Mining, mineral policy, national interest and legal certainty

dez 11, 2018 | Artigos Gerais

William Freire[1]

Article 176 of the Brazilian Federal Constitution linked mining with the national interest. Nothing could be more reasonable, considering the importance of mineral wealth for the country’s security and development.

National interest is one of those expressions with a very strong, intuitive meaning at its core: it is that which is of interest to the country, to its people. The best interpretation of the expression national interest within the context of the Constitution, and of its public utility, is that mining should be treated and led as a question of the national interest.

All the participants in the relations resulting from mining activity should treat it with this level of respect, not just miners. And we can go even farther: the Government must set the example. To treat mining as being in the national interest is to treat it at a high level, lifting this industry above the grubby world of politics.
There is a constitutional principle in the Administrative Procedure Law that is intertwined with the national interest, which predominates over and stands out from the rest: legal certainty.

Who is legal certainty for?

For all – for the Union, so that its sovereignty over mineral wealth is not weakened; and to ensure there is no interference by international interests in the management of our mineral resources. So that foreign NGOs (straw men for we can only guess who) cannot use environmentalism as a false argument to delay the country’s development.
Legal certainty for miners, because Brazil needs to attract healthy investments. And competent investors do not need privileges or benefits, but only the proper conditions to compete globally under reasonable equilibrium.

This does not require much. It is enough for the Government to follow the principles that are embedded in the Constitution (Art. 37) and in the Federal Administrative Procedure Law (Art. 2). Among these principles, we can emphasize administrative efficiency, which is one of the elements of the principle of legal certainty.

The principle of efficiency is materialized when the Government obeys the law, its obligations and their deadlines (whether legally defined or within a reasonable timeframe), rendering decisions that respect other principles, such as legality, impartiality, morality, publicity, purpose, grounds, reasonableness, proportionality, broad defense, the adversarial system, public interest, and the sustainable development of mining.

[1]  WILLIAM FREIRE is an attorney who holds a law degree from UFMG. He is the author of many books on Mining Law and Environmental Law, including Direito Ambiental Brasileiro (Brazilian Environmental Law), Código de Mineração Anotado (Annotated Mining Code), Comentários ao Código de Mineração (Comments on the Mining Code), Direito Ambiental Aplicado à Mineração (Environmental Law Applied to Mining), Natureza Jurídica do Consentimento para Pesquisa Mineral (Legal Nature of Consent for Mineral Exploration), Consentimento para Lavra e do Manifesto de Minas no Direito Brasileiro (Development Consent and Mine Manifest under Brazilian Law), Fundamentals of Mining Law, and Gestão de Crises e Negociações Ambientais (Crisis Management and Environmental Negotiations). He has published more than one hundred articles and given more than one hundred presentations on Mining Law, both inside and outside Brazil. He is an Arbitrator at the Business Mediation and Arbitration Chamber — CAMINAS and Director of the Mining Law Department of the Institute of Attorneys of Minas Gerais, as well as the founder of the Brazilian Institute of Mining Law — IBDM, and a professor of Mining Law in several graduate courses. For many years, he has been considered one of the most respected consultants in Mining Law, by several institutes.