On World Environment Day, 5 June 2024, ABColombia would like to draw attention to the importance of making peace with the land by reviving water sources like rivers for both the environment and people worldwide. The theme for this year’s day of action is land restoration, halting desertification and building drought resilience, fitting for Colombia.
Rivers provide water to approximately 190 million hectares of land and provide 17% of energy generated globally. Rivers are also used by many as a means of transport, livelihoods and economic wellbeing. Worldwide, rivers and their tributaries have served as spiritually important entities for Indigenous peoples for thousands of years.
Rights of the River Atrato (Sentencia T-622)
Afro-Colombian and Indigenous communities in Choco, won a landmark Constitutional Court decision that gave bio-cultural rights to the Atrato river (Sentencia T-622 of 2016). An important milestone in Colombian legislation, the Río Atrato was also the third river globally to have its rights recognised. This ruling also drew attention to the importance of Colombia’s water sources.
The Río Atrato runs the length of the department of Chocó, one of the most important biodiverse regions of the world that is rich in mineral resources. Over 70% of Chocó’s inhabitants are Indigenous and Afro-Colombians living on collectively owned territory. These communities have long been disproportionately impacted by the internal conflict and state neglect. This has allowed the spread of illegal gold mining, illicit drug cultivation and logging controlled by different armed groups, resulting in the contamination of the Río Atrato with toxic substances and waste, deforestation and a loss of biodiversity. Colombia has the highest rate of mercury and cyanide contamination in the Americas, with a third of its total 180 tons per year poured into the Atrato River.
The Río Atrato is part of the ancestral territory of the Afro-Colombian and Indigenous communities, whose way of life is shaped by the ecosystem of the river. This devastating situation led to the local communities, with the help lawyers from Siembra, filing a tutela against the government and claiming its inaction to put a stop to this degradation violated the local populations’ rights to life, health, water, food, a healthy environment, culture and land property. The landmark decision of the Court found the state authorities responsible for causing the environmental and human rights crises in the area surrounding the Río Atrato due to failing to comply with their constitutional obligation to take effective measures to stop illegal mining activities.
Regarding the right to water, the Court found that natural water sources must be protected to ensure the preservation of ecosystems that form the basis for an adequate standard of living. It was also concluded that the government was liable for the violation of the communities’ rights to food security and water. Furthermore, the Constitutional Court pronounced the river itself as a legal subject with specific rights regarding its protection, conservation, maintenance and rehabilitation. This unprecedented decision introduced the concept of biocultural rights to Colombian constitutional law and gave recognition to the interdependency between nature, natural resources and the cultures of ethnic communities and Indigenous peoples.
The decision of Sentencia T-622 also set a precedent in Colombia by which a further nine rivers have been granted the status of legal subjects:
- Cauca
- Magdalena
- Quindío
- Pance
- La Plata
- Otún
- Pisba Paramo
- The Colombian Amazon region
- Coello, Combeima & Cocora tributaries
- Vía Parque Isla de Salamanca
Despite an ongoing debate over the practicality of declaring an ecosystem as a subject of law (this demands compliance with specific, new standards that can take time to be implemented – as seen with the Río Atrato case). Colombia is at least recognising the significance of water sources to local communities and the protection of the environment.
Challenges
Water sources that have not been recognised as legal subjects face other issues such as privatisation and restricted access for communities. In La Guajira, the British-registered multinational company Glencore’s Cerrejón mine has diverted rivers and streams and damaged the Wayúu Indigenous Peoples access to safe drinking water impacting their means of food production, leading to cases of thirst and malnutrition across the community. Indigenous community leader, Leobardo Sierra, stated that thousands of Wayúu children have died as a direct result of these issues.
The activities of the Cerrejón mine have severely damaged the Río Ranchería and the local communities’ source of drinking water due to the presence of various dangerous metals found in the river (including lead, cadmium, barium, manganese, iron, zinc and mercury). These metals are known to cause cancer, reproductive ailments, skin diseases and many other illnesses. Further, the mine has dumped enormous amounts of liquid waste into the river. This has resulted in a total loss of 68.3 of the river’s tributaries equivalent to a reduction of 51.25% of watercourses turning La Guajira from an area already arid, to one with dangerously low water resources. One such stream, the Arroyo Bruno, has been the focus of a lot of attention recently. Cerrejón has diverted this stream despite the Constitutional Court ruling that this could violate fundamental rights of local communities.
Cerrejón, instead of accepting the democratic ruling, decided to sue Colombia using the Investor-State Dispute Settlement (ISDS) mechanism in a secret International Investment Tribunal, for a claim arising out of the Court’s order to suspend Cerrejón’s modification of Bruno water stream. The claim could amount to millions, despite it violating indigenous and afro Colombian fundamental rights who depend on this water source.
David Boyd, former UN Special Rapporteur published a report explaining how morally responsible arguments like “polluters pay” has been turned on its head, and polluting companies are now suing governments for upholding fundamental rights or making policy changes to achieve their commitments in the Paris Agreement. The report makes explicit reference to Colombia and the Cerrejón mine.