BRAZIL Law and Practice Contributed by: Carlos Vilhena, Roberta Bilotti Demange and Marina Bertucci Ferreira, Pinheiro Neto Advogados
The most relevant legal text on mining in Brazil is the Mining Code (Decree-law No 227/1967), which is supplemented by the regulations of the Mining Code (Decree No 9406/2018). The Min - ing Code and its regulations define and classify deposits and mines; set requirements and condi - tions for obtaining authorisations, concessions, licences and permits; and provide for the rights and duties of holders of exploration licences and mining concessions. There are additional pieces of legislation and regulatory provisions governing specific matters related to the mining sector, such as the ANM, mining royalties and tailings dams. 1.3 Ownership of Mineral Resources The Federal Constitution provides that the fed - eral government owns the deposits and mineral resources (soil and subsoil), even where the land is regarded as private property. Any person who is intending to explore and/or extract minerals (mine) in Brazil must apply to the ANM for the corresponding authorisation or concession, even if the applicant owns the land where the exploration or mining will take place. It is common to have mining companies per - forming exploration and sometimes on mining land belonging to third parties. Brazilian legisla - tion does not require the company to acquire the property of those lands. If the titleholder is not the owner of the land related to its operations, it shall enter into land access/use agreements (or mining servitudes) with the respective landown - er/occupier, in order to have access to, and use, the areas that are required for its operations. The landowner/occupier is entitled to be paid a rent for the occupation of the area and a compensation for damages. If any minerals are extracted from private lands that are not owned
by the titleholder, the landowner is entitled to a royalty equal to 50% of the statutory royalty (CFEM). In the event that it is not possible to reach an agreement with the landowner/occupier, the Mining Code provides for a specific judicial court to allow access to the area, guaranteeing pay - ment of compensation to the property owner/ occupier. 1.4 Role of the State in Mining Law and Regulations As a grantor-regulator, the federal government oversees the exercise of exploration and min - ing activities under a system of concessions, licences, permits and authorisations in which it has the authority to grant mining titles to private companies. Mineral exploration and/or mining activities can only be conducted by Brazilian nationals or com - panies incorporated under Brazilian laws, with registered offices and management in the coun - try. There is no requirement for mandatory joint venture or any sort of state participation. 1.5 Nature of Mineral Rights The Federal Constitution provides that explora - tion and mining can be performed based on an authorisation or concession granted by the fed - eral government. In that aspect, the mineral right has a constitutional basis, although the terms for granting and using an exploration licence or a mining concession will be provided by the law (ie, the Mining Code). Mineral rights are not considered a property right, but rather a right granted by the state based on administrative law.
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