Environmentalists and multinationals see an opportunity in the collapse of the Mining Code
[Translated by CSN volunteer translated Diana Méndez. Edited by CSN volunteer editor Teresa Welsh.]
The decision by the Constitutional Court which brought down the reform to the Mines' Code (Codigo de Minas) took no one in the sector by surprise. But curiously enough its fall made both miners and environmentalists happy. This is the opportunity to get rid of a code in which both saw many problems and to present another one.
The Constitutional Court brought it down because the Mining Ministry in the government of Alvaro Uribe implemented the reform to the Mining Code in Congress without consulting the ethnic minorities, the Ministry of the Interior, or the Ministry of the Environment. The Court could no longer ignore the government's obligation to previously consult [the concerned parties]: a good part of mining titles in Cauca, Nariño, and Chocó [departments] are on indigenous or Afro reservations. The reform would fall because it had to. And it did fall.
At first, the concern was that the plateaus would be left unprotected and that the mining companies, for example, GreyStar, would take advantage of the opportunity to ask for permission to operate there since this prohibition was explicit in the code that fell, but not in the law currently in force after the Court's decision. But the Santos government protected itself before the Court made a decision and took advantage of that the National Plan for Development was being debated in Congress to include a few articles that rescued what was good in the Code which they knew was going to fall (and by the same token score a point in favor of the mining companies).
An article was included which prohibited realizing exploratory activities or exploitation of minerals in the plateau's ecosystems and the "ramsar" wetlands which are internationally recognized. There were already two court decisions (C-339 of 2002 and C-443 of 2009) which ordered the protection of the plateaus but with the Development Plan, the government reinforced during the next four years.
According to an expert at the Mining Ministry, the government went overboard and created a new scale to measure the ecosystems in the plateaus and wetlands, that is so detailed that it will now take much longer to finish all the cartography.
The plan also prohibits small time dredging which causes great environmental harm, an article which was in the original Code which fell. But this went farther and also prohibits medium dredges like the kind that miners use in el Chocó, by which an entire region's productive system would be deemed illegal. The point that the government scored in favor of the mining companies in the Development Plan is that they modified the length of time needed to grant environmental licenses. This is one of the articles most fiercely criticized by environmentalists. The article reduced the time for the granting of licenses and in addition the "administrative silence" will no longer be in effect. If the environmental does not reach a decision about the granting of licenses after receiving the solicitation, the decision is transferred to a body that in the Environmental Ministry ends up having the same weight that the mining sector representative.
In any case, both for environmentalists and miners, what was approved in the Development Plan,although helpful, does not fill the regulatory gaps that exist in mining and this is why efforts must be directed at getting a new Code drafted. La Silla Vacia knew that two weeks ago the Mining Ministry had already decided to present a new mining reform.
What begins now then is the competition between environmentalists and miners to draft a Code that meets their expectations. They have two years to do it in since the Court –to everyone's surprise- decided to defer the coming into effect of its sentence and keep current the reform to the Code, while Congress approves a new one (hopefully, this time with prior consultation).
The desires for a new Code
The discussion of a new mining code is an opportunity to correct things that former Environmental Minister Manuel Rodríguez Becerra calls "perverse". One of the issues that urgently needs to be corrected is that mining titles should not remain in effect when the environmental license has been denied. Since people keep the title, they can take advantage of any changes in the environmental authority in order to request it again, and they often do so.
It could also be included in the new reform that it be mandatory to have an environmental license in order to conduct mining explorations. The way it is now is that mine exploration does not require licensing. Licensing is only required when the mine is to be worked which makes the pressure exerted by the mining companies over the environmental authorities unmanageable.
This is the case in the islands of Providencia where the deposits [of natural gas] have already been awarded to some multinationals associated with Ecopetrol who have no environmental license, because the natural gas is on a Biosphere Reserve which is protected internationally. But since the expectation has already been set, the pressure on Coralina will be great. The new Mining Code could also protect the water providing basins which are the first affected by mining and which are not regulated because the Environmental Ministry tried to include that initiative in the last legislation and did not get it passed.
This reform also makes possible that Colombia adapt to international legislative tendencies in environmental and responsible mining laws. Fifteen days ago the UN approved a document in which it urges nations to subscribe to international covenants about mining which include higher requirements over the use of mercury and other chemicals and about working conditions and industrial safeguards, covenants which Colombia has not ratified.
One of the critically important issues that environmentalists would like to include in the new code has to do with the environmental process and in particular with the functions of the environmental ministry which are now full of legal loopholes.
Lastly, according to ex Environmental Minister Juan Mayr, this new reform is the chance to incorporate the decisions of the Interamerican court that speak to the need of reestablishing prior consultations. This issue of prior consultations –which ended up being that which brought down the reform of the Code- makes immediate the need for a creation of a public policy to realize consultations since the Afro-Colombian and indigenous communities occupy 40 percent of the national territory and the court's sentences are but a guide.
The former minister knows that it won't be easy since the first requirement for that policy will be the consensus of the ethnic minorities with whom the government kept discussions blocked until the government of Juan Manuel Santos. "Now there is a good ambiance but there still are no results" he said. Miners also see an opportunity in this reform. For Francisco Urrutia, the sector's adviser, the new reform seeks to strengthen legal and responsible mining in the country, mining in which the working of mines is done in a professional manner and with enough industrial security to prevent accidents. That is to say, that illegal mining can be actively fought against.
The political environment
The new reform will be discussed in a very different environment than before: now the issue of mining is central in the national agenda. The mining locomotive is a priority for the Santos government and, due to its environmental risks, the media, the environmentalists and public opinion will be paying attention to what gets approved or not by the congresspeople. In addition, the forces in Congress are not the same as in the Uribista epoch, when in the interests of investment's confidence the code that the Court brought down was quickly approved.
It is expected that the mining lobby will be the same or stronger than it was for the previous reform. In the last legislature mining associations like Asomineros and mining representatives like AngloGold Ashanti were very active. For the discussion there is a new union, that of mining on a great scale, whose spokesperson is Claudia Jiménez and which is becoming more organizad. Without a doubt, they will play a very strong role in the debate.
The problem is that the reform will get to Congress during a moment of great weakness in the Environmental Ministry. The Environmental Ministry is still in the process of division from the ministry of housing, the councilor Sandra Bessudo has not taken over as minister yet. The current minister has shown little interest in the environment and the plant is changing in form and employees. The technicians that defended the plateaus and wetlands in the previous legislature are no longer at the Ministry.
Of the three technical geologists that worked in congress for the last reform, there remains only one. The boss of the three, César Buitrago, who was Director of Sustainable Sectional Development, left three weeks ago. The functionary which during the discussion of reform last time put up a political fight, viceminister of water Claudia Mora, has also left. "There is no group that is technically and judicially qualified," geologist Julio Fierro said to La Silla Vacia.
And the Environmental Ministry is not the only one with no base. Just like former Minister Mayr sees that there is no strong environmemtal minister, a representative of large mining assures that there is also not strong ingeominas which could achieve responsible mining which would bring an end to illegality and informality. The fight to regulate Santos' locomotive is just taking off and this will test the strength and organization of the environmentalists and the mining union. The question is who will gain the votes in Congress.
NOTE FROM CSN : For various reasons, the CSN office was closed for most of the summer. We apologize for posting this article late. Sorry for the inconvenience. (This translation may be reprinted as long as the content remains unaltered, and the source, author, and translator are cited.)
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