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Prior Consultation in Mining and Hydrocarbon Projects: Comparative Experiences in Colombia and Canada

Alfredo Fuentes Hernández, David R. Percy, 2015 International Mining and Oil & Gas Law, Development, and Investment

Despite their differences, in recent times Canada and Colombia have begun draw significantly closer. They entered into a Free Trade Agreement in 2011 and Colombia is identified as a priority country in Canada's Strategy for Engagement in the Americas. Most importantly for the purposes of this paper, Canadian direct investment in Colombia now stands at almost $2.4 billion,1 much of which is in Colombia's growing mineral sector. In the development of recent projects in their mineral industries, both countries have had to confront the reality that many of their resources are found in the traditional territories of historically disadvantaged indigenous peoples. In an effort to deal with the concerns of indigenous peoples and other communities, they have both adopted the principle of prior consultation as a basis for natural resources development. In Canada, prior consultation is known as the duty to consult and the two terms will be used interchangeably in this article.

Even in creating a duty to consult, Canada and Colombia have taken different routes, but both countries have now actively implemented consultation rules and policies. The main purpose of this paper is to examine each country's experience in dealing with the problems of consultation. Despite their different backgrounds, Canada and Colombia face many consultation issues that raise very similar practical probl