Environmental Engineering Reference
In-Depth Information
7.4.3 A comparative analysis of legislations and legal decisions
TheMining Code of 1997 is based on the liberal model of the Supreme Decree 21060 of
1985. The decree not only eliminated the smelting monopoly and installed free trade
and exports of minerals, but also liberalised prices and labour recruitment (OBIE
2008: 3). In 1986, the Supreme Decree 21298 further eliminated the federal mining
areas that extended to almost 80%of the entire Bolivian territory, whichwere supposed
to be exploited by the CorporaciónMinera de Bolivia (COMIBOL). Hence a significant
reduction of the size of COMIBOL began to take place, and during the early 1990s
COMIBOL was limited to the administration of joint venture contracts. In 1993, all
properties of COMIBOL were tendered and its concessions were assigned to the private
sector. As a result, the state-driven mining activity was reduced to a minimum and the
period of mining concessions began (OBIE 2008: 3).
7.4.4 Mines, ownership and the role of the state
The Mining Code of 1997, which established the concession regime, defines the orig-
inal domain of the State as all minerals in their natural state, regardless of origin and
form, whether under or above ground. The code positions the state as the direct and
sole owner of all minerals that exist within the Bolivian territory, with the exclusive
faculty of alienation. Through alienation, the state sells or leases the right of man-
agement, exclusion, or both. Hence the state still enjoys the rights of alienation, but
no longer retains control over the rights of access and withdrawal, management, and
exclusion (Bolivia. Ministerio de Minería y Metalurgia. Código de Minería, 1997:
Art. 1).
According to the law, the State, through the Executive, will grant mining conces-
sions to individual or collective entities, national or foreign, that request these from
the Superintendent of Mines (Bolivia. Ministerio de Minería y Metalurgia. Código de
Minería, 1997: Art. 2). Article 4 defines mining concession as a property right dif-
ferent from the ownership of the land on which it is constituted. Furthermore, it is a
property that can be transferred by inheritance. According to the present law, it can
be drawn on mortgage and be subject to any type of contract. Article 10 entitles the
mining concession's holder to the real and exclusive right for an indefinite period to the
prospecting, exploring, extracting, concentrating, smelting, refining and marketing of
all mineral substances that are within the territory, including clearing, slag, tailings
and mine waste, or any other metal under the condition of the payment of dues.
According to these articles, the state formally sells or leases only the right of
management, exclusion, or both, and thus property rights. However, it is possible to
argue that due to the extension of these exclusive property rights, the Code actually
provides the concession holder the title of owner of the concession parcel and all the
minerals it contains. This right is guaranteed indefinitely as long as the dues are paid
in accordance with the law. This means that the state holds full de jure ownership of
all minerals within the country until it grants a mining concession, after which the
holder of the concession obtains the de facto ownership of the resource and also the
proportional capacity of fiscal capturing.
After almost 10 years of legal validity, the Mining Code of 1997 underwent three
major adjustments that redefined the type of management for the mining sector. As part
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