U’wa Indigenous People and their members vs. Colombia (July 4 2024)

The Inter-American Court of Human Rights (IACtHR) ruled that Colombia violated the U’wa Indigenous People’s collective property rights by not fully titling their land and allowing  various oil, mining, tourism, and infrastructure activities on their territory without prior consultation. The judgment declared violations to the rights to property, participation, access to information, participation in cultural life, freedom of expression and assembly, children’s right, self-determination of Indigenous and tribal peoples, a healthy environment, dignified life, and personal integrity of the U’wa Indigenous People and its members. The case involved militarization and the use of force in U’wa territory, including reports of evictions, detentions, kidnappings, murders of activists, and the destruction of sacred sites. Paras. 94–97.

The Right to Collective Priority of Indigenous and Tribal Communities

In its merits analysis, the Court reaffirmed Indigenous property rights over their ancestral territories, crucial for their cultures, spiritual life, and economies [paras. 122–124], obligating States to guarantee this right through delimitation, demarcation, and titling for legal certainty. Para. 126.

The Court stressed that the guarantee of communal property entails respect for Indigenous autonomy and self-determination, requiring States to adapt domestic law and recognize their legal personality. Para. 129. It also reiterated that property rights may be subject to limitations established by law, provided they are necessary, proportional, and pursue a legitimate aim in a democratic society. Para. 130.

In line with these jurisprudential standards, the Court found that the actions taken to clarify colonial land titles were insufficient, despite the commitments made and the availability of relevant information. Para. 135. While some measures were adopted to title the Resguardo Unido U’wa [para. 139], the process remained incomplete over 23 years later. Para. 141.

Regarding the overlap between the El Cocuy National Park and U’wa territory, the Court noted that “in principle, there is compatibility between protected natural areas and the rights of Indigenous peoples” [para. 146], provided the State ensures effective participation, access to traditional lands, and benefits aligned with conservation goals. Para. 146. Upon examining the case, the Court observed that the U’wa People’s involvement in the Park’s administration was sporadic [para. 155], and benefits from the State’s management and conservation of the protected area were not shown. Para. 156. 

In response to claims that the U’wa have rights over the natural resources in their territory, the Court held that property rights may be restricted if Indigenous survival is not endangered and safeguards ensure human rights compatibility during exploration or exploitation activities. Para. 158.

Accordingly, the Court declared a violation of the right to collective property due to the State’s failure to clarify colonial land titles, the incomplete titling of the U’wa and Kuitia Resguardos, and the lack of ongoing participation and clear benefits in the management of El Cocuy National Park. Para. 159.

Right to Prior Consultation

The controversy over the fulfillment of the duty of prior consultation concerned seven projects. Regarding those carried out within the U’wa Resguardo, the State claimed to have conducted consultation processes, prompting the Court to assess whether these processes complied with Inter-American standards. The Court concluded that the State violated the rights to collective property, participation, access to information, and participation in cultural life by failing to conduct adequate, free, and informed prior consultations regarding the extractive projects in the Samoré Block and the Siriri-Catleya Block, located within the U’wa Resguardo. Para. 224.

In the case of the Samoré Block, the Court found that the State did not seek to reach an agreement linked to the approval of the administrative measure subject to consultation, but just informed the community of a decision already made, reducing the consultation to a mere formality. Paras. 185, 183. It cited a meeting in which a government representative stated: “the consultation is not for the U’wa People to say yes or no, nor to assume that responsibility, which belongs to the government . . .”. Para. 183.

Regarding the Siriri-Catleya Blocks, the State argued that the right to consultation had been extinguished due to the U’wa People’s refusal to participate in the process [para. 189], and the Court agreed that:

In cases where the State has initiated consultation in good faith and in accordance with standards . . .  and the Indigenous people refuse to participate, such refusal must be understood as opposition to the activity in question, and therefore the obligation to consult is considered fulfilled. . . . Para. 191.

In the specific case, the consultation process was deficient, as it failed to respect “the customs, traditions, and representation of the U’wa People, despite the State being aware of the authorities who should have been consulted”. Para. 193. The Court noted that this undermined good faith between the parties and led to the breakdown of the consultation process [para. 192], as well as rejected the State’s argument invoking the “fourth instance doctrine”. Para. 194.

As for mining titles granted within the U’wa Resguardo — specifically, the GKT-081 Concession — the Court accepted that the obligation to consult was fulfilled given the U’wa People’s refusal to be consulted. The Court emphasized the U’wa position of “no exploitation of natural resources in U’wa territory” [para. 196], and underscored that even in such cases, the State must ensure that adopted measures are proportional and non-discriminatory. Para. 198. Accordingly, the Court concluded that the right to consultation was not violated in relation to the GKT-081 mining concession. Para. 199.

The State also contested the obligation to consult on projects located outside the U’wa Resguardo. The Court reiterated that consultation is required for projects or measures that may affect the rights of an Indigenous or tribal people [para. 201], even if these projects are located outside their territory. It emphasized that:

. . . the “impact” an Indigenous people or community may suffer as a result of extractive projects can include projects located exclusively outside their territory, when their implementation may have a direct effect on the rights of Indigenous communities. Para. 201.

The Court then analyzed whether the projects outside the U’wa Resguardo were likely to affect the rights of the U’wa People, whether the State was aware of the potential impact, and whether it had a duty to consult. Specifically, it found that the Gibraltar 1, Gibraltar 3, and the Gibraltar-Bucaramanga Gas Pipeline projects should have been subject to consultation, given their proximity to the Resguardo and official recognition of possible impact. Paras. 208, 210. Regarding the Exploratory Drilling Area (Área de Perforación Exploratoria, APE) Magallanes, since it formed part of the Sirirí Block, for which the State acknowledged the need to conduct consultation, it was also reasonable to conclude that consultation was required. Para. 216.

Because adequate consultation processes were not carried out for these projects, the Court concluded that the State also violated the rights to participation, access to information, and participation in cultural life in relation to the right to collective property. Para. 224.

Rights to Freedom of Expression, Assembly, Children’s Rights, and the Right to Self-Determination of Indigenous and Tribal Peoples

The Court analyzed the U’wa People’s allegations concerning the use of state force to evict and suppress peaceful protests. In particular, it examined a demonstration in which approximately 450 U’wa individuals blocked a road in opposition to oil exploration activities in the Samoré Block. The protest was dispersed by the army using gas, resulting in three deaths and several injuries. Paras. 241–242.

The Court concluded that the State violated the rights to freedom of expression, assembly, self-determination, and the rights of the child by restricting these rights without providing sufficient information on the legal basis for the use of public force and without demonstrating the necessity and proportionality of the measures taken. Paras. 251, 246, 247. It also found that no special protective measures were adopted for minors during the operation. Para. 250.

Right to Participate in Cultural Life

The Court affirmed that Indigenous peoples’ right to cultural life includes their spiritual and cultural connection to land and territory, requiring States to prevent interference, even from third parties. Para. 271. In the case of the U’wa People, the Court noted that extractive activities have been carried out in their territory and adjacent areas since 1994. Para. 273. Upon reviewing the U’wa cosmovision, the Court recognized that “oil and other natural resources, including those underground, hold a fundamental traditional meaning for [their] culture,” being considered the blood of Mother Earth. Para. 277.

The Court found that the State violated their cultural rights by authorizing these activities without proper consideration, despite being aware of the cultural, spiritual, and ancestral ties that bind the U’wa people to their territory and its components. Paras. 281, 280, 278. The Court also found a violation of this right due to the State’s authorization of ecotourism activities in the Cocuy National Park — a place of special spiritual significance for the U’wa. Paras. 286, 282. On the other hand, it found no evidence of the presence of military units in the Park or in the Resguardo. Para. 287.

Right to a Healthy Environment

The Court referred to various international instruments and key principles such as prevention, precaution, intergenerational equity, and the State’s duty to regulate, supervise, and oversee activities that could cause significant environmental harm. Paras. 293–297.

Specifically, the Court emphasized that States have a duty to protect both natural reserve areas and traditional territories, in order to prevent environmental damage—including that caused by private actors and corporations—through appropriate mechanisms of oversight and regulation. Para. 297.

The Court referenced the obligation to conduct Environmental Impact Assessments (EIAs) for potential impacts and risks associated with a project, including cumulative effects and in light of the “triple planetary crisis”. Paras. 298, 300, 304.

The triple planetary crisis refers to the interconnected and combined effects of three global threats: environmental pollution, biodiversity loss, and the climate crisis stemming from the extraction and use of fossil fuels and methane emissions. Para. 304.

In the U’wa case, the Court concluded that the State violated the right to a healthy environment by failing to exercise due diligence in approving EIAs and by not demonstrating that it took mitigation measures following a bombing of the Caño Limón–Coveñas pipeline. Para. 328. Notably, the Court observed that “the fact that the Colombian State approved environmental impact studies does not, in itself, fulfill the obligation to guarantee the right to a healthy environment,” as these studies must meet certain criteria. Para. 308.

The Court found that the studies had been approved before the activities were carried out [para. 309] and that they were conducted by independent entities under State supervision. Para. 310. However, the Court pointed out that the State allowed the start of operations in the Magallanes Exploratory Drilling Area (APE Magallanes) as a separate segment from the Sirirí Block, thereby violating environmental norms and failing to assess cumulative impacts adequately. Para. 311.

The Court considers that splitting the project into parts allowed that, by evaluating components of an integral project independently, the minimum thresholds required for an environmental assessment in accordance with the impacts that the project in its entirety may present were not reached, avoiding an evaluation of the project in its entirety. . . . Para. 311.

The Court also stressed the importance of public participation — especially by Indigenous peoples — in the EIA process [paras. 312–314], and noted that the traditions and culture of the U’wa were not adequately taken into account in two of the projects. Paras. 315, 317. Finally, since no activities were carried out and no permits granted for the Catleya Block and mining projects, EIAs were not required in those instances. Para. 318.

Regarding deficiencies in oversight and inspection, the Court found no general proof of noncompliance. Para. 319. It underlined that “in the present case, there is no evidence of significant environmental harm resulting from the operation of the extractive projects, except for the Caño Limón–Coveñas pipeline”. Para. 320. In this instance, although damage from pollution and environmental harm was established, the Court did not assign international responsibility to the State, as the acts were caused by third parties. Para. 321.

According to the Court, the State’s duty to take preventive and protective measures concerning third parties depends on its awareness of the risk and its reasonable capacity to prevent or mitigate it. Para. 322. In this case, the State was aware of the risk, given over 850 attacks on the pipeline since 1986, but the Court could not determine whether the State’s preventive measures were sufficient. Para. 323. The Court noted that in 2014, Ecopetrol activated a contingency plan, began environmental cleanup and restoration, and buried the pipeline at the State’s request. However, it found insufficient evidence that the State used effective measures or appropriate technology to mitigate the damage. Para. 326. Thus, it concluded that the right to a healthy environment had been violated (Article 26 in connection with Article 1.1 of the American Convention).

Rights to Life, Personal Integrity, and Equality Before the Law

The Court considered that the facts and violations described earlier caused suffering and fear among members of the U’wa community, constituting a violation of their right to a dignified life and to personal integrity (Articles 4.1 and 5 in connection with 1.1 of the American Convention). Para. 344. However, it found that there was no proven omission by the State in fulfilling its duty to ensure the right to equality and the prohibition of discrimination, highlighting various measures adopted by the State over time. Paras. 345 and 346.

Rights to Judicial Guarantees and Judicial Protection in Relation to the Right to Equality Before the Law

The Court assessed the adequacy and effectiveness of the legal remedies pursued by the U’wa People, particularly concerning environmental licenses. It concluded that there was no international responsibility of the State regarding the tutela and nullity actions filed against the licenses for the Samoré Exploratory Block and the Gibraltar Exploratory Drilling Area (APE Gibraltar), as the timeframes were reasonable, the rulings were well-reasoned, and jurisprudential discrepancies do not, in themselves, constitute a violation of the right to judicial protection. Paras. 386, 363–373.

However, the Court found that the State violated the guarantee of a reasonable time in the nullity action against the license for APE Magallanes, and noted a lack of effectiveness in the ruling by the Administrative Tribunal of Cundinamarca, as the prior consultation it had ordered has not been carried out. Paras. 386, 374–384.

Conclusions and Reparations

For all these reasons, the Court declared Colombia responsible for the violation of the rights to collective property, participation, access to information, participation in cultural life, freedom of expression and assembly, the rights of the child, the right to self-determination of Indigenous peoples, the right to a healthy environment, to a dignified life and personal integrity, as well as to judicial guarantees and judicial protection (Articles 21, 23, 13, 26, 15, 19, 4.1, 5, 8, 25, and 1.1 of the American Convention).

Finally, the Court ordered the State to take the necessary measures to carry out the comprehensive demarcation of the Resguardo Unido U’wa and the Kuita Resguardo [p. 143, point 10], and to clarify the colonial land titles. P. 143, point 11. The State was also ordered to involve the U’wa People in the administration and conservation of the overlapping area between El Cocuy National Park and the U’wa Resguardo [p. 143, point 12], and to carry out a participatory process regarding ongoing extractive projects. P. 144, point 13.

In addition to adopting mitigation measures for the environmental damage caused by the explosions along the Caño Limón-Coveñas pipeline [p. 144, point 14], the Court ordered measures of satisfaction, such as a public act recognizing the State’s international responsibility. P. 144, point 15. It also mandated the resolution of pending legal proceedings, the creation of a community development fund, and the reimbursement of legal costs and expenses, including those from the Victims’ Legal Assistance Fund of the Inter-American Court P. 144, points 16, 17, and 18.