BRAZIL Law and Practice Contributed by: Carlos Vilhena, Roberta Bilotti Demange and Marina Bertucci Ferreira, Pinheiro Neto Advogados
Moreover, when exploration and mining works are performed within environmental conserva - tion units of sustainable use (environmental pro - tection areas created by law or decree where economic activities may be coupled with conser - vation activities), Brazilian environmental legisla - tion determines that special requirements may apply on a case-by-case basis. The conserva - tion 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 environ - mental impact assessment and its report may be held, so that communities can obtain further details of a project and voice their concerns. Although the industry generally acknowledges that mining companies should keep communi - ties informed prior to, during and after the min - ing works regarding the developments that may affect them, there is no such requirement in Brazilian 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 mandatory regardless of the lack of regu - lations. In some cases, lawsuits have been filed to seek a court decision to force the mining com - pany to perform proper consultation.
In those cases where the consultation has been carried out, it was performed by the investor and not by the Brazilian government. 2.5 Impact of Specially Protected Communities on Mining Projects The Brazilian Constitution establishes that indig - enous peoples hold the original right and have the exclusive use of the lands they have tradi - tionally occupied. Exploration and mining activ - ities inside indigenous areas are permitted by the Federal Constitution upon approval by the National Congress. However, due to the lack of specific regulation for this matter, the National Congress has yet to authorise any exploration or mining activities within indigenous areas. In addition, the Quilombola peoples (descend - ants of former slaves who organised themselves in communities) are another example of a tradi - tional community legally protected in Brazil. The Quilombolas 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. Further - more, 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 payment of compensation for the use of such land. 2.6 Community Development Agreement for Mining Projects Brazilian laws do not provide for the require - ment of the company entering into community development agreements. Nonetheless, compa - nies usually enter into communities with local authorities to support some social initiatives, as part of their corporate social responsibility.
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