I have been digging into the supreme court case 132228, 2022. Looks like the treasury is pushing the metalic/non-metalic argument. So perhaps this case is the venue that is processing this argument on behalf of the government originally written by codelco and accepted by the ministry of mining. Looks like the first argument against this appeal is that the new argument about metalic/non-metalic controversy does not have the approprate foundation from the agruments in the previous case and appeal. Here is the request made by Simco to have this appeal dismissed on this first argument.
one1 Case Rol Court No. 13,228–2022. Matter: Civil. Mining. Appeal. MAINLY: Appears as appealed party. FIRST OTHER: Keep in mind. SECOND OTHER: Keep in mind when giving an account of admissibility, to reject the appeal filed by manifest lack of foundation EXC. COURT. ALBERTO CORTES NIEME, lawyer, for the respondent SIMBALIK GROUP INVERSIONES LIMITADA, in Court Case No. 13,228-2022, on an appeal on the merits in a summary judgment of mining easement (arising from case No. 275-2021, of Iltma. Court of Appeals of Copiapó), labeled "SimbalikGroup Inversiones Limitada con Fisco de Chile", to Your Excellency, with all due respect, says: That this party appears before Your Excellency, in this appeal on the merits, as part appealed. THEREFORE, I beg Your Excellency, to keep it in mind. FIRST OTHER. I beg Your Excellency, to keep in mind that my legal capacity to represent the appealed partySIMBALIK GROUP INVERSIONES LIMITADA, is recorded in the process; and that in my capacity as a lawyer authorized to practice the profession, I appear before this Hon. Court. SECOND OTHER. Keep in mind when giving an account of admissibility, to reject the appeal filed for manifest lack of foundation. For the purposes of the review of admissibility that Your Excellency will carry out in this case, in compliance with the provisions of article 782 of the Code of Civil Procedure, I request Your Excellency, to bear in mind the considerations that are expressed below. It contains the background which has been deduced by the defendant, the Chilean Treasury, an appeal on the merits against the judgment of April 12, 2022, issued by Iltma. Court of Appeals of Copiapó, in which the first degree appealed sentence was confirmed - which accepted the demand for the constitution of mining easement in fiscal land -, issued in the mining easement summary trial substantiated in the present case.2The sentence under appeal – confirming the first degree – expressly established the following: “Given the merits of the background, sharing the opinion of the judge aquo; and bearing in mind that the allegation of the non-reportability of Lithium by the appellant State Defense Council, insofar as the mining properties called "KITCHEN 1 to 9", which are postulated as dominant properties in this process, were constituted on "sodium chloride", under the validity of the Mining Code of 1932 and that for this reason they would not have the title to explore and exploit lithium, it lacks support and opportunity, since it was not part of the response to the lawsuit; and in accordance with the provisions of articles 186 and following of the Code of Civil Procedure, the appealed judgment handed down on October 7, two thousand and twenty-one, by the Judge of the First Court of First Instance of Copiapó, Mr. **riel Aguilera Sazo, is confirmed.” The appellant asserts that the appealed judgment allegedly violated article 8 of Constitutional Organic Law No. 18,097 on Mining Concessions and articles 120 and 124 of the Mining Code, stating that the violation of the aforementioned regulations occurs because the requested mining easement has been granted without the presence of one of the the basic requirements for this, that is, the need or utility that justifies its granting, because the plaintiff requested and was granted the easement to explore and exploit lithium, in the case that his mining concessions would only allow him to explore and exploit sodium chloride. The appellant adds that this pronouncement was avoided by the judges of the instance. The appeal on the merits attempted suffers from a manifest lack of foundation, which makes it appropriate to reject it at this stage of the processing, in accordance with the provisions of articles 767, 772 and 782 of the Code of Civil Procedure, as explained below. 1.- The Court of the instance, both in the first and second degree sentence, established in the appealed sentence the fact that the necessity and usefulness of the mining easement that is constituted. Which was established as a fact of the cause, with well-founded reasoning and deserving of all consideration. Therefore, the lack of foundation of the appeal in the interposed merits appears manifest, when it is based on a questioning of the judgment appealed about the establishment of the requirement of necessity or usefulness that justifies the granting of the mining easement, because it corresponds to a matter of fact already established therein and whose3appreciation This corresponds sovereignly to the judges of the instance. Without the appellant having denounced the infringement of the laws regulating evidence. In this way, the claim of the appellant cannot prosper, since it exceeds precisely the scope and the strict legal nature of the appeal on the merits. 2°.-Secondly, the manifest lack of foundation of the appeal appears evident appeal on the merits attempted, when the appellant focuses his challenge on an alleged lack of law that the plaintiff's "Cocina 1 al 9" mining property would have on lithium minerals: since in the appealed judgment it was established - as an irremovable fact for the Court of cassation – that such a basis “lacks support and opportunity since it was not part of the response to the claim”, for which reason the appeal on the merits cannot be part of the debate or be based on it. In effect, it lacks foundation I am upholding an appeal on the merits that is based on allegations that the appealed judgment -expressly- established that they are not part of the controversy, for not having been raised at the corresponding procedural opportunity, it being inadmissible that the appellant intends to introduce it on the occasion of the present appeal before the Court of Cassation. This corroborates the manifest lack of foundation of the cassation appeal on the merits filed. THEREFORE, I beg Your Excellency, to bear in mind the considerations previously exposed, when reviewing its admissibility, to reject the cassation appeal on the merits deducted for suffering from said appeal of manifest lack of foundation. Alberto Cortés Nieme. Lawyer.
MSB has submitted like 6 legal reports as part of the case. Here are the titles and conclusions from three of these reports.
report titled"LAW ABOUT THE INTERPRETATION AND MEANING IN THE LEGAL FRAMEWORK OF LITHIUM EXTRACTION, AND ITS EFFECT ON THE MINING PROPERTIES CONSTITUTE UNDER THE MINING CODE OF 1932 RICARDO ABUAUAD DAGACH 1 May 20221"
184. CONCLUSIONS In accordance with the previous review and, especially, in light of the regulations under review, we consider that said genuine meaning is not controversial, and it is noted that in accordance with the framework of the regulation established by the Constitutional Organic Law No. 18,097 of 1982 and the Mining Code of 1983, the holders of the mining properties constituted in force of the regulations provided for by the Mining Code that preceded it, are authorized to exploit the lithium substance, since it has been incorporated into its purpose. We have reached the above conclusion based on the following considerations.
1. It is essential to highlight the meaning of the norm, which aims to consolidate a simplified legal regime, conducive to privileging the exploitation of lithium by the State, notwithstanding, the rights of those private owners of mining properties constituted during the regime former. Situation that was precisely regulated by means of exceptions and transitory regulations. 2. In said transit, the distinction contemplated by the Mining Code of 1932 was eliminated, between metallic and non-metallic substances, which crystallized an assessment that the authority made in accordance with the regime described. 3. In this direction, it was decided to abandon the possibility of overlapping between mining properties, under certain conditions. This, naturally, proposes that each holder of a mining property exploits all the concessionable mineral substances existing within its limits.194. It cannot be argued that regulations contrary to the provisions of the current regulations coexist, since the Mining Code of 1983 expressly repealed the provisions that preceded it. 5. Additionally, it should be considered that the current regulations on mining concessions were established in harmony with the Political Constitution of the Republic of 1980 which, at the time, conceives a subsidiary role of the State.
report titled:REPORT ON PUBLIC LAW CONSTITUTIONAL LEGAL REGIME OF LITHIUM AND ITS NATURE OF NON-LICENSABLE SUBSTANCE. VALIDITY OF PREVIOUS CONCESSIONS, GRANTED UNDER THE MINING CODE OF 1932. ORGANIC REPEAL DL 2,886ENRIQUE NAVARRO BELTRANSantiago, April 2, 2022
CONCLUSIONS 1. The old Mining Code of 1932 expressly included lithium among the eligible substances. The belongings could fall on metallic and non-metallic substances. 2. At the constitutional level, the 1971 reform establishes for the first time the so-called state "patrimonial domain" of mines, empowering the law to determine the substances that can be granted, while -by transitory rule- it makes the rights of the holders, but noting that -in terms of charges- the new regulations will prevail. 3. The Constitutional Act No. 3, of 1976, remitted to a law the determination of the mining statute; but, in the same way, the new norm of constitutional rank recognizes, through the reference to the provisions of the Charter of 1925 and modified in 1971, the full validity of the concessions validly granted by the mining legal system. 4. Subsequently, DL 2,886, of 1979 (exercised in attribution of the constituent power), establishes the state reserve of lithium, considering reasons of national interest; without prejudice to the authorizations that the Chilean Nuclear Energy Commission may issue to individuals. But, in the same way, it exempts the existing lithium in belongings made on lithium or other substances of subsection 1 of the Mining Code of 1932, which have their registered measurement certificate and which are in force. 5. The Political Constitution of the Republic of 1980, following the texts of 1971 and 1976, configures a new regulation, delegating to an organic law the determination of the concessible substances; at the same time as a new Mining Code specifying the form, conditions and effects of mining concessions. The Fundamental Charter eliminates “state reserves” and, in mining matters, distinguishes between concessionable and non-concessible substances.6.In any case By transitory regulation, the full validity of the rights constituted under the old Code is recognized, but in terms of their benefits and charges and in relation to their extinction, the new legislation is applied.7. In this way, DL 2886, prior to the new Fundamental Charter, is understood to be organically repealed, since the new Constitution now alludes to concessionable or non-concessible substances in mining matters. As indicated, organic repeal, as a variant tacit, must be so declared by the courts of justice. 8.According to LOC No. 18,097, the mining exploitation concession authorizes the extraction of all mineral substances that can be granted on the date of its judicial constitution and take ownership of those that it extracts (among them, by the way, the lithium that was concessionable under the current regulations of the Mining Code of 1932); expressly leaving a record in the reliable history of the same that the declaration of non-concesibility could not be retroactive, granting full validity to the belongings obtained under the protection of the old regulations. 9. Thus, the state reserve is replaced by a non-concessibility regime, which cannot affect previously validly constituted concessions. 10. In this way, from the review of current constitutional and legal regulations, it can be deduced that the general rule is that all substances are conceivable. Only non-concessible mineral substances make an exception to free acquisition. Lithium has the character of a substance that cannot be granted by express legal mandate, as stated in a recent ruling by the Constitutional Court. 11. Indeed, from reading what is stated in subsection 4, article 3 of the LOC on mining concessions and article 7 of the Mining Code, it can be deduced that, in compliance with the constitutional mandate (article 19 No. 24, paragraph 7), within the non-concessible substances is precisely lithium. 12. Lithium, as has been expressed, due to its strategic nature and the magnitude of its presence, had already been reserved to the State in any field, in accordance with the provisions of DL 2,886 of 1979, which were now incorporated into the Organic Law as non-concessible substances, in accordance with the new constitutional terminology.13. In this way, according to its constitutional and legal statute, lithium corresponds to a mineral substance that cannot be granted or cannot be denounced. The new legal regime replaces the system of state reserves with that of non-concessible substances. In this way, the new Political Constitution of the Republic organically repeals DL 2886, thus eliminating the concept of "reserved substance" which is replaced by that of " inconceivable substance”. 14.Without prejudice to the foregoing, through the aforementioned constitutional and legal regulations, it was expressly stated that the holders of belongings granted under the protection of the old Mining Code of 1932 are fully empowered to exploit all substances of a concessionable nature at the time of constitution of the belonging and that authorized said regulation (among them, by the way, lithium), which are considered validated (through the 2nd transitory provision); Bearing in mind that, in relation to their enjoyment, charges and extinction, the new legislation will be applicable to them, as the Constitutional Court itself has ruled.
report titled:Report on Law ABOUT THE SCOPE OF CERTAIN MINING PROPERTIES Iñigo Andrés de la Maza Gazmuri PhD in Law, Autonomous University of Madrid. Professor of Civil Law at Diego Portales University Santiago de Chile 2022
THECONCLUSIONS1.Any answer requires a precise formulation of the question, in this case the question is whether MSB's assets reach the exploitation of lithium.2.The answer to this question depends on two sources, the act of concession and the law.3. There is no doubt that during the validity of the first two regimes, the belongings did not allow the exploitation of lithium.a. Regarding the first regime, they were constituted on some of the substances of paragraph 2 of article 3 of the CA.17b.Regarding the second regime, since the exploitation of lithium was reserved to the State and the belongings of MSB were not within the exceptions established by the DL since they fell on substances of paragraph 2 of article 3 of the CA. 4. The third regime (1 ) eliminates the distinction between metallic and non-metallic substances, (2) declares lithium inconceivable, (3) however establishes exceptions that (4) only requires that the belongings have been validly constituted prior to the corresponding declaration of non-concessibility.5 .MSB's belongings satisfy this requirement, therefore, it is empowered to exploit lithium. 6. The CDE's arguments reason (1) as if the distinction between paragraphs 1 and 2 of Article 3 of the CAse remained in force and (2 ) as if the transitory provisions of LOC 18,097 and the CM simply did not exist. As is evident, said reasoning is legally unacceptable. This is all I can report, Iñigo de la Maza GazmuriMore about this source textSource text required for additional translation informationSend feedbackSide panelsHistorySavedContribute5,000 character limit. Use the arrows to translate more.
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