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Thursday, April 06, 2023 4:32:52 PM
Codelco_gets its_teeth knocked_down its_throat by_Simbalik
ergo Anti-mining Minister Marcela Hernando who supported Codelco's frivolous lawsuit appeal against Simbalik Group gets herfocking teeth knocked down her throat also.
Click here within 10 minutes of this post for self-disappearing verdict from the electron-stingy Chilean beaners running the court records office... otherwise see below for rough English translation.
The Supreme Court (Environmental section of the TC) has issued their final ruling April 5, 2023 on the appeal by Codelco to nullify the previously-awarded lithium rights on Simbalik's (ie licensee's) property which amount to 24,300 metric tonnes or of equivalent metallic lithium (ie 1,620mtpa LCE over 15 years) plus whatever more tonnages Codelco could steal by shallow "angular" drilling underground from Simbalik's advantageously-located property to swipe our lithium brine from the "mother lode" in Maricunga that "sits" under LPI.
1. Codelco does not have the lithium exploitation rights under the March 9, 2018 CEOL contrivance over any property approved by CChEN for lithium mining prior Decree Law No. 2886 of November 14, 1979 and the Executive order by Pinochet declaring lithium a Strategic Mineral.
2. Codelco may not intrude on adjacent properties to mine the minerals on their Sociedad Salar de Maricunga SpA property without the expressed written permission of the adjacent Maricunga landowner... in this case specifically, Simbalik.... and eventually now by good luck, LPI plus SQM and SIMCO and maybe Tianqi if they do indeed JV with us or buy us out after this good news.
3. Neighbors to Codelco who are themselves mining lithium may deny easement rights to Codelco to haul lithium over their property, however such neighbors will be obligated by the State's CEOL to allow Codelco to haul sodium chloride over the neighbor's property through a well-defined easement.
4. The Supreme Court was not fooled in the least by Codelco & the government... they saw right through all the bullsheet and absolutely realized "it is deduced that the The exploitation of lithium by private parties is the real controversy in this case" See Article 10 item 1 paragraph 3. This important "precedent" will now haunt the Boric government on all future legal case rulings.
We're back in the driver's seat on Lithium Mining in Maricunga thanks to Simbalik and SIMCO.
Yesfock Anti-Mining Minister Marcela Hernando and her RP political party. Codelco never fully had their heart in this desperate "long-shot" lawsuit and was doing it only to appease this nasty vindictive wicked witch of the west Marcela Hernando who is clearly dedicated to stopping all additional lithium mining in Chile until she can take over as president in 2026 and properly shaft all the junior lithium miners lesbian/dyke style.
The Doctor
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Santiago, April fifth, two thousand and twenty-three. April 5, 2023
Viewed:
In Case No. C-2617-2018, of the First Court of Appeals of Copiapó, in the case of "Simbalik Group Inversiones Limitada con Fisco", in summary proceeding governed by Articles 234 and following of the Mining Code, or judgment of October 7, 2021, or as
the claim was accepted and the constitution of mining easements was declared in favor of their belongings over a part of the property of the defendant (Codelco) in the terms that are indicated, fixing the amount of the indemnity and its duration.
The defendant (Codelco) appeared in chamber to the Court of Appeal of Copiapó, and by decision on April 12, 2022 confirmed it.
Against this the same party has deduced the following appeal on the merits, requesting the invalidation of the judgment and the consequent issuance of a replacement judgment that it herein describes.
It was ordered to bring the case files in this relation.
Whereas:
First: That the appellant alleges the infringement of Articles 8 of the Organic Constitutional Law on Mining Concessions, sections 120 and 124 of the Mining Code.
It explains that the infringements occur because the mining easements have been constituted without the need or utility that justifies them, since they were requested for the purpose of exploring and exploiting lithium, in circumstances where the concessions of the plaintiff only allow exploring and exploiting sodium chloride, a fact that is not disputed and corroborated by the certificate of ownership in force accompanied by the plaintiff.
In this way, he adds, the court overlooked a legal precedent, that is, that the plaintiff cannot explore or exploit the lithium that exists in the bowels of its mining concessions, which means that the requirement of necessity or utility that justifies the constitution of the mining easement is not met.
It points out that although the claim was based on the fact that the concessions are and were established under the Mining Code of 1932 and prior to the reform introduced by Decree Law No. 2886 of November 14, 1979, which reserved lithium in favor of the State of Chile, making it a non-reportable and non-concessionable metal, not all properties established prior to that date are exempt from this reservation as claimed.
Article 5 of the Decree-Law establishes the exceptions to this reserve, by virtue of which it is concluded that only those individuals may exploit lithium whose holdings meet one of the following two copulative requirements: #1. before Decree Law No. 2886; #2. The Company's main activity was lithium or any of the substances listed in paragraph 1 of article 3 of the Mining Code of 1932.
In the case of the plaintiff, he adds, without prejudice to the fact that its ownership was constituted prior to the enactment of the aforementioned legal body, according to what is stated in the certificates of ownership in force, it was only on sodium chloride, a substance which is certainly not lithium or any of those contemplated in subsection 1 of the Mining Law of 1932. of Article 3 of the Code specifies that article 1, paragraph 5, of the transitional provisions of the current Mining Code states that "if there is only one property or administrative concession of exploitation, it will incorporate to its object all substances that were not granted and those that, by virtue of Law No. 18.097, become concessionable". According to a first reading, it could be argued that the plaintiff's concessions incorporated lithium to their object, however, such conclusion is wrong, since such substance is exclusively reserved to the State of Chile.
It affirms that nothing of what has been concluded changes with the argument of the plaintiff in the sense of having the authorization of the Chilean Nuclear Energy Commission (CChEN), since it only allows the commercialization of lithium, but not its extraction or exploitation.
It argues that the contested judgment ruled that without taking over the fiscal allegation on the lack of necessity or justification of the requested lien, without making any allusion to the substance on which the belongings are based and avoiding the issue of the non-deniability of the lithium.
In this way, he specifies, Articles 8 of the Organic Constitutional Law on Mining Concessions and 120 of the Mining Code have been violated, since, according to the reasoning of the court, in order to accede to the claim, it is sufficient to prove ownership of a mining property and the ownership of the surface property on which the lien is requested, without considering that the use is in accordance with the
respective concession.
In this way, he explains, the constitution of the required lien, contrary to the court's decision, recognizes as a limitation that provided for in Article 124 of the Mining Code, which states that easements may not be used for purposes other than those proper to the respective concession or establishment and for which they were built, and shall cease when such use is terminated.
It also adds that according to the iura novit curia principle (definition: Iura novit curia is a Latin legal maxim expressing the principle that "the court knows the law", ie, that the parties to a legal dispute do not need to plead or prove the law that applies to their case. ), ergo the court must apply the law specified by the substantive rule, whether been expressly invoked or not by the parties, having the duty to examine the legal presuppositions of the action to determine if it is lass or claims can be accepted, since nothing prevents him from discovering for himself legal norms and principles that determine the dismissal of the action boarded up It ends by exposing the way in which the infringements reported have substantially influenced the device of the sentence and ends requesting the invalidation of the appealed decision, and the decision must be issued replacement that corresponds by law, fully revoking the decision first instance and, ultimately, declaring that there is no room for the requested mining easement, with costs.
Second: That, the sentence established as facts of the case, enacted what interests the resource, the following:
a). - The plaintiff owns the Kitchen (Cocina) 1 to 9 mining concession, or Sodium Chloride producer, located in Hoyada de Maricunga, Municipality and Province of Copiapo, whose survey and self-approval certificate They are registered on page 167, turn N 57, in the respective Registry. of the Conservative of Mines of that city, corresponding to the year 1936.
b). - Through Exempt Resolution No. 092/2013, of October 16, 2013, issued by the Executive Director of the Chilean Commission of Nuclear Energy (CChEN), under the provisions of article 8 of Law No. 16.319, the plaintiff (Simbalik) was authorized to produce and sell salts raw or Extra (refined) lithium from the holdings Kitchen (Cocina) 1 to 9 of Salar de Maricunga, for a period of 15 years, counting from the first sale commercially, whose production and sale may not exceed 24,300 tons or of equivalent metallic lithium (ie 1,620mtpa LCE) during the period of validity of the authorization, or under the other conditions that are established in the same resolution.
c). - Between the State of Chile and Sociedad Salar de Maricunga SpA (See Codelco), by means of a public deed of March 9, 2018, a Contract was executed or Special Operation of Lithium Deposits (ref CEOL) in the Salar de Maricunga and its surroundings, which according to its second stipulation, called "Subject Matter of the Contract", it was stated that: "By this Contract the State of Chile expressly authorizes the contractor (Codelco) to perform, carry out and develop, on an exclusive basis, all types of activities and work exploration activities on the lithium substances located in the CEOL Area, as exploitation and profit operations on lithium substances located in the CEOL Area, in exchange for a fee and subject to a specific payment, with the exception of those areas covered by mining concessions constituted in accordance with the Mining Code of nineteen hundred and thirty-two (1932)".
d). - The Chilean Treasury is the owner of the property on which the claim is made and easement that is demanded
Third: That, on the basis of these facts, the magistrate accepted the demand having in considering that "having had by AND in Basis 7, that the plaintiff (Simbalik) is the owner of the mining properties granted under the Mining Code of 1932 called Kitchen (Cocina) 1 to 9, and that the Chilean Treasury is the owner of the property on which the service being demanded is sought, it follows as a necessary consequence that one of the basic assumptions of the granting of a mining easement has been verified, which is that the plaintiff (Simbalik) is the owner of the mining properties that will be constituted in the dominant property, and that the defendant (Codelco) is the owner of the property that is to be served, that is, the servient estate (for definition see https://www.law.cornell.edu/wex/servient_estate ), and, naturally, that both properties are of different ownership". With respect to the necessity of the easement requested, the court noted that on the basis of the documents indicated in the Study of Environmental Impact Maricunga's Salts Production and Resolution Exenta No. 092/2013 of the Executive Directorate of the Chilean Commission of Nuclear Energy (CChEN) - "allow a well-founded presumption that for the work of the The mining activity that the plaintiff (Simbalik) is seeking is necessary to constitute the easements described in its libel case, since without them it is not feasible to develop the extractive activity that constitutes the core of the project and that justifies the existence of the concession", adding that "if one takes into account the nature of the mining operations, and the use given to the land on which the easement is requested, it is obvious that it is useful for the most convenient and comfortable exploration, exploitation and benefit of the minerals, so that the requirement has been fully satisfied". Regarding the circumstance that the State of Chile has entered into an agreement with Sociedad Salar de Maricunga SA (a subsidiary of Codelco) a special contract (CEOL) for the operation of lithium deposits, the tribunal stated that "such an agreement of wills is unopposable to him, since it is an instrument that creates rights and obligations between the State of Chile and the beneficiary company, but this in no way prevents the holders of the concessions established under the Mining Code of 1932, may exercise the prerogatives that their right of dominion over such grants gives them".
By Finally, in relation to the allegation of the non-reportability of the Chilean Treasury, in its appeal, has raised the issue of the court held that the mining properties of the plaintiff (Simbalik) were constituted on sodium chloride under the Mining Code of 1932, and that therefore it would lack the title to explore and exploit the lithium, the magistrate held that "it lacks support and opportunity since it was not part of the answer to the lawsuit".
Fourth: That, the imperative that limits the pronouncement of the court may not disregard the relevant writings of the process, that is, in the case of the plaintiff (Simbalik), the libel of his claim and in the case of the defendant (Codelco), his answer to the same, as can be deduced from the provisions of the numerals 4 of article 254 and 3° of article 309, both of the Code of Civil Procedure, which constitutes a postulate to which both the court and the parties must adhere at the various procedural stages of the proceedings, in order to that it weighs on these limiting their claims subject to the court of first instance, as follows as well as any subsequent revisions it intends to the cause of action contained in these essential pleadings.
The aforementioned is directly related to the following with the provisions of Articles 160 and 170 N° 6 of the same Code. Procedure. The FIRST of these legal provisions considered as a positive expression of one of the formative principles of the process to which reference has already been made, that of congruence states that judgments must be pronounced in accordance with the merits of the same, and may not extend to points that have not been expressly submitted to trial by the parties (except insofar as the laws authorize or permit proceeding ex officio). The SECOND of the aforementioned precepts, in line with the one just transcribed, establishes that the operative part of the judgment must be limited to the matter in controversy, which includes all the actions and exceptions that have been asserted in the trial.
Fifth: That the reference to this provision is relevant to the arguments made in the appeal under analysis, since, as stated in the
judgment under appeal, the controversy was structured, on the one hand, with the plaintiff's (Simbalik’s) request to establish a mining easement of occupation and transit in land fiscal for the convenient y comfortable operation of the concessions called "KITCHEN (Cocina) 1 to 9", constituted under the effective of the Mining Code of 1932, in the Salar de Maricunga, located in the province of Copiapó, Atacama Region, based, among other antecedents, on the existence of an authorization from the Chilean Nuclear Energy Commission (CChEN) for the exploitation, extraction, production and commercialization of lithium extracted from these mining properties; and on the presentation of an Environmental Impact Study for the environmental evaluation of the exploitation of lithium in the Salar de Maricunga (project called "Production of Maricunga Salts"), accepted for processing according to the Resolution of the Chilean Nuclear Energy Commission (CChEN). Exenta No. 0750, dated June 13, 2018, of the Executive Direction of the Environmental Assessment Service (SEA). On the other hand, the response of the defendant (Codelco) at supported basically at the existence of a possible total or partial overlapping of the surface area requested to be taxed with the easement with respect to the area covered by a special contract of The State of Chile has entered into an agreement with Sociedad Salar de Maricunga SpA (a subsidiary of Codelco) for the operation of lithium deposits in the Salar de Maricunga and the need for the plaintiff (Simbalik) to prove the respective dominion and the justification of the lien it intends to place on public lands for the convenient and comfortable exploration and exploitation of its mining concessions. In addition stated that lithium is a mineral substance that has been excluded from mining since 1979 of the concessionable ones, leaving their domain, exploration and exploitation in the exclusive and excluding property of the State of Chile, recognizing that the non-denunciability is inapplicable to mining concessions prior to 1979, without prejudice to the possible overlapping that he pointed out.
The court of first instance, in keeping within the limits thus certain of the conflict submitted to its decision, it granted the request in the terms that its Court confirmed this, noting, as appropriate, that the allegation of the non-reportable nature of the lithium made by the defendant (Codelco) in the appeal, based on the fact that the mining properties of the plaintiff (Simbalik) were constituted only on "sodium chloride", being prevented from exploiting another mining substance, the claim, particularly lithium, by application of the Mining Code of 1932, was entirely new, and lacked support, not having been part of the answer to the claim.
Sixth: It is clear, then, that the criticisms of illegality that the appeal on the merits is directed against the judgment whose invalidation is sought were only made by the plaintiff (Simbalik) in his appeal against the first instance judgment, which constitute issues that were not part of the debate that took place between the parties and, therefore, were extraneous to the controversy, as seen upholding to the second instance judges.
Seventh: That, as far as this point is concerned, both the doctrine and the jurisprudence established by this Court are in agreement in the sense that it is inappropriate to base an appeal in cassation (definition: A court of cassation is a high-instance court that exists in some judicial systems. Courts of cassation do not re-examine the facts of a case, they only interpret the relevant law. In this they are appellate courts of the highest instance) on the merits on issues unrelated to the discussion formally produced in the proceeding. Therefore, this Court is prevented from reviewing any aspect of the cassation appeal on the merits that has been made in this case. the terms in which it was formulated deviated from the terms of the parties have submitted to its knowledge and resolution, since they constitute allegations that have not been duly incorporated and developed in the debate, and therefore, not having formed part of the controversy, the framework of which remained fixed with the claim and the defenses The Court cannot pronounce on them. Consequently, the violations attributed to the judgment in this sense cannot constitute errors of law for which reason the appeal under study must be dismissed.
In view of these considerations, and in addition, in view of the provisions of articles 765 and 767 of the Code of Civil Procedure, the appeal of marriage at background defendant, the Fisco de Chile, against the judgment of April 12, 2022 issued by the Court of Appeals of Copiapó. It is forewarned that Minister Andrea Muñoz concurs with the decision to reject the appeal in view of the following considerations:
1°) That the central issue to be elucidated, based on the allegations made by the State Defense Council, is whether it is legally permissible for a mining property constituted under the Mining Code of 1932, only for the exploitation of chloride is entitled to carry out the exploitation of lithium, a substance reserved in favor of the State by Decree Law No. 2886 of 1979;
2°) That the foregoing implies determining the scope to be given to the lithium reserve established in said legal body, in light of the new criteria contained in the 1983 Mining Code, which repealed the 1932, and the transitional regime provided for therein and in the Organic Law of 1932. Constitutional Law on Mining Concessions, to regulate the treatment of mining properties constituted under the Mining Code of 1932, during the term of the current Mining Code.
3°) That Decree Law No. 2886 establishes in its article 5°: "For if the national interest so requires, from the effective date of this decree law, lithium is reserved to the State. Exceptions to the provisions of the preceding paragraph only:
a) The lithium existing in constituted lithium or any of the substances of the first paragraph of Article 3 of the Mining Code, which, on the date of publication of this decree law in the Official Gazette, have their survey certificate registered, are in force, and whose The manifestation, in turn, has been registered before January 1, 1979.
b) The lithium existing in properties that, at the date of publication of this decree law in the Official Gazette, are in process and that are constituted on lithium or on any of the substances of the first paragraph of this decree law. From article 3° of the Code of Mining Code, provided that the process of The constitution of such belongings has originated in a manifestation that has been registered before January 1, 1979.
A law shall regulate the manner in which the State shall exercise the rights that it The Company is entitled to the lithium reserved to it by virtue of this article".
4°) That although the belongings that are the object of these proceedings were
constituted before 1979, relies solely on sodium chloride, only substance of paragraph 2 of article 3 of the Mining Code, for which its ° í ° or í holder was not empowered to exploit lithium or before the entry into validity of Decree Law No. 2886 or because of it, because the belongings excluded from the reservation refer to the substances of paragraph 1 of the aforementioned legal body.
5°) That, in accordance with the 1932 Mining Code, the holders of a mining property that was constituted on substances of subsection 2 of article 3°, were only entitled to become owners of the substances that had been the subject matter of the concession, which was not the case with the properties constituted on substances of subsection 1, which could become owners not only of them but also of all the others found within the limits of their ownership, unless there was another concessionaire, covering the same surface with the right to preferentially exploit the substances of subsection 2 of article 3.
The above is a reflection of certain characteristics that made the essence of the old regime, namely, the distinction between metallic substances (in paragraph 1) and non-metallic substances (in paragraph 2), and the fact that both types of properties could be constituted on the same surface, which meant an express authorization to overlap properties.
The system enshrined in the Mining Code currently in force differs fundamentally in these features from the regime of 1932, in that it makes no distinction whatsoever between mineral and non-metallic mineral properties, enshrining the right of the holder of a property to exploit all the concessionable mineral substances within its limits, and seeks to avoid the overlapping of properties. Such differences in the very conception of the system led to a total and express repeal of the Mining Code of 1932
6°) That, in consonance with the indicated, the Law Organic Law Article 3 of the Constitutional Decree on Mining Concessions establishes that "The powers conferred by mining concessions are exercised on the object constituted by the concessionable mineral substances existing in the territorial extension determined by the Mining Code..." (paragraph 1°); for then add that "are concessionable, and with respect to them may constitute mining concession, all metallic and non-metallic mining substances, and, in the case of In general, all fossil substances, in whatever form they are presented...". 2° (subparagraph) With regard to lithium, the referred norm, in its paragraph 4°, establishes that "Hydrocarbons are not susceptible to mining concessions. liquids or gases, lithium..., without prejudice to mining concessions validly constituted prior to the corresponding declaration of non-concessibility or importance for national security".
It follows from the foregoing that under the legislation currently in effect and the Decree Law No. 2886, who can exploit the lithium, are only the State and the holders of mining properties established prior to the declaration of non-concessionability. However, as noted above (4th ground), in accordance with the provisions of article 5°. letter a) of the the aforementioned Decree-Law, the exclusion of the lithium exploitation reserve in favor of the State. State, is nothing more than in benefit the belongings constituted on substances of paragraph 1°. of article 3 of the Code of Mining Law of 1932, and those that are the subject of these proceedings are substances of subsection 2 of article 3°.
With the aforementioned regulations, then, the answer to the problem raised in this case is negative.
7°) That, nevertheless, the transitory regime foreseen to regulate the treatment of mining properties constituted under the Mining Code of 1932, while the current Mining Code is in force, contains rules that lead to a different solution, as will be seen below.
In effect, the first transitory article 1 of the Constitutional Organic Law of Mining Concessions established that "The mining concessions in force at the date of entry into force of the new Mining Code, they shall subsist under the rule of the latter. However, with respect to their benefits and charges and, as regards their extinction, the provisions of said Code shall prevail." That is, in In terms of their benefits and charges, the properties will be governed by the current Mining Code, that of 1983, and not that of the year 32.
Article 2 regarding transitional period, in order to prevent the The overlapping of mining concessions, which, as we have seen, is due to the change in the criteria of the new mining regime, mandates the Mining Code to determine which of the overlapping mining concessions in force will survive. And, consequently, there will be to cover the substances that were granted to the concession that expires, as well as to those that were not granted. In the In this case, the Mining Code also mandates the Mining Code to determine the The mining concession in force, if it is a single concession, will be extended to the substances that were not granted to it.
8°) That this is how the 1983 Mining Code, in compliance with that task, it establishes in Article 1° transitional, which "The incorporation of mineral substances to the object of a property, in the cases indicated below, shall be governed by the following rules:" "N°5°. If there is only one property or one administrative concession of exploitation, it will incorporate to its object all the substances that were not granted and the substances that were not granted. which, by virtue of Law 18.097, become concessionable." It is undisputed that the properties that are the subject of these proceedings are in the first situation contemplated in the above-transcribed paragraph.
9°) That, as expressed by Mrs. Laura Novoa in a report submitted to the view, accompanied according to folio 230.275-2022, "Thus, the N°5 of the Article 1° transitory article 1 of the CM of 1983, includes the principle of concession. The only and all-encompassing legislation prevailing in the current mining legislation applies it without contemplation to the belongings of the 1932 CM (Mining Code) that are not found overlapping with others, empowering rightfully and openly to the holder of an only ownership constituted during the previous legislation to exploit all substances located on or below its surface, thus eliminating the distinction between the first clause and the second clause. And paragraph 2 of the repealed article 3 of the 1932 CM". It adds, with regard to the time to be taken into account to determine to which substances the first one is applicable extension of No. 5 of transitory article 1°, i.e., which are the substances that have not been granted and that become so, that "it is clear that it is the date on which the property was constituted", ruling out the possibility that it could be interpreted as referring to substances that may be granted
as of the enactment of the Organic Constitutional Law on Mining Concessions, since then the second extension established in No. 5 of transitory Article 1° (those that may be granted as of the date of the enactment of the Organic Constitutional Law on Mining Concessions) is not applicable to substances that may be granted as of the date of the enactment of the Organic Constitutional Law on Mining Concessions "would become unnecessary and become concessionable under the LOCCM) redundancy".
10°) That, by what reflected, abiding by strictly a the available at the article 1° transitory N°5 of the Code of Mining Code currently in force, it is necessary to conclude that the properties subject to the easement requested in these proceedings are entitled to incorporate all the substances included in paragraphs 1 and 2 of Article 3 of the Mining Code of 1932 at the time of their creation, among which lithium was included.
Agreed with the dissenting vote of Minister Blanco, who was of the opinion of accepting the appeal on the merits, taking into consideration
the following arguments:
No. 1. That, in the opinion of this dissenting party, this Court finds itself
fully empowered to hear this arbitration for two years. Orders The first, due to the mere request of the plaintiff for the constitution of mining easements for the occupation of public lands for the convenient and comfortable exploitation of the mining concessions indicated, and whose purpose
The ultimate goal is the exploitation of lithium by means of the authorization of such mining operations. This request, when contrasted with the abundant national legislation on this matter, reveals that this factual-normative confrontation is an unequivocal part of the legal problem to be solved, and even if the Chilean Treasury had not deployed its defense in this area area, the certainty is that the sentence censured at its The first is the substantive law issue underlying the environment, constituted by the exploitation of lithium by private parties, with respect to this substance, the use of which is reserved by law to the State of Chile.
In the second place, since the substantive regulation currently in force in this country The State has the dominion of the State over the absolute, exclusive, inalienable and imprescriptible of all mines and, In addition, the state reserve of lithium was established on the basis of the interest the organized community itself, a situation that has become a national specified by means of various legal instruments, it is deduced that the The exploitation of lithium by private parties is the real controversy in this case, and neither the parties involved in the litigation nor the judges called upon to resolve the legal conflict can ignore it, since the transcendence of the judgment in this case goes beyond the mere interest of the intervening parties and becomes a question of a higher objective order, whose implications could have repercussions for the country, probably in the mining and economic sectors, and could perhaps condition its future development. Finally, even in the event of accepting the thesis of the lack of concrete allegations by the Chilean Treasury regarding the specific point under discussion, the issue raised by its national importance must be addressed globally by this Court of cassation, because its conclusions, if erroneous, will create new legal realities that may affect a large number of people and this with the aggravating circumstance of having been co-sponsored by the legal system, a circumstance that cannot be admitted, in any respect whatsoever.
No. 2. That, the central question of law that arises in this trial and in the appeal is to determine whether in the instant case, one of the regulatory requirements to constitute a mining easement in favor of the mining properties owned by the plaintiff is met, that is to say, the need or utility that justifies its granting, since it has been discussed that the plaintiff's claim is for the exploitation, extraction, production and commercialization of Lithium extracted from them, in circumstances in which the concessions were granted to explore and exploit only Sodium Chloride. The previous question is to determine, first, whether the holder of mining concessions to exploit sodium chloride, constituted under the Mining Code of 1932, is or is not entitled to exploit the mineral substance lithium within the limits of such concession, taking into account the
establishment of the reserve in favor of the State of this mineral as of D.L. No. 2886, of 1979.
No. 3.That, it does not appear to be disputed or controverted in the file that the appellant's properties, detailed in paragraph A) of the second preceding recital, constituted in 1936, were - under the Mining Code of 1932 - exclusively for the exploitation of sodium chloride, as is evident from the registry entries referring to the certificates of ownership in force, titles of ownership, survey certificates and approving judgments accompanied by said party and not objected to on the contrary.
At the context of the framework regulatory framework at in force at time from The 1932 Mining Code, which was enacted under the Political Constitution of the Republic of Chile in 1932, was the basis for the granting of the concessions to the plaintiff (Simbalik). When in 925 that, to the said The law did not contain a definite status for the property, provided, as far as the present case is concerned, that in its article 3°, paragraph 1° that "Any interested party may constitute ownership in gold, silver, copper, tin, lead, platinum, cadmium, manganese, iron, nickel, cerium, ytterbium, germanium, chromium, molybdenum, tungsten, uranium, cobalt, iridium, osmium, palladium, rhodium, ruthenium, arsenic, antimony, bismuth, vanadium, niobium, tantalum, strontium, gallium, barium, beryllium, zinc, mercury, lithium, titanium, thorium, zirconium, radium and precious stones, and in metallic-ferrous placers.", adding by its paragraph 2° that "It may also constitute membership on all other fossil substances, with the exception of rocks, sands and other applicable materials applicable directly a the construction. Still on these substances may constitute a property for another specific application industrial or ornamental". This same regulation, in accordance to the foregoing, it provided as a requirement, at the time of the respective judicial request for an injunction, in accordance with Article 21 thereof, then to individualize "the substance or substances to be investigated", which is the which was corroborated in the contents of the request, according to Article 33 N°3 thereof which referred to the designation of "the kind of mineral and the shape of the field". The regulatory framework of the time was completed by its article 82
which should be transcribed: "Once the act of measurement of ownership has been registered, the of any of the substances referred to in paragraph 1° above. From Article 3°, he becomes the owner not only of it, but also of all others found within the limits of his property, except those included in Article 3°, paragraphs 3° and 4° and in Article 4°.
The other concessionaires only become owners of the substances that have been the subject matter of the concession."
Two conclusions can be drawn from what has been transcribed in relation to the system that governed under the 1932 Mining Code: The first is that, unlike the current system, it did not establish in general terms for the holder of the concession the right to exploit all reportable substances found within the limits of the respective land, but rather the scope of this permit varied according to the substance that was the object of the
concession. The second, directly related to the previous one, is that it established an important distinction between those substances listed in paragraph 1 of article 3°, with respect to those referred to in its other paragraphs. In effect, on the one hand, with respect to the former, the holder of the property constituted for the exploitation of any of these substances, among which lithium was included, would become owner, in
addition to it, of all those found within the limits of the respective concession, with the exception of those included in paragraphs 3 and 4 of said article 3 and in article 4 of the legal body in question; and, on the other hand, with respect to the latter, that the holder of the property would become owner of all those found within the limits of the respective concession, with the exception of those included in paragraphs 3 and 4 of
said article 3 and in article 4 of the legal body in question; and, on the other hand, with respect to the latter, that the holder of the property would become owner of all those found within the limits of the respective concession, with the exception of those included in paragraphs 2 and 3 of said article 3. owner only of the substances that would have been the subject matter of the concession.
Corollary of the foregoing is that, on the one hand, only the holder of an ownership constituted for the exploitation of any substance from those listed in Article 3, paragraph 1° of the 1932 Code was entitled to exploit also the others listed therein, as well as those referred to in paragraph 2, and, on the other hand, on the contrary, the holder of a property constituted for the exploitation of any substance susceptible of concession, of those listed in subsections 2° (any other fossil substance, such as Sodium Chloride, as will be said) and following subsections of said article 3, was only authorized to exploit this substance in particular, the permit not extending to the exploitation of any other mineral existing in the concession-ed land.
Specifically now and given that lithium under these regulations was a substance listed in article 3, paragraph 1, it is possible to conclude that that, under the 1932 Code, this mineral could be exploited, either by the holders of properties established specifically for the exploitation of lithium, or by the holders of properties established for the exploitation of any of the other minerals established in the aforementioned paragraph 1 minerals of those listed in Article 3, paragraph 1° of the so many The Mining Code of 1932, nor in its third, fourth, fifth or sixth clauses, as well as in article 4°. of the same body of law, it was the permit was then included in the category of fossil substances referred to in paragraph 2 of the aforementioned article 3, so that a property constituted for the exploitation of Sodium Chloride only enabled the holder to exploit this substance, the permit not extending to any other substance, whatever its species or nature. In other words, this permit did not entitle the holder to exploit lithium.
No. 4. That, having established the foregoing, it is now necessary to examine whether this restrictive regulatory framework described for mining concessions such as those held by the plaintiff (Simbalik), was maintained as a result of the variations that Chile underwent the constitutional and legal status of mining in the country. At the constitutional level, Law No. 17.450 of 1971, which amends the Political Constitution of the Republic of 1925, is identified as the first constitutional regulation of mining property, by recognizing that the State has absolute, exclusive, inalienable and impressible dominion over all mines. This reform incorporated the transitory article 16 of the 1925 Constitution, by virtue of which the holders of mining rights would continue to be governed by the legislation in force (Mining Code of 1932) as concessionaires, until a new law was passed, under which they would subsist, but the provisions of the new law would prevail with respect to the enjoyment and burdens and the extinction of such rights. The said statute -constituted by the Constitutional Organic Law on Mining Concessions of 1982 and the Mining Code of 1983- would not be dictated until after the entry into force of the 1980 Constitution, which would maintain the same regime of exception as it appears from Article 2 transitional provision, which stipulates that until such time as it is the new holders of mining rights would continue to be governed by the legislation in force at the time this Constitution enters into force, as concessionaires, replicating the same rule as before, ie, their mining rights would subsist under the new Code, but as to their enjoyment and burdens and as to their extinction, the provisions of said new Mining Code would prevail.
At the legal level, Decree Law No. 2886 of 1979 established that the reserve of lithium based on the national interest, providing in article 1°, which amended Article 3, paragraph 1°, of the Mining Code of 1932, eliminating the references to uranium, lithium and thorium, and substituting article 4°, adding -among others- the mentioned substances within the scope of minerals reserved to the State. Particularly the first paragraph of its Article 5 provided that "As required by the national interest, as of the date of In effect of this decree law, lithium is reserved to the State", being only exempted, as it appears from its paragraph 2°, letters:
"a) Lithium in existing constituted belongings, on lithium or on any of the substances of the first paragraph of article 3° of the Mining Code, which, in order to the date of publication of this decree law in the Official Gazette, have their registered survey deed, are in force, and whose manifestation, at the time of their time, has been registered prior to the 1st January 1979; and
b) Lithium existing in properties that, on the date of publication of this decree law in the Official Gazette, were in process and that are constituted on lithium or on any of the substances of the first paragraph of Article 3 of the Mining Code, provided that the process of constitution of such properties had originated in a declaration that was registered before January 1, 1979".
Up to this point, it can be concluded that the regulation dating back to 1932, which established lithium as one of the reportable substances that could be the object of a mining property by any interested party, was left without effect, since the new regulation removed this character, and the mineral became a state reserve, although always expressly safeguarding the rights of those who were previously authorized or in the process of being authorized for its exploitation, that is, and as already concluded, only for the holders of properties constituted or in the process of being constituted on lithium; or on any of the substances of the paragraph of Article 3° of the 1932 Code, so that in the case of the case of a holder of sodium chloride properties under this legal body, the company has become full validity of the reserve The general lithium concession in favor of the State established by this Decree Law of 1979, making this substance non-concessionable or non-reportable.
In the same vein, Law No. 18.097, of 1982, Constitutional Organic Law on Mining Concessions, according to paragraph 4°. Article 3 of its Article 3, corroborated the foregoing by providing that "The following are not The following are eligible for mining concessions: liquid or gaseous hydrocarbons, lithium, deposits of any kind existing in maritime waters subject to national jurisdiction and deposits of any kind located, in whole or in part, in areas determined by law to be of importance for national security for mining purposes, without prejudice to mining concessions validly constituted under the terms of a mining concession.
Prior to the corresponding declaration of non-importance to national security." In connection with the concessions prior to the enactment of this Organic Constitutional Law, its Article 1°. The transitional provision reiterated the aforementioned the 2nd rule of the Political Constitution of 1980
Finally, the 1983 Mining Code, with respect to substances not eligible for concessions, including lithium, reiterates that available at the article 3° of of the Law Organic Law Constitutional Law of Mining Concessions, as it appears from the reading of its article 7°, providing that these substances, although they are not subject to concession, may be explored and/or exploited in the manner indicated in the following article 8°, ie, "... may be executed directly by the State or by its companies, or by means of administrative concessions or special operating contracts (CEOLs), with the requirements and under the conditions established by the President of the Republic, in each case, by supreme decree".
Particular attention should be made article 1° transitional from this Code. This transitory provision determines the manner in which the incorporation of the mineral substances to the object of a belonging will occur, in the cases that there and whose operative field is limited to the hypothesis of overlapping mining concessions.
Rule 5, according to which "If only one administrative exploitation property or concession exists, it will incorporate into its object all the substances that were not granted, and which, by virtue of Law No. 18,097, become concessionable". As it is expressed, Law No. 18.097 provided, on the one hand, in paragraph 4°, that Article 3° that lithium was not susceptible to mining concessions, without prejudice to mining concessions validly constituted prior to the corresponding declaration of non-concessibility or of importance for the national security; and, on the other hand, in its article 2°. transitional, whose The operational field is limited to the hypothesis of mining concessions.
The Code, which was to be enacted the following year, would determine the manner in which the concessions were to be granted, and the way in which the concessions were to be granted and the manner in which the concessions were to be granted and extend the current mining concession, if only one, to the substances that were not granted to it. For these purposes, in the case of overlapping, reads verbatim its paragraph 3°, "...it is considered that:
1. uranium were included in the first paragraph of article 3°. from Mining Code of 1932, and
2. that the substances indicated in Article 4° of that Code, except for petroleum in liquid or gaseous state, were referred to in the second paragraph of the aforementioned article 3°."
Rule 5 of Article 1 transitional provision of the Mining Code of 1983 must be interpreted systematically, in accordance with article 22 of the Civil Code, in order to provide due correspondence and harmony not only to the precepts of the law itself, but also to the constitutional and legal mining statute as a whole. Indeed, interpreting the transitory rule in order to understand that the holders of sodium chloride concessions, who by virtue of the statute in force at the time of their constitution never acquired any right to extend their concession to the the exploitation of the lithium, it would have been acquired in 1983 under this transitional rule contained in the Code, it would mean to conclude - contrary to all logic- that the same rule would have made subsist a mining right that was never constituted in favor of the holder, and it is precisely contrary to all reasoning that what never existed can subsist. But even if this logical barrier is overcome and the transitional rule could have incorporated or integrated to the sodium chloride concessions the right to exploit lithium, making these mining concessions enter into the qualification of those validly constituted before, and therefore subsisting under the 1983 Mining Code, it must not be forgotten that the transitional rule could have made the right to exploit lithium subsist, it must not be forgotten that, in their exercise (their enjoyment and charges), the provisions of said Code must also prevail, and its permanent provisions, as well as those of the Political Constitution of the Republic and of the Constitutional Organic Law on Mining Concessions, reiterate the reserved and unapproachable nature of lithium established as from 1979.
Thus In other words, this limiting regulatory framework for the concessions mining companies such as those of the plaintiff, on the substance Sodium Chloride, which, as already stated, did not qualify its holder for the exploitation of lithium, constituted under the Mining Code of 1932, remained unchanged with the new regulation that constitutes the current constitutional and legal status of mining in Chile.
No. 5. That, in this same order of ideas, it is still necessary to dwell on the regulation contained in Law No. 16.319 of 1965, which creates the Chilean Nuclear Energy Commission, hereinafter CChEN, which is identified as a first manifestation of state concern for those minerals related to atomic energy, in order to discard the thesis that supports the contested judgment.
It is well known that Article 5 booked to the State the deposits of natural atomic minerals that exist in free soils or in those that exist in free soils covered by the belongings of item 2°. of article 3 of the Code of Mining Law of 1932, except for those properties included in paragraph 1°. from the same article that are in force, and these substances may be exploited by reserved only by Empresas del Estado or by CChEN. Without notwithstanding the foregoing, lithium was not considered as a natural nuclear material in the D.S. N°450 -Regulation of this Law- and the above mentioned state reserve is not applicable to it. Consequently, the legal treatment of lithium is not altered , being fully applicable the general rules of the 1932 Code. This regulation, however, changed in 1976, with the publication of DL N° 1557, which modifies the Organic Law of the CChEN and positions lithium as a material of nuclear interest at a legal level, consecrating a more restrictive regulation of the mineral in question.
At In this context, this organ begins to have control over lithium only with regard to its collection, declaring this of public utility. The expropriation was authorized by Supreme Decree.
No. 6. That, in accordance with all that has been reasoned, it must be concluded that there is no concurrence of the basic regulatory requirement to constitute a mining easement of occupancy in favor of of the properties owned by the plaintiff (Simbalik), that is, the need or utility that justifies its granting when the purpose pursued is the exploitation, extraction, production and commercialization of lithium extracted from them, in circumstances in which its concessions only allow it to explore and exploit Sodium Chloride, without being allowed to extend it to any other substance, whatever its species or nature.
Indeed, Article 120 of the Mining Code, in its paragraph 1°, clearly determines that it is "in order to facilitate the convenient and comfortable mining exploration and exploitation" that the licensee (Simbalik) can impose these limitations on the surface soil domain In the same.
The terms of paragraph 1° are as follows of article 8 of Law No. 18.097, Organic Law Constitutional Law on Mining Concessions, which provides that "The holders of mining concessions have the right to the establishment of easements appropriate for mining exploration and exploitation". This is corroborated by Article 19 N°24, paragraph 6°, in its final part, of the Political Constitution of the Republic by prescribing that "Surface properties will be subject to the obligations and limitations established by law to facilitate the exploration, exploitation and benefit of such mines."
The need and usefulness of establishing an easement in favor of the plaintiff's concessions is not apparent if its practical or real purpose is to carry out the mining work to enable the exploitation and processing from lithium, no can be found at be fulfilled, precisely because the The concessions it holds do not give it the right to explore or exploit that mineral substance. To impose this tax by allowing the occupation of a fiscal property would, therefore, lack the cause to justify it.
No. 7. That, thus In the opinion of this dissident, it is evident that the judgment under appeal has been issued in violation of the law, since it has made an erroneous application of the rules set forth in Article 8 of the Organic Constitutional Law on Mining Concessions and Article 120 of the Mining Code, by establishing as concurrent the requirements set forth in these provisions to constitute a mining easement of occupation in favor of the concessions of the plaintiff, encumbering the property. superficial prosecutor, what should have been the sentence to be amended by depriving the value of this erroneous application of the law has had a substantial influence on the decision, since from had had been considered correctly these precepts legal, it should have the opposite conclusion to the one reached the court and, consequently, to revoke the judgment of first degree, dismissing it in all its parts.
Drafting by Minister María Cristina Gajardo Harboe.
Register and return. Rol 13.228-2022
Pronounced by the Fourth Chamber of the Supreme Court composed of Justices Ricardo Blanco H., Andrea Muñoz S., María Cristina Gajardo H., Diego Simpertigue L., and the alternate justice.
Mr. Hernan Gonzalez G. Ministers Blanco and Simpertigue, notwithstanding having attended the hearing and the agreement of the case, due to the former being on medical leave and the latter being on legal holiday. Santiago, April 5, 2023
ANDREA MARIA MARIA MERCEDES
MUÑOZ SANCHEZ
MINISTER
Date: 05/04/2023 13:55:27 PM
MARIA CRISTINA GAJARDO HARBOE
MINISTRA
Date: 05/04/2023 13:55:28 PM
HERNÁN FERNANDO GONZÁLEZ
GARCÍA
MINISTER(S)
Date: 05/04/2023 14:23:43
In Santiago, on the fifth day of April, two thousand and twenty-three, the
foregoing resolution was included in the Diario Oficial. April 5, 2023
.
ergo Anti-mining Minister Marcela Hernando who supported Codelco's frivolous lawsuit appeal against Simbalik Group gets herfocking teeth knocked down her throat also.
Click here within 10 minutes of this post for self-disappearing verdict from the electron-stingy Chilean beaners running the court records office... otherwise see below for rough English translation.
The Supreme Court (Environmental section of the TC) has issued their final ruling April 5, 2023 on the appeal by Codelco to nullify the previously-awarded lithium rights on Simbalik's (ie licensee's) property which amount to 24,300 metric tonnes or of equivalent metallic lithium (ie 1,620mtpa LCE over 15 years) plus whatever more tonnages Codelco could steal by shallow "angular" drilling underground from Simbalik's advantageously-located property to swipe our lithium brine from the "mother lode" in Maricunga that "sits" under LPI.
1. Codelco does not have the lithium exploitation rights under the March 9, 2018 CEOL contrivance over any property approved by CChEN for lithium mining prior Decree Law No. 2886 of November 14, 1979 and the Executive order by Pinochet declaring lithium a Strategic Mineral.
2. Codelco may not intrude on adjacent properties to mine the minerals on their Sociedad Salar de Maricunga SpA property without the expressed written permission of the adjacent Maricunga landowner... in this case specifically, Simbalik.... and eventually now by good luck, LPI plus SQM and SIMCO and maybe Tianqi if they do indeed JV with us or buy us out after this good news.
3. Neighbors to Codelco who are themselves mining lithium may deny easement rights to Codelco to haul lithium over their property, however such neighbors will be obligated by the State's CEOL to allow Codelco to haul sodium chloride over the neighbor's property through a well-defined easement.
4. The Supreme Court was not fooled in the least by Codelco & the government... they saw right through all the bullsheet and absolutely realized "it is deduced that the The exploitation of lithium by private parties is the real controversy in this case" See Article 10 item 1 paragraph 3. This important "precedent" will now haunt the Boric government on all future legal case rulings.
We're back in the driver's seat on Lithium Mining in Maricunga thanks to Simbalik and SIMCO.
Yesfock Anti-Mining Minister Marcela Hernando and her RP political party. Codelco never fully had their heart in this desperate "long-shot" lawsuit and was doing it only to appease this nasty vindictive wicked witch of the west Marcela Hernando who is clearly dedicated to stopping all additional lithium mining in Chile until she can take over as president in 2026 and properly shaft all the junior lithium miners lesbian/dyke style.
The Doctor
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Santiago, April fifth, two thousand and twenty-three. April 5, 2023
Viewed:
In Case No. C-2617-2018, of the First Court of Appeals of Copiapó, in the case of "Simbalik Group Inversiones Limitada con Fisco", in summary proceeding governed by Articles 234 and following of the Mining Code, or judgment of October 7, 2021, or as
the claim was accepted and the constitution of mining easements was declared in favor of their belongings over a part of the property of the defendant (Codelco) in the terms that are indicated, fixing the amount of the indemnity and its duration.
The defendant (Codelco) appeared in chamber to the Court of Appeal of Copiapó, and by decision on April 12, 2022 confirmed it.
Against this the same party has deduced the following appeal on the merits, requesting the invalidation of the judgment and the consequent issuance of a replacement judgment that it herein describes.
It was ordered to bring the case files in this relation.
Whereas:
First: That the appellant alleges the infringement of Articles 8 of the Organic Constitutional Law on Mining Concessions, sections 120 and 124 of the Mining Code.
It explains that the infringements occur because the mining easements have been constituted without the need or utility that justifies them, since they were requested for the purpose of exploring and exploiting lithium, in circumstances where the concessions of the plaintiff only allow exploring and exploiting sodium chloride, a fact that is not disputed and corroborated by the certificate of ownership in force accompanied by the plaintiff.
In this way, he adds, the court overlooked a legal precedent, that is, that the plaintiff cannot explore or exploit the lithium that exists in the bowels of its mining concessions, which means that the requirement of necessity or utility that justifies the constitution of the mining easement is not met.
It points out that although the claim was based on the fact that the concessions are and were established under the Mining Code of 1932 and prior to the reform introduced by Decree Law No. 2886 of November 14, 1979, which reserved lithium in favor of the State of Chile, making it a non-reportable and non-concessionable metal, not all properties established prior to that date are exempt from this reservation as claimed.
Article 5 of the Decree-Law establishes the exceptions to this reserve, by virtue of which it is concluded that only those individuals may exploit lithium whose holdings meet one of the following two copulative requirements: #1. before Decree Law No. 2886; #2. The Company's main activity was lithium or any of the substances listed in paragraph 1 of article 3 of the Mining Code of 1932.
In the case of the plaintiff, he adds, without prejudice to the fact that its ownership was constituted prior to the enactment of the aforementioned legal body, according to what is stated in the certificates of ownership in force, it was only on sodium chloride, a substance which is certainly not lithium or any of those contemplated in subsection 1 of the Mining Law of 1932. of Article 3 of the Code specifies that article 1, paragraph 5, of the transitional provisions of the current Mining Code states that "if there is only one property or administrative concession of exploitation, it will incorporate to its object all substances that were not granted and those that, by virtue of Law No. 18.097, become concessionable". According to a first reading, it could be argued that the plaintiff's concessions incorporated lithium to their object, however, such conclusion is wrong, since such substance is exclusively reserved to the State of Chile.
It affirms that nothing of what has been concluded changes with the argument of the plaintiff in the sense of having the authorization of the Chilean Nuclear Energy Commission (CChEN), since it only allows the commercialization of lithium, but not its extraction or exploitation.
It argues that the contested judgment ruled that without taking over the fiscal allegation on the lack of necessity or justification of the requested lien, without making any allusion to the substance on which the belongings are based and avoiding the issue of the non-deniability of the lithium.
In this way, he specifies, Articles 8 of the Organic Constitutional Law on Mining Concessions and 120 of the Mining Code have been violated, since, according to the reasoning of the court, in order to accede to the claim, it is sufficient to prove ownership of a mining property and the ownership of the surface property on which the lien is requested, without considering that the use is in accordance with the
respective concession.
In this way, he explains, the constitution of the required lien, contrary to the court's decision, recognizes as a limitation that provided for in Article 124 of the Mining Code, which states that easements may not be used for purposes other than those proper to the respective concession or establishment and for which they were built, and shall cease when such use is terminated.
It also adds that according to the iura novit curia principle (definition: Iura novit curia is a Latin legal maxim expressing the principle that "the court knows the law", ie, that the parties to a legal dispute do not need to plead or prove the law that applies to their case. ), ergo the court must apply the law specified by the substantive rule, whether been expressly invoked or not by the parties, having the duty to examine the legal presuppositions of the action to determine if it is lass or claims can be accepted, since nothing prevents him from discovering for himself legal norms and principles that determine the dismissal of the action boarded up It ends by exposing the way in which the infringements reported have substantially influenced the device of the sentence and ends requesting the invalidation of the appealed decision, and the decision must be issued replacement that corresponds by law, fully revoking the decision first instance and, ultimately, declaring that there is no room for the requested mining easement, with costs.
Second: That, the sentence established as facts of the case, enacted what interests the resource, the following:
a). - The plaintiff owns the Kitchen (Cocina) 1 to 9 mining concession, or Sodium Chloride producer, located in Hoyada de Maricunga, Municipality and Province of Copiapo, whose survey and self-approval certificate They are registered on page 167, turn N 57, in the respective Registry. of the Conservative of Mines of that city, corresponding to the year 1936.
b). - Through Exempt Resolution No. 092/2013, of October 16, 2013, issued by the Executive Director of the Chilean Commission of Nuclear Energy (CChEN), under the provisions of article 8 of Law No. 16.319, the plaintiff (Simbalik) was authorized to produce and sell salts raw or Extra (refined) lithium from the holdings Kitchen (Cocina) 1 to 9 of Salar de Maricunga, for a period of 15 years, counting from the first sale commercially, whose production and sale may not exceed 24,300 tons or of equivalent metallic lithium (ie 1,620mtpa LCE) during the period of validity of the authorization, or under the other conditions that are established in the same resolution.
c). - Between the State of Chile and Sociedad Salar de Maricunga SpA (See Codelco), by means of a public deed of March 9, 2018, a Contract was executed or Special Operation of Lithium Deposits (ref CEOL) in the Salar de Maricunga and its surroundings, which according to its second stipulation, called "Subject Matter of the Contract", it was stated that: "By this Contract the State of Chile expressly authorizes the contractor (Codelco) to perform, carry out and develop, on an exclusive basis, all types of activities and work exploration activities on the lithium substances located in the CEOL Area, as exploitation and profit operations on lithium substances located in the CEOL Area, in exchange for a fee and subject to a specific payment, with the exception of those areas covered by mining concessions constituted in accordance with the Mining Code of nineteen hundred and thirty-two (1932)".
d). - The Chilean Treasury is the owner of the property on which the claim is made and easement that is demanded
Third: That, on the basis of these facts, the magistrate accepted the demand having in considering that "having had by AND in Basis 7, that the plaintiff (Simbalik) is the owner of the mining properties granted under the Mining Code of 1932 called Kitchen (Cocina) 1 to 9, and that the Chilean Treasury is the owner of the property on which the service being demanded is sought, it follows as a necessary consequence that one of the basic assumptions of the granting of a mining easement has been verified, which is that the plaintiff (Simbalik) is the owner of the mining properties that will be constituted in the dominant property, and that the defendant (Codelco) is the owner of the property that is to be served, that is, the servient estate (for definition see https://www.law.cornell.edu/wex/servient_estate ), and, naturally, that both properties are of different ownership". With respect to the necessity of the easement requested, the court noted that on the basis of the documents indicated in the Study of Environmental Impact Maricunga's Salts Production and Resolution Exenta No. 092/2013 of the Executive Directorate of the Chilean Commission of Nuclear Energy (CChEN) - "allow a well-founded presumption that for the work of the The mining activity that the plaintiff (Simbalik) is seeking is necessary to constitute the easements described in its libel case, since without them it is not feasible to develop the extractive activity that constitutes the core of the project and that justifies the existence of the concession", adding that "if one takes into account the nature of the mining operations, and the use given to the land on which the easement is requested, it is obvious that it is useful for the most convenient and comfortable exploration, exploitation and benefit of the minerals, so that the requirement has been fully satisfied". Regarding the circumstance that the State of Chile has entered into an agreement with Sociedad Salar de Maricunga SA (a subsidiary of Codelco) a special contract (CEOL) for the operation of lithium deposits, the tribunal stated that "such an agreement of wills is unopposable to him, since it is an instrument that creates rights and obligations between the State of Chile and the beneficiary company, but this in no way prevents the holders of the concessions established under the Mining Code of 1932, may exercise the prerogatives that their right of dominion over such grants gives them".
By Finally, in relation to the allegation of the non-reportability of the Chilean Treasury, in its appeal, has raised the issue of the court held that the mining properties of the plaintiff (Simbalik) were constituted on sodium chloride under the Mining Code of 1932, and that therefore it would lack the title to explore and exploit the lithium, the magistrate held that "it lacks support and opportunity since it was not part of the answer to the lawsuit".
Fourth: That, the imperative that limits the pronouncement of the court may not disregard the relevant writings of the process, that is, in the case of the plaintiff (Simbalik), the libel of his claim and in the case of the defendant (Codelco), his answer to the same, as can be deduced from the provisions of the numerals 4 of article 254 and 3° of article 309, both of the Code of Civil Procedure, which constitutes a postulate to which both the court and the parties must adhere at the various procedural stages of the proceedings, in order to that it weighs on these limiting their claims subject to the court of first instance, as follows as well as any subsequent revisions it intends to the cause of action contained in these essential pleadings.
The aforementioned is directly related to the following with the provisions of Articles 160 and 170 N° 6 of the same Code. Procedure. The FIRST of these legal provisions considered as a positive expression of one of the formative principles of the process to which reference has already been made, that of congruence states that judgments must be pronounced in accordance with the merits of the same, and may not extend to points that have not been expressly submitted to trial by the parties (except insofar as the laws authorize or permit proceeding ex officio). The SECOND of the aforementioned precepts, in line with the one just transcribed, establishes that the operative part of the judgment must be limited to the matter in controversy, which includes all the actions and exceptions that have been asserted in the trial.
Fifth: That the reference to this provision is relevant to the arguments made in the appeal under analysis, since, as stated in the
judgment under appeal, the controversy was structured, on the one hand, with the plaintiff's (Simbalik’s) request to establish a mining easement of occupation and transit in land fiscal for the convenient y comfortable operation of the concessions called "KITCHEN (Cocina) 1 to 9", constituted under the effective of the Mining Code of 1932, in the Salar de Maricunga, located in the province of Copiapó, Atacama Region, based, among other antecedents, on the existence of an authorization from the Chilean Nuclear Energy Commission (CChEN) for the exploitation, extraction, production and commercialization of lithium extracted from these mining properties; and on the presentation of an Environmental Impact Study for the environmental evaluation of the exploitation of lithium in the Salar de Maricunga (project called "Production of Maricunga Salts"), accepted for processing according to the Resolution of the Chilean Nuclear Energy Commission (CChEN). Exenta No. 0750, dated June 13, 2018, of the Executive Direction of the Environmental Assessment Service (SEA). On the other hand, the response of the defendant (Codelco) at supported basically at the existence of a possible total or partial overlapping of the surface area requested to be taxed with the easement with respect to the area covered by a special contract of The State of Chile has entered into an agreement with Sociedad Salar de Maricunga SpA (a subsidiary of Codelco) for the operation of lithium deposits in the Salar de Maricunga and the need for the plaintiff (Simbalik) to prove the respective dominion and the justification of the lien it intends to place on public lands for the convenient and comfortable exploration and exploitation of its mining concessions. In addition stated that lithium is a mineral substance that has been excluded from mining since 1979 of the concessionable ones, leaving their domain, exploration and exploitation in the exclusive and excluding property of the State of Chile, recognizing that the non-denunciability is inapplicable to mining concessions prior to 1979, without prejudice to the possible overlapping that he pointed out.
The court of first instance, in keeping within the limits thus certain of the conflict submitted to its decision, it granted the request in the terms that its Court confirmed this, noting, as appropriate, that the allegation of the non-reportable nature of the lithium made by the defendant (Codelco) in the appeal, based on the fact that the mining properties of the plaintiff (Simbalik) were constituted only on "sodium chloride", being prevented from exploiting another mining substance, the claim, particularly lithium, by application of the Mining Code of 1932, was entirely new, and lacked support, not having been part of the answer to the claim.
Sixth: It is clear, then, that the criticisms of illegality that the appeal on the merits is directed against the judgment whose invalidation is sought were only made by the plaintiff (Simbalik) in his appeal against the first instance judgment, which constitute issues that were not part of the debate that took place between the parties and, therefore, were extraneous to the controversy, as seen upholding to the second instance judges.
Seventh: That, as far as this point is concerned, both the doctrine and the jurisprudence established by this Court are in agreement in the sense that it is inappropriate to base an appeal in cassation (definition: A court of cassation is a high-instance court that exists in some judicial systems. Courts of cassation do not re-examine the facts of a case, they only interpret the relevant law. In this they are appellate courts of the highest instance) on the merits on issues unrelated to the discussion formally produced in the proceeding. Therefore, this Court is prevented from reviewing any aspect of the cassation appeal on the merits that has been made in this case. the terms in which it was formulated deviated from the terms of the parties have submitted to its knowledge and resolution, since they constitute allegations that have not been duly incorporated and developed in the debate, and therefore, not having formed part of the controversy, the framework of which remained fixed with the claim and the defenses The Court cannot pronounce on them. Consequently, the violations attributed to the judgment in this sense cannot constitute errors of law for which reason the appeal under study must be dismissed.
In view of these considerations, and in addition, in view of the provisions of articles 765 and 767 of the Code of Civil Procedure, the appeal of marriage at background defendant, the Fisco de Chile, against the judgment of April 12, 2022 issued by the Court of Appeals of Copiapó. It is forewarned that Minister Andrea Muñoz concurs with the decision to reject the appeal in view of the following considerations:
1°) That the central issue to be elucidated, based on the allegations made by the State Defense Council, is whether it is legally permissible for a mining property constituted under the Mining Code of 1932, only for the exploitation of chloride is entitled to carry out the exploitation of lithium, a substance reserved in favor of the State by Decree Law No. 2886 of 1979;
2°) That the foregoing implies determining the scope to be given to the lithium reserve established in said legal body, in light of the new criteria contained in the 1983 Mining Code, which repealed the 1932, and the transitional regime provided for therein and in the Organic Law of 1932. Constitutional Law on Mining Concessions, to regulate the treatment of mining properties constituted under the Mining Code of 1932, during the term of the current Mining Code.
3°) That Decree Law No. 2886 establishes in its article 5°: "For if the national interest so requires, from the effective date of this decree law, lithium is reserved to the State. Exceptions to the provisions of the preceding paragraph only:
a) The lithium existing in constituted lithium or any of the substances of the first paragraph of Article 3 of the Mining Code, which, on the date of publication of this decree law in the Official Gazette, have their survey certificate registered, are in force, and whose The manifestation, in turn, has been registered before January 1, 1979.
b) The lithium existing in properties that, at the date of publication of this decree law in the Official Gazette, are in process and that are constituted on lithium or on any of the substances of the first paragraph of this decree law. From article 3° of the Code of Mining Code, provided that the process of The constitution of such belongings has originated in a manifestation that has been registered before January 1, 1979.
A law shall regulate the manner in which the State shall exercise the rights that it The Company is entitled to the lithium reserved to it by virtue of this article".
4°) That although the belongings that are the object of these proceedings were
constituted before 1979, relies solely on sodium chloride, only substance of paragraph 2 of article 3 of the Mining Code, for which its ° í ° or í holder was not empowered to exploit lithium or before the entry into validity of Decree Law No. 2886 or because of it, because the belongings excluded from the reservation refer to the substances of paragraph 1 of the aforementioned legal body.
5°) That, in accordance with the 1932 Mining Code, the holders of a mining property that was constituted on substances of subsection 2 of article 3°, were only entitled to become owners of the substances that had been the subject matter of the concession, which was not the case with the properties constituted on substances of subsection 1, which could become owners not only of them but also of all the others found within the limits of their ownership, unless there was another concessionaire, covering the same surface with the right to preferentially exploit the substances of subsection 2 of article 3.
The above is a reflection of certain characteristics that made the essence of the old regime, namely, the distinction between metallic substances (in paragraph 1) and non-metallic substances (in paragraph 2), and the fact that both types of properties could be constituted on the same surface, which meant an express authorization to overlap properties.
The system enshrined in the Mining Code currently in force differs fundamentally in these features from the regime of 1932, in that it makes no distinction whatsoever between mineral and non-metallic mineral properties, enshrining the right of the holder of a property to exploit all the concessionable mineral substances within its limits, and seeks to avoid the overlapping of properties. Such differences in the very conception of the system led to a total and express repeal of the Mining Code of 1932
6°) That, in consonance with the indicated, the Law Organic Law Article 3 of the Constitutional Decree on Mining Concessions establishes that "The powers conferred by mining concessions are exercised on the object constituted by the concessionable mineral substances existing in the territorial extension determined by the Mining Code..." (paragraph 1°); for then add that "are concessionable, and with respect to them may constitute mining concession, all metallic and non-metallic mining substances, and, in the case of In general, all fossil substances, in whatever form they are presented...". 2° (subparagraph) With regard to lithium, the referred norm, in its paragraph 4°, establishes that "Hydrocarbons are not susceptible to mining concessions. liquids or gases, lithium..., without prejudice to mining concessions validly constituted prior to the corresponding declaration of non-concessibility or importance for national security".
It follows from the foregoing that under the legislation currently in effect and the Decree Law No. 2886, who can exploit the lithium, are only the State and the holders of mining properties established prior to the declaration of non-concessionability. However, as noted above (4th ground), in accordance with the provisions of article 5°. letter a) of the the aforementioned Decree-Law, the exclusion of the lithium exploitation reserve in favor of the State. State, is nothing more than in benefit the belongings constituted on substances of paragraph 1°. of article 3 of the Code of Mining Law of 1932, and those that are the subject of these proceedings are substances of subsection 2 of article 3°.
With the aforementioned regulations, then, the answer to the problem raised in this case is negative.
7°) That, nevertheless, the transitory regime foreseen to regulate the treatment of mining properties constituted under the Mining Code of 1932, while the current Mining Code is in force, contains rules that lead to a different solution, as will be seen below.
In effect, the first transitory article 1 of the Constitutional Organic Law of Mining Concessions established that "The mining concessions in force at the date of entry into force of the new Mining Code, they shall subsist under the rule of the latter. However, with respect to their benefits and charges and, as regards their extinction, the provisions of said Code shall prevail." That is, in In terms of their benefits and charges, the properties will be governed by the current Mining Code, that of 1983, and not that of the year 32.
Article 2 regarding transitional period, in order to prevent the The overlapping of mining concessions, which, as we have seen, is due to the change in the criteria of the new mining regime, mandates the Mining Code to determine which of the overlapping mining concessions in force will survive. And, consequently, there will be to cover the substances that were granted to the concession that expires, as well as to those that were not granted. In the In this case, the Mining Code also mandates the Mining Code to determine the The mining concession in force, if it is a single concession, will be extended to the substances that were not granted to it.
8°) That this is how the 1983 Mining Code, in compliance with that task, it establishes in Article 1° transitional, which "The incorporation of mineral substances to the object of a property, in the cases indicated below, shall be governed by the following rules:" "N°5°. If there is only one property or one administrative concession of exploitation, it will incorporate to its object all the substances that were not granted and the substances that were not granted. which, by virtue of Law 18.097, become concessionable." It is undisputed that the properties that are the subject of these proceedings are in the first situation contemplated in the above-transcribed paragraph.
9°) That, as expressed by Mrs. Laura Novoa in a report submitted to the view, accompanied according to folio 230.275-2022, "Thus, the N°5 of the Article 1° transitory article 1 of the CM of 1983, includes the principle of concession. The only and all-encompassing legislation prevailing in the current mining legislation applies it without contemplation to the belongings of the 1932 CM (Mining Code) that are not found overlapping with others, empowering rightfully and openly to the holder of an only ownership constituted during the previous legislation to exploit all substances located on or below its surface, thus eliminating the distinction between the first clause and the second clause. And paragraph 2 of the repealed article 3 of the 1932 CM". It adds, with regard to the time to be taken into account to determine to which substances the first one is applicable extension of No. 5 of transitory article 1°, i.e., which are the substances that have not been granted and that become so, that "it is clear that it is the date on which the property was constituted", ruling out the possibility that it could be interpreted as referring to substances that may be granted
as of the enactment of the Organic Constitutional Law on Mining Concessions, since then the second extension established in No. 5 of transitory Article 1° (those that may be granted as of the date of the enactment of the Organic Constitutional Law on Mining Concessions) is not applicable to substances that may be granted as of the date of the enactment of the Organic Constitutional Law on Mining Concessions "would become unnecessary and become concessionable under the LOCCM) redundancy".
10°) That, by what reflected, abiding by strictly a the available at the article 1° transitory N°5 of the Code of Mining Code currently in force, it is necessary to conclude that the properties subject to the easement requested in these proceedings are entitled to incorporate all the substances included in paragraphs 1 and 2 of Article 3 of the Mining Code of 1932 at the time of their creation, among which lithium was included.
Agreed with the dissenting vote of Minister Blanco, who was of the opinion of accepting the appeal on the merits, taking into consideration
the following arguments:
No. 1. That, in the opinion of this dissenting party, this Court finds itself
fully empowered to hear this arbitration for two years. Orders The first, due to the mere request of the plaintiff for the constitution of mining easements for the occupation of public lands for the convenient and comfortable exploitation of the mining concessions indicated, and whose purpose
The ultimate goal is the exploitation of lithium by means of the authorization of such mining operations. This request, when contrasted with the abundant national legislation on this matter, reveals that this factual-normative confrontation is an unequivocal part of the legal problem to be solved, and even if the Chilean Treasury had not deployed its defense in this area area, the certainty is that the sentence censured at its The first is the substantive law issue underlying the environment, constituted by the exploitation of lithium by private parties, with respect to this substance, the use of which is reserved by law to the State of Chile.
In the second place, since the substantive regulation currently in force in this country The State has the dominion of the State over the absolute, exclusive, inalienable and imprescriptible of all mines and, In addition, the state reserve of lithium was established on the basis of the interest the organized community itself, a situation that has become a national specified by means of various legal instruments, it is deduced that the The exploitation of lithium by private parties is the real controversy in this case, and neither the parties involved in the litigation nor the judges called upon to resolve the legal conflict can ignore it, since the transcendence of the judgment in this case goes beyond the mere interest of the intervening parties and becomes a question of a higher objective order, whose implications could have repercussions for the country, probably in the mining and economic sectors, and could perhaps condition its future development. Finally, even in the event of accepting the thesis of the lack of concrete allegations by the Chilean Treasury regarding the specific point under discussion, the issue raised by its national importance must be addressed globally by this Court of cassation, because its conclusions, if erroneous, will create new legal realities that may affect a large number of people and this with the aggravating circumstance of having been co-sponsored by the legal system, a circumstance that cannot be admitted, in any respect whatsoever.
No. 2. That, the central question of law that arises in this trial and in the appeal is to determine whether in the instant case, one of the regulatory requirements to constitute a mining easement in favor of the mining properties owned by the plaintiff is met, that is to say, the need or utility that justifies its granting, since it has been discussed that the plaintiff's claim is for the exploitation, extraction, production and commercialization of Lithium extracted from them, in circumstances in which the concessions were granted to explore and exploit only Sodium Chloride. The previous question is to determine, first, whether the holder of mining concessions to exploit sodium chloride, constituted under the Mining Code of 1932, is or is not entitled to exploit the mineral substance lithium within the limits of such concession, taking into account the
establishment of the reserve in favor of the State of this mineral as of D.L. No. 2886, of 1979.
No. 3.That, it does not appear to be disputed or controverted in the file that the appellant's properties, detailed in paragraph A) of the second preceding recital, constituted in 1936, were - under the Mining Code of 1932 - exclusively for the exploitation of sodium chloride, as is evident from the registry entries referring to the certificates of ownership in force, titles of ownership, survey certificates and approving judgments accompanied by said party and not objected to on the contrary.
At the context of the framework regulatory framework at in force at time from The 1932 Mining Code, which was enacted under the Political Constitution of the Republic of Chile in 1932, was the basis for the granting of the concessions to the plaintiff (Simbalik). When in 925 that, to the said The law did not contain a definite status for the property, provided, as far as the present case is concerned, that in its article 3°, paragraph 1° that "Any interested party may constitute ownership in gold, silver, copper, tin, lead, platinum, cadmium, manganese, iron, nickel, cerium, ytterbium, germanium, chromium, molybdenum, tungsten, uranium, cobalt, iridium, osmium, palladium, rhodium, ruthenium, arsenic, antimony, bismuth, vanadium, niobium, tantalum, strontium, gallium, barium, beryllium, zinc, mercury, lithium, titanium, thorium, zirconium, radium and precious stones, and in metallic-ferrous placers.", adding by its paragraph 2° that "It may also constitute membership on all other fossil substances, with the exception of rocks, sands and other applicable materials applicable directly a the construction. Still on these substances may constitute a property for another specific application industrial or ornamental". This same regulation, in accordance to the foregoing, it provided as a requirement, at the time of the respective judicial request for an injunction, in accordance with Article 21 thereof, then to individualize "the substance or substances to be investigated", which is the which was corroborated in the contents of the request, according to Article 33 N°3 thereof which referred to the designation of "the kind of mineral and the shape of the field". The regulatory framework of the time was completed by its article 82
which should be transcribed: "Once the act of measurement of ownership has been registered, the of any of the substances referred to in paragraph 1° above. From Article 3°, he becomes the owner not only of it, but also of all others found within the limits of his property, except those included in Article 3°, paragraphs 3° and 4° and in Article 4°.
The other concessionaires only become owners of the substances that have been the subject matter of the concession."
Two conclusions can be drawn from what has been transcribed in relation to the system that governed under the 1932 Mining Code: The first is that, unlike the current system, it did not establish in general terms for the holder of the concession the right to exploit all reportable substances found within the limits of the respective land, but rather the scope of this permit varied according to the substance that was the object of the
concession. The second, directly related to the previous one, is that it established an important distinction between those substances listed in paragraph 1 of article 3°, with respect to those referred to in its other paragraphs. In effect, on the one hand, with respect to the former, the holder of the property constituted for the exploitation of any of these substances, among which lithium was included, would become owner, in
addition to it, of all those found within the limits of the respective concession, with the exception of those included in paragraphs 3 and 4 of said article 3 and in article 4 of the legal body in question; and, on the other hand, with respect to the latter, that the holder of the property would become owner of all those found within the limits of the respective concession, with the exception of those included in paragraphs 3 and 4 of
said article 3 and in article 4 of the legal body in question; and, on the other hand, with respect to the latter, that the holder of the property would become owner of all those found within the limits of the respective concession, with the exception of those included in paragraphs 2 and 3 of said article 3. owner only of the substances that would have been the subject matter of the concession.
Corollary of the foregoing is that, on the one hand, only the holder of an ownership constituted for the exploitation of any substance from those listed in Article 3, paragraph 1° of the 1932 Code was entitled to exploit also the others listed therein, as well as those referred to in paragraph 2, and, on the other hand, on the contrary, the holder of a property constituted for the exploitation of any substance susceptible of concession, of those listed in subsections 2° (any other fossil substance, such as Sodium Chloride, as will be said) and following subsections of said article 3, was only authorized to exploit this substance in particular, the permit not extending to the exploitation of any other mineral existing in the concession-ed land.
Specifically now and given that lithium under these regulations was a substance listed in article 3, paragraph 1, it is possible to conclude that that, under the 1932 Code, this mineral could be exploited, either by the holders of properties established specifically for the exploitation of lithium, or by the holders of properties established for the exploitation of any of the other minerals established in the aforementioned paragraph 1 minerals of those listed in Article 3, paragraph 1° of the so many The Mining Code of 1932, nor in its third, fourth, fifth or sixth clauses, as well as in article 4°. of the same body of law, it was the permit was then included in the category of fossil substances referred to in paragraph 2 of the aforementioned article 3, so that a property constituted for the exploitation of Sodium Chloride only enabled the holder to exploit this substance, the permit not extending to any other substance, whatever its species or nature. In other words, this permit did not entitle the holder to exploit lithium.
No. 4. That, having established the foregoing, it is now necessary to examine whether this restrictive regulatory framework described for mining concessions such as those held by the plaintiff (Simbalik), was maintained as a result of the variations that Chile underwent the constitutional and legal status of mining in the country. At the constitutional level, Law No. 17.450 of 1971, which amends the Political Constitution of the Republic of 1925, is identified as the first constitutional regulation of mining property, by recognizing that the State has absolute, exclusive, inalienable and impressible dominion over all mines. This reform incorporated the transitory article 16 of the 1925 Constitution, by virtue of which the holders of mining rights would continue to be governed by the legislation in force (Mining Code of 1932) as concessionaires, until a new law was passed, under which they would subsist, but the provisions of the new law would prevail with respect to the enjoyment and burdens and the extinction of such rights. The said statute -constituted by the Constitutional Organic Law on Mining Concessions of 1982 and the Mining Code of 1983- would not be dictated until after the entry into force of the 1980 Constitution, which would maintain the same regime of exception as it appears from Article 2 transitional provision, which stipulates that until such time as it is the new holders of mining rights would continue to be governed by the legislation in force at the time this Constitution enters into force, as concessionaires, replicating the same rule as before, ie, their mining rights would subsist under the new Code, but as to their enjoyment and burdens and as to their extinction, the provisions of said new Mining Code would prevail.
At the legal level, Decree Law No. 2886 of 1979 established that the reserve of lithium based on the national interest, providing in article 1°, which amended Article 3, paragraph 1°, of the Mining Code of 1932, eliminating the references to uranium, lithium and thorium, and substituting article 4°, adding -among others- the mentioned substances within the scope of minerals reserved to the State. Particularly the first paragraph of its Article 5 provided that "As required by the national interest, as of the date of In effect of this decree law, lithium is reserved to the State", being only exempted, as it appears from its paragraph 2°, letters:
"a) Lithium in existing constituted belongings, on lithium or on any of the substances of the first paragraph of article 3° of the Mining Code, which, in order to the date of publication of this decree law in the Official Gazette, have their registered survey deed, are in force, and whose manifestation, at the time of their time, has been registered prior to the 1st January 1979; and
b) Lithium existing in properties that, on the date of publication of this decree law in the Official Gazette, were in process and that are constituted on lithium or on any of the substances of the first paragraph of Article 3 of the Mining Code, provided that the process of constitution of such properties had originated in a declaration that was registered before January 1, 1979".
Up to this point, it can be concluded that the regulation dating back to 1932, which established lithium as one of the reportable substances that could be the object of a mining property by any interested party, was left without effect, since the new regulation removed this character, and the mineral became a state reserve, although always expressly safeguarding the rights of those who were previously authorized or in the process of being authorized for its exploitation, that is, and as already concluded, only for the holders of properties constituted or in the process of being constituted on lithium; or on any of the substances of the paragraph of Article 3° of the 1932 Code, so that in the case of the case of a holder of sodium chloride properties under this legal body, the company has become full validity of the reserve The general lithium concession in favor of the State established by this Decree Law of 1979, making this substance non-concessionable or non-reportable.
In the same vein, Law No. 18.097, of 1982, Constitutional Organic Law on Mining Concessions, according to paragraph 4°. Article 3 of its Article 3, corroborated the foregoing by providing that "The following are not The following are eligible for mining concessions: liquid or gaseous hydrocarbons, lithium, deposits of any kind existing in maritime waters subject to national jurisdiction and deposits of any kind located, in whole or in part, in areas determined by law to be of importance for national security for mining purposes, without prejudice to mining concessions validly constituted under the terms of a mining concession.
Prior to the corresponding declaration of non-importance to national security." In connection with the concessions prior to the enactment of this Organic Constitutional Law, its Article 1°. The transitional provision reiterated the aforementioned the 2nd rule of the Political Constitution of 1980
Finally, the 1983 Mining Code, with respect to substances not eligible for concessions, including lithium, reiterates that available at the article 3° of of the Law Organic Law Constitutional Law of Mining Concessions, as it appears from the reading of its article 7°, providing that these substances, although they are not subject to concession, may be explored and/or exploited in the manner indicated in the following article 8°, ie, "... may be executed directly by the State or by its companies, or by means of administrative concessions or special operating contracts (CEOLs), with the requirements and under the conditions established by the President of the Republic, in each case, by supreme decree".
Particular attention should be made article 1° transitional from this Code. This transitory provision determines the manner in which the incorporation of the mineral substances to the object of a belonging will occur, in the cases that there and whose operative field is limited to the hypothesis of overlapping mining concessions.
Rule 5, according to which "If only one administrative exploitation property or concession exists, it will incorporate into its object all the substances that were not granted, and which, by virtue of Law No. 18,097, become concessionable". As it is expressed, Law No. 18.097 provided, on the one hand, in paragraph 4°, that Article 3° that lithium was not susceptible to mining concessions, without prejudice to mining concessions validly constituted prior to the corresponding declaration of non-concessibility or of importance for the national security; and, on the other hand, in its article 2°. transitional, whose The operational field is limited to the hypothesis of mining concessions.
The Code, which was to be enacted the following year, would determine the manner in which the concessions were to be granted, and the way in which the concessions were to be granted and the manner in which the concessions were to be granted and extend the current mining concession, if only one, to the substances that were not granted to it. For these purposes, in the case of overlapping, reads verbatim its paragraph 3°, "...it is considered that:
1. uranium were included in the first paragraph of article 3°. from Mining Code of 1932, and
2. that the substances indicated in Article 4° of that Code, except for petroleum in liquid or gaseous state, were referred to in the second paragraph of the aforementioned article 3°."
Rule 5 of Article 1 transitional provision of the Mining Code of 1983 must be interpreted systematically, in accordance with article 22 of the Civil Code, in order to provide due correspondence and harmony not only to the precepts of the law itself, but also to the constitutional and legal mining statute as a whole. Indeed, interpreting the transitory rule in order to understand that the holders of sodium chloride concessions, who by virtue of the statute in force at the time of their constitution never acquired any right to extend their concession to the the exploitation of the lithium, it would have been acquired in 1983 under this transitional rule contained in the Code, it would mean to conclude - contrary to all logic- that the same rule would have made subsist a mining right that was never constituted in favor of the holder, and it is precisely contrary to all reasoning that what never existed can subsist. But even if this logical barrier is overcome and the transitional rule could have incorporated or integrated to the sodium chloride concessions the right to exploit lithium, making these mining concessions enter into the qualification of those validly constituted before, and therefore subsisting under the 1983 Mining Code, it must not be forgotten that the transitional rule could have made the right to exploit lithium subsist, it must not be forgotten that, in their exercise (their enjoyment and charges), the provisions of said Code must also prevail, and its permanent provisions, as well as those of the Political Constitution of the Republic and of the Constitutional Organic Law on Mining Concessions, reiterate the reserved and unapproachable nature of lithium established as from 1979.
Thus In other words, this limiting regulatory framework for the concessions mining companies such as those of the plaintiff, on the substance Sodium Chloride, which, as already stated, did not qualify its holder for the exploitation of lithium, constituted under the Mining Code of 1932, remained unchanged with the new regulation that constitutes the current constitutional and legal status of mining in Chile.
No. 5. That, in this same order of ideas, it is still necessary to dwell on the regulation contained in Law No. 16.319 of 1965, which creates the Chilean Nuclear Energy Commission, hereinafter CChEN, which is identified as a first manifestation of state concern for those minerals related to atomic energy, in order to discard the thesis that supports the contested judgment.
It is well known that Article 5 booked to the State the deposits of natural atomic minerals that exist in free soils or in those that exist in free soils covered by the belongings of item 2°. of article 3 of the Code of Mining Law of 1932, except for those properties included in paragraph 1°. from the same article that are in force, and these substances may be exploited by reserved only by Empresas del Estado or by CChEN. Without notwithstanding the foregoing, lithium was not considered as a natural nuclear material in the D.S. N°450 -Regulation of this Law- and the above mentioned state reserve is not applicable to it. Consequently, the legal treatment of lithium is not altered , being fully applicable the general rules of the 1932 Code. This regulation, however, changed in 1976, with the publication of DL N° 1557, which modifies the Organic Law of the CChEN and positions lithium as a material of nuclear interest at a legal level, consecrating a more restrictive regulation of the mineral in question.
At In this context, this organ begins to have control over lithium only with regard to its collection, declaring this of public utility. The expropriation was authorized by Supreme Decree.
No. 6. That, in accordance with all that has been reasoned, it must be concluded that there is no concurrence of the basic regulatory requirement to constitute a mining easement of occupancy in favor of of the properties owned by the plaintiff (Simbalik), that is, the need or utility that justifies its granting when the purpose pursued is the exploitation, extraction, production and commercialization of lithium extracted from them, in circumstances in which its concessions only allow it to explore and exploit Sodium Chloride, without being allowed to extend it to any other substance, whatever its species or nature.
Indeed, Article 120 of the Mining Code, in its paragraph 1°, clearly determines that it is "in order to facilitate the convenient and comfortable mining exploration and exploitation" that the licensee (Simbalik) can impose these limitations on the surface soil domain In the same.
The terms of paragraph 1° are as follows of article 8 of Law No. 18.097, Organic Law Constitutional Law on Mining Concessions, which provides that "The holders of mining concessions have the right to the establishment of easements appropriate for mining exploration and exploitation". This is corroborated by Article 19 N°24, paragraph 6°, in its final part, of the Political Constitution of the Republic by prescribing that "Surface properties will be subject to the obligations and limitations established by law to facilitate the exploration, exploitation and benefit of such mines."
The need and usefulness of establishing an easement in favor of the plaintiff's concessions is not apparent if its practical or real purpose is to carry out the mining work to enable the exploitation and processing from lithium, no can be found at be fulfilled, precisely because the The concessions it holds do not give it the right to explore or exploit that mineral substance. To impose this tax by allowing the occupation of a fiscal property would, therefore, lack the cause to justify it.
No. 7. That, thus In the opinion of this dissident, it is evident that the judgment under appeal has been issued in violation of the law, since it has made an erroneous application of the rules set forth in Article 8 of the Organic Constitutional Law on Mining Concessions and Article 120 of the Mining Code, by establishing as concurrent the requirements set forth in these provisions to constitute a mining easement of occupation in favor of the concessions of the plaintiff, encumbering the property. superficial prosecutor, what should have been the sentence to be amended by depriving the value of this erroneous application of the law has had a substantial influence on the decision, since from had had been considered correctly these precepts legal, it should have the opposite conclusion to the one reached the court and, consequently, to revoke the judgment of first degree, dismissing it in all its parts.
Drafting by Minister María Cristina Gajardo Harboe.
Register and return. Rol 13.228-2022
Pronounced by the Fourth Chamber of the Supreme Court composed of Justices Ricardo Blanco H., Andrea Muñoz S., María Cristina Gajardo H., Diego Simpertigue L., and the alternate justice.
Mr. Hernan Gonzalez G. Ministers Blanco and Simpertigue, notwithstanding having attended the hearing and the agreement of the case, due to the former being on medical leave and the latter being on legal holiday. Santiago, April 5, 2023
ANDREA MARIA MARIA MERCEDES
MUÑOZ SANCHEZ
MINISTER
Date: 05/04/2023 13:55:27 PM
MARIA CRISTINA GAJARDO HARBOE
MINISTRA
Date: 05/04/2023 13:55:28 PM
HERNÁN FERNANDO GONZÁLEZ
GARCÍA
MINISTER(S)
Date: 05/04/2023 14:23:43
In Santiago, on the fifth day of April, two thousand and twenty-three, the
foregoing resolution was included in the Diario Oficial. April 5, 2023
.
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