THE BRV'S PROPOSED MINING SECTOR REFORM: CHAVEZ

C O N F I D E N T I A L SECTION 01 OF 04 CARACAS 002047 SIPDIS SIPDIS ENERGY FOR CDAY, DPUMPHREY, AND ALOCKWOOD NSC FOR DTOMLINSON, INTERIOR FOR ITORRES E.O. 12958: DECL: 07/07/2016 TAGS: ECON EMIN EINV EIND VE SUBJECT: THE BRV'S PROPOSED MINING SECTOR REFORM: CHAVEZ GETS THE GOLDMINE AND THE PRIVATE SECTOR GETS THE SHAFT Classified By: Economic Counselor Andrew N. Bowen for Reason 1.4 (D) ¶1. (U) SUMMARY: On June 20, 2006, the Ministry of Basic Industries and Mines (MIBAM) proposed legislation in the National Assembly to reform Venezuela's mining laws and thereby empower the BRV to increase its control over the mining sector. Modeled on its reform of the petroleum sector, the bill would authorize the BRV to expropriate "idle" mining properties, cancel mining concessions for tax and regulatory violations, and transform private mining rights into majority-BRV-owned joint-ventures. The reform will directly affect little U.S. investment, relative to that in petroleum, but the bill is another instance of BRV hostility toward private property rights and private-sector business activity. Moreover, mining companies' experiences further evidence BRV administrative incompetence and corruption. END SUMMARY -------------- -------------- THE BRV SEEKS SPEEDY CONTROL OF VENEZUELA'S MINING SECTOR -------------- -------------- ¶2. (U) According to MIBAM Minister Victor Alvarez, the mining sector reform seeks to "rescue our sovereignty and effectively nationalize our mineral resources." Alvarez stated that the reform is part of the framework of the BRV's Bolivarian Revolution, the realization of which requires that Venezuela "recover sovereign control of the strategic sectors of our economy, of petroleum, land, basic industries, and mining resources." The proposal comes as mining and basic industries have assumed a more prominent place in Chavez's public discourse: in recent editions of his Sunday television program, "Alo, Presidente", Chavez has stressed the importance of government-led basic industries projects as sources of "endogenous development" for the Venezuelan economy. Reminiscent of Venezuela's state-led efforts to "sow the oil" during the 1970s petroleum price shocks, Chavez has stated that the BRV intends to build a series of industrial cities -- dedicated to, among other things, iron ore, gold, and diamond mining, as well as steel and aluminum production -- to reduce the country's reliance on imports for primary materials. ¶3. (U) The legislation would advance state control of the mining sector by eventually eliminating mining concessions and transforming all privately held mining rights into minority positions in joint-ventures with a newly created state mining company or, in the case of small miners, into operating contracts let by MIBAM. Most mining industry watchers believe that Chavez's allies in the National Assembly will pass the bill without material amendment before the mid-August legislative recess, after a perfunctory period of public discussion in which mining companies intend to participate, however fruitlessly. -------------- WHAT THE REFORM WILL DO TO MINING RIGHTS -------------- ¶4. (U) Alvarez claims that there are currently 760 separate issuances of mining rights in Venezuela: 413 concessions and 347 mining contracts let either by the Guayana Corporation of Venezuela (CVG),a state basic industries firm under MIBAM, or by the now defunct Ministry of Energy and Mines (MEM). Under the prevailing 1999 Organic Mining Law, concessions are a species of private property conferring on the concessionaire the exclusive right to explore and exploit the mineral resources found within the concessionary tract. As a property right, a concession can be alienated, subleased or used as collateral to obtain financing. Alvarez made plain that under the reform the order of the day is: "No more CARACAS 00002047 002 OF 004 concessions." ¶5. (U) The legislation contains several provisions through which the BRV would eventually eliminate concessions. First, the bill provides that upon its entry into force all applications for new concessions pending before MIBAM will be void. Many such applications have been pending for years, represent substantial time and investment, and remain pending only because of administrative inefficiency, incompetence, and corruption within MIBAM itself. Small miners in particular have expressed strong criticism of this provision, as it will eliminate what for many of them represents years of effort to secure the legal rights they need to obtain essential bank financing. ¶6. (U) Second, though the bill states in principle that existing concessions will be honored for their respective terms, it goes on to provide various predicates for cancellation, such as failure to pay all taxes or fees due in a given year, failure to complete feasibility studies on agreed timetables, or failure to begin exploration within three years of the concession's issue date. It merits mention in this connection that the BRV's tax authority (SENIAT) announced on June 28, 2006, that it intends to review the tax returns of companies throughout the mining sector, just as it recently audited and assessed arrears against those of the petroleum sector. Existing concessionaires will, however, have the option of converting their rights into minority interests in joint-ventures with a state mining entity, the National Mining Social Production Company, established by the legislation. ¶7. (U) The proposed reform further provides that once concessions expire by the passage of time or are canceled for whatever reason, all lands covered by them will be considered "free zones" and placed at MIBAM's disposition. All investments in such lands -- fixed or moveable, tangible or intangible -- will likewise become property of the state, free of encumbrance and without compensation to the concessionaire. ¶8. (U) While the above provisions will eventually eliminate concessions as a form of mining right in Venezuela, the legislation similarly disposes of mining contracts previously let by CVG and MEM. Unlike concessions, mining contracts simply confer upon the contracting party the right to explore and/or exploit mineral resources within a defined territory; such rights cannot be alienated, subleased or used as collateral. The bill provides that mining contract holders must convert their rights into majority-BRV-owned joint-ventures. Failure to initiate the conversion process within six months of the legislation's entry into force rescinds the contract. -------------- WHO WILL BE AFFECTED -------------- ¶9. (U) Alvarez claims that, taken together, existing concessions and mining contracts currently cover 1,363,005 hectares of Venezuelan territory and that 71.1% of this is currently inactive, while 20.3% is controlled by four large international corporations. Alvarez further alleges that large private companies routinely fail to exploit their concessionary territories and instead use their mining rights as assets against which they can raise capital. ¶10. (U) U.S. companies with concessions and significant investment in Venezuela include Hecla Mining Company, Gold Reserves Incorporated and Guaniamo Mining Company, a smaller, 75-percent-U.S.-owned diamond operation. In addition, CARACAS 00002047 003 OF 004 Crystallex International Corporation of Canada has the mining contract let by CVG to develop Las Cristinas, Venezuela's largest known gold deposit, but the company has not been able to begin production; it has been awaiting MIBAM approval of environmental permits since April 2004. While publicly Crystallex has been reassuring investors that its contract rights are secure and that it enjoys BRV support for the project, industry analysts are looking at the company as the proverbial canary in the mineshaft. If Crystallex is compelled to convert its contract to a majority-BRV-owned joint-venture, mining watchers believe all private companies will suffer the same fate. Most analysts agree that such an outcome will strongly discourage future foreign investment in Venezuelan mining. -------------- -------------- NO NEED TO DIG DEEP FOR BRV INCOMPETENCE & CORRUPTION -------------- -------------- ¶11. (C) Meeting with Econoffs, Gilberto Sanchez (protect) and Luis Machado (protect),respectively president and vice president of Venezuela's Chamber of Mining (CAMIVEN),stated that contrary to Minister Alvarez's allegations the largest holder of inactive mining rights in Venezuela is in fact CVG and that, because private-sector investors generally insist on seeing results as soon as possible, the suggestion that private-sector companies are sitting on their rights is simply fallacious. Sanchez and Machado further claimed that, to the extent that privately held mining rights were unproductive, the lack of activity had to do with inefficiency, incompetence, and corruption within MIBAM and the extreme difficulty of obtaining required permits. Sanchez and Machado also stated that MIBAM is currently staffed by politically loyal, technically incompetent, corrupt bureaucrats and that these administrative weaknesses, together with the proposed reforms, will staunch future foreign investment in Venezuela's mining sector. ¶12. (C) In a separate meeting with Econoffs, Dominic Channer (protect) -- vice president of Guaniamo Mining Company -- provided further evidence that incompetence and corruption have plagued both MIBAM and its predecessor, MEM, at least since 2003. Channer related that in 2003 then MEM Vice-Minister Orlando Ortegano personally visited Guaniamo and advised the company that two of its concessions had been summarily canceled, citing as justification (false) charges that the company had failed to pay taxes and comply with various regulations. (COMMENT: Ortegano's visit to Guaniamo was a clear shake-down attempt. END COMMENT.) Guaniamo contested the expropriations in Venezuela's courts (the litigation is still pending),but nevertheless proceeded to explore tracts covered by its remaining concessions. After having invested roughly $50 million in exploration and having attracted new investors, including Rio Tinto of the United Kingdom, Guaniamo received a letter from then newly installed MIBAM Minister Alvarez abruptly advising the company that all of its remaining concessions had likewise been canceled. Alvarez likewise cited tax and regulatory discrepancies, but added as justification Guaniamo's association with anti-Chavista Venezuelan businessmen. Channer subsequently learned that associates of Rafael Ramirez, current Minister of Energy and Petroleum and PDVSA President, have been angling to acquire Guaniamo's concessions. Guaniamo has thus had to stop all of its exploration and exploitation activities. The company is currently fighting all of the expropriations in Venezuela's Supreme Court. ¶13. (SBU) COMMENT: The BRV's mining sector reform is noteworthy not so much for what it will do to U.S. interests as for what it represents. As the draft's legislative process shows, Chavez's complete dominance of the National CARACAS 00002047 004 OF 004 Assembly assures that he can push through bills at will, disregarding input from those most affected by the laws. Further, the mining bill, like the reform of the petroleum sector, evinces Chavez's commitment to asserting ever greater state control of the economy, particularly with respect to industries he deems strategic. Moreover, mining companies' treatment at the hands of ministerial, vice-ministerial and lower levels of the BRV bureaucracy offers further proof that incompetence and corruption are exacting a terrible toll on the Venezuelan economy. BROWNFIELD