2 Localising human rights: legal-anthropological approaches for studying indigenous rights

To understand the impact of human rights law on societies beyond court decisions and jurisprudence more generally requires insights from other disciplines. In the field of legal studies, ‘indigenous peoples’ is not considered a complex term (Robyn et al., Reference Robyn, McNeish and Cimadamore2005), yet ethnographic research reveals its complexities and the multiplicities inherent in this legal category. In fact, cultural identities are far from static and ‘ethnic lines between the powerful and dispossessed’ can hardly be created (Fontana and Grugel, Reference Fontana and Grugel2016, p. 257), as ethnic identities reflect fluidity and social constructs (Lucero, Reference Lucero2006): cultural practices are rarely coherent; instead, identities are constructed in a dynamic way (Behabib, Reference Behabib2002). In this paper, a legal-anthropological framework was chosen in order to the discuss double-sided ways in which international norms are implemented by state representatives on the one hand and shaped and responded to by indigenous communities. The promises of law in the form of international legal commitments are observed, focusing on connections, commonalities, differences, inconsistencies and contradictions (Pirie, Reference Pirie2013). Especially the plurality among indigenous peoples’ realities and views indicates differences and contradictions between and also within communities; by contrast, the nature of collective claims and the pan-indigenous movement promise connections and commonalities. The chosen approach also lends itself to trigger or influence normative change and can assume an enabling function in the sense of translating indigenous demands into legal claims or, as Goodale puts it, ‘transform the framework through which the idea of human rights itself is understood’ (Reference Goodale, Goodale and Merry2007, p. 4).

In yet a different manner, legal-anthropological approaches can be used to reveal marginalisation, as they focus on identifying the over-looked and singling out the unrepresented (Dresch and James, Reference Dresch, James, Dresch, James and Parkin2000). Thereby, the approach allows examination of how norms are appropriated or vernacularised in particular contexts (Merry, Reference Merry2006b) and serves to explain the impacts of international law (Merry, Reference Merry2006a). Nevertheless, norms appropriation includes not only individual leaders or decision-making bodies, but also indigenous peoples’ rules, customs and traditions, which hybridise with the existing hegemonic order, often inspired by post-colonial standard setting, but also by international indigenous standards that were framed by the indigenous peoples movement. The term interlegality (de Sousa Santos, Reference de Sousa Santos1995) has been used to illustrate such space, which describes the interactions of both legal spheres going beyond mere co-existence. In a similar fashion, indigenisation describes concepts and norms that are contextualised in cultural practices (Merry, Reference Merry2006c). In this paper, it is critically observed to what extent the law actually assumes such a role, which presupposes indigenous peoples’ active participation in its shaping opposed to camouflaging elites and power (Comaroff and Comaroff, Reference Comaroff and Comaroff2008).

In the Bolivian context, questions of indigenisation and indigeneity take a particular form as power struggles not only exist between indigenous and non-indigenous populations, but are of an intra-indigenous nature. Evo Morales Ayma's government represents the country's highlands/Andes and with it Quechua and Aymara people, while the country's lowland people including Guaraní communities hardly occupy politically important positions. Such asymmetries materialise in extractive policies in the gas sector, where lowland people are most affected, whereas the country's Andean capital takes considerable economic benefit. In fact, it was noted elsewhere that extraction is based on a system of cultural differences and racialised patterns of oppression (Fabricant and Postero, Reference Fabricant and Postero2015). That way, inequalities are enhanced between different indigenous groups in a context of territorial claims and fights for natural resources. It could also be argued that indigenous lowland groups are excluded in light of a national indigenous culture (Canessa, Reference Canessa2014).

Even the new Constitution was subjected to criticism based on its Aymara-centric character (Albró, Reference Albró2010) and the paradox of new exclusions (Toranzo Roca, Reference Toranzo, Crabtree and Whitehead2008). This might be attributed to the complexities of integrating thirty-six indigenous groups and subgroups into one single legal language. The ‘campesino’ character of the very definition of indigenous peoples in the Bolivian context demonstrates difficulties in opening the legal definition for urban populations. However, significant difficulties arise in practice where indigenous peoples as rights holders can make legal claims that might conflict with community members. This is also reflected in laws and policies that are drafted in the country's capital depriving indigenous groups from their right to participate in the drafting and legislative process as stipulated in UNDRIPS: remote communities might not have accessed urban spaces of negotiation and law-making due to lacking accessibility, resources and infrastructure-related reasons. Similarly, systemic difficulties including language and education barriers create distance and hence inequalities in the law-making, prior-consultation processes (Eichler, Reference Eichler2016) and constitutional-drafting processes that underlie the entire legal apparatus without reflecting some form of intentional policies of exclusion. At the international level, by contrast, indigenous peoples’ active engagement and contributions in the drafting process of UNDRIPS are considered some of its main successes (Willemsen Diaz, Reference Willemsen, Charters and Stavenhagen2009). The following chapters shed new light on such paradoxes in the way indigenous peoples shape global norms and how this is being played out in current conflicts exemplified by the TIPNIS issue.

3 Prior consultation in Bolivia and the influence of international law

Internationally, Bolivia became known as a role model for indigenous peoples’ identity and rights when Evo Morales assumed power in 2006 and the new Constitution was adopted in 2009. Subsequently, UNDRIPS became legally binding once it was incorporated into the national legal order through laws and regulations. The influence of international legal standards also materialised in other laws: both the hydrocarbon law and the accompanying regulationFootnote ¹⁰ make explicit references to international standards and accommodate key components of consultation processes, including its legally binding nature, appropriateness, participation, transparency, comprehensiveness and good faith (Art. 115, hydrocarbon law; Art. 4, regulation). In accordance with international law, the prior character of the process was stipulated in relation to various measures (Arts 115(a), (b), hydrocarbon law; Arts 14–15, regulation) as well as the objective of reaching indigenous peoples’ agreement or consent (Art. 115, hydrocarbon law; Considerations, regulation). Yet, the latter is seriously undermined by another provision which allows processes that finalise without final agreement to be decided in the ‘best national interest’ (Art. 116, hydrocarbon law); such contradictions reveal the active contributions of different parties in the drafting process (Muguerza, Reference Muguerza and Martínez2011) and resemble the complexities inherent in UNDRIPS, which reserves exemptions from indigenous rights as determined by law and where states’ territorial integrity or political unity is at stake.

On the bright side, law and regulation contain extensive references to maintaining indigenous peoples’ own decision-making in accordance with customs and traditions just as proclaimed in UNDRIPS. One of the cornerstones of the declaration is the respect for indigenous peoples’ cultural rights, self-determined development and self-determination, including the right to practise cultural traditions and customs in the context of their representative institutions and consultation processes (Wiessner, Reference Wiessner2011; Anaya, Reference Anaya, Charters and Stavenhagen2009; Regino Montes and Torres Cisneros, Reference Regino Montes, Torres Cisneros, Charters and Stavenhagen2009): indeed, the recognition and protection of indigenous peoples’ customs and traditions run through the entire declaration as a transversal principle. Similarly, the regulation on prior consultation in Bolivia requires consultation processes to be representative in the sense that indigenous peoples’ representative decision-making entities, forms of organisation as well as customs and traditions need be respected; in an even further-reaching way, it stipulates rules that guarantee the independence (Art. 4, regulation). Namely, it rules out any interference, intrusion or influence on indigenous organisations’ internal affairs (Art. 4, regulation). International obligations as to respecting and recognising indigenous customs and traditions are given due regard here: indigenous organisations and competent authorities are not only to be recognised at all levels (local, regional, departmental, national); the transversal principle of respecting territoriality, customs and traditions is particularly mentioned in that regard (Art. 6, regulation). Such progressive developments in laws and regulations were accompanied by judgments issued by the Bolivian Constitutional Court that supported compliance with international human rights standards and their integration into the Bolivian judicial legal orderFootnote ¹¹ and the constitutional block including the human rights catalogue.Footnote ¹² In a more recent judgment, the importance of indigenous organisational structures is reaffirmed while attributing to them the power and competences to apply their own norms where conflicts arise (Lenzerini, Reference Lenzerini2014).Footnote ¹³

Despite its promising beginnings, the newly established indigenous rights system was increasingly undermined in the course of Morales's three terms of office. This becomes particularly visible in the way indigenous peoples’ rights and prior-consultation regimes are framed in existing laws and policies. In 2014, such rights came under threat when a mining law was adopted criminalising public protest and allowing resource exploration without prior consultation. Indigenous peoples’ opposition was specifically strong, since affected populations had been excluded from the drafting and negotiation process of the law and led to the convening of two social summits in the Bolivian highlands and lowlands (Andreucci and Radhuber, Reference Andreucci and Radhuber2015). Again, the law declared natural resources as a strategy and in the public interest for Bolivia's development, and thereby denied indigenous peoples’ final say in the consultation process ruling out prior consent (Art. 208, mining law).Footnote ¹⁴ More controversies were caused as the state ceased to be the main actor in mining activities and provided (foreign) mining companies with considerable protection from the state (Robb et al., Reference Robb2015). Similar developments in terms of diminishing indigenous rights guarantees are expected in the hydrocarbon sector, where particularly Guaraní people were affected by extractive operations in natural reserves and decision-making mechanisms were ignored in recent years (Guidi, Reference Guidi2015).

4 The role of law on the ground: enhancing claims or instrumentalising exclusions?

Interestingly, legal discourses on the ground evolve around the recurrent theme of individual rights and women's rights or gender issues in particular. Female interviewees repeatedly pointed to the importance of women's rights that had helped them to legitimise leading positions and assuming political mandates in the past few years. Structural demographic factors had facilitated such changes: due to extreme dry seasons in the Bolivian Chaco area, male workers had been forced to leave the communities to find work elsewhere. This had produced political vacuums in the communities, which were rapidly filled by young indigenous women. Frequent references to international legal discourses and women's rights in the Bolivian legal order assisted in maintaining such positions, also when their husbands, sons and brothers returned to the communities during harvest season, as these interviews reveal:

Surprisingly, such changes were not reflected in or translated into the prior-consultation process and thereby into the collective-rights sphere. Rather, such development stayed in isolated ways at the community level, as an indigenous community leader recounted:

As these words suggest, it is precisely collective decision-making that does not sufficiently consider female leaders in negotiations, or alternatively imposes structural barriers that lead to their exclusion.

Such findings differ from existing studies on indigenous women's rights, which hold that patriarchal structures and power relations are to be blamed for limiting indigenous women's access to resources and political participation (Kuokkanen, Reference Kuokkanen2012). Alternatively, consistent violations of indigenous peoples’ collective rights show adverse consequences for indigenous women as individuals or individual groups (McKay and Benjamin, Reference McKay, Benjamin, Hartley, Joffe and Preston2010) in this case: women's newly conquered position is undermined under the umbrella of general participation gaps and democratic deficits in the consultation process, as the following paragraphs show. Conversely, women's active local voices could be used to strengthen collective claims and prevent elitism inherent in indigenous organisation that have been administering compensation payments for centuries. In fact, individual and collective rights, it could be advanced, are mutually interactive instead of competitive (Eichler, Reference Eichler2016; Corntassel and Holder, Reference Corntassel and Holder2002). It could even be argued that collective and individual rights regimes enter into dialogue, allowing both collective solidarity and individual autonomy (Freeman, Reference Freeman1995). Such complementarity also resembles indigenous societies and modus operandi much more than contradictions between both sets of rights: responsible, respectful and reciprocal communal conduct is often observed in that context (Sneider, Reference Sneider, Innes and Anderson2015; Ackerman and Klein, Reference Ackerman and Klein2000; Souza, Reference Souza, Schroeder, Wood and Haskett1997). In the present case, the nature of these processes does not find similar expression in encounters with the state and companies having implication not only for women's rights, but also for indigenous peoples’ rights to maintain and practise customs and traditions more generally.

In point of fact, other community members also pointed to the general limits of the law in ensuring inclusive processes. Indeed, deficiencies in accessing the process and its supervision seemed to exist in the implementation of the law between indigenous communities and state representatives at large, as the following extracts illustrate:

In all communities that the author visited, similar statements were made as to the relevance of law as an authority mechanism. While specific legal claims remained without substance, the fact that the state was legally obliged to consult the affected communities was clear for everyone. Partly based on their prior knowledge, indigenous advisers to the process and indigenous leaders were the only interviewees who actively used the human rights discourse to strengthen claims or signal violations, as the above shows. Furthermore, the statements reveal how authority was exercised through budgeting policies, implementation problems and failed monitoring as one of the key tasks in prior-consultation processes: thereby, the law was used to enforce authority (von Benda-Beckmann et al., Reference von Benda-Beckmann, von Benda-Beckmann and Griffiths2012) to presumably take sides with hydrocarbon companies in a continuing struggle of land and resources on indigenous territories. In that sense, collective-rights processes that are inherently political in the way control and power determine the distribution and say over natural resources assume depoliticised functions (McNeish, Reference McNeish2013) and monitor communities (Ferguson, Reference Ferguson1994) instead of companies and arbitrary practice.

5 The role of law in a current socio-environmental land conflict

One of the most current conflicts between the Bolivian government and indigenous communities evolves around the construction of a highway connecting the country's highlands and lowlands through the Amazonian biosphere and national park, Isiboro Sécure National Park and Indigenous Territory (TIPNIS). The conflict has been described as amounting to dangers of extinction for inhabiting indigenous people and even as a form of ethnocide that exemplified the irreversible disappearance, assimilation and expulsion of indigenous communities (Colque, Reference Colque2017); it concerned thirty-three indigenous Moxeño, Yuracaré and Chimane indigenous communities. While protest that arose in 2011 met with disproportionate violent responses (Bolivian Office of the Ombudsman, 2011) that eventually halted the construction and rendered the park ‘intangible’ (Postero, Reference Postero2017) or ‘untouchable’ (McCormick, Reference McCormick2017), the issue was taken up in summer 2016 and finalised in the legislative act No. 969, ‘Law on the Protection, Comprehensive and Sustainable Development of the Indigenous Territory and National Park Isiboro Sécure TIPNIS’, giving permission to the infrastructure project.

Additional pressures are exerted on the part of transnational companies in the gas sector that exercise explorative activities in or near the national park TIPNIS (Saavedra, Reference Saavedra2017). In fact, the TIPNIS conflict was described as an ‘emblematic case of ethno-ecologist resistance against extractive developmentalist policies’ (Lalander, Reference Lalander2017, p. 466) with a specific focus on the conflict between indigenous rights and state conduct. Again, indigenous communities represent differing if not contradicting agendas that characterise a complex interplay of interests, including development initiatives such as measures in the education and health sectors on the one hand and protection against environmental destruction and forced relocation on the other. Indigenous entities such as the highlands organisation, the National Council of Ayllus and Markas of Qullasuyu (Consejo Nacional de Ayllus y Markas del Qullasuyu, CONAMAQ), and the lowlands organisation, the Confederation of Indigenous Peoples of Bolivia (Confederación de Pueblos Indígenas de Bolivia, CIDOB), co-organised so-called indigenous marches for territory and dignity as a form of protest. Yet, current positions reveal great fragmentations in the initial collective struggle.

CIDOB's new President Pedro Vare stated unequivocally: ‘Our communities need development: we are not animals that only live off nature or like simple birds’ (Periódico Digital ERBOL, 2017, first paragraph). Similarly, Guaraní Chief Justa Cabrera indicated two years after the consultations that she would lead the process in a new direction in the name of the entirety of Guaraní organisations (Buttkereit, Reference Buttkereit2014). Indeed, the TIPNIS case is full of contrasts reflecting the government's efforts to implement its development plans and adverse conduct impacting on indigenous peoples’ lives and territories (Postero, Reference Postero2017). At the same time, the case becomes a symbolic form of internal colonisation involving powerful highland groups that settled in the lowlands to grow coca and deforested lands in the TIPNIS area (Paz, Reference Paz2012). Evo Morales also gained a significant role in the conflict due to his former position as the leader of a powerful Cocalero organisation that has considerable interests in acquiring new territories: the coca-growing economy was accompanied by economic as well as social, political and cultural assimilation (Colque, Reference Colque2017) of indigenous identities, with a dispossessing effect. Critics even consider his and his government's treatment of lowland peoples in the TIPNIS conflict a form of internal colonialism, resulting in weakening of the indigenous movement (Canessa, Reference Canessa2014).

It is this scenario in which legal-protection mechanisms become essential for micro-level politics and indigenous lowland communities. Similarly to the previously described case, gender relations too are played out differently in relation to encounters with the state. Namely, Evo Morales openly encouraged highland people to seduce indigenous lowland women to get their support (Postero, Reference Postero2017) in order to gain powerful voices in the consultation, but also regarding the land-titling processes: colonisation clearly adopts a gender dimension as relationships with female indigenous community members come with land rights (Canessa, Reference Canessa2012a), reflecting the practice of conquest since the colonial period (Canessa, Reference Canessa2012b). This, in turn, also meant that collective resistance processes equally stood for gender-related rights and female empowerment in participation mechanisms: in fact, several female chiefs took a lead in the marches of protest, embodying a particularly strong form of female resistance as an elementary pillar of the collective-rights framework.

Beyond gender-related issues, TIPNIS made serious impacts on the community level, where members maintain diverse positions vis-à-vis natural-resource extraction revealing stronger or respective weaker associations with the outside world and, relatedly, trade and market mechanisms (McNeish, Reference McNeish2013). To some extent, this explains communities’ different use of the law: while UNDRIPS was adopted to advance indigenous peoples’ rights protection, participation mechanisms are used to enhance popular support and legitimacy of a controversial infrastructure project in this case. In that sense, particular groups in the communities and the state use universally recognised legal mechanisms to implement certain agendas. It could be argued that competing demands that existed in terms of territory, nature and ultimately resource sovereignty in the TIPNIS case (Laing, Reference Laing2015) were harmonised and smoothed out to the detriment of community members opposing the project. Stronger concerns were voiced by the Bolivian Office of the Ombudsman, according to which the consultation with the communities was implemented in a colonialist and unilateral way and violated the constitutional requirement of reaching all parties’ consensus (Achtenberg, Reference Achtenberg2012).

Similarly to the case of the Guaraní people's participation in a prior-consultation case, the TIPNIS conflict reveals how a globally promoted legal regime finds expression in local contexts, yet fails to reach the objective of obtaining FPIC and to be built on genuine dialogue respecting the principle of good faith. Law thereby converts into a disempowering tool that arguably considers majority interests while pretending to promote equality-enhancing and asymmetry-erasing functions. Cultural/ethnic rights enter into direct legal disputes with social and distributional rights: natural-resource extraction offers economic benefits for the population at large, yet violates minorities’ cultural and subsistence claims. In that sense, critical voices consider the TIPNIS consultation a mere dispute-management mechanism that potentially exacerbates conflict rather than solving it while selecting voices to be considered (Fontana and Grugel, Reference Fontana and Grugel2016). Thereby, ‘UNDRIPS on the ground’ develops a somewhat contradictory logic according to which indigenous peoples should be protected from suffering historic injustices in terms of their colonisation and dispossession of resources and lands. In addition, indigenous peoples’ social structures, traditions and decision-making practice are not respected in accordance with the UNDRIPS framework; rather, such structures are fragmented and played off against each other: during the TIPNIS consultation, individual communities were considered in negotiations rather than local and regional indigenous institutions, and hence violated the institutional set-up of indigenous organisations (Colque, Reference Colque2017).

Another legal mechanism that catalyses indigenous responses to the law is the protective-areas regime, which has been abolished by several presidential decrees and has resulted in eleven out of twenty-two areas being used for oil and gas concessions according to Bolivia's Documentation and Information Centre (Centro de Documentación e Información Bolivia) – more than one-third in the case of TIPNIS (Lalander, Reference Lalander2017). That way, lowland indigenous peoples’ marches and other peaceful means of confronting failed legal regimes could be regarded as desperate attempts to establish internal safeguarding mechanisms to protect not only social, cultural and political rights, but also environmental interests. Such mechanisms further or prolong Evo Morales's promises towards Pachamama or Mother Earth on the ground that are no longer upheld by the government in past and current policies or national discourses (Postero, Reference Postero, Cooper, Hunefeldt and Acosta2013).

In light of current constitutional violations and failed international human rights commitments, indigenous peoples’ mobilisations, protests and road blocks convert into a form of quasi-judicial constitutional safeguard while assuming watchdog functions regarding state policies and corporate conduct. In the resolution (001/2017) of the 12^th Extraordinary Meeting of Indigenous Nations and Peoples of the TIPNIS (25–28 August 2017) that calls on international institutions to act, indigenous TIPNIS communities explicitly evoke the concepts ‘ethnocide’ and ‘biocide’ in the context of the government's approval of the highway project – a last attempt to use international law as an urgent safeguarding mechanism. However, linking indigenous demands with environmental justice concerns, also on the part of environmentalists and NGOs (Fabricant and Postero, Reference Fabricant and Posteroforthcoming), comes with the danger of wrongly attributed agency: the Morales government has repeatedly seen NGOs and environmentalist organisations as the main forces behind indigenous mobilisations absolving the latter from genuine decision-making capacities.

6 Lessons learnt from legal practice in indigenous communities

Existing legal instruments including ILO C169 and UNDRIPS do little to specify how prior consultation could be designed to achieve more participation and inclusiveness, let alone setting minimum standards for the budget or location of such processes. This is left to the states in the implementation process at the national level, including detailed laws, policies and regulations. Another role could be played by international and regional jurisprudence. Yet, present institutions adopted a rather conservative or cautious stance towards defining obligations that go beyond respecting indigenous peoples’ customs and traditions and representative authorities in decision-making processes with the state. The rather broad terms of legal provisions suggest that individual interests and private gain could be isolated from collective-rights debates (Masaki, Reference Masaki2010) at the same time as participating actors are considered black boxes (Luhmann, Reference Luhmann1984) that first and foremost represent a common good (Thede, Reference Thede2011). While international human rights mechanisms point at the problems that stem from selecting leaders for negotiations with state and companies,Footnote ¹⁵ specific suggestions on prevention are not made. In a similar vein, the Inter-American Court of Human Rights (IACtHR, 2012) condemns bribing practices or negotiations with individual community members that could potentially subvert the social cohesion in the communities; it further states that representative issues should be decided by the communities instead of the states, but fails to specify detailed obligations in that regard.Footnote ¹⁶

However, issues of representation and indigenous internal decision-makers with mandates to negotiate with externals are decisive for the legal-implementation process. This includes mechanisms that translate local dynamics and leadership that have developed at intra-indigenous levels to indigenous-state encounters achieving a form of genuine interlegality (de Sousa Santos, Reference de Sousa Santos1995). Indeed, multiple jurisdictional legal hierarchies are critical for cultural identities to become pluralised (Benhabib, Reference Behabib2002); in such encounters, the recognition of legal systems is fundamental. In the prior-consultation process, indigenous elites are explicitly supported by the state that enhances corruptive practices and bribery, especially in light of the high compensation payments that are administered by leaders who hold non-remunerated mandates. In fact, indigenous decision-making institutions were never meant to function as financial administration units; instead, they were originally established to reflect and transmit decisions taken at the community level – Guaraní Mburuvichereta (indigenous leaders) merely served as spokespersons for their communities (Postero, Reference Postero2007; Hirsch, Reference Hirsch and Miller1999). In the current setting, where leaders meet with state representatives, controlling functions taken by other community members in local assemblies are largely non-existent. This alludes to the earlier described democratic deficit in the preceding chapters. Namely, women and elderly councils are regarded as important counterweights in assemblies that were originally dominated by male, middle-aged leaders. Similar practice is shown in the TIPNIS conflict, where female chiefs take a lead in demanding collective-rights guarantees for their communities.

In light of these deficiencies in indigenous encounters with the state through prior-consultation processes, the author proposes a number of positive measures that could be used to clarify and more clearly define the state's legal obligations towards indigenous peoples in the extractive and infrastructure sectors. First, states should be encouraged to guarantee more inclusive assemblies by adjusting budgets to allow more participants, locations to increase accessibility and settings of meetings, such as by ensuring bilingual negotiations. Further, other related availability such as female household obligations and agricultural labour-related availability should be included in the planning process of the consultation. Another problem inherent in the current system is the uneven distribution of ‘participation spots’ among the communities, which leads to uninformed communities in some cases. This could be mainly attributed to the fact that a small number of selected leaders on the part of the state invites family members and other acquaintances instead of other communities who are left out as a consequence. It is fundamental to include more indigenous representatives from different communities, thereby having a wider geographical reach: the outlined planning process in the regulation should explicitly include references to geographical scope and quantities that are more representative. At the same time, special care should be taken in convening unambiguous consultation processes that do not include official and ‘shadow consultations’ with selective members, but attempt to achieve universal participation among affected communities and representatives.

Second, existing decision-making mandates should be permanently financially and institutionally supported to prevent bribing and corruptive practices: in the current situation, participation is funded on an ad-hoc basis; not even meetings among participants between official assemblies with the state are facilitated. Similarly, the system of indigenous advisers lacks sustainability and turns this into a highly unattractive, short-term consultancy: indigenous lawyers and engineers from the communities prefer finding jobs on the city. Therefore, the existing law would need to be extended, going beyond ‘respecting customs and traditions’, as these can only be upheld in large-scale assemblies by means of explicit support. In fact, the current law and regulation entail mainly negative obligations, yet the pure scale of the process in terms of participants, transport, accommodation, food, etc. requires additional measures in addition to expert advice and language requirements that would need accompanying support. Additionally, the TIPNIS case demonstrates the need that comes with integrating isolated communities into the process, requiring additional means of transport to and from remote communities, but also from indigenous headquarters in distanced cities.

Third, the rights granting the role of the state would need to be reaffirmed, separating it from purely corporate interests. To include socio-environmental monitoring units of the Hydrocarbons and Energy Ministry (Ministerio de Hidrocarburos y Energía, MHE) would not be sufficient in that regard: instead, different ministries, including culture, indigenous affairs and the environment, should be attributed key roles in the existing law, which was elaborated on for the hydrocarbon sector in particular. Different parts of the law attribute a role to the MHE in the prior-consultation process, including the final say whenever negotiations fail. Other ministries should be ascribed different tasks throughout the consultation process and especially the final decision, which could enhance bona fide and the principle of consent in the Bolivian context. In the case of the mega infrastructure project TIPNIS, strong regional interests consisting of connecting different Latin American states are at stake; such strong economic lobbies should require additional sensitivity and measures on the part of the state when dealing with human rights and environmental concerns at the community level.

Fourth, further institutional support should be allowed to decrease asymmetries created by the law: apart from funding and allowing indigenous advisers, civil society, legal and engineering advice could play an essential role in ensuring that expert knowledge is transmitted to all affected communities prior to, during and in the aftermath of the consultation process. The communities repeatedly noted the level of ‘unpreparedness’ and lack of understanding among community members, but also local leaders. At present, only companies are allowed to participate as official parties to the process according to law and regulation. Throughout the TIPNIS negotiations, observers, NGOs and international advisers were explicitly prevented from participating in the prior-consultation process; indigenous communities were not allowed to seek such advice despite their decision-making powers and self-determination by law. In other jurisdictions, capacity-building grants and subsidised expert fees for community groups have become part and parcel of the law in addition to prior-consultation procedures. However, in the case at hand, experts’ roles in prior-consultation processes remain to be institutionalised and to become transversal issues in negotiations with the state and companies.

Finally, to address one of the core deficiencies as elaborated on above, women's newly acquired positions would also need to be institutionally translated into prior consultations. This could include quota of women in the law or explicit invitations to female representatives, or, alternatively, subelections at a local level in accordance with traditional decision-making structures to ensure female representation throughout the consultation process. In the first planning meeting of the process, female mandate holders should be specifically invited to pronounce themselves on these issues and to reserve ‘participation spots’ for their peers. Again, the TIPNIS issue illustrated how prominent female figures could not reach official meetings and could solely use political powers throughout the protests and mobilisations without any impact on the official result of decision-making processes.