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COLOMBIA
Political will to apply consultation is lacking
Susan Abad
6/24/2011
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Regulations for prior consultation violate other rights of indigenous peoples.

Twenty years after prior consultation came to exist in Colombia, this fundamental right of indigenous peoples is not properly upheld in the country.

In 1991, Law 21 ratified at the national level in Colombia the International Labour Organization’s, or ILO, Indigenous and Tribal Peoples Convention 169, which contains a clause regarding prior consultation; this is in turn supported by articles 1, 2, 7, 70, 329, and 330 of the Colombia constitution.

“The report reveals a paradoxical situation in Colombia, where a highly developed normative and jurisprudential foundation stands in stark contrast to the reality of disregard for the right to prior consultation. The normative and jurisprudential context in Colombia is clearly conducive to enjoyment of this right. In addition to providing for the incorporation of international law into domestic law, the Political Constitution of 1991 is forward-looking in the protections it affords [to] the rights of indigenous peoples and Afro-descendent communities to cultural identity, collective ownership of traditional lands, and their own forms of government,” says the international humanitarian organization Oxfam, in its report, “The Right of Indigenous Peoples to Prior Consultation,” published last March.

“Unfortunately, prior consultation has struggled since its inception. Currently there are many concerns about its implementation, its benefits and the fulfillment of its objective of protecting the social, cultural and economic integrity of indigenous peoples,” Gloria Amparo Rodríguez, director of Environmental Law Research at Universidad del Rosario, told Latinamerica Press.

“It is startling that in Colombia [since 1993] until February of this year, 2,142 environmental permits were given and only 141 prior consultations were conducted. That is a very small number when one considers that the lands of ethnic communities make up 28% of the country,” highlights the researcher, who is considered one of the country’s top scholars on this topic.

Rodríguez emphasizes that of these consultations, “just five have been made for the mining sector,” this activity being one of the so-called “engines of national development” proposed by President Juan Manuel Santos’ administration in its recent Development Plan.

Unconstitutional regulation
“The most complex issue within prior consultation is procedure. The indigenous people feel that with the regulation as it stands now, their rights are being violated,” Diana Carrillo, of the National Indigenous Organization of Colombia, or ONIC, explained to Latinamerica Press.

Carrillo argues that Decree 1320 from July 13, 1998, which is used to regulate prior consultation with indigenous peoples and communities of African descent on projects to exploit natural resources within their territories, “is unconstitutional, first because the communities were not consulted, and second because it limits the consultation to deeded parcels without recognizing ancestral lands, and because it establishes a very hurried process —  it allows a 20-day period for the companies to impart on the communities a draft of the project — during which the communities do not have time to express their concerns.”

Nevertheless, for Vice Minister of Interior and Justice Aurelio Irragorri, “with the existing regulations, it is possible to guarantee the communities their rights. What we have done is to sensitize the companies to the fact, as well as requiring, that in the areas where consultation is obligatory, they will not be able to invest without it.”

Irragorri told Latinamerica Press that the “delay in the process or the lack of awareness among companies led to the lack of consultation.” He adds that “when we arrived [the government that came to power in 2010] there were more than 500 pending applications for certification [the opinion of the Ministry of Interior and Justice if a consultation was needed in the area where a project would be carried out]. Subsequent to an emergency plan implemented in January of this year, we can confirm that to date we only have 25 pending cases.”

The certification and backing that the State should do in these cases has also been deficient, the ONIC added.

“The government has an Office of Ethnic, Minority and Roma [Gypsies] Affairs in the Ministry of Interior and Justice, a kind of advisory board where six people carry out all processes of prior consultation at the national level, from a law to a megaproject. The government provides simple oversight, without protecting the rights of indigenous peoples.”

This assertion is contradicted by Irragorri, who says that “in practice we operate as a kind of notary. We orient the community so their rights are not violated, guide businesses so that they know what their obligations are, and we accompany the process from the beginning.”

“We have a preliminary meeting at which we explain what the process will involve. We do training workshops, impact workshops, and the designation of preliminary agreements, agreements, protocol, closing and monitoring compliance that go with these agreements.”

Guarantees of the Constitutional Court
Given the ignorance or indifference to indigenous rights, the Constitutional Court has become the authority to protect the right to consultation, and according to Rodríguez, “in each of their sentences it has been progressing on what to do, whether ordering to suspend projects until a referendum takes place, or until an agreement is reached.”

That is how the Forestry Act of 2008 and the Rural Statute of 2009 were declared invalid by the Court, because during the processing of the projects in Congress, the participation of indigenous communities and those of African descent were not taken into account.

In one case, in the U’wa communities, a Constitutional Court ruling in 1997 not only stopped drilling for oil on indigenous lands in the eastern department of Norte de Santander by the US company Occidental (OXY) because it lacked prior consultation, but it also reaffirms that the procedure must be made in good faith. This latter is based on a complaint by the U’wa where OXY is accused of presenting as an approval the attendance signatures collected at a meeting.

Another advance was the so-called sentence for Careperro in 2009 that suspended mining on 16,000 hectares, for which access had been given to US company Muriel Mining Corporation in late 2004 in the northwestern departments of Antioquia and Choco.

“Here the Constitutional Court has stopped just talking about popular consultation and starts talking about prior, free and informed consent. This means that the decision of the people is binding and must be respected, and thus incorporates consent into case law,” explains the ONIC representative.

The progress made by the Court was reaffirmed March 3 with the T-129 sentence, which ordered a stop to the construction of a highway, the bi-national electrical connection between Colombia and Panama, and a mining concession in the indigenous communities of Chidima Tolo and Pescadito, in the department of Chocó, until the corresponding consultations with the indigenous community of Embera Katío were carried out “keeping in mind the pursuit of the community’s free and informed prior consent.”

From consultation to consent
And it is precisely consent and the right to veto that are missing from prior consultation in Colombia.

“It is necessary to regulate prior consultation with some procedures, with the burden of proof, a responsible party. The regulation has to be through a statutory law, but it must go through Congress, and communities fear that the project submitted by indigenous organizations will be changed in Congress,” said Carrillo.

“In addition, Colombia should ascribe to the whole of the United Nations Declaration on the Rights of Indigenous Peoples, and the government does not want to hear about the free, prior and informed consent.”

“What is at stake is the life and survival of indigenous peoples. Consultation served to manipulation; in many cases it served to make believe that businesses can come and replace the State. I think the most important thing now is that national and international standards are met regarding prior consultation and that free, prior and informed consent is reached. This would be the most suitable way to real and effective participation of indigenous peoples.”

“In a consultation process, concerns should be heard, comments or observations should be taken into account, yet there is no right to veto,” said Irragorri. “Colombia signed the UN Declaration but made exceptions: for example, regarding to authorization needed for the troops of the Republic of Colombia to enter areas where there are indigenous communities, we believe that that authority can be exercised in the entire country, as well as that in which permission would be needed to exploit indigenous lands, being that our Constitution clearly states that the State owns the subsoil.”

He believes that it is not possible to have “a project under which, given the conflict we have in Colombia, we would need a separate authorization apart from that of the President of the Republic for the free movement of troops.”
—Latinamerica Press.


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Consultation isn’t enough; free and informed prior consent is necessary. (Photo: UNHCR)
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