Legal Rights for Nature: The Case of Rio Atrato, Colombia

Dr Elizabeth Macpherson

The Rio Atrato case (November 2016) was an ‘acción de tutela’ (action for protection of constitutional rights) brought in the Colombian Constitutional Court by the human rights NGO Tierra Digna on behalf of a number of Indigenous, Afrodescendent and peasant communities in the department of Chocó. The claimants argued that the activities of illegal miners in Chocó violated the fundamental human rights of the communities living alongside the river, causing extreme degradation of the river; destroying the natural course of the river, flooding the rainforest, and contaminating the river with chemicals.

In its decision the Court found that the Government had violated the communities’ fundamental constitutional rights by its omission to control illegal mining in Chocó (the rights to life, health, water, food security, clean environment, and the right to culture and territory of the ethnic communities). Then, significantly, the Court recognised that the Atrato River (together with its basin and tributaries) is an ‘entity sujeto de derechos’ (legal entity). The river’s rights (distinct from the communities’ rights), are to protection, conservation, maintenance and restoration by the state and ethnic communities. The Court made a number of orders to implement its decision, including that the rights of the river will be represented by a guardian – with one representative from Government and one from the claimant communities, referencing the Te Awa Tupua (Whanganui River) model from New Zealand.

This is a watershed moment for indigenous and environmental rights in Latin America. The Court explicitly recognised that it is taking an ecocentric approach, referring to the interconnectedness of nature and humans with nature and the superior interest of the environment and obligations to protect nature’s rights. Yet the decision is ‘anthropocentric’ in that the river’s rights are a consequence of its recognition of the communities’ human rights and this case is inherently tied up with the ancestral, territorial, communal and ‘biocultural’ rights of the ethnic communities. This approach may have limitations, including the risk of essentialising indigenous culture in a pristine, pre-contact light and leaves open the question whether rights of nature can exist outside of indigenous areas.

Significantly, the case engages directly with the difficulty of enforcing the rights of nature, by making prescriptive orders about how the rights of nature must be protected and implemented. It is truly incredible in this case how far the courts have gone in designing institutions to represent the river - lifting the Te Pou Tupua model, principle of guardianship and collaborative governance approach from the Whanganui River Settlement. The court has also given itself an ongoing role, requiring regular reports on implementation from the government.