Response of the Resguardo communities to imposed mining concessions
The Resguardo communities realized that they did not have equality of terms with the companies
to engage in a meaningful good faith consultation process. In this context they started to develop
a strategy to assert their rights based on the international rights framework and the jurisprudence
of the Colombian Constitutional Court. The asymmetry of information between companies and
the communities was reflected in the companies’ detailed resource maps and their studies of the
communities. The strategy adopted by the Resguardo was therefore to focus on documenting their
own situation. Community based baseline studies were undertaken using their own methodologies
and consisted of cultural, sociological, political, administrative and economic elements. The impacts
and risks of ancestral artisanal mining were compared with those of large scale mining; and the
Resguardo boundaries and features were also mapped, using GPS. Further, the ancestral mining
history of the Resguardo was gathered through collecting the stories and knowledge of elders. To
address intergenerational impacts children were involved in the education process, and the older
generations were involved to provide ancestral perspectives, and a historical perspective covering
500 years was elaborated.
In order to secure their way of life in the face of external threats the community developed its
own normative framework, including the development of an FPIC protocol, governing mining in
the Resguardo territory. Over a two year time-frame a process of collective construction involving
leaders and all sectors of the community led to the development of a normative framework consisting
of series of resolutions. These address: the nature of permissible mining operations; the role of
ancestral artisanal mining; specific zones to be excluded from mining; and the consultation and
consent seeking protocols which must be followed by all parties seeking to enter the territory.
This consultation and consent seeking framework is in harmony with ILO Convention 169, the UN
Declaration on the Rights of Indigenous Peoples and the jurisprudence of the Inter-American Court
on Human Rights. It seeks to ground the right to consultation on their customary laws and the
principle that they constitute self-governing territories. The framework serves to reduce the power
asymmetries by establishing that consultations must be conducted on the terms established by the
communities, with companies seeking to enter the area required to accept this normative framework
prior to engaging in consultations.
Resguardo FPIC Protocol
Under the consultation and consent protocol, all administrative acts, including the issuance of
concessions and environmental certificates, require prior consultation through traditional authorities.
As a result, prior to actually commencing mining operations up to six consultations may be required.
In order to exercise their right to consultation the communities are willing to be consulted in relation
to large scale mining. However, they inform companies that it is a waste of their time and money to
attempt to pursue mining in their territory, as they have made a predetermined decision to withhold
consent to large-scale mining or mining involving the use of cyanide or mercury.
Any external oversight of their decision-making processes is considered disrespectful of the
communities’ autonomy. Consequently as part of the communities’ consultation and consent protocols
decisions are taken without government or company representatives present in the community. The
normative framework also provides that if the community members are not happy with the decision
of their leaders a general assembly of the community is held to make a final decision. If there is
any evidence of manipulation of the process or of leaders, through financial or other means, the
consultation process is considered void, and consent deemed to be withheld.
The FPIC protocol was finalized in May 2012, and has yet to be applied in the context of a mining
project, as no prior consultations have been initiated by the responsible government agency.
Engagement with external actors on the basis of it is ongoing in the context of a proposed Water Plan.
The case is illustrative of the fact that in the context of fragile States such as Colombia, where
corruption and conflict are rife, companies have a heightened due diligence responsibility to verify
the existence communities and the impact of their proposals on their internationally recognized
rights. Otherwise they perpetuate State practices, and the corrupt model which facilitates them. If
companies wish to establish a new scenario of good faith engagements with indigenous peoples,
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Making Free, Prior and Informed Consent a Reality