CHAPTER 2 PRIOR CONSULTATION IN MINING AND HYDROCARBON PROJECTS: COMPARATIVE EXPERIENCES IN COLOMBIA AND CANADA

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment
(Apr 2015)
CHAPTER 2
PRIOR CONSULTATION IN MINING AND HYDROCARBON PROJECTS: COMPARATIVE EXPERIENCES IN COLOMBIA AND CANADA
Alfredo Fuentes Hernández
Partner
Palacios Lleras
Bogotá
David R. Percy, Q.C.
Professor
University of Alberta Faculty of Law
Edmonton

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ALFREDO FUENTES-HERNÁNDEZ is a partner in Estudios Palacios Lleras in Bogota, a boutique specialized Law Firm ranked by Legal 500 and Chambers Latin America. Alfredo's depth of experience includes representing private clients in complex and contentious administrative and litigation cases on matters such as mining and associated environmental and corporate social responsibility concerns. His scholarly interest lies in the area of international law of investment claims, and his course at the University of Los Andes Law School deals with arbitration and other mechanisms for protecting foreign investors. He is presently an Arbitrator of the Center of Arbitration and Conciliation of the Bogota Chamber of Commerce, accepted in the "List A" conformed by senior arbitrators; as well as an Associate member of the Chartered Institute of Arbitrators, CIArb. Prior to his present law practice, Alfredo served as Dean at Los Andes Law School, as Secretary General of the Andean Community of Nations and head of its Legal Department, and as CEO of a Mining Foundation in Colombia. He graduated as a Lawyer at Los Andes, has an LL.M. from Harvard University Law School, and a Master of Arts in Economics from Boston University.

PROFESSOR DAVID R. PERCY, Q.C., was Dean of the Faculty of Law from 2002 until 2009. In January 2010, he was appointed as the first holder of the Borden Ladner Gervais Chair of Energy Law and Policy at the University of Alberta. His teaching and research interests lie in two fields: Contracts and Energy and Natural Resources Law. He is co-editor of Contracts: Cases and Commentaries, now in its ninth edition and used at law schools across Canada, and three books on Water Law. He also teaches Oil and Gas Law and Water Law and has published extensively in both areas. He has acted as moderator for the Annual Research Seminar of the Canadian Energy Law Foundation in both Alberta and Atlantic Canada on more than 20 occasions. Between 2000 and 2002, he worked for the UN Food and Agriculture Organization in preparing legislation for commercial sustainable aquaculture in five African countries, and he prepared the Aquaculture Act of Namibia. David Percy has won teaching awards at the national, University, and Faculty Levels. In 2013, he was awarded the University Cup, the University of Alberta's highest recognition of faculty members who have excelled in teaching, research, and community service.

I. INTRODUCTION

It is always dangerous to engage in superficial exercises in comparative law, especially between countries with totally different histories. Colombia and Canada might seem to pose insurmountable obstacles in this respect. Colombia has a civil law legal tradition, Canada, with the exception of Quebec, is a common law jurisdiction. Canada and Colombia each emerged from completely different colonial traditions and have had radically different histories. These factors alone compel great caution in drawing useful analogies as a result of the application of even similar legal principles in the two countries.

Despite their differences, in recent times Canada and Colombia have begun draw significantly closer. They entered into a Free Trade Agreement in 2011 and Colombia is identified as a priority country in Canada's Strategy for Engagement in the Americas. Most importantly for the purposes of this paper, Canadian direct investment in Colombia now stands at almost $2.4 billion,¹ much of which is in Colombia's growing mineral sector. In the development of recent projects in their mineral industries, both countries have had to confront the reality that many of their resources are found in the traditional territories of historically disadvantaged indigenous peoples. In an effort to deal with the concerns of indigenous peoples and other communities, they have both adopted the principle of prior consultation as a basis for natural resources development. In Canada, prior consultation is known as the duty to consult and the two terms will be used interchangeably in this article.

Even in creating a duty to consult, Canada and Colombia have taken different routes, but both countries have now actively implemented consultation rules and policies. The main purpose of this paper is to examine each country's experience in dealing with the problems of consultation. Despite their different backgrounds, Canada and Colombia face many consultation issues that raise very similar practical problems. In Canada, the parameters of the duty to consult have been shaped by intensive litigation, which has explored almost every dimension of the duty. It is instructive to examine how each country has framed particular problems and the range of potential solutions they have considered. Although it is not possible to draw simplistic conclusions that might urge one country to adopt the other's solution to a particular problem, much practical insight can be gained from the different ways in which they have dealt with them.

In order to address these issues, this article will first address the different frameworks of prior consultation in Colombia and Canada. It will then consider institutional issues in Canada and Colombia, followed by a comparative analysis of jurisprudential guidelines in both countries. It will then conclude with some recommendations on the development of prior consultation in Colombia.

II. THE FRAMEWORK OF PRIOR CONSULTATION IN COLOMBIA

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1. The National and International Framework of Prior Consultation in Colombia

Prior consultation is an intercultural dialogue and consensus-building process that aims to ensure the timely, effective and legitimate participation of ethnic groups in decisions regarding legal measures (both legislative and administrative), projects or activities that affect them, in order to protect their ethnic and cultural integrity. This concept is mandatory in the Colombian legal system, and its implementation in the national territory is based on solid international, constitutional and legal grounds.

Prior consultation is instituted as a human right of indigenous and tribal peoples throughout the world. It is recognized by the United Nations through the ILO Convention 169 of 1989 ("ILO Convention"), which was incorporated into Colombian law by Law 21 of 1991. Pursuant to this Convention, governments must adopt measures and to sponsor intercultural dialogue and consensus-building procedures that guarantee, above all, that indigenous and tribal groups are able to enjoy fundamental human rights to the same degree as the rest of the population of the countries in which they live.²

The ILO Convention also enshrines the obligation to consult in good faith with concerned peoples through appropriate procedures and through their representative institutions, whenever measures, programs or projects that affect them are planned; especially in the case of legislative or administrative measures that might affect them directly, or projects involving the exploration or exploitation of natural resources on their lands.³ The objective of consultation is to ensure the effectiveness of the groups' social, economic and cultural rights, and respect for their identity, customs, traditions and institutions. Consultation is intended to enable these peoples to participate in the benefits of initiatives undertaken in their territories and to address their potential impacts.

The ILO Convention requires compliance in Colombia by virtue of the principle of pacta sunt servanda.⁴ As an agreement aimed at international recognition of the human rights of indigenous and tribal peoples, it forms part of the so-called "constitutional block," and occupies a preeminent place in the constitutional legal order, as established in Article 93 of the Constitution.⁵

Based on the ILO Convention and an expansive catalogue of constitutional standards that govern the matter, the constitutional jurisprudence is broad and settled in safeguarding the country's indigenous and tribal peoples. The Constitution of 1991 contains a set of legal standards, principles and tools that have been invoked to ensure the participation of these communities, preserve their existence as differentiated communities, and guarantee their identity as ethnic and cultural minorities. The

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fundamental pillar of this constitutional protection is contained in Article Seven, which states that "the State recognizes and protects the ethnic and cultural diversity of the Colombian Nation." Many provisions of the Political Constitution protect the right of participation of ethnic and cultural minorities.⁶ This paper will focus primarily on those that deal with the right of prior consultation and natural resource projects.

In this respect, Article 330 of the Political Constitution contains a paragraph of special importance. It provides that the exploitation of natural resources in the indigenous territories shall be undertaken without impairing the cultural, social and economic integrity of the indigenous communities. It also establishes that the Government shall encourage the participation of the representatives of the respective communities in the decisions that are adopted with regard to said exploitation.

The Constitutional Court, in explaining the nature of the intervention of public authorities in implementing this set of national and international commitments for the protection of indigenous and tribal peoples, has distinguished between two levels of impact, which activate different obligations of the Colombian State. The first level corresponds to policies and measures that have a general impact on...