In the 1990s, the oil and gas industry was privatized in Argentina. This in combination with the country’s high dependence on fossil fuels (90% of the energy matrix), the over-exploitation of fossil fuel deposits, and the lack of viable alternatives helped lead to one of the country’s worst fuel crises. Since the middle of the last decade Argentina has had to import fuel to the tune of billions of dollars in order to meet the country’s needs.
In the last few years the news that the country has huge reserves of unconventional fossil fuels has spurred the government to bring in legal reforms that pave the way for shale oil and gas extraction.The reforms also push for the renewed extraction of mature deposits (that is, secondary and tertiary extractionof depleted or low-pressure deposits). The idea is not only to end the period of fuel shortage in the country, but to generate enough for export.
This new energy policy has worsened the conflict between the state and social organizations and indigenous Mapuche communities. They are protesting the socio-environmental impacts of extractive activities, and the presence of corporations like Chevron: multinationals are increasingly focusing onArgentina to exploit shale gas and oilthrough hydraulic fracturing or fracking.
This front of resistance has brought a rise in denouncements of harassment and criminalization of protesters, state tactics intended to censure and silence those who question the state’s new energy policy.
One case that has become highly charged in recent months is that of Relmu Ñamku, an indigenous Mapuche woman from the Winkul Newen community in Neuquén province, who is being indicted for defending her community against a corporation trying to expand its extractive activities in Mapuche territory.
Relmu is accused of attempted murder under Argentina’s anti-terrorist law, and if found guilty, she could face a 15 year prison sentence. The trial began on Monday October 26 in the city of Zapala in Neuquén and will conclude on November 5, when a jury will decide if she is innocent or guilty. A guilty verdict in this case would not only bean act of state injustice against Relmu and her family, but wouldalso set a dangerous precedent for anyone opposing extractive projects in Argentina.
Relmu Ñamku and the alleged crime
Relmu finds herself on the frontline of the criminalization of protest in Argentina.
Her community, Winkul Newen, is located in the central zone of the Neuquén province in Patagonia. In an interview with the Democracy Center she told us that oil and mineral exploitation are the core activities in the area: “Our community has been resisting anincreaseinfossil fuel extraction activities for more than ten years, something which has seen us in various conflicts, mainly with the companies, due to the fact that neither the provincial nor national government will guaranteeus our rights as Mapuche people.”
In fact, according to Relmu, the Argentine state is the first to infringe these collective rights when it grants fossil fuel concessions in Mapuche territory without any form of consent – violating the right to a prior, free and informed consultation, upheld by the Argentinean constitution;the Convention 169 of the International Labor Organization; and the United Nations Declaration on the Rights of Indigenous Peoples.
In reality, even if Argentina recognizes in its Constitution and laws the international rights framework of indigenous peoples, these are not applied or enforced. There are reports that confirm that socio-environmental conflicts in indigenous communities have increased: indigenous territories often contain valuable natural resources like timber, water, minerals, or fossil fuels, and the impacts of extraction are felt by local communities.
The people of Winkul Newen have resisted many attempts to expand fossil fuel extraction in their territory, which is the location of the Portezuelo Norte deposit, containing several conventional oil and gas wells. According to Relmu, the extractive activities in the area have caused water, soil and air pollution, and most definitely are a health risk for the community. For these reasons Winkul Newen has opposed extraction operations – resulting in the use of force and legal actions by companies and state authorities to attempt to evict the community, above all occurring in 2012. During one forced eviction attempt of Winkul Newen in 2012, women sprayed their bodies with gasoline and threatened to set themselves alight to avoid being forcefully evicted.
Then, on December 28, 2012, a justice official named Verónica Pelayes came to the area accompanied by police and members of the U.S.-based Apache Corporation (today Yacimientos del Sur, a subsidiary of YPF). They presented the community with an eviction order and tried to move into the community with the help of bulldozers. The community defended itself with whatever it could. Unfortunately, amid the resistance, Pelayes suffered injuries after being hit in the face with a stone, the incident which Relmu is held responsible for.
A few days after the incident, the community issued a public apology to Verónica Pelayes, in which they say that she is another victim of the conflict that the government refuses to resolve. But the punitive process has continued.
According to Relmu, the worst part of this story is that the prosecution changed the original charge from serious bodily harm to attempted homicide and aggravated damages without any justification. The new charge could result in 15 years of imprisonment. In Relmu’s words: “This case was initiated on the charge of injuries, and without any new evidence on record it was reconfigured to the maximum charge –attempted murder.”
Also standing trial are Martín Maliqueo (Community Winkul Newen) and Mauricio Rain (Community Wiñoy Folil), who were present that day during the forced eviction attempt and are accused of aggravated damages.
The Anti-Terrorist Law and the Criminalization of Social Protest
Relmu’s case is being processed under Law 26.734, known as the Anti-Terrorist Law, which has been strongly criticized in Argentina. It was originally approved as a reform to the penal code in 2007 to avoid the financing of international terrorism through money laundering, following the recommendations of the Financial Action Group against money laundering – GAFI (set up in 1989 by the G7). The law was then modified in December of 2011, when the Argentine legislature incorporated a regulation into the penal code which doubled the penalties for all crimes committed “with the aim of terrorizing the population” or which “oblige the public authorities to perform, or abstain from performing, an act.”
These legal reforms put civil society on guard, with fears that the law could be used to criminalize social protest.
Even though the government denied that the law had thegoal of criminalization of protest, in February of 2012 hundreds of people from social and political organizations, unions, and human rights groups took to the streets of Buenos Aires demanding the repeal of the law. In a pronouncement read out loud at the march, the organizations explained that the changes to the law broadened the scope of the criminalization of protest and allowed harsh penalties to be applied to individuals or organizations that question or oppose state policies.
The activists said that “The criminalization of social protest has deepened to the point that there is no worker’s struggle, no student, environmental, social or political resistance that doesn’t end in the initiation of legal proceedings against the most visible activists of each struggle.” They pointed out that the law “is framed in the approval and application of Anti-Terrorist legislation on a continental level, aimed at the persecution and criminalization of social struggles,” and that it “provokes terror and constitutes a tool for state persecution of resistance both in the judicial and symbolic senses.”
Many have spoken out against the law, including the Nobel Peace Prize winner, Adolfo Pérez Esquivel, who criticized the law both before and after its approval, labeling it anti-democratic. He believes that the law is about controlling social movements. Esquivel also said that it “…doesn’t clarify who is and who isn’t a terrorist…” and that for that reason “…indigenous peoples who fight for their territorial right can be prosecuted, so can workers fighting for labor rights, that’s to say it’s a law that violates human rights.”
The Nobel winner also spoke out about Relmu’s case in a public letter. According to Esquivel, it would be a huge step backward to apply the anti-terrorist law to the case of Winkul Newen in a country which recognizes rights of minorities: “We hope that our brothers can in the end receive justice without any type of discrimination and that their territorial and cultural rights, and their right to be consulted, are respected.”
Before the trial began, Esquivel presented an Amicus Curiae to the court petitioning to be able to participate in the legal process, but it was rejected. There are many organizations supporting Relmu before and during her trial, such as Amnesty International, which is uploading daily updates from the court.
Relmu says that her case is an example of how the judicial system is used in favor of powerful interests and against the poorest and most marginalized communities, especially highlighted by the fact that she is charged with maximum penalties. In contrast, when the community filed formal complaints against Apache Corporation for aggression towards community members by the company’s contracted security, the prosecutors didn’t investigate, and eventually the cases lapsed. For Relmu the discrimination implicit in this is obvious: “The interests of the multinationals and the state in petrol exploitation come before the complaints of community members, as in our case. That’s why we say there is discrimination. Maybe if we were sons and daughters of rich people it would be different, but we’re poor, we’re indigenous, and I’m a woman, and so the full force of the law comes down upon us.” This injustice is the mark of a racist, extractivist and patriarchal state.
The Fracking Boom opens new battle fronts and increases criminalization
Many countries in Latin America have strong social movements opposing state and private mining projects, fossil fuel extraction, monoculture agriculture and so on, and calling for the protection of the environment, water and life. Argentina is no exception. But the fracking fever that is now a basis of the Argentine government’s new energy policy threatens to worsen the tensions between the state and social organizations. The criminalization of protest that Relmu is facing is an example of this.
According to a report by the US Energy Information Agency from 2013, Argentina occupies fourth place worldwide (behind Russia, the US and China) in proven reserves of shale oil, with 27 billion barrels. It also has the second largest reserve of shale gas worldwide, with 802 trillion cubic feet –second only to China. The country has 30 times more unconventional than conventional gas resources and nine times more unconventional oil than conventional. The majority of these shale resources are found in the Vaca Muerta formation in Neuquén, which in a few years has converted the country into a potential energy giant. Argentina hopes to soon produce enough fuel to supply both domestic and export markets.
In an interview with the Democracy Center, Hernán Scandizzo of the ObservatorioPetrolero Sur –OPSUR, said that “The main discourse was around national energy self-sufficiency. The government presented a strategic plan to reach that, principally based on unconventionals and the regenerating of mature conventional deposits.”
In order to smooth the way towards unconventional fuels the Argentine state had to modify laws and make a series of important agreements. In May 2012 the government approved the Hydrocarbon Sovereignty Law which put in place the legal underpinningsof the new national energy policy framework.It also allowed the state to expropriate the 51% of YPF’s shares that was in the hands of Repsol.
The next year, in June 2013, the government’s presidential decree 929 offered a series of benefits to companies investing more than a billion dollars in shale deposits. A few days later the government, via YPF, signed an agreement with US company Chevron to develop the Vaca Muerta shale formation.
Finally, in October 2014, a new hydrocarbon law was approved focusing on shale exploitation –amongst other benefits, it allows companies to maintain concessions for up to 45 years, with the possibility of further renewal.
Argentina’s policies around the promotion of unconventional fossil fuels have not only permitted the entry and growth of corporations like Chevron, Total, Shell, ExxonMobil, Wintershall and others in the country, but have created, and worsened, a series of socio-environmental conflicts and resistance across Argentina.
One of the most important battle fronts is in Neuquén, where there is a history of struggle against extractivism due to 100 years’ worth of fossil fuel exploitation in the area. In 2013, in resistance to the new state energy policy, the ‘Neuquén Platform against Hydraulic Fracturing’ was formed – a coalition of diverse social organizations, including the Mapuche Confederation of Neuquén. The Platform rejects shale exploitation in the region but also calls for the protection of common natural goods and advocates for changes to the Argentine energy matrix.
On August 28th 2013 over 5,000 people attended a demonstration in Neuquén organized by the Platform against the agreement between YPF and Chevron which at that time was being endorsed by decree by the Neuquén provincial government. The police brutally repressed the march – rubber bullets and tear gas caused many injuries, and arrests were made. The next day 10,000 people took to the streets to protest against the police repression.
These demonstrations aimed to warn the population and the authorities about the environmental and social consequences of fracking, but they were ignored. In fact, the national government dismissed the marchers as ‘social misfits’, and continued their plans for fracking.In the following days three houses and a community hall in the Mapuche community of Campo Maripe were burned down. The community is in the Loma Campana area where the YPF-Chevron project is being developed. There was no investigation of the arson.
In 2014 came that which the social organizations had warned against: after the conclusion of a pilot project that saw 161 wells drilled across an area of 20km², YPF announced that the project with Chevron in Vaca Muerta would extend to cover an area of 395km², with more than 1,500 wells drilled and fracked.
For Relmu, this attitude on the part of the government is nothing new: “The state doesn’t enter into dialogue with vulnerable sectors of the population – such as indigenous peoples, landworkers, shanty dwellers, women and everyone excluded from the system. So the only route left open to us to make them hear our problems and our alarming situation is direct action.” Of course, this is resulting in repression and the criminalization of protest via the disproportionate use of penal law.
This repression is not only happening in Neuquén nor only to Mapuche communities, even though in effect the Mapuche are the most discriminated and criminalized sector. As Hernán Scandizzo of OPSUR explains, “In the 1990s the Mapuche organizations were those most fiercely opposing the exploitation of hydrocarbons in Neuquén, but with little support from other social movements. Today we are seeing a diversity of actors in this struggle.”
The resistance to hydraulic fracturing in Argentina has expanded to areas with little or no tradition of fossil fuel exploitation. Such is the case in the provinces of Rio Negro, Chubut and even in more urbanized areas of Entre Rios and Buenos Aires – the threat of fracking has opened up diverse spaces of opposition (with participation by rural and urban organizations, communities, smallholder farmers, and more), using tools ranging from legal tactics to direct action.
Campaigners have successfully used one legal tool that allows municipalities to ban fracking as a preventative measure to protect the environment, water, and health in their territories. There are now around 50 fracking-free municipalities in Argentina, mostly in Entre Ríos province, where there are a range of organizations and asambleas – grassroots assemblies – which pushed for the adoption of this legal tool. One of their centralwinning arguments was the imperative to protect the Guarani aquifer, one of the world’s largest reserves of fresh water, extending more than 1 million km² and covering territory in Argentina, Brazil, Paraguay and Uruguay. Studies suggest that the aquifer contains enough water to supply 100 litres per day for every one of the world’s inhabitants for 200 years.
Authorities have questioned the validity of this legal tool, seeking to weaken it, but also have already acted against the asambleas and groups seeking to protect the aquifer from fracking.
In August 2014 five activists were violently detained for blocking (with other people) four trucks transporting seismic testing equipment to Uruguay with the aim of finding oil beneath the Guarani aquifer. The crime they were charged with was hindering the movement of land transport, which carries a penalty of between 3 months and two years in prison – in spite of the fact that the protest did not affect the circulation of either public or general transport.
In February of this year when the legal processes against the activists were formalized, the asambleas spoke out: “…this case effectively criminalizes the right to social protest, one of the most important rights in a democracy. Through these types of actions the government is trying to silence citizen movements that demand that the state respect the fundamental rights of the people, rights that are recognised under the National Constitution and International Law. A legal case against social protest is a very strong attack against democracy; it is a way of trying to make us stay silent when crimes are committed against the Argentine people – which takes us back to periods of our history which we do not want to repeat.”
The activists were released without charge in the end – authorities could not prove they committed the alleged crime. Despite the charges being dropped, the arrests could still have a chilling effect on protest: in any type of direct action, activists can be arrested and charged under the anti-terrorist law. The asambleas have also called for the repeal of this law on many occasions, from pronouncements to public actions.
Chilling effect on resistance
Often, when the state and corporations act against the interests of local populations seeking to protect their water, environment and health, communities use dialogue and legal processes to defend themselves. However, if continuously ignored, the only recourse left open to them is direct action. This is the moment the state can use its laws to criminalize social protest as a tactic to defeat community resistance, and to set a precedent of what could happen to those who resist.
This is the heart of Relmu’s case. Nearly all the voices raised in solidarity with her coincide in that the outcome of this trial is vital because of the precedent it could set for justice in Argentina. For example, the Mapuche Confederation of Neuquén said in a statement that “a guilty verdict in this Mapuche case will have serious consequences and will mean a worsening in the quashing of our rights, which is coming from the government.” Or as Relmu herself said to us, “At the back of this case lies the aim of bringing a trial that will be used as an example to prevent other social struggles, not only by indigenous peoples, but also other citizens and groups who don’t feel represented by this state, which guarantees rights to multinationals and those in political and economic power, and in the process leaves millions of citizens undefended.”
The criminalization of protest is a strategy designed to create a paralyzing effect on those considering direct action as a last recourse to defend their rights, rights that are not guaranteed by the law or by the state.
And it’s a phenomenon that threatens to grow in Argentina, above all due to the current government’s extreme energy and pro-fracking policies, which as noted above have created new fronts of resistance around the country.
It’s not unique to Argentina – it’s becoming an endemic problem across Latin America. In Chile the Mapuche people are also being repressed under anti-terrorism laws, even more violently. In Peru the law not only exempts state law enforcement officers from responsibility if they kill activists during social and environmental conflicts, but also allows companies to contract with public state forces to protect corporate property and repress protests. In Colombia, there are laws which act in the favour of companies, facilitating the displacement of communities in extractive zones.
Latin America is the most dangerous place in the world for environmental and land rights defenders, who are killed with impunity by interests related to the state, and to multinationals. In 2014, three out of every four of these kinds of murders globally happened in Latin America – and half of those were murders of indigenous people.
This panorama shows that just as fossil fuel corporations are going to even more ecocidal extremes in search of oil and gas, political systems – including supposedly progressive ones – are going to even further extremes to repress communities who voice objection, violating their rights, polluting the environment, and worsening climate change.
In Argentina, as Relmu Ñamku and her compañeros are on trial for not allowing the expansion of fossil fuel extraction activities in their territory, the government is supporting fossil fuel corporations by maintaining the domestic price of a barrel of oil at $80, while the international price is at $50. This makes evident that laws and state actions that criminalize social protest are evolving at the same time as policies that increase fossil fuel extraction, especially of unconventionals.
For Hernán Scandizzo, expanding the fossil fuel frontier doesn’t solve Argentina’s energy crisis and instead creates more socio-environmental conflicts and human rights violations. He asserts that a true solution would include a transformation of the Argentine energy matrix, diversifying energy sources towards renewables in order to depend less upon fossil fuels; an evaluation of how and for what purpose energy is produced; and the democratization of the formation of energy policies with public participation.