CHO Colombia
Various ethnic communities filed a protective action against government authorities to stop the intensive and large-scale use of various illegal mining and logging methods in the Atrato River basin (Chocó).
They argued that the State was responsible for not properly controlling extractive activities in the basin, which had led to an environmental and humanitarian crisis in which the fundamental rights of the communities were violated (right to a dignified life, health, water, food security, a healthy environment, prior consultation, autonomy and territory).
The plaintiffs argued that the pollution of the Atrato River (resulting from the dumping of mercury, cyanide, and other toxic chemicals related to mining) posed a high risk to the life and health of the communities, given that the river water was used for direct consumption and was the primary source for agriculture, fishing, and the communities' daily activities. They maintained that the damage to the Atrato River threatened the survival of the population, the fish stocks, and the development of agriculture, all of which are essential sources of food in the region, the place where the communities have built their territory, their lives, and their culture.
Additionally, they pointed out that logging was endangering species – both plant and animal – and had changed the natural course of the rivers – affecting their marshes and wetlands – which had serious consequences for the subsistence of the communities settled there, arguing that of the 18 navigable branches of the Atrato River, only one was navigable.
The Constitutional Court of Colombia, in its ruling, recognized the Atrato River as a subject of rights and highlighted its ecological importance. The Court based its reasoning on the precautionary principle and invoked its advantages in addressing the devastating effects of climate change. It concluded that the Colombian government failed to comprehensively guarantee environmental protection and the enjoyment of the plaintiffs' human rights by not preventing river pollution from mining. The Court emphasized that the government should consider climate change (among other issues) when developing public policies related to mining and energy. It also recognized the biocultural rights of the inhabitants of the river basin, according to which their autonomous governance over their collective territories must be guaranteed.
The Court found that the Colombian government failed to fully guarantee the environmental protection and the enjoyment of the plaintiffs' human rights by not preventing the river's pollution from mining. The Court declared that, to protect these rights, the government should consider climate change (among other issues) when developing public policies on mining and energy.
Implementation
The court ordered the lifting of the decreed suspension and revoked the ruling of April 21, 2015, which denied the protection in the tutela action filed and granted the plaintiffs protection of their fundamental rights to life, health, water, food security, a healthy environment, culture and territory of the ethnic communities that inhabit the Atrato River basin and its tributaries, holding the authorities responsible for the omission in not providing an adequate, articulated, coordinated and effective institutional response to face the multiple historical, sociocultural, environmental and humanitarian problems that afflict the region, aggravated by the carrying out of intensive illegal mining activities.
As a relevant point, the Court recognized the Atrato River, its basin and tributaries as an entity subject to rights to protection, conservation, maintenance and restoration, and ordered the national government to exercise guardianship and legal representation of the rights of the river through the Ministry of Environment in conjunction with the ethnic communities that inhabit the basin of the Atrato River in Chocó, who will be the guardians of the river.
Additionally, the Court ordered the development of three action plans: one to decontaminate the Atrato River and its tributaries and restore the ecosystems, another to eradicate and neutralize illegal mining, and a third to recover traditional production methods and restore food sovereignty in the basin. It also ordered toxicological and epidemiological studies to determine contamination by mercury and other heavy metals.
Finally, and with the purpose of ensuring compliance with the ruling, the Court ordered the integration of a Monitoring Committee, made up of the Attorney General's Office, the Comptroller's Office and the Ombudsman's Office, who will send reports on the progress of the orders to the Cundinamarca Court in charge of making the final verification.
In this case, the plaintiff emphasized that the intensive and large-scale use of various methods of illegal mining and logging is having harmful and irreversible consequences on the environment, thereby affecting the fundamental rights of ethnic communities, the natural balance of the territories they inhabit, and generating a serious humanitarian and environmental crisis (referring to climate change).
In its ruling, the Constitutional Court recognizes that the protection of the environment and biodiversity is essential for human survival and that of future generations, and mentions that biodiversity conservation has indirect benefits such as the regulation of water cycles, carbon cycles, climate, and cultural services (paragraphs 5.3 and 5.4). It also acknowledges the serious humanitarian, sociocultural, and environmental crisis in the department of Chocó, highlighting the difficult geographical and climatic conditions this department faces.
In its final considerations, the Constitutional Court stated that “it is necessary for the national government to build a public mining and energy policy that takes into account the environmental and social realities of the nation, which include climate change, the biodiversity crisis and the increase in environmental devastation as a consequence of the development of extractive industries” (Pr.9.45)
- Major Community Council of the Popular Peasant Organization of the Upper Atrato (Cocomopoca)
- Major Community Council of the Comprehensive Peasant Association of the Atrato (Cocomacia)
- Association of Community Councils of the Lower Atrato (Ascoba)
- Inter-ethnic Forum for Solidarity in Chocó (FISCH)
- Presidency of the Republic and others
The department of Chocó covers an area of 46,530 km², representing 4.07% of Colombia's total area. It is a territory where multiple racial groups converge, with a population of approximately 500,000 inhabitants, of whom 87% are Afro-Colombian, 10% Indigenous, and 3% of mixed ancestry. Ninety-six percent of its land area is comprised of collective territories belonging to 600 Black communities, grouped into 70 major community councils, encompassing 2,915,339 hectares of titled land. There are also 120 Indigenous reserves belonging to the Embera-Dóbida, Embera-Katío, Embera-Chamí, Wounaan, and Tule ethnic groups, located in 24 of Chocó's 30 municipalities. The remaining 4% is inhabited by a rural population of mixed ancestry.
The Chocó region is one of the most biodiverse areas on the planet, boasting territories rich in natural, ethnic, and cultural diversity. It encompasses four distinct regions of humid and tropical ecosystems, with 90% of its territory designated as a special conservation area. The region also features a large valley running from south to north, through which the Atrato, San Juan, and Baudó rivers flow. The Atrato River basin, covering 40,000 km², represents just over 60% of the department's area and is considered one of the most productive in the world in terms of water resources.
The Atrato River is the largest river in Colombia, stretching 750 kilometers. The surrounding area is rich in gold and timber and is considered one of the most fertile regions for agriculture. The Atrato River basin is home to diverse ethnic communities, and its banks are the ancestral territory of numerous Afro-Colombian and Indigenous groups, including the plaintiffs.
Among the traditional ways of life and sustenance of these communities are artisanal mining, agriculture, hunting and fishing, activities with which they guarantee their total food supply, which is now in danger due to the intensive development of illegal mining and logging activities, in a region that has suffered the rigors of war and forced displacement in the context of the intensification of the internal armed conflict.
- ILO Convention 169
- International and national environmental provisions
- National laws
Beginning
- Principle of prevention
- Precautionary principle
- Principle of progressivity
- Principle in dubio pro natura
- Principle in dubio pro aqua