In the recently terminated legislative session, important bills which looked to regulate mining and hydrocarbon between national and municipal entities for authorization of exploration and exploitation activities in the territories, and that included approval of the communities were denied.
The purpose of these bills, once agreed between the inhabitants and administrative entities, was to include the judicial instruments in Urban Development Plans (POT, for its Spanish acronym) which determine territory organization.
For Universidad Nacional de Colombia (UNal) Professor and Sciences Po Paris Political Sciences Ph.D. Catalina Toro Pérez, “Denying these initiatives hinder a real democratic debate, as they include participation, control, and supervision of communities which voiced their concerns and uncertainties linked to the environmental impact over their territories. This means, above all, strengthening of an authoritarian scene which disavows that nature has rights and threatens the cultural, natural and environmental legacy of our society by imposing extractivist megaprojects.”
Between 2013 and 2018, the National Agency for Environmental Licensing (ANLA, for its Spanish acronym) granted 1,217 licenses which authorized mining and hydrocarbon exploration in more than 290 municipalities in 27 provinces of Colombia.
Environmental licensing for mining exploration also did not prosper in Congress. Currently, there is only an environmental-mining guide without specific obligations and duties for exploration. According to the National Mining Agency, “This is a consultation and conceptual and methodological directioning tool to improve mineral and environmental management and performance.”
Colombia is one of the few countries in the world that does not demand these types of licenses; inclusively the Organization for Economic Cooperation and Development (OECD), which Colombia is a recent member, suggests reviewing environmental licensing and mining exploration, among other topics.
UNal Environmental Studies Institute Researcher Javier Toro Calderón, says, “The environmental licensing process is a basic tool for decision-making on projects which can produce environmental deterioration to the detriment of the welfare and health of communities. In this sense, a series of protection, correction, mitigation and amendment requirements must be complied since the beginning of the exploration stage, taking into account that, according to scientific evidence, they could have ‘significant potential environmental impact’”.
The bills denied looked to advocate the principle of community participation and territorial agencies as specified in Article 79 of the Political Constitution of Colombia of 1991: “Every person has the right to have a healthy environment. Law will guarantee the participation of the community in the decisions which could impact them.”
“The idea behind this regulation was not to deny environmental licenses, but to issue regulations to guarantee citizen participation in protecting the environmental legacy, represented in the care for its water basins,” said Toro.
Last year six municipalities denies mining and hydrocarbon explorations through popular consultation: Cabrera and Arbeláez (Province of Cundinamarca), Cajamarca (Province of Tolima), Cumaral (Province of Meta), Pijao (Province of Quindío) and Jesús María (Province of Santander), besides those which had opposed back in 2013: Piedras (Province of Tolima) and Tauramena (Province of Casanare).
For Professor Toro it is important to begin a debate on why these bills were denied (by the expiration of terms) as the discussion had been taking place since December of 2014 with the controversial “Christmas decrees”, where they denied the municipalities the capability to vote if they wanted mining or not. The Constitutional Court ruled them unconstitutional and supported the validity of popular consultations and the right of municipalities to decide on their own development.
However, last April, the Colombian Council of State ruled against a popular consultation in the municipality of Une, Province of Cundinamarca, over extending mining concessions. The Council ruled that the municipalities cannot prohibit this activity without previously reaching agreements with national entities.
For Toro, this ruling marked a twist in regards to the rulings of Constitutional Court which had supported the participation principle and consultation in previous years, “In fact, there are more than 10 suspended consultations because in municipalities such as San Lorenzo (Province of Nariño) or Córdoba (Province of Quindío) the Ministry of Finances stated it was no longer going to fund these consultations.”
The decision of the Ministry opposes Article 103 of the Constitution which says popular consultations are a participation mechanism for the people to exert their sovereignty, and the government should contribute to its organization, promotion, and training. The ministry says funding should come from the Offices of the Mayors. The Constitutional Court needs to make a ruling on this legal conflict.
“In environmental matters, the Colombian legal system has shown progress but also many structural shortcomings which hinder guaranteeing the right to protect the health, environment, ecosystems and diverse cultures linked to traditional preservation practices; neither does it taking concrete decisions to mitigate climate change. The latest court rulings evidence a scenario where the ‘corporate’ state determines and decides in name of the companies, the criteria of public utility with respect to what is done to the ground and underground,” said Toro Pérez.
For the experts, inclusively the denied bills have a conservative nature, as what should be presented, according to the principle of sustainable development, is a model of energy transition towards post-extractivism; a discussion over the energy model in a context of real climate change which is already evidencing the vulnerability of the society in terms of the disappearance of unique ecosystems, besides floods, droughts, catastrophes and displacement of communities, many times as a consequence of mistakes made by human beings.
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