Environmental Justice for Indigenous Peoples in the Constitutional Jurisprudence of Colombia and Ecuador

Abstract

Indigenous Peoples and their territories play a central role in preserving the planet’s biodiversity and regulating the Earth’s atmosphere. Areas of high biodiversity often overlap with Indigenous Peoples’ territories. The remaining reserves of natural resources, including minerals and hydrocarbons, are often located in remote, ecologically fragile regions traditionally inhabited and preserved by Indigenous Peoples. During the last three decades, the pressure on Indigenous Peoples’ territories has intensified significantly. Reforms of the legal and fiscal frameworks for the extractive industries accelerated this process. Indigenous Peoples are at the forefront of the struggle against the environmental inequity in their homelands, and they could achieve environmental justice in several lawsuits. This research examines two judgments of the Constitutional Courts of Colombia and Ecuador that recognize the rights of Indigenous Peoples impaired by gold mining in their traditional homelands. The Courts considered that it was necessary to establish binding case law on the subject due to the gravity of the matter. Both judgments firmly support the cultural and environmental rights of the Indigenous Peoples. In addition, the Courts recognize the endangered ecosystems as subjects with their own rights in order to increase the level of their protection. In the Ecuadorian case, the judgment is based on the constitutional provisions that grant legal personality to nature, called Pacha Mama by the Andean Indigenous Peoples. The Constitutional Court of Colombia recognizes legal personality to the river basin damaged by the mining activities, even though the Colombian Constitution does not explicitly recognize natural entities as bearers of their own rights.