In my previous column, I spoke about the ownership of the subsoil, one factor that should be taken into account to determine whether a referendum should be used by a municipality to decide whether an extraction project should take place in their area or not. 

Considering the audience that took place in the Constitutional Court on April 12, 2018 to define the position of the court regarding the right granted to municipalities to prohibit mining in the ruling T-445 from 2016, the court stated that, “…territorial entities possess the competence to regulate the use of their land and guarantee environmental protection, even if exercising said prerogative ends up prohibiting mining activity.”

I consider it worthwhile to delve into this controversial matter. One of the legacies from the authors of the Constitution from 1991, with ambitious goals and diverse visions of our great country, was guaranteeing citizens’ participation in all decisions that affect our lives. This right was established from the Preamble and reiterated as a key element of what would become the rule of law, from the first articles of our political charter.

Thanks to the Constitution of 1991, as Colombians, we have the right to not only elect and be elected, but also to actively participate in issues related to the economy, politics, government and culture of our nation. It is from precisely this framework of participation that the aforementioned idea of the referendum came from. It is a way to insure public participation, under which “… the leaders and mayors, according to the case, can call for a referendum to decide on issues of responsibility by the respective department or municipality.”

Upon reading this definition of a referendum, it is clear that this is a mechanism for citizen participation granted by our Constitution. However, as is evident in the law, from my point of view, it is also true that the creators of our Constitution set a clear limit about the responsibility given to the respective department or municipality. In other words, the departments or municipalities are only able to decide, according to this law, on matters that are of their sole responsibility.

This means that no one doubts the capability of the municipalities to decide about their land. Nor is there co-ownership of the subsoil between the Federal government and the territories. Decisions about carrying out an extraction project that involve both the land and the subsoil should not be the sole responsibility of the municipalities. The territorial entities that make decisions regarding riches in the subsoil, without taking into account the nation, are overstepping their breadth of responsibility. 

Allowing municipalities to unilaterally decide on whether an extraction project that is important to the nation should be undertaken, without the intervention of the government, is the equivalent of taking away the responsibility of the government to decide on the economic future of Colombia. A decision of this scope would be made not based on serious technical, social, environmental, or economic criterion, but instead on private interests that are not always aligned with the public interest.
Author: Ángela María Salazar