Colombia’s constitutional court grants rights to the Atrato River and orders the government to clean up its waters

CHOCÓ, Colombia – Rivers, forests and its inhabitants are inseparably connected in Colombia’s Chocó department on the country’s northwest coast. The gravity of the contamination that has begun to affect the well-being of the whole aquatic ecosystem and adjacent riverine communities recently got the attention of Colombia’s higher judicial powers.

According to a recent ruling of the Colombian Constitutional Court, the Atrato River needs better care and is “subject to the rights that implicate its protection, conservation, maintenance and in this specific case, restoration.” The suit also calls out the state on its neglectful behavior and orders that the river be cleaned up.

Born in the Western Andes mountain range at a height of nearly 12,800 feet, the Atrato makes a snaking descent through Chocó’s jungles to voluminously debouch in the Caribbean Sea, close to Panama. Along the way, it receives water from more than 15 rivers and 300 streams. Crystalline as the waters might be at its source, along its course it becomes one of the most contaminated rivers in the country.

The court’s ruling on the Atrato River is the result of a case that was presented by the Colombian NGO Tierra Digna, Afro-Colombian organizations and an indigenous platform, a gathering of representatives of indigenous organizations.

The unusual case is a big win for environmental conservation, according to Ximena González, one of Tierra Digna’s lawyers.

“It’s a symbolic ruling, not only for the environment but also it is the first time that the Constitutional Court welcomed a new framework of rights, called biocultural rights,” González said. “Here, the direct and narrow relation between biodiversity and culture is pointed out. This relation is indispensable and moreover essential for ethnic communities, especially in Chocó.”

Many people in Chocó depend on the Atrato River. According to González, this is why the recognition of the river’s degradation and the court’s emphasis of the right to water and basic living conditions is a big step forward, especially for future public policies with an ecocentric approach to human rights.

The court’s ruling makes it clear that the river has rights.

“According to this interpretation, the human species is only one more event within a long evolutionary chain that has lasted for billions of years and we [humans] therefore, in no way, are the owner of other species, biodiversity or natural resources, or the fate of the planet,” the ruling reads. “Consequently, this theory conceives nature as a true subject of rights that must be recognized by states and exercised under the tutelage of their legal representatives, for example, by the communities that inhabit it or have a special relationship with it.”

Revolutionary as the ruling might seem, Colombia has the second highest amount of environmental conflicts in the world, and aims to build its economy around the extractive industry. At the moment, the real challenge is to put the government to direct action now the court wants a clean river.

In its 416-mile course, the Atrato River traverses one of the world’s most biodiverse regions. The surroundings of the flat waters are dense and green; these jungles that border the river are increasingly pressured by encroaching illegal logging and mining operations and suffer from historical rates of deforestation. Here, in Colombia’s department Chocó, the brown river has lived through its own history of conflict in which it was forced to give free rides to illegal armed groups on its muddy waters.

During the country’s more than half a century-long internal conflict, guerrillas long used the river to move their troops. At the moment, Colombia’s notorious paramilitary groups use the Atrato to get to the riverbank communities they terrorize and displace. The Atrato and its many tributaries also grant safe passage to smugglers who transport illegally-mined gold in their motorized canoes, but suffer from the grave contamination that is caused by the mining of the same gold.

Alarms about the contaminated Atrato have been rung before. In 2014, the national ombudsman declared a humanitarian emergency in Chocó because of its social, economic and environmental problems. Most threats to the environment were imposed by deforestation, active timber mafias and erosion in the Atrato watersheds. Especially contamination caused by illegal mining operations has reached historical levels.

Semi-industrialized mining operations with illegal excavators and dredges are one of the main drivers of deforestation in Chocó.

“Illegal mining that is realized in the Atrato river basin defies any idea of responsible use of water and forests. It is a violation of the fundamental right to water,” reads the Court’s ruling. Yet the battle for the gold veins in Chocó is far from over. According to the most recent calculation of the United Nations Office on Drugs and Crime (UNDOC), in 2014, big dredging machines and excavators had already caused a loss of 19,000 hectares of vegetation cover in Chocó. Almost 79,000 hectares in 17 of the 32 Colombian provinces are affected by informal mining, according to UNDOC.

The deforested moonscapes in the dense and humid green jungles are filled up with yellow excavators and humming mineral processing plants. Pits full of contaminated soils and waters are being searched for shiny flecks of gold. The poisonous mercury that is used in the applied extraction process causes numerous health and environmental problems in the predominantly riverine communities and, as the court affirms, has contaminated the Atrato River.

The local population mainly consists of descendents of the African slaves that were brought to the New World by the Spanish in colonial times. While the Afro-Colombian population has been mining for gold over 400 years using traditional techniques, the armed groups that currently dominate the mining panorama force the miners to use modern methods.

It is not so much the Afro-Colombians themselves that benefit from the efficient but destructive mining machinery. They live in the jungles paramilitaries are deforesting, barely  make ends meet through small-scale mining and are surrounded by contamination.

“The key players are the armed groups,” says Leonardo Correa, technical coordinator of the UNODC’s Colombian office in Bogotá. “There are areas where it is very clear to us, the armed group ends up creating some kind of slavery for the people who occupy these territories. That’s why you have to tackle those groups, because not all exploitations are owned by the miners or the communities.”

As is often the case in Colombia, the government applies the stick method where the carrot might be more fruitful as it concerns poor people in illicit economies.

“They treat us like criminals, but we are just looking for a way to pay for the bread of our families. We all deserve a chance,” says Didier Valencia, an informal miner from Unión Panamericana, a mining zone that is often targeted by haphazard missions against illegal mining. Subsistence miners are often thrown in jail whilst investors hide in urban centers and easily replaceable machinery is exploded by special ‘counter illegal mining teams’ from the national police and military.

Anderson Cardenas, an environmental engineer of Chocó´s environmental authority CODECHOCÓ, explains that the operations against illegal mining also have an environmental impact.

“Solid wastes (metals) left by the exploding machines and liquids (fuels, fats and waste oils) residues that were in the machines at the time of the explosion, contaminate the soil and nearby water sources.”

Knee-deep in mud, most of the day laborers are unaware of the risks that mercury-contaminated waters pose to their health, let alone the mercury that enters their bodies through the fish they eat.

Now the constitutional court not only has ordered the government to clean up the mess in Chocó, but as well to provide the local population with alternatives, many changes for the Atrato and its surroundings are hoped for.

“One of the biggest challenges is to prevent that the ruling gets stuck in a bureaucratic dilemma between the court and the government,” says González, who highlights that a special commission to safeguard the river will be set up in which national and international experts have a say.

Banner image: In Chocó there are many small shops that refine, sell and buy locally mined gold. Photo by Bram Ebus for Mongabay.

Bram Ebus is a freelance journalist based in Colombia. You can find him on Twitter at @BramEbus.

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