In resolving a ten-year discussion around the so-called ‘mining window’ for the granting of mining titles, the Council of State found the existence of an institutional disorder and a environmental protection deficit in the rules that exist to process and grant said requests in the country, for which it issued a series of structural orders to solve the problem.
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The decision indicates that there are areas in the country that belong to the National System of Protected Areas (Sinap) that should be classified as mining exclusion or restriction zonesbut they are not.
Therefore, considers the ruling, a complete delimitation must be made by the Government in order to prevent a mining title from being delivered over a non-permitted area.
With a presentation by Judge Roberto Serrato, the First Section of the high court reported a disorder associated with the lack of surveillance and control of said system of protected areas and recalled that the authorities must not only take into account the excluded areas indicated by the Mining Code, but also others that have been marked by other regulations, as the Constitutional Court has already said.
He also pointed out that the current situation violates the rights to a healthy environment, to ecological balance, to the rational use of natural resources to guarantee their conservation, restoration or substitution, as well as to the protection of areas of special ecological importance and the defense of public heritage.
The foregoing because there are insufficient environmental parameters that are verified during the evaluation process of the mining titling proposals; because the “reserves of natural resources on a temporary basis” they did not protect all the strategic ecosystems of the country; and because in addition to the “weakness” of Sinap, there are flaws in state articulation, in information management, in the use of technology and mining-environmental planning problems, among others.
For this reason, the Council of State indicated that, from now on, to request a mining title, the interested parties must have a certification that the area of interest, in fact, is allowed for mining.
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Environmental Protection
The Ministry of the Environment has two years to, together with the mining and environmental authority it deems competentprepare a document that identifies the Sinap ecosystems zoned in which mining is prohibited or restricted, the ecosystems of that system in which mining is permitted; and those that “do not have zoning and, therefore, a management plan that defines the sectors where this type of activity is authorized.”
The delimitation must include the in situ conservation areas of legal origin that do not belong to Sinap, such as forest reserves, hydrographic basins classified as special management areas, producing and protective-producing forest reserves, reserves of natural resources consigned in the Mining Code; and Ramsar and non-Ramsar wetlands. Added to these are the moors, sub-moors, water springs and aquifer recharge areas; coral reefs, sea grasses, mangroves and areas compatible with mining operations in the Bogotá savannah.
With both documents, the Ministry of the Environment must make and adopt the cartography of the protection areas “in order to prohibit the development of all types of mining activity in such areas, until there is certainty about the compatibility of this work with the zoning of each protected territory”.
Once this mapping is done, the National Mining Agency, the Ministry of the Environment and the Ministry of Mines must make a document making clear the “excludable mining areas” and the “restricted mining areas” reported by the platform. named ‘Anna Mining’and modify the procedures and instructions that have to do with the use of these figures.
In this platform, in addition, adjustments must be made in order to implement a technological module that allows, in real time, process and supervise the environmental component of the mining titles, guaranteeing the authenticity, integrity and availability of the information.
In the 475-page sentence held by EL TIEMPO, the State Council said that Conpes 2030 of 2021 had already identified some of these problems and, therefore, ordered the Ministry of the Environment to carry out compliance reports in six months on some of the strategic lines contemplated for “increase the management categories of Sinap protected areas for the conservation of natural and cultural heritage”, as well as “increasing the creation of protected areas based on Sinap’s conservation goals”.
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A diagnosis on mining titles that overlap with protected areas
In addition, in two months the Government must make a diagnosis and characterization of the mining projects whose titles overlap with environmentally protected territories, of the negative environmental impacts generated by mining projects that do not have environmental licensing in the exploration phase and of the projects miners who are not being controlled in the exploration phase.
Based on said characterization, the Executive must make an inventory of Mining Environmental Liabilities and adopt and implement a preventive and corrective plan for the aforementioned problemswhich will have a short-term (one year), medium-term (two years), and long-term (five years) prospective.
The decision ordered the installation of an inter-institutional work table, in which the delegates of the ministries involved participate, as well as those of the regional autonomous corporations, the sustainable development corporations, the Anla, the large urban centers, the National Natural Parks of Colombia, the National Mining Agency, the Government of Antioquia (in its supervisory function), the Attorney General’s Office and the Comptroller General of the Republic.
The above for “propose and execute actions aimed at improving the relationship between the mining and environmental sectors”. There is a period of 15 days for this. And to update the mining-environmental guides and the terms of reference for the projects, including an appendix in which environmental determinants are defined by type of extraction, according to their specific environmental impacts, there will be one year.
ALEJANDRA BONILLA MORA
Justice THE TIME
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