Surface Landowner and Mining: Know Your Rights
The discovery of mineral deposits on private property raises questions about the rights of the landowner, known in the sector as the surface landowner. Deposits are concentrations of mineral substances with economic viability.
The Federal Constitution, in Article 176, determines that mineral resources are property of the Union, distinct from the soil where they are located. This means that although the land belongs to the surface owner, the ore underground belongs to the State.
However, legislation ensures rights for the surface landowner. Decree-Law 227/1967 and Decree 9.406/2018 establish the basis for compensating the surface owner for mining activity on their land.
A formal agreement between the miner and the surface landowner is necessary before activities commence.
During the mineral research phase, the mining entrepreneur must:
- Pay rent for the occupation of the land.
- Provide indemnity for material or moral damages caused to the property or its owner.
- Ensure the recovery of the area used after the work.
- The amount of rent and potential indemnities during this phase is defined through a contract between the parties.
If the research confirms economic viability and exploitation (mining) begins, the surface landowner is entitled to receive royalties. The Mining Code stipulates that the surface owner receives 50% of the amount paid by the miner to the Union as Financial Compensation for the Exploitation of Mineral Resources (CFEM), levied on the mining revenue.
If mineral exploitation occurs without the proper agreement, the surface landowner can report this to the National Mining Agency (ANM). Use the service “Communicate Absence of Agreement with Surface Landowner in Mining Area,” accessible via ANM’s Digital Protocol system, under the option ‘Protocol by Process Number’.
Understanding these points is fundamental to the relationship between mining and property ownership.
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