The Decree No. 044 of January 30, 2024 (hereinafter the “Decree”), the Ministry of Environment and Sustainable Development of Colombia (in Spanish the “MADS”) establishes the guidelines for the creation of zones for the protection and development of renewable natural resources on a temporary basis. The objective of these guidelines is to exclude or restrict mining activity in these areas (hereinafter “Temporary Reserves”). 

The Decree issued by MADS was in response to the court ruling 250002341-2013-2459-01 of August 4, 2022, by the Council of State, which urged MADS to carry out the necessary work for the declaration, delimitation, and definitive zoning of the territories that could belong to the National System of Protected Areas (“SINAP”), and while these tasks are completed, to execute the necessary and relevant conservation actions through the figure provided in Article 47 of Law Decree 2811 of 1974 that contains the National Code for Natural Renewable Resources (“CNRNR”) and in Decree 1374 of 2013. 

In compliance with the above and by virtue of court ruling C-339 of 2002, in which the Constitutional Court clarifies that the mining exclusion zones established by law are not exhaustive, MADS establishes the following criteria for declaring Temporary Reserve zones: 

1. Presence of ecosystems of environmental importance or conservation values and the provision of ecosystem services.
2. Presence of areas of strategic importance for the conservation of water resources that supply water to municipal, district, and regional aqueducts.
3. Degradation processes that require restoration actions in their different approaches.

Once a Temporary Reserve is declared, the same effects established in Decree 1374 of 2013 are generated, meaning that the mining authority may not grant new titles for these zones. The aforementioned restrictions do not apply and/or affect temporary authorizations for the use of construction materials, under the terms of Article 116 of the Mining Code. 
 

On the other hand, once a Temporary Reserve is declared, the following actions must be carried out: 

1. MADS will send the administrative act of the reserve declaration to the National Mining Agency ("ANM"), who will incorporate and/or update the area in the Anna Mining platform within no more than five (5) days. This is to ensure that new titles and/or concession contracts, or authorizations are not granted until the delimitations or declarations that may be necessary are made. 
2. Competent authorities must advance the necessary technical studies and corresponding processes on the areas.
3. In the event that Temporary Reserves overlap with mining titles immersed in any of the causes and forms of termination established in the Law 685 of 2001 (“Mining Code”), the competent authorities must make the necessary inquiries and take appropriate measures, and will guide, when applicable, the definitive closure of mining operations.

We highlight that the Decree does not establish actions and/or requirements that can be taken when the area of the Temporary Reserves overlaps with in force mining titles that are up to date with their obligations. Additionally, there may be a risk of permanent closure of mining operations for mining titles and/or mining concession contracts involved in any of the causes and/or forms of termination of the Mining Code and corresponding instruments.

These actions aim to ensure the protection and conservation of natural resources, as well as the harmonization of mining activity with the preservation of the environment. 

Regarding the validity of the Temporary Reserves, according to the Decree, it may be up to five (5) years, extendable only once for the same term, according to the characteristics and needs of each area. Once the validity period has elapsed, MADS will timely communicate this to the ANM for its update in “Anna Minería”. 

On the other hand, the Decree establishes that the competent authorities must adopt a work schedule, in the terms and conditions established in the sentence of the popular action lawsuit. Said schedule will be sent to the judge in charge of verifying its compliance, thus ensuring the harmonious collaboration between environmental and mining entities. 

Finally, it is emphasized that, although Article 34 of the Mining Code establishes that the delimitation of the protection and development zones of renewable natural resources or the environment must be advanced based on technical, social, and environmental studies and that, for mining activity to be excluded or restricted, the act that declares such areas must be expressly motivated by studies that determine the incompatibility or restriction of mining activities, the Decree is based on the precautionary principle, according to which, "when there is a danger of serious and irreversible damage, the lack of absolute scientific certainty shall not be used as a reason to postpone the adoption of measures to prevent environmental degradation."

This means that under this regulation, the environmental authority may declare the Temporary Reserve without prior studies that show the incompatibility of the area with mining activities based upon the precautionary principle.