The Colombian Constitutional Court has found in favour of an indigenous peoples’ centuries-old fight for their territory, granting the petition for the protection of constitutional rights requested by the Embera Chamí people of the Indigenous Resguardo Cañamomo Lomaprieta, in western Colombia.
The Resguardo’s claim was accepted by the Colombian Constitutional Court, the final court of appeal for constitutional matters in Colombia. The court ordered that the Resguardo’s lands must be delimited and titled within one year, during which time all further permits or formalisation of mining activities must be suspended. Any subsequent mining activities proposed on the delimited territories may only proceed on the basis of the effective participation of the Resguardo.
The court also ordered that the map produced by the Resguardo of their land be registered provisionally until it is officially demarcated. This ruling is also relevant for other indigenous and Afro-Colombian communities whose lands are awaiting delimitation.
In what appears to be a legal first internationally, the court also gave explicit protection to ancestral mining activities carried out by some of the 32 communities within the Resguardo, stating that, although not currently recognised under State laws, this mining conformed to Resguardo laws and could therefore not be considered illegal. Importantly, the court also recognised that the State had an obligation “not to criminalise this type of ancestral activity”.
Responding to the court judgment, Héctor Jaime Vinasco, ex-Governor of the Resguardo, and the principal coordinator of mining issues for the Cabildo, said: “This is an historic judgment for the indigenous Resguardo of Cañamomo Lomaprieta. For centuries, the different leaders of the Resguardo have been defending our collective land rights and seeking to resolve the problem of land titling with the authorities; this judgment orders that the delimitation and titling of the Resguardo is resolved without further delay.
“This judgment is a great opportunity to resolve issues caused by the lack of land titling, including exercising authority over our lands, applying our laws, thinking about economic development, and opposing projects that affect our survival as indigenous people. It supports the rightful claims of the Resguardo and suspends the existing deals that are going on behind the communities’ backs through mining titles, concessions, processes of legislation and licences and makes clear that no mining activity can be carried out in the territory without our consent.”
These requests are in keeping with international human rights instruments that recognise indigenous autonomy and self-government over ancestral territories, and the resources integral to these.
“This is a landmark decision for indigenous peoples in Colombia and globally,” said Viviane Weitzner of Forest Peoples Programme. “It recognises the legitimacy of indigenous self-regulation of subsoil resources within their territories, lifting the label of criminalisation of a spiritually, culturally and economically important activity that has been conducted without the use of harmful substances for centuries. The court is calling on the State to do more to protect indigenous territorial rights, by applying international standards around demarcation and titling and ensuring future decision-making includes the Cabildo’s free, prior and informed consent (FPIC). We remain concerned however that this decision may increase the risks to Resguardo leaders, some of whom have already suffered a number of recent credible death threats. It is important that the Colombian government ensure that members of the Resguardo are protected in light of this decision, and we urge the State to do everything in its power to ensure the safety of land and human rights defenders involved in this case.”
This historic court win is a critically important first step. But now rigorous implementation of the Court orders must take place for it to achieve its potential in upholding indigenous rights. Héctor Jaime Vinasco added: “We call on our allies and supporters to join the next moment of our journey, the implementation of the Court’s orders, which we know will be the hardest part.”
This article was published on Global Research's website on February 9, 2017.