After five years of legal uncertainty, the Colombian Constitutional court finally made clear that a National Park prevails over a mining title. A victory for nature and indigenous peoples and a precedent in defense of territory for communities all around the world!

In our time of devastation in the natural world around us, with the exception of indigenous people, nature is rarely expressed as sacred (Cashford 2011). The recent decision taken by the Colombian Constitutional Court honoured this sacredness, expressed by the Makuna, Tanimuka, Letuama, Barasano, Cabiyari, Yahuna and Yujup-Maku, inhabitants of the Yaigojé-Apaporis Indigenous Reserve, five years ago when this legal case was opened. Indigenous leaders asked the Colombian Government for the creation of a Protected Area in order to prevent Canadian Corporation Cosigo Mining Resources to exploit gold in their land.

Situated in the heart of the Northeastern Colombian Amazon, it holds pristine forests inhabited by millions of species that enjoy the generosities of the abundant Earth¹. This reservoir is know to be part of the cultural complex of the Vaupés region, where all the groups share a mythical territory, and hold cultural and spiritual values that are coherent with what in the west we have defined as conservation (PNN YAP 2014). For this reason, when the Canadian corporation visited the malocas², offering money to the leaders in order for them to accept their interest in extracting gold from one of their most important sacred sites³, La Libertad or Yuisi/Yuika⁴, they refused.

After a long search for governmental support and legal episodes, the Court finally gave its last word the past week when ordering the immediate suspension of mining activities in the region. Even though the Colombian legal status of National Parks prohibits mining and other extractive activities, in the practice things where not so clear. Looking back at some of the important episodes in this story may clear out the sequence of happenings and give strength to the importance this case has gained in the country as well as internationally.

Looking back

When the company started visiting the communities, traditional authorities were motivated to call leaders and captains to an urgent Congress of Traditional Authorities of ACIYA⁵, where they expressed the danger this initiative represented, not only for the preservation of their territory, but to the balance of the planet. They believe minerals are like “lenses” for the elders to be able to look at the state of the Earth within her, so if this gold were to be removed from this sacred place; they would loose their ability to cure and to manage the territory with their thoughts.

With support and guidance of advisors, they requested the government for the creation of the National Park⁶ over their territory, for it is the only territorial zoning category in the country that protects the subsoil. “We knew that the Reservoir only protected 50cmts of soil, the space that the root of the manioc occupies, below that point it belongs to the government”, say traditional leaders. The overlapping of these two figures is based on the compatibility between the National Park and the Indigenous Reservoir, and an incompatibility between these and mining activities, and represents a challenge for the coordination between public and traditional authorities⁷ (PNN YAP 2014).

In spite of the fact that this initiative was born from the indigenous community’s self-determination, there were two situations that turned this case into the Colombian ‘Avatar’. A mining title was granted to Cosigo Resources two days after the National Park was declared and it had not been revoked until now, and a tutelage was placed against the National Parks office complaining that the creation of the protected area infringed upon the fundamental rights to cultural identity and to the due process of previous, free and informed right granted by the Previous Consultation⁸. This tutelage was placed by the representatives of ACITAVA⁹, an indigenous association of communities that inhabit this region on the other margin of the river¹⁰. The presence of the company on the region caused confusion offering money and promising jobs, diving the communities.

A public hearing was held in January 2013 in Centro Providencia, which was decisive for the decision of the Court because the judges traveled to the heart of the Amazon to listen to the elder´s voices and points of view. The leaders from ACITAVA admitted they had received money from the company to hold this legal process against the declaration of the protected area, and the judges of the Supreme Court recognized the previous consultation process had been legally completed by PNN before declaring the protected area, and had respected their own will and the incompatibility of it with mining activities (PNN YAP 2014).

The elements of victory

The court´s statement guarantees that the declaration of the protected area was legitimate and it orders the suspension of mining activities in the region and the investigation of the company. The judges found enough evidence to ask the Justice Minister to open a case regarding the behavior of the company and their improper participation in the previous consultation process of the communities. In 2013 the government published a list of Projects of National Interest were the Cosigo mining project was included, together with other mining and infrastructure projects. This list was based on the Mining Code of Colombia that states that mining is of national interest, meaning these projects were priority. The list has recently been republished and the Cosigo project was taken out of it.

The sentence is emphatic in recognizing that it was the proper indigenous leaders who requested the creation of the protected area, and that they are legitimate authorities and for this does not threaten fundamental rights such as identity, but in the contrary, it aids for its preservation. This pronouncement recognizes that the popular consultation was done in all the communities in the Reservoir as well and it honors the compatibility of the indigenous practices and ways of living with the conservation of the environment

The Court´s sentence confirms the compatibility of an Indigenous Reservoir, a Forest Reserve and a National Park, and the need for the traditional authorities and the environmental authorities to coordinate the administration and management of this territory. As a result of this process, 27 locals from 9 communities¹¹ of the Yaigojé-Apaporis Reservoir have become local researchers and cultural leaders who are developing research exercises about the traditional management model of the land, advised by the elders¹². This will be the base for the definition of a management and coordination instrument made from the traditional point of view that will be legitimate and recognized by the National Park for its administration. This local research exercise won the UNDP Equator Initiative Prize last year. Local leaders traveled to NYC to receive it and turned the eyes of the world towards this inspiring case in a corner of the Northeastern Colombian Amazon.

Local knowledge systems have been based on the life-support capacities of the tropical forest, not on their commercial value (Shiva 2012). As Martin von Hildebrand, founder of Gaia Amazonas Foundation “The indigenous people are the natural allies for the whole environmental movement and all protect the rainforest, but we have to understand they are allies and allies need reciprocity” (2015).

“I don’t think we can protect the Amazon without the indigenous people. If we want to protect it, there is no way that we can set up 200, 500 thousand forest guards, train them and have them down there to protect it, but the communities are already there, they have the traditional knowledge, they are organized. We just have to support them with what they need to run their own territories, and they will fulfill the role. It is not their role to hold the position of forest guards, but because of their cosmology and their knowledge of the forest, they are not going to cut it down, but they do need support from the government. If they are left on their own because they have needs, like everybody, and of the government is not willing to give them a hand we will find companies and other people legal or illegal willing to give them a hand, and then that knowledge will turn against us, instead of being in favor of us” said Martin von Hildebrand during an interview the past 13th of April, 2015.

Notes:

1 In spite of the good state of the ecosystem in this area, there are great threats to the ecosystem beyond mining. One of the largest threats are the illicit crops, like coca. Farther north, there are big crops and labs where the cocaine is produced and to be commercialized through in Brazil. The crops have big extensions and so require chemical pesticides and fertilizers. Some other threats and pressures the region is facing are: illegal mining, fishing industries and the expansion of the agricultural colonization frontier (PNN YAP 2015).

2 Malocas: Traditional houses on the river.

3 1580 sacred sites have been identified in this territory, and are classified according to the use and management these should be given.

4 “Yuisi is the crib of our way of thinking, of life and power. Everything is born here in thought: nature, the crops, trees, fruits, everything that exists, exists before in thought” (traditional leaders ).

[5] ACIYA (Association of Indigenous Captains of Yaigojé-Apaporis) and ACITAVA (Association of Indigenous Captains of Taraira Vaupés) are AATIS, Associations of Traditional Indigenous Authorities of the Amazon region, which are recognized by the hegemonic government as legitimate authorities, created by Decree 1088 of 1993. Since 2001 these associations hold a Permanent Coordination Table to work on topics concerning the entire Amazon region. These are the two associations of communities and leaders that live and own the Yaigojé-Apaporis indigenous reservoir. ACITAVA was recently created with the support of advisors sponsored by Cosigo, the mining company.

[6] In February 2008 during a meeting of ACIYA the traditional leaders spoke about their concern for the impact of economical activities on their sacred sites and decide to approach PNN´s help for the protection of their land by declaring it a National Park. The 17th of March 2008 a declaration was sent to the National Parks, office signed by 17 Captains (how they call the political leaders of the communities) of ACIYA requesting the declaration of the protected area. The 23rd of June 2008, PNN and ACIYA signed the first agreement for the declaration of the National Park in order to advance with the process “to guarantee the protection of the cultural values associated to nature for the maintenance of the biological and cultural diversity of the country and to guarantee the supply of goods and environmental services which are essential for the human wellbeing” (Inter-administrative Agreement No. 003A, PNN YAP 2014). The National Park was finally declared on 27th of October of 2009 (Resolution 2079) after the long process of participating all the communities in the Reservoir and building an agreement.

[7] The Colombian National Parks agency is based in a conservation paradigm, which recognizes the presence of these groups in the protected areas with its slogan “Parks with People”, and holds the policies, which enable this compatibility, like the Social Participation in Conservation Policy. The instrument designed for the administration of protected areas overlapped with indigenous territories is called REM (Special Management Regime), with the purpose of building a special management plan for the territory, which includes the traditional point of view and is designed between both the governmental authorities represented by PNN (Parques Nacionales Naturales de Colombia) and the traditional authorities represented by ACIYA (Association of Indigenous Captains of the Yaigojé-Apaporis).

[8] Colombia recognizes the right of indigenous groups to land and to their own government in the Political Constitution of 1991, and signed the 169 ILO Convention, which obligates the government to guarantee the right to the due process of previous, free and informed right granted by the Previous Consultation. This requirement was met by PNN before declaring the PNN YAP, but was used as an alibi to sue the creation of the protected area by saying it was done incomplete. PNN officers and traditional leaders visited all the communities in October 3-29 2008 and the official process for the Previous Consultation started on the 4th of July and ended the 20th of 2009.

[9] The Council declared this tutelage unfair on the 20th of January of 2010 ratifying the compatibility between a PNN and an Indigenous Reservoir, and the joint construction between the two parts, and the Superior Council determined impugnation by failure against the tutelage presented by ACITAVA on the 25th of March 2010. (PNN YAP 2014).

[10] ACIYA associates the communities located in the Amazon State and ACITAVA those located in the Vaupés State.

[11] The nine communities are: Puerto Cordillera, Bellavista, Awaurita, Bocas del Pirá – Gente Leña, Bocas del Pirá – Makuna, Bocas de Ugá, La Playa, Centro Providencia and Jirijirimo.

[12] More than five languages are spoken in this region, and more than eight ethnic groups share common principles and values, with differentiating elements, rituals, traditions and seasons.