Source: El Espectador

By: Edwin Novoa and Laura Montaño – NGO Ambiente y Sociedad 

2020 began with debates and questions about a fundamental right of the indigenous peoples and other ethnic groups in Colombia: prior consultation. The questions included: What are the problems that prior consultation currently faces? What are the solutions that have been found around the world to solve those problems? How do the protocols work for a prior consultation process? These aren’t necessarily new questions and they don’t address the root challenges for these population groups during prior consultation. That is why it is important to ask other questions.

What do sectors that see prior consultation as an obstacle expect from the process?

At the beginning of the year, a new bill was presented to regulate prior consultation in Colombia. As in many previous occasions, the idea was to create or find a formula that facilitates a company’s or the State’s ability to go into a territory with certainty. As is often heard, how can it be assured that there won’t be “any inconveniences with the project” in the future if the process advances. This search for certainty is based on a repeated assumption: there is a formula to carry out a “successful” prior consultation. However, this signifies from the start that the autonomy of Colombia’s numerous indigenous and Afro-descendant communities is not recognized. It ignores that we are a pluricultural country, and seeks to see ourselves operating within a single model. This will always come up short.

This vision that prior consultation –and, in general, citizen participation– is an obstacle to development projects, and the idea that it should be eliminated, is reflected in the prior consultation bill that is expected to be presented during this legislature, an action that was postponed due to Covid-19.

The bill was written by the Cambio Radical party and they propose limiting the prior consultation process to six months. This eliminates the possibility of an intercultural dialogue, reduces the timeline for the consultation process, and requires reaching an understanding between the parties in fixed time period, instead of using the timelines required by each community according to its worldview.

Prior consultation is basically a dialogue between different, and maybe even opposing, ways of seeing the world: on the one hand, western thought that advocates for a development that uses natural resources to generate earnings and capital, and that of first nation cultures, or cultures that are closer to their ancestral roots, which often prioritize harmony between society and the environment. Reaching a point where these visions coincide is a complex task, it can take years or even decades and, in large part, it depends on how assimilated a given vision is to western thought. Limiting the process to six months makes it impossible to have this cultural exchange and seems to be an attempt to turn the consultation into a mere presentation of information.


The regulatory bill mentions that a consultation protocol can be carried out even if an agreement has not been reached. The consultation protocol is the final phase to register the agreements. This would also occur even if the minimum number of meetings weren’t achieved. Additionally, if the community is summoned, but, for some reason, it could not attend, the prior consultation is understood to have been completed and the construction, project, or activity may move forward. This means that the companies would not have to even try to reach an agreement, but instead could simply wait for the six months to pass, conclude the project’s prior consultation phase, and carry out the project.

The biggest blow to the right to prior consultation is, perhaps, the bill’s specific list of activities that would not require consultation. For example, the list includes anything related to land use management, even though the Constitutional Court already ruled that this does require consultation (ruling T-499 of 2018). The same applies to other activities on the list. Additionally, ILO Convention 169 is not based on lists of activities, but indicates that any development activity that generates an impact in ethnic territories requires prior consultation.

Prior consultation in the covid-19 era

The world is focused on how to overcome the covid-19 health crisis and, one thing that has been seriously affected by social distancing is prior consultation. This is a tool that, by definition, obligates people to be close to one another, to see and understand the life and vision of others. In this scenario, indigenous territories have been closed to reduce the risk of infection. Due to this context, adjustments were proposed for the consultation process. In external memo CIR2020-29-DMI-1000 from 27 March, 2020 (revoked 22 April), the Ministry of the Interior ordered a suspension of all in-person actions and activities for prior consultation processes during the obligatory and preventative isolation. Hence, it recommended, promoted, and permitted the use of technological tools and virtual channels to carry out prior consultations. And it dictated that, once the obligatory and preventive isolation measures were lifted, the previously agreed upon prior consultation activities in the field will resume with normality.

A few days prior, that same Ministry established, by means of document OFI2020-8470-DCN-2300, that, in reference to the bill to regulate the General Royalties System, that consultations for this Bill would be carried out virtually, using technological platforms but without taking into account the following: the requirements to consider a consultation valid, the minimum criteria to determine when participation is valid, how this will be carried out in a country where almost 50% of the national territory doesn’t have internet connectivity, and how the communities’ effective participation will be guaranteed. These directives seek to guarantee that for Ministry of the Interior employees have access to the available online tools.

This measure, considered cutting-edge, seems to accompany a letter that the business sector sent to the president on 3 April, 2020 recommending the application of several economic and political measures so that the country’s development does not come to a halt during the pandemic. One emphasized “approving abbreviated procedures for issues that are currently curbing development, procedures such as royalties, prior consultation, and environmental licenses, that, without violating the legal system, can be have a simplified application to increase and accelerate productivity in strategic sectors that favor the country’s economic development.”

Limitations on fundamental rights

What is the aim of the Ministry of the Interior’s measure and what are the implications for communities’ fundamental rights? First, it is clear that some measures directly contradict their rights, as many social organizations have expressed. Prior consultation is not just a procedure, as it is erroneously categorized in Ministry communications, nor does it stop the country’s productive development, as is perceived by the business sector. Prior consultation is essential for communities to exercise their autonomy and self-government, and it seeks to build sustainable policies and projects, based on vast cultural knowledge and a real dialogue between stakeholders. Almost 30 years after the Political Constitution was consecrated, it continues to be forgotten that Colombia is a pluricultural country.

There is also a growing sensation that the government and the State do not understand the reality of people living in outlying regions of the country. This is seen in the proposals and standards launched in the context of covid-19 regarding social issue, in particular policies such as online prior consultation. The Ministry of the Interior sought “to show up” virtually since it had done so minimally in-person. It claimed that the communities had the capacity and were prepared to have conversations and meetings to discuss projects, when the reality is that not even basic State services have reached these territories; much less, high-quality internet networks that guarantee participation. The Minister repealed the measure on 22 April, when she was forced to recognize that it clearly wasn’t viable.

On the other hand, according to the Ministry, informing a community about a project and presenting some reparation commitments are considered to be sufficient conditions for a prior consultation. If we understand consultation as a merely informative proceeding, as the Ministry proposes, a voice memo, pdf, or Power Point presentation would be sufficient. However, we aren’t talking about a procedure but a right, so their policies are a setback and openly unconstitutional.

Let’s rethink the prior consultation processes during quarantine. We propose measures that guarantee community participation under equal conditions, that is to say, true participation that guarantees the protection of public health for community members. It’s time to turn government innovation and impetus into steps that guarantee the enjoyment of rights, instead of allowing the emergency to infringe on these rights.

Lastly, it is surprising that the Ministry of the Interior’s external memos have yet to be published. This is a violation of our right to access information, given that the Ministry’s last published regulations are from November 2019 (as can be seen in the image, there aren’t any regulations that can be consulted from 2020). With this precedent, how are we to trust its rigor regarding an online prior consultation? Or that the Ministry’s own platforms are updated and guarantee our right to access information? Or trust the measures implemented during the State of Emergency?