Public Consultation of Projects in Colombia, with a Canadian note.

Public Consultation of Projects in Colombia,
with a Canadian note.

A question

How would you feel if the day of grocery shopping, a family member takes your wallet, pull out all $ 50 bills with the figure of J.A. Macdonald, runs and puts them under the mattress and sits on to not let you spend those bills?

And now; What would you do if he also says that you cannot use these banknotes because J.A. Macdonald was politically incorrect?

Well, although the analogy is far from reality,  it is a little bit closer to the way two of the three actors in investment projects feel: Government and entrepreneurs when the access to a critical resource is refused. Both consider that natural resources transformation are essential to generate wealth. The state requires income via taxes and royalties, and investors need projects with reasonable return rates. 

Between the extremes of freezing resources that are needed, or derailing them, the solution is to accommodate all parties interests and necessities. And that's what citizen participation is all about.

Key definitions

The utility of clarifying concepts and definitions does not require more presentation. The main definitions are:

Citizen Participation (Participación Ciudadana) is a central part of the EIA Environmental Impact Assessments (EIA) studies. 

In development or investment projects at the international level, the Public Consultation (Consulta Pública) is the use of a set of instruments and participatory processes with which the project owner consults each one of the possible stakeholders on the direct and indirect effects of the project. 

The consultation procedure includes the use of more than twenty social instruments. The instruments contain from the first "good neighbour's letter", up to the "final closing note" addressed to all stakeholders during the 23 life stages of any project. This public consultation in Latin America tends to follow the provisions of multilateral financial agencies, in particular, the World Bank[1], the IDB and CAF, and are based on the Rio Declaration of 1992[2]. These consultations are generally coordinated by the environmental authorities but in several countries, other types of bodies also participate.

The environmental public consultation of projects in Colombia is formally called: "Public Administrative Hearings on Environmental decisions" (“Audiencias Públicas Administrativas sobre Decisiones Ambientales”), shortened in practice to Environmental Public Hearings (Audiencia Pública Ambiental). These consultations tend to be easy to call and are coordinated by the National Environmental Licensing Authority (ANLA). It Mainly includes group activities in workshops open to the public[3]. The realization, participation and effectiveness are reviewed by the ANLA. These consultations are sensitive, and in areas of violence, they have a high risk for all participants. Decree 330 of February 2007 specifies the conditions of these environmental public hearings[4]. 

There is a particular type of consultation named the Previous Consultation (Consulta Previa). It is an obligatory consultation with indigenous and black communities that must be done before applying for an environmental license. It has to have the opinion of the representatives[5] of the communities in the affected area. These consultations tend to be complicated by the linguistic, ethnological and cultural aspects of populations subjected to change pressures. Those Consultations are done with the participation of the ANLA in collaboration with the Ministry of Interior.

In the licensing process, it is customary for these two types of citizen participation to be carried out before issuing a license, and those are a fundamental part of the EIA. In large part, this is done to avoid a Nullity Action (Acción de Nulidad) as per Article 73, Law 99/93, which would be costly to the investor for omitting essential citizen participation.

The Popular Consultation (Consulta Popular) is another type of animal of a different nature. These popular consultations do not come from the environmental area, nor do they seek to make the investor responsible for the externalities of the project. The popular consultations come from the political-administrative environment of the territorial entities of the State considered in law 134 of 1994[6]. The Popular Consultation is given when "A general question on a matter of national, departmental, municipal, district or local significance is submitted by the President of the Republic, the governor or the mayor, as the case may be, to the people's consideration for the decision formally about it. " In the political sphere these consultations are mainly made when, in the face of the difficulty for a government to assume complete responsibility, the authority passes the decision to the citizen. This tool has a long tradition in Western Culture. To have a more clear idea, the death of Jesus was the result of a fast an efficient, albeit limited, popular consultation.

The oppositions to projects is a new expression of democracy in Colombia after the end of the war with the FARC, but the consequences were unexpected and the investors and government are unprepared. In a country where geography is abrupt and varied, the motto written on the flag says: “Geography is...  knowing, walking, defending Our territory Our Peoples”. (foto Wikimedia Commons)

Citizen participation in Colombia is recent. Outside of open cabildos ("Cabildo Abierto") and perhaps the referendum that put an end to the government of G. Rojas in the 1950s, I do not know of other cases before the Constitution of 1991.  The most common tool in this area was and still is the citizen's strike (el Paro).

The constitution of 1991 brought with it a series of instruments of participation that have been developed slowly with the pressure exerted by the guerrilla and drug cartels; as well as some improper measures coming from the government side.   But now the expression of civil rights are exploding as the citizens are removed from the guerrilla war menace and rediscovering the rights and responsibilities under the new circumstances. It is a situation in which project owners and the government has to use the full extent of the social and environmental tools designed for developments plans and projects. 

 On the other hand, the moment of the creation of the ANLA coincided with the maximum strength of the forces against the state. In a practical way, both designers and environmental authorities minimized high-risk concertation tools for staff and officials. Little by little the tools were drop. Of more than twenty tools of citizen participation, this toolbox was left alone with the hardest and most effective instruments: the Hammers of the environmental public hearing and the previous consultation. The other tools were losing relevance due to the risks of violence from all sides.

And since the one with hammerhead tends to see all problems as nails, the environmental public hearing and the shortened previous consultation ended up becoming some kind of local referendum or popular consultation. And the major projects ended in some way subjected to the pros and cons of referendums.

From there to use Popular Consultation to stop projects or validate them, was only one step. Taking advantage of Colombia's recent democratic wave and inadequate management of public consultations done for a couple of reservoirs, it made way for the use in projects.  Popular Consultation is less suitable for environmental issues but apparently more expeditious than trying to challenge all stakeholders. The ease of reducing all the environmental problems to a ballot of yes-and-no has given the fret with years of experience, leading to ignoring the use of existing environmental instruments, designed explicitly for complex situations.

Referendums and the non-environmental popular consultation are apparently clear, but tend to assume others guilt, and they are manipulatable. 

They can be so easily manipulated that getting people out boar to vote can lead to unexpected results. 

In these times of post-truth with their misinformation and alternative truths, the quasi-referendum of the popular consultation creates enormous risks if the new social and information tools are not applied correctly in development or investment projects. 

In addition, anger the public in all countries is simple, just look at the public budget, the cost of living, the state of insecurity, the lacks of the justice system, the lack of fairness; add a couple of false news to misinform, find a "them" opposed to a "we", and you have the recipe of "Trumpism". That is why when applying political-type popular queries to projects of development or investment, nine interesting proposals were frozen and several others are suspended.

The set of concertation instruments

In the EIA the set of tools of citizen participation that includes the public environmental audience[7]. They agree on the three groups of actors of the projects: Government of shift, investors and public affected. 

The Court's recent decision is consistent with Law 99 of 1993 and its scope, with environmental principles and citizens' rights and the market economy. EIA's aim is to ensure the principles of equity and sustainability, maintain democratic and market principles by applying appropriate environmental instruments[8]. 

An overview of the inside of the Toolbox enables the identification of geographic information systems, cadastral systems, "blockchain" systems; Letters of good Neighbor; Surveys of all kinds; Correspondence with authorities and stakeholders; Information bulletins and Internet sites; Networking and networking software; lobbying strategies; Press and content analysis; Media analysis; Press releases; progress reports; Public service offices; Advertising and acceptance strategies; Image surveys, presence and acceptance; Print media strategies, electronic media, social networks, presentations in forums and conferences; briefings; Door-to-door visits; Surveys of social and environmental problems; Talking maps; Interactive voting and other types of consultative votes. 

Sample of an educational ballot on how to vote, distributed by the opposition to the gold mine of the Rio Piedras, Tolima. Note the complexity of the project reduced to six lines, with the bias of the negative presentation of the project and the excellent management of voter education. The no first at the left, and marked in red is a solid mental image.

What must be clear is that the public consultation is done on the specific impacts and their management plan; And not about the project itself. It is at the state level that the use of subsoil resources is defined. The inhabitants and landowners have to understand that they have "neighbours below[9]"Who have rights and duties different from theirs, create value and contribute to the state. 

Consulting is an iterative process, not restricted to a fixed number of events, but to obtain the desired result. Putting limits creates conflicts for everyone, including project owner and investors. 

Public Consult requires transparent procedures. All the parties, "neighbours from above, from the sides and from below," must be clear that the desired result is with respect to the total creation of value and sustainability. In the meantime, no agreement on value and sustainability has achieved the project should not receive a green light.

The neighbour below has to be entitled to expose his points without being vetoed, And this requires working individually on actual impacts and specific management measures one by one rather than vague general opinions. Putting all things in a sack, violent the rights of the neighbours below; As well as classifying all opposition as subversion. Similarly, delimiting the area of social impact only to the neighbours above, when the neighbuors below are irrigating benefits and problems to an immensely larger area, is another nonsense.

In many ways, "the neighbors below" also include those who benefit from the simple increase in circulating money in the region as shopkeepers, who find new opportunities providing services such as workshops, and even the "malleros" that form ranks endless hopefuls who spend their days in the sun and water waiting at the mesh enclosure in the hope of some work or your friend from inside you pass some news of a possible work, they are also neighbours of the project and are very clearly within their "area of influence".  By ignoring the neighbours below, significant problems are created for the country

The instruments of public consultation should be applied to all those affected and interested in trying to avoid all forms of discrimination and covering all those affected; that is called equity.

Make public consultation using a referendum or a popular consultation of Yes and No, for a project with hundreds of impact activities and thousands of management permutations is impractical. These are types of public participation that need to be done.

On the projects suspended today, exploring public domain information and under the conditions of the ANLA, of the nine projects suspended in limbo, seven can be taken back to environmental public hearing after using a combination of social tools to identify the aspects of redesign according to the specific requests of the population and use another combination of instruments to communicate and iterate again to submit the project to the ANLA. This could unclog the process as long as the national legislative Road level agreement is reached. 

Dialogue with farmers affected by glyphosate. Colombia is learning to manage democracy.

The exciting aspect of these exercises of citizen participation, is the democratic interest they have generated. But, apart from making us aware of the need to learn what other countries have already seen and learned, I see no different interesting result from The environmental point of view.  At the end of the day, democracy is participation, and there are several causes of failure for the involvement in these processes of public consultation on environmental issues.

Agendas as the source of conflict in public consultation

Surprisingly, the review of the information that has come to light on these cases indicates that the causes are known; but not easily manageable.

In my experience, it is necessary to use new tools and learn the handling of the issues of misinformation and the post-truth for the actors. Unfortunately, evidence of the use of new social and communication tools is sparse and difficult to verify.  The actors on those cases subject to Popular Consultation (Consulta Popular) can be put in three sets according to their main agendas. The agendas of the three groups of actors are more or less the following:

The Government's agenda as a temporary representative of the State is:

1.   Get that the project fits into the existing regulatory system and follows legal, financial and market rules; 

2.   Maintain total control of natural resources, planning and land use; 

3.   Maintain control over the flow of money generated by the transformation of natural resources into economic capital; 

4.   Maintain control of the population and gain control of part of the information and image for issues related to positioning, prestige, support networks and possible collateral benefits; and in an informal way, 
5.   Maintain the conditions of political power associated with the possibility of capturing economic power; and 

6.   Exploit the privileges that the power may provide.

The agenda of the project owners and investors is mainly based on the return on investment (ROI) to: 

1.   Convert Natural Capital in the Economic Capital with an internal rate of return that can be maximized; 

2.   Maintain control of natural and economic capitals and their processes,

3.   Maintain financial and legal autonomy,

4.   Minimizing costs and expenses,

5.   Minimize or download into third parties the burden or liability of externalities, 

6.   Minimizing taxes, insurances, contributions and participations,

7.   Maximize protection and services provided by the Estate,

8.   Achieve legal stability and freeze regulatory framework,

9.   Maintain total control of personnel, copyright, technology, information and resources within their corporations. And in an informal way,

10.Maintain the position of power and privilege that characterizes the executives and top professionals of the big corporations and projects.

The stakeholder agenda is to achieve:

1.   That the project does not complicate life,

2.   That the project does not raise taxes,

3.   That the project does not increase the cost of living,

4.   That the project create more work opportunities,

5.   That the project does not harm the standards of life or the environment with externalities coming of the project,

6.   That the stakeholders can maintain control of land use and resources and as far as possible, help to increase both,

7.   That the region prosper (basic services, utilities, and so on),

8.   That the project provide opportunities for equality and redistribution;

9.   That the corruption does not convert A- the controlled information into insider or privileged information, B- the public servants prestige into  crossing of revolving doors, C- the public support into network threads and cronyism; and D- the collateral benefits into corruption, bribes and "jam".

10. That locals can maintain privileges; and

11. That the project do not produce sudden changes or jumps on the local way of life.

These agendas have conflicting interests that require negotiation, but with the misuse of the popular consultation tool, each side will try to use its forces and power to overwhelm the other two in search of a position of advantage. 

Again, there is no clear evidence in the news coming out to the general public showing that the EIA practitioners considered all, or at least sizeable part, of those points during the public consultation in an adequate way. 

The difficulty in the public consultation is also in the multiplicity of actors within each group. All of them have to be addressed and seek for the best possible solution. The diversity of actors in itself is an issue to consider and possible a subject of another note.


A personal view

Common sense indicates that using the tools for environmental issues is the right thing to do at the moment. Those are complete for normal consultation when all stake holders are involucrate into the public participation. Project owners, EIA practitioners and government shall avoid the use of political instruments on development or investment projects. 

In any case, the public consultation on environmental issues in Colombia already has accumulated large experience in public participation. EIA practitioners have the experience of the environmental workshops requested by the Inderena since 1988, which include management of projects in areas of operation of guerrillas, para-militaries, the selective murders of popular leaders, manipulation of influential journalists[10], ecotage[11] and the eco-terrorism that still continue.

The application of a political tool designed for other uses and circumstances is similar to use pliers as a hammer.

I am conscious that is easier to say than to do, but Colombia deserves another try for this nine projects. 

The stricken similarities with the recent conflicts around pipelines in Canada and USA, may imply a generalized failure in the EIA procedures. In those countries, the role of deregulation and assign the burden of public participation into the other actors, shall be studied before return the pendulum to stiffen the rules. 

Public participation shall be fluid and based in adequate information, economic sense, and sustainability.

Final question

I am working on citizen participation and the instruments used in environmental studies, resource development projects and investment projects.

Please:

Do you know a project’s  environmental and/or social study in which some of the techniques of information analysis, media analysis, opinion analysis of the affected population, or graphics, association, or the use of Excel macros, GEPHY, etc. have been used to Identify leaders of opinion, relevance of concepts, ideas or positions?

It can be in Colombia or any other country included Canada the USA or any other country in the world where the study are of public domain and in English, Spanish, Portuguese or French. 

Thank you for help.

I appreciate your opinions and comments.

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[1] For better understanding, the World Bank's guide called "Consultations Guidelines," contains one of the best sets of citizen participation and public consultation practices.

[2] Public consultation in Latin American countries is based on principle 10 of the Rio 1992 Declaration

[3] The environmental public hearing is based on title 10 of the modes and procedures of citizen participation of Colombia's Environmental Law: Law 99 of 1993

[4] The regulation of public environmental audiences is in Colombia's Decree:  Decree 330 of February of 2007.

[5] The prior consultation is based on article 76 of the Law 99 of 1993

[6] The Colombia's Law: Law 134 of 1994 defines the mechanisms of citizen participation, but unfortunately does not differentiate them, from the instruments of citizen participation in the environmental area.

[7] The central aspects of the EIA are: 1-risk analysis and impact prediction, 2-the Environmental management plan, 3-the public consultation; and 4-decision making. The final objective of the EIA is to bring the "externalities" into the project, in order to guarantee sustainable development.

[8] These environmental instruments are 1-normative, 2-participatory or citizen, 3-information, and 4-market based.

[9] In Colombia it is accepted that the premises have neighbors owners when referring to the neighbors of the sides with rights similar to their own, but it tends to ignore that all property may also have other neighbors with special rights such as Public roads, bodies of water, rivers and beaches, thus generating several conflicts. Even more serious are when owners ignore that every property has real neighbours under their feet. "The neighbors below" are those who have rights to  use the subsoil to cruce utilities or to exploit the richness of the underground. These neighbors are poorly represented in legislation and land-management plans; and consequently, their environmental and rights responsibilities are somewhat disfigured despite the importance of the resources they manage. Also every venue has neighbors "upstairs", but that's another issue.

[10] Like the case of Salud Hernandez, the ELN and the poultry industry of Santander. The case began with public officials discredited when the ELN-provided her false information (without her knowing), continued with threats to the official who migrated to another country. It continued with the kidnapping of the journalist by its manipulators, and God forbid the case will not end in worse things.

[11] Sabotage based on ecological and environmental emotions.