Considering the essentiality of the mineral resources for the industrial development and for technological advances, there is a large global demand for investments in the mining sector. In the exercise of this activity, it is extremely important that investors identify possible restrictions to the use of the soil and subsoil, evaluating, together, the regulatory, environmental and real estate characteristics of the areas of interest.
As it has been widely disclosed by the media, there is intent to approve, in Brazil, a new Regulatory Framework of Mining. In June 2013, Bill No. 5.807/2013 was presented by the Executive Branch to replace the current legislation (Decree - Law No. 227/1967). With a new Mining Code, the Government seems to intend to increase governmental revenues from this industry (e.g. by increasing the tax basis and tax rates of royalties) and its intervention in the development policies of the mining sector, with the creation of the National Council on Mining Policy and the determination of strategic areas.
In order to regulate the use and occupation of the properties object of mining exploitation, the current Code provides for the possibility of institution of right of way (without the need of prior negotiation with the owner or tenant of the area), for survey or mining purposes, not only in regard to the areas where the mine is located but also in the boundary areas.
The Bill, on the other hand, provides for the responsibility of the Granting Authority to declare, by decree, the public utility for purposes of expropriation or the institution of administrative right of way – actual right of public nature – of the areas necessary to the mining activity, in case of failure of the negotiation between the mining company and the owner of the soil.
Heed should be paid to the possibility of expropriation due to declaration of public utility, this hypothesis is not provided for in the current model. The expropriation should be conducted under agreement or in court within five years from the enactment of the respective decree.
Also, it is necessary, prior to the declaration of public utility or institution of right of way, to attempt to negotiate with the owner of the area, which may lead us to its acquisition by the mining company. In case of rural property, the special legislation about the restrictions to the acquisition of rural properties by Brazilian companies with foreign control should be carefully analyzed.
The Bill also proposes, as one of its guidelines, the sustainable development, with the recovery of environmental damages caused by the mining activity. Accordingly, the stages of closing of the mine and discontinuance of activities should include the recovery of the environmental conditions of the affected areas, according to technical solutions required by the proper environmental agencies for the licensing.
Even if such measure is usually required by such agency, according to the legislation in force, heed should be paid to the fact that the obligation of recovery of environmental damages is not expressly included in the current model.
The actions of environmental recovery may involve a series of aspects, such as recovery of the suppressed vegetation, protection of water springs, water courses and respective areas of permanent preservation, proper disposal of rejects and adoption of compensatory measures focused on the suppression of underground cavities.
We point out that the Bill is still being handled in the Congress, with no outlook of approval.