on the advancing of arguments...Could you please, ever so carefully, advance a counter-argument to the following:
> My opinion has been requested regarding the legal status of the Cristina 4 & 6
concessions originally granted through denouncement to Dot Culver de Lemon, for the
exploration and exploitation of alluvial deposits located in the "Municipio Roscio", in
the State of Bolivar in the Republic of Venezuela. I have also examined the legality of
the rights which Placer Dome claims to own, the history of the case and the decisions
of the Supreme Court of Justice of Venezuela dated May 9, 1991 and October 16,
1996. I have also analysed the agreement between the CVG and Inversora Mael in
July 1991 and the pronouncements that the Supreme Court of Justice has made about
that agreement in its decision of October 1996 and have examined the contracts
between the CVG and Placer Dome. I am of the opinion that:
1. The mining rights over the deposits of the Cristina 4 & 6 concessions belong
Inversora Mael, C.A. since, according to a decision of the Political Administrative Hall
of the Supreme Court of Justice dated May 9, 1991, "The acquisition of such
concessions by Inversora Mael is valid since May 16, 1986". This decision was ratified
in the decision of October 16, 1996, and must be recognized by the Ministry of Energy
and Mines as it was ordered to publish notification of the transfer of the concessions.
2. The Decision dated October 16, 1996 of the Political Administrative Hall of the
Supreme Court of Justice states that it is mandatory for the Ministry of Energy and
Mines to recognize the transfer that Ramon Torres made to Inversora Mael on May
16, 1986 of the Cristina 4 & 6 Concessions, since such transfer is valid, effective, and
legitimite as of the date of its notification to the Ministry of Energy and Mines on May
16, 1986.
3. Based on the foregoing judicial decision regarding the validity of the acquisition of
the Cristina 4 & 6, the resolution of February 7, 1989 extinguishing the Cristina 4
concession and denying its renewal and the resolution of March 9, 1989 extinguishing
the Cristina 6 are an absolute nullity as they do not recognize rights legitimitely acquired
by Inversora Mael which are expressly acknowledgeed in such judicial decisions.
4. The two decisions dated May 9, 1991 and October 16, 1996 of the Supreme
Court of Justice are final due to the fact they are decisions issued by the highest court
in the country. These decisions recognize the validity of the transfer of the Cristina 4 &
6 concessions from Dot Cuvler de Lemon to Ramon Torres on April 16, 1986 and
from Torres to Inversora Mael on May 16, 1986 and the Ministry of Energy and
Mines has been ordered to so recognize it by publishing the relevant transfer notice.
5. The legal consequence of the above-mentioned decisions is that the resolution
denying the renewal of the Cristina 4 concession and extinguishing the Cristina 4
concession and the resolution extinguishing the Cristina 6 concession issued by the
Ministry of Energy and Mines are open to be declared null and void by the
above-mentioned Court decisions, for not recognizing mining property right acquired
by Inversora Mael as of 1986. As a result, Mael is entitled to refute the resolutions
extinguishing both concessions and to oppose, refute and question the legality of the
granting of any rights over the same areas in favour of C.V.G., and Mael is also entitled
to ignore the agreements that the CVG entered into with third parties with respect to
such deposits on the grounds that the rights granted by the Ministry of Energy and
Mines to the CVG are open to be declared null and void by the retroactive effects of
the judicial decisions mentioned before.
6. The rights of Placer Dome de Venezuela C.A. over the areas where the Cristinas 4
& 6 are located are based in contracts with the CVG, the legality and legitimacy of
which is questionable because they ignore rights acquired by Inversora Mael in 1986,
which rights the Supreme Court of Justice declared must be recognized by the Ministry
of Energy and Mines. As a consequence, the assignment of areas granted to CVG and
the agreements assigned to MINCA over the same areas are an absolute nullity for
violating the third party rights of Inversora Mael.
7. Inversora Mael is entitled to require that Republic, the CVG, Placer Dome and any
third party recognize its mining rights since 1986 and is entitled to request a declaration
of the nullity of the resolution rejecting the renewal of the Cristina 4 concession, the
resolution extinguishing the Cristina 4 concession and the resolution extinguishing the
Cristina 6 concession of the Ministry of Energy and Mines, since these decisions are
absolutely null, due to the recognition made by the Supreme Court with respect to the
mining rights acquired by Inversora Mael over these concessions. Likewise, Inversora
Mael can request the nullity of the assignments granted to CVG over such deposits and
the agreements assignment by CVG to MINCA because such mining rights are owned
by Mael.
8. Furthermore, due to the absolute nullity of the resolutions denying the renewal of the
Cristina 4 concession and extinguishing the Cristina 4 concession and the resolution
extinguishing the Cristina 6 concession, and also the absolute nullity of the assignment
to CVG, the Ministry of Energy and Mines, based on the capacity that the Public
Adminstration has, can declare at any time the absolute nullity of the acts declared by it
as set forth in article 83 of the Administrative Procedures Organic Law.
9. Any new mining legislation referring to the actual concessions or to the contracts
granted by CVG or the conversion of these contracts into concessions does not affect
the rights of Inversora Mael as the owner of the Cristina 4 & 6 concessions because
such new legislation cannot be retroactive and because of the rights acquired by Mael
that have been declared and recognized by final decisions of the Supreme Court of
Justice. Those decisions bind the Ministry of Energy and Mines, the CVG, Placer
Dome de Venezuela, C.A. and any third party.
10. In summary, Placer Dome de Venezuela C.A.'s rights are derived from contracts
with the CVG over the concessions that are affected by the decisions of the Supreme
Court of Justice previously mentioned that declare the existence and the validity of the
mining rights in favour of Inversora Mael since the date of their respective transfers.
These assignments and contracts of CVG are null since their grantingor execution
because of the retroactive effects of the Supreme Court decisions that recognized the
validity of the acquisition of the Cristinas 4 & 6 concessions by Inversora Mael.
11. The agreement between CVG and Inversora Mael on July 1991 had the intention
of establishing the basis for a future negotiation that never took place. Thus, the
waivers that Inversora Mael made with respect to its rights were not perfected because
the mentioned negotiation did not take place and this was a condition precedent agreed
to between the parties.
12. Finally there is no doubt that the pronouncement of the Court contained in its May
9, 1991 decision that "There are not any reasons to consider invalid the acquisition of
the Mining Concessions by Inversora Mael" implies the recognition of Mael's property
rights over those concessions in a way that suggests ignoring those rights constitutes a
violation of the protection of property rights provided for in article 99 of the National
Constitution.<
>> Signed Dr. Roman J. Duque Corredor<<
Thanks in advance, Moot. We all await anxiously your pedantry, replete with careful distinctions and careful arguments. |
