leaders will say yes to the proposal --- Its the affirmative

decision whether to initiate the say yes debate.

(B.) This is a solvency not theory question --- No different than saying the courts

would roll back the plan.

---Doesnt jack 2ac offense --- Can still attack the act or perception of tribal

consultation.


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A2 Multi-Actor Fiat --- 2nc Theory

---CP isnt multi-actor fiat --- We only fiat the federal government not the outcome

of consultation. Thats a solvency question.


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A2 Not Real World --- 2nc Theory

---The CP is real world --- Solvency evidence checks --- 1nc Bryan evidence prove

consultation is a real world political consideration.


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A2 Plan Encompassing --- 2nc Theory

---The CP is not plan encompassing --- They can generate offense based off the CP

inherent delay or condition.

---Counter Interpretation --- Consultation counterplan is the only legitimate PIC

(A.) Delay is built in offense for the 1ac --- If they cant win a timeframe to their

harms, theyd loose to case defense and risk of a DA regardless.

(B.) Only have to win one argument --- Winning say no is a 100% solvency deficit

that makes it uniquely beneficial for affirmative strategy.


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A2 Timeframe --- 2nc Theory

---Not a timeframe cp

(A.) The counterplan is immediate --- The timeframe for implementation is a

solvency question same as the 1ac.

(B.) Increases affirmative ground if they can prove a delay.

---No ground loss --- We dont claim any offense based off timeframe distinctions.


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A2 C/I Only Nation-States --- Theory Ans

Reject the affirmatives anti-sovereign rhetoric --- Excluding indigenous nations

from the category of predictable nation-states to consult is a form of ontological

violence that enables the elimination of indigenous identities.Ketchum 2009Terry S., a member of the Oklahoma Choctaw Nation, was recognized by Oklahoma Political Science Association (O.P.S.A.) in 2008 foroutstanding research by an undergraduate student and was selected as an Academic All-American Debater by the Cross Examination DebateAssociation. Currently, he is writing his thesis in Native American Studies at the University of Oklahoma and teaches an Introduction to NativeAmerican Studies course, OPENING OUR EYES TO THE NEW DAWN: DEMYTHIFYING SOVEREIGNTY IN NATIVE AMERICANSTUDIES ANDINDIGENOUS STUDIES, Conference Introduction Paper, http://multiworldindia.org/wp-content/uploads/2009/12/Terry-S-Ketchum.pdfExcluded from a newly emerging juridical order, tribal nations quickly became emblematic of a problem solved by the proper tu telage in the

necessities of civilization. In wake of the American Revolution, by virtue of the power to treaty, the United

States solidified its territorial and economic aspirations. Through the creation of a national identity,

citizens of the United States felt a sense of destiny for expansion. As a result, Native American

Nations were stripped of their inherent right to sovereignty. In the process, as a means of survival, tribal peoplefashioned their own national identities. As a result of the changing world, tribal nations were forced to evolve their decision-making capacitiesand traditional systems of order for integration into a monolithic world interstate system. For tribal nations predominantly living centralized

through kinship structures, contact with white settlers left little time for reaction and adaptation to the collision of cultural ideals of order.Regardless, an all too willing American populist gobbled up Native lands and resources in trust for the American Dream, while federal courtsreinforced individual property rights and the absolute sovereignty of the nation-state. It was through the enclosure of space that the nation-state

elaborated its supremacy over Indigenous concepts of order through legalism. This was done by fiating the ownership of

land and extinguishing ancient tribal claims of communal title in favor of individual proprietorship.As things change, the seeds sown by a few generations of Native American Legal Scholars have led to major victories including the rise ofmodern Indian nations (Echo-Hawk 2010:3). Beginning impart from the empowering words of activists such as Clyde Warrior and the NationalIndian Youth Council (N.I.Y.C.), the spirit of the 1960s Civil Rights Movement was recast for Indian Country into the Native Americansovereignty movement (Echo-Hawk2010:3; Smith and Warrior 1996:38). Contemporarily, conflict for American Indian nations has shifted from

armed clashes to court rooms with significant results for Native American. Since the sixties, there has been a significant

focus from tribal nations and Indigenous activist on sovereignty as a legal concept, consequentiallyincreasing awareness of its importance among tribal citizens. It was from this awareness that Native American Studies was born (called American

Indian Studies by many of those early programs). Yet still, legal threats to tribal sovereignty will continuein federal,

state, and even tribal courts, thus requiring continual vigilancefrom Indigenous Legal Scholars favorable to tribalinterests.

Anti-sovereignty rhetorichas already found its way into public consciousness as thelate former Principal Chief of the CherokeeNation Wilma Mankiller warned that a plethora ofmisleading negative media attacks have been launched against tribalgovernments, particularly gaming tribes (Mankiller 2005:639). Through this discourse, the ability for a community

to pursue self-governance can be diminished or relegated under the guise of the jurisdiction of the

state. As the courts have become the new battleground for protecting tribal sovereignty, the foundations of legal theory is still an obstacle forNative American nations, as it is steeped in prejudice against tribal systems of order. No one really attempts to dispute tribalism as a formation oforder. Instead, John Lockes view of land ownership, a motivating factor for accepting governance, challenged communal ownership of land, asof which kinship structures became the target of Europeans philosophical assault. Locke and other social philosophers felt i t necessary todelegitimize the family as a purveyor of civil knowledge and community values. According to Adam Smith, in his seminal work Wealth of

Nations, North American tribalism was the lowest and rudest state of society,for in this state of things there is properly neither sovereign norcommonwealth (Smith 1901ed:468). Binding individualism to the state as a major catalyst for order, the modern state in many ways only came

into existence as a post-secondary response to contact with tribal ideals of communal ownership of land in the New World. Perhaps, the

greatest act of injustice by the colonizer was the drive to eliminate and devalue community amongsttribal people. By deemphasizing community as the metaphysical center of tribal connections, federal Indian policy strove to eliminate tribalidentities. From the United States genocidal assault on tribal nations in the eighteenth and nineteenth century to post-World War II eraMcCarthyisms demonization of communal ideologies, Native American nations have faced an environment hostile toward their traditionalstructures. American exceptionalism, as evinced by Richard Drinnons influential work Facing West: the Metaphysics of Indian-Hating andEmpire Building, originated in Puritan politics responsible for the Pequot War and the territorial extension of English ruleand law (Drinnon

1997, 48). Fundamentally, European law seems to be diametrically opposed to traditional kinship structures of order. This opposition

allows an environment of ontological violence to flourish in academics towards any one whose

system of knowledge production deviates from Western Social Sciences. The discourse from this

conference is essential to confront the legacy of legalism and rationalism , which started from the


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fusion of philosophies that formed the colonial university model, a place where education centeredon reinforcing allegiance to the state.


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Aff Answers


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Indigenous Activism Tradeoff --- Aff Answers

---Consultation trades of with indigenous activism to address immediate threats to

survival by locking native groups into complex debates over legal procedure.


Thereafter, the phraserepeated in the presentation is prior consultation. Its effect is magnifiedbecause it is one of the few Spanish termsalong with others, such as Corte Constitucional(Constitutional Court), sentencia (ruling), and gobierno (government)that sprinkle the remarks ofparticipants who only speak Embera. At this point, it is clear that the talk has turned into a legalmemorandum. The speaker, a leader who has braved death sentences from the paramilitaries andthe guerillas for nearly a decade to defend his people, stumbles uncertainly into the terrain of legalprocedure: how to prove the dam has caused harm to Embera communities; which court to bring a newcase before in order to suspend the government and the companys plans toenlarge the dam; what is thestatus of the last legal action presented by the nongovernmental organization (NGO) that represents them;who is the indigenous peoples legal representative in the approaching prior consultation procedure; howto make use during these ensuing procedures of the Constitutional Courts judgment6 and the report bythe ILO committee, 7which both condemned the Colombian government for authorizing the constructionof the Urr dam without consulting the Embera. These legal artifactsthe succession of proceduraldeadlines, the architecture of laws and decisions, the affirmation of equality between parties to a caseare precisely what generate the illusion of order, and in turn, make us forget for a moment that weare in the heart of the chaos. Thereafter, we get stuck in a long discussion about priorconsultations technicalities, as if death squads were not patrolling just a few kilometers away, as if

the territory were not littered with landmines, as if all of the few families in attendance did not have

some member who had been assassinated or forcibly displaced, as if we had not crossed paths along

the river with speedboats that were driven by fully armed soldiers, who play cat and mouse withthe settlers that transport coca downriver.


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CP Fails (Power Differential) --- Aff Answers

---Consultation fails to resolve the net benefit --- Limited negotiation leverage and

decision-making power prevent consultation from preserving indigenous culture.


In the absence of strict procedural standards and effective monitoring mechanisms and sanctions, theversion of FPIC endorsed in multilateral bank directives and TNC codes of conduct embodies the twoprincipal limitations of the governance paradigm mentioned earlier. On the one hand, the lack ofprocedural guarantees to mitigate the profound power asymmetries among indigenouscommunities, corporations, and states render consultation a form of participation in whichindigenous peoples have limited negotiating leverage and even more limited decision-makingpower. On the other hand, the absence of effective and functional monitoring and sanctioningmechanisms is reminiscent of the preference for self-regulation inherent in governances approach, whichaccounts for the ineffectiveness of operational policies and voluntary standards recognizing the duty toconsult indigenous peoples. Similar limitations are apparent in the version of consultation incorporatedinto legislation in the majority of states that have ratified Convention 169.87 As a result, this dominantversion of FPICand this interpretation of Convention 169 are central pieces of what Hale callsneoliberal multiculturalism, which is the legal regime that recognizes cultural rights, but denies, de

facto or de jure, the assertion of control over resources necessary for those rights to berealized.88 It is the type of multiculturalism and consultation that is today prevalent even in thoseLatin American countries that have joined the wave of multicultural constitutionalism and ethno-

development, without addressing the structural causes of indigenous peoples exclusion orestablishing forms of participation with decision-making power.89


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CP Fails (Delays) --- Aff Answers

---Counterplan doesnt solve case --- Massive delays for as much as 20 years.

Rodriguez-Garavito 2010Cesar, Associate Professor of Law and Director of the Program on Global Justice and Human Rights, University of the Andes (Colombia);

Hauser Global Fellow, New York University Law School; Founding member, Center for Law, Justice, and Society, Ethnicity.gov: GlobalGovernance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields, Indiana Journal of Global Legal Studies Vol. 18 #1(Winter), http://burawoy.berkeley.edu/Public%20Sociology,%20Live/Rodriguez.Global%20Governance.pdf

Those who attend negotiations and discussions during a consultation process will notice somethingstrange. When it seems that a point on the agenda has been exhausted or an agreement has been reached,it is common that the conversation returns to the same matters or, in fact, discussion of them in asubsequent meeting begins again from scratch. For this reason, unless the proceedings are perfunctory orimposed under deception or coercion (which is not infrequent), consultations tend to follow a non-linear path in which delays, repetition, and misunderstandings are endemic. Once again, the case ofthe Urr dam is indicative of this tendency. In effect, one of the principal points of controversy among theparties to the case is whether an agreement had ever been reached. In other words, the State, the company,and the Embera-Kato have not agreed on the existence of an agreement. While the first two maintain thatthey reached an agreement with the Embera in 1999, allowing the dam to be filled following the Courtsdecision, the Embera argue that such an agreement never existed. To complicate the misunderstandingfurther, the consultation process, as it often does, produced an internal division within the Embera people.Thus, some communities currently argue that there was an agreement, while others disagree. 109Considerable uncertainty results, thus aggravating the lack of confidence among the parties andheightening rather than mitigating the volatility of the situation on the ground. How are suchmisunderstandings produced? What causes miscommunication, which is so prevalent that it leads toconstant communication breakdown among the parties and to long stalls in consultation processes? Oneof the primary causes is that consultations embody a discursive clash, in which claims and differentkinds of knowledge, based on radically distinct epistemological roots, get crossed. In a starkhistorical short circuit, consultations combine pre-modern indigenous claims, post-moderndesigns of global governance, and classical modern forms of primitive accumulation of capitalall of which are smelted in the crucible of modern legal forms par excellence: due process and freedom of

contract. The misunderstandings that can arise from this epistemic Tower of Babel are apparent invarious consultation processes that I have observed. One particularly telling and internationallyknown case is the consultation of the Uwa people, which derived from Occidental Petroleums plansfor oil exploration in the Uwas territory in eastern Colombia.110 The Uwas consultation process haslasted for nearly twenty years, and a stalemate among the parties persists, due in part to thecountervailing power of a coalition of indigenous and environmental NGOs worldwide that haveassembled in solidarity with the Uwa. Beyond the cases intricacies, what is interesting to highlight is theabyss between the State and the oil companies pro-extraction vision and the Uwas conception ofterritory and oilboth sacred and untouchable, to the point where the Uwa have announced that theywill commit collective suicide in the event of oil exploration in their territory.111 The result is abreakdown in communication, unresolved by the procedural mechanism of consultation, as variousparadoxical incidents in the case reveal. For example, in 1997, when the Colombian Constitutional Courtruled in favor of the Uwa regarding a complaint that they brought and, thereby, ordered the State toundertake prior consultationbefore authorizing seismic exploration in indigenous territory,112 the Uwasurprised their allies who were celebrating this legal victory by issuing a communiqu expressing theirrejection of the Courts ruling and reiterating that their goal was not that the oil project be consulted ornegotiated, but rather that it simply be cancelled for attacking their most profound cultural convictions.As the circulated communiqu stated, we do not understand why they summon us to participate in ahearing when they know what we will say, which is the same as what we have been saying from the

beginning.113


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Consult CPs Bad --- Aff Answers

Consult Counterplans are illegitimate and a voting issue:

A) Infinitely regressive: they could consult anyonemaking the AFF burden

impossible.

B) Moving target: the effect of the counterplan changes with the answer the

indigenous groups givemaking this undebatable.

C) Counter Interpretation: the negative gets consultation counterplans with state

actors. Solves their consult good offense while guaranteeing a finite and predictable

group of organizations that can be consulted.

---No link to their offense --- Indigenous culture can still be protected withoutdefining indigenous groups as nation states.

Wiessner 2007Siegfried, Professor of Law & Director Graduate Program in Intercultural Human Rights St. ThomasUniversity School of Law, Miami, Florida Chair, ILA Committee on the Rights of Indigenous Peoples,United Nations Declaration on the Rights of Indigenous Peoples, http://untreaty.un.org/cod/avl/ha/ga_61-295/ga_61-295.htmlIndigenous peoples generally do not aspire to statehood in the sense of the political independence ofplayers in the Westphalian system of modern nation states. The claim to indigenous sovereignty is

primarily founded upon the aspiration to preserve their inherited ways of life, change thosetraditions as they see necessary, and to make their cultures flourish. This fundamental policy ofUNDRIP is reflected in article 5, which states that [i]ndigenous peoples have the right to maintainand strengthen their distinct political, legal, economic, social and cultural institutions, while

retaining their right to participate fully, if they so choose, in the political, economic, social andcultural life of the State [emphasis added].

Documents

Consult the Indigineous Counterplan - Northwestern 2013 Sophomores