Open letter to the Colombian government on FPIC, online consultations and indigenous rights

Open letter to the Colombian Ministry of the Interior and the President of the Republic of Colombia, Mr. Ivan Duque

Copy to: United Nations Special Rapporteur on the rights of indigenous peoples

Subject: Colombia’s Consultation Fiasco, Underlying Problems and Indigenous Peoples’ Solutions

Berlin, Copenhagen, London, Madrid, Montreal, Oslo 19 June 2020

We wish to express our deep concern in relation to the Ministry of the Interior’s circular dated March 27, 2020 (i) authorizing the use of on-line consultations for legislative and administrative measures in order to avoid the spread of Covid-19. We are aware that this circular was revoked on 20 April following strong objections by Indigenous Peoples and their institutional representatives, including the Cabildo of the Resguardo Indígena Colonial Cañamomo Lomaprieta, as well as objections from the Office of the Inspector General outlined in a letter dated the 15 April, where it declared this measure unconstitutional, against the law, and contrary to the jurisprudence of Colombia’s Constitutional Court.

However, our concern not only relates to the content of this curricular, but extends to the major deficiencies which it highlights in the Ministry of the Interior’s understanding of its obligations with regard to Indigenous and Afro-Descendant Peoples’ rights, and the role of consultation and free prior and informed consent (FPIC) in implementing these obligations.

We will address our concerns under three headings: 1) the problematic notion of holding consultations in any form during the Covid-19 pandemic; 2) the inappropriate nature of on-line consultations for safeguarding Indigenous Peoples’ rights; and 3) the failure to understand the relationship between consultations and free prior and informed consent (FPIC) with the broader framework of Indigenous and Afro-Descendant Peoples’ rights. We conclude with recommendations on ways forward that ensure respect the rights of Indigenous and Afro-Descendant Peoples.

1. Holding consultations during Covid-19 Pandemic

The attempt to hold consultation processes during the Covid-19 pandemic in relation to activities which third parties seek to conduct in or near Indigenous Peoples’ territories is highly problematic. Centuries of colonialization, decades of conflict and continued violence and discrimination render Indigenous and Afro-Descendant Peoples disproportionately vulnerable to the impacts of Covid-19. The spread of Covid- 19 into their territories would have devasting impacts on their lives and well-being. The inadequate health services available to them are completely ill-equipped to deal with an outbreak, and for many the lack of adequate land and poor housing conditions will pose major challenges to the implementation of strict social distancing measures. The lives of indigenous elders, many of whom play a key role in transmitting traditional knowledge and in the practice of traditional governance, will be particularly threatened.

Given this, throughout the world Indigenous and Tribal Peoples are preventing access to actors involved in mining, logging, agri-business or tourism who can introduce and spread the disease in their communities.This ability of Indigenous Peoples to control the entry of outsiders into their territories is an absolute imperative to limit the transmission of Covid-19. Facilitating third party access to Indigenous Peoples’ territories during such a time runs totally contrary the primary objective of safeguarding the well-being and lives of Indigenous and Tribal peoples. Not only would it have grave consequences for their health, but it also dramatically constrains their ability to exercise self-governance and protect their communities (ii).

Attempting to impose consultations by moving them on-line, under the guise of protecting Indigenous and Afro-Descendant Peoples from Covid-19, is disingenuous and considering its potential consequences can only be described as sinister. Consultations with ethnic peoples, whether conducted on-line or in- person, must be aimed at obtaining their free prior and informed consent (FPIC) in accordance with their own decision-making processes. This means that Indigenous and Afro-Descendant peoples must be able to practice their traditional consensus building processes, that often include all community members holding gatherings that can be of considerable duration. Requiring them to engage in such processes during a pandemic is highly irresponsible, if not criminal.

Imposing such an online process also constitutes a violation of Indigenous and Tribal Peoples’ participatory rights, as it was done without obtaining input from the concerned communities and their traditional authorities. Indigenous and Afro-Descendant Peoples were forced to respond retroactively to this threat, when their focus should have been on protecting their communities from the grave risks posed by Covid-19. This has exacerbated their mistrust and suspicion of the Ministry of the Interior and governmental bodies that have repeatedly promoted tokenistic consultation processes that fail to ensure protection of their rights.

The Ministry’s efforts to ensure the continuation of consultations to facilitate access to Indigenous and Afro-Descendant Peoples’ territories during the pandemic is a blatant prioritization of the economic interests of third parties over the rights, well-being and survival of Indigenous Peoples.

2. Broader issues with the notion of on-line consultation

The purpose of consultations and free prior and informed consent (FPIC) is to protect Indigenous and Tribal Peoples’ rights. Nothing could be further removed from this goal than the intention to conduct consultations through a mechanism that is a) inaccessible to most Indigenous Peoples; b) inconsistent with their traditional decision-making practices; and c) would require people to gather at a time when doing so could put their lives at risk.

Apart altogether from the highly disturbing notion of promoting consultations during the Covid-19 pandemic, the concept of holding on-line consultations with Indigenous and Afro-Descendant Peoples (at any time) reflects the extent to which the Ministry of the Interior lacks an understanding of the rights and realities of Indigenous and Tribal Peoples.

The reality in the traditional territories of many Indigenous and Afro-Descendant communities is that there is either extremely limited, or no access at all, to the internet. Where there is access, it is frequently only available to a few community members, and excludes traditional leaders who are often central to decision-making. Information provided via on-line mechanisms is highly unlikely to be communicated in a culturally appropriate manner, and the possibility for the communities to engage in meaningful dialogue through such a mechanism in a manner that leads to informed decision-making would be non-existent.

While information technology may have a role to play in ensuring that Indigenous Peoples have access to information, the way such technology is used in consultation and free prior and informed consent (FPIC) processes is something that Indigenous Peoples themselves must decide. The imposition of such processes is totally inconsistent with the rights to full and effective participation and autonomous decision-making which underpin the requirement to consult in order to obtain free prior and informed consent (FPIC).

The Ministry of the Interior’s attempt to impose on-line consultations is the latest in a series of flawed approaches to prior consultation and its failure to seek and obtain free prior and informed consent (FPIC). Its practice to date demonstrates an abysmal understanding of the content of the right to consultation and free prior and informed consent (FPIC) and its relationship with the broader framework of Indigenous and Afro-Descendant Peoples’ rights. Consultations are reduced to processes in which indigenous peoples can merely participate in the negotiation of benefits in the pre-determined projects of external actors, rather than processes that seek to protect indigenous peoples’ autonomy and territorial rights. This latest attempt at “consultation” sends an ominous signal of what indigenous peoples might face should the right to consultation be regulated in such a restricted and biased manner.

3. Lack of understanding of the relationship between consultation and indigenous peoples’ rights

The purpose of consultations in order to obtain free prior and informed consent (FPIC) is to guarantee respect for the integrity of Indigenous and Tribal Peoples and their territories and their ability to exercise their self-determination-based rights to participation, autonomy and self-governance.

Therefore, consultations have a dual purpose. On the one hand, they provide the means to freely participate in decision-making “to at least the same extent as other sectors of the population”, and on the other, they provide the means to seek and obtain free prior and informed consent (FPIC) as an exercise of the right to autonomy and territorial control. As has been clarified by the Colombian Constitutional Court and the Inter-American Court of Human Rights, in the context of activities such as mining, where there are potentially significant impacts on indigenous peoples’ rights, free prior and informed consent (FPIC) is a required outcome of consultations. The right to consultation and free prior and informed consent (FPIC) is therefore integral to the right to autonomy, territory and self-determined development. As we have explained elsewhere:

“The exercise of the right to self-determined development and the requirement to obtain indigenous peoples’ FPIC are inextricably interlinked. The former facilitates the exercise of choice in relation to the determination of development plans, priorities and pathways - which tend to be contingent on the use of and control over lands, territories and resources - while the latter offers certainty in relation to the realization of those developmental plans and strategies by preventing the subordination of indigenous peoples’ choices to the plans and priorities of external parties.

"If disconnected from self-determined development, FPIC loses its integrity and risks being transformed into a disempowering concept. Rather than facilitate meaningful choices regarding the future a people may want, in such a context FPIC becomes, at best, a right not to have something unwanted or potentially profoundly detrimental done to them. In the worst-case scenario, it is reduced to a hollow consultation process, where indigenous peoples are informed about what will happen to their lands, and by extension are denied the choice as to their own future development paths” (iii).

The situation in Colombia is precisely this worst-case scenario. The fiasco of the Ministry’s attempt to impose on-line consultations has yet again demonstrated a complete failure to grasp the very purpose of consultations. Rather than protect rights, it put them at profound risk.

4. The way forward guided by indigenous peoples and international human rights law

In accordance with their rights to autonomy, to territory and to self-determination, Indigenous and Afro-Descendant Peoples in Colombia, including among others (iv) the Resguardo Indígena Colonial Cañamomo Lomaprieta,(v) have documented their governance rules around consultation and free prior and informed consent (FPIC) in the form of Autonomous FPIC Protocols. The consultation and decision-making processes and rules they prescribe are in accordance with each people’s own distinct realities, practices, and customary laws. They therefore provide the regulatory framework and rules with which the State must comply if it is to implement the right to consultation and free prior and informed consent (FPIC) in accordance with the Colombian Constitution, the Inter-American Convention on Human Rights and the various International Human Rights Law Treaties to which it is party. This was made abundantly clear in 2016, when the Colombian Constitutional Court affirmed the need to respect the Embera Chamí protocols and procedures in relation to free prior and informed consent (FPIC) (Case T-530/2016). This requirement to respect Autonomous FPIC Protocols has also been affirmed by courts and oversight bodies in other jurisdictions, and has been recognized by international human rights mechanisms, international organizations and a range of other actors working closely with indigenous peoples.(vi)

ILO Convention 169 and the UN Declaration on the Rights of Indigenous Peoples are also abundantly clear that to avoid this minimalistic rights-denying conception of consultation, the government must develop, with the full and effective participation and collaboration of the peoples concerned, “coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity“ (ILO C169 Art. 2). Realizing this implies that, rather than focus on promoting development activities in indigenous territories, the government should be developing and implementing a public policy that serves to promote “the full realisation of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions” (ILO C169 Art. 2). Respect for their Autonomous FPIC protocols – and by extension their autonomy and traditional decision-making processes, laws and practices - would be a first step in this long overdue process to demonstrate good-faith and lay the foundations for the development of a rights-compliant public policy that guarantees the basis for the survival and flourishing of Indigenous and Afro-Descendant Peoples and their cultures throughout Colombia.

We thank you in advance for confirming receipt of this letter and we would welcome follow-up conversations with you on Indigenous and Afro-Descendant Peoples’ participation in the development of a public policy in relation to consultation and free prior and informed consent that guarantees respect for these peoples’ integrity and the full realization of their rights. In the meantime, for your information, we are attaching our recent publication on the right to give or withhold free prior and informed consent (FPIC) and the fundamental importance of Autonomous FPIC protocols in its realization.

Sincerely,

Dr. Cathal Doyle, Lecturer in Law, Middlesex University London (United Kingdom), European Network on Indigenous Peoples (ENIP) (European Union)

Dr. Colin Scott, Director, Centre for Indigenous Conservation and Development Alternatives (CICADA); and Professor, Anthropology, McGill University (Canada)

Dr. Esben Leifsen, Professor, Norwegian University of Life Sciences (Norway) Eva Sáinz Ramos, Coordinator, Grupo Intercultural Almáciga (Spain)

Johannes Rohr, Coordinator, Institute for Ecology and Action Anthropology (INFOE) (Germany) Dr. John McNeish, Professor, Norwegian University of Life Sciences (Norway)

Dr. Joshua Castellino, Professor, Executive Director, Minority Rights Group International (MRG) (United Kingdom)

Kathrin Wessendorf, Executive Director, International Working Group on Indigenous Affairs (IWGIA) (Denmark)

Dr. Tom Griffiths, Forest Peoples Programme (FPP) (United Kingdom)

Dr. Viviane Weitzner, Postdoctoral Researcher, Anthropology, McGill University (Canada)

References

i CIR 2020-29-DMI-1000 of March 27, 2020.

ii For example, in Peru, the Wampis Nation’s Autonomous Territorial Government has coordinated contingency actions, including closing off their territory to outsiders. To date these actions have helped slow the spread of the pandemic to their territory, despite cases being confirmed on their peripheries some weeks ago. In Brazil, the Juruna people have also closed access to their lands. The Rede Xingu, of which the Juruna are members, developed and disseminated an educational video on Covid-19, highlighting the risks which loggers, miners and tourists pose for transmission of the disease should they enter their territories. And in Colombia, the Indigenous and Cimarrona guards are undertaking road checks to monitor who seeks entry to their territories. For a global overview of risks facing indigenous peoples and their responses see https://www.iwgia.org/en/news-alerts/news-covid-19.html.

iii Doyle C. (2018) ‘Free prior and informed consent, development and mining on Bougainville: Choice and the pursuit of self-determined development’ in Hill C. & Fletcher L. (eds) Growing Bougainville's Future: Choices for an Island and its Peoples (Jubilee Australia Research Centre) available at https://www.jubileeaustralia.org/_literature_163735/Growing_Bougainville's_Future_2018.

iv Protocolo Comunitario del Pueblo Negro de las Cuencas de los Ríos Mayorquín, Raposo y Anchicayá Para el Fortaleciemiento Interno y Relacionamiento Intercultural Externo y la Participación en los Procesos de Consulta y Consentimiento Previo, Libre e Informado Buenaventura, noviembre de 2015 - Junio 2017;

Protocolo para la Consulta y Consentimiento, Previos, Libres e Informados del Pueblo Negro Norte-Caucano. Palenke Alto Cauca-PCN (2017);

Protocolo Autonomo –Mandato Del Pueblo Arhuaco- Para El Relacionamiento Con El Mundo Externo Incluyendo La Consulta Y El Consentimiento Previo, Libre E Informado Nabusimake, Sierra Nevada de Santa Marta Junio 2016 – Junio de 2017.

v Resolution No. 048 Por Medio de la cual se establecen y reglamentan los protocolos propios de consulta previa, libre, e informada y de consentimiento, previo libre e informado del Resguardo Indígena de Canamomo Lomaprieta, Riosucio y Supia Caldas. 29 de Mayo de 2012.

vi Doyle C., V. Weitzner, B. Rojas Garzon & T. Okamoto (2019) Free Prior Informed Consent Protocols as Instruments of Autonomy: Laying Foundations for Rights Based Engagement (INFOE, Forest Peoples Programme, Middlesex University London School of Law) available in Spanish and English at https://www.forestpeoples.org/sites/default/files/documents/InstrumentsofAutonomy_Spanish_WEB.pdf and https://www.forestpeoples.org/sites/default/files/documents/ENG%20final%20WEB%20FPIC.pdf.