By Sebastián Romero Rueda, EL ESPECTADOR, August 26, 2020

(Translated by Eunice Gibson, CSN Volunteer Translator)

Even though the Minister of Defense, Carlos Holmes Trujillo, has said that it is imminent, recent court decisions cast doubts as to whether this policy can be renewed any time soon. The most recent decision suspended the public environmental hearing necessary to obtain approval of the Environmental Management Plan for the spraying program.

After President Iván Duque’s visit to Samaniego (Nariño Province) last weekend, because of the massacre perpetrated in that municipality on Saturday, August 15 where on Monday at an early hour, eight young people were murdered, the Defense Minister, Carlos Holmes Trujillo, called a press conference. At the press conference, after referring to the statistics and to the controversy surrounding the massacres, or the “collective homicides”, as the government has called them, he sent a different message: his Ministry is operationally ready to renew aerial spraying of glyphosate on the plantings of coca in this country, and that would have a favorable impact, as he said, on the massacres.

“We have to say this clearly, complying with all of the prerequisites established by the Constitutional Court, that aerial spraying is today more important than ever to continue diminishing the illegal plantings (…). Re-starting that is absolutely indispensable because re-starting it would also have a positive effect on the problem of collective homicides,” the Minister emphasized.

However, for those who have followed the procedures for renewing aerial spraying with glyphosate in this country, which was suspended by the National Narcotics Council in 2015, (after the World Health Organization classified that herbicide as probably causing cancer) the declarations by the Defense Minister seem more like a political business  meant to respond to the uproar about the current situation. But there’s a long way to go before spraying can be started again, according to Decision T-236 by the Constitutional Court in 2017, and to recent court decisions that have been issued on the necessity for participation in the process by communities that would be affected. 

The most recent beating the government has suffered in its attempt to resume the policy happened this Tuesday in a decision by a court in Pasto to open contempt motions against the Assistant Director for Mechanisms for Citizen Participation in the National Authority for Environmental Licenses (ANLA in Spanish), the Director of the Antinarcotics Section of the National Police, and the Director of the National Authority for Prior Consultation in the Interior Ministry. The court’s action was based on its finding that these three officials failed to comply with orders issued in two decisions on civil rights actions at the trial and initial appellate level, related to procedures for re-starting aerial spraying. In the same order, the court in Pasto ordered suspension of a key hearing on compliance with the requirements for making spraying possible.

A public environmental hearing would have been necessary for approval by ANLA of the Environmental Management Plan (PMA) for the Eradication of Illegal Plantings Program by Aerial Spraying with Glyphosate. The hearing had originally been called as a virtual meeting, because of the pandemic, for last May 27. However, through several civil rights actions, campesino organizations in Nariño and 88 social, indigenous, and legal organizations, such as the umbrella group of Coca, Poppy, and Marijuana Growers (Coccam in Spanish), the José Alvear Restrepo Lawyers Collective (Cajar in Spanish), Cinep (Center for Research and Popular Education), or the National Indigenous Territories Commission, were able to put the hearing off, arguing that a virtual hearing would not guarantee effective participation by the affected communities. The Branch II Administrative Court in Pasto agreed with their argument, and suspended that step of the PMA. Later on, at the first appellate level, the Administrative Tribunal of Nariño affirmed the decision and brought in the Interior Ministry to carry out the procedures for prior consultation that are necessary for the ethnic communities of the 104 municipalities where they are trying to initiate spraying with the herbicide.

However, after that decision, in an action questioned by the parties that had intervened in the proceedings, ANLA, at the end of July, published a legal notice that once again called a public hearing for the coming September 1, referring to a procedure that it considered more participative for the communities. But there were warnings from different sectors, saying that that procedure did not have the green light.

“It’s very concerning that in the government’s eagerness to recover the control of those territories, they may believe that complying with the prerequisites on participation is already complete, when, for the Inspector General’s Office it’s very clear that that’s not the case,” explains Diego Trujillo, the delegated Inspector General’s representative for Environmental and Agricultural Affairs. “These decisions have been clear and have served to defend the participation rights of the rural, ethnic, and campesino communities, and those decisions have to be respected,” he added.

It was because of their failure to comply with those decisions that the court in Pasto issued an order this Tuesday to open a contempt proceeding against the officials of ANLA, the Police, and the Interior Ministry, and suspended the hearing scheduled for September 1.  But the real issue, as the court emphasized, and as affirmed by the appellate court, is the need to carry out procedures for prior consultation in order to obtain the environmental license for the glyphosate-spraying program.

In the PMA process, the Interior Ministry defended its resolution of March 2020. It establishes that spraying will not be done in territories belonging to ethnic communities, and thus prior consultation is not required. “However, the organizations analyzed the six geographic nuclei (where spraying is planned) as well as the focus on municipalities, and what they concluded is that there could be a spreading, or with ethnic territories that have titles, or with territories that are not titled,” explains Isabel Pereira, Coordinator for Drug Policy at Dejusticia. In that sense, the decision this Tuesday by the court in Pasto says that among the territorial entities, ANLA, and the Police, they will have to search for the presence of ethnic communities in areas where the spraying program would affect them, and report immediately to the authority for prior consultation so they can carry out that process. This step alone could keep the re-start of aerial spraying from happening this year.

“What the government is doing is corrupting the licensing process, and therefore every time they issue something there can be a lawsuit and a demand that it be invalidated or suspended. We are giving the government the opportunity to do things in the right way,” states Attorney Alirio Uribe of Cajar.

The truth is that PMA approval is just one of the prerequisites for re-starting the spraying. Along with that, there are at least three other necessary steps so that a session of the National Narcotics Council can issue a resolution finding that the program can be renewed, or that the suspension resolution of 2015 can be withdrawn, says Isabel Pereira.

One of those prerequisites is that the Justice Ministry, which regulates the spraying program, must issue an order. It’s in that document that the government is trying to comply with all of the demands imposed by the Constitutional Court with regard to health risks, environmental risks, monitoring and auditing the spraying program, such as handling the possible complaints regarding effects of the spraying, along with other aspects. The Justice Ministry published that order on December 30, 2019 on its web page, and it remained there for a month so that citizens could comment.

After that process, nobody has heard anything about it again. A source that is familiar with the process for this order from the Justice Ministry told this newspaper that the order had already received around 50 citizen observations and comments, which has delayed the final approval. But when it receives the green light, for example, with the PMA, it’s just a question of issuing the signed order, which is ready after having been amended as a result of the citizen comments.

Besides those regulations, there also have to be two studies of environmental effects and health effects. The first is the responsibility of the Ministry of the Environment, and this newspaper has been told that it is complete and ready to go. The second, which is the responsibility of the National Health Institute, is still not complete. Of the six geographic nuclei in this country where they are planning to re-start aerial spraying, the Institute has completed studies of only two. With that, beginning the spraying program could only be authorized for those two areas that have been studied, and not the other 104 municipalities where it is planned.

With those favorability studies with the PMA approved by ANLA, and with the order from the Justice Ministry, then the Justice Ministry could call a session of the National Narcotics council to issue the new resolution that would finally approve the spraying area for Colombia. At that time, it isn’t very likely that spraying will not be authorized, because a majority decides it and government ministers hold six of the nine seats. The National Police, the Attorney General’s Office, and the Inspector General’s Office occupy the other three. Of those, only the Inspector General’s Office has objected to the spraying policy. Nevertheless, the decision has to be ironclad, because if it isn’t, it would be susceptible to being challenged before the Council of State, which could either not allow the program to get going, or it could overturn it months after the airplanes got off the ground. “It could get through the whole government and still not be able to spray a single drop of glyphosate out of an airplane,” said Attorney Alirio Uribe.

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