EL PROBLEMA DE LA NATURALEZA JURÍDICA DE LA RIQUEZA MINERAL

Abstract

From the basic mining law principle (eliminating the power of disposition granted to owners of those lands that contain specific mineral substances), the author analyzes the two systems of laws governing exploration of minerals on public domain land which have existed in history and comparative law. On the one hand, there is the royalty system (regalía), in which the minerals are owned in rerum natura by the State. On the other hand, the system provides free access to discover and develop the mines and State ownership is unknown. In this work, we try to prove that the evolution from one system to another can clearly be observed in Chile since the royalty system, which indeed appears to rule, is no more that a literal shell and does no more than implying a general prohibition previous to the development of the mines. The underlying condition is to be granted a «mining concession». A «concession» is also, formally speaking, a discretionary document (as all concessions seem to be), even though, this is really a permit, where very little discretion can be used, if any. According to the principles of priority and legality, the claimants have a real and effective right (in civil law systems, a so-called «subjective right») to be granted the authorization to discover and develop the minerals.