MINERGIA Magazine – LEGAL MINING, http://www.minergiaec.com/ There are no talks regarding the stoppage of mining exploitation experienced in the country in recent years. After the promulgation of Constitutional Mandate No. 6 – known as the Mining Mandate –

Exactly one year ago, in an article I wrote for MINERGIA with a similar title, I predicted that 2016 would be an important year for the mining industry in Ecuador. This prediction came true.

Despite the general crisis experienced in Ecuador, the mining industry has seen extraordinary progress, in both the public and prívate sectors, which places the country on the radar of international investors. The main highlights during 2016 include the signing of an exploration contract between the Republic of Ecuador and Lundin for the development and exploitation of Fruta del Norte; the exceptional results of the Cascabel project of ENSA, owned by SolGold (SOLG); the expectation created on the international market due to the merger of Odin with Ecuador Gold and Copper, forming a new company known as Lumina Gold Corp. (LUM), headed up by mining legend, Ross Beaty; and the opening of the mining cadaster by the Mining Ministry in order to grant new areas. Additionally, Australian and Canadian mining exploration companies operating in the country have closed financing operations in recent months, for example SolGold (SOLG), Salazar Resources (SRL), Cornerstone (CGP) and Lumina (LUM) In general, 2016 was a year full of positive news, providing lots of hope for 2017, a year with looming difficulties due to the country’s elections.

Ever since the promulgation of the Mining Mandate in 2008, no metallic mining concession has been issued for industrial mining, due largely in part to the legal requirement for a bidding process to issue new concessions, which is atypical to traditional mining jurisdictions. The current mining authorities, led by Minister Javier Cordova, have put forth great efforts to foster the granting of new areas to individuals, navigating the difficulties and limitations of the Ecuadorian regulatory system. The process being carried out by the Mining Ministry has received overwhelming acceptance on the market, as more tan 1,900,000 mining hectares have been reserved, of which 650,000 hectares have been granted, representing committed investments for more of US$120,000,000 for initial exploration(2).

Regarding legal aspects, there were two legal matters in 2016 that were really important for investors. In order of importance, in my opinion, they are: The official demise of the Mining Manclate on April 6, 2016. Through Ruling No.002-16-SAN-CC, the  Constitutional Court handed down a sentence in two cases of non-compliance, which resolved that Constitutional Mandate N° 6 (otherwise known as the Mining Mandate), published in Official Gazette N° 321, dated April22, 2008, was left null and void as of the promulgation of the Mining Law issued on January 29, 2009.

This judicial and official acknowledgement of the repeal of the Mining Mandate is essential for the development of the industry, as there was never legislation to repeal it, whatsoever, and there were individuals in the public sector that clamed that its standards remained in effect. We must remember that the Mining Mandate, issued by the Constitutional Assembly in 2008, extinguished the ~  mining rights of more than 2.000 concessions for causes that were not included in mining legislation at the time, thereby creating a standstill that pushed the industry to the brink of collapse. The ruling by the Constitutional Court is a key piece in the development of an environment with juridical security, as demanded by any foreign investor.

More news that must be mentioned is the reimbursement of VAT for mineral exporters. In my opinion, this is one of the most important amendments for the mining industry in recent times. Mineral exporters were impeded from recovering the VAT paid during the production process, as permitted for all exporters of any other industry, due to a tax standard that was originally created for the petroleum industry and subsequently included for the mining industry. Through the reforms introduced by the Organic Law of Incentives for Public-Private Associations and Foreign lnvestment (APP), mineral exporters can now recover VAT paid during operations as of January 1, 2018. Despite the future date for application of this benefit, there is no doubt that this will make investments more attractive in small-, medium- and large-scale projects in our country.

Nevertheless, there is still a 1ot of work to be done. Essentially, the true interest of the State attempting to prevent concessions from falling into the hands of those who are not willing to perform activities in the concessions is not achieved by ignoring the realities of the industry, but rather by fostering conditions that attract the best, serious, responsible miners, and this is achieved by treating them as partners, understanding their needs and acknowledging their legitimate interests in the law. This is how miling is carried out in Chile, Canada and Peru.

Additional measures must be taken in the future to improven and amend the rules of the game and the economic conditions in Ecuador, in an attempt to make mining investments more attractive. For example, there must be modifications to the Mining Law in order for mining rights to be deemed a real right, as is the case in all countries where this industry is developed, and not a personal right, as is the case in Ecuador. The bidding and auction process must be eliminated, which is not successful in any mining jurisdiction. Additionaly, the cost of conservation patents must be reduced to amounts that are competitive within the region. Finally, the maximun term for exploration and other phases must be eliminated, as this is contrary to the logic of all mining projects, which cannot be dependent upon timelines set forth in a law, but rather are based on the geological conditions of the area and the international market of the commodities.

The fiscal model for the industry must be flexible. lt is necessary, for example, to eliminate the windfall profit tax and the recently created capital gains tax, as these are additional burdens on an already excessive tax system, which are not even comparable with the parameters of the region when dealing with mining. I admit that the government has made efforts to mitigate the impact of the windfall profit tax and the sovereign adjustment; however, due to the complexity of the appicable formulas, investors have concerns regarding the effectiiveness of the model.

Timely reforms and various derogatory provisions (a few pages of text) would be enough to get rid of these obstades. lf the new government believes that mining is the only means of attracting large amounts of foreign investment, which are essential for an econonny based on the Dollar and with low oil prices, I am sure that we can replicate and even surpass the positive progress we had in 2016. Hopefully this comes to fruition.

“Despite the general crisis experienced in Ecuador, the mining industry has seen extraordinary progress, in both the public and private sectors, which places the country on the radar of  intemational investors”

MINERGIA Magazine 10 – Marzo 2017

On Friday September 10^th, 2022, delegates of the National Government and Indigenous Groups concluded a dialogue process on mining and oil policies as part of the agreement reached by the parties to end last June´s a national strike.

In parallel, the President requested the Constitutional Court to assess the relevance of eight questions in light of the Constitution, that it intends to submit for a National Referendum.

In this regard, this document will be divided as follows:

1. Points of Agreement of the Dialogue Process
2. Questions submitted by the President related to environment and water protection.
3. Referendum process.

A. POINTS OF AGREEMENT OF THE DIALOGUE PROCESS

• Temporary moratorium of at least 12 months of 15 oil blocks, including “Ronda Sur Oriente”, until the necessary regulations on the Free, Prior, Informed, Consent Consultation are approved.
• No new mining concessions will be granted until the National Government enacts the Free, Prior, Informed, Consent Consultation regulation. On this point, the parties have agreed to review a regulation proposal on October 25^th, 2022. It should be noted that the Constitutional Court, in several rulings, has ordered the National Assembly to enact an Organic Law on Prior, Free and Informed Consent Consultation, in order to guarantee the rights of Indigenous People as provided by the Constitution. Added to that, the Minister of Energy and Mines emphasized on the need to have such regulation in place as soon as possible. Therefore, we foresee that the opening of the mining cadastre announced for December will be deferred.
• No environmental licenses will be granted until regulations for environmental consultation are in place. It is necessary to point out that there are already regulations to address the environmental consultation for environmental licenses but not for environmental registries since it was not a legal requirement . Since the ruling by the Constitutional Court in “Los Cedros” case, all environmental permits, including environmental registries, have to go through an environmental consultation process. In conclusion, there is no  legal effect on the environmental registries that have been obtained to date in order to perform initial exploration activities. 
• A follow up process to discuss possible reforms to the Mining Law and the Hydrocarbons Law to implement the agreements reached.

B. QUESTIONS SUBMITTED BY THE PRESIDENT RELATED TO ENVIRONMENT AND WATER PROTECTION

 The President announced his desire to activate a Referendum, regarding several questions related to issues of national interest and which are summarized in the following areas:

• Security
• Institutions & Rule of Law
• Environment and Water protection

This section will address the questions related to the protection of environment and water.

QUESTION 7:

Do you agree with incorporating a subsystem of water protection into the National System of Protected Areas by amending the Constitution in accordance with Annex 7?

• Areas of Water Protection ( in Spanish, “APH”) are already incorporated as part of the National System of Protected Areas (in Spanish “SNAP”) in the Organic Law of Water Resources, Uses and Development of Water (in Spanish “LORHUA”). However, the LORHUA has recently been declared “unconstitutional” by the Constitutional Court.
• This question seeks that the Constitution (Art. 407) includes the APH as part of the SNAP.
• In the Annex to this question, a map of 16 existing APH to date is incorporated and if this question is qualified by the Constitutional Court and the result is favorable in the voting, mining activity would be prohibited in those areas.
• Unfortunately, neither the question nor its annexes have considered the treatment of pre-acquired rights in the areas mentioned above. For this reason, we are optimistic that the evaluation of the Constitutional Court will surely reinforce respect for the principle of non-retroactivity, regarding acquired rights and the qualification process of an area as APH.

QUESTION 8:

Do you agree that individuals, communities, peoples, and nationalities, can be beneficiaries of compensations duly regularized by the State, for their support of the generation of environmental services, amending the Constitution in accordance with Annex 8?

According to environmental regulations, the maintenance and generation of ecological functions, as well as the dynamics of ecosystems, generate environmental services needed for maintenance of the life cycle. In this regard, current regulations define 4 types of environmental services: provisioning, regulation, habitat and cultural.

The Constitution does not provide any compensations to those who support the generation and maintenance of environmental services. Therefore, the proposal considers the amendment of Article 74 of the Constitution with the purpose of having the State define the guidelines and mechanisms for compensation, which should be reflected in the Organic Environmental Code (in Spanish, “CODA”).

In sum, the purpose of this question is to establish standard criteria in the regulation of payments for environmental services.

C. REFERENDUM PROCESS

According to the Constitution, the legal process for carrying out a Referendum at the initiative of the Executive Branch consists on three stages:

• Prepare the questions and their annexes and defining whether the appropriate way is amendment or reform of the Constitution. This happened on September 12 when these document was sent to the Constitutional Court for their legal assessment. The Constitutional Court has 20 days to issue a ruling.
• In the event that the pronouncement of the Constitutional Court is favorable, the National Electoral Council must be requested to call the
• The Executive Branch intends that the Referendum be carried out before to the February 2023 elections.

TZVS

September 2022.