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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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The GCF should thoroughly assess the policies and practices of the BNDES and require conditions for its accreditation
The Board of the Green Climate Fund (GCF) is considering an application for accreditation of the Brazilian National Development Bank (BNDES, Banco Nacional de Desenvolvimento Econômico e Social). The accreditation process of the BNDES is an opportunity to strengthen the Bank’s policies and procedures designed to identify, address and remediate environmental and social impacts linked to its activities and operations. With the new administration of President Jair Bolsonaro, Brazil is suffering severe setbacks in its environmental, social and climate policies and agenda. Brazilian environmental agencies are being dismantled, while renowned and effective mechanisms such as the Amazon Fund are at risk of becoming inoperative or even eliminated. In such a context, the effectiveness of the country’s environmental and social (E&S) governance and its instruments, agencies and institutions, risks being severely undermined. In order to fulfil its mandate to promote a paradigm shift towards low-emission and climate resilient development pathways within the context of sustainable developmentthe GCF should ensure that local systems and institutions are adequately equipped to deliver the sustainability outcomes intended by the Fund. The GCF should carefully assess BNDES’ existing E&S policies and procedures and ensure that approval is conditioned upon commitments and measurable steps by the Bank, with political support from the Brazilian government, to further strengthen its policies and procedures to address following shortcomings related to: Disclosure of environmental and social (E&S) information; Design of E&S policies and monitoring tools; Human rights standards and the rights of indigenous peoples and other traditional communities; Grievance mechanism; Commitments concerning climate change. Read the full statement here
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International tribunal supports indigenous struggle for the Amazon
“The most beautiful jungle in the world,” wrote Alcides D’orbigny, a French biologist, of the Isiboro Sécure Indigenous Territory and National Park (known locally as Tipnis, for its Spanish initials) in the 1830s. Located between the departments of Beni and Cochabamba, Tipnis is a natural protected area that extends over 12,363 square kilometers of Bolivian Amazon. It’s one of the world’s most biodiverse sites and home to many indigenous cultures—among them the Mojeño Trinitarios, the Tsiman and the Turacaré. Despite its recognition as a National Park and Indigenous Territory, the area has for decades been threatened by a proposed highway that would effectively divide it in two. The construction would cause grave social and environmental damages, some of which have already occurred—two of three proposed stretches of road have already been built. As long as the highway has been proposed, the indigenous people of Tipnis have stood strong in their resistence, calling to protect the rainforest and the life it holds. Their efforts paid off last month in a precedent-setting legal victory for the protection of human rights and the environment. The International Rights of Nature Tribunal ruled that the Bolivian State had “violated” the rights of nature and of the indigenous people that inhabit Tipnis by encouraging the highway’s construction. The Tribunal was created in April 2010 at the People’s Conference on Climate Change and the Rights of Mother Earth, when the Universal Declaration of Rights of Mother Earth was also signed. Its role is to establish and investigate any violation of the rights outlined in the Declaration and found in the internal laws of each country. The Tribunal determines whether there was a violation and, if so, who was responsible. It emits recommendations, advisory opinions, and can determine provisional measures. Indigenous defense of the Bolivian Amazon The proposed highway through Tipnis has spurred strong indigenous resistance, and has also caused great suffering. The most painful incident happened in 2011 when more than 100 indigenous people marching on La Paz, headquarters of the Bolivian government, were brutally repressed by police. Despite the conflict, that demonstration achieved the enactment of a law that bestowed the national park the status of “intangible zone” or absolute reserve. Unfortunately, six years later, that law was null and void when the government enacted a new law through more expeditious process. Tipnis indigenous representatives denounced this and other acts before the International Rights of Nature Tribunal, which agreed to consider the case in January 2018, and then sent an international commission of observers to visit the zone and interview stakeholders. Indigenous representatives denounced that, despite being a single roadway, the project was actually presented separately, in three separate phases. Currently, only the final section remains unconstructed. Other irregularities included the awarding of the project to a Brazilian company without first completing an environmental impact assessment, and the lack of adequate consultation with affected indigenous communities. The Tribunal's sentence, issued May 15, finds the Bolivian government responsible for rights violations and calls for immediate compliance with measures including: Definitively stopping of any progress on construction; Recognizing the faculties of indigenous peoples to guarantee their control in Tipnis, including territorial autonomy and the right to prior consultation; Annuling a law that removed the status of intangible zone from Tipnis; Stopping the advance of colonization toward the central zone of the national park; Canceling plans for oil expansion on the site; Effectively applying the law to guarantee the protection of the rights of Mother Earth; and Guaranteeing indigenous peoples their fundamental role as defenders of Mother Earth. What’s next for Tipnis? Although the Tribunal’s judgment is not binding, it is a precedent established by a recognized and ethical court. For this reason, the Coordinator of Indigenous Organizations of the Amazon River Basin—an international indigenous organization—announced it would use the ruling as an instrument of proof to bring the case before the Inter-American Commission on Human Rights. The situation in Tipnis is complex. While construction of the missing section was suspended after losing credit for its execution, some actors continue to defend the road as fundamental to connecting the center and the north of the country, facilitating access to basic services and other development opportunities for the communities of Tipnis. The other side of that argument is the extensive environmental degradation to an area rich in biodiversity—acknowleding that the road would be just the beginning of activities within the protected area. I don’t believe anyone has the absolute answer. And so my analysis isn’t about making a value judgment, but about complying with the law, which resides in reason and justice. Although part of the road is constructed, there is much more to go, and so the resistance continues. The Tribunal’s decision can and should be used as an added impulse toward protecting the land. In the end, every effort is worthwhile knowing that the destruction of such a valuable natural ecosystem represents a point of no return.
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In historic decree, Costa Rica legally protects its corals
On the occasion of World Oceans Day, Costa Rica issued a decree to protect its vast coral ecosystems. We congratulate the government for taking this important step and setting a legal precedent for the protection of marine environments in the region. San José, Costa Rica. The Costa Rican government issued a precedent-setting decree today that legally protects its vast coral ecosystems from harmful human activities. Following years of work on the issue, the Interamerican Association for Environmental Defense (AIDA) and Conservation International celebrate this important instrument for the conservation of these fragile and vital marine environments. “We are very pleased with this advance, promoted by the Vice Ministry of Water and Seas, which guarantees the survival of coral reefs and the various species that contribute to their conservation—species like the parrotfish, which feed on the algae that can deprive reefs of oxygen,” said Gladys Martínez, senior attorney of AIDA’s Marine Biodiversity and Coastal Protection Program. The decree provides a series of measures the government must adopt in order to preserve reef ecosystems and the species that depend on them, threatened by a combination of unsustainable use, climate change, inadequate management, and invasive species. The measures include: the creation and implementation of science-based strategies and policies to confront the effects of climate change; and the restoration of degraded reefs. The law also prohibits harmful activities like the extraction and commercialization of reefs, dumping of waste, and anchoring. “It’s our hope that the legal precedent established by this decree will be replicated in other countries of the Americas that, like Costa Rica, are bound by international treaties to safeguard their corals,” said Magie Rodríguez, AIDA attorney. “In the coming years, we will be closely monitoring the decree’s implementation.” In 2012, AIDA and Conservation International joined forces with national experts to prepare a report detailing the economic and environmental benefits of corals, urging the creation of legislation in Costa Rica to protect them. AIDA also supported the Vice Ministry in the preparation of the decree based on the organization’s experience in international law and understanding of regulations in other countries of the region. “Costa Rica is a nation privileged by the dimensions of its marine spaces and biodiversity. The coral systems are incredibly productive, but they are also threatened by human activity and climate change,” said Marco A. Quesada Alpízar, director of Conservation International - Costa Rica. “By taking action on this issue, Costa Rica has assumed responsibility for the conservation and management of its marine ecosystems, and has set an example that can be replicated in other countries.” The decree answers a years-long call for Costa Rica to comply with international obligations and protect its threatened marine ecosystems. Scientific studies have shown that a large part of the coral reefs in the country are at great risk due to human activities including land-based pollution and destructive fishing practices. Their conservation must be a priority. “This decree fills an important gap in the regulation of coral reefs in Costa Rica. It recognizes, once again, that marine resources provide people with services and well-being, which requires they be adequately protected and managed,” explained Quesada. “Costa Rica is globally recognized for its ecotourism and natural richness,” added Ana Gloria Guzmán of Conservation International’s Oceans Center. “With this decree, the nation is setting an example about the protection and management of essential marine ecosystems as a means to ensure the health of the oceans and safeguard the well-being of coastal communities that depend on the services they provide.” press contacts: Victor Quintanilla, AIDA, +521 5570522107, [email protected] Kipp Lanham, Conservation International, (202) 412-5533, [email protected] Marco Quesada, Conservation International, +506 2253-0500 ext. 139, [email protected]
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