New orders regarding the “black line” of Sierra Nevada de Santa Marta

The Constitutional Court announced the highlights of its decision regarding the constitutional actions (tutela) filed by the governors of the resguardos located within the so-called black line in the Sierra Nevada of Santa Marta, by means of which the claimants requested the protection of their communities’ fundament right to participate in the matters that may affect them.

The black line was recognized in 1973 as an ancestral territory inhabited by Kogui, Arhuaco, Wiwa and Kankuamo indigenous communities of the Sierra Nevada of Santa Marta. In 2014, the Constitutional Court defined the black line as a zone of special protection due to its value for those four indigenous groups and, thus, ordered that such communities should be consulted whenever the exercise of their rights may be affected by the performance of a project within the area of the black line.

As a result of the revision of the latest tutela actions, the Constitutional Court ordered the following:

1. Within the next 3 months, the national government and the regional environmental authorities shall establish the Follow-up and Coordination Roundtable, with the active participation of the indigenous communities, which will be in charge of: (i) completing the Protocol for ensuring the effective participation of the communities; (ii) then, conducting a study of all the requests and titles existing within the black line area, in order to define which of them require a prior consultation with the indigenous communities; and (iii) subsequently, concluding the applicable participation procedures.
2. Within the next 12 months, the national government shall complete the process for adopting the in-detail cartography of the black line.
3. The Ministries of Interior, Environment and Development, Mines and Energy and Transportation, among other entities, shall design and implement a joint platform in which they publish the type of requests, procedures and ongoing projects in Colombia, for each of the relevant sectors.
4. The President’ Office and the National Congress shall adopt statutory measures aimed at: (i) regulating the issuance of certificates of presence and affectation of the ethnic communities, and (ii) adopting relevant measures for ensuring that the entity in charge of such certificates has legal capacity, as well as administrative and financial autonomy and independence.
5. The Ministry of Interior shall translate the contents of the decision into the languages of all four communities of Sierra Nevada of Santa Marta.

Likewise, additional “substantial and adjective criteria” for determining the level of participation required for each degree of affectation to the indigenous communities have been announced by the Constitutional Court; such criteria will be divulged when the Court’s full decision is made available. According to the above, not all the projects conducted within the black line will be subject to prior consultation.

Two of the nine judges voted against the majority’s decision, arguing that such verdict goes against the judicial precedent on prior consultation and lessens the black line to an “empty shell”.

Author: Natalia Soto I [email protected] I Recursos Naturales