GOC CONSULTATIONS WITH INDIGENOUS AND

UNCLAS BOGOTA 006535

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: PTER PGOV PREL ECON SOCI CO
SUBJECT: GOC CONSULTATIONS WITH INDIGENOUS AND
AFRO-COLOMBIAN GROUPS

REF: BOGOTA 2553


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Summary
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1. The GOC must consult with indigenous and Afro-Colombian
groups about actions that affect them pursuant to
international treaties, the Colombian Constitution, laws, and
court decisions. The GOC conducts 50-75 consultations per
year, 80 percent with indigenous groups and 20 percent with
Afro-Colombian groups. Most consultations are part of a
broader environmental permit process. Some GOC activities,
such as the eradication of illicit crops, require
consultations. Others, such as military operations, do not.
Indigenous groups complain a lack of clear guidelines means
developers sometimes "steamroll" communities in the
consultations process. End Summary

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A Patchwork of Government Obligations
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2. The GOC must consult ("consulta previa") beforehand with
indigenous and Afro-Colombian groups about GOC actions that
could affect them. This obligation derives from
International Labor Organization (ILO) Convention 169 on the
rights of indigenous peoples, Colombia's Constitution, laws
on indigenous and Afro-Colombian groups, Constitutional Court
decisions, and administrative decrees. The ILO Convention
only applies to indigenous groups and requires the GOC to
hold "open, frank and meaningful" discussions on activities
affecting them. The Constitution generally requires the GOC
"to engage the participation" of any citizen affected by its
decisions, and specifically requires consultations where the
exploitation of natural resources has an impact on indigenous
groups. Law 99 of 1993 extends the natural resource
consultation requirement to Afro-Colombian groups.


3. In 1998 the Ministry of the Interior (MOI) issued Decree
1320 to standardize the consultation process for exploitation
of resources in indigenous "resguardos" (which cover close to
31 million hectares or approximately one third of Colombia,
for the 1.4 million indigenous citizens) and Afro-Colombian
communal territories (which cover 4.7 million hectares, or
about five percent of the country, for the 4.3 million
Afro-Colombian citizens). Under the Constitution, the GOC
owns all subsurface resources, including those under
resguardos and communal territories. The GOC can directly
exploit the resources or contract with a private developer to
do so. The Decree requires that a project's "economic,
environmental, social and cultural impacts" be discussed with
affected indigenous and Afro-Colombian communities prior to
exploitation as part of an environmental permit process.


4. The consultation requirement, especially where the
government allows private parties to exploit natural
resources, is a source of controversy. Anthropologist
Constanza Ussa said many communities think the process gives
them a veto over projects. In fact, consultations do not
give indigenous or Afro-Colombian groups such power,
requiring only that the developer hear the communities' ideas
on mitigation or compensation. This misperception creates
friction and means part of Ussa's job is educating
communities on legal requirements for consultations.

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Types of Consulta Previas
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5. There are typically 50-75 consultas previas per year
according to Sorelly Paredes, director of the MOI's
Indigenous Affairs office. 80 percent are with indigenous
groups and 20 percent with Afro-Colombians. Paredes said
consultations with indigenous groups are generally more
successful because the indigenous are better organized.
Pastor Murillo, director of the MOI's Afro-Colombian Affairs
office, agreed consultations with Afro-Colombians can be
difficult because their organizational structures are often
weak. Murillo said the poorly defined boundaries of
Afro-Colombian communal territories also create doubts about
whether projects affect Afro-Colombian communities (reftel).


6. 70 percent of all consultations involve obtaining an
environmental permit from the Ministry of the Environment,
Housing and Territorial Development (MOE). Environmental
permits are required for projects with significant
environmental impacts, usually hydrocarbon exploration or
extraction. The MOI advises the MOE whether a project is in
a resguardo or communal territory, or within 5 kilometers of
one. If so, the project developer must hire consultants to
evaluate impacts, develop alternatives, and consult with
affected communities. Developers are required to compensate
affected communities for damage caused by the project. The
MOI's Indigenous Affairs office or Afro-Colombian office
usually acts as the community's advocate in the
consultations.


7. The MOI coordinates consultations for projects where
environmental permits are not required, typically government
construction of roads or military bases. These represent 20
percent of all consultations. Usually such projects are
outside a resguardo or communal territory, but have the
potential to affect the community. The MOI analyzes project
impacts and options, but the GOC is not required to
compensate affected communities. Still, given the
"political cost" of government projects opposed by local
communities, Paredes said the GOC usually tries to placate
communities by adding infrastructure projects that they want.



8. Finally, about ten percent of consultations involve GOC
eradication of illegal crops in indigenous or Afro-Colombian
areas. In 2003, the Constitutional Court ruled the GOC must
consult with indigenous communities before eradicating
illicit crops within resguardos. The MOI acts as an
intermediary between the community and the GOC. It advises
the community that illicit crops are growing within their
resguardo, and lets them decide if the crops will be
eradicated manually or by aerial eradication. If the
community chooses manual eradication, it can do the
eradication (monitored by the GOC) or let the GOC do it.

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Issues in the Consultation Process
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9. Ministry of Defense (MOD) Directive 16 of 2006 states
that public forces should contact indigenous authorities
before entering their resguardo, "unless" security concerns
militate otherwise. Paredes said the authority of the GOC to
enter resguardos and communal territories derives from the
GOC's constitutional right to preserve security and national
integrity. A parallel MOD Directive for Afro-Colombian
communities (Directive 7 of 2007) lacks the provision that
public forces should contact community authorities before
operations. Still, the Directive says public forces should
preserve the integrity of territorial communities and respect
the human rights of the inhabitants. Murillo said Directive
7 does not require public forces to contact Afro-Colombian
authorities because communal territories have fewer legal
rights than resguardos.


10. Ussa said there are inherent conflicts in the
consultation process. Experts who evaluate projects impacts
are often paid by the project developers. Ussa thinks it
would be better to have an independent body of experts
employed by the GOC assist communities in the process. She
said the MOI's role as a community advocate is also
problematic as the GOC is often involved in the project. In
the case of gas and oil projects, the salaries of MOI
community advocates are paid by GOC-owned oil and gas
companies. Paredes conceded having the interests of
indigenous and Afro-Colombian groups represented by people
paid by project developers is a "delicate issue," but
insisted the groups trusted the MOI to represent them fairly.



11. Ussa said Decree 1320 creates more problems than it
solves. She said that because the decree lacks clear
guidelines, it makes it easier for project developers to
"steamroll" communities. Hired experts turn out "quickie"
analyses, community meetings are set-up on short notice, and
communities often do not understand what they are agreeing
to. Indigenous congresswoman Orsinia Polanco echoed this
complaint. Polanco's staff claimed consulta previas often
consist of project developers inviting communities to a

picnic, asking them to sign a receipt for food and drink, and
then later showing the signed documents as proof that
consultation took place. Indigenous groups sometimes claim
developers mislead communities about projects, provide
inadequate compensation, and bribe community leaders to
sign-off on projects.
Brownfield