In 17 departments of the country 129 sentences affecting the extractive sector have been proferred.
In addition to the Constitutional Court rulings that have in check the country’s mining operation, the Land Restitution Act (Ley1448/2011), is the coup that ended up sending this activity against the ropes.
On account of the aforementioned standard, according to data from the firm Norton Rose Fulbright, in 17 departments of the country have been 2,398 sentences, of which 129 affect the extractive sector.
But what most draws the attention of these judicial failures (129) dictated by judges of restitution of land, as indicated by the Colombian Association of Mining (ACM), is that 69 have ended with the cancellation or suspension of the contract of concession of the mining title.
“Restitution judges take judicial measures without differentiating between land and subsoil conflicts,” said Santiago Ángel Urdinola, President of the ACM, emphasizing that these processes have a unique instance, “and what the judge says is supreme truth.”
Angel Urdinola pointed out that “in the subject of the soil there is a shared servitude, but a third appears claiming the ground, here it should be negotiated with this third to maintain the operation, but in return, the judges cancel the title until the situation is defined”.
And this spokesman insists that throughout the process, in the case of mining companies, “they must always be proving that they acted in good faith, because the judges are not presuming it in advance.”
Revoking administrative acts
These reasons of the President of the ACM are in the same line of those expressed by Hernán Rodríguez, partner of the firm Norton Rose Fulbright who indicated that “the judges of restitution of land do not understand the issue of the mining operation and the difference between the ground and the subsoil”.
This analyst explained that when a claimant makes the application to the land Restitution judge, the first step is to verify who is occupying the land; and “If there is a mining title there with years of operation, the judge immediately links it to the process, this does not make sense as these diligences should be centered on the ground and not the subsoil.”
Rodriguez added that without a presumption of good faith and without respecting the contract with the state, “the judges enter ahead by issuing the precautionary measure by suspending, or even cancelling the title, because the aforementioned law in article 91 states that the content of the failures may revoke administrative acts.
“They even declare nullity or suspension, even if the restitution property is only partially superimposed in the area of that contract,” said Norton Rose Fulbright partner.
In the face of the failures of land restitution judges that affect mining operations, in processes that develop faster than ordinary justice, the National Mining Agency (ANM) has sought to articulate its policies with the Land Restitution Unit (URT).
“We signed a cooperation agreement between the two entities,” which allows preventively that the court knew the activity of the zone, the rights on subsoil granted and its state, and all that information that must be known the judges of restitution of land, “explained Silvana Habib Daza, president of the ANM.
He added that this institutional articulation is a principle to be able to focus the policies and allow the judge to ponder the implementation of the measures for the implementation of each of them without violating rights, but he clarified that “mining must not prevail over land restitution, nor can it become a mechanism that denies the exercise of rights that the State has legally delivered through concession.”
Another alarm in the sector
Land-restitution processes affecting extractive activity also have discomfort and concern to mining companies operating in the country.
“It has been difficult to explain to the judges that the subsoil is not the property of the company, and that it is of the nation,” said Felipe Márquez Robledo, president of AngloGold Ashanti, who pointed out that “in the processes so it is demonstrated that although the title is superimposed, and not of any ownership on the ground, proceed to the ruling as if the subsoil also belonged to the claimant.”
For its part, the mining company Drummond indicated that “it does not cease to generate uncertainty and insecurity that part of these pregods are now immersed in processes of restitution and were acquired at a table of public and institutional negotiation that was formed by order of the national government,” with the accompaniment and permanent oversight of the Attorney General’s office as guarantor of the rights of the vendors. “
The multinational pointed out that it should be a balance between the right to restitution by the victims, and the right of property owners who were acquired by law.
Originally posted in Portafolio, written by Alfonso López Suárez
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