For project developers in Colombia, prior consultation can be the factor that determines whether an investment moves forward or remains stalled for years. Understanding when it applies, which rules govern it and what obligations fall on the project developer is not only a legal issue. It is a risk management decision that must be addressed from the earliest stages of the project cycle.
This article provides a structured summary of the current regulatory and case law framework, as well as the most relevant practical aspects for developers and operators of investment projects in sectors such as energy, oil and gas, infrastructure and agribusiness.
1. Regulatory framework
The prior consultation regime in Colombia is built on a chain of rules that includes international instruments, constitutional provisions, statutory laws and regulatory decrees.
ILO Convention 169, approved by Law 21 of 1991: This is the core international instrument recognizing the right of Indigenous and tribal peoples to be consulted on measures that may directly affect them. It is binding on the Colombian State and prevails over ordinary domestic legislation.
Political Constitution of 1991: The Constitution recognizes Colombia’s ethnic and cultural diversity under Articles 1, 7 and 70. It also recognizes the right of Indigenous communities to participate in decisions regarding the exploitation of natural resources within their territories under Article 330.
Law 70 of 1993: This law defines territorial and consultation rights for Black and Afro-Colombian communities, expanding the universe of groups entitled to prior consultation.
Decree 2353 of 2019: This decree grants administrative and financial autonomy to the National Authority for Prior Consultation —DANCP, by its Spanish acronym— strengthening the institutional framework of the process.
Presidential Directive 08 of 2020: This directive is the current methodological guide for the stages of the consultation process, from certification of presence to the closure of the process.
2. The key case law milestone: Constitutional Court Judgment T-039 of 2024
Until 2024, the certification of prior consultation applicability was a relatively predictable administrative procedure. Judgment T-039 of 2024 of the Constitutional Court changed that logic by recognizing the right of communities to participate from the determination stage, before the authority decides whether prior consultation is required.
This judgment redefines administrative due process at the initial stage of the project and introduces critical changes for investors.
Right to participate in the certification stage: Ethnic communities now have the right to intervene in the administrative procedure that determines whether prior consultation is required. This extends the process and increases the importance of early preparation.
Opportunity for early project adjustments: The Court states that early participation allows developers to adjust the project in time to minimize impacts and provide greater legal certainty for their activities. Paradoxically, early participation can be an ally for the developer if it is managed properly.
Duty to request local information: DANCP cannot rely solely on national databases. It must request information from local municipalities regarding the presence of communities in the territory to avoid defects in the administrative act. This may generate additional delays in the certification process.
3. Key concepts of “direct impact”
The duty to conduct prior consultation is triggered when there is a possibility of direct impact. This is not limited to the technical area of influence defined in the environmental study. Colombian case law has progressively expanded this concept.
Disruption of social dynamics: The interruption of rural paths or ancestral passageways may be considered a direct impact because it affects mobility, commerce and access to education. A recurring example in case law involves children who must cross heavy-traffic roads to get to school.
Impact on vital resources: Direct impact may include effects on water sources, streams, hunting areas, fishing areas and traditional medicine areas, even when these are not located within the project’s technical direct area of influence.
Broader territory versus titled land: Prior consultation may be required even when the territory has not been collectively titled or when the land is privately owned, provided that cultural rootedness and ancestral use are demonstrated.
Doubt in favor of consultation: When there is irresolvable doubt as to whether the impact is direct or indirect, the authority must prefer the broader participation mechanism. For developers, this means that in areas with ethnic presence, prior consultation is the likely scenario rather than the exception.
4. Reinforced due diligence duties for the developer
Case law has progressively increased the obligations of the project developer beyond simply requesting certification from DANCP.
Duty to report findings: The developer must immediately inform DANCP if it identifies the presence of a community that was not initially recognized, even after a certificate of “no presence” has been issued. Ignoring this finding may invalidate subsequent administrative acts.
Prohibition against assuming public authority functions: The developer cannot decide on its own that a community will not be affected. That assessment falls exclusively within the authority’s competence. Assuming that role exposes the developer to the nullity of the process.
Transparency as a standard of conduct: Failure to exercise due diligence in identifying communities may cast doubt on the company’s good faith and may lead to the annulment of administrative acts related to the project, including the environmental license.
5. Legal risks and judicial remedies
The mechanisms for protecting the right to prior consultation have direct effects on project execution and viability.
Constitutional tutela action: This is the main judicial mechanism for protecting the right to prior consultation. It may be filed at any stage of the project and may have immediate effects, including the suspension of ongoing works while the omitted consultation process is carried out.
Ethnic reparations: If the project has already been completed or is significantly advanced without prior consultation, the judge may order a consultation process to define reparation measures with an ethnic approach for the damages caused. This may lead to significant economic and compensatory obligations.
Burden of proof favorable to the community: Although communities must provide minimum evidence, the tutela judge has an active role and may apply a presumption of truth in favor of the community if the developer fails to disprove the alleged impacts with objective technical evidence.
6. What the developer should do before requesting certification
Developers that begin the certification process without prior preparation assume avoidable risks. The following actions, taken before filing the request with DANCP, can significantly reduce the likelihood of litigation that may paralyze the investment at advanced stages.
Conduct an ethnographic and cartographic study of the expanded area of influence, including communities located outside the project’s technical polygon.
Consult municipal authorities and local ombudsman offices in the project area regarding the presence of ethnic communities, and document that consultation in writing.
Document all findings, including negative findings, as evidence of good faith before the authority and potential tutela judges.
Establish a communication channel with DANCP from the prefeasibility stage, before project design decisions become irreversible.
Involve the social management team from the beginning of the project, not only when a conflict arises.
Corporación Bioparque supports project developers during the social due diligence stage, including ethnographic studies, coordination with DANCP and management of the prior consultation process.
Contact us at corporacionbioparque.org