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Cablegate: Colombian Constitutional Court Axes Forestry Law

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RR RUEHWEB

DE RUEHBO #1966/01 1491818
ZNR UUUUU ZZH
R 281818Z MAY 08
FM AMEMBASSY BOGOTA
TO RUEHC/SECSTATE WASHDC 3001
INFO RUEHCV/AMEMBASSY CARACAS 0490
RUEHPE/AMEMBASSY LIMA 6231
RUEHZP/AMEMBASSY PANAMA 1786
RUEHQT/AMEMBASSY QUITO 6889
RUEHBR/AMEMBASSY BRASILIA 8211

UNCLAS BOGOTA 001966

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: EAGR SENV ECON PGOV CO
SUBJECT: COLOMBIAN CONSTITUTIONAL COURT AXES FORESTRY LAW

REF: A. (A) 07 BOGOTA 6535
B. (B) 07 BOGOTA 5444

1. (U) SUMMARY: Colombia's Constitutional Court issued a
decision overturning a controversial Forestry law for failing
to adequately consult with "affected" Afro-Colombian and
indigenous groups on the law's impact. While proponents
claimed the law strengthened sustainable forest management,
opponents argued timber companies would use it to exploit
Afro-Colombian and indigenous lands. The decision will
likely lead to challenges to other laws that impact
Afro-Colombian or indigenous groups and fuel controversy over
the GOC's consultative process. The decision also throws the
commercial forestry sector into disarray without an overall
legal framework. In response, the Uribe administration has
introduced a new forestry law intended to have no effect on
Afro-Colombian or indigenous lands. END SUMMARY

Court Finds Consultations Insufficient
--------------------------------------

2. (U) On April 28 Colombia's Constitutional Court voided
Colombia's Forestry law. The Court held that the GOC failed
to have "open, frank and meaningful" consultations with
Afro-Colombian and indigenous groups on a government action
that could "affect" them as required by International Labor
Organization Convention 169 and Colombian law (ref A).
Neither the Convention nor Colombian law state that the GOC
must avoid actions that negatively affect Afro-Colombian or
indigenous groups, but rather require a formal legal
consultation process between the GOC and affected groups.

3. (SBU) Afro-Colombian organizations that had opposed the
law praised the court's decision. Some political analysts
also see a positive side to the decision. Rafael Nieto, a
former Vice-Minister of Justice and legal analyst, said the
decision showed the GOC's increasing sensitivity to
Afro-Colombian and indigenous issues. Marcela Prieto, the
head of the Institute of Political Science, told us the
decision demonstrated the robustness of the
checks-and-balances between the executive and judicial
branches.

4. (SBU) The Court's decision surprised Lorena Garnica, a
special advisor to the Ministry of Agriculture and Rural
Development (MinAg), who worked on drafting the law and on
the constitutional case. Garnica said the decision suggested
the Constitutional Court was a "wild card." Garnica pointed
out that the GOC held extensive consultations on the proposed
law, including over 30 public forums with more than 2,500
Colombians in a dozen cities around the country (28 funded by
USAID).

Sustainable Forestry Management or Uncontrolled Exploitation
--------------------------------------------- ---------------

5. (U) Garnica said the Forestry law, approved in April
2006 after extensive congressional debate and input from
environmental groups, created a stable investment environment
for sustainable forest management. She noted that the law
allowed Afro-Colombian and indigenous communities, who own
the majority of Colombia's 50 million hectares of forests, to
harvest their forests themselves or contract third parties to
manage them. USAID provided technical assistance in
developing the law and implementing regulations.

6. (SBU) Still, many Afro-Colombian, indigenous and
environmental groups complained that the law favored private
timber companies. Constanza Ussa, an anthropologist who
works with Afro-Colombian and indigenous groups, said such
groups worried that the law's creation of a new legal
mechanism allowing timber companies to harvest or manage
communally-owned forests made it easier for the companies to
exploit them. Afro-Colombian and indigenous groups also
argued that the law focused on the economic aspects of
forests to the detriment of their environmental, spiritual
and cultural values.

Decision Creates Uncertainty; Could Fuel Illegal Logging
--------------------------------------------- -----------

7. (SBU) The Court's decision will likely generate future
lawsuits as it leaves uncertain what constitutes an adequate
"consultation process" and an "affected" group. Lawyers for
indigenous groups told us they plan to challenge other laws,
including last year's Rural Development law (ref B), based on
a failure to adequately consult. In addition, Ussa said
Afro-Colombian and indigenous groups are likely to interpret
the decision's language as support for their position that
the GOC must avoid all actions that negatively affect them.

8. (SBU) Garnica said the patchwork regulatory structure on
forest management that existed prior to the Forestry law now
returns to life. Since the previous regulations lacked
well-defined conservation measures and penalties, Garnica
said the decision could increase the likelihood of illegal
logging.

9. (SBU) Rafael Mejia, head of the Colombian Agricultural
Association (SAC), an umbrella association of agricultural
producers that includes some timber companies, strongly
criticized the court's decision. Legal logging generated
about USD 100 million per year prior to enacting the law, but
the number began climbing in 2005 and jumped to USD 150
million in 2006 and almost USD 200 million in 2007. Mejia
said the legal forestry industry was now "on hold" and would
have to wait and see what happened.

New Forestry Legislation in Process
-----------------------------------

10. (SBU) The MinAg submitted a new bill on commercial
forestry to Congress which explicitly does not apply to
Afro-Colombian and indigenous lands. The bill permits the
government to offer concessions to commercially reforest
government-owned lands. Garnica admitted the bill, as
submitted, does not create an overall legal framework for
forestry or strengthen enforcement measures against illegal
logging. She noted however, that such measures might be
added before it becomes law. Garnica expects Congress to
enact the bill prior to the end of 2008.
BROWNFIELD

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