The Environmental Licensing of Mining Projects and the INCRA Settlement Projects

The Environmental Licensing of Mining Projects and the INCRA Settlement Projects

Mining projects in Brazil face a very complex conflict. How to develop them in public areas, in which there are situations of social conflict related to areas designated for settlements by the Federal Government, through the for the National Institute of Colonization and Agrarian Reform (INCRA). It is our goal in this article to bring highlights and possible alternatives to these situations.

Introduction

The intercurrences and interrelations of Settlement Projects, the famous P.A’s superimposed on mineralized areas has become a complex and challenging issue for environmental, land and social management with implications that can compromise the economic viability of Mining Projects.

In a research in the database of the Agrarian Reform Project Information System (SIPRA)[1] 9,374 settlement records were identified by 31.12.2017 for the whole of Brazil with the number of 972,289 families based in an area of 87,978,041.18 hectares, this is +10% of the Brazilian Territory covering 852 Million Hectares(M/Ha).

This number reflects the portrait of Brazilian government policy and its commitment to agrarian reform that gained considerable momentum due to social pressures, such as government initiatives or through the expropriation and redistribution of Land. As can be verified by the information published by the Electronic Portal of GI[2] of 01.10.2011, Dilma Rousseff in the 1st. mandate created 35 Settlement Projects, Lula created 286 in the sum of his two terms and FHC a total of 403 Settlement Projects.

It draws attention to us, which according to the data obtained on the electronic site of INCRA[3] that the settlements are located mostly in the Legal Amazon and for this reason far exceed those of other regions. Of the 9,374 settlements registered until 31.12.2017, 3,518 are located in the Legal Amazon, totaling 625,655 of settled families and 76,958,858.68 M/Ha in the area destined to settlements. The North region has an area of 386.9 million hectares.

It is necessary, to draw a brief history on the origin of the creation of the P.A’s that often precede invasions by people linked to social movements, such as the landless who are organized occupy public or private properties, on the grounds of unproductivity. In this reality, these properties are susceptible to expropriation by the government for agrarian reform purposes, obeyed the legal criteria. Invasions run without a shadow of a doubt as a form of pressure from these landless groups to speed up the agrarian reform process.

The central point of the debate is that the frequent identification of P.A’s superimposed on mineralized areas is an obstacle, a serious situation to be transposed by the miner at the time of mineral research and environmental licensing, the latter, requires as a condition of continuity of analysis of the process, the consent of the National Institute of Colonization and Agrarian Reform/INCRA and those based on the P.A.’s stage, and then issue the required license whether for mineral research with rotating probe and or on the aegis of the Use Guide scheme.

It is important to mention that in the examination of the search permit application by the National Mining Agency/ANM this interference is not considered for the grant or not of the Research Charter, being in charge of the miner digesting this interference when of mineral research and environmental licensing.

This interference is real and appears in practice to the extent that there is a requirement/notification of the competent environmental entity for the consent of INCRA and or the settled surfaces.

It is at this time that the miner is in line with the imposition of the competent environmental entity to call the environmental licensing process, the INCRA when it is identified as the holder of the surface and or responsible for the P.A. superimposed the area of project.

This need for INCRA consent has direct implications in the time of formalities and the rite of the environmental licensing process with significant reflections for the cost of the Project. In such cases, there are numerous variants that must be considered and restricted by the miner, because if the P.A. is implemented, the social issue of settlement with the need in some cases of promote the relocation of entire communities and or families.

It should also be considered that some P.A.’s present sensitive social issues related to land grabbing, invasions, social movements, wood extraction and illegal mining.

This very complex and dynamic scenario requires from the mining energy and large investments to seek social viability to compose the necessary tripod the feasibility of the project that is only possible if combined with environmental and economic viability, these variables, essential and relevant for the project to be effective.

Added to this interference of the INCRA that according to the reality of the P.A. situation can come to the conclusion that one of the hypotheses of solution evidenced through case studies is to promote the deployment[4]of the area with the extinction of the situation legal settlement and the return of the area to its true vocation.

If this is the alternative, the miner may in most cases count on the interference of control entities, such as the Public Prosecutor’s Office and the Judiciary that act coercively on the competent environmental entity.

Therefore, INCRA’s participation in the environmental licensing process is a risk to be considered in cases where P.A.’s overlap over mineralized areas is considered, because in order to obtain consent and/or until the area is unaffected, there may be considerable cooling in the process of environmental licensing and may cause the project to be unfeasible, causing considerable damage to the main stakeholders.

We should mention that settlements are also required by law to carry out prior consultation and an environmental licensing process, but this almost never happens. It is a sad reality of Brazil in which the miner’s delinquency and otherwise tolerates the non-compliance with legal obligations for the creation of P.A.’s is required, as if the social issue is required as a substitute for justification and or excuse for illegality.

Moreover, the 2006 Note[5] of the Prosecutor’s Office of the now defunct Ministry of Agrarian Development must be considered, which states that, before the creation of the PA’s / PDS’s and the like, INCRA must verify the mineral potential of the area in order to avoid the unviability of the agrarian project.

It is worth mentioning that there is no rental alternative in view of the rental rigidity of the deposits for places of interest devoid of such interferences. The aforementioned P.A.’s could before its creation were objects of an identification research with the ANM to predict the variables to be managed by the miner and or even to propose a change in the internal limits of the desired P.A.

It is important to note that such interference does not represent a preventative, a “fatal flow” of the Project, but an important variable to be considered by the miner.

There are several types of Settlement Projects, called P.A.’s. The miner must know what type of P.A. interferes with its project. The status of its development, whether it is installed or not in the project phase, its real situation and its true vocation must be considered.

Finally, we can conclude that in view of the reality of Brazil and its public management with settlement projects when superimposed on mining projects mainly in the Northern region of Brazil, the P.A’s are associated with land invasions, activity of illegal mining, the presence of illegal loggers, and it is mostly impossible to dissociate the P.A.’s to the above mentioned situations.

Given the hypotheses studied and facts observed about the present subject, we believe in the possibility of compatibility between the P.A.’s and Mining Projects. This would not be the subject of the discussion, but the search for overcoming surprises, obstacles, and any complications arising from the interference of INCRA, Public Prosecutor’s Office, the Judiciary, NGOs among other actors who may launch themselves in the course of the Process of environmental licensing and simply make a Project unfeasible.

In a country where legal certainty is sought, we have at least 2 problems, that is, cases where the miner is:

  1. If later the creation of P.A.’s; obliged to wait for ad aeternum INCRA to issue the consent necessary for the continuation of environmental licensing. INCRA should be provided, where appropriate, a reasonable period of time to broker with a satisfactory solution, as can be adjusted with private property, with payment of income and indemnification.
  2. If prior to the creation of P.A.’s, in this case, it would be up to the Miner to notice to INCRA and the immediate possibility of adjusting with the right also a satisfactory solution, with payment of income and compensation, providing compensation for such expenses next to the INCRA.

It is urgent to deal and regulate such issues, because we must not forget that we are in a country of 852 M/Ha, where the miner is fully or partially, or temporarily prevented from practicing its activity by the existence of: Renca[6] ~ 4,4 M/Ha, 113 M/Ha  Indigenous Lands, ~ 53 M/Ha  Integral Conservation Units, and ~ 255 M/Ha Partial Conservation Units5, which increasingly make Brazil a country surrounded by conflicts and litigation, but mainly complex for mining projects and that could be truly bringing more development, jobs and income to Brazilians!

Finally, we recommend that the miner succeed in the subject has a legal team with proven experience in the subject, and that it be advised by high performance professionals, dynamic, multidisciplinary, and that act in a way transparent and close to the INCRA, and it is certain that this choice will be essential for reducing time and costs spent and success in obtaining consent.

This Article of: LUIS MAURÍCIOAZEVEDO (OAB 80412 RJ) and FREDERICO TORQUATO (OAB/MG 102.573) and is owned by FFA LEGAL and directed to its customers and partners.

5 Source Incra, Funai, Ibama

[1] http://www.incra.gov.br/beneficiarios

[2] http://g1.globo.com/politica/noticia/2011/10/dados-do-incra-mostram-reducao-de-assentamentos-para-reforma-agraria.html

[3] http://painel.incra.gov.br/sistemas/index.php

[4] LEGAL (TERM)

act by which a legal link is undone, inherent in the nature of something, property or possession, making the affectatio, that is, the power or right over it disappear.

[5] “It is recommended that the opinions of the Specialized Federal Attorney’s Office of INCRA inform about the existence of private subjective law of a mining nature, potentiating in demnification claims, or that present risks to healthiness, security or the ecological-economic sustainability of the projected settlement, aspects that must be previously faced by the CDR, or, exceptionally, before the expropriation filing, including with new reports with the DNPM, if necessary.

In this particular, in addition to a letter to the National Department of Mineral Production – DNPM aiming to consult the mining register and over-lay of the letter of the municipality of location of the property surveyed in order to identify research or mining requirements for the mineral substance, which interfere summing in whole or in part with the area of the property concerned, such consultation is possible at the E-Mail address of the DNPM.

This report is relevant because the mining presence would break out two distinct public interests over the same rural property, one on the ground (settlement of rural workers) and the other underground (possibility of mineral exploitation)”.

[6] RENCA is an area of approximately 4.4 M/ha established in 1984 and blocked private investors. In the Decree of the creation of THE RENCA it was established that the Mineral Resources Research Company (CPRM) would have the exclusivity to conduct geological research work to determine and evaluate the occurrences of copper and associated minerals. The findings should be negotiated with mining companies in order to enable extraction activities.

 

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