The Arhuaco Legal Tradition and the Decolonization of Environmentalism in Colombia
Image by Jwikamey.
The most recent changes in Colombian constitutional law have significantly influenced public policy by recognizing Nature as a subject of rights and incorporating the protection of future generations as an essential component of eco-sustainability. This article aims to demonstrate the richness of the Arhuaco legal tradition and how recent constitutional decisions in Colombia with regard to environmental rights risk obscuring Indigenous legal traditions by failing to challenge the colonial framework that grants Indigenous peoples rights over their own unceded territories.
The Arhuaco are an Indigenous nation located in the northern coast of Colombia, in the Sierra Nevada de Santa Marta. To this day, these pueblos originarios live according to their own laws founded on the moral, ecological and divine dictates of the Great Mother, Madre Creadora.[1] Among these laws is the Law of Origin, a sacred, unwritten law that informs how we ought to live to achieve universal harmony between human beings of different societies and cultures, Nature and all that exists.[2]
I had the privilege of spending time in Colombia last year and to cross paths with the Arhuaco. Their communities are quite remote from urban centers and they have traditionally avoided sustained contact with “outsiders.” Hence, it is only through a mutual friend that I was able to get in touch with Jwikamey Torres Villafaña, a 24 a year-old Arhuaco man from the Gunmaku community, in hopes of learning more about this nation’s culture and legal tradition.[3]
Gunmaku Community in the Sierra Nevada de Santa Marta
For the original Spanish transcript of our exchange, please click here
Mélanie: What does the term “law” mean to the Arhuaco people?
Jwimakey: With respect to our laws, we as Arhuacos always remain in our territory, immersed in our culture, because the land is everything to us. The laws that have been passed down to us aren’t laws that change or that are focused on us as social individuals. They have to do with spirituality; to care for and protect Nature is a responsibility we’ve always had. Everything that exists in Nature is part of the human being— of us. These are fundamental laws that we did not establish ourselves. We always practice this connection with our environment, our culture and our people to maintain a state of harmony. An Arhuaco is not solely an Arhuaco; our identity has much to do with this rooted connection with the Earth. The mamos help us practice this connection.
M: What is the role of the mamos?
J: The mamos are spiritual leaders in our communities who have a long history of interaction with the natural laws of Mother Earth and our community principle of understanding how our spirit is intimately connected with Mother Earth. They offer guidance in relation to our connection to Nature and remind us that to be and live well, we must take care of our environment. As Arhuacos, we believe that in taking care of the Earth, we take care of ourselves, and if we take care of ourselves, we are also taking care of the Earth.
Jwikamey (left) with Mamo Camilo Izquierdo
M: In light of climate change and according to the Arhuaco laws, what are some actions you and your community are taking these days to take care of Mother Earth?
J: We remain united and practice awareness of everything that surrounds us. Our ancestors and mamos have worked to defend this territory, this sacred space. Multimillion dollar corporations have intended to enter our territory to develop extractive activities, so our ancestors and mamos have been committed to blocking these projects to in turn guarantee a safe environment for us and future generations. Every time we think this type of activity might begin somewhere in the Sierra, we all go to that place to ask that they don’t go ahead.
Recent Colombian Constitutional Decisions
The 2016 Atrato River case[4] was the first of a string of decisions that granted legal rights to rivers and ecosystems throughout Colombia. The Colombian Constitutional Court (CCC) acknowledged that we ought to look at Nature with deeper respect and to shift away from an anthropocentric relationship with the Earth by learning to live in harmony with other species.[5] Such actions indicate a departure from a traditional western approach to the regulation of the natural world.[6] The case describes the concept of “biocultural rights” as an innovative approach that advocates combining conservation with respect for Indigenous rights to stewardship of natural resources.[7] The CCC uses the concept to promote an alternative vision of collective rights in relation to the natural environment and in accordance with Indigenous ontologies. Hence, the Court states that the adoption of the biocultural rights concept allows for a recognition of the jurisdiction of Indigenous peoples as “regulators, stewards, and decision makers on the management of the river.”[8]
Despite these progressive legal developments and their explicit recognition of Indigenous peoples’ rights and legal systems, constitutional protections and national juridico-political conversations continue to operate on their own terms and fail to capture the dynamism of these legal traditions. As Jwikamey expresses, the “intrusion of national and international companies seeking to exploit natural resources”[9] seriously impedes and threatens Indigenous ways of living. As a council of Arhuaco governors explains, the Law of Origin prohibits any use of natural resources involving their irreversible depletion and a decrease in the regenerative potential of Mother Earth’s life.[10] Therefore, there is danger in instrumentalizing Indigenous peoples as stewards of the land and selectively legislating and institutionalizing their ontologies. Doing so does not allow Indigenous legal systems to exist and to be recognized as they are, as legal systems different in kind that operate independently from Colombia’s civil law tradition. This, in turn, reinforces artificial structures of colonial legal hegemony in a country with 115 different Indigenous peoples,[11] each with their own legalities.
Most importantly, in its efforts to constitutionally recognize Indigenous law, Colombia ought to acknowledge that to speak of state constitutional law is to speak of colonialism. Though the application of state constitutional law intends to grant autonomy to Indigenous legal systems, it perpetuates its harm to Indigenous peoples by systematically subordinating their perspectives to a liberal legal system that, while denying some forms of extractivist activities, enables others. In this light, it is unfortunately not surprising that post-Atrato cases have “failed to acknowledge biocultural rights and the role of local communities in providing environmental stewardship in accordance with Indigenous and Afro-Colombian peoples’ cultures.”[12] Merely including an Indigenous perspective in a liberal legal structure fails to challenge the colonial framework that grants Indigenous peoples guardian rights over their own territories. Moreover, such an approach is reductionist and ignores the underlying structures and belief systems that inform Indigenous perspectives. As Rachel Sieder writes, “Indigenous peoples’ claims for the autonomy of their justice systems are inextricably linked to their broader claims for […] land rights and alternative forms of development.”[13] Recognition is comfortable, structural change is not. Predominant attitudes of resistance among socio-political elites have demonstrated this exact tension.
To conclude, the adoption of a constitution that acknowledges legal pluralism within its borders is a challenge to the “monistic conceptions of law which have dominated most of [Latin America’s] republics since independence.”[14] As well, the granting of legal personhood to ecosystems is revolutionary and fosters hope with regards to the climate crisis and the reciprocal relationship we ought to have with Nature. Nonetheless, despite these recognitions, the Colombian state continues to pursue an extractivist development path that is highly harmful and discriminatory towards Indigenous peoples’ right to live in accordance with their land-centric legal systems. As the Arhuaco council explains, “permanence of the culture depends on the territory because without territory there is no identity or culture, it is the space that provides us the material and the understanding for the cultural development and ancestral activities allowing us to speak of balance and harmony with Nature.”[15] As long as this colonial, neoliberal threat looms over Indigenous peoples’ ways of life, any type of plurilegal recognition or requirement of prior consultation for development projects will be illusory. The Arhuaco council reminds us that “one of the reasons why non-Indigenous people must respect and ensure the survival of Indigenous peoples” is because their laws are rooted in ancestral territories that guarantee the life of non-Indigenous people too.[16]
Lastly,
M: Do you have a message for the readers?
J: We have some difficulties in our territory related to climate change that worry us. Water and snow levels have been diminishing. We need to keep caring for the Earth and I believe this is not solely the decision or responsibility of Indigenous peoples, but of everyone. In the way that we as Arhuacos live, we understand our reality. Other people living in cities also have their own ways of maintaining harmony with themselves and all that they do. I admire those people and believe that the fundamental objective for all of us is to be aware of Nature, of Mother Earth. Young people need to coincide in that aspect, it is the duty of all to help one another. We are complements. The world has changed a lot, but so have people.
Without forgetting what our elders and mamos have taught us, it makes me so happy to interact and share with people from other places, and I know that they have much to share with us.
Jwimakey is eager to share his culture and uses social media to connect with people wanting to learn and exchange (@jwimakey).
[1] See Wade Davis, Magdalena: River of Dreams (Toronto: Alfred A Knoff, 2020) at 12.
[2] See Cabildo Governor Arhuaco et al, “Territoriality, Environment and Rights in Indigenous People Iku (Arhuaco) from Sierra Nevada of Santa Marta, Colombia” (2017) 14:7 US-China L Rev 437 at 439.
[3] Interview of Jwikamey Torres Villafaña by Mélanie Arsenault (22 January 2021).
[4] Centro de Estudios para la Justicia Social ‘Tierra Digna’ y otros v Presidente de la República y otros (2016) Corte Constitucional [Constitutional Court], Sala Sexta de Revision [Sixth Chamber] (Colombia) No. T-622 of 2016, 10 Nov. 2016, pp. 4–7 (Atrato River case).
[5] See Ana Lucía Maya-Aguirre, “Implementing Environmental Constitutionalism in Colombia: Tensions between Public Policy and Decisions of the Constitutional Court” in Erin Daly & James R May, eds, Implementing Environmental Constitutionalism: Current Global Challenges (Cambridge University Press, 2018) 143 at 158.
[6] See Elizabeth Macpherson et al, “Constitutional Law, Ecosystems, and Indigenous Peoples in Colombia: Biocultural Rights and Legal Subjects” (2020) 9:3 Transnat’l Envtl L at 521 at 525.
[7] See ibid at 532.
[8] See ibid at 533.
[9]See Rachel Sieder, “The Challenge of Indigenous Legal Systems” (2012) 18:2 Brown J of World Affairs 103 at 106.
[10] See Cabildo Governor Arhuaco, supra note 2 at 454.
[11] International Work Group for Indigenous Affairs, “Indigenous World 2020: Colombia” (2020), online: IWGIA <https://www.iwgia.org/en/colombia/3618-iw-2020-colombia.html>.
[12] See Macpherson, supra note 7 at 540.
[13] See Sieder, supra note 10 at 112.
[14] See ibid.
[15] See Cabildo Governor Arhuaco, supra note 2 at 439.
[16] See ibid at 444.