Property rights, nationalisation and extractive industries in Bolivia and Ecuador - Conflicts Over Natural Resources in the Global South - page 118

of the policy measures to increase the state's participation in hydrocarbon and mining
production, the adjustment of the Mining Code moved the legislation away from neo-
liberal precepts towards being more state-centered. Nevertheless, the regimes of these
natural resources significantly differ, mainly because a formal nationalisation process
took place in the hydrocarbon sector, while only a slight shift towards an increased
state participation took place in the mineral sector.
In 2006, the sentence of the Constitutional Court Act no. 0032, 2006 determined
that several articles of the Mining Code were unconstitutional as they were contrary
to the Bolivian Constitution of 1967 (reformed numerous times). This constitutes the
first significant adjustment. The mining legislation essentially recognised the mining
concession as a private property right in favor of the holder: the holder could have
indefinite ownership over the concession and register it as a credit guarantee, as well
as transmit the concession by inheritance. The sentence of the Constitutional Court,
however, declared this provision void as it contravenes the Constitution. Hence, the
sentence of the Constitutional Court strengthened the state's proprietor rights over the
subsoil and all of its content. The sentence indicated that the state was not allowed
to grant ownership of the subsoil by way of mining concessions (Moreno Baldivieso
2010). Additionally, the mining company Huanuni was reintegrated into the national
mining company COMIBOL in 2006, leading to a violent conflict in October of the
same year between the cooperative workers and the workers assimilated by the state
company 5 (Bolivia. Decreto Supremo 28901, 2006).
The second adjustment that significantly modified mining legislation came in 2007
with Supreme Decree No 29117. One year after the Sentence of the Constitutional
Court, this Supreme Decree declared the entire national territory as a federal mining
reserve, including metallic, non-metallic, precious stones, semi-precious stones, and
brines mineralogical resources. In the exercise of its right of ownership of the federal
mining reserve, the State was now capable of granting COMIBOL the jurisdiction and
authority for exploitation and management, with the exception of the pre-established
rights onmining areas granted previously in concession and those under the jurisdiction
of municipalities. As a consequence of this decree, granting of new mining concessions
was prohibited. Instead of granting concessions, the state proposed a mining regime
of shared production contracts and leases (Moreno Baldivieso 2010). The Supreme
Decree No 29459 of 2008 then defines the mining company Huanuni as a national
public and strategic company. Furthermore, the Supreme Decree No 861 of 2011
approved an increase of the miners' salaries in Huanuni, aiming to prevent the violent
conflict that took place in 2006 (Bolivia. Decreto Supremo 29459, 2008).
The third adjustment is of a more fundamental nature than the previous two, and
it refers to the further adjustments made through the Constitution of 2009. The latter
establishes that all natural resources, including hydrocarbons and minerals, are under
the direct, indivisible and perpetual ownership of the Bolivian population. The state,
on behalf of the Bolivian people, is in charge of their administration. However, the
Constitution recognises the participation of private operators in different stages of
the productive chain of the mining sector. This participation should no longer take
5 This was followed by the approval of Supreme Decree 29025 from 2007, which should be valid
for only 6 months and declared Huanuni as an emergency zone which should lead to special
political measures ( Decreto Supremo 29025, 2007).