The Council of State of Colombia (Consejo de Estado de Colombia) on 25 April awarded an injunction to Ecopetrol to prevent a planned referendum to be held by a local community over the state oil firm's Odisea 3D seismic exploration project in the eastern department (province) of Casanare. The vote was scheduled to take place in the municipality of Monterrey on 27 April. The decision to suspend it was taken to give the court time to study the relevant material to decide whether the vote would be constitutional. There has been no announcement of when a ruling will be made.
IHS perspective | |
Significance | Local referenda are becoming an increasingly common form of legal recourse for local communities seeking to express their opposition to extractive projects. |
Implications | Although referenda are legally binding, as enshrined in the Colombian constitution, there is an ongoing legal limbo as to who has authority over the Colombian subsoil and, therefore, the constitutionality of the votes regarding extractive projects. |
Outlook | Where referenda are called, there is an increasing risk of delays to extractive projects where the legality of the vote needs to be considered, and potentially the cancellation of projects where the vote is lawful. |
Contradictory legislation
According to Article 8 of Law 134 of 1994, a popular consultation (referendum) can be called by the president, a governor, or a mayor for questions about national, departmental, municipal, district, or local level issues. In all cases, enactment of the decision of the people is obligatory. Until recently, the use of sub-national referenda was confined largely to matters of urban planning, such as the delimitation of municipal boundaries or municipal waste management. However, since 2013, votes have been called over the establishment of extractive industry projects. These referenda should be understood as a protest tactic, and have returned overwhelming "No" votes.
On 28 July 2013, 99.1% of voters or 2,971 residents (out of a total 5,105 eligible voters) of the municipality of Piedras, in the central department of Tolima, voted to halt the development of South Africa-based AngloGold Ashanti's La Colosa gold mining project, with just 24 residents voting in favour of the plans. The Colosa development, which is due to begin construction between 2014 and 2016, has ambitions to be the largest gold mining project in Colombia. However, it has been embroiled in a number of disputes, crucially with the local authorities and local community, which accuse the developers of illegal gold exploration activities that have damaged local environmental and agricultural sites, as well as endangering water sources. AngloGold Ashanti has rejected the accusations of illegality and threatened legal action against the local authorities.
In a similar vein, on 15 December 2013, 96% of voters or 4,426 residents (out of a total 13,372 eligible voters) in the municipality of Tauramena, Casanare, elected to reject the establishment of Ecopetrol's Odisea 3D seismic oil exploration project, with only 151 votes in favour. The suspended vote in the neighbouring municipality of Monterrey, Casanare, relates to the same project, which plans to explore a 270 square kilometre area in the municipalities of Aguazul, Chameza, Monterrey, Recetor, and Tauramena in Casanare. Speaking in response to Tauramena, Colombian minister of mining and energy, Amylkar Acosta, claimed that local referenda over extractive projects are threatening investment in Colombia, adding that local municipalities do not have jurisdiction over resources and the ground, which he asserted belong to the national government. Meanwhile, the local community has argued that the referendum is binding under Article 55 of Law 134 of 1994, which states that the decision taken by the people in a referendum shall be binding.
The legal uncertainty over the validity of these votes stems from law and court rulings indicating that only national authorities have the power to veto the establishment of extractive projects in a given area: according to Decree 934 of 2013, sub-national political leaders, such as mayors or councillors, do not have the authority to decide on the use of municipal subsoil, which belongs to the national government. In addition, on 6 March the Sala Plena del Alto Tribunal court rejected a challenge to the decree, in accordance with Article 37 of Law 685 of 2001 (known as the Mining Code), which asserts that only regional and national authorities can block the establishment of mining activities in a given territory.
Continued legal challenges
In the absence of legal reform to address overlapping jurisdictions between national and sub-national authorities on Colombian soil and subsoil, local communities are likely to continue to organise referenda as a legal recourse to oppose projects in their territories. In particular, this sort of protest has the potential to cause considerable delays to projects, and potentially cancellations, as the legal process unfolds. However, the risk of cancellation is arguably greater for infrastructure projects. This is because these projects are predominantly not subsoil and therefore cannot be developed outside the jurisdiction of the sub national authorities, which have recourse to call a referendum. This, in turn, poses considerable risks of delay or cancellation to projects that are part of Colombia's fourth generation (4G) infrastructure development programme – involving the construction of 47 infrastructure projects by 2020 and worth an estimated USD25 billion. Foreign firms involved in 4G projects include: Spanish construction firms Fomento de Construcción y Contratas S.A. and Sacyr Vallehermoso S.A.; Brazilians firms Andrade Gutierrez S.A. and Odebrecht; French builder VINCI; and Austrian firm Strabag.
Outlook and implications
The wave of recent cases strongly suggests that there is an emerging trend for sub-national authorities to call referenda as a legitimate legal recourse to voice local community opposition to extractive projects. The publicity generated by these cases is likely to increase awareness of the right to call similar votes, making further such processes likely. Moreover, in the context of ongoing legal limbo, that these referenda have succeeded in bringing about delays to the projects in question is likely to embolden local communities to take similar action in future. Delays to projects are likely to be extended at least beyond a three-month period, given the length of time appeals can be subject to consideration in Colombia's legal system. Without legal reform to provide clarity on this issue, these problems are very likely to persist indefinitely, given the extremely high regard for legalism within Colombia.