Validity of administrative acts
Validity of administrative acts issued by the mines secretariat of the Antioquia government after the termination of the delegation.
Now that, since 2024, the decision was made not to renew the delegation of mining powers to the Government of Antioquia and that the National Mining Agency is reassuming knowledge of the processes that are in progress, it is worth asking what happens to the administrative acts issued by the Mines Secretariat of the Government of Antioquia and the processes that were initiated and processed by that entity, as well as others that received competence in a similar way.
To address this issue, we can make the following considerations: One of the fundamental genes, strongly inscribed in the DNA of the Rule of Law, is legal certainty. Legal certainty implies that the decisions of the State guarantee the stability of legal relations and the application of justice, so that people know and expect what the probable reactions of the authorities are and the consequences of certain behaviors.
Within legal certainty we can find institutions such as the Rule of Law, from which the Principle of Legality is derived, according to which the authorities are bound by the rules and these rules remain in force until the procedure to repeal them is carried out or they are replaced by others that are fully in force. There is also, specifically in Administrative Law, the concept of Legitimate Expectation, which is inspired by Private Law, from the Doctrine of Estoppel.
La Corte Constitucional ha definido la Confianza Legítima en la sentencia T-453 de 2018, de la siguiente manera:
The principle of legitimate expectation thus functions as a limit to the activities of the authorities, which aims to address any untimely modifications to their traditional way of proceeding, a situation that may also jeopardize the principle of legal certainty. It is therefore an ethical ideal that is legally enforceable. Therefore, the trust that citizens have in the stability expected from state entities must be respected and protected by the constitutional judge.
For its part, in a ruling by the Administrative Litigation Chamber of the Council of State, Subsection A, with magistrate William Hernández Gómez as rapporteur, 11001-03-15-000-2016-00402-00 of 2016, in the context of a tutela action, the Corporation stated the following:
In accordance with this principle [Legitimate Expectation], the State is required to respect previously established rules and regulations, so that individuals have certainty regarding the procedures they must follow when dealing with the administration. The principle of legitimate expectation requires a certain stability or conviction regarding the decisions of the administration, since the citizen has the right to act within the framework of stable and predictable rules. However, this does not imply the immutability or inviolability of the legal relations between individuals and the administration, since, in any case, the administration can justifiably change the decisions or regulations it adopts(…)
As can be seen, it is not impossible, nor forbidden, for the public administration to change the regulation on a certain matter or modify a particular legal situation; however, this must be done based on legal requirements, so as not to affect this principle of Legitimate Expectation. Therefore, it is pertinent to verify, within the current administrative order in Colombia, in order to satisfy the Principle of Legality, how the effectiveness of the administrative act declines.
To illustrate the above, it is appropriate to refer to Article 91 of Law 1437 of 2011, which indicates the reasons why the administrative act loses enforceability. These are:
- When their effects are provisionally suspended by the contentious-administrative jurisdiction.
- When its factual or legal foundations disappear.
- When after five (5) years of being in force, the authority has not carried out the acts that correspond to it to execute them.
- When the resolutory condition to which the act is subject is met.
- When they expire.
Note that, by virtue of the characteristics of the Rule of Law and the Principle of Legality, administrative acts also generate obligations for the authorities, as well as burdens and procedures in case they want to revoke or modify them.
Therefore, the administration must seek to modify the legal situation in accordance with its normal procedures for such purposes in relation to the act, or demonstrate that one of the assumptions mentioned in the canon of the Administrative Law previously cited occurred, and cannot simply ignore a certain administrative act.
The aforementioned burden on the authorities to initiate processes to modify legal relationships when there are reasons to do so, since they must also be guided by the principles of Due Process and the Principle of Legality, or to demonstrate the loss of enforceability of the administrative act, within that protection of legal certainty is framed in the presumption of validity of administrative acts, which derives from a legal provision, this time contained in article 88 of Law 1437 of 2011, which establishes:
Administrative acts are presumed legal until they have been annulled by the Administrative Litigation Jurisdiction. When they are suspended, they cannot be executed until a final decision is made on their legality or the precautionary measure is lifted.
From what has been highlighted so far, we can appreciate that when a legal situation arises, such as the one resulting from the approval of an administrative act within a procedure carried out under the jurisdiction of the Mining Secretariat of the Government of Antioquia, and this procedure has not been completed, the administrative acts issued in said process cannot be disregarded except through the process required by law, by the National Mining Agency. This is because, although the Secretariat does not have, from the termination of the delegation, the powers to carry out new procedures, the administrative acts carried out at that time were done with the satisfaction of the organic validity that allowed said assignment of functions and are acts subject to the presumption of validity that can only be overcome by assuming the burden of demonstrating the legal grounds for loss of enforceability, the need to challenge them in the contentious jurisdiction, or to repeal or modify them with the legal procedures established for this purpose. The previous burden, since the Law does not establish that they lose validity, due to the loss of powers of the one who issued said rule.
Therefore, we can conclude that the acts issued by the Secretariat of Mines of the Government of Antioquia are fully valid and that the companies or actors of the mining sector have the right to demand from the National Mining Agency respect for the rights acquired by virtue of said acts, which must be respected by the ANM.
At Lucas Velásquez y Asociados S.A.S BIC, we believe in legal certainty and support companies in the sector in regulatory compliance and transition.
