ISSUES OF ENVIRONMENTAL LAW IN THE DISPOSAL OF WASTE FROM TAILING DAMS AND OTHER MINING WASTES
Jurisdiction | Derecho Internacional |
(April 2003)
ISSUES OF ENVIRONMENTAL LAW IN THE DISPOSAL OF WASTE FROM TAILING DAMS AND OTHER MINING WASTES
Urquidi & Riesco y Cía
Santiago, Chile
1. LEGAL ENVIRONMENTAL FRAME IN FORCE IN CHILE
1.1 Political Constitution of the Republic (CPR)
In Art. 19, N° 8, the Chilean Constitution guarantees to every person "the right to live in a pollutant-free environment", adding that "it's the duty of the State to guard the preservation of nature and to conserve the environmental patrimony", and clarifying that "the law may set specific restrictions upon the use of certain rights or liberties to protect the environment".
By guaranteeing every individual, under the same Art. 19, N° 24, "the right of domain in its diverse modalities over all types of tangible and intangible goods", the CPR clearly states that "public health" and "the preservation of the environmental patrimony" are included among the causes that may give rise to the imposition - through the legal way - of limitations and obligations upon the right, given its social function.
1.2 Law 19.300. on General Basis of the Environment (LBMA). and Executive Decree 95/2002 MinSeGPres, Regulation on the Environmental Impact Assessment System (REIAS).
a) Juridical relevance of the list of activities and projects that should be subject to environmental impact assessment according to Article 10, LBMA, and Article 3, REIAS? None, except for operations and projects that are not subject to environmental impact assessment under express legal provisions, being consequently excluded from this process, or that are not subject to assessment because they do not meet any of the requirements provided by the applicable law to the effect.
The lack of environmental assessment of projects or operations, for the simple fact of not appearing in the legal list - such is the case, for example, of water exploration - does not release such projects or operations from eventual civil extra- contractual (tort) liability and/or any liability arising from the occurrence of environmental damage resulting from such operations or projects.
Environmental assessment - and the "environmental title" or set of rights arising therefrom - should be considered as intangible assets which are part of a company's
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patrimony and in no case as something that should be bypassed or omitted. The pppppossibility of "acquiring environmental rights" is currently indeed cheaper, faster and more possible than what lies in the near future. The globalization and increasing inclusion of new countries into global economy has increasingly evidenced the relative scarcity of certain natural elements, on which account certain rights and goods which until recently were found for free have righteously started to have a price (and thus, the need for juridical protection).
1.3 Types of environmental assessment and legal vehicles for its execution or implementation
The environmental feasibility of any project or activity simultaneously faces three work fronts during the environmental assessment process:
i) Technical analysis;
ii) Juridical analysis;
iii) Political (social) analysis by the community.
i) Environmental assessment of a technical nature
Carried out by the Technical Committee of the COREMA, it essentially relates to "material" or "physical" impacts of the project or activity. Generally, analyzes the expected magnitude of eventual impacts on the bio-diversity directly associated to the project's or activity's surroundings (area of influence), the biological, geological, and hydrical aspects, and equally the issues associated to fumes, seepage, effluents, and discharges into the environment in general, and specially into water and air environments ("theory of immissions").
This assessment starts with the formal submission of an Environmental Impact Study or Statement and concludes with the delivery by the Technical Committee to the CONAMA/COREMA (agency responsible for the political and social-cultural assessment) of a report recommending the approval or rejection of the specific project or activity, taking into account the actual degree of compliance or non-compliance of the applicable technical regulations by such specific project. This report, essentially technical, constitutes a mere recommendation and is in no event obligatory for the polical-institutional level formed by the CONAMA/ COREMA.
ii) Environmental assessment of a juridical nature
It is not directly performed by any instance or authority under the new environmental institutionality, even though during the assessment there is a for- mal examination of compliance with the legal requirements on the project.1
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The "onus probandi" or "burden of proof" in sanitary and health legislation compliance issues solely bears upon the "applicant" or "holder of record" of the project or activity. Such applicant or holder shall always keep a position of being capable of demonstrating to the sectorial authorities and/or properly environmental authorities, in addition to the community, that it is in actual compliance with all the legal provisions in effect and applicable to the specific activity in question.
iii) Environmental assessment of a political (social) nature by the community
This is the most complex component of the entire environmental impact assessment and perhaps the aspect that requires the firmest juridical certainty in the respective study and report on its constituting rights. In particular, actual...
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- Mining Law & Investment in Latin America (FNREL)
- TABLE OF CONTENTS
- CHAPTER 1 CREATING A POSITIVE INTERNATIONAL MINING INVESTMENT CLIMATE1
- CHAPTER 2 REGALÍAS A LA MINERIA EN CHILE Y PERU
- CHAPTER 2 ROYALTY PAYMENTS ON MINING IN CHILE AND PERU (ENGLISH VERSION)
- CHAPTER 3 STRUCTURING OF MINING VENTURES IN LATIN AMERICA — PANEL DISCUSSION
- GENERAL COMMENTS ON THE USE OF "FORM 5" IN ARGENTINA (ENGLISH VERSION)
- CONSIDERACIONES SOBRE EL USO DEL "FORM 5" EN ARGENTINA
- ARBITRATION IN BRAZIL AND THE 1958 NEW YORK CONVENTION — RELEVANT ISSUES
- LA JUSTICIA ARBITRAL EN COLOMBIA: MECANISMO ALTERNO DE SOLUCIÓN DE CONFLICTOS
- THE ARBITRAL JUSTICE IN COLOMBIA: ALTERNATIVE DISPUTE RESOLUTION SYSTEM (ENGLISH VERSION)
- DISPUTE RESOLUTION ARBITRATION AND MEDIATION —CHILE— (ENGLISH VERSION)
- LA RESOLUCIÓN DE CONTROVERSIAS EL ARBITRAJE Y LA MEDIACIÓN —CHILE—
- Choosing the Proper Forum and Jurisdiction, and the Importance of Treaties and Enforcement of Arbitration Awards A U.S. Perspective … 5 Significant Developments in International ADR
- CHAPTER 5 THE CONCEPT OF FORUM NON CONVENIENS IN U.S. LAWSUITS
- EL PROBLEMA DE LA SEGURIDAD: CÓMO CONSEGUIR SEGURIDAD EN LAS OPERACIONES DE EXPLOTACIÓN DE RECURSOS SIN INCURRIR EN RESPONSABILIDADES INTERNACIONALES
- THE SECURITY CONUNDRUM: HOW TO MAKE YOUR RESOURCE OPERATIONS SECURE WITHOUT CREATING INTERNATIONAL LIABLITIES (ENGLISH VERSION)
- RESPONSABILIDAD POR DAÑO AMBIENTAL EN EL SECTOR MINERO1
- LIABILITY FOR ENVIRONMENTAL DAMAGE IN THE MINING SECTOR
- LIABILITIES ARISING FROM MINING ACTIVITIES IN LATIN AMERICA
- LIABILITIES ARISING FROM MINING ACTIVITIES IN LATIN AMERICA
- TAXATION OF THE MINING INDUSTRY IN CHILE: AN UPDATE
- REGIMEN FISCAL DE LA INDUSTRIA MINERA EN MEXICO
- TAXATION OF THE MINING INDUSTRY IN MEXICO (ENGLISH VERSION)
- MINING INVESTMENTS IN ARGENTINE
- PERSPECTIVES ON SUSTAINABLE DEVELOPMENT IN THE MINING INDUSTRY
- CHAPTER 9 Canadian Aboriginal Law: Creating Certainty In Resource Development
- PUBLIC PARTICIPATION IN NATURAL RESOURCES MANAGEMENT IN LATIN AMERICA: TO INCLUDE OR NOT TO INCLUDE
- THE ROLE OF PUBLIC PARTICIPATION IN NATURAL RESOURCES DECISIONS
- CONSULTA VECINAL Y LICENCIA SOCIAL
- POPULAR CONSULTATION AND SOCIAL LICENSE
- NEGOTIATION WITH LOCAL COMMUNITIES: HOW TO BUILD A LONG-TERM RELATIONSHIP
- MINERIA Y AGRICULTURE; ¿SON INCOMPATIBLES?
- CONFLICT BETWEEN OWNER AND CONCESSIONAIRES DUE TO PRAEDIAL OCCUPATION UNDER THE CHILEAN LEGAL SYSTEM (ENGLISH VERSION)
- CONFLICTO ENTRE PROPIETARIO Y CONCESIONARIOS POR OCUPACION PREDIAL BAJO EL REGIMEN JURÍDICO CHILENO
- SOLUCION DE CONFLICTOS ENTRE PROPIETARIOS SUPERFICIARIOS Y TITULARES MINEROS: EL CASO PERUANO
- RESOLUTION OF CONFLICTS BETWEEN SURFACE OWNERS AND MINING CONCESSIONAIRES; THE PERUVIAN CASE
- CHAPTER 13 Methods of Financing
- CHAPTER 14 FINANCING OF MINING PROJECT
- LA INDUSTRIA MINERA Y LOS MERCADOS DE CAPITALES DE RIESGO EN LATINOAMERICA: EL CASO CHILENO
- THE MINING INDUSTRY AND VENTURE CAPITAL MARKETS IN LATIN AMERICA: THE CHILEAN CASE (ENGLISH VERSION)
- LAWS, REGULATIONS AND PROCEDURES FOR LISTING EXPLORATION AND MINING COMPANIES ON CANADIAN STOCK EXCHANGES
- CHAPTER 16 FINANCIAL GUARANTEES
- POLITICAL RISK INSURANCE — MIGA's GUARANTEES PROGRAM (ENGLISH VERSION)
- POLITICAL RISK INSURANCE — ZURICH EMERGING MARKETS SOLUTION
- CHAPTER 18 USING LONG TERM INTERNATIONAL CONCENTRATE SALE AGREEMENTS IN MAJOR PROJECT FINANCING
- ISSUES OF ENVIRONMENTAL LAW IN THE DISPOSAL OF WASTE FROM TAILING DAMS AND OTHER MINING WASTES
- AN OVERVIEW OF MINE WASTE REGULATION IN THE UNITED STATES
- PROTECTION FOR FOREIGN INVESTORS IN LATIN AMERICA UNDER BILATERAL INVESTMENTS TREATIES
- EMERGENCY LAWS vs. RIGHTS GRANTED UNDER PRE-EXISTING LAWS: THE ARGENTINE CASE
- null PREVENTING AND MITIGATING A FINANCIAL CRISIS IN MÉXICO
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