Journal of Energy & Natural Resources Law

ISSN: 0264-6811 (Print) 2376-4538 (Online) Journal homepage: http://www.tandfonline.com/loi/rnrl20

The new reality of participation of local authorities

in mining projects in Colombia: interpretation of
constitutional principles, new opportunities and
participation mechanisms

Milton Fernando Montoya Pardo

To cite this article: Milton Fernando Montoya Pardo (2017) The new reality of participation of
local authorities in mining projects in Colombia: interpretation of constitutional principles, new
opportunities and participation mechanisms, Journal of Energy & Natural Resources Law, 35:4,
391-403, DOI: 10.1080/02646811.2017.1371410

To link to this article: https://doi.org/10.1080/02646811.2017.1371410

Published online: 03 Oct 2017.

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 Journal of Energy & Natural Resources Law, 2017
Vol 35, No 4, 391–403, https://doi.org/10.1080/02646811.2017.1371410

The new reality of participation of local authorities in

mining projects in Colombia: interpretation of
constitutional principles, new opportunities and
participation mechanisms
Milton Fernando Montoya Pardo, Post-Doc Studies at Dundee University (United Kingdom);
Doctor in Law (PhD) at Universidad Complutense de Madrid (Spain); Master in Energy Law,
Instituto Superior de la Energía (ISE) (Spain); Lawyer, Universidad Externado de Colombia.
Research Director at the Institute of Mining and Energy Law at Universidad Externado de
Colombia and professor at the same university. Member of the Academic Advisory Group of the
Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL) of the
International Bar Association (IBA); Member of the Board of the Colombian Mining and Oil
Bar Association. His professional experience has been in the mining and energy industry and as
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adviser of public authorities such as the National Mining Agency (2015), the Administrative Unit
of Public Utilities (UAESP) and the Colombian National Agency of Legal Defense. Founding
Partner at Estudio Jurídico Montoya & Asociados (http://estudiojuridicomontoya.com).
Email: milton.montoya@uexternado.edu.co
(Received 12 April 2017; final version received 4 August 2017)

Without prejudice to the legal reforms that must regulate the participation of
communities and territorial authorities in mining activities in Colombia, the
social licence to operate (SLO) appears today as a new requirement for the
viability of mining projects, recognised jurisprudentially. This tool must be
dynamic and a new axis of action for Colombian mining companies, regardless
of whether the projects are large, medium or small. Thus, today’s scenario also
imposes on local authorities and the communities they represent a very important
burden of responsibility. Their new role in the mining contracting processes
demands that they assume it with technical rigour. They must prepare
themselves, technically, to exercise this new jurisdiction in such a way that it
does not become an instrument to ban mining projects or allow corruption. It is
therefore necessary for these local authorities to know the processes of mining
projects, to understand the importance of the industry and the opportunities that
it can generate. They must be aware of the possibility of mining in a responsible
way with regards to the environment and that participation does not mean the
possibility to unilaterally prohibit mining or oil projects.
Keywords: mining; social licence; Colombia; participation mechanism; popular
consultation

1. Opportunities for citizen and local authorities’ participation in the current

mining contracting process and under other legal mechanisms
In Colombia, the current mining contracting process, regulated by the Mining Code and
complementary regulations, does not contemplate spaces where the communities that
inhabit the area of influence of a mining project, or the local authorities of the munici-
palities where the mining project will be developed, may intervene before the conces-
sion contract is finalised. The only spaces in which community participation is
established are defined in different legal processes, outside the mining contracting
process. These spaces of participation are the environmental hearing (in the process
of environmental licensing), prior consultation, popular consultations and public hear-
ings. We are going to describe briefly each of those procedures.
© 2017 International Bar Association
 392 MF Montoya Pardo

The environmental licence is the authorisation granted by the environmental auth-

ority, prior to the execution of a work or an activity, to comply with the obligations of
prevention, mitigation, correction and compensation in respect of impact on the
environment, and which are based on the result of the environmental impact assess-
ment. In order to obtain this authorisation, an environmental hearing1 may be requested
when a work or an activity that may have an impact on the environment or renewable
natural resources and for which an environmental licence is required is developed or
intended to be carried out. Those who may request this hearing are the country’s Attor-
ney General, the Delegate Attorney for Environmental Affairs, the Ombudsman, the
Minister of Environment, other environmental authorities, governors, mayors, at
least 100 people or three non-profit entities.
Today, following the decisions of the Constitutional Court, having a mining conces-
sion contract and an environmental licence is not enough to develop a mining project in
Colombia.2
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In regard to the obligation of prior consultation,3 this consultation is based on any

administrative or legislative measures that may directly affect indigenous or Afro-
descendent peoples. According to several pronouncements of the Constitutional Court,
the right to previous consultation should be extended to matters such as the definition
of strategic mining reserves areas,4 not just to the traditional process regarding mining
exploration or production. Indeed, regarding activities that require the consent of indigen-
ous communities, it has been concluded that any administrative, infrastructure, project or
work measures that intervene in or have the potential to affect indigenous or ethnic ter-
ritories must follow the process of prior consultation from the start of the project. In
addition, the consultation should be oriented toward obtaining the consent of the commu-
nities involved.5
Regarding the participation of non-ethnic communities, in Colombia, the possibility
of participation through popular consultation is contemplated as a general mechanism
for citizen participation. Traditionally, popular consultation has been considered by the
communities (and even by local authorities) as a defence mechanism against mining
projects despite legal restrictions that this mechanism involves, which will be explained
later in this article.

1 Law 99 of 1993, Article 72.

2 ‘For mining companies, it is increasingly evident that obtaining a formal licence to operate from gov-
ernments and meeting regulatory requirements is no longer enough. Instances of mining developments
being delayed, interrupted, and even shut down due to public opposition have been extensively docu-
mented (Browne et al, 2011; Davis and Franks, 2011; Prno and Slocombe, 2012; Thomson and Boutilier,
2011). Project impacts that may contribute to this opposition are broad and numerous, including oper-
ational dust and noise, impacts on or perceived future risks regarding ground water quality and quantity,
mine extensions that necessitate relocation of local communities, and cost of living increases due to the
influx of mine labour and housing speculation. It is widely recognised that mining companies need to
gain and then maintain a social licence to operate from local communities in order to avoid costly
conflicts’. Kieren Moffat and Airong Zhang, ‘The Paths to Social Licence to Operate: An Integrative
Model Explaining Community Acceptance of Mining’ (2014) 39 Resources Policy 61.
3 Constitución Política de Colombia, Articles 171 and 176.
4 Corte Constitucional de Colombia (2016), Sentencia C-221 www.corteconstitucional.gov.co/relatoria/
2016/C-221-16.htm accessed 21 September 2017.
5 Corte Constitucional de Colombia (2011), Sentencia T-129 www.corteconstitucional.gov.co/relatoria/
2011/t-129-11.htm accessed 30 June 2017.
 Journal of Energy & Natural Resources Law 393

Popular consultations are regulated in Law 143 of 1995, which defines them as ‘an
institution by which a question of a general nature on a matter of national, departmental,
municipal, district or local importance is submitted by the President of the Republic, the
governor, or the mayor, as the case may be, for the consideration of the people so that it
may formally decide on it’.6 It is mandatory to act upon the result of the consultation
when the affirmative vote of half plus one of the valid votes has been obtained, provided
that more than one-third of the electoral census has participated in the consultation.
Regarding mining projects, Law 136 of 1994 states that ‘when the development of pro-
jects of a touristic, mining or other nature threatens to create a significant change in land
use, resulting in a transformation in traditional activities of a municipality, a popular
consultation must be carried out in accordance with the Law’.7 This Law has been
defended by the communities and mayors as the legal basis that allows them to
convene popular consultations when facing mining and hydrocarbons projects. Never-
theless, there is an intense discussion regarding the jurisdiction of local authorities to
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present to the community such issues (such as the execution of a mining project)
which, according to previous understanding, are within the exclusive jurisdiction of
the national authorities.
The case of Piedras generated a strong national controversy because it was the first
time in Colombia that popular consultation was used to oppose the development of a
mining project. The recent trend shows a greater use of popular consultations to
prevent the execution of extractive projects, such as initiatives that have recently
taken place in Cabrera (26 February 2017), Cajamarca (26 March 2017), Cumaral (4
June 2017), Pijao (9 July 2017), Arbelaez (July 2017) and around 50 more projects
of popular consultation like the ones in process in Jesus María, Medina, Pasca, San
Vicente de Chucurí, Vistahermosa, Yopal.
In the author’s opinion, under the current legal system, the irregularity present in
this instrument is not associated with the community’s decision to express their
opinion but concerns the purpose of the bidding. Thus, going through a popular con-
sultation, with the purpose of asking about the execution of a mining project and
thus legally validating the social opposition to it, effectively constitutes an illegitimate
use of this mechanism of participation and must be penalised. Regarding the explora-
tion and production of non-renewable natural resources or infrastructure projects,
Article 33 of Law 136 of 1994 would allow the population to request, for example,
environmental, social or other measures of protection, regarding the project to be devel-
oped. However, it does not make it possible to consult an opinion about the project ban
(mining, electricity or oil project) and still less to consider that, in case of opposition,
the result generates the impossibility of developing the project. This is a power that, to
date, is not attributed to the mayors or to the communities and represents an excess in
the exercise of their legal faculties.8

6 Law 143 of 1995, Article 8.

7 Law 136 of 1994, Article 33.
8 Carlos Gustavo Arrieta, ‘Puntos de Discusión y Tensión en el Derecho Minero-Energético’ in Eliana
Zambrano, Constanza Bejarano and Juliana Hurtado editors, La Minería y los Hidrocarburos en Colom-
bia: Una mirada desde el Ministerio Público (Instituto de Estudios del Ministerio Publico, Universidad
del Sinú 2016) 147.
 394 MF Montoya Pardo

2. Understanding the principles of unitary state and territorial autonomy

under the new Constitutional Court interpretation
In this section, we will describe how the jurisprudential line of the Constitutional Court
has changed in regard to the participation of communities and local authorities in the
mining industry’s contracting processes.
As we shall see, the first pronouncements of the Court gave priority to the unitary
principle and the almost exclusive competence of the national authorities in mining
matters, with no room for local authorities to participate in this central and national con-
tracting process. Thus, precedence was given to the principle of unitary state. Currently,
the Constitutional Court emphasises the importance of prior participation of local auth-
orities and communities, both during the mining contracting process and before signing
the concession contract, giving a higher priority to the principle of autonomy. The new
line of interpretation of these principles in regard to mining activity means that auth-
orities, such as the National Mining Agency (ANM), must take actions aimed at
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giving greater priority to the principle of territorial autonomy in the processes of

mining contracting.
For the purposes of our study, the main decisions of the Constitutional Court on the
participation of territorial entities and communities in mining projects (based funda-
mentally on the constitutionality of Article 37 of the Mining Code and on the right
of priority on which the mining contracting system is based) are the following five judg-
ments: Judgment C-395 of 2012, Judgment C-123 of 2014, Judgment C-389 of 2016,
Judgment C-273 of 2016 and Judgment T-445 of 2016.
Before we start to analyse briefly those decisions, it is important to understand the
content of Article 37 of the Mining Code, which states:

Article 37 Mining Code: Legal Prohibition. Except for the powers of the national and
regional authorities referred to in Articles 34 and 35 above, no regional, sectional or
local authority may define areas of the territory to be permanently or temporarily
excluded from mining. This prohibition includes the territorial planning plans men-
tioned in the next article.

First of all, the Constitutional Court, through Judgment C-395 of 2012, gave pre-
cedence to the principle of the unitary state, because it understood that the objectives
of public interest that are present in the mining industry can subordinate and even
restrict the autonomy of the territorial entities in mining matters.
Subsequently, in 2014, the Constitutional Court issued Judgment C-123 of 2014,
which changed the constitutional interpretation of Article 37. In its decision, the
Court decided that, in order to analyse the tension between principles of autonomy
and unitary state, it is necessary to consider the principles of coordination, concurrence
and subsidiarity (Article 288, Constitution). These are support mechanisms to interpret
the principles of autonomy and unitary state in a harmonious manner. Considering the
above perspective, the Court decided to maintain the constitutionality of Article 37 of
the Mining Code, with the understanding that ‘ … in the development of the process
by which mining and exploration activities are authorised, the competent authorities
at the national level shall agree with the relevant territorial authorities on the necessary
measures for the protection of a healthy environment; especially of the watersheds, the
economic, social and cultural development of the communities and the health of the
population. This should be achieved through the application of the principles of
 Journal of Energy & Natural Resources Law 395

coordination, concurrence and subsidiarity provided for in Article 288 of the Political
Constitution.’9
In our opinion, the application of this ruling could have been carried out without any
major difficulties if environmental licensing had been promoted within the framework
of a coordinated action among the authorities that set the environmental and mining
public policy (Ministry of the Environment and Ministry of Mines), or if the environ-
mental licence had been made mandatory for the mining exploration stage. In this
context, mandatory spaces of participation of local authorities and communities
located in the area affected by the mining project would have been created. In this
way, it would be a requirement to obtain the environmental exploratory licence and
for the company to conduct these hearings with the local authorities and community
before any exploration activity, and agree on protection measures to address the com-
munity’s concerns. Unfortunately, this did not happen. The government’s response was
then the issuance of a decree that incorporated (partially) the Constitutional Court
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decision, nonetheless with deficiencies in form and substance.

In that context, Decree 2691 of 23 December 2014 was issued. The purpose of this
decree was to design a procedure that complied with the requirements ordered by the
Constitutional Court in Judgment C-123 of 2014. For this, the Court established a
process to be followed by the Ministry of Mines to define with the territorial entities
the necessary protection measures for the development of a mining project in their ter-
ritory. Its scope was enforceable for applications of concession contracts that were in
evaluation at that time and the ones to be filed in the future.10 However, Decree
2691 of 2014 was challenged through nullity actions, which ended with the provisional
suspension of the decree. All the claims argued that the decree was contrary to territorial
autonomy and to the instructions given by the Constitutional Court. This was because
only the municipalities were allowed to present ‘requests’.11 As a result of one of these
lawsuits, by a motion issued on 25 June 2015, the Colombian State Council ordered the
temporary suspension of Decree 2691 of 2014, arguing that the Ministry of Mines and
Energy had no jurisdiction to regulate the matter. This was because the Congress is the
only body directly and exclusively empowered to create administrative procedures and
not the Ministries, which are an executive authority, thus the Ministry was wrong to do
so.12 In addition, Decree 2691 was suspended because it left the final decision on the
adoption of the protection measures to the Ministry of Mines and Energy,13 thus

9 Arrieta (n 8) 148.
10 Decree 2691 of 23 December 2014, Article 2.
11 Claudia Marcela Herrera, ‘Como entender la participación de las autoridades territoriales en los procesos
de ordenamiento minero?’ in Juan Carlos Henao (ed), Minería y Desarrollo. Tomo V: Historia y
Gobierno del territorio minero (Universidad Externado de Colombia 2016) 124.
12 Consejo de Estado. Sala de lo Contencioso Administrativo. Sección Primera (2015). Auto June 25, 2015.
Radicación núm: 11001032400020150016300. Available in Spanish at http://static.elespectador.com/
archivos/2015/07/35032f88c0edd3277d893368a998e402.pdf.
13 For the Council of State, According to the Decree 2691 of 2014, the decision of protecting environment
depends exclusively on the exercise of discretionary power that the Ministry of Mines and Energy hold,
and due to the MInistry is who, unilaterally, define whether proceed or not the request. All the above
results clearly in opposition of what was say for the Constitutional Court in Judgement C-123 of
2014, due to that judgment pretended to harmonize the principle of territorial autonomy and the
unitary state, and working together can establish whether to exclude or not an area from mining activity.
(n 45).
 396 MF Montoya Pardo

contradicting the search for agreement with the territorial authority, as required by
Judgment C-123 of 2014.

3. Decisions after judgment c-123 of 2014 and the creation of a new

jurisprudential line
After Judgment C-123 of 2014 was issued and Decree 2691 suspended, new lawsuits
were filed through the Constitutional Court against Article 37 of the Mining Code. In
Judgment C-273 of 2016,14 the unconstitutionality of Article 37 of the Mining Code
was declared under the following understanding: ‘Moreover, this prohibition expressly
covers land planning. In so doing, it directly and definitively affects the power of ter-
ritorial entities to carry out the planning of their respective territories. Therefore, it is a
decision that affects legal rights of constitutional importance, and to that extent, is
subject to organic law reserve’.15
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Subsequently, the Constitutional Court issued Judgment C-389 of 2016.16 On this

occasion, the Court analysed several articles of the Mining Code, including those gov-
erning access to the mining concession contract: validity of the proposal,17 state
bidding laws,18 proposal submission,19 proposal requirements20 and environmental
management.21 For the plaintiff, all the above rules were unconstitutional, since they
did not provide for an adequate method to choose the proponent who would generate
greater benefits and bring lower costs to society in environmental, economic and social
terms. Faced with these charges, the Court analysed the tension between mining activity
and the ecological constitution, between sustainable development and the rights of
future generations.
The Court decided that citizen participation should take place before the exploration
stage and, therefore, it could be interpreted that such participation could be integrated
into the mining concession procedure. Thus, Congress22 was urged to establish a
method of accessing mining titles in line with the following parameters: respect for sub-
sistence mining; that small-scale mining is framed in the protection of the environment
and medium and large-scale mining to the highest standards in the industry; differen-
tiate mining not only by size but also by its social, cultural and legal significance,

14 Corte Constitucional de Colombia (2016) Sentencia C-273, 25 May 2016. Available in Spanish at www.
corteconstitucional.gov.co/relatoria/2016/C-273-16.htm.
15 Corte Constitucional de Colombia (n 14).
16 Corte Constitucional de Colombia (2016) Sentencia C-389, 27 July 2016. Available in Spanish at www.
corteconstitucional.gov.co/relatoria/2016/C-389-16.htm.
17 Colombian Mining Code, Article 16.
18 Colombian Mining Code, Article 53.
19 Colombian Mining Code, Article 270.
20 Colombian Mining Code, Article 271.
21 Colombian Mining Code, Article 272.
22 This memorandum is based on a recognition of the difficulty in applying the Court’s mandates from the
existing legal system and therefore requires structural legal reforms: ‘All of the above demonstrates the
existence of a deficit of protection to the constitutional principles mentioned in the associated regulations
to mining. The direct application of the Constitution might be insufficient to overcome this lack, given
that the concessions are regulated, and the mining authority may face problems with the principle of leg-
ality to give effect to constitutional mandates, in the terms described in paragraphs above. For this
reason, the Court will issue a conditional enforceability decision, mitigate this deficit, while clarifying
that it requires a comprehensive legislative judgment, accurate and appropriate’. (el resaltado es
nuestro). Corte Constitucional de Colombia (n 16) 65.
 Journal of Energy & Natural Resources Law 397

and consequently, for the protection of the traditional miner, and to differentiate infor-
mal, illegal and criminal mining.
Likewise, the mining authority is ordered to establish a protocol that guarantees the
suitability of those interested in the concession contracts regarding respect for labour
rights and compliance with environmental standards.23 The ruling also indicates that
the mining regulations must have a differential component, which adequately addresses
the different types of mining, in view of the size24 and impact of the activity.25
In our opinion, this ruling evidences a lack of knowledge about the operation of the
mining industry in practice, considering that, in the application for a mining concession
contract, it is very complex to verify the applicant’s work or environmental suitability
when there is no real and final mining project, which is only concretised (in dimension
and characteristics) before the exploitation stage with the presentation of the ‘Programa
de Trabajos y Obras’ (PTO).26 Thus, to comply with this order, the ANM would limit
itself to documentary verification of some professional formalities of the applicant’s
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mining team and verification of the commitment to follow mining-environmental

guidelines (a requirement that already exists). However, these measures are not real evi-
dence of this suitability, since this must be permanently verified in the practical devel-
opment of the mining project.
However, we must mention that the Court decision sets two central guidelines of the
complex problem associated with the participation of local authorities and communities
in the mining sector’s decision-making. First, the Colombian Congress must work on a
new Mining Code that incorporates the new jurisprudential interpretation of the Consti-
tutional Court on this matter, which has even questioned the application of the principle
of priority, special for mining contracting. Secondly, the Court endorses the ANM to
advance in the mining contracting process considering the required labour and environ-
mental variables. This, at least, allows the mining authority not to halt its contracting
activity, for example, by defining an internal protocol that organises the participation of ter-
ritorial authorities in the process of granting mining concession contracts, as had already
happened after the suspension of Decree 2691, 2014.27

23 ‘La única exigencia actual que el CM presenta en materia de concesión minera es la afirmación de
cumplir con las guías ambientales. Sin embargo, no se realiza un análisis de la vocación minera del ter-
ritorio nacional, de su interacción con otras actividades económicas y socialmente relevantes, como el
fomento a la agricultura, el acceso a la tierra o la restitución de las tierras de las víctimas de la violencia
y los derechos de los pueblos étnicamente diferenciados. No existen parámetros de racionalidad ambien-
tal, en términos técnico científicos, que expliquen o estructuren un método de entrega de títulos destinado
a concretar un concepto de país, rico en minerales, pero biodiverso, pluralista y multicultural’. Corte
Constitucional de Colombia (n 16).
24 The Ministry of Mines and Energy defined the classification of mining through Decree 1666 of 21
October 2016.
25 ‘Declare that Articles 16, 53, 570 and 271 of Law 685 of 2001 are against the Constitution, with the
understanding that the mining authority must verify minimum labor and environmental suitability,
before delivering a title mining, in light of the nature of the requested concession, and based on differ-
ential criteria between the different types of mining, and the extension of the projects, as well as to estab-
lish a procedure that ensure citizen participation, without prejudice to the particular ethnically
differentiated groups.’ Constitutional Court of Colombia. (n 16) 90.
26 Works programme for the exploitation phase.
27 By July 2017, 91 municipalities agreed with the National Mining Agency the development of mining
projects in their territories. Agencia Nacional de Mineria (2017) 91 municipios le dicen si a la
mineria bien hecha, 13 July 2017. Available in Spanish at www.anm.gov.co/?q=91_municipios_le_
dicen_s%C3%AD_boletin_prensa, accessed 21 September 2017.
 398 MF Montoya Pardo

However, the Constitutional Court recently issued the protection Judgment T-445 of
2016,28 which could imply that local communities and authorities have the power to
prohibit mining activities through citizen participation mechanisms such as popular
consultations. This is a misinterpretation to our understanding. In this case, the Consti-
tutional Court considered that there is a defect in the judgment issued by Quindío
Administrative Court because it erroneously concludes that municipalities do not
have absolute competence to regulate land use and guarantee the protection of the
environment, if by exercising this power, they end up prohibiting mining activity.
Consistent with what is presented in this section, in Colombia, there is a new
interpretation of the Constitutional Court in regard to the principles of unitary status
and territorial autonomy for their application in the mining industry, which also
shows, as explained by the Court, a deficit in citizen participation in the process of
mining contracting. This is true and the mining public policy did not identify this
deficit previously. Neither did it attend to the calls and movements of the communities
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requesting a greater participation so that, before the Constitutional Court issued these
judgments, legal projects that had this deficit were prepared to respond to the local auth-
orities’ request. Thus, in the face of the decisions of the Court, substantive legal reforms
are necessary to allow their full implementation, given the impossibility of doing so
with the legal framework in force today. Nonetheless, we do not agree that through judi-
cial decisions, the powers of the state over subsoil resources should be questioned,
opening the possibility for territorial entities to prohibit mining in their territory unilat-
erally. This interpretation is totally contrary to the same constitutional order of division
of powers between the state and territorial authorities, and delegitimises the same
general system of royalties. It also questions the institutionality of the mining sector
and legitimises the territorial authorities to assume faculties that have not been
granted by the Constitution; and that circumstance, when misinterpreted, can be used
to stop mining projects in an intentional manner and without a technical basis.
In addition, these failures and the absence of suitable tools for their application have
generated legal uncertainty for the mining sector which, we believe, is the main reason
that investment in the sector has now fallen alarmingly.29 Thus, if at any time the inter-
national mining industry perceived Colombia as a propitious destination for investment
and as a country that would become a regional mining leader, unfortunately that percep-
tion today is far removed from reality.30 In short, due to legal loopholes, in Colombia

28 Corte Constitucional de Colombia (2016) Tutela T-445 de 2016, 19 August 2016, Expediente T-
5.498.864. Available in Spanish at www.corteconstitucional.gov.co/relatoria/2016/t-445-16.htm.
29 ‘By June 17, investments in mines and quarries according to the balance of the Banco de la República
registered a fall of 52.4% to US $ 2.374 billion. For the president of the association Colombian Mining
Company (ACM), Santiago Ángel, one of the main reasons for this withdrawal of foreign capital from
the sector is the legal uncertainty to which they are exposed.’ Portafolio, ‘Falta de Garantías Jurídicas
Desanima a los Inversionistas Extranjeros’. Available in Spanish at www.portafolio.co/economia/
falta-de-garantias-juridicas-desanima-a-los-inversionistas-extranjeros-499290 accessed 21 September
2017.
30 Perhaps with extreme enthusiasm Colombia was seen as a country that would become a major mining
country in the region, such as Chile, due to the large foreign direct investment flows it received for its
mining industry in the 2002–2010 period. This was due to the legal reforms in favour of the industry and
to the improvement of the law and order conditions. Nevertheless, the dissatisfaction of the communities
on the development of mining projects in their territories were evident. Thus, there was still no direct
intervention of the Constitutional Court for the protection of these interests. Thus, Colombia and its
mining sector affirmed, for example, ‘In an impressively short amount of time, Colombia has moved
 Journal of Energy & Natural Resources Law 399

today, there is a risk of the wrong perception that mining projects must have the prior
approval of mayors or municipal councils without a technical or legal basis for it. Also,
due to ideological or political reasons, it would not possible to develop mining in areas
that do not have any type of restriction or exclusion because the mayor or the municipal
council did not grant express authorisation.

4. New principles for local authorities’ participation in mining projects in

Colombia: the three lines of action
Neither the citizen participation mechanisms that exist in the environmental licensing
process nor the social management plans recently regulated by the National Mining
Agency have been created as valid and sufficient participation instruments for the com-
munities. Nor have local authorities been involved in mining contracting processes and,
in the end, these local authorities have taken the voice of the communities they govern
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to claim their participation in the decision-making processes of Colombia’s mining pro-

jects. Likewise, this lack of participation has contributed to the poor reputation of
mining in many regions of the country, where the activity is seen more as a threat
than an opportunity. Of course, not all experiences of community outreach by compa-
nies have been successful but, in addition, interest groups have taken advantage of the
shadow of the ‘mining threat’ to generate disinformation among communities
(especially focused on a direct association between activity and environmental pol-
lution or water contamination) which, naturally, increases the discredit and social rejec-
tion of mining.31 Undoubtedly, this activity has an important impact on the ecosystems
where the projects are executed. However, stakeholders interested in discrediting the
activity use arguments associated with ‘harmful effects of mining’ to stigmatise the
activity per se. Besides, when exposing these harmful effects, it is not specified that,
like with many other economic activities (such as hydrocarbon exploitation, air trans-
port, power generation, etc), its development outside the industry and/or compliance
with the environmental regulations naturally generate severe risks and impacts for
life, health and the environment. Finally, in the Colombian case, we understand that
the ‘mining risks’ revolve around deficiencies associated with the institutional

from a country with mining potential to a recognized mining destination with staying power. The future
looks bright for Colombia and for global mining companies looking to tap into the country’s rich terri-
tory, 80% of which is unexplored. The question is no longer will Colombia become a mining power-
house, but when’ [emphasis added]. John Gravelle, ‘Colombia’s Mining Industry Is Growing Up, But
Not Without Some Growing Pains’ (2011) Canadian Mining Journal 38.
31 Regarding the social conflicts present in mining in Colombia, the Ministry of Mines has stated that
‘There is a bad reputation or aversion to mining activities, as well as significant levels of conflict and
resistance to projects in many regions where mining is developed, due to the limited implementation
of effective dissemination and socialization processes on the positive and negative impacts generated
by this activity. Currently, there is misinformation among communities, when the erroneous idea that
mining in general is harmful to the environment, economy and society is exposed, which makes it
difficult to devise and implement mining projects. Although much of the above is a product of a
growing environmental protection campaign, among other things, it should be clear that mistakes
made by some mining companies in the past have been a source of local discontent’. Ministerio de
Minas y Energia, ‘Política Minera de Colombia: Bases para la Minería del Futuro. Bogotá’ (2016)
16. Available in Spanish at www.minminas.gov.co/documents/10180/698204/Pol%C3%ADtica
+Minera+de+Colombia+final.pdf/c7b3fcad-76da-41ca-8b11-2b82c0671320 accessed 21 September
2017.
 400 MF Montoya Pardo

presence, the absence of suitable spaces for the participation of communities, the
absence of authority, the presence of corruption32 and the activity of illegal groups,33
which end up materialising the risks of the activity. In sum, we can affirm that, in
the Colombian case, distrust in the mining industry (which determines the acceptance
of the industry) obeys, in addition to the existence of massive illegal mining, dissatis-
faction of social resistance to the mining procedures and Company incomes and distrust
in the authorities.34
Thus, without prejudice to the legal reforms that must regulate the participation of
communities and territorial authorities in mining activities, the social licence to operate
(SLO)35 appears in Colombia today as a new requirement for the viability of mining
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32 ‘Several processes could plausibly explain the linkage between industrial mining and inequality. First, as
noted above, if displaced labour from agricultural and manufacturing sectors cannot be re-absorbed into
other productive sectors during boom periods, unemployment may rise and change income distribution
(Ross, 2007: 241). Second, the rents associated with IM can have negative effects on government
responsiveness. High rents can create incentives for corrupt political behaviour, which can lead to
resource revenues being diverted away from the public coffers. Additionally, high value minerals can
play a role in exacerbating the problems of unresponsive rentier states’ [emphasis added]. Jonathan
Gamua, Philippe Le Billon and Samuel Spiegel, ‘Extractive Industries and Poverty: A Review of
Recent Findings and Linkage Mechanisms’ (2015) 2 Extractive Industries and Society 162, 171.
33 In order to understand the participation of the illegal armed groups in the mining activity in Colombia,
we recommend reference to the work of Massé, Munevar and Camargo (2016). See Frédéric Massé and
Juan Munevar, ‘Due Diligence in Colombia’s Gold Supply Chain’ (OECD 2016) www.oecd.org/daf/inv/
investment-policy/Colombia-gold-supply-chain-overview.pdf, 29; Frédéric Massé and Johanna
Camargo, ‘Industrias Extractivas y Conflicto Armado en Colombia’ in Ana Gonzalez Espinoza (ed),
Los Retos de la Gobernanza Minero-Energética (Coleccion pretextos 43, Universidad Externado de
Colombia) 149.
34 This conceptual construction has been stated by Zhang and others in the following terms: ‘2.2.1. Distri-
butional fairness Distributional fairness was measured with two items. Participants were asked to rate the
extent to which they agreed with the following statements: “Generally speaking, the economic benefits
of mining are distributed fairly,” and “People like me receive a fair share of the benefits from mining.”
… [sic] … 2.2.2. Procedural fairness was measured with two items adapted from Moffat and Zhang
(2014). Participants were asked to rate the extent to which they agreed with the following statements:
“The mining industry listens to and respects community opinions,” and “The mining industry is prepared
to change its practices in response to community concerns.” … [sic] … 2.2.3. Confidence in governance
Confidence in governance was measured with two items developed from Cadman and Maraseni (2012)
and Jepson (2005). Participants were asked to indicate the extent to which they believed that: “Legis-
lation and regulation can be counted on to ensure mining companies do the right thing,” and “State
and federal/central governments are able to hold the mining industry accountable” … [sic] … 2.2.4.
Trust in the mining industry Trust in the mining industry was measured with three items adapted
from Moffat and Zhang (2014). Participants were asked to rate the extent to which they: “Trust the
mining industry to act in the best interest of society,” “Trust the mining industry to act responsibly,”
and “Trust the mining industry to do what is right” … [sic]’. Airong Zhang and others, ‘Understanding
the Social Licence to Operate of Mining at the National Scale: A Comparative Study of Australia, China
and Chile’ (2015) 108(Part A) Journal of Cleaner Production 10, 15.
35 The concept of social licence is extensively developed by the work of Hall and others in the following
terms: ‘Social licence to operate (SLO) is a concept that initially emerged from the mining industry in the
late 1990s. Gunningham et al. (2004) detailed the development of SLO from corporate social responsi-
bility (CSR) in the mining industry as the sector was increasing its focus on stakeholder views and social
obligations. Now, some researchers consider that achieving an SLO is a “key condition for successfully
establishing and running a mining project” (Falck and Spangenberg, 2014: 1). Over time, SLO has
become more widespread, warranting closer scrutiny by researchers (Owen and Kemp, 2012; Prno
and Slocombe, 2012; Thomson and Boutilier, 2011). SLO has been defined in research on engagement
in the mining industry as the level of ongoing approval or societal acceptance of the activities of an
industry, described as: … an acceptability [that] must be achieved on many levels, but … must begin
with, and be firmly grounded in, the social acceptance of the resource development by local communities
(Joyce and Thomson, 2000: 52)” … [sic].’ Nina Hall and others, ‘Social Licence to Operate:
 Journal of Energy & Natural Resources Law 401

projects, recognised jurisprudentially. This tool must be dynamic36 and must be a new
axis of action for the Colombian mining companies, regardless of whether the projects
are large, medium or small.37 Thus, today’s scenario also imposes on the local auth-
orities and the communities they represent a very important burden of responsibility.
Their new role in the mining contracting processes demands that they assume it with
responsibility and technical rigour. They must prepare themselves, technically, to exer-
cise this new jurisdiction in such a way that it does not become an instrument to hinder
projects or allow corruption. It is therefore necessary for these local authorities to be
trained, know the processes of mining projects, and understand the importance of the
industry and the opportunities that regions can generate. Besides, of course, they
must be aware of the possibility (necessity) of mining in a responsible way with the
environment.
In addition, local authorities must understand that, independently of the constraints
of the excluded and restricted areas of mining, as long as there is a mining resource
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there will always be an interest in exploiting the resource, so it is very important that
this activity is developed in a responsible manner. This should be achieved within
the framework of mining and environmental legality, with criteria of corporate social
responsibility and with the active participation of the local community. Otherwise,
illegal mining will be a latent and constant threat, given the particularities of Colombia,
where all the following may be disadvantaged: local communities (with human rights
violations), local authorities (with corruption), the environment (with pollution), public
finances (with lack of royalties), the mineral resource itself (absence of technique in its
exploitation) and legality (public order).

5. The need for an agreement law with local authorities in the extractive
industry
The Colombian mining sector is at a point of no return. New categories and legal pro-
cesses are needed to involve local authorities in the mining contracting process, as well
as to adjust this process to the requirements of the Constitutional Court in matters of
accreditation of environmental and labour suitability. Therefore, an organic law of
citizen agreement and territorial participation in extractive projects is necessary, not

Understanding How a Concept Has Been Translated into Practice in Energy Industries’ (2015) 86
Journal of Cleaner Production 301, 305.
36 That is, not exclusive to mining contracting processes, but it demands actions and efforts for recognition
and social acceptance throughout the entire mining project. As Smith explains, citing D Giurco, in refer-
ence to the nature of the SLO concept, ‘Rather it is an ongoing social contract with society that allows a
project to start and continue operating in a community’. D Giurco, B. McLellan, D. Frank, K. Nansai, T.
Prior. ‘Responsible Mineral and Energy Futures: Views at the Nexus’ (2014) 84 Journal of Cleaner Pro-
duction 327. Cited by Don Smith, ‘Social License to Operate in Unconventional Oil and Gas Develop-
ment Sector: The Colorado Experience’ in Lila Barrera-Hernández and others (eds), Sharing the Costs
and Benefits of Energy and Resource Activity: Legal Change and Impact on Communities (Oxford Uni-
versity Press 2016) 123.
37 In other cases, social licences arise as a necessary consequence of social conflicts, as in the case of La
Rioja in Argentina: ‘Social licence is not a concept integrating the Argentine legislation that regulates
mining activity; nevertheless, it has assumed in conflicts in general and in the case of Valle de Famatina,
in particular, a certain normative power’. Marian Sola Alvarez, ‘La disputa por la licencia social de los
proyectos mineros en La Rioja, Argentina’ (2013) 14 Letras Verdes, Revista Latinoamericana de Estu-
dios Socioambientales 30.
 402 MF Montoya Pardo

only for mining but also for hydrocarbon projects. This standard should consider the
following elements: local authorities’ participation must take place before the signing
of a mining concession contract; the protection measures proposed by the local auth-
ority must have a technical basis endorsed by an authority competent in this matter;
the applicant mining entrepreneur must participate in the conciliation process; the con-
sultation process should be regional; the conciliation meetings should not cause paraly-
sis to the mining contracting process; compliance with the protection measures by the
mining owner must be monitored; the new decision of the Constitutional Court must be
interpreted as meaning that local authorities must participate in the mining contracting
process and that they may propose measures of protection that are technically justified,
but are not empowered to prohibit mining in the context of this intervention in their ter-
ritory. It is very important to understand that the decision about the development of a
mining project in Colombia, after the Decision C-123, is not exclusive to local auth-
orities. As the Court said, this decision must be agreed between national authorities
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(ANM) and the local authorities.

However, the implementation of the necessary measures to ensure the participation of
the territorial authorities in the processes of the mining sector, especially the contracting
process, will generate new dynamics and granting times. Undoubtedly, the process will
be more complex from the operational point of view. The decisions involving the partici-
pation of the territorial authorities will further extend the mining contracting processes.
In the legislative sphere, to broaden the opportunities for community participation,
the use of local private participation instruments (LPPI), which are binding on compa-
nies and communities, should be promoted and socialised in Colombia, along with high
international standards of self-regulation,38 which are validated and recognised by
national and local authorities, and which include clear penalties for companies and
communities in case of non-compliance. This endows the participation rights with
the responsibility and rigour implied by these powers, both for the company that devel-
ops the extractive project and for the community with which protection measures have
been arranged.
Therefore, the call is for the expeditious issuance of legislative measures to contem-
plate these procedures so that, finally, a new, more inclusive mining development can
exist in Colombia, without undermining the state’s constitutional principles regarding
the mining resource’s property ownership, its institutionality, nor pretending to grant
powers of prohibition or veto to those who, under the current legal system, do not
have such authority.
Finally, we believe that, even if the procedures and spaces to ensure local participation
in mining processes are legislated, the debate on land use will continue. Far from disap-
pearing, it will increase. Indeed, in the Colombian case, the discussion and transform-
ations we have presented on the participation of local authorities and communities in
mining processes, or even on the ownership of non-renewable natural resources, is just
one small bit of a much larger and transcendental discussion: the debate on competition
for land use within the framework of the concept of ‘soil governance’.39

38 Soili Nysten-Haarala, Elena Klyuchnikova and Heidi Helenius, ‘Law and Self-Regulation: Substitutes or
Complements in Gaining Social Acceptance?’ (2015) 45 Resources Policy 52.
39 Tanya Howard and Andrew Lawson, ‘Soil Governance: Accessing Cross-Disciplinary Perspectives’
(2015) 1 International Journal of Rural Law and Policy, 35.
 Journal of Energy & Natural Resources Law 403

Acknowledgements
The author is particularly grateful to University Externado and to the Director of this research,
Professor Peter Cameron, Director of the Center for Energy, Petroleum and Mineral Law and
Policy (CEPMLP), for his suggestions, assistance and wise guidance. He also thanks all the
teaching and administrative staff of CEPMLP, where this research was carried out, for the
support provided during the academic stay. This work is dedicated to the memory of Christoph
Koch (15 January 1978 to 13 February 2015) for his friendship, teachings and wonderful mem-
ories. His presence will remain always with us. ‘Ich bin dankbar für die Zeit, die wir zusammen
hatten, bin dankbar für das Licht, un ich bin dankbar für den Schatten.’- ‘Tu presencia perma-
nence, tu memoria nos acompaña y agradecemos cada momento que compartimos’.

Funding
The development of this paper was the result of the grant ‘Newton Researcher Links Travel
Grants’ by the British Council, granted to the author thanks to the Academic Cooperation Agree-
ment between Universidad Externado de Colombia and the University of Dundee (Scotland).
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