On Sunday, July 28, the people of Piedras, a small town in the central Colombian department of Tolima, organized a referendum over the mining company AngloGold Ashanti’s activities in the municipality. Of the more than 5,000 eligible voters, about 3,000 actually participated in the consultation. Of those, the vast majority voted against the company’s plans, while just 24 voted in support.
Will this overwhelming negative result persuade the national government to exclude the region from future mining exploitation? Nothing seems less sure.
AngloGold Ashanti Limited, a multinational gold mining company formed in 2004 by the merger of South Africa’s AngloGold with Ghana’s Ashanti Goldfields Corporation, works in Colombia, Africa and Australia, and is one of the biggest gold producers in the world. In 2011, the company won the Public Eye Award, a distinction given since 2000 by Greenpeace and the Swiss NGO Berne Declaration to the “worst corporation of the year” because of the “social and ecological damage they cause.”
The company started mining in Colombia in 2007; it has concessions in several departments of the country. In January 2013, it began considering the municipality of Piedras for a gold-ore processing plant. The La Colosa project, as it is named, is situated in an area both of agricultural production and what environmentalists say are sensitive ecosystems, including a forest reserve. The Colombian government has nevertheless granted a “national interest” status to the project, effectively bypassing environmental regulations. It would be AngloGold Ashanti’s biggest project in Colombia with a target opening date of 2018.
Initial activity and mining investigation sparked protests that eventually led to road blockades and impediment of movement for AngloGold Ashanti’s personnel. This, in turn, led to a legal battle when company representatives accused local authorities of “not doing enough” to prevent locals from “halting the freedom of movement” of company personnel. The legal battle did not lead anywhere and the hostility between the inhabitants and the mining company persisted.
The Piedras municipality is an area dominated by large-scale rice production and protestors are concerned about the potential water use and pollution impacts of a gold ore processing plant. As there is only one source of water in the area, locals fear that mining activities would almost certainly contaminate it and ruin their means of income and way of life. Hence the protests, the blockades… and now the referendum, whose outcome could hardly be less certain.
What does this consultation result mean in practice for the people of Piedras? In immediate term, the vote does not seem to be the last word on the situation. There is actually every possibility that the process will be overturned or ignored by the Colombian government, because it considers mining projects as being of “public utility.”
Making extraction a national interest
The issue is a complex one and reveals similar situations in other countries of the region. Latin American governments seek to encourage private investment with a view to promoting development, because the revenue from natural resources exportation is considered important for these countries’ economic growth. In light of this “national interest,” they grant concessions on indigenous lands to extractive firms without taking into account how these activities affect the inhabitants’ way of life.
Employment is regularly mentioned as a possible positive social impact of these mining activities; in reality, however, they often provide jobs for a limited number of locals who are employed as basic laborers during the construction phase only. Most of the more technical positions – engineering, skilled, scientific positions – are likely to be given to workers from other locations, often other countries.
More generally, it is debatable that investments in mining, hydrocarbons, timber and the like bring development to the country, since more often than not, development does not benefit the indigenous communities living on lands where the extractive activities are carried out. Not only do they not benefit, but often the land they rely on for subsistence is spoiled or destroyed.
Hence, indigenous peoples are asserting their rights to use and enjoy their lands and to protect and manage them according to their own customs and worldview. The issue has led to a substantial increase in the number and intensity of social conflicts in several countries in Latin America; they can become particularly heated when extraction or infrastructure projects are undertaken without adequate prior consultation with the indigenous communities that could be affected.
At the heart of disputes over land and natural resources, then, is the question of the content and scope of the right to prior consultation and to free, prior and informed consent.
Consulting the local communities
Prior consultation is one of the fundamental rights included in the international legal framework, such as the International Labor Organization’s (ILO) Convention 169 concerning indigenous and tribal peoples and the United Nations Declaration on the Rights of Indigenous Peoples. Article 6 of ILO Convention 169, for example, states that “governments shall consult the peoples concerned, through appropriate procedures […], whenever consideration is being given to legislative or administrative measures which may affect them directly.”
Article 7 of the same Convention reads: “The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development.”
Most Latin American countries have ratified this ILO Convention — and when states ratify an international treaty, they are making a sovereign pledge to abide by its provisions. As a result, States are bound to put those regulations into effect before granting concessions for extractive or infrastructure projects.
A certain number of issues arise, however. First, what is meant by “indigenous people”? There is no international norm that defines who is indigenous. According to a report prepared by the Due Process Law Foundation for Oxfam, the “concept of indigenous peoples is broad and inclusive and, in practice, extends to Afro-descendant communities and rural and peasant minorities in addition to indigenous and tribal peoples.”
In practice, however, actually determining who is protected under international and domestic law continues to be a complex matter and one that is far from being fully resolved.
Second, as is explained in the same report, the obligation to seek the consent of the affected communities often triggers heated controversy. For indigenous peoples, obtaining free, prior and informed consent is an indispensable part of the consultation process and an expression of their right to self-determination, applicable to all of the projects that affect them. In other words, in their view, the right to consultation also implies the right to veto.
In international law, is it generally assumed that the consent of the affected communities should be the ultimate goal of any consultation that is respectful of indigenous people. In other words, a consultation process whose ultimate objective is not to obtain consent would be meaningless.
Not a veto power
A free and fair community referendum with formal voting standards is probably the most accurate and democratic way to allow people to shape their futures. In this sense, the referendum that took place in Piedras – the first ever to be organized in that country – is quite significant. But there is that paradoxical situation in Colombia where a highly developed legal framework stands in stark contrast to the reality of disregard for the right to consultation.
Colombia, like other states in the region, claims that a right to consultation does not mean that communities have the right to veto the decisions made by the authorities. As a result, according to a report by Comunicaciones Aliadas — a Peru-based NGO — indigenous peoples in the Andean region find it difficult to be heard, and more often than not, come up against projects that are implemented on their lands with no consultation whatsoever.
In this atmosphere of discordance, the debate today in Colombia, as in many Latin American countries, is over the implementation of the international human rights legal framework. On the other hand, the conflicts lies with countries’ inability to propose an alternative development model to one based on the extractive industry, one that takes into account different ways of life and different conceptions of development.