ABColombia Partner Tierra Digna win landmark decision on Prior Consultation

On 15 May 2015, as a result of an Annulment Action submitted by ABColombia’s partner organisation Tierra Digna, the Colombian Council of State, the country’s highest administrative court, suspended three executive decisions demarcating 516 specific zones as “Strategic Mining Areas”.

Over the last decade Colombia has moved in the direction of facilitating Foreign Direct Investment in mining to the extent of creating areas known as ‘Strategic Mining Areas’ to auction to Multinational Corporations. ‘Strategic Mining Areas’ threaten to circumvent the right of Indigenous and Afro-Colombian Peoples to prior consultation.

By the end of 2010, 59 per cent of Colombian territory was either under concession or had mining applications pending. The National Indigenous Organisation of Colombia (Organización Nacional Indigena de Colombia – ONIC) reported that 80 per cent of concessions for the implementation of economic projects in their territories were granted without prior consultation.

In 2012 the government passed Resolution 18, 0241 of 2012 and Resolution 0045 of June 2012 and in 2013 Resolution 429 of 27 June 2013, these form the legal basis for ‘Strategic Mining Areas’. Of particular concern was that the 2012 Resolutions quoted a decision of 20 February 2012 made by the Directorate for Prior Consultations of the Ministry of the Interior (Dirección de Consulta Previa del Ministerio del Interior). The language used by the Directorate suggests that the winner of the concession would be charged with the process of consultation and that this consultation would be carried out only after they had won the contract.

On 15 May 2015, Colombia’s Council of State, the country’s highest administrative court, suspended the three executive decisions demarcating 516 specific zones as ‘Strategic Mining Areas’. These strategic mining areas overlap into indigenous, Afro-descendant and campesino territories, and were demarcated without any prior, free and informed consent of the communities affected.

The Strategic Mining Areas cover 20,471,346.7 ha, approximately 20.3% of Colombia’s land. The various areas that the national government demarcated as ‘strategic mining areas’ in order to auction them to private enterprises for large-scale mineral exploration and exploitation, will alter the productive land use. Furthermore they include areas with important ecosystems, rich in biodiversity and important for environmental conservation namely: Chocó, the Amazon and the Colombian Massif. Chocó and the Amazon are two of the most bio-diverse regions on the planet.

The Council of State temporarily suspended the Strategic Mining Areas in response to an annulment lawsuit filed by Tierra Digna.

The lawsuit challenged the legality of the following governmental decisions and as a result the Council of State suspended 3 executive decisions which form the legal basis for the “Strategic Mining Areas”:

• Executive Decision (Resolution) 18, 0241 of 24 February 2012, issued by the Ministry of Mining and Energy
• Executive Decision (Resolution) 0045 of 20 June 2012, issued by the National Mining Agency
• Executive Decision (Resolution) 429 of 27 June 2013, issued by the National Mining Agency

In its ruling the Council verified that there had been a violation of ethnic communities’ fundamental right to prior consultation. As such, the ruling also upheld the State’s obligation to guarantee prior consultation in all administrative measures and decisions that seek to implement development plans and mining extraction in Indigenous and Afro-descendants’ collectively owned land.

More Information:
• Tierra Digna Press Release in English and Spanish.

• For more information on the Strategic Mining Areas, read ABColombia Report “Giving it Away: The Consequences of an Unsustainable Mining Policy in Colombia”.