Through Presidential Directive No. 8 of September 9, 2020 (the “Directive”), the President of the Republic of Colombia adjusted Presidential Directive 10 of November 7, 2013 (the “Directive 10”) by issuing a series of guidelines that must be applied by all entities of the national order that intervene in the different prior consultation processes.
The main change introduced by this Directive is the elimination of the community presence certificate, which is replaced by the issuance of an administrative act issued by the Directorate of the National Prior Consultation Authority of the Ministry of the Interior (“DANCP”) regarding the origin or not of the prior consultation, which had already been carried out since the creation of the National Authority for Prior Consultation by Decree 2353 of 2019.
In general, the Directive establishes that the prior consultation process is made up of five (5) stages, which correspond to:
1. Determine the origin of the prior consultation;
2. Coordination and preparation of consultation activities;
3. Pre-consultation;
4. Prior consultation; and
5. Follow-up of the agreements.
Each of these stages is characterized in general terms by the following:
Determination of origin of the prior consultation
In this stage, it will be reviewed if the project, work or activity requires prior consultation to generate a direct impact on the communities, for which the DANCP Directorate must:
- Receive the request presented by the interested party in the project;
- Consult the information registered in different state entities to confirm the presence or absence of communities;
- Carry out a verification visit in case the information provided by the promoter is insufficient;
- Respond to the request within thirty (30) days of receipt; and
- Issue an administrative act stating whether or not there is room for prior consultation.
Pre-query
In the event that prior consultation is necessary, at this stage a dialogue will be held with the authorities of the communities to establish the methodological route through which the consultation will be carried out.
For this, the Directive adds the following activities to Directive 10 within the pre-consultation stage:
- A minimum term is established to convene the pre-consultation meeting within fifteen (15) business days following the request;
- When a partial agreement is reached, DANCP will fix the missing elements of the methodological path.
At this stage, a dialogue will be held to ensure adequate compliance with the duty to guarantee the participation of the communities.
For the above, the following activities are added to Directive 10:
- A minimum term is established to convene the first prior consultation meeting at least fifteen (15) business days in advance;
- In events where there is (i) lack of agreement; (ii) absence of the representative authorities of the communities; and (iii) lack of solution to the conflict of representativeness of the community, the proportionality test will be applied for a maximum term of three (3) months in order to determine the management measures to prevent, correct or mitigate direct impacts. that the communities may suffer, for which a weighting is made between the restrictions on rights and the benefits of the execution of the proposed activity or project.
In relation to the monitoring of the measures agreed between the communities and the project developer or established by the DANCP in application of the proportionality test, the duty of monitoring compliance with the environmental measures is transferred to the corresponding environmental authority. . DANCP will continue to monitor the other measures.