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RUEHCV/AMEMBASSY CARACAS 9293
RUEHLP/AMEMBASSY LA PAZ SEP LIMA 5370
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RUEKJCS/SECDEF WASHDC

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 
 
-------------------------------------- 
 A Patchwork of Government Obligations 
-------------------------------------- 
 
¶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. 
 
------------------------- 
Types of Consulta Previas 
------------------------- 
 
¶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. 
 
---------------------------------- 
Issues in the Consultation Process 
---------------------------------- 
 
¶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