Law 2250 of 2022 established the basis of the legal framework for mining legalization and formalization in Colombia. In the development of this legal framework, the Ministry of Mines and Energy and the National Mining Agency presented the Single Mining Legalization and Formalization Plan (the “Plan”).
The general objective of the Plan, through the involvement of the State, is to establish and implement actions that guarantee access to formalization of small-scale mining based on the existing legal figures. Thus, it seeks to dignify mining practices and improve the living conditions of beneficiaries; overcome obstacles and gaps to regularization; ensure environmental and social sustainability and economic profitability; and strengthen production and value chains.
For its structuring it was considered that, according to the last 2010-2011 departmental mining census, 14,357 mining units and 102,742 people engaged in mining have been listed in Colombia, of which 63% lack a mining title and the corresponding environmental license for their activity. On the other hand, according to information consolidated by the National Mining Agency and the Mining Formalization Directorate of the Ministry of Mines and Energy, as of December 31, 2022, the number of regularized small-scale miners in Colombia amounts 27,767.
Based on the above, the Plan identified as challenges to mining formalization the lack of trust in institutions, territorial conditions, possible incompatibility with environmentally protected areas, access to professional and technical assistance, regulation and adaptation of current policies, identification of free areas and the absence of financing, information, and a differential approach.
Likewise, the Plan also indicated that there are currently three scenarios in which traditional miners can formalize or legalize their activities. In each of these scenarios there are applicable legal figures for formalization:
- The first scenario is when the miners’ activities overlap with formalization requests or concession contract proposals; although current regulations do not allow formalization processes to be carried out in this scenario, formalization requests must be studied and analyzed by the mining authority to define whether they comply with the legal requirements.
- The second scenario occurs when the miners’ activities overlap with mining titles in force. In the first place, Law 2250 of 2022 in articles 4 and 7 stablishes the possibility to carry out processes to reach agreements between the mining owners and the informal small-scale miners. In addition, in this scenario it is possible to apply any of the following figures:
- Assignment of areas.
- Assignment of rights.
- Operation and/or partnership agreement.
- Mining formalization sub agreement: It is a legal business between a mining title holder and a small-scale miner. The latter must have carried out extractive activities within the area of the mining title prior to the issuance of Law 1658 of 2013 (July 15, 2013). Because of the sub agreement, the small miner will be a subcontractor, becoming responsible for all the obligations inherent to the exploitation of minerals within the area of the subcontract, as well as for the sanctions derived from regulatory or legal non-compliance.
- Area devolution for mining formalization: This alternative only proceeds: (i) if the small-scale miners are carrying out exploitation activities in the same area of the mining title granted; or, (ii) when the small-scale miners are carrying out exploitation work in an area other than that of the mining title, but due to environmental and/or social restrictions that are present in such area, they require to be relocated.
- Finally, the third scenario applies to any situation where the small-scale miners' activities are in free areas. In this situation, it is possible to achieve their formalization through:
- Special reserve areas: In accordance with Article 31 of the Colombian Mining Code, the Government may delimit zones in those areas where there are traditional informal mining operations, in which new proposals will temporarily not be admitted. The above, to carry out geological mining studies and grant areas under special concession contracts in accordance with Article 248 of the same Code.
- Concession agreement proposal.
- Concession agreement with differential requirements proposal: Those who sign these agreements will receive comprehensive support and will be subject to differential tax control. In addition, it should be noted that the national government is responsible for developing the differential requirements in accordance with Article 326 of Law 1955 of 2019.
- Requests for formalization of traditional mining: Initiative established in Article 325 of Law 1955 of 2019, aimed at natural persons, groups or associations that submitted applications for formalization of traditional mining until May 10, 2013, to the competent mining authority, and that as of the date of enactment of Law 1955 of 2019 had not yet been resolved.
- Requests for legalization: In accordance with Article 165 of the Mining Code, the granting of the mine or mines under concession must be requested within a non-extendable term of three years from January 1, 2002, and may only occur if the requested area is free.
- Reserve areas for formalization: These areas were defined in Article 20 of Law 1753 of 2015, as strategic mining reserve areas for the formalization of small-scale miners, on free areas or those that are delivered through the figure of return of areas for mining formalization.
Law 2250 of 2022 expressly established the need to regulate the procedure for the delimitation of special reserve areas. At the date of preparation of this Plan, this activity is being developed by the Ministry of Mines and Energy and the National Mining Agency.
On the other hand, with the intention to accelerate the study of formalization requests that have already been submitted and facilitating those of traditional miners interested in formalizing their activities, the Plan contains the actions that conform the four fundamental axes on which it is based, which are: 1) differentiated approach, 2) simplification of procedures and processes, 3) effective coordination between national and local institutions, and 4) support from the mining authority in the legalization and formalization process.
In addition, intending to supervise the Plan execution, it incorporates the creation of the Management Tracking and Technical Committees formed by (i) the Vice Minister of Mines or his or her delegate; (ii) the Director of Mining Formalization of the Ministry of Mines and Energy or his or her delegate; (iii) the President of the National Mining Agency or his or her delegate; (iv) the Secretary of Mines of the Governor's Office of Antioquia or his or her delegate. Moreover, it also establishes that in accordance with Article 8 of Law 2250 of 2022, small-scale miners may use the mining development fund, a body affiliated to the Ministry of Mines and Energy, to leverage actions aimed at the formalization of their operations within the framework of the strategic plan.
The implementation of the plan, under the leadership of the Ministry of Mines and Energy, is projected to the year 2026. Its progress will be measured according to the actions that conform the strategic axes and based on the number of formalization processes resolved since the implementation of the axes.
To consult the Plan, click on the following link