INTERNATIONAL ENVIRONMENT REPORTER March 19, 1997, Colombia
TWO HIGH COURTS ISSUE CONTRADICTORY RULINGS ON
ENVIRONMENTAL VIABILITY OF BIG OIL PROJECT
BogotáContradictory rulings by two Colombian high courts over the environmental viability of a major oil project in a Native-American homeland have frustrated foreign investors and led the affected ethnic community to declare it will appeal to international tribunals and, as a last resort, commit collective suicide.
The case involves oil exploration by the multinational Occidental de Colombia in the territory of the U'wa indigenous group in north-east Colombia. In 1995, through Resolution 110, the Ministry of the Environment granted the company an environmental license. Following complaints by the U'wa that the ministry had not consulted themin violation of rights granted to ethnic groups under the 1991 Constitution and recent legislationthe U'wa appealed the license.
The appeal was handled by the Defender of the People, a government human rights agency, which used a "tutela" action, a mechanism whereby ordinary citizens can sue government bodies for alleged failure to enforce constitutional guarantees.
After being rejected by the Supreme Court, the tutela appeal was upheld by the Constitutional Court, the maximum authority on constitutional guarantees, under Sentence no. SU-039, February 3, 1997. The Constitutional Court stated that the license violated the fundamental right of consultation with the community and threatened its ethnic, cultural, social, and economic identity.
This decision became invalid after a ruling March 4 (Sentence 673) by the Council of State, the highest judicial authority on decisions taken by government agencies. The councils decision was not, however, the result of an appeal against the tutela action but a response to a parallel legal action by the Defender of the People questioning the Environment Ministry's administrative procedures.
Was Community Consulted?
In both cases, the respective high courts decisions rested in part on the question of whether the U'wa community was consulted by the ministry. The ministry presented documents showing that it had held meetings with the communityresulting in its consenton more than 30 occasions before granting the license, including a decisive meeting January 10-11, 1995, that was supervised by the Ministry of Interior's Indian Affairs Bureau.
But the U'wa community claimed that its traditional tribal leaders were not present at these meetings, that the matter of oil exploration was not adequately explained, and that written accords were signed by members of other ethnic groups.
Another point on which the two courts disagreed was the extent to which native homelands in Colombia are "autonomous republics." For the Constitutional Court, minority rights are absolute, while for the Council of State, they are conditioned by the state's right to regulate the subsoil and natural resources.
Although both parties accept that the Council of State's decisions is binding, the controversy has caused some jurists to fear future complications. Jose Hernandez, retired president of the Constitutional Court, stated that the council had interfered with the court's absolute authority on constitutional rights. But magistrate Libardo Rodrigúez, who drafted the council's majority ruling, said that in this instance, the council was the superior authority.
Such disagreements have caused confusion among multi-national oil companies, which have complained for years about the lack of clear environmental criteria in Colombia. Occidental said it was pleased by the fact that the council demonstrated the firm's compliance with the law but complained that despite six years of paperwork and a $12 million investment it had not yet been able to drill a single well. Occidental emphasized that it would not continue exploration without coming to an agreement with the U'wa community.
New Regulations Considered
The Ministry of Environment is considering drafting new regulations for the terms of reference for environmental licensing, in cooperation with the private sector, to avoid future problems.And the minister of energy said that to strengthen investor confidence, new legislation may be needed to define what constitutes ethnic territories and to give ethnic groups a greater share of oil royalties.
Blanca Echeverry of the Defender's Office said the office is studying the possibility of bringing the case before inter-national tribunals, with the aim of guaranteeing the rights of Native American communities in Colombia.
Finally, the Association of Councils and Traditional Authorities of the U'wa Indigenous Peoples announced that the ministry's license is a threat to their life and the future of ancestral and sacred territories, and they will advise the community to commit mass suicide if the government authorizes oil exploitations.
Copyright 1997 by the Bureau of National Affairs, Inc., Washington D.C.
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