Alvaro Vives Martens, attorney, in conventional representation of Mr. Felipe Ossa Guzman and Claro & Co … C 1036-2021, to this Court I respectfully state:
Within the deadline and in accordance with the provisions of Article 348 of the Code of Civil Procedure, I respectively solicit the Court to receive for submission, with citation, a copy of History of Law No. 18248 (Mining Code) published by the Library of the Honorable National Congress.
In the resolution of July 8, 2022 (Folio 93) that received the case to evidence (the “Interlocutory of Evidence”) in this trial, the following was established as a pertinent, substantial and controversial fact:
“3. Truthfulness that Mr. Felipe Ossa Guzman incurred a falsehood about the following points in his affidavit of May 31, 2017: (c) the fact that a mining claim, by itself, does not confer any right of exploitation or exploration to the applicant”.
The History of the Law proves in an undoubted way: (i) on the one hand, that Mr. Felipe Oss Guzman did not commit any falsehood when signing his affidavit of May 31, 2017; and (ii) on the other hand, that the plaintiff’s interpretation of national law on this point is contrary to the law.
- Mining claims referred to in the Affidavit
The Affidavit referred to the state in which, as of May 31, 2017, the judicial proceedings related to the Amarillos Norte and Amarillos Sur mining claims presented by Mr. Jorge Lopehandia in 2011 before the 1
st Civil Court of Vallenar were found.
The Affidavit explains that none of the claims presented resulted in mining concessions for exploration or exploitation; and, consequently, that Mr. Jorge Lopehandia Cortes never had exploration or exploitation rights over the area covered by these claims. To justify this conclusion, Mr. Felipe Ossa Guzman explained, broadly speaking, the judicial procedure for obtaining concessions and emphasized that, according to the Mining Code, a mining claim, by itself, does not confer any right of exploration and exploitation.
In his lawsuit, Mr. Jorge Lopehandia Cortes affirmed that Mr. Felipe Ossa Guzman would have committed a falsehood by indicating that the mining claims do not confer exploration or exploitation rights. The plaintiff bases his claim on the fact that the mining claims would confer “certain rights” of exploration and/or exploitation. In his reply, the plaintiff also made a disorderly presentation of these alleged rights.
However, contrary to the plaintiff’s allegations, Mr. Felipe Ossa Guzman stated the truth regarding: (i) the applicable legal procedure for obtaining a mining concessions; and (ii) that the exploration and exploitation rights do not emanate from a registered mining claim, but from the respective mining concessions.
- Legal procedure applicable to obtain a mining concession
As this Court is well aware, mining concessions (whether exploitation or exploration) are constituted by judicial decision and anyone can request one. The judicial procedure designed for this purpose is not contentious, unless there are substantial third-party oppositions. Whatever the cause, the procedure to obtain an exploration concession begins voluntarily by submitting a mining brief. In simple terms, this procedure involves the followed steps or stages:
- Presentation of the mining petition: the constitution procedure begins with the presentation of a brief which, for the concession of exploration, is called a petition.
- Formal examination of the mining petition document: the court must examine whether the petition meets the legal requirements. In the case of fulfilling them, it orders their registration in the Registry of Discoveries of the Conservator of Mines and publication in the Official Mining Gazette. Otherwise, the applicant must correct them, his petition is considered not accepted.
- Payment of the petition fee: In parallel, the interested party must pay the petition fee and submit the proof of payment to the procedure.
- Publication and registration of the claim: within a period of 30 days from the resolution that orders it (ii) the interested party must proceed to the registration in the Registry of Discoveries of the Conservator of Mines and the publication in the Official Mining Gazette of the resolution ordering them.
- Request for survey: After the mining claims are registered and published, the interested party must request a survey of all or part of the land claimed. The request must accompany a series of documents. The omission of any of these documents, or presentation of them without the legal requirements, will cause the court to declare the expiration of rights of the claim and order the cancellation of the registration of the claim. If the application and submitted documents meet the legal requirements, it will be ordered to publish and then proceed to the survey.
- Opposition of third parties and survey: once the request for survey has been published, the deadline for interested third parties to oppose begins to run. The act of survey can only be carried out if, once the legal deadlines have expired, there is no opposition, or since the judgment is signed that (A) rejects all oppositions; or (B) specifies the specific persons who have the right to survey.
- Record of the survey and plan: after the survey has been completed, the expert in charge must draw up a record and plan. The applicant must accompany the record of survey and the plan of survey (in 3 copies: original with 2 copies) within 15 months of the presentation of the petition.
- SERNAGEOMIN report: The judge will send the record and plan to SERNAGEOMIN for study. If the SERNAGEOMIN report is favorable, the judgment will be issued for the mining concession for exploration. Otherwise, the interested party will be sent to make his corresponding observations.
If the applicant does not remedy such defects or if legitimated third parties oppose the constitution of the concessions and their opposition claims are accepted, the judge must declare the rights of the interested party extinct and order the cancellation of the registration of the claim.
- Constitutive judgment and registration of the concessions: Finally, the constitutive judgment must be published by the interested party in the Official Mining Gazette, presented to SERNAGEOMIN and then registered in the Registry of Property of the corresponding Conservator of Mines.
- Effects of the constitutive judgment and its subsequent registration in the Property Registry of the Conservator of Mines: the constitutive judgment of the mining exploration concession grants its titleholder ownership over it and its subsequent registration submits it to the regimen of registered possession.
Therefore, in accordance with our mining legislation, it is not the same: (A) the mining claim registered in the Registry of Discoveries; that (B) the mining exploration concession registered in the Property Registry, both of the competent Conservator of Mines. The registration of a claim in the Registry of Discoveries must be carried out once the judicial presentation that begins the procedure for the constitution of a mining concession for exploration is declared admissible and, therefore, only requires that the formal requirements are met and the documents required by the Mining Code are submitted. For its part, the registration of a mining exploration concession in the Property Registry accounts for the favorable conclusion to the interested party of the judicial procedure applicable to its constitution and submits it to the registered property regimen. The Amarillos Norte and Amarillos Sur Mining claims to which the Affidavit referred never became more than mere mining claims.
Regarding this issue, Mr. Felipe Ossa Guzman indicated in his Affidavit that (i) anyone can request a mining claim; (ii) the petition must be registered with the competent Conservator of Mines and published in the Official Mining Gazette; (iii) SERNAGEOMIN conducts a study of the claim; (iv) in the absence of observations from SERNAGEOMIN, the claim results in a mining concession; (v) third parties may object to the claim; and (vi) the success of the process depends on the ability of the interested party to comply with a series of requirements and the lack of admissible oppositions to his petition. The Affidavit does not incur any error or falsehood in this regard.
(3) Exploration and exploitation rights emanate from registered mining concessions, the mere registration of a mining claim not being sufficient
In the Affidavit, Mr. Felipe Ossa Guzman indicated that a mining claim, by itself, does not confer any right of exploration or exploitation. At this point, the Affidavit is limited to stating what is established in Article 107 of the Mining Code:
“The owner of record shall be empowered to engage in works required for exploring or, where appropriate, exploiting the mine, according to the type of concession involved, after the concession has been established.” In accordance with Article 19 of the Civil Code and national doctrine, the reliable history of the establishment of a provision constitutes a key element of interpretation in attributing its correct meaning to it. The History of the Law clearly demonstrates that the titleholder of a mining claim that has not given rise to an exploration concession has no right of exploitation or exploration. The legislature explains the wording of Article 107 of the Mining Code as follows:
“Article 107 of the bill, consistent with the first section of Article 7 of the Constitutional Organic Law #18097, gives both classes of concessionaires the power to carry out exploration work, the owner of the property, the power to exploit; these powers can be exercised as soon as the concession is constituted. Although this rule is implicit in the current Code, it is desirable that it be expressly enunciated, because it could be understood that without this norm, they could be exploited just by registering a claim”
“ARTICLE 107. It recognizes the right of the mining concessionaire to do the work necessary for exploration, and, if any, exploitation of the mine only from the constitution of the concession”.
The wording of Article 107 of the Mining Code had, as an expressly declared purpose, to prevent the interpretation that Mr. Jorge Lopehandia now uses was permissible (“it is desirable that it be expressly enunciated, because it could be understood that without this norm, they could be exploited just by registering a claim”). National doctrine postulates the same thing.
In summary, Article 107 of the Mining Code – interpreted according to the reliable history of its establishment – clearly endorses the position of this party: Mr. Felipe Ossa did not commit a falsehood in his affidavit on May 31, 2017 by maintaining that a mining claim, by itself, does not confer any right of exploration or exploitation.
THEREFORE,
I respectfully request the Court: to bear in mind the above and accept the submitted History of Law #18248 (Mining Code) published by the Library of the Honorable National Congress, with citation.