U’wa Indigenous People v. Colombia

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U’wa Indigenous People v. Colombia

Indigenous People in Colombia Fight for their Land and Culture Against Extractive Industries

Country:

Colombia

Case Status:

Ongoing

Issues:

Land Rights, Extractive Industries, EarthRights Defenders

Harms:

Right to Indigenous self-determination, Right to collective property, Right to culture, Free, prior, informed consent, Right to life and personal integrity, Right to judicial remedy, Right to access to information and free expression

Summary

The U’wa people believe that as guardians of “Mother Earth,” they must maintain the balance between the world above and the world below, between the sky, land, and subsoil. For the U’wa, natural resources such as oil, gas, coal, and other minerals are sacred. Oil is the blood of Mother Earth and for this reason, the U’wa believe it should not be extracted. They believe that extractive industries create disharmony and disequilibrium, leading to the disappearance of culture and species, including humans.

Since the early 1990s, the U’wa have consistently fought to protect their territory against oil and gas companies, including Occidental Petroleum and Ecopetrol. The Colombian State has approved the exploration and exploitation of oil, coal, and other minerals in projects that overlap with U’wa ancestral territory, including the Indigenous U’wa Reservation. Meanwhile, the Colombian State has failed to recognize the U’wa’s right to collective property over their ancestral territory or guarantee U’wa land rights over territory that has been formally recognized for decades. The U’wa have brought repeated domestic complaints against the lack of free, prior, and informed consent for projects on their land, demanding recognition and protection of their land rights against third parties. The U’wa also engaged in large-scale protests and occupations of oil company installations on their land, which the Colombian State has violently repressed. 

In 1997, the U’wa presented a petition to the Interamerican Commission on Human Rights (IACHR) alleging violations by the Government of Colombia for violations of international human rights based on the State’s failure to recognize and protect U’wa territory and for allowing extractive projects on U’wa land, violating the U’wa nation’s beliefs, and harming their cultural integrity and risking their cultural survival. In July 2015, the IACHR accepted the U’wa’s petition against the Government of Colombia finding that the Commission had competence to review the petition.. EarthRights is a co-petitioner in the case along with the National Indigenous Organization of Colombia (ONIC), the Association of Traditional U’wa Authorities and Cabildos (AsoU’wa), and the Jose Alvear Restrepo Lawyers Collectivo (CAJAR). We also provide legal support to the community, advising the U’wa on legal strategy, conducting legal research, drafting and submitting filings, and presenting facts to the IACHR in support of the U’wa’s case.

In November 2019, the IACHR issued its decision on the merits of the U’wa’s petition, finding that Colombia’s actions do, in fact, violate the human rights of the U’wa, recommending that the State take all measures necessary to guarantee the U’wa’s rights to its territory and culture. The IACHR found that Colombia had violated the U’wa’s right to collective property, as well as the right to free, prior, and informed consent (including violations to the right to access of information and political rights), the cultural rights of the U’wa nation, and their right to judicial protection. 

In October 2020, the IACHR sent the case to the Inter-American Court of Human Rights, finding that Colombia had not fulfilled the recommendations necessary to remedy the rights violations the U’wa have suffered.

Plaintiffs

Note: In the Inter-American System, attorneys and NGOs often act as petitioners on behalf of other beneficiaries.

Association of Traditional Authorities and Cabildos (Asociación de Autoridades Tradicionales y Cabildos U’wa, AsoU’wa),

National Indigenous Organization of Colombia (Organización Nacional Indigena de Colombia, ONIC),

José Alvear Restrepo Lawyers Collective (Colectivo de Abogados Jose Alvear Restrepo, CAJAR),

EarthRights International

 

Defendants

State of Colombia

Partners

Association of Traditional Authorities and Cabildos (Asociación de Autoridades Tradicionales y Cabildos U’wa, AsoU’wa), National Indigenous Organization of Colombia (Organización Nacional Indigena de Colombia, ONIC), José Alvear Restrepo Lawyers Collective (Colectivo de Abogados Jose Alvear Restrepo, CAJAR), EarthRights International

 

 

Other Relevant Actors:

Occidental Petroleum Corp. (Oxy) is a U.S. oil corporation that was active in and around U’wa territory from the early 1980s until May 2002. Oxy built the Caño Limón pipeline, which crossed U’wa territory and was granted the license for the Samoré Block.

Ecopetrol is the Colombian-state owned oil company that took over from Oxy and has proposed exploration and exploitation of the Gibraltar, Siriri, and Catleya areas. Ecopetrol is currently operating a gas plant in U’wa territory.

1991

Oxy signed a contract with Shell and Ecopetrol for the exploration of the Samoré Block.

1995

The State of Colombia granted the first license to Oxy for seismic studies for the Samoré block. In response, the U’wa filed a constitutional tutela action against the Colombian Ministry of the Environment and Oxy for having authorized an environmental license for seismic studies in the Samoré area without consulting the U’wa. A tutela is an action to assert a violation of fundamental rights and ask for immediate relief.

1997

In response to the tutela challenging the license for the Samoré seismic studies, the Court found that there had been no consultation of the U’wa, which violated ILO Conv. 169 and the Colombian Constitution of 1991. The Court ordered that consultation to take place within 30 days. However, Colombia’s highest administrative court ruled that the license is valid. The consultation never happened. 

On April 28 1997, the U’wa, supported by a number of Colombian and international organizations, filed a petition to the Inter-American Commission on Human Rights (IACHR) against the granting of the Samoré license and the lack of prior consultation. The Government of Colombia responded to the IACHR petition two months later.

1998

Oxy asked the Ministry of Environment for a new license for exploratory drilling in an area known as Gibraltar.

1999

On March 3, 1999, three U.S. Indigenous rights advocates working closely with the U’wa, Terence Freitas, Lahe’enae Gay, and Ingrid Washinawatok were kidnapped and murdered by The Revolutionary Armed Forces of Colombia (FARC) after a visit to U’wa territory.

In August, Colombia’s Agrarian Reform Office issued Resolution 056, granting a new “resguardo unido” (United Indigenous Reservation) for the U’wa, expanding the previous U’wa reservations, but with the Gibraltar well site just outside the border of the new resguardo. The new U’wa reservation is still much smaller than the ancestral U’wa territory recognized in colonial titles granted by Spain. 

The Ministry of Interior certified that there are no Indigenous people in the area of Gibraltar, so no consultation is needed. Both previously and subsequently, other Colombian government agencies had found that the U’wa Indigenous people do, in fact, live in the area and would need to be consulted. The Ministry of Environment then granted a license for an exploratory well in Gibraltar. The U’wa, with the support of EarthJustice, wrote to the IACHR to reactivate their petition. The U’wa also filed a request for precautionary measures with the IACHR.

2000

Government troops blocked access to food, water, and other necessities in an effort to force the U’wa out of the Gibraltar area marked for drilling. The U’wa filed another tutela against the Ministry of the Environment and Oxy opposing the exploratory drilling license for Gibraltar because they had violated the community’s rights by not consulting them. In response to the tutela, the Court of first instance issued a temporary suspension of drilling at Gibraltar. The court found that the project could jeopardize the U’wa’s fundamental rights and should be evaluated before drilling.  This ruling was appealed to the Superior Court by Oxy. 

Meanwhile, Over 1,200 U’wa began a peaceful and open-ended occupation of the town of Cubará, Boyaca. Riot police attacked an U’wa roadblock on a bridge over the Cobaria River. U’wa protesters were tear-gassed and detained by authorities. Protests, which included a transportation strike, continued with the support of civil society.

The Superior Court of Bogotá overturned the injunction in the tutela action against the Gibraltar license. Oxy vows to resume construction. The U’wa appealed to the Constitutional Court. Later, the Constitutional Court refused to hear the case.

Later in 2000, The U’wa released to press documentation of titles to land recognized by the Spanish Crown dating from 1661, along with Colombian legal precedents showing that such titles remain valid and extend to subsoil mineral rights.

2001

The U’wa filed a demand for nullification of the Petroleum Reserve Zone around the Gibraltar 1 site established by the Ministry of Mines.

2002

Oxy withdrew from the Samoré Block and transferred ownership to Ecopetrol. Ecopetrol then redrew the boundaries of Samoré Block, which became the Siriri and Catleya blocks.

2003

Ecopetrol requested the start of a prior consultation for the Siriri and Catleya blocks.

2004 and 2005

Fourteen trainings and six workshops were conducted in connection with the Siriri and Catleya blocks. Initial meetings were not held with co-petitioner AsoU’wa. They only included Ascatidar, a separate U’wa organization. By May 2005, the U’wa rejected the “consultation” process and refused to attend further events. Nonetheless, the Ministry of the Interior and Ecopetrol concluded that the Siriri and Catleya blocks did not violate the U’wa rights or community integrity. The U’wa declared that they would not participate in the consultation and reject all oil development projects in their territory. At the end of the year, the Ministry of the Interior requested that Colombia’s highest administrative court, Council of State, declare the meetings of 2004 and 2005 sufficient to satisfy consultation requirements.

2006

Council of State decided in favor of Ecopetrol that the meetings were sufficient for prior consultation for the Siriri and Catleya blocks.

2007

Contract signed for a coal mining concession GKT-081 overlapping U’wa territory.

2009

A military battalion occupied and destroyed a sacred site. Indigenous authorities submitted a complaint to the prosecutor’s office in Cocuy; they did not receive a response. Contracts signed for two additional coal mining concessions. The Ministry of the Environment granted a license to Ecopetrol for the construction of the Gibraltar gas pipeline.

The Colombian Constitutional Court recognized the U’wa Nation as part of the 34 indigenous groups at risk of physical and / or cultural extermination due to the internal armed conflict and the impacts of extractivism, ordering the urgent adoption of a Protection Plan.

2010

Ecopetrol submitted documents to Ministry of the Environment requesting an environmental study for Area of Exploratory Drilling (APE) Magallanes.

2012

The Gibraltar gas pipeline began operating. Separately, the National Park Administration created a usage regulation for the Cocuy National Park in recognition of tourism impacts.  The park, known to the U’wa as Zizuma, overlaps with U’wa territory and contains many sacred sites. Additionally, the National Environmental Licensing Agency granted an environmental license to Ecopetrol for APE Magallanes. The U’wa argued that the environmental impact assessment was deficient and incomplete.

2014

Attacks on the Caño Limón Pipeline by armed non-state actors, prevalent since its construction, continued to affect the peace and tranquility of the U’wa. Pipeline attacks lead to oil contamination, kill numerous sacred plants and animals, and negatively impact U’wa life. 

On May 1, 2014, AsoU’wa and the Colombian government signed detailed agreements, which included the suspension of APE Magallanes drilling for one month to review the environmental impact assessment (EIA). In October, Colombia submitted its objections to admitting the U’was Inter-American petition to the IACHR.

2015

AsoU’wa submitted a demand of nullification against the APE Magallanes environmental impact assessment in Colombian court. Meanwhile, the construction of a new line for the Gibraltar pipeline causes a landslide covering 2km. In September, Colombia approved the U’wa community’s application for the creation of the Kuitua Indigenous reservation.

EarthRights joined the case before the IACHR, supporting the U’wa Nation in their quest for justice. AsoU’wa also submitted additional information to the IACHR on the new and continuing violations. On October 15, 2015, the IACHR published the admissibility report recognizing its jurisdiction over the U’wa Nation’s claims against Colombia.

AsoU’wa also presented a demand for nullification of the coal mining concessions issued in their territory to the Colombian Council of State. The Colombian state held a meeting for prior consultation related to the coal mining concessions. U’wa authorities do not attend. The Council of State then determined that it did not have jurisdiction over the nullification demand and transferred the case to the Administrative Tribunal of Cundinamarca. The State called for a second meeting for prior consultation for coal mining concessions. The U’wa rejected any attempt at prior consultation because the territory is not open to multinational corporations. Cundinamarca Administrative Tribunal accepted jurisdiction over the demand to annul the coal mining concessions.

2016

The U’wa occupied the Gibraltar gas plant in protest of the Colombian state’s lack of compliance with the agreements of 2014. This activity included blocking access along the road and blocking access to the gas plant for repairs after the pipeline breaks. AsoU’wa requested the closure of Cocuy/Zizuma National Park because of the negative impacts of tourism. The National Park administration approved a temporary closure of Cocuy/Zizuma National Park. 

On December 15, 2016, AsoU’wa, EarthRights, and CAJAR submitted the merits brief to the IACHR.

2017

Cocuy/Zizuma National Park reopened with increased regulation of visitors. U’wa and National Park administration agreed on an environmental impact assessment. The Administrative Tribunal of Cundinamarca granted precautionary measures in favor of the U’wa and the provisional suspension of the mining concession GKT-08.

2018 and 2019

Colombia submitted its merits brief and then an additional merits brief to the IACHR.

On November 27, 2019, IACHR found Colombia responsible for human rights violations under the American Convention and sent the merits report to all parties. The confidential report contained a series of recommendations that Colombia must follow to resolve the rights violations and prevent the case from being sent to the Inter-American Court.

2020

AsoU’wa and petitioners submitted information to the IACHR about the death of an U’wa leader killed by the Colombian army during a confrontation with the National Liberation Army (Ejército de Liberación Nacional, ELN.

IACHR sends the Case of the Indigenous U’wa People v. Colombia to the Inter-American Court of Human Rights.

Legal Issues

This is the first case brought to the Inter-American Court relating to Indigenous rights in Colombia. It addresses many interrelated claims supporting the U’wa’s rights to their land and natural resources. The case raises issues regarding the consolidation and titling of U’wa territory, including their ancestral territory, which is recognized by colonial titles granted by Spain in 1661. U’wa territory overlaps with a national park, and the issue of administration of the overlapping land is essential for the U’wa’s right to self-determination. The case will also develop the right to free, prior, and informed consent required for the granting of development projects, including exploration and exploitation licenses, in Indigenous territory. The U’wa have also been negatively affected by militarization and the repression of their right to protest. Throughout the process, the U’wa’s right to their culture has been negatively affected; the Colombian state has not acted with proper respect and recognition of U’wa cultural traditions, including in the minimal consultation processes and in the lack of adequate judicial remedies.