Changes to treatment of confidentiality of mining proceedings | Administrative Resolution No.1/2019

On January 31, 2019, Administrative Resolution No. 1 of the National Mining Agency was published, bringing significant changes to Articles 26 through 30 of the Normative Consolidation for Mining (Ordinance 155/2016) regarding the confidentiality treatment of the mining proceedings.

Prior to the changes, as of the granting of mining titles (Exploitation Permit, Development Consent, License Registration and Small Scale Mining Permit) mining proceedings, as well as the Kimberley Process and collection procedures, were confidential under the terms of the previous legislation.

Upon publication of the new rule, except for certain specific documents listed below, mining proceedings will no longer be treated as confidential.

Mining proceedings whose titles were already granted by the date of publication of the Administrative Resolution will remain confidential until April 04, 2019.  After such date, the following rules will become applicable:

a) Confidential documents regardless of Miner’s formal request:

• Kimberley Process Certification Proceeding; and
• Financial Compensation for the Exploration of Mineral Resources (CFEM) collection proceedings.

b) Documents whose confidentiality depends on prior request by the Miner:

• Final Research Report;
• Economic Exploitation Plan (PAE);
• Reserve Revaluation Report;
• Annual Development Report (“Relatório Anual de Lavra – RAL”); and
• Other documents containing industrial secrets or industrial strategic information, which could be used by other agents in the industry.

Based on the new regulation, the documents listed in Item B can be treated as confidential only if the miner submits a formal request to the National Mining Agency (ANM), indicating the information that shall be kept inaccessible to third parties as well as the reason substantiating the request.

The reasons for the request will be analyzed by the ANM, which will then grant or deny the request for confidentiality, at its sole discretion.

All documents considered confidential under the terms of the new regulation will be kept apart from the rest of the mining proceeding, as an appendix, in order to ensure that third parties  cannot retrieve this information while accessing these proceedings.

The new regulation also establishes that the assignee of mining rights may have access to the confidential documents upon prior authorization of the titleholder.

The right to access the confidential information is granted, under the new rules, to the titleholder (the miner) and his attorney-in-fact or proxies.

Landowners may also have access to the RAL upon presentation of proof of ownership or regular occupation of the corresponding property.

The ANM´s Director, Superintendents and Regional Managers shall have the power to decide on third party requests for copies of the mining proceedings, depending on the location of the mining proceedings.

The Administrative Resolution came into force on the date of its publication.

Demarest’s Energy and Natural Resources team are available for any further clarification of this matter.