1.3 LEGAL FEATURES OF ALL MINING CONCESSIONS
THEY ARE ORDAINED BY JUDICIAL RESOLUTION
They are created by a resolution of the ordinary courts of justice in a non-contentious judicial proceeding without the intervention of any other authority or person. In this aspect, concessions depart from the common system of administrative ones.
THEY ARE ABSOLUTE RIGHTS
They are real rights (immovable rights) by nature and specific legal provisions. These real rights are absolute, both because they can be opposed "erga omnes" (including the State) and because the powers granted are exclusive. Their subject matter is comprised of all mineral substances that can be given in concession.
THEY ARE DIFFERENT FROM OWNERSHIP OF THE SURFACE
They are immovable rights, but different and separate from ownership of the surface land they encompass. This is so even in the event that the land and the concession are owned by the same person.
THEY ARE RULED BY GENERAL PROPERTY LAW
They are ruled by the same laws applicable to other immovable property, unless such laws express something against the provisions of the mining law.
THEY CAN BE AFFECTED BY DERELICTION
They are conditional because they are exposed to forfeiture in favor of a third party, and even to extinction, if a negative resolutory condition is met: dereliction.
THEY ARE DIVISIBLE
They are divisible, both physically as well as intellectually, and cannot be attached as a general rule.
THEY ARE OPEN TO EVERY PERSON
They may be requested and acquired in any way by any individual or corporate body.
THEY CAN BE THE SUBJECT-MATTER OF CONTRACTS
They are transferable, transmissible and can be subjected to mortgage and other real rights and in general to any act or contract compatible with their legal nature.
THERE EXISTS A TERRITORIAL REGISTRATION SYSTEM
They are subject to a specially designed regime of territorial registration based on the same principles governing the general registration of real property.
THEY CAN BE BENEFITED BY EASEMENTS
The surface tenements are subjected to several easements (rights of way, occupation, water supply, power supply, and so forth) if necessary to help suitable and appropriate exploration and exploitation of the mining concession concerned.
The same easements can be commanded for the advantage of processing plants.
Such burden are set by mutual arrangement or in the absence thereof by a Court resolution, including compensation for damages caused to the servient tenement.
THEY ARE CONSTITUTIONALLY PROTECTED
The Constitution safeguards this right by guarantying that nobody can be dispossessed of his property nor of any of the goods to which the ownership applies, nor of any of the essential qualities of ownership.
Exception: a general or specific law that authorizes the expropriation.
Justification: in favor of a cause of public utility or of national interest duly rated by the legislator.
In case an act of expropriation takes place, the injured party is entitled to submit a claim before the courts of justice in order to be duly compensated.
The concessionaire should be compensated for the "patrimonial damage" he has suffered, which consists in the commercial value of its faculty to initiate and continues the extraction and ownership of the substances which are subject of the concession.
1.3.1 PROCEDURE FOR ESTABLISHING CONCESSIONS
The procedure for establishing mining concessions has as core principle that preference to obtain it is granted to the first petitioner to the local ordinary court. The application, weather for exploration or for exploitation, is submitted to the ordinary civil judge of the place where the middle-point of the land applied for is located. The location of such middle-points should be given in coordinates. The land applied for should have the shape of a square or rectangle, at the applicant's preference, but always drawn in imaginary lines around the middle-point. Each application for exploration may cover up to 1,000 hectares. Certainly, no concession may be granted on territories situated beyond the line of demarcation of the land covered in the application. However, the same petitioner is admitted to submit, either concurrently or subsequently, other applications over immediate or nearby land, without limitation.
The granting of a concession of exploration requires a technical report evacuated by the National Geology and Mining Bureau. The procedure takes between five to six months and it does not requires a survey.
The granting of a concession for exploitation does requires surveying and marking. The operation is performed using UTM coordinates to fix the position on the land. To prevent the applicant from damaging third parties that may have a better right, the law contemplates an effective method of publications that allow the general public to follow each application step by step. The procedure of application takes about fifteen months to be fully processed. The reasons that justify this long period to process the application are the commitment to protect the rights of third parties and the physical difficulties of the surveying operations in the mountains in the period from May to September. For this concession it is also requires a technical report evacuated by the National Geology and Mining Bureau.
It is not acceptable that one mining concession overlaps another one. Therefore, in the event that this occurs, the Mining Code has a sum of actions allowing the concerned party to object the granting or the exercise of the new concession, or to demand judicially annulment of the judgment whereby the second concession was granted.
The holder of a concession for exploration must pay an annual license fee equivalent to about US $0.85 per hectare. The holder of a concession for exploitation must pay an annual license fee equivalent to about US $4.30 per hectare. This license fee for a concession of exploitation could be credited to income taxes originated in the concession, provided it is currently under exploitation.
1.3.2 PROTECTION OF MINING CONCESSIONS
The system has as a general principle the idea that prospecting and exploration should be encouraged and also that it should be protected the stability of mining rights.
The holder's right of ownership regarding his mining concession is protected by the constitutional guarantee of the right to property. Specifically, the ownership of property rights over mining concessions is granted to every person which meets the qualifying factors established in the Mining Code and which requests to become a mining concessionaire. The Constitution safeguards this right by guarantying that nobody can be dispossessed of his property nor of any of the goods to which the ownership applies, nor of any of the essential qualities of ownership unless a general or specific law authorizes the expropriation on favor of a cause of public utility or of national interest duly rated by the legislator. In case an act of expropriation takes place, the injured party is entitled to submit a claim before the courts of justice in order to be duly compensated. Any mining concession given in conformity with the standing legislation obliges the owner to take every necessary step which may satisfy the public interest, which justified the grant of the concession.
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