2012-Holding-exracti.. - The North

Transcription

About the author:Viviane Weitzner is a specialist in community-based natural resources management and ethnic rights. For over
10 years she led The North-South Institute’s Programme on Indigenous and Afro-Descendent Perspectives to Decision-Making
about Extractive and Other Projects affecting Ancestral Lands. This Programme was undertaken jointly with Indigenous and AfroDescendent organizations and their supporters, and involved on the-ground research in Colombia, Guyana, Suriname, Peru and
Canada. Viviane currently lives and works in Mexico City.
This document is one output of the project“Towards the development of standards and mechanisms to protect ethnic peoples
affected by extractives: Implementing free, prior and informed consultation and consent in the context of an internal armed conflict.”
This is a joint project of the Black Communities’ Process in Colombia, the Cañamomo Lomaprieta Indigenous Resguardo, and The
North-South Institute. A stand-alone executive summary of this document is also available at www.nsi-ins.ca. Please send comments
and/or corrections to: [email protected]; [email protected].
This publication has been made possible thanks to the support of the Ford Foundation, the International Development Research
Centre (IDRC) of Canada, the United States Agency for International Development (USAID), the Norwegian Ministry of Foreign Affairs,
and Rights & Democracy, Canada. The opinions expressed in this publication do not represent those of the aforementioned agencies
or cooperation organizations.
The North-South Institute is dedicated to eradicating global poverty and enhancing social justice through research that promotes
international cooperation, democratic governance, and conflict prevention. It is Canada’s first independent, non-governmental
and non-partisan research institute focused on international development. The contents of this report represent the views and
the findings of the authors alone and not necessarily those of The North-South Institute’s directors, sponsors, supporters or those
consulted during its preparation.
July 2012
Holding Extractive Companies to Account in Colombia:
An evaluation of CSR instruments through the lens of Indigenous and Afro-Descendent Rights
© The North-South Institute, Proceso de Comunidades Negras, Resguardo Indígena Cañamomo Lomaprieta
Cover photo: 2.0 Generic (Creative Commons BY 2.0)
Back photo: Felipe Jaramillo
On October 27th, 2009, Colombia’s Mobile Anti-Disturbances Squadron (ESMAD) stormed the Resguardo Indígena Cañamomo
Lomaprieta, under the pretext of taking with them two policemen Resguardo authorities had retained, for entering the community
unidentified, firing weapons into the middle of a soccer match, to arrest a community member — without a warrant. An 84 yearold elder was shot. The community had agreed to voluntarily hand over the policemen to Colombia’s human rights agencies. This
agreement was dishonoured when ESMAD entered their territory and tear-gassed the community the very next day. 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. Neither the policemen nor ESMAD did so.
Design: Meaghen Simms
Resguardo Indígena Cañamomo Lomaprieta (RICL)
Carrera 11 No.11-04 Riosucio-Caldas
Colombia
Web: www.resguardolomaprieta.org
Email: [email protected]
Tel: 859 2729 Fax: 859 1747
Proceso de Comunidades Negras (PCN)
Calle 23 No. 5-85 Oficina 307
Bogota, Colombia Web: www.renacientes.org
Email: [email protected] Tel: 2821375
The North-South Institute
55 Murray Street, Suite 500
Ottawa, Ontario
Canada
K1N 5M3
Tel.: (613) 241-3535
Fax.: (613) 241-7435
E-mail: [email protected], [email protected]
Web: www.nsi-ins.ca
Acknowledgments
This paper was the result of the efforts of many people. It would not have been possible without:
In Colombia:
• The support and insights from Gladys Jimeno and national project team members (Walter Sanchez,
Eliana Martinez) and their work to identify interviewees, coordinate interview schedules, and
participate in many of these. The interview guides were developed jointly with Gladys Jimeno.
• The invaluable work undertaken at the community level to gather information, and elicit community
perspectives on CSR instruments and effective mechanisms for holding companies to account.
In Caldas, Hector Jaime Vinasco led the community workshops and information gathering,
with coordination and documentation by Federico Herrera. In Cauca, Plutarco Sandoval led the
community workshops; Plutarco also participated in several national level interviews.
• The many people who participated in the interviews, informal discussions and community
workshops; your views are invaluable, and will contribute to strengthening accountability in
Colombia.
In Canada:
• Annetta Markussen-Brown’s superlative data-gathering on concessions and companies affecting
Caldas and Cauca.
• Fiona Meyer-Cook’s information-gathering efforts on CSR instruments and Indigenous and AfroDescendent perspectives in the international literature, as well as on home government approaches.
Farrah Fulton also provided valuable support as an intern of NSI
• Mehreen Khalfan’s synthesis of the international literature on no-go zones.
• University of Toronto law students who formed a North-South Institute working group, helped gather
important information on country approaches while also updating company profiles.
• Meaghen Simms, who helped coordinate the work of Fiona Meyer-Cook, and guided the work of the
University of Toronto law students.
I would like to specially thank Robert Goodland and Cristina Echevarria for lending their expertise and
knowledge in peer-reviewing this document; and Rodney Schmidt for undertaking NSI’s internal review.
Gladys Jimeno reviewed the document on behalf of the project team.
All the various funders who actively supported this work, including Felipe Agüero from the Ford Foundation;
Loredana Marchetti and Ann Weston from the International Development Research Centre of Canada;
Jaime Prieto of the United States Agency for International Development (USAID); Yngvild Berggrav from the
Norwegian Ministry of Foreign Affairs; and Caroline Brodeur and Carol Samdup from Rights & Democracy.
Meaghen Simms brought this document to life with her layout and design skills; Mehreen Khalfan edited the
manuscript; and translation was undertaken by Miriam Cotes (entire manuscript) and Nelly Jitsuya (Executive
Summary).
As always, this work took considerable time away from family life. I am ever grateful to my beautiful and
inspiring children Saskia and Alejo; and to David, for all your support and motivation.
—Viviane Weitzner, July 2012, Mexico City
Table of Contents
A stand-alone executive summary of this document is also available at www.nsi-ins.ca
Part 1: Introduction..................................................................................................................................................... 1
1.1 At the Crossroads of Human Rights and Extractives....................................................................................................3
1.2 Paper Outline...............................................................................................................................................................4
Part 2: Extractives and Ethnic Rights in Colombia – An Overview................................................................................. 5
2.1 Introduction.................................................................................................................................................................7
2.2 Investment in Colombia – A snapshot.........................................................................................................................7
2.2.1 What is Colombia getting from extractives? Reform in the royalties system..................................................8
2.2.2 Canadian extractive investment in Colombia................................................................................................12
2.2.3 Looking to the future.....................................................................................................................................13
2.3 Extractives in Colombia: A risky business.................................................................................................................14
2.3.1 Colombia’s Ethnic Peoples —
Continued and intensified human rights violations despite progressive rights recognition.....................................14
2.3.2 Political and legal gains for Colombia’s Ethnic Peoples..................................................................................24
2.4 Conclusion.................................................................................................................................................................26
Part 3: CSR Instruments, Responsibilities and Ethnic Rights – A Critical Review.......................................................... 27
3.1 The international debate...........................................................................................................................................29
3.2 Methodological approach and criteria for evaluation: In brief.................................................................................30
3.2.1 Methodological approach.............................................................................................................................30
3.2.2 Criteria for evaluation....................................................................................................................................30
3.3 Analysis and discussion of findings............................................................................................................................32
3.3.1 Criterion 1: Respect for human rights...........................................................................................................32
3.3.2 Criterion 2: Sanction and remedy..................................................................................................................40
3.3.3 Criterion 3: Community participation and self-determination......................................................................43
3.4 Home government duties to protect human rights...................................................................................................45
3.4.1 Current government approaches..................................................................................................................46
3.5 Armed conflict, state responsibilities and no-go zones.............................................................................................50
3.5.1 Appropriate assessmenttTools for examining impacts on Ethnic Communities in Colombia
– Rights & Democracy’s Human Rights Impact Assessment Tool and CBD’s Akwé:Kon Guidelines..........................52
3.5.2 No-go zones due to armed conflict...............................................................................................................52
3.5.3 International accountability measures..........................................................................................................54
3.6 Conclusion: Closing governance gaps, getting smarter faster...................................................................................55
Part 4: Perspectives on CSR instruments and Protecting Human Rights in Colombia................................................... 59
4.1 Introduction – A spectrum of knowledge..................................................................................................................61
4.2 The Voluntary Principles —“A salute to the flag”?....................................................................................................62
4.2.1 Governing the VPs — Perspectives on the Comitéminero-energético...........................................................64
4.2.2 Conclusions on the VPs —“Better than nothing”..........................................................................................65
4.3 Other CSR instruments..............................................................................................................................................66
4.4 Voluntary CSR instruments – Tools for protecting human rights in Colombia?.........................................................68
4.5 Strengthening government accountability —“The Colombian government has responsibility too”.........................70
4.6 The way forward........................................................................................................................................................73
4.7 Home government accountability.............................................................................................................................75
4.8 Other key issues: CSR and junior companies.............................................................................................................77
4.9 Conclusions...............................................................................................................................................................78
Part 5: Experiences from the Field — Introduction..................................................................................................... 79
Experiences from the Field – Caldas Case Study......................................................................................................... 82
5.1 The Resguardo Indígena Cañamomo Lomaprieta, Caldas.........................................................................................83
5.1.1 History...........................................................................................................................................................83
5.1.2 Lands and territories.....................................................................................................................................83
5.1.3 Self-governance.............................................................................................................................................84
5.1.4 Militarization and the human rights context.................................................................................................85
5.1.5 Self-regulated mining....................................................................................................................................85
5.2 Companies with interests in the Resguardo or whose activities affect Resguardo Territory....................................86
5.2.1 Antioquia Gold Inc.........................................................................................................................................87
Table of Contents
5.2.2 Batero Gold Corp...........................................................................................................................................89
5.2.3 AngloGold Ashanti.........................................................................................................................................92
5.2.4 Gran Colombia Gold Corp. (formerly Medoro Resources Ltd.)....................................................................104
Experiences from the Field – Cauca Case Study........................................................................................................ 112
5.3 Afro-Descendent communities in northern Cauca, Buenos Aires and Suárez.........................................................113
5.3.1 History.........................................................................................................................................................113
5.3.2 Lands and territories...................................................................................................................................113
5.3.3 Self-governance...........................................................................................................................................114
5.3.4 Militarization and the human rights context...............................................................................................115
5.3.5 Ancestral mining and mining development.................................................................................................115
5.3.6 Hydro-electric power projects and other land pressures............................................................................116
5.4 Companies affecting Buenos Aires and Suarez........................................................................................................117
5.4.1 Cosigo Resources Ltd...................................................................................................................................117
5.4.2 AngloGold Ashanti.......................................................................................................................................122
5.4.3 EPSA: Salvajina Dam....................................................................................................................................122
Experiences from the Field — Conclusions............................................................................................................... 127
5.5 Usefulness of CSR policies – Community perspectives............................................................................................129
5.5.1 Buenos Aires and Suárez, Cauca..................................................................................................................129
5.5.2 Resguardo Indígena Cañamomo Lomaprieta, Caldas..................................................................................129
5.6 Synthesis of key findings — Analysis of company CSR materials ............................................................................132
Part 6: Conclusions and Recommendations............................................................................................................. 135
6.1. The reality on the ground........................................................................................................................................137
6.2 Holding to account extractive companies with interests in Colombia....................................................................140
6.2.1 Recommendations.......................................................................................................................................140
6.3 Rebalancing the mix: Getting smarter, faster..........................................................................................................147
Appendix: Interview Guide and Consent Form.................................................................................................................149
References........................................................................................................................................................................ 151
Boxes
Box 1: Mining Concessions Issued up until 2009................................................................................................................9
Box 2: Mining Concessions Requested up until May 2009................................................................................................10
Box 3: Projection of mining and hydrocarbons in GDP versus budget allocations for the environment..........................11
Box 4: Companies Listed on the Toronto Stock Exchange Working in Colombia, as at November 28, 2011....................12
Box 5: Who owns the subsoil? Who has final decision-making power? The heart of the conflict....................................16
Box 6: Recommendations from the Office of the UN High Commissioner on Human Rights in Colombia
concerning Key Considerations for Implementing Prior Consultation and Consent in Colombia..........................19
Box 7: Some statistics on human rights violations in Colombia........................................................................................22
Box 8: Early Warning System, Map of Indigenous Populations at Risk..............................................................................23
Box 9a: IFC investments in Latin America and the Caribbean.............................................................................................37
Box 9b: IFC investments in Latin America and the Caribbean.............................................................................................38
Box 10: IFC Regional Investments in Extractive Industries in 2011.....................................................................................39
Box 11: National Contact Points – Their Use in Colombia...................................................................................................41
Box 12: Commission for the Elimination of Racial Discrimination (CERD) recommends
Canada take legislative measures to hold its companies to account.....................................................................45
Box 13: Colombia and the US Alien Torts Claims Act – Rodriguez v. Drummond Company................................................49
Box 14: Recommendations for Companiesfrom the Office of the UN High Commissioner on Human Rights in Colombia...53
Box 15: No-Go Zones for Mining.........................................................................................................................................58
Box 16: PDAC’s E3 Plus Standards and Ethnic Rights..........................................................................................................63
Box 17: Harnessing Consumer Power: An effective tool for holding companies to account in Colombia..........................71
Box 18: Interviewee recommendations for strengthening Colombia’s current human rights framework..........................74
Box 19: Select AGA Commitments as a Member of the ICMM...........................................................................................96
Box 20: Excerpts from an interview with Hector Jaime Vinasco.......................................................................................102
Box 21: La Toma wins precedent-setting Constitutional Court Decision...........................................................................116
Box 22: Community perspectives on CSR..........................................................................................................................125
Box 23: Companies with interests in Cauca and/or Caldas and CSR commitments..........................................................133
Acronyms
AGA
ASM
ATS
AUC
Bacrim
CAD
CASM
CEO
CETEC
CSR
COP
CRIDEC
CSO
E3
ECAs
EDC
EITI
EPs
EPSA ESIA
FARC
FDI
FTA
FPIC
GRI
ICMM
IFC
ILO
ISO
JSE
NGO
NSI
OACNUDH-Colombia
OECD
ONIC
PCN
PDAC
RICL
SA
UNESCO
UNDRIP
UNGC
USD
VPs
AngloGold Ashanti
Artisanal and small-scale Mining
Alien Tort Statute (also known as the Alien Tort Claims Act)
The United Self-Defense Forces of Colombia
Bandas Criminales (Illegal armed or criminal groups)
Canadian Dollars
Communities and Small-Scale Mining
Chief Executive Officer
Centro de Tecnologia Especializado de Colombia (Centre of Specialized Technology of Colombia)
Corporate Social Responsibility
Colombian Pesos
Consejo Regional Indígena de Caldas (Indigenous Regional Council of Caldas)
Civil Society Organization
Environmental Excellence in Exploration
Export Credit Agencies
Export Development Canada
Extractive Industries Transparency Initiative
Equator Principles
Empresa de Energía del Pacífico, S.A.
Environmental and Social Impact Assessment
Fuerzas Revolucionarias de Colombia
Foreign Direct Investment
Free Trade Agreement
Free, Prior and Informed Consent
Global Reporting Initiative
International Council on Mining and Metals
International Financial Corporation
International Labour Organization
International Standards Organization
Johannesburg Stock Exchange
Non-Governmental Organization
The North-South Institute
Office of the United Nations High Commissioner on Human Rights in Colombia
Organisation for Economic Co-operation and Development (OECD)
Organización Nacional Indígena de Colombia (National Indigenous Organization of Colombia)
Proceso de Comunidades Negras (Process of Black Communities)
Prospectors & Developers Association of Canada
Resguardo Indígena Cañamomo Lomaprieta
Social Accountability (standard)
United Nations Educational, Scientific and Cultural Organization
United Nations Declaration on the Rights of Indigenous Peoples
United Nations Global Compact
US Dollars
Voluntary Principles on Security and Human Rights
An evaluation of CSR instruments through the lens of Indigenous and Afro-Descendent Rights1
“Despite what companies understand as CSR,
for the communities it’s important to know
these policies in order to evaluate them and
to follow up on voluntary commitments. Even
though in terms of human rights guarantees, nothing can be voluntary
— it’s an obligation.”
Afro-Colombian woman leader, Cauca
“These companies completely ignore
the dynamics of the internal armed conflict
and its impact on our communities,
[and] how their behavior intervenes
directly in the lives of the communities and
strengthens the development
of the war and its actors.”
Community leader, RICL, Caldas
“These [CSR] instruments
become very useful tools
for commercial debate
— but not so much
with regards to the debate
about human rights.”
Foreign government
representative in Colombia
Section front photos:
Top: Rodolfo Stavenhagen (left) walks down the streets of
Marmato, Caldas with a Misak Indigenous leader
Middle: Memorial to Embera Chami leaders killed for
speaking up for the rights of their people, Resguardo Indígena
Cañamomo Lomaprieta, Caldas
Bottom: Respect, a central value lived by in the Resguardo
Indígena Cañamomo Lomaprieta, Caldas
2
Allto
photos
by Viviane
Weitzner
Holding Extractive Companies
Account
in Colombia
Part 1: Introduction
1.1 At the Crossroads of Human Rights and Extractives
Colombia is at a crossroads when it comes to human rights and extractives. It boasts one of the most
progressive human rights frameworks in the world, with ethnic rights1 well protected in law, and increasingly
making headlines with the cutting-edge judgments of its Constitutional Court. And at the same time, the
Santos government is actively promoting investment in extractives, and mining in particular, as the ‘engine
of growth’ for the country. With the conclusion of free trade agreements with the United States, Canada
and several other important partners, and the widespread perception that Colombia is largely post-conflict,
investments in potential extractive projects are set to increase dramatically.
Standing squarely in the middle of this crossroads are Colombia’s ethnic peoples, whose ancestral territories
contain a large proportion of the resources of interest to companies. Indeed, Colombia’s Indigenous Peoples
possess officially-recognized title to some 30% of the country’s land mass, with Afro-Descendent peoples
holding collective title to some 6000 hectares. Official recognition of the ancestral lands of both Indigenous
and Afro-Descendent Peoples is ongoing, and the total amounts of collective lands recognized are going to
expand further.
But is the current Colombian human rights framework, together with the Corporate Social Responsibility
(CSR) tools promoted for companies, strong enough to prevent the egregious human rights violations that
often go hand-in-hand with investments in countries where there is armed conflict? And what about the
frameworks of home governments: will these help ensure that companies active in Colombia do not commit
or profit from human rights violations?
This study takes preliminary steps towards answering these questions, with a focus on ethnic rights. It
assesses CSR tools that companies and foreign governments are promoting to ensure good corporate
behavior in Colombia, to determine to what extent these tools respect human rights – and ethnic rights
in particular – in theory and in practice. It provides grounded recommendations to strengthen the current
approach and framework. This study is different from others in that it examines the issues at a variety of
levels and through diverse perspectives, including those from affected Indigenous and Afro-Descendent
communities, and from company and government representatives.
This study is one activity of a 26-month comprehensive participatory action research project undertaken
jointly by The North-South Institute (Canada); Proceso de Comunidades Negras (Process of Black
Communities), a national organization of black communities in Colombia; and Resguardo Indígena
Cañamomo Lomaprieta (Cañamomo Lomaprieta Indigenous Reserve), representing 32 Embera Chamí
communities in Caldas. The project is 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.”
The initial idea for this study came from The North-South Institute (NSI) given the large number of Canadian
extractive companies with interests in Colombia, the ongoing debate in Canada on how to strengthen the
current national framework for holding Canadian companies to account for their activities overseas, and
NSI’s perceived need for grounded research that could illuminate the issues at stake through perspectives
and experience from the field. The Colombian partners embraced this research idea as necessary – not only
1
Throughout this paper, 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).
3
to shed light on national policy frameworks at home and abroad, but also to inform policies, regulations and
strategies at the community level. The research methodologies were diverse: insights were drawn from semistructured interviews, national workshops and community workshops, and literature reviews, as highlighted
further in each section of the analysis.
1.2 Paper Outline
The paper is organized as follows:
• Part 2 provides a brief overview of the extractive sector and ethnic Peoples and rights in Colombia.
It provides a snapshot of the current policy and regulatory framework, and presents the key players
interested in natural resources extraction – particularly mining – in Colombia.
• Part 3 synthesizes the findings of a comparative analysis of key instruments proposed to hold
extractive companies operating in Colombia to account, with a focus on Indigenous and AfroDescendent rights and perspectives from the international literature. These instruments include
the Voluntary Principles on Security and Human Rights, the International Financial Corporations’
Performance Standards, the UN Global Compact, the Global Reporting Initiative and the OECD
Guidelines for Multinational Enterprises. The analysis uses John Ruggie’s “Protect, respect and
remedy” framework as a basis for evaluation, with adaptations to examine the extent to which the
instruments consider ethnic rights. This section also briefly compares and contrasts the approaches
of several home states (e.g., Canada, Norway, USA, EU) in holding their companies to account
overseas, highlighting their approaches to Colombia and conflict zones.
• Part 4 moves on from a consideration of the instruments, to examining perspectives on whether
these tools are effective in Colombia’s particular context. This analysis highlights the outcomes of
semi-structured interviews with diverse actors.
• Part 5 undertakes a fine-grained analysis of two case studies: the ancestral territories of AfroDescendent communities in Northern Cauca, and Embera Chamí Indigenous communities in the
Resguardo Indígena Cañamomo Lomaprieta in Caldas, to understand how these instruments are
being implemented in practice in Colombia, and to identify implementation gaps, specifically with
regards to ethnic rights. This section maps the various companies with interests in these areas,
their CSR commitments, and examines their activities in relation to these commitments. This
analysis draws on interviews with representatives of the companies, and information gathered from
diverse sources including company websites. It is grounded in workshop discussions and analysis of
perspectives from the community level.
• Part 6 provides conclusions and concrete recommendations on how to strengthen the current
approach and framework promoted for Colombia, in order to protect ethnic rights and hold
companies to account.
4
Holding Extractive Companies to Account in Colombia “The precarious human rights situation of
Colombia’s indigenous peoples reflects
the gap between progressive domestic legislation
and the ineffectiveness of the institutions
responsible for protecting these peoples,
against a background of internal armed conflict
involving numerous warring parties
whose actions directly affect
indigenous peoples’ chances of survival.”
Rodolfo Stavenhagen
“I have a very strong stance against mining
in Colombia. I believe that large-scale
mining operations in Colombia are
very negative because there are no
legal or social conditions for it.
This does not mean that I am anti-mining.
This is simply not the country
I want for my children.”
Manuel Rodríguez Becerra,
Former Minister of Environment
Speakers at the national workshop on free, prior and
informed consent and extractives July 13-15, 2010
in Bogota, Colombia, organized by Proceso de Comunidades
Negras, the Resguardo Indígena Cañamomo Lomaprieta,
Caldas, and The North-South Institute. From top to bottom:
Javier Hernandez, UNHCHR Representative;
Horacio Guerrero, Defensoría del Pueblo;
Rodolfo Stavenhagen, former UN Special Rapporteur
6
Photos by Viviane Weitzner
Holding Extractive Companies to Account in Colombia Part 2:
Extractives and Ethnic Rights in Colombia – An Overview
2.1 Introduction
This overview presents the context of extractive investments and ethnic rights in Colombia. Following a brief
description of current investment trends and players in the country’s extractive sector, the chapter focuses on
ethnic peoples and their territories. It highlights the current Colombian human rights framework for protecting
ethnic rights, and contrasts this with what is taking place in the field, focusing on violence against ethnic
peoples related to the internal armed conflict and investments in extractives.
2.2 Investment in Colombia – A Snapshot
Overall Foreign Direct Investment (FDI) in Colombia has increased significantly in recent years, more than
doubling in 2011 to $14.4 billion, up from $6.8 billion in 2010.2 But it is the country’s natural resources in
particular that are drawing growing global attention and plans for foreign investment.
Since 1997, when FDI in mining, oil and gas represented only 10% overall, investment in this sector has seen
a sharp upwards trend. In 2001, investments rose to 40%; there was a big hike between 2008 and 2009, with
FDI in extractives growing from 50% to some 77%. In 2010, overall FDI in extractives slowed slightly, reaching
approximately 65%.3
Colombia’s political administrations have issued mining concessions at different rates. In 1990, 467 thousand
hectares of concessions were granted. From 1990-1994, under the Gaviria administration, another 187 thousand
hectares were issued, for a total of 654 thousand. Then, under the Samper administration from 1994-1998,
another 172 thousand hectares were issued, for a total of 826 thousand. From 1998-2002, under the Pastrana
administration, the issuing of another 221 thousand hectares brought the total to 1047 thousand. And from
2002-2009, under the Uribe administration, an additional 3724 thousand hectares were issued – almost
quadrupling the area issued by previous administrations – for a total of 4771 thousand.4Then, still under Uribe,
in just four months from July to October 2009, another 3673 thousand hectares were allocated, bringing the total
up to 8444 thousand hectares. Some critics, such as economist Guillermo Rudas, describe this time period as
a ‘feria de concesiones’– a concessions fair. Under Uribe, there was not only a marked increase in concessions,
but also in those issued in the ecologically sensitive areas known as paramos (high altitude moorlands), with
concessions overlapping some 6.3% of these areas (Rudas Lleras 2011).5 Mining concessions now cover over
8,444,000 hectares of the country, translating to some 5.13% percent of its land mass;6 furthermore, over half
of Colombia’s land mass is currently under request (see maps in Boxes 1 and 2).7
2
3
4
5
6
7
“In percentage terms, Colombia’s growth in FDI outstripped that of all other countries in South America in 2011, according to the latest data
from the United Nations Conference on Trade and Development. Investments in Chile grew to $17.6 billion from $15.1 billion, while those in
Peru rose to $7.9 billion from $7.3 billion” (Gordon 2012).
DNO (2011) Bases del Plan Nacional de Desarrollo 2010-2014, cited in Rudas Lleras (2011).
All figures from Instituto Colombiano de Geologia y Mineria (INGEOMINAS), with a cut-off of 7 May, 2009. Cited in Rudas Lleras (2011).
According to journalist and professor Lorenzo Morales, the ‘paramos’ are “fragile sponge-like moorlands [that] represent two percent of the
country, but provide drinking water for 70 percent of all Colombians” (Morales 2011), including the major cities of Bogota, Medellin and Cali.
Paramos are tropical, high-altitude, mountain wet grasslands, above the tree-line, but below the snow-line, between c.3000 and c.5000 m
elevation, sometimes called alpine tundra (Goodland, Personal Communication, 2012).
Analysis provided by Ingeominas, Contraloría General de la República (2011:130-132) notes that mining concessions issued jumped from 105
in 2000 to a total of 1144 in 2010, covering some 5,856,878 hectares, or 5.13% of the country. These figures do not include concessions issued
prior to 2000. This comprises a 1089.5% jump in ten years. In the same timeframe, the total number of concessions requested comprises
67,482,895hectares, or 59% of the country’s land mass. The increase following 2004 is due to laws passed in 2003 (Law 863) and in 2006 (Law
1111), providing for a 30% and then a 40% deduction in taxes for investments in fixed assets and exploitation of mines. The Departments of
Boyacá and Antioquia led the others in terms of mining concessions issued in 2010.
Rudas Lleras (2011).
7
This number will soon sharply increase once more; the Santos government announced in February 2012
that it would set aside another 3 million hectares for mining development, which it will start issuing in
2013.8 In the meantime, however, it has declared a moratorium on issuing new mining permits until August
2012, while it examines the potential risks of opening up parts of the Amazon for concessions, and its new
permitting agency, ANLA, becomes fully functional (discussed further below).9
While the overall trends are clear, it is important to highlight that the current systems for tracking the issuing
of concessions in state agencies show wildly disparate figures, prompting the national comptroller’s office
(contraloria) to state:
“[W]e can deduce that there are serious information problems around mine titling … it is necessary
to point out the difficulty this creates for mining authorities to be accountable; at various times the
comptroller’s office asked for such accountability, and the attitude was at best unpleasant in this
respect. The former is explainable possibly for the evident disorder, chaos and lack of rigour in the
figures, that was evident not only among the different entities, but within them, particularly those
responsible for the mining cadaster and information over mining titles in the country. This situation
… is an obstacle for the various elements that need to be considered in territorial planning, namely
social, environmental and even economic aspects.”10
2.2.1 What is Colombia getting from Extractives?
Reform in the royalties system
As Santos’ ‘mining engine for growth’ (locomotora minera) steams ahead, deep questions are being asked
about what mining and extractives actually bring to the Colombian economy.
A 2011 report from the Comptroller General’s Office, a fiscal watchdog, reviewed 10 mining contracts. It
concluded that multinational companies such as Drummond and Cerramatoso owed the Colombian state a
total of $224 million dollars in overdue taxes and royalties.11 Royalties vary according to the mineral extracted,
with 12% for the extraction of salt (for example, the Wayuu Indigenous People of the Guajira pay 12% for
extracting salt, even though they have not managed to have their sole ownership recognized for this activity),
while 4% is charged for Gold (for example, Greystar Resources of Canada — now Eco Oro — with prospects of
large-scale gold mining, paid only 4% in royalties), according to one mining analyst and former congressman.12
Extractive companies have historically benefited from tax subsidies. The economist Guillermo Rudas Lleras
notes the existence of tax loopholes that facilitate exonerations or tributary exemptions. Some 75% of
royalties that come from mining are ‘compensated’, affecting the total amount received by the country. In
2009, for example, the country received $1.9 billion COP in royalties, and gave back in exemptions $1.4 billion
COP. A key challenge is to ensure that the government makes these exonerations transparent and public, as
regards what they are costing the Colombian people in real terms.13 Colombia is currently applying to become
a member of the Extractive Industries Transparency Initiative (EITI), which would help shine a light on such
payments.14
8
9
10
11
12
13
14
8
In 2013, a new system of competitive bidding will see some 20% of this area issued to miners, according to an announcement made in Toronto
by Colombia’s Mines Minister Cardenas, at the March 2012 annual general meeting of the Prospector and Developer’s Association of Canada
(PDAC) (Gordon 2012).
Reuters (2012).
Contraloría General de la Nación (2011: 145).
Manmaker (2011).
Manmaker (2011).
While Colombia’s subscribing to EITI is a step in the right direction, critics are calling for the EITI to move beyond tracking payments to
governments, and towards tracking government expenditure, disaggregated reporting, and to achieve transparency on contracts and licences
(Cristina Echevarria, Personal Communication, 2012).
Holding Extractive Companies to Account in Colombia Box 1: Mining Concessions Issued up until 2009
8,444 thousand hectares
Source: Ingeominas in Rudas Lleras (2011)
9
Box 2: Mining Concessions Requested up until May 2009
– Over 50% of Colombia’s land mass
Source: Ingeominas cited in Rudas Lleras (2011)
10
Holding Extractive Companies to Account in Colombia Aside from what Colombia gets in real terms from mining investment, another key question is how those
funds are distributed and invested.15 According to Rudas Lleras, only a very low percentage of royalties goes
to environmental protection, with allocations of less than 4% of potential funds available (as opposed to
the 17.55% allocation planned).16 While analysis has not yet been undertaken to see what percentage of
these funds go to human rights protection (such as to Colombia’s ombudsperson’s office, Defensoria) and
the Ministry of the Interior’s Prior Consultation Group, it would likely reveal an even lower figure than that
allocated for environmental protection. This despite clear needs for institutional strengthening both in terms
of environmental and social protection, as is discussed further below.
In June 2011, Colombia’s congress passed a reform in an effort to better distribute oil and mining royalties
across the country and stave off Dutch disease.17 The reform plans to save up to 30% of the $3 billion a
year royalties that Colombia receives. The percentage of royalties producing regions now receive will drop
significantly from 70% to 25%.18 As well
as redistribution, the government will
be debating increasing mining taxes.
Box 3: Projection of mining and hydrocarbons in GDP
Mining Minister Cardenas has stated
versus budget allocations for the environment
his hope that the status quo will be the
outcome of the debate, for stability’s
sake. Others want to see a rise in taxes
due to the historically high prices that
commodities such as gold are enjoying,
with gold having risen 18% in one
year.19 In March 2012, the government
announced a new bidding initiative that
would see the highest bidder receiving
consideration over the new mining
concessions it plans to issue starting in
2013.20
As the mining locomotive steamrolls
ahead at higher speed, it will be critical
to ensure Colombia has the capacity
to manage the sector’s finances,
and regulate it to ensure optimal
environmental and social protection.
While royalties should be used to this
end, funding for these institutions will
also need to come from other sources,
to avoid dependence on the mining
sector itself.
15
16
17
18
19
20
Source: Rudas Lleras (2011)
According to Goodland (2011a), “the last Minister of Finance, José Antonio Ocampo, observes that not one of Colombia’s mining-dependent
regions has developed. For example, la Guajira receives the most mining royalties, yet is the poorest department along with Chocó and
Guainía. More than 65% of Guajira’s citizens are below the poverty line. Mining creates little employment. Therefore mining should not be
one of the locomotives for the nation.”
“Dutch disease” refers to: “Negative consequences arising from large increases in a country’s income. Dutch disease is primarily associated
with a natural resource discovery, but it can result from any large increase in foreign currency, including foreign direct investment, foreign
aid or a substantial increase in natural resource prices. Dutch disease has two main effects: 1. A decrease in the price competitiveness, and
thus the export, of the affected country’s manufactured goods; 2. An increase in imports. In the long run, both these factors can contribute
to manufacturing jobs being moved to lower-cost countries. The end result is that non-resource industries are hurt by the increase in wealth
generated by the resource-based industries.” Read more: http://www.investopedia.com/terms/d/dutchdisease.asp#ixzz1wRtoLvau.
Gracias and Kimball (2011).
Walsh (2012).
Gordon (2012).
2.2.2 Canadian Extractive Investment in Colombia
Canadian companies are leading the pack of extractive investors in Colombia. Of the 34 companies planning
to undertake mineral exploration work in Colombia in 2010, 22 were Canadian, representing 65% (see Box
4).21 Total spending for all exploration companies planning work in Colombia in 2010 was USD $184 million;
of this, total spending planned by Canadian companies comprised USD $77 million.22 Oil and gas exploration
by Canadian companies constituted above 75% of overall activities in Colombia.23
While Canada is the largest investor in Colombia’s extractive sector, the CEOs of Canadian companies active
in Colombia are also among the highest-paid of Canada’s CEOs. A recent analysis identified that four of
Canada’s 100 top-paid CEOs belonged to Canadian oil and gas company Pacific Rubiales, which is traded on
both the Toronto and Bogota stock exchanges. Each of these CEOs earned over USD $11 million in 2010.24
Box 4: Companies Listed on the Toronto Stock Exchange Working in Colombia,
as at November 28 2011
Operator/Significant Owner
Alder Resources Ltd. (Operator)
Gran Colombia Gold Corp.
AndeanGold Ltd. (Operator)
Gran Colombia Gold Corp. (Operator)
AndeanGold Ltd. (Operator)
Kermode Resources Ltd (Operator)
AngloGold Ashanti Limited (Operator)
Lara Exploration Ltd. (Operator)
Antioquia Gold Inc (Operator)
Latam Investments Ltd
Arcturus Ventures Inc. (Operator)
Micoldex Ltda
Atico Mining Corporation (Operator)
Midasco Capital Corp (Operator)
AuRo Resources Corp. (Operator)
Minatura International LLC (Operator)
B2Gold Corp. (Operator)
Mineros S.A. (Operator)
Bandera Gold Ltd. (Operator)
Miranda Gold Corp. (Operator)
Batero Gold Corp. (Operator)
Pacific Coal Resources Ltd. (Operator)
Bellhaven Copper & Gold, Inc. (Operator)
Primecap Resources Inc. (Operator)
Cadan Resources Corporation (Operator)
Quia Resources Inc. (Operator)
Caerus Resource Corporation (Operator)
Red Eagle Mining Corporation (Operator)
Calvista Gold Corporation (Operator)
Rio Grande Mining Company (Operator)
Colombia Crest Gold Corp. (Operator)
Rio Novo Gold Inc. (Operator)
Colombian Mines Corporation (Operator)
Rugby Mining Limited (Operator)
Coltstar Ventures Inc. (Operator)
Samaranta Mining Corporation (Operator)
Condoto Platinum NL (Operator)
Seafield Resources Ltd. (Operator)
Consorcio de Inversionistas CDI, S.A.
Solvista Gold Corporation (Operator)
Continental Gold Limited (Operator)
South America Exploration & Finance, S.A.S.
CuOro Resources Corporation (Operator)
Sunward Resources Ltd. (Operator)
Eco Oro Minerals Corp. (Operator)
Tolima Gold Corp. (Operator)
Eldorado Gold Corporation (Operator)
U3O8 Corp. (Operator)
Galway Resources Ltd. (Operator)
Ventana Gold Corp. (Operator)
Gold Plata Mining International Corp. (Operator)
Waymar Resources Ltd. (Operator)
Golden Alliance Resources Corporation
Yamana Gold Inc.
Source: Intierra Resource Intelligence (2011)
21
22
23
24
12
For a review of the impact of Canadian mining companies on human rights in Colombia, see Inter Pares (2009).
Metals Economics Group (2010).
Representative of the Canada-Colombia Chamber of Commerce, EDC Roundtable June 2011.
Hugh Mackenzie (2012).
Holding Extractive Companies to Account in Colombia According to analysts, Alvaro Uribe’s administration was a major catalyst for this rise in investments, with
his crackdown on the FARC and his creation of the Agencia Nacional de Hidrocarburos in 2004, among other
investment-friendly initiatives. These changes gave “the Colombian government a smaller chunk of any oil
field profits … It was an attempt to make more foreign investment in the country’s oil sector,” according to
one analyst.25
The Canadian embassy also readily assists its companies to gain access to the Colombian market, while
Export Development Canada provides them with political risk insurance and other financial support.26 As
well, the recently negotiated
Colombia-Canada FTA provides
further incentives for investment
“Trade between [Canada and Colombia] has been
in the country. The human
climbing steadily and we’re hopeful that when
rights side-agreement that was
the Free Trade Agreement takes effect later this year
negotiated (as a concession to
that these numbers will climb much more
demands for undertaking a human
because we see important growth opportunities for
rights impact assessment of the
exports and investment in many sectors,
free trade agreement prior to its
and particularly in the extractive sector.
being implemented) is supposed
Oil is now Colombia’s biggest export.
to ensure protection of human
The country has become the third-largest producer in
rights alongside investment. This
South America after Venezuela and Brazil
side-agreement requires reporting
and they have an aggressive program
on the human rights impacts of
to increase their oil and gas reserve base.”
the FTA annually. Yet the Canadian
Stephen S Poloz, President and CEO, EDC, June 17, 2011
Government failed to produce its
first human rights report on May 15,
2012, as mandated. The rationale
for this failure, given by Canada’s Trade Minister Ed Fast in Canada’s House of Commons, was that “there’s
not enough available data to do a comprehensive analysis,” as the “agreement has only been in force for the
last four and a half months in 2011.”27 But the FTA had been in force since August 2011, some nine months
prior to the requirement of reporting, questioning Canada’s political will in addressing trade-related human
rights issues rigorously in the volatile and conflict-ridden context of Colombia.
2.2.3 Looking to the future
Several companies are set to make significant investments in Colombia in the coming years. Speculation
holds that Colombia will attract some US $2.1 billion in gold-related investments by 2015. Companies such as
South Africa’s AngloGold Ashanti are planning to invest around US $400 million in exploration in the months
to come, while Canada’s Gran Colombia Gold has stated it will exceed its 2011 investments by over $US 19.5
million, most of which will be allocated to develop its Marmato project (reviewed in section 5).28 Current
projections are that exports in mining, oil and gas will increase from USD $21 billion in 2010, to USD $34
billion in 2014, and to USD $54 billion in 2021.29
25
26
27
28
29
Kozak in Rubin (2012).
According to its website, EDC has assisted 167 Canadian companies in Colombia, insured 395 international buyers, and has a total business
volume of CAD $291.8 million in Colombia. http://www.edc.ca/EN/Country-Info/Pages/Colombia.aspx. Accessed March 12, 2012.
Barrett (2012).
Jamasmie (2012).
Banco de la Republica, MHCP, DNP. 2010. Regia Fiscal para Colombia. Cited in Rudas Lleras (2011).
13
2.3 Extractives in Colombia: A risky business
Investments in the Colombian extractive sector continue to skyrocket, fuelled by a perception that Colombia
is now post-conflict due to Uribe’s efforts to crack down on guerrilla groups and demobilize the paramilitary.
Yet the country’s Defensoria, public declarations from ethnic and other social organizations,30 and media
articles tell a very different story.31 Indeed, the Santos administration has recognized the country is in a state
of armed conflict, and in 2012 began efforts to negotiate with FARC and ELN.
Experts note that the number of FARC attacks has in fact increased in the country since 2008.32 Extractive
companies and their employees have recently been in several news headlines for being targeted by illegal
armed groups. Most recently, for example, 11 Colombian oil workers were kidnapped near the border
with Venezuela in the Arauca province. “The kidnapping highlights the risks faced by oil and natural gas
companies operating in dangerous rural regions where Marxist guerillas, crime gangs and drug cartels fight
for territorial control in Latin America’s fourth largest producer of crude,” said one news article. 33
Indeed as oil, gas and mining companies go to ever more remote areas – areas with a high concentration of
illegal armed groups – these groups are coming face to face. Too often, these areas are also the homelands
of Indigenous and Afro-Descendent peoples. The mix is explosive. Activities by companies and illegal armed
actors – together with movements by the public forces34 – are putting at risk the lives and cultural integrity of
the ethnic peoples whose lands are increasingly in the eyes and interests of these actors. As Cristian Salazar,
Representative of the Office of the UN High Commissioner on Human Rights in Colombia has emphasized:
“The behavior of companies has a significant impact on the human rights of Colombian society, and
particularly on the human rights of Indigenous Peoples and Afro-Colombians.”35
2.3.1 Colombia’s Ethnic Peoples — Continued and intensified
human rights violations despite progressive rights recognition
Colombia’s Indigenous Peoples36 have recognized title to some 29.8 per cent of the country’s land mass,
or 34 million hectares (with other ancestral areas still under dispute and/or negotiation for recognition);37
30
31
32
33
34
35
36
37
14
Research by Indepaz, for example, shows an increase in violent events associated with ‘narcopara’ groups – in 2008, violent actions and illicit
dealings took place in 259 municipalities; in 2009, this broadened to 278 municipalities; and in 2010 to 360 municipalities (Gonzáles Posso
2011).
In its January 2012 report, the Colombian Office of the UN High Commissioner on Human Rights notes that: ‘Violence caused by the internal
armed conflict and its serious humanitarian consequences, including forced displacement, the recruitment of children and adolescents, and
anti-personnel mine incidents, continue to affect the full enjoyment of rights. The Constitutional Court confirmed in 2011 the “persistence of
the unconstitutional state of affairs” identified in 2004 regarding forced displacement. President Juan Manuel Santos publicly recognized the
internal armed conflict, which was denied by previous Governments.’ See also Ismi (2012) for a detailed account of the Colombian context
of armed conflict, particularly the impacts of Canadian investment on the lives of workers and on labour unions; PBI (2011) and Amis et al.
(2006) also shed light on the complexities for companies active in Colombia.
These attacks are apparently having less impact, and overall security “is vastly better than a decade ago and that has helped attract record
levels of investment.” (Acosta and Kimball 2012) A new military strategy is being developed that will focus on the FARC, the ELN and new
criminal gangs that were formed following the demobilization of right-wing paramilitaries from 2003-2006. See Acosta and Kimball (2012).
Acosta and Symmes Cobb (2012).
Colombia’s security forces have been steeped in controversy and allegations of human rights abuses. As highlighted by OACNUDH-Colombia
(2012), “By August, the National Human Rights Unit of the Attorney General’s Office had been assigned a cumulative total of 1,622 cases
of alleged homicides attributed to State agents, involving 3,963 members of the security forces. A total of 148 convictions had been handed
down” (para 33).
Salazar (2011).
The number of Indigenous Peoples in Colombia is contested, with different perspectives among Indigenous and State representatives.
Indigenous organizations note that currently some 102 Indigenous Peoples live in Colombia, comprising 3.3% of the country’s population
(Alternate Report to the fourteenth Report presented by the Colombian State to CERD, produced by Observatorio de Discriminacion Racial,
Comision Colombiana de Juristas and Autoridad Nacional de Gobierno Indigena ONIC, 2009). The Colombian government refers to 84
Indigenous groups (see for example, a presentation given by Rodolfo Moseres, Director of Proexport Canada, at a June 2011 EDC roundtable
meeting in Calgary). Some 10.6% of the country’s population considers itself Afro-Descendent (Alternate Report to the fourteenth Report
presented by the Colombian State to CERD). There are several Indigenous Peoples in danger of extinction due to displacement and the
internal armed conflict, including 34 identified by the Constitutional Court as at risk; 18 who number under 200 people, and 10 with under
100 people each, as identified by the National Indigenous Organisation of Colombia (ONIC) (UN Permanent Forum 2011).
National Department of Statistics (DANE) (2007, p.9), cited in Anaya (2010., p. 12, para 36).
Holding Extractive Companies to Account in Colombia while Afro-Descendent communities
have had 6 million hectares recognized
as collective ancestral territories (and
other areas are under dispute and/
or negotiation).38 Ancestral territories
therefore cover a substantial proportion
of Colombia’s land mass, and companies
are increasingly interested in exploring
and exploiting these resource-rich areas.
Furthermore, Colombia’s legislative and
constitutional framework is the envy
of many ethnic peoples world-wide,
who see the country’s human rights
commitments as exemplary and leading
edge. Among other relevant instruments,
Colombia has ratified ILO Convention
169 on Indigenous and Tribal Peoples,
has supported the UN Declaration on
the Rights of Indigenous Peoples, and
has ratified the Convention for the
Elimination of Racial Discrimination. It
has also ratified the American Convention
on Human Rights, giving Colombia’s
Indigenous and Afro-descendent
peoples access to the Inter-American
system and the Inter-American Court
on Human Rights. Colombia currently
plays an important role in the UN
Security Council, and has welcomed the
establishment of the UN Office of the
Photo: UN.org
High Commissioner on Human Rights
UN Special Rapporteur James Anaya is currently examining issues
in Colombia. And among other specific
around consultation and consent and extractives, and will be
rights, the Colombian Constitution
issuing further guidelines for companies.
recognizes Indigenous Peoples’ territories
as special entities with administrative
and budgetary autonomy (article 246), the right of Indigenous Peoples to apply their own justice systems
within their territories, and the right to self-government (article 330). Further, the Colombian Constitutional
Court has been issuing far-reaching decisions upholding Colombia’s national and international human rights
commitments and international jurisprudence (discussed in more detail below).
Yet despite this progressive legal and policy regime, two key factors undermine implementation: a) the gap
between government commitments (on paper) to human rights, and the lack of resources and appropriate
institutional structures to implement these commitments; and b) the internal armed conflict.
This was summed up succinctly by Rodolfo Stavenhagen, the former UN Special Rapporteur on Indigenous
Peoples Rights (who was cited also in the 2010 report on Colombia by the current Rapporteur James Anaya),
when he said: “The precarious human rights situation of Colombia’s indigenous peoples reflects the gap
38
Personal communication, member of Proceso de Comunidades Negras, a national Afro-Descendent organization, June 15, 2011. Congress’
Law 70 of 1993 upholds the right of Afro-Descendent communities to collective property, as well as the right to their cultural practices and
natural resources use, while guaranteeing economic and social development.
15
Box 5: Who owns the subsoil? Who has final decision-making power?
The heart of the conflict
At the heart of conflict around extractives in Colombia and lack of political will to fully uphold ethnic rights, is
the difference in positions on who owns subsoil resources, what is in ‘the national interest’, and who should
have a final say in decision-making.
For ethnic peoples, their territories include all components – what is above, below and what is on the surface
of the land. All are interconnected, and taking away one element affects the integrity of the territory, culture
and survival. For this reason, the right to free, prior and informed consent is critical – it is the pivotal right
that enables protection of all other rights (self-determination, development, cultural identity, participation,
autonomy, etc.), and the territory that informs cultural identity.
From the perspective of government officials (and companies), the territory is full of resources to be considered
for extraction as a means to increase the country’s (or company’s) wealth. And mainstream government
representatives consider that because the government is operating in the interests of Colombia’s people and
the nation as a whole, it should have final decision-making powers, regardless of what international human
rights law states regarding free, prior and informed consent. This conflict was highlighted by one high-level
government bureaucrat from the Ministry of the Interior, who said in an interview: “The subsoil does not
belong to the Indigenous Peoples. The government is the owner of the subsoil. The UN Declaration is not
binding … we do not agree with veto”.
Yet international law would take issue with all these government-stated positions.
a) On ownership to the subsoil, specifically, the Inter-American Commission on Human Rights has recently
synthesized jurisprudence regarding Indigenous and Tribal Peoples’ rights over their ancestral lands and
natural resources, noting that while States may claim ownership of sub-surface mineral and water rights,
for example, “this does not imply … that indigenous or tribal peoples do not have rights that must be
respected in relation to the process of mineral exploration and extraction, nor does it imply that State
authorities have freedom to dispose of said resources at their discretion. On the contrary, Inter-American
jurisprudence has identified rights of indigenous and tribal peoples that States must respect and protect
when they plan to extract subsoil resources or water resources; such rights include the right to a safe and
healthy environment, the right to prior consultation and, in some cases, informed consent, the right to
participation in the benefits of the project, and the right of access to justice and reparation” (ICHR 2009,
para 180). Indeed the ICHR links indigenous rights to territorial property to “the right to use and enjoy
territory in accordance with indigenous and tribal peoples’ traditions and customs,” noting that “the
right to the natural resources which are both in and within the ancestral lands is a necessary derivation,
including the specific rights of indigenous peoples over the natural resources of the subsoil” (para 181).
“The property rights of indigenous and tribal peoples thus extend to the natural resources which are
present in their territories, resources traditionally used and necessary for the survival, development and
continuation of the peoples’ way of life. For the Inter-American human rights system, resource rights
are a necessary consequence of the right to territorial property” (para 182). Further, “according to the
inter-American Court, ‘members of tribal and indigenous communities have the right to own the natural
resources they have traditionally used within their territory for the same reasons that they have the right to
own the land they have traditionally used and occupied for centuries” (para 182).
b) On the UN Declaration on Indigenous Peoples Rights being non-binding, this declaration can be used
in a court of law for binding decisions, and is in fact seen as having the stature of the UN Declaration on
Universal Human Rights. It is seen as complementary and offering further clarification to ILO’s Convention
169.
c) On consent being conflated with a veto right, while the right does recognize ethnic peoples’ right to say
‘No’ to a project, it is far more than simply a ‘veto’ right. As has been made clear by a standard-setting
exercise by the UN Permanent Forum, as well as international jurisprudence, it is a right that protects selfdetermination, among other special rights inherent to ethnic peoples. *
Sources: ICHR (2009); Motoc and Tebtebba (2005)
16
Holding Extractive Companies to Account in Colombia between progressive domestic legislation and the ineffectiveness of the institutions responsible for protecting
these peoples, against a background of internal armed conflict involving numerous warring parties whose
actions directly affect indigenous peoples chances of survival.”39
2.3.1a Institutional weaknesses in Colombia
Several significant institutional weaknesses currently inhibit the Colombian State in implementing human
rights.40 These include:
• An understaffed and under-resourced Defensoria, or ombudsperson for dealing with human
rights violations. Tasked beyond its abilities, the Office has insufficient funds for travelling and
investigating alleged
human rights violations,
particularly those related
“The country does not have in place adequate
to ethnic peoples affected
legislation nor proper procedures to guarantee prior
by extractives.41 There
consultation. The lack of rules that are clear and
is one ombudsperson
recognized nationally and internationally affects
delegated for ethnic
ethnic groups and companies alike, generating
peoples, and 35 local-level
different types of conflicts, violations of human rights
ombudspeople, the latter
and loss of social opportunities and investment of
largely dependent on
capital. It is urgent that the Colombian State put in
funding from international
place a development framework that guarantees the
cooperation.
right to prior consultation in the country.”
Christian Salazar, Representative of the
• Severe human and
UN High Commissioner’s Office on Human Rights, 2011
financial resource
constraints at the
office in charge of
prior consultations in the Ministry of Interior, in the face of increased requests and activities
from extractive companies.42 In 2011, there were only 7 people aside from the head of the
group, handling some 2600 requests for certification to identify whether prior consultation was
required. The group hired 8 more people, and in February 2011, when members of this group
were interviewed, there were a total of 16 people to expedite certifications and verification
processes. At that time some 47 agreements had been drawn up to undertake prior consultation
that simply could not be monitored in the field by a professional. 43 In late 2011 a Directorate of
Prior Consultation was established replacing the former Group of Prior Consultation, with a person
well-known among business groups appointed Director. Despite misgivings from former members of
the Prior Consultation Group, a protocol was drafted to facilitate private sector funding to the new
Directorate.44
39
40
41
42
43
44
Anaya (2010, p.5, para 36).
For a detailed overview of issues around access to remedy and justice for human rights violations in Colombia committed by companies, see
Comisión Internacional de Juristas (2010).
The UN Special Rapporteur for extrajudicial, summary or arbitrary executions, Philip Alston, highlighted the resource constraints at Colombia’s
Defensoría, emphasizing the need for additional capacities to implement the office’s Early Warning System (Alston 2010).
Discussions with the former head of the prior consultation group revealed deep concern about the shortage of resources to appropriately
process the many applications for certification of whether Tribal and Indigenous groups are in companies’ specific areas of interest and
whether prior consultations should therefore be triggered. Companies have also expressed frustration at the time lag and inability of the
group to respond to requests. Companies have offered to fund this group, and indeed there was an agreement with the Hydrocarbon Agency
(ANDI) towards this end. However, the resources were not sufficient, and the group’s activities were affected and became biased, as the funds
pertained to hydrocarbons. This agreement has now come to an end, and an action plan is being developed. The former head of this group
was very clear that the office would not accept funds that have been offered by companies. Nonetheless, this has changed with the August
2011 establishment of the new Directorate for Prior Consultation, and with the appointment of the new Director.
Anonymous interviews with state representatives, February 2011.
Gladys Jimeno, personal communication, 2012.
17
• Procedures for undertaking consultations that follow an outdated and unconstitutional set of
regulations; aside from not being properly implemented, these urgently need updating. Indeed,
the Government is developing a new draft law and procedure on prior consultation (and potentially
on consent) although the process to date has not included appropriate consultations with ethnic
peoples. Indeed the draft text was requested by the president’s office and was drafted without
input from ethnic groups. The drafting process was described as a ‘fiasco’ by one state official, who
noted that in its current state, the draft does not include the right to consent.45
• Weaknesses in the current environmental impact assessment framework and process. To date the
process does not require social or human rights impact assessment, and companies are essentially
left to their own devices when in the field undertaking impact assessments. Government officials
do not monitor EIAs when they are in process; instead they evaluate the completed product , by
which time it is often too late to improve to adequacy. Yet, this ongoing monitoring is crucial, as the
EIA process itself s extremely sensitive. There is very high potential for conflict to result even from
an EIA that does not, for example, respect the rights of communities to participate in and consent
to the study.
• Despite Constitutional recognition that there must be consultation with ethnic peoples prior
to exploration,46 current EIA legislation does not require an EIA prior to exploration — even
advanced exploration – making any consultation that does take place less than informed.47In sharp
contrast to normal international practice, when EIAs do take place, there is no requirement for
public participation to set the terms of reference for the studies. Nor is there funding to enable
communities to participate meaningfully, commission studies, or obtain technical support and
resources to undertake their own studies. Further, once projects are up and running, there is a very
real risk that rather than mitigate impacts, the companies will opt simply to pay the fines repeatedly,
without ever resolving the impacts and issues. This is currently happening in the case of the Salvajina
dam in Cauca.48
• The unilateral establishment and announcement of the new Autoridad Nacional de Licencias
Ambientales, ANLA (National Authority for Environmental Licensing). Due process for prior
consultation with ethnic groups was ignored, thereby contravening Constitutional requirements
and Colombian law, as ANLA’s establishment and functioning has a direct impact on ethnic
territories. In 2011 the Santos government restructured the Ministry of the Environment, creating
a new Environment and Sustainable Development Sector,49 and establishing a new permitting
office that further streamlines decision-making. The ANLA now issues licenses at the national level,
and permits together with Regional Environmental Corporations.50 It is unclear what the agency’s
policies are, or how it will undertake the appropriate and in-good-faith prior consultation and
consent processes required for ethnic groups, and how it will implement the standards upheld
in ILO Convention 169 or in the United Nations Declaration on the Rights of Indigenous Peoples,
45
46
47
48
49
50
18
The UN Office of the High Commissioner on Human Rights in Colombia has set up a project that could help guide the State in ensuring an
adequate prior consultation and consent process with regards to this new law.
Convention ILO 169, states that: “15 (2). In cases in which the State retains the ownership of mineral or sub-surface resources or rights to
other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with
a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes
for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate
in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities”
(emphasis added).
According to interviews with Ministry of the Environment officials, companies do need to get permits, however, from the regional corporation
in charge for use of water, other state resources, and waste disposal. There is also a guide produced jointly by the Ministries of Mines and
Environment that the regional corporations require exploration-phase teams to follow. The guide does have a chapter on EIA, but is more
centred on developing a management plan and mitigation measures.
These observations are from discussions with representatives from the Ministry of Environment and community representatives from Cauca.
Law 1444 of 2011, and Decree 3570 of 2011, restructured the Ministry of the Environment into what is now called the Environment and
Sustainable Development Sector.
Decree 3573 of 2011
Holding Extractive Companies to Account in Colombia Box 6: Recommendations from the Office of the
UN High Commissioner on Human Rights in Colombia concerning
Key Considerations for Implementing Prior Consultation and Consent in Colombia
In order to implement free, prior and informed consultation and consent it is important to consider:
•
That consultation processes present a forum for dialogue regarding development. This is why it is
desirable that companies recognize the implications of their activities on the lives of ethnic groups …
even if this means a different way of valuing the advantages and disadvantages of a project.
•
Respect for the right to participate in decision-making. Consultations should facilitate communities
having true influence in the decisions that are adopted concerning projects that affect them, and
the results of these. In this scenario seeking consent should become a real objective throughout
consultations. This implies that companies have flexibility in shaping their initial plans based on the
concerns and proposals of the affected communities.
•
Participation of Afro-Colombian and Indigenous communities in the benefits of an economic project.
Prior consultation is an adequate scenario for defining the participation of communities in the
distribution of benefits from a project.
ILO Convention 169 requires inclusion of these considerations, as do the policies of multilateral financial
institutions and the mechanisms of the Inter-American System of human rights.
Source: Excerpt from Salazar (2011). Author’s translation.
signed by Colombia, in its issuing of environmental licenses.51 The new agency will establish a Council
comprised of ministers, as well as the president, to take decisions about licenses for large projects,
including those affecting ethnic peoples and their lands.
• The concerted new effort to criminalize illegal miners puts at risk ancestral miners who have
been conducting mining activities since before the establishment of Colombia as a State. Both
the current mining code, and the new office established by the Prosecutor’s Office to deal with
environmental crime, have as a perverse consequence criminalized both artisanal and small-scale
miners, and ancestral miners who have been conducting activities under their own authorities for
centuries.52 The new mining code, slated to come before congress in July 2012, apparently will give
authorities more power to close down illegal miners and destroy their equipment.53 With regards
to the new Prosecutor’s Office of 22 attorneys trained in environmental law, it is unclear whether it
will investigate unlicensed mining that is currently fuelling illegal armed groups.54 Instead, this office
could lead – in what some see as an effort to pave the way for multinational mining companies –
51
52
53
54
Further, there has been no mention yet of its incorporation into the National Constitution through Law 21 of 1991, and other provisions.
Indigenous and Afro-Colombian miners participating in the NSI-PCN-RICL project coined the term ‘ancestral mining’ to differentiate this
mining from artisanal or small-scale mining. Ancestral mining refers to a cultural practice that is inextricably linked with cultural identity, and
that does not use harmful chemicals or practices. As defined by RICL (Resolution 031), “Artisanal Ancestral mining is an inalienable cultural
heritage of the Resguardo Indígena Cañamomo Lomaprieta, as it has been practiced uninterrupted in the territory since time immemorial
by our community members, in this way establishing a series of social, spiritual and economic relations articulated in our own communities’
systems of association, directly linked to our uses and customs, with practices that are environmentally sustainable and that have been
conserved throughout history.” See also Jimeno (2012) for a description of further ways the mining code has affected ethnic rights to mining,
including changes to the conditions for establishing special mining reserves for Indigenous and Afro-Descendent Peoples, eroding the
protections formerly in place, and essentially pitting ethnic miners against large-scale mining companies in competition for these territories.
Reuters (2011).
Insight Crime Intelligence has ascertained that in mineral rich departments like Antioquia and Cauca, unlicensed mines frequently must pay
extortion taxes to armed groups like the FARC. The typical fee is between 526-1500 pesos for each excavator that enters FARC’s territory. Or
sometimes the payment is a tax on the amount of gold produced per miner (Pachico 2012).
19
Photo: Viviane Weitzner
Ex-cabildo governor Héctor Jaime Vinasco (on the right) explains to Rodolfo Stavenhagen a memorial to Embera Chamí leaders who
were killed defending their peoples’ rights.
to a further crackdown on legitimate activities by ancestral miners who do not have the required
paperwork in place.55
• The former General Directorate of Indigenous Affairs (DGAI in Spanish) has been significantly
reduced in power, scope of action and resources. It is now a programme within the Ministry of
Interior (that prior to August 2011 was fused with the Ministry of Justice), known as the Directorate
for Indigenous Affairs, ethnic minorities and Roma. The Directorate’s mandate is to propose policies
leading to the recognition and protection of ethnic and cultural diversity; and to oversee the
design, programming and inter-institutional coordination of mechanisms that enable the exercise of
rights enshrined in the Colombian Constitution and the law to protect ethnic and cultural diversity
in the Colombian Nation.56 The powers of the former DGAI were significantly weakened by the
executive when the Pastrana administration came to power in 1998. At that time, the technical
units established to support the investment of resources to fulfill DGAIs activities were dissolved,
against the Patzcuaro Agreement which “binds the national government to establish an autonomous
organization for developing public policies with Indigenous Peoples.”57 In the words of Gladys Jimeno,
“the little that used to exist in terms of protecting ethnic rights in the executive, has been dismantled
over the course of the last 10 to 15 years; there are no longer any offices nor people responsible to
guarantee and protect minimum ethnic rights.”58
55
56
57
58
20
Pachico (2012).
http://www.mij.gov.co/econtent/newsdetail.asp?id=441&idcompany=2&idmenucategory=52.
Jimeno (2002: 37).
Jimeno (2012).
Holding Extractive Companies to Account in Colombia 2.3.1b Human rights violations and the changing armed conflict
Despite perceptions that all is well-in-hand in Colombia with regards to the armed conflict and demobilizing
paramilitaries, and that the time is right for large scale investments in extractives, the evidence on the
ground paints a very different picture. Illegal armed groups are in-migrating to ancestral territories and to
areas traditionally mined by artisanal and small-scale miners, and there are increasing – not decreasing –
assassinations of social leaders:
• The Vice-president’s office recorded a 71% increase in the killing of indigenous persons in JanuarySeptember 2009, compared with 2008.59 By October 2011,79 indigenous people had been killed that
year in the context of the armed conflict, representing a 54.9% jump over the same period in 2010.60
• By the end of 2011, 117 indigenous people were murdered, according to the National Indigenous
Organization of Colombia (ONIC). Indigenous and social leaders involved in the process of restitution of
lands (initiated by the government in 2011) have been killed, likely by illegal armed actors with interests
in their lands. The government has announced that it will implement protection measures for human
rights defenders and leaders involved
in the land restitution process.61
“The rights of indigenous peoples and
Afro-Colombian communities are still
• The Afro-Descendent partners NSI
disproportionately affected by the internal
works with in northern Cauca, for
armed conflict and by the violence generated by
example, have received an average of
the illegal armed groups that emerged after the
one death threat every two months
62
since 2011. They also face ongoing
demobilization of paramilitary organisations.”
threats of forced relocation from
OACNUDH-Colombia (2012), Appendix I
their lands to make way for mining.
In light of their recent Constitutional
Court win (T1045A) that halted the forced relocation of the community of “La Toma” in the municipality
of Suárez, and suspended all exploration and exploitation in the area until such time as appropriate
consultation and consent processes have been undertaken, members of the PCN-NSI’s project research
team in Cauca and traditional leaders in this area are facing increased pressure and insecurity.
• And Afro-Descendents in this area are also seeing illegal actors – the Bacrim63 – becoming involved
with small- and medium-scale mining, which dramatically increases the potential for conflict, and has
already led to massacres.64 Indeed, apparently this area has been termed “Cauca-kistan” by the armed
forces who are undertaking military operations in the area against illegal armed groups.65
59
60
61
62
63
64
65
This figure is referenced in Anaya’s 2010 report on Colombia.
OACNUDH-Colombia (2012).
Cited in Otramérica (2012). Journalist Christin Leonard (2012) reports that: “The National Protection Unit, the government agency in charge
of providing security for threatened people, will approve protection services for another 80 land restitution leaders by the end of March, in
addition to the 45 leaders who have already been approved. Interior Minister Vargas Lleras announced that this number would increase even
further. ‘Between this month and next [we] will raise to 175 the number of people and leaders of restitution programs who shall have the best
security conditions,’ he said.”
It is important to note that aside from ethnic leaders, human rights defenders in general – including public servants from Defensoria – remain
under ongoing threats. This was documented in 2009 by the visit of the United Nations Special Rapporteur on the Situation of Human Rights
Defenders, and in a 2011 follow-up mission by International Service for Human Rights. To date State protection measures for threatened
human rights defenders is inadequate, and there is effective impunity for those threatening human rights defenders. Many look to the 2012
UN Periodic Review for Colombia as a key opportunity for the Colombian government to address these issues (ISHR 2011).
“Bacrim” refers to bandas criminales or criminal bands, many of which are comprised of demobilized paramilitaries. There are big challenges
inherent in the State’s ambitious reintegration policies, which, while having resulted in the demobilization of over 45,000 combatants, have
also led to veterans reintegrating into Bacrim. According to Colombia’s Ombudsperson’s early alert system, illegal armed groups include:
Autodefensas Gaitanistas de Colombia, Aguilas Negras, Los Urabeños, Los Paisas, Los Rastrojos, ERPAC, Oficina de Envigado, Frente Cacique
Pipintá, Organización Nueva Generación and others (July 2010 SAT Report, Defensoria).
According to OACNUDH-Colombia (2012), “The Police reported that 53 per cent of the members of these groups [illegal armed groups]
who have been captured or killed to date were demobilized paramilitaries” (para 38); “OHCHR-Colombia continues to be concerned about
indications that these groups benefit from the collusion of some local authorities and members of security forces, due primarily to corruption,
intimidation and threats. In May, agents of the Technical Investigation Unit and the Attorney General’s Office arrested 37 officials in Nuquí and
Bahía Solano, Chocó, including members of the Police, the judicial system and local administrations, for collaborating with these groups” (para
43). “From January to November, 32 massacres were registered; 15 occurred in Antioquia” (footnote 14).
Acosta and Kimball (2012).
While the Colombian state has taken steps to address illegal armed groups including paramilitaries, the
landscape has shifted with the emergence and presence of the Bacrim, and the potential for egregious human
rights violations continues to be very high, particularly on ancestral lands.
The grave human rights situation of Colombia’s ethnic peoples is described further in the 2004 and 2010 reports
from the UN Special Rapporteurs on Indigenous Peoples Rights, together with the declarations from the 2010
visits by members of the UN Permanent Forum on Indigenous Peoples and the UN Representative on Minorities,
the early warning reports of Colombia’s ombudsperson, and the 2010 report of the UN Special Rapporteur on
extrajudicial, summary or arbitrary executions. These highlight forced recruitment of ethnic children to illegal
armed groups, selective killings of leaders, rapes, and ongoing threats.
Of particular concern is the lack of implementation or effectiveness of the precautionary and provisional
measures that were ordered by the Inter-American Commission on Human Rights in light of “the persistent
risk of attacks against life and bodily integrity to which the indigenous peoples in various parts of Colombia
are exposed.”66 According to Anaya’s 2010 report, “despite the existence of these measures, numerous
indigenous peoples and communities continue to report selective killings of their leaders, spokesmen and
traditional authorities.”67 Likewise, there has been little movement by the State to effectively implement
the Constitutional Court’s 2009 Resolutions 004 and 005 (also known as Autos 004 and 005) concerning
forced displacement of Indigenous and AfroDescendent peoples – which ordered the
implementation of a program to guarantee the
Box 7: Some statistics on human rights
rights of peoples affected by forced relocation, and
violations in Colombia
the implementation of related ethnic safeguard
plans. Numerous international bodies, including
Between January and October 2011 there were at least:
the ILO’s Committee of Experts on the Application
• 90,000 people displaced
of Conventions and Recommendations, have
• 32 massacres
highlighted this. In its 2010 report, the Committee
urges the Government of Colombia to, among
• 79 indigenous people killed
other things, provide information on measures
• 20 unionists killed
taken to comply with the resolutions of the
• 32 leaders of social and community
Constitutional Court, and to:
organizations killed
•
36 human rights defenders killed
•
1,550 land mines incidents
•
114 actions against energy towers, petrol
company installations, and roads
•
249 kidnappings
•
388 terrorist acts
From July 2010 to May 2011 there were:
•
255 acts of aggression in Colombia against
human rights defenders — 54 were murders.
(These official figures do not disaggregate those
who were Afro or Indigenous).
Sources: Observatory of Human Rights, cited in “La Semana”
(OtraAmérica 2012); International Verification Mission on the
Situation of the Defense of Human Rights in Colombia (2011).
66
67
68
22
“[I]mmediately suspend the implementation of
projects affecting indigenous and Afro-Colombian
communities until an end has been put to all
intimidation of the affected communities and
their members and until the participation and
consultation of peoples concerned has been
ensured through their representative institutions
in a climate of full respect and trust, pursuant
to Articles 6, 7 and 15 of the Convention [ILO
Convention 169].”68
Extractive companies wanting to engage in
Colombia – and home governments such as Canada
supporting business in this context – clearly need
to be fully informed and aware of this complex
human rights situation, and the changing dynamics
of the Colombian armed conflict.
Anaya (2010, p. 7).
Anaya (2010, p. 8).
Committee of Experts on the Application of Conventions and Recommendations (2010, p. 762).
Holding Extractive Companies to Account in Colombia Box 8: Early Warning System, Map of Indigenous Populations at Risk
—Based on data from January 2008 - July 2010
The departments with the highest number of municipalities at risk, include, in order or magnitude:
-Nariño with 20 municipalities
-Cauca with 13 municipalities
-Chocó with 10 municipalities
-Quindío with 9 municipalities
-Antioquia, Magdalena and Meta each with 6 municipalities
-North Santander and Risaralda with 5 municipalities each.
Oher departments at risk include: Arauca, La Guajira, Boyacá, Bolívar, Caldas, Caquetá, Córdoba, Putumayo,
Tolima, Cesar, Guaviare, Cundinamarca, Valle del Cauca y los departamentos del oriente selvático Amazonas,
Vichada y Vaupés
Source: Defensoría del Pueblo (2010)
23
2.3.2 Political and Legal Gains for Colombia’s Ethnic Peoples
While investment and human rights violations increase in parallel, it should be stressed that there have been
some landmark political and legal victories for Colombia’s ethnic peoples in the context of extractives.
On the political front, from the outset of its mandate, the Santos government has made issues affecting
ethnic peoples a priority. The administration is inviting more dialogue with ethnic peoples, and has
underscored the importance of prior and informed consultations in national planning processes and policy
dialogues. New initiatives with regards to settlement of lands and reparations to victims69 are also taking
place, as mentioned above, and the
government is in the process of drafting a
new law on prior consultation and consent,
“Obstacles persisted with regard to
with process guidance from the UN Office of
conducting
consultations to obtain prior, free
the High Commissioner on Human Rights.70
and informed consent from indigenous peoples
It is still too early to tell what the impact
and Afro-Colombian communities.
of the Government’s openness to dialogue
OHCHR-Colombia observed a lack of
with ethnic peoples will be, and whether
understanding by some local authorities
concrete changes will take place on the
of the scope of the consultations and confirmed
ground; but it is important to note this
the risks and pressure ethnic groups face
apparent shift in approach.
when carrying out some of these processes.
The most effective protection of the right to
It should, however, also be observed that
consultation has been provided
from the perspective of ethnic organizations,
by the Constitutional Court when resolving
Santos is moving forward with too many
legal actions (acciones de tutela).”
important legal and planning initiatives,
OACNUDH-Colombia (2012)
too quickly. In essence this ‘avalanche’ of
proposals for consultation is leading to
a situation in which social organizations
simply do not have the capacity to respond; this essentially obviates meaningful participation and
consultation. Recently there were more than seven substantive legislative and planning proposals on the
table at once, ‘hollowing out’ any possibility of meaningful input from affected organizations. In addition,
there are problems with the process, timing and mechanism the government has been using to consult
with organizations: the high level consultivas established for this purpose have sown corruption and led
to grassroots and other organizations stating that these consultivas are not representative. Clearly, the
procedure for these national consultations needs to be strengthened, through a process led by the affected
organizations.71
69
70
71
24
The Victims’ Rights and Land Restitution Law of June 10, 2011, “reinforces the right to remedy for lands seized illegally and recognizes
the different needs of different victims, especially women, children and displaced people. It lays the foundation for justice for some 3.5
million displaced people and estimated 500,000 victims of human rights abuse” (UN News Service, 2011). The issue once again is in how
this ambitious law will be implemented, and whether it will lead to increased retaliation from illegal armed groups against victims and
their leaders moving back to their lands. Besides issues regarding inappropriate consultation of ethnic groups, the law has been deemed
unconstitutional by groups such as Lawyers without Borders Canada (2012), who charge that the narrow definition of who is considered a
victim, and the cap on legal fees to support claims, are both unconstitutional.
Decreto 1320, which currently guides the process of prior consultations in Colombia, was deemed unconstitutional by Colombia’s
Constitutional Court, and inconsistent with ILO Convention 169 for lack of appropriate consultation. There have been serious concerns with
the process and substance of the current draft of the decree that would replace 1320, again in light of its failure to undertake appropriate
consultations. The Committee of Experts on the Application of Conventions and Recommendations “notes with regret that this bill [Resolution
3598 of 2009] was not the subject of consultations or process of participation with the indigenous and tribal peoples. It further notes with
concern that … the content of the bill has not eliminated the problems of Decree No. 1320 and does not envisage consultation as a process
of genuine negotiation between the parties involved” (2010, p.264). The Committee continues by urging Colombia to ensure consultation
and participation in the drafting process, and to seek technical assistance to do this. Ironically, discussions in 2010 with the head of the prior
consultation group of the Ministry of the Interior have revealed that private sector companies had been consulted in the drafting process,
while ethnic peoples had not.
See for example, a letter by the academic network “Grupo de Intelectuales en Defensa del Pacifico,” dated 17 January, 2012. Also see Arocha
(2012).
Holding Extractive Companies to Account in Colombia Photo: Viviane Weitzner
Lorenzo Muelas (on the right), former Indigenous Senator and Traditional Authority of the Misak People, taking part in a meeting in
Marmato, Caldas, along with another Indigenous Misak Authority.
Further gains for ethnic peoples are the series of recent far-reaching Constitutional Court decisions,
which highlight the importance of prior consultation and consent, and invoke international jurisprudence.
Several projects have been suspended and laws and processes declared null and void because of failure to
appropriately consult with ethnic peoples.72 Of particular relevance is the May 11, 2011 ruling that quashed
the Colombian mining code for this reason.73 The Court has given a two-year window for the redrafting of the
code and appropriate consultation process; in the meantime the current code remains in place. Expectations
are that a new draft – which is currently being drawn up and negotiated behind closed doors, and without
due prior consultation with ethnic peoples – will be presented to Congress in July, 2012.
72
73
Among them: judgment T-652, which declared Decree 1320 of 1998 on prior consultation unconstitutional and inconsistent with ILO
Convention 169; judgment C-030 of 2008, which declared inadmissible (‘inexiquible’) Law 1021 of 2006, the General Law on Forestry, for
lack of prior consultation; judgment C-461 of 2008 concerning Law 1151 of the National Development Plan of 2006-2010, which suspended
any implementation of programs, projects or budgets with the potential to directly affect ethnic communities until fully informed prior
consultations are undertaken; judgment C-175/09 of 18 March 2009 which found Act No. 1152 of 2007, the Rural Development Statute, to
be unenforceable due to lack of consultation; judgment T- 769 of 2009, related to exploration and exploitation of the Mandé Norte/Cerro
Carrepero Muriel Mining project because of lack of due process (no assessment of impact on Embera and Afro-Descendent communities),
prior consultation and consent, and given the existence and cultural integrity of communities (the company has appealed this judgment, with
support from the Ministry of the Interior); judgment T1045A of December 2010, which declared null and void a license granted for mineral
exploitation in La Toma, Suárez, for lack of appropriate consultation with Afro-Descendent communities prior to issuing the mining license;
and judgment T-129 of March 2011 related to three projects, including the construction of a motorway, the bi-national electricity connection
between Colombia and Panama, and a mining project (which the Court suspended until such time that there is appropriate consultation
leading to free, prior and informed consent with the affected Embera Katio people for these projects).
According to Jimeno (2002), several Canadian technicians – who also worked for Canadian mining companies – were involved in the 2001
reforms of the Colombian mining code, with support from CIDA. The reforms led to several regressive changes regarding human rights,
including: omitting references to the right to prior consultation, stripping the Ministry of Indigenous Affairs from functions the previous code
attributed to it, redefinition and weakening of the concept of traditional territory, and eliminating the tax exemption for Indigenous Peoples
involved in mining. Finally, neither the 2001 nor the 2010-2011 reforms included appropriate consultation of ethnic groups (Vasquez 2001;
Jimeno 2002; Culpeper in Weitzner 2002).
25
2.4 Conclusion
This overview drives home the very complex situation on the ground. Contrary to the glowing image of
a post-conflict country that is being publicized, Colombia is still wracked by active armed conflict. In the
extractive sector, illegal armed groups are muscling into the action, setting up their own mining operations
to take advantage of high commodity prices to fuel their activities, and for money laundering. Meanwhile,
ancestral Indigenous and Afro-Descendent miners are caught in the cross-fire, with extractive companies
and illegal armed groups alike eyeing the resources in their territory — which covers more than 30% of the
country. Colombia’s regulatory agencies remain weak, dysfunctional, and in the case of new institutions
such as the environmental crimes office, even discriminatory in their approaches. As such, the potential for
conflicts and human rights violations catalyzed by proposed extractive projects is high.
In this context, are voluntary instruments strong enough to guide companies and ensure that they uphold
their human rights obligations? In war economies, what instruments might better guide investments? And,
finally, should there be any investments at all?
The following section examines a variety of codes encouraged for uptake by companies operating in
Colombia. It assesses what the international literature – and ethnic groups worldwide – have said about
these instruments, and their ability to protect the environment and human rights.
26
Holding Extractive Companies to Account in Colombia An evaluation of CSR instruments through the lens of Indigenous and Afro-Descendent Rights
27
“The root cause of the business
and human rights predicament today
lies in the governance gaps
created by globalization – between the scope
and impact of economic forces and actors,
and the capacity of societies to manage
their adverse consequences.
These governance gaps provide the
permissive environment for wrongful acts
by companies of all kinds without adequate
sanctioning or reparation.
How to narrow and ultimately bridge
the gaps in relation to human rights
is our fundamental challenge”
John Ruggie (2008)
“To respect human rights
essentially means not to infringe
on the rights of others –
put simply, to do no harm.”
John Ruggie (2011)
Top: In S. Africa, platinum company Zimplats
has established a women’s project involving brick-making
it holds up as a poster for CSR; discussions revealed this
project was essentially imposed on the women by Zimplats
to produce inexpensive bricks. There is no substantial
training in how to run a profitable business, and no job
security when the brick-laying contract with Zimplats
comes to an end September, 2012
Middle: John Ruggie
Bottom: Mine construction in Colombia
28
Photos: Viviane Weitzner (top), Federico Herrera (bottom)
Holding Extractive Companies to Account in Colombia Part 3: CSR Instruments, Responsibilities
and Ethnic Rights – A Critical Review
3.1 The International Debate
For decades, the human rights responsibilities of diverse actors undertaking extractive activities, and the
mechanisms that might best hold companies to account have been hotly debated. The debate has come to a
high pitch since the 1990s.With international processes led by a variety of actors — from the United Nations
to the World Bank74 to the OECD, among others — a plethora of potential instruments and codes of conduct
have emerged in an effort to rein in the behavior of companies operating in contexts of weak governance
and even armed conflict.
Among these, the initiative that spawned the most controversy was the UN Norms, more formally known
as the UN Norms on the Responsibilities of Trans-national Corporations and Other Business Enterprises
with regard to Human Rights. Approved in August 2003, this instrument has been described by Amnesty
International as “the most authoritative and comprehensive set of standards on business and human rights
issued to date.”75 Based on the 1948 UN Declaration of Human Rights, the UN Charter and all UN Conventions,
the UN Norms reference the needs for external monitoring and verification of compliance, for enforcement
and monitoring by States, and for the establishment of an internal complaints mechanism. They require
companies to conduct regular evaluations and provide reparations in cases of inadequate compliance.76 Yet
the UN Norms also stirred much debate on whether the human rights responsibilities of States were simply
being shifted to companies.77 Ultimately, the UN Norms resulted in pushback from industry and other actors.78
This led to the appointment of the UN Special Representative on Business and Human Rights, John Ruggie,
who was tasked with clarifying the issues at stake and coming up with practical guidance. Ruggie’s mandate
resulted in what many regard as the definitive framework for approaching business and human rights:
the ‘protect, respect and remedy’ framework. It also created a set of practical guidelines that have been
criticized by many for not going far enough,79 and not living up to the framework’s promise of a new and
improved way of doing business that puts human rights front and centre.80 Despite these shortcomings,
governments and industry alike have been working to align their efforts with Ruggie’s guidance, since the
publication of this framework and the guiding principles (in 2008 and 2011 respectively).
74
75
76
77
78
79
80
While some question whether the World Bank has ever played a leading role on human rights issues, it did implement leading-edge safeguard
policies protecting ethnic rights in the 1980s, and also commissioned the Extractive Industries Review. Yet some argue that it has slid back on
rights issues since then (Robert Goodland, Personal Communication, 2012; Herbertson, Goodland and Thompson 2008).
Amnesty International, www.amnesty.org/en/business-and-human-rights (accessed in 2009).
Coumans (2010: 36).
“Separated only by the undefined concepts of ‘primary’; versus ‘secondary’ obligations and ‘corporate sphere of influence’” (Ruggie 2008:
para 15).
These actors held that they are under no legal obligations to implement human rights instruments; instead, they argued, human rights should
be taken up voluntarily, through CSR codes (Coumans 2010). With the publication of John Ruggie’s framework and guiding principles there is
now a ‘soft law’ framework, which makes clear, as John Morrison (2011), Director of the Institute for Human Rights and Business, states, that
“Business has a direct responsibility – not a voluntary responsibility” to respect human rights.
A working group of 5 independent experts – including one Colombian – has been established by the UN Human Rights Council
to promote the dissemination and implementation of the Guiding Principles. http://www.ohchr.org/EN/NewsEvents/Pages/
Makingbusinessesrespecthumanrights.aspx
Indeed, as Ruggie himself points out: “The Guiding Principles’ normative contribution lies not in the creation of new international law
obligations but in elaborating the implications of existing standards and practices for States and business; integrating them within a single,
logically coherent and comprehensive template; and identifying where the current regime falls short and how it should be improved” (2008:
para 14). MiningWatch Canada’s (2011) submission on the guidelines, for example, notes that they “shrink back from recommending the
very solutions that were identified in the framework”. Simons’ (2012) critique goes even further, noting that Ruggie does not examine the
nature of ‘root’ causes for governance gaps in and of themselves. She argues that the root cause of accountability issues is embedded in the
architecture and substance of the international legal system itself, and describes the heavy-handed role that international financial institutions
play as structuring agents. See also the ‘Joint Civil Society Statement to the 17th Session of the Human Rights Council: Amnesty International,
ESCR-Net Human Rights Watch, International Commission of Jurists, FIDH, RAID’ (30 May 2011): www.hrw.org/news/2011/05/30/joint-civilsociety-statement-17thsession-human-rights-council
29
Against this historical backdrop, the following section synthesizes the findings of a comparative analysis of
key instruments proposed to hold to account extractive companies operating in Colombia, focusing on their
attention to Indigenous and Afro-Descendent rights and perspectives. The instruments reviewed include
the Voluntary Principles on Security and Human Rights, the UN Global Compact, the OECD Guidelines for
Multinational Enterprises, the International Financial Corporation’s Performance Standards and the Global
Reporting Initiative. The analysis uses Ruggie’s “protect, respect and remedy” framework as a basis for
evaluation and adapts it to examine the extent to which the instruments consider ethnic rights. The section
also briefly compares and contrasts the approaches of several home states in holding their companies to
account overseas, with attention to interventions specific to Colombia and conflict zones.81 It sets the stage
for the presentation, in subsequent chapters, of diverse perspectives on whether these instruments are
effective in the Colombian context.
3.2 Methodological approach and criteria for evaluation: in brief
3.2.1 Methodological approach
The methodology included an extensive review of Spanish and English-language literature and statements
by Indigenous or Afro-Descendent organizations worldwide. Profiles were produced for each instrument and
country approach.82 Each profile followed the evaluation criteria below. The instruments and interventions
chosen were those most often associated with debates in Canada and Colombia.
3.2.2 Criteria for evaluation
The criteria for evaluation drew heavily on Ruggie’s influential “protect, respect and remedy” framework,
which, very briefly:
• Is built on three key, complementary principles or pillars: “The State duty to protect against human
rights abuses by third parties, including business; the corporate responsibility to respect human
rights; and the need for more effective access to remedies.”83
• Recognizes that drawing up a limited list of human rights for which companies have responsibility is
inappropriate because “business can affect virtually all internationally recognized rights.”84 Instead, it
states that the specific responsibilities of companies should be seen in relation to all the rights they
may impact – the scope is not limited.
• Recognizes that “governance gaps” – the current weaknesses of state institutions and mechanisms
for holding extractive companies to account and managing associated negative consequences –
are at the heart of ongoing human rights violations. In Ruggie’s words, these gaps “provide the
permissive environment for wrongful acts by companies of all kinds without adequate sanctioning
or reparation. How to narrow and ultimately bridge the gaps in relation to human rights is our
fundamental challenge”85 (emphasis added). Sanction and reparation are therefore integral parts of
an effective system to curtail abuses and hold companies to account.
81
82
83
84
85
30
For a review of Canadian investment in mining in Colombia that uses also the Ruggie framework for analysis, see Inter Pares (2009).
Fiona Meyer-Cook was the key researcher in charge of gathering and analyzing information, and producing profiles on the various CSR
instruments; Farrah Fulton gathered information for an earlier review; and the University of Toronto NSI Working Group, a group of dedicated
young lawyers, analyzed a variety of country approaches which this paper draws from. Meaghen Simms helped coordinate this background
research.
Ruggie (2008: Para 9).
Ruggie (2008: Para 3, emphasis added).
Javier Hernández of the UN High Commissioner on Human Rights Office in Colombia (OACNUDH) comments following a panel of
presentations by State representatives at a 2010 national workshop in Bogota, Colombia on free, prior and informed consent and
extractives organized by NSI together with its Colombian partners.
• Specifically addresses conflict-affected states, noting that some of the worst alleged corporaterelated human rights violations occurred, “predictably, where governance challenges were greatest
… in countries that often had just emerged from or still were in conflict; and in countries where rule of
law was weak and levels of corruption high.”86 Human rights due diligence is one means of avoiding
complicity in human rights violations.87
The substance of Ruggie’s framework will be considered in more detail in the analysis that follows,
recognizing that it is useful for examining the responsibilities and mechanisms that need to be in place to
maximize accountability. And recognizing also, the well-argued critiques that the guidelines supplementing
the Ruggie framework fail to concretely address the needs for regulatory actions, for internationally binding
guidelines, policies and instruments, and for the establishment of a rigorous follow-up and complaints
mechanism for the guidelines themselves, based upon Ruggie’s own criteria for effectiveness.88
However it is increasingly clear that ethnic rights and aspirations must also be explicitly addressed in
instruments targeting the extractives industry. Respect for the rights to self-determination, development,
identity, autonomy, territory, participation and free, prior and informed consent, among others, are key
requirements for any interventions potentially affecting ethnic peoples and their territories. Indeed,
Indigenous and Afro-Descendent Peoples refer specifically to the rights outlined in ILO Convention 169 on
Indigenous and Tribal Peoples and the United National Declaration on the Rights of Indigenous Peoples,
among other treaties, as the minimum standards to be upheld in any interactions with them.89 They also
refer to national and international jurisprudence that further clarifies these rights, and to the specific rules
and regulations within Indigenous and Afro-Descendent self-governance systems.
86
87
88
89
Complicity has been defined as “indirect involvement by companies in human rights abuses – where actual harm is committed by another
party, including governments and non-state actors.” Sherman and Lehr (2010) point to the key role human rights due diligence plays in helping
a company avoid complicity.
See for example, Simons (2012); Human Rights Watch (2011); and Joint Civil Society Statement (2011).
UNDRIP (2007) gathers together in one document the fundamental rights of Indigenous and Tribal Peoples already recognized through other
international instruments. . Article 43 states that: “The rights recognized herein constitute the minimum standards for the survival, dignity and
well-being of the indigenous peoples of the world.”
31
This goes hand-in-hand with Ruggie’s clarification that the responsibility of business enterprises to respect
human rights refers to “all internationally recognized human rights,” and that companies should respect
standards that apply to specific groups that they affect, such as Indigenous Peoples.90 He also clarifies that this
is the case even in situations in which national law may conflict with international commitments by a host state
and the international human rights framework.91
In light of the above discussion, the following criteria guide the evaluation of CSR instruments to hold
companies to account in the context of Colombia:92
Criterion 1: Respect for human rights:
Does the instrument reflect and assure respect for human rights?
• Is there sufficient guidance on how to respect all human rights, with appropriate assurance
mechanisms in place?
• Is there any special guidance with respect to Indigenous and Afro-Descendent rights?
• Is there any special guidance with regard to operating in conflict zones?
Criterion 2: Sanction and remedy:
• Does the instrument provide access to sanction and remedy?
Criterion 3: Community participation and self-determination:
• Was the instrument initially formulated and designed with the participation of Indigenous and AfroDescendent communities? Were their concerns incorporated into the final instrument?
• Does the instrument allow for, enable and encourage community participation, consultation and
consent – and specifically by Indigenous and Afro-Descendent Peoples – in designing and assessing
interventions at the community level?
• Does the instrument support and promote the right to self-determination, whereby community
aspirations regarding their development paths and their values are protected?
3.3 Analysis and Discussion of Findings
3.3.1 Criterion 1: Respect for Human Rights
Brief clarifications through the lens of the Ruggie framework
Ruggie insists that “because companies can affect virtually all internationally recognized rights,”93 complying
with national laws and respecting all human rights is their baseline responsibility.94 Although more guidance
90
91
92
93
94
32
Ruggie (2011: Para 12): “…business enterprises may need to consider additional standards. For instance, enterprises should respect the human
rights of individuals belonging to specific groups or populations that require particular attention, where they have adverse human rights
impacts on them. In this connection, United Nations instruments have elaborated further on the rights of indigenous peoples, women…”
See the clarifications section of criterion 1.
These criteria follow closely those proposed by Catherine Coumans (2010) in her analysis of CSR tools, with some adaptations, particularly
to criterion 3. In her review, Coumans highlights the importance of ‘community agency’ for protecting social, economic and environmental
values. By ‘agency’ she refers to “ideas of intention, and to peoples’ [culturally constituted] projects in the world and their ability to engage
and enact them,” following Ortner 2006 (cited in Coumans 2010, p. 35). This concept concurs with the right to self-determination, which is the
criterion used in this analysis, and the key criterion identified by ethnic peoples in any projects affecting their lands. Coumans’ discussion and
framework inform much of the analysis in this section.
He notes that “To respect human rights essentially means not to infringe on the rights of others – put simply, to do no harm” (2008: Para 24).
Holding Extractive Companies to Account in Colombia is needed regarding situations in which national law conflicts with international human rights law, Ruggie
notes that “companies serious about seeking to resolve the dilemma are finding ways to honour the spirit of
international standards.”95
As a minimum, companies should look to the international bill of human rights and core conventions of the
ILO.96 However Ruggie also makes clear that some rights “may require greater attention in particular contexts”
and that social expectations are part and parcel of the responsibility to protect. Thus in the case of Indigenous
Peoples, the baseline instruments against which companies and states will be judged should include ILO
Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples, among others like the
Convention on Biological Diversity and the Convention for the Elimination of Racial Discrimination.
Crucially, Ruggie notes that while increasing numbers of companies claim they respect human rights, most do
not have systems in place “to support this claim with any confidence.”97 He stresses that there needs to be far
more concrete and detailed guidance in place, rather than simply aspirational language in their human rights
policies. And as regards the human rights due diligence process, the scope “is determined by the context in
which a company is operating, its activities, and the relationships associated with those activities.”98 In the case
of Indigenous and Afro-Descendent Peoples, this would include looking at spiritual, cultural, environmental,
human rights and economic impacts, for which the Inter-American Court on Human Rights has highlighted the
Akwé:Kon Guidelines as the most appropriate tool for assessment.99 Monitoring and auditing of responsibilities
is also essential to assure that respect for human rights is actually taking place on the ground.100
Analysis of CSR Instruments
While the UN Norms go further than other CSR instruments in coverage and scope of human rights
protected,101 their usefulness is limited because they lack the support of companies and governments.102
Indeed, some see the UN Global Compact, which was released in 2000 prior to the end of the mandate of the
UN Working Group on Trans-National Corporations, as an effort to undermine the potential of the UN Norms
to provide more comprehensive and far-reaching solutions. And while the UN Norms were initially approved by
the Human Rights Commission, they were subsequently rejected as without legal standing, following intensive
lobbying from industry and governments.103
UN Global Compact (UNGC)
The UN Global Compact is among the most frequently-cited CSR instruments for Colombia. In fact, Colombia
is the Regional headquarters for this instrument.104In terms of scope, the UN Global Compact’s 10 principles
specifically reference “protection of internationally proclaimed human rights” (Principle 1) and making sure
businesses “are not complicit in human rights abuses” (Principle 2). Its other principles also have human rights
implications, such as labour rights, environment and anti-corruption.
95
96
97
98
99
100
101
102
103
104
Ruggie (2008: footnote 39).
CBD (2004). The IFC guidance notes on Performance Standard 7 on Indigenous Peoples also refer to the Akwé:Kon guidelines as best practice.
The Mining Certification Evaluation Project (MCEP) made inroads into considering some of the issues at stake in Australia, noting that a wider
international debate needs to take place on appropriate systems (MCEP 2006). These have been taken further by the multi-partite Initiative
for Responsible Mining Assurance (IRMA) that started up in 2006, focusing on independent verification. The launch of the first version of the
IRMA system is expected in 2014. IRMA “envisions a world where the mining industry is: respectful of the human rights and aspirations of
affected communities; provides safe, healthy and respectful workplaces; avoids or minimizes harm to the environment; and leaves positive
legacies.” (http://www.responsiblemining.net/)
It references the UN Declaration of Human Rights; the UN Charter and all UN Conventions; and refers to the need for internal and external
monitoring and verification mechanisms. It requires companies to conduct regular evaluations and “provide reparations in cases of
inadequate compliance with the UN Norms” (Coumans 2010).
The exceptions being the fourteen companies associated with the Business Leaders in Human Rights forum. They have made inroads in trying
to operationalize the UN Norms under the guidance of Mary Robinson, with activities from 2003 to 2009, when the programme ended. Some
have charged that Ruggie himself has helped polarized the debate, and further dismiss the UN Norms. See, for example, Sweeney (2006).
Leisinger (2006: 1).
http://www.unglobalcompact.org/newsandevents/news_archives/2007_02_12.html.
33
While the UNGC makes no specific mention of Indigenous or Afro-Descendent rights, these should be
encompassed in the first principle.105 The UNGC’s self-assessment guide for companies includes a section on
Community Impact (HU 4.B) which deals with the rights which must be respected when a company buys, rents,
acquires, or otherwise accesses land or property. The clarifying note on this point states that: “vulnerable
groups, such as women, indigenous peoples, or migrants are often deprived of their rights … and may reside
on land (where they) lack proof of ownership or usage rights.” Further, “the loss of land or property without
adequate compensation may significantly harm the livelihoods of the affected individuals and their families.”
Thus “the company must investigate land ownership properly and consult with all affected groups before
acquiring or accessing land or property.”106
There is also a brief mention of Indigenous Peoples’ rights in a clarifying note on complicity in the 2010
guidance paper, Businesses in Conflict Affected and High-Risk Areas. Guidance Note 2 states that “Companies
are encouraged to: develop policies,
practices and operational guidance on
“At the hour of truth, the collapse of the legally
government relations with regard to the
environmental protection and naturalbinding turns out to be so cheap; it’s become an
resource management, the rights of
elaborate and obscure garb of the voluntary rule.
labour and indigenous peoples and the
The legally binding, and the voluntary
use of public security forces.”107
– one easily exchanged for the other,
at the expense of the rights of Indigenous Peoples
However, there is no ‘assurance’ that any
as recognized by the UN itself.”
of these principles or guiding materials
Bartolomé Clavero, Vice-President of the UNPFII
are adhered to on the ground. The
speaking about the UNGC (2010)
UNGC can delist companies that do not
self-report for three years in a row, but
it has no power to enforce commitment, to verify whether what is reported is correct, or to act in response
to a violation.108 Nonetheless, Ruggie suggests that the UNGC is well-positioned – as an initiative with a UN
platform – for testing and monitoring human rights compliance in the future.109
Voluntary Principles on Security and Human Rights (VPs)
Of the other instruments most often cited for upholding human rights in Colombia, the Voluntary Principles
on Security and Human Rights (VPs) has historically provided the least coverage on human rights; it is oriented
specifically to human rights linked with security issues.110 The Voluntary Principles fall into three broad
categories: risk assessment, relations with public security and relations with private security. Significantly,
Colombia’s government is a member.
The VPs refer only to local communities, with no differentiation vis-à-vis ethnic peoples’ rights. Differentiation
is critical in light of distinct national and international protections, including the articles of the UN Declaration
on the Rights of Indigenous Peoples that reference security and freedom with regards to military activities
(articles 7 and 30).111
105
106
107
108
109
110
111
34
Coumans notes that civil society groups are highly critical of the Global Compact for “its insufficient coverage of human rights. For example,
the only reference to ILO standards is with respect to the child labour convention…. [for] its lack of accountability mechanisms to sanction
companies that do not comply or show slow progress in complying ... and for acceptance of companies as members whose human rights
records have been called into question” (Coumans 2010: 37).
Global Compact Self-Assessment Tool: http://www.globalcompactselfassessment.org/aboutthistool/termsofuse. (No page number –available
under general assessment area: Human Rights, subsection: Community Impacts, subsection: Land and Property).
Guidance on Responsible Business in Conflict-Affected and High-Risk Areas: A Resource for Companies and Investors. A joint UN Global
Compact – PRI publication. UNGC (2010: 19)
The UNGC delisted 603 companies in 2008, and 859 between October 2009 and January 2010 (UNGC monthly bulletin, February 2010).
Participating members as of March 2012 include: seven member governments (Canada, Colombia, The Netherlands, Norway, Switzerland,
the United Kingdom the United States); eighteen companies (Anglo American, AngloGold Ashanti, Barrick Gold Corporation, BG Group, BHP
Billiton, BP, Chevron, ConocoPhillips, ExxonMobil, Freeport McMoRan Copper and Gold, Hess Corporation, Marathon Oil, Newmont Mining
Corporation, Occidental Petroleum Corporation, Rio Tinto, Shell , Statoil , Talisman Energy); and nine NGOs (Amnesty International, The Fund
for Peace, Human Rights First, Human Rights Watch, IKV Pax Christi, International Alert, Oxfam, Pact, Search for Common Ground).
UNDRIP Article 7: 1. Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person. 2. Indigenous
Holding Extractive Companies to Account in Colombia Recently released guidance tools do reference Indigenous Peoples, particularly in Tool 2.1, a tool for
establishing the scope and scale of self-assessment. Questions here target whether Indigenous Peoples are
among the vulnerable groups that could be affected by potential conflict, whether they perceive their rights
to be abused, and whether security provisioning actually has violated their rights. Nonetheless, the advice
on effective risk assessment is misguided, as the case study highlighted as a success story pools Indigenous
Peoples together with other ‘stakeholders’ like NGOs. This is extremely problematic in that Indigenous and
Afro-Descendent Peoples – backed by international jurisprudence –do not consider themselves stakeholders
but rights holders. Ensuring ethnic
rights are understood and upheld in
“The Voluntary Principles still do not ensure that
implementing the VPs is critical; but if
companies’ implementation can be convincingly
the guidance disseminated does not
measured by third parties, nor does it ensure that
emphasize this adequately, the VPs
material
support by companies to armed groups will only
are unlikely to be effective.
be made in ways which avoid the risk of contributing to
human rights abuses…. a members’ club, closed to outside
Finally, the VPs are voluntary and
scrutiny and policed by consensus of its own members,
non-binding, and currently lack
cannot be treated as equivalent to an international
assurance with regards to monitoring
standard
whose application can be measured by third
and implementation. Several
parties and tested in law.”
participants are now engaging in pilot
projects regarding verification and
Global Witness (2007) on the Voluntary Principles
guidance to increase accountability.112
In the meantime, however, the scope
of human rights coverage remains too narrow, with no formal assurance that companies are living up to their
commitments on the ground. As the key CSR instrument held up for respecting human rights in Colombia,
these remain important shortcomings, as diverse actors attest to in the next section of this paper.
OECD Guidelines for Multinational Enterprises
First adopted in 1976, the OECD Guidelines are a set of voluntary recommendations on business ethics for
multinational enterprises. They address employment and industrial relations, human rights, environment,
information disclosure, combating bribery, consumer interests, science and technology, competition, and
taxation. Adhering governments commit to promoting their useamong multinational enterprises operating in
or from their territories. In December 2011, Colombia became an adherent to the OECD Declaration, thereby
committing to implement the OECD Guidelines and establish a National Contact Point (NCP), a focal point for
dealing with complaints.113
The OECD Guidelines were updated in 2011 to align with Ruggie’s Framework. As a result, a human rights
chapter was included. It closely follows Ruggie’s references to the minimum human rights standards and
specific international instruments, and then states that:
“Depending on circumstances, enterprises may need to consider additional standards. For instance,
enterprises should respect the human rights of individuals belonging to specific groups or populations
that require particular attention, where they may have adverse human rights impacts on them. In this
connection, United Nations instruments have elaborated further on the rights of indigenous peoples;
persons belonging to national or ethnic, religious and linguistic minorities …. Moreover, in situations of
armed conflict enterprises should respect the standards of international humanitarian law, which can
help enterprises avoid the risks of causing or contributing to adverse impacts” (paras 39 and 40).
112 113
peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide
or any other act of violence. UNDRIP Article 30: 1. Military activities shall not take place in the lands or territories of indigenous peoples,
unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. 2. States shall
undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their
representative institutions, prior to using their lands or territories for military activities.
U.S. State Department (2011).
http://www.oecd.org/document/40/0,3746,en_2649_34889_49258792_1_1_1_1,00.html. Members currently include 43 governments
comprising all OECD countries, and 9 non-OECD members (Argentina, Brazil, Colombia, Egypt, Latvia, Lithuania, Morocco, Peru and Romania).
35
Adhering members should therefore ensure
that international human rights instruments
concerning Indigenous and Tribal Peoples are
also applied in relevant contexts.
Further, the OECD has developed due
diligence guidance for Responsible Supply
Chains of Minerals from Conflict-Affected
and High-Risk Areas. This guidance “provides
management recommendations for global
responsible supply chains of minerals to
help companies to respect human rights
and avoid contributing to conflict through
their mineral or metal purchasing decisions
and practices.”114 However, should concrete
mechanisms to prevent potential negative
impacts on artisanal miners not be
implemented, the rights of ethnic peoples
involved in ancestral mining – and of others
involved in artisanal mining – could be
negatively affected, and their type of mining
criminalized.115
Yet, as with the other instruments reviewed
so far, measures to ensure compliance
are lacking. According to OECD Watch’s116
coordinator Joris Odenziel, “advances were
made with regard to human rights, due
diligence, and supply chain responsibility
… But without credible enforcement
mechanisms, it remains to be seen whether
the update will make a real difference in the
day-to-day struggles of victims of corporate
Gladys Jimeno, National Project Coordinator, preparing for small group
abuse” (emphasis added).117 In the absence
discussions, Free, prior and informed consent workshop, Cauca.
of consequences for companies who fail to
implement, there is no incentive for them to
comply, “and irresponsible companies will carry out their abusive behavior with impunity.” OECD Watch argues
that the NCPs established for dealing with complaints are not “even explicitly required to ascertain whether a
company has breached the OECD Guidelines.”118 Instead, consistent application across NCPs is very much left to
the discretion of individual Contact Points (elaborated further below).
In reviewing the OECD website, a major concern for Spanish speakers is the lack of documentation available in
Spanish (information is available in English, French and German). Given that Colombia is now a signatory to the
OECD Declaration, it will need to ensure that materials are accessible to Colombian citizens.
114
115
116
117
118
36
Alliance for Responsible Mining (2012).
The Alliance for Responsible Mining (2012) has proposed such concrete mechanisms to ensure that ancestral and other miners themselves
are fully involved in due diligence and other processes that align their practices with fair trade and other standards, in an effort to assure that
the appropriateness of these supply chain providers are fully considered, particularly in the context of conflict minerals.
OECD Watch is an international network of more than 80 civil society organizations promoting corporate accountability.
OECD Watch (2011).
OECD Watch (2011).
Holding Extractive Companies to Account in Colombia International Finance Corporation (IFC) Performance Standards
The IFC Performance Standards are arguably the world’s most looked-to benchmark for standards on company
behaviour. As the private sector-lending arm of the World Bank Group, the IFC is owned by 182 member
countries, works in more than 100 developing countries; and “is the largest global development institution
focused exclusively on the private sector in developing countries.”119
The Performance Standards condition IFC loans. They are important given not only the vast portfolio of funded
projects (see Boxes 9a and 9b for IFC investments in Latin America and the Caribbean); they also inform
the policies of the 76 commercial banks and other financial institutions that have signed onto the voluntary
Equator Principles (EPs).120Furthermore, national governments, such as Canada, look up to the Standards to
inform their own policies.121
Latin America comprised the region receiving the most IFC investments in 2010,122 and 46% of the IFC’s total
extractive industry portfolio. In 2011, this number
increased by 6%, with Latin America receiving 52%
Box 9a: IFC investments
of IFC’s total extractives portfolio (see Box 10).
The IFC has invested some $900 million in Colombia,
which is its third largest client.123 According to its
website, “IFC business operations in Colombia
promote environmentally and socially sustainable
practices, especially in extractive industries.”
in Latin America and the Caribbean
Committed Portfolio by Industry, FY 10
Most recently, equity arrangements have been
made for Greystar Resources (a Canadian junior
mining company now known as Eco Oro Minerals
Corp.) to prepare the bankable feasibility study,
environmental and social impact assessment, and
pre-development ground work of its Angostura gold
and silver exploration project near Bucaramanga,
Santander;124 Another recipient was the Termo
Rubiales Project (sponsored by Energy International
Corporation),for the construction of a fuel-oil
thermal plant in Campo Rubiales, Meta.125
Bancolombia, an influential Colombian national
bank, has signed onto the Equator Principles;
therefore its investments should be guided by
119
120
121
122
123
124
125
Source: http://www1.ifc.org/wps/wcm/connect/REGION__
EXT_Content/Regions/Latin+America+and+the+Caribbean/
Investments/
http://www1.ifc.org/wps/wcm/connect/corp_ext_content/ifc_external_corporate_site/about+ifc, accessed April 18, 2012.
The Equator Principles provide minimum standards for due diligence, and “are intended to serve as a common baseline and framework for
the implementation by each adopting institution of its own internal social and environmental policies, procedures and standards related to its
project financing activities.” To date 76 financial institutions have adopted the EPs in 28 countries, covering over 70 percent of international
project finance debt in emerging markets. These include Export Development Canada, Canada’s export credit agency. http://www.equator
principles.com/index.php/about-the-equator-principles
Government of Canada (2009).
Latin America and the Caribbean received a record of over $3 billion in 2010 from the IFC’s own account, and the IFC mobilized an additional $
827 million in syndication and parallel co-financing for clients in the region. http://www1.ifc.org/wps/wcm/connect/REGION__EXT_Content/
Regions/Latin+America+and+the+Caribbean/Investments/
Report from the Colombia IFC Consultation, June 3, 2010. Available at www.bicusa.org/en/Article.11911.aspx
According to the 2010 annual review of World Bank extractive industries investments, IFC awarded US$ 4.9 million to this project (http://
siteresources.worldbank.org/EXTOGMC/Resources/336929-1233337886428/WBG_Extractive_Industries_Annual_Review_2010.pdf), with
“a right to invest approximately up to an additional C$ 12.19 million” (http://www.ifc.org/ifcext/spiwebsite1.nsf/DocsByUNIDForPrint/
DF15489BFDE959D6852576BA000E2D0C?).
The 43-64 MW facility will “supply the energy needs of a pumping station for the new oil export pipeline and the current needs of the existing
oilfield facilities. Rubiales is one of the largest oilfields in Colombia.” According to the 2010 annual review of World Bank extractive industries
investments, IFC awarded US $16.5 million to this project.
37
Box 9b: IFC investments in Latin America
and the Caribbean
Investments by Region, FY10
– Commitments for IFC’s account $12.7 billion
the Performance Standards (the Cauca case study
reviews Bancolombia’s investments in the Salvajina
dam). Scotiabank, a Canadian bank that has recently
taken over the Colombian banking institution
Colpatria – and which is positioning itself to provide
financial assistance to companies – has also signed
onto the EPs.126
Because of this extensive reach, the World
Bank Group’s safeguard policies are of utmost
importance. The 2011 revisions of the IFC
Performance Standards, which came into effect
January 1, 2012, provide critical guidance for
companies and governments worldwide.
However, measured against Ruggie’s criteria for
respecting human rights, the Performance Standards
get mixed reviews. On the one hand, the IFC has
some of the most specific standards and guidance
with regards to Indigenous Peoples. Its most recent
review resulted in the adoption of free, prior and
Source: http://www1.ifc.org/wps/wcm/connect/REGION__
EXT_Content/Regions/Latin+America+and+the+Caribbean/
informed consent (FPIC) as a requirement for
Investments/
projects affecting Indigenous Peoples in certain
circumstances.127 Yet as many commentators have
noted, the IFC review stopped short of fully embracing human rights, and human rights due diligence is not
required in assessing project impacts and in decision-making.128
The IFC Sustainability Framework Policy is guided by the International Bill of Human Rights and the eight
core conventions of the International Labour Organization;129 but it does not refer to ILO Convention 169 on
Indigenous and Tribal Peoples, the UN Declaration on the Rights of Indigenous Peoples, or to international
jurisprudence clarifying Indigenous and Tribal Peoples’ rights.130 Nor does it explicitly embrace Ruggie’s
recommendation that additional standards should guide interventions in specific contexts.131
In addition, the standard for FPIC is still short on details, leaving much to the discretion of the client. With FPIC
required in special circumstances, the onus is put on the client to document the process; this is problematic
as a client’s understanding may often be very different from that of Indigenous communities. Uncertainty
is also introduced with the qualifier that “FPIC does not necessarily require unanimity and may be achieved
even when individuals or groups within the community explicitly disagree” (para 12). The international rights
126
127
128
129
130
131
38
Webster (2012).
The 2006 Performance Standards had referred to free, prior and informed consultation as the standard, along with broad community
support and good faith negotiation. This has now shifted to informed consultation and participation of communities, and free, prior and
informed consent in specific circumstances. These include circumstances where project design, implementation and expected outcomes are
associated with the following adverse impacts: impacts on lands and natural resources subject to traditional ownership or under customary
use; relocation of Indigenous Peoples from lands and natural resources subject to traditional ownership or under customary use; significant
impacts on critical cultural heritage that is essential to the identity and/or cultural, ceremonial, or spiritual aspects of Indigenous Peoples’
lives, including natural areas with cultural and/or spiritual value such as sacred groves, sacred bodies of water and waterways, sacred trees,
and sacred rocks; or use of cultural heritage, including knowledge, innovations or practices of Indigenous Peoples for commercial purposes.
During the review, several submissions were made to the IFC highlighting this critical issue. See, for example, the Indian Law Resource Center
(2011).
See footnote 4.
An Appendix to the Guidance Notes for Performance Standard 7 on Indigenous Peoples does list the UN Declaration for further guidance.
Because of its failure to include an integrated human-rights approach, civil society has noted that the World Bank Group could be charged
with appearing to “pursue development at the expense of human rights,” while not fulfilling the IFC’s mandate to help “reduce poverty and
improve people’s lives.”Joint Civil Society Statement on IFC’s Draft Sustainability Framework (2011). There are also incoherencies within
the World Bank Group itself on FPIC: “IFC’s very qualified adoption of FPIC is one thing. But the International Bank for Reconstruction and
Development (IBRD) doesn’t go even that far! IBRD has not adopted any semblance of FPIC unless the C refers to consultation” (Robert
Goodland, Personal Communication, 2012).
Holding Extractive Companies to Account in Colombia framework makes clear that it is up to the Indigenous
community/ies, rather than the client or even the IFC,
to decide what constitutes consent, and leading edge
practice includes the active involvement of affected
communities in the verification of the consent
process. Without requirements for human rights due
diligence or independent verification processes (with
input from the affected communities), it is difficult to
envision how FPIC will be appropriately implemented.
Box 10: IFC Regional Investments in
Extractive Industries in 2011
(as of June 30, 2011)
The IFC does have a complaints mechanism that
provides some assurance that standards are
implemented; yet as discussed under criterion 2
below, it remains fairly weak.
Global Reporting Initiative (GRI)
As some have pointed out, the GRI is not a human
rights standard per se, but a voluntary selfreporting standard.132It bills itself as “a non-profit
organization that promotes economic, environmental
and social sustainability … with a comprehensive
Source: The World Bank Group in Extractive Industries 2011
sustainability reporting framework.”133 The GRI
Annual Review
also includes sector guidance, including a sector
supplement targeted specifically to mining and
metals (launched in 2010). This review examined the mining and metals supplement in particular.
The GRI does include specific guidance on human rights and extractives, and also some guidance on reporting
human rights incidents involving Indigenous Peoples. Aside from the international human rights instruments
referenced by Ruggie,134 the Sector Supplement makes direct mention of the UN Declaration on the Rights of
Indigenous Peoples as a relevant standard for reporting.
In the GRI’s ‘G3 Guidelines,’ companies are asked to report on:
HR9: Total number of violations involving rights of indigenous peoples and actions taken.
HR12: Description of policies, guidelines and procedures to address the needs of indigenous people; and
HR13: Description of jointly managed community grievance mechanisms/authority.
The minerals and metals sector supplement asks for further information on the:
MM5: Total number of operations taking place in or adjacent to Indigenous Peoples’ territories, and
number and percentage of operations or sites where there are formal agreements with Indigenous
Peoples’ communities.135
MM6: Number and description of significant disputes relating to land use, customary rights of local
communities and Indigenous Peoples.
MM7: Extent to which grievance mechanisms were used to resolve disputes relating to land use,
customary rights of local communities and Indigenous Peoples, and the outcomes.136
132
133
134
135
136
Martin (2009).
https://www.globalreporting.org/Information/about-gri/Pages/default.aspx. Some 300,000 members make up this network.
It also references the Voluntary Principles on Security and Human Rights.
Note: This indicator uses IFC’s Performance Standard 7 (Indigenous Peoples) as one of its references. The MM5 guidelines on relevant
documents that companies can use to report on this indicator include company policies and procedures pertaining to FPIC.
Note: Both MM6 and MM7 reference IFC Performance Standard 1 (Social and Environmental Assessment and Management System) and IFC
Performance Standard 7 (Indigenous Peoples).
39
Relevant to Indigenous and Afro-Descendent Peoples in Colombia:
MM8: Number (and percentage) of company operating sites where artisanal and small-scale mining
(ASM) takes place on, or adjacent to, the site; the associated risks and the actions taken to manage and
mitigate these risks.
MM9: Sites where resettlement took place, the number of households resettled in each, and how their
livelihoods were affected in the process.
Yet as with other CSR instruments, GRI reporting is voluntary, at the complete discretion of companies, and
lacks independent verification on the ground. It has been used to greenwash rather than report on human
rights incidents, as will be seen in the case studies on Caldas and Cauca, which present concrete examples of
faulty implementation of the GRI in Colombia.
3.3.2 Criterion 2: Sanction and Remedy
Ruggie’s framework clearly spells out the importance of effective remedy for complaints. He notes that access
to formal judiciary systems is usually most difficult where the need is greatest, with non-judicial mechanisms
being the most under-developed.137 Ruggie sets out key criteria for effective grievance systems, from judicial
to non-judicial to company grievance mechanisms.138 He further specifies sanction and reparation as necessary
for addressing the permissive environment and wrongful acts by companies.
Analysis of CSR instruments
Of the instruments analyzed, the only two that establish formal complaints mechanisms are the OECD
Guidelines and the IFC Performance Standards.
The National Contact Points established under the OECD guidelines have been critiqued by Ruggie
himself for the failure to provide remedy, in part as a result of conflict of interest issues due to the fact
that NCPs are housed within government departments that traditionally serve the private sector, rather
than having a human rights mandate. He further notes that: “NCPs often lack the resources to undertake
adequate investigation of complaints and the training to provide effective mediation. There are typically
no time frames for the commencement and completion of the process, and outcomes are often not publicly
reported.”139 Several countries have tried to address these shortcomings by, for example, establishing distinct
departments and multi-stakeholder advisory groups,140 or by appointing experts to investigate.141 But in the
final analysis, NCP recommendations are not legally binding. There is no sanction for those companies that
do not comply, and little to no follow-up or monitoring once recommendations are issued. Further, some
have criticized this complaints process for not systematically involving the host state— which is responsible
for protecting human rights— and for instead pitting communities against companies, with all the power
asymmetries this suggests.142 Also, the requirements of confidentiality during NCP processes are of concern,
as they curtail the potential ability of communities to use parallel forms of redress.143
137
138
139
140
141
142
143
40
Ruggie 2008: Para 26.
For non-judicial mechanisms these include legitimacy, accessibility, predictability, equity, rights-compatibility, and transparency (Ruggie 2008:
Para 92).
He concludes NCPs do not meet the framework’s minimum standards for effective non-judicial grievance mechanisms. Ruggie (2008: Para 98).
For example Holland (in Ruggie 2008).
Norway’s NCP funded an independent fact-finding mission to the Mindoro Nickel Project in the Philippines. (Coumans, personal
communication, 2011).
See for example, Amnesty International (2009); and OECD Watch (2010).
Red Puentes, accessed in 2010.
Holding Extractive Companies to Account in Colombia Regarding Colombia’s recent adoption of the OECD Guidelines, a key uncertainty is the competition that will
exist between the NCP that must be established, and the current Ombudsperson’s Office. As highlighted
in the previous section, Colombia’s Defensoría is currently vastly underfunded and under-resourced; yet it
enjoys respect and buy-in from Indigenous and Tribal groups and Colombia’s civil society. Will the Colombian
government channel much-need resources that could go to strengthening Defensoría into an NCP that will
no doubt enjoy far less buy-in? Where will the NCP be housed, and how will investigations take place? Will
Defensoría be involved in these investigations, and will the Government ensure Defensoría has funding
to participate? These key questions need to be resolved to ensure that prospective mechanisms are as
rigorous as possible, and that resources are not taken away from an already weak but much-respected
Defensoría. But also, the Government of Colombia will need to correct the current lack of Spanish-language
documentation regarding the OECD Declaration and Guidelines, to ensure that Colombian citizens – and
government agencies for that matter – have access to all relevant information, and can use this instrument
accordingly, should they choose to do so.
Box 11: National Contact Points — Their Use in Colombia
In Colombia, the strength of National Contact Points has been tested through a case involving parallel complaints
to both the Australian and Swiss NCPs. The case addresses the forced eviction of communities affected by the
El Cerrejon Coal mine in Guajira, operated by BHP Billiton (Australia), Xstrata (Switzerland) and Anglo American
(United Kingdom), and owned in equal parts by each company. It was launched in July 2007 through the
Australian NCP, and in October 2007 through the Swiss NCP. The Australian NCP, in communication with both the
Swiss and UK NCPs, took the lead in the investigation.
The complainants maintained that: the owners and operators of Cerrejon attempted to depopulate an area of the
La Guajira Peninsula by destroying the township of Tabaco and forcibly evicting its population; and that five other
communities in the region were suffering the effects of a policy designed to drive the population out by making
living in the area unviable. The complainants sought revised compensation for and improvements to the current
living conditions of the former residents of Tabaco, along with assurances that an appropriate process would be
established to manage the relocation of the five other communities.
The complainants coordinated actions with international civil society and engaged in a hybrid strategy, in which
the NCPs were but one of a series of steps to put pressure on BHP Billiton, Xstrata and Anglo American. The
companies, too, engaged in their own strategies, including striking an ‘independent’ panel to review the issues at
stake, that was then disbanded with the issuing of its report.
The outcomes of this process were mixed. The Australian NCP (ANCP) viewed the mediation interventions as
successful and in December 2008, following several months of negotiations with an independent mediator, an
agreement was reached. US$ 1.8 million in revised compensation was agreed and the companies committed
to allocate a further US$ 1.3 million for projects. In addition, Cerrejon hired a Social Responsibility Manager
to coordinate future relocation negotiations. For their part however, the complainants had asked that the
ANCP assume an ongoing oversight role in the implementation of the agreements, until all 5 communities
had negotiated a binding agreement with Cerrejon. They asked for this oversight given the slowness of the
reallocation procedures. The ANCP did not concede to take on such a role, pointing out that its role was “intended
to be about mediation and does not encompass managing or overseeing the negotiations or resettlement
process,” although it would be “available to deal with further specific issues should any arise.”
In short, the NCP helped mediate resolution of a specific complaint arising from violation of the OECD guidelines.
Yet it did not assure implementation of the commitments made. This outcome was the result of a major, costly,
well-organized and internationally coordinated initiative that involved commitments by lawyers in Colombia
(for example the Colectivo de Abogados José Alvear Restrepo) and Australia, and inputs from national and
international Civil Society Organizations (CSOs). It is hard to estimate how much time and money it required; an
evaluation of its implementation is needed to assess concrete outcomes.
Sources: Australian National Contact Point (2009); Egger (2010); Solly (2009); http://www.cerrejon.com/site/english/ourcompany.aspx, accessed May 2012.
41
The movement against Greystar’s proposed Angostura gold mine in Santander sparked one of the first major mobilizations against a
proposed mine in Colombia, bringing together groups from across the spectrum of ideologies. Colombians are worried that a project
in such a sensitive mountain watershed area (known as the paramo Santurbán) would contaminate the water affecting cities and
communities downstream, particularly given the proposed use of cyanide, which has been banned in the European Union. Greystar (now
known as Eco-Oro), which had received IFC financing for assessment work around this mine, is redrafting its plans.
In the case of the IFC, the situation is different, in that contracts with its clients are legally binding. Adherence
to the Performance Standards is a condition of loans; they are not voluntary. The Complaints Advisor
Ombudsperson (CAO) is the IFC’s complaints mechanism. If an investigation by the CAO finds evidence of human
rights or environmental safeguard breaches, it could in theory lead to sanction in the form of loss of financing.
Yet Coumans’ investigation could not “identify an example in which a mining company has lost funding from the
IFC or an Equator Principles Bank as a result of a community complaint.”144
Other voluntary codes do not include mechanisms that could lead to sanction or redress. The Voluntary
Principles (VPs), for example, encourage instituting grievance mechanisms at the project level – but as yet,
there is no established VP-wide complaints mechanism.145 The UN Global Compact provides only criteria for
de-listing companies that fail to report. However, neither project-level mediation146 nor de-listing guarantee
implementation of the commitments that companies make in signing on to these instruments; nor do they
provide sanctions, should companies fail to live up to their commitments.147
144
145
146
147
42
Coumans (2010:36).
Several VPs participants are launching a pilot project “to explore ways of verifying and guiding the ways that companies live up to the
commitments they make” (U.S. Department of State 2011); it remains to be seen whether the outcomes will include recommendations for
a complaints mechanism that could lead to sanctions and remedy. At the project level, the first test case of a member-company complaints
mechanism was put forth by Oxfam against Newmont, for alleged breaches of the VPs at its Yanacocha gold mine in northern Peru. A two-year
independent review was established to examine human rights practices at the mine, including alleged abuses by police and private security
forces hired to protect the mine. However, independent verification of the implementation of the recommendations has not taken place,
and several key recommendations were refused outright. According to Keith Slack of Oxfam, “The VPs report called for Yanacocha’s contracts
with the police to be published. The police would not agree to do this. The report also called on the company to end its relationship with Forza,
the private security contractor implicated in some of the abuses. They didn’t do this, claiming, among other things, that there wasn’t another
company that had the same capacity” (personal communication, April 2012). See also Oxfam (2009).
Oxfam’s (Hill 2010) community-company grievance resolution handbook for Australia provides useful lessons on what works and what doesn’t
at the company level. In the final analysis, however, and based on their own experience in establishing an NGO Ombudsperson’s office,
Oxfam’s handbook concludes that a rights-based framework needs to ground grievance mechanisms if they are to be effective, noting that
independent grievance mechanisms and company grievance mechanisms should be developed in consultation with diverse actors.
Following a review of voluntary mechanisms in protecting human rights in conflict-affected countries, Global Witness’s O’Sullivan concluded
that: “Voluntary frameworks like the Global Compact and OECD Guidelines are far too vague about what companies should or shouldn’t do in
conflict zones … Some companies talk about these frameworks as if they were a credit rating for human rights protection. In reality, they don’t
measure what companies actually do and have no meaningful sanctions for those whose actions contribute to human rights abuses” (cited in
Global Witness 2007).
Holding Extractive Companies to Account in Colombia 3.3.3 Criterion 3: Community participation and self-determination
There is very little discussion about community participation, self-determination or agency in Ruggie’s
framework. However, he stresses the State’s duty to protect, and the corporate sector’s responsibility to
respect human rights, without limiting these to specific rights. He thereby, in effect, recognizes the full range
of rights inherent to communities, including those of Indigenous and Tribal Peoples. The need to consider
international human rights instruments that pertain to specific contexts means that instruments such as ILO
Convention 169 and UNDRIP should be followed when dealing with ethnic communities, as should the rules
and regulations set out by these communities. And Ruggie’s emphasis on “effective” remedy – sanction and
reparation – means that communities’ rights and their visions for development should be upheld through
grievance mechanisms.
Analysis of CSR instruments
Sub-criterion: Participation by ethnic peoples in the formulation and design of the instrument, and
incorporation of their concerns in final instrument
Public input into the laws and policies that govern activities affecting a country’s citizens is a basic pillar of
democracy. And the participation of Indigenous and Tribal Peoples in the formulation of administrative acts,
laws, plans and projects that could affect their territories and rights is an internationally recognized and
fundamental right.
None of the CSR instruments reviewed here involved much participation in the design process by the peoples
who are most affected – namely indigenous, tribal and even peasant communities. The IFC Performance
Standards review had the most participation. Even so, there was no separate direct consultation for
Indigenous Peoples, as had been proposed initially; and in regional consultations, there was minimal
participation by Indigenous organizations.148 Other instruments, such as the GRI, have included Indigenous
organizations in some aspects of design.149 Yet most reviews are rushed through, and are considered less
than comprehensive.150 Often, it is up to the more well-resourced NGOs that work with mining-affected and
Indigenous and Tribal Peoples to attempt to provide these perspectives.
It is not surprising that Indigenous and Tribal Peoples have not been involved in the design of CSR instruments,
however. Considering the scale of other issues requiring their involvement – such as consultations on nationallevel regulations and policies – voluntary CSR instruments are not viewed as important enough to merit scarce
time and resources. This is especially true in light of the local realities in Colombia.
Sub-criterion: Provision and encouragement of community participation, consultation and consent –
specifically by Indigenous and Afro-Descendent peoples – in designing and assessing interventions at the
community level through the instrument
In terms of providing and encouraging community participation, consultation and consent by Indigenous and
Afro-Descendent Peoples, the IFC Performance Standards again tops the other CSR instruments reviewed here.
Indeed, it is the only instrument that recognizes and refers to consent in any detail.151 Yet the Standards remain
problematic, given that the client has the onus to document the process, and that there is no independent
verification process to which communities have input.
148
149
150
151
This was evident for example in the 2010 regional consultation that took place in Bogota, Colombia. See: http://www.bicusa.org/en/
Article.11954.aspx
For example, First Peoples Worldwide with the GRI.
For example, the most recent OECD Guidelines review.
The GRI does refer to the UNDRIP, and alludes to consent.
43
Sub-criterion: Support and promotion of the right to self-determination, where communities’ aspirations
regarding their development paths and their values are protected
As Coumans points out, communities are often forced to deal with CSR ‘professionals’ who come hand-in-hand
with companies proclaiming to implement certain standards. While the CSR standards may be voluntary for the
companies, communities are treated as if it is mandatory for them to engage with these consultants, simply
because they are there.152
This problem illuminates the need to build capacities within communities for ensuring that anyone who comes
onto their territories does so in an ethical manner, and under conditions determined by the communities
themselves. Ethical research principles include securing the free, prior and informed consent of communities
prior to initiating any research that affects them. This means that for any CSR consultant, obtaining the FPIC of
communities before accessing community territory or collecting community-level data should be mandatory.
Ethical research that respects the right to FPIC requires the building of awareness and capacities to strengthen
not only community processes, but also those of companies and their CSR consultants. Furthermore,
communities have the right to
have a say in who is involved in
“There is ample evidence to support the conclusion that
research on their lands, and how.
[CSR] policies often do not contain adequate protections
This should include the option of
for indigenous peoples rights, that they have
community experts participating in
been
applied selectively, sometimes not at all,
any intervention.
depending on political or other considerations and,
more generally, that they have not led to a marked
But, as Coumans emphasizes,
improvement in the majority of TNC’s performance with
a key problem is that the very
interventions – and the very nature
regards to human rights. While we do not advocate that
of CSR – are defined and driven by
TNCs should abandon developing and implementing
companies and their consultants
effective human and indigenous peoples’ rights policies,
on behalf of communities. These
we do not believe that this approach alone
activities and the interests that
will reduce rights violations by TNCs.”
motivate them are often at odds
Forest Peoples Programme and Tebtebba Foundation (2006)
with the interests, values and
submission to Ruggie
development paths communities set
for themselves. This critical tension
is at odds with a rights-based approach, through which self-determination, even in CSR design, would be upheld.
The Cauca and Caldas case studies in this paper provide community perspectives that illustrate these points.
In Brief
This review reveals that the CSR instruments touted as holding companies accountable for human rights
do not meet the requirements Ruggie sets out in his framework, and are inadequate to protect Colombian
communities against possible violations. Not only do most fall short in terms of appropriate scope (that is,
distinctly referencing the rights of Indigenous and ethnic peoples), but they also fail to establish mechanisms
that could assure compliance, or complaints processes that could lead to sanction and remedy.153
152
153
44
“CSR is in essence a set of voluntary practices to be carried out according to guidelines, or environmental and social standards, by mining
companies, most commonly on behalf of environments and communities (local, national, international) affected by their operations”
(Coumans 2010: 34).
It is important to note that the current UN Special Rapporteur on Indigenous Peoples rights, James Anaya, is currently conducting a scoping
exercise, consultations and informal discussions to further understanding on issues at the crossroads of extractives and Indigenous Peoples.
rights. Anaya will be presenting a report (to be made public) to the Human Rights Council in September 2012, that will be “practicallyoriented, and will help attempt to clarify the steps needed in the process of developing extractive projects that affect indigenous peoples if
these projects are to go forward. This process should include an inventory of the potential rights of indigenous peoples that could be affected
by a proposed project, as well as of course, a process of consultation with and seeking the agreement of affected indigenous peoples for the
proposed project, which I describe in some detail in my report.” (Anaya 2012). While attention to these issues is clearly welcome, the critical
issue Anaya’s report should also address is what to do in cases where Indigenous Peoples do not want projects taking place on or near their
ancestral lands. In this line, a United Nations Interagency Framework for Preventative Action has developed a draft document for practitioners
entitled “Extractive Industries and Conflict – Guidance Note for Practitioners” (2010) that mentions the particular vulnerabilities of Indigenous
Peoples dealing with the extractive sector in countries experiencing armed conflict.
Holding Extractive Companies to Account in Colombia 3.4 Home Government Duties to Protect Human Rights
Given the weaknesses of host states such as Colombia in upholding human rights both in law and on the
ground (see part 2 of this paper), and the shortcomings of the CSR instruments proposed, what are the
responsibilities of home governments in ensuring that their companies are not involved in human rights
violations overseas? What approaches are they taking, particularly in conflict-affected areas?
Home government duties to protect
Ruggie emphasizes that while there is no consensus among experts that “international law requires home
States to help prevent human rights abuses abroad by corporations based within their territories […] there is
increasing encouragement at the international level, including from the treaty bodies, for home States to
take regulatory action”154(emphasis added). This is true of Canada, which has been called upon to put in place
stronger accountability mechanisms, by the Commission overseeing implementation of the Convention on the
Elimination on Racial Discrimination (see Box 12).
Ruggie recapitulates the role of governments, who “should not assume they are helping business by failing
to provide adequate guidance for, or regulation of, the human rights impact of corporate activities. On the
contrary, the less governments do, the more they increase reputational and other risks to business.”155 In short,
CSR is far from the only mechanism to hold companies accountable, and governments should do more –
including regulating industry – to fulfil their responsibility to protect and uphold human rights.
Box 12: Commission for the Elimination of Racial Discrimination (CERD)
recommends Canada take legislative measures to hold its companies to account
In the case of Canada, CERD observed in 2007:1
[…] the Committee encourages the State party to take appropriate legislative or administrative measures to
prevent acts of transnational corporations registered in Canada which negatively impact on the enjoyment
of rights of indigenous peoples in territories outside Canada. In particular, the Committee recommends that
the State party explore ways to hold transnational corporations registered in Canada accountable.2
These directions were then re-stated in CERD’s 2012 concluding observations, which noted that while Canada
“has enacted a Corporate Responsibility Strategy, the Committee is concerned that the State has not yet adopted
measures with regard to transnational corporations registered in Canada whose activities negatively impact the
rights of indigenous peoples outside Canada, in particular in mining activities (art. 5).”3
These recommendations are in line with the growing debate in Canada on the failure of current government
policy to address adequately potential human rights violations and environmental impacts by companies
registered in Canada, and operating overseas. Indeed, there are increasing reports of Canadian companies
involved in mining-related conflicts and human rights abuses. According to a recent report commissioned by the
Prospectors and Developers Association of Canada, Canadian companies are responsible for three times as many
mining-related conflicts as their closest peer, Australia. Latin America sees the largest numbers of mining-related
conflict fueled by Canadian companies, comprising 32% of recorded incidents.
Sources: CERD (2007, 2012); Canadian Centre for the Study of Resource Conflict (2009).
1
2
3
154
155
Citing articles 2.1 (d), 4 (a) and (b) of the Convention, and general recommendation no. 23 (1997) on the rights of indigenous peoples.
CERD/C/CAN/CO/18, 25 May 2007. Paragraph 17.
CERD/C/CAN/CO/19-20, 9 March 2012. Paragraph 14.
Ruggie (2008: Para 19), citing his 2007 report. He states also: “To help States interpret how this duty applies under the core United Nations
human rights conventions, the treaty monitoring bodies generally recommend that States take all necessary steps to protect against such
abuse, including to prevent, investigate and punish the abuse, and to provide access to redress. States have discretion to decide what measures
to take, but the treaty bodies indicate that both regulation and adjudication of corporate activities vis-à-vis human rights are appropriate.”
Ruggie (2008: para 22).
45
3.4.1 Current Government Approaches
Home governments have approached corporate accountability issues in different ways, ranging from reliance
on CSR to stronger measures, like regulation.
The Government of Canada, for example, has opted for a corporate responsibility strategy based solely on
promoting the use of voluntary CSR instruments, despite being home to the largest number of exploration
companies in the world, and despite evidence that its companies account for most reported mining-related
conflicts (see Box 12).156 Canada’s policy, “Building the Canadian Advantage” is the much-criticized response
to a heated debate in Canada’s Parliament and across the country around the need for accountability. In
2006, following investigations by members of Parliament, the government launched a series of national CSR
roundtables that brought together representatives from NGOs, unions, academia, government departments
and the private sector to discuss how to best hold the Canadian extractive industry in developing countries
to account. A multi-partite advisory group was established; and a key unanimous recommendation157was the
establishment of both an independent ombudsman and a Tripartite Compliance Review Committee. While the
ombudsman’s office would investigate and report on complaints, the Committee would recommend actions to
be taken. These could include the withdrawal of financial and/or non-financial services by the Government of
Canada, in the event of serious non-compliance.158
But when Canada’s official response came two years later, it did not heed the advisory group’s
recommendation. Instead, in October 2009, Canada established a CSR counsellor. This office has a weak
mandate that provides no incentives for companies to change their behaviour. The CSR counsellor will
review – rather than investigate – complaints, and this only with the consent of the companies involved. In an
unusual twist, she will also review complaints by companies against civil society organizations or individuals.159
Ultimately, she advises stakeholders on the implementation of the voluntary CSR guidelines Canada has
endorsed (the IFC Performance Standards, the Voluntary Principles on Security and Human Rights, the OECD
Guidelines for Multinational Enterprises, and the Global Reporting Initiative).160
Nonetheless, public demand for a stronger mechanism is mounting, as witnessed in the narrow defeat in
Canada’s House of Commons of proposed accountability regulation in 2010. Had Bill C-300, An Act Respecting
Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries, passed, a complaints
mechanism would have been established that could have led to sanctions for companies violating Canada’s
CSR framework. Specific sanctions included the withdrawal of public and financial support, based on the
consensus recommendations of the CSR roundtable advisory group. A new Bill has subsequently been drafted
for consideration by Parliament.161 Given that Canada is increasing its extractive activities to meet global
demand, it is imperative to establish a stronger complaints mechanism.162 163
156
157
158
159
160
161
162
163
46
This discussion is adapted from Weitzner (2002).
Agreed on by the executive director of the Prospectors and Developers Association of Canada and the president of the Mining Association of
Canada.
Advisory Group (2007: 23-24).
The current Counsellor has acknowledged that she is unaware of any review/complaints process that works this way. Already, companies have
many processes at their disposal to launch procedures against NGOs or individuals, and they have done so. For a more in-depth discussion
see Amnesty International Canada, Friends of the Earth Canada, Halifax Initiative, KAIROS: Canadian Ecumenical Justice Initiatives; Mennonite
Central Committee Canada, MiningWatch Canada, Publish What You Pay – Canada, Steelworkers Humanity Fund, and the United Church of
Canada (2010).
Government of Canada (2009).
Peter Julian’s Bill C-323, The International Protection & Promotion of Human Rights Act. “This bill mirrors the US’s Alien Torts Claims Act….
[It] calls for extending the authority of the Federal Court system to protect foreign citizens against a broad range of human rights violations
committed by Canadian and non-Canadian corporations and persons operating outside Canada. It would allow lawsuits in Canada for a host
of universal human rights violations, such as genocide or torture, as well as activities that significantly destroy the environment or violate key
international labour rights” (Peter Julian 2011).
Canadian CSR Counsellor Marketa Evans (2012) quotes Natural Resources Canada on Canadian mining overseas having ‘surged’ in the past
decade: from about CAD $30 billion to over $130 billion in 2010. She says that “Virtually all growth has come in Africa and Latin America” and
in countries where there is “high or extreme risk” on social or political metrics, and that “Yet these are also the countries courting resource
investment as critical to poverty reduction, employment growth and tax revenue.”
That Canada lags behind other countries in regulating its companies overseas has been highlighted by many. See, for example Gee (2011).
Holding Extractive Companies to Account in Colombia Canadian youth participate
in a demonstration
on Parliament Hill in
support of Bill C-300. The
proposed legislation, which
would have required the
Government of Canada to
investigate alleged abuses
by publicly-supported
mining companies and
could have resulted in the
withdrawl of funding, was
defeated by just six votes in
October 2010.
Photo: Patrick Hollier
Canada is not the only country where extractive companies are under scrutiny, and where there is public
pressure for home country regulation. Recent debates have taken place in the European Union, Sweden,
Holland, Norway, Denmark, the United Kingdom, and the United States, among other countries.164
Some of these debates have led to regulation. In the US, for example, the Dodd-Frank Wall Street Reform and
Consumer Protection Act passed in July 2010. This Act promotes responsible mining by requiring US-listed
companies to report (to the Securities and Exchange Commission) their payments to foreign governments,
and to track minerals used, to ensure that they are conflict free.165 Companies that fail to report all payments,
project by project and country by country, are excluded from US capital markets.166
The Dodd-Frank Act has had uptake and impacts in other countries as well. The European Commission, for
example, is considering continent-wide legislation requiring that European companies disclose information
on their payments to national governments, as a means to assess the benefits of contracts with the extractive
sector.167 In Canada, a new Parliamentary Bill proposes that Canadian companies that purchase minerals
from the Great Lakes Region of Africa be required to take several steps, including: tracking the minerals from
extraction to final use, determining whether payments have been made to illegal armed groups, and refraining
from purchasing minerals if this is found to be the case.168
Two ripple initiatives are the Tin Supply Chain Initiative (iTSCi) of the International Tin Industry Association
– which has led Rwanda’s Geology and Mines Department (GMD) to suspend five companies169 – and the
World Gold Council’s Conflict Gold initiative, a conflict-free gold and chain of custody certification framework
designed for large-scale mining companies (currently in development).170 And as mentioned earlier, the OECD
is establishing due diligence for conflict-free minerals.
164
165
166
167
168
169
170
See Drohan (2010) for a critical comparison of these approaches.
Dodd-Frank Wall Street Reform and Consumer Protection Act (2010). As is discussed further in this document, the US also has in place
legislation to hold companies to account through domestic courts, namely the Alien Tort Claims Act (1789).
Industry leaders have pushed back against arguments that such regulatory approaches should go further than voluntary initiatives like the
Extractive Industry Transparency Initiative (EITI). ICMM’s Anthony Hodge (2011), for example, states that the EITI enjoys widespread buy-in
and “has strengthened dialogue and trust between government, civil society and companies in many places where it has not always been
in plentiful supply. Mandatory reporting imposed by extraterritorial legislation may have a part to play but it should not seek to supplant a
process that creates accountability and checks against corruption where it is needed most - in country.”
According to some, the only way such regulation could be truly effective is if this information is disclosed not only for the country level, but
also for the project level; and if companies include “other information on profits, sales, production levels and reserves that would enable
countries to assess whether they are receiving a good deal” (Cook 2011).
Bill C-571, An Act respecting corporate practices relating to the purchase of minerals from the Great Lakes Region of Africa, was proposed by
MP Paul Dewar of Canada’s New Democratic Party, and received first reading on September 30, 2010.
The initiative helps to protect the livelihoods of thousands of artisanal miners who would otherwise be in ‘embargoed’ areas if they could not
show that their minerals are conflict free. Indeed, one of the perverse or unintended consequences of the Dodd-Frank Act is that artisanal
miners in conflict-affected States are negatively affected through embargoes on trade in conflict minerals; initiatives such as iTSCi help address
this unintended outcome, while at the same time helping authorities regulate the sector (Pact 2012).
Burgert (2011).
47
Other debates have led to the establishment of hybrid regulation/market-based mechanisms.171 Guided by
a Council of Ethics that regularly reviews its investments, Norway’s Government Pension Fund – also known
as Norway’s Oil Fund – can pressure companies to behave responsibly for fear of being publicly shamed and
de-listed. Among the companies it has de-listed are two Canadian miners, Barrick Gold172 and Saskatchewan
Potash Corporation.173 While Norwegian civil society has lauded this mechanism, it has also criticized its
government’s CSR policy for not putting in place accountability mechanisms that could lead to potential
sanctions on Norwegian companies.174
Still other debates have targeted the establishment of strong oversight mechanisms. Denmark, for example, is
considering establishing an Ombudsperson on CSR.175 It remains to be seen whether this office will go beyond
that of Canada’s CSR Counsellor, and firmly embrace Ruggie’s effectiveness criteria, including sanction and
remedy. In the UK, civil society organizations have outlined to Parliament what they consider an effective
complaints mechanism, involving the establishment of a commission on business and human rights to
encompass the work of the NCP, but to do it more effectively. It would operate as “a dispute resolution body
with a mandate to receive, investigate and settle complaints against UK parent companies relating to abuse in
other countries”.176
Beyond regulatory measures, much discussion has also taken place on judicial remedies and the critical issue
of community access to domestic court systems in a company’s home country.177 The US Alien Torts Claims Act
is being used to sue even non-US companies for harms suffered abroad, and more than forty cases have been
brought against parent and non-US subsidiaries under this statute since the first was filed in 1993.178 However,
the procedure is arduous, long, and expensive, with uncertain outcomes (see Box 13). Cases have also
been brought to the Courts in the United Kingdom179 and to Canadian courts, particularly in the province
of Quebec. But more needs to be done to improve access, and questions around extra-territoriality come
to the foreground.180 Further obstacles for home courts include the issue of local subsidiaries versus
parent companies (although parent companies continue to be sued as responsible even for actions of their
subsidiaries), and whether the courts may dismiss a case if they determine there is a more appropriate forum
for the complaint.181
171
172
173
174
175
176
177
178
179
180
181
48
National pension plan funds can also play a large role in affecting the bottom line of companies, if they decide to divest — in effect,
sanctioning companies. A major Dutch pension plan (Pensioenfonds Zorg en Welzijn — PFZW), for example, recently adopted a guideline for
socially responsible investment in companies which operate in conflict zones. This has led to divestment from several companies on human
rights grounds. See Adri Nieuwhof and Guus Hoelen (2010).
Following allegations of severe human rights violations at its operations in Tanzania and Papua New Guinea, including sexual assault, rape and
murder, Barrick Gold recently instituted a five-member corporate social advisory board to provide advice on community relations, sustainable
development, the environment, human rights and other issues. However, some see this as a public relations move, rather than one meant to
lead to preventative action (Wong 2012).
Barrick Gold was de-listed 30 Nov 2008, and Potash Corporation of Saskatchewan on 6 December 2011. Other extractive companies de-listed
include Vedanta, Rio Tinto and FreePort-McMoRan Copper and Gold. (http://www.regjeringen.no/nb/dep/fin/tema/statens_pensjonsfond/
ansvarlige-investeringer/selskaper-som-er-utelukket-fra-fondets-i.html?id=447122).
Arnegaard (personal communication, 2009).
Morrison (2011).
See for example, War on Want (2009); CORE and LSE (2009).
For an excellent comprehensive overview of barriers to remedy, examining both judicial and non-judicial mechanisms, see CORE and The
London School of Economics and Political Science (2009).
Ruggie (2008). According to Sherman and Lehr (2010) the Statute grants aliens the right to sue in US federal courts for violation of the
law of nations – and represents so far the largest body of domestic law on the subject. So far there have been only three jury trials, which
resulted in two verdicts in favour of the defendants, and one for the plaintiffs. The cases involved: 1) Chevron in Nigeria; 2) a Bangladeshi
company, for arrest and torture of a business rival; 3) Drummond Coal in Colombia because of killings of union leaders at its mine. According
to Welsh (2010), Locarno and Orcasita were murdered on March 12, 2001 by paramilitaries while traveling by bus from the Drummond mine
to Valledupur, where they lived. Lorcarno was shot dead on the spot, while Orcasita’s body was found later with signs of torture. Locarno’s
successor as president of the labour union, Gustavo Soler, was murdered seven months later. Alien Torts Statute (ATS) claims are based on
complicity theories, such as aiding and abetting. Under the ATS, courts have required: 1) assistance by an act or omission with a substantial
effect on the commission of an international crime by a third party (actus rea); and 2) depending on the legal standard applied, knowledge of
intent (mens rea). (Sherman and Lehr 2010: p.7)
For example, in 2009 Peruvian farmers filed a case in the High Court of London against British Petroleum for “allegedly causing serious
damages to their land, crops and animals following the construction of pipelines in Peru” (Saguier 2010).
According to a 2008 Oxford University study, “the law of Canada regarding corporate social responsibility for acts committed by Canadian
corporations extraterritorially is currently insufficient … The Parliamentary Standing committee on Foreign Affairs and International Trade of
the House of Commons was correct in its conclusions that more needs to be done to allow non-nationals to sue in Canada for acts committed
by Canadian corporations abroad” (Oxford U. 2008: 46).
Ruggie (2008).
Holding Extractive Companies to Account in Colombia Box 13: Colombia and the US Alien Torts Claims Act
– Rodriguez v. Drummond Company
The following lengthy summary shows just how complex and drawn-out court processes are, driving home issues
of inaccessibility of effective remedy in foreign countries. The proceedings started in 2002 and are ongoing.
The case of Estate of Valmore Lacarno Rodriguez v. Drummond Company is the first Colombian case to reach trial
under the Alien Tort Claims Act (ATCA), a 1789 U.S. law that allows foreigners to sue American companies for their
conduct abroad.
In 2002, the families of three deceased Colombian labour leaders and the union they belonged to –
Sintramienergética – filed suit against Drummond Company, Inc. and its wholly-owned subsidiary Drummond Ltd.
in U.S. federal court. The plaintiffs alleged that Drummond hired Colombian paramilitaries to kill and torture the
three labour leaders in 2001. The case was brought under the ATCA, the U.S. Torture Victim Protection Act, and
Alabama state law.
Drummond sought dismissal of the case on several occasions.
In 2003, the court granted dismissal on the state law claims and one of the ATCA claims. But it declined to dismiss
the ATCA claims of extrajudicial killing and the denial of rights to associate and to organize.
In March 2007, the court ruled that the case against Drummond Ltd. would go to trial, but dismissed the case
against the parent company (Drummond Company). In June, the district court judge dismissed the wrongful death
claims but allowed the war crime allegations under the ATCA. The trial began in July, and after trial, the tenperson jury acquitted Drummond, finding that the company was not liable for the deaths of the three murdered
labour leaders.
On December 11, 2007, the plaintiffs filed to appeal the lower court’s verdict to the U.S. Court of Appeals. In
December 2008, the 11th Circuit Court of Appeals upheld the verdict.
In March 2009, the families of the three murdered men filed another suit against Drummond. This time, a key
witness who had been in prison during the trial had recently been released and was able to testify against
Drummond.
And in May 2009, two U.S. law firms filed a federal lawsuit against Drummond for its involvement in the murders
of sixty-seven Colombians. Allegations included that Drummond paid millions of dollars to the paramilitary
terrorist group United Self Defense Forces of Colombia (the AUC) to protect the company’s property and its U.S.
workers. According to the lawsuit, Drummond “allowed the AUC terrorists to set up a military base of operations
on its property, and supplied electric, food and fuel.” The lawsuit documents many allegations of violence against
people who were perceived as sympathetic to leftist guerilla groups or supportive of local union organizations,
including “innocent people killed in or near their homes or kidnapped to never to return home, their spouses and
children being beaten and tied up, and people being pulled off buses and summarily executed on the spot.” It
also describes a meeting between Drummond and the AUC in November 2000, when the company ordered the
execution of two union leaders.
On February 3, 2011, in a ruling hailed as a victory for the families of the murdered men and women, the 11th
U.S. Circuit Court of Appeals in Atlanta, Georgia found that the children of three of the murdered men had
standing to bring their suit in court. And in August 2011, the same Court rejected Drummond’s petition to
reconsider its position, thereby effectively standing behind its earlier rulings that corporations can be sued for
human rights violations.
Source: Excerpted and adapted from http://www.sourcewatch.org/index.php?title=Drummond; and http://www.earthrights.
org/blog/us-appeals-court-rules-corporations-are-not-immune-accountability-human-rights-violations.
49
Courtesy of RICL
Members of RICL discuss Auto 004, a Constitutional Court judgment issued in 2009, ordering the Government of Colombia to protect atrisk Indigenous Peoples, including the Embera Chamí. The Inter-American Court of Human Rights also ordered precautionary measures
to protect the cultural integrity of these People displaced and affected by the internal armed conflict.
3.5 Armed Conflict, State Responsibilities and No-Go Zones
How far are companies and governments willing to go for minerals, oil and gas when their extraction carries
real risks of serious human rights abuses? What are their responsibilities in this context? Or should they invest
at all in extractive activities in countries or regions where there is armed conflict?
Examined through Ruggie’s lens, the answer to avoiding complicity in human rights violations lies in
appropriate human rights due diligence. “The closer a business enterprise is to the State,” Ruggie states, “or
the more it relies on statutory authority or taxpayer support, the stronger the State’s policy rationale becomes
for ensuring that the enterprise respects human rights.” If State agencies such as export credit agencies do not
explicitly consider the actual and potential adverse effects of human rights by beneficiary enterprises, “they
put themselves at risk – in reputational, financial, political and potentially legal terms – for supporting any such
harm, and they may add to the human rights challenges faced by the recipient State.”182 He continues:
“Given these risks, States should encourage and where appropriate require human rights due diligence
by the agencies themselves and by those business enterprises or projects receiving their support. A
requirement for human rights due diligence is most likely to be appropriate when the nature of
business operations or operating contexts pose significant risk to human rights.” (emphasis added)183
As described particularly in Part 2 of this paper, business operations in Colombia – and in any country where
there is armed conflict – pose significant risks to human rights. Indeed, John Morrison, Executive Director
of the Institute for Human Rights and Business has stated that the threshold of due diligence for companies
182
183
50
Ruggie (2011: 9).
Ruggie (2011: 10).
Holding Extractive Companies to Account in Colombia working in Colombia will be significantly higher than for other countries, and is not dependent on the size
of the company. He asks: “What about the small Canadian mining contractor whose actions affect a whole
community?”184 Nor should the stage of the mining activity limit due diligence. The early prospecting and
exploration stage can have significant impacts, and yet – as will be discussed below in the case studies of Cauca
and Caldas – it is not included fully in self-reporting by companies (or their junior joint venture partners), nor
are its human rights and environmental impacts fully assessed.
For companies considering operating in Colombia, it is important to be aware of not only issues pertaining to
ancestral lands and ethnic rights, but also the repatriation of land to victims of forced internal displacement.
Some 3.7 million people have been forcibly displaced by the state or following violent acts by illegal armed
groups, with over 6 million hectares of land estimated to have been wrongfully appropriated.185 As these
people are repatriated and lands restituted, companies need to be extremely cautious in land acquisition.
In these circumstances, Ruggie recommends that States should “ensure that they can effectively oversee the
enterprises’ activities, including through the provision of adequate independent monitoring and accountability
measures.” Terms of contracts should promote awareness and respect for human rights, “with due regards to
States’ relevant obligations under national and international law.”
His specific recommendations for States to ensure that business enterprises operating in conflict-affected areas
are not involved in gross human rights abuses include:
a) “Engaging at the earliest stage possible with business enterprises to help them identify, prevent and
mitigate human rights-related risks of their activities and business relations;
b) Providing adequate assistance to business enterprises to assess and address the heightened risks of
abuses, paying special attention to both gender-based and sexual violence;
c) Denying access to public support and services for a business enterprise that is involved in gross
human rights abuses and refuses to cooperate in addressing the situation;
d) Ensuring that their current policies, legislation, regulation and enforcement measures are effective
in addressing the risk of business involvement in gross human rights abuses.”(emphasis added)186
The Special Rapporteur also calls for greater policy coherence among government agencies, the adoption of
triggers, and potential sanctions, particularly in conflict-affected areas where the host state might be unable to
protect human rights adequately. He says that home States should:
• “foster closer cooperation among their development assistance agencies, foreign and trade ministries,
and export finance institution in their capitals and within their embassies, as well as between these
agencies and host Government actors;”
• “develop early-warning indicators187 to alert Government agencies and business enterprises to
problems;” and
• “attach appropriate consequences to any failure by enterprises to cooperate in these contexts,
including by denying or withdrawing existing public support or services, or where this is not possible,
denying their future provision.”188
184
185
186
187
188
Morrison (2011).
Morrison (2011) citing http://www.accionsocial.gov.co/estadisticasDesplazados/generalesPD.aspx?idRpt=1.
Ruggie (2011: 10-11), Principle 7.
“They could then provide or facilitate access to information and advice – whether from home or their overseas embassies – to help business
address the heightened human rights risks and ensure they act appropriately when engaging with local actors. There may be a point at which
the home State would withdraw its support altogether. None of this detracts from host State duties to protect against all corporate abuse
within their jurisdictions, including conflict zones.” Ruggie (2008: Para. 49).
Ruggie (2011: 11)
51
3.5.1 Appropriate Assessment Tools for examining impacts
on Ethnic Communities in Colombia – Rights & Democracy’s
Human Rights Impact Assessment Tool and CBD’s Akwé:Kon Guidelines
While there has been much discussion on human rights due diligence, with several tools developed to help
guide companies and governments,189one that has proven useful in the context of extractives – particularly
where the human rights of ethnic communities in conflict zones could be affected – is Rights & Democracy’s
Human Rights Impact Assessment tool.190 This tool is grounded in the recognition that communities are rightsholders, rather than stakeholders. It uses international human rights norms as the baseline for assessment in
a participatory process that is driven by the communities themselves. This process is in line with the rights to
self-determination and free, prior and informed consent.
The Akwé:Kon Guidelines,191 developed by Indigenous Peoples themselves and adopted by the Parties to the
Convention on Biological Diversity, are another important tool when considering projects that could affect
the cultural integrity and territories of Indigenous and Tribal Peoples. They have been upheld by the InterAmerican Court of Human Rights as the most appropriate guidelines for due diligence for projects affecting
Indigenous territories. While it is essential for companies and States to have tools that they can apply, it is
fundamental that communities undertake their own assessment of impacts, and that these be considered in
decision-making – the Akwé:kon Guidelines are an invaluable tool for this purpose.
3.5.2 No-Go Zones due to Armed Conflict
Ruggie’s recommendations do not mention explicitly the possibility of ‘no-go’ zones where there is armed
conflict, but many international experts – including those involved in the World Bank’s Extractive Industries
Review (2001-2003) – have concluded that countries in armed conflict should be no-go zones for foreign
extractive projects.192
The EIR concluded that “the absence of armed conflict or of a high risk of such conflict”193 is a key criterion for
extractives governance, and that “under no circumstances” should the IFC and the Multilateral Investment
Guarantee Agency (MIGA) finance oil, gas, and mining projects in these settings.194 The potential for fuelling
conflict and human rights abuse is deemed far too serious a possibility to merit such investments, on moral
grounds alone, but also when considering the reputational and economic consequences.195
Colombian academics and social activists have determined that extractives are indeed fueling conflict in
the current national context. According to Camilo González Posso, Director of the NGO Indepaz, “Violence
is a productive force enabling the political and economic model of the last 60 years in Colombia. The bond
between conflict and businesses has generated a relationship between criminal organizations, subversive
groups, and extractive projects.” The gold boom is also creating new grounds for escalating conflict, as
capital is shifted from drug trafficking into mining, thereby fuelling a dispute over territory and confrontation
between drug traffickers and guerillas. “This is not a conducive context in which to negotiate, because it is a
context of violence,” says Posso, adding that “More than half of the country is involved in territorial disputes.”
189
190
191
192
193
194
195
52
See for example, International Alert’s (2005) conflict-sensitive business practice tool for extractive industries; the ‘Guide for integrating
human rights into business management’ produced by the Business Leaders Initiative on Human Rights (BLIHR), the UN Global Compact, and
the Office of the UN High Commissioner for Human Rights (OHCHR); and the Danish Institute for Human Rights ‘Human Rights Compliance
Assessment’. The ICMM has also recently issued a human rights toolkit.
http://www.humanrightsimpact.org/themes/business-centre/tools/resources/view/60/user_hria_toolsets/.
The Akwé:Kon Guidelines are formally known as: Voluntary guidelines for the conduct of cultural, environmental and social impact
assessments regarding developments proposed to take place on, or which are likely to impact on, sacred sites and on lands and waters
traditionally occupied or used by indigenous and local communities. http://www.cbd.int/doc/publications/akwe-brochure-en.pdf.
More recently, see for example Goodland (2012a; 2012b).
Salim (2003a: 2).
Salim (2003b: 46-7).
Drohan (2007) has argued that “conflict zones should be no-go areas for Canadian companies on moral grounds alone,” as “the money foreign
firms provide, even if it is in seemingly legitimate fees for licenses or tax payments, can help fuel further fighting and increase the loss of life.”
Holding Extractive Companies to Account in Colombia Box 14: Recommendations for Companies from the
Office of the UN High Commissioner on Human Rights in Colombia
Concrete measures that companies could implement include:
•
Increase their knowledge of international norms applicable to ethnic groups;
•
Undertake dialogues that embrace democratic perspectives; this implies maintaining an open attitude
with regards to the legitimate claims (reivindicaciones) of ethnic groups;
•
Develop codes of conduct and internal policies that respect human rights and that are aligned with
international norms, and that are implemented in planning projects;
•
Establish informal grievance mechanisms. These could include the participation of relevant state
agencies, and be under their supervision.
Source: Salazar (2011). Author’s translation.
He concludes: “There should be no investment in the context of a war economy. Companies need security but
they should not get involved in warfare or with the military. If they get involved, their investment contradicts
human rights, peace and the interest of the country.”196
The North-South Institute’s research in Colombia has not led to the conclusion that the country should be
declared a ‘no-go’ zone in its entirety. Instead, research in Phase I (2000-2002) determined that no-go zones
should be established, with criteria determined through participatory research and in careful consultation with
Indigenous and Afro-Descendent communities and their representative organizations. Our ongoing research
with Colombian counterparts has led to the conceptualization of two types of no-go zones (aside from those
already determined by the Colombian government, for ecologically sensitive areas and National Parks).
The first are no-go zones declared by communities to protect their cultural survival. These could include an
entire Indigenous or Afro-Descendent collective territory, and result from either land-use planning or a ‘no’
decision on a proposed project – a decision that comes from the legitimate and representative authorities
and follows appropriate FPIC processes.197 The second are no-go zones related to armed conflict. Possible sites
include those where: there have been massacres; violent deaths are higher than the national average;198 there
has been forced displacement; armed groups are operating; where precautionary measures or safeguards
plans have been ordered by the Inter-American Court on Human Rights or Colombia’s Constitutional Court
to protect social leaders and communities; and where early warnings have been issued by Colombia’s
ombudsperson’s office.199 In these contexts, extractive activities should be temporarily suspended until such
time as there are appropriate conditions of peace and respect for fundamental ethnic rights (identity, culture,
territory, well-being, participation, and self-determination).
In considering overall risks regarding investments in Colombia, companies and their home governments need to
ensure not only that they implement the national framework for human rights and environmental protection,200
196
197
198
199
200
All citations are from a presentation given by Camilo Gonzales Posso in August 2011 at a national workshop on the impacts of extractives –
found in NSI, RICL, PCN (2012).
This is the case for example, with our partner Resguardo Indígena Cañamomo Lomaprieta in Caldas, who have issued their own government
resolution declaring the Indigenous Reserve a no-go zone for large-scale mining due to the small land-base that currently supports its people.
It is also the case with the Afro-Descendent communities in the municipality of Timbiqui, who in their land-use and management plan have
prohibited processes related to exploring for and developing large-scale mining, because of negative environmental impacts (Asociación de
Consejos Comunitarios del Municipio de Timbiqui, May2010).
Figures available from Colombia’s ombudsperson’s office, the Office of the UN High Commissioner on Human Rights in Colombia, and the
President’s Office of Human Rights. Information on armed group locations is available from military maps.
The early warning system monitors, analyzes and reports on risks to civilians and possible violations of international law. Reports describe “the
local dynamics of armed conflict, the sources of threats, the individuals and populations at risk, an evaluation of the risk and recommendations
to reduce or eliminate threats.” They have been called “one of the best tools the Government has for preventing killings and other abuses in
Colombia.” (Alston 2010).
Canadian companies have made headlines for lack of rigorous assessment that complies with the Colombian environmental protection
53
El Cerrejon Coal mine
in the Guajira is often
held up as a model
for CSR; yet the
impacts on traditional
Wayuu and AfroColombian Peoples
have been enormous.
Colombian civil society
representatives note
that despite having
one of the largest coal
mines in the World,
this department is
one of the poorest in
Colombia.
Photo: Creative
Commons 2.0
but that they take additional measures to assess human rights risks in the face of armed conflict. Identifying and
respecting no-go zones using appropriate sources of due diligence following the criteria outlined above, would
go a great distance in helping to curb potential human rights violations and avoid complicity.
3.5.3 International accountability measures
Beyond government regulation, access to remedy, and due diligence in home countries that could lead to the
withdrawal of public support, there have been well-argued calls to look at how power relations are shaped
more broadly201 — and in this light, to consider establishing a global binding instrument.
Penelope Simons, for example, argues that a broader perspective is needed to examine the larger structures
that weaken host state protection in the first place, and to correct these.202 Solutions would include disabling
the current international legal architecture and international bodies whose structure and policies have
weakened host governments, and enabled power asymmetries and permissive environments; and then
reconstructing these through a human rights lens. In this scenario, free trade agreements and their restrictive
chapters limiting host government protection of human rights would be corrected through binding language
on human rights compliance.203
201
202
203
54
framework. Greystar Resources’ Angostura Project, for example, has been the subject of much controversy, both in Colombia and in
Canada, where the sub-standard ESIA was highlighted during the PDAC’s 2011 annual general meeting. On 23 March 2011, the Ministry of
Environment, Housing and Territorial Development denied a global environmental license to Greystar (Resolution 1015) due to, among other
things, its impact on fragile ecological systems (paramos), which are considered no-go zones for mining in Colombia, and the potential effects
that this ecological impact would have for the quality of life of local peoples in the area of influence, whether directly or indirectly.
Peter Utting (2005), for example, emphasizes the importance of examining the structural forces at play, and of ‘ratcheting up’ and ‘hardening’
CSR approaches towards complementary forms of ‘articulated regulation’ and accountability.
Simons (2012)
Unfortunately, human rights side-agreements included alongside FTAs seem to have no teeth at all, as witnessed by the failure of Canada to
report on May 15, 2012 on the impacts of the Canada-Colombia FTA (Barrett 2012).
Holding Extractive Companies to Account in Colombia This restructuring envisions moving forward, even if incrementally, with a possible international binding
framework to regulate corporate activity.204 However, as Simons laments:
“By limiting his recommendations to the clarification of legal norms …, while at the same time
cautioning against the adoption of a more general international treaty, Ruggie missed the opportunity
to push states and business actors out of their comfort zone. At the very least, a statement that
necessary follow-up to his work would be the eventual development of an international instrument
(or a range of instruments) imposing binding obligations on corporate actors and requiring
home states to regulate their corporate nationals would have helped to push the global debate
forward.”205 (emphasis added)
Instead, Ruggie has argued that such an instrument would in effect be voluntary because it would depend on
the willingness of individual countries to implement it, and because “no international enforcement mechanism
exists in this domain.”206 And in response to those calling for a global ombudsperson,207 he has cautioned that
potentially unachievable criteria would need to be in place to ground and make effective a body with such a
wide mandate.208
On the other hand, companies advocating a voluntarist approach “have yet to explain how one ever reaches
sufficient scale to make a difference, or how to pull the laggards along”. This paves the way for Ruggie’s
assertion that what is needed instead is “a smart mix of measures – national and international, mandatory and
voluntary”.209
3.6 Conclusion: Closing governance gaps, getting smarter faster
This review of the international literature on select CSR instruments reveals that on their own, they are
far from sufficient to uphold human rights on the ground, particularly where there is armed conflict. More
insidiously, they can mask human rights breaches,210 given their reliance on self-reporting and their lack of
independent verification.
Analyzed through the lens of John Ruggie’s Protect, Respect and Remedy framework, none of the instruments
provide adequate complaints mechanisms that could lead to sanction or remedy for violations. With the
exception of the IFC,211 none provide systems to address the ‘governance gaps’ that create a permissive
environment for companies, and are the ‘root’ of the problem, according to Ruggie.
In considering the ethnic rights to self-determination and free, prior and informed consent, the CSR review
finds that all the instruments were designed without the meaningful participation of, or input from, Indigenous
or Tribal Peoples. This was in part due to the lack of consultations targeted specifically at these groups, as well
as time and resource constraints that limit their involvement in voluntary initiatives. Instead, they channel
204
205
206
207
208
209
210
211
Simons (2012: 9-10) argues that: “There is already global recognition that corporate actors have obligations under international law not to
commit international crimes, and that they can, therefore, incur international criminal liability for complicity in, or commission of, egregious
violations of human rights that amount to such crimes. This could serve as a starting point for an international agreement. Although the HRC did
not adopt Ruggie’s recommendation on clarifying these legal standards, this does not mean that this goal should not continue to be pursued.”
Simons (2012: 41-42).
http://www.ethicalcorp.com/content.asp?ContentID=6533
The Permanent Peoples Tribunal (PPT), for example, examined 48 cases of human rights violations by European TNCs in Latin America, during
sessions in Vienna (2006), Lima (2008) and Madrid (2010). The 2010 PPT Verdict called on “the United Nations Human Rights Council to
draw up a compulsory code of conduct for transnational corporations, which takes into account the provisions of the ILO, the OECD and the
UN … Likewise, to request the provision of an appropriate international mechanism to monitor compliance, which should take the form of an
International Economic Court that deals with human rights violations in any shape or form and awards reparations for these by determining
liability; and, when relevant, criminal liability. A body, in short, before which individual or collective victims could bring their claims and
demands for justice.” (Brennan 2011)
http://www.ethicalcorp.com/content.asp?ContentID=6533
This is particularly true of the GRI, as will be further discussed in the case studies on Caldas and Cauca in relation to AngloGold Ashanti.
However, in reviewing publicly-available information, the CAO has not led to sanctions on or withdrawal of loans to mining companies.
55
resources into initiatives that they believe might lead to protection of their rights – such as legislative and
regulatory reform, and seeking recourse in domestic and international courts.212
In terms of substance, no instruments – with the exception of the IFC Performance Standards – explicitly
recognize Indigenous and Afro-Descendent Peoples’ right to free, prior and informed consent, or reference
relevant international instruments and jurisprudence protecting these rights.213 Instead, those that reference
respect for human rights in general, must be interpreted as also including respect for human rights pertaining
to Indigenous Peoples.214 Nonetheless, without appropriate independent verification, mechanisms for sanction
and remedy, and explicit guidelines or legislation on how to implement specific rights, there is no assurance
that companies will respect any or all of their human rights commitments and responsibilities.
Furthermore, because they are voluntary, CSR instruments imply that companies’ responsibilities to protect
human rights are also voluntary. This obscures the inherent nature of the human rights of Indigenous and
Tribal Peoples, and the fact that they must be respected in any projects and plans affecting their territories.
Yet ironically, as Coumans points
out, participation in companyowned CSR projects are seemingly
“International guidelines, best practices,
mandatory for communities. Not
and bitter experience suggest that it is inadvisable
only does this deny community
to proceed with mining in conflict areas, or at least to wait
agency in determining what
for the conflicts, whether or not they are mining related,
research and projects take place
to die down. New projects, especially in the extractive
on their territories, by whom
industries, often exacerbate pre-existing conflicts.
and how; but CSR projects may
In Colombia, this situation is manifested by the
divide communities, and pave
well-documented history of murders, intimidation,
the way for large-scale mines
and death threats, especially directed at anti-mining leaders,
that are not envisioned as part of
protesters’ children, and priests, suggesting that current areas
some communities’ development
of mining exploration and project development
paths. At the heart of the conflict
are indeed conflict zones.”
are different interests, values,
visions of development, and the
Robert Goodland (2012a)
issue of respecting rights to selfdetermination and FPIC even in the
process of conducting CSR research and projects. And there is a complete absence of evidence to demonstrate
that extractive projects have significantly improved well-being and quality of life in affected communities;
indeed, there is significant evidence to the contrary.
In terms of specific instruments that could help to enhance human rights due diligence, the review identified
the Akwé:Kon Guidelines of the Convention on Biological Diversity, and the Human Rights Impact Assessment
tool developed by Rights & Democracy, as key tools when assessing projects on or affecting Indigenous and
Tribal Peoples’ territories. They are founded upon respecting Peoples’ rights not only in terms of substance,
but process. Indeed, involving affected communities in the very assessment of impacts should be a cornerstone
in implementing respect for human rights; as should their inclusion in designing grievance mechanisms at the
project level, and determining independent verification of the implementation of human rights such as FPIC.
Looking beyond company responsibilities, the review highlights that while some progress has been made in
access to remedy in home states, access to home court systems is still problematic. The Colombian experience
with the US Alien Torts Claim Statute, for example, has taken ten years to proceed to hearing and trial. And in
the case of non-judicial complaints mechanisms provided by home governments, such as NCPs, the Colombian
experience again shows that such processes do not guarantee the implementation of mediated commitments.
212
213
214
56
It is perhaps no surprise that Indigenous peoples were most involved in the IFC Performance Standards review, as these Standards shape
legally-binding contracts; but even here, consultations were not Indigenous-specific, and few groups were able to participate.
The IFC and the GRI mention UNDRIP in the non-binding guidance notes.
Such as the Global Compact and the OECD guidelines. The latter mirrors Ruggie’s language on using relevant standards in special contexts.
Holding Extractive Companies to Account in Colombia In other instances, extremely weak nonjudicial mechanisms, such as Canada’s
CSR Counsellor, have so far yielded
little in the way of concrete outcomes
that respect human rights. The rights
of companies still appear to trump the
human rights of affected communities
in this complaint review mechanism.215
Human rights violations may therefore
continue unaddressed and unpunished.216
These findings reinforce the conclusion
that many have made so far: in order to
fulfill their responsibilities for protecting
human rights, home governments need to
do much more than rely on voluntary CSR
instruments to ensure that their companies
are not complicit in violations. This includes
implementing regulations and complaints
mechanisms that have teeth and can lead
to sanction and remedy, which would be
consistent with Ruggie’s framework.
Finally, in the context of countries
experiencing armed conflict, such as
Colombia, this review highlighted the
importance of identifying triggers for
when home governments and companies
Photo: Patrick Hollier
should consider not investing, and
Canadian companies are the largest investors in exploration of extractives
establishing due diligence procedures
in Colombia, comprising over 65% of mining and over 75% of oil and gas
exploration. With future investments set to increase around the world, and
accordingly. Considerations for no-go zones
particularly in Colombia, parliamentary debate is taking place in Canada on
within Colombia include areas where
how best to hold companies to account in the wake of growing reports of
there is active armed conflict; areas that
conflicts, and pressure from Canadian civil society.
ethnic communities have determined
are no-go zones for reasons of cultural
integrity; and areas where communities systematically determine that they do not want a given project or
plan. Strengthening capacities at the community level is critical in order to ensure that their self-determined
development paths are respected.
Ultimately, protecting human rights is the purview of governments, and States need “to play a key role in
regulating and adjudicating abuse by business enterprises or risk breaching their international obligations.”217
Heightened responsibilities exist in the case of investments in areas of armed conflict, where the risk of
egregious human rights violations is significant. While CSR has provided some useful global debate – and
incremental change in some cases218 – there is no doubt that the focus of discussions needs to shift towards
further government accountability, and the establishment of effective mechanisms to hold companies to
215
216
217
218
Companies are free to not engage in a complaint, or to walk away from discussions whenever they please, as happened in the first test case
that involved Excellon Resources Inc. operating in Mexico (Office of the Extractive Sector CSR Counsellor 2011).
MiningWatch Canada (2011) points out that non-judicial mechanisms may disempower and undermine the effective agency of communities,
not only because of the enormous power and resource imbalances that exist when they come face-to-face with companies, but because these
mechanisms often require parties to commit to confidentiality, which curbs the possibility of being engaged in parallel actions that pressure
the companies (using information obtained during discussions).
Ruggie (2007: Para. 7).
See Zarsky (2012), for example.
57
Box 15: No-Go Zones for Mining
One of the world’s leading experts on impact assessment has concluded that in addition to fragile watersheds,
and biodiversity, habitats and wildlands, the following types of areas should be off-limits to mining:
1. Indigenous Peoples’ Reserves: Areas in which Indigenous Peoples live, or on which they depend. In Colombia
this refers to Amerindian reserves, Indigenous Peoples, tribal people, forest dwellers, vulnerable ethnic
minorities, Afro-Colombianos, Afro-Descendents, Palenqueros, Raizales and Roma. About 30% of Colombian
land is occupied by Indigenous Peoples.
2. Conflict Zones: Areas of social conflict, especially armed conflict, which still afflicts much of Colombia.
Colombia may be entering a post-conflict era, but there is still a long way to go. Land grabbing and illegal
expansion of mining, cattle ranching, and oil palm plantations still are fuelled by violence.
3. Cultural Property: For example, an Indigenous Peoples’ religious site, sacred groves, battlefields,
archeological sites, petroglyphs, or rich fossil sites.
Source: Excerpted and adapted from Robert Goodland (2012a).
account for human rights impacts in both host and home states.219 Evidence shows that CSR instruments on
their own maintain the status quo and provide for effective impunity.
Ruggie points to a ‘smart mix’ of voluntary and mandatory instruments as the answer to issues at the
crossroads of business and human rights. It is true that more work needs to be done to strengthen CSR
frameworks, and that this work should continue, in order for these frameworks to cover all human rights, so
that commitments are verified in the field, and so appropriate grievance mechanisms are established. But it is
time to get smarter faster with regards to regulation (both in host and home countries) that upholds all human
rights, and to take action in establishing accessible complaints mechanisms that have teeth.220 These key
ingredients of the ‘smart mix’ have been missing for far too long.221
But what do key actors in Colombia think of CSR instruments and their effectiveness, in the national context?
The next part provides diverse perspectives to supplement the findings of this analysis, which was based on
the international literature.
219
220
221
58
This need to focus on government accountability over corporate social responsibility was, as a result of phase I of NSI’s research in this area,
emphasized in Weitzner’s (2002) synthesis report. See also Glennie (2012) for a recent opinion piece.
This recommendation was made even by consultants hired by Canadian industry to examine Bill C-300, a proposal for legislation to hold
Canadian companies to account. They concluded that: “voluntary uptake of global CSR norms needs to be instituted in tandem with
appropriate government accountability mechanisms in order to ensure that Canadian companies improve their practices in the developing
world. Government regulation, stiff accountability mechanisms, and CSR frameworks cannot stand alone. Regulation must not be divisive and
unilateral, but should come from collaborative dialogue.” Canadian Centre for the Study of Resource Conflict (2009: 16).
Morrison (2011) notes that Colombia will come up with its own ‘smart mix’ of approaches on: “when to incentivize, when to regulate and
when to get out of the way and let business innovate.” He suggests that in preparation for the UN Human Rights Council Colombia report
to the Universal Periodic Review mechanism in 2012, Colombia consider a new national human rights policy that includes a chapter on the
state’s duty to protect against human rights abuses involving non-state actors, as well as the responsibilities of business and how they relate
to public policy.
59
“The asymmetry, and the inequality
of conditions when a community comes
face-to-face with a powerful multinational is
enormous – it’s disproportionate.
The only counterweight is international alliances;
alliances with the countries, with organizations,
with multilateral control mechanisms in the
countries where the companies are headquartered.
That is the only way.”
Colombian NGO representative
“Invest very few resources in civil society,
and everything changes…
you can put all your money towards
changing policies, and nothing changes
… But how much did it cost to take that
journalist to take photos in the Choco?
It comes out in the paper,
and then right there and then,
the 30 dredges are impounded.”
Foreign government
representative in Colombia
Top: Collective mining, Cauca
Middle: Gold has skyrocketed in price over the last years
Bottom: El Cerrejon Coal mine in the Guajira is often held up
as a model for CSR; yet the impacts on traditional Wayuu
and Afro-Colombian territories have been enormous, and
Colombian civil society representatives note that despite
having one of the largest coal mines in the World, this
department is one of the poorest in the country.
60
Photos: Viviane Weitzner (top), Creative Commons (bottom)
Holding Extractive Companies to Account in Colombia Part 4: Perspectives on CSR instruments in protecting
human rights in Colombia
4.1 Introduction – A spectrum of knowledge
Against the synthesis in Part 3 of the international literature on the key strengths and weaknesses of CSR
instruments, this section puts into relief perspectives from diverse actors on the effectiveness of these
instruments in Colombia. It distills insights from companies, Colombian state officials, foreign governments,
and NGOs on both the effectiveness of CSR instruments and the current domestic and home state frameworks
for holding companies to account. It is based on confidential semi-structured interviews222 (see Appendix 1 for
interview guide), as well as numerous informal meetings that took place in Colombia during 2010 and 2011.
In general, interviews revealed that there is scant knowledge about the range of CSR instruments encouraged
for uptake in Colombia. Among company representatives, some had no knowledge of CSR instruments at all,
while others were better versed and could discuss advantages and disadvantages. For example, the former
president of Medoro Resources (a junior company investing in a potential large-scale open-pit gold mine that
will have major social, environmental and human rights impacts) had no knowledge at all of the Voluntary
Principles on Security and Human Rights (VPs). He also had no knowledge of the Prospectors and Developer’s
Association of Canada (PDAC)’s voluntary E3 guidelines (see Box 16), even though his company is a member
of PDAC.223 Moreover, the company’s then president stated there are no illegal armed groups operating in
the area, contrary to the accounts given by the people affected by the project. Indeed, only months after the
interview with the former company president, the parish priest who was a vocal opponent to this project
was murdered. Some speculate that this was at the hands of illegal armed actors.224 What is revealing in this
case is that the company was active for years, undertaking advanced exploration, without knowledge of, or
adhering to any CSR instruments encouraged for Colombia. At the time of the interview, the company was
also operating an underground mine. Furthermore, interviews highlighted prevalent misunderstandings with
regards to the legal framework and standards for companies listed on Canadian stock exchanges, operating
in Colombia. According to a legal counsel for the company, “since we are a public company, listed on the
Canadian stock exchange, our standards are extremely high. In Canada there are environmental laws that
we have to follow …” In fact, there are no standards that need to be followed in order to be listed on the
Canadian stock exchange,225 and companies listed there do not need to follow Canadian environmental law
or standards.226
Other junior companies interviewed were more aware of CSR standards. This likely because either their
projects were in conjunction with larger players, such as B2Gold with AngloGold Ashanti in the case of
Gramalote; or because they had obtained (and were seeking more) financing from international financial
institutions who condition their loans on meeting certain standards – as in the case of Greystar with the IFC.
Nonetheless, even amongst representatives from larger players such as AngloGold Ashanti, who are also
members of the International Council on Mining and Metals (ICMM), the depth of knowledge was superficial
at best; CSR and human rights seemed to be a very new consideration for all. (More information and analysis
on how these companies are implementing their CSR commitments are found in Part 5.)
222
223
224
225
226
A total of 23 semi-structured interviews were held, with numerous informal meetings with diverse actors throughout the project. Viviane
Weitzner, Gladys Jimeno and Plutarco Sandoval conducted these interviews.
Follow-up conversations with other company representatives, including legal counsel, revealed the same lack of awareness.
Since then, Gran Colombia Gold Ltd., the Canadian company that merged with Medoro Resources, has pledged that it will adopt the VPs,
according to the Embassy of Canada in Colombia (2011).
Unlike other stock exchanges, for example the Johannesburg Stock Exchange, where companies have to meet standards with regards to,
among others, reporting.
This perspective – that Canadian companies have extremely high standards – was heard several times throughout the interviews for this
project, exclusively from company and government officials.
61
Among the representatives from foreign embassies, and of the Colombian government, there was a similar
spectrum of knowledge, with some better versed in the details of particular CSR instruments. Yet they
were able to discuss strengths and weaknesses of these instruments in general, and their effectiveness in
Colombia. Perhaps unsurprisingly, members of civil society organizations working with communities were the
most well-versed and informed about the details of specific instruments. The following, then, is a synthesis
of these actors’ views on the effectiveness of CSR instruments for Colombia.
4.2 The Voluntary Principles —“A salute to the flag”?
Discussions around the VPs stimulated the most debate, with all interviewees (aside from two company
representatives) showing considerable knowledge about this instrument, how it is governed, and its reach
in Colombia. This is not surprising for a country experiencing armed conflict, where the VPs are encouraged
as the primary instrument for protecting human rights. Companies and the government have put in place a
Comité minero-energético, a mining-energy committee, to discuss implementing the VPs in Colombia.227 In
addition, a multi-partite initiative named Guias Colombia was launched in 2006, in an attempt to apply the
VPs with multinational extractives companies.228
Company perspectives focused very much on issues around implementing the VPs, rather than questioning
either their scope, or whether they are effective in upholding human rights in Colombia (beyond security
issues). According to one representative of a Canadian junior, “If a company is transparent, implementing
the VPs is not a big deal.” He added: “There are problems when people have skeletons in their closet.”
A representative of a larger company stated that the VPs are an effective and sufficient instrument for
upholding human rights in Colombia: “It’s very necessary. If one ‘grounds’ the instrument, taking it out of the
philosophical framework, and puts into practice concrete mechanisms, then the instrument is sufficient. But
if one commits to adopting the instrument, and then doesn’t put in place mechanisms, then this is a salute
to the flag.” Yet another Canadian junior, who displayed no knowledge of the instrument, made the excuse
that: “We’re pip squeak compared to others; we need to develop this over time.” Furthermore, he said, “we
have private security because this is a gold mine and there’s theft. We have had no contact with illegal armed
groups. It’s a safe area.” He added: “If they contact us, then I’ll tell you our plan.” For an operating gold mine,
with active exploration and plans for vast
expansion, this is a very reactive and risky
perspective that leaves the company and the
“If a company is transparent,
people exposed to human rights violations
implementing the VPs is not a big deal….
and threats from illegal actors.
There are problems when people have
skeletons in their closet.”
Foreign government officials and civil
Representative of a Canadian junior company
society representatives were more skeptical
about the VPs’ effectiveness in upholding
human rights, and their reach. The two
major limitations of the instrument pointed out were: a) its voluntary nature; and b) its focus on one right –
security – rather than the full range of human rights.
Several interviewees pointed out that the major limitations of the VPs lie in the facts that they are not
binding, enforceable, or monitored, and that complaints regarding lack of implementation are not legally
227
228
62
In 2010, this committee consisted of representatives from the Asociación Colombiana del Petróleo (ACP); Anglo American; AngloGold Ashanti;
Carbones El Cerrejón; Ecopetrol; Greystar; ISA-Interconexión Eléctrica SA; ISAGEN (Energía productiva), Occidental de Colombia; Rio Tinto;
Talisman; and Presidencia de la Republica.
Guias Colombia, officially launched in 2007, has now evolved into a forum that has gone beyond the VPs to embrace a variety of human
rights issues, including the development of a working base document to unite members in action and vision. Members include the
Asociación Nacional de Empresarios de Colombia (ANDI); Coca-Cola; Ecopetrol; Fundación Ideas Para la Paz; Isagen; Indupalma; International
Alert; Nestlé; Palmares; Programa de Derechos Humanos de la Vice-presidencia; Empresas Publicas de Medellin; and AngloGold Ashanti.
Observers include the International Business Leaders Forum, Tipiel and the Centro de Sostenibilidad de Sectores Estratégicos. See www.
derechoshumanos.gov.co.
Holding Extractive Companies to Account in Colombia Box 16: PDAC’s E3 Plus Standards and Ethnic Rights
E3 Plus is PDAC’s Framework for Responsible Mining. It is an aspirational set of voluntary principles for Canadian
explorers, which together with guidance notes, set out how to translate principles into action. There are eight
key principles, which include: adopting responsible governance and management; applying ethical business
practices; respecting human rights; committing to due diligence and risk assessment for projects; engaging host
communities and other affected and interested parties (including indigenous people); contributing to community
development and social wellbeing; protecting the environment; and safeguarding the health and safety of local
workers and the local population.
The objective of the human rights chapter is “to promote the principles of the United Nations Declaration of
Human Rights by incorporating them into policies and operational procedures for exploration.” And the objective
of the engagement principle is to “interact with communities, indigenous peoples, organizations, groups and
individuals on the basis of respect, inclusion and meaningful participation.”
There are several references to Indigenous Peoples’ rights throughout the guidance material, including
incorporation of traditional knowledge in decision-making, disclosing information in culturally appropriate
formats, and respecting “the rights of indigenous and tribal peoples and communities consistent with
international human rights standards.” Explicit reference is made here to ILO Convention 169 and the United
Nations Declaration on the Rights of Indigenous Peoples. Further, the principles state that “explorers should use
particular care in situations in which indigenous or tribal lands and resources and associated rights have not been
officially recognized or adequately demarcated or defined. In such cases, it is recommended that explorers treat
the situation as if the rights of the indigenous or tribal people are recognized in law and proceed accordingly.”
PDAC has also issued a toolkit entitled “Preventing Conflict in Exploration: A Toolkit for Explorers and Developers”.
If implemented, the principles and guidance could go a long way towards upholding ethnic rights and mitigating
conflict. The problem, however, is that these are aspirational and voluntary principles only. There is no
requirement for PDAC members to implement them — and no sanctions (for example, loss of membership) if they
do not. According to the former Executive Director of PDAC (Personal Communication, 2011), the Association is
considering certification schemes for these guidelines. Until such time as stronger mechanisms are put in place,
the aspirational voluntary guidelines will remain just that.
Source: http://pdac.ca/e3plus/
sanctioned. Moreover, in the words of one interviewee, by taking up the VPs as their only human rights
instrument, “companies are not fulfilling their full range of responsibilities regarding respecting human
rights.” A foreign government official stressed: “What I don’t like about this instrument is that it only looks at
security, it isn’t clear how the companies obtained the land. It’s a very small part of human rights. That’s why
I have so many doubts. It’s more like window dressing.”
Nonetheless, many pointed out that while the instrument’s scope and effectiveness is questionable — given
the state’s lack of implementation of its legal human rights framework, and the high percentage of impunity
companies enjoy229 — the VPs are “better than nothing.” One said that “The State has the responsibility
to uphold all the laws on human rights. If it doesn’t do its job, what can we do?” Another concurred,
stating “It is not Ivy League, but it is what we have.” Several stressed the need for civil society to monitor
implementation, as one key to the instrument becoming more effective.
On security issues, some noted that the instrument has been effective to a large degree. A representative
from civil society noted that the VPs are leading to a gradual shift in security schemes “away from relations
with criminal actors, to a different phase where security schemes are being institutionalized and where there
are agreements with the armed forces; but this doesn’t mean that all has been overcome in this regard.”
One outcome has been an exchange between companies and the government concerning risk maps, and
229
One foreign government official estimated that there is up to 90% impunity.
63
methodologies to develop risk maps; a related guideline will be drafted. Also, a foreign government official
noted that the VPs have led to coordination with the military forces of Colombia, which he said sends a clear
message to the military about the importance of respecting human rights in security arrangements.
“You don’t really see news items or discussions today on the issue of security,” a foreign government official
emphasized, adding that the VPs “are effective because people don’t perceive [security] as the key problem.”
Instead, other issues like access to and purchase
of lands — particularly given restitution of lands
“What I don’t like about this instrument
for victims of the armed conflict — and the right
is that it only looks at security, it isn’t clear
to free, prior and informed consultation and
how the companies obtained the land.
consent, are among the key human rights issues
It’s a very small part of human rights.
currently at the forefront of debates in Colombia,
That’s why I have so many doubts.
with issues of security taking a backseat.
It’s more like window dressing.”
Civil Society Organization (CSO) representatives
Foreign government representative
noted that although the VPs have been effective
with regards to security schemes, more work still
needs to be done. They also pointed out that to date there have not been any evaluations regarding the VPs
and the extractive industry in Colombia, and in this vacuum, it is difficult to tell how effective they have been.
4.2.1 Governing the VPs — Perspectives on the Comité minero-energético
Much discussion took place regarding the governance of the VPs, and the Comité minero-energético put in
place to discuss implementation. General comments included that the VPs and the Comité were important
for sparking debate on these issues. One CSO representative said that “The conflict affects everywhere and
there are companies that are linked with illegal armed groups,” and that “To be able to have discussions
about guidelines and activities that companies should take regarding security is important.” Another
noted that the committee is “a space for dialogue and calling [companies] to attention for any links with
paramilitaries;” but that its disadvantage is the “lack of concrete commitments.”
All groups interviewed highlighted as problematic both the lack of civil society participation and the fact that
the Comité had not succeeded in facilitating tri-partite dialogue. The involvement of NGOs has been almost
nil, with only one formal seat given to Fundación Ideas Para la Paz, and other NGOs invited from time to
time. According to one foreign government official, the Comité has not created a tripartite dialogue because
“companies have lots of distrust for NGOs, and civil society does not believe in the agenda of the committee.”
While (according to the same representative) there was an effort to pull together a civil society committee
of volunteers, CSOs said they could not participate as they would lose credibility at the grassroots; for their
part, companies found the space very challenging and were not pro-active in searching for civil society
participants. A CSO representative questioned why they would want to sit in that space at all, as “the
relationship is very asymmetrical, and companies look down to NGOs. One sits down at those tables and it
is very clear … when the dialogue takes place it’s very aggressive from companies to NGOs, but extremely
aggressive … I can’t see NGOs there.” Another stated that: “Human rights NGOs greatly distrust all these
instruments, so there’s a bit of a radical reaction, if you will. Also, there have been some very real problems
— serious problems — with each of these companies … corruption, environmental catastrophes, etc ... and
NGOs find it hard to sit at the table with actors responsible for these to discuss voluntary instruments. But
companies also have fears with regards to NGOs.”
While lack of tripartite dialogue was seen as a major flaw in how the VPs are implemented and governed
in Colombia, another key issue is how far companies are willing to go in interpreting the concept of CSR.
According to one CSO member, companies’ interpretation of CSR is now curtailed by the Government
of Colombia’s participation in the VPs. He noted that as soon as Colombia became part of the VPs, the
64
Holding Extractive Companies to Account in Colombia companies started saying they would apply the country’s legislation – instead of perhaps going even beyond
it, through CSR initiatives. “Companies say that everything depends on the legislation of the countries where
they are operating, and that they are tied to the laws and normative framework — and evidently right there,
the whole topic of ‘responsibility’ comes to an end. They are interested only in the terms the government
gives companies to work and invest in Colombia. There the whole topic of responsibility and human rights
gets lost, and the spirit of being more responsible is also lost.”
Another CSO representative speculated that the slow uptake of the VPs in Colombia and the ineffectiveness
of the committee may be because these did not emerge from the companies, Colombian officials or national
NGOs. Instead, these are the result of a shift in international policies, and the enormous international
pressure due to serious violations by paramilitaries – violations that spurred the governments of the
United States and the UK,
together with some NGOs and
companies, to examine the
“Human rights NGOs greatly distrust all these instruments,
issue of security. “This was not
so there’s a bit of a radical reaction, if you will.
the result of domestic policy,”
Also, there have been some very real problems — serious
the same representative stated,
problems — with each of these companies … corruption,
“but of international pressure”.
environmental catastrophes, etc ... and NGOs find it hard
to sit at the table with actors responsible for these
One foreign government official
to discuss voluntary instruments.
noted that his government is
But companies also have fears with regards to NGOs.”
very much in a wait-and-see
Colombian civil society representative
mode with the Comité mineroenergético, monitoring what is
taking place, and whether there
are any results. In general, the foreign government officials interviewed viewed it as extremely important
to increase civil society involvement in the committee, and to regularize the number of meetings (which is
another problem hampering effectiveness).
4.2.2 Conclusions on the VPs —“Better than nothing”
In general, a key conclusion from diverse perspectives on the VPs was that while it has made some strides
with regards to security schemes, the scope and reach of the instrument for protecting human rights in
Colombia is extremely limited. Nonetheless, “even if it is a weak instrument, and it isn’t the best instrument,
it is better than nothing” in the face of weak state governance and implementation of human rights
commitments. With respect to the future, interviewees suggested that the VPs and the Comité mineroenergetico could be strengthened if:
• It generates the political will to engage with human rights issues beyond security – an issue which,
according to one foreign government official, is no longer a problem, since “The more important issues
are prior consultation, consent and involuntary displacement, among other human rights issues.”
• The committee is opened up “as an instance of exchange between companies, communities and
NGOs and actors from civil society, then it could be a useful space; but if it continues to be closed and
it does not produce informative documents, then it will have been seven years of secrets.”
• Companies actually use and implement this instrument.
• It is monitored by civil society mechanisms.
What came across clearly is that the VPs are widely regarded as a suboptimal instrument. Interviewees cited
implementation of Colombia’s human rights instruments and commitments, home government mechanisms,
and market mechanisms as more effective in holding companies accountable, as discussed further below.
65
Photo: Creative Commons (CC BY-SA 2.0)
Initiatives such as the Extractive Industries Transparency Initiative (EITI) are working towards making extractives activities more
transparent; however, critics note that voluntary measures such as EITI, are simply too slow and ineffective in bringing about muchneeded concrete change that regulation concerning transparency might bring about.
4.3 Other CSR instruments
Of the other instruments encouraged in Colombia, very few participants had enough knowledge to speak
to these in detail. This section highlights briefly the perspectives that were shared on the IFC standards, the
UN Global Compact (UNGC), and the Global Reporting Initiative (GRI) in the context of Colombia. The World
Bank’s involuntary resettlement policy was also discussed.
On the IFC’s safeguard policies and performance standards, a Greystar representative noted that these had a
great impact in steering the company towards considering environmental, social and human rights issues in
its evaluations. In this case, the company was bound to adhere to these directives – and therefore they have
more force than the VPs and other optional instruments.230 The IFC was Greystar’s biggest shareholder, with
a 9% share.
Other companies stated that aside from Colombia’s laws, they are committed to adhering to World Bank
policies, particularly the World Bank’s involuntary resettlement policy, even though they are not receiving
financing from the Bank. Nonetheless, when asked how they define ‘broad community support’ or how they
know when communities have given consent regarding resettlement, the answer was far from clear.
Representatives of one junior company actively planning resettlement of an historic mining community231
defined consultation and consent as: “communication, it’s a dialogue between the community and actors
230
231
66
Nonetheless, this company’s environmental and social impact assessment hit the media for being sub-par, even in the eyes of Colombian
officials. This calls into question the real impact of the IFC standards on company actions.
Even though the project description for the proposed mine has noted yet been settled, and neither has the question of whether it will be an
open pit or an underground mine, which have huge implications on the need for, and scope of, potential resettlement. According to Robert
Goodland (Personal Communication, 2012), “involuntary resettlement is not consensual, it uses coercion and force. This is unacceptable for
privates. If FPIC has indeed been achieved then resettlement becomes consensual; the oustees consider that the resettlement arrangements
will make them promptly and significantly better off, at least in crass materialistic terms such as better housing, legal titles , better farms or
land, better schooling, clinic, water supply, access to river fishing and forest products, bike paths, and so on.”
Holding Extractive Companies to Account in Colombia who are in the area,” and noted that more than 1200 meetings had taken place to explain the project and
its benefits to the people affected. The company also said it would start the consultation process after the
exploration phase, and after determining the feasibility of the project.
This demonstrates ignorance of both the nature of the rights to consultation and free, prior and informed
consent, and of Colombian law and international best practice. By law, the company should have undertaken
appropriate consultation processes prior to perforation, and prior to prospecting and exploration, according
to ILO Convention 169 and Colombian law. And according to the World Bank’s IFC Performance Standards
that now adhere to free, prior and informed consent, the company should determine, together with the
communities, the appropriate process to follow to request their consent. Moreover, representatives stated
that their company does not accept either that there are ethnic groups in the area at all, or their right to
self-definition as Indigenous or Tribal. The company will not acknowledge the people as ethnic until the
State does, and will not recognize self-definition — they will recognize the people as Indigenous only if a
census reveals this to be the
case. This shows that although
companies can claim to be
“We agree with prior consultation and consent …
following Colombian laws and
We have a solid policy. Colombian legislation has fostered
internationally recognized
the so-called ‘title carousel’ and is not clear concerning
standards (such as the World
the
protection of ethnic groups. The law has not delimited
Bank’s resettlement policy),
ethnic
peoples’ zones as reserve areas, yet we respect
when asked for more detail,
those territories. We comply with the communities’ right to
it is clear that there are
say no to a project, although no law says we have to do it.”
misunderstandings about
both these bodies of laws and
Julio Cesar Uribe, AngloGold Ashanti, panel presentation,
policies. It is evident that these
national workshop on environmental and social impact
assessment, August 2011, Bogota.
are not being applied as they
should be in practice (for more
information, see Part 5a.)
CSOs note however, that companies’ statements that they will adhere to World Bank policies for
resettlement, as in the case of El Cerrejón coal mine, are extremely important hooks for calling these
companies to account and trying to influence the process so that standards are raised.
In terms of the UN Global Compact (UNGC), there was little knowledge among interviewees. A foreign
government representative noted that companies who say they are members of the Compact are favorably
regarded in her country. But when asked about whether the UNGC has had an impact on the ground in
Colombia in terms of increasing protection for human rights, she said that she had not seen evidence of that,
and that the instrument is “a bit of greenwash really.”
CSO representatives were far better versed on the UN Global Compact. One CSO closely involved in the
group promoting the UNGC since the early 2000s noted that it started off with a broad call to different
sectors – companies, unions, NGOs. This led to the creation of a diploma in capacity-strengthening for
companies, government agencies, and organizations in Colombia. But the same representative’s final analysis
of the instrument was that: “It has been a very slow process … companies have signed up to this as part of a
global inertia with regards to branding. In other words, a company that doesn’t have its stamp in the social
responsibility report, the annual report, the GRI or whatever it is, but that says that they are part of the
UNGC, or are currently being considered, gets branded.”
In addition, the annual reports produced in Colombia for the UNGC are extremely elementary, according
to the CSO representative: “There is no methodology in place that ensures in-depth reporting or third-party
evaluation or external verification, nothing like that. They simply inform that here are the 10 points of the
Global Compact, under point 1 we conducted so many workshops, we fulfilled so and so a commitment …
67
something extremely routine that was done at the office level, for example, where there was no participation
at all … It’s part of the public relations department.” In terms of reporting, El Cerrejón is often held up
as the model, and yet “if one examines the reports, they are completely formal and quite superficial …
sustainability reports using GRI methodology have subsumed the reports of the Global Compact. Almost all
companies have one chapter in their GRI reports on the Global Compact and human rights.” In short, “from
an initial idea to have a multi-sectorial agreement, [the UN Global Compact in Colombia] became reduced
to an instance purely for businesses. It is basically a friendship club for companies that are doing business in
Colombia, directed by AngloGold Ashanti.”
Perspectives on the GRI revolved mostly around its disadvantages, including:
• It is not obligatory to report everything. If a company decides not to do an activity on a specific
aspect, then they simply don’t report on it, and they receive a lower grade overall. “There is no
demand that they take action; it is
simply like an exam,” according to a
“From an initial idea to have a
CSO representative.
multi-sectoral agreement, [the UN Global
Compact in Colombia] became reduced
• It is shaped by the concept of
to an instance purely for businesses.
sustainable development, and so
It is basically a friendship club for
environmental issues are at the
companies
that are doing business in
heart of its methodology. It has
Colombia,
directed
by AngloGold Ashanti.”
not adapted to the more advanced
thinking within the UN regarding
Representative of a Colombian NGO
human rights. The UN makes it
very clear that the framework for
business and society should be human rights; environment should be subsumed under human rights.
• These reports are never disseminated at the community level, simply posted to the Internet, likely
because, in the words of one CSO representative, “there is a huge mistrust from the communities
… when they are presented concepts around CSR, they state ‘that is the same as a Renault 4 with
different paint’” — it is business as usual … so these reports really are for international propaganda …”
The value of these reports is that they can be used for increasing pressure on companies, particularly
by international pressure groups, including consumers. More analysis on how the GRI (and other CSR
instruments) are being applied in Colombia can be found in the case studies examined in Part 5.
4.4 Voluntary CSR instruments
– Tools for protecting human rights in Colombia?
General perspectives regarding the value of CSR instruments in protecting human rights in Colombia fell into
various categories. Namely, these instruments:
• Can help fill the governance gap that exists in implementing Colombian law and commitments in
practice; they are better than nothing, but they are not the only instrument available. Harnessing
consumer power and market pressure (see Box 17), together with building institutional capacities
within the Colombian government, would be more effective.
• Can be important hooks for outside actors to exert pressure on companies, but they have little direct
impact on human rights in and of themselves. In the words of one foreign government official: “All of
these principles and codes end up becoming very important, because at the end of the day, whomever
goes to try to shed the light on a company for not fulfilling these criteria will not only go to look at
68
Holding Extractive Companies to Account in Colombia Jose Santos Caicedo (left),
Proceso de Comunidades
Negras, takes notes in South
Africa, while a CSR point
person from Zimplats, a
platinum mining company,
fields questions about the
dam it proposes to build, to
fuel its activities. Like the
Salvajina dam in Cauca,
Colombia, this dam will
displace families from
their homelands, with
compensation seemingly still
lacking details. This event was
part of a 2012 Latin America Southern Africa learning tour
on extractives organized by
the Ford Foundation for its
grantees.
Photo:
Viviane Weitzner
the Colombian law; they will use these codes and non-fulfillment of these directives to attack the
company. So these codes are very important for the company from a practical point of view; they can
be used to try to affect their market presence. They are like an invisible bar … there can be a lot of
pressure, for example, by the European Union to not buy primary goods from Colombia if the company
has not complied with a World Bank directive, for example … these instruments become very useful
tools for commercial debate, but not so much with regards to the debate about human rights.”
• Are based on outdated concepts that do not take into account the human rights framework that
the UN has clearly mandated as the critical framework for corporate behavior (including ISO 2600).
Internationally, the discussion has gone beyond voluntarism, to address head on the accountability
of businesses with regards to human rights; respecting human rights is an obligation for companies,
and is not voluntary.
• Are ‘greenwash’; and their voluntary nature, lack of binding complaints mechanisms, and superficial
and ‘spotty’ self-reporting do not lead to human rights protection on the ground. In general,
according to one foreign government official, companies see CSR in very limited ways, engaging in
tokenistic projects such as building schools for children, rather than preventing negative impacts or
distributing real benefits. Further, these instruments do not provide any incentives for companies to
undertake actions that push legal concepts or go beyond the law of the country. In that regard, there
is no economic benefit for companies, and companies cannot write off the actions as publicity, and
therefore receive the tax breaks they often do. This is according to a CSO representative who has
done in-depth research on the economics of CSR in Colombia.232
• Amount to public relations only, and there are no real linkages even with economic growth. According
to one CSO representative working with mining-affected communities in La Guajira, where El Cerrejón
operates, “the only department whose GDP has NOT increased and whose basic needs have not been
met when compared with the previous year is La Guajira. And if the world’s largest, open-pit coal mine
232
In the CSO representative’s words: “The big difference is that the central element is not voluntarism; the central element are the obligations
and the responsibilities of the company with regards to human rights, and based on normative frameworks and fulfillment of the law and the
need for regulation; in other words, not as social responsibility as a field for the voluntary, and of course without negating that companies go
beyond the law. But … what goes beyond the law is that which goes against the utility of companies as they cannot be included as publicity
costs for which they get tax breaks …. 35% of all tax exemptions in Colombia go to the mining sector, who allocate part of their costs to
foundations and that goes towards tax exemptions as they then state these are voluntary actions.”
69
has as its neighbour the poorest community in the country, that contrasts sharply with all the publicity
the company has put in place. Communities in El Choco and Nariño have grown more than in Guajira,
despite royalties, resettlement … the situation of these communities is extreme poverty.”
• Are usually not upheld by smaller companies, who have significant human rights impacts. “A big issue
with human rights is the small operators … if one added them up, they have a significant impact, and
they do not apply any of these instruments.” Looking at things through a consumer or market lens
would ensure that human rights are being implemented, regardless of the operator’s size.
• Are ignored by companies who simply don’t care. There are also many illegal companies out there.
• CSR policies and company complaints
mechanisms simply do not work.
“A big issue with human rights is the small
According to one CSO that has worked
operators … if one added them up,
with communities affected by El
they have a significant impact, and they
Cerrejón, the company complaints
do not apply any of these instruments.”
mechanism that was recently
Foreign government representative
established does not work, and
provides no value-added. An example
was given of a community that
received threats; the company person in charge of human rights said they were very worried and
would take the issue to state oversight mechanisms, “and that was that.” A more effective strategy
(than dealing with such project-level complaints mechanisms) is to go straight to the headquarters
of the company, because “they can take decisions immediately; they can act and resolve things in a
flash.” Also, taking complaints to the international level “goes a lot farther; here [in Colombia] it is
difficult to make a scandal.”
In short, as one foreign government interviewee emphasized, “to protect human rights, you cannot leave it
to the companies.” All participants agreed that while CSR might help move the debate forward within the
country, there is no concrete evidence that links these instruments to actual change on the ground. The
value of these instruments is in placing a spotlight on the companies. While debate and initiatives around
CSR are not harmful, and should continue (according to interviewees), true change and protection for human
rights will come from a combination of market or consumer pressure; by investing in civil society, not only in
Colombia, but in the countries where companies are housed; and through strengthening Colombia’s State
institutions.
4.5 Strengthening Government Accountability
— “The Colombian government has responsibility too”
All interviewees concurred that state institutions in Colombia are weak, and need strengthening.
Representatives from foreign embassies, however, questioned the effectiveness of using their small
cooperation budgets for this task, in light of other potentially more effective investments, as discussed
further below.
The key observations and issues that emerged with regards to challenges inherent in the current Colombian
framework for protecting human rights within the extractive sector were:
• The lack of implementation of Colombia’s human rights framework and laws, and filling the ‘gaps’
that currently exist in this framework. “In Colombia there isn’t so much a lack of legislation,” said
one high-level foreign government official, “but lack of implementation. There’s impunity, and a
70
Holding Extractive Companies to Account in Colombia Box 17: Harnessing Consumer Power — An effective tool for
holding companies to account in Colombia
In September 2010, The Body Shop announced that it was formally terminating its relationship with Grupo
Daabon, a Colombian agro-industrial group that was providing vegetable oils. The issue at stake was conflict over
the ownership of the lands that make up “Las Pavas”, an area Daabon claimed it had bought, resettling about 120
families. These families had been resettled some five times, the last at the hands of Daabon.
This conflict was brought to the attention of The Body Shop, an outfit committed to Fair Trade, by the NGO
Christian Aid. An independent report was commissioned, and field visits were undertaken. The company claims it
followed due process in resettling the families. Nonetheless, following the publication of the report in July 2010,
The Body Shop provided Daabon with “details of specific areas where cooperation by the Consortium could help
positively resolve some of the difficulties.” Due to the little progress made to implement these recommendations,
The Body Shop decided to terminate its contract. According to an editorial in the Colombian newspaper El
Espectador, the decision represented the loss of annual sales of some USD $3 million.
Also in 2010, in July, a documentary on coal aired in Holland by the Dutch canal Netwerk. Entitled
‘Energiebedrijven medeplichtig aan moord’ (‘Energy companies complicit in murder’ in English, or ‘Carbon
manchado de Sangre’ in Spanish), the realities of the conflict situation in Colombia and its links with coal, rocked
the Dutch public, and spurred intense debate in the Dutch parliament on holding companies to account, and
making transparent the strife behind the coal fuelling electric production in Holland (coal from Colombia, Russia
and South Africa fuels the Dutch electric grid). Consumers in Holland and others are pushing certification as a
means to ensure products are fairly produced and traded, and there is interest in schemes such as ‘green gold’
— Oro Verde — according to a Dutch senior embassy official. Indeed, Dutch NGOs such as Oxfam Novib, Stichting
Doen, Both Ends and Solidaridad were instrumental in supporting first the Green Gold programme and then its
scaling up as Fairtrade and Fairmined Gold through the creation of the Alliance for Responsible Mining in 2004.
Fairtrade and Fairmined Gold was recently launched in The Netherlands.
Sources: The Body Shop (2010); Netwerk (2010); El Espectador (2010); http://www.communitymining.org/index.php/en/
component/content/article/6-rotating-news/200-fairtrade-and-fairmined-gold-launched-in-the-netherlands.
police force that doesn’t work.” Another noted that the human rights framework is “more than
developed,” noting that there are also international human rights instruments that Colombia has
ratified and that are part of Colombia’s Constitution: “The issue, however, is lack of clarity with
regards to which agency has the role of oversight; it is very fractioned, and it is not clear who should
fill this role.” Nonetheless, he underscored the power of the Constitutional Court in filling any gaps
that do exist in the current framework – a Court whose judgments have helped define further human
rights jurisprudence. If these
gaps are not filled, the danger
“My worry is that the current institutional conditions
is that companies will take
do not guarantee an adequate mining activity
advantage and say that they
and
the mining code has very serious problems.”
have fulfilled the law, without
going any further. An example
Manuel Rodriguez, former Minister for the Environment,
panel presentation, national workshop on environmental
of such a gap relevant to
and social impact assessment, August 2011, Bogota
the right to consultation
and consent was given; one
foreign government official
expressed extreme pessimism with regards to progress: “Over the last 6 months here in Bogota
there have been countless meetings on free, prior and informed consultation, and the panorama is
quite disappointing. All actors recognize that the actual framework and its implementation is not
guaranteeing the right to free, prior and informed consultation.”
71
• The lack of implementation of the cutting-edge decisions of the Constitutional Court. One foreign
government official cited as “spectacular” the example of Jiguamindo and Curvadaro, where fourteen
capture warrants were issued, as well as one “Auto” (precautionary safeguard action) from the Court,
“And what happens? Absolutely nothing happens!”
• The lack of human resources, with existing staff being extremely underpaid, and open to bribes.
One interviewee stated there are only 423 inspectors in the whole country at the Ministry of Social
Protection, to oversee all labour rights issues; and only 30 people at the Ministry of Energy and Mines.
“There is no training and very low salaries. They get some 800 US dollars per month, so it’s very easy
for them to get involved in bribes,” said a foreign government representative. “In order to strengthen
human rights in mines, it’s important to send inspectors who can work.” Moreover, she mentioned the
large number of subcontractors working within the state: “The companies can simply ignore what they
have to do … and these people – the subcontractors – accept bribes.” A CSO representative pointed to
the case of Cerramatoso, where corruption in local-level government is extremely problematic, affecting
the distribution of potential benefits, as well as delivery on social, cultural and economic services.
• Lack of appropriate distribution of royalties, and funds for institutional change. Currently it is
departments, not the national government, that are receiving royalties, which means that they cannot
distribute them appropriately to affected communities. One interviewee asked, “If the government
doesn’t have money, how can they make these changes?” A CSO representative noted that it is very
unclear how much mining companies are profiting, and that it is difficult to know exactly what volumes
they are actually extracting from the ground, because of the lack of government controls: “What they
are really taking from a pit is one thing, and another is what they say they take out.”
• Lack of basic control mechanisms to guarantee human rights, such as for Defensoría, and support for
affected communities. “There has been very little intervention and support for communities from the
Defensoría on issues around companies,” said a CSO representative, “and obviously this is because they
do not have resources … same as Fiscalía. The community is always alone facing companies — this is
what we have seen everywhere — and in the regions, the companies decide which mayors to put in
place, and which ombudspeople.
For the community it has
“There has been very little intervention
been very difficult to respond
and
support
for communities from the Defensoría
… it is very difficult when the
on
issues
around
companies, and obviously this is
State is always siding with the
because
they
do
not
have resources … same as Fiscalía.
companies.”
The community is always alone facing companies
— this is what we have seen everywhere.”
• The influence of foreign
companies on Colombian
Colombian CSO representative
legislation, and the rotating
door/turnaround that exists
between high level Colombian public officials and company representatives. The private sector has
been successful in recruiting several high-level public officials. For example, Carlos Franco, former
Director of the Presidential Program on Human Rights and International Humanitarian Rights, is
now heading the human rights portfolio at the El Cerrejón coal mine. Further, the private sector has
been able to exert influence over legislation, such as the Colombian Mining Code. According to one
CSO representative, this Mining Code was drafted by the companies themselves:233 “The Colombian
normative framework exists so that [companies] come in, and taxes are lower and lower all the time,
for legal stability. In terms of lands, in terms of community councils, it’s very difficult to create them
now; now creating a community council depends on what the interests in those lands are.”
233
72
Canada also played a role in providing technical support for the initial review of the Mining Code in 2001. This led to charges of conflict of
interest, and much skepticism, in that the technical advisors were allegedly also linked with Canadian extractive companies. And the review of
the code resulted in regressive changes that seriously affected human rights, and ethnic rights in particular. See Jimeno (2002); Weitzner (2002).
State representatives during panel discussions, national workshop on ethnic rights and extractives, July 2010, Bogota.
4.6 The way forward
On the need to strengthen protection for human rights in the extractive sector in Colombia, several
interviewees emphasized: a) that companies should continue with CSR instruments as a means to protect
human rights, with efforts to go beyond the minimum of compliance complying with national law; and b)
that the government should strengthen its oversight institutions, and allocate appropriate resources to
ensure protection for human rights, as well as implementation of existing mechanisms and laws (see Box 18).
Interestingly, what emerged as the key priority for the majority of interviewees, was investment in civil society
– both in Colombia and also internationally – as the main mechanism for exerting pressure on companies’
economic bottom line, and harnessing consumer power to bring about change.
“Even if all of the authorities are in place to ensure implementation of human rights,” said one foreign
government official, “the criteria have to come from the consumer, as in the case of Body Shop, with
international organizations providing oversight.” Several interviewees cited the Body Shop and Netwerk as
cases where international organizations abroad raised awareness of human rights issues in Colombia, which
led to foreign consumers then putting market pressure on the companies in question. This led, in the case of
the Body Shop, to the cancellation of the contract with the Colombian company providing goods. In the case
of Netwerk it led to questions and debate in Holland’s parliament, which in turn spurred an incipient dialogue
between NGOs and companies to strengthen company codes and accountability mechanisms (see Box 17). “All
that comes from civil society; it is the consumer who takes the decision,” said one interviewee. Another highlevel foreign government official concluded: “I like consumer pressure – if it is done well.”
Helping to tip the power imbalance that exists between communities on the one hand, and state institutions
who side with companies on the other, was seen by several interviewees as the critical priority in
upholding human rights. One foreign government official stressed the importance of investing in capacityAn evaluation of CSR instruments through the lens of Indigenous and Afro-Descendent Rights
73
strengthening for ethnic populations — particularly regarding free, prior and informed consultation and
consent, and regarding how to negotiate with government and business as a means to counteract impunity
for environmental and human rights abuses. She also emphasized the need to ensure that there are solid
watchdog organizations in place.
This approach – building community capacity, and forging links with domestic and international NGOs, was
cited by others as the only effective way forward for ensuring that companies are held accountable and human
rights are more protected. It was suggested that this combination could not only affect the bottom line of
companies, but could lead to stronger protection mechanisms in home states.
“We have many concrete experiences of negotiation and intervention with communities,” said one Colombian
CSO representative, “of sitting next to multinationals to negotiate specific problems; we have done this, and
the asymmetry, and the inequality of conditions when a community comes head-to-head with a powerful
multinational is enormous – it’s disproportionate. The only counterweight are international alliances; alliances
with the countries, with organizations, with multilateral control mechanisms in the countries where the
companies are headquartered. That is the only way. If those relations aren’t there, if that follow-up and
monitoring isn’t there, if there aren’t those ties between organizations and communities, there is simply
insufficient pressure in each concrete case.”
While interviewees agreed that efforts are
clearly needed to try to influence Colombian
public policy and the normative framework, the
efforts that were seen to have the most weight
were those that affect companies’ bottom
lines, and that are organized in conjunction
with organizations from the company’s home
state. In the words of one CSO representative:
“An advertisement in a Canadian newspaper
highlighting how companies affect human
rights in Colombia is far more valuable than
thousands of protest marches here, because
multinationals are moved far more by a
millimetric move that might take place on
the stock exchange, than by thousands of
malnourished youth and poverty; that does
not move them.” Bringing social leaders to the
home countries of companies is a strategy that
has helped raise awareness of the issues. But
these types of visits must be carefully prepared
by the communities together with Colombian
CSOs, while coordinated by organizations in the
home country.
A foreign government official insisted that
investing in the state, or in Defensoría, in the
face of scarce resource dollars, is not effective,
nor the answer: “I insist, even if you double
the budget [of the ombudsperson’s office], it
wouldn’t be effective; there are so many things
that would need to happen to move Defensoría;
you’d have to move the State, the government,
so that their interests are aligned, so that it has
an impact … invest very few resources in civil
74
Box 18: Interviewee recommendations
for strengthening Colombia’s
current human rights framework:
Recommendations for strengthening the current Colombian
framework included:
•
Invest in the justice system;
•
Ensure that the police and the military forces uphold
human rights;
•
Provide the government with accompaniment to
ensure that the current human rights framework is
implemented;
•
Invest in control mechanisms such as Defensoría
and Fiscalía, and ensure oversight and monitoring in
the field;
•
Ensure that the public agenda targets
implementation as a priority;
•
Visit specific cases where human rights are not
being upheld;
•
Ensure that relations between Colombia and foreign
powers, such as the European Union, become
priorities on the agenda, such as for the G24;
•
Invest in the Office of the UN High Commissioner
on Human Rights in Colombia (OACNUDH) who
is working with the Colombian government to
strengthen prior consultation and consent, among
other human rights.
Holding Extractive Companies to Account in Colombia society, and everything changes… you can put all your money towards changing policies, and nothing changes
… But how much did it cost to take that journalist to take photos in the Choco? It comes out in the paper, and
then right there and then, the 30
dredges are impounded.”
“An advertisement in a Canadian newspaper highlighting
A CSO representative made a
how companies affect human rights in Colombia is
forceful comment that market
far
more valuable than thousands of protest marches
mechanisms such as certification
here, because multinationals are moved far more by
are the most effective for
a millimetric move that might take place on the stock
curbing company behavior: “If
exchange, than by thousands of malnourished youth and
you look at the boycott effect
poverty; that does not move them.”
of campaigns around Conflict
Diamonds and Dirty Gold, or at
Colombian NGO representative
the hope and inspiration created
by Fairtrade and Fairmined
certification for gold from
artisanal and small scale miners, it becomes clear that the real force for change in the industry will come from
the ethical consumer markets.”
4.7 Home Government Accountability
Perspectives on how home governments could strengthen their oversight of companies operating in Colombia
ranged from: questions around what constitutes, for example, a “British company”, and the difficulty of
pegging down companies to home states; to suggestions that embassy personnel based in Colombia should
provide more information, back in the companies’ home countries, about on-the-ground conditions for
investment in Colombia and that there be better listening and monitoring on the ground for more effective
decision-making. There were also very clear statements regarding the importance of mechanisms to hold
companies to account through the court systems of their home government – such as the case of Chiquita
Banana in the US.
The link between CSR, official development aid and the role of embassies also emerged in discussions. With
regards to educating companies coming to Colombia on human rights issues, interviews with most foreign
government officials revealed that not much is done. Many took the perspective that the public sector cannot
oblige the private sector to do anything. In the words of an influential foreign government’s representative,
“We promote the VPs. With regards to Colombia, we hope that our companies follow human rights laws of
Colombia.”234 In general, there seemed to be a disconnect and lack of communication between those leading
the development cooperation portfolios at foreign embassies, and those dealing with trade and commerce; it
appeared that human rights issues were thereby relegated to the realm of development cooperation, instead
of being brought into trade-related discussions. This incoherence was highlighted by several interviewees.
In terms of mechanisms to increase home government accountability, a Norwegian official noted that
companies from Norway are staying away from investing in Colombia in light of the internal armed conflict.235
Instead, companies are investing in other countries in South America, and most intensely in Brazil. She noted
that if she were to advise Norwegian companies on Colombia, issues of land access and rights would be
centre-stage, as well as those around internal displacement and Indigenous Peoples. In short, it appears that
Norwegian companies are assessing Colombia as too risky for investment at this time. A Dutch government
representative noted that his country is very focused on achieving change through consumer pressure.
234
235
Interestingly, this representative in charge of CSR for her embassy was not aware of the debate raging in her country on the Dodd-Frank Act,
and did not cite the US Alien Torts Act to hold companies to account.
Indeed, Norway closed its Embassy in Colombia in 2011.
75
Gold pan vendors in Marmato, Caldas.
A “Sustainability Pact” is being considered, to be signed between the two countries, and that would lead
to certification of products: “The idea is that by 2020, some 60% of products imported would be certified.”
And a representative from the UK emphasized that “just telling companies about the laws in Colombia isn’t
effective at all.” Instead he said that investing in civil society in home countries is the most effective strategy,
and that it is in the home country that the dialogue should take place.
A representatives of the Government of Spain (which has ratified ILO Convention 169), brought up issues of
extraterritoriality and the application of international covenants ratified by a home state, regarding activities
in Colombia.236 Spain has an innovative Indigenous Peoples cooperation policy that recognizes their rights
to free, prior and informed consent. Nonetheless, the representative noted that companies are privately
owned, and that while there is an incipient discussion about how to apply the Convention extraterritorially,
it is still a very ‘green discussion’, most of which has taken place around how to apply the Convention to
Indigenous people who migrate to Spain. He also noted the disconnect between the Indigenous Peoples
policy, the ILO Convention and the actions outlined in the trade section; in the future it is possible that the
policy and Convention should apply to other Spanish activities and policies abroad, including those relating
to the private sector.
The above discussion of refraining from investing in areas where there is armed conflict, harnessing
consumer demand, investing in civil society back home to bring about change, and applicability of
international covenants extraterritorially is a very different take from the Canadian approach, which has
236
76
Norway was the first country to do so.
Holding Extractive Companies to Account in Colombia recently drawn much controversy and public debate.237 The Canadian approach includes linking aid and
investment, with increased economic investment for Canada and benefits for host countries being the end
goals. The government is funding projects with NGOs – mostly Canadian – who are working with companies
in an effort to generate ‘win-win’ situations. But in areas where communities may not want the mining
project in the first place, this may instead tip the power balance even further towards asymmetry, in that
now there is also a home government adding its weight to the company and the host state, in an effort for
projects to get through ‘responsibly’. Where this approach could work and be beneficial is in areas where
appropriate consultation and consent processes have taken place regarding the extractive project and the
proposed CSR projects, and where the communities (rather than the companies) have selected the NGOs
they choose to work with, and are involved in all aspects – from managing to implementing and verifying –
the projects.
Questions arise as to why the current Canadian government’s approach is so different from the views and
approaches of other foreign representatives interviewed for this paper.238 One major reason could be
that Canadian companies constitute the major foreign direct investor in Colombia’s extractive sector (as
highlighted in Part 2).239
4.8 Other key issues: CSR and junior companies
Another key issue that emerged, particularly from discussions with companies, is the question of whether
CSR policies should apply to the exploration stage, or to companies involved in joint ventures (JVs) with
partners. This is discussed further in the case studies — but generally, companies tend to believe exploration
activities are underneath the radar screen of reporting, and that they do not need to report on their joint
venture activities where they are not the operator. According to one Canadian junior, joint ventures are
a strategic alliance between two companies. “The operator is the one who manages and administers the
project. The other partner is in the window, auditing and reviewing what is happening. But in Colombia, there
is total independence – they don’t have to share policies.” This leads to the conclusion that in prospecting
and exploration projects, and in JVs where a company is not the operator, the non-operating company
cannot force the operator to apply its policies. Both of these have significant implications, leaving a large
swath of projects where there would potentially be no application of CSR instruments such as the VPs. These
implications are discussed in the next chapter.
237
238
239
See for example Elizabeth Payne’s (2012) January 18 and 19 Ottawa Citizen articles with headlines such as “What is going on at CIDA?” and
that outline the various well-funded projects the agency has supported that bring NGOs and companies together. In September 2011 the
Minister announced four projects totaling CAD $26.7 million to help “developing countries in Africa and South America manage their natural
resources to ensure they are the source of long-term sustainable benefits to the people.” These funds went to creating CSR projects near the
mine sites of the major companies Barrick Gold, Rio Tinto, Alcan and Iamgold. Canadian CSOs question why taxpayers are in effect subsidizing
Canadian mining companies. Daniel Leblanc’s (2012) January 30th Globe and Mail article notes that according to the CIDA project database,
CIDA has approved $50 million in projects (with more in the pipeline) that are linked to the mining industry, since the conservative political
party came to power in 2006. Pundits charge that foreign policy has shifted to focus on countries of interest to Canadian mining companies.
See for example Elizabeth Payne’s (2012) March 8th editorial, “Foreign Policy is Mining Policy”.
Canadian representatives did not acknowledge repeated requests to interview them for this paper, despite the confidential and anonymous
nature of the interviews.
Nonetheless, according to Canadian company officials, one of Canada’s Ambassadors to Colombia was very actively involved in advising
and monitoring Canadian companies, holding meetings once a month. Further, the Canadian embassy entered into an agreement with a
Colombian university to provide training for Canadian companies on the normative framework. However, these courses appear to be oneoffs, and as one foreign representative mused, while it is a positive move, there are questions about the effectiveness of simply informing
companies about Colombia’s laws.
77
4.9 Conclusions
Overall, diverse perspectives on the CSR instruments being encouraged by home governments and others
for uptake in Colombia highlight little in-depth knowledge of these. While the VPs generated the most
discussion, with many noting that this instrument has been effective in spurring debate and addressing
security arrangements, there was
consensus that a more integrated
human rights focus is needed,
“Without a doubt this is one area that needs
and that security is no longer the
much more attention: How to establish dialogues
major human rights issue. If the
between social organizations and companies that are
instrument was adapted to examine
well informed and frank? And, how can companies
the rights whose ongoing violations
come closer to recognizing and accepting to respect
by companies are creating the most
human rights in the ethnic communities
conflict, and the most headlines
in whose territories the companies aspire to
– such as free, prior and informed
undertake economic projects?”
consultation and consent and land
Gladys Jimeno (2012)
access – it would enter a more
relevant arena. Nonetheless, there
are severe constraints in the way the VPs are currently governed, with lack of civil society participation,
and distrust between the actors that is hard to overcome. The discussion has been far from tri-partite, as
originally envisioned.240
While some recommendations emerged with regards to how to strengthen the current Colombian human
rights framework and its implementation, a major emphasis and recommendation was the need to
strengthen civil society in Colombia and internationally, as the most effective mechanism in pushing for real
change. This could lead to harnessing consumer demand, which has a direct impact on companies’ bottom
lines and could lead to better practice. Strengthening community groups, and linking them to Colombian
and home government civil society, was deemed essential in tipping the power balance towards influencing
company behavior on upholding human rights. Several interviewees felt that actions in the home country
of the companies can have far more immediate impact than actions in Colombia. And this is where several
foreign government and aid officials said they would be placing their resources in the future, as stated
succinctly by one representative, and echoed by several others: “I think cooperation is more valuable for
society if it supports civil society initiatives, for me that’s very clear; that is where there is value added from
aid.” Finally, interviewees emphasized that CSR is effective only if companies have the will to go beyond the
minimum requirements outlined in Colombian law. Only then is CSR worthwhile.
240
78
One foreign government representative highlighted that academia could play a large role in helping to facilitate tri-partite dialogue, and in
training on CSR and human rights.
79
“For the communities, all this information
of company commitments and voluntary principles
and CSR policies is extremely important …
it has not been easy to access this information.
This research helps us bring more balance between
the communities and companies, because
they cannot contradict their own policies
when they are in meetings in the communities
and those who are participating
hold up the commitments that
the companies have made.”
Afro-Colombian leader, Cauca
“By what was presented and what
we have seen in their behaviour
we can conclude that CSR policies don’t
serve for anything, because those
who promote them and subscribe
to them don’t even fulfill them;
it’s the double discourse of capitalism.”
RICL Leader, Caldas
Top: Ancestral Mining, Caldas
Middle: Cyanide tailings pond at Marmato, Caldas
Bottom Middle: Francia Márquez, Afro-Colombian miner
and lawyer-in-training who signed her name to an injunction that
resulted in the Constitutional Courts judgment T-1045A,
ordering all mining activities suspended for La Toma, Cauca,
until prior consultation and consent processes are undertaken.
Bottom: Sacred Mountains, RICL
80
Photos: Viviane Weitzner, Federico Herrera (middle)
Holding Extractive Companies to Account in Colombia Part 5: Experiences from the Field — Introduction
Case Studies: Caldas and Northern Cauca
Much has been written on the validity and challenges of CSR mechanisms for protecting human rights and
the environment, based on what these instruments say on paper. However, examining what takes place in
the field, and how these tools are — or are not — implemented, particularly in the context of armed conflict,
is extremely helpful in identifying ways to strengthen the overall framework for protecting human rights and
the environment.
The next section of this paper undertakes a fine-grained analysis of two case studies, to examine from the
bottom up the issues ethnic communities in Colombia face when affected by extractive companies. The case
studies selected represent the territories of the communities involved in our participatory action research
project. The case study sites provide fertile grounds for analysis, as they are located in gold-rich areas that
have been mined for centuries by Afro-Descendent and Indigenous Peoples — territories that are now of
interest to increasing numbers of national and multinational mining companies, and are also coveted by
illegal armed actors.
The first case study involves the Embera Chamí People of the Resguardo Indígena Cañamomo Lomaprieta
(RICL) in Caldas. And the second involves the Black Communities in Buenos Aires and Suárez, in Northern
Cauca.
Each case study begins with a brief background, introducing the history of the peoples. It proceeds
to identify the main
companies affecting
each ancestral territory,
and reviews proposed
company activities and
CSR commitments;
this information was
drawn from interviews,
presentations at workshops,
and corporate materials
and websites.241 Each
case study then compares
company commitments on
paper with their activities
in the field, drawing on
diverse sources, including
community perspectives
and analysis from
community workshops. The
case study analyses lead to
conclusions and reflections
on the gaps unearthed.
241
Annetta Markussen-Brown was the key researcher gathering information on the concessions and companies in each case study area. Her work
was updated by Fiona Meyer-Cook, by a University of Toronto working group of law students supporting NSI research, and finally by Viviane
Weitzner. Field discussions were led by Federico Herrera and Hector Jaime Vinasco in Caldas; and by Plutarco Sandoval in Cauca. Nationallevel interviews were undertaken by Viviane Weitzner, Gladys Jimeno and Plutarco Sandoval.
81
“Con Sentir” (“To Consent” or “With Feeling”)
By Alex Henao and Federico Herrera
chorus
Consent is to say yes
Consent is to say no
They have to respect
Always our decision
Consultation is a right
They have to consult us
Ask for our consent
If they’re going to explore
Information is not that they tell you
You have to understand
What they want to do
Before they start
Prior means
That it’s before and not after
The arrival of the projects
That they want to impose
When we say that it’s free
We are referring to without pressures
Without any briberies
Or attempts to buy us with candies
chorus
Don’t gift us with notebooks
To be able to study
If later you will
Come and bury our schools
Don’t let yourself be tricked
They have to consult us
If they come to your house one day
Make them speak with our Authorities
chorus
If you see a stranger
Taking samples of the land
Speak with the Indigenous Guard
Protectors of Your People
Don’t let yourself be confused
With promises or hopes
They want to divide
Our organizations
chorus
82
Translation from the original in Spanish
by Viviane Weitzner
Holding Extractive Companies to Account in Colombia Experiences from the Field – Caldas Case Study
5.1 The Resguardo Indígena Cañamomo Lomaprieta, Caldas
5.1.1 History242
The Embera Chamí Indigenous People in the region where the Resguardo Indígena Cañamomo Lomaprieta
(RICL) is located trace their ancestry back to the Quimbaya civilization which dominated the area prior to
the arrival of the Spanish conquistadores in the early 16th century. Pre-European contact, the area was home
to Indigenous groups including the Quimbayas, Supías, Quinchías, Ansermas, Guáticas, Cañamomos, Pirzas,
Turzagas, Chamíes, Paucuras, Posos, Carrapas, Irras, Tabuyos, Cumbas and Umbrías, among others.243
One of the earliest historical records is of a visit in 1530 by the Spaniard, Enrique Robledo, to the area he called
Supías. He noted that the area was rich in alluvial gold, which the local Indigenous Peoples extracted along the
river banks. It was these early reports of gold which initially drew the Spanish colonists to the area. Although
much land was later lost to incoming settlers, the area was never extensively taken over for large-scale farming
(haciendas), unlike other parts of Colombia.
“The resguardo meant the beginning of
Based on the common colonial policy of
what we know today as de-territorialization;
indirect rule, the Spanish adopted a system
that is, the dispossession of our territory via ‘legal’
of controlling the Indigenous Peoples through
and judicial means, territory belonging
recognizing resguardos (reserves) in which
to us natives according to our law of origin
Indigenous governments (cabildos) were
and the traditional law.”
created. These cabildos had the authority
RICL (2009:15)
to manage Indigenous affairs, but were also
mechanisms through which the colonial
government could impose policy. The resguardo that now makes up Cañamomo Lomaprieta was initially
recognized by the Spanish during the 16th century, and covered a much larger area than today. It was cut to a
smaller size in the 1620s and 1640s. The resguardo was established just after 1627, but only received official
title on November 4, 1722.244 Cañamomo Lomaprieta is only one of many such resguardos established in
Caldas and neighbouring departments (as well as other parts of Colombia).
Christianity has had a major influence on eroding the original languages and world views (cosmovisiones), and
changing social organization. Today none of the members of the resguardo speak their original languages, but
their identity as Indigenous Peoples is nevertheless very strong.
5.1.2. Lands and territories
The resguardo currently comprises 4,856 hectares, populated by 22,849 people living in 32 recognized
communities, according to the cabildo’s 2011 census. Each family has access to an average of one half of a
hectare for their survival.245 The area is intensively cultivated and otherwise used by the local population. The
three principal sources of cash income are production of panela (sugar loaf), coffee cultivation and processing,
and ancestral mining. However, the resguardo farms also generate considerable amounts of non-cash benefits
for families, in terms of food and other essentials. But the land is not just of economic value to the people; it
242
243
244
245
This background is adapted from Colchester (2011).
These Indigenous groups suffered extermination, from a combination of warfare among Indigenous groups, and the devastating effects of
Spanish colonialism and interest in the areas’ riches (Hector Jaime Vinasco, Personal Communication, 2012).
RICL (2009: 13).
RICL (2011).
83
is imbued with memory and history, and
features such as mountains are considered
sacred, and of intrinsic value to the people
and their identity.
Despite a high level of emigration, the
population of the resguardo is increasing,
placing an ever greater burden on natural
resources. Landlessness, poverty and
population growth – combined with
increasing pressures from soaring global
prices for gold and other commodities – are
all contributing to the intensification of
mining in the resguardo and surrounding
areas.
5.1.3 Self-governance
In conformity with colonial practice
and contemporary law, the resguardo
is governed through the cabildo. The
governance structure comprises an
annual General Assembly which elects a
Gobernador for a one-year term with his
suplente, who works alongside a Consejo
of Gobernadores composed of all the
previous Gobernadores. Each village is
represented by an elected cabildante. The
Photo courtesy of RICL
cabildo has a small administrative team
that manages the many areas of work
The Guardia Indígena (Indigenous Guard) of RICL hold the authority to
enforce the resolutions and regulations developed by the Resguardo’s Cabildo
of the local government. This includes
— the traditional authority. This voluntary guard is integral to verifying that
overseeing and administering the funds
ancestral mining follows the management planning process and rules of the
the resguardo receives from the State for
Cabildo. It also patrols the Resguardo, and is on the front-lines ensuring that
education, health, housing and agriculture.
any outsiders intending to undertake exploration or other activities follow the
The cabildo has to raise its own funds
Regsuardo’s consent protocol, which includes ensuring they have permission
from the Cabildo to enter Resguardo territory.
for complementary activities, such as
protection of civil rights and cultural events.
While enforcement of the resguardo’s authority is mainly achieved through community assent, the force of
public opinion, and voluntary compliance, there is also a volunteer Guardia Indigena ( Indigenous Guard) to
assert the authority of the cabildo. The authority of the cabildo to administer justice within the resguardo is
recognized in national law.
Membership of the resguardo is defined through the annual census. The resguardo includes a notable
settlement of Afro-Colombians, who were brought to the region as slaves in the 17th century to work in the
mines; after emancipation started in 1851, they remained in the area.246 They make up the majority of the
community of Guamal. Their presence has been accepted by the cabildo, they are accorded equal rights as
resguardo members, and are considered Indigenous.247
246
247
84
This was one of the first places where Afro-Colombians bought their freedom by working in the mines during off times, agreed upon with the
white “owners.” For a detailed description, see Gärtner (2005).
Nevertheless the minority status of the Afro-Colombians within the resguardo does create some tensions and difficulties. There are ongoing
discussions within Guamal regarding whether this community is indeed Indigenous, Afro-Colombian, or both.
Holding Extractive Companies to Account in Colombia 5.1.4 Militarization and the human rights context
The Department of Caldas has suffered considerably from the violence that has wracked Colombia since the
1950s. Militarization has been intensive, in part as a reaction to insurgency from leftist liberation movements.
The situation has been exacerbated by government policies that have allowed the proliferation of rightwing paramilitaries that have links to landowners, narco-traffickers, and political elites. The communities
have suffered severely from these abuses, which have continued up to the 2000s, with notable massacres
of community leaders.248 The human rights abuses in Caldas have been addressed by the Constitutional
Court of Colombia as well as by the Inter-American Human Rights Commission. Both have made strong
recommendations for reparations and State protection for Indigenous leaders. The Colombian State is currently
providing a number of the Indigenous leaders with vehicles and drivers, as a measure of protection.
5.1.5 Self-regulated mining
Alluvial gold mining dates back to the pre-Colombian era and has remained a constant part of the local
economy ever since, although the intensity of mining operations has varied with the fluctuating international
price of gold. With the introduction of new mining techniques, ancestral mining methods have gradually
evolved to include the use of batel (a primitive gold pan), sluice boxes and pumps. Pit mining of ore in
mountainsides seems to have begun in the 17th century, and alluvial pit mines have also now become
common.249
Recent years have seen a boom in local mining and, with international prices of gold now above US $1,500
per ounce, it is visibly intensifying. Gold recovery techniques used in the resguardo include crushers, mills and
mechanized sluice boxes, all powered by electricity. The mines are nevertheless considered to be ‘small-scale
artisanal mines’ or ‘ancestral mines’ by the locals. They are not regulated by the State Mining authority, but by
the authority of the cabildo.
The resguardo has invested considerable efforts in seeking to assert the communities right to ancestral
mining: it is a practice that pre-dates colonial intrusion, and which they claim they may rightfully self-regulate
independently of the State. Indeed, customary norms for working in the mines have developed over a long
time, and include the custom that mines are only opened for three days per week, to encourage miners to take
up complementary economic activities.
In order to bring ancestral mining under control and fend off the intrusion of large scale mining, the cabildo has:
• Passed a resolution declaring the resguardo a large-scale mining-free zone;
• Passed a resolution setting out the rules for the regulation of ancestral mining within the resguardo;
• Carried out an environmental survey of the resources in the resguardo, with the guidance of an expert
at a local university; and
• Carried out an environmental and social impact assessment of ancestral mining, and drafted a mining
management plan to mitigate its environmental impacts.250
248
249
250
The massacre of “La Herradura”, for example, took place on 8 June, 2003, resulting in the death of Gabriel Ángel Cartagena, the governor of
the resguardo at the time, along with three other Indigenous members: Fabio Hernán Tapasco Largo, Héctor Hugo Tapasco Guerrero, and Deo
Efraín Suárez León. Several other members of the Resguardo were seriously injured. The acts were committed by members of the paramilitary
group “Cacique Pipintá”. Members of this group who committed the acts were ordered to serve 40 years in prison, through a November 2009
judgment by the Superior Court of Manizales (http://www.caracol.com.co/noticias/judicial/condenados-a-40-anos-ex-paramilitares-quemasacraron-indigenas-en-riosucio-caldas/20091123/nota/913889.aspx).
“Alluvial mining was likely the traditional way of ancestral mining. When the large hard rock mining companies came, and then left, over and
over again, the mine workers and slaves have traditionally gone into the old mines to continue extracting the ore. Artisanal small scale mining
is a social legacy of large scale mining too.” (Cristina Echevarria, Personal Communication, 2012).
These are all internal documents of the Resguardo.
85
Further, the cabildo is considering Fair Trade Fair Mined Certification for their ancestral mining products as
an alternative and additional
way to legitimize their ancestral
“Artisanal Ancestral mining is an inalienable cultural
activity, stave off large-scale
heritage of the Resguardo Indígena Cañamomo Lomaprieta,
mining, and access markets.
as it has been practiced uninterrupted in the territory since
time
immemorial… in this way establishing a series of social,
Some villages within the
spiritual
and economic relations … directly linked to
resguardo have refused to have
our uses and customs, with practices that are
any ancestral mining in their
environmentally sustainable….”
areas, and this is respected
by the cabildo. The cabildo
Resguardo Indígena Cañamomo Lomaprieta,
recognizes that it will take
Resolution 031, 2011
some time for the resguardo’s
new mining regulations to
be enforced. A phase-in process has been established that will lead to full compliance over the next few
months. A Verification Committee has also been established to monitor compliance.
5.2 Companies with interests in the Resguardo
or whose activities affect Resguardo Territory
Because of its location in what is known as the “Gold Belt” (more precisely, the “Middle Cauca Porphyry
Belt”), the natural resources of the Resguardo have always been coveted by outsiders. The situation
has come to a head over the last few years with the rise in gold prices. As a result the resguardo is now
criss-crossed with mining concessions. These have been issued by the Government of Colombia (through
Ingeominas) to individuals and companies without the consultation and consent processes required by law
(see maps).
In 2011, the traditional authorities of RICL sent a request for information on the status of concessions
within their territory to the Director-General of Ingeominas. The response they received informed them
that: there is no resguardo in the Ingeominas database with the name of RICL; there are currently 123
requests for titles that overlap with Resguardo territory; and there are 44 titles that have been issued.251 This
situation is clearly of grave concern to the authorities and communities living in the Resguardo — not only
because the integrity of their people and territory is at stake, but because these administrative acts were
undertaken without the appropriate processes of consultation and consent required by ILO Convention 169
and protected by the Colombian Constitution. The RICL has been able, however, to confirm its status as a
cololonial resguardo.252
Mining companies with interests in the area, and whose activities could affect the Resguardo, include:
Antioquia Gold (Canada); Batero Gold (Canada); B2Gold (Canada); U308/Mega Uranium (Canada); Medoro/
Gran Colombia (Canada); and AngloGold Ashanti (South Africa). The following snapshots provide information
on the key activities these companies are engaged in, and their CSR commitments.253 Each profile is followed
by an analysis of company CSR materials, and perspectives from RICL community members.254
251
252
253
254
86
Letter from Director-General of Ingeominas, Oscar Eladio Paredes Zapata to Representative Hernando Hernández (following the submission of
a letter concerning right to information – derecho de peticion), dated 29 September, 2011.
Letter from Heynar Jaramillo Aragon, Territorial Director, IGAC to Carlos Federico Herrera Duque, dated 14th December 2011 (oficio 6005).
Information was gathered from websites up until October 2011, with additional news resources added since then. The situation in Colombia is
evolving quickly, and by the time this paper goes to print there will no doubt be changes and updates in each of these projects.
A discussion on these matters took place in October 2011. Over 150 members from various communities in the Resguardo participated,
generating rich discussion on the issues at stake.
Holding Extractive Companies to Account in Colombia Photo: Federico Herrera
Concessions criss-cross the territory of the Resguardo Indígena Cañamomo Lomaprieta, Caldas. These will be contested through the
courts, as they were issued without consulting with or obtaining the consent of the Resguardo’s traditional authorities.
5.2.1 Antioquia Gold Inc.255
Since 2007, Antioquia Gold256 has been undertaking exploration in Colombia, holding close to 40,000
hectares of exploration concessions across the country. The company trades on the Toronto Stock Exchange,
as well as in the United States (OTCQX: AGDXF; TSX.V: AGD). Its principal project is the Cisneros Project,
located 55 kilometers northeast of Medellin in the Department of Antioquia, Colombia. Antioquia Gold
works hand-in-hand with Ingeniería y Gestión del Territorio S.A. (IGTER), which it owns wholly, having
bought it in 2009.257 One of the company’s main financiers is Desafio, a privately-held exploration junior, of
Consorcio Minero Horizonte SA arm; both are controlled by the Navarro-Grau Group. Desafio has a 19.9%
stake in Antioquia Gold.
Activities affecting RICL
In a video on the company website dated June 27, 2011, the company’s President and its Explorations Vice
President note that while Cisneros is their primary exploration site, there are 30,000 hectares of investments
elsewhere for the future, where joint ventures are likely. Notably, a June 2, 2010 news release indicates that
the company took possession of 31,983 hectares of exploration land from Sociedad Soratama (a whollyowned subsidiary of Barrick Gold Corporation), with Soratama retaining a back-in option.258 These lands
255
256
257
258
Source documents for this profile include the company website and news stories such as http://www.prnewswire.com/news-releases/
antioquia-gold-inc-joins-otcqx-129442798.html.
Antioquia Gold, Inc. was formed through the amalgamation of AM-VES Resources, Inc. (a private resource company held by ten mining
professionals) with High American Gold Inc. (a public junior mining company de-listed in 2003). www.antioquiagoldcorp.com accessed
September 15, 2011.
IGTER has two key functions: (i) to administer the mining concessions and relationships with government and industry leaders in Colombia,
and (ii) to continue as a consulting firm that supplies services and support to the Colombia’s mining, oil and gas, and civil works industries.
This option is triggered if “more than 2 million ounces of proven and probable ounces of gold equivalent are quantified on a given project. If
the back-in option is exercised, Soratama would retain 75% of the property for a multiple of three times expenditures to date, plus a modest
fee for each ounce quantified, and Antioquia would retain 25% of the project. If the back-in option is not exercised, Sorotama would then be
entitled to a 2% net smelter return (NSR) under certain conditions.” http://www.antioquiagoldinc.com/s/news.asp?ReportID=496317
87
comprise six different projects, including 2,887 hectares in Gavia, Department of Antioquia.259 While the
boundaries of the concession held by Antioquia need to be clarified, Gavia is one of the main areas within
the Resguardo where ancestral mining takes place.
Antioquia Gold’s CSR commitments
The company makes the following statement in the CSR section of its website:
“Our strategy for advancing as a responsible mineral exploration company is to work with the local
residents and develop relationships in the local community built on respect and trust to the benefit of
those who live there. Antioquia is committed to:
• Continually seeking community involvement to improve social and economic circumstances in the
area;
• Meet or exceed environmental requirements in both Colombia and our corporate jurisdiction,
Alberta, Canada;
• Making a positive difference in whatever locale where we are doing business.”260
It further states that:
“Antioquia Gold Inc. recognizes that responsible environmental and social policies are integral
components of business in today’s world. We have recognized as corporate priorities, environmental
management and the support of local communities, and we integrate environmental and social
factors in the decision-making process for the Company and its subsidiaries. Antioquia Gold Inc. is
committed to maintaining the highest standards of environmental and social responsibility.”261
With regards to Cisneros, the company claims that “there is strong local support and involvement in the
project,” although it does not provide details of how it arrived at this conclusion. Based on its self-reporting,
the company appears to be engaging in fairly responsible behaviour with regards to Cisneros, undertaking
socio-economic and other baseline studies, and cognizant also of the presence of small-scale miners.
The company does not have any policies or statements referring to Indigenous or Tribal Peoples. Significantly,
however, it states that:
“Antioquia strives for interaction with local communities based on respect and active participation.
The Company supports the social and economic advancement of the surrounding population
whose lives are affected by the company’s activities, while recognizing their own vision of
development.”262 (emphasis added)
It has also recognized the importance of micro-credit programs for women, and has reportedly established
innovative projects in this regard. On exploration, the company states: “Antioquia’s exploration activities are
conducted in a manner that has minimal impact on the environment and community”263 (emphasis added).
Antioquia is a member of PDAC, and therefore may apply PDAC’s voluntary E3 guidelines.
259
260
261
262
263
88
The other five include: Concordia-Betulia, Department of Antioquia 12,373 hectares; Caicedo, Department of Antioquia 3,156 hectares;
Jerico, Department of Antioquia 3,105 hectares; Manizales Norte, Department of Caldas 10,091 hectares; Aquadas, Department of Caldas
371 hectares. According to the company, “Gavia comprises one concession, 90 kilometres from Medellin, and is approximately 6 kilometres
southwest of Marmato. The Marmato gold district is located on the eastern side of the Western Cordillera of Colombia, 60 km southwest of
Medellin. This district was well-known for its pre-colonial gold and silver mining camps, and small-scale mining is still active in the area. The
largest player in the district is Medoro Resources Ltd., which has reported measured and indicated resources of 7.5 million ounces of gold
and inferred resources of 2.2 million ounces of gold. Gavia shares the same mineralized events as that found at Marmato.” http://www.
antioquiagoldinc.com/s/news.asp?ReportID=496317, accessed September 15, 2011.
Corporate responsibility tab, www.antioquiagold.com, accessed September 15, 2011
Corporate responsibility tab, www.antioquiagold.com, accessed September 15, 2011
Mandate and policy tab, www.antioquiagold.com, accessed September 15, 2011
Mandate and policy tab, www.antioquiagold.com, accessed September 15, 2011
Holding Extractive Companies to Account in Colombia Analysis and Perspectives from RICL
According to community members, interactions with Antioquia Gold to date have been far from respectful.
One community leader said that “[On February 6, 2011] Antioquia Gold presented itself to the Resguardo
authorities, intimidating them and threatening that they would have to use other means to guarantee their
work in the area”. In the words of one participant who summed up the conclusions of a workshop discussion:
“Antioquia Gold’s behaviour so far has been intimidating and threatening to the community and its
authorities. The company comes in because it comes in; it does not recognize our authority and ways
of organizing and governing ourselves. And this is very contrary to what the company proposes with
regards to establishing relations based on respect and trust.”
Indeed, this perspective regarding the company’s lack of respect — and its expectation that it could come
into Resguardo territory to undertake exploration without appropriate consultation and consent — was
denounced in an urgent action issued by RICL and sent to the Ambassador of Canada in Colombia, Tim
Martin, on the 26th of October, 2011.
5.2.2 Batero Gold
Batero Gold Corp., a Vancouver-based precious and base metals exploration and development company
trading under the Toronto and Vancouver Stock Exchanges (TSX-V:BAT), focuses its activities in the Mid-Cauca
porphyry gold and copper belt. Specifically, the company explores within the Quinchía district —adjacent
to RICL — where it owns 100% of the Batero-Quinchía Project, comprising a 1,407 hectare tenement which
includes three known gold porphyry target centres. The project is located some 55 km north of Pereira, with
the village of Quinchía three km away. It is operated by Batero’s Colombian subsidiary, Minera Quinchia
S.A.S. (MQ).
According to the company website, “The Quinchía district and Batero’s project is considered socially stable
and mining friendly and is supported with a comprehensive infrastructure network.”264 A description from
2010, now no longer available, had noted that: “The Municipality of Quinchía is recognized as a stable and
secure social and political environment” (emphasis added). This observation may have changed with time,
as the new website text no longer includes any reference to security.
Batero bought this property in July 2010, and in May 2011 it bought two historic artisanal mines. To date
there have been three phases of exploration: 40,000 metres of drilling has taken place, with 12,500 more
metres currently in progress. In only three months (ending in May 2011), the company spent $7,660,961
in drilling, with $1,571,642 in salaries. The company claims it has all its environmental permits and
arrangements with land owners.265 It has conducted baseline studies and impact assessment.
In referring to its project, the company’s website makes note of the other significant gold deposits in the
area, namely: Marmato (9.8 million ounces of gold; owned by Medoro Resources and located approximately
20 km north of the Batero-Quinchía Project) and La Colosa (12.3 million ounces; owned by AngloGold
Ashanti and located approximately 100 km SSE of the Project). This belt is also host to other significant
porphyry gold deposits, including Titiribi, La Mina, and Quebradona.266
It is noteworthy that the company’s Director of Exploration was formerly with AngloGold Ashanti, when the
La Colosa deposit was discovered.
264
265
266
www.baterogold.com, accessed September 15, 2011.
A January 2012 press release confirms the company has received the relevant permits towards mine development. http://www.marketwatch.
com/story/batero-receives-confirmation-from-ingeominas-that-100-of-the-property-is-now-covered-by-concession-agreements-allowinglong-term-future-exploitation-of-project-2012-01-16-82300?reflink=MW_news_stmp. Accessed January 16, 2012
http://www.baterogold.com/i/pdf/Presentations/BAT_FactSheet.pdf.
89
Being adjacent to RICL, and working in areas of spiritual importance to the Embera Chamí People of the
Resguardo, all of Batero-Gold’s current and proposed activities affect RICL.
Batero Gold’s CSR commitments
Batero reports that it is “investing in environmental and social programs to help build positive relationships
with local communities and ensure the sustainability of the company’s long-term objectives.” 267 It notes that:
Colombia’s Quinchía district is recognized as a mining friendly and socially stable area; the local
community’s citizens are educated, and work primarily in commerce, agriculture and mining. These
inherent characteristics — combined with Batero’s ongoing efforts as well as the 10 years of social
and community building work undertaking by the project’s predecessors — have helped build strong
support for the project and, in general, for mineral exploration and mining.
Further, “Batero demonstrates deep respect for local communities and works continuously to foster good
partnerships, friendship, healthy co-operation and co-existence.” The company reports that it has set up social
and environmental committees in the region that “facilitate communication with indigenous communities” and
that “continue to yield positive results.”
One way in which strong relationships are being built, according to the company, is through “hosting
community presentations, forums and educational workshops that promote awareness, transparency and
healthy dialogue.” As well, “Batero meets regularly with local community leaders and other representatives
to better understand and help manage the expectations of communities and families living in the region,
and to help ensure local communities are engaged participants in the project and support its successful
advancement.” A corporate presentation notes also that baseline socio-economic and environmental studies
have been conducted to gather data on the local living and working conditions, and to provide benchmark
studies to the improvement of life in Quinchía.268 On environmental issues, the company says it is committed to
operating in an environmentally responsible manner throughout the project life cycle: “Beyond complying with
local regulations Batero strives to exceed Colombian environmental laws.”
While the company has no targeted policies on Indigenous or Tribal Peoples, it does make reference to
Indigenous Peoples throughout its presentation. It reportedly supports “local cultural and education activities
such as dance and music programs, as well as environmental topics of interest including anthropology research
that is documenting indigenous cultures – use of medical plants that are endangered and detailed inventory
of local forests and vegetation.”269 As well, the company acknowledges the risk involved with operating in an
area where land title might be transferred to Indigenous Peoples. Minutes from discussions by the board of
directors in May 2011 note that there is no assurance of title, and that “it is possible that any of our properties
may be subject to prior unregistered agreements or transfers or native land claims ...”
It is disconcerting however, that the company has removed from its website some of the previous descriptions
of the area that decisively established the importance of the mountain ranges to Indigenous spirituality, and
Indigenous historic presence in the area. When accessed in 2010, the company web-site stated that:
“Cerro Batero is the name of the mountain which stands prominently and translated as “The
Protector”, being located on the outskirts of the Batero-Quinchía Project. Cerro Batero has a long and
storied history with the «Paisas»; the peoples of the Quinchia district renowned country wide both
historically and today for their adept skills in commerce, agriculture and mining. Before the Spanish
«Conquistadores» arrived in the Quinchía region, the name of Cerro Batero was Yucatama Caramba.
According to tradition of the local Indian tribes, Cerro Batero was the refuge of Michua, the goddess of
courage and war. And according to the legend, the goddess protected the two main regional tribes, the
267
268
269
90
http://www.baterogold.com/corporate-governance/social-and-environmental. Additional quotes are from this page.
Sept 2011 corporate presentation, www.baterogold.com
Sept 2011 corporate presentation, www.batergogold.com
Holding Extractive Companies to Account in Colombia Guaqueramaes and Tapasco. The
oral tradition says that the goddess
directed thunder and lightning at
the invaders and could turn rivers
into blood — «The Protector».
Furthermore, in 2010 the company noted:
“The name Quinchía comes from
the name Quincho, which means
sharp stick. To protect their
villages, the Indians surrounded the
perimeter with a palisade of sharp
sticks (Quinchos), and on top they
placed human skulls in order to
scare their enemies away. Quinchía
and Cerro Batero are forever
linked and understanding this,
Batero Gold Corp. will attempt
to uphold the tradition with the
peoples from the Quinchía area
in the same way today as both
names are historically linked.”270
(emphasis added)
These strong references to Indigenous
cultural ties to the area are no longer on
the web-site.
Besides its own company policies, Batero
Gold is a member of PDAC, and therefore
might voluntarily implement the E3 Plus
guidelines.
Analysis and Perspectives from RICL
To date Batero Gold has not approached
the authorities of the Resguardo. This
Federico Herrera, Local Project Coordinator (Caldas), gives a presentation at
the Caldas workshop on Free,
contradicts their claim that there is broad
Prior and Informed Consent and Prior Consultation.
community support for the project, and
that the company is being transparent with
all those potentially affected by its activities. It also questions whether all impacts, including those that might
affect neighbouring communities, have been included in the environmental and social assessment studies
to date. The repercussions of working near or on a mountain of spiritual significance to several communities
could be enormous; the scope of company studies and interactions needs to be adjusted accordingly,
particularly in undertaking appropriate consultation and consent processes.
Batero’s claim that Quinchía is a socially stable area that is friendly to mining was challenged by RICL
community members, particularly in light of the violent death of an Indigenous community member who
reportedly did not want to sell his lot to the company. Participants at a community workshop concluded that
this incident “upset the environment and tranquility in the area.”
270
Description maintained in NSI archives; accessed from the Batero Gold website in 2010.
91
5.2.3 AngloGold Ashanti
AngloGold Ashanti (AGA) of South Africa is one of the largest miners involved in Colombia, and it has been
active in both of the case study sites. The primary listing of the company’s shares is on the Johannesburg Stock
Exchange Limited (JSE). A variety of types of AGA shares are also listed on stock exchanges in London, Paris,
Ghana, Brussels, New York and Australia. The company has 20 operating mines on four continents, along with
several active exploration programs (mostly in Australia, the Democratic Republic of Congo, and Colombia). In
2010 it employed 62,046 people (including contractors), spent USD $1.015 billion, and produced 4.52 million
ounces of gold while maintaining a gold reserve of 71.2 million ounces. In short, it is one of the world’s biggest
mining companies.
In the Americas, AGA is currently also invested in the United States (Cripple Creek & Victor Gold Mine),
Argentina (Mina Cerro Vanguardia); and Brazil (AngloGold Ashanti Córrego do Sítio Mineração (AGA
-Mineração; Serra Grande). The Americas represent a region of growth for the company, and is the source of
19% of the gold produced by AGA.
In Colombia, AGA has been active since 1999.271 From 1999-2003 it prepared the grounds for projects by
undertaking research, generating a database and a strategy for development, in alliance with other companies.
It began operating under the names Sociedad Kedahda and Kedahda Associates, until it acquired the name
Anglo-Gold Ashanti Colombia in 2003.272 During these early years, AGA invested some USD $3.6 million in its
Colombian activities.
The exploration program commenced in earnest in 2004. Since then, AGA has been in joint ventures with
Mineros S.A (Colombia), Glencore (Switzerland), B2Gold (Canada), and others, including U308, formerly
Mega Uranium (both from Canada). AGA received mining rights to 85,737 km2, or 7.5% of Colombia’s entire
territory.273 And since then, AGA and its associates have requested concessions of over 10.8 million hectares
in Colombia.274 By the end of 2010, AGA had consolidated its area of focus to 15,815 km², with two projects
of particular interest to the company: Gramalote and La Colosa. Plans for the future, however, include a
$400-million investment in activities from 2013-2015; $300 million is earmarked for exploration work at La
Colosa, and the remaining $100 million for exploration projects in the regions of Antioquia, Cauca, Bolivar and
Caldas, according to AngloGold’s CEO in Colombia, Rafael Herz.275
Briefly, Gramalote is a project in the municipality of San Roque, Antioquia, where AGA is the 51% owneroperator, and B2Gold is the 49% owner. Mapping and surface exploration has taken place, and a pre-feasibility
study is underway, which is expected to lead to a feasibility study in 2012. If successful, construction would
start in 2013, and production in late 2015. The companies involved note that there are artisanal miners in the
area, and that this area has been mined since pre-Colombian times.276 The current environmental license will
need to be reviewed in light of changes in activities, and baseline studies and ESIAs to be undertaken towards
this end. In 2011, USD $15 million was to be spent on activities.
La Colosa is a project near Ibague, Tolima in Cajamarca that is entirely owned by AGA. In August 2010, an
exploration permit was obtained for work in a restricted area — the area of mining interest overlaps the Central
Forest Reserve, created in 1959. According to the company, a pre-feasibility study will be completed in 2013, and
social and environmental impact assessment will also take place during this timeframe. AGA notes that while
the area contains important ore bodies, even more discoveries could still be made there. If so, the pre-feasibility
study would be adapted, and the project would grow in scale. Plans involve a feasibility study in 2014/2015; if
viable, construction would then begin. In 2011, some USD $70 million was spent on La Colosa activities. The
271
272
273
274
275
276
92
There are conflicting dates in AGA’s reports: according to the 2007 Country Report, it first established its presence in Colombia in 2000, but
the 2008 Country Report states that it was in 2003, whereas the 2008 Report to Society states that it was in 1999.
AGA 2008 Report to Society, p. 12
AGA presentation on greenfields, available at www.anglogoldashanti.com.
AGA 2007 Colombia Report 2007, p. 2
Reuters (2012).
http://www.b2gold.com.
Holding Extractive Companies to Account in Colombia company notes that the project generated strong reactions from rice growers and environmentalists, particularly
because of its impact on water. Indeed, in 2011 the Government of Colombia denied an environmental permit to
the company over water issues.277 To mitigate this, the company has established a water round table to come up
with solutions. It also has biodiversity campaigns in the region, and is developing an environmental monitoring
program together with local universities and the international NGO, Conservation International.
AGA currently has five concessions in the Supía, Marmato, and Quinchía region around RICL, with 14 currently
being requested, and 20 ceded back to the State.278 In addition, two companies that have agreements with
AngloGold Ashanti and whose activities could affect RICL include B2Goldand U308, both Canadian juniors.
5.2.3a B2Gold
While B2Gold has been involved in several exploration projects with AGA, the project most directly affecting
RICL is the Quebradona Project. The six-by-four km wide Quebradona district contains five gold-bearing
porphyry systems, where B2Gold has undertaken active exploration work, including mapping, stream sediment
sampling, systematic soil sampling, detailed rock chip sampling and an airborne magnetic survey.279 AGA notes
in its 2008 Country Report that:
“Significant results were released from the Quebradona gold-copper porphyry project that are likely
to increase the mineral resource at this project. On receipt of all assay and geological data for the
AngloGold Ashanti/B2Gold JV Quebradona drilling programme, AngloGold Ashanti may decide on its
level of future participation in the project (49%, 51% or 65% interest).”280
Quebradona seems to have taken a back seat while B2Gold and AGA focus on the Gramalote project. However,
should this project evolve into an open-pit gold, mine, its cumulative impact with other proposed mines in the
area would be significant for RICL. Regarding CSR commitments, B2Gold is a member of PDAC.
5.2.3b U308
For years, uranium exploration has taken place in a 13 square kilometre concession area in Quinchía, Risaralda,
which is adjacent to RICL. While it is difficult to trace back, it appears that the area was first explored by
Canadian company Energentia Resources. In 2008, Energentia was taken over by Mega Uranium, also
Canadian.281 In 2009, Mega Uranium and AngloGold Ashanti signed a farm-in agreement, whereby Mega
would earn 75% interest in three areas of the Central Cordillera – Quinchía (13 km²), Murillo (87 km²), and
Saldana (11,828 km²). The three areas were chosen by Mega geologists following a review of the multielement analyses of 4870 rock and stream sediment samples that were collected by AngloGold, during its
comprehensive geochemical survey of the Central Cordillera.282
Then in February 2010, U308 Corp., a Canadian junior trading under TSX-V: (UWE) bought all of Mega’s South
American properties, including the Quinchía concession.283 Web site reviews and discussions with company
personnel conclude that the Quinchía concession is not a current focus of interest for U308. Instead, the
company is placing most of its attention on the Berlin project in Caldas, which lies in the agricultural heartland
of Colombia, and near its largest river, the Magdalena.
277
278
279
280
281
282
283
Reuters (2012).
AGA provided this information in October 2011, through excel sheets and maps which they shared directly with the research team and local
community coordinators of the NSI-PCN-RICL project.
http://www.b2gold.com/projects/colombia/quebradona.aspx
AGA 2008 Country Report, p.6.
Mega Uranium acquired 624 km² of tenements through this takeover, of which the main asset is the Berlin deposit in Caldas Province.
AGA’s 2008 Country Report for Colombia mentions the Joint Venture with Mega Uranium (p.5), but does not go into detail. Conversations with
company personnel have not yielded further information on this arrangement. All information in this document is drawn from press releases,
and the websites of U308 and Mega Uranium.
Mega also transferred $4 million in cash to U3O8 Corp. in exchange for 30,564,858 common shares in U3O8 Corp.
93
Working Group, Environmental and Social Impact Assessment workshop, Cañamomo Lomaprieta Indigenous Reserve.
While U308 does not appear to have any formal CSR, environmental or Indigenous Peoples policies, and does
not make references to impacts of its activities in Colombia, the website does contain statements, particularly
in relation to its activities in Guyana. For example:
“We ensure that our exploration work on Amerindian land is done in a manner that is acceptable to the
land-owners. We rely on guidance from the local communities. Formal negotiations with the Amerindian
communities are undertaken under the auspices of the Ministry of Amerindian Affairs with the Guyana
Geology and Mines Commission in a tripartite system that provides for open dialogue and transparency.”
U308 is also a member of PDAC.
AngloGold Ashanti’s CSR commitments
As one of the world’s leading gold mining companies, it is not surprising that AGA has also committed to, and is
a member or signatory of numerous voluntary CSR initiatives. Among these are:
• The Global Reporting Initiative (GRI). This is obligatory for all companies trading on the JSE.284 The
company claims to report at an A+ level against the GRI; in other words, the company reports against
all relevant GRI core indicators and sector supplements, and this reporting is externally assured.285
AngloGold Ashanti plans to report against the updated Mining and Metals sector supplement
indicators in 2011.
• The UN Global Compact (UNGC).
284
285
94
The JSE was the first market in the world to mandate thresholds of social and environmental reporting practice (Nolan 2007).
In 2010 it was assured by Ernst & Young.
Holding Extractive Companies to Account in Colombia • The International Council on Mining and Metals (ICMM)’s Sustainable Development Framework and
(May 2008) Position Statement on Indigenous Peoples.
• The Voluntary Principles on Security and Human Rights (VPs).
• The Extractive Industries Transparency Initiative (EITI).
• The International Cyanide Management Code for the Manufacture, Transport and Use of Cyanide in
the Production of Gold (the Cyanide Code).
• The Responsible Jewelry Council.
The company has also participated actively in discussions of the World Gold Council, the Initiative for the
Responsible Mining Assurance and the Communities and Small-Scale Mining Initiative (CASM).286
In addition, AngloGold has committed to implementing the “Protect, Respect, Remedy” framework (of the
UN Special Rapporteur on Business and Human Rights, John Ruggie). Following a gap analysis, the company
committed to developing and implementing an overarching human rights framework and related policy
procedures. This was scheduled to be developed in 2011, but had not yet been seen, as of mid-2012.
Finally, besides external initiatives, the company commits to its own mission, vision and core values. According
to its 2010 Sustainability Report, one of AGA’s core values is to ensure that:
“The communities and societies in which we operate will be better off for AngloGold Ashanti having
been there. We uphold and promote fundamental human rights where we do business. We contribute
to building productive, respectful and mutually beneficial partnerships in the communities in which we
operate. We aim to leave host communities with a sustainable future”287 (emphasis added).
With regards to its activities in Colombia, AngloGold’s reports note:
• On security issues: The 2007 Country Report directly acknowledges that the company knew it was
entering a country in armed conflict, with all the entailing risks.288 In line with membership to the
Voluntary Principles, the company has developed a human rights and security policy, including a
management standard and accompanying guidance note, a training program, and a toolkit to assist
operations and exploration sites to align their security practices with the VPs. This came into effect
in 2008.289 As well, “AGA has signed agreements with the official security forces for protection in
certain areas.”290 The 2008 Country Report acknowledges escalating tensions between the company
and artisanal and small-scale miners, and illegal miners, and that there were “a number of incidents
reported during the year, three involving shootings.”291
• On community engagement: There is a Department of Social Development supported by a national
coordinator, and social supervisors located at each project site. AGA states that: “Relations with the
communities are based on mutual respect and recognition and, in most cases, co-operation. Community
members are encouraged to approach the company with any complaints and grievances and these are
attended to promptly.”292 In addition, the company establishes a Committee of Social and Environmental
Responsibility in each municipality in which an exploration project is underway; meetings take place
twice a month to share information about the projects and identify social programs.
286 AGA 2007 Country Report, p. 12.
287 AGA 2010 Sustainability Report, p. 1.
288“Given the internal conflict in Colombia, AngloGold Ashanti was well aware of the risks it faced when it entered Colombia. The company also
knew that the country was not accustomed to a modern approach to mineral exploration. Our objective is to find viable projects in Colombia,
projects that can be developed into mines which will form an economic hub in the areas where they are situated. It is our hope that this will
lead to other commercial ventures being established, bringing greater stability and improved living standards to the communities concerned.
Wherever AngloGold Ashanti conducts exploration it puts in place a responsible, transparent, social programme which is focused on the
communities and is underpinned by respect for human rights and cultural values.” (2007 Country Report, p.7)
289 AGA 2007 Country Report, p.12.
290 AGA 2008 Country Report, p. 17.
95
Box 19: Select AGA Commitments as a Member of the ICMM
From the ICMM Principles and Sustainable Development Framework:
Principle 3: Uphold fundamental human rights and respect cultures, customs and values in dealings with
employees and others who are affected by our activities
•
Ensure that all relevant staff, including security personnel, are provided with appropriate cultural and
human rights training and guidance;
•
Minimise involuntary resettlement, and compensate fairly for adverse effects on the community where
they cannot be avoided;
•
Respect the culture and heritage of local communities, including indigenous peoples.
Principle 6: Seek continual improvement of our environmental performance
• Assess the positive and negative, the direct and indirect, and the cumulative environmental impacts of
new projects – from exploration through closure;
•
Implement an environmental management system focused on continual improvement to review,
prevent, mitigate or ameliorate adverse environmental impacts.
Principle 9: Contribute to the social, economic and institutional development of the communities in which we operate
• Engage at the earliest practical stage with likely affected parties to discuss and respond to issues and
conflicts concerning the management of social impacts;
•
Ensure that appropriate systems are in place for ongoing interaction with affected parties, making sure that
minorities and other marginalised groups have equitable and culturally appropriate means of engagement.
Principle 10: Implement effective and transparent engagement, communication and independently verified
reporting arrangements with our stakeholders
• Report on our economic, social and environmental performance and contribution to sustainable
development;
•
Provide information that is timely, accurate and relevant;
•
Engage with and respond to stakeholders through open consultation processes.
From the ICMM Draft Position Statement on Mining and Indigenous Peoples Issues (May 2008):
Recognition statement:
5. ICMM members believe that successful mining and metal projects require the broad support of the
communities in which they operate, including of Indigenous Peoples, from exploration through to closure.
Commitments. ICMM members commit to:
3. Engaging and consulting with Indigenous Peoples in a fair, timely and culturally appropriate way
throughout the project cycle. Engagement will be based on honest and open provision of information,
and in a form that is accessible to Indigenous Peoples. Engagement will begin at the earliest possible
stage of potential mining activities, prior to substantive on-the-ground exploration. Engagement,
wherever possible, will be undertaken through traditional authorities within communities and with
respect for traditional decision-making structures and processes;
9. Through implementation of all of the preceding actions, seek broad community support for new projects
or activities. ICMM members recognize that, following consultation with local people and relevant
authorities, a decision may sometimes be made not to proceed with developments or exploration
even if this is legally permitted.
Sources: ICMM (2003; 2008)
96
Holding Extractive Companies to Account in Colombia • On relations with artisanal and small-scale miners (ASM): The company identifies this as one of its key
challenges in Colombia. AGA states that its view is one “that permits co-existence and promotes the
development of orderly, viable small scale mining sectors in collaboration with host communities and
governments as a quid pro quo for respecting the security of the operations.” It notes that in Colombia,
a ‘Good Friends and Neighbours’ policy has been developed that provides for the establishment of
contracts and collaborative agreements, in the interest of promoting legal and commercial mining
activity: “At the heart of the programme is the allocation of ground to ASM miners, giving them legal
mining title over the property. In return for this, the miners have to register in terms of the local
mining regulatory framework and comply with some basic health and safety and environmental
requirements.”293 Furthermore, AngloGold claims that its activities in the country “have never led to
displacement or relocation of Afro-Colombian minorities”; instead it claims to have helped legalize
small miners and mining co-operatives, and in two instances to have established joint ventures with
co-operatives, Miraflores and San Martin de Loba.294 It does admit to escalating tensions with smallscale miners, as noted (in the security issues section) above.
Analysis of AngloGold Ashanti’s CSR materials
Since it began its activities in Colombia in 1999, with exploration starting in earnest in 2004, AGA Colombia has
issued only two country reports, for 2007 and 2008. It is important to note that only the 2007 Country Report is
available in Spanish.295 As well, in 2008, the company issued a “Report to Society”, on its GRI (G3 version), ICMM
and UNGC commitments. An explanatory letter by the company’s president notes that the reporting in this
document is only to a B level (AGA purports to reporting to an A+ level for its aggregate reports, and for other
countries/projects). The reason given for this lower standard of reporting was that: “We have concluded the
majority of indicators that are included in these requirements, but have some aspects yet to cover, due to the fact
that the company does not have projects in the advanced stages of the mining cycle”. The president also notes
that the company did not commission external verification for the report, but committed to do so for the 2009
report (which has yet to be issued, as of June 2012).
Even before examining the substance of the report, two concerns arise: 1) Readers would be, justifiably,
skeptical of unverified, self-reported company information; and 2) The logic in the explanation of why
exploration projects need less reporting appears flawed. While some indicators will clearly not be relevant,
the company can still commit to reporting exploration projects to an A+ level, with external assurance –
particularly when working in a country
experiencing armed conflict.
“AngloGold Ashanti does not carry out exploration
In terms of substance on the indicators,
processes in places where there is armed conflict.
the report is thin on content, and in
In these cases the company asks for a report from the
some cases blatantly misleading, in
authorities to confirm the presence of armed actors:
that it reports on far less than the
A decision that has been made might change if
whole picture. For example, the 2009
we are informed about armed conflict in the area.”
Sustainability Report, contained within
Julio Cesar Uribe, AngloGold Ashanti: panel presentation,
the 2008 Report to Society (which
National Workshop on Environmental and Social
covers the previous year’s activity),
Impact Assessment, August 2011, Bogota
claims to have ‘entirely reported’ on
HR9, the Indigenous Rights indicator.
HR9 requires reporting on the
“total number of incidents involving rights of Indigenous peoples and actions taken”. It is also intended to
cover Principle 3 of ICMM’s Framework on Sustainable Development, which commits members to “uphold
fundamental human rights and respect cultures, customs, and values in dealings with employees and others
who are affected by our activities.” The reader is referred to pages 68-71 of the 2008 Report to Society for
293
294
295
AGA 2007 Country Report, p. 13 and p. 14.
AGA 2008 Country Report, p. 20.
The 2008 Country Report and all others are available only in English on the website.
97
information on this indicator. The text on those pages refers to one incident in February 2008, involving actions
taken by the military personnel, in the case of drunken soldiers, that violated the VPs.
According to the company,
“Aside from this incident, the company has not been reported for violation of human rights, nor has
any investigation been initiated. On the contrary, the company has always been in full disposition to
promote the growth of human rights awareness and to ensure that they are honored by the company
and by any other people or groups that interact with AngloGold Ashanti Colombia.”296
However, in this self-reporting, AngloGold ignored a critical human rights violation that took place in 2008
involving the Resguardo Indígena Cañamomo Lomaprieta, and that was publicly denounced by the traditional
authorities (see the RICL perspectives section below).297
The company also omits other GRI indicators that should be reported on even during exploration, including:
HR12: Description of policies, guidelines and procedures to address the needs of Indigenous people; and
HR13: Description of jointly managed community grievance mechanisms/authority.
Curiously, the company concludes that the following indicators do not apply to its current activities in
Colombia, and therefore decided it need not report against them:
MM7: Description of significant incidents affecting communities during the memory period, and grievance
mechanisms used to resolve the incidents and their outcomes.
MM8: Description of programs in which the reporting organization has been involved that addressed
artisanal and small-scale-mining (ASM) within company areas of operation with the participation of
informant organizations.
MM11: Description of the process for identifying local communities’ land and customary rights, including
those of Indigenous peoples, and grievance mechanisms used to resolve any disputes.298
What is left out of the reporting is telling. It highlights areas that need far more attention by the company,
particularly during the exploration phases, which are the most volatile and where many human rights
violations may occur.
With regards to AGA’s 2008 Report to Society:
• There is notable absence of specific reference to traditional authorities and Indigenous and AfroDescendent leaders, in the list of special interest groups the company claims it took into account in
completing its report. These rights-holders seem also to be left out of analyses in the document. For
example, in 2009, the company carried out a ‘consultation’ with particular ‘interest groups’ in order
to align its business model and social relations better. Although this type of initiative is a welcome
development (and should be best practice for companies intending to work responsibly), AngloGold
does not mention any ethnic groups as a specific ‘interest group’. While traditional leaders were
perhaps subsumed under the catch-all, ‘civil society organizations,’ it seems that the distinct jurisdiction,
governance, and rights of these leaders and the communities they represent were overlooked. This
is a grave oversight, particularly in Colombia, where ethnic rights are protected in the normative
framework, and where their land rights are recognized in more than 30% of the country’s territory. And
in examining the categories of people who took part in the discussions at each of AGA’s exploration sites
(which also included Quinchía), it is not clear that traditional authorities were included at all.
296
297
298
98
AngloGold Ashanti 2008 Report to Society, p. 71.
RICL (2008).
These indicators are slightly divergent in terms of numbering from the official GRI indicators as outlined in Part 3 of this paper, and are cited
here with the numbering AGA uses in its reports.
Holding Extractive Companies to Account in Colombia • References to ‘consultation’ and dialogue are company-specific and –defined. They do not embrace
the full range of these rights, or interpretations ethnic communities themselves may have of these
concepts. Significantly, there is no recognition of the right to free, prior and informed consent. FPIC
can lead either to negotiations, or to a rejection of the proposed project altogether. In this regard, the
diagram depicting the phases leading to the production of gold highlights that: “previous to initiating
the activities of prospecting, a dialogue is established with the community in the framework of human
rights”. But the normative framework for Colombia states that prior to prospecting – and even prior to
issuing concessions299 – on ancestral territories, free, prior and informed consultation leading to consent
is required. This does not imply simply a ‘dialogue’. Instead, the communities must consent to and
invite the companies to prospect on their lands, and it is the community, not the company, that should
define the processes for consultation and consent. And — if best practice was followed — should the
community consent to prospecting and exploration, a memorandum of understanding (or whatever
agreement the community decides is appropriate) would be drawn up. This would outline the conditions
for company presence on ancestral lands. If AngloGold is serious about declaring that their community
dialogue takes place within ‘the framework of human rights’, then it should respect community-defined
processes for decision-making about any activities taking place on community lands.
• The report refers also to AGA’s Social Management Manual developed specifically for Colombia, and
excerpts parts of it.300 Discussions in October 2011 with AGA personnel confirmed that this manual is
still very much what is used to guide interventions in the field – particularly on how to first approach
communities. A critical review of this manual leads to the conclusion that it is not informed by an
appropriate interpretation of human rights, particularly of ethnic rights. Again, as an example, the
model presented in the manual has several stages, the first which is pre-abordaje (roughly translated
as pre-approach). Here the manual states:
“In this first moment, a process is undertaken to consider the place where the company will
undertake the operation. The idea is not to arrive in a vacuum, but that the social department
person first review documents and relevant data about the place such that when they arrive
in the area they know how to direct themselves to the people to present the company, in a
language that is understandable to the people where the exploration will take place.”
From an ethnic rights perspective there are many problems with this conception.301 The first is the
assumption that exploration will take place. Instead, it is up to the community to determine whether
it does or does not take place, after a culturally appropriate and negotiated process wherein the
community is fully informed of potential impacts.302 Secondly, a company person must be invited to
the territory to present the proposed activities, and must agree to a time and date that is convenient
to the traditional authorities and the communities they represent. The company person cannot simply
show up at their own convenience. Prior efforts must be undertaken through formal letters, followed
up by telephone conversations. In short, while this analysis is not meant to detail the problems with the
entire manual, this small example highlights that AGA’s Colombian social management manual needs
much improvement if it is to truly guide AGA personnel appropriately; otherwise, besides offending
community representatives, undermining traditional authorities and potentially escalating violence in
the area, the company could leave itself exposed to a court challenge.
Finally, while Colombia-specific reporting by AGA is thin, consolidated information is available from the
group-level and supplementary reports by the company. However, these are also problematic. Firstly,
there is a bias towards under-reporting on exploration projects. The supplementary information document
299
300
301
302
This clarification followed Constitution Court judgment T1045-A in December 2010.
AGA Colombia, Manual de Gestión Social.
The manual seems somewhat blind regarding ‘communities’ and their rights, making no clear distinction between approaches to ethnic
communities and other communities.
If adhering to Colombia’s Constitution, which enshrines ILO Convention 169. Granted, and as emphasized throughout this paper, the current
system for issuing mining concessions has not integrated ethnic rights to consultation and consent at all prior to concessions, prospecting and
exploration, and there is a clear role here for government to right this system.
99
accompanying the 2010 Sustainability Report notes that: “Data pertaining to exploration projects has not
been extensively reported, but only in instances where it is deemed to be material.”303 Secondly, the reporting
“covers operations, joint ventures and subsidiary companies which are managed by AngloGold Ashanti only
and does not cover operations managed by joint venture partners”304 (emphasis added). These are large gaps.
Exploration is a critical mining phase and should be fully reported on. And certainly, AGA is also very much
responsible for the potential impacts of operations in joint ventures with other companies. Indeed, company
personnel interviewed have emphasized that AGA expects its partners to fully implement its CSR commitments
– so why, therefore, does it not also report on these?305
As is noted in this RICL case study, joint ventures with juniors are part and parcel of the way AGA works,
particularly in Colombia. If things go wrong in a joint venture, all partners should bear responsibility, not simply
the officially recognized operator. A case in point is uranium exploration with U308, and the farm-in agreement
of 2009 with Mega Uranium/U308. The potential impacts from ill-managed uranium exploration (and down
the road, potential exploitation) could be enormous, particularly for neighbouring communities;306 it is in AGA’s
best interest to ensure that U308 complies with all of AGA’s CSR commitments, and to report on these.
References to Colombia are sprinkled throughout the 2010 aggregate reports issued by AGA. In the 2010
Supplementary Information document, for example, Colombia is mentioned in the write-up on human rights
and business. While a 30-minute protest in front of AGA’s offices in Bogota is mentioned, there is no allusion
to any other reports of human rights violations.307 No reference is made to Colombia in its reporting on HR9,
involving the rights of Indigenous Peoples. In fact, the company states that “no specific incident or violation”
of this indicator was recorded in all its operations worldwide in 2010. However, 2010 was an important year
for the Afro-Descendent communities around La Toma, Suárez in Northern Cauca. They were being threatened
with forced relocation from their ancestral territories that had been requested by a mining title-holder (see
case study below). AGA has denied that the company has any ties to this title holder. However, community
leaders and social organizations allege there may be a link between this situation and the ongoing threats to
social leaders in the area by illegal armed groups, who may be engaging in ‘social cleansing’ to clear the path
for large-scale mining in the area, including for AGA. The resettlement of the ancestral miners in La Toma
has been stayed by a precedent-setting Constitutional Court decision, described further in the case study on
Cauca.308 Further, it is surprising that the report contains nothing for Colombia on “SO1: Nature, scope, and
effectiveness of programmes and practices that assess and manage the impacts of operations on communities,
including entering, operating and exiting,” given that much controversy surrounds its approach – particularly in
the case of La Colosa.309
303
304
305
306
307
308
309
100
AGA Supplementary Information Report 2010, p. 5.
AGA Supplementary Information Report 2010, p. 5.
It appears there may be some inconsistency in AGA’s approach to reporting, as one indicator AGA reports on is HR2: Percentage of significant
suppliers and contractors that have undergone screening on human rights and actions taken. The company states that: “Suppliers to our
operations are required by contract to adhere to AngloGold Ashanti’s ethical policies, which include human rights considerations, the ethical
treatment of its employees and human rights laws in the country of operation.” A key question is whether contractors also include juniors
working in JVs under exploration. If so, their actions should be considered under this indicator. Importantly, the 2010 sustainability report notes
the following commitment: “During 2011, the greenfield exploration business unit will be working to formalize and improve a process which
will ensure that an appropriate level of community and environmental oversight is completed at each stage of exploration” (p.10). On human
rights it mentions that a new management standard on the handling of grievances will be drafted, including allegations regarding human rights
violations, and the development of “tools and a framework for fulfilling responsibilities in respect of our supply chain. This involves adopting a
risk-aware approach, where the performance of contractors, suppliers and partners is verified and tracked, and procedures identified for acting
on adverse human rights behavior” (p.31). Again, a question is whether this will include exploration teams working in JVs.
In 2010, Victoria Tauli Corpuz, former member of the UN Permanent Forum on Indigenous Issues, issued a call for a global moratorium on
uranium mining, given the grave impacts of this type of mining for Indigenous Peoples and the world. See Corpuz (2010).
The report states that “Three members of the Peace Maker Christian Team approached AngloGold Ashanti’s offices in Bogota to deliver a letter
which accused the company of having worked with paramilitary groups to displace the artisanal miners of the Federación de Agromineros del
Sur de Bolivar (FEDEAGROMISBOL). The team protested in front of the building for 30 minutes before dispersing.”
Other mentions of Colombia in the aggregate reports refer to:
- Emergency response plans: In Colombia, the emergency management process begins with a hazards and risk identification matrix. Possible
emergency situations include forest fires, mass landslides, mass air or road accidents, earthquakes and volcanic eruptions. For each scenario,
a vulnerability analysis has been carried out and a contingency plan implemented. The emergency brigade has four-hour monthly training
sessions, and drills are conducted biannually. The team consists of 30 members. (p.44).
- Community investment figures: In 2010 AGA spent USD $1,557,000 as opposed to $800,000 in 2009, increasing “its contributions
substantially in education initiatives, public awareness programmes and local economic development projects” (p.61).
See for example Pax Christi (2009); Martinez (2009).
Holding Extractive Companies to Account in Colombia Photo: Federico Herrera
Meeting between miners of the Association of Miners and Traditional Authourities of the Resguardo Indígena Cañamomo Lomaprieta,
Caldas, Colombia to discuss Resolution 031, which regulates ancestral mining within the Resguardo.
Analysis and perspectives from RICL
To date, relations with Anglo-Gold Ashanti have been tense and fraught, largely due to a series of events that
took place in the Resguardo in 2008 that communities link directly with this company.
In March and April 2008, a helicopter appeared in the skies of the Resguardo, with a large geo-referencing
‘ball’ hanging on its underbelly. It began to fly very low over Resguardo territory, including over their sacred
mountains. Children and Elders ran for cover, fearing for their lives. They did not know what the ball contained,
and felt it might be lethal, that it could be a weapon, and that it could kill them (see Box 20). In a public
communication, RICL authorities note that:
“5. The flyovers are happening at a very low height and disrespecting our sacred sites, affecting wildlife
and terrifying our children and the community in general.
6. The flyovers are creating a state of anxiety (zozobra) and general fear, not only because of the
flyovers, but because of everything that might transpire following them.
7. And this week we have also found out that several community people have been approached by
company representatives offering payouts to buy their lands.”310
Disturbingly, traditional authorities allege that the exploration flyovers were accompanied by the presence
of public forces: the armed air forces and infantry. In addition, they state that the activities coincided with a
machine-gun shoot-out in the community of Portachuelo. All these exploration activities were done “without
our consent, affecting our harmony, spirituality and putting our existence at risk.”311
310
311
RICL (2008).
RICL (2008).
Box 20: Excerpts from an interview with Héctor Jaime Vinasco,
then Cabildo Gobernador (Chief traditional authority) of the Resguardo Indígena
Cañamomo Lomparieta, regarding the March 2008 Flyover
– by Viviane Weitzner
Q: How did you feel when you saw the helicopter flying over your sacred mountains?
R: Initially we couldn’t perceive the flyovers because they were at a very high altitude. But later they started to
fly low and slowly over the territory in a helicopter with an instrument on its underbelly to undertake geophysical
referencing.
What one feels is a profound unease, anger and impotence, because we have had many meetings with state
authorities where we have asked them to respect our territory, and to make a commitment to not give out any
type of authorization if there has not first been agreement with the traditional authorities for the interventions to
be carried out.
A deep sadness at knowing that community members are terrified of the flyovers; our traditional healers hold that
what this flyover of the Resguardo caused – this anxiety (angustia) among the people – has harmed the energy
balance of the community. And even more gravely, because it has involved profanation of the sacred sites that
house our guardian protectors who ensure our community well-being.
Q: What impact did this process have with regards to your attitude towards the company?
R: My reaction to the company was one of immediate opposition, of rejection, because they had violated the
tranquility of the community, they had disrespected us in our own house, but also because we felt it was a direct
challenge to us and a threat. The traditional authorities’ attitude and response was to denounce the situation and
file a complaint. But that wasn’t the same attitude of many community members who wished they had an armed
weapon to shoot … What we lived through was chaotic.
An examination of the paper trail around this incident leads to several conclusions, and several questions.
It appears that two companies were operating together for this flyover. On the one hand, the Regional
Indigenous Organization (CRIDEC), which represents 12 Indigenous communities in eight municipalities that
belong to the Embera Chami Indigenous People, received a letter from AngloGold Ashanti in January 2008.
It expressed interest in a meeting to explain Phase I of the exploration programme AGA was proposing to
undertake in four Resguardos in the municipality of Riosucio. In this letter, the company representative
claims that the company will “respect whatever decision that [the Resguardos] adopt with regards to the
company presence.” CRIDEC responded, noting that the proposed meeting date did not work, and that
“all exploration that takes place on Indigenous territories has to be undertaken through agreements and in
line with the special orientations and special jurisdiction of Indigenous peoples, in this way respecting the
mandates of Indigenous peoples, to ensure that any type of exploration is linked to the special norms and
cultural respect of the people.”312
Letters from the company to the mayors of Riosucio and Supía, dated the 13th and 14th of February 2008
respectively, note the intention to hold meetings to publicly present the project. The letter to the mayor of
Supía notes that “some neighbourhoods in your municipality are part of the Resguardos of the muncipality
of Riosucio, and we are currently in a process of agreement-making to enable us access to their territory, and
following this for now we will not enter into Indigenous resguardos until we obtain their consent to undertake
prospecting.” These letters show the intentions of implementing consent, and respecting self-determination
and the special rights of Indigenous Peoples to decide what takes place on their territories.
312
102
CRIDEC (2008).
Holding Extractive Companies to Account in Colombia On the other hand, at the same time, the Canadian junior Colombia Goldfields wrote a letter to the Governor
of the Escopetera y Pirza Resguardo, to inform her that the company would be undertaking flyovers of her
Resguardo’s territory for mapping studies. The letter states that this activity is 100% legal and sanctioned
by the aeronautic agency, because “aerial space has free access for this type of geophysical activity.”313 This
letter, in short, disrespects the rights and jurisdiction of Indigenous Peoples, as does the notion that their
air space is ‘free access’. It wrongly implies that flyovers of Indigenous territories (for exploration that might
lead to exploitation) are permitted without prior consultation and consent. Understandably it is confusing to
operate in Colombia and respect rights when the country’s permitting system for flyovers uses a process that
would be deemed unconstitutional if it were contested.
But besides violations of domestically-protected rights, the key question that arises in this case is the nature
of the relationship between Colombia Goldfields and AGA in these flyovers. Following several requests for
clarification from project team members, a letter from AGA dated April 10, 2012 finally confirmed the links:
“AGA was involved in aerial geophysics on behalf of Gavilán Minerales y Minera Cobre y Oro
(subsidiaries of Colombia Goldfields) in 2008. Less than 2% of the flyovers were over a small portion
of the Resguardo Indígena Cañamomo Lomaprieta. At that point legal uncertainty applied as to the
need for consulting due to the allowance of free prospection in-country.”314
AGA was the operator of the aircraft on behalf of a subsidiary of Colombia Goldfields, and confirms flying
over RICL.315 So then, as operator, why did AGA not implement its own policies and obtain the consent of
RICL authorities – as AGA stated it would do, in its February 14 2008 letter to the mayor of Supía? And should
it not also then, have followed ICMM’s policies with regards to community engagement for early exploration
work? (see Box 19)
During community discussions regarding AGA’s CSR commitments and its actions in RICL, there were
allegations that when the flyovers took place in 2008, two violent actions occurred at the same time: 1)
a community miner and leader was killed; and 2) there was a machine-gun shooting in the community
of Portachuelo, allegedly by the military who accompanied the flyovers. In the words of one workshop
participant who summed up conclusions from others: “This situation clearly contradicts what the company
states in its policies, when they say they have a strong commitment to explore and develop minerals
resources in ways that are environmentally and socially responsible, and that ‘the communities and
societies in which we operate will be better off for AngloGold Ashanti having been there.’” In addition: “We
haven’t seen this in the company’s behaviour, particularly with such an aggressive action as the presence of
helicopters in the region.”
It should be said that since the 2008 flyover, there have been interactions between AGA and RICL through
this joint research project. As of late, the company has become much more open to sharing information
directly, and responding with documentation the communities have requested — including the titles they
have that might overlap with Resguardo territory, and maps of AGA concessions. However, community
members have voiced concerns that the various juniors in the area might be working with a view to selling
any finds back to a large company, in this case AGA.316 This underscores the need for accountability by any
company that is a non-operating partner in the exploration phase, or in a joint venture.
313
314
315
316
The letter also notes that it is informing the governor to inhibit “any negative alarm that the presence of the helicopter might cause” because
of people’s lack of knowledge of what the helicopter might be doing.
Letter from Mark Cutifani and Rafael Herz to Abiola Okpechi, Business and Human Rights Resource Centre, April 10, 2012.
Importantly, the claim that only 2% of flyovers were over a small portion of RICL is questionable, as RICL’s coordinates did not show on IGAC or
INGEOMINAS’ database or maps in 2008.
This suspicion stems from the various links that seem to exist amongst the companies involved in neighbouring Marmato, and the sense that
only a company as large as AngloGold Ashanti would have enough capital to move from exploration to exploitation. For example, Colombia
Goldfields, which initially bought its title to Marmato from AGA, was later bought out by Medoro, which in turn was bought out by Gran
Colombia, the current project proponent.
103
Federico Herrera (right); Viviane Weitzner (left)
(Left) This cyanide tailings pond in Marmato, Caldas, has had
health impacts on the people of Marmato, including mental
health effects and depression. It is very close to the residential
zone of El Llano. (Right) These sacred mountains of the
Resguardo Indígena Cañamomo Lomaprieta, territory of the
Embera Chamí, are being eyed by mining companies.
5.2.4 Gran Colombia Gold Corp (formerly Medoro Resources Ltd.)
Gran Colombia is the most recent company with plans for large-scale exploitation of the riches under
the town of Marmato, Caldas. Indeed, the resources in this area have been actively used by Indigenous
ancestral miners for centuries, with Spaniards exploiting the area until the 19th century, followed by English,
Colombian, and more recently Canadian companies.317 In 1953, a decree was issued that reserved the top
part of the mining area for small-scale miners, and the lower part as a Reserve for the State and for activities
by larger-scale companies.
Canadian companies with interests in Marmato have included Colombia Goldfields Ltd., which was bought
out by (and is now a subsidiary of) Medoro Resources Ltd. Medoro also bought the interests of Mineros
Nacionales S.A. (which is now also one of its subsidiaries), and its operating underground mine at Marmato.
In total, Medoro held some 16,571 hectares of exploration licenses in the district surrounding Marmato,
known as the Caramanta exploration project.318 And in June 2011, Medoro merged with Gran Colombia, in
the hopes of gaining momentum towards the construction and operation of a large-scale open pit gold mine
in Marmato.
Trading on the Toronto Stock Exchange (TSX: GCM), Gran Colombia has interests in Colombia, Mali and
Venezuela. The company describes itself as “the largest underground gold and silver producer in Colombia
with six underground mines in operation.” These include four mines in Segovia, and operations in El Zancudo
and Marmato.
317
318
104
For a comprehensive overview of the history of mining in this area, see Gartner (2005).
Medoro Resources Corporate Overview, (n/d) p. 13. The brochure “Medoro in Marmato” also refers to the following as its subsidiaries:
Mineros Nacionales SA and Compania Minera de Caldas (known now as Minerales Andinos de Occidente); it does not refer to Colombian
Goldfields (p. 3).
Holding Extractive Companies to Account in Colombia Current plans for Marmato are to build an open-pit gold and silver mine that would have a life of some 21
years, with an annual estimated production of 340,000 ounces of gold.319 A ‘scoping’ study was undertaken
by SRK consultants (United Kingdom), and submitted in May 2011. A pre-feasibility study conducted by Hatch
Limited was to be submitted in early 2012. Baseline studies for the project began in 2010. To date, a total of
672 diamond drill holes have been bored for exploration purposes.320
The company intends to continue to resettle the town of Marmato to the new town of El Llano. This process
started in 2006 following a landslide, when departmental and municipal governments identified a new site
for the town, 1.5 km from the existing town.
The company’s board of directors includes members with direct political connections to the Government
of Colombia. For example, the CEO and President of the company (who is also a member of the Board of
Director’s Executive Committee), was the former Minister of Foreign Affairs (August 2006-February 2007),
and former Minister of Culture (August 2002-February 2006). Another board member was formerly Deputy
Minister of the Ministry of the interior and Justice, and was also a former Consul of Colombia in Canada.
In terms of links with other companies, three other Gran Colombia directors are also directors of Pacific
Rubiales, which partners with Canadian oil company Talisman in exploration in Colombia.
Gran Colombia’s CSR commitments
Gran Colombia does not publish any CSR policies or commitments on its website.321 There is only a Code of
Ethics, geared towards the internal management of the company.
Yet Medoro Resources Ltd., with which the company has merged, does make CSR commitments in
its literature and website. It acknowledges, for example, the illegal mining that has taken place as a
consequence of Colombia Goldfields’ buy-out of small-scale mines, and the lack of employment sources
for those miners left without mines. Medoro partnered with Corporación para Estudios Interdisciplinarios y
Asesoría Técnica (CETEC) to develop a socio-economic and environmental improvement plan for Marmato.
The plan covers issues such as local employment, establishment of formal arrangements with artisanal
miners, agricultural projects, and negotiation of access to land for exploration. The company also claims
that “before drilling begins, the Company consults with the community to determine access routes, drill hole
locations and environmental restoration plans. … access routes to the drill hole locations are chosen in such a
way to minimize the environmental impact.” Following these activities, a report is given to the owner of the
surface rights, to sign off on once satisfied of the conditions.322
A company brochure on CSR323 notes that it is seeking to obtain certification following SA 8000 on CSR,324 ISO
319
320
321
322
323
324
According to energy economist Pablo Heidrich (personal communication, 2012), based on the figures in the SRK report, and assuming that the
mine will be open-pit and run by the current company, rather than sold to another multinational, the following figures pertain:
USD $7,600 million in sales would be generated, with some $1,300 million paid in taxes for a period of 20-23 years of operation. This would
generate a 37% fiscal participation rate in the total income (given 4% royalty tax and 33% of the assumed net company winnings of $3,600
million). The profit would therefore be about $2,600 million. This is because the business will pay $4,000 million in costs for building and
operating the mine in this time period. When benchmarking the costs of this mine against others in Colombia, Heidrich calculates that “the
mine will make some 3000 million clean, and the State some 1000 million since there are several exemptions that would be applied to the
principal tax charged to profits. Assuming that they pay the 1000 workers and technicians some USD 1000 per month for 20-23 years, this comes
to some USD 240-276 million. If 50% of the operating inputs came from Colombia, then you could add some USD 1,500 million more. The total
sum then is USD 240-276 million for the workers, USD 1,000 million for the State, USD 1,500 million for contractors. In total, USD 2,740-2,776
million stay in Colombia. Some USD 3,000 million of profits go outside the country to the mine owners, and another approximately USD 1,900
million go to inputs and services that are imported (likely through Canada’s export credit agency and embassy trade commissioners).”
September 2011 ‘Fact Sheet’, www.grancolombia.com.
As of the end of October, 2011.
Medoro Corporate Overview, (n/d) p. 19.
“Medoro en Marmato, el camino hacia el desarrollo” (n/d).
“SA8000 is promoted as a voluntary, universal standard for companies interested in auditing and certifying labour practices in their facilities
and those of their suppliers and vendors. It is designed for independent third party certification. SA8000 is based on the principles of
international human rights norms as described in International Labour Organisation conventions, the United Nations Convention on the Rights
of the Child and the Universal Declaration of Human Rights. It measures the performance of companies in eight key areas: child labour, forced
labour, health and safety, free association and collective bargaining, discrimination, disciplinary practices, working hours and compensation.
SA8000 also provides for a social accountability management system to demonstrate ongoing conformance with the standard.” http://www.
105
26000,325 and IS0 9001326 and 14001.327 In addition, the company states that resettlement of Marmato will
take place “with strict compliance to the policies and regulations of population resettlement set forth by the
World Bank, international organisms and national authorities”.328 Besides its own company policies, Medoro
Resources is also a member of PDAC, and therefore voluntarily applies E3 Plus.329
Analysis
A review of company materials and interviews with company personnel reveal almost a willful ignorance – or
at best disregard – of Indigenous and Afro-Descendent Peoples living in the area, and their rights.
Company materials such as Medoro’s CSR brochure do note that the area was first mined by Indigenous people.
However, in discussions, company personnel (including the former president) denied that there are currently
established Indigenous or Afro-Descendent communities living in the area. To make the point, the company’s
lawyer presented a copy of a letter from the Ministry of Interior certifying that the area does not appear to have
any ethnic settlements. However, the letter from the Ministry of the Interior clearly states also that:
“If when undertaking your activities you establish that an Indigenous and/or Black community exists in
the area of influence of the project, it is necessary to advise in writing the Prior Consultation Group to
fulfill the implementation of the process upheld in article 330 of the Political Constitution, article 7 of
Law 21 of 1991, article 76 of Law 99 of 1993, Decree 1320 of 1998.”330
When asked in 2011 whether the company could show a copy of the letter they wrote back to the Ministry to
state that there were indeed Indigenous and Afro-Descendent Peoples in the area, the legal counsel said that
they had one, but could not find it at the time.331
While there is no doubt that the land rights issues in the area are complex, it is also undeniable that there are
two Indigenous Governors in the Caramanta exploration project area, as well as a large percentage of AfroDescendent Peoples. International jurisprudence such as Saramaka People v. Suriname has confirmed that, for
inherent ethic rights to be upheld, the question of whether or not the ethnic peoples have officially-recognized
title to their land is irrelevant.332 Nonetheless, the Indigenous Peoples have indeed started seeking to obtain
official recognition for the collective title to their ancestral land.
Company personnel clearly have, first and foremost, a profit-maximizing bias, and may not see how ethnic
rights and human rights issues could be important to company economics in the long run. So the professional
consultants that companies hire, particularly to undertake social and environmental due diligence, should
place these issues front and centre. For example, SRK’s May 2011 ‘scoping’ report provides many insights
325
326
327
328
329
330
331
332
106
mallenbaker.net/csr/CSRfiles/SA8000.html.
“ISO 26000 … provides guidance to both business and public sector organizations on social responsibility.” http://www.iso.org/sites/
iso26000launch/index.html
A quality-management standard issued in 2008. “ISO 9001:2008 specifies requirements for a quality management system where an
organization: needs to demonstrate its ability to consistently provide product that meets customer and applicable statutory and regulatory
requirements; and aims to enhance customer satisfaction through the effective application of the system, including processes for continual
improvement of the system and the assurance of conformity to customer and applicable statutory and regulatory requirements. All
requirements of ISO 9001:2008 are generic and are intended to be applicable to all organizations, regardless of type, size and product
provided.” http://www.iso.org/iso/catalogue_detail?csnumber=46486
An environmental management standard for small and medium-sized businesses issued in 2004. http://www.iso.org/iso/iso_catalogue/
management_and_leadership_standards/environmental_management/iso_14001_2000_and_smes.htm
“Medoro en Marmato, el camino hacia el desarrollo’ (n/d), p. 6.
Also, a letter to MiningWatch Canada from the Canadian embassy dated December 20, 2011 stated that Gran Colombia is in the process of
applying for participation in the UN Voluntary Principles on Human Rights and Security.
Letter from Claudia Teresa Caceres Dominguez, Coordinator of the Prior Consultation Group of the Ministry of the Interior and Justice, to
Carmen Lucia Gonzalez Serna, CIA Minera de Caldas SA, dated 28 January, 2010 (OFI10-2226-GCP-0201).
But perhaps most disconcerting was the manner in which this issue was discussed, particularly by senior officials, who claimed that anyone
could claim to be indigenous, but that until a proper census was done, there was no proof. This contradicts ILO Convention 169 and
international standards, wherein Indigenous Peoples are self-defined. “On an individual basis, an indigenous person is one who belongs
to these indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by these
populations as one of its members (acceptance by the group). This preserves for these communities the sovereign right and power to decide
who belongs to them, without external interference (UN Doc. E/CN.4/Sub.2/1986/7 and Add. 1-4., paragraphs 379-382).”
IACHR (2007).
Holding Extractive Companies to Account in Colombia helpful for potentially affected communities, and recommendations that could mitigate impacts if the company
pays heed to them. However, there are also some big gaps in its substance, and critical questions with regards
to the nature, process and dissemination of this report.
Among the key insights the document provides for affected communities is the vital point that it is not at
all evident that a large-scale, open-pit gold mine is the best alternative for the company, or for affected
communities, when looking at all the potential environmental and social impacts. Indeed, the report concludes
that an underground mine may produce fewer negative impacts, and would still be profitable for the company.
SRK consultants recommend that this alternative be actively considered, and that the Hatch pre-feasibility
study review this option. With either option, the consultants note the large amount of waste rock that will
be produced, and potential resultant contamination. For an underground mine, a tailings dam would need to
be built with 350-metre high embankments. This would be considered a large dam, according to the World
Commission of Dams, and would require its own ESIA.333
Given the compelling arguments for an underground mine made by SRK consultants, why is it that Medoro
Resources and now Gran Colombia Gold never mention this alternative in their corporate materials, and state
instead that they are working towards the operation of a large-scale open-pit mine? Have all the options
with regards to underground
mining been discussed with the
“The decision between open-pit and subterranean
communities? Indeed, has the option
mining
is one of the most powerful ways of reducing
of ‘no mine’ been discussed with
social and environmental impact.
the communities, as called for by
Mining corporations prefer open-pit as it is much
international best practice on ESIA?
cheaper if the social and environmental costs
are
externalized. If such costs were internalized,
The 2011 SRK document also
as
should be the case in responsible mining,
provides information on the regional
then open-pit mines would be demoted.”
scope of the impacts. It notes that
the resettlement will go far beyond
Robert Goodland (2012a)
simply continuing the resettlement
of Marmato to El Llano, as several
villages and settlements will be affected by the various activities and installations of the proposed project.334
On historic legacy and liability issues, the document warns of “potential contamination from the Mineros
Nacionales operation which has unprotected waste rock dumps and a rudimentary tailings facility which
discharges overflow directly into Cascabel creek and subsequently the Cauca River.”335 Mineros Nacionales
is a subsidiary of Medoro. If Medoro is not curbing this behaviour and problem now, doubts arise about
the likelihood of the company seriously tackling potential contamination resulting from expanded mining
in the future.336 It will be very difficult to find a “safe” location for a tailings dam of this size in the vicinity of
Marmato. Furthermore, this is a seismic risk area, and also one where the heavy rainy seasons of the past
years have caused many landslides and flooding. This is a lethal combination for a dam containing cyanide
leached tailings.
333
334
335
336
“If the underground mining option is utilized, a tailings storage facility with an embankment height of approximately 350m, storing up to 30
million cubic meters (Mm3) of tailing would be constructed. The World Commission on Dams classifies dams between 5 and 15m high that
have a reservoir volume of more than 3 Mm3 as large dams. Major lenders such as the IFC are signatories to World Commission on Dams. The
proposed tailings dam would therefore qualify as a large dam and would require a detailed study of the environmental, ecological and social
impacts.” (SRK 2011: 105). A key question is what the total flooded area might be for this dam, as this would have significant impacts.
“However the mining project will impact both on the Marmato and El Llano towns as well as on the villages of San Juan, Boquerón, Echandía,
Cabras, and other districts (veredas) in the municipality, which may require complete resettlement. The combined waste rock/tailings dumps
will cause noise, visual and air pollution for the veredas as well as El Llano. There will be a need to expand El Llano or possibly develop a
new town in a different location. This would require significant collaboration between the populace, Medoro, the Department of Caldas, the
Municipality of Marmato and the Columbian [sic] government” (SRK 2011: 89).
SRK (2011: 91).
Robert Goodland (2012a) notes that given the high price of gold, “lower-impact underground gold mining [is] profitable. Gold miners should
be forced to use the safer cyanide-leaching-in-tanks (CIL) method, or non-cyanide methods, rather than the inherently risky cyanide heap
leach.”
107
The 2011 SRK ‘scoping’ study provides some valuable insights on potential alternatives and impacts; however,
it leaves much out with regards to process and substance of human rights. Regarding process, it is unclear what
type of ‘scoping’ study this is. If it is the first phase of an environmental and social impact assessment, then
the process is flawed – it should have involved identification of the stakeholders and rights holders in the area,
including traditional authorities. And there should have been discussions with them regarding their concerns,
so that future Terms of References for expert studies, and the scope of these studies, could be appropriately
targeted.337 When the former Medoro President was asked about this study — following questions about how
the local people and authorities would be involved in it — he denied that it had anything to do with the first
step of an environmental and social impact assessment. Nonetheless, a close reading of the study reveals that
it is indeed very similar to such a first
stage, as it refers to future social and
“In general the Marmato Project represents
environmental studies, and to what
the
potential for significant adverse environmental
338
these should contain.
and social impacts which are diverse.
Some
of these impacts may be irreversible or
Also in terms of process, it appears
unprecedented even with mitigation.
that there is no knowledge the
It is considered that extensive assessment
2011 SRK Study in the affected
of the physical, biophysical and socio-economic
communities, to whom it has not
339
features of the area are required and careful
been disseminated. It does not
planning of project infrastructure should occur.”
seem to be available in Spanish, nor
has a plain-language version been
SRK (2011): A3.4.
published.340 Furthermore, the version
that was available on the website, and
downloaded for this analysis, had incomplete information – the diagrams of the proposed installations and
siting had been edited out. Clearly, the information in the SRK document is vital for the communities if they are
to be fully informed about the potential options and impacts of the project, and if they are to be appropriately
involved in decision-making about their future.
While there are concerns with regards to seemingly censored information, potential non-disclosure in the
communities, and the process of the scoping study, its treatment of human rights issues is also problematic.
For example, when examining Colombia’s legal framework and commitments, the document sets out clearly
some of the environmental treaties the Government of Colombia has ratified. It does not, however, outline
Colombia’s corresponding international human rights commitments. These overlooked treaties are critical in
the context of a project involving ethnic communities. For example, it omits reference to ILO Convention 169
on Indigenous and Tribal Peoples; The UN Convention for the Elimination of all Forms of Racial Discrimination;
the American Convention on Human Rights; and the United Nations Declaration on the Rights of Indigenous
Peoples. Moreover, the chart of impacts does not include any information on impacts related to cultural
identity or gender.
Despite these problems, the report makes some very useful recommendations. In addition to further
consideration of a potential underground mine, for example, it report recommends that:
“An SEIA [Social Environmental Impact Assessment] process which addresses the legal requirements
of Colombia as well as international good practice should be conducted for the Project. It is considered
important that environmental and social studies as well as stakeholder consultation is done to the
337
338
339
340
108
The timelines and studies referred to in the 2011 SRK scoping report seem off-base and rushed, given the lack of a detailed project description
to date. For example, Appendix 5 states that a resettlement action plan is scheduled to be completed between April and October 2011.
Without knowledge of what the project will look like and who will be affected and resettled, how is this possible? If World Bank standards on
resettlement that include free, prior and informed consent are being followed ‘strictly’ (as the CSR corporate brochure claims they are), then
there is simply not enough information to draw up such a plan and get community consent, based on the project information currently available.
If it is indeed a stage in an ESIA, then SRK has committed the same flaw as that in its study of the Bakhuys Bauxite Mine Project in Suriname,
where Indigenous Peoples were left out of the study altogether and not even identified as key stakeholders. See for example, Goodland, R.
(ed) (2009); Weitzner (2008).
In October 2011, I asked one of the Indigenous governors of Caramanta if she had heard of the SRK study or seen it; she said she had not.
This conclusion is drawn from website searches up until September 15, 2011.
Holding Extractive Companies to Account in Colombia highest possible standards in order for
the Project to be acceptable to affected
stakeholders.”341
The study is clearly intended to align the Project
with IFC and Equator Principle standards, making
numerous suggestions on how to achieve this in
upcoming project work. If this is the case, then
the company will need to take into consideration
the new IFC Performance Standards,342 which
include implementing the right to free, prior and
informed consent for Indigenous Peoples.
In recent months it has become clear that
while some miners have sold their mines to the
company, and some are interested in potential
employment opportunities, there is much
opposition to the project among Marmateños.
On the 21st of December 2011, the Municipal
Council of Marmato approved the ‘esquema
de ordenamiento municipal’ (municipal land
use plan), in which, among other declarations,
it prohibited open-pit mining, declared itself
against the involuntary resettlement of the
town towards the new town “El Llano”, and
requested that Marmato be declared a UNESCO
World Cultural Heritage Site.343 Moreover,
Guido Echeverrey Piedrahita, the Governor of
Caldas, expressed the following to a delegation
of Canadian observers that visited the area in
January 2012:
Photo: Federico Herrera
Governor of Caramanta, Marmato, showing the impacts of mining
and how cyanide flows through the creeks in Marmato.
“We agree that open-pit mining should not take place anywhere in Colombia, least of all in Marmato.
We have said that here there are cultural and ancestral values to defend. The majority of Marmateños
have expressed this in multiple media, and as a consequence we oppose open-pit mining, and clearly
we back the criteria of the majority of the people of Marmato, who want to persist in history, who
want to continue being a social group unique in its cultural expressions and social manifestations.”344
A Colombian group named Pro-Defensa Marmato has also been vociferously defending Marmato from the fate
of large-scale mining.
Gran Colombia’s press releases, on the other hand, ignore all this real opposition, emphasizing instead
that plans are progressing towards active mining. The company notes the progress it is making in reaching
agreements to buy out local miners345 — agreements which will allow the artisanal miners to continue work for
up to two years, when the large-scale stage of the Marmato Project is scheduled to commence.
341
342
343
344
345
SRK (2011: xiv).
IFC (2011).
Declaring Marmato a UNESCO World Heritage site has been considered for some time, and reportedly an application to this end had been
made to government agencies in the past. Nonetheless, this official request has not been found, with some alleging that it was conveniently
misplaced to make way for large-scale mining.
Piedrahita (2012).
The company emphasizes the help given by the Secretary of the department of Caldas in agreement-making with local artisanal miners active
in Marmato, noting that it still requires 15 titles in one part of the concession area known as “El Burro”, having negotiated with about 67%
of owners; and in the areas known as Chaburquia, Echandia and Cien Pesos, where there are a total of 76 artisanal mines, the company has
negotiated with about 49 mine owners (65% of all owners). Gran Colombia Gold (2012).
109
In terms of resettlement, the company states that the town of Marmato will need to be displaced to allow for
mining. Social Capital Group has been hired to support this resettlement planning process and undertake a
census, with the plan expected in early 2012. A door-to-door campaign explaining the resettlement process
has already commenced, and the company reports that 41% of Marmato currently supports it. The company
is engaging with the church to disseminate the plan. As well, BSD Consultants (Switzerland) will be advising
on development planning for the new Marmato. The Canadian organization Replan also has been hired
to help with the resettlement planning. Gran Colombia also became a member of Canadian Business for
Social Responsibility, a group that will advise Gran Colombia to ensure it meets international standards and
guidelines.346
In light of the controversy surrounding the Marmato Project and resettlement plans, and in light of explicit
statements that it is upholding the World Bank’s Performance Standards and resettlement policies, it is
imperative for Gran Colombia Gold to ensure that it genuinely understands the right of Peoples to free, prior
and informed consent. However, interviews with Gran Colombia personnel, and company actions to date, have
revealed deep misunderstandings of the nature and process of implementing the right to FPIC, with willful
ignorance of the ethnic peoples who call Marmato home. Regarding the appropriate process for consultation
and consent related to plans that include resettlement, the company appears to be defining these processes by
itself, instead of ensuring that a protocol is established involving legitimate and self-defined representatives of
the communities and the State.
Analysis and Perspectives from RICL
Community discussions in neighbouring RICL highlighted concerns about the companies’ lack of respect for
ethnic rights and affected communities, and concluded that “Medoro has generated strong tensions and
conflicts with the miners in the area.” There are concerns that among the significant impacts that RICL will
experience should there be a mine – and that it is already experiencing – is the increased pressure from
small-scale miners who are leaving Marmato and seeking to mine elsewhere. These miners bring with them
technologies and chemicals that contravene Resguardo rules. Community members also expressed deep
concern about the September 2011 killing of Father José Reinel Restrepo, the parish priest who strongly and
publicly opposed the companies and their plans for an open pit mine in Marmato.347
But beside the worry about how the companies are interacting with communities living in or near Marmato,
community members and traditional authorities in RICL expressed deep unease over the way Medoro/Gran
Colombia has interacted with RICL to date. In their urgent action of October 2011, the traditional authorities
of RICL describe the most recent interactions with the company, and their grave concerns. They document
the uninvited entrance of six outsiders into RICL territory in September 2011, who identified themselves as
engineers with Medoro Resources, a company currently undertaking exploration in Marmato. The engineers
stated that they were in RICL to gather samples. Upon questioning by the Indigenous Guards who intercepted
them, they responded that they had not obtained permission from RICL authorities as required, and that they
would speak with the Cabildo Gobernador directly. Yet one month later, on 17 October, more than six outsiders
again arrived in RICL, some with Medoro Resources identification cards, wearing jackets and hats with the
company logos. They were accompanied by two police agents and personnel from a private security firm.
Again the Indigenous Guard intercepted them; and again, they did not have permission from the traditional
authorities. The description of these interactions paints a rather aggressive picture of the alleged company
representatives, with one taking un-permitted photos of the area and of the Indigenous guards. The outsiders
did leave eventually, but a community member later told the traditional authorities that the company
employees had offered to rent part of his land parcel for three months in exchange for one million pesos per
month, as this parcel was one of their exploration points.348
346
347
348
110
Gran Colombia Gold (2012).
Morales (2011b); El Tiempo (2011).
RICL (2011).
Holding Extractive Companies to Account in Colombia In this urgent action, the traditional authorities publicly reject the State’s violation of the fundamental right to
free, prior and informed consultation and consent with regards to issuing mining concessions for exploration
and exploitation on their traditional lands; the presence of companies in their territories; and the fact that the
company representatives were accompanied by the public force, violating international treaties and Directive
No. 16 of 2006 which requires “adequate coordination with Indigenous Authorities with regards to entering
Indigenous territories.”
And they demand, among other things that:
1. The Ministry of Interior and Justice, before initiating a process of prior consultation regarding any
project that could affect our territory, hold meetings with us, Traditional Authorities, and other
relevant authorities.
2. The titles and concessions issued on our ancestral territory of Cañamomo Lomaprieta, jurisdiction
of the municipalities of Risoucio and Supía, Caldas, as well as any concessions that are currently
being processed, be declared null and void for not having complied with the due process of prior
consultation and free, prior and informed consent, as is ordered by the Constitutional Court in
judgment T-1045A of 2010.
They go further, and ask the Government of Canada to:
“Assume responsibility for the activities of its transnational companies in our country and that it
oblige its companies such as Medoro Resources and Gran Colombia Gold Corp to respect: the national
legal framework with respect to ethnic rights; national and international jurisprudence that orders
that free, prior and informed consultation and consent processes be undertaken prior to any activity
that could affect the cultural integrity of Indigenous Peoples, including exploration; and international
commitments that Colombia has made by ratifying ILO Convention 169 on the Rights of Indigenous
and Tribal Peoples, supporting the UN Declaration on the Rights of Indigenous Peoples, and ratifying
the Convention for the Elimination of Racial Discrimination, among other international commitments.
The Canadian State should monitor and ensure that its companies fulfill this legal framework; and, in
so doing, mitigate the possibilities of human rights violations that could escalate armed conflict.”
Clearly the current approach of Medoro/Gran Colombia needs to be changed with regards to interacting with
ethnic peoples and affected communities, if conflict is to be mitigated in the area.349 Systemic changes need to
be made in State procedures to ensure that the fundamental rights of ethnic peoples are upheld.
The analysis of company materials together with RICL perspectives points to several urgent priorities. Because
of the regional impact that an open-pit (or underground) mine would have, and the direct impact that
communities including RICL will experience, there is clearly a need to widen the scope of the ESIA to ensure
these are covered. The inclusion of consultation and consent processes with all ethnic communities who will
be affected, including RICL, is necessary. It should also involve communities affected by the transportation of
the ore. To not do so would contravene the IFC Standards and Equator Principles that the consultants imply the
companies want to uphold, as well as the national legal framework.
349
This urgent action was sent directly to the Canadian Embassy in Colombia by RICL authorities. Soon after, on November 15, 2011 several
Canadian NGOs wrote to the Canadian Embassy to express concern over the incident and demand follow-up. The Embassy response,
dated December 20, 2011, essentially dismissed the urgent action, following embassy consultations with “various stakeholders.” The
response highlighted feedback the Embassy had received from the various stakeholders it had consulted that the urgent action contained
‘many inaccuracies’ — particularly the reference to ‘Medoro Resources’ representatives infringing on the rights of the Embera Chamí of
the Resguardo, as the company at the time of the incident had in fact merged with Gran Colombia Gold. As well, the Embassy expressed
reassurance by citing Gran Colombia’s participation in CSR events. However, the Embassy consulted only with the company, and did not follow
up with the communities themselves to understand and investigate what took place. That company representatives may have used their former
company’s name, or that community representatives may have stated the representatives were from Medoro rather than Gran Colombia, is
understandable in light of the fast change in names, and is not enough to dismiss the urgent action. Further, the traditional authorities of RICL
did not receive direct acknowledgment from the Canadian Embassy of the letter that they sent with their concerns and urgent action.
“Todo Volverá” (juga)
By Jose Edier Solís Caicedo
I sat down with my grandfather one day in the field
We started comparing the present and the past He told me he had a traditional farm
Where he got everything, he only bought salt
There were mountains thick with trees where animals abounded And there were many creeks where they would go to get water
And they would work collectively when they went to harvest
And the cocks and the birds would sing when they awoke Today there is very little water and there are hardly any forests
In the creeks there are no fish nor in the mountains animals
And there are very few birds that sing when they awake
Surely they left with their song to some other place We want to grow things just like our grandparents did
Let’s live in harmony people, plants and animals
And remember this advice
If you cut down a tree you need to plant ten We want to grow things just like our grandparents did
Let’s live in harmony people, plants and animals
Separate out our waste as we need to recycle
Glass from plastic aside, and organic waste for fertilizing
And that way … everything will come back,
everything will come back Soon the forest will come back, soon the birds will come back
Soon the waters, soon the fish will come back Everything will come back, everything will come back Soon the gaugas will come back, soon the bears
Soon the guatines, soon they’ll come back, the squirrels
Soon they’ll come back, the canelos,
soon they’ll come back, the cucharos
Everything will come back, everything will come back
Translation from the original in Spanish
by Viviane Weitzner
112
Holding Extractive Companies to Account in Colombia Experiences from the Field – Cauca Case Study
5.3 Afro-Descendent Communities in Northern Cauca,
Buenos Aires and Suárez
5.3.1 History350
The Afro-Colombians in the Cauca valley around La Toma, Cerro Teta, Suárez and into the catchment of the
Salvajina reservoir trace their ancestry back to Africa. They were brought into the area to work as slave
labour in Spanish plantations and mines in the late 16th and early 17th centuries. There are many stories of
these enslaved people fleeing their captivity to escape the injustices of their condition, some opting to die
on the mountains rather than return to captivity.
Their history is unlike that of the Cimarrones (maroons) living in what is now the Department of Bolivar in
northern Colombia who established an autonomous ‘palenque’ in the early 1700s, recognized by the colonial
government, and who evolved their own dialect. In the Cauca area, Afro-Colombians were not able to obtain
such autonomy and their original language was slowly eroded. Spanish is now the main language spoken.
From the 1820s onwards in the upper Cauca valley, the Afro-Colombians, as they now call themselves (with
some preferring to use the term Comunidades Negras, or Black Communities), were permitted the option of
cultivating their own farms for their own subsistence, according to a general scheme whereby they worked
for the estates three days per week and for themselves and their livelihood during the other three days.
The end of slavery was only achieved in the 1850s and over the next one hundred years, the area built up
a vigorous farming economy of subsistence and small-holder agriculture that developed first local, then
regional and even global markets. Artisanal mining of gold by the newly freed Afro-Colombians also made
them wealthy enough to buy out some of the local hacenderos and assert control over a large area. By the
1930s, small-holder cacao production in the Cauca, mainly by Afro-Colombians was so important that it set
the prices in international commodity markets.
5.3.2 Lands and Territories
Since the 1950s, as part of a nation-wide process of violent land acquisition, there was a progressive
reassertion of hacienda control of the lower lands of the Cauca. In this area, sugar cultivation and ranching
takes place. But upstream, towards Cerro Teta and La Toma, around Suárez and into the watershed of the
Salvajina dam, the area is largely held by Afro-Colombians, mainly under informal tenures although some
land titles have also been issued to individuals.
In some areas there is evidently a dynamic system of land management through agro-forestry and coffee
production. But in the mining areas, farming has declined and the hillsides have reverted to scrub and
wastelands. Indeed, more than 2 thousand hectares of the best agricultural lands in the area were flooded
out by the over 30 kilometre-long Salvajina dam, completed in 1985; others were taken over by large-scale
monoculture. Community members estimate that 90% of the cash incomes in the mining areas now come
from small-scale mines, but that subsistence farming is also important.
This area has been actively linked to the assertion of Afro-Colombian identity, especially since 1986 through
the movement of Los Cimarrones del Norte del Cauca, and then, since 1990, through the Proceso de
350
This background section is adapted from Colchester (2011).
113
Lisifrey Ararat explains the timeline tool used to document the human rights impacts of various events in the history of the Black
communities of northern Cauca.
Comunidades Negras (PCN), which has a vigorous presence in the area. People in the region take strong
pride in their Cimarron identity.351
The new Constitution of 1991 recognized Afro-Colombians as elements in the pluri-national country and in
1993 a law (Ley 70/1993) was passed which provides for Afro-Colombians to secure collective titles to their
ancestral lands. While these collective titles are held by the State on behalf of the communities whose rights
of possession are thus protected, the law does not provide for self-governance and control of lands in the
same way as for indigenous peoples in resguardos. Since then, mobilized by PCN and a national movement
for asserting Afro-Colombian rights, the communities around Suárez have set up Consejos Comunitarios
and have begun a process of making sketch maps of their overall territorial claim. The intention of the
communities is to assert their rights over an extensive area including several Consejos Comunitarios. To date,
collective titling has not been carried out in the area.
5.3.3 Self-governance
While the Consejos Comunitarios are recognized by government as representing local interests, these
organizations have weak capacity, and most services in the communities – schools, clinics and one hospital –
are administered by State institutions. The PCN itself has a very decentralized structure, with decisions being
made by consensus through a highly democratic process. The Palenque del Alto Cauca, one of the regional
organizations of the PCN, is in fact the main agency of social mobilization and organization in the La Toma,
Suárez region.
351
114
‘Cimarron’ is a pejorative word in the Spanish-speaking Caribbean referring to feral cattle; it was historically used to refer to runaway slaves,
whose status was considered similar to that of animals.
Holding Extractive Companies to Account in Colombia 5.3.4 Militarization and the human rights context
The 1990s saw a rise in armed conflict in the area. It was exposed to FARC insurgency, and the army
established permanent camps in the area, including one near Cerro Teta which has subsequently been
closed, and one at Salvajina, where the camp remains. Paramilitary operations also intensified, according to
the local people, with the aim of helping outsiders gain access to the mineral resources.
While several massacres have taken place in the area, the most renowned attack took place in Easter week
of 2001. Known as the Massacre of the Naya, it involved the murders, at the hands of the paramilitary, of at
least 41 people — Indigenous, Afro-Colombian and campesinos — in the Cauca area.352 More recently, gangwars and other illegal armed groups (such as the Aguilas Negras and the Rastrojos) have led to death threats
and violent deaths in the area. Government troops reportedly have coined the term ‘Cauca-kistan’ to refer
to the area and to the counter-offensive strategy that the Colombian military has apparently put in place to
help stem FARC and ELN activities.353
Inter-ethnic tensions are exacerbated by government policies, such as the tensions sparked by the
government’s granting of lands to Indigenous Peoples that had previously been promised to Afro-Colombian
communities, in what is known as the Finca San Rafael. Ethnic organizations are well-aware that these
tensions are government-initiated, and are working hard to establish communications and de-escalate
tensions, through mechanisms for collaboration such as the Inter-Ethnic Commission, and by inviting third
parties to help resolve disputes.
The severity of human rights vulnerabilities and violence in this area were recognized by Colombia’s
Constitutional Court when it issued Auto 005, citing communities in Buenos Aires and Suárez as a key case
for developing special protection plans for communities affected by violence.
5.3.5 Ancestral mining and mining development
Mining has been an intrinsic part of the local people’s economy for hundreds of years, and can be traced
back to 1639. Since the 1990s, with the rise in gold prices, mining has intensified. And since the 2000s, the
area has experienced a strong penetration by Paisas (people from the area around Antioquia) who have
introduced technically-advanced mining similar to that being used in Marmato (Caldas), including processing
using cyanide leaching. Although several Paisas came in as partners of local Afro-Colombian miners,
significant tensions between the Paisas and the Afros have grown, with in-migration by Paisas getting out
of control.354 There is also increasing evidence of medium-scale mining by illegal armed groups (bandas
criminales, or bacrim), that is bringing with it increasing violence and threats to local people’s safety.
Also since the 1990s, a number of legal or legalized mid-size and larger operations have sprung up in Cerro
Teta. The communities and PCN activists have raised strong concerns about these operations and have
successfully challenged one large-scale mine permit in the Constitutional Court (see Box 21). A number
of other such operations do however continue. Opposition to the mines has triggered multiple death
threats to community leaders and other vocal opponents, some allegedly made in the name of AngloGold
Ashanti.355
352
353
354
355
Cabildo Indígena Nasa Kitek Kiwe et al. (2011).
Acosta and Kimball (2012).
More recently, once it was agreed that the area was an Afro zone, and the Paisas there accepted they should respect the norms of Afro
society, there has been some reconciliation; mines are now increasingly jointly owned and operated.
A company representative (at the National Conference on Environmental and Social Impact Assessment and Human Rights Impact
Assessment, organized by the NSI-PCN-RICL Project, 2-4 August, 2011) denied that these threats were made by anyone with any connection to
Anglo-Gold Ashanti, and encouraged those alleging such a connection to have this matter investigated by authorities.
115
Box 21: La Toma wins precedent-setting Constitutional Court Decision —
Prior Consultation and Consent required prior to issuing concessions
PCN legal student activists, with the help of the Defensores del Pueblo, the NSI-PCN-RICL project and other
actors such as the NGO Sembrar, were able to introduce an injunction to halt a large-scale mining operation.
The community claimed the operation would affect 7,000 hectares of their ancestral land and displace as
many as 6,000 people. The complex case — which passed through first the local court, then the regional
court in Popayan (which found in favour of the company) and finally appealed to the Constitutional Court —
was eventually decided in favour of the community. Among other things, Judgment (T-1045A):
•
Revealed complicity, confusion and incompetence of the State agencies;
•
Established that the Afro-Colombians were indeed long-term occupants of the area, and that they
have rights to land based on ancestral occupation — regardless of the fact that they have not yet
secured collective titles;
•
Upheld the communities’ claim that they should have been consulted prior to the mine license being
issued;
•
Affirmed their right to free, prior and informed consent; and
•
Declared the mining license invalid, as well as all others that had been issued in the area without prior
consultation and due process.
This judgment is precedent-setting for the country, and even for the Americas, and will likely be used as the
basis for court actions submitted by other ethnic communities in Colombia.
5.3.6 Hydro-electric power projects and other land pressures
The ancestral lands of the Afro-Colombians in Northern Cauca have also attracted investments and ongoing
interest in harvesting the hydro-electric potential of the Cauca watershed. The Salvajina dam on the Cauca
River is a large-scale hydropower project, initially researched in the 1950s and finally becoming operational
in 1985.356 With a reservoir that flooded a total area of over 2 thousand hectares (its total length is about
32km, with an average width of 1.2 km),357 Salvajina caused the forced displacement of some 15,000 people.
It flooded several villages, extensive farms on fertile lowlands, as well as churches and graveyards.358 This
ravaged the mixed economies in the area, where people had engaged in livestock-raising, agro-forestry,
coffee growing, dry season cultivation of the river banks for maize, as well as some alluvial gold mining.
Some displaced farmers did receive minor compensation for their land improvements, and small payments
were also made to those losing houses, enabling them to buy cheap town houses in Suárez. Other farmers
found they had to relocate up the sides of the valley into areas much less suited to agriculture. The dam
also seriously impaired transportation and communications up and down the river, and between riverside
communities and those in neighbouring valleys. Local community members agree that the dam caused acute
hardship, and many of the landless displaced people now in Suárez are still under- or un-employed. Some
are destitute.
356
357
358
116
According to local historian Ismael Juanillo Mina (2008: 32), the construction of the Salvajina, led by the Corporacioón Autónoma de Valle
del Cauca (Cauca Valley Authority), was financed by the Overseas Economic Cooperation Fund of Japan, Exim Bank of Japan, Girocentrale of
Australia, and the Inter-American Development Bank.
Ortega, Soler, and Canellas (2006).
For a history of the Salvajina dam and its impacts see Juanillo Mina (2008).
Holding Extractive Companies to Account in Colombia For those remaining in the valley, there are considerable problems with land tenure, self-governance and
livelihood. A river basin organization of the Afro-Colombians has been established, which has formed
an alliance with the Indigenous Peoples of the three resguardos nearest them further upstream, named
Honduras, Chimborazo and Aguas Negras.
Community members are now confronted by yet another challenge, owing to a plan to dam the Rio Oveja in
the neighbouring valley, and then create a diversionary tunnel into the Salvajina reservoir to augment its dryseason generation capacity. The company responsible, its policies and community perspectives are described
further below.
5.4 Companies affecting Buenos Aires and Suárez
While several companies have interests and concessions in the area, this analysis focuses on three:
Cosigo Resources (Canada), AngloGold Ashanti (South Africa), and EPSA (Spain), operators of the Salvajina
large-scale hydro-dam.359 The following snapshots provide a brief overview of each company and their
CSR policies; describe each company’s activities affecting northern Cauca; and then present community
perspectives and analyses that contrast companies’ CSR commitments with what is taking place in practice.
5.4.1 Cosigo Resources
Founded in 2005, Cosigo Resources is headquartered in Vancouver, Canada. It trades on the Toronto
stock exchange under TSX-V: CSG. The company is actively exploring in Colombia and Brazil. In April
2011, Horseshoe Gold Mining, also from Vancouver, bought out Cosigo Resources, although the company
retains its name. Company stock went public in September 2011. In Colombia, the company has worked in
association with its country subsidiary, Cosigo Frontier.
The company has applied for 47 mining licenses in seven locations of Colombia.360 Its principal project in
Colombia is Machado, located in the Taraira gold belt, Department of Vaupés, which straddles the border of
Colombia and Brazil. Cosigo is 100% owner of the Machado Project. A geochemical sampling and mapping
programme is taking place, and there is a 30-person exploration camp.361 There is high gold potential, with
over one hundred historic artisanal mines in the area. Technical studies recommend an investment of
USD $4.25 million for exploration. According to the Company, the consultation process is currently being
undertaken, and the company affirms there was approval for the extraction of the concession from the
forest reserve with which it overlaps: “Permitting for drilling is well underway and Cosigo expects the forestry
subtraction and native prior consult process to be completed shortly.”362
Cosigo’s total area of interest in this project includes neighbouring sites in Brazil. Officially Cosigo has
around 30,000 hectares in total of this Gold Belt, with 10,000 in Colombia and 20,000 in Brazil. However, the
company has allegedly obtained more concessions in Colombia through individual title holders, in this way
eluding legal requirements (article 65 of the Mining Code establishes that the maximum area a company can
explore and exploit in must not exceed 10,000 hectares).363
359
360
361
362
363
All information collected on companies is of as September 15, 2011, with select updates since. The situation in Colombia is rapidly evolving,
and by the time this paper is published, new information on these projects will likely be available.
This according to a 2008 prospectus listed on SEDAR. The company may have relinquished some of these and/or obtained others. In addition,
there is a possibility that the company is acquiring more titles under the names of individual company representatives.
“Work completed on the Machado project also includes the construction of a central 30-man tent camp and completion of a network of access
trails.” www.cosigo.com, accessed October 2011.
www.cosigo.com, Machado project description, accessed October 2011. It should be noted that Cosigo had started drilling earlier, as is
mentioned in the company’s August 2010 programme description.
In 2009, the Ingeominas website listed several concessions issued to the company’s South America Operations Director. Information available
in NSI archives.
117
The area of interest of the Machado Project is located in a protected area. On October 27th, 2009, Parque
Natural Yaigojé Apaporis was established, covering 1,056,023 hectares of territory in the Departments
of Vaupés and Amazonas.364 The creation of this Park was achieved through collaboration between the
Association of Indigenous Captains of the Yaigojé Apaporis (ACIYA), the National Parks Directorate’s
Amazonia-Orinoquia Unit, the National University, the Ministry of the Interior, and an NGO, the Gaia
Foundation. It was a direct result of the Indigenous Peoples wanting to protect their homeland from mining,
among other activities. The protected area is managed by the Indigenous Peeoples of the region.365
On July 14th, 2011, the Attorney General (Procuraduría) revoked Cosigo Resources’ title in the Vaupes, on
the grounds that Ingeominas issued the license for mining exploitation only days after the area was declared
a National Park. Follow-up is needed to ascertain exactly what is taking place at this time; a process is
underway to try to extract the mining interest area from the protected area. Cosigo’s corporate materials
available on its website make no mention of this controversy, and indeed in September 2011 company
shares were publicly offered. According to the company, the prior consultation process for the exploration
phase is already underway. It also claims that its request has been approved to have the boundaries of the
forest reserve (with which their concession overlaps) re-drawn, to allow operations to begin: “Permitting for
drilling is well underway and Cosigo expects the forestry subtraction and native prior consult process to be
completed shortly.”366 Yet questions remain about the nature of this consultation, and whether it is indeed
following appropriate and legitimate consultation and consent protocols approved by the Peoples affected,
or whether the process is being company-driven.367
Aside from the Machado Project, Cosigo holds properties and is undertaking exploration in several other
areas. For example, it undertakes reconnaissance programmes in prospective areas, such as Boyacá, Sur
Bolivar, Cauca and Nariño. There are also allegations that mining titles have been issued individually to the
company’s South American Operations Director in Suárez, some 35 km from La Toma.
Cosigo’s CSR policies
Cosigo does not have any formal CSR policies posted on its website, and it is not a member of PDAC.
However, the company makes several aspirational statements. For example:
“Cosigo is committed to sustainable development and to the firm belief that in order to be viable,
mining projects must benefit not only the mining company but the local community. Cosigo’s
community relations team maintains active and regular communications with local communities
and native groups in the Taraira Gold Belt area. In general, there is strong support in the area for
exploration and the benefits that exploration and mining projects may bring. Our team strives
to build strong community relationships and to address any potential concerns of the communities
through honest discussion and information sessions. Cosigo is determined to be a good, respectful
citizen seeking the engagement of the local communities and earning their support in order to
successfully advance its exploration projects to the benefit of all stakeholders (emphasis added).368
364
365
366
367
368
118
Through Resolution #2079 of the Ministry of Environment.
See Fundación Gaia Amazonas (2009); and presentation by Dr. Diego Flores, Special Administrative Unit of the National Natural Parks System,
Amazon – Orinoco Regionin NSI, RICL and PCN (2010).
http://www.cosigo.com/s/Machado.asp?ReportID=455312&_Type=Machado&_Title=Exploration. It should be noted that drilling had been
previously already undertaken by Cosigo, as mentioned in an August 2010 update on its programme. http://www.cosigo.com/s/Machado.
asp?ReportID=455312.
In January 2011 Cosigo reported that the Ministry of the Environment had ‘tentatively approved’ the forest reserve subtraction process,
subject to Cosigo’s “completion of an informative process with two small (less than 50 people) indigenous communities in close proximity
to the site,” noting that once the “consultation and information giving” process is done it can begin exploration. (http://www.cosigo.com/i/
pdf/HSX-Machado-TechnicalReport-20110116.pdf). This description evidences a misconceived notion of the right to consent, raises questions
about whether the Ministry of Interior has triggered and is accompanying the consultation and consent process as required, and also whether
the scope of this process is appropriate given the impacts of the proposed exploration.
Webpage tab on ‘community and environment’ accessed June 2012. The site also refers to Cosigo’s commitment “to operating in an
environmentally responsible manner on its exploration projects” through use of low-impact technology among other measures. It also
mentioned the acquisition of two mobile gravity separation units that are currently being evaluated as potential technology for local artisanal
miners in the area, an alternative to “unsafe methods using cyanide and mercury”.
Holding Extractive Companies to Account in Colombia The company website lists several projects it has undertaken in Taraira, including supporting medical doctors
visiting the area; taking children to visit Bogota; support to schools; and giving children Christmas presents.
Analysis of Cosigo’s CSR materials and approach
In general, the company stays away from disclosing any controversy surrounding its projects, and makes
several statements that could be construed as misleading. Among other things, the company:
• Extols Colombia’s ‘modern’ mining code in a July 2011 presentation, without mentioning that
this code was declared null and void by the Constitutional Court in a May 2011 judgment, for not
meeting the constitutional requirement of appropriate consultation with ethnic peoples, and that
the State now has a window of two years to redraft the code and undertake appropriate consultation
with ethnic peoples.
• Does not mention anywhere the actions of the Attorney General, who revoked the company’s title
overlapping the protected area, or the
process that led to this, or to any followup.
• Declares that “in general, there is strong
support in the area for exploration and
the benefits that exploration and mining
projects may bring”— whereas it was
precisely concerns about the impacts of
mining, among other issues, that led to
the establishment of an Indigenous-run
National Park in the area, with support
from the National Park Directorate.
• Does not mention the internal armed
conflict in its website overview of the
country, and makes brief allusion to it
only in a corporate brochure, where it
states that the situation has improved
in Colombia. It is not clear what
arrangements the company is making
regarding security issues.
In short, Cosigo materials omit important
information.369
The company has clearly undertaken extensive
sampling and prospecting work, including the
establishment of a camp and network of trails,
seemingly without consultation and consent.
This is contrary to national law requiring
consultation for exploration. Only now, with
the beginning of a new drill programme, is the
process allegedly underway.370
369
370
Francia Márquez (top) submitted an injunction that led to
Constitutional Court judgment T-1045A, stopping the Community
Council of La Toma, Suárez’ forced resettlement from their ancestral
lands. This judgment also clarified the requirement of free, prior and
informed consultation and consent prior to the issuing of concessions.
In addition, key questions arise in terms of how the company identified community priorities for their community projects – particularly those
that consisted of children visiting the cities and getting Christmas presents. Were these priorities identified by the communities, or suggested
by the company? It seems unlikely that communities would opt for these, rather than other potential ways of using available company funds.
The company had undertaken drilling previously, and obtained the related permits, as announced in an August 18, 2010 update by the
company. It appears this was not done with any consultation or consent. Further alleged problems inherent with the way Cosigo has operated
to date can be found at the “Stop Cosigo Frontier” Facebook page.
119
Nonetheless, the company did agree to participate in a July 2010 national workshop held by the NSI-PCNRICL Project in Bogota to explain its approach and work. This shows interest and openness to engage on the
issues directly with ethnic groups and organizations.371 The company presentations made clear, however,
that there is little awareness of the human rights issues involving extractives and ethnic peoples particularly
in the context of armed conflict. No mention at all was made of armed conflict, even though it was one
of the key questions that panel members were asked to address. The issue came out in discussions only
after the company presenters were asked again, by the moderator. Participants in the audience openly
expressed offense at the company’s approach, particularly with regards to their giving of Christmas presents
to community children. What came to light through the interaction at the workshop was that while some
company personnel may not be ill-intentioned — and to the contrary, may believe they are undertaking the
best approach in their work and in a caring way — they simply do not have the required tools and knowledge
to undertake a work programme respecting ethnic rights and traditional decision-making processes. Instead,
the impression from the presentations is that company personnel are attempting to buy communities
through their children, to advance company projects — a tactic that replicates the ‘beads and trinkets’
approach372 that has failed time and again.
Community Perspectives and Analysis
While (at the national workshop in July 2010) Cosigo Resources declared it no longer has interests in the Cauca
area, its website and corporate materials show Cauca as one of the areas where it undertakes reconnaissance
work. To date, the experience in Cauca with Cosigo Resources has been vexed and controversial.
Alluvial gold miners, Suárez, Cauca.
371
372
373
374
120
The Cauca area has long
been known for active armed
conflict, and for the ongoing
death threats to ethnic leaders
who speak out for the rights
of their people. In many
instances, illegal armed groups
accuse these leaders of being
‘anti-development’, and issue
threats to this effect. As has
happened with other companies
approaching the communities
in this area, leaders who
advocated for their rights when
communities were approached
by Cosigo also received
threats.373 There is deep concern
in the area that the killings
that do take place are in some
way linked to the activities of
companies with interests in the
area, with calls for investigation
along these lines.374
See North-South Institute, Proceso de Comunidades Negras, and Resguardo Indígena Cañamomo Lomaprieta (2010).
Dunn (1999).
An article and interview recorded on December 7, 2009, for example, claims that five indigenous leaders were murdered for their opposition
to the presence of Cosigo Resources because of the ties between Cosigo and a paramilitary group called ‘the Black Eagles’. http://
intercontinentalcry.org/canadian-company-linked-to-indigenous-murders-in-colombia/ (accessed June 10, 2010).
An article published April 11, 2010 by Nomadesc highlights the need to investigate the links between the killings of eight miners in the
municipality of Suárez and multinational companies in the area, citing Union Fenosa, AngloGold Ashanti, Smurfit Kappa Carton de Colombia
and Cosigo resources. http://www.minesandcommunities.org/article.php?a=10054&highlight=Cosigo (accessed June 10, 2010).
Holding Extractive Companies to Account in Colombia In 2008, the Association of Indigenous Councils of Northern Cauca (ACIN), publicly denounced transnational
companies that are taking advantage of the internal armed conflict to exploit resources, referring explicitly to
activities by Cosigo Resources. The article describes how 12 employees of Cosigo Resources Ltd. had entered
the Delicias Reserve and were conducting exploration activities without the consent of the Indigenous
Council of Delicias. Members of the Council interrogated the Cosigo employees, who said that they had the
permission of the Municipality of Suárez. The Council members contacted Municipal government and the
Mayor’s office, both of which claimed to have no information regarding Cosigo’s activities. One Indigenous
community member is reported as saying:
“It is clear that these people were trying to carry out a sample study or prospecting on a concession
that the government has given to Cosigo Resources Limited. We were looking at the maps on the
internet and we observed that there is a concession that runs the entire perimeter of Cerro Catalina,
in addition to entering within various areas of our Reserve, and inside the Indigenous mining zone [a
territorial expanse defined within the Mining Code as an area where Indigenous people have priority
for all mining activity].”375
The article expresses fear that Cosigo might return with public forces in order to reach their goals, stating
that this will only add to the conflict in the region.376
This type of strategy is reported in the case of the Afro-Descendent people of Suárez. Indeed, the first time
the NSI-PCN-RICL project team arrived at the mines in Suárez in 2009, small-scale miners had been expecting
us to be representatives of Cosigo Resources. Representatives from this company had allegedly recently
accessed the mines for sampling, without any appropriate consultation process. There was clearly tension
in the air, which took time to defuse even after PCN members explained that the delegation members – and
the one Canadian present – were with the PCN, and not with the mining company.
According to Afro-Descendent community members, so far the relationship between Cosigo and the
community of Suárez has been directly with the Mining Cooperative. This Cooperative has allegedly handed
over a portion of their titles to the company. Black community members speculate that one of the reasons
why Cosigo has not made an attempt to forge deeper relations with the Consejo Comunitario in Suárez is
because Cosigo titles and concessions are mainly in Indigenous territories. Despite this, Cosigo’s mining
operations could have impacts for both groups of ethnic peoples, and to date there have been no prior
consultation or consent processes regarding the concessions or titles issued to Cosigo.
In October of 2011, company representatives approached the area, and met with the Consejo Comunitarios
of Puerto, Mindala, and Mesetas with the objective of consulting about a title in the area. However,
community members told them that prior consultation should be led and coordinated by the State, not
the company. The company also allegedly tried to undertake prospecting in La Toma, but the Consejo
Comunitario did not allow this, and asked the company employees to leave.
Black community members allege that until now (first half of 2012), the company has attempted to create
conflict between the leaders of community councils and members of the Mining Cooperative of Suárez, as
well as between the leaders and those living in the downtown area, divisions created particularly through
Cosigo’s declarations that it will bring development to the area. “This has led to stigmatization of leaders and
the already very well disseminated threats,” according to one community leader.
In short, Cosigo’s attempts to start prospecting, and its attempts to consult with select people and
communities directly, rather than with the backing and coordination of the State’s Ministry of the Interior,
have already led to internal conflicts — and allegedly also to death threats.
375
376
http://www.minesandcommunities.org/article.php?a=8734 (accessed June 10, 2010). Published on the Mines and Communities website on
July 24, 2008
http://www.minesandcommunities.org/article.php?a=8734 (accessed June 10, 2010).
The Salvajina dam, Cauca, has had significant impacts on Black and Indigenous communities living in the area, having flooded the most
fertile lands as well as cemeteries, disrupted transportation and communication, fragmented families. Only now, almost 22 years after
the dam as constructed, is the company and its financiers putting in place a management plan.
5.4.2 AngloGold Ashanti
The RICL case study presented an overview of AGA and its CSR commitments (see Part 5a). In the
Department of Cauca, the company has 34 titles to concessions, with 64 requests for concessions. Despite
public advertisements that AGA was retiring from the Suárez and Buenos Aires area,377 the company’s 2010
Sustainability Report makes its continuing interest in the area explicit. In it, AGA’s Salvajina Project features
as an active greenfield exploration project for Colombia,378 extending from Northern Cauca into the Nariño
area. Data given to us by company officials confirms this interest, and shows that company requests for
concessions in the area overlap with Afro-Colombian ancestral territory, and cover even the flooded area/
reservoir of the Salvajina Dam.379 This interest is reconfirmed once again in a May 2012 presentation by AGA
given at a conference on mining in the Americas organized by Scotiabank.380
In workshop discussions, community members noted that having knowledge of AGA’s CSR policies and
commitments was very important, even though the company does not have any active exploration projects
in the area. One Black community leader said, “It has been important to know their CSR policies, given that
simply by requesting the concessions over the mining titles in this area it is already creating a big impact,
especially with regards to the issue of security and territorial stability for ethnic groups,” and added that,“It’s
very encouraging to know they say they will respect and promote the law and that the institutions they are a
member of have committed to respecting the rights of ethnic communities.”
377
378
379
380
122
Information from maps and Excel sheets obtained directly from AGA in 2011.
Others featured together with Salvajina include: Gramalote (JV), Cordillera Occidental (JV), Rio Dulce, Quebradona (JV), La Colosa, Chaparral
(JV) and La Llanada (AGA 2010 Sustainability Report, p.40)
Despite the information gathered to date from the Colombian offices of AGA showing the concessions and areas of interest, an April 2012
letter from Mark Cutifani and Rafael Herz, CEO from S. Africa and President of the Colombian operations respectively, to Abiola Okpechi,
Business and Human Rights Resource Centre claims that “At present, we do not foresee any exploration activities in Northern Cauca in the near
future.”
“Un valor convincente: La historia de Anglo Gold Ashanti”, Conferencia Latinoamericana de Minería 2012, Scotiabank, mayo 29. http://www.
anglogold.co.za/NR/rdonlyres/E9889C6B-E857-42A3-BA6A-3CE5B9681587/0/ScotiabankLatinAmericanMiningConference2012.pdf
Holding Extractive Companies to Account in Colombia 5.4.3 EPSA: Salvajina Dam
As highlighted in the introduction to this chapter, on the history of northern Cauca, the Salvajina Dam has had
a devastating impact on neighbouring communities. It is a critical project to examine with regards to CSR.
EPSA in brief
EPSA is an abbreviation for Empresa de Energía del Pacífico, S.A. It began operations in Colombia after the
passing, in 1993, of Law 99. This law legally separated the function of generation, transmission, distribution
and commercialization of electric energy, from environmental management; the latter was subsumed
exclusively by the Corporación Autónoma Regional del Valle del Cauca (CVC). EPSA began operations on
January 1, 1995. EPSA has a long history of previous owners and partners, including: Houston Industries
and Electricidad de Caracas; Unión Fenosa of Spain; and Gas Natural SDG S.A. of Spain (that has the
subsidiary companies Gas Natural Internacional SDG S.A.; Unión Fenosa Internacional S.A., and Unión
Fenosa Colombia S.A.).
The company is guided by its shareholders, with two general assemblies per year; a Board of Directors (14
members); an Auditing Committee (seven members); and a corporate good governance committee (five
members). In 2000, the company established a Foundation, with a mission to:
“Create social value by encouraging sustainable projects and programs, in alliance with other actors,
so that the communities in the area of influence of the EPSA group, increase their quality of life and
strengthen their social fabric, in alignment with the social responsibility of the company.”
EPSA is the fifth-largest electric generator in Colombia, with installed capacity of 1068 MW,381 which is
distributed through a series of sub-stations. It operates in 39 of the 42 municipalities of the Cauca Valley,
where it has over 443,000 clients.382 In 2010, the company’s Colombia operations had a net income of
1,153,744 million COP (Colombian Pesos), and produced 3,484 GWh of electricity, making a profit of 289,004
million COP after taxes.383 For communities affected by the Salvajina hydro-project that are currently
negotiating compensation, it is critical to determine just how much the company makes per year from
Salvajina, and how much it has made since construction and beginning operations in 1985.
Looking at the future, EPSA is currently undertaking five expansion projects, to be completed within the next
five years, which it expects will increase its capacity by 26%. The company is interested in developing new
projects in Tolima and Caldas. A key question is whether EPSA’s expansion plans go hand-in-hand with other
companies’ interests in developing extractive projects in these areas.384
EPSA’s CSR policies
EPSA is committed to implementing the UN Global Compact and the Global Reporting Initiative. Among its
commitments, outlined in its 2010 Sustainability Report385 are:
• With regards to state institutions: “The company respects the legal landscape and supports
management by regulatory, control and oversight agencies, by implementing the normative and
regulatory framework in all its activities, as well, providing timely and truthful information.” It
states that it contributes to Colombia’s development through timely tax payments; in 2010, it paid
175,386,383,000 COP in taxes and other obligations.
381
382
383
384
385
http://www.acolgen.org.co; EPSA 2010
EPSA Sustainability Report 2010, p. 14.
EPSA Sustainability Report 2010, p. 20.
http://www.acolgen.org.co; EPSA 2010
EPSA (2010). All quotes that follow are from this report.
123
• With suppliers and contractors: “The company stimulates the development of commercial associates
in an environment of respect, equity and transparency”. In 2010, contracted services brought
1269 jobs to the Cauca Valley, including to community councils (consejos comunitarios) and work
cooperatives (Empresas Asociativas de Trabajo) of communities neighbouring the dams on the
Salvajina and Anchicayá rivers, with whom services for over $289.750 million COP were contracted.
• With regards to the environment: In 2010, EPSA established an environment and social management
unit. The goals are to strengthen and consolidate its environmental management; and to fulfill the
requirements of the legal framework by implementing management plans in operating plants.
• On social Issues:
´ “The
company recognizes, respects and values the particularities of the communities and the
environment in which it is involved, and permanently undertakes activities under sustainable
development criteria.”
´ “EPSA
undertakes its operations following social and environmental sustainability criteria that
respond to the needs of the present, without compromising the resources available and the
management of resources for future generations.”
• On employees: “The company values its employees, recognizing their rights and is committed to
holistic development that generates well-being and confidence”.
CSR Commitments of financiers
Since December 14 2009, EPSA in Colombia is comprised of: Colinversiones (47.3%) – who paid COP
$1.503.616 million for this stake; InverArgos (14.55%) – who paid COP$462.463 million for this stake; Banca
de Inversión Bancolombia (1.93%) – who paid COP$62.270 million for this stake; and EPSA (36.22%).386 With
this set-up, it is clear that Colinversiones has more power than EPSA in decision-making, and that together,
the financiers have more power than the operating company. In light of this, it is also important to examine
the CSR commitments of the financiers.
While the largest financier, Colinversiones, does not have any CSR commitments,387 InverArgos has
committed to the GRI and the UN Global Compact. InverArgos is also part of the World Business Council on
Sustainable Development (WBCSD) and its Initiative on Sustainable Cement. For its part, Bancolombia is also
a member of the GRI and UN Global Compact, and is committed to implementing the Equator Principles
(based on the International Financial Corporation’s Performance Standards).
Analysis of company CSR materials
The company materials depict EPSA in glowing terms, with much discussion of sustainable development
principles throughout. However, read in light of what is taking place in Salvajina, the materials are in some
places revealing, and in others, paper over problem areas.
On the revelatory side, it is astounding that it is only now, decades after the construction of the large-scale
dam, that a management plan is being considered. But also, the materials read as if the plan were already
in place; in fact, the consultation process around the management plan has been highly problematic, and
is far from complete. Proceso de Comunidades Negras has put a halt on the process; in the meantime, the
company is attempting to forge ahead with communities in other areas.
386
387
124
Including: 914 MW in nine hydroelectric plants; 140 MW in a Power Purchase Agreement that it has with Termovalle until 2018; and 14 MW
from three plants operated by Cetsa S.A. E.S.P., of which EPSA is 87.54% owner (Acolgen 2009).
Beyond stating that one of its plants had obtained ISO 14000 certification.
Holding Extractive Companies to Account in Colombia Furthermore, the seemingly small number of people hired locally is revealing. According to EPSA materials,
only 36 of its 671 employees in the area are from Suárez; the company does not identify how many are
Indigenous or Afro.
Moreover, it was only in 2010 that the company established an environment and social management unit.
While this is a positive step, it is telling that of 671 employees, only three work in this unit. In addition, it
took almost ten years to get this unit up and running.
Finally, in the case of EPSA it is clearly important to look at the financiers’ CSR commitments as they in
fact have a bigger stake and more overall decision-making power in EPSA’s Colombia operations. While
the largest financier makes no commitments, it is helpful that the others have signed up to similar CSR
instruments, namely the GRI and UN Global Compact. A key question relates to the small investment
by Bancolombia – it is the only financier that supports the IFC Performance Standards, which comprise
precedent-setting guidelines in many respects. If only 2% of the ownership supports these standards, does
that mean that the other companies get to veto their application? Or can Bancolombia insist that they be
applied? With the complex interests and drivers behind extractive projects, exacerbated by the presence of
armed conflict in the area, these questions are critical in terms of application of CSR instruments.
Prior to discussing the company’s CSR policies, community members reviewed first the enormous impacts
the Salvajina hydro-project has had on Indigenous and Afro-Descendent Peoples.388 Not only did the project
flood out some of the most fertile community lands used for both agricultural and mining purposes, but
cemeteries and villages were inundated, and cultural connections and transportation routes severely
compromised. Many have been left
destitute and without employment,
fleeing to the ‘cordones de miseria’, the
Box 22: Community perspectives on CSR
ribbons of misery flanking large cities to
search for work — and the economy has
“As communities we say that CSR goes far beyond tax breaks
shifted almost entirely to mining. The level
and foundations; it is the capacity of the company to respond
of violence in this area has escalated, and
to the requests that communities make, and the needs that
much remains to be done with regards to
communities have, and that are not necessarily the obligation
compensation for lost lands and human
of a company.”
rights violations.
The communities have gone through
several processes to attempt to right some
of the wrongs. In 1986, for example, an
Agreement (‘el Acta del 86’) was reached
on mitigation measures. However, only
a fraction of the agreement has been
implemented so far.389
There were strong reactions by
community leaders and workshop
participants, when reviewing EPSA’s CSR
commitments, and those of Salvajina’s
financiers, and comparing these with
company actions.390 For many, the
388
389
390
“CSR comprises the political, economic, social, environmental
commitments acquired by companies to respect the autonomy
and rights of peoples with the ultimate end of obtaining
benefits and tax breaks. An example is the EPSA Foundation
and its small projects that the company hopes will result in
obtaining the will of the communities so they don’t demand
their rights be upheld.”
“CSR is a duty that companies have in the territory to mitigate
the negative impacts of its economic activities and make
visible positive impacts. For their part, companies see CSR as a
possibility for publicizing their actions to show themselves as
true philanthropists.”
Source: November 9, 2011 community workshop in Asnazu, Suárez
See Juanillo Mina (2008).
Community members estimate that only around 20 per cent of the agreement has been implemented.
On November 9, 2011 a workshop took place in Asnazu to discuss CSR commitments by companies with interests in the area, and community
125
information presented was new, and had not been disseminated at the community level before, despite
requests by the communities to receive copies of company policies. “Information is a fundamental right of
great importance for our communities,” one community leader attested, “and this research on CSR policies
marks an important and relevant moment for us as communities and organizations, because EPSA has denied
repeated requests to facilitate this type of information at the community level.” The group concluded that it
is critical that communities understand company CSR commitments, as this enables communities to enter
into spaces of agreement-making and participation in better conditions, and improves the type of discussion
by making it is more horizontal, which, as one participant explained, “permits a dialogue among equals that
is more respectful and democratic.”
Much discussion took place about the nature and definition of CSR (see Box 22). A key conclusion was
that companies’ CSR policies and programs should not only be agreed to, but also consulted on, with the
communities — as they have very tangible effects, that can change the social dynamics of the communities
within the area of influence of company activities.
Looking more closely at EPSA’s activities at the community level, the nature, process and outcomes of ‘The
EPSA Foundation’ were examined. Observations were made that:
• While the community had some level of participation in defining priorities when the foundation was
initially set up, today projects are being undertaken and set up in ways that don’t correspond with
what was agreed in the early years.
• EPSA is coming with small projects to some communities in the area of influence of the reservoir, but
these benefit a very limited number of families — for example around 30 families, when over 3000
families were affected, most of whom now live in cities such as Cali and Bogota. The communities
had highlighted as strategic priorities issues such as transportation networks, that have never been
taken into consideration
• EPSA is not taking into account the real area of influence of the project, for example the
communities that live downstream. This needs to be revisited not only in terms of the consultation
process for the management plan, but in terms of their CSR commitments.
• EPSA hires its employees through a third party, PROSERVI; this agency does not allow these workers
to become unionized, which contradicts EPSA’s commitment to uphold and promote national law.
Participants also highlighted the issue of armed conflict. It was noted that EPSA has no emergency plan in
this respect, or regarding the active fighting between FARC and the military. “All the company did [when
armed conflict was taking place] was to stop the reservoir/river transportation from flowing, leaving the
communities to confront the situation in such adverse circumstances,” according to one participant.
One participant said he felt the communities are being used by the companies, because looking at what the
company says it has done, compared to what has happened in reality, leaves many questions about where
the funds have gone. Another stated that: “The funds that the Fundación EPSA is executing are ours, of the
communities, they’re from the taxes that the company does not pay, and so they belong to us.”
perspectives on these. A total of 23 participants attended. They reviewed a power point presentation prepared by Viviane Weitzner, and
engaged in small group and open discussion. Plutarco Sandoval, Local Coordinator for this project, and also a notable Afro-Descendent leader,
facilitated the discussion.
126
127
“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 in our lands we prohibit
the entrance of multinational companies;
we shouldn’t hear them, we should expulse them.
It’s the only way to protect the little that we have.
Without territory there is no life,
and without life why have territory.”
Elder, RICL, Caldas
“The level of pressure from national
and transnational mining companies
has increased, and we think there will be
a great effort to try to stop
Constitutional Court judgment T-1045A
from being implemented.
This will demand greater efforts
on our part to maintain the rights that
we have won and that the Court
has recognized and underscored.”
Community leader, Cauca
Top: Indigenous guard and Federico Herrera (middle)
examining mining techniques in Caldas
Middle: Salvajina dam
Bottom: José Edier Solis Caicedo, Singer-songwriter from Cauca
128
Photos: Viviane Weitzner
Holding Extractive Companies to Account in Colombia Experiences from the Field — Conclusions
5.5 Usefulness of CSR policies – Community Perspectives
Community discussions on the usefulness of CSR policies revealed different positions, which reflected on the
realities of the situation in each of the territories.
5.5.1 Buenos Aires and Suárez, Cauca
In the case of Cauca, communities are currently living with a large-scale dam constructed in the 1980s. Yet
only now is a management plan being developed and compensation being negotiated. These communities
welcomed information on company CSR policies to help balance the playing field and demand that
commitments be upheld. In the words of community representatives:
• “Looking at what EPSA defines and publishes, it’s evident that it does not fulfill any of its commitments
in Suárez and Buenos Aires. But this information helps to lobby at all levels.”
• “CSR serves to demand that these policies be fulfilled, and that our rights be respected. It serves to
follow-up, evaluate and monitor the company. By addressing this, we can also strengthen ourselves as
communities.”
• “Despite what companies understand as CSR, for the communities it’s important to know these policies
in order to evaluate them and to follow-up on voluntary commitments. Even though in terms of human
rights guarantees, nothing can be voluntary — it’s an obligation.”
Conclusions from the community workshop included that:
• “For the communities, all this information of company commitments and voluntary principles and CSR
policies is extremely important. It raises our ego, and helps us come to a privileged position because
it has not been easy to access this information. This research helps us bring more balance between
the communities and companies, because they cannot contradict their own policies when they are
in meetings in the communities and those who are participating hold up the commitments that the
companies have made.”
• “This research motivates the communities towards constructing new strategies for transformation and
negotiation of conflicts. For the communities of Buenos Aires and Suárez, these subjects complement
and reaffirm the need to undertake processes of free, prior and informed consultation and consent
that guarantee the full exercise of the rights of communities. It’s important to broaden this work
with the communities, especially the subject of CSR that turned out to be very illustrative and
revealing for ethnic groups.”
Knowledge of company policies then is useful because it helps level the playing field in discussions with the
community, allows the community to monitor and evaluate company commitments, and to use these in
negotiations. Nonetheless, these policies are no substitute for the responsibility to uphold human rights,
which, as one Afro-Descendent woman cited above emphasized, is an obligation, and cannot be voluntary.
5.5.2 Resguardo Indígena Cañamomo Lomaprieta, Caldas
Perspectives from RICL are somewhat different, in that this Resguardo has not had to face large-scale projects
operating on its territory. The Resguardo is very protective of its small land-base, knowing that any large-scale
projects that are proposed will have detrimental effects in terms of lessening the amount of land available for
129
Indigenous People from Putumayo participate in an ESIA workshop in Cauca.
productive use, as well as a variety of other economic, environmental, spiritual, cultural and territorial impacts.
In these communities, perspectives highlighted mostly that CSR policies are not useful, and are not being
implemented:
• “By what was presented and what we have seen in their behaviour, we can conclude that CSR
policies don’t serve for anything, because those who promote them and subscribe to them don’t
even fulfill them; it’s the double discourse of capitalism.” (emphasis added)
• “These CSR policies are unknown to us, they have never shown to us or presented, and in truth….
their way of acting with us shows their lack of interest in fulfilling their own policies.” (emphasis
added)
• “Their policies are contrary to our community interests, they aren’t real; they don’t implement them.
They have them to trick us and to make us think that they can live alongside us, and justify their
actions to other people from away. They only want to take our gold, and leave us in misery.”
One Indigenous woman from the community of La Union made an insightful comment on the process of
developing CSR policies, when she said:
“It doesn’t make sense that they propose by themselves what they should fulfill to be responsible
with the community; they should develop the full extent of the policies to which they commit
together with the community, what is the agreement and understanding with the communities,
and what are the minimum guidelines they will follow. But they should have a list of what
they can’t do, things that third parties and company officials should not do in the community.”
(emphasis added)
130
Holding Extractive Companies to Account in Colombia In other words, CSR policy-making should be the product of consultations with the communities, and what
companies will do should be negotiated on a case-by-case and community-specific way; what companies
should not do should be very clear to companies, from the outset.
Another critical theme in RICL discussions was companies’ lack of attention to or ignorance of the effects
of their activities on the internal armed conflict, and of the effects of this in turn on the communities. One
community leader noted that: “These companies completely ignore the dynamics of the internal armed
conflict and its impact on our communities [and] how their behavior intervenes directly in the lives of the
communities and strengthens the development of the war and its actors.”
Discussion in RICL turned away from looking at CSR policies, to discussing the importance of organizational
strengthening and internal strategies as the most effective way of protecting ethnic rights. Maintaining unity
not only within the Resguardo, but trying to do so with neighbouring communities, was held up as one of the
best strategies in the face of large-scale interests: “From the experience of working with all the resguardos,
the most important element is unity,” said one resource person, adding: “Other resguardos are also moving
forward with actions to defend their territory in the face of mining. What is done in the Resguardo has an
effect on the other neighbours. We all have to walk in the same direction.” An elder accentuated this point,
by stating: “We will be very big if we create unity. Unity is a ghost for them, and even if it’s not big, it’s a
ghost that spooks the enemy.”
Yet power asymmetry and company divide-and-conquer tactics make the strategy of unity a difficult
proposition, according to one community woman. She emphasized: “We’re so alone, we’re like a small boat
at sea, ready to capsize.”
Elders at the workshop had strong positions on the importance of territorial integrity, and strategies for not
letting any outside interests or companies enter the territory at all. One Elder who is also a miner stated
emphatically:
“If they haven’t been clear in what they propose, they shouldn’t even be heard … we shouldn’t
receive them to discuss their proposals, because they all have an effect on our territory, and we
can’t permit that, so we shouldn’t listen to them. There is nothing to discuss with them, and that’s
why it’s not worth meeting with them. As well, 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 in our lands we prohibit the entrance of multinational companies, we shouldn’t hear them,
we should expulse them. It’s the only way to protect the little that we have. Without territory there
is no life, and without life why have territory.” (emphasis added)
Among the community strategies discussed were: Organizational strengthening, unity, developing internal
standards and protection mechanisms for implementing free, prior and informed consultation and consent,
making the situation in the communities known regionally and nationally, linking up with national and
international civil society groups including those from Canada, and continuing to practice ancestral mining
without external perturbations.
An Elder and member of the Governing Council summed up RICL’s perspectives by stating:
“Mining has to be associated with other interests, not only the interest in gold; in this case, all
the interests of the Resguardo are linked — water, territory, life. We need the solidarity of the
whole community, including the mining community. The guarantee is that we make known
the issues at stake with all levels of society, at the regional and national level. We have to be
committed to future generations; we can’t weaken (or faint) in the face of the voracious appetite
of multinational mining companies.”
131
5.6 Synthesis of key findings — Analysis of company CSR materials
A review of company literature together with the community analyses, and interviews with several company
representatives, demonstrate that the great majority of companies active in the two case study sites do not
subscribe to or follow international CSR instruments at all (see Box 23). Indeed, most juniors with interests
in these territories do not have formal CSR or ethnic peoples’ policies, but instead make aspirational
statements.
Some, such as Medoro Resources — now merged with Gran Colombia Gold — are members of the
Prospectors and Developers Association of Canada (PDAC), and as such, should voluntarily implement PDAC’s
E3 plus guidelines. Nonetheless, these are not highlighted in their company websites, and there appears to
be ignorance of these guidelines.
Two companies involved in the case study sites that have subscribed to multiple CSR voluntary frameworks
are EPSA and its financiers (in the case of Cauca), and Anglo-Gold Ashanti (which has interests in both Cauca
and Caldas). A review of the company reports on these instruments reveals several flaws with self-reporting.
Namely, the companies:
• Have not reported consistently.
• Pick and choose which indicators they do or don’t want to report on.
• Do not report on exploration activities in full, or on joint ventures where they are not the official
operator.
In the case of AGA, for example, the company decided that for Colombia it would not report at its usual
A+ level, but instead at a B level for GRI, and has not issued a Colombia Report since 2009. In fact it has
only issued two country reports since it initiated exploration projects in the early 2000s, and both without
external verification. Moreover, AGA does not report fully on exploration activities, but only on operations.
This is a major weakness and oversight, as it is during the exploration phase – particularly in regions affected
by armed conflict – that some of the largest human rights impacts and conflicts take place. It is also a major
phase in the mining cycle. Omitting exploration from reporting requirements leaves a big loophole in selfreporting. Besides this, AGA’s Colombia Reports leave out key human rights incidents that have indeed been
publicly reported, such as the flyovers in 2008 that had an acute impact on RICL. Furthermore, the company
states it does not report on joint ventures where AGA is not the operator. This is highly problematic as AGA is
equally responsible for any human rights violations or environmental catastrophes that a joint venture might
cause, even during exploration.
In the case of the EPSA project, some interesting CSR questions emerge with regards to the diverse financiers
and their commitments. One financier, Bancolombia, subscribes to the Equator Principles. In theory then,
the Equator Principles — based on the IFC performance standards — should be implemented. However,
Bancolombia has less than a 2% stake. What happens in this context? Does it matter how small its stake is, to
ensure that the investor implements the Principles?
Conversely, questions arise around what happens in the case of mergers, such as in the case of Medoro
Resources and Gran Colombia. While Medoro has published some CSR commitments on its website and in
print, Gran Colombia has none. What does this mean, particularly if we follow AngloGold Ashanti’s logic that
it need not report on joint ventures where it is not the lead operator; if Gran Colombia is the lead operator,
does that mean that it will not report on Medoro’s commitments and actions, or those of its subsidiaries?
Further, overall, there is very little acknowledgement of the fact that the companies are operating in areas
where there is armed conflict. In most cases companies have downplayed the security situation, noting that
the areas are ‘socially stable,’ contrary to the perspectives and lived experiences of the communities.
132
Holding Extractive Companies to Account in Colombia Box 23: Companies with interests in Cauca and/or Caldas and CSR commitments
Finally, it is very clear that companies are simply ill-equipped for respecting the rights of ethnic peoples,
particularly the right to free, prior and informed consultation and consent. In some cases they have tried to
implement these processes on their own, without following due process — the State needs to be involved,
and in fact needs to trigger the consultation process (for example in the case of Cosigo Resources in Cauca).
And in other cases, they have clearly, a) chosen to ignore the presence of Indigenous and Black populations
whose territories have not yet been recognized by the State, contrary to Constitutional Court judgments
and international jurisprudence; or b) failed to appropriately define – with the communities – what the
consultation and consent processes for potential projects and resettlement plans should look like; or c) not
provided communities with the full information and results of relevant company studies, in formats and
languages they can understand. All these are clearly illustrated in the case of Medoro Resources (formerly –
now Gran Colombia) regarding the Marmato Project. In short, this analysis concludes that overall, company
133
CSR publications are useful as they are often the only information publicly available to outsiders. They can:
• Shed light on key issues and problems, as did the Scoping Report by SRK consultants for the
Marmato Project. This report discusses not only the option of an open-pit mine that was being
published so widely by Medoro (and now by Gran Colombia), but the very realistic other option of
an underground mine, that might have fewer environmental and social impacts. This is a critical
option for affected communities and other interested parties to be aware of. The report also
highlights current practices by Mineros Nacionales, which are causing environmental contamination
with worrying impacts the Cauca river watershed; if the companies are not righting this situation
now, there is little credibility in the idea that their future practices will be any different. But the SRK
report is also revealing in that it does not touch on the full range of human rights commitments that
Colombia has made nationally and internationally, and that the companies in the areas should also
fulfill in accordance with national and international law. It edits out critical diagrams showing sites
and locations of the mine infrastructure, thus preventing access to the full project design. The report
also shines a light on an extremely flawed ESIA and consultation process that ignores ethnic peoples’
participation and rights, particularly with regards to consultation and FPIC. And the report has not
been circulated in the communities in any form, let alone in Spanish, or in formats that are culturally
appropriate and understandable.
• Provide useful information for communities to use in lobbying for these commitments to be
implemented. Nonetheless, the case studies showed that for remote communities, information on
company CSR commitments and policies is very hard to come by. Much of this information is not
available in Spanish or in accessible formats. Even for those of us who have access to technology,
and fluency in English, it takes a long time to sift through the various web sites, and to identify the
relevant information.
Finally, despite the potential usefulness of company CSR commitments, a major problem is the volume
of name changes, subsidiaries involved and mergers, which make it extremely difficult to follow the
evolution of companies and their commitments. One issue that surfaced in discussions with AGA is the
fact that many companies have the word ‘Gold’ in their title, and there is sometimes general confusion in
communities about which companies are present in their areas; communities may think that the company
is AngloGold Ashanti, when it is in fact another. Or, some prospectors may say they are with AGA, when
they are not. Another difficulty is when company personnel move to other companies, and then go back to
the same communities – the communities get confused regarding for whom they work. All this generates
misinformation, can lead to false accusations, and can create further tension and polarization.
What emerges clearly from the Cauca and Caldas case studies is that despite the potential usefulness of CSR
policies as a benchmark to hold companies to, in terms of fulfilling or neglecting their own commitments,
they clearly do not provide adequate human rights protection on the ground, and are no substitute for
stronger government accountability mechanisms.
134
135
“If Medoro [now Gran Colombia Gold]
comes to me and tells me that I have to leave
I will answer them respectfully … I would tell them
they would have to expel me by way of
bullets or machetes —
but they can’t oblige me to leave.”
Excerpt from Father José Reinel Restrepo’s interview in
“Marmato pesebre de oro que grita – Marmato Gold Manger CryingOut,”
Documentary posted on YouTube,
August 28, 2011, days before he was killed.
Top: Elder, Cauca
Middle: Padre José Reinel Restrepo,
days before he was killed in September 2011.
He was a staunch opponent of plans by a Canadian mining company
to create an open-pit mine at Marmato, Caldas
Bottom: Spiritual healer from the Resguardo San Lorenzo, Caldas,
prepares the room for dialogue between community leaders,
the State, mining companies and NGOs
136
Vivianeto
Weitzner
(top
bottom)
Holding ExtractivePhotos:
Companies
Account
inand
Colombia
Part 6: Conclusions and Recommendations
6.1 The reality on the ground
Despite the widely-promoted views that Colombia is now post-conflict and that security issues have been
dealt with, the evidence on the ground paints a very different picture. The country is still wracked by active
armed conflict involving guerrillas, paramilitary break-off groups and military forces. Human security remains
a key source of concern, particularly for social leaders speaking up for human rights.
Indeed, when Father José Reinel Restrepo was killed on September 1, 2011 (see Part 5a), likely for speaking
up for the rights of the people of Marmato affected by proposed large-scale, open-pit gold mining by
Canadian company Gran Colombia Gold, no one claimed responsibility. The company did publicly express
concern; but it continues full-force ahead with its plans. Father Restrepo’s life is one of many that have been
– and that will be – lost as a consequence of the complex factors involved in investing in mega-projects, in
the context of the Colombian armed conflict.391
…Intensification of violence for ethnic and other social leaders
In fact, as this paper details, the intimidation and violence faced by Colombia’s Indigenous, Afro-Descendent
and other social leaders has intensified. In the extractive sector, illegal armed groups are muscling into the
action, setting up their own mining operations to take advantage of high commodity prices to fuel their
activities, and for drug money laundering. Meanwhile, Indigenous and Afro-Descendent ancestral miners
are caught in the cross-fire, with extractive companies and illegal armed groups alike eyeing the resources in
their territories— which cover more than 30% of the country.
…Weak host government assurances for human rights
Despite the country’s progressive normative framework, and recent cutting-edge judgments by Colombia’s
Constitutional Court upholding ethnic rights to consultation and consent, Colombia’s regulatory agencies
remain weak and dysfunctional. The Ministry of the Interior’s Directorate of Prior Consultation lacks the
staff to certify and monitor mining activities that should trigger consultation and consent processes. Draft
regulations on prior consultation have been drafted so far without consulting Colombia’s ethnic minorities,
and it remains to be seen if this will be corrected. The new agency for permitting mining activities (Autoridad
Nacional para Licencias Ambientales— ANLA) centralizes and streamlines the permitting process, and was
established in 2011 without consulting Colombia’s ethnic peoples. Furthermore, current environmental
impact assessment procedures lack meaningful consideration of human rights and social, cultural and
spiritual impacts; and there is inadequate staff for monitoring EIA processes in the field. And despite a
Constitutional Court decision in 2010 that declared the Mining Code null and void, for lack of appropriate
consultation with ethnic peoples, the invalidated code remains in place for a two-year window, until a new
code comes into effect. But in the meantime new drafts have seemingly been negotiated behind closed
doors, without consultation. For its part, Defensoría remains severely under-resourced and understaffed,
undermining its effectiveness as a mechanism for dealing with human rights complaints. And a crackdown on
illegal mining has led to ancestral miners and their livelihoods being threatened.
Meanwhile, the Santos government is pushing ahead with an avalanche of legislative reforms on critical
issues such as national planning and restitution of lands for victims of the armed conflict. In contrast to
391
While Father Restrepo has become emblematic across Colombia as a victim of the complex forces related to mega-projects and investments in
Colombia, others have reached similar notoriety. Ten years earlier, in June 2001, Embera Katio leader Kimy Pernio Domica was disappeared for
speaking up for his people affected by the construction of the large-scale Urrá dam. He had spoken vocally at the international level about the
dam’s impacts, including with testimony to Canada’s Standing Committee on Foreign Affairs and International Trade on November 16, 1999.
Canada’s EDC provided financial support for this dam.
137
Photos: Viviane Weitzner
(left) Rodolfo Stavenhagen walks with Misak
Indigenous Authority through the streets of Marmato,
Caldas; (right) This is a watch tower that was
constructed to vigil Wayuu people who refused to leave
their ancestral territory when the El Cerrejón coal mine
and its related infrastructure was built. The companies
fenced in the Wayuu people, making leaving and
entering their territory difficult, with recourse only to
boat travel.
his predecessor, President Santos is making
an effort to consult with ethnic groups on
these key initiatives. Yet these efforts have
been extremely problematic to date, with
objections by Afro-Descendent groups, among
others, saying that their rights to meaningful
consultation have been hollowed out. Issues of
legitimate representation, corruption in the handling of the resources for such consultations, extremely short
timeframes, and parallel processes, are just some of the myriad problems plaguing national consultations
on key legislative initiatives. These are overwhelming the capacities of ethnic organizations to respond
appropriately.
The result is a huge gap between Colombia’s professed human rights commitments, and what takes place in
practice. Hanging in the balance is the political will of Colombia’s government to truly protect human rights
by strengthening the country’s institutions, providing them with adequate funding, and undertaking due
process. Also hanging in the balance is the political will to commit to free, prior and informed consultation
and consent processes — including for national level initiatives — that are meaningful and representative,
and undertaken under appropriate conditions.
…Marked increase in investments in extractives, especially by Canadian companies
Canadian companies, who lead the pack with regards to exploration and development interests in Colombia,
will be on the front-lines dealing with the issues at stake. Indeed, in November 2011 Canadian companies
represented 65% of all companies actively exploring for minerals and metals in Colombia, and over 75% of
138
Holding Extractive Companies to Account in Colombia those exploring for oil and gas. And these numbers are set to increase, as the Canada-Colombia Free Trade
Agreement (which came into force August 2011) becomes fully operational.
…Ineffectiveness of current approaches that rely on voluntary CSR instruments
On their own— and without sanctions for violating human rights, or effective remedies for affected
communities —voluntary CSR instruments (such as the UNGC, VPs, GRI and OECD Guidelines) are far from
sufficient for upholding human rights on the ground, particularly in the context of armed conflict. More
insidiously, voluntary CSR frameworks can mask or cover up human rights incidents, given their reliance on
self-reporting and lack of third-party verification. Respecting human rights is not voluntary for companies —
it is an obligation. Nonetheless, as evidenced by the examination of companies active in Caldas and Cauca,
very few companies operating in Colombia actually subscribe to or implement international CSR codes. And
of those with their own CSR codes, almost none have Indigenous Peoples’ policies, aside from those that
may pertain to industry associations they are part of. Furthermore, most are juniors.
…Lack of access to grievance mechanisms and legal systems of home governments
Home governments currently have a spectrum of approaches to investor oversight — from Canada’s
encouraging voluntary adoption and implementation of voluntary codes, to Norway’s conditioning
investments on ethical principles. Yet to date, no home country has established non-judicial complaints
mechanisms that can lead to sanction and remedy, two key criteria for effectiveness that Ruggie392asserts are
needed to close the governance gaps that enable permissive environments, in which companies can engage
in wrongful acts with impunity.
Access to remedy in home states remains elusive. In Colombia’s experience with the US Alien Torts Claim
Statute, for example, a case took 10 years to proceed to hearing and trial. And in the case of non-judicial
complaints mechanisms provided by home governments, such as NCPs, the Colombian experience shows
that the implementation of agreed-upon outcomes of mediation is not guaranteed by the process.
… Power Imbalance and lack of
information at the community level
“Companies come to the territories not
with their own names, but through junior companies.
Ethnic peoples and other communities
As well, companies constantly shift their names
facing extractive projects often have
to camouflage their identity. There are many
no idea that these are planned for
inconsistencies between their discourse and reality.”
their territories until prospectors
arrive, flyovers take place, or violence
Adviser, Resguardo Indígena Cañamomo Lomaprieta,
increases in their homelands, with
National Workshop on Environmental and Social Impact
leaders being threatened. On the
Assessment, August 2011, Bogota.
ground, the scenario is extremely
confusing as companies with similar
names approach communities
(AngloGold, Colombia Gold, Colombia Goldfields…), mergers and acquisitions take place overnight, and
appropriate information is lacking, both on the companies and their proposed project activities. Even for
those able to access the Internet, searches are difficult as information is often not available on websites
in Spanish, information is often highly technical and scattered on different sites on the web, and limited
information is disclosed.
392
Ruggie (2008).
139
6.2 Holding to account extractive companies with interests in Colombia
6.2.1 Recommendations
Strengthen Colombian Government Accountability Mechanisms
There are several areas where governance in Colombia needs to be strengthened to ensure ethnic and
human rights protections are adequately guaranteed, in the face of growing numbers of potential extractive
projects. To this end, the Government of Colombia should:
• Integrate the recommendations from the project the Office of the UN High Commissioner on Human
Rights in Colombia (OACNUDH) is currently undertaking on appropriate mechanisms for consulting
with and obtaining the consent of Indigenous Peoples to inform the process and content of drafting
new regulations on prior consultation and free, prior and informed consent. Indeed, the process will
help shed light on how best to appropriately consult with Indigenous and Afro-Descendent groups
on all national level initiatives.
• Stop the avalanche of important legislative proposals currently underway until the current objections
with regards to due process (representativeness of national consultivas, corruption around the
handling of funding for consultation processes, short timeframes and parallel processes, among
other issues) have been adequately addressed, and an appropriate process aligned with OACNUDH’s
project outcomes is in place. Once this is in place:
´ Review
and adjust the current system for issuing concessions, with appropriate consultation of
Colombia’s ethnic groups. The current system violates the constitutionally guaranteed right to
prior consultation leading to consent for any administrative acts affecting Indigenous and Tribal
Peoples, as concessions are issued without due process. Further, the new permitting office –
ANLA – was established without appropriate consultation.
´ Review
and realign current mechanisms for environmental protection, with appropriate
consultation and consent of Colombia’s ethnic groups, to ensure these mechanisms incorporate
social and human rights considerations, particularly pertaining to ethnic groups. Colombia’s
environmental protection framework should consider formally adopting the Akwé:Kon
Guidelines as a baseline for assessing projects affecting ancestral lands, and address the
cumulative impacts of mining
activities, including exploration.
“Large-scale or medium-scale
´ Ensure that the reform of the mining
developments cannot be done
code is undertaken with such due
at the cost of the suffering, death
process.
and dispossession of communities”
Jimeno et al., 2012
adopt no-go zones for natural
resources extraction (considering the
criteria elaborated further below) in
areas where there is active armed conflict, or where communities have declared their territories
– or parts of it – no-go zones for extraction for cultural reasons. The parameters and triggers for
these no-go zones should be further consulted with Colombia’s ethnic groups.
´ Formally
• Allocate appropriate funding to Defensoría, Procuraduría, the Ministry of the Interior’s Dirección de
Consulta Previa, and the Ministry of the Environment’s EIA group, to ensure they have appropriate
staffing levels and resources to implement their mandates effectively, and monitor what is taking
place in the field. This includes allocating the total allowable portion of royalties to these ends – and
increasing this percentage; further, looking beyond royalties to other sources of funding.
140
Holding Extractive Companies to Account in Colombia • Ensure that the Government of Colombia’s December 2011 commitment to the OECD Guidelines
which includes the establishment of a National Contact Point for complaints does not mean scarce
resources going to Defensoría are in any way lessened. Colombia has in place already a grievance
mechanism through Defensoría to investigate complaints on the full range of human rights issues
going beyond those committed to in the OECD, and a Constitutional Court that can ensure judicial
redress. What is not in place are on-the-ground verification and ongoing monitoring mechanisms
to ensure that Constitutional Court decisions are implemented in practice. This type of monitoring
mechanism should be established. Any NCP that does get established should consider including
Defensoría as an integral member.
Improve Corporate Practice
In order to improve corporate practice, and to ensure CSR frameworks assure respect for human rights
-- including respect for ethnic rights to self-determination – mining proponents, companies and industry
associations should:
Scope of rights
• Explicitly recognize in CSR frameworks Indigenous and Tribal Peoples’ rights and the international
instruments and jurisprudence protecting these. This means:
´ Refer
explicitly to UNDRIP; ILO Convention 169; CERD; CBD; and clarifications made through the
observations of international instrument bodies and in national and international jurisprudence
concerning issues such as the scope and nature of ancestral property rights, and implementation
of free, prior and informed consent.
´ Refer
explicitly to respecting the right to free, prior and informed consent, and require its
implementation for all activities affecting Indigenous and Afro-descendent Peoples and their
territories.
Human Rights Knowledge and Training
• Ensure company personnel -- particularly geologists, contractors and others involved in approaching
communities -- have adequate knowledge of the human rights framework applicable to Colombia,
both its national and international commitments. This capacity strengthening should not be limited
to a single half hour session, or even a one-day workshop; it should be ongoing -- ideally yearly -with mandatory attendance. Further, best practice mining companies have in-house human rights
specialists and anthropologists.
Implementation and Verification
• Ensure leading edge practice with regards to implementing ethnic rights is followed. In the context of
Colombia this means:
´ Refrain
from acquiring concessions issued by the Government of Colombia in areas where
there are ethnic communities – or where ethnic communities will be affected – unless they
have undergone the appropriate prior consultation and consent processes PRIOR TO BEING
ISSUED, as required under Colombia’s Constitution and in domestic jurisprudence by the
Constitutional Court. Increasingly, ethnic groups are looking to ILO Convention 169’s requirement
for consultation and consent for administrative acts (article 6) -- such as issuing concessions -- as
grounds for court action.
´ For
concessions already obtained, refrain from undertaking any activities -- including exploration
and prospecting activities such as flyovers, or on-the-ground-research activities such as data
141
collection for impact assessments and feasibility studies, or even CSR projects -- until free,
prior and informed consent has been obtained from the potentially affected communities. The
first is a legal requirement under ILO 169 (article 15 [2]), and the second is a requirement for
ethical research that goes hand-in-hand with implementing free, prior and informed consent in
decision-making around extractives.
´ Refrain
from initiating consultations around potential activities until a community has a consent
process in place. Provide time and -- when asked -- support for the development of consent and
grievance procedures.
´ Ensure
the State – the Ministry of Interior -- has triggered and is accompanying the official
consultation and consent process, as mandated under national law. Companies cannot proceed
without this, or the process will be deemed illegitimate.
´ Respect
the traditional authorities in Indigenous communities rather than working only with
‘imposed’ or self-appointed leaders, and ensure that all members of the communities –
particularly women, youth and elders – are integral participants in the process. Negotiate with
the appropriate community authorities and their representative institutions, as per community
guidelines.
´ Ensure
communities have timely access to all relevant information about any proposal affecting
ethnic territories in formats that are culturally appropriate, available in Spanish and local
Indigenous languages, and that are easy to understand. The appropriate formats and means
for sharing information at the community level should be agreed in advance. Further, all
relevant company materials (company policies, human rights commitments, as well as project
information and documents) should be translated into Spanish, posted on company websites,
and made available in hard copy to affected communities. Currently, most company websites
-- especially those of Canadian juniors -- include only English information, making them
inaccessible to Colombian citizens.
´ Where
communities are remote and lack communications infrastructure, donors, governments
and proponents should consider installing telephone and internet connections.
´ Where
Indigenous and Tribal Peoples do not have recognized land rights, respect them as if
these were recognized, as clarified by international jurisprudence.
´ Recognize
and use the Akwé:Kon guidelines (2004) developed by parties to the Convention on
Biological Diversity for human rights due diligence in projects affecting ancestral lands.
´ Recognize
and use already available rich guidelines produced for implementing consent, such as
the ongoing work of the UN Permanent Forum on Indigenous Issues as it develops its standardsetting exercise on FPIC; guidelines on operationalizing consent developed under the World
Commission on Dams; and the ever-growing case study literature.
´ Independently
assess and verify processes for free, prior and informed consent using experts
chosen in consultation with affected communities, and involving Defensoría.
Reporting, Assurance and Grievance Mechanisms
• Widen the scope of current CSR framework reporting so it includes all cycles in mining, particularly
prospecting and exploration, and require that members of CSR frameworks report also on joint
ventures where they are not the operator but a ‘silent’ partner.
• Establish independent verification for the self-reporting of CSR framework indicators. In the case of
Colombia, such verification could include not only experts chosen in consultation with the affected
communities, but also staff from Colombia’s Defensoría.
142
Holding Extractive Companies to Account in Colombia • Establish grievance
mechanisms at the CSR
framework level (not only the
project level) that can lead
to non-judicial solutions, but
whose investigations might
also bring about sanctions for
companies not fulfilling their
commitments, and remedy
for affected communities.
Such mechanisms should
be designed with the
participation of affected
groups including Indigenous
and Afro-Descendent groups.
• Provide appropriate
conditions for Indigenous
and Afro-Descendent groups
to participate meaningfully
in the design process and
development of strengthened
implementation and
grievance mechanisms of CSR
frameworks. This includes
appropriate numbers of seats
at the table, and resources –
funding for participation costs
but also resources to contract
expert help. These enabling
conditions for meaningful and
active participation should
be provided recognizing
that Indigenous and AfroPhoto: Viviane Weitzner
Descendent organizations
Marcus Colchester, Director of Forest Peoples Programme (UK), accompanied
are often overwhelmed and
field activities in Colombia. Here he takes notes for an internal document with
recommendations for partners in Cauca.
under-resourced dealing with
other initiatives they may
deem better-suited to protecting their rights; and recognizing also they may choose not to engage
despite these important enabling conditions being provided.
Policy Influence
• Consider using company/proponent/industry association influence to help strengthen the agencies
and processes that further protection of human rights in Colombia. For example, current national
processes such as issuing of concessions contravene ILO Convention 169 in that consultations are not
undertaken prior to these being issued. This needs to be corrected and companies could encourage
the Government of Colombia to engage in integrated land-use planning, together with the country’s
Indigenous and Afro-Descendent Peoples, as a means to identify areas where concessions can and
cannot be issued, following ethnic rights. Should this systemic conflict continue between national
processes that contravene the current guarantees under Colombia’s Constitution, the result could be
extremely costly for companies and the government when ethnic groups take judicial action.
143
• Likewise, consider company/proponent/industry association influence to strengthen – not block
– processes leading to the establishment of strong home government grievance mechanisms that
provide for sanction and remedy, so that home countries can uphold their responsibility to protect
human rights, particularly given the context of weak governance prevalent in so many countries
where resources extraction takes place.
Strengthen Home Government Accountability Mechanisms – Beyond voluntary CSR
To prevent and address complicity with human rights violations through investments in Colombia, home
governments should:
• Establish grievance mechanisms that can lead to sanction and remedy, including withdrawing
public funding where companies are found to have violated human rights. For Canada, this includes
re-considering the current weak mandate of the CSR Counsellor and establishing a complaint
mechanism modeled after that recommended in the 2007 National CSR roundtables advisory group
report.
• Review current barriers to access to justice from the legal system of home countries, and address
these so complaints can be heard and lead to remedy and redress.
• Consider legislation similar to that of the US Dodd-Frank Act concerning conflict minerals. However,
ensure that ancestral artisanal and small scale miner´s human rights are respected (even if formal
mining licenses are not in place), and support efforts by government and other stakeholders to
improve better mining practices, traceable fair trading supply chains and certification of ancestral
miners, so that they are not adversely affected by government actions to crack down on mining by
criminal groups disguised as small scale mining.
• Ensure that Export Credit Agencies such as Export Development Canada require clearly-spelled out
human rights due diligence from their clients, particularly those considering operating in the context
of armed conflict. The human rights frameworks should refer explicitly to:
´ Indigenous
and Afro-Descendent rights instruments (UNDRIP; ILO Convention 169; CERD;
CBD; and clarifications made through the observations of international instrument bodies and
in national and international jurisprudence concerning issues such as the scope and nature of
ancestral property rights, and implementation of free, prior and informed consent); and
´ Respecting
the right to free, prior and informed consent. ECAs should establish clearly
conceived contractual requirements with regards to consultation and obtaining free, prior
and informed consent; rigorous and ongoing independent monitoring and verification; clarity
with regards to grievance procedures; and clear indicators for informing decisions to withdraw
current or potential support. These procedures and the documentation that is provided by the
companies should be disclosed and made available to the public, in keeping with the principles
of transparency, accountability and free, prior and informed consent. ECA reviews of human
rights due diligence and contractual requirements and procedures should take place with the
input of diverse actors, particularly from representative organizations of potentially affected
communities.
• Develop criteria for ‘no-go’ zones for investment in Colombia – and especially in extractives -- in
consultation with diverse actors including Indigenous and Afro-Descendent Peoples, and other
affected community representatives. These should be incorporated in human rights due diligence. As
a starting point for discussion, the criteria for no-go zones developed below (see section on ‘no-go’
zones) should be considered.
• Invite and provide for meaningful participation by representative Indigenous and Tribal organizations
to help set priorities on planning around extractives-related projects in Colombia (whether CSR or
144
Holding Extractive Companies to Account in Colombia other). This is in keeping with their constitutional right to be meaningfully consulted with a view to
obtaining consent, on any programs, plans, administrative acts or projects affecting their livelihoods
and territories. This should take place at the earliest possible stages of planning, with room for
concerns to be integrated and plans adapted. Aside from upholding ethnic rights, providing for
meaningful participation in these fora would also enable the building of ethical relationships that may
strengthen the potential outcomes of plans and interventions. While Indigenous and Afro-Descendent
groups should receive specific focus (given their nationally- and internationally- recognized rights),
planning exercises should include a diversity of views, including those from unions, academics, NGOs
and other experts, in line with international best practice on multi-partite dialogue in extractives.
• Be willing to deploy Embassy representatives and/or other government representatives as
appropriate to the field – when possible, alongside representatives from Defensoría – to follow-up
on grievances against the
home country’s companies,
including alleged human
“AngloGold Ashanti does not carry out exploration
rights violations.
processes in places where there is armed conflict.
In these cases the company asks for a report
• Invest international
from the authorities to confirm the presence
cooperation funding in
of armed actors: A decision that has been made
strengthening civil society
might change if we are informed
in Colombia, and also civil
about armed conflict in the area.”
society in home countries
Julio Cesar Uribe, Manager for Greenfields Communities,
of extractive industries. This
AngloGold Ashanti (in NSI-RICL-PCN 2011)
could lead to harnessing
consumer demand, which has
a direct impact on companies’
bottom line and could lead to better practice. Support to civil society should not be tied to any
specific extractive project under consideration, but could include actions and capacity-building to
prepare for such potential projects in the future.
• Consider investing in the strengthening of human rights protection mechanisms in Colombia, such as
Defensoria, Procuraduria, the Ministry of the Interior’s Dirección de Consulta Previa, Ministry of the
Environment in strengthening consideration of social and human rights considerations in assessment
processes, and assuring the ongoing presence of the Office of the UN High Commissioner on Human
Rights in Colombia.
• Consider other mechanisms for assuring human rights compliance, such as encouraging certification
schemes that have independent third-party verification, established with appropriate input from
affected communities.
• Foster increased capacity for independent impact monitoring and evaluation of mining operations
in Colombia, through support for collaboration between Canadian (and other home country) and
Colombian scientific and academic institutions. (E.g. Colciencias and Colombian universities)
• Put in place human rights specialists within embassies to work across sections and ensure policy
coherence.
Strengthening Indigenous and Afro-Descendent Decision-Making
Indigenous and Afro-Descendent communities should, among other things:
• Know their rights and get organized. The NSI-RICL-PCN project has developed a manual on prior
consultation and free, prior and informed consent in Colombia that reviews the fundamental rights
of ethnic peoples and how to prepare for consultation and consent processes. It has also developed
145
Photo: Courtesy of RICL
Students at Bajo Sevilla School, RICL, participate in environmental assessment and planning.
a manual on conflict transformation with regards to extractives, and participatory action research.
These are important resources for communities affected by extractive projects, and provide critical
information to strengthen capacities in defending ethnic territories. OACNUDH has also produced
manuals of interest for Indigenous and Afro-descendent Peoples on prior consultation.
• Work towards delimitation and recognition of their collective territories, and ensure these are
registered with IGAC’s database and show up on their maps.
• Obtain from INGEOMINAS and/or the new permitting authority (ANLA) when it is fully functional,
information about concessions issued in their area, and update this information constantly.
• Build alliances with national and international organizations and experts that can help support
communities in getting better informed, better organized, and making self-determined choices about
their future.
• Monitor the companies that have interests in the area, previous projects they have undertaken,
obtain copies of their policies and commitments with regards to human rights, and identify any joint
venture partners and industry associations they may be part of. Gather information on the type
of impacts that may be generated should the proposed mining be developed. Maintain a central
database on these accessible to community members and decision-makers. This can be done with
the support of national and international allies – universities, NGOs, others.
• Strengthen decision-making structures within the communities in preparation for the divide and
conquer tactics that often take place when extractive projects arrive, and ensure that there is
146
Holding Extractive Companies to Account in Colombia unity in determining how consultation and consent processes should take place, and who are the
legitimate representatives to interact with outsiders. Consider formalizing these in community level
protocols and regulations.
• Undertake land-use planning processes that consider whether ancestral territories are open to
potential mining by outsiders, and if so, which parts are and which parts are not.
• If there is active armed conflict in their area, consider declaring their territory a no-go zone for any
extractive projects until conditions are in place to consider extractive projects by outsiders.
• If there is ancestral mining or artisanal mining in their area, consider undertaking their own impact
assessment and management planning process (such as was undertaken in the Resguardo Indígena
Cañamomo Lomaprieta); and consider also potentially linking to initiatives such as the Alliance for
Responsible Mining, and some of its local partners (E.g. Oro Verde Program).
• Link with other communities affected by extractives to exchange information, and consider getting
involved also in national level processes related to ethnic rights and extractives.
• Strengthen capacities in fundraising and identifying donors for projects to help support decisionmaking.
• Maintain and foster unity.
6.3 Rebalancing the Mix: Getting Smarter, Faster
Ruggie points to a ‘smart mix’ of voluntary and mandatory instruments as the answer to issues at the
crossroads of business and human rights.
This research has shown that since the 1990s, there has been an over-reliance on voluntary CSR instruments
to hold to account companies working in Colombia. Fine-grained case studies and analysis of what takes
place in the field reveals that most juniors approaching communities do not have explicit CSR or ethnic
rights policies. And when they do, company staff display ignorance of these, or they are not applied. In the
worst cases, major companies that have subscribed to international CSR instruments – in addition to their
own policies and those of industry associations they belong to– report selectively on key indicators, thereby
masking human rights violations that have taken place. In short, this approach simply has not translated into
human rights protection on the ground.
There is no doubt that corporate practice, and CSR frameworks and accountability mechanisms should be
strengthened, with the goal of ensuring companies fulfill their obligation to respect human rights. If they are
to create any value added, then they should consider going beyond the minimum requirements outlined in
Colombian law.393
Yet, it is high time to rebalance the playing field, to rebalance the mix, and to put into it the key ingredient
that has been missing for far too long – government accountability. Rather than relying so heavily on
voluntary CSR instruments, governments need to address and take action on how to fulfill their own
responsibilities for protecting human rights, particularly regarding violations by third parties operating in
conflict zones such as Colombia.
393
Ultimately, if they are serious about implementing high CSR standards, companies should ensure that they do not implement lower standards
in Colombia than those they implement back home— there should be no double standards.
147
Implementing the recommendations made in this paper would go a long way towards closing the
‘governance gaps’ that have provided the permissive environment for companies to engage in wrongful acts,
while enjoying effective impunity.
Indeed, the only way to implement the right to free, prior and informed consent in Colombia is to first
ensure an environment in which social leaders and communities can freely demand their rights, without
putting their lives at risk. In order to uphold human rights in Colombia then, companies, governments and
other investors need to very carefully consider the criteria for establishing no-go zones, outlined above. To
not do so is to ignore the current realities in Colombia, to continue operating with impunity, and in this way
almost certainly to exacerbate armed conflict.
John Morrison has said: “Actions of business can contribute to peace, but they can also hinder the peace
process and exacerbate armed conflict. A constructive engagement of business in addressing lands issues
and the dissemination of sound human rights due diligence is a necessary component in the transition.”394
This paper concurs that the extractive sector can use its influence to help counteract systemic hindrances
to implementation of human rights in Colombia. It can demand: that systems, such as the issuing of
concessions, be realigned so they uphold constitutionally-guaranteed rights, in this way also providing
more certainty for companies;395that the weaknesses in the Ministry of the Interior and other agencies
be addressed; and that home governments work towards stronger protections, among other issues. Yet
at the end of the day, extractive companies are motivated by the economic bottom line. Still, respecting
human rights in Colombia, particularly ethnic rights, is certainly 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.
394
395
148
Morrison (2011).
Indeed, as the new permitting agency ANLA becomes fully functional, now is an opportune time to address these issues.
Holding Extractive Companies to Account in Colombia Appendix: Interview Guide
Interview Guide – Implementation and Effectiveness of CSR Instruments in Colombia
Draft guide adapted for each actor interviewed
Review the objectives of the research and the consent form; participant signs the consent form
General
1. What are your company’s CSR policies and CSR mechanisms?
2. How do these articulate the responsibility of respecting human rights?
3. How do they articulate the responsibility of respecting the fundamental rights of ethnic peoples?
4. Do you have any grievance mechanisms in place for complaints regarding alleged human rights violations or
environmental impacts?
5. Do you have specific guidelines in place or policies regarding Indigenous and Afro-Descendent communities,
particularly with regards to consultation and free, prior and informed consent?
CSR Instruments
Perspectives on the Voluntary Principles for Security and Human Rights:
•
What are the strengths of the VPs in terms of ensuring companies respect human rights?
•
What are their weaknesses?
•
From your experience and knowledge of the Colombian context – and specifically given the situation of
Indigenous Peoples and Afro-Descendent communities – Are the VPs effective?
Other instruments: Strengths, weaknesses, and effectiveness in the Colombian context
•
Perspectives on the UN Global Compact
•
Perspectives on the IFC Performance Standards and the CAO
•
Perspectives on the GRI Perspectives on mechanisms for evaluating social, environmental and human rights
impacts
•
In general, do you think the current CSR framework and voluntary self-reporting instruments can protect
human rights in the Colombian context?
Colombian framework for protecting human rights in the extractive sector
What is your analysis of the Colombian framework for protecting human rights in the extractive sector?
•
Strengths, weaknesses?
•
Perspectives on how it could be strengthened?
Other
•
Is there anything else that you would like to comment on, or that you think we should have asked?
149
Appendix: Interview Consent Form
(October 2010)
Holding Extractive Companies to Account in Colombia: An evaluation of CSR instruments
through the lens of Indigenous and Afro-descendent Rights
Researchers:
Viviane Weitzner, Senior Researcher, The North-South Institute (Ottawa)
Gladys Jimeno, Project Coordinator and Consultant (Colombia)
Purpose of the Research:
This research is one activity of a 26-month collaborative project between the Resguardo Indígena Cañamomo Lomaprieta
(Caldas, Colombia), Proceso de Comunidades Negras-ASOM (Buenos Aires/Suárez, Cauca, Colombia) and The North-South
Institute (Ottawa, Canada).
The objective is to assess CSR initiatives encouraged to guide extractive companies in Colombia to determine to what extent
they respect human rights — and ethnic rights in particular — in theory and in practice, with a view to recommending ways to
strengthen the current approach and framework.
Specific Objectives are:
•
To undertake desk research to synthesize arguments regarding the effectiveness of key CSR instruments proposed to
hold to account extractive companies operating in conflict zones, particularly Colombia, with a focus on Indigenous
and Afro-Descendent rights and perspectives. These instruments include the Voluntary Principles on Security and
Human Rights, the International Financial Corporations’ Performance Standards, the UN Global Compact, the
Global Reporting Initiative, and the OECD Guidelines for Multinational enterprises. We will also briefly compare the
approaches of several home states (e.g., Canada, Norway, USA, EU) in holding their companies to account, with a
focus on Colombia.
•
To undertake primary research to:
´
Highlight the perspectives of a variety of interested parties regarding the effectiveness of these instruments —
with a focus on ethnic rights — and gather insights into how the current framework might be strengthened
´
Understand how these instruments are being implemented in practice in Colombia, primarily through examining
the activities of companies with interests in the two case study areas in which we are working (Norte del Cauca
and Caldas), and interviews at the local level.
Description of Interview Process and Confidentiality
The interviews will last approximately one hour, and are based on an interview guide with open-ended questions. All
information from the interviews is confidential and anonymous. You may withdraw from the interview at any time, and can
choose to not answer questions.
Consent Statement (for Participant)
I ________________(print name), consent to participate in this study. I understand that the information I give will be
confidential and anonymous, and that it will be used to inform an analysis that will be published and distributed in Colombia
and internationally, and posted on the web.
Signature:_______________________
Date______________________
I agree ______to have my name included in a list of interviewees to be attached to the report
I DO NOT agree ______to have my name included in a list of interviewees to be attached to the report
150
Holding Extractive Companies to Account in Colombia References
Acosta, Luis Jaime and Jack Kimball. 2012. Exclusive: Colombia revamps war plan against guerrillas. Reuters, February 17. http://
www.reuters.com/article/2012/02/17/us-colombia-conflict-idUSTRE81G0WZ20120217
Acosta, Luis Jaime and Julia Symmes Cobb. 2012. Eleven Colombian oil workers kidnapped by armed group. Reuters, February 29.
http://www.reuters.com/article/2012/02/29/colombia-oil-idUSL2E8DT8HV20120229
Advisory Group. 2007. National Roundtables on CSR and the Canadian Extractive Industry in Developing Countries: Advisory Group
Report. March 29. www.mining.ca/www/media_lib/MAC_Documents/Publications/CSRENG.pdf
Alien Tort Claims Act of United States of America (28 U.S.C. §1350). 1789.
Alliance for Responsible Mining. 2012. An opportunity for artisanal and small scale mining. April 27.
Alston, Philip. 2010. Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston. Addendum
Mission to Colombia. March 31. A/HRC/14/24/Add.2.P.26http://www.colectivodeabogados.org/IMG/pdf/Special_Rapporteur_
report_on_Colombia.pdf
Amnesty International. www.amnesty.org/en/business-and-human-rights
__________. 2009. Statement on the Right to Effective Remedy. Stockholm, November.
Amnesty International Canada, Friends of the Earth Canada, Halifax Initiative, KAIROS: Canadian Ecumenical Justice Initiatives;
Mennonite Central Committee Canada, MiningWatch Canada, Publish What You Pay – Canada, Steelworkers Humanity Fund, United
Church of Canada. 2010. “Submission to the Extractive Sector CSR Counsellor’s Public Consultation Process.” August.
Amnesty International UK. 2009. Memorandum submitted by Amnesty International UK. UK Parliament’s Joint Committee on Human
Rights. http://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/5/5we43.htm
Anaya, James. 2010. The situation of indigenous peoples in Colombia: follow-up to the recommendations made by the previous
Special Rapporteur. A/HRC/15/37/Add.3. 25 May. http://unsr.jamesanaya.org/docs/countries/2010_report_colombia_en.pdf
__________. 2012. Statement by Professor James Anaya Special Rapporteur on the Rights of Indigenous Peoples, Eleventh Session of
the United Nations Permanent Forum on Indigenous Issues. 15 May. http://unsr.jamesanaya.org/statements/statement-of-specialrapporteur-to-un-permanent-forum-on-indigenous-issues-2012
AngloGold Ashanti. 2008. Letter from Sandra Celinz Enciso to Jesus Alberto Carmona, Mayor of Riosucio. February 13.
__________. 2008. Letter from Sandra Celinz Enciso to Jorge Eliecer Moreno Cardona, Mayor of Supía. February 14.
__________. 2008. Country Report Colombia 07. http://www.anglogold.com/NR/rdonlyres/BAE1129B-80F8-45F1-B212B4EAFA16A0E8/0/Colombia.pdf
__________. 2009. Colombia Country Report 2008. http://www.anglogold.co.za/NR/rdonlyres/1103A1F1-D744-4220-B7266E48242F7039/0/Colombia2008.pdf
__________. 2009. Report to Society 2008. http://www.anglogold.co.za/subwebs/InformationForInvestors/Reports08/
ReportToSociety08/f/AGA_RTS2008.pdf
__________. 2011. Supplementary Information 2010. http://www.anglogoldashanti.com/subwebs/informationforinvestors/
reports10/Sustainability/files/AGA-supplementary-information-2010.pdf
__________. n/d. Manual de Gestión Social. AngloGold Ashanti – Colombia.
__________. 2012. Letter from Mark Cutifani and Rafael Herz to Abiola Okpechi, Business and Human Rights Resource Centre. April 10.
Anonymous. 2011. Representative of the Canadian Chamber of Commerce, EDC roundtable, June.
__________. 2012. Personal Communication, Member of Proceso de Comunidades Negras, June 15.
__________. 2010-2011. Interviews and informal discussions with diverse actors at the national level.
Amis, Lucy, Adrian Hodges, and Neil Jeffery. 2006. Development, Peace and Human Rights in Colombia: A Business Agenda. The
International Business Leaders Forum in association with Fundación Ideas para la Paz and the Office of the UN Global Compact.
151
Anonymous. 2011. Representative of the Canada-Colombia Chamber of Commerce, EDC roundtable, June.
Antioquia Gold. www.antioquiagoldcorp.com
Arnegaard, Turid. 2009. Personal communication.
Arocha, Jaime. 2012. “Consulta previa y pedagogía,” El Espectador.com, 01-23-2012.
Asociación de Consejos Comunitarios del Municipio de Timbiqui. 2010. Carta de la Junta Directiva Asociación de Consejos
Comunitarios de Timbiquial Señor Jairo Ocoro, Alcalde Encargado Municipio Timbiqui. Mayo.
Australian National Contact Point.2009. Statement from the Australian National Contact Point, BHP-Billiton-Cerrejon Coal Specific
Instance. June. http://www.oecd.org/dataoecd/4/35/43175359.pdf
Bank Information Center. 2010. Report from the Colombia IFC Consultation June 3, 2010. www.bicusa.org/en/Article.11911.aspx
Barrett, Brandon. 2012. Canada fails to release human rights report on Colombia following FTA. May 17. Colombia Reports. http://
colombiareports.com/colombia-news/news/24113-canada-fails-to-release-human-rights-report-on-colombia-following-fta.html
Batero Gold. 2012. Batero receives confirmation from INGEOMINAS that 100% of the property is now covered by concession
agreements allowing long-term future exploitation of project. January.http://www.baterogold.com/files/news-files/Batero_Gold_
News_Release_January_16_2012_Concession_Agreements_V.1.pdf
Bill C-323, The International Protection & Promotion of Human Rights Act. Proposed by Peter Julian, New Democratic Party.
Bill C-571, An Act respecting corporate practices relating to the purchase of minerals from the Great Lakes Region of Africa. Proposed
by Paul Dewar, New Democratic Party. First reading in Parliament, September 30, 2010.
The Body Shop. 2010. Statement about Las Pavas. September. http://www.thebodyshop.com
Brennan, Brid. 2011. Urgent need for binding obligations on Transnational Corporations raised at the UN. June. http://www.tni.org/
obligations-tncs-un.
Business Leaders Initiative on Human Rights (BLIHR), the UN Global Compact and the Office of the UN High Commissioner for Human
Rights (OHCHR). n/d. Guide for integrating human rights into business management. http://www.integrating-humanrights.org
Cabildo Indígena Nasa KitekKiwe, Myriam Jimeno, Jose Leandro Guetio, Angela Castillo, Daniel Varela. 2011. KitekKiwe:
Reasentamiento del Naya, Nuestra Memoria. Cabildo Indígena Nasa KitekKiwe y Universidad Nacional de Colombia, Facultad de
Ciencias Humanas.
Canadian Centre for the Study of Resource Conflict. 2009. Corporate Social Responsibility: Movements and Footprints of Canadian
Mining and Exploration Firms in the Developing World. October. www.resourceconflict.org.
Colchester, Marcus. 2011. ‘Ethnic Rights and Mining in Cauca and Caldas’: Preliminary observations and recommendations, Report of
Field Mission to Colombia, July 24-August 6, 2011. Unpublished manuscript prepared for The NSI, PCN and RICL.
Colombia Goldfields. 2008. Letter from Liseth Melchor Gañan to Piedad Tabarquino, Governor of the Resguardo Indigena Escopetera
y Pirza. April 14.
Comisión Internacional de Juristas. 2010. Acceso a la Justicia: Casos de Abusos de Derechos Humanos por Parte de Empresas –
Colombia. Ginebra, Suiza.
Committee for the Elimination of Racial Discrimination. 2007. Concluding observations of the Committee on the Elimination of Racial
Discrimination: CANADA. CERD/C/CAN/CO/18. May 25. http://www2.ohchr.org/english/bodies/cerd/docs/CERD.C.CAN.CO.18.doc
__________. 2012. Concluding observations of the Committee on the Elimination of Racial Discrimination: CANADA. CERD/C/CAN/
CO/19-20, 9 March. http://www2.ohchr.org/english/bodies/cerd/docs/CERD.C.CAN.CO.19-20.pdf
Committee of Experts on the Application of Conventions and Recommendations. 2010. Report of the Committee of Experts on the
Application of Conventions and Recommendations, Report III: General Report and observations concerning particular countries, 99th
Session, 2010. International Labour Office, Geneva.
Contraloría General de la Nación. 2011. Informe del estado de los Recursos Naturales y del Ambiente 2010-2011. Bogotá, Colombia.
Clavero, Bartolomé. 2010. Pueblos indígenas y responsabilidad corporativa: A propósito del Informe de Anaya. 23 de Septiembre.
152
Holding Extractive Companies to Account in Colombia Cobo, José Martínez. 1986/7. Report of the Special Rapporteur, Mr. Jose Martinez Cobo, on the problem of discrimination against
indigenous populations. E/CN.4/Sub.2/1986/7Add.4.
Cook, Paul. 2011. Extracting the truth about Colombia’s industry: Firms involved in Colombia’s mines must be more transparent
about the payments they make and the way they are governed. October 26. http://www.guardian.co.uk/global-development/
poverty-matters/2011/oct/26/extracting-truth-colombia-mining-industry
The Corporate Responsibility (CORE) Coalition & The London School of Economics (LSE). 2009. The reality of rights -- Barriers to
accessing remedies when business operates beyond borders. http://corporate-responsibility.org/reality-of-rights/
Coumans, Catherine. 2010. Alternative Accountability Mechanisms and Mining: The Problems of Effective Impunity, Human Rights,
and Agency. Canadian Journal of Development Studies 30, nos. 1–2: 27–48.
Coumans, Catherine. 2011. Personal communication.
Consejo Regional Indígena de Caldas. 2008. Letter from Lina Maria Forero to Sandra Celinz Encizo, AngloGold Ashanti. February 1st.
Crane, Andrew, Abagail McWilliams, Dirk Matten, Jeremy Moon and Donald S. Siegel. 2008. The Oxford handbook of Corporate Social
Responsibility. Oxford: Oxford University Press.
DANE (National Department of Statistics). 2007. Colombia, Una Nación Multicultural: su diversidad étnica. Bogotá.
Danish Institute for Human Rights Human Rights Compliance Assessment.
http://www.humanrightsimpact.org/themes/business-centre/tools/
Defensoría del Pueblo. 2010. Defensoría del Pueblo Delegada para la Evaluación de Riesgos de la Población civil como consecuencia
del conflicto armado.Sistema de Alertas Tempranas SAT julio de 2010.
Dodd-Frank Wall Street Reform and Consumer Protection Act. 2010. docs.house.gov/rules/finserv/111_hr4173_finsrvcr.pdf. July 15.
Drohan, Madelaine. 2010. Regulating Canadian mining companies abroad: the 10-year search for a solution. Policy Brief no. 7.
Ottawa: University of Ottawa, Centre for International Policy Studies. January.
__________. 2007. The high risks of operating abroad. Globe and Mail. November 23.
Dunn, Wayne. 1999, Beyond Beads ’n Trinkets: A Systematic Approach to Community Relations for the Next Millenium (draft), Wayne
Dunn and Associates Ltd.
EarthRight Internationals. 2011. U.S. appeals court rules that corporations are not immune from accountability for human rights
violations. Marco Simons blog, August 7. http://www.earthrights.org/blog/us-appeals-court-rules-corporations-are-not-immuneaccountability-human-rights-violations.
Egger, Michel. 2010. OECD-Guidelines: a chance for more bite. http://www.alliancesud.ch/en/policy/trade/oecd-guidelines
EPSA. 2011. Informe de Sostenibilidad 2010. http://www.epsa.com.co/LinkClick.aspx?fileticket=JahPj5W%2FHJ8%3D&tabid=287&m
id=1501
El Espectador. 2010. Daabon se refiere a cancelacion de contrato con The Body Shop. 4 Octubre, Redacción Negocios. http://www.
elespectador.com
El Tiempo. 2011. Es un misterio el crimen del cura de Marmato. MANIZALES , 4 de Septiembre. http://www.eltiempo.com/justicia/
ARTICULO-WEB-NEW_NOTA_INTERIOR-10293133.html
Embassy of Canada. 2011. Letter from J.P. Hamel, Chargé d’affaires, Canadian Embassy in Colombia to Jennifer Moore, MiningWatch
Canada, December 20.
Equator Principles. http://www.equator principles.com/index.php/about-the-equator-principles
Evans, Marketa. 2012. Lessons learned from CSR Counsellor. Embassy. January 18. http://www.embassymag.ca/column/author/925
Export Development Canada. http://www.edc.ca/EN/Country-Info/Pages/Colombia.aspx
Extractive Industries Transparency initiative (EITI). www.eiti.org
Forest Peoples Programme and Tebtebba Foundation. 2006. Indigenous Peoples’ Rights, Extractive Industries and Transnational and
Other Business Enterprises. A submission to the Special Representative of the Secretary-General on human rights and transnational
corporations and other business enterprises. December 29.
153
Fundación Gaia Amazonas.2009. Increasing tropical rainforest protection for over 5 million hectares of the Colombian Amazon. By
Natalia Hernández and Martín von Hildebrand. http://www.rainforestconcern.org/files/Review%20Columbia%202010.pdf
Garcia , Monica and Jack Kimball, 2011. Colombia’s Congress passes key royalties reform. Reuters. June.
http://af.reuters.com/article/energyOilNews/idAFN0925420620110609
Gartner, Álvaro. 2005. Los Místeres de la Minas – Crónica de la Colonia Europea mas grande de Colombia en el Siglo XIX, surgida
alrededor de las minas de Marmato, Supia y Riosucio. Editorial Universidad de Caldas, Colombia.
Gee, Marcus. 2011. Overseas, a corporate heart of darkness; Canada is far behind the rest of the world in regulating the conduct of
companies doing business with dictatorships and corrupt regimes. Globe and Mail. March 23, A 18.
Glennie, Jonathan. 2012. Colombia’s resistance to corporate mining excess has lessons for the world.
http://www.guardian.co.uk/global-development/poverty-matters/2012/may/14/colombia-resistance-corporate-mining-excess. May 11.
Gonzales Posso, Camilo. 2011. Informe sobre narcoparamilitares en 2010. Instituto de Estudios para el Desarrollo y la Paz – INDEPAZ.
__________. 2012. Industria Extractiva y Conflicto Armado. Presentación resumido en, y adjuntado a, “Documento Resumen – Taller
Sobre Minería y Proyectos Extractivos: Sus Impactos en Territorios Étnicos, agosto 2 a 4 de 2011, Bogotá”. INS, PCN, RICL, 2012.
Ottawa, ON. http://www.nsi-ins.ca/images/documents/esia_colombia_workshop_report_spanish_web.pdf
lobal Reporting Initiative. https://www.globalreporting.org
G
Global Witness. 2007. Oil and mining companies in war zones should face tougher human rights standards. October 10. http://www.
globalwitness.org/sites/default/files/import/oil_and_mining_companies_in_war_zones_should_face_tougher_human_rights_
standards.pdf
__________. 2007. Oil and mining in violent places: Why voluntary codes for companies don’t guarantee human rights. October.
Goodland, R. (ed). 2009. Suriname’s Bakhuis Bauxite Mine: An Independent Review of SRKs Impact Assessment, Association of
Indigenous Village leaders in Suriname (VIDS), Paramaribo, Suriname, http://www.nsi-ins.ca/english/pdf/Final__updated__Suriname.pdf
___________. 2012a. Colombia: Contraloría General de la República Forum: “Best Practice Mining”. Sponsored by Ikv Pax Christi
(revised May 2012).
__________. 2012b. Responsible Mining: The Key to Profitable Resource Development – Defining Best Practice Mining. The World
Bank Group and Bank information Center Seminar: Extractive Industry Review, “EIR +10: Looking Ahead”. Monday, 23 April. (Revised
May 16).
Gordon, Julie. 2012. PDAC-Colombia to award mining concessions gradually. Monday, March 5. Reuters.
Government of Canada. 2009. Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian
International Extractive Sector. March. www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/CSRMarch2009.pdf
Government of Norway.2011. http://www.regjeringen.no/nb/dep/fin/tema/statens_pensjonsfond/ansvarlige-investeringer/
selskaper-som-er-utelukket-fra-fondets-i.html
Gran Colombia Gold. 2011. September 2011 ‘fact sheet’, www.grancolombia.com
__________. 2012. “Gran Colombia progressing with Marmato Resettlement”, January 9, 2012 press release, www.
grancolombiagold,com
Grupo de Intelectuales en Defensa del Pacifico. 2012. Carta sobre los derechos fundamentales a la Consulta y al Consentimiento
Libres, previos e Informados de las Comunidades Negras, Afrocolombianas, Palenqueras y Raizales en Colombia. 17 de enero.
Guerrero Garcia, Horacio. 2010. Perspectivas de la Defensoría del Pueblo Sobre la Consulta y el Consentimiento Previos, Libres e
Informados y Su Aplicación en Colombia, Bogotá, 14 de julio 2010. Presentación resumido en, y adjuntado a, “Documento Resumen –
Taller/Encuentro Sobre la Consulta y el Consentimiento Previos, Libres e Informados para Pueblos Indígenas y Comunidades Negras:
Estándares Internacionales y colombianos en el sector extractivo, Julio 13 al 15 de 2010, Bogotá”. INS, PCN, RICL, 2010. Ottawa, ON.
www.nsi-ins.ca/images/documents/web_fpic_colombia_workshop_report_spanish_nov_23_2011.pdf
Guias Colombia. www.derechoshumanos.gov.co
Herbertson, Kirk, Kim Thomson and Robert Goodland. 2010. A Roadmap for Integrating Human Rights into the World Bank Group. World
Resources Institute: Washington DC. http://www.wri.org/publication/roadmap-for-integrating-human-rights-into-world-bank-group
154
Holding Extractive Companies to Account in Colombia Hill, Christina. 2010. Community-company grievance resolution: A guide for the Australian mining industry. Oxfam Australia.
Human Rights Watch. 2011. UN Human Rights Council: Weak Stance on Business Standards. Press Release, 16 June. www.hrw.org/
en/news/2011/06/16/un-human-rights-council-weak-stance-business-standards
IKV Pax Christi. 2009. Report on the AGA mining project in Cajamarca. May 12.
Indian Law Resource Center. 2011. Second Set of Comments and recommendations on the IFC’s Proposed Policy on Social and
Environmental Sustainability and Performance Standards. February. www.indianlaw.org
Ingeominas. 2011. Letter from Director General of Ingeominas, Oscar Eladio Paredes Zapata to Hernando Hernández. 29 September.
Instituto Geografico Augustin Codazzi (IGAC). 2011. Letter from Heynar Jaramillo Aragon, Territorial Director, IGAC to Carlos Federico
Herrera Duque. 14 December. Oficio 6005.
Inter-American Court of Human Rights (IACHR).2007. Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and
Costs. Judgment of 28 November 2007. Series C No. 172.
International Alert. 2005. Conflict-Sensitive Business Practice: Guidance for Extractive Industries http://www.international-alert.org/
resources/publications/conflict-sensitive-business-practice-guidance-extractive-industries
International Council on Mining &Metals (ICMM). 2003. ICMM Principles and Sustainable Development Framework.
__________. 2008. Position Statement: Mining and Indigenous Peoples Issues. May.
__________. 2011. Voluntary mining code is best way to build trust, by Anthony Hodge, President of ICMM. March 11. http://www.
ft.com/intl/cms/s/0/78f4f65a-4b73-11e0-89d8-00144feab49a.html
__________. 2012. Integrating human rights due diligence into corporate risk management processes. March.
http://www.icmm.com/page/75929/integrating-human-rights-due-diligence-into-corporate-risk-management-processes
International Finance Corporation. 2012. IFC Sustainability Framework – 2012 edition.
http://www1.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_Site/ifc+sustainability/
sustainability+framework/Sustainability+Framework+-+2012/
__________. n/d. IFC at a glance. Available at: www.ifc.org/ifcext/careers.nsf/Content/IfcataGlance
International Labour Organisation. 1989. Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries.
Inter-American Commission on Human Rights. 2009. Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural
Resources, Norms and Jurisprudence of the Inter-American Human Rights System. Organization of American States, OEA/Ser.L/V/II,
Doc.56/09, 30 December 2009 (Original: Spanish), English 2010.
Inter-American Court of Human Rights (IACHR ). 2007. Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and
Costs. Judgment of 28 November.
Instituto Norte-Sur, Proceso de Comunidades Negras, Resguardo Indígena Cañamomo Lomaprieta. 2010. Documento Resumen –
Taller/Encuentro Sobre la Consulta y el Consentimiento Previos, Libres e Informados para Pueblos Indígenas y Comunidades Negras:
Estándares Internacionales y colombianos en el sector extractivo, Julio 13 al 15 de 2010, Bogotá.
www.nsi-ins.ca/images/documents/web_fpic_colombia_workshop_report_spanish_nov_23_2011.pdf
__________. 2012. Documento Resumen – Taller Sobre Minería y proyectos Extractivos: Sus Impactos en Territorios Étnicos, agosto 2
a 4 de 2011, Bogotá.
http://www.nsi-ins.ca/images/documents/esia_colombia_workshop_report_spanish_web.pdf
International Service for Human Rights (ISHR). 2012. Human Rights Defenders in Colombia
How is the Government protecting their rights? Bogotá, Colombia - December2011 . Geneva, CH.
International Verification Mission on the Situation of the Defense of Human Rights in Colombia, 2011, Preliminary Report, December 2.
InterPares. 2009. Land and Conflict — Resource Extraction, Human Rights, and Corporate Social
Responsibility: Canadian Companies in Colombia. Paper prepared by MingWatch Canada and Censat-Agua Viva. http://www.
interpares.ca/en/publications/pdf/Land_and_Conflict.pdf
Intierra Resource Intelligence. 2011. List of TSX-listed mining companies working in Colombia as of November 28.
155
Ismi, Asad. 2012. Profiting from Repression: Canadian Investment in and trade with Colombia. Canadian Union of Postal Workers.
April.
Jamasmie, Cecilia. 2012. “Colombia to attract $2.1 billion in gold-related investments by 2015”. February 15. http://www.mining.
com/2012/02/15/colombia-to-attract-us-2100-million-in-gold-related-investments-by-2015/
Jimeno, G. 2002. Posibilidades y perspectivas de los Pueblos Indígenas en relación con las consultas y concertaciones en el sector
minero en América Latina y el Caribe: Exploración temática. The North-South Institute, Ottawa ON, Canada. August.
Jimeno, G. 2012. Documento Sintesis Colombia — De la Consulta al Consentimiento. NSI, PCN, RICL.
Jimeno, Gladys, Federico Herrera and Plutarco Sandoval. 2012. La Consulta y el Consentimiento Libres, Previos e Informados – Frente
a Proyectos de Extracción y Explotación de Recursos Naturales en Territorios Étnicos desde la Mirada de Comunidades Negras e
Indígenas – Colombia. RICL y PCN: Bogotá.
Joint Civil Society Statement to the 17th Session of the Human Rights Council: Amnesty International, ESCR-Net, Human Rights
Watch, International Commission of Jurists, FIDH, RAID. 2011. 30 May. www.hrw.org/news/2011/05/30/joint-civil-society-statement17thsession-human-rights-council
Joint Civil Society Statement on IFC’s Draft Sustainability Framework. 2011. IFC must demonstrate its commitment to respect human
rights. March. http://www.brettonwoodsproject.org/art-567851
Julian, Peter. 2011. Introducing a motion in Parliament to accept the Bill for consideration, October 5. http://goldcorpoutnews.
wordpress.com/2011/10/05/bill-c-323-the-international-protection-promotion-of-human-rights-act
Lawyers Without Borders, Canada. 2012. Press Release. Support for claims that sections of Colombia’s Victims Act are
unconstitutional - LWBC hopes that the Constitutional Court of Colombia will favorably consider its amicus curiae briefs. May 2.
http://www.asfcanada.ca/documents/file/news-relase_amicus-curiae-briefs-law-of-victims_v6_2012-05-01-_2_.pdf
Leblanc, Daniel. 2012. CIDA funds seen to be subsidizing mining firms. Globe and Mail. January 29. http://www.theglobeandmail.
com/news/politics/cida-funds-seen-to-be-subsidizing-mining-firms/article2319033/
Leisinger, Klaus M. 2006. On Corporate Responsibility for Human Rights. Basel, April. http://www.novartisfoundation.org/platform/
apps/Publication/getfmfile.asp?id=612&el=812&se=9668142&doc=46&dse=5
Leonard, Christin. 2012, Colombian land restitution leaders to receive government protection. Colombia Reports. March 18. http://
colombiareports.com/colombia-news/news/22697-colombian-land-restitution-leaders-to-receive-government-protection.html
Mackenzie, Hugh. 2012. Canada’s CEO Elite 100 – The 0.01%. January. Ottawa, ON: Canadian Centre for Policy Alternatives. www.
growinggap.ca
Manmaker, Stephen. 2011.Multinational mining companies owe Colombia $224M in overdue royalties, taxes. Colombia Reports.
June. http://colombiareports.com/colombia-news/economy/16783-multinational-mining-companies-owe-colombia-224m-inoverdue-royalties-taxes.html
Marketwatch. 2012. Batero receives confirmation from Ingeominas that 100% percent of the property is now covered by concession
agreements allowing long-term future exploitation of the project. Press Release January 16, 2012. http://www.businesspress24.com/
pressrelease1073011.html
Marmorat, Marion. 2009. Non-Judicial Remedies in Norway for Corporate Social responsibility Abroad – A Discussion Paper. Oslo:
Fafo.
Martin, Shanta. 2009. “Corporate Accountability”. Powerpoint presentation given at a conference organized by the Canadian Network
on Corporate Accountability and the Mining Association of Canada. Ottawa.
Martinez, Helda. 2009. Women Lead opposition to Gold Mine. August 3. http://www.ipsnews.net/news.asp?idnews=47942
Medoro Resources. n/d. Medoro Resources Corporate Overview.
__________. n/d. Medoro en Marmato, el camino hacia el desarrollo.
Metals Economics Group. Corporate Exploration Strategies for 2010.
MiningWatch Canada. 2011. Comments on the draft UN Guiding Principles on Business and Human Rights.
http://www.miningwatch.ca/article/comments-draft-un-guiding-principles-business-and-human-rights
156
Holding Extractive Companies to Account in Colombia Ministry of the interior and Justice. 2010. Letter from Claudia Teresa Caceres Dominguez, Coordinator of the Prior Consultation Group of
the Ministry of the interior and Justice, to Carmen Lucia Gonzalez Serna, CIA Minera de Caldas SA. 28 January. (OFI10-2226-GCP-0201).
Ministry of Environment, Housing and Territorial Development. 2011. Resolution 1015. 23 March.
Morales, Lorenzo. 2011a. Professor of journalism, U. de los Andes, and freelance journalist for the Pulitzer Center. http://
pulitzercenter.org/people/lorenzo-morales
Morales, Lorenzo. 2011b. Colombia: The Mysterious Death of Father José Reinel Restrepo. October 13. http://pulitzercenter.org/
reporting/colombia-gold-mining-death-father-jos%C3%A9-reinel-restrepo
Morrison, John. 2011. Speech delivered 26 October for Guias Colombia meeting in Bogota. http://www.ihrb.org/news/2011/john_
morrison_speech_bogota_colombia.html
Moseres, Rodolfo. 2011. Director of Proexport Canada, at Export Development Canada Colombia roundtable meeting, Calgary. June.
Motoc, Antoanella-Julia and Tebtebba Foundation. 2005. Standard-Setting: Legal Commentary on the concept of free, prior and
informed consent. Expanded working paper submitted by Mrs. Antoanella-Julia Motoc and the Tebtebba Foundation offering
guidelines to govern the practice of implementation of the principle of free, prior and informed consent of indigenous peoples in
relation to development affecting their lands and natural resources. E/CN.4/Sub.2/AC.4/2005/2. 21 June.
Netwerk. 2010. Import ‘bloedkolen’ moet transparent. Documentary, 8 July. http://www.netwerk.tv
Nieuwhof, Adri and GuusHoelen. 2010. Major Dutch pension fund divests from occupation. The Electronic Intifada, 12 November.
Nolan, J., 2007. Corporate Accountability and Triple Bottom Line Reporting: Determining the Material Issues for Disclosure. University
of New South Wales Law Research Paper No. 2007-15; Enhancing Corporate Accountability: Prospects and Challenges Conference.
March 20. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975414
The North-South Institute, Proceso de Comunidades Negras and Resguardo Indígena Cañamomo Lomaprieta. 2010 (revised with
editor’s notes May 2011). 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. http://www.nsi-ins.ca/images/documents/web_fpic_colombia_eng_workshop_report_nov_23_2011.pdf
__________. 2012. Summary Report: Workshop on the impacts of mining and other extractive projects on Ethnic Territories, August
2-4, 2011, Bogotá.
http://www.nsi-ins.ca/images/documents/esia_colombia_workshop_report_english_web.pdf
Observatorio de Discriminación Racial, Comisión Colombiana de Juristas and Autoridad nacional de Gobierno Indígena ONIC. n/d.
Informe alternativo al decimocuarto informe presentado por el Estado colombiano al Comité para la Eliminación de la Discriminación
Racial. http://www2.ohchr.org/english/bodies/cerd/docs/ngos/observatorio_report_Colombia_CERD75.pdf
Organization for Economic Cooperation and Development (OECD). 2011. Colombia adheres to the OECD Declaration on International
Investment. December 8. http://www.oecd.org/document/40/0,3746,en_2649_34889_49258792_1_1_1_1,00.html
OECD Watch. 2011. OECD Watch press release: OECD updates ethical business standards but fails to ensure enforcement. May 25.
http://oecdwatch.org/news-en/oecd-watch-press-release-oecd-updates-ethical-business-standards-but-fails-to-ensure-enforcement
OECD Watch. 2010. 10 Years On. Assessing the contribution of the OECD Guidelines for Multinational Enterprises to responsible
business conduct. http://oecdwatch.org/publications-en/Publication_3550/?searchterm=10%20years%20on
Office of the Extractive Sector CSR Counsellor. 2011. Office of the Extractive Sector
Corporate Social Responsibility (CSR) Counsellor Closing report — Request for review file #2011-01-MEX http://www.international.
gc.ca/csr_counsellor-conseiller_rse/assets/pdfs/Closing_report_MEX.pdf
Ortega, Miguel, Juan Pablo Soler y Silvia Cañellas. 2006. Unión FENOSA en Colombia -- El embalse de Salvajina y el desvio del Rio
Ovejas: una deuda ecológica y social que no deja de crecer. 8 de marzo.
Otramérica. 2012. ‘Cacería’ de indígenas en Colombia´.3 de enero. www.aporrea.org/ddhh/n195841.html
Oxfam. 2009. Oxfam Calls On Mining Company to Respect Human Rights — Aid Agency Welcomes Report, Urges Action. July Press
Release. http://www.oxfamamerica.org/press/pressreleases/oxfam-calls-on-mining-company-to-respect-human-rights
Pachico, Elyssa. 2012. With eye on Illegal mining, Colombia created environmental crime office.
Insight – Organized Crime in the Americas. January 4. http://www.insightcrime.org/insight-latest-news/item/2038-with-eye-onillegal-mining-colombia-creates-environmental-crime-office
157
Pact. 2012. Pact Urges Responsible Companies to Start Buying Conflict-Free Minerals from Eastern DR Congo. March 15. http://www.
pactworld.org/cs/pact_urges_responsible
Payne, Elizabeth. 2012. What is going on at CIDA? Ottawa Citizen. January 19. http://www2.canada.com/ottawacitizen/views/bios/
story.html?id=6835b2b5-fd77-4fd4-9be4-b7399f608e88
__________. 2012. Foreign policy is mining policy. Ottawa Citizen. March 8. http://www.ottawacitizen.com/business/Foreign+policy+
mining+policy/6267948/story.html
Peacebuilding Initiative (PBI) Colombia. 2011. Minería en Colombia: ¿A qué precio? Boletín informativo no 18 . Noviembre. http://
www.pbi-colombia.org/fileadmin/user_files/projects/colombia/files/colomPBIa/111122_boletin_final_web.pdf
Pernia Domico, Kimy. 1999. Testimony to Canada’s Standing Committee on Foreign Affairs and International Trade November 16. Kimy Pernia Domico Dossier, Rights & Democracy. http://www.dd-rd.ca/site/what_we_do/index.
php?id=2073&subsection=where_we_work&subsubsection=country_documents
Piedrahita, Guido Echeverry. 2012. Palabras del Gobernador de caldas, Guido Echeverry Piedrahita, del 18 de enero 2012, ante una
delegación de observadores canadienses y lideresmarmateños.
Poloz, Stephen S. 2011.Remarks at EDC Roundtable - Security and Human Rights in the Extractive Sector in Colombia. Calgary. June
17. http://www.edc.ca/EN/About-Us/News-Room/Speeches/Pages/Colombia-roundtable.aspx
Prospectors and Developers Association of Canada (PDAC). 2009. e3 Plus: A framework for responsible exploration: Principles and
guidance. http://www.pdac.ca/e3plus/index.aspx
PRN Newswire. 2011. Antioquia Gold Inc. Joins OTCQX. September 8. http://www.prnewswire.com/news-releases/antioquia-goldinc-joins-otcqx-129442798.html
Red Puentes. http://www.ceda.org.ec/descargas/biblioteca/Directrices%20de%20la%OCDE%20para%20empresas%20
multinacionales.pdf
Reinel Restrepo, José. 2011. Interview in Marmato pesebre de oro que grita, a documentary produced by Oriéntese Televisión.
http://www.youtube.com/watch?v=FuEboyypwV4
Resguardo Indígena Cañamomo Lomaprieta (RICL). 2008. Public Statement from RICL, April 22.
__________. 2009. Plan de Vida Resguardo Indígena Cañamomo Lomaprieta – Fases de Autorreconocimiento y Avance de
Formulación. Riosucio y Supía, Caldas. Noviembre.
__________. 2011. Urgent Action issued by the traditional authorities of RICL, October.
__________. 2012. AngloGold to invest $400m in Colombia 2013-15. May 21. http://www.miningweekly.com/print-version/
anglogold-to-invest-400m-in-colombia-2013-15-2012-05-21
__________. 2012. Colombia extends ban on mining permit requests to Aug. May 4. http://af.reuters.com/article/metalsNews/
idAFL1E8G4BE420120504
Rubin, Josh. 2012. “Four of the top paid CEOs in Canada are in… Bogota?” The Toronto Star.January 3. http://www.thestar.com/
business/article/1110014--four-of-the-top-paid-ceos-in-canada-are-in-bogota
Rudas Lleras, Guillermo. 2011. Contexto del Sistema Nacional Ambiental y la minería – uso del suelo, recursos hídricos y capacidad
de regulación. Presentación resumido en, y adjuntado a, “Documento Resumen – Taller Sobre Minería y Proyectos Extractivos: Sus
Impactos en Territorios Étnicos, agosto 2 a 4 de 2011, Bogotá”. INS, PCN, RICL, 2012. Ottawa, ON.
http://www.nsi-ins.ca/images/documents/esia_colombia_workshop_report_spanish_web.pdf
Ruggie, John. 2008. Protect, Respect and Remedy: a Framework for Business and Human Rights. Report of the Special Representative
of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie. A/
HRC/8/5. 7 April.
Ruggie, John. 2011. Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and
Remedy” Framework. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational
corporations and other business enterprises, John Ruggie. A/HRC/17/31. March 21.
Saguier, Marcelo. 2010. Natural resources and corporate accountability: shifting dynamics in hemispheric relations? Latin American
Trade Network. Serie BRIEF. Brief #55. September.
158
Holding Extractive Companies to Account in Colombia Salazar, Christian. 2011. Representative of the Office of the UN High Commissioner on Human Rights in Colombia, address at a
conference organized under the auspices of Guias Colombia, Bogota, April 2011. Author’s translation, http://www.hchr.org.co/
publico/pronunciamientos/ponencias/ponencias.php3?cod=135&cat=24
Salim, Emil. 2003. Striking a Better Balance: The World Bank Group and Extractive Industries. The Final report of the Extractive
Industries review. December. http://irispublic.worldbank.org/85257559006C22E9/All+Documents/85257559006C22E985256FF60068
43AB/$File/volume1english.pdf
Secretariat of the Convention on Biological Diversity. 2004.Akwé:Kon Voluntary Guidelines for the Conduct of Cultural, Environmental
and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and
on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities Montreal. (CBD Guidelines Series). http://
www.cbd.int/doc/publications/akwe-brochure-en.pdf
Sherman, John F. and Amy K. Lehr. 2010. Human Rights Due Diligence: Is It Too Risky? Working paper No. 55. Corporate Social
Responsibility Initiative. http://cbe.bentley.edu/sites/cbe/files/images/human-rights-due-diligence.pdf
Simons, Penelope. 2012. International Law’s Invisible hand and the future of corporate accountability for violations of human rights.
Journal of human rights and the environment Vol 3:1, March 2012, 5-43.
Slack, Keith, 2012.Personal communication, April.
Solly, Richard. 2009. Reflection on the December 2008 agreement between Cerrejon Coal and the Tabaco Relocation Committee.
http://www.minesandcommunities.org/article.php?a=8999
Source Watch. Drummond. http://www.sourcewatch.org/index.php?title=Drummond
SRK Consulting. 2011. Scoping Study for the Marmato Project in Colombia. Report Prepared for Medoro Resources Limited. May.
Sweeney, Gareth. 2006. Transnational Corporations – ‘Principled pragmatism’ or mere antagonism? How Professor Ruggie’s censure
of the Norms on TNCs has affected the stakeholder initiative. In Human Rights Features, 18-24 September.
Tauli Corpuz, Victoria. 2010. Presentation from Indigenous Peoples Group to UN CSD on thematic session on mining, 6 May 2010,
New York. http://www.minesandcommunities.org/article.php?a=10138
United Nations Declaration on the Rights of Indigenous Peoples.2007. A/61/L.67.
13 Sept. 2007, http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
UN Global Compact. 2007. Regional GC Centre for Latin America and the Caribbean to be Established in Bogotá. February 12. http://
www.unglobalcompact.org/newsandevents/news_archives/2007_02_12.html
__________. 2010. Monthly bulletin. February.
__________. n.d. Global Compact Self-Assessment Tool. http://www.globalcompactselfassessment.org/aboutthistool/termsofuse
UN Global Compact & PRI. 2010. Guidance on Responsible Business in Conflict-Affected and High -Risk Areas: A Resource for
Companies and Investors. A joint UN Global Compact – PRI publication.
United Nations High Commissioner for Human Rights. 2012. Annual report of the United Nations High Commissioner for Human
Rights. Addendum — Report of the United Nations High Commissioner for Human Rights on the situation of human rights in
Colombia. A/HRC/19/21/Add.3. 31 January.
United Nations Interagency Framework for Preventative Action. 2010. Extractive Industries and Conflict – Guidance Note for
Practitioners. http://www.unep.org/conflictsanddisasters/Portals/6/ECP/GN_Extractive_Consultation.pdf
UN News Service. 2011. Ban commends Colombia for law on reparation for victims’ rights abuse. 11 June. www.un.org/apps/news/
story.asp?NewsID=38696&Cr=&Cr1=Colombia
United Nations Office of the High Commissioner for Human Rights. 2011. Making businesses respect human rights. June 27. http://
www.ohchr.org/EN/NewsEvents/Pages/Makingbusinessesrespecthumanrights.aspx
United Nations Permanent Forum on Indigenous Issues. 2010. United Nations Permanent Forum on indigenous Issues concludes visit
to Colombia, press release, Bogota, Colombia, July 10, 2010.
__________. 2011. Resumen del informe y recomendaciones de la misión a Colombia del Foro Permanente. Situación de los Pueblos
Indígenas en Peligro de Extinción en Colombia, E/C.19/2011/3. February 11.
159
U.S. State Department.2011.Press Statement: Breakthrough in the Voluntary Principles on Security and Human Rights, By Victoria
Nuland. September 20. http://www.state.gov/r/pa/prs/ps/2011/09/172858.htm
Utting, Peter. 2005. Rethinking Business Regulation: From Self-Regulation to Social Control. UNRISD. Technology, Business and Society
Programme Paper Number 15. September. Geneva, Switzerland.
Walsh, Heather. 2012. Colombia government will ‘debate’ mining taxes, Cardenas says. January 13.
Bloomberg news. www.bloomberg.com
War on Want. 2009. Memorandum submitted to the UK’s Parliamentary Human Rights Joint Committee. http://www.publications.
parliament.uk/pa/jt200910/jtselect/jtrights/5/5we30.htm
Webster, Paul. 2012. Colombia is Canada’s new best friend. http://www.theglobeandmail.com/report-on-business/rob-magazine/
colombia-is-canadas-new-best-friend/article4102946. April 26. /.
Weitzner, Viviane. 2002. Through Indigenous Eyes: Toward Appropriate Decision-Making processes regarding Mining on or Near
Ancestral Lands. Ottawa, ON: The North-South Institute.
__________. 2008. Missing Pieces - An Analysis of the Draft “Environmental & Social Impact Reports for the Bakhuis Bauxite Project,
West Suriname. Ottawa, ON: The North-South Institute. http://www.nsi-ins.ca/english/pdf/Missing_pieces.pdf
__________. 2011. Tipping the Power Balance — Making Free, Prior and Informed Consent Work. Lessons and policy directions from
10 years of action research on extractives with indigenous and Afro-Descendant Peoples in the Americas. Ottawa, ON: The NorthSouth Institute. http://www.nsi-ins.ca/images/documents/synthesis_english_dec_12_2011_web.pdf (Spanish: http://www.nsi-ins.
ca/images/documents/spanish_synthesis_dec_2011_web.pdf)
Welsh, Teresa. 2010. Paramilitary speak out on Drummond Murders. Colombia Reports. 17 September. http://colombiareports.com/
colombia-news/news/11899-paramilitary-drummond-unionists-murders.html
Wong, Craig. 2012. Barrick launches new corporate social responsibility advisory board. February 3. The Canadian Press. http://www.
winnipegfreepress.com/business/barrick-launches-new-corporate-social-responsibility-advisory-board-141192053.html
World Bank Group. 2011. The World Bank Group in Extractive Industries 2011 Annual Review. http://siteresources.worldbank.org/
INTOGMC/Resources/WBG_EI_Annual_Report_FY11_Final.pdf
Zarsky, Lyuba. 2011. Business and Human Rights: Searching for transformation. January 11. http://triplecrisis.com/business-andhuman-rights/
160
Holding Extractive Companies to Account in Colombia

2012-Holding-exracti.. - The North

Transcription

Similar documents

Classifieds: 607-4497

En tiempos de convergencia (In Times of Convergence

Colombia in Focus Newsletter (Music) 11-19

GIs and Traditional Knowledge: the Case of Colombia

REBECCA JAMIESON- WIPCE

Crankshafts - Texma Petroleum Machinery

contents - Botanical Society of South Africa

Colombia is good with words.

Know the contents

No 19 - Embajada de Colombia