Energy Justice, Prior Consultation and Energy Supply for Communities in Colombia

Abstract

Under the Colombian prior consultation experience, it is normal for agreements with ethnic communities to deal with labor relations and capital contributions to strengthen communities’ self-government and to carry out productive projects. On the other hand, it is less common for these protected groups to obtain benefits from services or products that involve the development of measures subject to consultation. Here, the importance of considering the adaptation of the current Colombian energy regulation is raised by applying energy justice theory to situations where communities coexist with the energy projects and are disaggregated from the energy supply. Noting that these types of actions will be essential to accomplish the purposes of the energy transition and support the transformation to carbon–neutral economies, we will be aiming to respond to highly complex scenarios, typical of regions that accumulate a prominent social debt, mainly related to poverty reduction.

1 Introduction

The countries that face the challenges of adapting their criteria of energy justice in their public policies, regulations, and standards must evaluate the concept of the energy trilemma and its three pillars: energy security, energy equity, and sustainable development in their different scenarios.¹ It is easy to perceive that the issues linked to the implementation of energy justice at the legal regulation will bring together aspects close to ideas like justice and social equity that lead to social challenges and, therefore, will recognize the importance of the communities that cohabitate with energy generation projects, energy transportation projects, energy distribution projects, or energy storage activities which are essentials to accomplish the objectives of the energy transition and will support the transformation to carbon–neutral economies.

For the Colombian case, it is urgent to implement the energy justice concept that will aim to respond to highly complex scenarios, typical of countries that accumulate a prominent social debt, mainly related to poverty reduction. These regions will have a different challenge compared to others in which better social indicators have been accomplished.² In the Colombian case, we must create an energy transition model that responds to our economic, environmental, and social specificities.³

2 An Energy Justice Framework for Colombia

In the scenarios of countries with limited economic resources, energy justice acquires relevance by bringing together the application of human rights to the entire chain, cycle, or phase of energy activities, from generation to the end consumer.⁴ In this sense, we cannot afford to make a simple copy of policies or economic models from other world regions, in which the social reality is substantially different and asymmetrically distant.

As a consequence of the struggle from ethnic groups in Colombia that aim for the conservation of their ethnic and cultural diversity and the protection of their territories, under their occupation, the Colombian Government adopts ILO Convention 169, which establishes in Article 6 the right to prior consultation of ethnic groups when a measure may directly affect them and its purposes. In Colombia, this measure can be a state or a private decision. The right to prior consultation implies the prior, free, and informed participation of these groups through an administrative procedure to influence the decision-making process. It corresponds to the National Authority for Prior Consultation to determine its properness.

Since then, this entity has carried out more than 10,000 prior consultation processes throughout the entire national geography on all types of measures, such as the construction of roads, ports, mining and oil exploration and exploitation, construction of wind and solar farms and their transmission lines, and even the creation of new municipalities. The Colombian greatest challenge in energy transition terms will be at the Department of La Guajira. Currently, this Department is the Colombian renewable energy nucleus.⁵

Colombia is a democratic, participatory, and pluralistic republic that defines an essential purpose of the state to facilitate the participation of all in the decisions that affect them in the economic, political, administrative, and cultural life of the nation. In that sense, since 1991, the constitutional jurisdiction,⁶ has ordered several processes. Thus, through the study of cases, the constitutional jurisdiction has built applicable rules regarding prior consultation that provide relative legal certainty.

Many of these rules are substantiated by the fact that ethnic communities suffer negative environmental consequences more intensely than other social groups, due to the connection that they preserve with their territory. For instance, the rule that defines the situations that directly affect ethnic groups is attached to the imperatives of environmental justice, which seeks an equitable and participatory distribution of the costs and benefits of projects with differentiated environmental impacts.

Therefore, we will find a point between recognition, distributive, and procedural energy justice, since within the framework of those projects at La Guajira, duties and rights from the ethnic communities will be outlined, it will also contribute to improving the balance of distribution between benefits and unfavorable effects in the entire Colombian society, and finally, it will be essential to observe the procedures that will be following close to the Colombian prior consultation processes and possible adaptation.

On the other hand, there has never been a law that specifies and delimits the scope and content of prior consultation as a right and its application procedure, that situation will lead to legal uncertainty, especially regarding the responsibilities and obligations of those involved in the procedure. Bear in mind that environmental justice is closely related to Article 15 of ILO Convention 169, which establishes that ethnic groups must participate whenever possible in the benefits derived from the prospecting or exploitation of natural resources existing on the lands under their occupation and receive equitable compensation for any harm they may suffer as a result of those activities.

3 Searching for a Social Contract for the Energy Sector in Colombia

Under the Colombian prior consultation experience, it is normal for agreements with ethnic communities to deal with labor relations and capital contributions to strengthen communities’ self-government and to carry out productive projects for the communities. However, it is less common for communities to benefit from products or services that involve the development of measures subject to consultation. The case of energy generation projects at La Guajira is not the exception; many of the ethnic communities do not have access to electric service. This situation is not adapted to the concept of energy justice, since it is not a good sign that the communities that settle next to the energy sector operations do not have a solution to ensure the energy supply for their consumption.

Some regulatory and market barriers must be accomplished to ensure this community energy supply. However, some instruments come from corporate social responsibility, prior consultation agreements, or through a regulatory modification that offers practical solutions that could be linked to figures such as energy communities and energy self-generation systems that will ensure the supply of energy to communities.

Taking into account that the strength of the energy justice concept can lead us to an adaptation of the social contract,⁷ which ends up being expressed in practical cases,⁸ we consider relevant the adaptation of the current Colombian energy regulation to apply energy justice to situations where communities coexist with the energy projects and are disaggregated from the energy supply.