BRAZIL Law and Practice Contributed by: Roberta Bilotti Demange and Marina Bertucci Ferreira, Pinheiro Neto Advogados
successful in exploration, will have exclusive rights to apply for the corresponding mining concession. The ability to mine is provided for in legislation, but there are other circumstances that may affect the exercise of such rights. An application for a mining concession can be denied if it is deemed harmful to the public good or if it adversely affects other interests that, in the view of the federal government, should prevail over mining. In addition, if the environmental licence for the installation of the facilities is not obtained, the mining concession will not be granted. 2. Impact of Environmental Protection and Community Relations on Mining Projects 2.1 Environmental Protection and Licensing of Mining Projects The Federal Constitution establishes the people’s right to an ecologically balanced environment. It recognises the environment as essential for a healthy quality of life and imposes on the government and society the duty to defend and preserve the environment for present and future generations. As a general rule, the state environmental authority is in charge of licensing a mining project, as opposed to the federal environmental authority. The latter will be in charge on an exceptional basis whenever mining activities will be undertaken in, or cause an impact on, areas deemed as federal, such as national environ - mental conservation units or indigenous lands, as well as in cases where mining activities will be executed in two or more states. Environmental Licensing Environmental licensing is required for projects and activities that use environmental resources and/or are potentially polluting, such as mining. In general, there are three licensing phases: • first, the preliminary licence, which approves the project location and design; • second, the installation licence, which authorises the installation of the facilities and premises; and • third, the operation licence, which allows actual operation and mining activities.
Such licences may provide for specific conditions to be met by the company on a case-by-case basis, considering the particularities of the project and of the affected environment. Environmental Authorities Environmental authorities are usually well equipped and efficient in Brazil, but in some cases there is criticism that they hold too much discretion. Many of those authorities are constantly supervised by the Public Prosecutor’s Office to ensure that proper pro - tection of the environment is addressed. In addition, the tailings dam failure events in Mariana (2015) and Brumadinho (2019), as well as other geotechnical incidents over the past years, have led the ANM and environmental authorities to focus on stricter rules for companies, mainly regarding environmental protec - tion and safety in mining operations. 2.2 Impact of Environmentally Protected Areas on Mining In order to remove vegetation, companies must observe restrictions in connection with legal reserves and permanent preservation areas. Legislation pro - vides for the mandatory constitution of the legal reserve, which consists in the setting aside of the area of a rural property for native forest. The legal reserve usually corresponds to 20% of the area of each rural property, but in the Amazon, such area can be increased to 35% of the property in areas of cer- rado (vegetation similar to savannah) or 80% of the property in areas of forest. Permanent preservation areas (APPs) are defined as such by applicable legislation and may be covered by native vegetation, such as: • areas along rivers or watercourses; • areas around lagoons, lakes, reservoirs or springs; • areas on the top of hills, mounts, mountains or mountain ranges; • areas along slopes or part of them, with declivities greater than 45 degrees; • areas in coastal forests as dune setters or man - grove stabilisers; • areas along chapadas and • areas located at heights greater than 1,800 metres.
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