How to obtain a mining concession in Chile

Legal framework

As in most jurisdictions, the State has absolute, exclusive, inalienable and non-lapsable ownership of all minerals. According to the legal framework, mining concessions or claims, both for exploration and exploitation, are granted by a judicial resolution from the civil courts in a voluntary and non-contentious judicial proceeding. The main consideration behind this judicial nature of the concession is the non-intervention of any other authority except the technical support provided by the National Geology and Mining Service  (SERNAGEOMIN). The proceeding to incorporate a mining concession is based on the principle that grants preference to obtain it to the first petitioner before the local ordinary court.

 Alvaro Florez

Alvaro Florez

Infographic: A tough race to secure mining ground

 

I.      General Rules.

1.    Any person, individual or company, national or foreign, is entitled to acquire mining concessions.

2.    The mining concessions are granted by a judicial sentence issued in a non-contentious or voluntary proceeding which are those that despite requiring the intervention of a judge no conflict between the parties is promoted.

3.    Chilean legislation establishes two types of mining concessions: mining exploration concession and mining exploitation concession.

4.    The proceeding for obtaining a mining concession begins with a document which is called Pedimento (mining exploration application) in the case of applying for a mining exploration concession or Manifestación (mining exploitation application) to obtain a mining exploitation concession.

5.    In every Pedimento the applicant shall request only one mining exploration concession, while one or more mining exploitation concessions may be requested within the same Manifestación.

6.    It will be appropriate for the civil law judge who oversees the jurisdiction of the place where the mid-point indicated in the Pedimento is located, or the point of interest indicated in the Manifestación, to intervene in the granting proceeding.

7.    It is not necessary to appoint a lawyer or to grant a legal mandate in the Pedimento and Manifestación, without prejudice to the fact that such requirements must be fulfilled in the first presentation after them. Please note mining law grants preferential rights to the first person that submits a Pedimento or Manifestación over the same area.

8.    The mining exploration concession is granted for a 2-year term and may be extended for another 2 years by giving up half of the area, while mining exploitation concessions are granted for an indefinite period.

9.    The Pedimento, Manifestación, mining exploration concession and mining exploitation concessions, once registered, constitute real property rights, transferable and transmissible according to the standard applicable to any other real estate property.

 

II.    Mining Exploration Concession.

1.    The mining exploration application (also referred hereby as “Pedimento”) must indicate the following information:

a)    Name, nationality and domicile of the applicant, and, where appropriate, also those of the person or company who is being represented. In case the applicant is an individual, the profession or occupation and marital status shall also be indicated;

b)    Geographic or U.T.M. coordinates indicating the midpoint of the mining concession upper face, with precision of seconds (indicating the degrees, minutes and seconds, both of its southern latitude and its west longitude) or 10 meters (indicating kilometers and hundredth of kilometers that correspond in north direction and in east direction), respectively;

c)    The name given to the requested mining exploration concession; and

d)    The area, expressed in hectares, of the upper face of the concession, which may not exceed 5.000 hectares.

2.    The civil court´s secretary will place in the Pedimento the day and time it was filed, shall take note in a numbered record that will take effect and will give receipt to the applicant, if requested.

3.    If the Pedimento is missing one or more of the requirements mentioned in N°1 above the judge will order to correct them within 8 days, prevailing for all legal effects the date of the initial presentation. However, if the applicant fails to indicate the coordinates of the midpoint of the requested area the judge will order to have the respective presentation not made.

4.    The judge shall examine the Pedimento and, if it complies with all necessary information, will order its registration in the Discovery Registry kept by the corresponding Mine Registrar and its publication in the Official Mining Bulletin within 30 days of the date of the judicial resolution that ordered so.

5.    In addition, it will be paid, once only, for each Pedimento, a tax benefit rate within 30 days following the filing date before the corresponding court. This payment can be made at any bank or authorized institution to collect taxes, while the receipt needs to be attached to the court file.

6.    From the moment the Pedimento has been registered in the Discovery Registry kept by the corresponding Mine Registrar, the holder may carry out all the necessary work to constitute the mining exploration concession.

7.    Within 90 days of the judicial order for the registration and publication of the Pedimento, the applicant must request judgment. The ruling request may cover all or part of the of the area indicated in the Pedimento, but in no case, located out of it. The judgment request must also indicate the U.T.M. coordinates of the mining concession upper face vertices relating, at least, one of them, in course and distance measurement, with the mid-point indicated in the Pedimento.

The ruling request shall be accompanied by:

a.    Receipt of having paid the fee (tasa);

b.    Receipt of having paid the yearly license (patente anual);

c.     Authorized copy of the registration of the Pedimento in the Discovery Registry kept by the corresponding Mine Registrar;

d.    Copy of the Official Mining Bulletin where the registration mentioned above was published; and,

e.    A map of the requested area, indicating the coordinates of every single vertex and the relation, in course and distance measurement, of all of them with the midpoint.

Please note that the holder of a mining exploration concession is forced to pay a yearly license subject to lose its right by means of an auction proceeding. This yearly task is called “duty of protection” (amparo). The duty of protection begins when the ruling request is made. The amount of the first yearly license shall be proportional to the time between the date of the ruling request and the last day of the following month of February.

 

8.    The judge will examine the ruling request and, if it complies with all legal requirements, shall forward the file for report to the National Geological and Mining Service (the “Service”). If the ruling request does not comply with all legal requirements the judge shall reject it and order the cancellation of the Pedimento´s registration in the Discovery Registry kept by the corresponding Mine Registrar. If the judge, however, notices, omissions or defects susceptible of being corrected, the judge will point them out and order their correction within 8 days.

9.    The Service shall issue a technical report regarding the shape, dimensions and orientation of the requested area within 60 days. If the Service report is favorable, the judge shall issue a judgment granting the mining exploration concession. If the report contains observations, the judge shall order the applicant to correct them within 30 days. If the applicant does not comply with this obligation the judge will order the cancellation of the Pedimento´s registration in the Discovery Registry kept by the corresponding Mine Registrar.

10.  Once a favorable sentence has been issued, the applicant must within a period of 120 days:

a)    Publish an abstract of the sentence in the Official Mining Bulletin; and

b)    Register the authorized copy of the sentence in the Discovery Registry kept by the corresponding Mine Registrar.  

Once completed these two final procedures the applicant becomes the holder of a mining exploration concession.

 

III.   Mining Exploitation Concession.

1.    The mining exploitation application (also referred hereby as “Manifestación”) must indicate the following information:

a)    Name, nationality and domicile of the applicant, and, where appropriate, also those of the person or company who is being represented. In the case of natural persons, the profession or occupation and marital status shall also be indicated;

b)    The location of the point of interest of the requested area, indicating the province where it is located and its geographic coordinates or U.T.M. coordinates with precision of seconds (indicating the degrees, minutes and seconds, both of its southern latitude and its west longitude) or ten meters (indicating kilometers and hundredth of kilometers that correspond in north direction and in east direction), respectively;

c)    The number of mining exploitation concessions requested, and the name given to each one of them;

d)    The surface, expressed in hectares, of the upper face of each mining exploitation concession requested, considering the total area may not exceed 1.000 hectares; and,

e)    If applicable, the circumstance of being exercising the preferential right given to the holder of a previously granted mining exploration concession within the same area. By means of exercising the preferential right the law assumes that the Manifestación has been submitted on the date that the preexisting mining exploration application has been filed.

 

2.    The civil court´s secretary will place in the Manifestación the date it was filed, shall take note in a numbered record that will take effect and will give receipt to the applicant, if requested.

3.    If the Manifestación does not comply with the provisions mentioned in N°1 above the judge will order to correct them within 8 days, prevailing for all the legal effects the date of the initial presentation.

4.    However, if the Manifestación fails to indicate the coordinates of the point of interest the judge shall order to have the respective presentation not made. In this regard, the inaccuracy incurred when indicating the coordinates of the midpoint of interest will not be remedied in any case.

5.    The judge will examine the Manifestación and, if it complies with all necessary information, will order its registration in the Discovery Registry kept by the corresponding Mine Registrar and its publication in the Official Mining Bulletin within 30 days of the date of the judicial resolution that ordered so.

6.    From the moment of the registration of the Manifestación in the Discovery Registry kept by the corresponding Mine Registrar the applicant is entitled to carry out all the necessary work to recognize the mine and to constitute the mining property.

7.    Within 200 to 220 days after the Manifestación was filed before Court, the applicant is forced to submit the survey request. The application may cover all or part of the area requested in the Manifestación, but, in no case be outside of this area. The request must also indicate the coordinates U.T.M. of each vertex of the perimeter of the top side of every mining exploitation concession, relating all of them, in course and distance measurement, with the point of interest indicated in the Manifestación. In addition, the application needs to appoint the technical expert for the survey operation.

The survey request shall be accompanied by the following documents:

a)    Receipt of having paid the rate (tasa);

b)    Receipt of having paid the yearly license (patente anual);

c)    Authorized copy of the registration of the Manifestación in the Discovery Registry kept by the corresponding Mine Registrar;

d)    Copy of the Official Mining Bulletin where the registration of the Manifestación was published, and

e)    A map of all mining exploitation concession requested, the coordinates of each one of the vertexes of the perimeter and the relation, in course and distance measurement, between each vertex and the point of interest indicated in the Manifestación.

Please note that the holder of a mining exploitation concession is forced to pay a yearly license subject to lose its right by means of an auction process. This yearly task is called the duty of protection (amparo). The duty of protection begins when the survey request is made. The amount of the first yearly license shall be proportional to the time between the date of the survey request and the last day of the following month of February.

 

8.    The judge will examine the survey request and the attached documents, and finding all in accordance, will order to publish it in the Official Mining Bulletin. If the judge notice lack of information susceptible of being corrected, will order so within 8 days. The publication will include the entire authorized copy of the survey request and shall be made only once, within 30 days of the date of the resolution that ordered so.

9.    Opposition by third parties against the survey request may be filed within 30 days following the date of the publication. There are two kind of opposition claims:

a)    Compulsory oppositions.

i. Shall be filed by the holder of a Pedimento or by the holder of a mining exploration concession whose Pedimento was submitted prior to the date of the Manifestación that gave rise to the survey request which is intended to oppose.

ii. Shall be filed by virtue of the preferential right to file the survey request granted to the holder of a Manifestación which has been submitted prior to the date of the Manifestación that gave rise to the survey request which is intended to oppose.

b)    Facultative opposition.

Shall be filed by virtue of the preferential right to file the survey request granted to the holder of a Manifestación which has been submitted prior to the date of the Manifestación that gave rise to the survey request which is intended to oppose only if the survey request filed by the third party has been presented after the one presented by the claimant.

 

10.  The judge will examine the survey request of the opponent and all the attached documentation, and finding both agree, shall order to publish it within 30 days.

11.  All oppositions shall be processed according to the summary proceeding (procedimiento sumario). The final decision that resolves the opposition may be subject to appeal.

12.  The survey operation shall be performed once the period for filing an opposition has expired, otherwise, must be executed after a final ruling regarding the opposition has been made.

13.  The survey operation shall consist of identifying, on the field, all vertex of the upper face of each mining exploitation concession requested. Once the survey operation is finished, the survey expert shall issue minutes which must contain a precise, clear and detailed record of the performed activity and an explanation on how the U.T.M coordinates of each one of the vertex were fixed. In addition, the technical expert is also forced to submit a map of the surveyed mining exploitation concessions with an indication of every vertex in U.T.M coordinates.

14.  Within a period of 15 months from the date the Manifestación was filed the applicant shall submit 3 copies of the minutes and the map prepared by the technical expert.

15.  The minutes and the map shall be forwarded by the judge to the Service for its report. The Service shall inform within 60 days about the technical aspects related to the survey operation, especially, regarding the shape, dimensions and orientation of the upper face of each mining exploitation concession.

16.  If the report of the Service does not contain objections, the judge shall issue a judgment granting the mining exploitation concession. On the other hand, if the report contains objections regarding the technical aspects mentioned above, the applicant shall be entitled to file counterarguments within 8 days, or to rectify the information within 60 days. Once the objections are contradicted or rectified, the judge shall proceed resending the file to the Service. Once received, the judge shall grant the mining exploitation concessions or reject the request based on the report´s results, while ordering the cancellation of the Manifestación´s registration in the Discovery Registry kept by the corresponding Mine Registrar.

17.  Once a favorable sentence has been issued, the applicant must within a period of 120 days:

a)    Publish an abstract of the sentence in the Official Mining Bulletin; and

b)    Register the authorized copy of the sentence and the survey minute in the Property Registry kept by the corresponding Mine Registrar. 

Once completed these two final procedures the applicant becomes the holder of a mining exploitation concession.