Manual for the application of Prior Consultation

March 8th, 2024

On March 6, 2024, the Ministry of Energy and Mines (the “MEM”) issued the manual for the operationalization of free and informed prior consultation (the “Prior Consultation”) for administrative measures in mining concessions (the “Manual“), which includes the constitutional standards for the execution of prior consultation in application of the provisions of the Constitutional Court in its decisions on the matter and International Law Public.

Prior consultation shall be mandatory prior to the issuance of administrative measures for exploration and exploitation in mining concessions located on the lands of communes, communities and indigenous nationalities that may affect them environmentally or culturally. The latter will be the consulted subjects and the MEM will be the consulting subject. The MEM will finance the Prior Consultation and may contract qualified technical suppliers for the logistics of the process.

Prior Consultation shall be governed by the principles of obligation and timeliness; flexibility, good faith; interculturality and pluractionality; systematicity and formality; publicity and information; reasonable timing; and comprehensive and necessary information. It is emphasized that during Prior Consultation, efforts should be made to establish agreements through dialogue and that the duty of accommodation will be applied.

The phases of Prior Consultation will be preparation; public call and registration; registration, reporting and enforcement; and analysis of results and closure.

For the identification of the consulted subjects, the MEM will determine the lands or territories and identify if there are any consulting subjects. To this end, the MEM will request information from the Ministry of Agriculture and Livestock and other public institutions, if necessary. The MEM may also carry out a technical visit. In addition, the Ombudsman’s Office will follow the process.

The invitation to the consulted subjects will be made through various means and in accordance with the cultural practices of the subject and their language. Information and registration centres will be opened, which will be responsible for guaranteeing access to information and will inform the consulted subjects of the scope of the corresponding administrative measure through methods that facilitate dialogue. If any group considers that it should be consulted, it must justify its request and the consulting subject must justify its decision.

The consulted subjects will carry out the Prior Consultation at the different levels of organization, based on their uses, customs, traditions and internal procedures for deliberation and decision-making, without outsiders intervening in the internal process. They may, however, seek technical and expert opinions if they deem it appropriate.

Once the results have been received, the consulting subject must compile and systematize the results of the Prior Consultation to undertand their concerns, demands and specific proposals. With the compilation of the results, a dialogue table will be set up between the consulted subject and the consulting subject. There, the parties will publicly discuss the results of the consultation and the criteria or opinions of the consulted subjects. A schedule of commitments between the parties and benefits for the consulted party (including compensatory measures, if applicable) may be defined, including the possibility of adapting, or modifying the initial design of a project.

Once the dialogue table has concluded, the consulting subject will prepare the final report of the Prior Consultation in which the consensus and dissents will be recorded. The consulting subject will maintain channels of communication and effective participation with the consulted subjects throughout the process of execution of the plan or project, so that they can always be heard, and their rights are respected.

The lack of attendance or participation in the Prior Consultation of the consulted subjects or the execution of deliberate actions that seek to prevent, suspend, or delay the execution of the Prior Consultation will not invalidate the consultation nor will it be interpreted as a reasoned opposition.

The results of the Prior Consultation shall be non-binding.

In cases where the State opts for the execution of a project even when there is no consent from the consulted subjects, it must (i) expressly justify the reasons why it has not been possible to adapt the project or modify it in accordance with the concerns, demands and proposals expressed by the consulted subject; (ii) expressly establish the objective reasons, reasonable and proportional criteria that justify the continuity of the project despite the majority opposition of the consulted subject; and (iii) specific measures that minimize the possible impact and maximize the benefits for the consulted subject.

The Manual shall not be applicable to administrative measures granted prior to the date of its issuance and may not affect acquired rights and consolidated legal situations.

If the execution of Prior Consultation is ordered by court order in a specific area or geographical zone, the consulting subject will strictly comply with its provisions. For this purpose, it may use the guidelines of the Manual.

For more information, please do not hesitate to contact us.

This bulletin contains a summary of legal developments of interest, and therefore cannot be considered as advice provided. If you have any concerns, please contact the team at AVL Abogados.



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