In the article published on September 10, 2013, on the Notícias de Mineração website, lawyers Alexandre Sion, Giovanni Peluci Paiva, and Maria Carolina Faria Dutra explain why the DNPM acts illegally by denying responses to mineral research requests and the best way to address this situation.

Those involved in the mining world know that since the discussions began to present a proposal for a new regulatory framework for the Brazilian mining sector to Congress – Bill No. 5.807/2013 – the DNPM has stopped deciding on research authorization requests that have been duly submitted and filed.

This conduct, in many aspects, borders on unconstitutionality and illegality, opening up the possibility of judicial measures to correct this misconduct, as will be demonstrated below.

According to Decree-Law 227/1961, the current Mining Code, mineral research authorization is granted to entrepreneurs who meet the legally established requirements, which generally include the submission of a list of documents provided for in art. 16 of Decree-Law 227/1961 and the demonstration that the targeted area is available under the terms of art. 18 of Decree-Law 227/1961.

By reading art. 22 of the Mining Code Regulation, which states that once the mining law requirements are met, the area is free, and the publication fee and relevant fees are paid, the research permit will be granted, it becomes clear that research authorization is a binding administrative act, through which the Public Authority (Union) allows an entrepreneur to conduct studies in an area to assess its mineral potential for future and eventual exploitation, which will require the granting of a mining concession.

Therefore, considering that the granting of research authorization is a binding administrative act, it is understood that there is no need to analyze the so-called Discretionary Merit, and there is no debate in this case about the convenience and opportunity of the public administration in granting the authorization.

In this regard, considering the binding nature of the act, the denial of research authorization can only occur if the requirements established in arts. 16 and 18 of Decree-Law 227/1961 are not met, which are the strict parameters to be fulfilled to obtain the right to mineral research.

Nevertheless, regardless of the direction of the decision to be made by the Administration – whether approval or denial – it must be expressly rendered, constituting a right of the entrepreneur, and any denial must be justified, like any administrative act.

Regarding this decision, Decree-Law 227/1961 does not specify a deadline for analyzing research requests, nor does it establish the duty of the Administration to decide on the requests submitted to it.

However, considering that it is an Administrative Procedure, the provisions of Federal Law 9.784/99, which deals with Administrative Procedure at the federal level, would apply. According to Law 9.784/99, the Federal Public Administration has the duty to decide on the requests submitted to it and must do so within 30 days from the conclusion of the instruction (arts. 48 and 49, Law 9.784/99).

The request for mineral research authorization initiates a procedure that does not include a phase of evidentiary instruction, as it must be filed with all the applicable and necessary documents from its submission. Therefore, it must be considered that the instruction in the research authorization request procedures ends at the moment of submission.

Given the above, it is agreed that the 30-day period established by Law 9.784/99 begins on the date of submission of the research request, and the request should receive a response within 30 days of that date.

With the above premises established – research authorization as a binding administrative act and the duty to decide within 30 days – it is necessary to analyze the conduct, even if unofficial, of the DNPM regarding its stance on mineral research authorization requests that have been withheld within the agency.

Firstly, it must be noted that such conduct implies unconstitutionality, especially considering the constitutional norms set out in art. 5, clauses XXXIV and LXXVIII, and art. 37, both of the Constitution of the Federative Republic of Brazil of 1988 (CRFB).

Art. 5, clause XXXIV defines the right to petition public authorities, a right that encompasses not only the ability to submit requests to the Administration but also the certainty of obtaining a response. There is, in reality, an administrative duty to respond to submitted requests.

Thus, considering only clause XXXIV of art. 5 of the CRFB, it is possible to argue the unconstitutionality of the DNPM's omission, given that, as demonstrated above, it is the entrepreneur's right to obtain a response to the submitted request.

The unconstitutionality of the DNPM's conduct is reinforced when considering clause LXXVIII of art. 5 of the CRFB – which ensures everyone, within judicial or administrative scope, a reasonable duration of the process – combined with the principle of efficiency, enshrined in art. 37 of the CRFB.

It should be noted that the constitutional command embodied in the above-mentioned norms implies recognizing the right of the administered to a timely response in any administrative procedure within the Public Administration at any level of the Federation.

Moreover, it should be noted that the Union already has an express rule regarding the deadline for responses in administrative procedures.

Given the above, it should be noted the possibility of filing a Writ of Mandamus against the DNPM to obtain judicial recognition of the right to a response or the judicial granting of the research authorization itself. The Writ of Mandamus is a constitutional mechanism for individual and collective protection against illegal or arbitrary acts or threats by the Public Administration.

The admissibility of the Writ of Mandamus as a protective measure also depends on demonstrating the existence of a clear and certain right, i.e., a right that is evident from the beginning through documentary evidence.

Bringing the case of the undue suspension of decisions in administrative procedures for research authorization requests to this context, filing a Writ of Mandamus to ensure a response for entrepreneurs with pending requests is perfectly appropriate.

The illegal or arbitrary act is clear in this case. The administrative procedures initiated by research requests should be decided within 30 days from their submission, due to explicit legal determination (arts. 48 and 49, Law 9.784/99).

The lack of a response within the legal deadline, as well as the unofficial suspension of authorization grants, constitutes inadmissible arbitrariness, forming the basis for a potential Writ of Mandamus.

The clear and certain right is evident. According to applicable legislation (Law 9.784/99) and the CRFB (Art. 5, clauses XXXIV and LXXVIII), the entrepreneur has the right to receive a response to their request within a reasonable period, which, in this case, would be 30 days due to explicit legal imposition.

Without a decision within the legal deadline, there is a violation of the entrepreneurs' clear and certain right to obtain a decision in the administrative procedure within the legal period – a violation of arts. 48 and 49 of Law 9.784/99 and art. 5, XXXIV of the CRFB – and to its reasonable duration (Art. 5, LXXVIII, CRFB), thus opening the way for the Writ of Mandamus to protect the violated fundamental right.

This understanding is even echoed in recent decisions by the Federal Courts of Minas Gerais, Pará, and Mato Grosso.

Therefore, it is concluded that there is the possibility of filing a Writ of Mandamus to protect the interests of entrepreneurs with pending mineral research authorization requests, imposing on the DNPM the obligation to decide on the processes that have been withheld internally, illegally awaiting the resolution of discussions regarding Bill 5.807/2013.