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  • GDP, US$bn: 1,797.0
  • GDP per capita, US$: 8,653.9
  • Population, mn: 207.8
  • Inflation, CPI ave: 8.8
  • FX, LCY/US$: 3.5
  • Budget Balance, % of GDP: -9.0
  • Mining GVA, US$bn: 15.4
  • Mining Industry Value, US$bn: 78.4
Regulatory Risk Rating
55
0
100
Score: 55
Moderate Risk
Brazil offers a curious mix of comfort and caution for the miner. There is comfort in the perpetual right of ownership once a mining concession has been awarded, yet the discretion over the right to mine, the obligation to have financing in place on the concession application and the perpetual state influence over mining operations should be considered carefully before an investment is made or a mine decision is taken.

Corruption Potential Index

Score: 40
Very High Corruption Potential

Corruption Risk Index

Score: 74
Low Corruption Risk

Regulatory Risk Rating

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Mining Overview Commentary plus sign

BRAZIL - MINING REGULATION

 GENERAL

The Federative Republic of Brazil is a union of twenty-seven federal units (twenty-six states and one federal district). Brazil is the largest country in South America and the 5th largest in the world. It borders virtually all of the other South American counties, except Ecuador and Chile, physically dominating the continent from the center to the north and east and has the visual appearance of pushing its smaller neighbours towards the Pacific Ocean. It is the only Portuguese speaking country in Latin America and, in relation to Portugal, shares a somewhat similar status to that of the United State of America where the colonized have become larger, stronger and more successful than the colonizer itself. According to World Bank statistics Brazil has the 7th largest economy in the world by GDP, the largest in South America.

Brazil is geographically and geologically diverse and also encompasses a number of oceanic archipelagos, such as Fernando de Noronha, Rocas Atoll, Saint Peter and Paul Rocks, Trindade and Martim Vaz. The country has some extremely rich mineral deposits and is a major world producer of iron ore, bauxite, kaolin, niobium and gemstones. In the case of niobium and gemstones, Brazil produces the vast majority of the world's supply of these minerals. Gems include aquamarines, topazes, amethysts, tourmalines and emeralds. The country also produces coal, tin, manganese, aluminum, gold, copper, nickel, cobalt, diamonds, titanium minerals, fluorspar, potash, phosphate, zinc and lead.

 PRINCIPAL LEGISLATION AND REGULATOR

Pursuant to Article 176 of the Constitution, mineral deposits belong to the state and only the federal government has the authority to legislate in this area. The main legislation governing the resource sector includes the Brazilian Mining Code (Decree 227/1967), which is currently under review (as amended by Law 9314/1996); Law 7805 on gold mining and the Gold Mining Statute (Law 11685); and various ordinances. There are three government bodies in charge of the administration of the mining industry, namely, the National Department of Mineral Production (DNPM), which is responsible for granting exploration authorizations, the Ministry of Mines and Energy, which is responsible for the issuance of mining concessions, and the Secretariat of Geology and Mines, which is in charge of general mining policies and coordination.

 GRANT AND FORMS OF MINERAL TITLE

Minerals rights are granted by means of exploration permits and mining concessions, however, other minerals such as gravel, clay and stone, which are considered construction materials, are subject to other forms of licensing.

  • Aerial Survey Consent: Mining companies may carry out aerial prospecting activities for a period of 90 days and will have a priority right over the researched area (Art. 91).

 

  • Exploration Authorization (Autorização de Pesquisa): Exploration Licences are granted on a “first come, first served” basis, provided that the application concerns open land and a qualified Brazilian geologist has endorsed the proposed exploration plan and budget. In this respect, Brazil has found a means of screening applicants (those capable of engaging a geologist and outlining reasonable technical plans) without offending the principle of first come, first served. The authorization grants an exclusive right to explore over licenced land. An exploration authorization shall not be less than one year, nor more than three years, at the discretion of the DNPM; it may be extended once, at the discretion of the DNPM, if exploration completed to date justifies further exploration work. Upon completion of exploration work, the titleholder must submit to the DNPM a final report outlining the existence of any mineral deposits and, where applicable, a feasibility study justifying a mining concession. The maximum area of an exploration licence may vary from 50 hectares to 10,000 hectares, depending on the mineral to be explored and the area within Brazil where exploration will take place. The licence is granted in respect of particular minerals. Exploration licences may be transferred (in whole or in part) to Brazilian individuals and legal entities incorporated in Brazil, subject to the prior approval of the DNPM. The exploration authorization does not provide any assurance of a mining concession; rather, at the end of the exploration period the DNPM will consider the final report on work completed and decide to approve the report or dismiss the report. If the report is approved, the titleholder will have one year in which to apply for a mining concession.

 

  • Mining concessions (Concessão de Lavra): According to Article 38.1, only legal entities are allowed to request a mining concession. A mining concession is granted through an ordinance of the Ministry of Mines and Energy and confers the exclusive right to mine, as well as the right of ingress to and egress from the property, and rights over adjacent lands for mining operations. Mining concessions are valid until depletion of the mineral deposit. Mining concessions may be transferred to legal entities incorporated in Brazil, as long as the transferee demonstrates technical and financial capability to the DNPM. The transfer is subject to the approval of and registration by the DNPM. (It should be noted that special rules apply where the mineral deposit is located within 150 kilometres of the Brazilian border, particularly in terms of Brazilian majority ownership requirements.)

 

An artisanal authorisation is also available, provided the prior approval of the landowner has been obtained, where applicable (Art. 74). The permit is granted by the DNPM for five years that may be renewed (Art. 5, Law 7805/1989). Minerals that can be mined through such an authorisation include gold, diamonds and gems.

 DEVELOPMENT CONSIDERATIONS

An applicant for a mining concession must prepare a baseline study and submit to an environmental impact assessment process. This involves a three-stage process whereby terms of reference are approved and public consultation takes place, an installation licence is granted and finally an operation licence is granted. The holder of a mining concession must commence development within 180 days from the grant of the concession, subject to obtaining all required environmental licences and authorizations (Art. 47). Once commenced, development and mining activities cannot cease for more than six months without the prior approval of the DNPM. The DNPM must approve all mine plans and the operator must adhere to the plan. An annual plan must be filed in respect of production and other information.

No exploration or mining activities can be carried out without the payment of compensation to a landowner (Art. 62). Where agreement cannot be reached by the parties, either party may apply to the Court to have compensation determined. During mining, landowners are entitled to compensation based on a royalty (essentially a Net Smelter Returns royalty), which is also payable to the government. Royalty rates vary from 0.2% to 3%, depending on the mineral, and for landowners the rate is 50% of the government rate. For most minerals the rate is 2%.

 ENVIRONMENTAL REGULATION

 See Brazil – Environmental Regulation. 

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Environmental Overview Commentary plus sign

BRAZIL - ENVIRONMENTAL REGULATION

 GENERAL

The Federative Republic of Brazil is a union of twenty-seven federal units (twenty-six states and one federal district). Brazil is the largest country in South America and the 5th largest in the world. It borders virtually all of the other South American countries except Ecuador and Chile, physically dominating the continent from the center to the north and east and has the visual appearance of pushing its smaller neighbours toward the Pacific Ocean.

Brazil has numerous ecosystems, which together sustain some of the world's greatest biodiversity and it is recognised as one of the world’s megadiverse countries. Because of Brazil’s extreme economic and demographic growth, the country’s ability to protect its environmental habitats has increasingly come under scrutiny; deforestation is a major challenge for Brazil, particularly in the Amazon forest region, and the recent increase in production of soybeans (which are primarily exported to China) has been cited as a key factor in the reduction of the country’s natural areas. That said, in recent years the country has had considerable success in reducing deforestation and it is also recognised as a leading nation in global efforts to combat climate change. It is widely believed that Brazil has the highest number of both terrestrial vertebrates and invertebrates in the world and the country is home to numerous endangered species including the giant anteater, maned wolf and Brazilian three-banded armadillo. Alongside deforestation, other environmental challenges faced by the country include acid rain, water disposal and air pollution, all of which are believed to occur as a result of the urbanisation and industrial development taking place in and around the country’s cities.

 PRINCIPAL LEGISLATION AND REGULATOR

Pursuant to Article 225 of the Brazilian constitution, “All have the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations.” The Brazilian Environmental Law (6938-1981) was a major step forward for the country in terms of environmental protection and sustainability. The law brought together all aspects of environment regulation into one code, including water, forest and biodiversity, where the environment was defined as “the set of physical, chemical and/or biological conditions, laws, influences and interactions that facilitates, shelters and governs life in all of its forms.” Additionally, Brazil has a wide number of Resolutions from the National Environmental Council (CONAMA), such as Resolution n.009-1990 on Mining Activities Environmental Assessment; Resolution n.001-1986 on Environmental Impact Assessment; and Resolution n.237-1997, which improves and amends the Environmental Impact Assessment Process.

Brazilian environmental policy is executed at the federal, state and municipal levels of public administration. Coordinating and formulating policy is the responsibility of the Environmental Ministry and CONAMA is directly linked to this body. CONAMA’s responsibility is to establish the rules, standards and guidelines so that environmental licensing can be granted and controlled by the state and municipal environmental agencies. These agencies are part of the National Environmental System (SISNAMA) and the Brazilian Institute for the Environment and Renewable Resources (IBAMA). IBAMA is the government agency under the jurisdiction of the Environmental Ministry and is the agency responsible for executing the Brazilian Environmental Policy at the federal level. Each of the 26 states of Brazil has its own regulations and policies designed to implement federal law and some of these states are further divided into regions.

 EIA PROCESS

Pursuant to Resolution n.009-1990, exploration activities are subject to an environmental licence (Art.1). In the case of mining or beneficiation activities, except for artisanal mining, the titleholder must request the licence before the national authority or the IBAMA (Art. 2). The legislation differentiates among three types of licences:

  • Preliminary Licence: This is granted in a preliminary phase and approves the location and design of the project, as well as confirming environmental feasibility. It must be requested from the environmental agency, following the submission of an environmental impact report seeking an environmental impact assessment (EIA). This process is undertaken concurrent with the request for a mining concession. The environmental impact report involves the collection of baseline data following the submission of a conceptual mine plan. Baseline data collection is followed with a formal EIA request. An Environmental Impact Report (RIMA) is prepared which summarises the EIA in a language adequate for public communication and consultation. The EIA and RIMA are made available for public review and comment during the public hearings.

 

  • Installation Licence: This must be requested together with an Environmental Control Plan (ECP). This authorizes the installation and implementation of the mining project according to the specifications in the approved Environmental Control Plan. An Economic Development Plan (PAE) and the Environmental Control Plan (PCA) are prepared in parallel and approved by the National Department for Mineral Production (DNPM) and the local Environmental Agency, respectively. The Environmental Control Plan (PCA) is based on the Environmental Management System (SGA). These two plans are required for the Installation Licence. At this stage, a closure plan is made and submitted to the DNPM for approval.

 

  • Operation Licence: Once the ECP is approved and the Installation Licence is granted, the permit holder is entitled to request an Operation Licence, which authorizes the development of the mining operation. A renewal of the licence is granted after the submission of the Environmental Performance Report (RADA) and its evaluation by the environmental agency (SUPRAM NOR). During the operating phase of a project, an Annual Mining Report (RAL) is submitted for approval of the DNPM.

 

The titleholder may be requested by the national authority to complete or clarify documents within a period of four months after the request. The authority determines the period of validity of the licences, which shall not exceed five years in the case of Preliminary Licences, six months for Installation Licences and 10 years for Operation Licences. Pursuant to Article 17 of the Environmental Law, mining activities (annex VIII) are subject to an Environmental Control and Inspection Fee. In the closure phase, after the decommissioning is complete, a Conformity Certificate must be obtained from the environmental agency and DNPM.

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