Articles 86 and 136 of the Environmental Regulation for Mining Activities were deemed unconstitutional by the Constitutional Court

July 16th, 2021

In judgment No. 32-17-IN/21, the Constitutional Court (hereafter “the Court”) declared the unconstitutionality of articles 86 (modification of watercourses) and 136 (watercourses for the artisanal mining regime) of the Environmental Regulations for Mining Activities (hereafter “RAAM”).

On June 30, 2017, a group of citizens filed a public action of unconstitutionality (hereinafter API) against articles 86 and 136 of the RAAM; arguing that these articles are contrary to articles 132 and 133 of the Constitution of the Republic (hereinafter CR) referring to the principle of matters reserved to law.

The constitutional principles and rights that have been considered as violated are:

 • Precautionary principle (Art. 73 and 313 CR)

• Rights of nature (Art. 71 and 72 CR) • Protection of ecological flows (Art. 411 CR)

• Principle of constitutional hierarchy (Art. 424 and 425 CR)

 The Court focuses its analysis and constitutional argumentation on corroborating whether articles 86 and 136 of the RAAM have violated the principle of matters reserved to law, mainly because the topic of those articles have not been regulated in an organic law, but a regulation which is not issued by the National Assembly.

The Organic Law on Water Resources indicates that ecological flow has a fundamental impact not only on the state of the river but also on the ecosystem in general, since other natural cycles depend on the natural cycles of the river and the fluctuations of the flow. In addition, the Court concludes that the diversion of the natural course of a water body could lead to a possible restriction of rights recognized in the Constitution.

The Court concludes that the fact that articles 86 and 136 of the RAAM provide for the possibility of a modification of the natural course of a water body for a mining project or for artisanal mining activity is contrary to the principle of matters reserved to law, since it directly affects constitutional rights, which requires that this possibility be enshrined in an organic law.

The Court has indicated that the effects of the judgment are as follows:

Article 95 of the Organic Law on Jurisdictional Guarantees and Constitutional Control establishes that “[t]he judgments issued in the exercise of abstract control of constitutionality have res judicata effects and produce general effects in the future.” Accordingly, the Agency clarifies that the declaration of unconstitutionality contained in this judgment, which has the effect of expelling the contested rules from the legal system, does not affect the legal situations that would have already been consolidated in application of those rules.

Therefore, the authorizations that would have been granted under articles 86 and 136 of the RAAM prior to the issuance of this constitutional ruling do not lose validity.

 Finally, the judgment has a concurring vote and a dissenting vote.



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