Abstract
Indigenous Peoples and their territories play a central role in preserving the planet’s biodiversity and regulating the Earth’s atmosphere. Areas of high biodiversity often overlap with Indigenous Peoples’ territories. The remaining reserves of natural resources, including minerals and hydrocarbons, are often located in remote, ecologically fragile regions traditionally inhabited and preserved by Indigenous Peoples. During the last three decades, the pressure on Indigenous Peoples’ territories has intensified significantly. Reforms of the legal and fiscal frameworks for the extractive industries accelerated this process. Indigenous Peoples are at the forefront of the struggle against the environmental inequity in their homelands, and they could achieve environmental justice in several lawsuits. This research examines two judgments of the Constitutional Courts of Colombia and Ecuador that recognize the rights of Indigenous Peoples impaired by gold mining in their traditional homelands. The Courts considered that it was necessary to establish binding case law on the subject due to the gravity of the matter. Both judgments firmly support the cultural and environmental rights of the Indigenous Peoples. In addition, the Courts recognize the endangered ecosystems as subjects with their own rights in order to increase the level of their protection. In the Ecuadorian case, the judgment is based on the constitutional provisions that grant legal personality to nature, called Pacha Mama by the Andean Indigenous Peoples. The Constitutional Court of Colombia recognizes legal personality to the river basin damaged by the mining activities, even though the Colombian Constitution does not explicitly recognize natural entities as bearers of their own rights.
INTRODUCTION
The urgency to stabilize the Earth’s climate and to reverse the loss of biodiversity has become the major challenge today. Scientists speak about a “Global Safety Net” of eco-regions distributed all over the planet that must be conserved in order to achieve the proposed targets. Recent studies show that Indigenous Peoples’ territories overlap extensively with this “Global Safety Net.” The overlay of mapped Indigenous Peoples’ territories with a great part of the most important eco-regions underscores the central role that Indigenous Peoples and their territories play in preserving biodiversity and regulating Earth’s atmosphere. 1 Research also suggests that cultural and biological diversity may be interlinked, often interdependent, and perhaps co-evolved, if we consider that many of the areas of high biodiversity were not uninhabited wilderness but Indigenous Peoples homelands, livelihood use areas, and cultural landscapes. 2 In this sense, the United Nations Conference on Environment and Development honors the holistic traditional scientific knowledge of their lands, natural resources, and environment that Indigenous Peoples and their communities have developed over many generations. 3
On the other hand, we observe that the extractive industries of mines and hydrocarbons have undergone a major expansion during the last three decades. Many countries worldwide have enacted new legal and fiscal frameworks. Latin America was the first region of the world in terms of exploration investment in the mining and hydrocarbon sectors. 4 The remaining reserves of natural resources, including minerals and hydrocarbons, are often located in remote, ecologically fragile regions traditionally inhabited and preserved by Indigenous Peoples. The reforms to the benefit of the extractive industries intensified the pressure on Indigenous Peoples’ lands and weakened or overrode the legal protections previously enjoyed by Indigenous Peoples. 5 The former UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, deplored that “neither State planners nor multinational corporations nor international development agencies have hesitated to ‘incorporate’ these areas into the national and international economy. In the process, Indigenous Peoples have suffered genocide and ethnocide.” 6 Recent research confirms that Indigenous Peoples experience large burdens of environmental pollution linked to industrial development, including mining and extractive industries, while they are contributing to limiting pollution in different ways. 7
This research examines two lawsuits in which Indigenous Peoples severely affected by mining activities finally achieved environmental justice in the Constitutional Courts of their countries. The Atrato River case in Colombia and the Cofán case in Ecuador that will be analyzed below concern gold mining activities using heavy machinery and toxic substances in river basins of highly sensitive tropical forest areas. In 2015, a Colombian non-governmental organization 8 filed a tutela action against various governmental institutions on behalf of the Indigenous Peoples and Afro-Colombian 9 communities living in the basin of the Atrato River, Department of Chocó. The lawsuit was finally referred to the Constitutional Court of Colombia for review, which pronounced its judgment in November 2016. 10 In Ecuador, the Indigenous Community A’I Cofán de Sinangoe filed an action for protection (acción de protección) against gold mining in its ancestral territory at the Aguarico River, Department of Sucumbios, in 2017. The Constitutional Court of Ecuador selected the case for review with the aim of establishing binding case law on the subject. It pronounced its judgment in January 2022. 11
In both cases, the plaintiffs argued that the severe environmental impacts of the extractive activities affected their rights to life, health, water, food security, and a clean environment, as well as their rights to culture and to their territory. The Constitutional Courts found that these activities severely impaired the human rights of the Indigenous Peoples. They also made clear that nature must be taken seriously, which can be done best by recognizing the endangered ecosystems as subjects of law with full rights. Consequently, they ordered the integral restoration of the ecosystems with the important participation of the Indigenous Peoples.
Constitutional Courts can contribute significantly to the development of environmental justice in that they link the constitutional rights of Indigenous Peoples with the mandate of effective environmental protection. This applies to the judgments of the Constitutional Courts of Colombia and Ecuador that will be analyzed below. In the case of Ecuador, the Constitutional Court applies the Constitution of 2008, which recognizes Nature, or Pacha Mama 12 as a subject of law with full rights. In the Ecuadorian context, the institutionalization of the rights of nature was a result of the intercultural dialogue between Indigenous Peoples’ organizations, environmental organizations, and environmental lawyers that participated in the drafting process of the 2008 Constitution.13,14,15 The inclusion of rights of nature in Ecuador’s Constitution has inspired other countries in Latin America to recognize specific rights and legal personality for natural entities. 16 The Constitutional Court of Colombia recognizes the basin of the Atrato River as a subject of law even though the Colombian Constitution of 1991 does not explicitly grant legal personality to natural entities. The Court combines in its judgment two concepts: the rights of the natural entity and the bio-cultural rights of the Indigenous Peoples and Afro-Colombian communities. 17 The idea of recognizing nature as a person resonates with many Indigenous Peoples’ cultures, which are based on the interconnectedness of all forms of life under which humans and nature are seen as part of the same system; it also resonates with many Indigenous Communities who are acting as custodians and stewards of nature. 18
International human rights law has developed a comprehensive jurisprudence recognizing that Indigenous Peoples’ cultural rights include a strong connection to their territories and the natural resources located there. The Human Rights Committee in charge of the monitoring of the International Covenant on Civil and Political Rights (ICCPR) underlines in its General Comment concerning the interpretation of article 27 that Indigenous Peoples’ cultural rights “may consist in a way of life closely associated with territory and use of its resources.” 19 This approach is part of many general recommendations and individual decisions of the committee. The United Nations General Assembly supports in several resolutions and reports on Harmony with Nature Indigenous Peoples’ relationship with “Mother Earth,” which led in some countries to the official recognition of nature as a subject of rights. 20
The Inter-American Court of Human Rights (IACHR) has highlighted in many decisions the close relationship of Indigenous Peoples with their territories “that must be acknowledged and understood as the fundamental basis for their culture, spiritual life, economic survival and transmission to future generations.” 21 In 2020, the IACHR decided in the case concerning the Indigenous Communities Members of the Lhaka Honhat Association v. Argentina that the human right to a healthy environment also protects the components of the environment, such as forests, seas, rivers, and other natural features. 22 The IACHR relies in this judgment on its Advisory Opinion concerning the relationship between human rights and the environment, where it acknowledges that the natural entities must be protected as legal interests in themselves rather than for their “usefulness” or “effects” on human beings. 23
In its Advisory Opinion, the IACHR notes a tendency, not only in court judgments, but also in constitutions, to recognize legal personality, and consequently, rights to nature. It mentions as examples the Constitution of Ecuador, which recognizes the rights of nature or Pacha Mama, and the judgment of the Constitutional Court of Colombia, which recognizes the basin of the Atrato River as a subject of rights. 24
THE JURISPRUDENCE OF THE CONSTITUTIONAL COURT OF COLOMBIA
The Constitutional Court of Colombia underlines in its judgment on the Atrato River case—in a similar way as it did in former judgments—the social, ecological, and cultural dimensions of the Constitution. It seems, therefore, opportune to have a look at the constitutional provisions protecting the social, environmental, and cultural rights of individuals and communities.
The 1991 Political Constitution of Colombia 25
Title I contains the “Fundamental Principles” of the Constitution. Article 1 establishes that “Colombia is a social state under the rule of law,” based on the respect of human dignity and the prevalence of the common interest. The State recognizes and protects the ethnic and cultural diversity and has the obligation “to protect the cultural and natural assets of the nation” (arts 7 and 8). Title II “On Rights, Guarantees and Duties” protects the fundamental rights (Chapter I), the social, economic, and cultural rights (Chapter II), the collective rights, and the environment (Chapter III); Chapter IV establishes the proceedings for the protection and application of rights. 26 Several provisions in the chapters II and III emphasize the social and ecological dimensions of the Constitution. According to Article 58, “property has a social dimension which implies obligations” and “as such has an ecological dimension inherent to it.” Article 79 guarantees the right of every person “to enjoy a healthy environment” as well as the right of the community to participate in the decisions that may affect it, while the State has the duty “to protect the diversity and integrity of the environment and to conserve the areas of special ecological importance.” The State shall plan the management and use of natural resources in order “to guarantee their sustainable development, conservation, restoration, or replacement.” In addition, the State shall control the factors of environmental deterioration, impose legal sanctions, and demand the repair of any damage caused (art 80).
The Constitution provides for two types of judicial proceedings: the tutela action for the enforcement of fundamental rights and the popular action for the protection of collective rights and interests. Article 86 stipulates that every person may file a tutela action before the judges and claim immediate protection of his or her fundamental constitutional rights whenever he or she fears the latter may be jeopardized or threatened by the action or by neglect of any public authority. The protection shall consist of a judicial order to be implemented immediately. The order may be challenged before a competent judge who may send it to the Constitutional Court for possible review. The Constitutional Court reviews judicial decisions connected with the protection of constitutional rights (art 241.9). According to Article 88, an act shall regulate popular actions for the protection of collective rights and interests related to the patrimony, public health, the environment, and other areas of similar nature. 27 The rights and duties guaranteed in the Constitution shall be interpreted in accordance with the international treaties on human rights ratified by Colombia (art 93).
The Constitution includes provisions on the configuration of the indigenous territorial entities in Title XI, “On the Territorial Organization.” Indigenous territorial entities shall be governed by councils, which are formed and regulated according to the customs of their communities. Among other functions, the communities shall oversee the conservation of the natural resources. The exploitation of natural resources in indigenous territories shall be done without impairing the cultural, social, and economic integrity of the indigenous communities (art 330). Title XII deals with the organization of the economy. The State is the owner of the subsoil and the non-renewable natural resources (art 332). Article 333 guarantees the freedom of any economic activity and private initiative within the limits of the public benefit. An Act shall delimit the scope of economic freedom if the social interest, the environment, and the cultural patrimony demand it.
The judgment of the Constitutional Court of Colombia on the Atrato River case 28
The Indigenous Peoples and Afro-Colombian communities living in the basin of the Atrato River and its tributaries in the Colombian department of Chocó have been affected by illegal gold mining activities by external actors since the 1980s. This has led to a severe humanitarian and environmental crisis as documented by the office of the Ombudsman. 29 On 27 January 2015, the non-governmental organization Centro de Estudios para la Justicia Social “Tierra Digna” (Center of Studies for Social Justice “Worthy Land”) filed a tutela action on behalf of the Indigenous Peoples and Afro-Colombian communities of the Atrato River basin against various governmental institutions at the national and regional levels, arguing that they did not take any effective measures to stop illegal gold mining and protect the fundamental rights of the local population. The Court of first instance 30 refused to grant the claimed protection, thereby making the plaintiffs appeal against the sentence. The Court of second instance 31 confirmed the decision of the first instance on April 21, 2015. As a result, the lawsuit was referred to the Constitutional Court for review.
The Constitutional Court declared itself competent to review the Atrato River case 32 on the basis that Colombia is a “social state under the rule of law” (Estado Social de Derecho). 33 In its deliberations the Court points out that it has to analyze the constitutional relevance of the protection of rivers, forests, sources of food, the environment, and biodiversity as well as the right to the physical, cultural, and spiritual survival of the ethnic communities as a guarantee for their traditional ways of life. 34 The analysis must include the effects of mining on the water resources, the environment, and the ethnic communities, in line with the principle of precaution. 35 The so-called “mechanized mining” as implemented by external actors has produced irreversible damages to the ecosystem of the Atrato River basin. 36 This type of mining has completely replaced the small-scale artisanal mining that had been used traditionally by the local population since colonial times.
The Constitutional Court characterizes the 1991 Constitution as both an “Ecological Constitution” and a “Cultural Constitution.” Its habitual jurisprudence consists thus in a systemic interpretation of the Constitution as far as ecological, environmental, and cultural issues are concerned. 37 The Court is aware that effective protection of the natural ecosystems cannot be guaranteed without recognizing and protecting the rights of the communities whose lives depend on these ecosystems. A new juridical approach called bio-cultural rights has been developed at the international level and departs from the premise that nature and the human species are deeply united and intertwined. Consequently, the concept and scope of these rights are based on the recognition of the deep and intrinsic connection between nature, its resources, and the culture of the ethnic communities that live there. 38
The Court applies the legal concept of bio-cultural rights to the Atrato River case because the term “bio-cultural” has been used widely to indicate a way of life that has developed out of a holistic relationship between nature and culture. Hence, bio-cultural rights affirm the bond between indigenous, tribal, and other communities with their land, together with the floral, faunal, and other resources beneath and above the ground. 39
According to the Court’s reasoning, the legal concept of bio-cultural rights helps to integrate the different constitutional provisions that protect the rights of the Indigenous Peoples to their natural resources and culture. Thus the Indigenous Peoples must have the right to manage and take care of their territories, and the natural resources pertaining to their territories, where they can develop their culture, traditions and way of life based on a special relationship with the environment and biodiversity. From this perspective, the conservation of biodiversity necessarily implies the preservation and protection of the ways of life and cultures that interact with it. 40 The Court also refers to the ILO Indigenous and Tribal Peoples Convention No. 169 and extends its interpretation to the Afro-Colombian communities. 41
The Court affirms that in this and many other cases, conservation and sustainable usage of biological diversity are reliant on the “way of life” of Indigenous Peoples. They are also linked to secure land tenure, rights of usage, and rights to culture, knowledge, and practices. 42 However, the spirit of bio-cultural rights should not be understood as a pure property claim in the typical market sense of property being universally commensurable and alienable. On the contrary, bio-cultural assertions of property rights are property claims in the sense of usage, stewardship, and fiduciary rights. 43 The Court interprets the concept of “bio-cultural” jurisprudence as the theory and practice of applying a bio-cultural rights framework to law and policy. 44
In its jurisprudence concerning the environment, the Constitutional Court of Colombia has decided to break with the anthropocentric view of nature and instead adopt an eco-centric approach, which is based on the premise that “the earth does not belong to humans, but humans belong to the earth, just as all other species” and that “nature cannot be conceived only as the “environment” of human beings but should be conceived as an authentic subject of law and bearer of rights that need protection and guarantees.” 45 The Court considers that justice for nature can only be achieved by recognizing nature and its components as subjects of rights. 46 It justifies this interpretation by the environment’s superior interest as developed extensively by the constitutional jurisprudence, which is based on numerous provisions of the Colombian “Ecological Constitution.” 47 In the Court’s view, the biggest challenge for contemporary constitutionalism concerning the environment lies in achieving an effective safeguard and protection of nature and biodiversity as well as the cultures and their associated forms of life. 48 Based on this reasoning, the Constitutional Court recognizes the ecosystem of the Atrato River, including its basin and tributaries, as an entity with rights of its own to protection, conservation, maintenance, and restoration by the State and the local ethnic communities. 49
In its final decision, the Constitutional Court orders a number of operative measures to definitely stop the environmental degradation in the Atrato River basin and the whole Chocó Department.
50
A “commission of guardians of the Atrato River” composed of public officials and members of the Indigenous Peoples and Afro-Colombian communities shall exercise the legal representation of the river’s rights and supervise the correct implementation of the recovery measures. The commission will receive support from institutions with practical experience in the environmental protection of rivers. The remedies ordered by the Court include:
A decontamination plan of the river basin and the recovery of the ecosystems; An action plan to definitely stop illegal mining in the Chocó Department; An action plan for the revival of traditional livelihood and food security; The implementation of toxicological and epidemiological studies in the Atrato River basin and the Indigenous Peoples and Afro-Colombian communities.
The Constitutional Court’s decision to confirm the ecosystem of the Atrato River as a subject of rights and to recognize the bio-cultural rights of the Indigenous and Afro-Colombian communities living in this ecosystem constitutes a decisive juridical breakthrough and establishes precedents for the jurisprudence in Colombia and beyond its national borders.
The implementation of the Atrato River sentence
The Atrato River sentence has an important impact on environmental law, public policy, and practice within and beyond the borders of Colombia. “Since the ruling on the Atrato River basin in November 2016, 19 other decisions in Colombia have taken up an eco-centric approach, granting legal personality to further Colombian rivers, but also to other ecosystems such as Lake Tota, the Pisba highlands, the Los Nevados National Park, and even the entire Colombian Amazon.” 51
The Indigenous Peoples and Afro-descendent communities of the Atrato River basin observe positive developments as a result of the ruling but they also criticize severe deficiencies of the implementation process. The main challenges are a lack of institutional coordination, lack of financing, limited public consultation and involvement, and the persistence of the contamination and violence connected to illegal gold mining, according to a study based on field research and interviews carried out in 2022 and 2023. 52
A leader of the Embera Dobida (a name that means people of the river)—one of the Indigenous Peoples in the Chocó region—remarked that “The sentence is a very important instrument because it is with this that we can protect our identity and culture. The sentence also enables us to think about internal territorial organization, both for Afro-descendent and Indigenous Peoples… to think about territory for its uses….” “The Embera Dobida fight to maintain the river as a living entity, including the wider mountains, forests and landscape through which it passes, because we respect it as ancestral heritage.” 53
While satisfied with the guardianship model mandated by the ruling, the Embera and Wounaan Indigenous Peoples ask for adjustments in order to create a commission of local guardians made up of 14 members of the different communities. A leader of the Embera Dobida stresses the need to integrate existing territorial guards (guardia indígena), who play a key role in the coordination of the community in the protection of the environment. The government should recognize their autonomy and competence to be environmental authorities. 54
Insufficient financial resources have affected seriously the implementation of the ruling’s mandates. The guardians had no access to funds to fulfill their work as guardians, no dedicated means of transport to travel to the communities throughout the Atrato River basin. Not only the representatives of the Indigenous Peoples and Afro-descendent communities but also several state institutions expressed their frustrations regarding the lack of financing to carry out the decontamination efforts and to improve the humanitarian and environmental crisis in the region. In July 2023, the Ministry of the Environment announced additional funding for the implementation of the Atrato River sentence. 55 The National Human Rights Ombudsman (Defensoría del Pueblo) suggests to include the sentence mandates in the plans for municipal development in order to improve the articulation between the local government and the commission of guardians.
The persisting context of violence and insecurity in the region is seen as one of the principal obstacles to enforcing the mandates of the Atrato ruling, especially its concern with the decontamination of the river resulting from illegal gold mining and the participation of armed groups in this activity. The new government, elected to office in August 2022, introduced some significant changes that might contribute to improving the situation in the Atrato River basin and help to accelerate the implementation of the Atrato ruling. In November 2022, the “Total Peace Law” entered into force. The law seeks to make peace a state policy, to harmonize the efforts of different state institutions, and to make peace with the remaining armed groups in the country. The new National Development Plan (PND) 56 emphasizes social and environmental justice as well as territorial planning focused on water and just governance of the water resources.
A presidential decree of January 2024 57 establishes restrictions for the mining sector of the economy. The decree defines the criteria by which the government can establish reserves of natural resources in environmentally important ecosystems, areas for the conservation of water resources, and degraded areas that require restoration. The environmental authorities are not allowed to concede mining permits in these reserves.
THE JURISPRUDENCE OF THE CONSTITUTIONAL COURT OF ECUADOR
In its recent judgments, the Constitutional Court has stressed the duty of the State to protect nature comprehensively in accordance with the constitutional mandate, recognizing and protecting it as a legal subject with full rights. The Court also establishes the link between the rights of nature and the fundamental rights of the Indigenous Peoples. Especially the judgment on the Cofán case shows clearly the close relationship between the rights of the Cofán community and the rights of the ecosystem in which the community lives.
The 2008 Constitution of the Republic of Ecuador 58
The Ecuadorian Constitution of 2008 recognizes for the first time nature as a subject of rights and guarantees the environmental rights, especially of the Indigenous Peoples and Communities. The preamble of the Constitution celebrates “nature, the Pacha Mama (Mother Earth), of which we are part and which is vital to our existence” and confirms the decision “to build a new form of public coexistence, in diversity and harmony with nature, to achieve a good way of living, the sumak kawsay.” By including the “rights to a good way of living” in the Constitution, Ecuador accepts a long-lasting demand of the Indigenous Peoples of the Andean region. The “rights to a good way of living” 59 include the human right to water, which “is essential and cannot be waived” (art 12), the right to “safe and permanent access to healthy, sufficient and nutritional food” (art 13), and the right “to live in a healthy and ecologically balanced environment” (art 14), among other rights. The rights and guarantees set forth in the Constitution and in international human rights instruments shall be directly and immediately enforced by any civil, administrative, or judicial officer, either by virtue of his/her office or at the request of a party (art 11.3).
The protection of the environment plays an important role in the Constitution. Environmental conservation, the protection of ecosystems, biodiversity, and the recovery of degraded natural spaces are matters of public interest (art 14). State decisions or authorizations affecting the environment shall be consulted with the community, which shall be informed fully and on a timely basis (art 398). The most prominent feature of Ecuador’s 2008 Constitution consists of the recognition of Nature, or Pacha Mama, as a subject with its own rights. 60 Article 71 grants Nature, or Pacha Mama, the rights to exist, to maintain its integrity, and to regenerate “its life cycles, structure, functions and evolutionary processes.” Any person or community can call upon public authorities to enforce the rights of nature. Nature has the right to be restored if injured, independent of human claims for compensation. In cases of severe or permanent environmental damage, including those caused by the exploitation of non-renewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration and adopt adequate measures to eliminate or mitigate harmful environmental consequences (art 72). Article 73 requires the State to apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems, or the permanent alteration of natural cycles.
Article 1 of the Constitution defines Ecuador as a constitutional state of rights and justice, a social, intercultural, and plurinational state. This implies the duty “to promote unity and equality in diversity and in intercultural relationships” (art 83.10). In accordance with these precepts, the Constitution recognizes a number of collective rights of Indigenous Peoples and communities in conformity with human rights agreements, conventions, declarations, and other international instruments. 61 Article 57 guarantees the Indigenous Peoples’ ownership and possession of their ancestral lands, their practices of managing biodiversity and the natural environment, and to apply their own legal systems. Indigenous Peoples have the right to be consulted before the adoption of legislative measures that might affect any of their collective rights 62 as well as the right to free, prior, and informed consultation on programs for prospecting or exploiting non-renewable natural resources located on their lands, which could have an environmental or cultural impact on them. 63
The Constitutional Court is the supreme body for interpreting the Constitution and human rights treaties ratified by Ecuador. Its decisions shall be binding. 64 The Constitutional Court is entitled to pronounce binding judgments on “actions for protection” (acciones de protección) as well as cases selected by the Court for review. 65 Protection proceedings shall ensure the direct and efficient safeguard of the rights enshrined in the Constitution and can be filed whenever there is a breach of constitutional rights as a result of actuations or omissions by any non-judiciary public authority. 66
The judgment of the Constitutional Court of Ecuador on the Cofán case 67
In July 2017, the Indigenous Community A’I Cofán de Sinangoe noticed that a large number of people were extracting gold at the upper Aguarico River and its tributaries, which are part of the ancestral territory of the Cofán. 68 The community alerted the local authorities and found out that 20 licenses for gold mining had been granted and another 32 mining licenses were in preparation at the governmental agencies. In July 2018, the Cofán community, with the support of the provincial officer of the Ombudsman, filed an acción de protección (action for protection) against the Ministry of Energy and the Ministry of the Environment before the local judge. 69 The judge accepted only part of the claims. The community appealed against the sentence of the first instance. The Provincial Court decided in the second instance that the fundamental rights of the Cofán community and the rights of nature had been violated. It ordered the immediate cancellation of the mining licenses and the reparation of damages. 70 Subsequently, the Ministry of Energy, the Ministry of the Environment, and several mining companies filed “extraordinary actions for protection” against the decision of the Provincial Court, arguing that the mining activities are taking place outside the boundaries of the communal land on the opposite river bank. The lawsuit was thus referred to the Constitutional Court for review. The Constitutional Court considered that it was necessary to establish a binding case law on the subject, due to the gravity of the matter, the novelty of the case, and the non-existence of jurisprudential precedents, as well as the relevance and national transcendence of the subject to be resolved by the judgment. 71 It selected the acción de protección of the community A’I Cofán de Sinangoe for review on 21 October 2019.
In its judgment, the Constitutional Court reiterates that Ecuador, as an “intercultural and plurinational State,” has the duty to respect the collective right of Indigenous Peoples to maintain and develop their cultural identity. Since the concept of “territory” has a special connotation for Indigenous Peoples, it cannot be interpreted in the western sense of ownership. It must be taken into account that these Peoples’ relationship to the land is not only a question of possession and production but has material and spiritual elements that they have to fully enjoy in order to preserve their cultural identity and transmit it to future generations. 72 The Court refers to the jurisprudence of the Inter-American Court on Human Rights, which has stressed in numerous cases that the Indigenous Peoples’ ownership rights derive from their longstanding use and occupation of the land and resources necessary for their physical and cultural survival. 73 Consequently, the State has to adopt special measures to recognize, respect, protect, and guarantee the communal property right to the Indigenous Peoples’ territory. However, the granting of a property title to a piece of land does not mean that the claims of the Indigenous Peoples end at the borders of the titled land. This is due to the fact that the property right of Indigenous Peoples is not based on the recognition by the State but “on the traditional or ancestral use and possession of the land and its resources.” 74
The Constitutional Court points out that in the case of extractive projects, it is impossible to determine to which extent these might affect the interests of an indigenous community if only the boundaries of the officially recognized and demarcated land are taken into account. A physical limit or division in the middle of nature does not mean that the community will not feel the impact in case the extractive activities take place in the neighborhood outside the communal boundaries. Due to their close interrelationship with nature, Indigenous Peoples will be especially affected by environmental damages. For this reason, Indigenous Peoples must be consulted on any plans for prospecting or extracting natural resources on their ancestral lands. 75 The community A’I Cofán de Sinangoe has neither been informed nor consulted on the plans for extracting gold in its immediate neighborhood. The Constitutional Court therefore underlines the importance of the “free, prior and informed consultation” of Indigenous Peoples that “shall be undertaken in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.” 76 The Court shares the views of various human rights bodies on this subject. According to the Inter-American Commission on Human Rights, the duty to consult requires flexibility to accommodate the different rights and interests at stake from all involved parties whenever investment plans or extractive concessions substantially affect the right to Indigenous Peoples’ property and other connected rights. The States have to adjust or even cancel any plan or project based on the results of consultation with Indigenous Peoples. 77 A significant, direct impact on Indigenous Peoples’ lives or territories establishes a strong presumption that the proposed measure should not go forward without Indigenous Peoples’ consent. In certain cases this presumption may even end in a prohibition of the measure or project in the absence of Indigenous Peoples’ consent. 78 In any case, it should be taken into account that Indigenous Peoples may highlight possible damages that may not be clear to the State or project proponent and may suggest mitigation measures to address those damages. 79
The Constitutional Court establishes a close link between human rights, such as the right to a healthy environment of the Cofán community, and the constitutionally guaranteed rights of nature, as in the case of rights of the threatened ecosystem of the Aguarico River basin. A “Communal Technical Report” of the community A’I Cofán de Sinangoe has documented the severe impacts of the gold mining activities, such as explosions, deforestation, the contamination of water and soil with mercury and other toxic substances, and the poisoning of the fish in the rivers that are part of the traditional diet of the community. 80 The Provincial Court has thus determined the failure of the State to protect the environment, flora and fauna, food security, and the rights of nature, which are deeply interrelated with the human rights of the Cofán community. 81 The Constitutional Court underlines that, according to Article 71 of the Constitution, Nature, “where life is reproduced and occurs,” has the right to integral respect for its existence. As expressed in a former judgment concerning the protection of mangroves, the Constitutional Court emphasizes again that Nature must be understood as a complex system, as a community of life in which all elements, including the human species, are intertwined and each element fulfills its special function. 82 The Court also refers to Article 406 of the Constitution, which establishes the special duty of the State to regulate the conservation, management, sustainable use, and recovery of fragile and threatened ecosystems, including tropical forests. 83 Even though its judgment deals with the particular situation of the Cofán community, the Constitutional Court points out that the environmental damages caused by the gold mining activities are not limited to the communal land of the Cofán. On the contrary, they may extend far beyond since the contamination of the Aguarico River with toxic substances can reach the neighbouring National Park Cayambe-Coca and may even have international and continental consequences because the Aguarico River is also part of the Amazon basin. 84
The Constitutional Court concludes that the decision of the Cofán community to create and put into practice its own “law for the protection and control of its ancestral territory” and to commission a group of community members, called “indigenous guard,” to protect and control the communal land is part of the constitutional right of the Indigenous Peoples to practice their own legal systems and exercise authority within their ancestral lands. 85 The Constitutional Court ratified the sentences of the first and second instance, which had confirmed the violation of the rights to prior consultation, clean water, a healthy environment, the community’s own culture and territory, and the rights of nature. It also ratified the decision of the Provincial Court to order immediate measures of integral reparation of the damages. 86
The implementation of the Cofán sentence
The Constitutional Court of Ecuador orders in its sentence No. 273-19-JP of January 2022 the cancellation of all mining concessions and the integral reparation of the damages caused by the mining activities in the basin of the Aguarico River.
During the following months, no measures of reparation according to the Court’s mandate have taken place. In September 2022, the Community A’I Cofán de Sinangoe filed an action of non-execution of the sentence at the Constitutional Court, also on behalf of many other communities of the Indigenous Peoples living in the Aguarico River basin. In response, the Ministry of the Environment informed the Constitutional Court that the company Ecuambiente Consulting Group Cia. Ltda is in charge of the fieldwork for the recollection of samples in order to determine the sources and the areas of contamination. The fieldwork should take place in October/November 2022. 87 There is no information about the results of this fieldwork and about the measures of decontamination.
One year later, in October 2023, the community A’I Cofán de Sinangoe protested together with other Indigenous Peoples and human rights organizations in front of the Constitutional Court asking for the implementation of the Court’s mandates. 88 They argued that neither the Ministry of the Environment nor the Ministry of Energy and Mines fulfilled their obligations to repair the damages. The Ministry of Energy and Mines only has suspended the mining concessions. According to the Court’s sentence, the Ministry has the duty to cancel definitely 52 mining concessions from the mining register with an extension of more than 32,000 acres in tropical forest areas.
Obviously, the lack of implementation of the Court’s sentence causes great frustration. As expressed by a participant of the meeting in front of the Constitutional Court, it is easy to destroy, as it occurred in the case of Sinangoe, and it is difficult to repair, even when a constitutional sentence orders the restoration. 89
CONCLUSIONS
The judgments of the Constitutional Courts of Colombia and Ecuador present many similarities but also differences. Both cases concern gold mining in river basins of tropical forest areas inhabited by Indigenous Peoples and in the Colombian case also Afro-descendent communities. The tutela action in Colombia and the action for protection in Ecuador were directed against the Ministries of Energy and Mines and the Ministry of the Environment, in Colombia also against the President and many other governmental agencies. The plaintiffs claimed that the governmental authorities failed to fulfill their duty to protect the constitutional rights of the Indigenous Peoples. While the courts of the 1st and the 2nd instance had rejected the tutela action in the Atrato River case, the Constitutional Court of Colombia fully supported the claims of the plaintiffs in its judgment. In Ecuador, it was the Provincial Court, which decided in the second instance in favor of the Cofán community and accepted all its claims. The Constitutional Court ratified the judgment of the Provincial Court in a review process with the aim of establishing a binding case law on the subject.
The judgments of the two Constitutional Courts are based on the constitutional guarantees concerning human rights and environmental protection. This includes the recognition of the rights of nature as stipulated in the Constitution of Ecuador. In order to increase its level of protection, the Constitutional Court of Colombia recognizes the Atrato River as a legal subject having its own rights, even though the Colombian Constitution does not expressly recognize natural entities as bearers of rights. Both judgments order operative measures, including the immediate stop of all extractive activities and the integral reparation of damages. The operative measures underline the prominent participation of the communities as well as the recognition and support of their important role as “guardians” of the ecosystem in which they live. As far as the reparation of damages is concerned, it seems to be uncertain if this will be possible everywhere. In the Atrato River basin, especially, there may be irreversible damages due to the large extension of the affected area and the extractive technology that has been applied for decades.
There is no doubt that the Constitutional Courts are contributing significantly to the development of jurisprudence by creating precedents for the implementation of constitutional rights and providing better access to justice, especially for Indigenous Peoples. A recent judgment concerning gold mining in the basin of the Caquetá River in southern Colombia—ancestral territory of the Indigenous Bora and Miraña Peoples—refers to the Atrato River judgment when it recognizes the ecosystem as a subject of rights implying its protection, conservation, and restoration. 90 The court finds that the collective rights to a healthy environment, the ecological integrity, and the sustainable use of the natural resources by the indigenous Bora and Miraña communities in the Caquetá River basin have been violated. It orders the Presidency and the Ministries of the Environment and of Health to fulfill their obligations to prevent, control, and correct the mining activities in the Caquetá River. 91
However, these lawsuits also show that in actual politics the exploitation of non-renewable natural resources has absolute priority over the protection of human rights and environmental justice. The Constitutional Courts are aware of the fact that international human rights law is usually suffering from a serious implementation gap. In the Atrato River judgment, the Constitutional Court of Colombia criticizes the Mining Code of 2001 for having generated substantial changes in the mining policies and thereby reduced the legal requirements for mining projects in order to facilitate private investments in this sector. 92 According to the former National Development Plan, mining was expected to become the “locomotive” (locomotora minera) of national development. The national mining policy, as defined by the Ministry of Energy and Mines, attempted to convert Colombia into a global power for the extraction of minerals during the next decades. 93
However, positive changes are expected as a result of the new legislation and politics by the Colombian government elected to office in August 2022 that promises to leave behind the dependence on the extractivist model of the economy. The National Development Plan (2022–2026) emphasizes social and environmental justice, and territorial planning is based around water. Mining will not be allowed in environmentally sensitive “reserves.”
Ecuador seems to continue with its politics in favor of the extractive industries. Without engaging in previous consultation processes, Ecuador adopted a new mining law in 2009, only 3 months after the coming into force of the new Constitution. 94 Anybody is allowed to search for mineral deposits in nearly every part of the country. 95 The holders of mining licenses can sell or mortgage them. They may also use as much water as they need for their mining activity regardless of the needs of the Indigenous Peoples. 96 Presidential decrees shall promote further investments in the mining and hydrocarbon sectors. 97 The “Action Plan for the Mining Sector” urges the Ministry of the Environment to grant the necessary environmental and water licenses as quickly as possible and to refrain from hindering the planned investments of mining enterprises. 98 Another presidential decree, Decree 754 of June 2023 99 , which concerns environmental consultations for projects of the mining and hydrocarbon sectors and which amends the regulations of the Organic Code of the Environment, was declared unconstitutional by the Constitutional Court of Ecuador. 100
It is evident that the constitutional guarantees concerning human rights and environmental protection are not adequately implemented in secondary law. The public institutions responsible for the compliance with environmental norms are weak and under political pressure to give preference to the interests of the extractive industries. However, the growing number of judgments concerning the implementation of constitutional rights is creating a public awareness of these problems. The jurisprudence could therefore impact the legislative processes, the public policies, and the administrative practices towards a more effective protection of human rights and environmental justice for the Indigenous Peoples. The official recognition of Indigenous Peoples’ stewardship of their ancestral territories by the Courts is very important because it strengthens their right to self-determination and protects them against prosecution because of their role as defenders of the environment. However, the success of the remediation measures ordered by the courts will also depend on the support by the public authorities for the “Indigenous guard” in the Cofán case and “the Commission of guardians” in the Atrato River case. The enforcement of Indigenous Peoples’ territorial rights also supports the global effort to protect biodiversity.
Footnotes
AUTHOR’S CONTRIBUTIONS
Conceptualization: This article has been conceptualized by the author, M.L. The author has a long experience with legal problems in relation to indigenous peoples’ rights at the international level and in Latin America. Data: The data (the full text of the court judgments in Spanish) on which the article is based are available on the homepages of the Constitutional Courts of Colombia and Ecuador. Analysis: The analysis takes into account existing jurisprudence, for instance, of the Inter-American Court of Human Rights, as well as scientific literature on the subject. Funding Acquisition: There was no funding acquisition for this article. Investigation: The investigation has the purpose of analyzing the two judgments against the background of the political reality. Methodology: The author applies the methodology of “legal studies,” an interdisciplinary method combining law and social sciences. Project administration: Not required. Resources: The author uses her personal computer. Software: She uses scientific literature on the subject (digital and analogue). Supervision: There is no supervision. Validation: Jurisprudence is an important tool to advance indigenous peoples’ rights. Visualization: The article shall contribute to visualizing or creating awareness about the subject. Writing of the original draft: The submitted draft is the work of the author M.L. No co-authors have participated in the writing of the draft. Writing Review & Editing: The writing of the final text will depend on the outcome of the peer review process. The author is willing to make any changes that will be necessary.
AUTHOR DISCLOSURE STATEMENT
No competing financial interests exist.
FUNDING INFORMATION
Some of the authors’ publications are the result of research projects funded by the Austrian Science Fund (FWF): Menschenrechte und indigene Völker (2004) (Human Rights and Indigenous Peoples); Tierras y territorios indígenas en América Latina. Un estudio de los casos de Bolivia, Ecuador y Perú (2013) (Indigenous lands and territories in Latin America. A comparative study of Bolivia, Ecuador and Peru).