Through Presidential Directive No. 8 of September 9, 2020 (the “Directive”), the Colombian President amended the Presidential Directive 10 of November 7, 2013 (the “Directive 10”), establishing a guideline that shall be applied by all the public entities involved in the prior consultation process.
The main modification included in the Directive is the elimination of the certificate of the presence of communities, and its replacement with an administrative act issued for the Office of the National Authority of Prior Consultation of the Interior Ministry (“Dirección de la Autoridad Nacional de Consulta Previa or “DANCP” as per its acronym in Spanish) determining if the prior consultation process is necessary or not, which has been performed since the creation of the National Authority of Prior Consultation by means of Decree 2353 of 2019.
In general terms, the Directive establishes that the prior consultation process is composed of five (5) stages:
1. Determinate the needed of the prior consultation;
2. Coordination of the prior consultation activities;
3. Pre-consultation;
4. Prior consultation; and
5. Monitoring and follow-up to the agreements.
These stages have the following characteristics:
Determinate the needed of the prior consultation
In this stage, the DANCP will review if the project, work, or activity requires to conduct prior consultation process as it directly affects the ethnic communities, for which the DANCP shall:
The main modification included in the Directive is the elimination of the certificate of the presence of communities, and its replacement with an administrative act issued for the Office of the National Authority of Prior Consultation of the Interior Ministry (“Dirección de la Autoridad Nacional de Consulta Previa or “DANCP” as per its acronym in Spanish) determining if the prior consultation process is necessary or not, which has been performed since the creation of the National Authority of Prior Consultation by means of Decree 2353 of 2019.
In general terms, the Directive establishes that the prior consultation process is composed of five (5) stages:
1. Determinate the needed of the prior consultation;
2. Coordination of the prior consultation activities;
3. Pre-consultation;
4. Prior consultation; and
5. Monitoring and follow-up to the agreements.
These stages have the following characteristics:
Determinate the needed of the prior consultation
In this stage, the DANCP will review if the project, work, or activity requires to conduct prior consultation process as it directly affects the ethnic communities, for which the DANCP shall:
- Receive the request filed by the parties interested in the project;
- Consult the information registered in different public entities which act as a part of the prior consultation process;
- Perform field visits to the project if the provided information is not enough;
- Answer the request within the following thirty (30) days after its filing; and
- Issue the administrative act which establishes if the prior consultation is required or not.
Pre-consultation
If the prior consultation is required, the interested party must initiate a dialogue with the authorities of each community to establish the methodologic plan to perform the prior consultation process.
For this purpose, the Directive includes the following activities to the pre-consultation stage established in Directive 10:
If the prior consultation is required, the interested party must initiate a dialogue with the authorities of each community to establish the methodologic plan to perform the prior consultation process.
For this purpose, the Directive includes the following activities to the pre-consultation stage established in Directive 10:
- It establishes a minimum term to convene the pre-consultation meeting within the following fifteen (15) business days after the request;
- When the parties reach a partial agreement, the DANCP will establish the pending matters of the methodologic plan.
Prior consultation.
In this stage, the interested party will dialogue with the communities, insuring their active participation.
Therefore, the following activities are included to Directive 10:
Therefore, the following activities are included to Directive 10:
- It establishes a minimum term to convene the first prior consultation meeting with at least fifteen (15) business days prior to its date;
- In the events where (i) the parties have reached an agreement; (ii) the communities’ representative authorities did not attend the meetings; and (iii) the conflicts related to the representation of the communities are not resolved; the DANCP shall apply the proportionality test in a maximum term of three (3) months.
The proportionality test will be applied by the DANCP to determine the required measures to prevent, correct, or mitigate the possible affectations that could be caused to the communities. For this, the DANCP will weight the right’s restrictions and the benefits generated by the performance of the corresponding project to the communities.
Monitoring and follow up to the agreements
Regarding the follow up of the agreements between the communities and the interested party in the project or activity, or to the measures set by the DANCP, this Directive includes the obligation of the environmental authority to follow up to the compliance with the environmental measure. The follow up of the remaining measure will be done by DANCP.
Monitoring and follow up to the agreements
Regarding the follow up of the agreements between the communities and the interested party in the project or activity, or to the measures set by the DANCP, this Directive includes the obligation of the environmental authority to follow up to the compliance with the environmental measure. The follow up of the remaining measure will be done by DANCP.
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