Colombian court to consider lawsuit that says fracking pilot projects would violate the precautionary principle and human rights

Colombia’s top administrative court, the Council of State, will consider a lawsuit that claims that Decree 328 that allows proposed fracking pilot projects violates the precautionary principle and other key rights including the right to free, prior and informed consent.

The precautionary principle is a concept that suggests an action whose ultimate effects are disputed or unknown should be resisted.

On July 15, El Tiempo reported: “The State Council announced that it will process a lawsuit that ‘seeks to annul the decree by means of which the National Government established the guidelines to carry out pilot projects for comprehensive research on unconventional hydrocarbon deposits, using the technique of hydraulic fracturing known as fracking’.”

The lawsuit filed on February 28 by three individuals against various government bodies claims that “the administrative act violates the precautionary principle, to the detriment of the State’s duties to prevent environmental damage; the right of people to enjoy a healthy environment, and the right to free and informed participation that they should have indigenous and tribal communities, through mandatory prior consultation.”

Reuters has previously reported that anti-fracking groups see the decree allowing the pilot projects as an act of contempt against the moratorium against fracking. That article highlights: “Activists campaigning against the projects say tests will not show the full potential effects of developing non-conventional deposits.”

Following the court’s decision, Óscar Sampayo, a member of the Alliance for a Colombia Free of Fracking, stated: “We hope that the high court will make a defining pronouncement that will prevent, once and for all, fracking in the region. We cannot allow the water resource, which is the most precious thing we have, to be affected.”

The Council of State approved a suspension of fracking in November 2018. It then upheld that temporary moratorium in September 2019 but later advised that does not impede the development of comprehensive investigative pilot projects.

Following the Council of State decision to consider this lawsuit, the Colombian government now has 30 days to respond to it.

It’s not clear from the media reports when the Council of State will hear or make a decision on the pilot projects, but it is expected that the Colombian government will award contracts in September/October to the companies seeking to conduct them.

Three Canadian companies are reportedly bidding for those contracts.

The Government of Canada has noted: “The government’s actions to protect the environment and health are guided by the precautionary principle, which states that ‘where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’”

The Voices at Risk guidelines produced by Global Affairs Canada further notes: “While, in international law, the ‘right to a clean or healthy environment’ is not generally recognized, and while this right is not protected in Canada’s domestic law and constitution, Canada has recognised several rights related to the environment (for example, the right to safe drinking water and basic sanitation). All sections of Canadian missions abroad can advocate in support of human rights defenders working on land and environmental issues.”

In November 2019, Peace Brigades International facilitated an 8-day visit by the CCALCP legal collective and the CREDHOS human rights organization to meet with representatives from Global Affairs Canada, Members of Parliament, civil society and the public.

At those meetings, CCALCP and CREDHOS highlighted their opposition to fracking given human rights concerns and environmental harms.

For further background on the legal challenge, please see the El Tiempo article: Ambientalistas exigen suspender los proyectos piloto de ‘fracking’.