Fuente: El Espectador

Guaranteeing community participation has become one of the main challenges to carry out these processes in the region of Colombia with the largest indigenous population.

There are 62 indigenous peoples in the Amazon. Two have opted for voluntary isolation. The region represents 42% of the country. 

For years, the Instituto Sinchi focused on establishing precisely what understood as Amazon. Based on different concepts, such as the impact of Andean rivers on the plateau and foothill ecosystems, it established that the Amazon not only included the Amazonas, Guainía, and Vaupés plains, and the low mountains of Putumayo and Caquetá, but also the amazon slopes of Nariño,  southeastern Meta, the “boot” of Cauca, and southern Vichada. This is exactly 483,163 square kilometers of land, 42.3% of Colombia.

This is just one way to define the Amazon. According to the National Development Plan 2014-2018, which continues to be in effect, the Amazon region is understood as a the “Central-Southern region” and includes the departments of Tolima, Huila, Caquetá, Putumayo, and Amazonas and the plains region (Arauca, Casanare, Guainía, Guaviare, Meta, Vaupés, and Vichada).

For the 62 indigenous peoples of the Amazon (two in voluntary isolation), this apparent conflict between scientific and political institutions could be a problem when decisions are made about what happens in their territories.

According to the report Los derechos de los pueblos indígenas a las consulta previa y al consentamiento libre, previo e infomado. Desafíos de su ejercicio y exigibilidad (The Rights of Indigenous Peoples to Prior Consultation and Prior, Free, and Informed Consent. Challenges for Enjoyment and Enforcement), the amazon indigenous territories are managed based on watersheds and routes for tobacco, coca leaf, sweet yucca, and yagé, and their relationship with the water and the forest, under the principle of a holistic understanding and interconnection between cultural, spirituality, and the environmental aspects. (The Nukak were not always isolated, according to grammar studies)

“In a some ways territorial land management is based on the political Amazon, but it has been centered on planning and this goes against the enjoyment of prior, free, and informed consultation,” explains Karla Díaz, a lawyer from Caquetá and member of Ambiente y Sociedad. In other words, the report indicates that the new conceptions on what the world understands as the Amazon, which are arising both locally and internationally, are failing to include the vision of the indigenous people who inhabit it, and that the instruments designed to include them (prior consultation) is shifting away from their inclusion.

A slippery standard

According to the report, there are many standards that protect the right to prior consultation, but for a territory that is as vast and culturally and biologically diverse as the Amazon, their is a historic debt in its effective application.

On the one hand, the Constitutional Court recognizes that “prior consultation is a fundamental right for indigenous peoples and other ethnic groups when measures (legislative and administrative) are taken or when projects, construction, or other activities are to be carried out within their territories, with the aim of protecting their cultural, social, and economic integrity and to guarantee the right to participation.”

Disputed rights

Since the 1991 Constitution was consecrated in Colombia, prior consultation has been a mechanism to create dialogue between ethnic communities (afro, indigenous, and romani) and the State. It must be framed as exercising the right to self-determination and territorial autonomy, which were also recognized by the constitution.

At the same time that this historic victory for ethnic communities was achieved, the country was shifting towards “a new development theory,” which was laid out in the PND of ex-president César Gaviria. According to the report, in spite of legal concepts to protect the territory, there is massive pressure that threats its effectiveness, such as requests for mining titles in protected areas and indigenous territories, the persistence of illicit crops, the traffic of wild plants and animals, and the expansion of the agricultural frontier.

The National Human Development Report, published by the United Nations in 2011, accurately reflects this situation: “These pressures are made worse by the lack of governability with an amazon vision, development continues to be conceived from from an Andean perspective, which is inadequate due to the particular nature.” The jurisprudence exists, but application of the right to prior, free, and informed consultation in the Amazon has faced obstacles for the last 29 years.

“There aren’t guarantees to enjoy this right because it hasn’t been taken seriously in the public policy discussions on bio-cultural diversity. In many cases the indigenous communities are not consulted because a project’s influence area is defined and they say that there aren’t communities there, even though there is, for example, a reserve just kilometers from the border. There are processes that hide behind technicalities,” according to Juan Pablo Muñoz, a lawyer with a masters in environmental law from the Universidad del Rosario.

One example: given the lack of an exact definition for indigenous peoples, an indigenous community, or a tribal community, a community’s existence has been verified using very different criteria, such as the consciousness of their indigenous or tribal identity, objectives, time of occupation and use of the territory, cultural transmission and perpetuation, and historic discrimination, which are all part of a confusing range of ideas regarding what an indigenous person is for the State.

“Prior consultation has become just another protocol and requirement in the environmental licensing process, blurring the primary aim of consultation,” stated María Alejandra Aguilar, of Asociación Ambiente y Sociedad. Aguilar refers to a new bill to define the rules for prior consultation, which has been strongly criticized by the country’s indigenous leaders and was presented before Congress by the Cambio Radical party at the beginning of October.

The bill’s spirit is to avoid an “abuse of the [prior consultation] mechanism,” that could paralyze projects that favor the country’s development. Among the points that concern ethnic authorities is the creation of a Prior Consultation Unit (UPC, in Spanish), which would include the ANLA and sectors interested in development projects. The UPC would have the power “to order a suspension of projects, construction, and activities that put in risk the survival or integrity of a people or community whose presence within the direct influence area has not been certified for a maximum term of two months.”

Leaders fear leaving the creation of consultations rules and timelines in the hands of the State, as they are not the same for afro communities in Quibdó and indigenous communities in Vaupés, as it can take the latter groups days to get to the consultation site.

On the other hand, they are concerned that the bill could change criteria related to the obligatory nature of consultation. As was demonstrated, consultations are only contemplated in cases of “storing toxic waste, the total or partial relocation of communities, or a risk for their physical and cultural survival. Excluding topics related to large-scale development plans,” states the report.

The OPIAC collected date which shows how the right to prior consultation is violated in the amazon region: of the 750 requests filed up to June 2017, to expand, heal, and create land reserves for indigenous peoples, only 21 have been resolved according to the National Land Agency (ANT, in Spanish).

Not all is lost

One of the major advances for indigenous peoples’ autonomy, according to the report, with the issuing of decree 632 their territories are recognized as new territorial entities, alongside the departments, districts, and counties. The decree was approved in April of this year and recognizes the indigenous government’s authority over 18 million hectares in Amazonas, Vaupés, and Guainía. (In context: The historic conquest of the Amazon’s indigenous peoples)

“The guarantee and enjoyment of the rights to prior consultation and prior, free, and informed consent for the amazon indigenous peoples first requires reaffirmation, putting this public discussion on the table and taking seriously this region’s cultural biodiversity,” concluded the authors.

The experience of the communities in this region has shown that the State and other private actors have gone into the territories without learning about community interests and without the aim of understanding their priorities or needs. This document explores the consequences of this trend and alternatives to transform it.  Consult the full report here