Colombia - Market Insights

Overview of Colombia’s current mining regime

Colombia’s Mining Code and its complementary legislation contain a simple but sufficient regime for the development of mining, which recognizes and promotes the protection of the environment and renewable natural resources as well as the rights of ethnic communities.

In turn, Colombia’s environmental legislation and the jurisprudence of the Constitutional Court are extremely comprehensive and entail a wide and robust range of environmentally restricted or protected areas for mining and a severe environmental sanctioning regime.

The rights of ethnic communities recognized by the International Labor Organization Convention 169 of 1989, which forms part of the constitutional block, have been enhanced and duly protected by the Constitutional Court.

Nonetheless, the above regime, which enables the development of mining while guaranteeing the protection of the environment and of ethnic communities’ rights, has been consistently questioned by certain stakeholders, including politicians, in whose view in-depth reforms are required, either to strengthen it or to reduce the scope of the restrictions and prohibitions to mining.

Proposed modifications to the current mining regime

A bill that is being considered by the Colombian Congress aims to substantially modify the structure of the current mining regime, particularly regarding the scope of state intervention in the mining industry, including through a state-owned enterprise, which would have preferential rights for the development of mining over those of private companies and individuals, and which also prioritizes small-scale mining.

Additionally, the programs of the candidates for the recent 2026 presidential elections, depending on their political wing, ranged from applying additional restrictions and prohibitions to mining to undertaking a substantial deregulation of the protection of environmental and ethnic communities’ rights. These opposing positions will most likely continue during the next four years with a right-wing governing party and an opposing political party being led by the left-wing candidate.

Right-wing programs

The programs of the right-wing candidate who was elected as the 2026–2030 President of Colombia are pro-mining and propose implementing measures which guarantee security, legal certainty, competitiveness, employment, fiscal stability, and foreign investment, eliminating bureaucratic obstacles across agencies, by implementing a clear distinction between legal and criminal mining, differentiated regulation depending on the scale of the project, and fighting against illegal mining while supporting formalization of small-scale miners. Environmental conservation is framed as compatible with growth, proposing restoration activities, halting deforestation, and strengthening national natural parks. Prior consultation is reframed as a partnership model with ethnic communities that aims to guarantee regional investment.

Left-wing program

The program of the left-wing candidate, whose party will be the principal opposing political party from 2026–2030, promotes the most environmentally protective position, proposes a new Mining Code, and proposes that mining should be excluded from moorlands and ecological sanctuaries. The program rejects expediting environmental licensing processes and opposes granting licenses to multinationals without oversight. It demands rigorous environmental controls and proposes a national ecological restoration plan; it defends robust prior consultation of ethnic communities as a fundamental right; and it proposes universal access to potable water as a fundamental human right.

Centrist program

The centrist candidate’s program, which was ideologically closer to the program of the right-wing elected candidate, proposed a balance between environmental protection and productive development, asserting that the current model is unsustainable due to fragmented legislation, technical centralism, and weak articulation. It proposes a fundamental reform of environmental licensing and territorial ordering to ensure compatibility between environmental protection and mining. Water, ecosystems, and community participation are the basis of its environmental management proposal. Communities are envisioned as partners in mining projects.

Authors’ considerations

In the authors’ opinion, most of the above proposals regarding the reinforcement of environmental protection and the protection of the rights of ethnic and local communities are already implemented under the current legal regime and no further laws or modifications are required.

For instance:

• The Mining Code establishes a comprehensive regime, including environmental obligations, areas excluded or restricted for mining purposes, ethnic communities’ rights, and formalization of artisanal and small-scale mining.
• Mining activities — including exploration — cannot be undertaken in areas that have been declared and delimited as zones for the protection and development of renewable natural resources or the environment, which include national and regional parks and sensitive ecosystems, such as moorlands and wetlands.
• In certain forest reserves, mining is only permitted if the environmental authority authorizes the area to be carved out for mining activities, which is a thorough procedure that quite frequently results in the carve-out request being rejected.
• No mining activity may be developed in temporary environmental reserves, which are based on the precautionary principle and are delimited without prior environmental studies.
• The use of any renewable natural resources must be authorized through different types of permits, such as water concessions, riverbed occupation permits, forestry permits, and effluent discharge permits.
• The construction, assembly, and exploitation of a mining project must be authorized through an environmental license, after completing a very complex and rigorous process.
• Certain zones have been excluded based on social and agricultural zoning grounds, such as:
  • Zones for food protection and production, which are incompatible with mining activities and are compulsory for municipal and territorial zoning plans.
  • Peasants’ territories, which are focused on agricultural development and may result in definitive areas for food protection and production.

Regarding ethnic communities’ rights and protection:

• Prior consultation, recognized as a fundamental constitutional right, is required if a mining project directly affects ethnic communities, without regard to the scale of the impact, and should be completed before any mining activities are carried out (including prospection and exploration), as it is a requirement for an environmental license to be granted.
• Prior consultation is mandatory when a project is developed within ethnic communities’ territories, when there are settlements of ethnic communities within the area of influence of a mining project, if ethnic communities have certain traditions, customs, or subsistence activities which they carry out within that area or that may be impacted by the mining project, or if there is transit of ethnic communities through said area.
• Although, in principle, prior consultation does not involve a veto right for ethnic communities, prior, free, and informed consent of ethnic communities is required if the project involves the relocation or displacement of ethnic communities, storing or dumping toxic waste on ethnic communities’ territories, or causes a high social, cultural, or environmental impact that may jeopardize the existence of ethnic communities.
• If the presence of ethnic communities is detected at any stage (even after an environmental license has been granted) within or around the area of influence of the project and if a direct impact on such communities is proven, prior consultation must be undertaken.

Based on the above considerations, in the authors’ view, if properly enforced, the Mining Code, as complemented by the environmental regime and other legal provisions and the Constitutional Court’s jurisprudence regarding the protection of the environment and of ethnic communities, already addresses the core concerns raised by the presidential candidates, particularly those raised by the left-wing candidate whose party shall be the principal opposing political party. Adding more laws and regulations to an already complex system may result in normative inflation, which may paradoxically weaken compliance with the regime due to the framework being unintelligible to the regulated industry and unenforceable by the authorities.

Regarding the right-wing government deregulation proposal, in the authors’ opinion, it is not a realistic approach, as it would likely collide with fundamental principles established in the Constitution and further developed by the Constitutional Court, mainly the principle of non-regression in environmental protection matters, and which, if implemented, would probably result in laws that are subsequently declared unconstitutional.

However, the development of mining activities in Colombia is highly hindered, mainly due to the following reasons:

• The National Mining Agency’s deficient capacity to process titles, monitor compliance, enforce exclusion zones and, in general, the state’s inability to enforce exclusions in practice, especially against illegal mining.
• Institutional failure, particularly due to the absence of adequate articulation between mining and environmental authorities concerning where mining may or not be undertaken, extremely extensive periods for obtaining an environmental license, and dysfunctions in the procedural implementation of prior consultation.
• Public servants who lack technical skills and institutional understaffing.
• Insufficient budgets for regulatory agencies.
• Constant changes in laws and regulations, as well as dispersed regulations, which generate legal uncertainty and disputes affecting and discouraging foreign and local investment.

Consequently, in the authors’ opinion, the solution does not seem to be new legislation or further reforms, but rather effective interinstitutional coordination, including joint processing platforms.

In this regard, although the National Mining Agency implemented an online management system which supposedly integrated mining and environmental regulations and information, and would promote environmental protection, legality, and transparency, there are certain environmentally protected areas that have not been integrated into this system, thereby resulting in mining titles being granted in areas where the environmental regime prohibits or restricts mining.

Likewise, environmental authorities have also failed to implement an integrated platform that thoroughly and accurately reflects the different types and layers of environmentally protected areas where mining is prohibited or restricted.

This lack of interinstitutional coordination and implementation seriously undermines the legal certainty and transparency required for promoting the mining industry, ensuring the protection of the environment and of the rights of ethnic communities.

Hence, the authors’ main proposal is that it is urgent and long overdue to implement a unified, comprehensive, and reliable system and online platform, on which authorities, communities, and mining developers can rely on the due application of the current legal regime and that guarantees the protection of their rights.