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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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In times of climate change, we must respect nature
(Column originally published in El País) We are living now with the realities of climate change; to act otherwise would be ignorant and irresponsible. But, in case we forget, nature will surely remind us. Over the last months, severe landslides have devastated communities in Peru and Colombia. Together, they left more than 500 people dead, dozens missing, and more than 100,000 victims. Tragedies like these have some things in common: they occurred in cities and regions with high rates of deforestation and changes in land use; in both areas there was evidence of poor planning and regulation. Effectively, these disasters were foreshadowed. They make clear once again the vital need to care for our forests and riverbanks, and to avoid deforestation and erosion. Climate change means hard rains, fires, and hurricanes will become increasingly frequent and more intense. In Mocoa, Colombia, the equivalent of 10 days of rain fell in just one night, causing flash flooding that devastated much of the small town. In many cases, nature is only taken into account after tragedy strikes. But nature, when well cared for, can literally save lives. In Mocoa, a native forest helped protect one neighborhood from being washed away. That’s why environmental protection must be taken seriously, and any exploitation of natural resources must be well planned and sensible. Yet in Latin America, there remains a regional tendency towards unregulated extractivism. Over the last few years, governments across the region have been weakening environmental regulations in the name of development. Meanwhile, year after year, hundreds of people in Latin America and the Caribbean—especially children and others in vulnerable situations—die from events associated with droughts and floods. Activists, movements, mayors, and others seeking to protect land and water from extractive activities are frequently criticized, even criminalized and attacked. In the small Andean town of Cajamarca, Colombia, 98 percent of voters recently chose to ban all mining in their territory. It’s a decision that has sparked national controversy. Critics of the referendum have questioned whether the results are mandatory, despite the fact that Colombian law clearly states, “the decision of the people is mandatory.” Through their popular vote, the people of Cajamarca reminded their government of its commitment to protect their water and natural resources. Communities in Guatemala, Honduras, Costa Rica, Peru, and El Salvador have done the same. While some extraction is necessary in modern society, there must be a healthy balance. Not every project is safe, and alternative development models must be embraced and explored. It’s time to incorporate the environment into public policy and development, once and for all. Two Latin American nations have shown what is possible. In 2011, Costa Rica banned all open-pit metal mining. In March, El Salvador did the same. In both cases it’s a big yet viable change, because alternatives exist and it’s understood that protecting land and water is necessary to secure a healthy future. El Salvador has the second-highest rates of deforestation and environmental degradation, which has led to severe water scarcity. This is why the ban on metal mining passed there. It was no favor to environmentalists; it was based on years of sound analysis. Social and economic studies of the proposal concluded that the best thing for the country was to care for and restore its remaining forests and water sources. The decision prioritized environmental restoration—particularly its social and economic benefits—above the perceived benefits of mining. Environmental degradation is not a problem that exists in a vacuum. That’s why States have signed treaties and other international instruments that recognize their obligation to protect the environment. The Paris Agreement on Climate Change, signed by 34 of 35 States on the American continent, is the most recent. Now, more than ever, these commitments must be honored and fulfilled. Not all extractive projects are viable. Determining their worth must involve sound planning, coupled with policies and legal frameworks that are strong and effective. Environmental Impact Studies must be done carefully, objectively, and independently. Decisions should consider short- and long-term impacts on both local and national levels. We are living now with the realities of climate change; to act otherwise would be ignorant and irresponsible. But, in case we forget, nature will surely remind us.
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Victory in Colombia: Citizens Vote to Ban Mining in their Territory
On March 26, 2017, 98% of voters in Cajamarca, Colombia decisively rejected mining in their territory. The results of the referendum (or “popular consultation”) are binding under Colombian law. Now municipal authorities must issue regulations to implement the ban. AIDA was part of the legal team that advised the Cajamarca community and developed a strategy, including the referendum, to stop a proposed mine that threatens to pollute the water supply. AngloGold Ashanti was in the exploration phase of a project called La Colosa (the Collosus)—aptly named, because it would be among the world’s 10 largest open-pit gold mines, the second-largest in Latin America. In a country coming out of a 50-year civil war, the referendum is a victory not only for the environment, but also for democracy. Banning mining through popular consultation demonstrates a commitment to solving environmental conflicts in a peaceful and participatory manner. It also allows citizens to exercise their human right to have a voice in public issues that affect them—a key element of true democracy—and to safeguard their human right to a healthy environment.
Read moreVictory in Colombia: Citizens Vote to Ban Mining in their Territory
On March 26, 2017, 98% of voters in Cajamarca, Colombia decisively rejected mining in their territory. The results of the referendum (or “popular consultation”) are binding under Colombian law. Now municipal authorities must issue regulations to implement the ban. AIDA was part of the legal team that advised the Cajamarca community and developed a strategy, including the referendum, to stop a proposed mine that threatens to pollute the water supply. AngloGold Ashanti was in the exploration phase of a project called La Colosa (the Collosus)—aptly named, because it would be among the world’s 10 largest open-pit gold mines, the second-largest in Latin America. In a country coming out of a 50-year civil war, the referendum is a victory not only for the environment, but also for democracy. Banning mining through popular consultation demonstrates a commitment to solving environmental conflicts in a peaceful and participatory manner. It also allows citizens to exercise their human right to have a voice in public issues that affect them—a key element of true democracy—and to safeguard their human right to a healthy environment.
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