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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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Astrid Puentes Lectures at American University
The link between protection of the environment and human rights isn’t always immediately obvious. In fact, international law didn’t begin to establish the human right to a healthy environment until the 1990s. But these are some of the things that can happen when the natural environment is harmed: We can lose our source of food. Our health can suffer. We may lose access to clean water. Our livelihoods can be destroyed if the land we farm or the sea we fish no longer supports a harvest. If a dam floods a village, people lose their homes. In some cases, these losses lead to the loss of a way of life—a culture. International law is clear: the right to food, water, work, home, personal safety, and culture are all protected human rights. That’s why AIDA uses international law to protect the human right to a healthy environment. The relationship between human rights and the environment is gaining wider understanding in the national and international environmental and legal communities. Indeed, American University’s Washington College of Law, in Washington D.C., invited AIDA Co-Executive Director Astrid Puentes Riaño to share her expertise on the subject in June. She gave a weeklong seminar on human rights and the environment in Latin America, available for students attending the summer program. Astrid also spoke on a panel, organized by the Academy of Human Rights of American University and AIDA, about how the two are linked in the specific case of the Belo Monte Dam. Belo Monte is a large hydropower dam under construction in Brazil. The dam will destroy rainforest, kill off plant and animal species, and increase the emission of greenhouse gases, worsening climate change. The human impact is dire. More than 20,000 people will be displaced (independent estimates double this number). Already communities are being stripped of their villages, their cultures, and the cemeteries of their ancestors to make way for the world’s third-largest hydropower dam. Many river dwellers have moved to cities where they find themselves alone and struggling to find new trades. “Our work is a constant David and Goliath battle. Sharing experiences with expert colleagues from the environment and human rights departments at one of the most prominent universities in the US was an honor” said Astrid Puentes Riaño, AIDA’s co-executive director. “It gives us hope that academia is recognizing this link, and is willing to study it. We look forward to continuing this kind of exchange, and to helping train more young lawyers about these issues.”
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Joint letter: Mexico – Detention of environmental and human rights defender Mr. Marco Antonio Suástegui Muñoz
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Read moreColombia must choose between gold and water: Al Gore
Colombia faces a pivotal choice for its future. It must choose between protecting its high-altitude moors as its water source for millions of people or authorizing large-scale mining in these fragile ecosystems. AIDA, together with its allied organizations, is working to convince the authorities to choose water and this cause recently won a new ally: Al Gore. The former U.S. vice president, a Nobel Peace Prize laureate for his success at raising awareness about climate change, brought up the issue of mining in the moors, known locally as páramos, in April. “Colombia must choose between the gold in the páramo and profits for a few people, or the drinking water that supplies all of its citizens,” he said at an international summit on the environment in Bucaramanga, a city in northeastern Colombia that gets its water from the Santurbán Páramo. We’ve been calling on the Colombian government to protect this moor and others around the country from mining, given that they provide 85% of the country’s water. Will this happen? By law, the government must keep mining out of the páramos. But to do this, their boundaries must first be mapped. This poses a problem. In April, the government unveiled its map showing that the Santurbán Páramo stretches over 42,000 hectares (104,000 acres). That’s more than the 11,000 hectares of previous estimates. But it’s only about half the 82,000 hectares measured by the Alexander von Humboldt Biological Resources Research Institute, an independent state research center that used a larger scale map than the government. The larger scale provides richer details that show how the moor extends further. The government has not adopted an official measurement, leaving important parts of the moor open to mining, an industry it is promoting to spur economic growth. But at what costs? Large-scale mining will cause irreversible damage to these flora-rich moors that not only supply water to millions of people but also help mitigate the effects of climate change by capturing carbon emissions. Gore was clear on what choice he recommends for Colombia or any country facing questions of economic growth versus environmental protect. “Without a planet, there is no economy that is worth anything,” he said. You can help us spread the message by making a donation and signing our petition so that we can continue the fight to save Colombia’s moors. Thank you!
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