Mand Norte by Procasur Africa

Learning Routes “Learning from the impact of the extractive industry in Latin America and the south of Africa” PROCASUR-Ford Foundation

Case “Mandé Norte”, Municipality of Carmen del Darién and Murindó Departament of Chocó and Antioquia Colombia.

“Free and Prior Informed Consultation: towards a scenario of effective integrated participation”

Source: Comisión Intereclesial Justicia y Paz.

The Land in Context 1

The mining mega-project Mandé Norte is located in the northwest off Colombia and is expected to impact 16,000 has distributed between the Murindó municipality in the Dept. of Antioquia (approx. 5,000 has) and the Carmen del Darién municipality in the Dept. of Chocó (approx. 11,000 has). It crosses the watersheds of the rivers Murindó, Jiguamiandó and Uradá.

Source: Comunidad Embera de Urada Jiguamiandó “Resguardo Humanitario Ambiental”- Comisión Intereclesial Justicia y Paz

The rural lands included in the Atrato region through Chocoano-Antioqueño is the ancestral home of 12 Embera1 indigenous and two afrodescendant communities, whose roots reach back over 400 years, the majority of which have been with title upon their lands. These ethnic groups have succeeded in maintaining and reproducing their cultural traditions with a tight relationship with the environment, as their principal economic activity is subsistence agriculture (bananas, rice, yucca, sugar cane and fruits) complemented by raising of pork and small birds in addition to hunting, fishing and gathering. Specifically, their agricultural practice has been developed through the rotation of cultivated land every five to six years, which has impeded land degradation and deforestation, thus fostering a protection of the natural environment. Basic services to the area are deficient and Carmen del Darién has one of the highest level of social vulnerability nationally. This is reflected in a deteriorated quality of life among the population. The geographic area forms part of the western mountain range and their climatological characteristics are associated with high rainfall and humidity that define a varied array of flora and fauna. This area includes the Pacific Forest Reserve, which is 6.83 percent of the Dept. of Chocó. At the same time, the area is part of the geologic zone, “Batolito de Mandé,”which holds an important reserve of non-renewable metallurgic resources highlighted by copper, gold and molybdenum. Now, the indigenous reserves throughout the area are collective in nature and have constitutional recognition. Their organization is structured around large chapters (cabildos) at a municipal level and local chapters that function with a governor, secretary and mayors, wherein the primary decision-making body is the community Assembly. The afrodescendant communities have been recognized by Law 70 of 1993 and these are organized on the basis of Community Councils formed with a president, secretary and delegates. Both instances of political organization represent the maximum ethnic authority in their lands. They are also the responsible entities for articulating decisions that affect their lands, and thus are fundamental actors in the framework of the processes of the Free and Prior Informed Consultation (CPLI). Currently the economic megaprojects have intensified their presence in ancestral lands, making possible cultural loss and violent transformations of identity and so the differentiated rights to the participation of indigenous and afrocolombian communities are the principal legal tool for their protection. 2 As a fundamental guarantee, the CPLI directly links the survival of these ethnic groups as well as their collective rights and ability for self-determination to their ancestral lands. 1

The collective indigenous lands in Colombia are specified in legislation as ¨reserves¨ (resguardos). The areas within the area of influence of Mandé Norte are communities within the Urada Jiguamiandó reserve in the Dept. of Chocó, within Murindó, and Chagueradó-Turriquitadó in the Dept. of Antioquia. 2 In Colombia, the right to a CPLI for indigenous and afrodescendant communities is stipulated in Convention 169 of the International Labor Organization, the American Convention on Human Rights, the rulings of the Interamerican Court of Human Rights, the Declaration of the United Nations on Indigenous People and at a local level in the Political Constitution, the rulings of the Constitutional Court, Law 70 of 1993, Decree No. 1320 of 1998 (regulates and establishes the CPLI), Decree No. 4530 of 2008, Resolution 3598 of 2008 of the Ministry of Interior and Justice.

Learning Objectives

Identify the social, cultural, economic, political and environmental characteristics of the affected area.

Understand the legal framework affecting the CPLI in Colombia as well as its application in the Mandé Norte case.

Understand the process of generation of conflict among local communities and the “Muriel Mining” company.

Analyze the principle strategies deployed to carry out a CPLI with cultural relevance or a “people’s referendum.”

Determine the accuracy and clarity of the different interpretations of the CPLI in relation to its use and application for the different actors.

The Mandé Norte project and Free Prior and Informed Consultation

As indicated, the border area between Murindó (Dept. of Antioquia) and Carmén del Daríen (Dept. of Chocó) has enormous mineral wealth, and since the 1970s has been the subject of technical studies by large mining companies interested in identifying areas for exploration and exploitation. With the confidence that the area held important copper, gold and molybdenum deposits, in 2004, Muriel Mining, a company with U.S. capital, presented their open-pit mining proposal titled Mandé Norte. And in 2005, the signed with the Antioquia governor a “Unique Mining Concession Contract” of 30 years. The 160 km-sq project straddles the ancestral territory of three indigenous reserves, peasant and afrodescendant communities. This disrupts their land rights and lends to the possibility of grave environmental impacts upon the rich flora, fauna and biodiversity of the area. With the goal of better understanding the threat posed to the land by the Mandé Norte project, in 2006 the communities appealed for assistance from the “Comisión Intereclesial Justicia y Paz” an organization with which they began a process of documentation, definition of collective rights and CPLI. In a parallel fashion, the company began a series of strategies to create an illegitimate consultation process.

Source: Comisión Intereclesial Justicia y Paz.

“Irregularities and misrepresentation in the Prior Consultation process” With the approval of the division of Ethnicities of the Ministry of Interior and Justice, the competent authority to carry out a CPLI, Muriel Mining in 2006 began a series of meetings oriented towards justifying a consultation process before the exploration phase of the project. In these workshops, people participated who did not represent the communities directly affected and did not have decision-making authority to make decisions, thus acting in bad faith. From its beginnings, the process showed irregularities given that the supposed “socialization” meetings of the project were convened for a small group of people and organizations. This was transformed into a space for dialogue behind closed doors, where strategies of bribery and cooptation were used on leaders leaning towards accepting the project. This process not only was exclusive but it also didn’t consider the unique characteristics of the ethnicities of the affected groups. Because of this they should have held meetings in that language or with simultaneous translation, with the help of arqueological studies in which sacred sites on the lands were identified and documentation related to the cultural traditions and local history were presented as basic material upon which to reach agreements with a cultural focus. Alarming still was that during the “documentation” (protocolarización) stage of the process in 2008, the company presented a document with a series of signatures which appeared to give the go-ahead to the project. These signatures were obtained by the company indicating they would be used for the justification of expenses for mining activities. Furthermore, the participation of people not directly linked to communities affected by the project resulting in an illegal impersonation. For their part, the indigenous and afrodescendant communities organized through “interethnic meetings” rejected the fraudulent process, and manifested their disagreement with the inclusion in the acts of documentation the leaders that in no way represented the affected regions. Similarly, 5

the communities highlighted a lack of socioenvironmental studies to determine the impacts of the initiative upon the Pacific Forest Reserve and the sacred sites of the Embera indigenous groups, thus undermining their rights to real and effective participation in the process. “Armed violence and land defense” On December 28, 2008, military personnel from Brigade 15 entered illegally and without consultation into the Coredocito indigenous community, leading to their forced displacement resulting from threats of violence.3 This armed body told the people there that the military’s presence is to safeguard the future exploration work of Muriel Mining. Days later, on January 3, 2009, the company enters the area to begin exploration activities, legitimizing their activies with the faulty consultation process. Worse still, the company sends its personnel and machinery into the area known as “La Rica,” a sacred area for the Emberá indigenous people because of its biological and medicinal richness and the location of the “Careperro” Mountain, or “Usa-Kirandarra.”

Source: Comisión Intereclesial Justicia y Paz. “The cerro Careperro is a sacred site where the jaibanas and traditional doctors hold their harmful and good spirits, so it is untouchable, but the company does not recognize this, and speaks of development” Argemiro Bailarin Alto Guayabal, Urada Jiguamiandó Reserve.

The response by the communities to this infringement of ancestral territory did not wait. Beginning January 17 of that year they organized in the affected area, with the military present, although more than 3 has of native forests had been destroyed to operate the machinery. For 25 days, men, women, adolescents and children protested in improvised camps near the area of intervention, demanding the demilitarization and safeguarding of the sacred mount. This situation led to a grave humanitarian crisis as the people camped there didn’t have food, or basic subsistence services, leading to health issues and the eventual death of five children.

In 2000, the Alto Guayabal of the Emberá community were violently displaced by Brigade 17 and suffered the disappearance of three of their members. During eight years, the community was obligated to seek refuge in the Coredocito community now the subject of a military intervention.

Source: Comisión Intereclesial Justicia y Paz.

In February, thanks to the community movement and a strong campaign of denunciation at national and international levels, the company removed its personnel from the area and military units were transferred to another place in the area. Regardless, the machinery remained, indicating an eventual return of the company4. “Towards collective and independent understanding of the CPLI” Encouraged by the experience of a community referendum held by the Mayan people of Sipakapa in Guatemala, communities located in the area of impact by the mining project convened from February 24 – 28, 2009 a “People’s Referendum.” Conscious of the illegitimacy of the referendum held by the company, the communities decided to act autonomously and exercise their rights of participation through an interethnic referendum which involved indigenous communities and representatives of the afrodescendant communities. The People’s Referendum was held in 12 communities of the Urada, Murindó and ChaqueradóTurriquitadó reserves. They were carried out with open and verbal voting, with the crucial question being: Do you want or do you not want the mining exploration and exploitation of the Muriel Mining Corporation company? In this instance of self-determination more than 1,250 people participated, with 784 of voting ability, who unanimously manifested their opposition to the mining project.

A climate of fear and anguish pending the return of the company and the militarization of the area led to grave psychosocial impacts on the population, shown by eight suicide attempts by adolescents between 13-and 16-yearsold.

Source: Comisión Intereclesial Justicia y Paz “The same communities that decided to organize a true referendum included children 10 years old up to the elderly and they voted NO to mining exploitation in our lands because to exploit the land is like removing the heart from our mother earth” Argemiro Bailarin Alto Guayabal Urada Jiguamiandó Reserve

The process included national and international observers who observed the proceedings from the registration tables, which became voting guarantees. The experience represents a pioneering reference at a national level that shows the steps taken by the ethnic groups to assure their right to participation through an effective and integrated process, based on their particular cultural characteristics. The results of this referendum were sent to the Ministry of Interior and Justice, other governmental entities, the UN’s Special Envoy for the Indigenous and various embassies. “Legal strategies for the defense and right of participation” In 2009 the flagrant violations of the fundamental rights of the affected communities by the Mandé Norte project led to 10 legal protective actions (acciones de tutela) filed in the name of local leaders in response to the land occupation by the company and the military 5. Through these actions, not only was the infringement of land and environmental rights denounced, but also the absence of a legitimate CPLI process. Despite this, the Superior Court in Bogota denied the actions, arguing that the prior consultation based on the acts raised by the Ministry of Interior and Justice were effective. A subsequent appeal before the Supreme Court newly confirmed this denial. As a last resort, a petition for the revision of the protective actions was submitted before the Constitutional Court, the highest judicial body overseeing fundamental rights in the country. This 5

This legal process was accompanied by the Comisión Intereclesial Justicia y Paz.

time, the legal action was accompanied by a political effort which generated influence through the presentation of letters, testimonials, photos, writings, environmental and cultural documents that sustained the legal protective action. This included the assistance in an amicus curiae from different social organizations6 whose different perspectives contributed to the case gaining greater legal visibility. Similarly, various local leaders met with the Ombudsman’s Office 7 and provided them with the reasons for the rejection of the consultation proceedings carried out by the company. These actions effectively allowed for the case to be selected by the Constitutional Court for review. In March 2010, the definitive ruling of the Constitutional Court ST 769 was made. This established a fundamental precedent for the recognition of the rights of indigenous and afrocolombian communities. In this ruling, it was ordered that before the execution of any project that might affect them, they should have rights to participation through the process of a CPLI which furthermore requires a Prior Free and Informed Consent. Similarly, this shows the need to conduct social, environmental and cultural impact studies before any intervention. Furthermore, these should be carefully disseminated throughout the communities before the realization of any consultation. This ruling represents a definitive paralysis of the project. In disagreement with the Constitutional Court’s ruling, on April 2010 the company, the Ministry of the Interior and Justice, as well as the Ministry of Environment, Housing and Land Development, requested the ruling be anulled, and this is the process undergoing currently. During this period incidents of violence continued to shake local communities. The most serious of them was the March 2010 bombing conducted by the military under the premise of attacking a guerilla encampment. This incident left two people from Alto Guayabal injured, a situation that led the Interamerican Human Rights Court to take “precautionary measures” for the families in the communities, considering that the area is recognized as an “environmental and humanitarian shelter.”

Source: Comisión Intereclesial Justicia y Paz

Lessons from the experience

Among the organizations that participated in the amicus curiae were AIDA, De justicia, Universidad de los Andes and del Rosario. 7 State entity charged with accompanying and managing the CPLI processes in the country.

As a result of the experience of land defense and revindication of the rights to CPLI by communities affected by the “Mandé Norte” project, it is possible to derive the following lessons. -

The collective and formative process of indigenous rights specifically in relation to the CPLI has led to local communities increasing their ability to defend natural resources. Specifically, this process of learning and training around the importance, use, reach and applications of the CPLI has permitted them to grasp the greater relevance of the right to participation as a tool to guarantee the integrity of natural resources, as well as a critical form of analyzing “bad practices” associated with the referendum which were demonstrated through their interactions of the company.

The interethnic alliance among different indigenous reserves and afrodescendant communities fomented the development of joint action strategies and the strengthening of the social movement in opposition to the project. Specifically, the interethnic meetings were opportunities to identify criteria, open dialogue, share information and sustain a chain of solidarity around the situation of the populations that were directly and violently affected.

The independent exercise of the right to participation through the realization of a “Popular Referendum” reveals collective understanding of the consultation process as well as the development of their own protocol. This consultation resulted in a precedent for other indigenous communities in Colombia wherein industrial activities are increasing. From this it is also possible to derive “best practices” that can be replicated in future experiences, like: holding consultations in different communities, holding consultations using a community’s cultural forms and languages, the participation of external actors that act as guarantors of the process, among others.

A workeable alliance among other civil society organizations that accompany the process, support documentation, profile, dissemination and legal defense. In this network of suppport, the Comision Intereclesial Justicia y Paz stands out for having guiding the formation process, monitoring conflict in the field, as well as participating in the creation of legal strategies. With respect to this, it is relevant to create durable networks for the long-term and the presence of stable teams with a permanent presence in the areas in question.

The launching of effective legal strategies to have an international influence (Interamerican Court on Human Rights, ILO expert commission) and a national influence (Constitutional Court.) At the same time the generation of a single friends of the court brief, with different institutions and organizations, for legal arguments gave greater consistency upon presentation of the case.

Conclusions

In Colombia, the CPLI as a fundamental right of ethnic groups is legally enshrined in national and international rules, but also in law. Despite this, the experience of the Mandé Norte case brings us to reflect upon the different interpretations given to the process, applications, uses and reach. On the one hand, it is possible to know the danger when the CPLI is considered by the private sector and governmental entities as a simple bureacratic step that leads to negotiation before the impact of industrial activities in the impacted zones. In this sense, a series of “bad practices” associated with the process can be understood as: dialogue with non-representative go-betweens without the authority or faculty to decide in the name of a group, exclusion of traditional authorities in the consultation process, lack of information about the socioenvironmental impacts of the process and its distribution, falsification of signatures and bad faith actions intended to coopt leaders and offer economic compensation. Local communities demonstrate an active organization and have developed their own protocols for the application of the CPLI that is sustained by their own rights system, uses and customs. In this way, the “People’s Referendum” allows for the acknowledgment of cultural characteristics and applies them to the process. In turn, it is argued from a legal perspective the need to hold the consultation before the prospecting begins, in concordance with established applicable laws and with the effective participation of all the competent actors in the process. Meanwhile the company, now named Sunward Resources, insists in the validity of their consultation and that it was conducted in good faith, and local communities claim their autonomous process as the “Authentic Referendum” and fight for its recognition. The State, through the Supreme Court, continues to disregard both processes. It appears that the effective application of the CPLI is still in development, and that its character as integral depends greatly upon the participation of ethnic groups in the process. In this sense it is recommended that in the CPLI framework said groups can count on the support of civil or state organizations that can: -provide reliable information about the projects to coordinate joint strategies among different local representatives to avoid economic stimulants offered by the company to individuals. -require a process structured upon the basis of their own time frame. -insist on the participation of different state, civil and private actors during the process. -demand from the authorities appropriate information and refuse to sign any document that is not understood or whose future use is unable to be determined. In this way it will be possible to continue advancing towards a referendum and the recognition of the right to prior, free and informed consent which achieves a guarantee of survival of ethnic groups, sustainability of their lands and the safekeeping of their culture. Consulted Sources: 11

- Systematization meeting with the team of the “Comisión Intereclesial Justicia y Paz,” Bogota, August 23, 2011. - Interview with Argemiro Bailarin, leader of Embera, Alto Guayabal, Urada Jiguamiandó reserve, municipality of Carmén del Darién, Departament of Chocó, Colombia. - Interview with Jacob Kopas, legal aid for “Asociación Internacional para la defensa del Ambiente,” Bogota, Colombia. - Interview with Gisela Cañas, former legal aide for “Comisión Intereclesial Justicia y Paz,” Bogota, Colombia. - “Sistematización de procesos de Consulta Previa en Colombia”, UE-OXFAM-CNOA-ONIC, 2011. - Web sites: www.catorce6.com www.justiciaglobal.info www.prensa.politicaspublicas.net www.prensarural.org Contacts: Nombre 1. William Rueda 2. Elisa Norio

3. Argemiro Bailarin

Rol Teléfono Abogado Comisión (57) 315 850 21 63 Intereclesial Justicia y Paz Acompañante (57) 311 831 76 18 Comisión Intereclesial Justicia y Paz Dirigente (57) 32 18 71 32 04 Comunidad AltoGuayabal, Resguardo Uradá Jiguamiandó.

Email william.rueda @justiciaypazcolombia .com elisanorio@ justiciaypazcolombia .com