CO-EXISTENCE BETWEEN MINING AND AGRICULTURAL ACTIVITIES: COMPATIBILITY IN BRAZIL

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment
(Apr 2011)
CHAPTER 15B
CO-EXISTENCE BETWEEN MINING AND AGRICULTURAL ACTIVITIES: COMPATIBILITY IN BRAZIL
William Freire ¹
William Freire Advogados
Brasilia, Brazil

WILLIAM FREIRE is an attorney with a law degree from UFMG. He is a founding partner of the WILLIAM FREIRE Advogados law firm, specialized in Mining and Environmental Law for mining companies. He is a professor at the graduate courses at Milton Campos Law School, Pitágoras Law School and UNA Law School. He is the author of several books on Mining and Environmental Law, and the most important of these are: Annotations on Brazilian Mining Code; Mining Law Review - Coordinator); Brazilian Environmental Law; Environmental Law Applied to Mining; Legal Nature of Exploration Consent, Exploitation Consent and Mine Claims in Brazilian Law. Mining Law Dictionary, English - Portuguese. Co-author; Environmental Crisis and Negotiation Management; Dictionary of Environmental Law and Technical Environmental Vocabulary; Mining, Energy and Environment (co-coordinator); Fundamentals of Mining Law; Annotated Mining Code and Complementary Mining Legislation. He is the coordinator of the Environmental Negotiator Training Program and the coordinator and professor of the Environmental Crisis Management course of Instituto Brasileiro de Direito Minerário - IBDM. He is the director of the Mine and Energy Law Department at Instituto dos Advogados de Minas Gerais. He is an arbitrator in Mining Law at the Câmara Mineira de Mediaçao e Arbitragem - CAMINAS and at Câmara de Arbitragem Empresarial - BRASIL - CAMARB.

Introduction

With the world's population reaching 7 billion people, it is natural for agriculture to attract people's attention.

In Brazil, a country of continental dimensions, with approximately 8.5 million square kilometers of surface land, with vast agricultural areas, the discussion on the compatibility between mining and agriculture has not yet come to the forefront.²

Following are some statistics on agriculture and mining in Brazil:

To give an idea of the importance of mining in Brazil, in 2010, the national trade balance (exports -- imports) reached about US$ 20 billion. The trade balance in mining corresponded to approximately US$ 27.5 billion.³

Brazil stands out in world mineral production: Niobium: it is the largest world producer, with 95% of the market; Iron ore: second largest producer, with 18.8%; Manganese: second largest producer, with 25%; Tantalite: second largest producer, with 17%; Aluminum (bauxite): second largest producer, with 12.4%; Asbestos: third largest producer, with 9.73%; Magnetite: third largest producer, with 8%; Graphite: third largest producer, with 7.12%; Vermiculite: fourth largest producer, with 4.85%; Kaolin: fifth largest producer, with 5.48%; Tin: fifth largest producer, with 4.73% and decorative stones: fourth largest producer, with 5.6% of the global production.

Brazil uses today around 47 million hectares of land for agricultural purposes, which is equivalent to approximately 5.85% of its surface land area. However, it has 450 million potential hectares of arable land. In comparison, the USA has 390 million⁴ hectares of potential arable land, but already dedicates 19.3% of its surface land to agricultural activities.⁵

[Page 15B-2]

There are studies in Brazil demonstrating that mining activities occupy approximately 0.3% of the surface land. It is a global average of land occupation destined to mining activities.

Mining and agriculture in Brazil: possible co-existence. Prevalence of mining in case of conflict

When we study the possibility of co-existence between mining and agriculture, or the conflicts between both activities, there are some factors that should be taken into consideration:

1. Locational rigidity of mining: Locational rigidity is the first parameter. An agricultural project can be removed; but the deposit must be mined where nature put it.

2. Vocation of the area or of the land. Brazilian legal thought contains a Principle of Priority Use: The geological characteristics indicate whether an area has a mineral vocation. If it does, it should be followed. It does not make sense to force the implementation of farming and ranching activities in areas with a clear vocation for mining.

3. Economic aspects: mining generates much more wealth and jobs per hectare than agriculture.

In Brazil, mining is considered to be an activity of public utility (Decree-Law 3.365/41 and CONAMA Resolution 369/2006).

The Brazilian Mining Law states:

"Article 59. The property where the deposit is located, as well as bordering properties thereto, shall be subject to easements on the surface land and subsoil.

Article 60. Easements shall be instituted through prior indemnification of the value of the land occupied and the losses resulting from this occupation."

The Expropriation Law (Decree-Law 3.365/41) states:

"Article 5. The following are considered to be cases of public utility: f- Industrial use of mines and mineral deposits, of

...