Translated by Steve Cagan
Author: María del Pilar Pardo Fajardo
This year the reserve areas will have gone from 21 thousand hectares to close to 21 million. But after studies and exchanges of information…there is total confusion. And of course in many ways these areas affect the development of the country.
The rules of the game
Law 685 2001—The Mining Code (CM)— puts forward the concept of special reservations  and grants the national government the power to delimit areas with arguments related to social or economic order, on their own or because of an express request from a mining community.
This concept was designed both for areas where there might exist traditional informal mining activity (especially of some minerals) and to move forward geological-mining studies and strategic projects. In the case of the geological-mining studies, the projects must begin within two years. And in the case of the traditional communities, they will have priority in the exploitation of the resources, even if there are applications by third parties. All the foregoing, without prejudicing the respect for titles already existing, granted or recognized.
Article 248 of the Mining Code established that in the community projects whose geological-mining characteristics make possible short-, medium- and long-range exploitation, the State will intervene for “training, promotion, transfer of technology, environmental management, structuring, development of the mining project and the entrepreneurial training of the informal miners who have now been legalized, of economic solidarity companies, and of the community associations of the miners who work there, in giving advice about strategic alliances, consortiums, or companies with the private sector for the activities of exploration, exploitation, benefits, transportation, and commercialization of the existing minerals.”
The legal concept for carrying out these projects is the special concession contract, and the Ministry of Mines and Energy and the National Mining Agency will be the entities charged with determining the terms and the characteristics to be taken into account for this type of contract.
This disposition was added via Decree 1382 of 2010 , where the mining authority is authorized to delimit the areas that are free for moving projects of strategic importance forward, which can be granted through concession contracts with third parties.
The adjudication of these special reserve areas has to be carried out through a process to objectively select whoever offers better technical, economic, social and environmental conditions. In exchange those presenting offers are required to make offers different from those required by law. This is one of the principle criteria to take into account at the point of assigning an area with these characteristics.
It is important to note that the mining titles granted before the declaration of a special reserve area will maintain their rights for five more years, but they will have to present a program of geological evaluation and they will have priority for moving mining activities forward in the area.
A disorganized inventory
According to the information available on the web page of the Ministry of Mines and Energy, since the CM [Mining Code—SC] was issued in 2001, 28 special reserve areas have been declared, which amount to approximately 25,166 hectares (see Annex 1 at the end of the article).
But this past February 24 Resolution 180241 of 2012 was issued, through which some Strategic Mining Areas (AEM) were declared and delimited, with the understanding that the national government has an interest in “seeking sustainable development of the sector under a concept of technical, environmental and social responsibility, making reasonable use of strategic minerals, with the highest standards of operations and of security and hygiene, in order to guarantee the best conditions and benefits for the State and the communities” located in those AEMs.
In that same month, the Colombian Geological Service (SGC—formerly INGEOMINAS) published the study, “Areas with mineral potential for defining Strategic Reserve Areas of the State,” based on available cartographic information, where it is evident that the strategic reserve areas of the country have a significant potential in the fields of gold, metals in the platinum group (PGE), copper, iron, coltan and associated minerals, phosphate ores, potassium ores, magnesium ores, uranium and metallic and thermal carbon.
As a complement to this study, the Mining Land Registry of the SGC moved ahead in an exercise of verifying  the areas with mining potential, taking into account the following information:
The mining titles legally granted and inscribed in the National Mining Registry.
The areas that can be excluded from mining as contemplated in Article 34 of the CM and its modification—National Natural Parks, regional Natural Parks, Protected Forest Reserve zones, paramo and wetland ecosystems designated in the list of international importance in the RAMSAR Convention—;
Indigenous mining areas and those of Black communities, in line with the right of priority that these communities have;
Areas where there are contracts with state investment ;
Actual requests for mining, requests for traditional mining and proposals for contracts with concessions in effect.
As a result of the evaluation, the kinds of areas were defined:
i) Type I Areas: those that offer acceptable geological, geochemical and geophysical knowledge, with a prospect that they have a potential for finding strategic minerals. They have a classification from ≥4.4 and with a maximum of 5.0 These areas equal 33 polygons that amount to 5,340,126 hectares with a potential for finding gold, platinum and copper.
ii) Type II Areas: where the geological, geochemical and geophysical knowledge is less. They have a potential for locating minerals; the priority for these is to acquire the knowledge required for the exploitation of minerals. They have a classification between ≥ 3.0 and 4.3. These areas are 119 polygons that amount to 11,534,992 hectares with perspectives for finding gold, platinum, copper, phosphorus, uranium and metallic carbon.
iii) Type III Areas: where the geological, geochemical and geophysical knowledge is low, but yet the geological conditions indicate that they have potential for minerals. The priority for these is the acquisition of information necessary for exploration. They have a classification of ˘≥ 1.2 to 2.9. These areas are 61 polygons that amount to 8,530,724 hectares, where there may be a potential for gold, copper, platinum, coltan, iron, potassium, magnesium and phosphates. However, they require more study to corroborate their potential.
The study concludes that, after carrying out the subtractions mentioned above and eliminating superimposition of the different types of areas, the net total area comes to 21,627,327 hectares.
But the study does not end there: they also create an intersection between the potential areas of Strategic Mining reserves and the forest reserve areas of the Second Law of 1959, the regional forest reserve areas and the zones of public utility declared by the national government, which are reported in the Colombian Mining Land Registry.
In the process of drawing the boundaries, corridors that are not viable for mining projects were eliminated, and the final result comes to 313 polygons with an area of 2,900,947.78 hectares, which—through the already mentioned Resolution 180241—are precisely those that are delimited and declared to be Strategic Mining Areas, located in the departments of Antioquia, Bolívar, Caldas, Cauca, Cesar, Chocó, Huila, La Guajira, Nariño, Norte de Santander, Putumayo, Quindío, Risaralda, Tolima and Valle del Cauca.
This disposition establishes that the mining authority has a period of five years to define their terms of reference and the requirements for choosing the proposal that offers the best conditions and benefits for the State, as well as the minimal counterclaims legally required in addition to royalties.
Then, on June 20, 2012 the National Mining Agency [Agencia Nacional de Minería (ANM)—SC] published Resolution 0045 “Through which there are declared and delimited some Strategic Mining areas, and other dispositions are adopted,” which, with the same arguments as in Resolution 180241 and on the basis of the same study by the SGC  limits and declares strategic areas that come to 22,262, 646.81 hectares of which 17,570, 198.72 hectares belong to 202 polygons in the departments of Amazonas, Guainía, Guaviare, Vaupés, Vichada and Chocó.
This new Resolution granted a period of ten years for the mining authority to define their terms of reference and the requirements for choosing the proposal that offers the best conditions and benefits for the State, as well as the minimal counterclaims legally required in addition to royalties. Once the analysis of the studies has been done and the decisions made, the confusion will be total. It is not clear if this number of hectares has to be added or subtracted:
In the case that we add them, the total surface area declared as Strategic Mining Areas would reach around 25,188, 759 hectares, since it concerns different municipalities and departments.
In the case that we subtract them, supposing that Resolution 0045 of June 2012 annulled (although this is not explicit) Resolution 180241 of 2012, the number of hectares would come to 22,287,812, although it seems that this is not the case.
It is worth asking why the decision to declare Strategic Mining Areas was not subject to consultation and agreement with other sectors of the national economy, since it is evident that this decision will affect many interests apart from the purely mining ones. What is evident for now is a clear lack of coordination within the government, along with a strong sense of malaise in civil society and within corporate entities and the apparent superimposing of benefits over public utility and the national interest, where it would seem that some are above others.
Date Published: July 22, 2012
Source: Agencia Prensa Rural
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