Expediente D-10864 - Decision C-035/16
Among other issues, the Constitutional Court revoked licenses for all 347 private mining companies that had previously been granted approval for mining in the páramo (moorland), an ecologically endangered region of the Colombian Andes.
Members of the leftist opposition party, the Democratic Pole and La Cumbre Agraria, (a social movement in Colombia) filed a lawsuit challenging Article 173 of the National Development Plan (NDP) in Colombia. The NDP had already banned new mining licenses, but allowed the 347 licenses granted to mine for gold or oil to remain in effect. The páramo, or moorland, is one of the most important ecosystems in Colombia, providing drinking water for much of the country by storing water in the rainy season and releasing it in the dry season. Mining disrupted and polluted the delicate ecosystem, threatening the long-term environmental health of the region, with associated impacts on the enjoyment by local communities of a range of human rights. The Constitutional Court agreed with the opposition party’s argument in the lawsuit that the environmental health of the region trumps the rights acquired by the mining companies. It nullified Article 173, and ordered an absolute and immediate ending to mining in the region. In its ruling, the Court confirmed that the Constitution requires the state to protect environmental health, and the right to water, especially in regard to human consumption.
Many of the original inhabitants of the region were farmers and members of indigenous and Afro-descendant communities, who have been forcefully displaced during the country’s 50-year-long armed conflict or have been specifically targeted by those seeking to gain access to their lands, rich in natural resources. Colombia has approximately 7 million displaced people. Some of the land was misappropriated for “Strategic Projects of National Interest” (PINES), which were initially prioritized in the NDP over the state’s obligation to return the land to its original inhabitants. In this ruling the Court also revoked Articles 50 and 51 related to the PINES program. Article 50 barred land restitution to those evicted in places where mega projects were being developed under PINES. The Court found that Article 51 violated the constitutional principle of territorial autonomy because issues around land use and planning are the domain of municipalities, not the central government, as indicated by Article 51. The Court determined that the NDP’s priorities violated the constitutional rights of the displaced victims.
The Constitutional Court declared unconstitutional (or partially unconstitutional) three articles of the NDP, ordered that all mining be halted immediately, and prohibited any future mining in the area. It also ordered land restitution in lands developed under PINES.
This case is a victory for environmental activists, advocates, and for the communities themselves. It offers a way for displaced people in Colombia to more easily reclaim their land, and protects a vitally important, endangered ecosystem against the devastation of mining. It protects the rights of people above the rights of developers and other corporate interests. Finally, it sets an important precedent confirming that environmental rights in Colombia are protected by Constitutional guarantee.