Antecedents of the Mining Code

The Mining Code, a very important piece of legislation for the future of the indigenous peoples, was not the product of a dialogue with civil society. On the contrary, the responsibility for preparing the draft Mining Code was given by the government to the Colombian law firm “Martines Cordoba” on February 1999. This law firm was hired to prepare the draft Mining Code in disregard of all rules of procedure for public service contracts. The reason behind this irregular procedure became clear later on. The firm “Martines Cordoba” is the legal representative of the Mexican cement Company Semex, a subsidiary of the Holder Bank, and the oil and gas drilling company Santa Fe, owned at that time by President Pastrana.

A consultation process of the draft was initiated in an attempt to comply with the provisions established by Law 21 (the law that adopted the ILO 169 in Colombia). The process was riddled with irregularities and was finally concluded with a unilateral decision taken after some meetings were carried out with indigenous organisations. These meetings however merely informed them about the future Mining Code and it was suggested that it was not possible to make any change to the draft. This was made evident by a letter, dated 29th of November 1999, to Alberto Henao, sub-director 1 of the Mining Unit, which is an annex of the Ministry of Mines, by the solicitors of “Martines Cordoba”. This letter stated that the meeting with the indigenous peoples’ representatives had no positive outcome and consequently the draft would not incorporate any new chapter on mining and indigenous territories and would remain the same, thus leaving to the National Congress to make any definitive decisions regarding this issue.

Finally, the Code was approved, against indigenous protected rights consecrated in the Constitution and in international legal instruments such as ILO 169.

The Mining Code (Law 685, 15 August 2001)

This law came into force not simply to regulate mining activity but, as the first article states, ‘to promote” the exploration and exploitation of the mining resources of ‘public and private property’. The aim is to ‘stimulate these activities to satisfy the internal and external demand’. Whilst articles 3 and 4 clearly state that no law can be opposed to this law regarding mining, this directly contradicts many important documents which protect indigenous rights.

Article 5 determines that all mining resources belong exclusively to the state without taking into consideration the property and territory ownership rights of individuals, communities or groups. This goes against the right to indigenous collective property recognised by the Colombian Constitution.

Article 13 declares mining to be of ‘public interest’, thus consecrating unlimited rights to the State to expropriate any territory with the aim of exploration and exploitation of mining resources. This dramatically affects the right of the indigenous peoples to their territories.

Article 14 establishes a single mining title which does not discriminate between the various mining entrepreneurs, be they indigenous communities undertaking small-scale mining activities in their territories, or transnational companies.

Chapter VII substantially increases the length of a mining concession to 30 years, with two possible situations in which the mining companies could apply for extensions. Read in conjunction to the article 228, which establishes that the percentage the mining companies pay in royalties to the Colombian state is the same for the duration of the contract (up to 90 years), prevent any control of the state over the profitability of these resources.

Under the title ‘Ethnic Groups’, Chapter XIV appears to be addressing indigenous concerns. But a reading of its articles reveals that no right is granted to indigenous communities to oppose a mining concession. This chapter was not presented to indigenous groups for consultation, infringing the provisions for consultation established by the Law 21, 1991 (ILO 169).

Chapter XVI eliminates the differences between small, medium and large-scale mining. This distinction used to allow the state to rule each such mining activity, with the tons of material moved and the amount of people involved being taken into consideration. With the elimination of this distinction, the law places the small and medium miners and the large scale mining corporations in unequal and forced competition.

Chapter XVII refers to “illegal” mining exploration and exploitation. This illegality however is defined by the lack of formality (i.e. not having a mining title) and it does not recognise the economic conditions in which some people perform mining activities. The law is thus defining these small-scale or artisanal miners’ activities as “illegal” if they do not have a mining title, which means that they can be subject to criminal prosecution. Within the current political situation of Colombia, with the problem of violent conflict in the country, this is extremely dangerous. Until this Mining Code these small-scale activities carried out by people without mining titles was not illegal.

Chapter XX addresses the “Environmental Aspects”. This is one of the most damaging and dangerous aspects of the law, considering the destructive effects of large-scale mining and the sensitivity of Colombia’s environment. Articles 207 and 208 refer to the so-called Environmental License which is the application that the mining companies present before starting the project. In this application the companies present their own environmental assessment for state approval. Once the state has approved the assessment, the license is granted for the DURATION OF THE CONCESSION, without any possibility for environmental authorities to revoke their decision even in the case of actions which breach environmental legislation. Moreover, article 210 grants mining companies the exclusive right to apply for modifications of the mining licence. Article 211 states that the state can (not will) revoke these licenses if there are REITERATIVE AND SERIOUS infringements of the mining companies’ environmental obligations (those standards which are set by, and for, the mining companies themselves). Such provisions seem to simply permit anybody to do what they please in the mining sector and with the environment. This law merely shows the state’s lack of a firm position to ensure that the environmental legislation is upheld, as well as the state’s lack of the interest in making mining companies accountable for the impact their activities cause to the environment.

Finally, the law established that ‘external environmental audits’ would be undertaken by the company Ingeniesa S.A. This function was previously exclusively performed by public bodies, but in the hands of a private company it is clear that there is a high risk that these audits will not be impartial and accurate.

Chapter XXII establishes that the companies will pay only 0.4% of the production value (royalties) to the state. The very low royalties received by the state and the lack of redistribution of these royalties to mining regions has made these regions the poorest of the country (as documented by the National Index). We wonder whether it is worth endangering the environment and violating the rights of indigenous peoples when there are clearly no benefits from these activities to be received by the population in the mining regions.

Furthermore, article 231 forbids the regional and municipal administration to tax these companies for the activities they are undertaking in their territories.

Damaging Effects

-          There has been an increment in the presence of violent actors in indigenous areas (mercenaries, paramilitary, guerrilla groups, American military groups). As a consequence there is a higher incidence of acts of human rights abuse.

-          In the areas were mining activities are performed there is lack of institutional security and communities are forced to move because of the increased danger or are forcibly removed by the violent groups. A clear case is that of the Arauca community, in whose area the Colombian and the US Government have agreed to implement the Plan Colombia. Because of this the community has been the object of abuse and serious attacks which undermine the peoples’ civil and political rights.

-          There is more illegal mining now than before because of the impossibility of small and medium scale miners to compete with multinational corporations.

-          Applications for mining concessions have increased in an alarming way. There are even abusive applications, such as some companies applying for 12 MILLION HECTARES of land for exploration and exploitation.

-          The mining companies are pressuring the indigenous communities to choose between only two alternatives: exploit the resources themselves or give them away to be exploited.

-          Regarding the elaboration of the legislation, there is total lack of ethics in hiring the lawyers of a multinational to prepare such an important piece of legislation as the Mining Code, which fundamentally implicates all natural resources and the environment. This is evidence that the government favours these companies and, in general, all projects funded by the World Bank. This is clearly in violation of our rights as indigenous peoples and is destroying the natural environment which is necessary to our physical and cultural survival.

-          These lawyers have manipulated the law and removed all protection for indigenous communities, as is clearly shown with the enactment of the Mining Code.

-          The conditions of negotiation with transnational companies are always disadvantageous for our country. They are the ones who impose the economic conditions that regulate them. For us as indigenous communities everything is lost: loss of our land, of our capacity to negotiation, of our culture, of our security. We remain with a damaged environment and exhausted natural resources.

-          The problem of external debt is also an important effect: This is evident in the case of the Cerrejon Mine, which should have been built using only half of the $ 3 billion which were eventually spent, resulting in the state having to recognise a fictitious debt. As a result corruption was given an impetus, with grave cultural and livelihood consequences for the Wayuu communities.

-          Transnational companies as well as the World Bank do not make provisions to compensate for the damage that their activities cause to the environment and the natural resources, particularly those activities which are not sustainable.

-          The environmental impacts are devastating: they extinguish animal and plant species, contaminate our waters, the fish die and the rivers dry. This has happened with the Pamplona River, which has been lost due of mining activities

Recommendations

In view of the deleterious effects that extractive industries have on our country and our future we present the following recommendations:

1)      The World Bank should not grant funding to transnational companies which are linked to the preparation of the mining legislation.

2)      The World Bank and the investment agencies should withdraw funding to the companies investigated for acts against human rights in our country.

3)      The customary norms, livelihoods and modes of living of indigenous communities in their territories should be respected.

4)      Total prohibition of mining exploration and exploitation in indigenous territories should be declared.

5)      Any legislation related to the use of natural resources should be prepared with the real and meaningful participation of the indigenous communities and any recommendations should be reflected in the text of the legislation.

This is our contribution which we hope will be useful in any way to avoid new outrages and to ensure that we are truly consulted regarding our needs, our knowledge and our way of life.