Articles 79 and 80 of the Political Constitution provide that it is the duty of the State to protect the diversity and integrity of the environment, conserve areas of special ecological importance, plan the management and use of natural resources to ensure their conservation and restoration, prevent and control factors of environmental deterioration, impose sanctions, and demand reparation for damages caused.
Article 47 of the National Code of Renewable Natural Resources and Environmental Protection ("CNRNR"), states that renewable natural resources regions may be declared as reserved areas for the purposes of (i) organizing or facilitating the provision of public services; (ii) carrying out programs for the restoration, conservation, or preservation of these renewable natural resources and the environment; or (iii) when the State decides to exploit them.
The second instance judicial ruling issued by the Council of State on August 4, 2022, within the Popular Action No. 250002341000-2013-02459-01, ordered the Ministry of Environment and Sustainable Development (“Ministry of Environment”) along with the competent mining and environmental authorities, to take the necessary conservation actions, until the process of declaration, delimitation, and definitive zoning of territories that could belong to the National System of Protected Areas (“SINAP”) is completed.
In compliance with the above, the Ministry of Environment will delimit and declare, through a motivated administrative act, temporary reserves of natural resources for the three purposes set forth in Article 47 of the CNRNR. For this purpose, the Ministry of Environment has published the draft decree titled Criteria for declaring and delimiting temporary reserves of natural resources within the framework of environmental mining planning and other provisions (the "Project"), which establishes, among others, the following criteria to be considered for the declaration of temporary reserves of renewable natural resources:
- Generating corridors of biological connectivity.
- Adopting determinations regarding the sustainable use and management of natural resources.
- Territorial planning around water.
- Environmental governance systems.
Furthermore, the Project states that during the validity of the declaration of temporary reserves, (i) no mining titles and/or contracts subject to special regimes, concession contracts, special exploration and exploitation contracts, as well as permits or environmental licenses for the exploration or exploitation of minerals, shall be granted or extended; and (ii) in case of existing mining titles under termination grounds pursuant to Law 685 of 2001, the competent authorities, based on the principle of prevention or the precautionary principle, shall take necessary measures aimed at the definitive closure of mining operations.
In the event that it is determined that a portion or the entirety of the reserved area is not suitable for conservation or preservation measures or programs, the Project stipulates that such area can be used to delimit or establish (i) special mining districts for productive diversification; (ii) areas of strategic mining reserve with high potential for strategic minerals; or (iii) areas of strategic mining reserve for formalization.
Finally, the Project provides that the administrative act declaring temporary reserves will establish the term of duration of the declaration, and once it is issued, the mining authority must, within the following five (5) business days, register it and incorporate the area into Anna Minería as an excluded mining zone.
At this point, it is not clear whether the project complies or is compatible with the requirement of the Constitutional Court's rulings concerning prudence in the application of the precautionary principle, which requires that in order to exclude or restrict mining exploration and exploitation works in areas of protection and development of renewable natural resources or the environment, the act that declares them must be expressly motivated in studies that determine the incompatibility or restriction in relation to mining activities.
To review the draft decree, please access the following link: Draft decree