On February 27, 2025, the instructions that regulate the exercise of the preferential right and the right of first option (the “Instructions”) of the National Mining Company ENAMI EP (the “ENAMI”), which regulate ENAMI’s rights over free mining areas in all mining regimes of metallic and non-metallic concessions in Ecuador, was published through Ministerial Agreement number MEM-MEM-2025-0007-AM. The following are the main elements of this new regulation:
- The rights that ENAMI may exercise are the following: i) preferential right[1], a) on its own initiative over free or special mining areas[2] or b) in auction processes initiated by private individuals or the State and ii) the right of first option[3], a) on its own initiative or b) in auction processes initiated by individuals or the State in mining areas whose rights have been extinguished[4].
- The procedure for exercising ENAMI’s rights on its own initiative is as follows:
- a) Request addressed to the Sectoral Ministry[5], with the following requirements[6]: i) name of the area requested, ii) location, iii) number of mining hectares requested, iv) mineral of interest, v) categorization of the mining regime, vi) cadastral coordinates and vii) the technical and economic justification report.
- b) The Sectoral Ministry forwards the request to ARCOM[7] within 5 days, so that the area of interest can be mapped.
- c) Certification from ARCOM[8] that establishes the nature of the right that ENAMI may exercise and that must be sent to the Sectoral Ministry within 5 days.
- d) A relevance report by the Sectoral Ministry[9], which must contain: i) a legal analysis of the exercise of the corresponding right, ii) a technical and economic analysis of the report justifying the request. In case of corrections, ENAMI must send them within 10 days and the Sectoral Ministry must issue a new relevance report within 10 days. If ENAMI does not make the requested corrections, or the area is not free, the application will be archived.
- e) Granting of the mining title[10] in the event that the report by the Sectoral Ministry is favorable through an administrative resolution within 10 days.
- f) Registration of the resolution in the Mining Registry and notarization in a notary public within 30 days of its notification[11].
- The procedure for exercising ENAMI’s rights in auction processes is as follows:
- Prior to the call for the auction process, the Sectoral Ministry must notify ARCOM, sending within 10 days a copy of the information[12] of the areas that are susceptible to procedures for ENAMI so that it can make a determination on the exercise of its rights, as appropriate.
- Within 120 days, ENAMI must make a determination of interest in the areas: i) in the event that the area is of interest it will communicate it to the Sectoral Ministry so that it can be excluded from the auction process, ii) if the area is not of interest, the Sectoral Ministry must be notified so that it can continue in accordance with the procedure and iii) if there is no determination and the failure to do so is attributed to the negligence of a public official, ENAMI will not lose this option, and a period of 90 days is granted to make a determination.[13]
- The Sectoral Ministry will request ARCOM to send the certification that establishes the nature of the right.
- Within 10 days after the certification is issued, the Sectoral Ministry will issue the technical, economic and legal relevance report, subject to corrections[14].
- Within 10 days, the Sectoral Ministry will issue a resolution granting the Mining Concession in favor of ENAMI.
- Within 30 days of its notification, ENAMI must notarize and register the resolution in the Mining Registry and send a duly registered copy to the Sectoral Ministry within 10 days.
This bulletin contains a summary of legal developments of interest, and therefore cannot be considered as provided advice. If you have any questions, please contact the AVL Abogados team.
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[1] Art. 4, Instructions.
[2] Art 24. Mining Law. Those declared as such by the President of the Republic, in accordance with Article 407 of the Constitution on the exceptional exploitation of protected areas and intangible zones.
[3] Art. 5, Instructions.
[4] Due to expiration, extinction, nullity or have been returned to the State.
[5] By the General Manager of ENAMI EP, and in accordance with the monthly planning sent by the Sectoral Ministry.
[6] Art. 7, Instructions.
[7] Art. 8, Instructions.
[8] Art. 20. General Regulations of the Mining Law.
[9] Art. 10, Instructions.
[10] Art. 11, Instructions.
[11] Art. 12. In accordance with Art. 11. General Regulations to the Mining Law.
[12] Geographical, geodesic, geological, technical and among others.
[13] Article 21. General Regulations to the Mining Law.
[14] Art. 15, Instructions.
