The assignment of mining rights is a powerful business tool in the sector, allowing for the transfer of assets between companies and investors. It is a complex administrative act that only produces legal effects after due analysis and registration by the National Mining Agency (ANM).
Recently, the ANM has implemented a series of resolutions that directly impact the assignment process. This guide covers the essential points of this process, considering the new rules.
Which Mining Rights Can Be Assigned?
Virtually all titles and stages of the mining process are subject to assignment, either in whole or in part. The general rule is transferability, provided that the assignee meets the legal requirements. The main rights that can be assigned include:
- Exploration Permit
- The right to apply for a mining concession (after approval of the exploration report)
- Application for a Mining Concession (under analysis)
- Mining Concession
- License Registration
- Small-Scale Mining Permit (PLG)
Point of Attention: Legislation prohibits the assignment of applications for exploration permits, license registrations, and PLGs. The assignment is only possible after the corresponding title has been granted.
How to Formalize the Assignment with the ANM?
The process to obtain the ANM’s validation (registration) is standardized and digital. With ANM Resolution No. 178/2024, the process has been expedited:
- Electronic Pre-Application: The first step remains the completion of the electronic form on the ANM’s website.
- Digital Filing: After completion, the pre-application and the assignment agreement must be filed electronically.
- Qualified Electronic Signature: One of the main modernizations is the acceptance of qualified electronic signatures (ICP-Brasil standard) in the agreements, eliminating the need for notarized signatures and reducing costs.
- Critical Deadline: The filing must be completed within 30 days of filling out the pre-application, under penalty of invalidation.
Critical Points of Attention in the Assignment Process
In addition to the standard procedure, several conditions can impact the approval of the assignment:
- Effectiveness of the Assignment: The transfer is only legally valid from the date of its registration by the ANM.
- Intra-group Transfers: ANM Resolution No. 127/2022 simplified the process for assignments between companies of the same economic group, equating them to merger or demerger operations, with specific procedures.
- Liability for Debts: Even after registration, the assignor remains subsidiarily liable for existing debts if the assignee fails to pay them.
- Border Area: If the area is located in a Border Area, the assignee must obtain Prior Consent from the National Defense Council.
- Antitrust Review (CADE): For large-scale transactions, the registration of the assignment will be conditional on prior approval from CADE.
- Prohibition of Outsourcing via Assignment: The ANM will not register assignment agreements that, in practice, mask the outsourcing of mining operations.
The assignment of rights is a technical procedure that demands documentary rigor and in-depth regulatory knowledge.
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