Environmental Engineering Reference
In-Depth Information
place though concessions, but instead through the granting of mining rights or min-
ing contracts. In addition, it establishes that the granted mining contracts cannot be
transferred, are indivisible, and are not transferable by hereditary succession (Claure
Veizaga 2010). From these provisions, one can conclude that within the framework of
the 2009 Constitution, the holder of a mining contract is an authorised user with the
rights of access and withdrawal, as conceptualised by Schlager and Ostrom (1992).
Article 369 of the 2009 Constitution states that the state is responsible for all
minerals in the soil and subsoil, independent of their origin. The groups of nation-
alised miners, their industrial plants and complexes, and their smelteries belong to the
patrimony of the people; they cannot be transferred or ascribed to property of private
companies (ibidem: Art. 372).
In summary, whereas the Mining Code from 1997 defined the state's rights of
alienation, but not the rights of management, exclusion, and access and withdrawal,
three major adjustments have since redefined the type of management for the mining
sector towards a more state-centered regime, re-strengthening the state's proprietor
rights of the subsoil and all of its content. First, the sentence of the Constitutional
Court Act no. 0032, 2006 prohibited the sale and transfer of ownership by concessions.
Second, the Supreme Decree No 29117 of 2007 declared the entire national territory as
a federal mining reserve and eliminated the regime of concessions, proposing a mining
regime of shared production contracts and leases. Third and finally, the framework
of the 2009 Constitution defined the ownership of all subsoil resources as that of the
people, and the holder of a mining contract only as an authorised user with the rights
of access and withdrawal in accordance with Schlager and Ostrom's framework.
These adjustments in the mining regulation and in the property rights regime evince
a shift from a more liberal to a more state-centered model, though this shift is much
slighter than in the hydrocarbon sector where formal nationalisation took pace. The
shift was made possible by the context of intense social and political contentions and
mobilisations, related to natural resources in general, and the strong demand artic-
ulated in social mobilisations to establish national sovereignty over strategic natural
resources. Social and especially indigenous movements demanded further societal and
state rights over the natural resources as part of a specific political project. This shift
was finally possible as part of the socially demanded democratisation process towards
a plurinational state.
7.5 ECUADOR
Modern mining has a much briefer history in the Ecuadorian context. Most of the
extraction in recent decades has been carried out by small, often informal entities
operating with varying degrees of legality. Following the World Bank's policy advice
Ecuador joined the other Latin American countries in reforming their mining codes
in order to encourage foreign investment in the sector in August of 2000 (De Echave
2007). The principal objective of the new approach was to make the mining sector
more attractive for multinational companies seeking to explore and exploit mineral
resources. To that effect, the mining law included a number of provisions to relax
regulation and reduce taxation (De Echave 2007).
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