RESOLVING CONFLICTS BETWEEN SURFACE OWNERS AND MINERS IN LATIN AMERICA — PERUVIAN EXPERIENCE
| Jurisdiction | Derecho Internacional |
(2001)
RESOLVING CONFLICTS BETWEEN SURFACE OWNERS AND MINERS IN LATIN AMERICA — PERUVIAN EXPERIENCE
Rodríguez Mariátegui & Vidal
Lima, Peru
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INTRODUCTION
Following a long-time consolidated model, mining property is conceived in Peru (as in most Latin American jurisdictions) as a right to explore and exploit all the mining substances contained within a defined area. Mining is performed through a mining concession which is a real estate right different from the land; therefore a mining concession will coexist with a land property in the same area, both with certain rights to use the surface.
Peruvian Constitution1 contemplates in article 66 that natural resources, as minerals, belongs all to the State and its use and exploitation by particulars shall be defined by law. This means both that a mining concession title will not grant an immediate and automatic right to use the surface, as the surface property will not confer the right to exploit the mining resources located in the land.
This model is likely to promote conflicts among stakeholders and it sometimes did. However, conflicts between surface owners and miners were quite controlled and somehow irrelevant until a few years ago when changes were introduced into rights granted to miners.
Since the first Mining Code enacted in Peru, miners had a sort of priority in the use of the land where their claims were located or in their surrounding areas. Prior to 1901 only a few laws in force related to mining were enacted in Peru: all others survived throughout colonial times and were approved in Spain and Mexico.2 Hence, we can say we are today celebrating the first century of the first Peruvian Mining Code, prepared and promoted by the Mining Society.
The 1901 Mining Code established a preferential right of the miners to the surface in top of land owners and granted an expropriation right in case of any disagreement in the way the surface should be used.3
Fifty years later — in 1950 — a new Mining Code very keen to the mining industry replaced the 1901 Code. Mining industry was then considered as a public useful activity. Following its predecessor, miners had preference over land owners, the expropriation right was kept and different easements were introduced. An important contribution of this law was the free and immediate right to use the land by any miner if its owner was the State or a local government.
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In 1971, after a leftwing military coup involved within similar political tendencies in the area, an interventionist Mining Law4 was approved. Notwithstanding preponderation of miners in top of surface rightholders was not only maintained but enforced.
Soon after restoration of democracy a new Mining Law was enacted in 1981. Decreto Legislativo N°109 still partially rules, after some important and promotional amendments were introduced in 1991 through Decreto Legislativo N°708. Mainly same surface rights were granted to miners. Because of Decreto Legislativo N°708 Peru lived an exploration boom in the first half of the past decade. The merger of Decreto Legislativo N°109 and 708 resulted in the current Texto Unico Ordenado de la Ley General de Minería (TUO).5
Is important to have in mind that most of the ore bodies and operating mines are located in top of 3,500 meters of altitude above sea level, where little or none agriculture nor any other activity exists. Therefore, there should not be any major conflict among miners and medium or large size agriculture activity. It is true that some very low scale shepperding exist at such a high altitude, which are exercised by peasants, at an extreme poverty level and as a merely subsistence activity. Special consideration for these people is necessary and there is no doubt mining is the only activity that can offer them an alternative for a better way of life and becomes the only supplier of basic services (while the State is completely absent in the area).
Mining activity in Peru was responsible in 1999 for 51,6% of its exports. Peru is the world second largest silver producer; world sixth producer (and second Latin American) in copper; world eighth producer (and first Latin American) in gold; world fourth producer (and first Latin American) in lead; the world fourth producer (and first Latin American) in zinc. There is no doubt Peru is a mining country, and -for good or for bad- depends very much in the mining industry.
I CURRENT SURFACE RIGHTS OF MINERS
Article 9 of TUO explains the basic rights granted to a concession titleholder: exploration and exploitation. Both will be exercisable only after the title is conceded.
Article 37 of TUO contains the ancilliary rights of any mining titleholder, also enforceable only after the title is granted. Among them are:
a. Automatic and free right to use Stateowned land surfacing the area of the mining concession (paragraph 1).
b. Right to request free use Stateowned land adjoining the area of the mining concession (paragraph 2).
c. Right to request a remunerated easement on private land in the area or in the surroundings of the mining concession. Should the easement prevent the owner
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from any further use of the land the owner or the authority may turn the easement into an expropriation request (paragraph 3).
d. Right to request use or easement of land surfacing other mining concession, provided the titleholder of the latter is not obstructed in his own operations (paragraph 4).
e. Right to request the expropriation of private land necessary for mining operation which will be granted only if the authority judges the mining activity is more important than the other activity being performed (paragraph 7).
Article 14 of TUO stated that no mining concession for non metallic substances will be granted in agricultural land. Non metallic mining concession in urban areas or in urban expansion areas will only be granted with the previous authorization of the province authorities. Metallic concessions had no restrictions whatsoever.
All of the ancilliary rights conceded to the miners are necessary for their activity. Limiting miners rights only to exploration and extraction while keeping the distinction between surface and natural resources only represents giving the miners an abstract right without any actual ability to do mining.
All the above ruled until July 1995, when the Land Law6 changed and corrupted the TUO in most of its article 37 paragraphs 1, 2, 3 and 4. This was followed by the regulations to this law which insisted strongly towards the same line of action.
A new Constitution7 enacted in 1993 eliminated any chance of filing for expropriation of land for mining purposes.
Later on a new law8 introduced strong restrictions for granting mining concessions in urban areas and in urban expansion areas. This law also imposed certain new obligations to existing mining concessions in those areas.
As a result of the above currently (i) expropriation in favor of miners has been eliminated, even if the projected mining activity is important for the region and even if same is declared as social and economically necessary; (ii) Stateowned land which was not in use for mining purposes as of July 1995 will only be used after it is auctioned (when the State decides to call for the bidding, without any chance for private entrepreneurs to force or request any particular auction); (iii) easements on native lands are virtually prevented due to regulatory impositions very difficult or even impossible to comply with; (iv) easements on any other private land are admitted by law, but authorities are reluctant to grant them and so far none have been awarded; (v) both metallic and non metallic concessions will only be admitted in urban areas if they are explicit and specially authorized by law; (vi) both metallic and non metallic concessions will only be admitted in urban expansion areas prior favorable opinion of provincial and local authorities, despite any mining operation is projected or not in the applied concession.
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