Bearing Lithium Corp (BRZ)

[Dr_Vonschellan]

Dear_BYD &_Warren Buffet,_open the_champagne, frivolous_lawsuit against_LCE export
quota licenses (two licenses at 80,000mt each) is tossed out of the appellate court using the Tom Brady "hurry-up 2-minute offense" timeline https://investorshub.advfn.com/boards/read_msg.aspx?message_id=167983057 we previously suggested
Click here for court announcement in Spanish
Click here for court announcement in English

Click here for full legal decision in Spanish
Scroll down in this post herein for rough English translation

This is (or indeed could certainly be) the best fantastic news for NewCo/MSB-SpA in the last 4 years if somehow we can now get a competent intelligent negotiator (note: keep that fockhead beaner Crystalballs out of the room) from our side to now properly quickly "interface" with BYD & Warren Buffet to sign a new Joint Venture along the lines we outlined here on iHub this past January 19 https://investorshub.advfn.com/boards/read_msg.aspx?message_id=167563293

If we can sign with BYD before March 11 then we will hit the big time and nothing will stop us.

The Doctor

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English translation of the appellate court decision follows:

Antofagasta, on March 2, 2022

To wit:
The appearance of Gabriel Muñoz Muñoz, lawyer, who, on behalf of the Atacameña Community of Coyo, represented in turn by Lady Lourdez Sandon Orellana, both domiciled at Avenida Tulor s/n in San Pedro de Atacama, filed an appeal for protection against the Ministry of Mining, represented by Juan Jobet Eluchans and of the President of the Republic, Sebastián Piñera Echeñique, requesting that a process of indigenous consultation, in accordance with article 6 a) of the ILO Convention 69, ordering the immediate and without more paperwork in the process of awarding contracts for exploration, exploitation and commercialization of metallic lithium marketable, carried out by the Ministry of Mining, with costs.

The respondents informed, requesting the rejection Of action. Put the cause in state, the court was brought to pronounce sentence.

WITH THE RELATED AND CONSIDERING:

FIRST: That the resource is based on the existence of an illegal and arbitrary action, consisting of the award of contracts for exploration, exploitation and marketing of two installments of 80,000 tons of lithium tradable cash each, to BYD Chile SpA and Servicios y Operación Mineras del Norte S.A., omitting the process of indigenous consultation regarding the communities that may be affected by the execution of the exploitation mining. The above, violating the guarantees constitutional provisions contained in article 19 No. 2, 8 and 24 and the principle of legality enshrined in the Constitution Policy of the Republic, in addition to ILO Convention 169, Law No. 19,253 that establishes rules on Protection, Promotion and Development of Indigenous Peoples and Decree No. 66 of Ministry of Social Development, which approves the Regulation that Regulates the Indigenous Consultation Procedure.

In the first place, he stated that the appellant is an indigenous community constituted in accordance with the Law N°19,253, made up of approximately 150 inhabitants of the ayluu of Coyo, belonging to the Atacama ethnic group. The The main economic activity of the inhabitants of the area is agriculture and livestock on a smaller scale, in addition to tourism and associated business activities. Within the territory of the Community there is
the plain of Tebenquiche, one of the largest bodies of water brackish water belonging to the “soncor hydrological system”, which belongs to the appellant Community and to the Community of Solor. The characteristics of the Tebenquiche lagoon are determinants for the maintenance and reproduction of the ecosystem and is a point of scientific interest due to the reproduction of extremophiles. These microbial ecosystems are exposed to natural hazards and anthropocentric, associated with mining development in the salar, given the extraction of potassium chloride and boric acid, as well such as lithium carbonate extraction. The above, if results in the extraction of groundwater and brine, and the reinjection of brine that modifies the conditions salt flats.

In addition, he indicated that the lagoon represents one of the most attractive tourist centers in the area, and they are the communities who regulate access. The foregoing led to the declaration of the area as Nature Sanctuary in May 2018, through D.S. No. 95. Thus, in the same decree the existence of species of high ecological value, which justifies their protection.

As for the award challenged by this via, pointed out that on October 13, 2021 the Ministry of
Mining published the national and international call for lithium, whose purpose was the exploration and exploitation of a installment of 80,000 or two installments for a total of 160,000 tons of tradable metallic lithium, in any area of the national territory. It was established that the contract will have a duration of twenty-nine years, except prior compliance of the fee. The award to the two companies was published on January 12 of the present.

In addition, he stated that the decision was adopted by the Government with an abnormal speed for the importance of the decision, and considering only economic aspects. Without
However, despite the fact that the mineral is exploited in the where the Atacameña Community of Coyo lives, in no instance of the tender, their participation was required through indigenous consultation, right of character mandatory recognized by ILO Convention 169. He considered that the Convention is applicable by the consecration made by article 5 of the Constitution and because the contracts entered into were born by virtue of a
public tender classified as a procedure administrative measure, which qualifies it as an administrative measure that required the call for indigenous consultation, in accordance to article 7 of the Convention. This is because the approval of the bidding bases, the award and the preliminary process, constitute administrative measures likely to affect the indigenous peoples, especially the appellant Community, who lives and has rights over the territory in which mining activity will take place. However, all the The process was carried out discretionary and unilaterally by the appealed authority, without allowing the appellant express their interests, resulting then in all the administrative procedure is illegal.

Therefore, he requested that the execution be ordered of an indigenous consultation process, in accordance with the article 6 a) of ILO Convention 169, with costs.

SECOND: That Edgar Blanco Rand reported, Undersecretary of Mining, on behalf of the Ministry, indicating that the respondent's actions were in accordance with the law, without there being illegal or arbitrary action that affects the recurring guarantees.

First, he referred to the regulatory framework mining, to the regime of mining concessions and the execution exclusive by the State of certain substances minerals -as in the case of lithium- through concessions administrative or special operating contracts with individuals. Thus, in the case of these figures, one must issue a supreme decree that sets the requirements for explore, exploit and benefit from substances. He made it clear that the Ministry has powers to set the policies for the use of lithium, in accordance with D.F.L. No. 02 of 1960 of the Ministry of Treasury, and for this reason, policies are developed to promote mining activity and protect national substances.

Likewise, it is empowered to sign -in representation of the State- special operating contracts regarding the substances in question. In this context, and considering the current demand international lithium market and the opportunities that were presented for the country, a decision was made to carry out a bidding process that culminated in the award of two quotas that represent 1.8% of the known reserves of lithium in Chile, through the dictation of D.S. No. 23 of 27 July 2021, taken of reason on September 29 and published on October 13 of the same year. However, the The mere issuance of the decree does not entail the subscription of the contracts, but that these are the result of a bidding procedure that concludes with the award and the subscription of the special contracts of operation of lithium. Likewise, the bases were approved by Resolution No. 1 of July 27, 2021 of the Ministry of Mining, also taken of reason in October of the same year and included five quotas of 80 thousand tons of lithium tradable, whose object was to explore, exploit and benefit, in any area of ??the national territory. He made it clear that the adjudication - appealed act this way - is not the final stage of the process bidding, but -according to the bases- the final act will be the supreme decrees signed by the Ministry of Mining approving the contracts, which are subject to the condition payment of the price of the offer and to obtain the prior authorization from the Chilean Copper Commission. What's more, later they will be sent to prior control of legality and must be taken of reason and notified. So what was dictated were the exempt resolutions that adjudicated the
dues.

He also stated that the D.S. N°23 does not specify the place where the exploration, exploitation and benefit of lithium nor does it establish geographic areas determined, since it must be determined by the contractor once you develop the particular project and obtain the sector permits. Therefore, it will be the winner who must assume the risks and submit their projects to the respective regulatory bodies, as established in the D.S. in comment. Consequently, the contract does not imply the authorization to carry out a mining project specific, but this must be submitted to the consultations and procedures that are required depending on the place where is finally placed.

So, once the reason for the decree is taken supreme that contains the terminal act, the contractor will be able to submit a mining project proposal to the Environmental Assessment System (SEIA), where you must process environmental and sectoral permits and subsequently, obtain the environmental qualification resolution, depending of the place.

Consequently, it is in the process of evaluating environmental impact where the processes should be carried out citizen participation and indigenous consultation, in case of that the project be located in a geographical area that can generate significant impacts for these communities. This is because Article 6 of Convention No. 169 refers to those measures that may directly affect the indigenous communities, but in administrative acts dictated by the respondent does not refer to the fact that the future exploitation activities are circumscribed to a determined territory. This is also contemplated in the D.S. No. 66 of the Ministry of Social Development, in Law No. 19,300 on General Bases of the Environment and in the D.S. No. 40 of the Ministry of the Environment, which approves the Regulation of the Environmental Impact Assessment System.

He also indicated that there are currently various approved mining projects that entered the SEIA, and that are submitted -before obtaining the environmental qualification- to
indigenous consultation procedures. Finally, he argued that from the foundations of action cannot be seen how the adjudication of the process bidding process or the absence of the consultation procedure indigenous in it, has violated the guarantees it invokes, attended the lack of enforce-ability of the same in said stage, as he explained it.

THIRD: What was reported by the Minister Secretary General of the Presidency (S), Máximo Pávez Castillano, by order of the President of the Republic, requesting the rejection of the action deducted, because there is no illegal or arbitrary act that has violated the guarantees invoked by the appellant.

Firstly, after referring to the nature of the recourse of protection, he referred that what was requested by the appellants is not related to the caution of the exercise of protected guarantees, but is linked to the merit of a decision of the administration, adopted within the framework of the current legal system and by virtue of a procedure administrative, which cannot prosper, to escape from the scope of constitutional action. Likewise, he considered that complying with what was requested in the action, it would suppose a judicial intervention with respect to the development of an administrative process that complied with the legal system and passed the controls of legality and constitutionality of the Comptroller, in its different stages.

Second, he argued that the action is not popular character, so it is not appropriate to allege the alleged affectation of an undetermined group of people. This, since the purpose of the appeal is to protect specific interests of identified persons. Additionally, he pointed out that the assumptions of origin of the resource of protection, since There is no arbitrary and illegal act or omission. The above, already that the bidding process was adjusted to the order legal system and its different stages – such as the resolutions that authorized the call for bids and the supreme decree that established the requirements and conditions of the contract exploration, exploitation and benefit of lithium deposits were taken of reason by the Comptroller General of the Republic and published in the official gazette. Thus, the D.S. No. 23 was issued in accordance with the power that gives the Executive the Constitution, Law No. 18,097 and the Code of Mining. In addition, he made it clear that he had the authorization from the Chilean Nuclear Energy Commission to market lithium, through an agreement adopted in August of 2021.

In addition, both administrative acts were issued based on technical considerations, which rules out the presence of arbitrariness. In particular, regarding the imputation of omit the indigenous consultation, he estimated that for the omission may be subject to judicial action, it must be a illegal or arbitrary omission conduct, associated with a norm that orders it and generates rights in favor of third parties. In this case this does not happen, since there is no infringement of article 5 of the Constitution, to article 6 of D.S. No. 36 of Ministry of Foreign Affairs, which promulgated the Convention No. 169 or article 7 of D.S. No. 66 of the Ministry of Social Development that approved the consultation regulation indigenous, because the elements are not configured so that the indigenous consultation proceeds.

The foregoing, given that it has not been established a determined territorial area for exploration, exploitation and benefit of lithium deposits, nor which mining deposits will be subject to such actions.

Therefore, it is not noticed how the appellants remain in unequal situation compared to other members of the population. Thus, the determination of the geographical area just may be established when the contractor develops the project and obtain sector permits and only then, elements of D.S. No. 66. It, because in accordance with article 2 of D.S. No. 23, the The contractor is the one who will assume all the costs and risks of the
exploration, exploitation and profit, having to obtain all sectoral or environmental authorizations and/or permits necessary.

Therefore, the threat to the guarantees invoked in the appeal is neither real nor imminent, since D.S No. 23 it only indicates requirements and conditions that the possible contracts. Furthermore, the appellants limited themselves to enunciate the guarantees that they invoke as violated, without explain how they would be affected or how they would be causally linked to the omission denounced as illegal or arbitrary.

FOURTH: That in accordance with the provisions of the first paragraph of article 20 of the Political Constitution of the Republic, the appeal for the protection of guarantees
constitutional acts legally constitutes an action of precautionary nature, intended to protect the legitimate exercise of the guarantees and pre-existing rights that in that same provision are listed, by adopting protective measures to be taken before an act arbitrary or illegal that prevents, threatens or annoys that exercise, this with respect to who alleges the affectation, because jurisprudence has established that the appeal for protection, Therefore, the person presenting it must be the owner of the right possibly affected.

FIFTH: That the protection remedy, as an action precautionary of urgency, lacks the procedural guarantees of a declarative judgment of wide knowledge, reason why only protects non-controversial or unquestionable rights eventually affected by an illegal act or omission or arbitrary.

In this sense, an act or omission is arbitrary when it lacks reasonableness, sufficient justification, of logical support, that is, when there is no reason that He bases it and whoever acts does so on a mere whim. The act or omission will be illegal when it does not meet the legal requirements, is contrary to law or the law or is not strictly adheres to current legal regulations.

SIXTH: That in the species, the action is directed in against the alleged illegal and arbitrary act of the appealed, consisting of the awarding of contracts for exploration, exploitation and commercialization of two quotas of 80,000 tons of tradable metallic lithium each, at Companies BYD Chile SpA and Mining Services and Operations del Norte S.A., omitting the process of indigenous consultation, with respect to the communities that may be affected by the execution of the eventual mining operation.

SEVENTH: That in order to resolve, one must bear in mind current regulations applicable to the species. So, first First, article 6 of Decree 236, which promulgates the Convention No. 169 on Indigenous and Tribal Peoples in Countries Independent of the International Labor Organization, states that
“1. By applying the provisions of this Convention, governments shall:
a) consult the peoples stakeholders, through appropriate procedures and in particularly through its representative institutions, whenever legislative measures are envisaged or administrative actions likely to affect them directly;
b) establish the means by which the peoples stakeholders can participate freely, at least in the to the same extent as other sectors of the population, and to all levels in decision-making in institutions electives and administrative and other bodies responsible for policies and programs that concern them;
c) establish the means for the full development of the institutions and initiatives of these peoples, and in cases appropriate provide the necessary resources for this finish.(...)".

That subsequently article 15 of said agreement states that
“1. The rights of the peoples concerned to existing natural resources on their lands should
protect yourself especially. These rights include the right of these peoples to participate in the use, administration and conservation of said resources.
2. If the property belongs to the State ownership of minerals or subsoil resources, or has rights over other resources existing in the land, governments shall establish or maintain
procedures with a view to consulting the peoples interested parties, in order to determine whether the interests of those peoples would be harmed, and to what extent, before undertake or authorize any program of prospecting or exploitation of existing resources on their land. The interested peoples should participate whenever it is possible in the benefits that such activities report, and receive fair compensation for any damage
may suffer as a result of those activities.”

Likewise, article 2 of Decree No. 66 of the Ministry of Social Development establishes the duty of consultation, stating that "The consultation is a duty of the organs of the State Administration and a right of indigenous peoples likely to be directly affected by the adoption of legislative or administrative measures, materialized through an appropriate procedure and in good faith, for the purpose of reaching an agreement or achieving the consent about the measures susceptible to directly affect them and that must be carried out in accordance with the principles set forth in Title II of this regulation."

And in particular, in relation to what are the measures likely to directly affect the peoples
indigenous people, article 7 states that “The organs of the State Administration indicated in article 4 of this regulations, they must consult the indigenous peoples every whenever administrative or legislative measures are envisaged likely to affect them directly. (...) They are administrative measures that can be directly affect indigenous peoples those acts formalities issued by the bodies that are part of the State Administration and containing a declaration of will, whose own non-regulated nature allows said organs the exercise of a margin of discretion that the enable to reach agreements or obtain consent
of indigenous peoples in their adoption, and when such measures are the direct cause of a significant impact and specifically on indigenous peoples in their capacity as such, affecting the exercise of their traditions and customs ancestral, religious, cultural or spiritual practices, or the relationship with their indigenous lands. (...) The administrative measures that do not produce a direct affectation with respect to indigenous peoples will be subject to consultation, as happens with those acts that do not produce a direct material or legal effect with respect to third parties, as occurs with opinions, acts judgment, record or knowledge, as well as the acts that are related to the internal activity of the Administration, such as appointments of authorities and staff, the exercise of hierarchical power or management measures budget.”

EIGHTH: That consequently, of the regulations previously mentioned, it must be concluded that for the process of consultation is an obligation for the Administration of the State, it must be legislative or administrative measures likely to directly affect the
indigenous communities, causing an impact on the peoples, their traditions, customs, practices, culture or territory, being necessary to determine whether the interests of these peoples would be harmed by the specific measure.

NINTH: That as has been reasoned, it turns out then relevant to determine whether the act being challenged by this route has the merit of being an administrative measure likely to directly affect the community appellant, and that therefore, the indigenous consultation was a prior necessary and obligatory procedure, whose non-observance derives in illegal and/or arbitrary. In this context, the tenor of the action It follows that what is contested is the award of two quotas for the exploration, exploitation and benefit of lithium deposits, by virtue of a procedure of public tender that began with the call for bidding and approval of the bases, by resolution No. 1 of the July 27, 2021 and culminating in the subscription of a special contract, whose requirements and conditions were established by Decree No. 23 of October 13 of the same year.

Analyzed the content of both acts administrative, it can be seen that although in the databases bidding process -by alluding to the general objective of the bidding- indicates the operations that are currently being carried out in the Salar de Maricunga and in the Salar de Atacama, the award is not limited to a geographic territory determined for the development of mining projects, since no reference is made to a specific place where to develop the exploration or exploitation of the mineral, being clear, in consequently, that the adjudication is not related to a task that can already be installed without a complete process authorizations of all kinds, including environmental regulations regulated in articles 8 and following of Law 19,300. Therefore, the awardees of the share of exploration do not acquire the right to an exploitation in particular place, and in the face of what is held to be They bear the investment risk.

Thus, in the regulation of requirements and conditions of the special operating contracts, in the Article 2 of the decree provides that the object of the contract shall empower the contractor to explore, exploit and benefit from a quota of tradable metallic lithium in “any area of ??the national territory”. Likewise, it provides that "The Contractor shall bear all costs and risks inherent to exploration, exploitation and benefit of salable metallic lithium that may be necessary.

Also, they will be the exclusive responsibility and risk of the Contractor, obtaining all authorizations and/or permits sectoral or environmental that are necessary for the effects of carrying out the work object of the or of the Contracts.” Then, it can be verified that prior to the start of a specific project, permits must be obtained corresponding environmental regulations, which are regulated in articles 8 and following of Law 19,300, and in the Regulation of the Environmental Impact Assessment System, Decree No. 40, published on August 12, 2013, being clear that any exploitation of minerals will require a study of environmental impact, which must necessarily include a indigenous consultation process, including without a doubt the communities of the or the sectors affected with the draft.

TENTH: Consequently, it can be concluded that attended the tenor of the administrative acts dictated by the appealed Ministry -which also were already subject to a prior legality control by the Comptroller General of the Republic- these do not contain a pronouncement or decisions that may directly affect the rights, customs or property of any community determined indigenous or mineral resources that exist in indigenous territory -including the appellant- because the effects of the contracts that were awarded are not yet delimited to a specific terrain or geographic space.

Therefore, it cannot be concluded that currently, at the stage in which the adjudication of the contracts, there is an obligation that has been breached by the entities of the State administration, since the obligation of prior indigenous consultation has not yet been configured, and without will undoubtedly take place at the relevant stage as already He said. It is therefore not possible to speak of the existence of a arbitrary or illegal omission by the respondents, given that there was no legal obligation to act in the form in which it is imputed by the appellant Community.

ELEVENTH: That a different situation will be configured once the special contracts of
operation, because in the event that the contracting companies elaborate projects to be executed in some inhabited land or used by indigenous communities, at the time of requesting the corresponding sectoral or environmental permits, yes the prior process of indigenous consultation will have to be carried out, as regulated by article 85 of Decree No. 40 that Approves the Regulation of the Environmental Impact System. Nevertheless, said obligation is not enforceable now, when the possibility that the lands indicated in the appeal are affected is still uncertain and has no concrete background to support it.

TWELFTH: That this Court has systematically been holding in their sentences highlighting the obligation, importance and transcendence of the consultation indigenous without restricting its application, in each of the situations in which there has been a risk of affecting the rights, customs or property, and especially when it says relation to the exploitation of minerals, an activity that always generates a change in the environment, and that is specially regulated in the aforementioned agreement 169, more that must be developed in the opportunity that, in compliance with said agreement, has determined our legislator.

THIRTEENTH: That although the appellant does allusion to harm suffered by the community due to current exploitation of minerals, it is clear that this does not have relation to the contested act, and without a doubt it can be reported through the procedures that in this regard contemplates our legislation, especially environmental, always applicable to mining projects.

FOURTEENTH: That, furthermore, and not proving that the appellant community is the holder of a right directly affected by the appealed act, and considering that this precautionary process is not a popular action, it proceeds also its rejection for not being actively legitimized the one to act in this way.

FIFTEENTH: That, consequently, and as has been been reasoning, and circumscribing the illegality and arbitrariness alleged to the absence of indigenous consultation prior to the allocation of the quotas in question, it is not possible to determine the existence of the illegal or arbitrary act on behalf of the respondents alleged by the plaintiff and that affects the guarantees invoked by the appellant, sufficient reason
to reject the deduced action.

SIXTEENTH: That the company will not be ordered to pay the costs. plaintiff, because it was deemed inconvenient. For these considerations and in addition to the provided in articles 19 and 20 of the Constitution Policy of the Republic and in the Auto Acordado of the Excma. Supreme Court on the matter, REJECTED, without costs, the resource of protection deduced by the lawyer Gabriel Muñoz Muñoz, on behalf of the Atacameña Community of Coyo, against the Ministry of Mining and the President of the Republic, Sebastián Piñera Echeñique.

Role 142-2022