PERMITS IN MINING AND CITIZEN PARTICIPATION

• Jurisdiction: Derecho Internacional

International Mining Law and Investment in Latin America and the Caribbean
(Apr 2005)
CHAPTER 10C
PERMITS IN MINING AND CITIZEN PARTICIPATION
Jos§ Miguel Hern§ndez
Guerrero, Olivos, Novoa y Err§zuriz
Santiago, Chile

Jos´cmb;e Miguel Hern´cmb;andez is a senior associate with Guerrero, Olivos, Novoa y Err´cmb;azuriz Ltda., in Santiago, Chile. His practice area are Mining Law; Environmental Law; Electric Law; Water Law; Indigenous Law, Negotiation in Natural Resources Agreements and Real Estate and acts as counsellor of several natural resources companies carrying out activities in Chile. He received his Law Degree from the Universidad de Chile in 1997 and got an LL.M in Natural Resources and Environmental Law and Policy at the Denver University in 2001.

Mr. Hern´cmb;andez has presented papers on Chilean Mining, Environmental and Indigenous Law at numerous meetings, both in Chile and abroad. In 2004 he gave a special course in International Environmental Law organized by the Catholic University of Chile, for member of the Diplomatic Corp of Chile.

He is member of the Chilean Bar Association, Rocky Mountain Mineral Law Foundation and International Mining Professional Society.

I. INTRODUCTION

In Chile, the mining industry is one of the productive activities subject to the largest quantity of regulations and permits on the part of the authority. In view of the high environmental, social and economic impact that an investment of this nature implies, the level of decision and intervention of the authority in the phase prior to the Start up of a mining project is very high.

For years the degree of participation of the citizens with respect to large investment projects not only mining ones, was scant Likewise, access to information and the relation with the authorities for years was quite restricted. This situation changed only since the year 1994 date when Law 19,300 General Law of Bases of the Environment, became effective with the inclusion of the first express provisions with respect to the participation of the citizens in the negotiation of the Environmental Impact Studies.

Subsequently, when Law 19,880 came into effect in the year 2003, that establishes Bases and Administrative Procedures that Rule the Acts of the Organs of the State Administration, the relation citizen/Administration improved by means of the incorporation of a series of principles and rights that regulate the administrative acts, which has positively led to the transparence and access to information on the part of the private parties with respect to the acts of the authority.

The purpose of this paper is

(i) To identify which are the principal permits linked to a mining project;

(ii) Indicate when and how the citizens can participate during the stage when the permits are being negotiated, and

(iii) Indicate the rights and principles that regulate the relation between private parties and the State administration during the negotiation of the permits.

II. RELEVANT NORMS APPLICABLE TO A MINING PROJECT.

As has been stated, the mining projects are subject to important regulations on the part of the State. In the way of an example we can distinguish the following norms of relevance applicable to a project of this nature:

Norms of a mining nature that are applicable:

• Mining Code;

• Supreme Decree No. 72, of 1985, of the Ministry of Mining, Regulation of Mining Safety, modified by Supreme Decree 132 of 2002.

• Supreme Decree No. 86, of 1970, of the Ministry of Mines. Regulation on Construction and Operation of tailing dams and Supreme Decree No. 89 of 1981 of the Ministry of Mines

Norms of an environmental and forestry nature that are applicable:

• Law 19.300, General Law of Bases of the Environment;

• Supreme Decree No. 95, of 2002, of the General Secretariat of the Presidency, Regulation of the Environmental Impact Evaluation System;

• Forestry Law, Decree Law No. 656 of 1925;

• Decree Law No. 701 of 1974, on Forestry Development, replaced by article 1 of Decree Law No. 2,565 of 1979 modified by Law 18,959 and by article 1 of Law 19,561.

• Supreme Decree No. 531. Ministry of Agriculture, of 1967, enacts convention for the protection of flora, fauna and natural scenic landscape of America.

• Supreme Decree No. 868, of 1981. Enacts Agreement on the Preservation of Wild Fauna Species. Ministry of Foreign Relations

Hydraulic permits, norms of the quality of the water and applicable sanitary norms.:

• Code of Waters;

• Sanitary Code;

• Supreme Decree No. 594 of 1999, Ministry of Health. Regulation on sanitary and environmental conditions in workplaces.

• Decree with Force of Law No. 1, of 1989, Ministry of Health, Subjects that require Express Sanitary Authorization;

• Supreme Decree No. 594, Ministry of Health, of 1999, Basic Sanitary and Environmental Conditions in Workplaces

Other applicable norms:

• Decree with Force of Law No. 1, of 1982, of the Ministry of Economy, General Law of Electric Services.

• Law 19,253, Indigenous Law

• Law 17,288, on National Monuments;

• Law...