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Prior consultation: An opportunity for life, respect and diversity

By Héctor Herrera, legal advisor, AIDA, @RJAColombia Colombia’s ethnic groups have decrees and laws that protect their cultural persity, that defend the individual and collective livelihood of these native and traditional peoples and communities. Article 6 of Convention No. 169 of the International Labour Organization (ILO) stipulates that indigenous peoples have the right to prior consultation. That means that they should participate in defining the measures that could have a direct impact on them, whether legislative (such as laws or decrees) or administrative (environmental permits for highways, dams, mines, oil wells, and the like). The negotiations should be carried out in good faith and with the goal of reaching agreements on all sides. This has become very important in Colombia, a multiethnic, multicultural, and diverse country. According to the Luis Ángel Arango Library, 65 indigenous languages in 12 language families are spoken in Colombia, of which 34 have less than one thousand speakers. Traditional Afro groups speak two different Creole languages. Yet all of these languages are in danger. Colombia also is extremely diverse in biological species globally, ranking first in birds, second in amphibians and butterflies, third in reptiles, and fourth in mammals, according to the Humboldt Institute. Colombian newspaper El Espectador reported 2011 data showing that 10% of all biodiversity is found on 1% of the planet’s surface. In Columbia, 29.8% of this is collective indigenous territory and 5% is collective traditional Afro territory. Understanding this, prior consultation emerges as an opportunity to protect the cultural and ethnic persity of Colombia and defend the inpidual and collective livelihood of the many native and traditional peoples and communities. It is, too, an opportunity to protect the ecosystems that these ethnic groups inhabit as well as to protect life in all its forms. This does not mean forcing anybody to adopt a conservation, extractive, or development model.  It simply means making sure that an effective space is provided for clear, honest, and intercultural dialogue with ethnic groups on measures that could affect them, whether legislative or administrative measures or national laws or extractive mining projects. This is completely in line with the stipulations of Article 6 of Convention No. 169 of the ILO . This right has also been recognized in numerous national and international legal documents. On the international level, we have the United Nations Declaration on the Rights of Indigenous Peoples, adopted in 2007 (PDF file). In Colombia, we have the Political Constitution, which protects the rights of ethnic groups to their collective territory and the rights of all of society to a healthy environment. With the backing of international legal documents and the Political Constitution, the Constitutional Court of Colombia upheld the right to prior consultation for the “Embera indigenous people” in relation to the construction of the Urrá dam in 1998 and for Amazon indigenous peoples on the fumigation of illegal crops in 2003. In other cases, the High Court declared unconstitutional the National Development Plan of 2006-2010, the forestry law of 2006 and the mining code reform of 2010 because the proponents had not consulted with ethnic groups. There are yet more cases outside Colombia, such as Bolivia with the Multinational Constitution of 2009 and Ecuador with the Intercultural and Multinational Constitution of 1998, both of which recognize the right to prior consultation. So too Peru, where a law on this right was just passed this year. Culture, language and a view of the world – all of these can live on through time if we respect them and guarantee people’s rights, including the right to prior consultation. The protection of this right could also contribute to the protection of important ecosystems and of biological persity, both of which are vital issues as we face unprecedented climate change and environmental degradation.

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Press releases Brazil

Brazilian Government questioned yet again by international human rights body over Belo Monte Dam controversy

The Inter-American Commission on Human Rights (IACHR) asked the Brazilian government to explain reports of poor water quality and forced evictions in indigenous communities affected by the construction of the Belo Monte Dam in the Xingu River Basin.

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Press releases Peru

Peru’s efforts to require La Oroya clean up should not be chilled by investment arbitration

A statement from the international organizations Earthjustice, the Inter-American Association for Environmental Defense (AIDA), the Peruvian Society for Environmental Law (SPDA), and Public Citizen.

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Environmental law and women

By Natalia Jiménez, legal advisor, AIDA The role of environmental law is weak on gender. This can be seen in Latin America where there is constant approval of economic and development plans affecting the female view of the world, and that could lead to new ways of violating our rights. Just like with ethnic communities, there are social groups with unique values of environmental protection, and to protect these ways of thinking is to protect the environment. Women play a decisive role in the protection of the environment in a distinct and particular way.  While not the same for all and while many women may not feel the need for this recognition, the way of understanding nature or creation on the one side and environmental damage on the other is different between men and women. This is a reason why we promote a variety of proposals for environmental management.  There are a lot of good books on this in Spanish.  Here are three: a) “Abrazar la vida. Mujer, ecología y desarrollo,” by Vandana Shiva, published in Uruguay, b) “Desarrollo y feminización de la pobreza” and “Ecofeminismo: hacia una redefinición filosófico-política de ‘Naturaleza’ y ‘Ser humano,’” both by Alicia Puleo and published in Spain. >The experience of Ecuador in protecting the moor ecosystems> is >a beautiful and inspiring example of a female environmental fight in Latin America. It also is proof of what has been said, such as that >women are the best defenders in negotiations on climate change> and that >their ideas are even more effective and sustainable when it comes to fighting hunger and poverty>. But while ethnic groups have gained a good degree of legal defense through prior consent, numerous social groups are still waiting for creative lawyers with the capacity to defend their visions in the courts. Prior consent allows ethnic groups to make decisions about plans or legislative initiatives that affect their territories in order to protect their cultural, social, and economic integrity. It is a right that has been >recognized> in countries like Colombia. In Latin America, the social aspect that comes up most in big legal battles for environmental protection is the right of ethnic groups to prior consent over a development project that could damage their existence and culture.  But little to nothing has been said in the courts on the illegality and social inconvenience of such a project violating women’s rights and their vision of the world. We need legal tools as jurisprudential precedents to make it possible to litigate and determine, for example, that a development plan is or could represent discriminatory action against women. I am not talking about multiplying the number of existing mechanisms for participation in decision-making or the number of women involved or making decisions.  We need laws that set precedents to protect the environment based on the female view of the world.  We need more creative legal tools that, like prior consent, can incorporate the environmental values of women into local and global environmental practices in a real and efficient way.

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Coral reefs in Latin America: A natural spectacle at risk

Gladys Martínez de Lemos, legal advisor, AIDA Twenty five percent of all marine species have lived at some stage in coral reefs. In Costa Rica, these reefs are under threat from deforestation and other human activities. Coral reefs help maintain balance in the marine environment. They are home to many marine species for human consumption, they protect coasts from erosion and hurricanes, and they offer coastal communities a source of income from diving tourism. But a lack of clear policies and regulations is threatening their survival.  These natural wonders help balance the ecosystem by providing a source of food to superior organisms, thus forming vital food webs. Their environmental value is so significant that economists have estimated that a hectare of reef is worth over one million dollars per year.  Even though coral reefs cover about a tenth of the ocean floor, current estimates suggest that 25% of all marine species have lived in coral reefs at some stage of their life cycle. Despite this, coral reefs are under threat in Costa Rica and elsewhere from ocean acidification, destructive fishing practices, unsustainable coastal development, and pollution, among other factors.  According to the Costa Rica's 15th State of the Nation Report, the loss of 75% of live corals in the Cahuita Reef is mostly due to sedimentation caused by basin deforestation and other human actions.  Governmental inaction It's evident that coral reefs are endangered. There are no clear and widespread policies and regulations to deal with this issue; there are no mechanisms for the control, monitoring or even protection to preserve coral reefs.  Even current international obligations on coral reef protection are overlooked. This can no longer be. Marine biodiversity and ecosystems must be preserved for future generations to see the beauty and diversity of coral reefs. We all have a son, nephew or cousin who we want to have the opportunity to enjoy the richness of the coral reefs, or the chance to savor fish and their valuable protein.  Most Latin American countries and their decision makers have not yet created special laws to protect the coral reefs.  They face a huge challenge -- and responsibility -- to protect the reefs.

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Marismas Nacionales
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Protection of Sinaloa’s mangrove swamps put off

By Sandra Moguel, legal advisor, AIDA, @sandra_moguel Marismas Nacionales, the largest wetland in Mexico, is still at risk almost four years since the announcement of a proposed decree to protect it from threats such as major tourist developments. Mexico is the country with the largest number of sites designated as wetlands of international importance in Latin America and yet, surprisingly, these sites have not been looked after. By signing up to the Ramsar Convention[i], the Mexican government made a commitment to draw up plans for, defend and promote the wise useof these ecosystems, as well as to expand its system of protected areas[ii].  Marismas Nacionales is the largest wetland in Mexico, located between the states of Sinaloa and Nayarit. It has been a Ramsar site since 22 June 1995, which means it belongs to the international system for the protection and regulation of wetlands of international importance. The Recommendations of the Ramsar Advisory Mission from 2010 point out that although politically the ecosystem is pided into two different regions, ecologically the two sections of wetland have many things in common and therefore their management should be tackled as a whole. The federal government has already protected the Nayarit portion of the wetland, but four years since the publication of an official Announcement of Decree on the Sinaloa Marismas Nacionales Biosphere Reserve, the procedures for the creation of this Protected Natural Area, which would cover 47,556 hectares of mangrove forest, are yet to be completed. Meanwhile, the construction of massive infrastructure remains a threat to Marismas. The Pacific Coast Integrally Planned Centre – now known as Playa Espíritu (Spirit Beach) – and the Isla de Palma Development are both projects which put this site in jeopardy. The first of these projects has obtained environmental permission to build a 10,000-room resort (although the official proposal involved 44,000 rooms), while the second includes plans to construct accommodation for 200 guests, located in a nuclear zone according to the Sinaloa Marismas Nacionales Biosphere Reserve. The Mexican Secretariat of Environment and Natural Resources (SEMARNAT) justified its authorisation of the Integrally Planned Centre project explaining that the site had not been designated as a Protected Natural Area (or ANP by its Spanish acronym). It is currently studying the environmental impact study on the Isla de Palma development, but it is entirely possible that the argument of the effect it will have on a mangrove area and the habitat of highly migratory birds will not be enough to reject the application for environmental permission. In its Sectoral Program for the Environment and Natural Resources 2007-2012, the federal government promised to increase the total area of land designated as belonging to Protected Natural Areas from 22 million hectares in 2007 to 25.6 million in 2012. But how can this conservation objective be realised if the sites which are expected to be declared Protected Areas at the end of the six-year program have not been “protected”? The declaration of the Sinaloa Marismas Nacionales Biosphere Reserve is not the only decree of its kind to have been delayed: it is much the same story for La Sierra La Laguna and Balandra in Baja California Sur, Santuario Madera in Chihuahua and Ejido el Palmito in Sinaloa, to name but a few. The lack of coordination amongst administrative entities and the disparate organs which make up the environmental sector, combined with insufficient planning instruments such as ANP decrees, prevent decision-making which would favour conservation. Putting off these decrees is unjustifiable regardless of the fact that SEMARNAT’s legal department is swamped with ANP justification studies needing to be examined, or that there may be political reasons for delaying their approval. Issuing a decree on Sinaloa Marismas Nacionales is one way of guaranteeing the constitutional right to a healthy environment, as well as fulfilling international obligations such as Ramsar. It also protects the economic activities of the communities which depend on this ecosystem.  [i] Ratified by Mexico on 20 December 1984 and published in the Official Gazette of the Federation on 24 January 1985. [ii] Resolution IX. 22 of the Ramsar Secretariat on wetlands and systems of protected areas, 9th Meeting of the Conference of the Contracting Parties, Uganda, 8-15 November 2005.  

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Press releases

AIDA President Manuel Pulgar-Vidal named Peru Environment Minister

The appointment is a well-deserved recognition for a man who has dedicated his life to defending human rights and the environment. 

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Press releases

AIDA presents report at Durban linking climate change to decline of human rights in Latin America

Government refuses to meet affected community leaders at Human Rights Commission.

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Aida Publication

A Human Crisis: Climate Change and Human Rights in Latin America

This report shows that global climate change is already negatively affecting the enjoyment of human rights in the Americas and that present impacts will likely intensify in the future.

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