The Government of Colombia has issued a current decree that changes the rules for the delimitation of natural reserves in the midst of turmoil over disasters attributed to the climate crisis.
The order is numbered 044, is dated January 30, 2024 and has the signature of the Ministers of Environment and Mines and Energy.
The direct consequence of the document, according to the analysis of various unions dissatisfied with its content, is that the environmental authorities will have carte blanche to freeze any mining procedure or suspend ongoing projects.
From the private sector they have held consultation tables with the Ministry of Mines, but not with the Environment portfolio.
The Colombian Mining Association complains that the 400 comments and adjustment requests proposed by the union have been ignored in the preparation of the decree: “Neither spaces for necessary technical dialogue and participation were generated,” reads a statement.
A glassy issue for the future of an activity that in its legal form represents 3% of the gross domestic product (GDP) and that contributes some 20,000 million pesos in income, royalties and other contributions.
For the director of the Mining-Energy Law department at the Externado University, Milton Montoya, “it raises big questions about how it will be applied with respect to the mining titles that already exist.”
From his point of view, the technical resources are not clear and generate legal uncertainty: “We do not know how the new reserve power will be given to the areas chosen for 10 years.
“This is not a new issue, but it will affect mining activity for new and existing titles.”
Other analysts, however, prefer to extract some nuances.
This is the case of Lucía Soto, monitor of the Environmental Law department of the same university.
On the one hand, she recalls that the decree seeks to align Colombia with its international obligations in environmental protection and expand the areas of protection.
But on the other hand, she considers the temporary delimitation of five extendable years “risky.”
In his opinion, what the decree labels as a “temporary” measure would, in reality, have a much broader scope that could violate the signing of mining treaties or contracts: “This could involve international lawsuits against Colombia in arbitration courts.”
For Soto, the rule includes some gray areas that must be taken into account: “In principle it is positive that it seeks to protect sensitive areas of mining titles where it has not been achieved in the best way.
But, at the same time, the requirements or criteria, for example, to establish the existence of important or strategic areas, are a bit broad and could have been resolved through other administrative acts.”
Questions to the guidelines, or lack thereof, come and go.
But behind the scenes there is an order from the Council of State, dated August 4, 2022, in which the high court urges the Executive to prepare a “mapping of the protection areas” in order to “prohibit in such areas the development of all types of mining activity, until there is certainty about the compatibility of this work with the zoning of each protected territory.
A legal tool more than enough for the Government to support, through the Minister of the Environment, Susana Muhamad, its latest movements.
For most experts, the execution of an environmental management plan that clarifies and categorizes the areas prohibited or restricted for mining activity is unavoidable.
But very few in the sector expected such a drastic and poorly coordinated measure.
The National Federation of Coal Producers (Fenalcarbón) warns that “this will cost the Nation's finances a lot and its adverse effects will be seen over the years.”
The unknowns from the coal industry include the absence of “peremptory deadlines for the authorities to act, leaving them free to delay the processes arbitrarily.”
As well as the risks of opening the door to an “oversight focused on those titles that are subject to expiration or other grounds for termination.”
And he adds: “That situation can be selective against specific projects.”
A sum of arrests that contrast with the gaps in the fight against the illegal mining fever, in which 70% of the miners in Colombia are employed.
The problem of environmental management in Colombia involves a long chain of actors ranging from accredited multinationals to artisanal miners, to armed actors who roam freely in forgotten natural areas where year after year pollution of rivers, lands and forests.
According to the new official guidelines, the National Mining Agency will be notified to manage the areas classified as natural reserves, where environmental concessions or licenses for the extraction of minerals may be prohibited.
In the opinion of Milton Montoya, article 4 of the decree, which precisely states that the authorities could interrupt or restrict mining “definitively,” opens a substantive legal debate: “I am not sure that the Government has the power to issue a rule of that nature as the scope of the ruling of the Council of State.
“It goes beyond the Mining Code, which already had a specific article for the definition of restricted areas.”
He also says that it is a regulation loaded with subjectivity: “For now we do not know in detail the technical criteria for the declaration of temporary reserves.
What degree of legal certainty will the application of the decree provide?”
The document indicates that the declaration of reserves may be granted for up to five years, extendable only once.
From Fenalcarbón they regret that this change in the rules of the game may harm the “legitimate trust for the sector.”
According to figures from the Colombian Mining Association, 56% of the GDP of La Guajira, in the extreme north of the country, depends on the sector, as well as 44% of the also northern department of Cesar.
That is why the guidelines for the new zoning listed in the decree are clearly insufficient for the unions.
At the moment, four firm parameters are known with which the Executive seeks to update the guidelines and, in theory, correct the lack of coordination between the mining and environmental sectors: the presence of ecosystems of environmental importance, the strategic location of water resources that are a source of water for surrounding municipalities or that represent a central resource for food security and, finally, deteriorated areas that require restoration or environmental recovery actions.
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