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Victory: Constitutional Court Defends Right to Prior Consultation
On January 23, 2008, the Colombian Constitutional Court declared the Forest Law of 2006 to be unconstitutional and therefore, invalid, because lawmakers did not consult with indigenous, afrodescendant, and tribal communities during development of the law as required.
This decision is an advance for these Colombian communities who view many economic development projects and policies as a threat to their traditional territory and cultural identity, as well as the environment. The ruling also establishes a valuable legal precedent that can be used to bolster indigenous and tribal communities’ rights in other legal cases throughout the Americas.
The Colombian government is required by law to consult with indigenous and tribal communities regarding administrative and legislative decisions that may affect them. It is obligated to do so because the Colombian Congress previously adopted into law “Convention 169,” a treaty of the International Labour Organization that protects this right and others.
In this case, the Court decided that indigenous and tribal communities should have been consulted because the Forest Law regulates forest issues in general terms, and contains provisions that “will likely affect areas generally used by the communities, which could impact their lifestyles and their close relationships with the forests.”
The court also declared that the requirement to consult with indigenous and traditional communities cannot be replaced with the general public participation process that the government carried out regarding the Forest bill. Rather, to comply with the law, the government should inform the communities about the proposed law, explain its implications and how it could affect them, and give them opportunities to effectively state their opinions regarding the bill.
As a result of this court ruling and civil society’s call to respect the right to prior and informed consultation, the Colombian government proposed a law to regulate and enforce this fundamental right. The Ministry of Agriculture also began developing a new forest law, this time using a process that complies with prior and informed consent procedures.
The lawsuit was brought by a group of students and professors from the University of Los Andes Law School in Bogota with the support of AIDA. Social organizations including the Proceso de Comunidades Negras, the National Indigenous Organization of Colombia (ONIC) and CENSAT Agua Viva also supported the group in presenting this case.
This group also filed a second lawsuit against the Forest Law alleging that the law violated Constitutional provisions protecting the environment. However, because of the January court decision, no decision will be made on this second suit.
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Reimagining the circular economy from the extraction territories. Proposals from Latin America
Among the various global commitments to address current climate crisis, international governance bodies, such as the United Nations, have provided guidance on the need to duplicate renewable energy production and electromobility to decarbonize the global energy mix, calling this process “energy transition”. However, this implies intensifying the extraction of minerals that make the development of these technologies possible. Each region of the world plays a different rol within the supply chain of minerals that will be used in decarbonization proceses. Latin America has been identified as one of the regions with vast mineral reserves that would fuel this transicion proposal. However, in this context of mining interest there is the tendency to make invisible the populations that inhabit these territories as well as their hydrogeological systems of local, regional and global significance.Lithium is one of the minerals that has noticeatly increased its commercial interest in terms of progress on energy decarbonization. It is in the Gran Atacama region, which encompasses areas of Argentina, Bolivia and Chile, where the greatest global reserves are found. Nevertheless, for lithium to be available it requires going through a complex international supply chain, which is particularly complex since it includes mineral extraction, its refining to battery-grade, production of electrodes for batteries, production of batteries and, finally, production of electric vehicles.This situation, of increased demand for minerals in complex global supply chains, generates warnings about the risk for the region to recreate a new cicle of extractivism, should public policies that integrate in an effective way environmental, social and territorial development standards, are not devised and implemented.Circular economy, closely related to the energy transition process, arises as a key strategy to overcoming the logic of traditional linear economy system (take - make - consume - throw away). Its aim is to reduce pressure on the territories and common goods through the incorporation of sustainability criteria to supply chains, by promoting a more rational management of the mineral resources extracted.However, this way of understanding circular economy, linked to minerals for energy transition, is also supported by the expansion of extractivism, especially in the Global South. This comes as a result since decarbonization options requires a huge amounts of minerals for energy storage, and these are extracted at the cost of high environmental and social impacts that threatens the resilience of the ecosystems from where they are extracted posing a risk to the populations that inhabit them.Taking into account these limitations, a circular economy proposal, from the perspective of Latin American extraction zones and applied to transition minerals, should contribute to guarantee that changes in the energy mix towards technologies with fewer Greenhouse effect emissions (widely known as energy transition), be truly just throughout all the stages of the process. This implies avoiding the creation, expansion and/or deepening of sacrifice zones, as well as ensuring environmental restoration, guaranteeing compliance with human rights as well as reparation of those rights that have been violated. Furthermore, it should take into account the biophysical boundaries and resilience capacity of the environments. Read and download
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Motagua River: A story of contamination and a call for justice
The Motagua River, Guatemala's largest river, is severely polluted with sewage, solid waste, and other types of waste.It flows into the Caribbean Sea, so contamination reaches those waters, as well as the Mesoamerican Barrier Reef System - the world's largest transboundary reef - and the Honduran coast, causing unquantifiable social and environmental damage.Polluting activities occur throughout the river basin, including sub-basins and micro-basins.In general terms, the contamination has deteriorated the health and violated the right to water, development and a healthy environment of all the people living in the basin.The contamination of the Motagua is a problem that has been going on for decades and requires urgent long-term measures that contribute to the sanitation and integrated management of the river basin.Where is the Motagua River?The Motagua River is one of the main rivers in Guatemala. With a length of 486 km, it crosses 96 municipalities and 14 departments of the country. It originates in Quiché, a department located in the northwest, and flows into the Caribbean Sea.It is at its mouth that its flow meets the Mesoamerican Reef, which extends for approximately 1,000 km and covers the territorial waters of Belize, Guatemala, Honduras and Mexico. Thus, the pollution carried by the river deteriorates the health of the reef system, which is home to the second longest barrier reef in the world.The Mesoamerican Reef protects thousands of kilometers of coastline from currents, waves and storms. In addition to being a breeding and feeding ground for a great diversity of species, it is a carbon dioxide sink and a detoxifier of water and air. The ecological and economic health of the entire South Atlantic area depends on its conservation.In addition, pollution from the Motagua River reaches the coast of Honduras and spreads to Amatique Bay, located along the eastern coast of Guatemala and Belize. This is clearly a transboundary problem.Where does the pollution in of the Motagua River come from?The largest volume of contamination of the Motagua River comes from Guatemala City, the capital of the country, mainly through the waters of the Las Vacas River, which receives a large amount of solid waste from the Chinautla River, as well as sewage that is discharged into its waters on a daily basis.Solid waste from the Chinautla River, which flows through the municipality of the same name, comes from a landfill located in Zone 3 of the capital. Any small landslide in this landfill generates waste that is automatically dumped into the river at any time of the year.The pollution that the Chinautla river carries also consists of a large amount of sewage, generated by at least 500,000 people living in the northern part of Guatemala City, which does not receive any previous cleaning treatment.In the municipality of Chinautla there are numerous illegal landfills. In addition, many private vehicles and collection trucks dump waste on the banks of the Chinautla and Las Vacas rivers.According to data from the Integrated Environmental Management of the Motagua River Basin project, financed by the United Nations Development Program (UNDP), it is estimated that 66% of urban solid waste in Guatemala is not collected and there is no guarantee that the remaining 34% is properly disposed of. In addition, of the total number of landfills in the country, 88.32% are illegal or do not have municipal authorization.Most of the waste is dumped in streams and/or on surfaces that are susceptible to dragging, ending up in one way or another in water sources, such as the Motagua basin.In other words, the main source of contamination of the Motagua River is the poor management of solid waste and water resources in the country; the lack of compliance with existing regulations on wastewater discharge, disposal and treatment of waste and solid waste; as well as the lack of a water law.Who is affected by the contamination of the Motagua River?The contamination of the Motagua River affects the entire population of Guatemala. In the lower basin, it directly affects people dedicated to fishing, who have seen their catches reduced.And, by harming tourism in the Caribbean, it also affects the communities that depend on tourism for their livelihoods.As a basin-wide problem, the contamination of the Motagua affects those living in the main sub-basins and micro-basins of the river, including the indigenous communities of the Mayan Poqomam people in the cities of Chuarrancho and Chinautla.In Chinautla, the contamination affects the living conditions, health, environment, water sources, economy and culture of more than 18,000 people.The restoration of the Motagua River is crucial to improve the quality of life of at least 30% of the Guatemalan population, as well as those affected in neighboring countries.Actions to rescue the Motagua River from contaminationIn the face of the serious degradation of Guatemala's largest river basin, the damage to key ecosystems such as the Mesoamerican Reef, and the human rights violations that pollution generates, urgent measures are required, among them:Verify compliance with environmental and municipal regulations, as well as prevent and halt environmental damage at the source through regulation, monitoring, supervision and oversight of activities that affect the rights of the inhabitants of the Motagua River basin.Strengthen regulations related to wastewater disposal and solid waste management so that they are implemented in a timely manner through complete treatment systems in the municipalities of the basin.Initiate actions to enable the socio-environmental restoration of affected ecosystems throughout the basin, including political, legislative and administrative measures to strengthen the legal system and allocate sufficient financial resources to ensure the protection of waters and territories.
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Families of La Oroya demand Peru comply with Inter-American Court ruling
One year after the decision, the state has still not implemented the ordered reparations. The population lacks comprehensive health care and is once again exposed to toxic contamination due to the reactivation of the La Oroya smelter complex, which is operating without adequate environmental management.One year after the Inter-American Court of Human Rights ordered the Peruvian state to provide comprehensive reparations to the residents of La Oroya, after finding it responsible for violating their rights, the victims are still waiting for the ruling to be implemented and for state to comply with its international obligations."It's already been a year since the ruling was announced, how much longer will we have to wait?" asked Yolanda Zurita, a resident of La Oroya and a petitioner in the case. "Enough is enough! We demand that the Peruvian state immediately comply with the ruling of the Inter-American Court, which will benefit not only the victims of the case, but also the population of La Oroya and the country exposed to toxic substances from the indiscriminate development of extractive and industrial activities in our territories."On March 22, 2024, in a landmark decision for the protection of a healthy environment in Latin America, the Court responded to the long and tireless search for justice by the families of La Oroya, who have been affected for decades by the extreme levels of contamination from the La Oroya Metallurgical Complex (CMLO) and the lack of adequate protective measures by the State, which today ignores the ruling and underestimates its importance.Although the Court ordered the State to ensure that CMLO's operations comply with international environmental standards and to prevent and mitigate damage to the environment and human health, the opposite is currently the case: the complex has reactivated its operations without having modernized its facilities to prevent and mitigate the environmental and health risks it generates for the population.It is urgent that the CMLO stops polluting and that the Peruvian State adopts the measures required by the Court to modernize it in accordance with international environmental standards of environmental protection, in compliance with the ruling."With the reactivation of the metallurgical complex, the people of La Oroya are once again being exposed to levels of pollution that endanger their lives; the Inter-American Court's ruling is clear and the State is obligated to comply," said Rosa Peña, senior attorney with the Inter-American Association for Environmental Defense (AIDA). "The delay in complying with the ruling is re-victimizing the families who have been demanding justice for more than 20 years."The court also ordered the state to provide free medical care to the victims and to guarantee specialized care to residents with symptoms and illnesses related to contamination from the mining and metallurgical activities. Today, however, comprehensive health care is not guaranteed in La Oroya. It is necessary that the State, through and in coordination with the Ministry of Health, the Regional Health Directorate of Junín, the General Directorate of Environmental Health, and health care providers, create and implement the protocol for comprehensive care for victims in La Oroya, as established by the Court.The ruling set a historic precedent for the control of industrial pollution by states. For the Peruvian State to make real progress in its implementation, it is imperative that the Attorney General's Office issue the Compliance Resolution."Despite the deadlines set by the Inter-American Court for the Peruvian State, there has been virtually no progress in the implementation of the ruling," said Christian Huaylinos, coordinator of the legal department of the Pro Human Rights Association (APRODEH). "Above all, the nature of the case must be taken into account, which implies that La Oroya has been classified as a sacrifice zone due to the high levels of contamination; therefore, the need to fully compensate the victims is urgent." Background of the caseLa Oroya is located in the central mountain range of Peru, in the department of Junin, 176 km from Lima. In 1992, the US company Cerro de Pasco Corporation installed the La Oroya Metallurgical Complex (CMLO) to process mineral concentrates. The complex was nationalized in 1974 and operated by the state under the name Centromin Peru until 1997, when it was taken over by Doe Run Peru, which operated it until 2009. In short, the CMLO is over 100 years old.In La Oroya, most of the people affected by the CMLO contamination, including children, have lead levels higher than those recommended by the World Health Organization. In some cases, they have registered higher levels of arsenic and cadmium, in addition to stress, anxiety, skin problems, stomach problems, chronic headaches, and respiratory or cardiac problems, among others.In the absence of effective responses at the national level and on behalf of the victims, an international coalition of organizations filed a complaint against the Peruvian State with the Inter-American Commission on Human Rights in 2006. In October 2021, the Commission found the Peruvian government responsible and referred the case to the Inter-American Court. In October 2022, more than 16 years after the international complaint was filed, the victims, represented by AIDA and APRODEH with the assistance of Earthjustice, brought the case before the Court. Press contactsVíctor Quintanilla (Mexico), AIDA, [email protected], +52 5570522107María Nieve Sullón (Peru), APRODEH, [email protected], +51 984926868
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