66 | LEGAL WORDS | Stefano Lucatello Brazil blunder


Each month we send a property-related legal problem to Kobalt Law who are experts in the fi eld. This month, we hear from an unhappy seller in Brazil who’s had some unexpected problems occur...


The Problem: My company sells property in Brazil. We


have sold a development in Natal which is now well overdue for delivery. We are told that the problem is that the envi- ronmental agency changed the details of the construction permitted next to the water and that the redesign required took a long time to be agreed.


What is the environmental agency and what role does it have?


More importantly, what paperwork do we need to see for future developments to make sure that everything is really in order and the development should go ahead? We have been disappointed to encounter this problem because we thought we had made sure everything was 100% in order. Clearly, we were wrong.


OPP RESPONSE B


razil, as a developing country, has had to adopt a body of law, known as Environmental Law, over the last 20 years. Initially this came about as a result of the continuous illegal logging operations in the Amazon forest, which deplete huge areas of trees every year. This illegal logging then causes air pollution, because of the fi res started by the loggers. The Government was therefore forced to safeguard its natural resources, of water, air, forest, fl ora and fauna, especially located in the


“Brazil, as a


developing country. has adopted Environmental Law in the last 20 years”


Amazon Basin, including the rainforest, by implementing legislation. The Brazilian Government therefore


created its own National Environment System- [“SISNAMA”]. This was established by Law No 6938, passed on August 31, 1981. The System is made up of bodies and


institutions from Federal to local level, establishing governmental agencies responsible for the protection and improvement of environmental quality. It is made up as follows; Upper Body: The Governing Council Deliberative Body and Advisory: The


National Environment Council - CONAMA Central Organ: The Ministry of Environment - MMA Executing Agency: The Brazilian Institute of Environment and Renewable Natural Resources - IBAMA Sectional Bodies: agencies or state entities responsible for implementing programs and projects for the control and supervision of activities capable of causing environmental degradation; At Local Government level: Municipal bodies or entities responsible for the control and supervision of these activities. SISNAMA’s objectives are achieved


through the interaction of joint coordinated bodies, as established by CONAMA. It is then up to the States, the Federal Districts and Municipalities to interpret and apply such measures emanating from SISNAMA The Ministry of the Environment,


then produces an annual report on the state of the environment, detailing all its major achievements and fi gures. The Brazilian Ministry of the Environment therefore created a specifi c protection body called “The Brazilian Institute of Environment and Renewable Natural Resources (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis), known as “IBAMA” as part of SISNAMA. With specifi c reference to water


pollution, IBAMA is charged with the responsibility of protecting Brazil’s


Stefano Lucatello is senior partner at Kobalt Law LLP, a specialist international law fi rm based in London. He has practised international law as a solicitor for more than 25 years, specialising in foreign property, litigation law and related matters. Email: stefanol@kobaltlaw.co.uk Telephone: +44 (0) 2077 391 700


national waters from pollution. This is achieved by establishing acceptable levels of pollutants in the rivers and water tables and requiring any excess amounts to be removed. It is a two- pronged approach: limits on what can be allowed in the water and prevention at the source. Much of IBAMA‘s focus is on direct pipe discharge, whether wastewater treatment plants or companies.


It also regulates Agricultural businesses, to prevent excess nutrient runoff into waterways.


“It is a two-pronged approach: limits on what’s allowed and prevention at the source”


IBAMA, as the Environmental


licensing Agency, produces Local, Regional and Federal regulations, which are then applied to individual projects and developments, whether they are of a residential or industrial development nature. Protection of the environment


is a legal requirement prior to the commencement of any project or activity, which could potentially pollute or degrade the environment. IBAMA also operates by licensing large infrastructure projects involving environmental impacts caused by oil and gas exploration on the continental shelf. One of IBAMA’S most important


tasks is to interact, at grass roots, with individuals, groups and tribes, who might be affected by such development or regeneration. As Brazil is the fi fth largest World economy, this is no mean task, as its powers are supposed to cover


its whole geographical area of 8,514,215 km2 (3,287,357 sq mi) which includes 8,456,510 km2 (3,265,080 sq mi) of land and 55,455 km2 (21,411 sq mi) of water. It does this by means of social participation in decision making, by conducting public hearings as part of the process. This obligation is shared by other State Environmental Agencies, integral parts of SISNAMA. The main guidelines for the


implementation of environmental licensing are set out in Law 6.938/81 and the CONAMA Resolution 001/86 and No. 237/97. In addition to this, Law No. 140/2011, sets out clearly the jurisdiction for state and federal licensing, dependent on the exact area of the particular project. For all future projects, you must make the necessary environmental applications to the Planning authority in the particular area, in this case Natal. The environmental matters will be lodged with the planning application and these will then be considered by the environmental agency in the area, which will tell you what it is looking from you in terms of environmental protection and how you must achieve this. Local requirements differ from one area to another dependent on how the area is made up. Each authority will set out its requirements and then you must show that you have complied or that you will comply within the required timescales. The fi nal permission for the whole project will then be issued in a document called the “ Incorporacao”. Stefano Lucatello, Senior partner Kobalt Law LLP For more information please email info@kobaltlaw.co.uk


PROBLEM PAGE


www.opp-connect.com | FEBRUARY 2013


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