Regalías en el proceso de formalización de la mineria informal
Fecha
2012-02-12Registro en:
2020.CondiaPerezSandroNestor.Universidad santo tomás.tunja
reponame:Repositorio Institucional Universidad Santo Tomás
instname:Universidad Santo Tomás
Autor
Condia Perez, Sandro Néstor
Institución
Resumen
The Political Constitution of 1991 in its article 332 and Law 685 of 2001 in its article 5 indicate that the soil and subsoil are property of the Colombian state, for which the exploitation of the minerals found there must be exercised through a state mining concession contract between the state and a private individual, by means of which the latter may carry out, at its own risk and expense, the studies, works and exploration works for state-owned minerals that may be found within a specific zone ( Article 45 of Law 685 of 2001), without regard to whether the property, possession or possession of the land is owned by public entities, individuals or communities or groups.
In this understanding, the concession contract will initially have the same essential characteristics of the state contract, that is, to obey the pillar principles enshrined in the General Contracting Statute and to be signed as an act with solemnity of this class of agreements. However, when studying this type contract, its own particularities are put forward, such as the prohibition of the inclusion of exorbitant clauses in the agreement, with the exception of expiration (Article 51 of Law 685 of 2001), and that to start In the contractual process, it is necessary that the interested party make the proposal in accordance with the requirements imposed by law, without a public call, as is done as a general rule for other contracts (Article 16 of Law 685 of 2001).
In addition to these special characteristics, the regulation on mining in Colombia has generated public policies aimed at the formalization of de facto mining, or also called traditional mining, seeking that those who exercise it outside the mining regulations, adhere to these , and also observe others in labor, environmental and tax matters, among others, and in turn the State can capture the economic compensation that arises from the exploitation of the soil and subsoil.
Among these formalization strategies, there are those determined in Decree 933 of May 9, 2013 "By which provisions on the formalization of traditional mining are issued and definitions of the Mining Glossary are modified", consisting of those who are developing mining in a traditional way and without any type of legality, submit a formalization request and from there, the norm requires the proponent to comply with the environmental requirements established by the Ministry of Environment and Sustainable Development and with the payment of the respective royalties, without the signing of the contract that consolidates the considerations for the parties, including the payment of royalties.
From an analytical-descriptive methodology, a legal problem is configured as follows: since royalties are an economic consideration within the public concession contract, what is the basis of the law to demand the payment of said emoluments when the contract has not been signed, such as In the case of informal mining, in which the person interested in the formalization only makes the request, according to Law 1382 of 2010 declared unenforceable, but regulated by Decree 933 of 2013 in force.
Thus, and taking into account that this norm was not analyzed at the constitutional level by the judicial body in charge for this purpose, and that there are no precedents in the face of the questioning that is presented today, the research question is configured in What could be the arguments for and against Decree 933 of 2013 to demand the payment of royalties in the process of formalizing informal mining when no contract has yet been signed?
Within the analytical-descriptive article we have a general objective like this, Determine the arguments in favor and against Decree 933 of 2013, which base the demand for the consideration of the payment of royalties in favor of the Colombian State in the process of mining formalization and without even having an administrative contract for a mining concession in accordance with the law and jurisprudence.
For this purpose, precise specific objectives will be developed, the first one in charge of studying the characteristics of the mining concession contract compared to other state contracts, taking into account traditional mining and the formalization process within the Colombian legal system; and the second Interpret the jurisprudence of the Constitutional Court and the Council of State that justify the collection of contractual considerations without the signing of a written state contract.
Within the specific objectives, two chapters that make up the article are broken down, in order, I. The mining concession contract compared to other state contracts, taking into account traditional mining and the formalization process within the legal system.