Colombia Support Network

(Translated by Steve Cagan, CSN Volunteer Translator)

Source: http://www.razonpublica.com/index.php/economia-y-sociedad/9513-interés-nacional-versus-las-regulaciones-mineras.html

The government insists on mocking the Constitution and laws to move their mining locomotive forward. That is why the high courts keeping ruling against them. Even so, some norms that go against our national interest persist in the Mining Code.

Álvaro Pardo*

Regions and Mining

Many of the regulations about mining in Colombia fail to respond to the constitutional mandates when it comes to territorial autonomy and citizen participation, as well as the fundamental rights to a healthy environment, to food security and to protection of watersheds, among other imperatives.

For this reason—and to cite only one recent example, Ruling C-273 of 2016 eliminated Article 37 of the Mining Code, which prohibited regional, sectional or local authorities from establishing zones in which mining would be excluded, and reestablished the power of territorial bodies to “regulate the uses of the soil, without making any distinction with respect to mining exploitation.”

This decision ended a long battle of the Mines Ministry, the big companies of the sector and their organizations to keep alive an exorbitant privilege which also produced a great deal of tension and conflicts throughout our national territory. What is certain is that big mining projects were developed on the base of the irregular Article 37 since 2001.

Mayors and governors will have to feel that they have equal conditions with the national-level mining authorities.

The decision of the Court leaves decision C-123 of 2014 without any foundation. That decision tried to harmonize the powers of territorial bodies and those of the State as the owner of non-renewable natural resources through agreements about the preservation of watersheds, a healthy environment and other economic, social and health concerns of the population. With the fall of Article 37, the agreements that they reached lose their authority, and the municipalities recover their autonomy to control the use of the soil, including mining exploitation.

What happens in a municipality determines that a given area of their territory is appropriate for agriculture, or that it will be part of their urban expansion, and in this same area a third party presents a request to do mining to the mining authority? While the Constitution offers tools to harmonize the powers of the different levels of the State (principles of coordination, concurrence and subsidiarity), the issue is complex because the territorial bodies have not fully developed their powers, because of the unconstitutional prohibitions of Article 37 of the Mining Code. The mayors shielded themselves behind the excuse that mining decisions were within the powers of the central government, failing to recognize that they, as part of the State, also have constitutional and legal obligations in the area of environmental preservation.

The New Rules of the Game

Now that Article 37 of the Mining Code has disappeared, there is no excuse and the mayors and governors will have to feel that they have equal conditions with the national-level mining authorities to harmonize the interests of the different levels of the State.  To do this, they will have to take into account various considerations:

Mayors and governors will have to feel that they have equal conditions with the national-level mining authorities.

• The congress of the Republic will have to determine the respective protocol and procedure to harmonize the different constitutional powers of the different levels of the State in terms of mineral exploitation, taking care that the owner of the non-renewable natural resources does not impose conditions to once again subordinate the territorial bodies.
• The ideal instrument to allow the territorial bodies to make decisions in the area of mining will be the studies carried out to establish the Planes de Ordenación y Manejo de Cuencas Hidrográficas (POMCA) [Plans for Organizing and Managing Watersheds], the Planes de Ordenamiento (POT) [Plans for Territorial Organization] and the plans for municipal development.
• The mining authority, on their side, will have to demonstrate the existence of mining potential in the municipalities, and that the development of an extractive project will not ignore the instruments of planning and management that are in effect in the respective territorial body.
• The agreement between the central government and the territorial bodies will have to incorporate all the restrictions on mining in areas of special environmental importance(national and regional natural parks, forest preserves, paramos, wetlands, etc.) and the fundamental rights of the citizens to a healthy environment, food security, preservation of the watersheds, and consulta previa when ethnic minorities are present.(translator’s note: “consulta previa,” a requirement that certain actions cannot be taken in territory of local ethnic (i.e., Afro-Colombian or indigenous) communities without previous consultation with them]
• Given that whatever decision in this area will affect the territories, citizen participation is essential. Citizen hearings with binding force are necessary to approve mining projects.
• Exploitation of non-renewable natural resources and the organization of the territories are themes that are fundamental to and exclusively for the nation, and the intervention of the big mining companies in sovereign decisions must be avoided.

Trying to Mock the Law

Among the various laws and decrees that have reformed or tried to reform the mining legislation in recent years, and which after citizens’ denunciations have not passed a constitutional examination, we might emphasize:

• Law 1382 of 2010, that reformed the Mining Code. Upon declaring the law unconstitutional, the Constitutional Court gave the mining authority a period of two years to once again present a new reform of the Mining Code, which they never did present. Contempt?
• Decree 934 of 2013 (suspended)
• Decree 2691 of 2014 (“the Christmas decree,” also suspended)
• The Áreas Estratégicas Mineras [Strategic Mining Areas] (conditional enforceability)  [translator’s note- a Court ruling on June 9 eliminated these areas in 20 departments of the country]
• The Zonas Estratégicas Mineras [Strategic Mining Zones] (revocation of resolutions of the Ministry of Mines)
• Decree 0933 of 2013. formalization of mining (suspended)
• Article 37 of Law 685 of 2001 (unenforceable) de la

This simple list illustrates well the improvised or weak legal argument of the Ministry of Mines and Energy, which has struggles to maintain some regulations that are contrary to the Constitution, or in their case, to the law. For the same reason the Constitutional Court and and Council of State have frequently declared unenforceable, have suspended or have put conditions on the administrative actions of the mining authority, always with the same arguments, that is:

• Ignoring the Constitution
• Violation of territorial autonomy and of the right of citizen participation,

This means that the judicial instability of the sector comes from the very authorities that are in charge of it. That is why we must ask: what is the interest of the mining authority in holding on to the ability to give place to regulations that contradict the Constitution of the laws of the Republic?

Given the changes in the country’s economic situation, and in light of their recent announcements, it is possible that the Santos government will try to accelerate the mining locomotive, ignoring the social clamor and the rejection of projects imposed by the central powers, or using legal games to bypass the decision of the Courts.

The consequences would be to exacerbate the conflicts in the territories, when the violence of armed groups that persecute and murder leaders who show themselves to be against large-scale mining and against the entry of multinational mining companies in their territories, as Aja’s been the case in Tolima, Cauaca, Chocó, Nariño, Guarija, Cesar and Cáqueta, among other places. 

Revisions to the Mining Code

The most recent decisions of the high courts are aimed at eliminating the overreach of a Mining Code edited by lawyers in the service of the big mining companies. The Code tried to go above the Constitution and the higher hierarchy of laws, and even today it continues to have elements that have to be revised so that the exploitation of non-renewable natural resources might serve the general interest:

• The Mining Code is an ordinary law, and therefore cannot regulate issues that overwhelm this category of laws; however, it does it with articles that impose norms and times on the environmental authorities, tax benefits and restrictions on the consulta previa.
• It is necessary to eliminate the principle of  “first come, first served,” as in the mining concession contracts, which perhaps were functional in medieval epochs, but that today do not fit with the right to demand compensation right from the beginning in return for the exploitation (bidding, auctions or rounds) of non-renewable natural resources
• Mining is not a public utility and social interest sector. Exploitation of minerals is a private business that provides less than 2 percent of the GDP and does not produce more than 150,000 jobs. It is not the same thing to build an airport or an aqueduct from which thousands of people derive a benefit as to hand the unknown reserves to a private person so that based on entrepreneurial autonomy they can do whatever they want with them.
• It is said frequently that mining is a public utility because of the volume of of resources that it gives to the national treasury. This is false. The first report of the Iniciativa de Transparencia en la Industria Extractiva [Initiative on Transparency in the Extractive Industry], with data from 2013, shows the following figures with respect to this issue:

Taxes and dividends of the extractive industry 2013 – Millions of pesos

[translator’s note—in 2013, the exchange rate was roughly 2000 Colombian pesos to 1 US dollars]

• Ecopetrol [The state-owned petroleum company, the largest in Colombia—trans.] pays 2.5 times more taxes than all the private petroleum companies and 10 times more taxes than all the private mining companies. 86 per cent of the income of the State in taxes and dividends come through the state-owned petroleum company, and only 14 per cent is given by the private companies. The mining companies provide 2.7 per cent of the total collected for rent and CREE taxes [CREE taxes are destined for employee benefits and other social programs—trans.]
• In exchange for satisfying the ambition for profits of one person, the State accepts that it will prevent recognition, through administrative expropriation, of the right to property of citizens who had the bad luck that the National Mining Agency would grant a mining title for their parcels.
• The large-scale mining industry enjoys an express environmental license, and can raise their projects to the level of “national and strategic interest,” with a committee of public functionaries at their service to facilitate the State processes.
• The law must make clear that the only right that is given by a mining title consists in that the area requested or given in concession will not be handed over to any other person or company. To claim rights acquired for mining reserves that have not been uncovered and which are barely hoped for is gimmick used by lawyers in service to the mining companies.
• Also, arguing that this is a sector of public utility and interest of the mining authority infiltrated the Unidad de Restitución de Tierras (Land Restitution Unit) so that the displaced could not have access to their land parcels when there exists a mining title for them. [1]

It is time to begin to think that the Mining Code must be reformed, and from what we have seen, the initiative comes from popular mobilization. Nothing is to be expected from the national government and its mining authority, or from the Congress of the Republic.

* Director of Colombia Punto Medio