Indigenous and Afro-Colombians of Jiguamiandó - Rights are Upheld  

 

The Colombian Constitutional Court once again reaffirmed the suspension order made on Muriel Mining Corporation’s Mandé Norte Project in Chocó

British - Australian Multinational Rio Tinto partner in the Project

 

May 2012

 

Muriel Mining Corporation (MMC) set up a project called Mandé Norte/ Murindó in Chocó, Northern Colombia, to explore and extract minerals on collectively owned Indigenous and Afro-Colombian land. The Chocó region is an area renowned for high concentrations of endemic species of wildlife, flora and fauna. The area was declared a Forrestal Reserve by the Government in 1959, recognised as Indigenous land in 1970 and Afro-Colombian communities had their collective land rights recognised in 2000. In 2005, nine mining concession were given for exploration and exploitation of copper, gold, molybdenum and other exploitable minerals; forming the Mandé Norte Mining Project, which covers an area of 160 km2 between the Murindó Municipality in the Department of Antioquia and the Carmen del Darien Municipality in the Department of Chocó.


Rio Tinto, one of the world’s largest mining corporations (and registered on the London Stock Exchange), has an 80% option on exploitation and has been the major contributor to bankrolling the exploration phase of the Mandé Norte Mining Project [1]. As of January last year (2011) Rio Tinto had paid Muriel Mining Corporation (MMC) $3.83 million [2]. Since February 2011 MMC has operated as a subsidiary of Sunward Resources Limited [3]. 

 

 

In 2009 Muriel Mining Corporation (MMC) was taken to the Colombian Courts by Indigenous and Afro-Colombian communities in Jiguamiandó, Chocó, for failing to properly consult with the Indigenous and Afro-descendant communities at its Mandé Norte copper-gold-molybdenum exploration project. The presence of the project had led to the militarisation of the area and human rights abuses. The case reached the Constitutional Court who ruled (in decision T-769/2009) on 29 October 2009 that the Free Prior and Informed Consultation process under the ILO Convention 169 [4] had not been adequately carried out. The Court’s decision added that in the case of large-scale development or investment with a major impact on Afro-descendent and Indigenous territories, their free, informed and prior consent must be obtained, in accordance with their customs and traditions [5]. 

 

The U.N. Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people has similarly observed that:

[w]herever [large-scale projects] occur in areas occupied by indigenous peoples it is likely that their communities will undergo profound social and economic changes that are frequently not well understood, much less foreseen, by the authorities in charge of promoting them. […] The principal human rights effects of these projects for indigenous peoples relate to loss of traditional territories and land, eviction, migration and eventual resettlement, depletion of resources necessary for physical and cultural survival, destruction and pollution of the traditional environment, social and community disorganization, long-term negative health and nutritional impacts as well as, in some cases, harassment and violence.


Consequently, the U.N. Special Rapporteur determined that “[f]ree, prior and informed consent is essential for the [protection of] human rights of indigenous peoples in relation to major development projects” [6].


 

MMC were unwilling to accept this decision and made an application to nullify the Court’s judgment. Instead of supporting the decision made by the Court, the Colombian Government chose also to seek its nullification, repeating the same complaint in an application on behalf of the Interior and Justice Ministry (Ministerio del Interior y de Justicia), stating that the approach in the Court’s judgment in T-769/2009 exceeded requirements contained in the Court’s earlier jurisprudence. Earlier case law had created a requirement for proper consultation of indigenous communities affected by such projects; and had required the state not to act in an arbitrary or authoritarian manner. However, it had stopped short of a requirement for prior consent by indigenous communities on the land affected by such projects prior to their commencement.

 

Tributary of the River Jiguamiandó

 

Concerned about the application to nullify this decision upholding the rights of the Indigenous and Afro-descendents of Jiguamiandó, various Amicus Curae were submitted from around the world, including the Bar of Human Rights Committee of England and Wales.


On 9 March 2012 the Court rejected the appeal made by MMC and the Government of Colombia to nullify decision T-769/2009. The Court reaffirmed the decision and the jurisprudence.



The original decision T-769/2009 noted that the process of consultation with some groups had simply been an administrative act where the communities had not been able to declare themselves in favour or not of the mining of minerals on their ancestral lands.

 

The original decision T-769/2009 had also stated that:


•   The Environment Ministry must complete an environmental impact assessment and circulate the results of the study to the indigenous and Afro-Colombian communities that could be affected by it.

•   INGEOMINAS must suspend any licences that it had already granted in relation to the Mandé Norte project and refrain from granting any further ones until all environmental impact studies had been completed and the consultation process carried out.

•   The Ministry of Defence should objectively analyse why its presence and activities were perceived by the indigenous communities as support for the Mandé Norte project.

 

These points together with the point that some of the consultation processes were simply administrative acts that in no way reflected what was expected from a Consulta Previa, demonstrate the areas of concern constantly expressed by NGOs and international observers that “free” consultation processes cannot be carried out in areas of conflict where communities are subjected to pressure from one armed group or another. “Informed” processes include a detailed social and environmental impact assessment, made available to those being consulted ahead of any meeting with adequate time to (and access to) consult expert advice. Furthermore, “consent” means that the voice of the community has to be accepted. In this case, the lack of a proper consultation process by Muriel Mining Corporation led to the Indigenous and Afro-descendent Communities of Jiguamiandó, in February 2009, taking part in a self-organised internal consultation (Consulta Interétnica de los Pueblos). The consultation involved 77 per cent of the communities directly affected by the mine (1,183 persons), and 100 per cent of those rejected exploration and exploitation by MMC in their ancestral territories.

 

The communities have said no to a mining project and Rio Tinto, Sunward and MMC must respect this. They should not to try to develop the mine against the communities’ wishes.

 


Pounding Rice for dinner in Jiguamiandó

 

More information:

•   UK newspaper The Independent alleged that there have been a series of allegations of human rights abuses at the Rio Tinto plants in Indonesia and Papua New Guinea. In 2008, Norway banned its sovereign wealth fund from investing in the company because of the environment. The article also draws attention to the pollution created by Rio Tinto’s plants in the USA being responsible for premature deaths. It is from one of these mines that the minerals for the 2012 London Olympics medals have been provided. Read the full article here.


•   Read ABColombia's article 'Mande Norte Mining Project in Embera Indigenous Peoples Land' to find out more about this case.

 

•   Watch PBI Colombia's video 'Embera indigenous people say 'no' to the mining industry'.

 

•   Watch this video (in Spanish only) by the Coordinacion Regional del Pacifico 'El espejismo de la minerìa' on mining in the Choco department of Colombia.

 

 

Notes:

[1] The British registered mining company Rio Tinto has the option to acquire a seventy percent (70%) interest in the Murindo Project on payment to La Muriel of US$60 million in cash. La Muriel may elect to require Rio Tinto to increase its interest to eighty percent (80%) by requiring Rio Tinto to fund the next US$15 million in project costs, and it may further elect to require Rio Tinto to acquire the remaining 20% interest for US$20 million in cash. If Rio Tinto does not exercise its option to acquire a 70% interest, it will retain a 1.7% net smelter royalty in the Project in consideration for the US$3.83 million it has previously paid in respect to the Murindo Project. Source: London Mining Network

[2] ibid

[3] The Sunward Resources Ltd News Release, Murindó Project Update, 23 November 2010, states that the sole shareholder of La Muriel is Gold Plata Mining International Corporation, a wholly owned subsidiary of Panama-based Goldplata Mining International Corporation (Goldplata Mining) and controlled by Michel Juilland. According to the ‘Money to Metals’ website, at the end of 2010, US investment company Electrum Strategic Metals LLC (with Tocqueville Asset Management playing a minor role) agreed to pay a combined maximum of US $51.3 million to Sunward Resources...Sunward announced that this deal would also “facilitate closing of Company’s earlier-announced acquisition of La Muriel Mining Corporation..”. See:
http://moneytometal.org/index.php/Electrum_Strategic_Resources_LLC and  www.sunwardresources.com

[4] Colombia ratified ILO Convention 169  on 7th August 1991

[5] Original text from Constitutional Court ruling Sentencia T769 " 09: ‘cuando se trate de planes de desarrollo o de inversión a gran escala, que tengan mayor impacto dentro del territorio de afrodescendientes e indígenas, es deber del Estado no solo consultar a dichas comunidades, sino también obtener su consentimiento libre, informado y previo, según sus costumbres y tradiciones …’ Available from: http://www.corteconstitucional.gov.co/relatoria/2009/T-769-09.htm

[6] Amicus Brief http://www.barhumanrights.org.uk/content/colombian-constitutional-court

 

Version in Spanish / Versión en español

 

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