"6.5 million hectares have been violently expropriated from Indigenous , Peasant and Afro-Colombian communities..." "The United Nations should make these countries enforce the ILO Convention 169 and force them to carry out a free, prior and informed consultation with all the elements set forth in the national and international legislation and jurisprudence that truly guarantees the rights of these communities." Presentation made by: Francisco Ramirez CUELLAR Former president of the Colombian State Mineworkers’ Union and a human rights Lawyer

Background: The Commission on Sustainable Development (CSD) was established by the United Nations General Assembly in December 1992 to ensure effective follow-up of the groundbreaking UN Conference on Environment and Development (UNCED) held in June 1992 in Brazil. Among its many responsibilities would be monitoring and reporting on implementation of the Earth Summit agreements at the local, national, regional and international levels. The 19th Session of the CSD took place 2-13 May 2011. This year the focus of its review was the 10-Year Framework of Programmes (10YFP) in support of regional and national initiatives to accelerate the shift towards more sustainable patterns of consumption and production that will promote social and economic development. One of the thematic issues that the CSD-19 focused on is the issue of mining and that was also the subject of this Briefing. According to the United Nations the world’s estimated 370 million indigenous peoples are found in more than 90 countries. They regularly face discrimination and are counted among those who are extremely poor, lacking access to health, education and social services. Often, they are disproportionately affected by climate change, deforestation and environmental degradation or exploitation. In the name of development, their lives are sometimes threatened and the quality of their communities and health suffers. Indigenous people traditionally live on lands rich in natural resources and minerals. Their rights to ancestral lands reach back many generations. Their lands contain sites sacred to their culture and religions. Development projects and mining contracts can clash with these pre-existing rights. The United Nations Declaration on the Rights of Indigenous Peoples adopted in 2007, obliges governments or corporations to gain the Free, Prior and Informed Consent (FPIC) of indigenous people, as custodians and ‘owners’ of their lands and resources, before any action is taken related to mining, harvesting of timber or the use of plants and other living things found within indigenous lands. This right is slowly being recognized in human rights law and, in several legal cases, it has been used as precedent. It is now enshrined in some national constitutions. This Briefing has examined the impact of mining on affected communities from different perspectives with special emphasis on the impact on indigenous women. It explored how to include Indigenous Peoples in the decision to begin mining. As mineral resources belong to the common good, what is needed to protect Indigenous lands from contamination which could last for several generations? What is required to ensure that Indigenous Peoples receive a fair share of the proceeds of the activities undertaken on their lands and resources? FPIC has a critical role in all of these questions. An expert panel has explored possible solutions and look at the role of NGOs, the private sector and civil society in addressing these issues. Source: Department of Public Information of the United Nations.

Mr. Francisco Ramírez Cuellar was one of the panelists in this particular Briefing. Although Mr. Cuellar has made his presentation in Spanish, luckily his slides were in English. We thank to Mr. Cuellar for his kindness for sharing his presentation with The Light Millennium, which is also based on Mr. Cuellar's outlined slides on the Indigenous Rights, Mining and Development - The Need for Free, Prior, and Informed Consent in Columbia.

The imposition of an energy-mining model that does not consult community interests

• The international framework of this imposition

• The International Monetary Fund, the World Bank, the World Trade Organization, and Free Trade Sectors of the Americas have imposed agreements upon Colombia which have created:

1. a financial infrastructure within Colombia that is conditioned on the international market.
2. legislation which has created tax and tariff exemptions or significantly reduced taxes for multinational corporations
3. legislation that has created compensation clauses to pay the corporation for having invested in Colombia.
4. an environment where legal disputes are taken from national jurisdiction and are privatized through arbitration courts based outside the country.
5. allowances and a special legal framework of considerations for multinational corporations and monopolies.
6. limitations or have annulled the collective rights of workers, labor protection agreements, and have severely limited the laws that protect people of African descent and indigenous communities.

Creation of National Legislation
Legislation regarding national resources:

• Petroleum Law
• Mining Code
• Environmental Law
• Legal stability law for foreign investment
• Labor Legislation
• Legislation regarding Afro-Colombians and indigenous communities

Legislation regarding national resources:

• severely limits national sovereignty over natural resources;
• creates tax cuts to ensure natural resources are extracted at practically no cost;
• does not recognize land ownership in indigenous and Afro-Colombian communities;
• forces indigenous communities to exploit their resources or risk beingexpelled for not doing so, thus allowing multinationals to take over and exploit the area;
• does not recognize Constitutional Court decisions that have recognized indigenous land rights;
• does not recognize the required consultation set forth in ILO Convention 169, but rather forges this consultation through acts of deception or violence.

The use of violence to expel Indigenous, Peasant and Afro-Colombian communities from their lands.

6.5 million hectares have been violently expropriated from Indigenous , Peasant and Afro-Colombian communities by military-paramilitary forces in an effort to promote the interests of national and multinational monopolies exploiting mining and energy resources.

Paramilitary Groups were created with money from multinational corporations, regional governments, drug trafficking, national monopolies, and international assistance, etc. These groups were created via multilateral and bilateral agreements with military “help or assistance” primarily from the U.S., U.K. and Israel.

Plan Colombia & Plan Patriota
Multinational corporations’ illegal use of militarily forces as private security.

• Security agreements with military forces (Occidental Petroleum case)
• Joint operations between legal and illegal forces (Cerrejón Coal case)
• Mercenaries and foreign forces (Drummond Coal Corp. case)
• Taxes on royalties and granting of title to property. (Palm oil companies cases)

Effects on the Human Rights of the Population

• 64% of new mining and energy projects are being developed in indigenous and Afro-Colombian communities.
• 88% of the human rights violations in Colombia happen in mining and oil municipalities (35% of the national total).
• 87% of forced displacement (of the 5.2 million externally and internally displaced persons overall) come from municipalities who receive royalties from mining & energyproduction.
• 43% of the forced displacement throughout the country come from six departments along the stretch of Pacific coast that have large indigenous and Afro-Colombian communities.
• Areas of Colombia that were declared “rehabilitation areas” by ex-President Uribe are where companies such as British Petroleum, Repsol, Occidental de Colombia, Talisman, and Harken Energy (Bush family) operate. Over the last 20 years, human rights violations in these areas has increased over 200%.
• 64% of the Colombian population lives below the poverty line and 23.4% in poverty.
• For the indigenous population in Colombia the numbers are far worse: more than 50% of the indigenous population lives in abject poverty and lacks access to basic education, healthcare and daily nutritional needs.

Cases on the implementation of the consultation contained in the ILO Convention 169

• Indigenous communities of the protected areas of the Jiguamiandó River and Murindó River

February 4, 2005: Colombia's government signed a concession contract with Muriel Mining Corporation for the exploration and exploitation of copper, gold, molybdenum and other minerals grants in an area of 16,006.8528 hectares, located in the departments of Antioquia and Chocó. The implementation of the project directly affected the ancestral lands and more than 36 sacred sites of 16 communities; the collectively owned land of two Afro-Colombian community councils; and peasant settlements of rural communities whose territories are located in seven municipalities.

Muriel Mining used military brigades of the Colombian Army to force the indigenous people to leave their sacred lands.

Judgment T-769 in 2010 recognized the protection of community rights in a pre-contract consultation; the right to due process; the right to life and ethnic and cultural identity, and ordered, among other things, the study of the social, cultural and environmental impact before the initiation of any project in the territories of indigenous communities and extended these requirements to other ethnic minorities. The ruling also required implementation of a new process of consultation with all communities affected by the project aimed at achieving free, prior and informed consent (FPIC).

Wayuu indigenous community

This community lives on their ancestral lands in Bahía Portete (Portete Bay) in the Upper Guajira. For years they have refused to leave the area despite all kinds of pressures from the Cerrejón Company (formed by the Corporations BHP Billiton, Glencore, Xstrata, and Angloamerican) in an effort expand its coal shipping port to sites occupied by the indigenous communities. No prior consultation was ever conducted nor was there any disclosure of mining plans to extend the current coal shipping port.

Since the community has refused to leave, Cerrejón, instead of conducting the required consultation, signed a contract with members of the Cartagena Battalion. The battalion conducted a military-paramilitary operation from April 18 -24, 2004 against the Wayuu indigenous community, killing six people including four women. From the beginning it was clear that this grave act was not a war between indigenous clans, as the Uribe government said it was, but rather the dark workings of the multinational corporation.This event forcibly displaced 600 people.

Conclusions and Recommendations

1. Given their interest in their ancestral and sacred lands, Indigenous territories and autonomous communities should decide whether or not to exclude themselves from mining and energy exploration and exploitation.

2. Respect the constitutional guarantees and the rulings by National High Courts when they recognize the right to life and ethnic and cultural identity in the communities' ancestral territory.

3. Create legislation to criminalize and punish international corporate crimes against these communities. Such legislation should expressly prohibit the use of legal, illegal and mercenary forces against indigenous populations and intervene in the development of national legislation created by multinational companies and governments that openly favor this illegal and unethical activity which undermines national sovereignty over natural resources.

4. The United Nations should make these countries enforce the ILO Convention 169 and force them to carry out a free, prior and informed consultation with all the elements set forth in the national and international legislation and jurisprudence that truly guarantees the rights of these communities.

Special Thanks To: Tati GARCIA, Volunteer, The Light Millennium