Inclusion and Representation: An Interview with Antonio Bernales (2015)

Reflections from Practice Series - No. 02

ACCESS Facility shares from time to time insights on company-community dialogue and rights-compatible, interest-based conflict resolution from senior practitioners who are part of the Community of Practice hosted by ACCESS.

Inclusion and Representation: An Interview with Antonio Bernales

Antonio Bernales is Executive Director, lead consultant and founder of Futuro Sostenible, a Peruvian non-profit organization dedicated to research, training and assistance in environmental negotiation, consensus building and mediation processes. He has been an Independent mediator and facilitator since 1990, Consultant for the World Bank’s Compliance Advisor Ombudsman (CAO) since 2005, and member of the Democratic Dialogue Project Community of Practice of the United Nations Development Program. He completed a PhD in sustainable development studies, masters degrees in development planning and public finance administration, and a BSc in fisheries engineering.

What is one of the more significant challenges or dilemmas you face when you are facilitating company-community dialogue?

Setting up negotiations to ensure fair inclusion and representation.

Lots of my work involves conversations among companies, communities and governments about access to and use of natural resources in Amazonia and the Andes. Indigenous and non-indigenous peoples living along rivers and valleys rely on such resources for their survival. A key challenge is to ensure fair inclusion and representation of those who are most like to be affected by a new project, like a mine or timber development. Negotiation processes tend to include those geographically close to a company’s activities. But projects may also impact other communities further away. You find people living along access roads or downstream waterways, for example. They are often neglected, despite also feeling the practical, economic, social and cultural effects of a new company project.

Women and youth may not be well represented. Traditionally, men hold most legal title to land and are therefore in a much better position. This gender dimension of land tenure is certainly on Peru’s current agenda, but changing these long-standing legal and culturally-rooted practices will take time.

We also have ribereños – non-indigenous people who live on the banks of the rivers in the lower basin of Amazonia and who face many of the same challenges as indigenous peoples. When it comes to company or government-driven community consultation, ribereños don’t enjoy the same formal recognition as their indigenous counterparts, who are better protected by specific laws. In fact, some ribereños are going as far as trying to have themselves declared indigenous to increase their bargaining power with government.

What is an example of this challenge?

The ongoing and fragmented dispute between the Tintaya copper mine, government and the people in Espinar Province of Peru.

There are long-standing allegations that the mine caused metal pollution of soil and water in the area, harming animal and human health. The mine has changed hands over the past decades, from the government to different private companies.

Due to the disputes and lack of trust between parties, three different negotiation processes have taken place around this mine. The Tintaya Roundtable originated through the intervention of the Oxfam ombudsman for mining, responding to complaints by six communities from Rio Salado. Tintaya roundtable issues included loss of land due to government’s expropriation and further company acquisitions, human rights violations and environmental issues. In parallel, Cañipia sub-basin communities wanted to conduct their own direct negotiations with the company, being affected by the building of a new dam. Only the dam affected Cañipia. There were also historical rivalries between communities that kept them apart. Then local government also negotiated its own agreement with the company, focusing on potential revenues sharing that the mine could generate. They wanted direct benefit sharing of mine revenues through an investment fund coming from 3% of company net annual income. So you had all these diverse groups and interests, ranging from human rights and livelihoods to environmental issues and revenue sharing.

Inclusion and representation in these types of multi-party disputes becomes highly complex. There are diverse levels of representation required for each process. Process design and governance also differ among them. Problems arise when high-level negotiations exclude the interests of those directly impacted by company activities. Conversely, smaller and more focused negotiation settings can’t always address the broader expectations and interests of larger constituencies, say for example at provincial level, who are indirectly impacted.

How did this impact the parties’ ability to achieve rights-compatible, interest-based outcomes?

Good outcomes were achieved for some communities, but new challenges arose.

The Tintaya Mesa de dialogue had a positive outcome for communities and the company. Some issues that were addressed concerned land compensation, environmental protection, human rights issues, and the community’s sustainable development. In fact, the case is often presented as a good practice example.

Challenges all the same arose concerning the achievement of sustainable development outcomes at a provincial scale. A specific dispute arose between the company and provincial government around the levels of revenue sharing that the project would generate. At the same time, government entities and a foreign university conducted environmental studies, which resulted in renewed concerns about water pollution and animal health. The escalating conflict now included the national government. Violence ensued with loss of human life, so national government launched a large multi stakeholder Mesa de diálogo to try to stabilise the situation.

The case is far from being resolved, because there is little trust among the parties. Government is facing a legal challenge seeking to declare an environmental state of emergency in the area. Peasant inhabitants of Espinar, who belongs to the K’ana nation, have requested to be recognized as indigenous people, to improve their standing in the dialogues. This adds a new dimension to the conflict.

So the final outcome of the Tintaya case is still an open-ended, evolving question. One of the lesson as a facilitator is that in such a context, you really need to dig deeper into the history and local culture to fully appreciate possible scenarios and emergent dynamics of the conflict. This has to be done as part of the process with all parties.

Written by Lindie Botha based on an interview by Pablo Lumerman. It may be cited as

Lindie Botha with Pablo Lumerman (2015). Inclusion and Representation: Interview with Antonio Bernales. Reflections from Practice Series No. 02 (B. Ganson, ed.). The Hague: ACCESS Facility.

It may be freely copied and distributed with proper attribution.