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Investment projects and the protection of indigenous peoples and territories in Colombia

May 2024
Latin American Policy 15(2)

DOI:10.1111/lamp.12339

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Authors:

Liliana Lizarazo Rodriguez

Vrije Universiteit Brussel

Philippe De Lombaerde

United Nations University (UNU)

Carolina Londono-Escudero

Uppsala University

This article addresses the protection of indigenous peoples and their natural habitats in Colombia when investment projects are planned or implemented. Special attention is paid to the mechanisms of prior informed consultation; and free, prior, and informed consent. The Colombian case is relevant because it is at the vanguard of protecting the rights of indigenous peoples and their territories, and it is home to tough policy choices, balancing indigenous rights, the environment (as a megadiverse country), and the economy (highly dependent on mining exports). From a law and sustainable development perspective, this article analyzes a novel combination of various statistical data sets and case law and includes tests of the outcomes of prior informed consultation processes and their interaction with environmental licensing based on regression analyses. The conclusions point to the scale of the use of the protection mechanisms, the patterns in the behavior of indigenous peoples and in the outcomes of the mechanisms, the need to reinterpret transaction costs, and the crucial role of the constitutional court.

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Content may be subject to copyright.

Received: 20 November 2023

Revised: 1 February 2024

Accepted: 15 February 2024

DOI: 10.1111/lamp.12339

ORIGINAL ARTICLE

Investment projects and the protection of indigenous

peoples and territories in Colombia

Liliana Lizarazo‐Rodríguez

|Philippe De Lombaerde

1,2,3

Miguel Andrés Lizarazo Carrera

|Carolina Londono‐Escudero

2,5

Brussels School of Governance, Vrije

Universiteit Brussel (VUB), Brussel, Belgium

UNU‐CRIS, United Nations University,

Bruges, Belgium

Department of Strategy, Neoma Business

School, Mont‐Saint‐Aignan, France

Facultad de Economia, Universidad de Los

Andes, Los Andes, Colombia

Department of Sociology, Uppsala

Universitet, Uppsala, Sweden

Correspondence

Philippe De Lombaerde, UNU‐CRIS, United

Nations University, Bruges, Belgium.

Email: pdelombaerde@cris.unu.edu

Funding information

European Research Council,

Grant/Award Number: 949690

Abstract

This article addresses the protection of indigenous peoples and

their natural habitats in Colombia when investment projects

are planned or implemented. Special attention is paid to the

mechanisms of prior informed consultation; and free, prior,

and informed consent. The Colombian case is relevant

because it is at the vanguard of protecting the rights of

indigenous peoples and their territories, and it is home to

tough policy choices, balancing indigenous rights, the

environment (as a megadiverse country), and the economy

(highly dependent on mining exports). From a law and

sustainable development perspective, this article analyzes a

novel combination of various statistical data sets and case law

and includes tests of the outcomes of prior informed

consultation processes and their interaction with environ-

mental licensing based on regression analyses. The conclusions

point to the scale of the use of the protection mechanisms, the

patterns in the behavior of indigenous peoples and in the

outcomes of the mechanisms, the need to reinterpret transac-

tion costs, and the crucial role of the constitutional court.

KEYWORDS

beneﬁt sharing, Colombia, environment, indigenous peoples, investment,

prior consultation, sustainable development

INTRODUCTION

The protection of indigenous peoples' (IP) rights depends on the constitutional model, and the

protection of the lands of ethnic minorities is increasingly interconnected with environmental

protection. Ecosystem preservation and conservation depend on how inhabitants use or exploit

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them. From a development perspective, governments struggle between adopting sustainable

economic measures to eradicate poverty and exploiting natural resources without crossing the

safe space to operate (Rockström et al., 2023). These governance challenges and constitutional

provisions reﬂect the value attributed to ecosystems and whether the value IP attribute to them

is recognized, in other words, whether ecosystems have mainly an economic value, an intrinsic

value, or something in between (social, cultural, or “existential”value for those who live in it)

(Davidson, 2013, p. 173). In Latin America, many constitutions recognize the right to a healthy

environment but also the sovereignty of states to exploit natural resources. Some constitutions

also recognize the “existence value”of ecosystems that IP attribute to nature (Davidson, 2013;

Krutilla, 1967); Ecuador's constitution gives an intrinsic value to mother Earth. Latin

American countries move between constitutions that seek a balanced model of natural resource

exploitation in a sustainable manner (anthropocentric model), constitutions that protect IP

lands and culture, and one constitution that incorporates an ecocentric model (Imhof

et al., 2016).

Colombia combines three elements of relevance for IP; ﬁrst, its constitution is generous in

terms of the protection of human rights, IP, and the environment (Gómez‐Betancur et al., 2022;

Macpherson et al., 2020; Sanabria‐Rangel, 2020; Wesche, 2021). Second, in terms of

sustainability, Colombia is the second‐most biodiverse country in the world after Brazil

(World Population Review, 2023). Third, in terms of the economic model, the Colombian

economy is very dependent on the exploitation of nonrenewable natural resources. Oil, coal,

and other mining products accounted for approximately 56% of exports in 2022 (DANE, 2022)

and are an important source of government income.

In terms of institutional design, Colombia has moved between the three main models of

sustainable development (Lizarazo‐Rodríguez, 2021a), depending on the government in power

and on the branch of power. First, the anthropocentric model, which seeks a sustainable

exploitation of natural resources even in IP territories, has been implemented by governments

over the last decades, aligning with a neoliberal economy. Second, some courts (Shapiro &

McNeish, 2021; Wesche, 2021) have backed the biocultural or biocentric model, which

promotes a development model receptive to the culture of IP (Chen & Gilmore, 2015;

Macpherson et al., 2020); this model seems to align with the government agenda since 2022.

Third, the ecocentric model seeks to preserve ecosystems by declaring protected areas; phasing

out activities that are considered as harmful, particularly mining and hydrocarbons; and

recognizing the rights of nature (Borràs, 2017; Rodríguez‐Garavito, 2020; Shapiro &

McNeish, 2021; Viaene, 2022); some international agencies and some courts and actors (often

promoting de‐growth) back this model, claiming that these options are the only possibility to

address the climate crisis and the loss of biodiversity (Buch‐Hansen & Carstensen, 2021;

Escobar, 2015; Garver, 2013; Hickel, 2020; Muniz & Cruz, 2015; Perkins, 2019; Sandberg

et al., 2019). These three development models are contradictory in many respects, including

from an economic theory perspective, which renders the institutional design a complex

endeavor.

Progressive approaches to the protection of IP in Colombia are grounded in several

international treaties.

Still, this progressive approach toward IP rights has not been absolute.

In 2016, Colombia, the United States, Canada, and Brazil made statements addressing different

aspects of the American Declaration on the Rights of IP (OAS, 2017). Colombia commented

on various articles (XX, XXIII, XXX) on the participation of IP in administrative and

legislative measures that affect them, consultation, and the prohibition of military activities in

indigenous territories. The comments mainly sought to clarify that the prior informed

consultation (PIC) should not be interpreted as a veto right of the IP.

The 1989 Indigenous and Tribal Peoples Convention (ILO, 1989) (ILO 169) is the core

convention that protects IP rights and lands. It sought to reconcile contradictory interests—

indigenous rights and environmental conservation, and investment promotion in their

LATIN AMERICAN POLICY

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territories. Although it follows biocultural or ecocentric approaches, ILO 169 falls short in

protecting IP; state agencies in charge of mining, energy, hydrocarbons, and infrastructure, as

well as some investors have contested the recognition of IP rights and lands. Some national

courts and the Inter‐American Court of Human Rights (IACtHR, CIDH in Spanish), have

upheld the IP rights when economic activities were planned in their territories. This tension

among actors defending different development models reveals how IP lands and rights have

been intrinsically connected to investment policies and why IP struggle for the free use (or non‐

use) of their lands and their natural resources (Kröger & Lalander, 2016; Robledo Silva &

Rivas‐Ramírez, 2020; Rodríguez‐Garavito, 2011; Zárate‐Toledo et al., 2019; Zaremberg &

Wong, 2018).

The global relevance of the Colombian (and Latin American) perspective lies in the fact that

ILO 169 is the only international treaty that recognizes IP rights over their territories, and only

24 states have ratiﬁed it. Of these, 14 state parties are Latin American

; one, Caribbean

;ﬁve,

European

; two, from the Asia‐Paciﬁc region

; and only one, African.

Furthermore, the

Colombian case has inﬂuenced the Inter‐American system of human rights by enlarging ILO

169 protection to Afro‐descendant communities. In Europe, the European Parliament (2018)

recommended that European Union member states and their partners uphold the rights of IP

and peasants

and ensure that their trade and investment policies and agreements respect them.

So far, no new ratiﬁcations or adherence have occurred in this region.

A deeper analysis of the Colombian case reveals the potential to integrate indigenous

priorities into investment projects for the exploitation of natural resources, which is crucial to

keep global economies within a safe space operating (Rockström et al., 2023). The focus is on

the mechanisms of PIC and free, prior, and informed consent (FPIC), used more in Colombia

than in other Latin American countries (Urteaga‐Crovetto, 2018; Zaremberg & Wong, 2018).

Although some literature points to the positive outcomes of these mechanisms for reaching

sustainable development aligned with indigenous interests, other authors consider them to be

ineffective (Guevara Gil & Cabanillas Linares, 2020; Hougaard, 2022; Schilling‐Vacaﬂor, 2019;

Wesche, 2021). The present analysis is, to our understanding, the ﬁrst that combines a law and

sustainable development perspective with quantitative evidence.

The article is organized as follows. Section 2reviews the literature, Section 3introduces the

Colombian case, Section 4presents the methodology and data, Section 5discusses the results,

and Section 6offers some conclusions.

LITERATURE REVIEW

The evolution of the three development models (anthropocentric, biocultural, and ecocentric)

and their implications for the recognition of IP rights in their territories reﬂect the economic

policies followed by the states. From a mainstream economics perspective, contributions on the

nature–economy nexus, in other words, how economic activities based on the exploitation of

natural resources could undermine future growth (Naveed et al., 2022), have not been linked to

the protection of IP rights and lands. The policies have mainly sought to tackle the link

between environmental degradation and economic growth via the environmental Kuznets

curve (EKC) (Faure, 2020; Naveed et al., 2022). Environmental economics have supported

environmental regulations that consider the environment as a scarce resource, the cost of

environmental degradation, and the economics of regulation. This model, highly contested, is

progressively moving toward sustainable economic development that promotes sustainable

economic growth, by reducing pollution, its repercussions, or both, with emphasis on energy

transitions and reduction of fossil fuel consumption (Ayres, 2008). This literature is mainly

known as green growth approaches (Rockström et al., 2009,2023; Steffen et al., 2015) that in

the policy arena materialized in the Sustainable Development Goals or the Green Deal

INVESTMENT AND INDIGENOUS PEOPLES

(Adamowicz, 2022; Barral, 2012; Bartels, 2013; Bosselmann, 2017; Lizarazo‐Rodríguez, 2021a;

Ossewaarde & Ossewaarde‐Lowtoo, 2020).

Meanwhile, the current ecological crises described by the planetary boundaries framework

(Rockström et al., 2009,2023; Steffen et al., 2015) have given more visibility to approaches

such as ecological economics (Garver, 2013; Hornborg & Martinez‐Alier, 2016;

Kronenberg, 2010; Martinez‐Alier, 2018) that focus on how to reduce material and energy

consumption and how to implement theories of degrowth (Akbulut et al., 2019). This approach

has frequently raised concerns about the approval of projects on indigenous lands, particularly

if they are connected to fossil fuel industries (Garver, 2013; Perkins, 2019). A systematic

literature review carried out on the use of the EKC over time shows how the economic analysis

of sustainability has mostly shifted to ecological economics and development economics

(Kronenberg, 2010; Naveed et al., 2022; Stern, 2004). This analysis is corroborated by a review

of law and economics journals, where the protection of IP and their territories has received

little attention. In fact, only one article reviews the case of indigenous lands in Brazil, but it

relies mainly on descriptive statistics and qualitative comparative analysis (Monteiro

et al., 2019).

A broader look at the law and sustainable development literature—with connections to

institutional economics, political economy, law and policy, or governance—reveals additional

insight. States with racial and cultural diversity seek an efﬁcient institutional design that reﬂects

the cultural diversity and addresses the economic challenges. Alongside producing “red lines”

in the form of (natural) reserves, the adoption of mechanisms for (local) participation in

development projects and policies has been put forward to balance between protecting IP lands

and promoting investment projects seeking to exploit natural resources in IP territories (Allard

& Curran, 2023; Bravo, 1997; De Sa, 2019; Petavratzi et al., 2022; Stetson, 2012).

There is no one‐size‐ﬁts‐all governance model; the way constitutions shape relations

between the state, the economy, and IP should be context‐sensitive (Broderstad, 2011;

Rodríguez, 2021; Urteaga‐Crovetto, 2018). In a context of indigenous communities, cultural

differences and conceptions of territoriality and land use (change) add complexity and fuel

tensions in the design of policies geared toward indigenous communities (Bauer, 2016). Such is

the case even if indigenous territorial conceptions are incorporated in contemporary policy

frameworks (Burke et al., 2023; Chen & Gilmore, 2015; Figuereido & McDonald, 2019;

Hanspach et al., 2020; Macpherson et al., 2020; Sajeva, 2015), such as the agency of IP when

designing the mechanism for reducing emissions from deforestation and forest degradation

(REDD) (Schroeder & González, 2019; Schroeder, 2010). Mixed results of such participatory

mechanisms have been reported worldwide. In Norway, the Sámi peoples have sought to

inﬂuence mining projects, but their effects vary signiﬁcantly from one project to another

because the relative importance of the indigenous population in the total population of a

municipality emerges as a crucial variable (Nygaard, 2016). Based on the Sámi case, Valkonen

et al. (2017, p. 541) conclude further that “indigeneity is not an ethno‐cultural, objectively

existing fact, but an act of framing and a political demand. The possible rights associated with

the category of indigeneity have increased its appeal among the local people of Northern

Finland and made it a more attractive idea for them to belong to the ofﬁcial indigenous people

in Finland, the Sámi.”Economic incentives can explain people's behavior, including in

indigenous contexts.

In Latin America, conﬂicts between indigenous lands and energy‐related activities are

frequent. Some empirical studies ﬁnd that PIC is not effective in preventing the expansion of

extractive projects in indigenous territories (Urteaga‐Crovetto, 2018; Zaremberg &

Wong, 2018). Yet, based on a typology of possible or desired outcomes of PIC (such as

preventing industrialized resource extraction on indigenous territories, redistributing economic

beneﬁts of resource extraction, and diminishing state repression associated with extractive

investment projects), these outcomes are often partially achieved (Zaremberg & Wong, 2018).

LATIN AMERICAN POLICY

The extraction of transition minerals such as lithium are is controversial because many are

developed in indigenous territories (Finn & Stanton, 2022; Marchegiani et al., 2020; Owen,

Kemp, Harris, et al., 2022; Owen, Kemp, Lechner, et al., 2022; Petavratzi et al., 2022).

In the Arctic region, beneﬁt sharing of indigenous communities in the context of extractive

industries has also been addressed (Britcyna, 2019; Wilson, 2019), and its effectiveness for the

protection of indigenous interests has been questioned, but these conﬂicts are not exclusive of

extractive industries. Energy transition investment projects are also a source of conﬂict. Some

disputes emerge because PICs are considered transaction costs for these projects; IP may also feel that

PICs are not conducted in due manner or there may be a lack of access to beneﬁt sharing in

monetary or affordable energy terms (Murgas et al., 2021; Ramirez, 2021; Zárate‐Toledo et al., 2019).

Regarding institutional design, some studies ﬁnd that constitutional or legislative protection of

ethno‐territorial rights from the possible effects of extractive industries shows positive outcomes

(Allard & Curran, 2023; Kröger & Lalander, 2016; Wilson, 2019). This de jure protection does not

guarantee de facto protection, but it can provide communities and social actors with more effective

means to defend their interests. These frameworks seem to be relatively more effective when private

companies develop the extractive project, compared to cases where the state is the principal economic

stakeholder (Kröger & Lalander, 2016). The Swedish case also illustrates the importance of the

institutional design (here, the non‐ratiﬁcation of ILO 169) for the protection of indigenous (Sámi)

rights (Tarras‐Wahlberg & Southalan, 2022). In Brazil, policy implementation has been questioned in

conﬂicts related to infrastructure works in the Amazon. It seems crucial to deﬁne which (directly

affected) areas should be considered, which communities should be consulted (Fearnside, 2015;

Ferrante et al., 2020), and how to make participation the most effective.

In Canada, although it has not signed ILO 169, the involvement of IP when their territories

are affected by investment projects has been widely discussed. First, IP being given veto rights,

as in the case of FPIC, has generated some resistance (Leydet, 2019). Second, an analysis of

Canada's infrastructure corridor projects concluded that the recognition of IP rights,

particularly FPIC, constitutes a transaction (economic) cost for investment projects, caused

by the mistrust of governments that obstruct a comprehensive participation of IP where they

share environmental jurisdiction. The increasing recognition of IP rights, including lands and

jurisdiction by courts, governments, and industry, has also been considered as a factor that

increases the transaction costs for the energy and resource infrastructure corridor (Le Dressay

et al., 2022). Still, the incorporation of the Declaration on the Rights of Indigenous Peoples

(UNDRIP) into legislation in British Columbia has been cited as a good example for countries

that have not adhered to ILO 169, such as Sweden (Allard & Curran, 2023).

In Canada, transactional arrangements have emerged that explicitly recognize cultural

identity and relations with ecosystems (Mason et al., 2012). The adoption of impact and beneﬁt

agreements (IBA) between companies and IP are frequent (Odumosu & Newman, 2021) and

are not free of objections (Cascadden et al., 2021). This contractual model has been assessed as

an option for the (paternalistic) model of ILO 169, particularly regarding beneﬁt sharing. An

assessment for Chile concluded that this contractual model is not a better option than the PIC

model of ILO 169 because it excludes support from the state and would leave IP in a more

disadvantaged position (Carmona Caldera, 2022).

Literature on indigenous entrepreneurship challenges the view that the “game”that is

played between a (potential) investor and a local community is necessarily one between two

players with incompatible preferences and strictly opposite interests, and where the interests of

IP are always to keep their lands and ecosystems untouched. Indigenous entrepreneurship

claims that it goes further than the passive beneﬁt‐sharing arrangements. Indigenous

entrepreneurship refers to indigenous persons or communities who experiment with forms of

organization to participate in the market economy by producing goods or services and improve

their livelihoods while respecting essential cultural parameters of their communities (Hindle &

Moroz, 2010; Mason et al., 2012; Peredo et al., 2004). Indigenous entrepreneurship was also

INVESTMENT AND INDIGENOUS PEOPLES

considered compatible with the World Bank's policy on indigenous people's (World Bank, 2005)

and ILO 169. Overall, there is enough evidence that globally there is a wide variation in the

willingness, capacity, modalities for indigenous entrepreneurship, and participation in

investment projects proposed by third parties (Anderson et al., 2006; Mason et al., 2012;

Peredo et al., 2004). Different readings of these new forms of economic participation are

obviously possible. Critical analysts have described, for example, how elite‐driven new political

technologies have dealt with local community opposition to extractivist projects by setting up

mixed public–private social corporations in Chile (Leiva, 2019).

Despite the variety of situations regarding the willingness of IP to adhere to or oppose investment

projects, the regulation of PIC and FPIC shows a growing juridiﬁcation of ethnic difference over the

last 30 years, as a way to manage globally the culture–ethnicity–economy nexus (Larsen &

Gilbert, 2020; Rodríguez‐Garavito, 2011,2019). These modalities vary in different national contexts

and cover different realities as to how participation of concerned communities plays out in practice

(Lawrence & Moritz, 2019; Rodríguez‐Garavito, 2011). In a Colombian and Latin American context,

the overall results have been qualiﬁed as ambiguous or mixed. While PIC does not fundamentally

alter power relations, it does not mean that substantive disputes are completely transformed into

procedural dynamics or disputes (Rodríguez‐Garavito, 2011), and limitations to indigenous

participation should not be underestimated (Flemmer & Schilling‐Vacaﬂor, 2016; Guevara Gil &

Cabanillas Linares, 2020; Hougaard, 2022; Schilling‐Vacaﬂor, 2019; Shapiro & McNeish, 2021;

Wesche, 2021). Another study on mining and hydrocarbon production in Colombia concludes that

PIC has served to represent IP interests and that the Constitutional Court has played an important

role by upholding such procedures (Jaskoski, 2020).

At least six building blocks can be identiﬁed from this literature review for an analysis of the

interaction between IP rights and development policies seeking to exploit resources located in

their lands.

•The cost–beneﬁt calculus of investment projects for investors, IP and territories, and society,

including methods to establish the extension of the affected areas, the economic cost of blocked or

delayed investment projects, and the need to incorporate costs and beneﬁts that cannot easily be

quantiﬁed or monetized, such as the intrinsic or existential value attributed to ecosystems by IPs.

•The effectiveness of participatory processes, meaning the relationship between design

features and incentive structures on the hand and outcomes on the other.

•The contractual approach to the state–indigenous community nexus, which means access to

beneﬁt sharing and the stability of agreements. Information and power asymmetries are

signaled as co‐determining the (skewed) distribution of the beneﬁts of investment projects.

•The regulatory approach to investor–state relations, meaning design options for the

incorporation of FPIC in negotiations (see Szoke‐Burke & Cordes, 2021).

•The (economic) behavior of IP, which covers the speciﬁcities of traditional indigenous

economic activity (e.g., small‐scale), the self‐identiﬁcation of IP driven by economic

incentives (explained by either behavioral approaches or rent‐seeking logics (see

Leeson, 2019), and indigenous entrepreneurship and participation in investment projects.

•The behavior of courts, and more speciﬁcally how economic variables inﬂuence (or not)

judgments related to the protection of IP and territories.

THE COLOMBIAN CASE

Constitutional design and legal framework

The Colombian Constitution (1991, art.7, 329 and 330) stipulates that IP territories are their

collective and nontransferable property; therefore, IP need to be involved in projects on natural

LATIN AMERICAN POLICY

resources located in their territories or in the subsoil. Furthermore, ILO 169 is part of the

“constitutional block”(Colombian Constitution, 1991, art. 93), this is, it constitutes an integral

part of the Constitution and has primacy over national laws and treaties ratiﬁed on issues other

than human rights. ILO 169 (ILO, 1989, art. 15) requires states to safeguard IP rights

connected to natural resources located on their lands and to guarantee their participation in

their use, management, and conservation. The Colombian constitution also adopted the option

given by the ILO 169 that allowed states to retain the ownership of mineral or sub‐surface

resources or rights to other resources pertaining to lands, under the condition that before

undertaking any activity in IP territories, the state organizes a PIC to enable IP to assess

whether and how their interests would be affected. In turn, IP have the right to explore whether

they can participate in the beneﬁts of such activities and receive fair compensation for harm

resulting from these activities. Yet, the information asymmetries in these events need a careful

assessment that integrates the recognition that IP give to their lands and ecosystems (Arsenault

et al., 2019). ILO 169 furthermore requires that states avoid undertaking the exploitation of

natural resources on IP lands when these activities may cause resettlement or serious

environmental degradation (Rodríguez, 2017). This model leaves no room for contractual

arrangements between investors and IP outside the regulatory framework of the PIC where the

state necessarily intervenes.

Prior informed consultation and free, prior and informed consent: Veto rights for

investment projects?

In Colombia, PIC and FPIC are considered as fundamental rights of IP and other ethnic groups

whenever a decision is to be made that may affect them directly or when projects are intended to be

carried out within their territories and may affect them directly (CCC, 1997). PIC materializes the IP

right to set their priorities within the development programs and projects that may affect them

(Rodríguez, 2021) or their values linked to the ecosystems at stake.

FPIC integrates within the cost–beneﬁt analysis (from an economic perspective) or

proportionality test (from a legal perspective) the various values attributed to ecosystems so

that the consent of IPs must be obtained when their essential values related to their lands and

ecosystems may be affected by investment projects; however, this measure is of exceptional

application. FPIC is a more stringent protection, restricted to projects that may have a possible

“intense direct impact,”in other words, “when a measure threatens the subsistence of the

traditional community”(see CCC, 2018; Ministerio del Interior, 2020; Rodríguez, 2021). FPIC

is considered effective if it has a veriﬁable result on the decisions to be made, which must be

reﬂected in the action plans and measures implemented by the authorities (see CCC, 1997,2018).

It is a stricter protection because unlike with PIC, the projects cannot be implemented without

obtaining the FPIC (CCC, 2018). This study captures mainly cases of consultation, which are

the majority and which do not grant IP veto rights, skewing the balance in favor of the

economic value attributed to their lands and ecosystems over the existential value that IP may

attribute them.

Procedures for PIC and FPIC

Although the regulation of both PIC and FPIC requires a special (statutory) law (see

CCC, 2011) which, as of today, has not been enacted, the government has regulated PIC

procedures following the case law from the Colombian Constitutional Court (CCC) (Función

Pública, 2020a) (see Figure 1). First, the government (Ministry of Internal Affairs [MIA])

must

verify whether there is a direct effect on the social, economic, environmental, and cultural

INVESTMENT AND INDIGENOUS PEOPLES

conditions of IP and, if so, it must organize a PIC (CCC, 2018; Presidencia de la

República, 2020).

The implementation of PIC is more stringent since 2019 (see CCC, 2018;

Función Pública, 2019), since before, MIA only veriﬁed the presence of ethnic communities in

the area of inﬂuence of the project, and then it issued a certiﬁcate. Now, MIA may issue this

certiﬁcate ordering the PIC procedure in a period between 30 or 60 days, depending on whether

the project requires a veriﬁcation visit to its area of inﬂuence that can be extended for the same

term when there are external factors that affect the process (see Función Pública, 2015, art. 14;

2011, art. 14). Second, the pre‐consultation stage involves a prior dialog with the

representatives of the ethnic communities to deﬁne what the PIC methodology will be and

how the cultural speciﬁcations of each community will be considered. Third, the PIC takes

place among representatives of the state, the investors, and the ethnic communities, and MIA

must guarantee that their ethnic and cultural identity is safeguarded. If no agreement is reached

in the pre‐consultation or consultation phases, when the representative authorities did not

attend the meeting, or when a conﬂict of representativeness in the ethnic community persists,

the government has 3 months to apply the proportionality test and deﬁne management

measures. The proportionality test seeks to determine appropriate measures to prevent, correct,

or mitigate the direct outcomes, grounded in the positions expressed by all the parties involved.

Fourth, MIA must follow up on compliance with the measures agreed to or established by

MIA in application of the proportionality test. If environmental issues are involved, the follow

up is the responsibility of the state agency for environmental permits (ANLA).

PIC and FPIC and public participation in environmental matters

Besides ethnic communities' rights to PIC and FPIC, the Constitution (1991) also guarantees all

citizens the right to enjoy a healthy environment and to participate in decisions that may

FIGURE 1 Administrative procedures of prior informed consultation (PIC) and free, prior, and informed consent

(FPIC). MIA, Ministry of Internal Affairs. Source: Author's elaboration, with data from Ministerio del Interior (2020).

LATIN AMERICAN POLICY

individually affect them or communities (art. 79, 80, and 332). Like the PIC and FPIC, public

participation in environmental matters is also a fundamental right of all citizens, not only IP. It

aligns with the Rio Declaration on the Environment and Development (United Nations, 1992)

(see CCC, 2017a), reinforced by the ratiﬁcation of the Escazú Agreement (2018). When

investment projects may cause serious deterioration to renewable natural resources or the

environment, or introduce considerable or notorious modiﬁcations to the landscape, investors

must obtain a license. These two procedures for civic engagement (PIC and access to

information) seek to rectify information asymmetries but often overlap, with no possibility of

being merged. Since 2020, the measures to guarantee PIC within a license permit procedure are

more stringent since previously the license could be requested with the certiﬁcate of

applicability of the PIC, regardless of whether the PIC had been completed. Now, when

both a PIC and an environmental license are required, the latter cannot be requested if the PIC

or FPIC process has not been completed (the PIC has been carried out, and the outcome has

been registered). The procedure to decide on the environmental permit can be suspended when

the ANLA requires MIA's certiﬁcate regarding the applicability of the PIC to be updated (see

Función Pública, 2020b). The fact that investment projects cannot obtain the environmental

license without a PIC or a FPIC when IP lands are at stake has been a serious concern for

governments and investors who see them as a veto right or at least an additional transaction

cost for projects. Colombia is progressively reinforcing the mechanisms to guarantee the

effective participation of IP in projects to be developed on their lands, especially if they may

have high environmental impact and are attributed certain values. See Figure 1.

The role of the courts

The judiciary branch, particularly the CCC, has rendered progressive judgments, enforcing the

right to public participation in environmental matters in general, and the fundamental right to

PIC and FPIC of IP when their territories are affected by investment projects, so that their

ethnic, social, economic, and cultural integrity and subsistence are guaranteed (CCC, 2018).

While the CCC case law has shaped the adoption of the more stringent procedures (supra), it

also requires the government to balance between IP interests and the economic interests of the

government and investors. In other words, in cases of disagreement, the government must

apply the proportionality test to deblock the process and register the results of the PIC.

Still,

where a FPIC is required, the project can only be implemented after one is obtained. In

exceptional cases, MIA can allow the project to be executed if the fundamental rights and

survival (physical and cultural) of the ethnic communities can be guaranteed.

The CCC approach seems to align with ecological economics perspectives, following

biocultural and ecocentric models of environmental and IP protection (Macpherson et al., 2020;

Rodríguez‐Garavito, 2020; Shapiro & McNeish, 2021; Viaene, 2022; Wesche, 2021). The CCC

has also recognized rights to ecosystems, seeking to preserve them beyond the individual claims

of affected communities (Lizarazo‐Rodriguez, 2021b; Rodríguez‐Garavito, 2019,2020; Shapiro

& McNeish, 2021; Wesche, 2021). Governments have criticized these judgments, following an

anthropocentric development model, as have investors who considered these decisions as

judicial obstacles to development policies, investment (see CCC, 2018,2019), and economic

growth because they strengthened the veto power of racial minorities who, together, represent

14% of the total Colombian population yet have the potential to decide on the carrying out of

investment projects that could be considered of general interest for the country.

The CCC has also inﬂuenced the case law of the IACtHR.

Both courts recognize three

situations where a FPIC is required before a project can be implemented on indigenous lands.

These situations are considered as intense direct effects (afectación directa intensa) and include

serious risk of forced resettlement; storage or disposal of hazardous or toxic materials on

INVESTMENT AND INDIGENOUS PEOPLES

indigenous lands; or projects that involve high social, cultural, and environmental outcomes

that put their subsistence at risk (CCC, 2009,2011; IACtHR, 2007). The concept of direct

effects on IP adopts a biocultural perspective, going beyond the formal notion of territory to

include the economic, social, and spiritual dimensions the community needs to preserve its

identity (CCC, 2016). The right to territory has been considered a dynamic concept that covers

“all space that is currently essential for indigenous people to get access to natural resources in

line with their culture and their economic and social organization”(see CCC, 2014,2015a).

This biocultural approach has been enforced in cases involving hydrocarbon industries (see

CCC, 2018).

Meanwhile, the IACtHR has held that PIC is not required when the activities

only aim at maintaining or improving works, in other words, the magnitude of the repercussion

requires an individualized assessment (see IACtHR, 2020).

The courts have also enlarged the scope of international law (ILO 169), ﬁrst, by extending

the fundamental right to PIC and FPIC to Black, Afro‐Colombian, Raizal or Palenquera

(NARP) communities, and second, by referring explicitly to the right of ethnic communities to

share the beneﬁts obtained from projects performed in their territory, which is optional in the

ILO 169 (see CCC, 2013). The IACtHR held that when these projects involve natural resource

exploitation in IP lands, the Inter‐American Standards apply—PIC, environmental and social

impacts, and the reasonable distribution of the beneﬁts derived from the project (see

IACtHR, 2015b).

RESEARCH QUESTIONS, DATA, AND METHODS

The analytical building blocks extracted from the literature review in Section 2provide the

framework for our analysis, while Section 3provides the institutional context in Colombia. The

following research questions emerge, (1) what is the scale of utilization of PIC and FIPC in

Colombia for the protection of IP territories in the presence of investment projects, and how

does it evolve over time?; (2) which patterns can be detected in the implementation of PIC (by

ethnicity, region, industry) since its implementation in 1995?; (3) are there visible societal and

economic costs and beneﬁts of these mechanisms depending on their outcomes and duration?;

and (4) to what extent have courts contributed to the enforcement of IP values that align with

biocultural approaches to development, supported by approaches such as ecological economics

rather than anthropocentric economic development models that would privilege contractual

forms of indigenous entrepreneurship?

Existing analyses have been limited to case studies (see literature review), particularly in

ecological economics, development studies and socio‐legal and doctrinal approaches. This

article is novel as it unveils how the protection of IP and territories can be approached from an

empirical and law and sustainable development perspective, and by addressing unexplored

aspects of this phenomenon. The descriptive statistics aim to shed new light on the PIC

mechanism despite the statistical data limitations in terms of quality, availability, and

compatibility between data sources.

Several data sets are combined, including—but not limited to—those held by the MIA

(Dirección de la Autoridad Nacional de Consulta Previa, DANCP),

the National Department

of Statistics (DANE, 2023a), and the Colombian Constitutional Court (CCC) (Corte

Constitucional de Colombia, 2023). Some of the underlying mechanisms were explored using

regression analysis. It was tested whether the outcomes of the PIC processes (leading to an

agreement or not, their duration) can be explained in terms of the region, ethnicities involved,

or industry. Interaction effects between the consultation and environmental licensing processes

were also tested.

A review of the role of courts was conducted because the judiciary branch can shape state

economic decisions, particularly when there are tensions between constitutional values that on

LATIN AMERICAN POLICY

the one hand seek to preserve ecosystems and racial minorities and on the other hand protect

the rights of investors and promote economic development. Although judicial ideology has

been assessed, the lack of objective criteria to identify it has been noted (Cross &

Lindquist, 2006, p. 16; Volokh, 2008, p. 56). The CCC and the IACtHR have upheld

constitutional values, which is considered to be “remedial activism”because they seek to apply

fair laws and address noncompliance by governments that have not enforced them (Gargarella

et al., 2016; Rodríguez‐Garavito, 2017; Santos Botelho, 2017) The complementary quantitative

analysis of case law shows how courts have tilted the balance in favor of IP interests and

biocultural values, and how Colombian case law inﬂuenced the case law of the IACtHR. This

study is relevant for Latin America because the IACtHR has a leverage effect over other

countries under its jurisdiction, where the PIC has been used in lesser proportions and where it

does not have the same institutional guarantees. For the case law selection of the CCC, two

methods were followed; for the quantitative analysis, a review was made of all CCC judgments

on PIC since their implementation in 1995; for the content and legal analysis, only “tutela”

judgments were selected.

RESULTS AND DISCUSSION

Analyzing government data

Between 1995 and 2022, 6183 PICs have been initiated. The ﬁrst consultations started in 1995,

but in 2009, the numbers increased considerably (see Figure 2). There seemed to be a peak in

2015–2017, after which the numbers appear to slow again. The pandemic‐related economic

slowdown might have affected the numbers in 2020 and 2021. Another explanation could be

the more stringent requirements to declare the applicability of a PIC. The numbers for 2022 are

preliminary partial data.

The number of consultations does not coincide with the number of investment projects as

more than one consultation can be initiated per project. It could be explained by the size,

timing, and ethnic communities involved, among other factors. Based on MIA data, 1703

different investment projects were identiﬁed for the same period. Remarkably, only 10

FIGURE 2 Number of prior consultations by year of initiation, 1995–2022. Source: Authors' elaboration, with

data from Ministerio del Interior (2023a).

INVESTMENT AND INDIGENOUS PEOPLES

projects account for 1440 PICs, or 23% of all registered PICs, and in each of them, several

ethnic groups participated (see Table 1). Moreover, 7 of the 10 projects with the most PIC are

in 3 of the 30 departments (La Guajira, Choco, and Córdoba). Most required an

environmental license and were related to projects of environmental management or

hydrocarbon industries.

When looking at the distribution of the PICs by region, approximately half of the PICs are

in the coastal regions (Caribbean, followed by Paciﬁc), the two regions with the largest

indigenous and afro‐descendent populations (see Table 2). Of a total of 110 registered

ethnicities, one ethnicity (Wayuu) is responsible for one‐third of all PCs. This ﬁgure correlates

with the overrepresentation of PICs per project (see Table 1).

The 6183 PICs are spread over 4132 communities. The number of PICs per community

ranges between 41 (for the indigenous community of the Sierra Nevada of Santa Marta) and

one. The category of communities with only one PIC includes 2867 communities. Table 1

shows that only 10 projects account for one‐quarter of all PICs conducted since 1991, 8 in the

Caribbean region (Guajira and Cordoba) and 2 in the Paciﬁc region (Choco).

TABLE 1 Projects with the most PICs, by industry and location.

Project PIC Type of project Industry Project owner Department

P‐00540 177 Development Plan Administration State Choco

P‐00528 176 Freshwater management Environmental State Guajira

P‐00932 164 Freshwater management Environmental State Cordoba

P‐01747 157 Infrastructure Energy Private investors Guajira

P‐00250 148 Infrastructure Hydrocarbon SOC Guajira

P‐01440 145 EIA Hydrocarbon SOC Guajira

P‐01345 137 Infrastructure Energy Private investors Guajira

P‐00229 123 Infrastructure Hydrocarbon SOC Guajira

P‐00270 119 Infrastructure hydrocarbon SOC Guajira

P‐00196 94 Infrastructure Telecommunications Private investors Choco

Abbreviations: PIC, prior informed consultation; SOC, state‐owned company.

Source: Authors' calculations, based on Ministerio del Interior (2023).

TABLE 2 Number of prior consultations by region.

Region PIC number Indigenous population NARP population Rom population

Caribbean 3090 818.630 974.098 496

Paciﬁc 1169 614.169 1.463.646 352

Amazonian 823 168.572 19.574 51

Andean 583 225.654 472.429 1.701

Orinoquía 506 78.572 25.604 49

Insular 12 0 0 0

Total 6183 1.905.617 2.982.224 2.649

Abbreviations: PIC, prior informed consultation; NARP, Black, Afro‐Colombian, Raizal, and Palenquera populations.

Source: Authors' calculations, based on Ministerio del Interior (2023); DANE (2023a).

LATIN AMERICAN POLICY

Putting these ﬁgures into context, the percentage of ethnic minorities with PIC rights in

Colombia also matters (see DANE, 2023a). In 2018, people who self‐identiﬁed as indigenous

amounted to 1,905,617, 4.4% of the total Colombian population (48,258,494). These ﬁgures

show a 36.8% increase between 2005 and 2018, explained by a better statistical coverage of

indigenous territories and a signiﬁcant rise in the self‐identiﬁcation of IP.

The largest number

of self‐recognized IP is mainly concentrated in coastal regions. In addition, people self‐

recognized as NARP amounted to 4,671,160 in 2018, which is 9.34% of the total Colombian

population. Meanwhile, self‐recognized NARP declined by 30.8% between 2005 and 2018.

Although the NARP represent 9% of the total population, and IP only 4.4%, PICs are mainly

triggered in indigenous lands (see Table 3). The increase of more than 30% in self‐recognition as

IP between 2005 and 2018, particularly in coastal regions, may be connected to the options to

get access to PIC. The decrease in self‐recognition by a similar percentage in the same period

among the NARP cannot be explained with these ﬁgures.

Together, hydrocarbon extractive activities and electric energy represent 45% of all PICs

(see Table 4). These numbers correlate with the ﬁgures in Table 1because of the 10 projects that

account for almost one‐quarter of PICs, 6 concern hydrocarbons and energy projects, all

located in Guajira (Caribbean region). This point seems to conﬁrm that extractive and energy

industries are the most contested when it comes to exploiting natural resources in IP lands. For

electricity projects, the environmental argument may be different as sometimes energy

transition projects involve abundant PICs, not necessarily free of conﬂict.

If hydrocarbon exploration and exploitation projects located in IP lands are delayed by

PICs, which are in turn a condition to obtain the environmental license, PICs have a clear effect

on the transaction costs of the projects, for both the state and investors. There is a signiﬁcant

economic repercussion in Colombia because 55% of Colombian exports rely on hydrocarbons

and other mining products. Still, the projects with the highest number of PICs are very

localized, which deserves an in‐depth analysis of the situation of the IP in la Guajira. The

current government sought to adopt exceptional measures, but the CCC struck down the

declaration of economic emergency.

Remarkably, these conﬂicts are in coastal areas and not

TABLE 3 Number of prior consultations by ethnicities, 1995–2022.

Ethnicity PIC number % of total

Wayuu 2056 33

NARP 1018 16

Zenu 582 9

Sikuani 191 3

Pijao 167 3

Guahibo 113 2

Awa 97 2

Embera Chami 92 1

Linga 85 1

Embera 59 1

Other 1495 29

Total 6183 100

Abbreviation: PIC, prior informed consultations.

Source: Authors' calculations based on Ministerio del Interior (2023).

INVESTMENT AND INDIGENOUS PEOPLES

in the Amazon, which represents one‐third of the Colombian territory and has been the most

controversial region for hydrocarbon exploitation in indigenous lands in other Amazonian

countries such as Peru and Ecuador.

Regarding the outcome and potential impact of PICs, they do not seem to be a serious

structural obstacle, given that 95% of them end with an agreement (see Table 5). This outcome

could represent an indication of effectiveness because these projects can be developed in a

concerted manner with the indigenous communities, but the duration of the processes can have

economic repercussions.

In the period addressed (1995–2022), half of the projects in IP territories had potentially a

high environmental impact and required an environmental license (see Table 6). This number

indicates that 50% of these projects obtained the license to operate only after having concluded

and registered the result of the PIC process. The percentage shows how IP rights play a central

role in investment projects but also that these investments have a high environmental impact on

IP lands and ecosystems.

Regarding the duration of PICs, the data recorded by MIA do not allow for strong

conclusions. Only in 2016 were the deadlines established by the legislation to carry out the PIC

met. Since 2019, there seems to be a downward trend, which cannot only be explained by the

pandemic (see Figure 3). The stringent institutional design for PICs could also play a role in

this trend. In terms of transaction costs for the state and investors, although PICs mostly end in

an agreement, this point is not formalized within the legally established timeframe. In most of

the observed years (27) the legal timeframe (which can constitute a legitimate expectation for

TABLE 4 Prior consultations by industry, 1995–2022.

Industry PIC number

Hydrocarbon 1587

Electrical 1269

Environmental 1143

Administrative measure 720

Infrastructural 713

Telecommunications 332

Judicial order 258

Mining 146

Research 15

Total 6183

Abbreviation: PIC, prior informed consultation.

Source: Authors' calculations, based on Ministerio del Interior (2023).

TABLE 5 Number of prior consultations by outcome, 1995–2020.

Outcome Number of prior consultations

With agreement 5875

Without agreement 308

Total 6183

Source: Authors' calculations, based on Ministerio del Interior (2023).

LATIN AMERICAN POLICY

investors) was exceeded. Another reading of the ﬁgures after 2015, showing lower average

durations, might in turn point to a learning effect and more efﬁcient procedures.

The correlation between PIC outcomes and duration on the one hand and structural

variables on the other was assessed to explore the dynamics of the PIC processes in Colombia.

The aim was to detect patterns, such as whether the outcomes vary by involved region,

industry, or ethnicity; whether the duration of the consultations varies by region, industry, or

ethnicity; or whether the outcomes are dependent on environmental licensing. Outcomes of PIC

(with or without agreement) and duration (in days) were regressed against a series of

categorical variables (region, industry, ethnicity), while outcomes were also regressed against

the existence of an environmental license process for the same investment project (see

Appendix A).

Several ﬁndings are relevant. First, there are signiﬁcant differences between industries as to

the probability of achieving successful outcomes and the duration of PIC. Compared to the

benchmark industry (environmental), the electricity and telecommunications industries show a

signiﬁcantly higher likeliness to reach agreements and involve signiﬁcantly shorter processes.

The hydrocarbon industry also shows shorter processes, while infrastructural projects typically

lead to longer consultation processes. Second, compared to the benchmark region (Amazon),

the Paciﬁc region systematically shows longer processes, while Orinoquía shows signiﬁcantly

shorter processes. Third, when looking at the inﬂuence of ethnicities, and comparing with the

TABLE 6 Prior Consultations and environmental permits, 1995–2022.

Projects Number of prior consultations

Projects subject to PIC and environmental permit 3261

Projects subject to PIC but not to environmental permit 2922

Total 6183

Abbreviation: PIC, prior informed consultation.

Source: Authors' calculations, based on Ministerio del Interior (2023).

FIGURE 3 Average duration of prior consultations by year of initiation (in days), 1995–2022. Source: Authors'

calculations, based on Ministerio del Interior (2023).

INVESTMENT AND INDIGENOUS PEOPLES

NARP benchmark, if statistically signiﬁcant differences are found, they tend to be in lower

probabilities of achieving a negotiated agreement, longer consultation process durations, or

both.

The Wayuu, who are most involved in PIC, show a positive coefﬁcient (pointing to

higher probabilities to achieve agreements) although not signiﬁcant. Regarding the duration of

the PIC, they are signiﬁcantly longer for speciﬁc indigenous ethnicities.

Still, only two of these

ethnicities are in both groups—Guahibo, located in the Orinoquía region; and the Katio,

located in the intersection between the Paciﬁc, Caribbean, and Andean regions. This outcome

also deserves an in‐depth analysis because the Guahibo seem to behave differently from the

pattern in the Orinoquía region. In contrast, the likeliness of reaching an agreement does not

seem to be related to the requirement of obtaining an environmental license.

Analyzing constitutional court data

The complementary analysis of CCC case law was motivated by the fact that IP and NARP

have frequently activated constitutional actions to claim the organization of a PIC, or to

challenge PICs carried out by the government without fulﬁlling the legal and jurisprudential

conditions. The quantitative analysis of CCC case law reviewed systematically all the action of

protection (tutela) judgments referring to PIC from 1995 to 2022, which resulted in 161

decisions (see Table 7). The results seem to conﬁrm that the CCC has mostly upheld the

protection of IP rights and enhanced biocultural or ecocentric approaches to their protection.

Further in‐depth analysis could inquire whether CCC intervention could be considered as

activist (Gargarella et al., 2016; Rodríguez‐Garavito, 2017; Santos Botelho, 2017) or represent

an effort to ﬁll the regulatory void related to the noncompliance with the constitution of

governments and investors (Voigt, 2021).

These data were ﬁltered, based on a content and legal analysis of the judgments. Of the

cases that reached the CCC, only a minority also involved environmental licenses. Of the 161

tutela judgments, 80% were favorable to the plaintiffs, where IP ﬁled the most tutela lawsuits

(96, as compared to 48 lodged by NARP). Regarding the most contentious sectors, a majority

of cases were ﬁled against state projects, which are not necessarily linked to speciﬁc economic

sectors since some of them related to public services. The most contentious industries were

infrastructure and hydrocarbons. Further analysis could explain how the CCC grants

protection to IP in speciﬁc industries, and whether the results may be inﬂuenced by ethnicity.

CONCLUSIONS

Tensions between IP rights and investment projects that seek to exploit natural resources in

their territories, particularly hydrocarbons, are frequent in many countries, notwithstanding

their development levels and model. ILO 169 has thereby been a game changer in the

recognition of IP rights worldwide, although it aligns with anthropocentric models. Still, only

Latin American countries have been largely receptive to the implementation of this convention.

Countries that traditionally host the headquarters of multinational companies that control the

mining and hydrocarbon markets, as well as the energy transition, have been reluctant to ratify

ILO 169. This situation has led to disagreement over the desired development models at the

global level that balance the distinct values attributed to ecosystems, although this scenario

may change as the extractive and hydrocarbon industries are seen as the main culprits of global

warming.

Few studies have looked at the protection of IP and territories and the interconnection with

sustainable development policies. From a literature review, we identiﬁed 6 building blocks that

could be used for this purpose, mainly related to the cost–beneﬁt calculus of investment

LATIN AMERICAN POLICY

TABLE 7 CCC Tutela judgments related to PIC and licenses, 1995–2022—Outcomes.

Mech-

anism Total

Decision Ethnicity Sector

Granted

Inadm-

issible Denied Nulliﬁed Mix Indigenous NARP Citizen

Envir-

onment Energy

Infra-

structure

Adminis-

tration Mining Hydrocarbon Other

Env.

License

10 8 2 0 1 4 5 3 2 3 1 1

PIC 148 109 15 24 1 1 95 44 12 9 6 23 74 13 21 5

PIC/

License

32 0 0 1 1

Note: Search keywords used: Consulta previa, comunidades indígenas, Actividad, Obra o Proyecto (AOP) sentencia de tutela, sentencia uniﬁcada.

Abbreviations: Env. License, Environmental License; NARP, Black, Afro‐Colombian, Raizal, and Palenquera populations; PIC, prior informed consultation.

Source: Authors' compilation of CCC case laws, based on Corte Constitucional de Colombia (2023).

INVESTMENT AND INDIGENOUS PEOPLES

projects that needs to balance the transaction costs of IP rights and the value they attribute to

their territories; the effectiveness of participatory processes depending on their design features;

the state–IP contractual arrangements and their consequences; the regulatory approach to

investor–state relations; the (economic) behavior of IP (including the speciﬁcities of traditional

indigenous economic activity; the self‐identiﬁcation of IP driven by incentives, as well as

indigenous entrepreneurship, and how courts behave vis‐à‐vis the protection of IP rights when

the government promotes investment in their lands). Empirical analysis along these lines

requires appropriate data, which are not always easily available, especially if large ntypes of

analyses are pursued.

The data collected shed some light on certain facets of the underlying research questions.

First, regarding the scale of use of PIC and FIPC in Colombia for the protection of IP

territories when investment projects are planned, the empirical and case law analyses reveal

that Colombia is a landmark case because it is where the ILO 169 PIC has been used the most.

It is also the country where the courts have ruled on the most cases that seek to protect IP

rights. Since the implementation of PIC, more than 6000 PICs have been started, multiplying

the number of implicated investment projects roughly by four (mainly due to the number of

ethnic communities involved per project). PIC procedures generally (in 95% of the cases)

conclude with an agreement between the interested parties, which would seem to be positive.

From the government and investors' perspectives, the duration seems to exceed the legal terms

exponentially, which increases the transaction costs of these investment projects. In addition, in

some 50% of the cases, PICs were required to obtain environmental licensing procedures. From

the IP perspective, the literature suggests that getting a positive outcome in the PIC processes

does not always translate into recognition of the values attributed to their territories. Solid

conclusions can be drawn only by conducting in‐depth studies.

Second, the number of environmental licenses that required PIC or FPIC shows the

important effects these projects might cause on IP lands. For the investors, the fact that

environmental licenses can only be requested once a PIC process has been registered adds

length to project implementation. Yet, avoiding these processes would constitute a denial of IP

land rights and prevent any assessment of the convenience of these projects beyond the

economic value of ecosystems, which is precisely the main criticism of the anthropocentric

approaches mentioned as responsible for the present global ecological crisis.

Third, signiﬁcant patterns in the outcome of the PICs (with or without agreement, duration)

can be detected in terms of region, ethnicity, or industry involved, or a combination of these

factors. More analysis is needed, however, to pinpoint the exact reasons for these patterns.

There is also evidence that the PIC framework provides material incentives to self‐identify

as IP.

Finally, the role of the CCC has been crucial in enforcing ILO 169 and has even extended its

scope of application to the NARP, communities that may be more marginalized than IP.

Several aspects show how the CCC aligns with ecological economics approaches that advocate

for more biocultural or ecocentric perspectives as a response to the anthropocentric models.

First, the CCC has required the government to adopt stringent PIC procedures while allowing

for balancing between IP interests and economic development. Second, the CCC has protected

IP when PIC were not respected, thus ﬁlling institutional gaps that affect IP rights. Third, the

CCC has upheld the biocultural (and sometimes ecocentric) models by balancing values of the

constitution and ILO 169 that align with these models with values that pursue economic

prosperity. Further analysis could assess whether the CCC has a leverage effect, in other words,

whether the signiﬁcant increase in self‐identiﬁcation as “indigenous”is the result of the

increasing importance of PIC in investment projects in IP territories and the systematic support

of the CCC for IP. Meanwhile, it is unclear why NARP populations do not achieve the same

level of leverage and why, even though the CCC and the IACtHR expanded the protection of

ILO 169 to cover them, their self‐recognition as NARP has diminished. At the regional level,

LATIN AMERICAN POLICY

the inﬂuence of the CCC on the IACtHR's jurisprudence is signiﬁcant, which means there is a

multiplier effect on IP protection policies at the regional level.

ACKNOWLEDGMENTS

Liliana Lizarazo Rodriguez, PI of the Curiae Virides Project, has received funding from the

European Research Council (ERC) under the European Union's Horizon 2020 research and

innovation program (grant agreement no. 949690).

CONFLICT OF INTEREST STATEMENT

The authors declare no conﬂict of interest.

DATA AVAILABILITY STATEMENT

The data that support the ﬁndings of this study are available in the public domain: Ministry of

Internal Affairs, Autoridad Nacional de Consulta Previa,https://www.mininterior.gov.co/

direccion-de-autoridad-nacional-y-consulta-previa/datos-abiertos-dancp/ and https://www.

mininterior.gov.co/transparencia-y-acceso-a-la-informacion-publica/; National Department of

Statistics (DANE), https://www.dane.gov.co/index.php/estadisticas-por-tema/demograﬁa-y-

poblacion/grupos-etnicos/informacion-tecnica accessed on 25.1.2023 Colombian Constitu-

tional Court, https://www.corteconstitucional.gov.co/secretaria/.

ORCID

Liliana Lizarazo‐Rodríguez http://orcid.org/0000-0002-4940-4386

Philippe De Lombaerde http://orcid.org/0000-0002-6546-6771

ENDNOTES

The American Convention on Human Rights, 1969 (Pact of San Jose) and the Additional Protocol to the American

Convention on Human Rights in the area of Economic, Social, and Cultural Rights (San Salvador Protocol), the

International Labor Organization (ILO) Indigenous and Tribal Peoples Convention, 1989 (ILO 169), The

Convention on Biological Diversity (CBD) 1992 and their Protocols, and recently the Regional Agreement on

Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the

Caribbean, 2018 (Escazú Agreement, 2018).

Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua,

Paraguay, Peru, and Venezuela.

Dominica.

Denmark, Germany, Luxembourg, Netherlands, Norway, and Spain.

Fiji and Nepal.

Central African Republic.

See United Nations (2018).

It is conducted by the National Authority for Prior Consultation (DANCP) of the Ministry. In this article, we refer

to the Ministry of Internal Affairs (MIA) for the sake of simplicity.

Other institutes that intervened were the Agustín Codazzi Geographic Institute, the National Land Agency, and the

National Institute of Anthropology and History, among others.

The proportionality test seeks whether the project is not arbitrary and grounded in criteria of reasonableness,

proportionality, and objectivity. See CCC (2018).

See IACtHR (2012,2015a).

See also CCC (1997,2003,2012,2015a,2015b).

See Ministerio del Interior (2023b).

Constitutional action of protection of fundamental rights.

INVESTMENT AND INDIGENOUS PEOPLES

The DANE (2023b) identiﬁed 115 indigenous peoples living in Colombia. The most numerous (Wayuu, 380,460;

Zenú, 307,091; Nasa, 243,176; and Pastos, 163,873) represent 58.1% of the country's indigenous population. The

Jurumi, Passe, and Yuri indigenous peoples were not counted, respecting their voluntary isolation.

NARP populations disagreed with this census and lodged a complaint. See CCC (2022).

For example, CCC (2023), which was unexpected because CCC (2017b) declared unconstitutional the situation in

La Guajira, particularly regarding the Wayuu ethnicity.

See analyses of the Inter‐American Commission of Human Rights regarding the human rights of indigenous and

tribal peoples in Panamazonia (CIDH, 2019,2021).

Signiﬁcantly lower probabilities for an agreement are found for Arhuaco, Chimila, Embera Dobio & Embera

Yabida, Embera Eyabida, Guahibo, Katio, Misak, Muruy, and Yukpa.

Amarua, Cofan, Cubeo, Curripacos, Guahibo, Inga, Jiw, Katio, Makaguan Cusay, Nukak, Piapoco, Piapoco‐

Achagua, Pijaos, Puinave, Saliba, Sikuani, Uitoto, Uwa, and Zenu.

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