La propiedad del subsuelo de las comunidades indígenas en Colombia.

Abstract

In Colombia, as well as in different Latin American countries, projects for the extraction of non-renewable natural resources such as mining and hydrocarbons are developed in indigenous settlements, which are legally protected and approved by the Nation under this perspective of legality, considering that, according to the constitutional order, the property and/or ownership of the subsoil is at the head of the State.

However, there are different norms and sentences issued since the Colonial era, in which the ownership of the subsoil was established at the head of the indigenous communities due to the notion that since that time was given to the lands inhabited by them, in the sense that they are not vacant land, but vacant land that when passing from the indigenous peoples to the municipalities, they were only ceded the use of the land and not the subsoil. It is for the above that it is appropriate to carry out an analysis based on the norm and jurisprudence to try to determine if it is possible to establish the ownership of the subsoil at the head of the indigenous communities in order to specify considerations in favor of said communities such as, the payment of royalties and surface fees as a result of the extraction projects that are developed in their settlements. In this order of ideas, in the present investigation the historical, normative, and jurisprudential foundations will be exposed through which the relevance of the modification of article 332 of the Political Constitution of Colombia will be analyzed, in relation to the ownership of the subsoil in the head of the indigenous communities when non-renewable natural resource extraction projects are developed in said settlements.