‘Government may dictate resumption of lithium prospecting in Boticas, lawyers say’ (with José Luís Moreira da Silva)

José Luís Moreira da Silva, the Partner in charge of SRS Legal's Administrative and Environmental Department, emphasises that this is a possibility available to the ministry. ‘The government that set up the administrative easement has the power to decree the continuation of the work, by means of a Reasoned Resolution that recognises the serious harm to the public interest in maintaining the suspension,’ he says. Thus, the suspension of work can end if it is understood that there is serious damage to the public interest and ‘this seems to follow from the constitution of the easement, since the law presupposes the public interest in the exploitation of the geological resource,’ explains Moreira da Silva.

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José Luís Moreira da Silva, from SRS Legal, adds that the ‘law expressly provides for the constitution of easements over land necessary for prospecting and/or exploitation of mines’, within a maximum period of seven years. However, ‘easements are only constituted if the owner's consent cannot be obtained’ and these ‘can always be contested, as they imply damage to the owner of the land’.

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In Moreira da Silva's opinion, the only alternative to an administrative easement would be the owner's consent, but ‘since a geological resource is considered to be in the public interest, the state can overcome the lack of consent by expropriating it or merely creating an easement’. Ana Borges also sees the administrative easement as the most appropriate means of action, since ‘the alternative would most likely be the expropriation of private individuals, which can be considered more “violent”, unless the private individuals prefer the application of the latter’.

Although the creation of an administrative easement seems appropriate to Ana Borges, this does not prejudice ‘the right to fair compensation on the part of private individuals as a result of this intervention in their property’, she emphasises. In her opinion, the state could be held liable for the damage caused to the owners for having issued an invalid administrative act, if the court finds in favour of the latter and if the administrative suspension and work in that area continues.

SRS Legal emphasises that both the owners and Savannah itself could be compensated. ‘If the constitution of the easement is cancelled for some illegal reason, the lithium developer can claim compensation and so can the landowner.’

If the administrative suspension and the work in that area continue and, in the future, the court finds in favour of the owners, deciding that the order establishing the administrative easement was illegal, the state could be held liable for the damages caused to the owners for having issued an invalid administrative act.