RESOLUTION OF CONFLICTS BETWEEN SURFACE OWNERS AND MINING CONCESSIONAIRES; THE PERUVIAN CASE
| Jurisdiction | Derecho Internacional |
(April 2003)
RESOLUTION OF CONFLICTS BETWEEN SURFACE OWNERS AND MINING CONCESSIONAIRES; THE PERUVIAN CASE
ESTUDIO OLAECHEA
LIMA - PERU
April, 2003
Bernardo Monteagudo 201, San Isidro, Lima, Perú
Telf: (511) 264-4040, 264-3620 o 264-3611; Fax: (511) 264-4050 o 264-3080
WEB SITE: http://www.esola.com.pe
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1. The distinction between the ownership of mineral resources and the surface land - Domain System
The Peruvian Legislation for the ownership of natural resources, has adopted what is called the "domain system", which establishes that the State is the original owner of mineral resources. Mining concessionaires will have a derivative ownership over mineral resources, since they have to fulfill some obligations that are established by law in order to enjoy the rights to explore and exploit the mineral resources that exists within a concession area.
The domain system can be distinguished from the absolute ownership system, which is also known as the accession theory. This last theory has its origins in Anglo-Saxon countries, and it states that the owner of the surface land is also the owner of the mineral resources that exists below it. However, the accession theory has evolved. For example, in the State of Colorado, United States of America, it has been recognized that the surface ownership and the title over the mineral resources below it are different rights. Originally, under English common law, the owner of the surface land was also the owner of the natural resources. The idea begun to be modified when the owners of the surface lands started to transfer them, reserving for themselves the existing mineral resources below.
In Peru, the domain system had its origins with the Viceroyalty legislation. The Ordinances of Viceroy Toledo in 1574 and the Ordinances of Peru of
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1776 established that the minerals belonged to the King of Spain, and they could be granted to the subjects of the Crown for their exploitation in exchange for the payment of a tribute to the Royal Treasury.
Currently, Article 66° of the Peruvian Political Constitution of 1993 establishes that the natural resources, renewable and non-renewable, belong to the national patrimony. It has to be settled by internal law the conditions for their use and their granting to individuals. At the same time, the Preliminary Title of the Unique Text of the General Law of Mining (LGM), approved by Supreme Decree 014-92-EM, establishes that all mineral resources belong to the State, being its property inalienable and imprescriptible, and it could be granted its exploitation to individuals through a regime of concessions. Referred to this point, Articles 1° and 2° of the Internal Law of Sustainable Exploitation of Natural Resources, Law 26821, establishes that the natural resources maintained in its sources belong to the national patrimony.
As a consequence of the domain system, Article 9° of the General Mining Law, establishes that the mining concession is a different and separate property from the real state where it is located. Consequently, the ownership of the surface land and the ownership of the mineral resources are submitted to different legal rules.
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This difference also appears in the mining legislation of other Latin-American countries. For example, in Chile, the difference is based upon the definition of mining concession established by the Political Constitution, which states that the ownership of mines is independent from the lands that contain within its subsoil the mentioned minerals. The same occurs in Argentina and Bolivia, where both types of properties are distinguished. Likewise, in Mexico it is made the difference between the surface property and the minerals below it, and for this reason, the mining holder requires the permission of the owner of the surface land to use it.
This legal difference between the surface land and the title over the mineral resources that exists in the subsoil, which is recognized by the domain system, may create in practice several conflicts, because a mining holder will not be able to exercise mining activity if he does not have the right to use the surface land. On the other side, in some cases this legal distinction could be difficult to perceive, as in the case of open pit mining exploitation, which is totally done over the same surface land. Hence, it is very important that the regulation of this possible conflictive relationship between both owners is done in the most efficient way, so that the viability of important mining projects and the rights of the owners of the surface land would not be affected.
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2. Rights that were traditionally granted to the holders of mining rights by Peruvian legislation: Use of barren lands, right to establish mining easement and right of mining expropriation
The Peruvian General Mining Law has traditionally granted some rights to holders of mining concessions, in accordance with the statement of national interest in the promotion of mining investment within the national territory and the qualification of the mining industry as of public utility.
In accordance with Article 37 of Peruvian General Mining Law the holders of mining concessions were authorized to do the following: a) To use gratuitously the barren surface lands owned by the State that corresponds to the concession, without necessity of any additional requirement and to ask to the mining authority for the free mining use of barren lands located outside the concession area; b) To establish mining easements over the lands of third parties, as long as they are necessary to the reasonable use of the concession, with a previous appraised compensation; and c) To request the expropriation of the surface lands of individuals, with a previous compensation, if the area is necessary for the reasonable use of the concession. Likewise, it was established in Article 37 of the General Mining Law that if the requested easement right could "enervate" the property right of the surface land, the mining authority was empowered to expropriate the land, with a previous appraised compensation.
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In the legislation of most Latin-American countries, the surface property is considered dependent in relation to the mining industry, considering the mining concession as the dominant property, in order to facilitate an activity that is considered of public interest. This is so because it is recognized that for the exercise of mining activity it is necessary to occupy the land for the exploration, exploitation and for the benefit of the existing mining resources or for the installment of equipment or machinery.
For example, the Mining Code of Bolivia, recognizes the right of the mining concessionaires to expropriate and to establish rights...
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