BRAZIL Law and Practice Contributed by: Carlos Vilhena, Roberta Bilotti Demange and Marina Bertucci Ferreira, Pinheiro Neto Advogados
1.6 Granting of Mineral Rights Mineral rights are unilateral administrative acts, granted by the federal government. The ANM is the federal agency entitled to manage, regulate and supervise mining activities in Brazil, along with the Ministry of Mines and Energy (MME). By definition, exploration rights are granted by the ANM and, in most of the cases, mining conces - sions are granted by the MME (but concessions for the exploitation of minerals employed in the construction industry without industrialisation are issued by the ANM). States do not have the authority to grant mineral rights. 1.7 Mining: Security of Tenure In general, there are two main types of mineral rights in Brazil: exploration licences and mining concessions. Exploration licences are granted on a first-come, first-served basis (also known as “priority”), which determines that, as long as the claimed area is not covered by any other mineral rights in force and all legal requirements have been met, the first individual to apply for a specific area will have the right to obtain the corresponding mineral right. Exploration licenc - es are granted for a period of up to four years, with renewal allowed for an equal period at the discretion of the ANM. If the exploration works are deemed successful with the identification of a resource, the titlehold - er shall submit to the ANM an exploration report. Upon the analysis and approval of the explora - tion report by the ANM, the titleholder shall have the exclusive right to apply for the mining con - cession within a one-year term counted as from the publication of the ANM approval. The application for the mining concession shall include detailed geological and geophysical
information of the related area, as well as a mine development plan and a closure plan. The min - ing concession shall also be granted once, in addition to the ANM reviewing and approving all technical materials, the titleholder presents the corresponding environmental installation licence of the project. In short, Brazilian legislation provides enough certainty that the holder of the exploration rights, upon being successful in exploration, will have exclusive rights to apply for the correspond - ing 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 conces - sion 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 govern - ment, should prevail over mining. In addition, if the environmental licence for the installation of the facilities is not obtained, the mining conces - sion 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 peo - ple’s right to an ecologically balanced environ - ment. 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 author - ity is in charge of licensing a mining project, as opposed to the federal environmental authority.
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