[Editor’s Note: This is the final installment in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here, Part V is available here, Part VI is available here and Part VII is available here. We once again thank the Externado University of Colombia for organizing this symposium.]
–Magdalena Correa Henao, Head of the Constitutional Law Department at Universidad Externado de Colombia
In this entry, I will focus on the case of popular consultations about mining projects in Colombia, as an excellent example to figure out how democratic democracy actually is.
Popular consultation is a constitutional mechanism for citizen participation (Art. 40.2. and 105 of the Constitution and Laws 134/94 and 1757/15) that allows the people to make binding decisions regarding a question posed by the president, governor, or the mayor in these cases (Article 8, Law 134/94). In case of mining projects, consultation is required by law (Article 33 of law 136/94).
However, those rules were ignored for several years. It was until 2013 that the subject of popular consultation about mining projects became important when people started to use them as a form of resistance to the national government´s policy of promotion of extractive industries (or the so called “mining locomotive” that would foster economic development in Colombia). Since 2013, Colombia has had 9 local consultations about extractive projects[1]. In 100% of cases people said “NO” to the development of those projects. Moreover, 44 additional consultations are currently in process.
Here, I will focus on these popular consultations, and not in other types of local decisions regarding the development of mining projects[2].
What is the Problem?
The effects and extension of popular consultation are still controversial, given that different legal rights and interests may clash (investors vs local interest) and because it is not clear what role “democracy” should play in this matter.
The Clash of Legal Rights and Interests
Mining activities generates jobs and fosters the economic activity of suppliers. With a proper fiscal policy, a State can get enough money to afford social rights like pensions and health not only for the entire country[3].
On the other hand, participation through popular consultations is a political right assured by both the Colombian constitution and the law. And when local communities decide they do not want mining projects, it is because of their potential negative impact on a variety of other rights (the rights to health[4], work, public security, food security, property and water)[5], especially for the most vulnerable ones.
Popular Consultations also Imply Conflicts of Competences
Local popular decisions imply the exercise of constitutional competences.[6] But those competences clash with the constitutional competences of the national government regarding economic planning (articles 334, 339 and 345 constitution) and the management of international relations (articles 189.2, 150.16). During the last twenty years, government policy has considered mining as an engine of growth, including the signature of BIT´s that grant legal stability to foreign investors. And this is likely to continue.
Conflict Resolution and the Meaning of Democracy
Historically all national authorities of power understood that the decisions regarding the economic development, and in particular the promotion of extractive industries as the best way to finance public expenditure, were of exclusive competence and interest of the national authorities, disregarding any opinion from communities or local authorities.
In this frame, Lincoln’s statement, “Democracy is the government of the people, by the people and for the people” does not mean much in the present case. Because “the people” includes everyone, or ceases to be the people.
But this is still a weak understanding of democracy, because in underestimates what Michelman called the “self-government conception of democracy”, “about people governing themselves politically, exercising their own charge over the politically decidable conditions of their lives” [7].
Nowadays, it is not easy to defend participatory democracy as a better procedure for collective decision-making, or as means for reaffirming constitutional values. The examples of Brexit, Catalonia, and Colombia come to mind. Given those experiences it is possible to argue that these popular decisions are manipulated by particular interests, and lead to legal uncertainty where nobody wins[8], except for some investors (ironically)[9]. Even though it may seem unpopular to support popular decisions in this context, I think they are not illegitimate. Instead, they are an expression of political will about the unfair cost-benefit ratio generated by national mining policies in environmental[10] and fiscal terms[11].
This is why in the definition of the normative scope of popular consultations regarding mining projects, national competences and acquired rights cannot override the will of those affected by mining activities. As an expression of the right to self-government about what is most essential for any human being, the popular will should be given high value in this equation, vis à vis other interests at stake.
Suggested Citation: Magdalena Correa Henao, I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part VIII: Popular Consultations Regarding Mining Projects in Colombia, Int’l J. Const. L. Blog, Nov. 7, 2018, at: http://www.iconnectblog.com/2018/11/i-connect-symposium-contemporary-discussions-in-constitutional-law-part-viii-popular-consultations-regarding-mining-projects-in-colombia
[1] See official results in: https://www.registraduria.gov.co/-Consulta-Popular-2017-.html; for further analysis: K. Dietz. Referendums on mining in Colombia: the conditions in which they are held and their political meanings. The case of La Colosa. Revista Colombia Internacional N. 93 Jan/Mar 2018.
[2] https://www.larepublica.co/economia/ya-son-127-municipios-que-le-handicho- si-a-la-mineria-segun-la-anm-2554188
[3] Colombia’s general budget for 2018 was around 81 billion dollars; mining royalties in 2017 were approximately 720 million dollars. http://www.elcolombiano.com/negocios/con-2-11-billones-2017-marco-el-record-en-regalias-mineras-GY8144585
[4] Even the Constitutional Court of Colombia has explicitly recognized the damages that the mining companies have caused to the local communities. Last year in the judgement T-733/17, the Court protected the rights of the communities and ordered the company to get a new environmental license that ensure the protection of their fundamental rights.
[5]. L. Garay Salamanca (Dir.) Minería en Colombia: Institucionalidad y territorio, paradojas y conflictos (Vol. 2). P. 51-73.
[6] Robledo, 2011.
[7] Frank I. Michelman, Brennan and Democracy–The 1996-97. Brennan Center Symposium Lecture, 86 Cal. L. Rev. 399 (1998).
[8] For the locals, there is great uncertainty regarding the economic alternatives of development after the prohibition of mining in the town. And sometimes, they have beginning to suffer the effect of the consultation in terms of labor opportunities. http://www.portafolio.co/economia/rechazo-a-operacion-minera-tiene-en-jaque-a-cajamarca-514627
[9] Currently, Colombia faces at least 9 cases before ISDS tribunals. For information of some cases: M. N. Castro Peña. Colombia before an international investment arbitration. Revista Derecho del Estado. N. 38. Jan. 2017.
[10] It is telling that in 2012, the comptrollers office found that mining municipalities are poorer than coca cultivation municipalities. L. Garay Salamanca (Dir.) Minería en Colombia, cit.
[11] Gallego and Correa, 2016.
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