On September 9, 2020, the government issued the Presidential Directive No. 8, by means of which the prior consultation proceeding with ethnic communities, established in the Presidential Directive No. 10 of November 7, 2013, was modified.
Said Presidential Directive replaced the “certificate of presence of ethnically differentiated communities according to which the prior consultation proceeding is required”, with a phase to determine its applicability. Furthermore, the provision incorporates the concept of direct affectation developed by the Constitutional Court in Decisions T-011 of 2011 and SU-123 of 2018.
Additionally, the Presidential Directive includes in the phase of “Prior Consultation” the application of the Proportionality Test, in the following cases: (i) lack of agreement in the phase of pre-consultation or consultation; (ii) non-attendance of representative authorities once the announcement procedure has been fulfilled; or (iii) lack of settlement in the main subjects of representation in the ethnic community. The Proportionality Test must reveal the appropriate measures to prevent, remediate or mitigate direct affectations derived fromthe development of the project, work or activity that is subject to prior consultation.
Additionally, regarding the phase of “Monitoring and follow up of compliance with prior consultation provisions” the Presidential Directive established that empowered environmental authorities have the obligation to follow-up all environmental provisions included in the prior consultation.