JOSÉ ADOLFO MORENO CORREA
The parliamentary discussion of the “mining royalty” to medium and large mining proposes to oblige the State to compensate with 3% of the ad valorem value of the extracted mineral, allocating 25% of the proceeds to the so-called Regional Convergence Fund, for municipalities in the activity is carried out, and the remaining 75% to the development of critical infrastructure, university research, and the repair, mitigation or compensation of environmental impacts in the affected regions.
Regarding the latter, it is worth asking whether it is convenient and efficient to pursue, through this formula, the materialization of mitigation or compensation measures for environmental impacts. First, because this has practical consequences; Its determination, materialization and enforceability is a very complex matter, which is precisely the focus of our Environmental Impact Assessment System, an important part of the supervisory action of the Superintendency of the Environment, and consequently an important object of environmental recursive discussions before specialized courts .
But even more, it is debatable to think about the determination and management of compensations of a socio-environmental nature from the tax and redistributive technique. In countries such as Canada, Australia, New Zealand, faced with the realization that impact assessment systems have inherent limitations, the practice of generating private and direct agreements between developers and communities, known today as “Impact-Benefit Agreements”, was triggered. . From the point of view of efficiency, they constitute an advantageous and concrete tool so that the territories in which the projects are deployed receive revenues and improve their development expectations, also better maintaining the social license to operate the projects. Its success has prompted, in several jurisdictions, its regulatory recognition for obtaining permits.
In Chile, the mining industry has spent decades developing Impact-Benefit Agreements with local and indigenous communities circumscribed in their areas of influence, which generally go far beyond the compensation measures established in the environmental assessment or agreed upon in consultation indigenous peoples under the auspices of ILO Convention No. 169.
So, beyond the tax discussion, the experience, evolution and results of mechanisms such as the one described should not be ignored by the legislator when determining the purposes that a law like this seeks to satisfy. On the contrary, it would be very useful to stop to know and understand such tools, to focus on their regulatory and tax recognition, as well as on the establishment of minimum regulatory requirements that raise the standards of negotiation, governance and their administration.