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
Mexican government breaches international commitments to put Veracruz Reef System at risk
Organizations denounce the incident to the Ramsar Convention, an international treaty for the protection of wetlands. By modifying the boundaries of the coral reef national park, the federal government is seeking to expand the Port of Veracruz. Mexico City, Mexico. Civil society organizations have denounced to international bodies that Mexico’s government intends to modify the boundaries of the Veracruz Coral Reef System National Park, known as PNSAV in its Spanish acronym, in order to expand the Port of Veracruz. This violates the government’s commitment to preserve and protect a wetland of global importance. Mexico’s Secretariat of Environment and Natural Resources (Semarnat) authorized the port expansion project on December 19, 2013. In response, the Interamerican Association for Environmental Defense (AIDA) and the Mexican Center for Environmental Law (CEMDA) – with support from the Veracruz Assembly of Environmental Initiatives and Defense (LAVIDA), Pobladores A.C., Paths and Meetings for Sustainable Development (SENDAS), Litiga OLE, Pronatura Veracruz and the doctor and researcher Leonardo Ortíz Lozano – filed with the Ramsar Secretariat a report on the federal government’s failure to comply with that international treaty. The Veracruz Reef System was declared a Protected Natural Area (PNA) in 1992 with the aim of protecting the human right to a healthy environment. In 2004, it was registered as a wetland of international importance on the Ramsar List. While Mexico can modify the boundaries of sites on the Ramsar List, this must be done in accordance with the grounds and procedures identified in the Ramsar Convention. However, the federal government intends to modify the area of the PNSAV, contradicting to its own actions and acting in breach of the principle of law. [1] According to public information secured from the National Commission of Natural Protected Areas (Conanp) [2], the Mexican government based its decision to amend the boundaries of the PNSAV on a so-called error clause contained in Resolution VIII.22. This clause can only be invoked when there are changes in the ecological characteristics stemming from the degradation of part of a wetland. The federal government has yet to scientifically prove that there have been any ecological changes to the detriment of the wetland. Of note, it is questionable that the Conanp decided to notify the Ramsar Convention Secretariat of the alleged error on the eve of the Semarnat’s authorization of the Port of Veracruz expansion. Another legal way to change the boundaries of Ramsar sites is if there is "urgent national interest," as contained in Resolution VIII.20. This requires a prior environmental assessment and a consultation with all stakeholders, something that has not yet happened. "The federal government is determined to illegally change the polygonal of the PNSAV every time that it is not legally possible to proceed according to the procedures established by the Ramsar Convention," said Sandra Moguel, an AIDA legal adviser. "The polygonal change and the environmental impact authorization of the proposed expansion of the Port of Veracruz are unilateral decisions by the federal government in which the arguments of the affected peoples were not taken into account," she added. The Mexican government is violating the Ramsar Convention, and hence its international obligations on the conservation of a wetland of international importance. If the amendment to the PNSAV goes through, the government will hurt the right of Mexicans – and the people of Veracruz, in particular – to a healthy environment. Because of this, AIDA and the other civil society organizations requested the Ramsar Convention Secretariat to consider as unacceptable the proposed reduction of the PNSAV’s boundaries. We also requested that these proposed changes be discussed at Ramsar’s next Conference of the Contracting Parties to be held in Uruguay in 2015. Editor's notes: 1. According to this general principle of law, the authority can only do what is expressly mandated by law. 2. Information request 1615100033713.
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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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