Colombia’s Highest Court Takes the High Ground

Monti Aguirre
Tuesday, March 18, 2014

There was enough fish and plantains to feed the more than 500 fisherfolks gathered by the banks of the Magdalena River on a quiet Sunday in early March. Whole families who would be affected by El Quimbo Dam arrived in dozens of canoes to attend an urgent meeting called by ASOQUIMBO, a local NGO. There was big news to share: Colombia’s highest judicial authority had ordered dam builder Emgesa to use much higher standards in building the dam and addressing its social and environmental impacts. 

Colombia’s Constitutional Court has put dam builders on notice with a wide-ranging ruling that orders stricter standards for defining affected peoples, compensating for losses, and for building dams.  

The definition of “dam affected” has traditionally been controversial, difficult to scope and narrowly defined by companies and governments without input by communities themselves. Colombia’s Constitutional Court has now defined it based on whether there have been violations of food and housing security, human dignity of the plaintiffs, and other fundamental rights. 

The ruling comes in response to a Court review of seven cumulative cases of fishermen, construction workers and others who were not included in “dam-affected” populations for El Quimbo Dam, but who had sought restitution for losses they will suffer should it be built.  For one of the claimants, a fisherman named Rodríguez who has been living on the banks of the Magdalena River for 27 years, the dam seriously threatens his livelihood and provide for his family of five. Rodriguez also argued the dam will cause serious negative environmental impacts, and that he has not received compensation from Emgesa. 

Like Rodríguez, all plaintiffs claim dam construction caused a violation of their fundamental rights. In their claim against Emgesa – a subsidiary of Italian company Enel – all requested to be included in the census of affected peoples and to be compensated. Rodríguez also demanded the suspension of the construction of the dam. 

Megdalena River
Megdalena River
Photo from WikiCommons

Communities affected by El Quimbo Dam have been trying to stop its construction through public protests, letter writing campaigns and legal action. They fear the dam will not bring benefits, will hurt their livelihoods and dramatically transform their lives for the worse. The 400-megawatt dam is located on the upper Magdalena River Basin, 12 km upstream from the highly silted Betania Dam. The reservoir is expected to begin filling in October 2014, and producing electricity at the beginning of 2015. Despite the dam being half completed, affected communities have not been consulted or compensated. 

The area produces high quality coffee and fruit trees. Cattle ranching and fishing are also of great economic importance. About 150,000 Colombians live in towns that would be impacted by the construction of the dam. The San Agustin Archaeological Park, a UNESCO World Heritage Site, is located in the area of impact. The park features the largest complex of pre-Columbian megalithic funerary monuments, burial mounds, terraces, funerary structures, and the Fuente de Lavapatas site, a religious monument carved in the stone bed of a stream.

What the Court Did

The Court reviewed the record on the process leading up to construction of El Quimbo, and examined the principles of participation, equality, and criteria for defining compensation measures for groups of affected peoples. The Court decided that when developing a megaproject, the traditional inhabitants of an affected region are basically helpless against the operator or owner of the project. Only the right to exercise meaningful participation may prevent their rights from being violated.

The Court also reviewed jurisprudence produced on dam cases such as Urra I Dam, and took into account the declarations of international meetings of dam-affected peoples and their allies in Manibeli (India), Curitiba (Brazil), Rasi Salai (Thailand) and Temaca (Mexico). “These declarations, although of no normative value, are statements of principles and firsthand witness accounts coming from peoples directly affected by the implementation of large dam projects,” it stated.

Citing principles on forced eviction, displacement and consultation contained in the Committee on Economic, Social and Cultural Rights of the United Nations, the court stated: “Before you carry out any evictions, and particularly those involving large groups of people, State Parties should ensure that alternatives are explored in consultation with stakeholders.” 

A lengthy account of how and why the World Commission on Dams (WCD) was created and a description of the consensus reached in its report were also included in the ruling. Notably, besides issues of lack of consultation, mitigation and problems generated by forced resettlement, the Court included sections on sustainable energy planning, including: “The priority for a sustainable and equitable world energy sector is that all societies increase efficiency and renewable energy sources” and “Options highlighted by the Commission include biomass, wind energy, solar, geothermal, ocean waves and cogeneration.” 

The Court noted the lack of compliance with the social duty of the State to protect the nation’s natural resources, and recognized the tension between different views on what constitutes development. Regarding the decision-making framework for megaprojects, the ruling noted that participation on environmental decisions is a right recognized by the Constitution. "Everyone has the right to enjoy a healthy environment. The law will ensure community participation in decisions that may affect it.” It stated that an abstract priority to public interest and the majority’s view of "development" or "progress" associated with building infrastructure cannot be granted when the fundamental rights of people are violated. 

The El Quimbo project also faces legal cases related to technical and environmental irregularities in the licensing process, which were not the focus of this Court. An estimated 10,500 people who will be affected by the project (Emgesa only recognized 1,500) are working to stop its construction. An action seeking to nullify the environmental license will be filed shortly.

For now, this remains one of the most progressive rulings to protect the rights of dam-affected people and ultimately of rivers and nature. It will probably create a very important precedent for future cases relative to construction of megaprojects in Colombia, and possibly regionally.