The Previous Consultation process in Colombia is a fundamental right guaranteed by the Colombian Constitution to ethnic minorities, but its incomplete regulation and enforcement are generating high levels of conflict for all stakeholders involved in mining projects.
The problem origins because different stakeholders hold conflicting perceptions about the nature of mining, its role for development, the definition of development, and the purpose, legal boundaries, and instrumentality of consultation as a means towards that development.
In turn, these perceptions frame the concerns that each stakeholder holds regarding the consultation process, the audition stage, and the government role in this issue. Different concerns mean mismatching objectives, and the advocacy for solutions that are not necessarily considering the concerns of the other stakeholders. An example of this dynamic is the failed process of Consultation for Mining Law 1382 of 2010.
The Colombian government has shown great interest in developing the mining industry as one of its “five development locomotives” for creating new jobs and revenue for the economy. In order to attract foreign investors, a new legal framework was developed and arranged in the Law 1382 that was approved by the Colombian Congress in 2010.
In 2011 a group of academics, NGOs, and indigenous representatives started a legal procedure to repeal the law under the premise that it did not comply with the constitutional requirement of Previous Consultation with ethnic minorities – a mandatory requirement that is triggered when their interests are considered to be affected by any new law. In sentence C-366 of 2011 the Constitutional Court acknowledged the lack of a consultation process and declared the Law 1382 unconstitutional. Since the Law 1382 contemplated improved environmental standards, the Court conceded the government a period of two years for fulfilling the required consultation process and thus amending the law.
The two years given by the Court came to an end and the process of Previous Consultation was not conducted to its end. Consequently, the law 1382 of 2010 was definitely declared unconstitutional and repealed, and the legal framework for mining returned to the former legal framework (Law 685 of 2001).
It is important to differentiate the legal rights to Previous Consultation of ethnic minorities (Indigenous peoples, Afro-Colombian communities, Islanders, and Rom), and that of other Colombians. Minorities hold the right to be consulted during the design and debating phase of a law, while the latter can only participate in specific consultation projects once that same law has been passed and regulated.
In essence, Previous Consultation is a constitutional safeguard that aims to preserve the cultural, social, and economic way of life of the different ethnic minorities in Colombia. Any project that may affect their way of living or their ancestral lands has to undergo through a process of consultation with these communities. The Consultation process has a standard procedure that is summarised as:
- Certification of existence of ethnic communities in the specific territory – Issued by the Ministry of Interior
- Participation of the ethnic communities in the production of the environmental studies
- Summoning to the Previous Consultation Audition, that is presided by the pertinent environmental authority
- Declaration of agreement or disagreement regarding the impact assessment and protection measures proposed in the management plan
- Making the decision public
- Monitoring of the decision
If there is no agreement, there is an extended deadline for discussion. If after the end of the extended period there is no agreement, it is formally stated as the result of the process, and the pertinent environmental authority will decide whether or not to issue an approval.
The environmental benefits of previous consultation – and of stakeholder participation in general – are many, but as expressed in a previous post, there is some concern that the interaction of institutional stakeholders with ethnic minorities can reinforce existing handicaps. This is especially true when there are sizeable differences of influence and power. Handicaps can be very subtle in nature, such as the language in which the interactions happen, but they strongly impact the perception of fairness of the process.
This situation is compounded by the traditional procedures of democracies – based on the rule of majorities. Policy-making and the tools designed by governments are often ill equipped to accommodate the needs and desires of ethnic minorities that have been largely segregated from the political and economic spheres.
In order to address these concerns, stakeholder analysis theory has produced a series of tools for advancing intercultural dialogues. The current best practice demands embracing principles of empowerment, equity, trust and learning. The intention is to facilitate mutual learning among stakeholders, and these principles should hold true even when participants hold very different knowledge systems.
However, research on stakeholder participation has tended to privilege its process mechanics over its outcomes, and these tools tend to presume the existence of some ethical common ground among participants. So the question is how well they really work when there are present radically different moral systems and cultural values, which is the case of previous consultation of ethnic minorities for mining projects.
Field research and qualitative data analysis from Colombia suggest that:
- Minorities focus on their desire to have a real say in the projects, and especially to achieve binding agreements,
- The mining companies focus their interests on having fast consultation processes. For the mining companies, current Consultation processes take too long and are delaying project definitions.
- Minorities complain that they are labelled as enemies of development when they oppose specific projects, and when they take long times to reach agreements.
- Minorities, government and mining companies share the concern that regulatory uncertainty fosters illegal mining operations.
There are other issues that are less visible but that have a profound impact on the effectiveness of the Consultation mechanism:
- There is an administrative bottleneck at the Ministry of the Interior because it is required to run all the consultations in the country with limited resources available. This is seen as a big impediment for a fast consultation process.
- When governments and investors have an interest in quick participation processes, and local communities face administrative bottlenecks for advancing them, there is a clear incentive for offering or demanding tokens (like a new school, or a bridge, or employing locals) in exchange for cooperation.
- Minorities face a disadvantage because the process is conducted in Spanish – Colombia’s official language. Indigenous representatives often have a limited use of this language and sometimes do not speak it at all.
- Another disadvantage appears when mining companies and government can afford the best lawyers and engineers, while minorities cannot.
- Some NGOs are supporting ethnic minorities with legal advice and advocacy, but it is not clear whether they are helping the minorities or advancing their own agendas.
- The government complains about a lack of reliability of the minorities’ representatives.
The conflicted nature of Consultation for mining projects is acknowledged by all stakeholders, and they all are aware of the need to conduct a debate to produce clear definitions and agreements in order to solve it. In this regard, the Government is working towards the development of a new law that incorporates many of these issues, but so far this project has not been officially presented.
Within this context, the passing of Law 1382 of 2010, its failed consultation process and its subsequent repeal, is a symptom of a structural failure to accommodate true dialogue among conflicting stakeholders. The repeal of the Law is an example of communities asserting their agency to reject regulations that – despite having higher standards of environmental and social protection – are in disagreement with their conception of development.
The conditions for a meaningful dialogue about these issues are not set. There is a need to develop an intercultural dialogue within a framework that facilitates true communication and equity. The data suggests that given the conflicting visions of development, the likeliness of engaging in a true dialogue is remote.
The worldviews and positions of the different stakeholders are in strong opposition in many areas, and it is unlikely that they would have reached an agreement within the timeframe set by the Court.
Until agreements are reached over these fundamental issues, any new attempts to pass laws or reforms to the Mining Code risk facing similar problems as those faced by Law 1382 of 2010, and the conflict between worldviews risk being perpetuated with all the negative effects that this entails.