Project
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.
Related projects
Environmental Impact Assessments Necessary for Informed Consent
In January 2009, Muriel Mining Corporation moved into the department of Chocó, Colombia to launch Mandé Norte, a project for the exploration and development of copper, gold, molybdenum and other minerals. The US-based company began the project without proper consultation, and without the free, prior and informed consent of the local ethnic groups that would be directly affected by the mines. Consultation with the affected communities did not begin until 2006, a year after the company was awarded the mining contract. What's more, several of the affected communities were not invited to participate in the consultation process, and those that participated were not represented by traditional authorities. Then, despite serious objections raised by Afro-Colombian and indigenous communities, the consultation process was concluded in August 2008. This project took place during a difficult period of Colombia’s armed conflict.The Inter-Church Commission for Justice and Peace, a Colombian human rights group, filed a legal action for protection against the mining project. AIDA contributed to the action by submitting an argument (in Spanish) demonstrating that without an adequate environmental impact assessment to analyze the project's social and environmental impacts, the affected communities would have no basis to give or deny consent, as required by international law. The Colombian Constitutional Court ruled on the case in the T-769 Sentence of 2009 (in Spanish), ordering the suspension of exploration and production activities and the awarding of licenses for the project. It also ordered a new consultation to meet both national and international standards, and required the completion of accurate environmental impact studies. AIDA has prepared a summary sheet (in Spanish) to make it easier to understand the sentence. The ruling in this case set a key precedent by incorporating and recognizing, for the first time, the right of ethnic groups to free, prior and informed consent. It was a breakthrough in the recognition of the rights of ethnic groups in Colombia. Both the Ministry of the Interior and the mining company sought an annulment of the constitutional sentence. But AIDA intervened (in Spanish) to defend the sentence against the annulment requests, as did the Colombian Commission of Jurists (in Spanish), Dejusticia (in Spanish), Harvard and Diego Portales (in Spanish). These efforts paid off. On March 12, 2012, the Constitutional Court upheld its decision (in Spanish) on Mandé Norte. Without this ruling, the mining project would have had serious social and environmental impacts on the biodiverse region of Chocó, damaging crop animals, rivers and the mountain of Caraperro, long considered by indigenous peoples to be a sacred site. The project would have both physically and culturally harmed the local indigenous peoples, and would have caused the deterioration of traditional economies. At AIDA, we work to defend the right to a healthy environment and the protect human rights of communities and ethnic groups against powerful interests. Follow us on Twitter: @AIDAorg "Like" our page on Facebook: www.facebook.com/AIDAorg
Read moreLives of no return: Stories behind the construction of Belo Monte
By María José Veramendi Villa, senior attorney, AIDA, @MaJoVeramendi When you start the descent by plane to the city of Altamira in Pará, Brazil, the darkness of the night is interrupted by the bright lights of worksites a few kilometers outside the city where construction of the Belo Monte dam is underway. That’s when things turn bleak. On a recent trip to the area I was able to see how the situation of thousands of residents – the indigenous, riverine and city dwellers of Altamira - continues to deteriorate. Their communities and livelihoods are being irreversibly affected and their human rights systematically violated by the construction of the hydropower plant. When night becomes day From the plane, the lights from the worksites are just momentary flashes. But for the indigenous and riverine communities closest to them, those lights have brought a radical change to their lifestyles. José Alexandre lives with his family in Arroz Cru, a waterfront community located on the left bank of the Volta Grande, or Big Bend, of the Xingu River in the municipality of Vitória do Xingu. The community is in front of the Pimental worksite. His entire life has been spent in the area, where hunting and fishing are major activities. But everything changed when construction of the dam started.
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The link between international environmental law, human rights and large dams
The article is an update and reissue of two chapters of the report Large Dams in the Americas: Is the Cure Worse than the Disease, written by Jacob Kopas and Astrid Puentes Riaño. The article identifies “the main obligations, standards, decisions and international law applicable to large hydropower plants that our governments should use in the planning, implementation, operation and closure of these projects." The article is divided into two parts. Chapter I offers an overview of the main standards, the legal framework of international human rights and environmental law as well as the decisions and international jurisprudence applicable to the cases of large dams. In Chapter II, this framework is applied to the cases of human rights abuses caused by the degradation of the environment through the development of a large dam.
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