Sentence C-035/16 of the Constitutional Court of Colombia (Alberto Castilla et al v. Colombia)
Citizens presented constitutional claims against several provisions of the laws that approved the 2010-2014 National Development Plan (Law 1450 of 2011) and the 2014-2018 National Development Plan (Law 1753 of 2015).
The Constitutional Court nullified a portion of Law 1753 that would have allowed existing license holders to extract minerals, oil, and gas in páramos (high-elevation wetlands), notwithstanding a general moratorium on mining activities in these ecologically important areas. The páramos provide vital environmental services in regulating the hydrological cycle and sequestering carbon; therefore, according to the Court, the government of Colombia must protect páramos as part of its duty to fulfill the constitutional right to a healthy environment and to water. The Court explained:“[E]nvironmental protection prevails before economic rights acquired by private persons by means of environmental permits and concession contracts when it is proven that the activity produces harm, or when there is reason to apply the precautionary principle to avoid harm to non-renewable natural resources or to human health.” Para. 128.
In addition, the Constitutional Court found provisions in Law 1753 to be unconstitutional because they deprived displaced victims of armed conflict of their right to seek restitution of their land. The land had been appropriated for “projects of national strategic interest” (designated by the Spanish acronym “PINE”) such as resource extraction and infrastructure development. The Court found “a criterion of convenience, such as the case of the development of projects of national strategic interest, whose nature is purely economic, can not triumph over the protection of fundamental rights consecrated in benefit of subjects of special constitutional protection, as is the case of victims of armed conflict.” Para. 73. The Court went on to strike down other parts of Law 1753 authorizing the government of Colombia to unilaterally expropriate land for projects of national strategic interest because the scope of said authority would impede rights to access to justice, to defense and to due process, and violates the constitutional principle of administrative efficiency.
The Constitutional Court reviewed provisions in Law 1450 and Law 1753 that create and expand Strategic Mining Reserve Areas. The Court determined that the designation of Strategic Mining Reserve Areas does not commit these areas to be exclusively or necessarily used for mining and, therefore, does not infringe on constitutional mandates to protect agricultural workers, agricultural production, and the environment. As for the plaintiffs’ allegations that those provisions creating and expanding Strategic Mining Reserve Areas violate constitutional principles of territorial autonomy, concurrent powers, and coordination, the Court determined that those provisions are compatible with such principles as long as the definition and concession of said areas are compatible with territorial planning instruments and local governments’ constitutional authority to regulate land use, and as long as local governments are guaranteed a reasonable degree of participation in the selection and concession of said areas. The Court also declared constitutional the provision (section 2 of Art. 173 of Law 1753) that establishes the procedure for delimiting páramos, with the condition that if the Ministry of Environment and Sustainable Development diverges from the reference area established by the Alexander von Humboldt Institute for delimitation of páramos, it must explicitly base its decision upon a scientific criterion that provides a greater degree of protection.