The Colombian government has been working to resolve issues that delay or hinder the execution of priority projects, many of which are in the mining-energy and infrastructure sectors. One of the key issues that needs to be addressed is the prior consultation with indigenous, Afro-Colombian, and Rom communities.
The Ministry of Environment and Sustainable Development has taken important measures to make the prior consultation process more efficient and effective within the environmental licensing process for projects. This is aimed at helping to speed up their implementation.
Current Framework
Colombia does not have a prior consultation law. The procedure has been carried out following instructions adopted through directives issued by the Presidency of the Republic. The jurisprudence of the Constitutional Court has also contributed significantly to determining the framework within which the fundamental right of communities to be consulted is guaranteed.
Important sentences include: T-733 of 2017, SU-123 of 2018, SU-121 of 2022, T-012 of 2025, T-393 of 2024, T-039 of 2024, T-472 of 2024, and the U’wa vs. Colombia case, which was decided by the Inter-American Court of Human Rights in 2024.
Procedure Developments
The directives have addressed the procedure issue, starting in 2010 with an informal protocol of seven phases. In 2013, it was modified to adopt five technical-legal stages, beginning with a certification of the presence of ethnic communities, which was issued by the Directorate of Prior Consultation of the Ministry of the Interior and allowed the representatives of these communities to be convened.
Read Also: Bogotá’s Tax Reforms Aim to Spur Urban Development
In 2020, the certification was suppressed, and a stage of “determination of the proceeding” of the prior consultation was created, based on the concept of “direct affectation” by the project. Also in that year, the “Proportionality Test” was included to establish management measures in case of disagreement, non-attendance, or representation conflicts.
The creation of the National Prior Consultation Authority through Decree 2353 of 2019 is noteworthy, as it gives this authority a role in the process beyond issuing certifications, as the Ministry did in the past. They have been working to improve the process.
Recent Developments
This background serves the purposes of Directive 06 of 2026, which contemplates an administrative closure of the Consultative Process. The new directive gives form and structure to the process, creates electronic files, considers the preclusion of stages, and delimits the representation of communities to avoid third parties delaying the process with innocuous purposes.
There is an obligation to use the Government Digital Policy to accelerate the exchange of information required in this process between the Authority and other entities, such as the National Land Agency and the Geographical Institute. If there is no agreement or consent, the Authority may convene an inter-institutional articulation meeting so that other entities receive the information and, particularly, in the case of environmental authorities, allow them to make a final decision on the project’s viability.
A special message from this directive is that consultation with ethnic communities is not a scenario for economic negotiation or a transaction of rights. The objective is clear and must be fulfilled with transparency and efficiency, directed by the National Prior Consultation Authority. The Authority is responsible for ensuring that the process is carried out in this manner.
Leave a Reply