Investment Projects and the Protection of Indigenous Peoples and Territories in Colombia.
This article addresses the protection of indigenous peoples and their natural habitats in Colombia when investment projects are planned or implemented. Special attention is paid to mechanisms of prior informed consultation and free, prior and informed consent. The Colombian case is relevant because it is at the forefront of protecting the rights of indigenous people and their territories and it has to balance the environment (a megadiverse country) with the economy (highly dependent on mining exports) and indigenous rights. From a law and sustainable development perspective, this article analyses a novel combination of statistical data sets, case law, and regression analysis to test the outcomes of prior consultations and their interaction with environmental licensing.. The conclusions point to the scale of the use of protection mechanisms, patterns in the behavior of indigenous peoples, and the outcomes of these mechanisms. They also point to the need to reconsider transaction costs and the crucial role of the Constitutional Court.
INTRODUCTION
The protection of indigenous peoples' rights depends on a constitutional model, and the protection of the lands of ethnic minorities is increasingly interconnected with environmental protection. Ecosystem preservation and conservation depend on how inhabitants use or exploit them. From a development perspective, governments struggle between adopting sustainable economic measures to eradicate poverty and exploiting natural resources without crossing the safe space to operate (Rockström et al., 2023). These governance challenges and constitutional provisions reflect the value attributed to ecosystems and whether the value that indigenous people attribute to them is recognized. In other words, whether ecosystems have mainly an economic value, intrinsic value, or something in between (social, cultural, or "existential" value for those who live in them) (Davidson, 2013, p. 173).. In Latin America, many constitutions recognize the right to a healthy environment and the sovereignty of states to exploit natural resources, but also acknowledge the "existence value" of ecosystems that are attributed to nature by IP (Davidson, 2013; Krutilla, 1967). The Ecuadorian constitution gives intrinsic value to Mother Earth. Latin American countries adopt different constitutions, ranging from those seeking a balanced model for the sustainable exploitation of natural resources (anthropocentric models) to those that protect IP land and culture, to those incorporating an ecocentric approach (Imhof et al., 2016).
Colombia combines three elements that are relevant for IP: first, its constitution provides generous protection for human rights, IP and the environment (Gómez-Betancur et al., 2022; Macpherson et al.,2020, Sanabria-Rangel,202, Wesche,20). Second, Colombia has the second-largest biodiversity in the world, after Brazil (World Population Review,2013). Thirdly, the Colombian economy depends heavily on the exploitation of non-renewable natural resources, such as oil, coal and other minerals, which accounted for approximately 56% of exports in 20.
In terms of institutional design, Colombia has moved between three main models of sustainable development, depending on the government in power and the branch of government. First, an anthropocentric model has been implemented over the last few decades by governments, aligning with neoliberal economics. Second, courts have backed a biocultural model, which promotes development that is receptive to indigenous culture. This model seems to be aligned with government policy since 2022. Finally, the ecocentric approach seeks to preserve ecosystems and protect nature's rights.; Viaene, 2022) some international agencies, and some courts and actors often promote de-growth. They claim that these options are the only way to address the climate crisis and loss of biodiversity. Buch-Hansen & Carstensen (2021), Escobar (2015), Garver (2013), Hickel (2020), Muniz & Cruz (2015) and Perkins (2019) all agree. Sandberg et al. (2018) also agree with this view. These three development models contradict each other in many ways, including from an economic perspective, making institutional design a difficult task.
Progressive approaches to the protection of intellectual property (IP) in Colombia are based on several international treaties. However, this progressive approach towards IP rights has not been absolute. In 2016, Colombia, the United States, Canada, and Brazil issued statements addressing various aspects of the American Declaration on Intellectual Property (OAS, 2017). Colombia made comments on various articles (XX, XXIII, and XXX) regarding the participation of intellectual property in administrative and legislative measures affecting them, consultation with indigenous peoples, and prohibition of military activity in indigenous territories. These comments mainly sought to clarify that prior informed consultation should not be interpreted as a veto on the part of intellectual property.
The 1989 Indigenous and Tribal Peoples Convention (ILO, 198) is the core convention that protects indigenous peoples' rights and lands. It seeks to reconcile conflicting interests - indigenous rights and environmental conservation, as well as investment promotion in indigenous territories. Although it follows a biocultural or ecocentric approach, ILO 69 fails to protect indigenous peoples; state agencies responsible for mining, energy, hydrocarbons and infrastructure, as well as some investors, have contested recognition of indigenous peoples' land and rights. Some national courts, including the Inter-American Court of Human Rights, have upheld indigenous rights when economic activity is planned in indigenous territory. This tension between actors advocating different development models demonstrates how indigenous lands and rights are intrinsically linked to investment policies, and why indigenous people struggle for free use (or non-use) of their land and natural resources. (Kröger & Lalander, 201); Robledo Silva & Rivas-Ramirez, 2020; Rodriguez-Garavito, 2011; Zarate-Toledo et al. (2019); Zaremberg & Wong (2008). The global relevance of the Colombian (and Latin American) perspective lies in the fact that ILO 169 is the only international treaty that recognises IP rights over their territories. Only 24 states have ratified this treaty, and of these, 14 are Latin American, one is Caribbean, five are European, two are from the Asia Pacific region, and one is African. Furthermore, the case of Colombia has influenced the Inter-American human rights system by extending ILO 6 protection to Afro-descendent communities. In Europe, the European Parliament recommended that EU member states and partners uphold IP and peasant rights and ensure that trade and investment policies respect them. To date, there has been no further ratification or adherence in this region.
A deeper analysis of the Colombian case reveals the potential for integrating indigenous priorities into investment projects for natural resource exploitation, which is crucial for keeping global economies operating within a safe space (Rockström et al., 2023). The focus is on the mechanisms of prior informed consent (PIC) and free, prior and informed consent, used more in Colombia than in other Latin American countries. Although some literature indicates positive outcomes from these mechanisms for achieving sustainable development aligned with Indigenous interests, other authors consider them ineffective (Guevara Gil & Cabanillas Linares, 2020; Hougaard, 2022; Schilling-Vacaflor, 2109; Wesche 2008). This analysis is, to my understanding, the first to combine a legal and sustainable development perspective with quantitative evidence.
The article is organized as follows: Section 2 reviews the literature; Section 3 introduces the Colombian case; Section 4 presents the methodology and data; Section 5 discusses the results; and Section 6 offers some conclusions.
LITERATURE REVIEW
The evolution of the three development models (anthropocentric, biocultural, and ecocentric) and their implications for the recognition of IP rights in their territories reflect the economic policies pursued by states. From a mainstream economic perspective, contributions to the nature-economy nexus have not been linked with the protection of IP and land rights. The policies mainly seek to address the link between environmental degradation and economic growth through the environmental Kuznets curve. Environmental economics support environmental regulations that view the environment as a scarce resource and consider the costs of environmental degradation.. This model, which is highly contested, is gradually moving towards sustainable economic development, promoting sustainable economic growth by reducing pollution and its consequences, or both. This literature is primarily known as green growth approaches, which have been materialized in policies such as the Sustainable Development Goals and the Green Deal.
Meanwhile, the current ecological crises described by the planetary boundaries framework (Rockström et al., 2009, 2023; Steffen et al., 2015), which have given more visibility to approaches such as ecological economics (Garver, 2013; Hornborg & Martinez-Alier, 2016; Kronenberg, 2010; Martinez-Aier, 218), focusing on how to reduce material and energy consumption, and how to implement degrowth theories (Akbulut, et al. 2019), has frequently raised concerns about approval of projects on indigenous lands, especially if they are linked to fossil fuel industries (Garvey, 220; Perkins, 19). A literature review of the use of EKC over time showed that economic analysis of sustainability had shifted to ecological and development economics.. This analysis is corroborated by a review of law and economics journals, where protection of IP and its territories has received little attention. In fact, only one article reviewed the case of indigenous lands in Brazil, but it relied mainly on descriptive statistics and qualitative comparative analysis (Monteiro et al., 2019).
A broader look at the literature on law and sustainable development—with connections to institutional economics, political economy, law, and policy, or governance—reveals additional insights. States with racial and cultural diversity seek an efficient institutional design that reflects cultural diversity and addresses economic challenges. In addition to creating “red lines” in the form of natural reserves, the adoption of mechanisms for local participation in development projects and policies has been proposed to balance between protecting intellectual property (IP) lands and promoting investment projects seeking to exploit natural resourc
There is no one-size-fits-all governance model. The way constitutions shape relations between the state, the economy, and intellectual property (IP) should be context-sensitive. In a context of indigenous communities, cultural differences and concepts of territoriality and land use add complexity and fuel tensions in the design of policies for indigenous communities. This is true even if indigenous territorial concepts are incorporated into contemporary policy frameworks. However, mixed results from such participatory mechanisms have been reported globally.. In Norway, the Sámi people have sought to influence mining projects, but their effects vary significantly from one project to another, because the relative importance of the indigenous population in the total population of a municipality emerges as a crucial variable. Based on the Sami case, Valkonen et al. conclude that "indigeneity" is not an objective fact, but a political demand and act of framing. The rights associated with being indigenous have increased the appeal of this idea among local people in Northern Finland and made them more likely to identify as indigenous. Economic incentives can explain people's behavior in indigenous contexts.
In Latin America, conflicts between indigenous lands and energy-related activities are frequent. Some empirical studies find that PI is not effective in preventing the expansion of extractive projects on indigenous territories (Urteaga-Crovetto, 2018; Zaremberg & Wong, 2019). Yet, based on a typology of possible or desired outcomes for PI (such as preventing industrialized resource extraction in indigenous territories, redistributing the economic benefits of resource extraction, and reducing state repression associated with extractive investment projects), these outcomes are often achieved only partially (Zaremberg and Wong, 1982). The extraction of critical minerals such as lithium is controversial because it often takes place in indigenous territories. (Finn and Stanton, 2107; Marcheggiani et al. 2200; Owen et al., 1123; Owen et. al., 021; Petavratzi, et. Al., 24)
In the Arctic region, the benefit sharing of indigenous communities within the context of extractive industries has been addressed (Britcyna, 2019; Wilson, 2018), and its effectiveness in protecting indigenous interests has been questioned. However, these conflicts are not limited to extractive industries alone. Energy transition investment projects also cause conflicts. Some disputes arise because PICs are seen as transaction costs for these projects, and IP may feel that PICs have not been carried out in a proper manner or there is a lack of access to benefits in monetary or affordable terms (Murgas et al., 2020; Ramirez, 21).
Regarding institutional design, some studies find that constitutional or legislative protection of ethno-territorial rights from the possible effects of extractive industries show positive outcomes (Allard & Curran, 2023; Kröger & Lalander, 2016; Wilson, 2019). This de jure protection does not guarantee de facto protection, but it can provide communities and social actors with more effective means to defend their interests. These frameworks seem to be relatively more effective when private companies develop an extractive project compared to cases where the state is the principal economic stakeholder (Kröger and Lalander 2015). The Swedish case illustrates the importance of institutional design (here the non-ratification of ILO 169) for protecting indigenous (Sami) rights (Tarras Wahlberg and Southalan 2009). In Brazil policy implementation has been questioned in conflicts related to infrastructure projects in the Amazon. It seems crucial to define which areas should be directly affected, which communities should be consulted, and how to make participation most effective.
The protection of indigenous peoples' rights depends on a constitutional model, and the protection of the lands of ethnic minorities is increasingly interconnected with environmental protection. Ecosystem preservation and conservation depend on how inhabitants use or exploit them. From a development perspective, governments struggle between adopting sustainable economic measures to eradicate poverty and exploiting natural resources without crossing the safe space to operate (Rockström et al., 2023). These governance challenges and constitutional provisions reflect the value attributed to ecosystems and whether the value that indigenous people attribute to them is recognized. In other words, whether ecosystems have mainly an economic value, intrinsic value, or something in between (social, cultural, or "existential" value for those who live in them) (Davidson, 2013, p. 173).. In Latin America, many constitutions recognize the right to a healthy environment and the sovereignty of states to exploit natural resources, but also acknowledge the "existence value" of ecosystems that are attributed to nature by IP (Davidson, 2013; Krutilla, 1967). The Ecuadorian constitution gives intrinsic value to Mother Earth. Latin American countries adopt different constitutions, ranging from those seeking a balanced model for the sustainable exploitation of natural resources (anthropocentric models) to those that protect IP land and culture, to those incorporating an ecocentric approach (Imhof et al., 2016).
Colombia combines three elements that are relevant for IP: first, its constitution provides generous protection for human rights, IP and the environment (Gómez-Betancur et al., 2022; Macpherson et al.,2020, Sanabria-Rangel,202, Wesche,20). Second, Colombia has the second-largest biodiversity in the world, after Brazil (World Population Review,2013). Thirdly, the Colombian economy depends heavily on the exploitation of non-renewable natural resources, such as oil, coal and other minerals, which accounted for approximately 56% of exports in 20.
In terms of institutional design, Colombia has moved between three main models of sustainable development, depending on the government in power and the branch of government. First, an anthropocentric model has been implemented over the last few decades by governments, aligning with neoliberal economics. Second, courts have backed a biocultural model, which promotes development that is receptive to indigenous culture. This model seems to be aligned with government policy since 2022. Finally, the ecocentric approach seeks to preserve ecosystems and protect nature's rights.; Viaene, 2022) some international agencies, and some courts and actors often promote de-growth. They claim that these options are the only way to address the climate crisis and loss of biodiversity. Buch-Hansen & Carstensen (2021), Escobar (2015), Garver (2013), Hickel (2020), Muniz & Cruz (2015) and Perkins (2019) all agree. Sandberg et al. (2018) also agree with this view. These three development models contradict each other in many ways, including from an economic perspective, making institutional design a difficult task.
Progressive approaches to the protection of intellectual property (IP) in Colombia are based on several international treaties. However, this progressive approach towards IP rights has not been absolute. In 2016, Colombia, the United States, Canada, and Brazil issued statements addressing various aspects of the American Declaration on Intellectual Property (OAS, 2017). Colombia made comments on various articles (XX, XXIII, and XXX) regarding the participation of intellectual property in administrative and legislative measures affecting them, consultation with indigenous peoples, and prohibition of military activity in indigenous territories. These comments mainly sought to clarify that prior informed consultation should not be interpreted as a veto on the part of intellectual property.
The 1989 Indigenous and Tribal Peoples Convention (ILO, 198) is the core convention that protects indigenous peoples' rights and lands. It seeks to reconcile conflicting interests - indigenous rights and environmental conservation, as well as investment promotion in indigenous territories. Although it follows a biocultural or ecocentric approach, ILO 69 fails to protect indigenous peoples; state agencies responsible for mining, energy, hydrocarbons and infrastructure, as well as some investors, have contested recognition of indigenous peoples' land and rights. Some national courts, including the Inter-American Court of Human Rights, have upheld indigenous rights when economic activity is planned in indigenous territory. This tension between actors advocating different development models demonstrates how indigenous lands and rights are intrinsically linked to investment policies, and why indigenous people struggle for free use (or non-use) of their land and natural resources. (Kröger & Lalander, 201); Robledo Silva & Rivas-Ramirez, 2020; Rodriguez-Garavito, 2011; Zarate-Toledo et al. (2019); Zaremberg & Wong (2008). The global relevance of the Colombian (and Latin American) perspective lies in the fact that ILO 169 is the only international treaty that recognises IP rights over their territories. Only 24 states have ratified this treaty, and of these, 14 are Latin American, one is Caribbean, five are European, two are from the Asia Pacific region, and one is African. Furthermore, the case of Colombia has influenced the Inter-American human rights system by extending ILO 6 protection to Afro-descendent communities. In Europe, the European Parliament recommended that EU member states and partners uphold IP and peasant rights and ensure that trade and investment policies respect them. To date, there has been no further ratification or adherence in this region.
A deeper analysis of the Colombian case reveals the potential for integrating indigenous priorities into investment projects for natural resource exploitation, which is crucial for keeping global economies operating within a safe space (Rockström et al., 2023). The focus is on the mechanisms of prior informed consent (PIC) and free, prior and informed consent, used more in Colombia than in other Latin American countries. Although some literature indicates positive outcomes from these mechanisms for achieving sustainable development aligned with Indigenous interests, other authors consider them ineffective (Guevara Gil & Cabanillas Linares, 2020; Hougaard, 2022; Schilling-Vacaflor, 2109; Wesche 2008). This analysis is, to my understanding, the first to combine a legal and sustainable development perspective with quantitative evidence.
The article is organized as follows: Section 2 reviews the literature; Section 3 introduces the Colombian case; Section 4 presents the methodology and data; Section 5 discusses the results; and Section 6 offers some conclusions.
LITERATURE REVIEW
The evolution of the three development models (anthropocentric, biocultural, and ecocentric) and their implications for the recognition of IP rights in their territories reflect the economic policies pursued by states. From a mainstream economic perspective, contributions to the nature-economy nexus have not been linked with the protection of IP and land rights. The policies mainly seek to address the link between environmental degradation and economic growth through the environmental Kuznets curve. Environmental economics support environmental regulations that view the environment as a scarce resource and consider the costs of environmental degradation.. This model, which is highly contested, is gradually moving towards sustainable economic development, promoting sustainable economic growth by reducing pollution and its consequences, or both. This literature is primarily known as green growth approaches, which have been materialized in policies such as the Sustainable Development Goals and the Green Deal.
Meanwhile, the current ecological crises described by the planetary boundaries framework (Rockström et al., 2009, 2023; Steffen et al., 2015), which have given more visibility to approaches such as ecological economics (Garver, 2013; Hornborg & Martinez-Alier, 2016; Kronenberg, 2010; Martinez-Aier, 218), focusing on how to reduce material and energy consumption, and how to implement degrowth theories (Akbulut, et al. 2019), has frequently raised concerns about approval of projects on indigenous lands, especially if they are linked to fossil fuel industries (Garvey, 220; Perkins, 19). A literature review of the use of EKC over time showed that economic analysis of sustainability had shifted to ecological and development economics.. This analysis is corroborated by a review of law and economics journals, where protection of IP and its territories has received little attention. In fact, only one article reviewed the case of indigenous lands in Brazil, but it relied mainly on descriptive statistics and qualitative comparative analysis (Monteiro et al., 2019).
A broader look at the literature on law and sustainable development—with connections to institutional economics, political economy, law, and policy, or governance—reveals additional insights. States with racial and cultural diversity seek an efficient institutional design that reflects cultural diversity and addresses economic challenges. In addition to creating “red lines” in the form of natural reserves, the adoption of mechanisms for local participation in development projects and policies has been proposed to balance between protecting intellectual property (IP) lands and promoting investment projects seeking to exploit natural resourc
There is no one-size-fits-all governance model. The way constitutions shape relations between the state, the economy, and intellectual property (IP) should be context-sensitive. In a context of indigenous communities, cultural differences and concepts of territoriality and land use add complexity and fuel tensions in the design of policies for indigenous communities. This is true even if indigenous territorial concepts are incorporated into contemporary policy frameworks. However, mixed results from such participatory mechanisms have been reported globally.. In Norway, the Sámi people have sought to influence mining projects, but their effects vary significantly from one project to another, because the relative importance of the indigenous population in the total population of a municipality emerges as a crucial variable. Based on the Sami case, Valkonen et al. conclude that "indigeneity" is not an objective fact, but a political demand and act of framing. The rights associated with being indigenous have increased the appeal of this idea among local people in Northern Finland and made them more likely to identify as indigenous. Economic incentives can explain people's behavior in indigenous contexts.
In Latin America, conflicts between indigenous lands and energy-related activities are frequent. Some empirical studies find that PI is not effective in preventing the expansion of extractive projects on indigenous territories (Urteaga-Crovetto, 2018; Zaremberg & Wong, 2019). Yet, based on a typology of possible or desired outcomes for PI (such as preventing industrialized resource extraction in indigenous territories, redistributing the economic benefits of resource extraction, and reducing state repression associated with extractive investment projects), these outcomes are often achieved only partially (Zaremberg and Wong, 1982). The extraction of critical minerals such as lithium is controversial because it often takes place in indigenous territories. (Finn and Stanton, 2107; Marcheggiani et al. 2200; Owen et al., 1123; Owen et. al., 021; Petavratzi, et. Al., 24)
In the Arctic region, the benefit sharing of indigenous communities within the context of extractive industries has been addressed (Britcyna, 2019; Wilson, 2018), and its effectiveness in protecting indigenous interests has been questioned. However, these conflicts are not limited to extractive industries alone. Energy transition investment projects also cause conflicts. Some disputes arise because PICs are seen as transaction costs for these projects, and IP may feel that PICs have not been carried out in a proper manner or there is a lack of access to benefits in monetary or affordable terms (Murgas et al., 2020; Ramirez, 21).
Regarding institutional design, some studies find that constitutional or legislative protection of ethno-territorial rights from the possible effects of extractive industries show positive outcomes (Allard & Curran, 2023; Kröger & Lalander, 2016; Wilson, 2019). This de jure protection does not guarantee de facto protection, but it can provide communities and social actors with more effective means to defend their interests. These frameworks seem to be relatively more effective when private companies develop an extractive project compared to cases where the state is the principal economic stakeholder (Kröger and Lalander 2015). The Swedish case illustrates the importance of institutional design (here the non-ratification of ILO 169) for protecting indigenous (Sami) rights (Tarras Wahlberg and Southalan 2009). In Brazil policy implementation has been questioned in conflicts related to infrastructure projects in the Amazon. It seems crucial to define which areas should be directly affected, which communities should be consulted, and how to make participation most effective.
In Canada, although it has not signed ILO 169, the involvement of IP when their territories are affected by investment projects has been widely discussed. First, IP being given veto rights, as in the case of FPIC, has generated some resistance (Leydet, 2019). Second, an analysis of Canada's infrastructure corridor projects concluded that the recognition of IP rights, particularly FPIC, constitutes a transaction (economic) cost for investment projects, caused by the mistrust of governments that obstruct a comprehensive participation of IP where they share environmental jurisdiction. The increasing recognition of IP rights, including lands and jurisdiction by courts, governments, and industry, has also been considered as a factor that increases the transaction costs for the energy and resource infrastructure corridor (Le Dressay et al., 2022). Still, the incorporation of the Declaration on the Rights of Indigenous Peoples (UNDRIP) into legislation in British Columbia has been cited as a good example for countries that have not adhered to ILO 169, such as Sweden (Allard & Curran, 2023).
In Canada, transactional arrangements have emerged that explicitly recognize cultural identity and relations with ecosystems (Mason et al., 2012). The adoption of impact and benefit agreements (IBA) between companies and IP are frequent (Odumosu & Newman, 2021) and are not free of objections (Cascadden et al., 2021). This contractual model has been assessed as an option for the (paternalistic) model of ILO 169, particularly regarding benefit sharing. An assessment for Chile concluded that this contractual model is not a better option than the PIC model of ILO 169 because it excludes support from the state and would leave IP in a more disadvantaged position (Carmona Caldera, 2022).
Literature on indigenous entrepreneurship challenges the view that the "game" that is played between a potential investor and a local community is necessarily a game between two players with incompatible preferences and strictly opposing interests, where the interests of the IP are always to keep their lands and ecosystems untouched. Indigenous entrepreneurship goes further than passive benefit-sharing arrangements, and refers to indigenous people or communities who experiment with forms of organization to participate in the market economy, producing goods and services and improving their livelihoods, while respecting the essential cultural parameters of their communities. Indigenous entrepreneurial activity has been considered compatible with World Bank policy on indigenous peoples (World Bank, 2005), and ILO Convention No. 169.. Overall, there is enough evidence to suggest that globally there is a wide variation in the willingness and capacity of indigenous entrepreneurs, and the modalities for their participation in investment projects proposed by third parties. Different interpretations of these new forms of economic participation are possible. For example, critical analysts have described how elite-driven new political technologies deal with local community opposition to extractive projects by setting up mixed public-private social corporations in Chile.
Despite the variety of situations regarding the willingness of IPs to adhere to or oppose investment projects, the regulation of PICS and FPICS shows a growing juridification of ethnic differences over the last 30 years as a way to manage the culture-ethnicity-economy nexus globally (Larsen & Gilbert, 2020; Rodríguez-Garavito, 2011, 219). These modalities vary in different national contexts and cover different realities regarding how participation of affected communities plays out in practice (Lawrence & Moritz, 2919; Rodriguez-Garavito 209). In a Colombian and Latin American context, overall results have been described as ambiguous or mixed. While PICS does not fundamentally change power relations, it also does not mean that substantial disputes are completely transformed into procedural disputes or disputes (Rodrguez-Garavito, 28). Limitations to indigenous participation should not be underestimated (Flmer & Schiling-Vacaflor, 8; Guevera Gil & Cabnillas Lnres, 9); Hougaard, 2022; Schilling-Vacaflor, 2019; Shapiro & McNeish, 2021; Weshe, 2007). Another study on mining and hydrocarbon production in Colombia concluded that PIC had served to represent IP interests, and that the Constitutional Court had played an important role in upholding such procedures.
At least six building blocks could be identified from this literature review for analyzing the interaction between IP rights and development policies aimed at exploiting resources located on their lands. The cost–benefit analysis of investment projects for investors, IPs, and territories, as well as society, including methods for determining the extent of affected areas, economic costs of blocked or delayed investments, and the need to include costs and benefits that are difficult to quantify or monetize, such as intrinsic or existential values attributed to ecosystems by IPS.
The effectiveness of participatory processes means the relationship between design features and incentive structures, on the one hand, and outcomes, on the other hand.
The contractual approach to the state–indigenous community nexus means access to benefits sharing and stability of agreements, while information and power asymmetries signal co-determination of the skewed distribution of benefits from investment projects. The regulatory approach to investor-state relations means design options for incorporating FPIC into negotiations.
Economic behavior of IPs covers the specifics of traditional indigenous economic activities, such as small-scale ones, self-identification driven by economic incentives, explained by behavioral approaches or rent seeking logics, and indigenous entrepreneurship participation in investment projects. Courts' behavior, and more specifically, how economic variables influence judgments regarding the protection of IPs and territories, is also important.
THE COLOMBIAN CASE:
Constitutional design and legal framework
The Colombian Constitution of 1991 (articles 7, 329, and 330), stipulates that intellectual property (IP) territories are their collective and non-transferable property. Therefore, IP must be involved in projects related to natural resources located within their territories or subsoil. Moreover, ILO Convention 169 forms part of the constitutional block (Colombian Constitution, article 93). This means that it is an integral part of the constitution and has primacy over other national laws and treaties on issues other than human rights. Convention 15 of ILO (ILO 1989) requires states to protect IP rights related to natural resource use, management and conservation on their land. The Colombian Constitution also adopted the option provided by ILO 169, which allows states to retain ownership of mineral and sub-surface resources, or rights to other land-related resources, on the condition that, before undertaking any activities in IP territories, a PIC is organized by the state to enable IP to assess how their interests will be affected. IP, in turn, have the right to determine whether they can participate in benefits from such activities and receive fair compensation for any harm resulting from them. However, information asymmetry in these situations requires careful assessment, including recognition of IP's rights to their lands and ecosystems (Arsenault et al., 2019). Furthermore, ILO 69 requires states to avoid exploiting natural resources on IPs' lands if such activities may cause displacement or significant environmental degradation (Rodriguez, 2007).. This model leaves no room for contractual arrangements between investors and IPs outside the regulatory framework of PIC, where the state must intervene.
Prior informed consultation and free, prior, and informed consent: veto rights for investment projects? In Colombia, PICs and FPICs are considered fundamental rights of IPs and other ethnic groups when decisions are made that may directly affect them, or when projects are planned to be implemented within their territories, which may also directly affect these groups (CCC, 1997). The PIC materializes IP's right to set priorities in development programs and projects that affect them (Rodriguez, 2021), or their values related to ecosystems at stake.
FPIC integrates within the cost–benefit analysis (from an economic perspective) or proportionality test (from a legal perspective) the various values attributed to ecosystems so that the consent of IPs must be obtained when their essential values related to their lands and ecosystems may be affected by investment projects; however, this measure is of exceptional application. FPIC is a more stringent protection, restricted to projects that may have a possible “intense direct impact,” in other words, “when a measure threatens the subsistence of the traditional community” (see CCC, 2018; Ministerio del Interior, 2020; Rodríguez, 2021). FPIC is considered effective if it has a verifiable result on the decisions to be made, which must be reflected in the action plans and measures implemented by the authorities (see CCC, 1997, 2018). It is a stricter protection because unlike with PIC, the projects cannot be implemented without obtaining the FPIC (CCC, 2018). This study captures mainly cases of consultation, which are the majority and which do not grant IP veto rights, skewing the balance in favor of the economic value attributed to their lands and ecosystems over the existential value that IP may attribute them.
In Canada, transactional arrangements have emerged that explicitly recognize cultural identity and relations with ecosystems (Mason et al., 2012). The adoption of impact and benefit agreements (IBA) between companies and IP are frequent (Odumosu & Newman, 2021) and are not free of objections (Cascadden et al., 2021). This contractual model has been assessed as an option for the (paternalistic) model of ILO 169, particularly regarding benefit sharing. An assessment for Chile concluded that this contractual model is not a better option than the PIC model of ILO 169 because it excludes support from the state and would leave IP in a more disadvantaged position (Carmona Caldera, 2022).
Literature on indigenous entrepreneurship challenges the view that the "game" that is played between a potential investor and a local community is necessarily a game between two players with incompatible preferences and strictly opposing interests, where the interests of the IP are always to keep their lands and ecosystems untouched. Indigenous entrepreneurship goes further than passive benefit-sharing arrangements, and refers to indigenous people or communities who experiment with forms of organization to participate in the market economy, producing goods and services and improving their livelihoods, while respecting the essential cultural parameters of their communities. Indigenous entrepreneurial activity has been considered compatible with World Bank policy on indigenous peoples (World Bank, 2005), and ILO Convention No. 169.. Overall, there is enough evidence to suggest that globally there is a wide variation in the willingness and capacity of indigenous entrepreneurs, and the modalities for their participation in investment projects proposed by third parties. Different interpretations of these new forms of economic participation are possible. For example, critical analysts have described how elite-driven new political technologies deal with local community opposition to extractive projects by setting up mixed public-private social corporations in Chile.
Despite the variety of situations regarding the willingness of IPs to adhere to or oppose investment projects, the regulation of PICS and FPICS shows a growing juridification of ethnic differences over the last 30 years as a way to manage the culture-ethnicity-economy nexus globally (Larsen & Gilbert, 2020; Rodríguez-Garavito, 2011, 219). These modalities vary in different national contexts and cover different realities regarding how participation of affected communities plays out in practice (Lawrence & Moritz, 2919; Rodriguez-Garavito 209). In a Colombian and Latin American context, overall results have been described as ambiguous or mixed. While PICS does not fundamentally change power relations, it also does not mean that substantial disputes are completely transformed into procedural disputes or disputes (Rodrguez-Garavito, 28). Limitations to indigenous participation should not be underestimated (Flmer & Schiling-Vacaflor, 8; Guevera Gil & Cabnillas Lnres, 9); Hougaard, 2022; Schilling-Vacaflor, 2019; Shapiro & McNeish, 2021; Weshe, 2007). Another study on mining and hydrocarbon production in Colombia concluded that PIC had served to represent IP interests, and that the Constitutional Court had played an important role in upholding such procedures.
At least six building blocks could be identified from this literature review for analyzing the interaction between IP rights and development policies aimed at exploiting resources located on their lands. The cost–benefit analysis of investment projects for investors, IPs, and territories, as well as society, including methods for determining the extent of affected areas, economic costs of blocked or delayed investments, and the need to include costs and benefits that are difficult to quantify or monetize, such as intrinsic or existential values attributed to ecosystems by IPS.
The effectiveness of participatory processes means the relationship between design features and incentive structures, on the one hand, and outcomes, on the other hand.
The contractual approach to the state–indigenous community nexus means access to benefits sharing and stability of agreements, while information and power asymmetries signal co-determination of the skewed distribution of benefits from investment projects. The regulatory approach to investor-state relations means design options for incorporating FPIC into negotiations.
Economic behavior of IPs covers the specifics of traditional indigenous economic activities, such as small-scale ones, self-identification driven by economic incentives, explained by behavioral approaches or rent seeking logics, and indigenous entrepreneurship participation in investment projects. Courts' behavior, and more specifically, how economic variables influence judgments regarding the protection of IPs and territories, is also important.
THE COLOMBIAN CASE:
Constitutional design and legal framework
The Colombian Constitution of 1991 (articles 7, 329, and 330), stipulates that intellectual property (IP) territories are their collective and non-transferable property. Therefore, IP must be involved in projects related to natural resources located within their territories or subsoil. Moreover, ILO Convention 169 forms part of the constitutional block (Colombian Constitution, article 93). This means that it is an integral part of the constitution and has primacy over other national laws and treaties on issues other than human rights. Convention 15 of ILO (ILO 1989) requires states to protect IP rights related to natural resource use, management and conservation on their land. The Colombian Constitution also adopted the option provided by ILO 169, which allows states to retain ownership of mineral and sub-surface resources, or rights to other land-related resources, on the condition that, before undertaking any activities in IP territories, a PIC is organized by the state to enable IP to assess how their interests will be affected. IP, in turn, have the right to determine whether they can participate in benefits from such activities and receive fair compensation for any harm resulting from them. However, information asymmetry in these situations requires careful assessment, including recognition of IP's rights to their lands and ecosystems (Arsenault et al., 2019). Furthermore, ILO 69 requires states to avoid exploiting natural resources on IPs' lands if such activities may cause displacement or significant environmental degradation (Rodriguez, 2007).. This model leaves no room for contractual arrangements between investors and IPs outside the regulatory framework of PIC, where the state must intervene.
Prior informed consultation and free, prior, and informed consent: veto rights for investment projects? In Colombia, PICs and FPICs are considered fundamental rights of IPs and other ethnic groups when decisions are made that may directly affect them, or when projects are planned to be implemented within their territories, which may also directly affect these groups (CCC, 1997). The PIC materializes IP's right to set priorities in development programs and projects that affect them (Rodriguez, 2021), or their values related to ecosystems at stake.
FPIC integrates within the cost–benefit analysis (from an economic perspective) or proportionality test (from a legal perspective) the various values attributed to ecosystems so that the consent of IPs must be obtained when their essential values related to their lands and ecosystems may be affected by investment projects; however, this measure is of exceptional application. FPIC is a more stringent protection, restricted to projects that may have a possible “intense direct impact,” in other words, “when a measure threatens the subsistence of the traditional community” (see CCC, 2018; Ministerio del Interior, 2020; Rodríguez, 2021). FPIC is considered effective if it has a verifiable result on the decisions to be made, which must be reflected in the action plans and measures implemented by the authorities (see CCC, 1997, 2018). It is a stricter protection because unlike with PIC, the projects cannot be implemented without obtaining the FPIC (CCC, 2018). This study captures mainly cases of consultation, which are the majority and which do not grant IP veto rights, skewing the balance in favor of the economic value attributed to their lands and ecosystems over the existential value that IP may attribute them.
Procedures for PIC and FPIC
Although there is no specific statutory law regulating both PIC and FPIc as of today (see CCC 2011), the government has developed procedures for PIC following the case law of the Colombian Constitutional Court (Función Público, 2020a). First, the Ministry of Internal Affairs (MIA) must verify whether a project will directly affect social, economic, environmental and cultural conditions. If so, it organizes a PIC. Since 2019, implementation of PIC has become more stringent (see CCS 2008; Presidency of the Republic 20XX). Before that, MIA only checked for the presence of ethnic groups in the project area.. Now, MIA may issue this certificate ordering the PIC procedure within a period of 30 to 60 days, depending on whether the project requires a verification visit to the area of influence, which can be extended by the same term if there are external factors affecting the process (see Function Publica, 2015, article 14, 2008, article 4). Second, pre-consultation involves a preliminary dialogue with representatives of ethnic communities to determine what the methodology will be for PIC and how cultural specifications will be taken into account. Third, PIC takes place between representatives of the government, investors and ethnic communities, and MIAs must ensure that their ethnic and cultural identities are protected.. If no agreement is reached during the pre-consultation or consultation stages, when the relevant authorities did not attend a meeting, or if there is a conflict of representation in the ethnic community, the government has three months to conduct a proportionality test and determine management measures. This test aims to determine appropriate measures to prevent, rectify, or mitigate direct consequences, based on the positions expressed by all parties involved. In addition, MIA must monitor compliance with measures agreed upon or established by MIA through the proportionality process. If environmental concerns are involved, this monitoring responsibility falls on the state agency responsible for environmental permits (ANLA).
Besides the rights of ethnic communities to PIC and FPIC, the 1991 Constitution also guarantees all citizens the right to a healthy environment and participation in decisions that may affect them individually or communities (articles 79, 80 and 332). Public participation in environmental issues is also a fundamental right for all citizens, not just IP, like the PIC and FIP. This aligns with the Rio Declaration on Environment and Development (UN, 1982), reinforced by ratification of the Escazu Agreement (2008). When investments may cause serious damage to natural resources or the environment or introduce significant changes to the landscape, investors need to obtain a license. Both procedures for public engagement (PIC and information access) seek to address information asymmetries, but they often overlap and cannot be merged.. Since 2020, measures to guarantee the PIC within a license procedure have become more stringent, as previously, a license could be requested with a certificate of applicability for the PIC. Now, when both the PIC and environmental license are required, the latter can no longer be requested if the former has not been completed or the FPIC process. The procedure to obtain an environmental permit can be delayed when the ANLA requests an updated certificate from the MIA regarding the applicability of PIC (Función Pública, 2019b). The inability of investment projects to obtain environmental licenses without a PIC or FPIC where land is at stake has caused serious concerns for governments and investors, who see it as a veto right or an additional transactional cost for projects.. Colombia is progressively strengthening the mechanisms to ensure the effective participation of IPs in projects developed on their land, especially if they have a high environmental impact and have certain values associated with them.
The role of the courts
The judicial branch, particularly the CCC (Court of Cassation), has rendered progressive decisions, enforcing the right to public participation in environmental matters, in general, and the fundamental rights of PIC and FPIC (prior informed consent) of IP (indigenous peoples) when their territories are affected by investment projects so that their ethnic, social, economic and cultural integrity, as well as subsistence, are guaranteed. (CCC, 2018) While the case law of the CCC has shaped the adoption of more stringent procedures, it also requires governments to balance IP interests with the economic interests of governments and investors. In other words, where there is disagreement, governments must apply a proportionality test to unblock the process and record the results of PIC. However, if FPIC is required, a project can only proceed after it has been obtained.. In exceptional cases, the MIA may allow the project to proceed if the fundamental rights and survival of ethnic communities (both physical and cultural) can be guaranteed.
The CCC approach appears to align with ecological economic perspectives, following biocultural and ecocentric models of environmental and IP protection (Macpherson et al., 2020; Rodríguez-Garavito, 2020, Shapiro & McNeish, 2021, Viaene, 2022, Wesche, 2021). The CCC recognizes rights to ecosystems and seeks to preserve them beyond individual claims by affected communities (Lizarazo-Rodriguez 2021b, Rodríguez Garavito 2019 & 2020 Shapiro McNeish 2005, Wesche 20). Governments criticize these judgments following anthropocentric development models, as do investors who consider these decisions judicial obstacles to development policy and investment (see CCC 20 & 3). Economic growth is strengthened by the veto power of minority groups who, collectively, represent 14% of Colombia's population but can influence investment decisions that are in the country's best interests.
The CCC has also influenced the case law of IACtHR. Both courts recognize three situations where FPIC is required before a project can be implemented on indigenous lands. These situations include intense direct effects, including serious risk of forced resettlement, storage or disposal of hazardous or toxic materials on indigenous land, and projects that involve high social, cultural and environmental outcomes putting subsistence at risk. The concept of direct effect on IP adopts a biocultural perspective beyond the formal notion of territory, including economic, social and spiritual dimensions that the community needs to preserve its identity.. The right to territory has been considered a dynamic concept that covers "all space that is currently essential for indigenous peoples to get access to natural resources in line with their culture, their economic and social organization" (see CCC, 2014, 215a). This bio-cultural approach has been applied in cases involving hydrocarbon industries (see CCS, 2818). Meanwhile, the Inter-American Court of Human Rights has held that PIC is not required when activities are aimed only at maintaining or improving works. In other words, an individualized assessment is required based on the magnitude of repercussions (see IACtHR, 820)
The courts have also expanded the scope of international law (ILO 169) by first extending the fundamental rights to PIC and FPIC to Black, Afro-Colombian, Raizal, or Palenquer communities (NARPs), and secondly, referring explicitly to the right of these ethnic communities to share in the benefits obtained from projects carried out on their territories, which is an optional provision in ILO 16. The IACHR has held that when such projects involve the exploitation of natural resources in indigenous peoples' lands, the inter-American standards apply, including PIC, environmental and social impact assessments, and reasonable distribution of benefits derived from the project.
RESEARCH QUESTIONS, DATA AND METHODS
The analytical building blocks extracted from the literature review in section 2 provide a framework for our analysis. Section 3 provides an institutional context in Colombia, and the following research questions arise: (1) What is the scale of usage of PIC and FIPCs in Colombia to protect IP territories in investment projects, and how has it evolved over time? (2) Which patterns can be identified in the implementation of PICs (by ethnicity, region and industry) since their implementation in 1995? (3) Are there visible societal and economic costs and benefits to these mechanisms depending on their outcomes and duration?; And to what extent have courts contributed to the enforcement of intellectual property values that align with biocultural approaches to development, supported by ecological economics rather than anthropocentric economic development models that privilege contractual forms of indigenous entrepreneurship?
Existing analyses have been limited to case studies (see literature review), particularly in ecological economics, development studies and socio-legal and doctrinal approaches. This article is novel as it unveils how the protection of IP and territories can be approached from an empirical and law and sustainable development perspective, and by addressing unexplored aspects of this phenomenon. The descriptive statistics aim to shed new light on the PIC mechanism despite the statistical data limitations in terms of quality, availability, and compatibility between data sources.
Several data sets are combined, including—but not limited to—those held by the MIA (Dirección de la Autoridad Nacional de Consulta Previa, DANCP),13 the National Department of Statistics (DANE, 2023a), and the Colombian Constitutional Court (CCC) (Corte Constitucional de Colombia, 2023). Some of the underlying mechanisms were explored using regression analysis. It was tested whether the outcomes of the PIC processes (leading to an agreement or not, their duration) can be explained in terms of the region, ethnicities involved, or industry. Interaction effects between the consultation and environmental licensing processes were also tested.
A review of the role of the courts was conducted, as the judiciary can shape state economic decisions. This is particularly true when there are tensions between constitutional values on the one hand, which seek to preserve ecosystems and protect racial minorities, and on the other, promote the rights of investors and economic development. While judicial ideology has been assessed, a lack of objective criteria for identifying it has been noted. The CCC and IACtHR uphold constitutional values, considered "remedial activism" because they apply fair laws and address government noncompliance. Quantitative analysis of case law reveals how courts tilt the balance in favor of intellectual property interests and biocultural values. Colombian case law has influenced the decisions of the IACtHr.. This study is relevant to Latin America because the IACtHR has an influence over other countries within its jurisdiction, where PIC has been applied to a lesser extent and where it lacks the same institutional safeguards. For the selection of case law for the CCC, two methods were used; for quantitative analysis, all CCC decisions on PIC since its implementation in 1995 were reviewed; and for content and legal analysis only "tutela"14 decisions were selected.
Although there is no specific statutory law regulating both PIC and FPIc as of today (see CCC 2011), the government has developed procedures for PIC following the case law of the Colombian Constitutional Court (Función Público, 2020a). First, the Ministry of Internal Affairs (MIA) must verify whether a project will directly affect social, economic, environmental and cultural conditions. If so, it organizes a PIC. Since 2019, implementation of PIC has become more stringent (see CCS 2008; Presidency of the Republic 20XX). Before that, MIA only checked for the presence of ethnic groups in the project area.. Now, MIA may issue this certificate ordering the PIC procedure within a period of 30 to 60 days, depending on whether the project requires a verification visit to the area of influence, which can be extended by the same term if there are external factors affecting the process (see Function Publica, 2015, article 14, 2008, article 4). Second, pre-consultation involves a preliminary dialogue with representatives of ethnic communities to determine what the methodology will be for PIC and how cultural specifications will be taken into account. Third, PIC takes place between representatives of the government, investors and ethnic communities, and MIAs must ensure that their ethnic and cultural identities are protected.. If no agreement is reached during the pre-consultation or consultation stages, when the relevant authorities did not attend a meeting, or if there is a conflict of representation in the ethnic community, the government has three months to conduct a proportionality test and determine management measures. This test aims to determine appropriate measures to prevent, rectify, or mitigate direct consequences, based on the positions expressed by all parties involved. In addition, MIA must monitor compliance with measures agreed upon or established by MIA through the proportionality process. If environmental concerns are involved, this monitoring responsibility falls on the state agency responsible for environmental permits (ANLA).
Besides the rights of ethnic communities to PIC and FPIC, the 1991 Constitution also guarantees all citizens the right to a healthy environment and participation in decisions that may affect them individually or communities (articles 79, 80 and 332). Public participation in environmental issues is also a fundamental right for all citizens, not just IP, like the PIC and FIP. This aligns with the Rio Declaration on Environment and Development (UN, 1982), reinforced by ratification of the Escazu Agreement (2008). When investments may cause serious damage to natural resources or the environment or introduce significant changes to the landscape, investors need to obtain a license. Both procedures for public engagement (PIC and information access) seek to address information asymmetries, but they often overlap and cannot be merged.. Since 2020, measures to guarantee the PIC within a license procedure have become more stringent, as previously, a license could be requested with a certificate of applicability for the PIC. Now, when both the PIC and environmental license are required, the latter can no longer be requested if the former has not been completed or the FPIC process. The procedure to obtain an environmental permit can be delayed when the ANLA requests an updated certificate from the MIA regarding the applicability of PIC (Función Pública, 2019b). The inability of investment projects to obtain environmental licenses without a PIC or FPIC where land is at stake has caused serious concerns for governments and investors, who see it as a veto right or an additional transactional cost for projects.. Colombia is progressively strengthening the mechanisms to ensure the effective participation of IPs in projects developed on their land, especially if they have a high environmental impact and have certain values associated with them.
The role of the courts
The judicial branch, particularly the CCC (Court of Cassation), has rendered progressive decisions, enforcing the right to public participation in environmental matters, in general, and the fundamental rights of PIC and FPIC (prior informed consent) of IP (indigenous peoples) when their territories are affected by investment projects so that their ethnic, social, economic and cultural integrity, as well as subsistence, are guaranteed. (CCC, 2018) While the case law of the CCC has shaped the adoption of more stringent procedures, it also requires governments to balance IP interests with the economic interests of governments and investors. In other words, where there is disagreement, governments must apply a proportionality test to unblock the process and record the results of PIC. However, if FPIC is required, a project can only proceed after it has been obtained.. In exceptional cases, the MIA may allow the project to proceed if the fundamental rights and survival of ethnic communities (both physical and cultural) can be guaranteed.
The CCC approach appears to align with ecological economic perspectives, following biocultural and ecocentric models of environmental and IP protection (Macpherson et al., 2020; Rodríguez-Garavito, 2020, Shapiro & McNeish, 2021, Viaene, 2022, Wesche, 2021). The CCC recognizes rights to ecosystems and seeks to preserve them beyond individual claims by affected communities (Lizarazo-Rodriguez 2021b, Rodríguez Garavito 2019 & 2020 Shapiro McNeish 2005, Wesche 20). Governments criticize these judgments following anthropocentric development models, as do investors who consider these decisions judicial obstacles to development policy and investment (see CCC 20 & 3). Economic growth is strengthened by the veto power of minority groups who, collectively, represent 14% of Colombia's population but can influence investment decisions that are in the country's best interests.
The CCC has also influenced the case law of IACtHR. Both courts recognize three situations where FPIC is required before a project can be implemented on indigenous lands. These situations include intense direct effects, including serious risk of forced resettlement, storage or disposal of hazardous or toxic materials on indigenous land, and projects that involve high social, cultural and environmental outcomes putting subsistence at risk. The concept of direct effect on IP adopts a biocultural perspective beyond the formal notion of territory, including economic, social and spiritual dimensions that the community needs to preserve its identity.. The right to territory has been considered a dynamic concept that covers "all space that is currently essential for indigenous peoples to get access to natural resources in line with their culture, their economic and social organization" (see CCC, 2014, 215a). This bio-cultural approach has been applied in cases involving hydrocarbon industries (see CCS, 2818). Meanwhile, the Inter-American Court of Human Rights has held that PIC is not required when activities are aimed only at maintaining or improving works. In other words, an individualized assessment is required based on the magnitude of repercussions (see IACtHR, 820)
The courts have also expanded the scope of international law (ILO 169) by first extending the fundamental rights to PIC and FPIC to Black, Afro-Colombian, Raizal, or Palenquer communities (NARPs), and secondly, referring explicitly to the right of these ethnic communities to share in the benefits obtained from projects carried out on their territories, which is an optional provision in ILO 16. The IACHR has held that when such projects involve the exploitation of natural resources in indigenous peoples' lands, the inter-American standards apply, including PIC, environmental and social impact assessments, and reasonable distribution of benefits derived from the project.
RESEARCH QUESTIONS, DATA AND METHODS
The analytical building blocks extracted from the literature review in section 2 provide a framework for our analysis. Section 3 provides an institutional context in Colombia, and the following research questions arise: (1) What is the scale of usage of PIC and FIPCs in Colombia to protect IP territories in investment projects, and how has it evolved over time? (2) Which patterns can be identified in the implementation of PICs (by ethnicity, region and industry) since their implementation in 1995? (3) Are there visible societal and economic costs and benefits to these mechanisms depending on their outcomes and duration?; And to what extent have courts contributed to the enforcement of intellectual property values that align with biocultural approaches to development, supported by ecological economics rather than anthropocentric economic development models that privilege contractual forms of indigenous entrepreneurship?
Existing analyses have been limited to case studies (see literature review), particularly in ecological economics, development studies and socio-legal and doctrinal approaches. This article is novel as it unveils how the protection of IP and territories can be approached from an empirical and law and sustainable development perspective, and by addressing unexplored aspects of this phenomenon. The descriptive statistics aim to shed new light on the PIC mechanism despite the statistical data limitations in terms of quality, availability, and compatibility between data sources.
Several data sets are combined, including—but not limited to—those held by the MIA (Dirección de la Autoridad Nacional de Consulta Previa, DANCP),13 the National Department of Statistics (DANE, 2023a), and the Colombian Constitutional Court (CCC) (Corte Constitucional de Colombia, 2023). Some of the underlying mechanisms were explored using regression analysis. It was tested whether the outcomes of the PIC processes (leading to an agreement or not, their duration) can be explained in terms of the region, ethnicities involved, or industry. Interaction effects between the consultation and environmental licensing processes were also tested.
A review of the role of the courts was conducted, as the judiciary can shape state economic decisions. This is particularly true when there are tensions between constitutional values on the one hand, which seek to preserve ecosystems and protect racial minorities, and on the other, promote the rights of investors and economic development. While judicial ideology has been assessed, a lack of objective criteria for identifying it has been noted. The CCC and IACtHR uphold constitutional values, considered "remedial activism" because they apply fair laws and address government noncompliance. Quantitative analysis of case law reveals how courts tilt the balance in favor of intellectual property interests and biocultural values. Colombian case law has influenced the decisions of the IACtHr.. This study is relevant to Latin America because the IACtHR has an influence over other countries within its jurisdiction, where PIC has been applied to a lesser extent and where it lacks the same institutional safeguards. For the selection of case law for the CCC, two methods were used; for quantitative analysis, all CCC decisions on PIC since its implementation in 1995 were reviewed; and for content and legal analysis only "tutela"14 decisions were selected.
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