El derecho de las comunidades a ser consultadas en proyectos que afecten sus territorios: análisis del conflicto entre el derecho fundamental a la consulta previa y la certificación de no presencia de comunidades

Abstract

The development of projects of diverse nature with legitimate ends, such as infrastructure construction or mining activities, has been confronted by the fundamental right to prior consultation of ethnic groups, especially when the project executor has procured the corresponding environmental license before the competent authority based on the certification that there are no such communities in the territories in which the project is to be executed, certificate which is issued by Colombia’s Internal Affairs Department (Ministerio del Interior). The aforementioned scenario generates a clash of rights, in which the rules set forth by the Constitutional Tribunal of Colombia (Corte Constitucional) have leaned towards the fundamental right to prior consultation, based on the direct disturbance of ethnic groups criteria. This situation has generated all sorts demands in order to develop projects which, even though they pursue a constitutionally legitimate end and are carried out under the legitimate trust principle, are stalled and eventually remain unexecuted due to the prevalence of higher interests. To show the judiciary precedent balance in the subject at hand, the investigator shall proceed with the dynamical precedent analysis.