BRAZIL Law and Practice Contributed by: Roberta Bilotti Demange and Marina Bertucci Ferreira, Pinheiro Neto Advogados
2.5 Impact of Specially Protected Communities on Mining Projects
Mining activities may only be performed in APPs upon the acknowledgement that the operation would meet the public interest, and upon the fulfilment of the con - ditions imposed by regulations. Moreover, when exploration and mining works are performed within environmental conservation units of sustainable use (environmental protection areas created by law or decree where economic activities may be coupled with conservation activities), Brazil - ian environmental legislation determines that special requirements may apply on a case-by-case basis. The conservation units usually have a buffer zone around them in which economic activities can be restricted. 2.3 Impact of Community Relations on Mining Projects In the context of the environmental licensing process, public hearings to discuss the environmental impact assessment and its report may be held, so that com - munities can obtain further details of a project and voice their concerns. Although the industry generally acknowledges that mining companies should keep communities informed prior to, during and after the mining works regarding the developments that may affect them, there is no such requirement in Brazil - ian legislation. Usually, this information is provided by means of public hearings. 2.4 Prior and Informed Consultation on Mining Projects Although Brazil is a party to Convention No 169 of the International Labour Organization (the Indigenous and Tribal Peoples Convention), the Convention has not yet been transferred into regulation in Brazil. Even so, mining companies that undertake activities in lands of indigenous or tribal peoples do carry out consultation. Likewise, the Public Prosecutor’s Office holds the view that compliance with Convention No 169 is man - datory regardless of the lack of regulations. In some cases, lawsuits have been filed to seek a court deci - sion to force the mining company to perform proper consultation. In those cases where the consultation has been car - ried out, it was performed by the investor and not by the Brazilian government.
The Federal Constitution establishes that indigenous peoples hold the original right and have the exclu - sive use of the lands they have traditionally occupied. Exploration and mining activities inside indigenous areas are permitted by the Constitution upon approval by the National Congress. However, due to the lack of specific regulation for this matter, the National Con - gress has yet to authorise any exploration or mining activities within indigenous areas. In addition, the Quilombola peoples (descendants of former enslaved people who organised themselves in communities) are another example of a traditional community legally protected in Brazil. The Quilom - bolas are entitled to obtain title to the land that they occupy. Mining activities are permitted in Quilombola areas, but require specific review prior to the granting of mineral rights. Furthermore, in order to carry out their operations within those areas, mining companies must negotiate with the Quilombola representatives so that they can enter into agreements on the pay - ment of compensation for the use of such land. 2.6 Community Development Agreement for Mining Projects Brazilian laws require companies to enter into commu - nity development agreements. Nonetheless, compa - nies usually enter into agreements with local authori - ties to support some social initiatives, as part of their corporate social responsibility. 2.7 ESG Guidelines and Regulations The ESG issue has played an undeniable importance in the Brazilian corporate sector in the past few years. There has been an increasingly clear and urgent call from society and the market for companies to adopt ESG principles. However, no major ESG guidelines or regulations have been introduced in Brazil specifically for the mineral sector. From a legislative and regulatory perspective, the tendency perceived since the major tailings dam accidents, which took place in 2015 and 2019, is an increase in inspection activities, and an enactment of laws and regulations that provide for stricter rules
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