The Afro-descendant and Indigenous communities living along the River Atrato in Chocó, as a result of the state’s failure to act to protect their rights, chose to use constitutional law, a “Tutela”, in an attempt to force the state to comply with its obligations to protect their fundamental rights and the rights of the river. On 10 November 2016, they won a landmark decision from the Court Sentence T-622. In this sentence, the Court introduced the concept of bio-cultural rights into Colombian constitutional law, thereby recognising the direct interdependency between nature, natural resources and the cultures of ethnic communities and Indigenous Peoples. The Court found that the authorities had failed to comply with their constitutional obligation to take concrete and effective measures to stop the illegal gold mining activities, which had precipitated a humanitarian and environmental crisis in the Atrato river basin, its tributaries and the surrounding territories. It was one of the first sentences in the world to be issued by a court on the bio-cultural rights of a river.
The focus of this article is to examine the legal action taken by the communities in an effort to address the humanitarian and environmental crisis they were facing. The Afro-descendant and Indigenous Communities of Chocó, represented by the Consejos Comunitarios and ethnic networks with lawyers from the NGO Centro de Estudios para la Justicia Social Tierra Digna (Tierra Digna), realised the only effective and sustainable way of addressing the problems they faced was petitioning the Constitutional Court to order the Colombian State to dismantle the illegal gold mining, protected or owned by illegal armed groups, and to halt the illegal deforestation; to address the lack of basic services; and to clean up the environmental degradation caused by the illicit economies. Unlike any other Colombian department, 97 per cent of the population of Chocó is indigenous or Afro-descendant, living on collectively owned territory.
Chocó is a remote tropical cloud forest region of Colombia and one of the top ten hotspots in the world for its biodiversity (Critical Ecosystems Fund 2005), with 98% of its territory granted in collective ownership to indigenous and Afro-descendant populations. In Chocó there are 120 Resguardos (indigenous Reserves) and 70 consejos comunitarios mayores (governing bodies of Afro-descendant collective territories), covering 96% of the bland in the Chocó Department.
The Fuerzas Armadas Revolucionarias de Colombia (FARC), the largest of the guerrilla groups in Colombia, withdrew from Chocó following the signing of the Final Peace Accord in November 2016. However, the internal armed conflict continues in Colombia; the main illegal armed groups are the Ejército de Liberación Nacional (ELN), the largest guerrilla group after the FARC, and the neo-paramilitary groups. In 2017, Colombia registered the second highest number of people internally displaced in the world [IDMC 2017]. The failure of the state to occupy the power vacuums left by the FARC resulted in an increase in the number of ELN combatants and neo-paramilitaries in Chocó, with increased violence as these groups fought for control of the revenues from established illegal economies [UN Security Council 2017; ABColombia 2017, 2018]. In spite of Chocó being highly militarised – Titan, a joint security forces team (Army, Navy and Airforce) is deployed in Chocó – illegal armed groups transit with ease.
Chocó is situated between the Darién Gap on the border with Panama and the departments of Antioquia and Valle de Cauca; its connecting river systems flow into the Pacific Ocean and the Caribbean Sea (via the Gulfo de Uraba). As a result, Chocó is a strategic corridor for drug trafficking and illegal arms importation (OECD 2017). The illegal gold economy also moves large sums of money in Chocó. All of the armed actors in Colombia benefit from the illegal gold trade; bribes are paid for the entrance of heavy machinery, protection money is paid to whichever illegal armed group that is in control, and the gold is used for money laundering for the drug-trafficking trade, as large amounts of coca are grown in Chocó (OECD, 2017). These dynamics have a major impact on the ethnic communities living in Chocó, generating increased violence, intimidation and fear; curfews are imposed by illegal armed groups. Yet, the illegal economies also provide a source of income for a desperately poor region, with little infrastructure and prohibitively high transportation costs that make the marketing of agricultural products currently unviable without state subsidies.
In Colombian Law, territory is a fundamental right for ethnic communities. The organisation of territory in Chocó differs from the rest of the country in that the majority is collectively owned land, titled to indigenous or Afro-descendent communities. Afro-descendant communities were granted collective land-rights to territory occupied ancestrally in the 1991 Constitution,[i] provided they comply with certain governance criteria; this right is regulated by Law 70. The ancestral territories are mainly found along the Pacific Coast of Colombia.[ii]
However, it was not until the latter part of the 1990s that illegal armed actors (paramilitaries and guerrilla groups), began to see small-scale mechanised mining as a potentially lucrative business in Chocó. Brutal violence increased, and this combined with pollution of the rivers, gravely impacted on the riverine communities’ health and way of life (Acción Popular). Extreme levels of poverty related to the disruption of their traditional way of life, were further compounded by state abandonment.
The way of life of the ethnic communities in Chocó over hundreds of years has contributed to the preservation of its rich biodiversity (Tierra Digna 2017). All this changed in the 1980s, with the entrance of paramilitary groups and a gold rush which saw miners arriving with mechanical diggers, bulldozers and “dragons” (floating mining platforms on the river). The miners were from Brazil and neighbouring departments (referred to locally as ‘foreigners’). Mercury was used to separate out gold, the residue of which was washed into the rivers. By 2010, Colombia was the world´s worst mercury polluter per capita from small-scale mechanised gold mining, and Chocó one of the worst areas (UNIDO 2009; ABColombia 2015).
The impact of small-scale mechanised gold mining on communities
The Rio Quito is a tributary of the Atrato; here there are four collective territories owned by Afro-descendant communities (San Isidro, Villa Conte, La Soledad y Paimadó). Their traditional way of life involved agriculture (growing corn, rice, cocoa, coconut, sugar cane, bananas etc.), fishing and artisanal gold mining.[iii] The small-scale mechanised mining gold rush arrived in Paimadó, Rio Quito, with technical diggers in 1999 (Tiempo, 2009). Approximately ten years later, in 2009, a government inter-agency Commission revealed that this small-scale mechanised mining, numbered 24 mechanised platforms, each of them extracting on average 300 grams of gold per 20-hour day. They had dumped in the river: four tons of mercury and 35,000 gallons of fuel; created 250,000 tons of sediment, and destroyed 400 hectares of virgin forest (Tiempo, 2009). The ecological damage to the river was incalculable, affecting flora, fauna, aquatic resources and damaging public health (Panorama del Sector Minero, 2014; Tiempo, 2009).
‘When these miners arrived in our communities, they started taking our resources, which left the community without opportunities. Before, we managed this activity, but in a traditional, artisanal way… I am telling you this frankly, because it is not a secret: the subject of mining also entails the presence of armed groups who ‘own’ them or demand ‘protection money’.
Collectively owned land is governed by Community Councils and regular council elections are held. Any new activities on the land must be agreed by the Council. Mechanised small-scale mining created tensions and divisions in communities between those in favour of entering into contracts with the miners and those who opposed them. The disputes have been so serious, that in some communities, parallel Community Councils were established to agree the contracts; or individual families ignored the Community Council entering into bi-lateral agreements with the machine owners to exploit their farm land; and in other cases, Community Councils, oblivious to the possible consequences, formed small companies with the miners, with disastrous results (Interviews in 2014).
The social fabric of the communities along with their traditional economic activities have been severely damaged, forcing community members to seek work elsewhere. The impacts disproportionately effect women. Women traditionally gained an income from panning for gold; however, the illegal miners, once they had moved in, put severe restrictions on artisanal mining activities.[iv] As a result, the women were forced to work at the mining camps, washing clothes and cooking.
‘…many women have been sexually abused by the guys who come here to mine, they offer them jobs and end up raping them and then other men [at the camp] continue raping them… there are women who are affected psychologically, traumatised by what has happened to them…’[v]
The illegal miners pay protection money for their operations to illegal armed groups, as well as bribes to the security forces (OECD 2017). The presence of illegal armed groups protecting the mining operations makes it impossible for the community councils to control the spread of this mining in their territory. Furthermore, reporting these mining operations puts the lives of community leaders in danger; however, many take that risk to try and stop the destruction of their way of life:
‘you put yourself in real danger… this kind of situation creates fear and terror… not everyone has the courage to confront it…’.[vi]
‘the authorities … are very slow. For them to act we have to be right on top of them and sometimes there is no confidentiality even within these [state] institutions. For example, if you report that you don’t want a miner to be mining the way they are doing it, you run the risk that they will kill you’.[vii]
One major problem for community leaders is informants in the local authority’s structures, who inform the illegal armed groups when leaders are denouncing the mining operations. The community leaders constantly complain that a few hours after reporting to the authorities that an illegal mining camp has been set up on their territory, they receive death threats – often by text message – warning them that they will kill them if they continue denouncing. In 2017 alone, 121 Human Rights Defenders and community leaders were killed in Colombia.
Use of the law to force the State to respond
After years of inaction by the State and the increasing phenomenon of illegal mining, the communities along the Atrato River organised to use legal mechanisms to force the state to respond to their situation.
The community councils of Bajo Atrato, The Asociación de Consejos Comunitarios del Bajo Atrato (ASOCOBA) asked a group of human rights lawyers – Centro de Estudios para la Justicia Social Tierra Digna (Tierra Digna), who specialise in working with communities on the negative impacts of extractives on human rights, to help them to get the State to respond and address the violations of their rights. These ranged from lack of satisfaction of their basic needs (health education, drinking water etc.) to the destruction of their environment. These communities live in Bajo Atrato, the majority of the mining was extracting in Medio and Alto Atrato.
Tierra Digna set up a school for the leaders from ASOCOBAR to facilitate exploration of the problems they were facing and to examine what steps they could take. For the communities of ASOCOBAR the contamination from the mining and deforestation were identified as two of the major problems. Companies arrived extracting the wood. Although some had licences to do this from CODECHOCÓ (local environment agency), they were also cutting down the cloud forest across far greater areas than they had been given a licence to exploit (Interviews, 2018). The residue of this deforestation was thrown into the river, drying out the ciénagas (swamps), silting up the rivers making them difficult to transit. Additionally, contamination from the gold mining in the Medio and Alto Atrato was flowing down the river and polluting the water. High on their list of concerns was the impact of mercury on the health of the communities. What emerged as the key element on which fulfilment of many of their needs depended was the environmental protection of the river Atrato (Interviews, 2018).
They recognised that an integrated approach along the whole of the Atrato River and its tributaries was the only sustainable way of addressing what were interrelated impacts. The ASCOBAR communities therefore brought together community councils and the interethnic organisation: the Foro Inter-étnico Solidaridad Chocó (FISCH), which represented both Afro-descendant and Indigenous Peoples in Chocó, the Consejo Comunitario Mayor de la Organización Popular Campesina del Alto Atrato (COCOMOPOCA), Consejo Comunitario Mayor de la Asociación Campesina Integral del Atrato (COCOMACIA) to discuss the problems; and they agreed on a joint legal strategy with Tierra Digna.
Constitutional Court Case
In January 2015, Tierra Digna as legal representative of the communities, submitted a Tutela to the Constitutional Court (CC). A Tutela is a special action that any individual citizen can use to ask the CC to rule on a violation of their fundamental rights. The lawyers and communities were unsure as to whether the Constitutional Court would accept this Tutela, as Tutelas were intended to redress violations of the fundamental rights of individuals, whereas this Tutela addressed the fundamental rights of a collective of organised communities. The decision proffered by the CC created important jurisprudence, in that it accepted a Tutela from a group of organised communities, and recognised the inherent interdependency of environmental rights and fundamental rights.
The communities argued that the contaminating activities produced by illegal mining were having a direct impact on people’s health, as well as other indirect impacts on human well-being. These were related to the reduction of forest products, affecting food security and traditional medicines and forcing changes in traditional practices, uses and customs of ethnic communities, because of the impacts on biodiversity.
They explained how the authorities’ failure to fulfil their constitutional obligations to take concrete and effective measures to stop the illegal mining activities had resulted in an unprecedented environmental and humanitarian crisis due to contamination with toxic substances, erosion, accumulation of waste, deforestation and loss of biodiversity, in the river basin of the Atrato River, its tributaries and surrounding territories. This crisis was further exacerbated by the uncontrolled violence perpetrated by armed actors. Therefore, the claimants asked the Court for protection of the communities’ biocultural rights. In its simplest definition, this refers to the rights that ethnic communities have, to administer and exercise autonomous guardianship over their territories and the natural resources that make up their habitat, in accordance with their own laws and customs.[viii] This is vital as their culture, traditions and way of life were developed based on the special relationship they have with the bio-diverse environment. In effect, these rights result from the recognition of the intrinsic connection between nature, its resources and the culture of the ethnic and indigenous communities that inhabit them, which are interdependent with each other and cannot be understood in isolation (T-622/16).
The CC initially ruled against them; the communities then appealed this decision to the Council of State, which in turn denied the application. Usually, the Council of State’s decision would have ended the legal process for these communities. However, the CC has the competence to select cases for an in-depth review where the Chamber considers that the case poses several complex constitutional legal issues. Due to its extraordinary legal and constitutional complexity, this Tutela was selected.
In the subsequent examination the CC consulted experts, made a field visit, held local hearings and a local assembly with all the communities involved in the case. Then, in a ground-breaking ruling, on 10 November 2016, the Court took an ecocentric approach to human rights, recognising the Atrato River as a legal entity with environmental rights that need to be protected alongside the communities’ bio-cultural rights. By this, the Court acknowledged the inherent interdependency between the environment and communities in the Atrato region. It was one of the first sentences to be issued by a court on bio-cultural rights of the river; three other sentences from New Zealand, Ecuador and India also address the rights of nature [Cano, 2018].
The Court, in sentence T-622/16, ordered the government to take a series of measures to protect the Atrato River and combat illegal mining in the region whilst taking account of the environmental and social realities. The sentence also emphasised the constitutional right of ethnic communities to free, prior, informed consultation and consent, and stated that “serious violation of the fundamental rights to life, health, water, food security, the healthy environment, the culture and the territory of the ethnic communities that inhabit the Atrato River basin and its tributaries, attributable to the Colombian State entities” (T-622 para 9.45).
The sentence of the Court ordered the government to design three plans in consultation with the communities to implement the sentence, along with deadlines for their completion:
- Environmental Plan (1 year);
- Eradication Plan for the illegal mining (6 months);
- Plan to address food security and protection of cultural practices (6 months).
In addition, the government was required to complete toxicology and health studies of the local population.
Diagram 1: State Departments responsible for the different aspects of implementation of the Sentence T-622/16
In addition to the implementation structure, the Court put in place a committee responsible for monitoring the implementation.
Monitoring Committee (Comité de Seguimiento a la Sentencia)
This Committee consists of the Procuraduría (Inspector General), Controlaria and Defensoria (Human Rights Ombudsman). The Procuraduría is responsible for convening this committee every six months to monitor progress on implementation. Sentence T-622 also makes provision for a Panel of Experts to advise the Procuraduría, regarding the quality and applicability of the technical plans produced.
The inclusion of the Procuraduría in this committee is significant, as the Procuraduria has a disciplinary function in relation to State Institutions; its powers include sanctioning individual state employees who do not fulfil their responsibilities. This committee could therefore place pressure on the individuals officials to ensure that they fulfil their responsibilities and implement the sentence. Chocó has a range of sentences dictated by the Courts in relation to the environment, mining and lack of adequate public services which have not been implemented.
The government of Juan Manuel Santos, following the T-622 sentence, established the Comisión Intersectorial para Chocó. This committee currently is responsible for the coordination and implementation of at least nine previous court decisions in relation to the environment and the humanitarian situation in Chocó; Resolution 064 of 2014 from the Defensoria, which sets out the requirements for addressing malnutrition in indigenous children in Chocó; and agreements made between the State and the citizens of Chocó as a result of two major Paros Civicos (civil protests), as well as sentence T-622. It is led by the Presidential Office and the Planning Department.
However, the concerns of the communities affected by the T-622 sentence were that this Commission whilst positive in terms of coordinating the implementation of all of these provisions, both diluted the participation of the communities and the possibility of close scrutiny of the implementation of the T-622 sentence; the Commission had a wide range of objectives and the representative of the Guardianes was just one of many. The Guardianes have insisted that the structures determined by the Court are the ones that will be used to implement the decision.
Guardianes del Atrato (Guardians of the Atrato)
In the sentence, the Court ordered the formation of a body called the Guardianes del Atrato, which was conformed of one Government representative and one community representative, to jointly fulfil the role “guardians” of the rights of the Atrato River. The communities decided that the task of explaining the sentence, attending meetings, informing the communities and representing the views of all the consejos and resguardos was too much for one person, especially considering the Atrato river is 750 kilometres long and with a considerable number of tributaries. A team of 14 Guardians, seven males and seven females, was proposed. After discussion, this was agreed by the government and enacted via Resolution 0907 (presented in December 2017 and approved in May 2018). The Resolution however did not identify any resources for implementation; the institution of 15 Guardianes is now legally recognised, but there is no budget to carry out the work. The lack of any budget for communities that are desperately poor is a major disadvantage.
Possibilities of implementation of the T-622 Sentence
The CC set out in detail which institutions should be involved in monitoring, and which in implementation of the decision. In addition, it provided for expert advisors to facilitate the work of the monitoring committee which is composed of officials responsible for control of state institutions and monitoring of human rights. The inclusion of state officials with a disciplinary role demonstrates an effort by the CC to ensure that there is political weight and will behind the monitoring of its implementation; the detailed structure for its enforcement provide this decision with a stronger possibility of implementation than other CC decisions.
There are other important elements that need to be taken into account, which will be essential if this decision is to be implemented sustainably. Coordination across the four thematic areas dictated by the CC is required. If each department produces and implements a plan to address sentence T-622 without any coordination, then the changes will prove to be unsustainable. For example, the Defence Ministry is responsible for the destruction of the dragons and removal of illegal mining from the river: if the Defence Ministry does not coordinate with the Agricultural Ministry, which is responsible for providing agricultural projects to replace the income from mining, then the levels of poverty in these communities would result in them being forced to return to work for the illegal mining operations or be pushed into the hands of other criminal mafias.
Participation of local communities was a central element in the production and submission of the Tutuela; it is also essential for ensuring its successful implementation. The acceptance of 14 Guardianes del Atrato (7 male, 7 female),a positive step, wasundermined by the failure to provide funding. Resolution 0907 de 2018, providing for the Guardianes, was approved without any budget for its implementation. In this respect, the lack of a budget for the Guardianes considerably weakens this body and restricts the work they can undertake. The Guardianes will need a budget for travel (travel is extremely costly in Chocó) and to cover their loss of earnings or to cover the time they would have spent farming. At the moment they are looking to raise the money from international cooperation. But the lack of provision of a budget by the state also indicates a lack of political willingness, which weakens the position of the Guardianes.
Another trends emerging are the exclusion of consultation and participation of communities in the design of the implementing plans. The baseline study and action plans were presented to the communities in June 2018. The baseline study and five-year plan produced, had been done without the participation of the communities. The lack of a voice in what was to happen in their territories generated considerable concern which was exacerbated by the poor quality of the baseline study and lack of detail in the action plans. The baseline study did not offer an integrated analysis of the complex networks of the drivers of mechanised illegal mining or any plan for establishing, through primary research, a baseline study of the degradation of the river basin. The documents presented collated quite dated secondary literature and data sets on the region. There was also a lack of integrated analysis and monitoring indicators.
The use of illicit gold mining to fund illegal armed groups and the laundering of drugs money brings into play a range of illegal armed groups and criminal networks that pose a major obstacle to the security of those engaged in the implementation of T-622. In 2015, the government stated that illegal mining had surpassed drug trafficking to become the principal generator of dirty money in Colombia (Bargent et al 2015; GITOC 2016; Semana 2013). The payment of bribes to all armed actors, legal and illegal, as well as corrupt local authorities, will make this a difficult sentence to implement effectively and sustainably.
The lack of response by the state to create adequate conditions for participation of the communities also includes issues to do with the safety and security of the Guardianes and other community leaders in the region, who are threatened and have received little or no support in terms of protection mechanisms from the National Protection Unit. The lack of political willingness that some of these factors indicate will majorly hamper the effective implementation of the decision.
However, the commitment from the communities throughout Chocó to see this sentence implemented has resulted in them undertaking a campaign to inform the diplomatic corps, INGOs, academics and the media, which has produced a range of very positive results. One of the promising results of this work is that a bid designed to support the communities in the implementation of the T-622 sentence led by Glasgow University was approved with funding from the Newton Caldas Fund, Economic Social Research Council and Colciencias. The United Nations Environmental Programme has prioritised their involvement in the implementation of this sentence, along with the World Wildlife Fund (WWF) and other international organisations, including ABColombia and its member organisations.
Tierra Digna and the communities of FISCH, COCOMOPOCA, COCOMACIA and ASCOBAR achieved sentence T-622 and thereby demonstrated that communities are able to use the Colombian legal system to force the state to engage in the upholding of the rule of law. Only time will tell whether the use of the law in this context will be effective. Political will is obviously a key element in the implementation, but it is not the only one. The oversight and engagement locally, nationally and internationally, if coordinated, can add considerable weight to the possibility of implementation of what is one of the most important judicial decisions globally to uphold the rights of nature. The international context whereby the rights of nature are also gaining ground further promotes the possibility. This is obviously the first step in what will be a long road ahead. It is by no means clear in this moment if this sentence will be fully implemented. However, there is a determination on the part of the Guardianes del Atrato, and organisations locally, nationally and internationally to seeing this implemented.
Acción Popular por la violación de los derechos colectivos consagrados en los literales a), c), f ), g) del artículo 4 de la Ley 472 de 1998, Consejo Comunitario de Paimadó
ABColombia (2015) Fuelling conflict in Colombia: The impact of gold mining in Chocó
Cano Pecharroman, Lidia (2018) Rights of Nature: Rivers That Can Stand in Court, Earth Institute, Columbia University, New York
Global Initiative against Transnational Organized Crime–GITOC (2016) Organized Crime and Illegally Mined Gold in Latin America
Instituto de Estudios para el Desarrollo y la Paz –INDEPAZ (2015), XI informe de presencia de grupos
narcoparamilitares en 2014
OECD (2017) Due diligence in Colombia’s gold supply chain gold mining in Chocó
UNODC (2016) Colombia: Explotación de oro de aluvión Evidencias a partir de percepción remota
OHCHR (2018) Annual Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia
UNIDO (2010) Antioquia, Colombia: the world’s most polluted place by mercury: impressions from two field trips
UN Security Council (2017), Report of the Secretary-General on the United Nations Verification Mission in Colombia, para 21.
Constitutional Court judgment T-622/16 of 2016. https://bit.ly/2oVoQGI
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Bargent, James and Norby, Michael (2015), Al Jazeera America, Blood gold: From conflict zones in Colombia to jewellery stores in the US.
El Tiempo, Decomisan 24 dragas por explotación ilegal de oro en Chocó y hallan peces contaminados con mercurio, 21 April 2009.
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[i] This Constitutional Rights was enacted into law via Law 70 of 1993.
[ii] Afro-descendants originally arrived here as escaped slaves and later as freed slaves. They occupied this remote jungle area of Colombia and began to develop a traditional way of life similar to that of indigenous peoples. Law 70 of 1993 which enacted the Constitutional changes enshrines protection of Afro-descendants’ cultural practices and traditional uses of natural resources, as well as guaranteeing the economic and social development of their communities. By 1996, many had formed the required community structures and had received their formal land titles or were in the process doing so.
[iii] Paimado community also applied for and obtained many years ago the mining rights for black communities in their territory. However, they have been unable to realise this right due for a variety of reasons including the illegal mining that is operating in their territory.
[iv] In these riverine communities they paned and dived for gold this provided an important portion of their income. The livelihoods of these communities previously had a balance of activities, all of which contributed to an adequate income. Artisanal mining was a key component of this. When the miners moved in, the community members either had to work for them or wait on the side of the rivers until the miners stopped the machines for a set period to let community members pan for the dregs left behind. With the rapid destruction of their livelihoods, community members started working for these miners. See ABColombia’s Report for more information on the different forms of artisanal mining used by these communities.
[v] Person 1 interviewed by ABColombia in September 2014
[vi] Person 2 interviewed by ABColombia in September 2014
[vii] Person 3 interviewed by ABColombia in September 2014
[viii] Law 70 of 1996 affords Afro- descendant communities with collective territory protection of their “to administer and exercise autonomous guardianship over their territories -according to their own laws, customs”