POLICY BRIEF. Caught in the Crossfire: Indigenous Peoples, Black Communities and Extractives in Colombia. research for a fairer world

Transcription

1 SUMMER 2012 In terms of human rights guarantees, nothing can be voluntary it s an obligation. -Black woman community leader reflecting on voluntary CSR instruments, Cauca funding should breaches occur. Revised policies should include input from diverse actors, particularly potentially-affected ethnic communities. Develop criteria for no-go investment zones in Colombia, in consultation with ethnic peoples (see criteria below as a starting point). Invest in strengthening civil society in Colombia and in home countries of companies without tying support to specific extractive projects (instead support could include activities and capacitystrengthening to prepare for potential future projects); strengthening human rights protection mechanisms in Colombia; and in other mechanisms for assuring human rights compliance, such as certification schemes. Recognize and establish no-go zones Two types of no-go zones (besides those already determined by the Colombian government for ecologically sensitive areas and national parks) should be integrated into human rights due diligence by companies, governments and other investors. Extractive activities, including prospecting and exploring, should not take place where: No-go zones are declared by communities to protect their cultural survival. Appropriately-undertaken FPIC processes lead to a no decision from the legitimate authorities; communities have designated no-go areas as part of their land-use planning; or where Active armed conflict is taking place, or has the potential to escalate, and where: there have been massacres; there are high (above national average) rates of violent deaths; forced displacement is (or has been) occurring; armed groups operate; and where the Inter-American Court of Human Rights or the Constitutional Court have ordered precautionary measures to protect social leaders and communities. Caution should also apply to areas where Colombia s ombudsperson has issued early warnings.15 Strengthen community decision-making Endnotes Indigenous and Afro-Descendent communities should, among other steps: 1 Know their rights and get organized, drawing on the manuals on consent, conflict transformation, and action research developed by the NSI-RICL-PCN project (see Box). Work towards the delimitation and recognition of collective territories. Obtain information about concessions in their areas, and update this constantly; monitor companies with interests in the area. Build alliances with national and international organizations, and experts who can support communities to get better informed, organized, and make self-determined choices about their future. Undertake land-use planning that considers whether territories should be open to extractive activities, and where no mining should take place. If there is ancestral or artisanal mining in their area, consider undertaking their own impact assessment and management planning (as undertaken by Resguardo Indígena Cañamomo Lomaprieta ), with possible linkages to the Alliance for Responsible Mining and its local partners. If there is active armed conflict in their area, consider declaring their territory a temporary no-go zone. Looking toward the future, doing the right thing Consent and selfdetermination in Colombia The only way for the right to free, prior and informed consent to be implemented in Colombia is to ensure that social leaders and communities can freely demand their rights without risking their lives. Implementing the recommendations above particularly those around establishing and respecting no-go zones will go a long way towards enabling these conditions. Yet in Colombia, respecting human rights, particularly ethnic rights, is also about the economic bottom line. As communities get organized, know their rights, and know how to use domestic and international legal systems and the media, the pressure will increase for companies to do the right thing. The good news is that doing the right thing also makes long-term business sense. This policy brief synthesizes research led by Viviane Weitzner, former NSI Senior Researcher. Personal Communication, In The War we are living, documentary produced by PBS, November Throughout this brief, references to ethnic rights or ethnic groups indicate specifically the rights of Indigenous and Tribal Peoples, following the definition in ILO Convention 169. In Colombia, ethnic rights extend officially to the following [ethnic] groups: Indigenous Peoples; Black, Afro-Descendent, Palenquera and Raizal communities; and to Roma (known also as gypsies). 4 Ancestral mining is self-regulated by ethnic peoples themselves.at conflict are different views on who has jurisdiction over, and who should regulate activities, on ancestral lands. 5 Such as the United Nations Global Compact, the Voluntary Principles on Human Rights and Security, the Global Reporting Initiative and the OECD Guidelines. 6 Juniors are prospecting and exploration companies; majors are larger companies who buy interesting finds from juniors and develop the mines. 7 Protect, Respect and Remedy: a Framework for Business and Human Rights. Report of the Special Representative of the SecretaryGeneral on the issue of human rights and transnational corporations and other business enterprises, John Ruggie. A/HRC/8/5. 7 April, Para 3. 8 This mechanism does not investigate, but reviews complaints only with the consent of the company involved. The company can walk away at any time from the discussion, as happened in the first case reviewed. 9 Issues of legitimate representation in national tables (consultivas), corruption in the handling of resources for such consultations, extremely short time frames and parallel processes, are just some of the myriad issues plaguing national consultations and overwhelming the capacities of ethnic organizations to respond. 10 Among others, regulations on prior consultation and FPIC; the current system for issuing concessions so it becomes aligned with ILO Convention 169 s consent requirement; the parameters establishing Colombia s new mining permitting office [ANLA]; environmental protection mechanisms so they incorporate social and ethnic rights considerations, following the (2004) Akwé:Kon Guidelines drafted by parties to the Convention on Biological Diversity; and the Mining Code, ensuring the rights of Colombia s ethnic peoples to undertake ancestral mining are protected; and that no-go zones for extractive activities are formally adopted, considering criteria outlined below. 11 The Government of Colombia should also ensure that its requirement to establish a National Contact Point to investigate grievances following its December 2011 commitment to the OECD Declaration does not mean resources for Defensoría are cut. Any NCP should consider including Defensoría as an integral member. Further, on-the-ground verification and monitoring to ensure implementation of Constitutional Court decisions should be established. 12 Details on implementing leading edge practice can be found in the 2012 report Holding Extractive Companies to Account in Colombia: An evaluation of CSR instruments through the lens of Indigenous and AfroDescendent Rights by Viviane Weitzner For Canada, this includes re-considering the mandate of the CSR Counsellor, and establishing a complaints mechanism modeled on that recommended in the 2007 National CSR Roundtables consensus advisory group report. 14 This requires supporting efforts to improve mining practices and establish traceable fair-trading supply chains, and certification of ancestral mines, to ensure they are not harmed by State crackdowns on criminal groups disguised as small-scale miners. 15 Figures on rates of violent deaths are available from Colombia s ombudsperson s office, the OACNUDH-Colombia, and the President s Office of Human Rights; identification of places where armed groups are operating is available from military maps; information on places where early warnings have been issued is available from Colombia s ombudsperson s early warning reports that monitor, analyze and report on risks to civilians and possible violations of international law. ( Publications POLICY BRIEF Holding Extractive Companies to Account in Colombia: An evaluation of CSR instruments through the lens of Indigenous and Afro-Descendent Rights * Colombia Synthesis Document: From Consultation to Consent * Estrategias y Mecanismos de Protección de Pueblos Indígenas Frente a Proyectos Mineros y Energéticos: La experiencia del Resguardo Indígena Cañamomo Lomaprieta ** Experiencia de La Toma, Suárez Reglamento Interno ** Guidebooks for Mining-Affected Communities: (Free, Prior and Informed Consent) La Consulta y el Consentimiento Previos, Libres e Informados Frente a proyectos de Extracción y Explotación de Recursos Naturales en Territorios Étnicos desde la Mirada de Comunidades Negras e Indígenas, Colombia.** (Conflict Transformation) Minería y Comunidades: Transformación de Conflictos a Favor de los Derechos de las Comunidades Indígenas y Negras.** (Participatory Action Research) Encaminando la Investigación Acción Participativa: Ideas preliminares hacia la construcción de una metodología conjunta.** Summary Report: Workshop-Gathering on Free, Prior and Informed Consent and Prior Consultation for Indigenous Peoples and Black Communities International and Colombian standards in the Extractive Sector, July 13-15, 2010, Bogotá.* Summary Report: Workshop on the impacts of mining and other extractive projects on Ethnic Territories, August 2-4, 2011, Bogotá.* Documentary Videos National/International: Derechos a la Consulta y el Consentimiento Previo, Libre e Informado. 2012** Resguardo Indígena Cañamomo Lomaprieta: Minería Artesanal Ancestral: Una Opción de Vida y Resistencia ** El Territorio es Nuestro por Herencia y por Derecho ** Consulta y Consentimiento Previos, Libres e Informados: Derechos para la pervivencia de los Pueblos Étnicos ** Cauca: Una aproximación a la aplicación de los derechos a la consulta y al consentimiento previo, libre e informado ** Empoderamiento comunitario para la implementación de los derechos a la consulta y al consentimiento previo, liebre e informado.2012.** Notes: *Available in English and Spanish; **Available in Spanish only 55 Murray Street, Suite 500 Ottawa, Ontario Canada K1N 5M3 Tel: (613) Fax: (613) nsi@nsi-ins.ca Web: Resguardo Indígena Cañamomo Lomaprieta Carrera 11 No Riosucio-Caldas Colombia Tel: Fax: lomaprieta@starmedia.com Proceso de Comunidades Negras Calle 23 No Oficina 307 Bogota, Colombia Tel: pcnkol.bogota@ renacientes.net Web: thanks the Canadian International Development Agency for its core grant and the International Development Research Centre for its program and institutional support grant to NSI. This project was made possible thanks to the support of the Ford Foundation, the International Development Research Centre of Canada, the United States Agency for International Development, the Norwegian Ministry of Foreign Affairs, and Rights & Democracy, Canada. Caught in the Crossfire: Indigenous Peoples, Black Communities and Extractives in Colombia On the frontlines On August , Francia Márquez surveyed the ancestral lands she and her Afro-Descendent neighbours have mined collectively for generations, and breathed a huge sigh of relief. Together with other community activists, the young miner and lawyer-in-training had managed just to stay the forced relocation of her community ordered for that same day. Our people have been mining these lands since the abolition of slavery, and that has allowed us to survive and endure in our ancestral territory, says Márquez. I feared that if the Black People of this territory were evicted, we would stop existing as a Black People; I feared we wouldn t be able to guarantee the future of our people rooted firmly in the permanence of our territory, just as our ancestors guaranteed for us. 1 With the Santos government looking to mining as Colombia s engine of growth and negotiating new free trade agreements amid claims the country is postconflict, pressures and potential violence continue to mount for Colombia s Indigenous and Afro-Descendent Peoples. These Peoples have recognized title to over 30% of Colombia areas rich in resources, but coveted by extractive companies and illegal armed actors alike. Indeed the riches of Márquez s territory which includes an area known as La Toma (municipality of Suárez, Cauca) have been coveted by outsiders for centuries. In 2000, Colombia s mining agency handed over La Toma s lands as concessions to make way for large-scale mining. It had not, however, obtained the constitutionally-required consent of the AfroDescendent People calling this area home. Nor had the agency undertaken prior consultation. The result was a legal battle that made it all the way to the Constitutional Court. By signing her name to research for a fairer world Colombia s Constitution recognizes the special jurisdiction of Indigenous Traditional Authorities police and military must obtain their consent to undertake any activities on Indigenous territories. Yet there have been numerous incidents of riot police and others violently entering traditional territories unannounced and without obtaining consent, as occurred in October 2009 in the Resguardo Indígena Cañamomo Lomaprieta, Caldas. these actions, Francia Márquez put her life on the line to defend the rights of her people. Since then, she and other community leaders have received multiple death threats. I m going to die in this battle, that s clear to me, Márquez reflects.2 This despite Colombia s Constitution and ethnic rights protections3 being among the most progressive in the world, with the country s Constitutional Court recently issuing landmark decisions on consultation and consent. In December 2010, for example, it made an historic judgment in favour of La Toma. It suspended all mining activities in the area, until prior consultation processes leading to consent are undertaken. This decision (T-1045A), based in international jurisprudence and domestic law, has been hailed as a major victory by the people of La Toma and ethnic peoples across Colombia. Yet in the context of armed conflict, implementation of human rights protections has been elusive. The people of La Toma remain on guard. What guidance is there for communities, the State, home governments and extractive companies investing in Colombia in this complex landscape of armed conflict, increasingly explicit ethnic rights, and growing extractive investments? Are corporate social responsibility (CSR) instruments enough to protect human rights? How can rights to self-determination and to free, prior and informed consent (FPIC) be upheld? Can FPIC be implemented at all in Colombia, given the internal armed conflict? Photo: Felipe Jaramillo Be willing to deploy government officials to the field to follow up on allegations of human rights abuses by, and serious grievances against, the home country s companies. Select NSI-PCN-RICL Project Outputs

2 Intensification of violence against ethnic and other social leaders Despite the widely-promoted view that Colombia is now at peace, the evidence on the ground paints a very different picture. The country remains wracked by armed conflict, and human security remains a critical issue, particularly for human rights defenders. In fact, the intimidation of and violence against Colombia s Indigenous, Afro-Descendent and other social leaders has intensified. In the extractive sector, illegal armed groups are setting up their own mining operations to take advantage of high commodity prices to fuel their activities, and to launder money. Meanwhile, ancestral Indigenous and Afro-Descendent miners are caught in the crossfire, with extractive companies and illegal armed groups alike eyeing the resources in their territories. Afro-Descendent ancestral miners in La Toma, Suárez (Cauca), practising La Tonga, collective mining that has its roots in Africa. A joint project on ethnic rights and accountability To examine these issues, partnered with Proceso de Comunidades Negras, a national Black organization working in the municipalities of Buenos Aires and Suárez, Cauca; and the Resguardo Indígena Cañamomo Lomaprieta, an Embera Chamí Indigenous Reserve comprising 32 communities located in the municipalities of Riosucio and Supía, Caldas. Our 30-month ( ) participatory action research project was entitled Towards the Development of Standards and Mechanisms to Protect Ethnic Peoples Affected by Extractives: Implementing free, prior and informed consent and prior consultation in the context of the Colombian armed conflict. Its principal objective was to undertake primary research that: Strengthens project participants (through awareness-raising of rights and the extractive sector, and strengthening research, organizational and networking capacities); Highlights and clarifies their perspectives on and strategies for territorial control and development; and Sheds new light on the debate around human rights standards and mechanisms to hold to account companies operating in Colombia, with a focus on extractive activities affecting ethnic communities. Project activities were undertaken through intercultural, gendered and human rights lenses. Weak host government capacity to protect human rights Despite Colombia s progressive legislative framework and judgments by the Constitutional Court upholding ethnic rights, Colombia s regulatory agencies remain weak and dysfunctional. The Ministry of the Interior s Office of Prior Consultation Ancestral lacks staff to certify and monitor mining mining is an activities requiring prior consultation inalienable and consent processes. Draft regulations cultural on prior consultation have been heritage of the developed without consulting Colombia s Resguardo, ethnic peoples. Environmental impact as it has been assessment (EIA) procedures lack practised meaningful consideration of human uninterrupted rights, social, cultural and spiritual by our impacts, and field-level monitoring community does not take place. And Colombia s members ombudsperson s office Defensoría is since time under-resourced to respond effectively to immemorial, human rights complaints. Furthermore, even though a 2011 Constitutional Court decision invalidated the mining code for lack of appropriate consultation, it remains in place for a two-year window until a new code comes into effect; in the meantime, drafts have seemingly been negotiated behind closed doors, concessions issued under the invalidated code still stand, and the government continues to crack down on illegal mining, threatening ancestral miners and their livelihoods who overnight have been deemed illegal for lack of State-required paper work.4 in this way establishing a series of social, spiritual and economic relations with practices that are environmentally sustainable. -Resguardo Indígena Cañamomo Lomaprieta, Resolution 031, 2011 And while the Santos government has been working on legislative reforms dealing with national planning and restitution of lands for victims of the armed conflict among other critical issues, the associated consultation processes have been extremely problematic and overwhelm the capacities of ethnic groups to respond. Community perspectives on the effectiveness of CSR instruments in ensuring respect for human rights strongly emphasized their inadequacy for Colombia. Community analysis evinces a double discourse in which companies announce they are respecting community rights, yet on the ground a very different story unfolds. Nonetheless, knowledge of CSR commitments was deemed useful, for enabling communities to demand implementation, shine a spotlight on breaches, and develop alternative strategies for ensuring ethnic rights are respected. The result is a huge gap between Colombia s human rights commitments on paper and what takes place in practice. Marked increase in investments in extractives Lack of access to effective home government accountability mechanisms Canadian companies, who lead in exploration and development interests in Colombia, are on the frontlines dealing with the issues at stake. In November 2011, Canadian companies comprised 65% of companies actively exploring for minerals and metals in Colombia, and over 75% of all companies exploring for oil and gas. These numbers will likely increase as the Canada-Colombia Free Trade Agreement becomes fully operational. Home governments have a spectrum of approaches to investor oversight from Canada s encouraging voluntary adoption of CSR instruments, to Norway s conditioning investments on ethical principles. Yet to date, no home countries have established grievance mechanisms that can lead to sanction and remedy. Ruggie concludes these criteria for effectiveness are required to close governance gaps that enable permissive environments in which companies can engage in wrongful acts with impunity.7 Voluntary CSR frameworks do not protect human rights on the ground Access to remedy abroad thus remains elusive. In Colombia s experience with the US Alien Torts Claims Statute, for example, a case still ongoing took 10 years to proceed to hearing and trial. Colombian interactions with non-judicial complaints mechanisms such as National Contact Points, established by membership in the Organization for Economic CoOperation and Development (OECD) shows that implementation of these processes outcomes is not Aside from compliance with national laws whose implementation suffers from systemic corruption and lacks monitoring and verification voluntary CSR is the key mechanism promoted for Canadian and other companies to respect human rights in Colombia. An in-depth review of core instruments5 through the lenses of the Protect, Respect and Remedy framework (of the UN Special Rapporteur on Business and Human Rights, John Ruggie) and of ethnic rights to self-determination concludes that voluntary CSR instruments are far from sufficient to uphold human rights, particularly in the context of armed conflict. More insidiously, they can mask human rights incidents, given their reliance on self-reporting and lack of third-party verification. Yet, as Ruggie s framework underscores, respecting human rights is not a voluntary responsibility for companies it is an obligation. Case study research in Cauca and Caldas on CSR implementation further reveals that most companies do not subscribe to international CSR instruments. Nor do most juniors6 with interests in these territories have formal CSR or ethnic peoples policies. The two larger companies that do subscribe to CSR policies do not report consistently; report to lower standards than usual for their company, without any external assurance; pick and choose the indicators to report on; ignore key human rights incidents; and do not report fully on exploration activities or joint ventures where they are not the operator. They have very different interests to ours; they are only interested in our gold and we are interested in the life of our community, in our territory, in our water, in our lands, in our culture, in life and everything this means. For this reason I propose that we prohibit the entrance of multinational companies... It s the only way to protect the little that we have. Without territory there is no life, and without life why have territory. -Embera Chamí Elder Rodolfo Stavenhagen (right), former UN Special Representative on Indigenous Peoples Rights, listens as Héctor Jaime Vinasco (left), former Chief Governor of the Resguardo Indígena Cañamomo Lomaprieta (Caldas), explains a memorial to Embera Chamí Indigenous leaders killed for speaking up for the rights of their people. guaranteed. Other home government mechanisms such as Canada s CSR Counsellor while not yet tested by Colombian complainants do not guarantee sanction or remedy.8 Confusion and lack of information at the community level Ethnic peoples in Colombia often have no idea that extractive projects are planned for their territories until prospectors arrive, flyovers take place, uninvited military or illegal armed groups show up, or leaders are threatened. On the ground the scenario is extremely confusing, as companies with similar names approach communities (AngloGold, Gran Colombia Gold, Colombia Goldfields ), mergers and acquisitions take place overnight, and information on the companies and their proposed activities is lacking. Even for those able to access the Internet, the little information disclosed is rarely available in Spanish. In this landscape, divide and conquer tactics are often used, which disrupt community unity and undermine traditional decisionmaking, leading to polarization and violence. Recommendations Holding to account extractive companies with interests in Colombia The evidence is clear voluntary CSR instruments are not the answer for holding companies accountable or ensuring protection of rights in Colombia. While CSR frameworks and their implementation should continue to be strengthened, there is an urgent need to tip the balance away from voluntary approaches towards others that de-escalate conflict and enable conditions guaranteeing human rights. So what must happen? The following are select recommendations, fleshed out in the joint project s analytical reports (see Box). Strengthen Colombian government accountability mechanisms The Colombian Government should: What we found Integrate recommendations from the Office of the UN High Commissioner on Human Rights in Colombia (OACNUDH) on mechanisms for consulting with and obtaining the consent of Ethnic Peoples. Once due process is established and ethnic peoples concerns regarding national processes addressed,9 engage in due process to review and adjust relevant legislative proposals and mechanisms.10 Ensure Colombia s human rights and environmental agencies have adequate resources to implement their mandates effectively, and monitor developments in the field, while addressing the systemic corruption plaguing the public service.11 Improve corporate practice Extractive proponents, companies and industry associations should: Explicitly recognize in CSR frameworks Indigenous and Tribal Peoples rights and the international instruments and jurisprudence protecting these, and the right to FPIC, requiring its implementation for all activities affecting ethnic peoples. Ensure ongoing and mandatory training for company personnel particularly geologists and others approaching communities on the applicable national and international human rights framework, and ensure that leading-edge practice for implementing ethnic rights is followed.12 Include the entire mining cycle in CSR reporting, particularly prospecting and exploration, and joint ventures; and independently verify self-reporting involving affected communities in process design. Establish grievance mechanisms within CSR frameworks (not only the project level) with powers to investigate, sanction companies neglecting their commitments, and offer remedy for affected communities. Involve affected groups in the design process. Strengthen home government accountability Beyond voluntary CSR Home governments should: Establish grievance mechanisms that can lead to sanction and remedy, including withdrawing public funding to companies found to have violated human rights;13 and address barriers to accessing home justice systems. Consider legislation concerning conflict minerals similar to that of the US Dodd-Frank Act, but go further to ensure ancestral, artisanal and small-scale miners rights are respected (even if they lack formal mining licenses).14 Ensure Export Credit Agencies (ECAs) require best practice human rights due diligence from clients. ECA human rights frameworks and contracts should refer explicitly to international ethnic rights instruments, and implementation of FPIC including disclosure of all relevant materials. Further, ECAs should establish independent monitoring and verification; grievance procedures; and withdraw

3 Intensification of violence against ethnic and other social leaders Despite the widely-promoted view that Colombia is now at peace, the evidence on the ground paints a very different picture. The country remains wracked by armed conflict, and human security remains a critical issue, particularly for human rights defenders. In fact, the intimidation of and violence against Colombia s Indigenous, Afro-Descendent and other social leaders has intensified. In the extractive sector, illegal armed groups are setting up their own mining operations to take advantage of high commodity prices to fuel their activities, and to launder money. Meanwhile, ancestral Indigenous and Afro-Descendent miners are caught in the crossfire, with extractive companies and illegal armed groups alike eyeing the resources in their territories. Afro-Descendent ancestral miners in La Toma, Suárez (Cauca), practising La Tonga, collective mining that has its roots in Africa. A joint project on ethnic rights and accountability To examine these issues, partnered with Proceso de Comunidades Negras, a national Black organization working in the municipalities of Buenos Aires and Suárez, Cauca; and the Resguardo Indígena Cañamomo Lomaprieta, an Embera Chamí Indigenous Reserve comprising 32 communities located in the municipalities of Riosucio and Supía, Caldas. Our 30-month ( ) participatory action research project was entitled Towards the Development of Standards and Mechanisms to Protect Ethnic Peoples Affected by Extractives: Implementing free, prior and informed consent and prior consultation in the context of the Colombian armed conflict. Its principal objective was to undertake primary research that: Strengthens project participants (through awareness-raising of rights and the extractive sector, and strengthening research, organizational and networking capacities); Highlights and clarifies their perspectives on and strategies for territorial control and development; and Sheds new light on the debate around human rights standards and mechanisms to hold to account companies operating in Colombia, with a focus on extractive activities affecting ethnic communities. Project activities were undertaken through intercultural, gendered and human rights lenses. Weak host government capacity to protect human rights Despite Colombia s progressive legislative framework and judgments by the Constitutional Court upholding ethnic rights, Colombia s regulatory agencies remain weak and dysfunctional. The Ministry of the Interior s Office of Prior Consultation Ancestral lacks staff to certify and monitor mining mining is an activities requiring prior consultation inalienable and consent processes. Draft regulations cultural on prior consultation have been heritage of the developed without consulting Colombia s Resguardo, ethnic peoples. Environmental impact as it has been assessment (EIA) procedures lack practised meaningful consideration of human uninterrupted rights, social, cultural and spiritual by our impacts, and field-level monitoring community does not take place. And Colombia s members ombudsperson s office Defensoría is since time under-resourced to respond effectively to immemorial, human rights complaints. Furthermore, even though a 2011 Constitutional Court decision invalidated the mining code for lack of appropriate consultation, it remains in place for a two-year window until a new code comes into effect; in the meantime, drafts have seemingly been negotiated behind closed doors, concessions issued under the invalidated code still stand, and the government continues to crack down on illegal mining, threatening ancestral miners and their livelihoods who overnight have been deemed illegal for lack of State-required paper work.4 in this way establishing a series of social, spiritual and economic relations with practices that are environmentally sustainable. -Resguardo Indígena Cañamomo Lomaprieta, Resolution 031, 2011 And while the Santos government has been working on legislative reforms dealing with national planning and restitution of lands for victims of the armed conflict among other critical issues, the associated consultation processes have been extremely problematic and overwhelm the capacities of ethnic groups to respond. Community perspectives on the effectiveness of CSR instruments in ensuring respect for human rights strongly emphasized their inadequacy for Colombia. Community analysis evinces a double discourse in which companies announce they are respecting community rights, yet on the ground a very different story unfolds. Nonetheless, knowledge of CSR commitments was deemed useful, for enabling communities to demand implementation, shine a spotlight on breaches, and develop alternative strategies for ensuring ethnic rights are respected. The result is a huge gap between Colombia s human rights commitments on paper and what takes place in practice. Marked increase in investments in extractives Lack of access to effective home government accountability mechanisms Canadian companies, who lead in exploration and development interests in Colombia, are on the frontlines dealing with the issues at stake. In November 2011, Canadian companies comprised 65% of companies actively exploring for minerals and metals in Colombia, and over 75% of all companies exploring for oil and gas. These numbers will likely increase as the Canada-Colombia Free Trade Agreement becomes fully operational. Home governments have a spectrum of approaches to investor oversight from Canada s encouraging voluntary adoption of CSR instruments, to Norway s conditioning investments on ethical principles. Yet to date, no home countries have established grievance mechanisms that can lead to sanction and remedy. Ruggie concludes these criteria for effectiveness are required to close governance gaps that enable permissive environments in which companies can engage in wrongful acts with impunity.7 Voluntary CSR frameworks do not protect human rights on the ground Access to remedy abroad thus remains elusive. In Colombia s experience with the US Alien Torts Claims Statute, for example, a case still ongoing took 10 years to proceed to hearing and trial. Colombian interactions with non-judicial complaints mechanisms such as National Contact Points, established by membership in the Organization for Economic CoOperation and Development (OECD) shows that implementation of these processes outcomes is not Aside from compliance with national laws whose implementation suffers from systemic corruption and lacks monitoring and verification voluntary CSR is the key mechanism promoted for Canadian and other companies to respect human rights in Colombia. An in-depth review of core instruments5 through the lenses of the Protect, Respect and Remedy framework (of the UN Special Rapporteur on Business and Human Rights, John Ruggie) and of ethnic rights to self-determination concludes that voluntary CSR instruments are far from sufficient to uphold human rights, particularly in the context of armed conflict. More insidiously, they can mask human rights incidents, given their reliance on self-reporting and lack of third-party verification. Yet, as Ruggie s framework underscores, respecting human rights is not a voluntary responsibility for companies it is an obligation. Case study research in Cauca and Caldas on CSR implementation further reveals that most companies do not subscribe to international CSR instruments. Nor do most juniors6 with interests in these territories have formal CSR or ethnic peoples policies. The two larger companies that do subscribe to CSR policies do not report consistently; report to lower standards than usual for their company, without any external assurance; pick and choose the indicators to report on; ignore key human rights incidents; and do not report fully on exploration activities or joint ventures where they are not the operator. They have very different interests to ours; they are only interested in our gold and we are interested in the life of our community, in our territory, in our water, in our lands, in our culture, in life and everything this means. For this reason I propose that we prohibit the entrance of multinational companies... It s the only way to protect the little that we have. Without territory there is no life, and without life why have territory. -Embera Chamí Elder Rodolfo Stavenhagen (right), former UN Special Representative on Indigenous Peoples Rights, listens as Héctor Jaime Vinasco (left), former Chief Governor of the Resguardo Indígena Cañamomo Lomaprieta (Caldas), explains a memorial to Embera Chamí Indigenous leaders killed for speaking up for the rights of their people. guaranteed. Other home government mechanisms such as Canada s CSR Counsellor while not yet tested by Colombian complainants do not guarantee sanction or remedy.8 Confusion and lack of information at the community level Ethnic peoples in Colombia often have no idea that extractive projects are planned for their territories until prospectors arrive, flyovers take place, uninvited military or illegal armed groups show up, or leaders are threatened. On the ground the scenario is extremely confusing, as companies with similar names approach communities (AngloGold, Gran Colombia Gold, Colombia Goldfields ), mergers and acquisitions take place overnight, and information on the companies and their proposed activities is lacking. Even for those able to access the Internet, the little information disclosed is rarely available in Spanish. In this landscape, divide and conquer tactics are often used, which disrupt community unity and undermine traditional decisionmaking, leading to polarization and violence. Recommendations Holding to account extractive companies with interests in Colombia The evidence is clear voluntary CSR instruments are not the answer for holding companies accountable or ensuring protection of rights in Colombia. While CSR frameworks and their implementation should continue to be strengthened, there is an urgent need to tip the balance away from voluntary approaches towards others that de-escalate conflict and enable conditions guaranteeing human rights. So what must happen? The following are select recommendations, fleshed out in the joint project s analytical reports (see Box). Strengthen Colombian government accountability mechanisms The Colombian Government should: What we found Integrate recommendations from the Office of the UN High Commissioner on Human Rights in Colombia (OACNUDH) on mechanisms for consulting with and obtaining the consent of Ethnic Peoples. Once due process is established and ethnic peoples concerns regarding national processes addressed,9 engage in due process to review and adjust relevant legislative proposals and mechanisms.10 Ensure Colombia s human rights and environmental agencies have adequate resources to implement their mandates effectively, and monitor developments in the field, while addressing the systemic corruption plaguing the public service.11 Improve corporate practice Extractive proponents, companies and industry associations should: Explicitly recognize in CSR frameworks Indigenous and Tribal Peoples rights and the international instruments and jurisprudence protecting these, and the right to FPIC, requiring its implementation for all activities affecting ethnic peoples. Ensure ongoing and mandatory training for company personnel particularly geologists and others approaching communities on the applicable national and international human rights framework, and ensure that leading-edge practice for implementing ethnic rights is followed.12 Include the entire mining cycle in CSR reporting, particularly prospecting and exploration, and joint ventures; and independently verify self-reporting involving affected communities in process design. Establish grievance mechanisms within CSR frameworks (not only the project level) with powers to investigate, sanction companies neglecting their commitments, and offer remedy for affected communities. Involve affected groups in the design process. Strengthen home government accountability Beyond voluntary CSR Home governments should: Establish grievance mechanisms that can lead to sanction and remedy, including withdrawing public funding to companies found to have violated human rights;13 and address barriers to accessing home justice systems. Consider legislation concerning conflict minerals similar to that of the US Dodd-Frank Act, but go further to ensure ancestral, artisanal and small-scale miners rights are respected (even if they lack formal mining licenses).14 Ensure Export Credit Agencies (ECAs) require best practice human rights due diligence from clients. ECA human rights frameworks and contracts should refer explicitly to international ethnic rights instruments, and implementation of FPIC including disclosure of all relevant materials. Further, ECAs should establish independent monitoring and verification; grievance procedures; and withdraw

4 Intensification of violence against ethnic and other social leaders Despite the widely-promoted view that Colombia is now at peace, the evidence on the ground paints a very different picture. The country remains wracked by armed conflict, and human security remains a critical issue, particularly for human rights defenders. In fact, the intimidation of and violence against Colombia s Indigenous, Afro-Descendent and other social leaders has intensified. In the extractive sector, illegal armed groups are setting up their own mining operations to take advantage of high commodity prices to fuel their activities, and to launder money. Meanwhile, ancestral Indigenous and Afro-Descendent miners are caught in the crossfire, with extractive companies and illegal armed groups alike eyeing the resources in their territories. Afro-Descendent ancestral miners in La Toma, Suárez (Cauca), practising La Tonga, collective mining that has its roots in Africa. A joint project on ethnic rights and accountability To examine these issues, partnered with Proceso de Comunidades Negras, a national Black organization working in the municipalities of Buenos Aires and Suárez, Cauca; and the Resguardo Indígena Cañamomo Lomaprieta, an Embera Chamí Indigenous Reserve comprising 32 communities located in the municipalities of Riosucio and Supía, Caldas. Our 30-month ( ) participatory action research project was entitled Towards the Development of Standards and Mechanisms to Protect Ethnic Peoples Affected by Extractives: Implementing free, prior and informed consent and prior consultation in the context of the Colombian armed conflict. Its principal objective was to undertake primary research that: Strengthens project participants (through awareness-raising of rights and the extractive sector, and strengthening research, organizational and networking capacities); Highlights and clarifies their perspectives on and strategies for territorial control and development; and Sheds new light on the debate around human rights standards and mechanisms to hold to account companies operating in Colombia, with a focus on extractive activities affecting ethnic communities. Project activities were undertaken through intercultural, gendered and human rights lenses. Weak host government capacity to protect human rights Despite Colombia s progressive legislative framework and judgments by the Constitutional Court upholding ethnic rights, Colombia s regulatory agencies remain weak and dysfunctional. The Ministry of the Interior s Office of Prior Consultation Ancestral lacks staff to certify and monitor mining mining is an activities requiring prior consultation inalienable and consent processes. Draft regulations cultural on prior consultation have been heritage of the developed without consulting Colombia s Resguardo, ethnic peoples. Environmental impact as it has been assessment (EIA) procedures lack practised meaningful consideration of human uninterrupted rights, social, cultural and spiritual by our impacts, and field-level monitoring community does not take place. And Colombia s members ombudsperson s office Defensoría is since time under-resourced to respond effectively to immemorial, human rights complaints. Furthermore, even though a 2011 Constitutional Court decision invalidated the mining code for lack of appropriate consultation, it remains in place for a two-year window until a new code comes into effect; in the meantime, drafts have seemingly been negotiated behind closed doors, concessions issued under the invalidated code still stand, and the government continues to crack down on illegal mining, threatening ancestral miners and their livelihoods who overnight have been deemed illegal for lack of State-required paper work.4 in this way establishing a series of social, spiritual and economic relations with practices that are environmentally sustainable. -Resguardo Indígena Cañamomo Lomaprieta, Resolution 031, 2011 And while the Santos government has been working on legislative reforms dealing with national planning and restitution of lands for victims of the armed conflict among other critical issues, the associated consultation processes have been extremely problematic and overwhelm the capacities of ethnic groups to respond. Community perspectives on the effectiveness of CSR instruments in ensuring respect for human rights strongly emphasized their inadequacy for Colombia. Community analysis evinces a double discourse in which companies announce they are respecting community rights, yet on the ground a very different story unfolds. Nonetheless, knowledge of CSR commitments was deemed useful, for enabling communities to demand implementation, shine a spotlight on breaches, and develop alternative strategies for ensuring ethnic rights are respected. The result is a huge gap between Colombia s human rights commitments on paper and what takes place in practice. Marked increase in investments in extractives Lack of access to effective home government accountability mechanisms Canadian companies, who lead in exploration and development interests in Colombia, are on the frontlines dealing with the issues at stake. In November 2011, Canadian companies comprised 65% of companies actively exploring for minerals and metals in Colombia, and over 75% of all companies exploring for oil and gas. These numbers will likely increase as the Canada-Colombia Free Trade Agreement becomes fully operational. Home governments have a spectrum of approaches to investor oversight from Canada s encouraging voluntary adoption of CSR instruments, to Norway s conditioning investments on ethical principles. Yet to date, no home countries have established grievance mechanisms that can lead to sanction and remedy. Ruggie concludes these criteria for effectiveness are required to close governance gaps that enable permissive environments in which companies can engage in wrongful acts with impunity.7 Voluntary CSR frameworks do not protect human rights on the ground Access to remedy abroad thus remains elusive. In Colombia s experience with the US Alien Torts Claims Statute, for example, a case still ongoing took 10 years to proceed to hearing and trial. Colombian interactions with non-judicial complaints mechanisms such as National Contact Points, established by membership in the Organization for Economic CoOperation and Development (OECD) shows that implementation of these processes outcomes is not Aside from compliance with national laws whose implementation suffers from systemic corruption and lacks monitoring and verification voluntary CSR is the key mechanism promoted for Canadian and other companies to respect human rights in Colombia. An in-depth review of core instruments5 through the lenses of the Protect, Respect and Remedy framework (of the UN Special Rapporteur on Business and Human Rights, John Ruggie) and of ethnic rights to self-determination concludes that voluntary CSR instruments are far from sufficient to uphold human rights, particularly in the context of armed conflict. More insidiously, they can mask human rights incidents, given their reliance on self-reporting and lack of third-party verification. Yet, as Ruggie s framework underscores, respecting human rights is not a voluntary responsibility for companies it is an obligation. Case study research in Cauca and Caldas on CSR implementation further reveals that most companies do not subscribe to international CSR instruments. Nor do most juniors6 with interests in these territories have formal CSR or ethnic peoples policies. The two larger companies that do subscribe to CSR policies do not report consistently; report to lower standards than usual for their company, without any external assurance; pick and choose the indicators to report on; ignore key human rights incidents; and do not report fully on exploration activities or joint ventures where they are not the operator. They have very different interests to ours; they are only interested in our gold and we are interested in the life of our community, in our territory, in our water, in our lands, in our culture, in life and everything this means. For this reason I propose that we prohibit the entrance of multinational companies... It s the only way to protect the little that we have. Without territory there is no life, and without life why have territory. -Embera Chamí Elder Rodolfo Stavenhagen (right), former UN Special Representative on Indigenous Peoples Rights, listens as Héctor Jaime Vinasco (left), former Chief Governor of the Resguardo Indígena Cañamomo Lomaprieta (Caldas), explains a memorial to Embera Chamí Indigenous leaders killed for speaking up for the rights of their people. guaranteed. Other home government mechanisms such as Canada s CSR Counsellor while not yet tested by Colombian complainants do not guarantee sanction or remedy.8 Confusion and lack of information at the community level Ethnic peoples in Colombia often have no idea that extractive projects are planned for their territories until prospectors arrive, flyovers take place, uninvited military or illegal armed groups show up, or leaders are threatened. On the ground the scenario is extremely confusing, as companies with similar names approach communities (AngloGold, Gran Colombia Gold, Colombia Goldfields ), mergers and acquisitions take place overnight, and information on the companies and their proposed activities is lacking. Even for those able to access the Internet, the little information disclosed is rarely available in Spanish. In this landscape, divide and conquer tactics are often used, which disrupt community unity and undermine traditional decisionmaking, leading to polarization and violence. Recommendations Holding to account extractive companies with interests in Colombia The evidence is clear voluntary CSR instruments are not the answer for holding companies accountable or ensuring protection of rights in Colombia. While CSR frameworks and their implementation should continue to be strengthened, there is an urgent need to tip the balance away from voluntary approaches towards others that de-escalate conflict and enable conditions guaranteeing human rights. So what must happen? The following are select recommendations, fleshed out in the joint project s analytical reports (see Box). Strengthen Colombian government accountability mechanisms The Colombian Government should: What we found Integrate recommendations from the Office of the UN High Commissioner on Human Rights in Colombia (OACNUDH) on mechanisms for consulting with and obtaining the consent of Ethnic Peoples. Once due process is established and ethnic peoples concerns regarding national processes addressed,9 engage in due process to review and adjust relevant legislative proposals and mechanisms.10 Ensure Colombia s human rights and environmental agencies have adequate resources to implement their mandates effectively, and monitor developments in the field, while addressing the systemic corruption plaguing the public service.11 Improve corporate practice Extractive proponents, companies and industry associations should: Explicitly recognize in CSR frameworks Indigenous and Tribal Peoples rights and the international instruments and jurisprudence protecting these, and the right to FPIC, requiring its implementation for all activities affecting ethnic peoples. Ensure ongoing and mandatory training for company personnel particularly geologists and others approaching communities on the applicable national and international human rights framework, and ensure that leading-edge practice for implementing ethnic rights is followed.12 Include the entire mining cycle in CSR reporting, particularly prospecting and exploration, and joint ventures; and independently verify self-reporting involving affected communities in process design. Establish grievance mechanisms within CSR frameworks (not only the project level) with powers to investigate, sanction companies neglecting their commitments, and offer remedy for affected communities. Involve affected groups in the design process. Strengthen home government accountability Beyond voluntary CSR Home governments should: Establish grievance mechanisms that can lead to sanction and remedy, including withdrawing public funding to companies found to have violated human rights;13 and address barriers to accessing home justice systems. Consider legislation concerning conflict minerals similar to that of the US Dodd-Frank Act, but go further to ensure ancestral, artisanal and small-scale miners rights are respected (even if they lack formal mining licenses).14 Ensure Export Credit Agencies (ECAs) require best practice human rights due diligence from clients. ECA human rights frameworks and contracts should refer explicitly to international ethnic rights instruments, and implementation of FPIC including disclosure of all relevant materials. Further, ECAs should establish independent monitoring and verification; grievance procedures; and withdraw