Preferential rights of black and indigenous communities
Recently, the State Council declared null and void the second paragraph of Article 2 of Resolution 396, dated June 14, 2013. This resolution modified Article 275 of the Mining Code, which initially established a thirty-day period for black and/or indigenous communities in a mining application area to validate their preferential rights. This modification made by the National Mining Agency granted an additional month during which the Mining Authority was required to send a communication to these communities, requesting them to validate their preferential right within one month from the date of the communication.
This modification was declared null and void because it exceeded the regulatory faculty of the National Mining Agency and violated the Political Constitution for two reasons:
- It modifies or amends provisions established in the Mining Code.
- It violates the principle of Article 4 of the Mining Code, according to which the provisions of the Code are enforceable on the interested parties, in line with Article 84 of the Political Constitution, which states that no authority can establish or require additional permits, licenses, or requirements.
The analysis of nullity is based on the legal issue of whether the National Mining Agency modified the Mining Code and violated the Political Constitution. To respond, the Court concludes that since the enactment of the Mining Code, the legislator established the appropriate procedure for the effectiveness of the preferential right of indigenous groups and black communities within a thirty-day term.
Once the thirty-day period to assert the preference has elapsed, it is the responsibility of the National Mining Agency to resolve the oppositions and overlaps presented, either by restricting the area to a non-overlapping zone or by archiving the request when the overlap is total. This occurs immediately after the deadline for ethnic groups to validate preferential rights through the show of interest, which abolishes the need to set an additional deadline for the communities. This is not only because it implies an extension of the prescribed legal term but also because it implies a waiver or abandonment of the preferential right, thereby disregarding the preferential rights of ethnic groups.
Author: Sara Yara I syara@lloredacamacho.com I Natural Resources – Mining