Colombian Constitutional Court invalidates mining policy for violating fundamental rights of Indigenous and Afrocolombian peoples

Sentence T-766 of 2015 (Constitutional Court of Columbia)

The Colombian Constitutional Court recently invalidated ‘strategic mining areas’ (SMA) which would have made mining concessions over almost 20% of the country available by tender, because they violated the rights of Indigenous and Afrocolombian peoples to prior consultation.

Facts
Since the Uribe government (2002-2010), Colombia has embraced the extractive sector as the driver of its development policy, with current President Santos’ famous announcement that mining was to be a ‘locomotive’ of Colombia’s economy. Seeking to provide some regulatory coherence to deal with the mining titles mushrooming all over the country, the Santos government attempted to replicate the regulatory framework applying to the petroleum sector. Following this model, article 108 of the National Development Plan 2010-2014 (Law 1450 of 2011) authorised the determination of areas of strategic mineral value over which mining concessions could be granted by competitive tender process within 5 or 10 years (the SMA). The areas designated as SMA would be additional to the territory already subject to mining titles or mining title applications.

The government mining authorities passed three resolutions between 2012 and 2013 designating SMA in the form of 516 mining blocks over more than 20 million hectares. In total, the SMA covered almost 20% of the Colombian territory and were principally located in the Amazon, Orinoquía, Chocó bio-geographical region and Colombian Massif. Apart from the ecological and hydrological significance of these regions, they also contain land collectively held by different Indigenous and Afrocolombian communities. In determining the areas to be designated SMA the mining authorities did not consider the impacts on the environment (both the flora and fauna as well as abiotic factors such as the water, air and soil), the current or potential productive use of the areas, such as for fishing, hunting, agriculture or traditional mining, nor the cultural importance of these areas for the communities within and in nearby areas. Nor did they engage in any kind of consultation with the indigenous and Afrocolombian communities inhabiting the affected areas.

The legal action
With the support of lawyers at the Centre for Social Justice Studies: Tierra Digna, 16 affected Afrocolombian Community Councils and the Chocó Interethnic Solidarity Forum brought an action in tutela (seeking a writ of judicial protection of fundamental rights) in September 2013. As Colombia is a signatory to the ILO Indigenous and Tribal Peoples Convention (No. 169) and the Colombian Constitutional Court has previously ruled that the Convention has constitutional ranking (the so-called ‘constitutionality block’), Indigenous and Afrocolombian groups enjoy special rights under Colombian law. This is particularly the case as the Constitutional Court has considered that the Convention has constitutional weight. The plaintiffs argued that the resolutions designating the SMA in Chocó violated substantive rights − the right to a healthy environment, right to food, right to water; and procedural rights − the right to prior consultation, the right to territory and the right to civic participation. A broad range of groups intervened in support of the action, from small-scale farmer campesino and Indigenous groups in other parts of the country to the national Ombudsman.

Decision
The Court found that the designation of the SMA violated the fundamental right to prior consultation and this alone was sufficient to render the resolutions invalid. As such, the Court did not rule with respect to the other rights mentioned in the tutela application.

Why had the right to prior consultation been violated?
The government had argued that consultation was only necessary at the point at which it awarded concessions over specific mining blocks. The Court disagreed, finding that the mere declaration and delimitation of the SMA put at risk, although latently, the subsistence, traditions and customs, use of land, cosmology and history of Indigenous and Afrocolombian groups. It based this finding on two grounds:

(1)     The act of delimiting the SMA constituted a unilateral modification of the economic and productive purpose of the territory of these groups by the State;

(2)     By designating the territory as eligible for mining concessions, it denied other uses and imposed on the communities an extractive form of development.

The Court also considered the impact that the presence of potential prospectors in the territory could have on the customs and cultural values of Indigenous and Afrocolombian communities as well as the risk that they would be exposed to armed groups seeking to control and illegally exploit areas in question. Given the potential impacts on the physical and cultural integrity of these communities, the Court found the State’s failure to consult with them in relation to the demarcation of the SMA constituted a violation of their fundamental rights to prior consultation, to land, ethnic diversity and civic participation.

What was the effect of this violation?
The Court went on to rule to protect the rights not only of the plaintiffs but of all affected Indigenous and Afrocolombian communities throughout the country and as such declared the entire SMA scheme to be invalid. Further, the Court advised the government that should it seek to introduce a similar policy in the future, it must first satisfactorily consult with any affected Indigenous and Afrocolombian groups and obtain their free, prior and informed consent.

The scope and nature of the right to prior consultation
Building on existing jurisprudence of the same court, the Court explained that where a measure (law, policy, program, project, etc) is of a specific character, that is, it directly affects indigenous and Afrocolombian communities, these groups have a right to prior consultation with respect to the measure. Moreover, this right must be guaranteed where the State intends to commence or authorize any prospecting or exploitation of resources in their territory (Art 15.2 Indigenous and Tribal Peoples Convention). Secondly, where the activity or measure is likely to have an ‘intense impact’ on their rights, especially those of a territorial nature, these groups have the right to free, prior and informed consent (based on Saramaka v Surinam 2007 Inter-American Court of Human Rights).

The Court was quick to caution that this does not give affected Indigenous and Afrocolombian communities a veto power, but goes to ensure that the government does not arbitrarily and unilaterally impose measures that will affect their fundamental rights. As the Court stressed, the right to prior consultation involves a ‘real dialogue and intercultural negotiation’ based on the principles of reasonableness and proportionately.

The Court further elaborated that the consultative process should involve legitimate community representatives, the preparation and appropriate dissemination and discussion of environmental and social impact studies with the communities concerned, and involve agreement with the communities with regard to the benefits derived from the project.

Commentary
In the latest of a series decisions regarding the human rights impacts of the country’s mining legislation, the Colombian Constitutional Court’s finding is significant in that it obliges the State to adopt a democratic and participatory approach to development, one more respectful of the fundamental rights of these historically oppressed groups.

The mining sector predictably responded critically to the decision, going so far as to accuse the superior court of having an “ideological bias”. The Minister for Mines also made comments accusing the Court of allowing “minority communities” to jeopardise “development” for the rest of Colombia’s 40 million inhabitants. Nevertheless, the decision can be seen as an indication of the importance of the Court’s role in protecting fundamental rights. By assuring that the State provides for the genuine participation of affected Indigenous and Afrocolombian groups in the development of mining policy, the decision paves the path for the democratisation of the development process in Colombia.

The full text of the decision can be found here.

Lisa Caripis is a Researcher from the Melbourne Law School. She thanks the lawyers and researchers at the Centre for Social Justice Studies: Tierra Digna for their assistance in the drafting of this case note.