‘Never mind extraction, ownership still belongs to ‘us’’: A spatial critique to subsoil public property in Colombia

Abstract

The subsoil is a strange (legal) object. This article is interested in the legal forms and imaginaries that shape the subsoil as a container of commodities-to-be, and the different regimes of exclusion of use necessary for it to be turned into an exploitable property under a public property scheme. In particular, it examines the spatial assumptions underlying the legal and judicial constructions of the soil-subsoil divide, focusing on a relatively recent debate in Colombia on the reach of peoples’ opposition to mining extraction through a constitutional participation mechanism, popular consultations ( consultas populares). It shows a property regime of use that removes the public content from subsoil public property under an illusion of people’s ownership over a, nevertheless, emptied container. I first focus on the threefold subsoil proprietor and the latent assumption in the Colombian legal system of the subsoil as a set of fragmentable resources contained underground, instead of an intermingled net of relations. In the context of an increasing use of local public consultations to stop subsoil mining throughout the country between 2014 and 2018, I show how mobilization brought to light the limits of a legal fragmentarian lens and how use makes the title of public owners an illusion. I follow with a critical examination of the spatial assumptions underpinning a controversial Constitutional Court decision to ban local popular consultations as a mechanism to decide on the exploitation of the subsoil and ultimately oppose it. From a legal geography perspective, and bringing in elements from other disciplines, this article seeks to unsettle this type of legal spatial production of the subsoil from a more relational understanding of it.