Edición 6

"La transformación y modernización de la minería en Colombia"

Artículo 1 - Opinión

How does the year look so far for the Colombian mining sector?

Marianna Boza Morán

Director of
Brigard & Urrutia Law Firm.

The mining sector begins the year 2019 with several legal decisions which could potentially, if enforced, set a precedent for how extraction activities are carried out in Colombia. Above all, the already known Ruling SU-095 dated October 11, 2018 issued by the Constitutional Court and the ruling dated December 6, 2018 by the Administrative Court of Cundinamarca must be highlighted. We will analyze the challenges they represent for the Colombian mining sector: Ruling SU-095/2018:
Ruling SU-095/2018 decided the writ for protection of fundamental rights filed by Mansarovar Energy against the ruling issued by the Contentious-Administrative Court of Meta, within the proceeding of prior constitutionality of a popular consultation to be conducted in the Municipality of Cumaral. In this decision, the Constitutional Court addressed and clarified several important discussions around the extractive sector in Colombia. The main conclusions of the Court are below:

A. The subsoil and non-renewable natural resources are owned by the state authorities at the different territorial levels and by the Colombian population as structural components and elements of the concept of State.

B. Thus, neither the Nation nor the territorial entities have absolute competence regarding the exploitation of the subsoil and non-renewable natural resources. To settle the differences that arise, the principles of coordination, concurrence and subsidiarity provided by the Constitution must be applied.

C. To such regard, the popular consultation is not a proper mechanism to apply said principles since, as a citizen participation mechanism, it may not be used to define whether or not exploitation activities of the subsoil or natural resources are carried out in a territory. The foregoing, because the competence in this regard does not lie absolutely with the municipalities and, therefore, exceeds their competence.

D. The citizen participation mechanisms provided in the mining, oil and environmental legislation are not effective enough to reach binding agreements and commitments with the communities inhabiting the zones where activities are carried out.

E. The Court found a deficit of constitutional protection in the citizen participation mechanisms and the nation-territory coordination and concurrence instruments for the exploitation of the subsoil and non-renewable natural resources since the existing regulations do not specifically ensure the participation of the communities and there is no legal instrument for the territorial entities to concur in the definition, performance and follow-up of the hydrocarbons and mining activities.

F. Thus, the Court ordered Congress to define one or more citizen participation mechanisms and one or more nation-territory coordination and concurrence instruments in order to remedy the deficit of constitutional protection.

G. Finally, the Constitutional Court called for: (i) the entities of the mining-energy sector to institutionally strengthen their functions of concurrence and coordination, their citizen participation strategies and demands to the companies for the handling of the risk related to the activities of the mining-energy sector; and (ii) the persons executing subsoil concession agreements to implement strategies for compliance with the principles of citizen participation and permanent creation of relationships with the local authorities.

The determinations adopted by the Constitutional Court in Ruling SU-095/2018 have created several concerns regarding the way in which they will be implemented. Some of these concerns are:

A. What will happen with the municipalities where popular consultations to prohibit extraction activities were already carried out?

B. How will the new citizen participation mechanism ordered by the Court be integrated to the mechanisms in place?

C. What measures will be adopted by the entities of the mining-energy sector to comply with the ruling while Congress issues the laws ordered by the Constitutional Court?

D. How will the participation and negotiation processes conducted by the entities of the sector be strengthened?

E. What will be the new requirements for companies and persons engaged in the exploration and exploitation of natural resources with regard to human rights and citizen participation?

The enforcement of this ruling throughout the year will be significant for the present and future of the Colombian mining-energy sector.

Ruling dated December 6, 2018

In the Ruling dated December 6, 2018, the Contentious-Administrative Court of Meta decided in a class action related to the issuance of Resolutions No. 304 and 484/2012 of the National Mining Agency (“ANM”) that ordered the reopening of the receipt of proposals of mining concession agreements by July 2, 2013.

For the plaintiffs, the reopening of the receipt of proposals of mining concessions without having completed the definitive delimitation and zoning of the special protection areas excluded from mining implies the violation of the principle of precaution and the collective rights and interests related to the enjoyment of a healthy environment, administrative morality, the existence of an ecological balance and the management and rational utilization of natural resources to ensure their sustainable development, conservation, restoration or replacement, among others.

In such regard, the authorities of the mining-energy and environment sectors argued that the decision of reopening the “mining window” did not violate such principles or rights since, when applying Decree 1374/2013, the areas that potentially may result in excludable areas from mining were protected, thus complying with the principle of precaution and ensuring the preservation of the environment.

However, the Court considered that the provisions of Decree 1374/2013 are not enough to ensure the principle of precaution and ordered:

A. To suspend the effects of Resolution No. 484/2012 of the National Mining Agency, until the areas excluded from mining are set by the environmental authority and are included in the National Mining Cadaster. With the foregoing, the receipt of proposals of concession agreements is suspended.

B. For the Ministry of Environment to carry out the relevant delimitations within three years following the enforcement of the ruling.

It is important to highlight that this is a first instance ruling. We understand that this decision has been appealed and its effects have been suspended, thus it remains to be seen if the Council of State will keep the suspension of receipt of proposals of mining concession agreements until the Ministry of Environment and Sustainable Development delimits the areas excluded from mining in environmental terms.

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