Sei sulla pagina 1di 385

The

Mining Law
Review

Editor
Erik Richer La FlÈche

Law Business Research


The Mining Law Review
The
Mining Law
Review

Editor
Erik Richer La FlÈche

Law Business Research Ltd


The Law Reviews
THE MERGERS AND ACQUISITIONS REVIEW

THE RESTRUCTURING REVIEW

THE PRIVATE COMPETITION ENFORCEMENT REVIEW

THE DISPUTE RESOLUTION REVIEW

THE EMPLOYMENT LAW REVIEW

THE PUBLIC COMPETITION ENFORCEMENT REVIEW

THE BANKING REGULATION REVIEW

THE INTERNATIONAL ARBITRATION REVIEW

THE MERGER CONTROL REVIEW

THE TECHNOLOGY, MEDIA AND


TELECOMMUNICATIONS REVIEW

THE INWARD INVESTMENT AND


INTERNATIONAL TAXATION REVIEW

THE CORPORATE GOVERNANCE REVIEW

THE CORPORATE IMMIGRATION REVIEW

THE INTERNATIONAL INVESTIGATIONS REVIEW

THE PROJECTS AND CONSTRUCTION REVIEW

THE INTERNATIONAL CAPITAL MARKETS REVIEW

THE REAL ESTATE LAW REVIEW

THE PRIVATE EQUITY REVIEW

THE ENERGY REGULATION AND MARKETS REVIEW

THE INTELLECTUAL PROPERTY REVIEW

THE ASSET MANAGEMENT REVIEW

THE PRIVATE WEALTH AND PRIVATE CLIENT REVIEW

THE MINING LAW REVIEW

www.TheLawReviews.co.uk
PUBLISHER
Gideon Roberton

BUSINESS DEVELOPMENT MANAGERS


Adam Sargent, Nick Barette

MARKETING MANAGERS
Katherine Jablonowska, Alexandra Wan

PUBLISHING ASSISTANT
Lucy Brewer

EDITORIAL ASSISTANT
Lydia Gerges

PRODUCTION MANAGER
Adam Myers

PRODUCTION EDITORS
Anne Borthwick, Joanne Morley

SUBEDITOR
Caroline Rawson

EDITOR-IN-CHIEF
Callum Campbell

MANAGING DIRECTOR
Richard Davey

Published in the United Kingdom


by Law Business Research Ltd, London
87 Lancaster Road, London, W11 1QQ, UK
© 2012 Law Business Research Ltd
© Copyright in individual chapters vests with the contributors
No photocopying: copyright licences do not apply.
The information provided in this publication is general and may not apply in a specific
situation. Legal advice should always be sought before taking any legal action based
on the information provided. The publishers accept no responsibility for any acts
or omissions contained herein. Although the information provided is accurate as of
November 2012, be advised that this is a developing area.
Enquiries concerning reproduction should be sent to Law Business Research, at the
address above. Enquiries concerning editorial content should be directed
to the Publisher – gideon.roberton@lbresearch.com

ISBN 978-1-907606-46-5

Printed in Great Britain by


Encompass Print Solutions, Derbyshire
Tel: +44 870 897 3239
ACKNOWLEDGEMENTS

The publisher acknowledges and thanks the following law firms for their learned
assistance throughout the preparation of this book:

ADVOCAAT LAW PRACTICE

ANAND & BATZAYA ADVOCATES

ANDERSON & ANDERSON LLP

AVENT ADVOKAT

CARCELÉN & CIA – ABOGADOS

CGA – COUTO, GRAÇA & ASSOCIADOS

CRA – COELHO RIBEIRO & ASSOCIADOS

CRB AFRICA LEGAL

EKVITA LLC

EMERY MUKENDI WAFWANA & ASSOCIÉS

ENGLING, STRITTER & PARTNERS

ENS (EDWARD NATHAN SONNENBERGS)

FORTUN NARVASA & SALAZAR

HAMMARSTRÖM PUHAKKA PARTNERS, ATTORNEYS LTD

HERGÜNER BILGEN ÖZEKE ATTORNEY PARTNERSHIP

HOLLAND & HART, LLP

i
Acknowledgements

MAYER BROWN INTERNATIONAL LLP

MIRANDA CORREIA AMENDOEIRA & ASSOCIADOS

PÉREZ BUSTAMANTE & PONCE

REM LAW CONSULTANCY

SCPA MANDELA

STIKEMAN ELLIOTT LLP

TABACKS ATTORNEYS AND CORPORATE LAW ADVISORS

TOZZINIFREIRE ADVOGADOS

VÁZQUEZ, SIERRA & GARCÍA SC

ZUZUNAGA & ASSERETO ABOGADOS

ii
CONTENTS

Editor’s Preface ���������������������������������������������������������������������������������������������������ix


Erik Richer La Flèche

PART I MINING LAW����������������������������������������������������� 1–264

Chapter 1 ANGOLA���������������������������������������������������������������������������������� 1
João Afonso Fialho and Hugo Moreira 

Chapter 2 AZERBAIJAN������������������������������������������������������������������������� 12
Ilgar Mehti and Nurlan Mammadov 

Chapter 3 BRAZIL����������������������������������������������������������������������������������� 22
Luiz Fernando Visconti 

Chapter 4 CANADA�������������������������������������������������������������������������������� 34
Erik Richer La Flèche and David Massé  

Chapter 5 DEMOCRATIC REPUBLIC OF THE CONGO����������������� 44


Emery Mukendi Wafwana, Edmond Cibamba Diata,
Nady Mayifuila, Jonathan van Kempen
and Eric Mumwena Kasonga 

Chapter 6 ECUADOR����������������������������������������������������������������������������� 58
Jaime P Zaldumbide and Jerónimo Carcelén 

Chapter 7 FINLAND������������������������������������������������������������������������������� 63
Tarja Pirinen 

Chapter 8 GHANA����������������������������������������������������������������������������������� 73
Innocent Akwayena and Enyonam Dedey-Oke 

Chapter 9 MEXICO��������������������������������������������������������������������������������� 87
Alberto M Vázquez 

v
Contents

Chapter 10 MONGOLIA������������������������������������������������������������������������� 102


Batzaya Bodikhuu and Enkhtsetseg Nergui 

Chapter 11 MOZAMBIQUE������������������������������������������������������������������� 115


João Afonso Fialho and Nuno Cabeçadas 

Chapter 12 NAMIBIA������������������������������������������������������������������������������ 126


Axel Stritter 

Chapter 13 NIGER���������������������������������������������������������������������������������� 144


Daouda Samna Soumana 

Chapter 14 NIGERIA������������������������������������������������������������������������������� 152


Oladotun Alokolaro 

Chapter 15 PERU������������������������������������������������������������������������������������� 162


Giannina Assereto 

Chapter 16 PHILIPPINES����������������������������������������������������������������������� 175


Roderick R C Salazar III and Geraldine S Meneses-Terrible 

Chapter 17 PORTUGAL�������������������������������������������������������������������������� 191


Rui Botica Santos and Luis Moreira Cortez 

Chapter 18 SOUTH AFRICA������������������������������������������������������������������ 202


Modisaotsile Matlou 

Chapter 19 TANZANIA��������������������������������������������������������������������������� 220


Charles R B Rwechungura, Cyril Pesha
and Pendo Marsha Shamte 

Chapter 20 TURKEY������������������������������������������������������������������������������� 229


Safiye Aslı Budak and Merve Nazlı Kaylan 

Chapter 21 UNITED STATES���������������������������������������������������������������� 241


Robert A Bassett, Karol L Kahalley and David I Stanish 

Chapter 22 UZBEKISTAN���������������������������������������������������������������������� 252


Eldor Mannopov, Anna Snejkova and Ulugbek Abdullaev 

vi
Contents

PART II CAPITAL MARKETS�������������������������������������� 267–338

Chapter 23 BRAZIL��������������������������������������������������������������������������������� 267


Rodrigo de Campos Vieira 

Chapter 24 CANADA������������������������������������������������������������������������������ 271


Erik Richer La Flèche, Raymond McDougall
and David Massé 

Chapter 25 MONGOLIA������������������������������������������������������������������������� 282


Yancy Cottrill and David C Buxbaum 

Chapter 26 MOZAMBIQUE������������������������������������������������������������������� 294


Jorge Graça, Taciana Peão Lopes, Paulo Ferreira
and Márcio Paulo 

Chapter 27 NAMIBIA������������������������������������������������������������������������������ 298


Axel Stritter 

Chapter 28 SOUTH AFRICA������������������������������������������������������������������ 310


Francois Joubert, Catharine Keene, Robin Beale,
St Elmo Wilken, Christopher Gibson and Itumeleng Mati 

Chapter 29 TURKEY������������������������������������������������������������������������������� 321


Safiye Aslı Budak and Merve Nazlı Kaylan 

Chapter 30 UNITED KINGDOM���������������������������������������������������������� 329


Kate Ball-Dodd and Connor Cahalane 

Appendix 1 ABOUT THE AUTHORS���������������������������������������������������� 339


Appendix 2 CONTRIBUTING LAW FIRMS’ CONTACT DETAILS����355

vii
editor’s preface

I am pleased to have participated in the preparation of the first edition of The Mining
Law Review. The Review is designed to be a practical, business-focused ‘year in review’
analysis of recent changes and developments, their effects and a look forward at
expected trends.
This book gathers the views of leading mining practitioners from around the
world and I warmly thank all the authors for their work and insights.
The first part of the book is divided into 22 country chapters, each dealing with
mining in a particular jurisdiction. Countries were selected because of the importance of
mining to their economies and to ensure broad geographical representation. Mining is
global but the business of financing mining exploration, development and – to a lesser
extent – production is concentrated in a few countries, Canada and the United Kingdom
being dominant. As a result, the second part of this book includes eight country chapters
focused on financing.
The advantage of a comparative work is that knowledge of the law and
developments and trends in one jurisdiction may assist those in other jurisdictions.
Although the chapters are laid out uniformly for ease of comparison, each author had
complete discretion as to content and emphasis.
After the lost decades of the 1980s and 1990s came the mining boom of the past
decade and the beginning of the ‘Commodities Super-Cycle’. During this time, the price
of industrial minerals and other commodities rose sharply. Needless to say, the mining
boom has resulted in the resurgence of mining and has been a boon to many emerging
economies, particularly in Africa and South America.
Will the super-cycle continue? If one accepts that the root cause of the super-cycle
is China, then the answer is yes and mining has a bright future: China needs minerals to
continue its industrialisation and the rollout of modern cities and infrastructure. While
its stated objective is to build a modern service-oriented economy, China is at best 10 to
15 years away from transiting out of its current intensive mineral consumption phase.
As a result, continued strong demand should sustain prices for the next decade – this

ix
Editor’s Preface

is particularly true for metals little found in China. Thereafter, demand should remain
strong as the world adds an estimated 2 billion to its population by 2050, most of whom
will reside in emerging markets and – if the past is indicative of the future – will want
greatly improved living standards.
The Commodities Super-Cycle has fuelled increased mining activity across
the globe. It has also given rise to the most important trend facing mining: economic
nationalism. Governments, under pressure from their exchequers and populations, want
increased and – perhaps more problematically – immediate economic benefits from
mining. This phenomenon can be observed in post-industrial economies as well as in
emerging ones and across all political lines. No country is immune from this trend.
The long period of sustained high prices for minerals and metals has greatly
increased expectations and mining companies and governments are struggling to
achieve the right balance between competing interests. The question of the day is how
predictably and fairly to share income among various stakeholders: governments, mining
communities, mining companies, their shareholders and employees. This is a very
difficult question and there is no ‘one-size-fits-all solution’.
Mining projects are endeavours of long gestation, which can take 10 years or more
between discovery and commissioning. Mining projects are also very capital-intensive
with a front-ended investment profile. In other words, mining companies invest large
amount of money early but have multi-decade payback horizons and require stable legal
and tax environments in order to attract project capital.
Governments, on the other hand, are subject to shorter-term pressures. Their
budgets are yearly affairs, employees and local communities are impatient, and politicians
are at the mercy of electoral cycles. The tax-receipt profile of mining projects, however,
is predominantly back-ended; that is to say, governments receive the bulk of taxes and
other charges many years after project commissioning and project debt repayment.
The long-term needs of projects for stable legal and tax environments and the
short-term pressures placed on governments for more revenues has led to friction. While
governments have considerable leverage thanks to supply constraints and high prices,
they must nonetheless walk a fine line. They need to be careful not to ‘kill the golden
goose’ while avoiding a ‘race to the bottom’. After all, governments compete with each
other to attract mining projects and mining companies can jurisdiction shop.
Economic nationalism is not limited to raising taxes: it can take other forms,
including governmental or local ownership, benchmark export pricing, minimum in-
country transformation, and export restrictions to ensure supply to local industry.
How can mining companies mitigate risks posed by economic nationalism? One
of the best mitigation strategies is for mining companies to have a strong ‘social licence’.
A social licence may be defined as the acceptance or – better still – the approval of the
community adjacent to a project. A strong social licence is not only effective against
governmental overreach but can also serve as an effective anti-corruption mechanism.
A social licence has to be earned and maintained. This is best achieved through
multi-stakeholder dialogues, local economic involvement, good environmental
performance and social inclusion. Medical clinics, schools, roads, power plants, irrigation
dams and water treatment plants are some of the types of projects carried out by mining
companies as part of their social licence.

x
Editor’s Preface

As you consult this book you will find more on economic nationalism and other
topics apposite to jurisdictions of specific interest to you, and I hope that you will find
this book useful and responsive.

Erik Richer La Flèche


Stikeman Elliott LLP
Montreal
November 2012

xi
Part I

Mining Law
Chapter 1

ANGOLA
João Afonso Fialho and Hugo Moreira 1

I OVERVIEW

While oil is undisputedly Angola’s most important natural resource, the country has
always been recognised for having vast and diverse reserves of other minerals. Since the
first official discovery of diamonds in 1912, the country has been on a path towards
becoming a renowned and prosperous mineral producer in Africa. Although most natural
resource exploration and mining activities were abandoned and discontinued during
nearly 30 years of civil war, which ended in 2002, Angola has continually attracted the
major worldwide players in the sector to invest in the diamond industry, which remained
operational throughout the civil war. More recently, mining investors and entrepreneurs
have been resuming their activities and are exploiting Angola’s wide range of other
valuable natural resources, including iron ore, phosphates, copper, gold and manganese.
Large-scale mining projects in Angola typically involve an international investor
or operator (such as South African, Russian, Australian and American majors) and one
or more local partners. In fact, the Angolan government is very keen to encourage the
participation of Angolan companies in mining projects where these companies lack the
technical and financial capabilities required to launch and operate the projects themselves.
Typically, trading agreements regarding minerals are entered into on a project-by-project
basis, with mineral production being channelled for both the domestic and international
markets.
Although no country may be deemed entirely exempt from political risk, since
the end of the civil war Angola has been consolidating its democracy, and the outcome of
the general elections in August 2012 seems to indicate that the existing political stability

1 João Afonso Fialho is a partner and Hugo Moreira is a senior associate at Miranda Correia
Amendoeira & Associados.

1
Angola

will continue in the coming years, allowing the country to continue its reconstruction,
development and growth activities.
Investors contemplating the implementation of a mining project in Angola
should bear in mind and adequately address areas of concern such as:
a the bureaucracy of the public administration;
b the need for professional training and integration of members of local communities;
c the balance between the employment conditions offered to expatriate personnel
and local personnel;
d the level of security required to protect a mining project’s employees and assets;
and
e the security against theft of minerals produced.

Despite the uncertainty in the current world economy, Angola is endeavouring to step
up the pace of its reconstruction and sustainable growth, notably by attracting more
foreign investment and by developing industries deemed strategic, thus strengthening
the country’s importance in the context of Africa in general, and in the southern region
of the continent in particular. The enactment in 2011 of a new Private Investment Law
and a new Mining Code is a clear example of the Angolan government’s commitment
towards developing and modernising the country’s economy; it provides the backdrop
for the social advancement of Angolan communities living in provinces that have not
been typical investment targets.

II LEGAL FRAMEWORK

Until the enactment of the Mining Code (approved by Law 31/11 of 23 September
2011, which entered into force on 23 December 2011), the Angolan legal framework
applicable to mineral activities was scattered throughout various statutes, including the
1992 Mineral Activities Law, the 1994 Diamond Law, the 1996 Regulations on the Tax
Regime for the Mining Industry and the 1996 Customs Regime for the Mining Industry.
Given the political and administrative organisation of the state and its legal system, all
laws and regulations are issued at state level and apply throughout the country’s territory.
The Mining Code repealed almost all of the industry-specific statutes previously
in force (one of the very few not expressly revoked is the 2003 Foreign Exchange Regime
for the Mining Industry, approved by the National Bank of Angola), and consolidated
in a single piece of legislation the majority of the rules and regulations applicable to the
mining industry and governing mineral operations, while simultaneously updating the
legal regime that had been in effect for nearly two decades. Reference should also be
made to the Private Investment Law, which applies on a subsidiary basis to investments
in the mining industry, and to Presidential Decree 182/10 of 23 August 2010, approving
the diamond marketing strategy.
Despite this comprehensive legal regime, the most significant operational and
economic terms and conditions remain subject to the specific provisions set out in the
contractual instruments for the granting and exercise of mineral rights. For this reason,
the Angolan mineral framework is often described as a contractual system.

2
Angola

In terms of international treaties, the bilateral cooperation treaties for the


mining sector with South Africa and Mozambique (of 2005 and 2009, respectively)
are worth mentioning. Angola is also a party to the Kimberley Process Certification
Scheme (‘the KPCS’), as well as to a number of environment-related international
instruments, such as the Convention on Biodiversity, the Cartagena Protocol, Agenda
21 and the International Convention on Waste, which under the Mining Code are
expressly applicable to mineral activities carried out in the country.
The main regulatory bodies to which the Angolan mining industry is subject
are the Ministry of Geology, Mines and Industry (‘the MGMI’), the National Private
Investment Agency, the Ministry of Finance and the National Bank of Angola (‘the
BNA’).
Holders of mineral rights are subject to various reporting requirements relating
to their activities, covering issues such as personnel statistics, welfare initiatives, and
technical, economic, social and sales data relating to the operations, as well as the impact
of the activities carried out on land occupancy and the environment.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
Under the Angolan Constitution, mineral resources are the property of the state, which
defines the conditions for access to, exploration, evaluation, mining and marketing
of mineral resources. Said conditions are addressed and developed in the Mining
Code, which applies to all activities in connection with the exploration, evaluation,
reconnaissance, mining and marketing of mineral resources, except for liquid and
gaseous hydrocarbons.
In turn, minerals and mining products mined and extracted in accordance with
the rules of the Mining Code and ancillary legislation are the property of the holders
of the relevant exploration and mining titles as provided for in the relevant concession
contracts.

ii Surface and mining rights


A key principle of the Mining Code is the concept of ‘strategic minerals’. Minerals may be
classified as strategic when this is justified by their economic importance, use for strategic
purposes or specific technical mining aspects. Factors such as rarity, great demand in the
international market, relevant impact on economic growth, significant job creation or
importance to the military industry are also taken into consideration. Diamonds, gold
and radioactive minerals are expressly defined as strategic minerals under the Mining
Code, although the government is entrusted with powers to classify other minerals as
strategic.
One area where the classification of a given mineral as strategic is particularly
relevant relates to the procedure for the granting of mineral rights over said mineral.
Generally speaking, mineral rights are granted pursuant to either a public tender
procedure launched by the MGMI or an application submitted by the concerned party
to the MGMI. The relevance of a given mineral being classified as strategic in this context

3
Angola

is that rights over strategic minerals shall be mandatorily granted pursuant to a public
tender procedure.
The general designation of ‘mineral rights’ covers all type of rights that can be
granted under the Angolan legal framework in connection with minerals (i.e., exploration,
evaluation, reconnaissance, mining and marketing rights). Nothing in the Angolan legal
system imposes any restrictions on mineral rights that can be acquired and exercised by
foreign entities, subject of course to such entities complying with the formalities and
procedures applicable to foreign investors, and to the exercise in Angola of industrial or
business activities by foreign companies. The only exceptions to this principle are that,
under the Mining Code, mineral rights for exploration or mining of minerals for civil
construction may only be granted to Angolan citizens, or to companies organised under
Angolan law in which Angolan citizens hold at least two-thirds of the share capital; and
only Angolan citizens may engage in artisanal mining.
Another innovation brought about by the Mining Code is the adoption of a
single-contract model, under which mineral rights are granted, from the outset, for the
whole of the mineral process. This represents an important change of paradigm and an
increased guarantee for investors, as under the former legal framework mineral projects
were typically subject to two separate contracts: one for exploration, evaluation and
reconnaissance, and another for mining and marketing.
Although both exploration and mining rights are now granted under a single
contract, an exploration title and a mining title need nonetheless to be issued as a
condition for the exercise of the relevant rights. The mineral rights for exploration are
granted for an initial term of up to five years, and two one-year extensions are allowed.
In the event that the initial term and the extensions are not sufficient to prepare and
conclude the technical, economic and financial viability study (‘TEFVS’) required for
the project’s transition to the mining phase, the holder of the mineral rights may request
an exceptional extension, for a maximum of one year, to complete the TEFVS. In turn,
mining rights are granted for a period of up to 35 years and may be extended for one or
more 10-year periods.
To date, no public tender has been launched for the granting of mineral rights
over any strategic mineral, and consequently it is not possible to predict how long such a
procedure will take. It will be, one may suspect, a time-consuming process. As regards the
time frame within which mineral rights are to be granted outside the scope of a public
tender procedure, the Mining Code sets a maximum period of 290 days for the (final)
capital importation licence to be issued by the BNA, counted as from the submission of
the application for the granting of mineral rights.
The general condition to which mineral rights are subject is strict compliance
with the statutory and contractual terms under which said rights are granted and are
to be exercised. In fact, failure by holders of mineral rights to comply with the legal
obligations or those deriving from the contract or concession title qualify as grounds for
termination of the concession contract or for revocation of the concession title.
Investors are granted broad legal guarantees, such as:
a the right to mine the mineral resources discovered during exploration without
any restrictions;

4
Angola

b the right to freely dispose of and market the mining products;


c the right to recover the investment expenses incurred during the exploration
phase; and
d the right to receive compensation for such losses as may result from any actions
limiting the exercise of their mineral rights.

Unlike the former legal framework, which provided that in the event of any disagreement
not resolved amicably, the parties were required to refer it to arbitration in Angola, the
Mining Code does not provide for a particular forum for settlement of disputes.
The Mining Code generally refers to the disputes resolution clause of the relevant
mineral investment contract (typically an arbitration clause). Foreign arbitral awards must
be confirmed and recognised by an Angolan court in order to be enforceable in Angola.
As Angola is not a signatory of the 1958 New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, the confirmation and recognition process is
conducted in accordance with local rules, without involving a review of the merits of
the case.
The Angolan Constitution provides that the courts are independent and cannot
accept any form of interference from any other public body. Their decisions are final
(subject to the appeal process only) and prevail over the decisions of any other entities.

iii Additional permits and licences


Other than the general licences, permits and registrations required to conduct any type
of industrial or business activities in Angola (e.g., tax registration, commercial operations
permit, environmental licence, and foreign investment registration certificate and capital
importation licence, if applicable), the only additional industry-specific document that
foreign or Angolan companies intending to engage in mineral activities are required to
obtain is a ‘mineral registration certificate’, whereby the MGMI attests that the corporate
purpose of the entity in question is connected with the mining industry.

iv Closure and remediation of mining projects


Damage caused by exploration and mining activities entails responsibility on the part of
the exploration or mining titleholder, who is subject to legal sanctions and to the duty of
compensation, regardless of any contractual provisions.
Generally, the mandatory environmental impact assessment study (‘EIAS’)
required for a mineral project to transition into the mining phase already sets out how
the closure of the project will be handled from an environmental standpoint. In addition,
mining titles frequently focus on the actions necessary for recovery and reclamation
purposes (e.g., dismantling and removal of facilities and infrastructures, reforestation,
social rehabilitation or water course restoration).
Holders of mineral rights are further required to set up a legal reserve for the
purposes of mine closing and environmental restoration, in an amount corresponding to
5 per cent of the investment.

5
Angola

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


The Mining Code foresees the adoption of industry-specific environmental rules, but
no such regulations have yet been enacted. As a result, mineral activities are subject
to the general laws and regulations on environmental protection, notably the General
Environmental Law, the Law on Biological and Aquatic Resources, the Water Law and
the rules on environmental impact assessments (‘EIAs’).
Similarly, as no industry-specific legislation exists in the fields of health and safety,
the general standards applicable in this regard are those set out in the General Labour
Law, which contains the key principles, requirements, rules and procedures applicable to
the employment of a labour force, and in its ancillary statutes and regulations.

ii Environmental compliance
Pursuant to the Mining Code, an EIAS must be prepared and submitted together with
the TEFVS. The approval of these instruments by the relevant government authorities
is a condition precedent for any mineral project to transition into the mining phase and
for the issuance of the required mining title.
However, under the Decree on Environmental Impact Assessment, any projects
that by their nature, dimension or location bear upon the environmental and social
balance and harmony shall be subject to an EIA. This means that, as regards exploration,
evaluation and research activities, much will depend on the activities in each case. Where
such research work includes the execution of trenches, pits, holes, drilling or perforations,
and any work associated with it, the impact upon the environment may be such that an
EIA may become legally necessary before the mining phase is reached.
All activities and projects that are subject to an EIA procedure are required
to obtain an environmental licence, which must be applied for as soon as the EIA is
concluded. Environmental licensing is divided into a two-stage procedure:
a an installation licence, which authorises the construction of the relevant facilities,
according to the specifications described in the project as approved by the public
body with supervisory authority over the business activity; and
b an operating licence, which is granted after the requirements stated in the EIAS
are met. Consequently, an operating licence may not be granted without a prior
installation licence.

In the event that no formal decision is notified to the applicant within 90 days of the
environmental licence being applied for, the licence is deemed as granted.

iii Third-party rights


The Mining Code contains a number of provisions regarding the rights of local
communities residing in areas where mineral activities are to be carried out, including
the right to be consulted during the preparation of the EIAS and prior to the taking
of decisions that might affect their living conditions or rights. Such consultation is
absolutely mandatory in the event that a mining project is likely to destroy or damage

6
Angola

any assets or cultural or historical heritage belonging to the local community as a


whole.
Holders of mineral rights must relocate, at their expense, any local community
that is displaced by reason of the mineral operations, and all traditions, customs and
practices of local communities must be taken into account in the relocation process. In
the event of relocation of a local community residing in a restricted or protection area,
holders of mineral rights are required to build:
a suitable accommodation; and
b social and community infrastructure, such as schools, health centres, community
centres, temples, and a water supply and other systems, in order to offer conditions
at least equivalent to those of the pre-existing settlements.

Holders of mineral rights are also legally required to give preference to the hiring of
national individuals over expatriates, with special preference being given to members of
local communities.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


The Mining Code does not impose specific restrictions on the importation of machinery
and equipment, or services required in connection with exploration and mining. In
addition, holders of mineral rights benefit from a customs duties exemption in the
importation of goods for exclusive and direct use in carrying out mineral exploration,
evaluation, reconnaissance, mining and processing operations. In the interest of protecting
local industries, the above exemption does not apply if goods of the same or a similar
quality (and available for delivery within a reasonable delay), at a price not exceeding by
more than 10 per cent the cost of the imported item, are available in Angola.
Holders of mineral rights for mining and marketing are also granted rights
to dress or process the minerals extracted or produced. One of the elements that the
mining plan forming an integral part of the TEFVS must comprise is a description of
the dressing procedures and, where appropriate, the technology for mineral processing.
The local processing and dressing of minerals is one of the factors that may be taken into
consideration within the context of the granting of tax incentives.
As mentioned in Section IV.iii, supra, holders of mineral rights must give
preference to the hiring of national individuals over expatriates, with special preference
being given to members of local communities. Furthermore, under the Private Investment
Law, companies incorporated for purposes of private investment are required to employ
Angolan workers, guaranteeing them the necessary vocational training, and providing
them with a salary and other employment terms compatible with their qualifications,
any type of discrimination being prohibited. In accordance with the laws in force, such
companies may also employ qualified foreign workers, while complying with a strict plan
for the training or development of Angolan technical staff, or both, with a view to the
progressive filling of those positions by Angolan workers.
A general principle under the Angolan labour laws is that at least 70 per cent of
the workforce of an Angolan or foreign employer that employs more than five workers

7
Angola

must be Angolan nationals. This principle is considered by the Angolan authorities as the
minimum standard for the structuring of a company’s workforce.
In relation to the procurement of services, materials and other goods, holders
of mineral rights are legally required to give preference to Angolan suppliers, provided
that the relevant items’ quality is consistent with the economy, safety and efficiency of
the mineral operations, and that their prices are not more than 10 per cent higher and
their period for delivery is not more than eight business days longer than those of the
imported items.

ii Sale, import and export of extracted or processed minerals


Mining companies are entitled to market mineral resources that are the product of
mining, processing or metallurgical extraction, and are also entitled to participate in the
negotiations and preparation of contracts or agreements for the marketing of minerals
produced in mines located in their concessions.
Specifically as regards strategic minerals, the government may set up one or more
marketing companies, with a view to purchasing minerals directly from the producers, in
an open market regime. If required to create a public reserve, guarantee strategic stocks,
prevent the fall of market prices or for other reasons of public interest, the government
may promote the acquisition of certain types of strategic minerals by the marketing
companies.
The exportation and importation of mineral resources requires the preliminary
approval of the body responsible for the mining sector, and is subject to licensing by
the Ministry of Commerce. As a condition for exportation, all minerals extracted in
Angola shall have a certificate of origin. Angola, as a party to the KPCS, has adopted
the international system of certification of diamonds for exportation. Under the Mining
Code, in cases where the same reasons that led the adoption of the KPCS for diamonds
(including those stated in United Nations General Assembly Resolution 55/56) exist in
relation to other strategic minerals that are to be exported, a similar certificate of origin
shall be issued.
In respect of diamonds, it should be stressed that the enactment of the Mining
Code in 2011 had no material impact on the diamond marketing policy in force, as
defined in Presidential Decree 182/10 of 23 August 2010. This statute did not introduce
significant amendments to the previously existing marketing model, or to the role
and powers of SODIAM, the national company responsible for the organisation and
supervision of the marketing of diamonds in Angola. In fact, in addition to its role as
sole marketing channel, SODIAM is further charged with the role of ‘central purchase
and sale agency’ in respect of the diamonds produced in Angola, as well as with the
institutional organisation and supervision of the whole marketing process. The single
marketing channel model has been maintained and continues to be the basis for diamond
marketing in Angola, as complemented and developed by the Mining Code.
Finally, it should be noted that the exportation of mineral resources legally
extracted and processed, made directly or indirectly by the holder of mineral rights,
shall not be subject to the payment of duties or other customs charges, unlike the
exportation of mineral resources without processing, which shall be subject to a tax on

8
Angola

the exportation of unprocessed minerals at a rate of 5 per cent on the market value of the
mineral in question.

iii Foreign investment


The foreign exchange regime applicable to mining activities in Angola is set out in the
Foreign Exchange Regime for the Mining Industry and in certain provisions of the
Private Investment Law. For all those matters not specifically dealt with in said statutes,
the general Foreign Exchange Law and its ancillary regulations, and instructions and
orders from the BNA, apply.
The settlement of imports and exports of goods, of the receipt and payment of
invisible items of trade and of capital imports and exports by mining companies and
unincorporated joint ventures are to be processed through banks in Angola. The key
exception to this regime is that such entities are allowed to open and keep security
accounts, in the form of escrow accounts, with financial institutions domiciled abroad
for purposes of payment of debt service. It is noteworthy that such accounts may be
funded with part of the revenues from projects relating to the financing obtained.
However, no right to receive and keep outside Angola proceeds from mineral product
sales exists.
Subject to the control of the BNA, mineral investment contracts entitle
foreign investors to benefit from the right to repatriate dividends, in proportion to the
investment, as long as the relevant investor has imported the minimum amount of US$1
million. Capital operations and import of funds are equally subject to foreign exchange
restrictions, even though the regime applicable to each varies. For example, the Governor
of the BNA is entitled to make an assessment on whether, in a given period, the requested
transfer of funds should result in difficulties in the balance of payments, in which case
the BNA may condition or suspend it.
Similarly to the former Private Investment Law, the Private Investment Law now
in force expressly excludes from its scope of application investments in the petroleum
and diamond industries, as well as in connection with financial institutions. In addition,
the new Private Investment Law only applies on a subsidiary basis to investments subject
to ‘specific private investment regimes’ in other industries as provided for in the Law, as
it is the case for the mining industry (whose investment regime is provided for in the
Mining Code).
The investment process in the mining industry is essentially aimed at verifying
that the party concerned possesses the technical and financial capabilities required for
a successful implementation of the envisaged project, and at defining the terms and
conditions under which the relevant mineral rights are to be granted and exercised. As
previously mentioned, the Angolan mineral framework may be described as a contractual
system. In fact, mineral rights are actually granted in the form of a concession contract
negotiated with a negotiations committee appointed by the government and approved
by the relevant governmental body (the MGMI, or the President of the Republic,
depending on the type of minerals in question and the overall amount to be invested).
Although not expressly addressed in the Mining Code, investment in mining
companies operating in Angola also qualifies as a private investment operation, which –
according to the broad interpretation of the Mining Code adopted by the MGMI – is

9
Angola

also not covered by the Private Investment Law, and is thus subject to the provisions on
private investment contained in the Mining Code.
Foreign investors are afforded a significant number of guarantees, including:
a access to Angolan courts and due process of law;
b the payment of a fair and prompt compensation in the event of expropriation or
requisition of their assets;
c professional, banking and trade secrecy;
d non-interference from public authorities in the management of their businesses;
e non-cancellation of licences without the proper judicial or administrative
procedures;
f and the repatriation of profits and dividends.

VI CHARGES

i Fees
Holders of mineral rights are subject to corporate income tax (called industrial tax)
at a lower industry-specific rate of 25 per cent. In determining the taxable income,
exploration costs and contributions to the Mining Development Fund, among others,
are tax-deductible in addition to the tax deductions provided for in the general tax law.
Holders of mineral rights may seek incentives in connection with industrial tax in the
form of other deductible costs, grace periods, investment uplifts or any other type of tax
incentives provided for in the law. The decision of the government to grant incentives is
discretionary. However, favourable consideration is to be given to:
a the use of local suppliers;
b the carrying out of operations in remote and depressed areas;
c the hiring and training of local human resources;
d the cooperation with Angolan scientific or academic institutions;
e the in-country processing of minerals; and
f a significant contribution to increase exports.

In addition, a royalty is levied on the value of extracted mineral resources, at rates as


follows:
a strategic minerals and precious metals and stones – 5 per cent;
b semi-precious stones – 4 per cent;
c metallic minerals – 3 per cent;
d construction materials of mining origin and other minerals – 2 per cent.

Holders of exploration rights are subject to a surface fee, which value varies according
to the size of the concession area, the type of mineral explored and the exploration year
in question, ranging from US$2 to US$40 per square kilometre. In the event of the
extension of the exploration period, these amounts are doubled.
A contribution to the Mining Development Fund is also provided for in the
Mining Code; however, such fund has yet to be formally established.
There is no distinction between the taxes, duties and royalties payable by domestic
and foreign mining companies.

10
Angola

VII OUTLOOK AND TRENDS

In early 2012, the Minister of Geology, Mines and Industry of Angola announced the
government’s goal to boost the mining industry, notably by diversifying away from oil
and diamonds. This diversification goal is essentially backed by three instruments:
a the National Geology Plan approved in 2009, the main goals of which are:
• to enhance the mining sector, diversify mineral production, increase
productivity and improve the operational capacities of the public bodies in
connection with the mining sector;
• to improve the knowledge of Angola’s geology and mineral resource potential;
and
• to contribute to the sustainable development of the country;
b the nationwide airborne geological survey that is under way and is essentially
aimed at thoroughly identifying mineral resources reserves existing in Angola,
and at reviving the comprehensive mineral resources survey started by Portuguese
companies in the pre-independence period; and
c the recently enacted Mining Code.

While the results of the above-mentioned airborne survey are expected within a time
frame of three to five years, the existing geological information has been sufficient for
the mineral projects adversely impacted by the civil war, and more recently by the world
financial and economic crisis, to be resumed, and for a number of new projects to be
launched in the last couple of years, with a particular focus on copper and potash.
Currently in Angola, activity within the mining sector and production continue
to grow on an almost daily basis.

11
Chapter 2

AZERBAIJAN
Ilgar Mehti and Nurlan Mammadov 1

I OVERVIEW

According to official government statistics, in 2011 overall direct capital investments in


Azerbaijan’s natural resources industry was approximately US$4.1 billion (both foreign
and domestic investment). Around 90 per cent of this amount is attributable to the oil
and gas sector.2
The non-oil sector of the mining industry is still developing. Azerbaijan produces
a range of metals and industrial minerals, including aluminium, copper, steel and zinc.
More recently, the country started developing its gold mines, and the discovery of some
300,000 ounces of gold every year has been announced in the press.
Additionally, a few large entities, as well as a significant number of small and
medium enterprises, are engaged in sand, gravel, stone and salt extraction and production.
Azerbaijan’s extractive industries, however, are significantly dominated by oil and
gas, which account for more than 50 per cent of the country’s GDP. 3 The bulk of
Azerbaijan’s natural resources law is therefore directed towards the regulation of oil and
gas activities.
Azerbaijan is considered one of the birthplaces of the oil industry in general: it is
claimed that the very first oil well in history, as well as the first offshore oil well, were both
drilled in Azerbaijan. Azerbaijan’s history of oil activities dates back to ancient times.4 In
the early 1900s Azerbaijan was producing more than half of the world’s oil (11 million

1 Ilgar Mehti is managing partner and Nurlan Mammadov is a senior lawyer at Ekvita LLC.
2 State Statistical Committee of Azerbaijan (www.azstat.org/macroeconomy/indexen.php).
3 Ibid.
4 Marco Polo was referring to Baku’s oil in his writings: ‘… stream of oil, in such abundance that
a hundred ships may load there at once.’ Wikipedia (http://en.wikipedia.org/wiki/Petroleum_
industry_in_Azerbaijan).

12
Azerbaijan

tonnes or 212,000 barrels (33,700 cubic metres) of oil per day).5 According to the Oil
and Gas Journal Azerbaijan’s proven oil reserves are estimated at 7 billion barrels (January
2012) and proven natural gas reserves are roughly 30 trillion cubic feet (January 2011).
Today, Azerbaijan produces, on average, more than 1 million barrels of oil per
day. In 2011 Azerbaijan produced a total of 45 million tonnes of oil and 25 million cubic
metres of gas (in 2010 the figures were 50 million tonnes and 26 million cubic metres,
respectively).
The discovery in 1999 of significant amounts of gas in Shah Deniz field (offshore
Azerbaijan) transformed the country into a major gas exporter.

II LEGAL FRAMEWORK

Azerbaijan is a civil law jurisdiction and as such the country’s law is codified. There is,
however, no overarching, unified law (mining law, petroleum law or similar) regulating
the mining industry. Instead, the industry is regulated by miscellaneous laws enacted by
the Parliament as well as various decrees, rules and regulations passed by the President,
the Cabinet of Ministers, the Ministry of Industry and Energy (‘the MIE’), the Ministry
of Ecology and Natural Resources (‘the MENR’) and other relevant government agencies.
The main statutory instrument setting out the legal framework for the mining
industry is the Law on the Subsoil (‘the Subsoil Law’) dated 13 February 1998. The
Subsoil Law determines the main rights and obligations of persons engaged in subsoil
extraction and development, sets the rules for issuing licences, etc.
The Subsoil Law sets out the following main principles of government regulation
of the mining industry:6
a safe, effective and holistic approach in using subsoil;
b protection of the environment;
c expansion and strengthening of subsoil raw materials base;
d transparency in subsoil use;
e creation of a suitable environment to attract investment in subsoil use; and
f ensuring subsoil use in return for due compensation.

The Subsoil Law is not specific to the oil and gas sector alone – its general principles,
and other provisions relating to the issue of licences and permits, are equally applicable
to other sectors as well. The Subsoil Law provides expressly that the regulation of energy
issues will be subject to a specific energy law (Article 3); the Law on Energy was thus
passed on 24 November 1998 (‘the Energy Law’).
The Energy Law further elaborates the main principles of government regulation
as set out in the Subsoil Law. While the Subsoil Law regulates different aspects of mineral
resources, which by definition covers not just oil and gas but also other sectors such as
iron ore, sand and gravel extraction, etc., the Energy Law – as the name suggests – is
more specific to energy resources.

5 Ibid.
6 Article 2.

13
Azerbaijan

Another relevant statutory instrument regulating the energy industry is the Law
on the Use of Energy Resources, dated 30 May 1996. This law, however, is of a general
nature as it sets out the social, economic and legal foundations of the state regulation of
energy resources.
In addition to these enacted legal acts, the legal framework of the oil and gas
industry is significantly influenced by production-sharing agreements (‘PSAs’) – by far the
most common and prevailing form of government concession granting subsoil use rights.
More than 20 PSAs have now been concluded between the State Oil Company of
Azerbaijan Republic (‘SOCAR’) and foreign oil companies (‘FOCs’).
By its nature, a PSA is a commercial contract, although admittedly it has a hybrid
status since, following its execution, a PSA would typically be enacted into law (approved
by the Parliament).
The first and most significant PSA (also described as ‘the contract of the century’)
was concluded in 1994 in relation to the Azeri, Chirag and Guneshli fields (‘the
ACG PSA’). Many subsequent PSAs derive their terms from the ACG PSA, although
occasionally there are significant variations.
The ACG PSA, as well as many other PSAs, contains provisions that broadly
reflect the government’s main principles in regulating the oil and gas industry:
a PSAs and the rights, benefits and privileges granted to FOCs (or, in some cases,
their eligible subcontractors) thereunder prevail over conflicting provisions of any
other laws, rules and regulations of Azerbaijan (except, understandably, for the
Constitution, legal acts adopted via public referenda and international treaties
joined to or concluded by Azerbaijan);7
b if the rights and privileges granted under PSAs are diluted by virtue of any
new legal act, the government of Azerbaijan undertakes to provide reasonable
compensation to FOCs;8
c SOCAR will, by lawful means, assist FOCs in obtaining all required permits,
licences and approval from various government agencies by FOCs in the course
of hydrocarbon or petroleum activities;9
d FOCs (and in some cases, their eligible subcontractors) are entitled to import and
export goods, materials and equipment necessary in hydrocarbon or petroleum
activities free of any customs tariffs and duties;10
e FOCs (and in some cases, their eligible subcontractors) are exempt from payment
of VAT (VAT assessed at zero rate) and pay a different (flat) rate of tax for their
profit gained from hydrocarbon or petroleum activities.11

The operating rules under the PSAs are so unique that they have established a coherent
and reasonably effective regulatory regime operating, for the most part, separately and

7 Article 23.1 of the ACG PSA.


8 Article 23.2 of the ACG PSA.
9 Article 3.2(a)(ii); 9.2(b) of the ACG PSA.
10 Article 28, 18.1 of the ACG PSA.
11 Article 12.2, 12.6–12.7 of the ACG PSA.

14
Azerbaijan

independently from the main statutory regime set out under the Subsoil Law and the
Energy Law.
Azerbaijan is a signatory to the Energy Charter, the ICSID Convention, the
MIGA Convention, the New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards and some other significant international treaties.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
According to the Constitution of the Republic of Azerbaijan,12 all natural resources
belong to the state, without prejudice to the rights and interests of any legal entity or
natural person. Other pertinent laws further confirm that the subsoil belongs to the state
of Azerbaijan13 and that Azerbaijan has ‘exclusive property rights’ to energy resources.14
The vast majority of oil and gas production (more than 90 per cent) is made
offshore in the Azerbaijani sector of the Caspian Sea. For this and other historical
reasons, private ownership of mineral resources and the use of private mining licences
are not common in Azerbaijan.

ii Surface and mining rights


The dichotomy of statutory regulation described above has influenced the rules pertaining
to the granting of surface and mining rights.
On the one hand, PSAs operate both as the enabling commercial concession
granting the subsoil use rights and as a rather comprehensive set of rules regulating nearly
all aspects of oil and gas extraction and development. On the other hand, the Subsoil
Law and the Energy Law set out separate rules on subsoil licensing. Under the Subsoil
Law,15 both local and foreign persons obtain subsoil use rights on the basis of special
permits (licences) granted following a tender, auction or direct negotiation.16 Under the
Energy Law, the right to extract and develop energy resources may be granted pursuant
to ‘energy contracts’.
While not expressly stated, such references to energy contracts seem to capture
the PSAs. It should, however, be emphasised that Azerbaijan does not have a dedicated
law regulating PSAs, as is the practice in some neighbouring jurisdictions. The Subsoil
Law and the Energy Law are not sufficiently detailed to permit regulation of most PSAs,
which would typically be negotiated and agreed independently.
In the issue of licensing, other notable legal acts are the Resolution No. 111 on
Approval of Cases where a Special Permit (Licence) for Subsoil Use is Granted Pursuant
to Direct Negotiations, issued by the Cabinet of Ministers of the Republic of Azerbaijan

12 Article 14.
13 Article 4 of the Subsoil Law.
14 Article 5 of the Energy Law.
15 Article 13.
16 While the law allows for tenders (open or restricted), in practice, most concessions are granted
via direct negotiations.

15
Azerbaijan

on 30 September 2000 and the Decree No 310 on Measures to Improve the Issuance
of Special Permits (Licences) for Certain Types of Business Activities in the Republic of
Azerbaijan, issued by the President of the Republic of Azerbaijan on 28 March 2000.
Despite all these general rules, however, in practice, most exploration and
production licences are granted in the form of PSAs. Typically, the President would
issue a special Decree or Order nominating SOCAR (or, in limited cases, the MIE) as
the government representative to negotiate or sign a particular PSA. Most PSAs contain
conditions precedent requiring SOCAR or other government representatives (as the case
may be) to implement such actions as may be required to approve PSAs into the law
of the country. Therefore, following the execution of a PSA, SOCAR would, via the
Cabinet of Ministers, submit the recommendation to the Parliament. The Parliament
would then issue a special law approving the PSA and endorsing its unique regulatory
regime.
The time limits for geological survey (exploration) of the subsoil is up to five years,
and for development, up to 25 years.17 These time limits generally match up with the
exploration and production lifecycle of most PSAs. Extensions beyond these terms are
generally prohibited,18 but under the Energy Law such extensions may be documented
via a separate (new) agreement awarded through a new tender.19

iii Additional permits and licences


Special permits (licences) or other forms of governmental approvals are required in
connection with mining activities. Specifically, all hazardous equipment used in the
mining industry is subject to separate approval by the Ministry of Emergency Situations.
The use of vessels is subject to mandatory approval and certification by Azerbaijan’s State
Maritime Administration acting as the flag state representative. Other specific approvals
and licences may often be required depending on the type and nature of the activity
involved.

iv Closure and remediation of mining projects


The Energy Law mandates development of comprehensive remediation plans that
must be included in energy contracts.20 Remediation works must be undertaken by the
contractor responsible for field development prior to expiry of the contract period.
The respective government agency may require mandatory accumulation of pre-
agreed funds in certain deposit accounts dedicated for remediation works. Alternatively,
the contractor may be requested to provide a bank guarantee for an amount sufficient to
cover its obligations with respect to remediation works.
Most PSAs contain similar – or perhaps more detailed – remediation obligations. It
is common practice to allocate certain funds to an abandonment account or remediation
works at the end of a field’s life cycle.

17 Article 12 of the Subsoil Law.


18 Article 24 of the Energy Law.
19 Ibid.
20 Article 27.

16
Azerbaijan

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


The Constitution provides for basic guarantees of environmental safety, which include a
right to live in a healthy environment, and a right to demand compensation for damage
caused to one’s property as a result of a breach of environment-related laws. These basic
principles guide and dictate the environmental policy of Azerbaijan.
One of the most important and directive provisions of the Constitution states
that no one can cause more danger or damage to the environment and natural resources
than is allowed by law. Certain norms and regulations, adopted in line with these basic
Constitutional principles, set limitations on pollution of the environment. Likewise, a
number of laws have been passed that generally apply to mining projects.
As previously mentioned, there is no specific law in Azerbaijan that would
comprehensively cover the effect of mining projects on the environment or third parties.
The main laws in this area are the Energy Law and the Law on the Protection of the
Environment, dated 8 June 1999; these laws apply to all energy resources and products,
as well as their extraction and processing activities in Azerbaijan, which includes the
impact of these activities on the environment.
According to applicable laws, all legal entities and individuals are obliged to
maintain the productive use of energy resources, comply with rules on their use, and
refrain from pollution above the limits allowed by law. This obligation also extends to
design, installation and exploitation of energy plant and machinery.
Upon application for obtaining a licence for subsoil use, one of the conditions
for licence issuance is satisfying an ecological assessment carried out by the MENR. The
main purpose of the ecological assessment is to measure the hazard level of the projects
that are ready for commencement – or have already commenced – and affect – or may
affect – state of the environment and health and safety of the population.
The law requires that legal entities or individuals engaged in mining projects
must present mitigation measures for the recovery of the environment from any negative
effects. In some projects of governmental importance, however, the MENR has the right
to free the requesting entity from compulsory requirements of the law for a maximum
of five years.
Along with the measures to be taken to avoid potential threats to the environment
and people’s health and safety, laws also provide for damages already caused to third
parties. In particular, project owners must pay compensation for such damages.
If a project causes death or injury, or damage to a personal property or to the
environment, the owner must bear liability, pay compensation, and mitigate or remove
the consequences of such damage in line with the law. This also applies to events
occurring due to installation, exploitation and technical service of the energy plants as
a part of a project. If the damage caused by the energy plant is proven, the owner must
present reports to an appropriate state authority about the event in order to determine
the amount of compensation due to the affected parties.
Certain types of mining projects require compulsory insurance for potential
damage that may be accidentally caused to the environment, the subsurface or people’s
health and safety. It may be required by laws to keep the insurance for a certain period
when such danger is real, even after termination of the project.

17
Azerbaijan

At the time of writing, there is still no coherent legislation mandating compulsory


environmental insurance, although discussions are ongoing.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


According to the Customs Code, a state authority may impose restrictions on importing
to or exporting goods from Azerbaijan, which must be done in accordance with
Azerbaijani law and international agreements. Customs clearance of restricted goods is
also subject to the requirements of Azerbaijani law and international agreements.
The Customs Code lists applicable custom payments. These include customs
duties, import VAT and customs collections.
Customs duties apply based on the requirements of relevant customs procedures.
The Law on Customs Tariffs, dated 20 June 1995, lays down the rules on setting and
applying customs tariffs. According to the Law, such tariffs apply to imported or exported
goods.
Rates of both import and export customs duties are set by the Cabinet of
Ministers. Rate limits of such duties on goods from countries with which Azerbaijan has
a favourable trade regime are set by the Parliament.
The Customs Code regulates import VAT in accordance with the Tax Code. The
amount of payable import VAT is 18 per cent.
Finally, customs collections relate to general administrative work done by the
customs authorities and such fees are set by the appropriate state authority.
The Law on Application of Special Economic Regime to Export-Oriented Oil
and Gas Activities, dated 2 February 2009, provides for privileges for contractors as
well as local and foreign subcontractors involved in such activities. For this purpose, the
activities must relate to oil and gas operations performed outside of Azerbaijan, including
the Azerbaijani sector of the Caspian Sea. Contractors and subcontractors must obtain a
licence for each agreement under which they carry out activities.
Customs regimes under most PSAs differ substantially from the general rules.
In most cases, FOCs and their subcontractors operating under the PSAs are entitled to
import and re-export from Azerbaijan, free of any restrictions and in their own name, all
materials and equipment necessary to their petroleum operations.
PSAs require that contractors give preference to local suppliers with respect to the
purchase of imported materials and equipment where local suppliers are competitive in
price, quality and availability with those available from other sources.21
Contractors, their customers and carriers of both may freely export the portion
of petroleum to which contractors are entitled under the respective PSA.22 Subject to
the foregoing, all imports or exports carried out under the PSAs must comply with
the procedures required by the applicable customs laws and regulations, and be duly
documented, and contractors must pay any customs service or documentation fees.

21 Article 18.1(a) of the ACG PSA.


22 Article 18.2 of the ACG PSA.

18
Azerbaijan

Employment of foreign employees in Azerbaijan is generally regulated by the Law


on Labour Migration, dated 28 October 1999. This law allows employment of foreign
nationals, subject to their obtaining work permits, which must be obtained beforehand.
Work permits are not required for heads and deputy heads of foreign companies, their
branches and representative offices, or temporary stays of foreign employees lasting no
longer than three months.
Prior to the end of each year, the Cabinet of Ministers sets a migration quota for
the subsequent year determining the maximum number of foreign employees that can be
engaged in each respective industry. Foreign employees exempted from the work permit
requirement may be employed irrespective of the quota.
Under the PSAs, FOCs and their subcontractors may freely employ such personnel
as, in their opinion, are required for the purpose of carrying out petroleum operations.
PSAs require preference to be given, however, to employing Azerbaijani citizens provided
that they have the required knowledge, qualifications and experience.

ii Sale, import and export of extracted or processed minerals


Pursuant to Presidential Decree No. 782 on the Improvement of the Rules for the Issuance
of Licences (Special Permits) for Certain Types of Activity, dated 2 September 2002, the
international, inter-city, and intra-city transportation of goods by means of water, air and
motor transport is subject to licensing by the Ministry of Transportation. Transportation
of hazardous substances must be authorised by the Ministry of Emergencies.
No special licence is required for sale, import and export of minerals under the
PSAs.

iii Foreign investment considerations


The Law on Protection of Foreign Investment sets legal and economic principles for
foreign investment in Azerbaijan. According to the Law, legal regimes for foreign
investors may not be less favourable than those available to local investors.23
Foreign investment is fully and unconditionally protected. If investment
conditions worsen because of a change or an amendment to the Azerbaijani law, and
unless such change relates to certain matters (e.g., national security or public order), the
law that existed when an investment was made will continue to apply for 10 years.
The law provides for nationalisation and requisition of foreign investment but,
should this occur, foreign investors are entitled to a reasonable compensation. Foreign
investors are also entitled to reimbursement for losses (including loss of benefit) suffered
due to unlawful acts by the state authorities or their officials.
If an investment is terminated, a foreign investor may receive part of its investment
and related income in the form of money and goods, taking into account a realistic price
on the termination date. Foreign investors may transfer their incomes as well as other
amounts abroad (such as compensation and reimbursement) subject the applicable taxes
and duties.

23 Article 5.

19
Azerbaijan

Similarly, Central Bank Rule No. 12, dated 27 May 2002, dealing with the
currency operations of residents and non-residents, provide for free (i.e., without paying
any taxes and duties) repatriation of investments by foreign companies, branches and
representative offices of foreign companies (Rules 3.2.2.e). The law also allows foreign
employees to transfer their wages abroad subject to paying personal income tax as set by
the Central Bank.
According to the law, rights with regard to exploration and development of
mines are granted to foreign investors on the basis of concessions concluded between
them and the Cabinet of Ministers, and approved by the Parliament. As has already
been mentioned, however, most oil and gas projects in Azerbaijan that involve foreign
investments are regulated by the PSAs.
Most PSAs provide for economic stabilisation rules similar to those previously
described.

VI CHARGES

i Royalties
The Tax Code provides for the payment of a mining tax (royalty) in respect of minerals
extracted on the territory of Azerbaijan, including the Azerbaijani sector of the Caspian
Sea. The royalty is based on the wholesale price at the rate of 26 per cent for crude oil
and 20 per cent for natural gas. Since the royalty is calculated on the basis of wholesale
price, it is considered revenue-based.

ii Taxes
As previously explained, PSAs establish their own standalone and unique statutory regulation
in relation to hydrocarbon activities. This uniqueness expresses itself manifestly in the
regulation of taxation. The benefits and privileges granted under the PSAs are subsequently
detailed in specific tax protocols executed between FOCs and the Tax Authority.
Under the PSAs and the protocols, FOCs pay a flat-rate profit tax (e.g., in the
ACG PSA, of 25 per cent) in connection with their hydrocarbon entitlement. As the
name suggests, the flat profit tax is profit-based. The PSAs typically guarantee that the
profit tax rate remains fixed for the duration of the PSA (30 years in the case of the
ACG PSA). PSAs lay out very detailed tax and accounting procedures relating to taxable
profits, deductible expenses, submission of returns, etc.
As a rule, the PSAs provide total exemption from a number of taxes. According
to the ACG PSA, for example, all FOCs are entitled to full and complete exemption
from all taxes (existing or future) in respect of their hydrocarbon activities except for the
aforementioned flat profit tax. Further, FOCs are entitled to freely repatriate their profits
outside Azerbaijan without payment of any branch remittance tax on profit, interest,
fees and charges in respect of any debt, any royalty, lease payment or management fee. In
other words, the flat profit tax of 25 per cent fully satisfies FOCs’ tax liability in respect
of their hydrocarbon activity under the PSA.
Finally, FOCs engaged in hydrocarbon activity under the PSAs are also exempt
from VAT on all (1) goods, works, and services supplied to or by them, (2) their exports
of oil and gas, and (3) imports of goods, works and services acquired by them.

20
Azerbaijan

Foreign subcontractors providing services to FOCs in connection with hydrocarbon


activities also have certain tax benefits. First, the VAT exemption on goods and services
supplied applies across the entire value chain to the service providers. Second, the gross
payments received for works or services performed in Azerbaijan by foreign subcontractors
are subject to a withholding tax at a rate of 5 per cent.24 Payment of withholding tax
satisfies foreign subcontractors’ corporate (profit) tax liability in Azerbaijan.

iii Duties
There are certain state duties payable with respect to matters requiring governmental
approval (for example, a duty for a construction licence, for certificate of origin, etc).
These duties are generally insignificant.
As previously explained, goods imported to and exported from Azerbaijan
are generally free from any customs duties under the PSAs. Occasionally, certain
administrative processing fees are charged, but such fees also tend to be nominal.

iv Indemnification
Most PSAs, including the ACG PSA, provide for full indemnification of expenditure
(cost recovery) incurred by FOCs in the development stage of the field’s life cycle.
However, costs incurred during exploration activities aimed at discovery of commercially
attractive oil and gas reserves are typically not recoverable. Further, to ensure steady cash
flow, most PSAs provide for a certain cap on cost recovery.
For instance, under the ACG PSA, cost recovery is achieved through use of the
total amount of oil produced (total production). At first, all operating costs for the then-
current year are subject to cost recovery. The remaining portion of total production is
then used to recover capital expenditure, but only up to 50 per cent of the remaining
total production.

VII OUTLOOK AND TRENDS

Generally, the dichotomy of statutory regulation (PSAs as opposed to general law) is


perhaps the most salient feature of Azerbaijan’s legal framework with respect to the oil
and gas industry.
The benefits and privileges granted under the PSAs have established a unique legal
regime that has so far operated reasonably smoothly compared with other neighbouring
jurisdictions.
PSA regulation in Azerbaijan has survived the period of high and low oil and gas
prices as well as the recent (ongoing) economic recession. It is reasonable to believe that
it will continue to maintain its position as the prevailing form of statutory regulation.

24 Subsequent PSAs have varying levels of taxation – often, 8 per cent.

21
Chapter 3

BRAZIL
Luiz Fernando Visconti 1

I OVERVIEW

Mining in Brazil is a national policy matter. The sector is considered to be a strategic part
of the Brazilian economy and, in addition to the three levels of government, the Brazilian
Constitution also protects the activity.
Mineral resources are abundant in the country. Although many ores remain
unexplored, Brazil has been experiencing an increase in mining activities and production.
Iron ore is the leading export, corresponding to 82 per cent of the overall mineral
production exported. The Carajás Project, located in the state of Pará, is the biggest
iron ore complex in the world. Iron is followed by niobium and gold, which make up
approximately 8 per cent of exports. Other resources include bauxite, silicon, copper and
granite. Brazil is also the second-largest producer of manganese ore in the world.
The state of Minas Gerais is the top mineral producer, with almost half of Brazil’s
mineral extraction taking place within its territory. The state of Pará is ranked second,
accounting for approximately one-quarter of Brazil’s mineral production.
Recently, a series of debates about mining policy have been taking place, and Brazil
is on the verge of changing its mining legislation. Opinions about the new framework
differ and range from criticism to optimism; however, in general, the mining sector
agrees that at least some changes are needed.

II LEGAL FRAMEWORK

Brazilian mining law is strongly Constitution-oriented. The Constitution deals primarily


– or at least consequentially – with mineral resources. Provisions range from mining in

1 Luiz Fernando Visconti is a partner at TozziniFreire Advogados.

22
Brazil

indigenous areas to cooperatives of miners, including the authorisation to quarry within


the territory.
Article 176 of the Constitution provides that every minefield in Brazil is the
property of the federal government. Through different regimes, such as concessions,
authorisations, licences and permissions, individuals or companies may explore mineral
resources, and only the results of mining extraction may be owned by companies or
individuals. It is important to note that individuals cannot apply for mining or
exploitation permits.
The legal nature of mine titles is rather peculiar. Mines are the property of the
state, but the products of mining are private. As a result, mineral resources are strategically
controlled by the federal government, but investments and risks lie with companies and
individuals.
Mining activity is regulated by Decree-Law No. 227, dated 28 February 1967,
known as the Mining Code.
The Mining Code regulates mineral production, beneficiation, distribution and
commercialisation; it also regulates mineral exploration and exploitation. Finally, the
Mining Code provides that mining activity is subject to inspection by the National
Department of Mineral Production (‘DNPM’). DNPM is supervised by the Ministry
of Mines and Energy, through the Secretary of Geology, Mining and Mineral
Transformation. Together, these bodies are in charge of regulating mining activity in the
country, as well as authorising exploration and exploitation.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
Ores are federal property; regardless of whether mines are being exploited, they are all
owned by the state. Along with different types of public assets, ores are classified as public
property with no specific utility (which is the opposite of, for instance, a public building,
whose utility is very clear).
However, it is not an ordinary property right. While ores are owned by the federal
government, their use must be driven by the public interest. Mining rights may therefore
be assigned to private individuals for economic use. A mining right is a limited property
right; companies may explore, use and profit from mineral resources, but cannot sell
mines as if they belonged to them. The right to explore is granted to the individual in
order to exploit that resource and, ultimately, to enrich social welfare.

ii Surface and mining rights


Surface and mining (underground) rights co-exist in Brazilian mining law. While every
mineral resource in Brazilian territory belongs to the government, property rights are
protected by the Constitution. Therefore, when a private landowner discovers any
mineral resource of economic use within his or her lands, there would appear to be a
conflict between property rights and mining rights. According to Brazilian law, however,
even if ores are found on an individual’s own private property, no citizen has the right to
extract such ore from the soil unless an authorisation for such activity has been granted.

23
Brazil

On the other hand, surface rights are protected, and any mineral exploitation occurring
inside someone’s estate entitles the owner of the land to be rightfully compensated.
This means that the surface rights over any given land do not entitle the owner to
exploit its subsoil.
According to the Mining Code, mining rights are obtained through different
administrative procedures with different timescales. Article 2 of the Mining Code
provides for the different types of mineral licences (mining manifest, authorisation for
exploration, concession for mining, permission for elementary mining, registration for
extraction and licence to mine) as follows.

Mining manifest
An exception to the current regime is the mining manifest. The Constitution of 1934
changed the former regime and established the distinction between the ownership of
land from the right to explore and exploit the land’s mineral resources. Since 1934,
mineral resources belong to the federal government. According to this rule, landowners
can manifest their interest in mining on their own land. Therefore, the mining rights
remain the landowners’ property, but they are still subject to the inspection and control
rules set out by the authorities.

Authorisation for exploration


An authorisation for exploration is a certificate issued by DNPM that allows the holder
to either explore a certain area or transfer the mining right to explore to a third party,
thereby entitling this party to explore the area.
In order to apply for an authorisation for exploration, the applicant must be
Brazilian, an individual entrepreneur (sole proprietor) or mining company.2 The
exploration work must be supervised by a mining engineer or a geologist. Usually,
the certificate has an expiration date of between one to three years, and the term for
exploration works will be settled by DNPM based on the characteristics of the minefield.
Once the certificate is issued, the holder possesses the exploration rights for the
specific area. The title allows the miner to explore the area or to assign it to a third
party (assignment of mining rights). Regardless of the choice the holder makes, some
obligations exist.
Exploration works must start within 60 days of the title being issued; such works
cannot stop or be suspended for more than three consecutive months, or for a total
of 120 non-consecutive days. In addition, the authorisation holder must comply with
every requirement issued by DNPM and facilitate its agents’ periodic inspections. After
the exploration has been carried out and the abundance of the mineral in the region
is known, the authorisation holder must prepare two reports, both of which must be
addressed to the DNPM Director General:
a a final exploration report (‘RFP’); and
b an economic plan for use of the mine.

2 Article 15 of the Mining Code.

24
Brazil

Concession for mining


A mining concession is only obtained after exploration has been completed. After approval
from the RFP, the licensee has one year to acquire the concession for exploitation, a
permit that entitles it to extract minerals and grants their economic use.
In order to acquire such permit, an application must be addressed to the Ministry
of Mines and Energy, signed by the applicant, accompanied by a wide range of documents.
The concession may not only be denied due to environmental concern, but also
if the mining activity harms the surrounding community. If this is the case, and the RFP
had already been approved, the government shall compensate the company for all the
costs incurred during exploration.
If the concession is granted, a mining permit is issued. The title gives the holder
the right to exploit the mine, but also encompasses duties and obligations the holder
must comply with.
After the permit is issued, the holder has 90 days to require a writ of entry and the
mining works must start within six months. The mining activity must comply with the
plan approved by DNPM; if not, sanctions can be applied to the licensee.
Other obligations include:
a compliance with every new instruction issued by DNPM;
b supervision of the mining activities by a certified professional;
c not changing the use of the mine;
d ensuring that employees can work safely and with the proper equipment;
e avoiding river diversion or lack of water supply caused by the works;
f ensuring that the company is not liable for any harm towards third parties; and
g avoiding air and water pollution.

Permission for elementary mining


There is also a permit for elementary mining, which is a different regime. This particular
type of mining activity features characteristics that are considered only when the
minefield has certain conditions that do not allow conventional mining works. Because
of the nature, location, dimensions or economic purposes, some minefields are apt to be
exploited regardless of exploration reports.

Licence for mining


A licence for mining encompasses substances listed in Law No. 6.567/78. Sand, clay,
gravel and stone may be extracted without the prior authorisation of an exploration
request, provided that the area is equivalent to 50 hectares.
Once granted, the permit is equivalent to a mining right that cannot be transferred
without DNPM’s authorisation.
Extractions must take place 90 days after permit is issued, and the holder can only
remove the minerals allowed in the title.

25
Brazil

iii Additional permits and licences


Mining on borders
Mining works along Brazil’s borderlines are a matter that concerns not only the Ministry
of Mines and Energy and DNPM, but also the military. Mining operations are not
allowed to work on minefields that are located within 150 kilometres of Brazilian
borders, unless authorised by the National Security Council.
Law No. 6.634/79 regulates the activities that must be submitted to the approval
of the National Security Council. Any exploration, mining, extraction, exploitation or
use of mineral resources within this area require authorisation.
At least two-thirds of the staff allocated to the region by companies wishing to
work in the area must be Brazilian. In addition, 51 per cent of the company’s capital must
be subscribed by Brazilian citizens. Finally, the administration of the company must be
held by Brazilian citizens, or at the least they must have the predominant managerial
powers.
If a company does not meet the requirements of Law No. 6.634/79, a fine of
up to 20 per cent of the value of the entrepreneurship carried on in the location can be
applied.

Indigenous protected areas


Another issue that merits special attention is mining activities in areas for indigenous
protection.
The Constitution grants indigenous groups permanent indigenous possession of
the lands in which they are settled. However, it also provides the possibility to mine
within these areas once mineral riches are found.
To remedy this apparent conflict of rights, the Constitution establishes conditions
for the exploration of natural resources within indigenous protected areas. Article 231,
Section 3, sets forth that the local native community must be considered in public
hearings, that the National Congress must authorise the mining and that a special law
must be enacted to regulate the activity. However, to date Senate Bill No. 1610/96 has
not yet come into force to regulate the matter, and it is currently under discussion in the
House of Representatives. Therefore, indigenous areas still cannot be explored.

iv Closure and remediation of mining projects


The Constitution provides that whoever explores mineral resources has the legal obligation
to restore the degraded environment in compliance with the regulations issued by the
competent authority.3
When the activity in a determined mine is close to ending, DNPM must be warned,
and the company’s annual mining report must contain such information, updated and
detailed, along with the status of the mines and topography. In general, companies file
a formal requirement with the Ministry of Mines and Energy to reactivate the area once
the mining is over, and subsequent projects are presented before the Ministry of Mines

3 Article 225, Section 2.

26
Brazil

and Energy for approval. Gradually, mining activities start to be replaced by the recovery
of the exploited area.

Limitations on purchasing rural areas


Recent opinions from the office of the Brazilian Attorney General provide a new
interpretation of the law that governs the acquisition of rural areas by Brazilian companies
controlled by foreign individuals or companies. This is a controversial topic that is still
evolving.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Labour, health and safety regulations


In Brazil, labour relations are a matter of federal law. Therefore, labour rights are
nationally standardised, and the same labour costs and consequences will apply regardless
of an employer’s place of business or place of incorporation. Thus, workers hired to work
in mines qualify for the same social rights as other workers (compensation, holidays,
working hours, working days, equal pay, etc.).
Regarding occupational health and safety, there is a specific regulation for miners:
Regulatory Standard NR 22. The measures set out in this regulation must be applied
jointly with other regulations related to workers’ health and safety protection.
NR 22 deals with the safety and health requirements in mining in detail. Such
rule applies to underground and open-pit mining, alluvial mining, mineral processing
and mineral research, and addresses several aspects, such as:
a workers’ responsibilities and rights;
b workplace organisation;
c circulation and transport of people and materials;
d machinery, equipment, tooling and installations;
e underground openings;
f hydraulic disassembling; and
g emergency operations.

In order to work or render services in Brazil, a foreigner needs to obtain a work visa. The
selection of the proper visa depends on the activities that will be executed in Brazil.
The most common types of visa are:
a temporary visas for employees;
b permanent visas for foreigners who will hold management positions as legal
representatives at Brazilian companies;
c technical visas for foreigners who will not have an employment relationship with
a Brazilian entity, but who will come to Brazil at the service of a foreign entity,
perform technical assistance or provide services under technical cooperation
agreements; and
d business visas for foreigners who will only carry out business activities in Brazil.

All types of work visas must be obtained from the Ministry of Labour by the Brazilian
entity hiring the foreign person. When applying for the work visa, the Brazilian

27
Brazil

company will be required to evidence certain requirements, and provide documents and
information about the company, the foreign person and his or her family.
As an exception, citizens from some South American countries are able to work in
Brazil under a special procedure without a work visa.

ii Environmental compliance
Pursuant to the Brazilian Environmental Law, mining activities shall be subject to
environmental licensing, which consists of a public administrative proceeding by means
of which the environmental agency evaluates and authorises the location, installation
and operation of a certain project, considering the applicable legal provisions and the
socio-environmental impacts caused by such activity.
In general, the power to issue environmental licences lies with the state
environmental protection bodies, and in some cases, such power may be delegated by
the states to the municipalities. Furthermore, in certain specific situations, the power to
conduct environmental licensing is assigned to the federal environmental protection body.
Environmental licensing encompasses three distinct and successive phases in
which the environmental feasibility of the project is analysed, and the conditions for the
implementation and operation of the project are established. These phases involve the
issuance of three licences:
a a preliminary licence is granted in the planning phase of the project, approving
its location and design, attesting its environmental feasibility, and establishing the
basic requirements and conditions to be complied with in the upcoming phases
of its implementation;
b an installation licence authorises the installation of the project or activity according
to the specifications contained in the approved plans, programmes and projects,
including the measures for environmental control and other conditions; and
c an operating licence authorises the operation of the project after certification of
effective compliance with the provisions set out in the prior licences, and imposes
the measures for environmental control and conditions for its operation.

During the environmental licensing proceeding, the entrepreneur may be required to


submit environmental studies to support the analysis for the required licences. There are
various types of environmental studies, and the environmental agency entitled to decide
on the licensing shall indicate the study that applies to each specific case.

iii Third-party rights


Licensing of projects causing actual or potential significant environmental impacts,
as may be the case with mining projects, requires a prior environmental impact study
(‘EIA’) and its respective environmental impact report. This study comprises a series of
scientific and technical activities, including:
a environmental assessments;
b identification, measurement and prediction of the impacts to be caused by the
project;
c interpretation and valuation of such impacts; and

28
Brazil

d the definition of mitigation measures and monitoring programmes to be


implemented by the entrepreneur during the installation and operation of the
activity.

In the course of the proceeding for the preparation of the EIA, all stakeholders potentially
affected by the project have the chance to participate in the environmental licensing
through public hearings. Their contributions shall be addressed in the EIA and must be
evaluated by the environmental agency during the licensing.
Over the past few years, environmental concerns have risen and public authorities
have taken measures to address this. Plaintiffs propose to discuss the socio-environmental
impacts of enterprises and challenge their feasibility by means of lawsuits. Commonly,
those lawsuits involve not only the mining enterprise, but also the environmental agency
in charge of the environmental licensing, and question the assessments made by such
authority in relation to the feasibility of the project and respective measures to mitigate
or compensate its impacts.
Considering this scenario, the technical quality of the environmental studies,
as well as the adoption of a strategic communication management plan involving the
stakeholders potentially affected by the project, are highly advisable to minimise impacts
and delays in the environmental licensing of the project.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


Importers and exporters in Brazil must obtain a Registry and Tracking of Performance
of the Customs Supervision registration granted by the Brazilian customs authorities,
which is necessary to access Siscomex (a computerised integrated foreign trade system)
in order to import or export goods.
Some imports may also be subject to automatic import licensing, or to non-
automatic import licensing issued by a competent authority, based on the tariff
classification of the goods listed according to the Mercosur Common Nomenclature
(‘NCM’) code.
Imports subject to licensing must comply with specific requirements. For
automatic import licensing, the importation is automatically approved provided that the
importer submits the requested data in Siscomex. For non-automatic import licensing,
an import licence is required prior to shipment of the goods to Brazil and must be issued
by a competent authority.
The operations related to the importation of new equipment and machinery in
Brazil must be registered in Siscomex for the purpose of customs control, and some
operations also require non-automatic licensing.
When there is no production of similar equipment or machinery in Brazil,
importers may request a temporary reduction of import tax (usually to 2 per cent)
under an exception known as an ex tarifário for a period of two years, renewable for
an equal period, upon request. All imported equipment and machines that match the
full description of the goods approved under the ex tarifário will be subject to this tariff
reduction.

29
Brazil

As a general rule, Brazil does not allow the importation of used equipment and
machinery. Imports of these goods are permitted only in exceptional cases (e.g., when
there is no production of similar goods in Brazil, or when a group of used equipment
and machinery that integrates a whole line of production is imported, provided that
the importer negotiates a compensation agreement with the domestic industry) and
require the issuance of an import licence by the Department of Foreign Trade Operations
(‘DECEX’) of the Brazilian Ministry of Development.

ii Sale, import and export of extracted or processed minerals


The importation and exportation of extracted or processed minerals are subject to the
general Brazilian customs rules.
However, a significant number of extracted or processed minerals are controlled,
and may be subject to the issuance of an import licence or the approval of an export
registry by a competent authority, based on their characteristics, strategic importance
to the country, commitments in international agreements, and potential risks to the
environment and health.
It is only through a careful analysis of the mineral and its correct tariff classification
that it is possible to identify the specific requirements established by the competent
authorities. The main Brazilian authorities that control the sale, import and export
operations involving minerals are:
a the National Commission of Nuclear Energy (‘CNEN’);
b the Ministry of Science and Technology (‘MCT’);
c the Brazilian Environmental Protection Agency (‘IBAMA’);
d the Ministry of Agriculture;
e the National Agency for Sanitary Surveillance;
f the National Petroleum Agency; and
g DECEX.

For instance, the exportation of uranium ores and its concentrates (classified under
NCM code 2612.10.00) is subject to the approval of CNEN and MCT, prior to their
export; and the importation of mercury (classified under NCM code 2805.40.00) is
subject to the issuance of an import licence by IBAMA, prior to its shipment to Brazil.

iii Foreign investment


There are no relevant restrictions for the inflow of funds into and from Brazil, provided
that foreign exchange transactions are legal and supported by the relevant transaction
documents. However, direct foreign investment and certain financial transactions require
prior registration with the Central Bank of Brazil (‘BACEN’).
The registration of foreign capital with BACEN is provided for by Law
4.131/62 and Law 4.390/64, ensuring equal treatment of foreign and national capital.
Implementing regulations on foreign capital matters are enacted from time to time by
the National Monetary Council and by BACEN.
Foreign capital is defined as goods, machinery and equipment, imported to Brazil
without prior foreign capital disbursements, for the production of goods or services, as
well as financial or monetary resources invested in Brazil for application in economic

30
Brazil

activities, provided that, in both cases, such foreign capital belongs to individuals or
legal entities resident, domiciled or with a head office abroad. The term ‘goods’ has been
defined to include trademarks, patents and technology transfers registered with the
National Industrial Property Institute.
BACEN has created and regulates a system for the declaratory electronic
registration of direct foreign investments. Accordingly, direct foreign investments in
Brazil must be registered electronically through the Module RDE-IED of the online
information system of BACEN – SISBACEN.
Capital investments, repatriations and profit remittances related to foreign capital
duly registered with BACEN may be effected at any time without prior authorisation of
BACEN, subject to compliance with applicable corporate and tax legislation.
In addition, the regulations regarding loan transactions provide that both
individuals and legal entities domiciled in Brazil are allowed to enter into loan transactions
with creditors domiciled abroad, and the corresponding funds may be remitted to Brazil
without prior authorisation from BACEN.
Similarly to direct foreign investment, a declaratory electronic registration with
SISBACEN is also required for cross-border loan transactions, as well as for any issuance
of securities abroad, and foreign financing and leasing transactions with a maturity term
of more than 360 days.
In all these cases, the registration must be affected in the Form RDE-ROF of the
SISBACEN system by the borrower or by the issuer of securities, directly or through a
representative, before the inflow of the corresponding funds into Brazil. After such inflow,
the relevant schedule of payments of such loan transaction or issuance of securities must
be registered in order to allow the remittance abroad of payments of principal, interest,
fees and commissions.
There are no specific restrictions or incentives for foreign investment in Brazilian
mining companies.

VI CHARGES

i Overview
The main charge levied against mining activity is the financial compensation for mineral
exploitation (‘CFEM’). Other charges include the annual hectare fee (‘TAH’) and the
control, monitoring and supervision of exploration, mining, extraction and use of
mineral resources fee (‘TFRM’). Moreover, taxes and fiscal obligations are also due.

ii Royalties
CFEM is regulated by Law No. 7.990/89 and Law No. 8.001/90, and it is charged
gradually depending on the mineral resource extracted. Aluminium, manganese and
potassium, for instance, are levied on 3 per cent of the net sales; iron, fertiliser and coal,
2 per cent; and gems and coloured stones, 0.2 per cent.
Pursuant to Article 1 of Law No. 8.001/90, CFEM is due after the total net
sales have been established and once all transport and insurance expenses have been
deducted. The amount collected is divided between the municipality (65 per cent), the

31
Brazil

state (23 per cent), the National Fund for Scientific and Technological Development
(2 per cent) and the Ministry of Mines and Energy (10 per cent).

iii Taxes
In the Brazilian mining business, taxes are key, since the Brazilian tax system is not only
complex but also encompasses a number of specific tax provisions. One example of such
specific provisions relates to pricing. Even though transfer pricing rules allow taxpayers
to elect the best method to calculate pricing, in the mining sector companies are obliged
to use international prices as established by major metals exchanges throughout the
world, as metals are commodities.
In addition, mining production is not subject to federal excise tax due to
constitutional exemption. With regards to state VAT, this tax is normally charged at
rates of 17 per cent, 18 per cent or 19 per cent, depending on the state, and exemptions
apply upon exportation. Other taxes include taxes on total revenue that are levied at a
combined rate of 9.25 per cent. Exports are also exempt from these taxes. With regards
to corporate income taxes, these are levied at a combined rate of 34 per cent, and mining
companies are allowed to deduct all the expenses necessary to the operations, including
those related to exploration and studies on the mining capacity.

iv Duties
Landowners hold surface rights and are entitled to receive three different types of
payments from the miner:
a royalties of 50 per cent of the total amount paid as CFEM to the government
(federal, state and the municipal);
b revenues for land occupation and use, negotiated between landowner and miner;
and
c compensation for damages caused by mining activities, negotiated between
landowner and miner.

v Other fees
Other fees include TAH and, in the states of Minas Gerais, Pará (the biggest ore producers
in Brazil) and Amapá, TFRM.
TAH is paid directly to the Ministry of Mines and Energy and due whenever an
authorisation for an exploration request is filed. It is a progressive fee.
Finally, when an authorisation, concession or licence is granted, the landowner is
also entitled to a share of the profits of the mining.

VII OUTLOOK AND TRENDS

The Brazilian mining market is on the verge of seeing its legal framework for mining
activity completely changed.
The bills of law to be passed and enacted are known as ‘the new regulatory
framework’. Once in effect, the new regulatory framework will change the sector’s
authorities and charges, as well as the mining regimes.

32
Brazil

The current DNPM is set to be replaced by the National Mining Agency, with the
aims of the decentralisation of regulations, a technical approach to specific matters and
an increase in autonomy and operations. New royalty rules and a new Mining Code are
also under discussion.
Expected changes in the new Mining Code include:
a new laws on the better use of mines;
b different regimes for mines with particular public interests;
c new environmental, health and safety rules; and
d a diminishment of mineral rights speculation.

Another interesting innovation is a mining authorisation that will allow miners to extract
sand, clay, gravel or crushed stone under a different regime. No exploration report will be
required, thereby lowering costs significantly.
Finally, an advisory board is expected to be created to set national policies for the
sector, define specific areas for mineral exploration, set general guidelines for obtaining
mining rights and issue normative resolutions.
The mining community is eager to see the new regulatory framework come into
effect. It is believed that the new law may render a fairer treatment of mining exploration
and ultimately match the public interest of having such a strategic economic sector
well regulated.

33
Chapter 4

CANADA
Erik Richer La Flèche and David Massé 1 

I OVERVIEW

Canada is a constitutional monarchy with a Westminster-style parliamentary democracy.


Canada is also a federal state in which legislative authority is constitutionally divided
between the federal government of Canada and the provincial governments of Canada’s
10 provinces. The federal government and the provinces are sovereign within their
respective spheres of competence. Canada also has three sparsely populated northern
territories, but they do not enjoy independent constitutional status and derive their
powers from Canada’s federal government. Legislative powers, including those regarding
certain mining matters, may be transferred by the federal government to its territories
through a process known as ‘devolution’. The devolution process as to mining matters is
complete in connection with Yukon, and continues in connection with the Northwest
Territories and Nunavut. The provinces delegate certain powers to cities and other
municipalities, effectively creating a third level of government.

i Division of powers
The constitutional division of powers in Canada is complex, but as a general rule the
federal government has jurisdiction over matters of national and international importance,
while the provinces have jurisdiction over matters of local importance. For example, the
federal government has authority over trade and commerce, while the provinces have
authority over property law, land use and planning and contract law.

ii Legal systems
Two distinct legal systems exist in Canada. In the largely French-speaking province of
Quebec, private law, including property and contract law, is civil and conceptually similar

1 Erik Richer La Flèche and David Massé are partners at Stikeman Elliott LLP.

34
Canada

to that of France and other continental European countries. The other provinces and the
territories are common law jurisdictions that follow the Anglo-American tradition.

iii Mining
Generally stated, the governments of Canada, the provinces and the territories are
favourably disposed to mining and provide a comparatively stable and well-developed
legal framework for mining.

II LEGAL FRAMEWORK

Jurisdiction over mining in Canada is shared between the federal government of Canada
and the provincial governments of the 10 provinces.
Except for uranium, each province has exclusive power over mineral exploration,
development, conservation and management within its territory irrespective of who
is the owner of the land or minerals. For example, on federal lands situated within a
province, while federal law continues to apply to such lands, it is provincial law that
applies to the exploration and development of minerals.
The governments of Canada and the provinces share jurisdiction over a number
of areas, including the environment and taxation.
Finally, the federal government of Canada has exclusive jurisdiction over some
matters that indirectly affect mining, such as foreign investment and export controls.
The federal government also has exclusive power over mineral exploration, development,
conservation and management within the three territories, although much of this power
has been devolved to the territorial administrations.
Laws directly relating to mining deal with property and land-use planning,
mining rights, the regulation of mining activities, taxation and the environment.
The governments of Canada, the provinces and the territories have each enacted
laws relating to mining, effectively creating multiple distinct regimes. While little
conscious effort has been made at standardisation, these regimes have many common
features and as a result provide a relatively consistent legal approach to mining.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title (ownership)
In Canada, lands and minerals that have not been sold or otherwise granted are owned,
subject to aboriginal title, by the Crown (i.e., the federal or provincial governments
acting in the name of Her Majesty the Queen).
Until the early 20th century, governments in Canada when granting land to private
parties would often also grant the ownership of minerals under such lands. Governments
have stopped this practice and have since retained the ownership of minerals. The only
exception is the grant of minerals made in recent decades as part of some aboriginal land
claim settlements.

35
Canada

This means in practice that, except in the limited instances of private ownership
resulting from land grants or aboriginal ownership resulting from recent land claim
settlements:
a each province owns the minerals located within its territory provided that such
minerals are not otherwise owned by the government of Canada; and
b Canada owns all minerals under federal lands located in the 10 provinces and
three territories, as well as offshore.

ii Surface and mining rights


In those instances where land ownership does not confer ownership of the underlying
minerals (the vast majority of cases), one person may hold surface rights (e.g., ownership
of land) while another may hold mining rights (e.g., the right to prospect, explore or
carry out extractive and processing activities).
In such cases, the rights and interests of the holder of the surface rights may
conflict with those of the holder of the mining rights. Mining legislation in each province
or territory, as supplemented by the relevant property law, deals with such conflicts.
As a general rule, the exercise of mining rights may not materially interfere with
the use and enjoyment of surface rights. When they do interfere, the surface rights holder
must be adequately compensated. In those instances where financial compensation is
not an adequate remedy and the surface rights holder is a private party, most Canadian
jurisdictions provide for the holder of the mining rights to acquire the surface rights.
Mining rights in Canada fall into two broad categories, namely ‘claims’ or
exploration licences, and mining leases. A claim or exploration licence grants its holder
the exclusive right for a limited period to carry out exploration work within a designated
area. Exploration work may include overburden removal, exploratory drilling and test
ore extraction and milling. A mining lease allows its holder to carry out extractive and
processing activities on a commercial scale.
There are two systems for acquiring mining rights in Canada, the ‘free-entry’
system and the ‘Crown discretion’ system. The former is the prevalent system and is
in force in all provinces and territories with the exception of Alberta, Nova Scotia and
Prince Edward Island, which use the Crown discretion system.
Under the free-entry system, persons interested in carrying out exploration work
may designate or ‘claim’ on a first-come, first-served basis those areas where they wish to
carry out the work. Such designation will be recognised provided that certain formalities
are met and, most importantly, provided that the area is not already subject to another
person’s similar claim or exploration permit, or is otherwise off limits to mining (e.g., the
area is located within a national park). A claim also entitles its holder the right to obtain a
mining lease. Such right is not subject to governmental discretion if all of the conditions
precedent to issuance have been met.
Under the Crown discretion system, persons interested in carrying out exploration
work must apply to the authorities for the requisite authorisation and the authorities
have discretion (within limits) to approve or decline the application.

36
Canada

iii Additional permits and licences


Various permits and licences are required at every stage of the mining cycle, and are too
numerous to comprehensively list here. However, they include:
a prospecting permits or licences required in most provinces prior to commencing
prospecting work; and
b environmental permits and licences, as well as surface rights permits and licences
necessary to carry out exploration work (particularly if such work is accompanied
by extensive surface disturbance) or extractive and processing activities under
mining leases.

iv Closure and remediation of mining projects


Most provinces require a closure and rehabilitation plan to be filed prior to commencing
mining activities, including in some cases prior to commencing exploration work.
Financial guarantees are also required to cover all or a substantial part of the plan’s costs.
In addition, annual reporting and periodic plan updates may be required.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


The federal government and the provinces each have jurisdiction over environmental
matters. The provinces have the broader jurisdiction by virtue of their general
constitutional power to legislate over mineral exploration, development, conservation
and management. The federal jurisdiction covers discrete matters falling within federal
powers, including matters relating to navigable waters, fisheries, migratory birds, species
at risk and the transportation of dangerous goods. Some provinces have entered into
agreements with the federal government to provide for environmental cooperation in an
attempt to avoid unnecessary duplications, delays and costs.
The regulatory regimes of the governments of Canada and the provinces are
broadly similar and comprise environmental assessment and review procedures to
evaluate the environmental, economic, social and cultural impacts of new mining
projects, including their infrastructure, prohibitions on releases into the environment
(air, water and soil), licence and permit requirements, spill-reporting and clean-up
requirements, environmental emergency preparedness, ministerial powers to issue orders
and statutory offences.
Environmental assessment legislation, depending on the size and scope of the
project proposed, can require the proponent to produce an environmental impact
statement describing the project, analysing the project’s likely effects on the environment,
suggesting mitigating measures where mitigation is possible and describing residual
adverse effects where it is not. Projects that could have significant adverse environmental
impacts are usually submitted to an administrative agency for a structured review that
may lead to the issuance of guidelines or general or specific directions. Major projects
are also generally subject to public review by an independent board or panel, which may
produce recommendations or a final decision.
Health and safety issues are addressed through occupational health and safety
legislation as well as specific legislation for certain types of mining (e.g., coal or uranium

37
Canada

mining). Directors and officers have a duty to take all reasonable care to ensure that the
corporation complies with applicable health and safety laws, and can be held personally
liable.

ii Environmental compliance
Directors and officers may be held personally liable for the environmental consequences
of a corporation’s activities, particularly where the director is an inside director (that is,
an officer or employee of the corporation or a major shareholder). Secured lenders who
take no action to control or realise on security are generally not liable for their borrower’s
environmental failures.

iii Third-party rights


The Constitution Act, 1982 recognises and affirms the existing aboriginal and treaty
rights of the aboriginal peoples of Canada, which include the First Nations (Indian),
Inuit and Metis people of Canada. In furtherance of such recognition and affirmation,
Canadian courts have imposed on the federal and provincial governments a general duty
to consult any aboriginal group whose aboriginal and treaty rights may be affected by
a governmental decision, including the grant of permits or licences relating to mining
activity. The duty to consult ‘arises when the Crown has knowledge, real or constructive,
of the potential existence of the aboriginal right or title and contemplates conduct that
might adversely affect it’.
Aboriginal rights are communally held rights to use lands and resources in a
manner consistent with ancestral uses of such lands and resources. These rights may not
be sold or otherwise alienated by the aboriginal group to any person other than the federal
government. aboriginal rights confer exclusive use of the land and resources with respect
to the traditional uses. For example, if an aboriginal group has an aboriginal right to hunt
on certain land, then it has an exclusive right to continue to do so on such land.
Courts have determined that the federal and provincial governments can infringe
on aboriginal rights but there must be a compelling reason to do so, and a mine may be a
sufficiently compelling reason. However, before a government infringes on an aboriginal
right it must consult with the affected aboriginal group and, through such consultation,
mitigate any negative impact. The duty to consult is proportionate to the strength of the
aboriginal right or title, and may be satisfied if there has been a reasonable and good-faith
effort made to consult and reach agreement. The courts have made it clear, however, that
the duty to consult does not impose an obligation to reach agreement. No party has a
veto and both parties must act in good faith.
Although the duty to consult is imposed only on governments, it is now normal
behaviour for a mine proponent to be a participant in the process. In some cases (e.g.,
Alberta through its land management and resource development consultation policy and
guidelines), the private party is required to directly interact with the relevant aboriginal
group, but in most cases the private party will want to be involved in order to mitigate
the risk of a legal challenge by an aboriginal group and the adverse effect that such a
challenge could have on a project. Certain provinces, including Ontario and Quebec,
have proposed amendments to mining legislation that would either incorporate the duty
to consult in mining legislation, or specifically recognise that the mining legislation is to
be interpreted in a manner compatible with the duty to consult aboriginal groups.

38
Canada

The best mitigant to any challenge by an aboriginal group is the impact benefit
agreement. This agreement is negotiated between an aboriginal group and a mine
proponent. It is a private contract, which typically provides that, in exchange for support
for the project, access to the mine site and local knowledge (among other things), the
mine proponent will, for example, employ and train members of the community, hire
local subcontractors, fund education and vocational training, pay compensation, open
its capital to community investment and follow certain environmental practices. The
impact benefit agreement is typically preceded by a pre-development agreement, which
essentially governs the period prior to construction and commercial production.

iv Additional considerations
Exceptionally, the federal government has extensive jurisdiction over the mining of
uranium. The source of the federal government’s power is its constitutional power to
make laws for Canada’s ‘peace, order and good government’. An independent federal
regulatory agency, the Canadian Nuclear Safety Commission (‘CNSC’), regulates the use
of nuclear energy and materials, and implements Canada’s non-proliferation obligations.
CNSC licences are required for each phase in the life cycle of a uranium mine: site
preparation and construction, operations, decommissioning and abandonment. The
licensing process is comprehensive, and no licence will be issued unless CNSC is satisfied
that the mine proponent is able to protect health, safety, security and the environment,
and to satisfy Canada’s international non-proliferation obligations.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


Mining operations and mineral processing within Canada are subject to comprehensive
legal regimes designed to protect health, safety and the environment. These regimes
have numerous permitting, licensing and continuous compliance requirements. While
increased processing of minerals in Canada is a stated objective of most governments in
Canada, governments have rarely imposed secondary or tertiary processing obligations
on mine operators.

ii Sale, import and export of extracted or processed minerals


The government of Canada has the constitutional power to regulate international trade
and commerce. Canada favours international trade, including in natural resources, and
is reluctant to impede the free flow of goods. While Canada has an import and export
control regime in place, anchored by the Export and Permits Act, this regime serves
primarily to satisfy Canada’s international obligations and interests, including nuclear
non-proliferation and sanctions imposed by the United Nations.

iii Foreign investment


The Investment Canada Act (‘the ICA’)
The direct acquisition of control of a Canadian mining business by a ‘WTO’ investor
would be reviewable under the ICA if the book value of assets of the target is above a

39
Canada

certain threshold. This threshold is revised every year. In 2012 it was C$330 million. For
direct acquisitions where neither the investor nor the persons who control the vendor
are from WTO countries the threshold is considerably lower (C$5 million). Indirect
acquisitions of control of a mining business by or from WTO investors are exempt from
review.
The relevant test for approval under the ICA is whether the acquisition is of
‘net benefit to Canada’, taking into account a number of factors, including the impact
on employment, capital expenditures, technological development and the level of
resource processing in Canada. The approval of the Industry Minister under the ICA is
often conditional upon the foreign investor’s entering into binding undertakings with
the federal government of Canada (usually in force for three to five years) in which
the investor commits to maintaining one or more of Canadian head office operations,
production levels, participation of Canadians in management, employment levels,
research and development expenditures and capital expenditures with respect to the
Canadian business. Uranium mining is subject to special rules. The basic policy of the
government of Canada is to ensure a minimum level of Canadian ownership of 51 per
cent in uranium mining, although lower levels of Canadian ownership are acceptable if
there is de facto Canadian control or no Canadian partners can be found.
Reviewable investments by state-owned enterprises (‘SOEs’) are subject to
guidelines that essentially require the SOE investor to have a commercial orientation
and to meet Canadian-equivalent corporate governance standards.
Of particular significance in the natural resources sector is the fact that the ICA
may apply to a target business that does not have a strong connection to Canada. For
example, if the target business is a mining company with a head office in Canada that
generates all of its revenue outside Canada, its acquisition may still be considered an
acquisition of a ‘Canadian business’ subject to ICA notification or review.
In addition to the foregoing investment review, the ICA now provides for a
‘national security’ review process for the establishment of a new business, the acquisition
of control of a Canadian business (irrespective of the value of its assets), a minority
(non-controlling) investment in a Canadian business and, in addition, the acquisition
of an entity with some Canadian operations. If the Minister of Industry has reasonable
grounds to believe such establishment, acquisition or investment may be ‘injurious to
national security’, the Federal Cabinet has broad remedial powers, including ordering
that the investment not be implemented, requiring the investor to provide undertakings,
and compelling divestiture of a completed transaction.

The ICA regulations


The ICA regulations do not specifically identify business sectors or activities that
raise national security concerns, nor do they identify factors to be considered by the
government in assessing whether an investment may be injurious to national security.
This is further complicated by the broad application a national security review may
have, catching not just large transactions, but also smaller transactions that fall below
the monetary threshold for general review, minority investments that do not constitute
an acquisition of control and transactions where the target may not have a significant
Canadian presence.

40
Canada

Moreover, there is no formal pre-clearance mechanism. Despite this, for


transactions that are notifiable or reviewable under the general investment process, early
filing of a notification or application for review will trigger a 45 day period during which
the Minister is required to issue a notice of review or possible review. In the absence of
receiving such notice, foreign investors can assume that no national security review will
occur. However, in the case of a minority (non-control) investment, the new national
security regulations that came into force in 2009 provide that the Canadian government
has until 45 days after the closing of the transaction to advise that the investment may
be subject to a national security review. This means that the government is not required
to provide guidance prior to closing, raising the possibility of a divestiture order in the
event a national security concern is identified.
The government has signalled that the purpose of the new national security
mechanism is to ‘ensure that Canada’s sovereignty is not threatened’ and that it should
not be ‘mistaken as a form of protectionism’. There are good reasons, including Canada’s
desire to attract foreign investment and not to provoke restrictions on Canadian
investment abroad, to believe that national security will not be expansively interpreted.
Nevertheless, foreign investors will no doubt be monitoring future investments with
interest.

The Competition Act


The Competition Act (Canada) provides for the pre-notification of larger transactions,
namely acquisitions where the following thresholds are exceeded:
a the ‘size of the parties’ threshold, where the parties to the transaction, together
with their respective affiliates, have assets in Canada, or gross revenues from sales
in, from or into Canada, the book value of which exceeds C$400 million;
b the ‘size of the transaction’ threshold, where the book value of the assets in Canada
being acquired, or the gross annual revenue from sales in or from such assets,
exceeds C$77 million, and
c shareholding thresholds in respect of the acquisition of voting shares in a
corporation or of interests in non-corporate entities.

The parties to a notifiable transaction must make a statutory filing and wait for the
required statutory waiting period prior to closing (unless an advanced ruling certificate
or waiver is received). For transactions that raise potentially significant competition
concerns, the Competition Bureau may, within 30 days of receiving the parties’ statutory
filing, issue a ‘second request’ for additional information. Issuing a second request has
the effect of extending the statutory waiting period until 30 days after the parties have
provided all the information specified and have certified compliance with the second
request. This ‘second request’ merger regime was introduced in Canada in March 2009,
and represents a significant departure from the previous regime and a shift towards a
US-style merger review process. However, for transactions that do not raise material
competition concerns, the Competition Bureau will continue to provide comfort
to merging parties either in the form of an advance ruling certificate or a ‘no-action’
letter along with a waiver of the pre-notification filing. In such situations, the parties
may choose to not make a statutory filing but instead to file only a ‘competitive impact

41
Canada

brief ’ explaining the competitive impact of the transaction, in which they would seek an
advance ruling certificate or a ‘no-action’ letter.

VI CHARGES

i Royalties
All provinces and territories (with the exception of Prince Edward Island) impose mining
taxes or royalties. However, there are significant differences among the provinces and
territories. The differences include the calculation methodology, the applicable rate or
rates and the minerals subject to the mining taxes. There are few mining taxes or royalties
based solely on production or extraction. Most mining taxes or royalties are calculated
on a net smelter return, net mine profit or some other net mine proceeds basis where
some but not all costs (e.g., financing expenses) are taken into account. Mining taxes and
royalties are most often deductible for income tax calculation purposes.

ii Taxes
The federal and provincial governments levy income tax. Residents of Canada are subject
to income tax on their worldwide income. Subject to treaty relief, non-residents of
Canada are subject to withholding tax on Canadian-sourced passive income (e.g., interest,
dividends), and income tax on Canadian-sourced business income and capital gains.
Income is determined each year on an accrual basis. Provincial income tax is calculated
in a manner similar to federal income tax (with some province-specific variations), but at
lower rates that vary from 10 to 16 per cent depending on the province.
Mining exploration is fraught with risk and mining production is capital intensive.
To compensate for this, the Canadian tax system has adopted a number of measures
designed to provide tax relief and encourage mining activity, including:
a favourable deduction of Canadian exploration expenses and Canadian
development expenses;
b accelerated depreciation for certain types of tangible property;
c tax credits for certain intangible property expenses;
d 20-year operating loss carry-forward period;
e indefinite carry-forward for capital losses; and
f flow-through share mechanisms that allow corporations to pass along exploration
and development expenses deductions to their shareholders.

iii Other fees


In addition to administrative fees levied pursuant to mining legislation, mining activities
in Canada are generally subject to the same taxes applicable to other businesses. These
will include federal and provincial payroll taxes, custom duties on the importation of
machinery, equipment and ores and concentrates, land transfer taxes, the federal goods
and service and provincial sales taxes, and regional and municipal property taxes.

42
Canada

VII OUTLOOK AND TRENDS

Canada is a stable democracy with a well-established rule of law and good infrastructure.
It is extraordinarily well endowed with natural resources. It is also a relatively high-
cost jurisdiction. As long as world demand for minerals remains strong and prices
high, Canada will continue to attract strong interest from foreign investors. This is
particularly true in connection with iron (the Labrador Trough between Quebec and
Newfoundland and Labrador), oil sands (Alberta), uranium and potash (Saskatchewan),
nickel (Newfoundland and Labrador), rare earths (Quebec) and chromite (Ontario).
In order to tap into increased demand for minerals, particularly from China and
India, Quebec and Ontario have each recently announced plans to develop their northern
regions. While the plans have many features in common (e.g., consultation with local
populations, including First Nations and Inuit, creation of very large protected areas,
rational land-use planning over a 25-year horizon), the Ontario plan appears at first
glance less centralised than the Quebec one.
Under the Ontario plan, the First Nations appear to have a greater advisory role.
Among other things, they will be asked to provide their perspectives on protection and
conservation for the purpose of land-use planning, and will be directly involved in the
implementation of land-use planning.
The Quebec plan covers a much larger area than the one in the Ontario plan.
Among other things, it contemplates the creation of a development corporation to
facilitate and monitor mining and infrastructure development in northern Quebec
(i.e., all of Quebec north of the 49th parallel), and the creation of several investment
funds to invest in mining ventures and to fund infrastructure.
Both plans will require considerable infrastructure investment. The intent in both
provinces is to develop infrastructure using public-private partnerships and other schemes
where the private sector shares the burden. Some of the infrastructure investments are
considerable. For example, the current estimated cost of the 800-kilometre freight line
required to transport iron ore from new mines under development in the Labrador
Trough is approximately US$5 billion.
Trends being observed in Canada include the desire of Canada’s federal government
and several provincial governments to ensure that environmental impact assessments
and other regulatory process are finite, and cannot be needlessly delayed by third-party
challenges. The view is that there is sufficient knowledge and experience to mitigate most
(if not all) risks posed by mining and infrastructure development, and that the process
is being abused, thus needlessly increasing project costs and delaying development. In
other words, governments across Canada view natural resource development as being
positive, provided that it has the support of local populations; it is compliant with all
laws, particularly environmental laws; and it is financially beneficial to the province or
territory wherein it is located. This represents a considerable change from the situation
of 10 to 20 years ago, particularly in central and eastern Canada.

43
Chapter 5

DEMOCRATIC REPUBLIC
OF THE CONGO
Emery Mukendi Wafwana, Edmond Cibamba Diata, Nady Mayifuila,
Jonathan van Kempen and Eric Mumwena Kasonga 1

I OVERVIEW

The Democratic Republic of the Congo (‘the DRC’) is immensely rich in natural
resources and holds some of the largest deposits anywhere in the world. The country
holds one-third of the world’s reserves of cobalt and one-tenth of its copper reserves and
contains 80 per cent of world reserves of columbite-tantalite (‘coltan’). The DRC holds
the largest known reserves of diamonds and the largest undeveloped gold deposits in the
world. The country also holds significant reserves of other minerals such as zinc, iron, tin
and uranium. In 2008, the country’s share of world production amounted to 45 per cent
for cobalt, 30 per cent for industrial diamonds and 2 per cent for copper.2
Historically, and after years of armed conflict and political turmoil, foreign
investors are increasingly attracted by natural resources projects in the DRC, particularly
in the mining sector. In order to engage in mining activities, foreign investors can
either apply for and obtain mining rights from the mining registry (‘CAMI’), in which
case they will need to explore to find mineral deposits, or they can enter into joint-
venture agreements with mining title holders, generally state-owned companies such
as Gecamines, which holds areas within which mineral substances have already been
identified. Mining titles available in the DRC are research permits (‘PRs’), exploitation
permits (‘PEs’), and exploitation permits for small-scale mines (‘PEPMs’), and tailing
exploitation permits (‘PERs’). According to the general director of CAMI, there are
exploration activities on 30 per cent of the surface area of the country, through a total

1 Emery Mukendi Wafwana is founding partner, Edmond Cibamba Diata is a partner, and
Nady Mayifuila, Jonathan van Kempen and Eric Mumwena Kasonga are associates at Emery
Mukendi Wafwana & Associés.
2 Promines, ‘Artisanal mining exploitation in the DRC’, Pact Inc, June 2010, p. 21, www.
pactworld.org/galleries/resource-center/PROMINES%20Report%20English.pdf.

44
Democratic Republic of the Congo

of 3,479 research permits; exploitation activity covers 2 per cent, with 462 exploitation
permits and 88 exploitation permits for small-scale mines. Artisanal exploitation covers
only 0.06 per cent of the country, and 9 per cent is reserved for geological research
undertaken by public entities.3

II LEGAL FRAMEWORK4

The DRC is a civil law country, whose private law is based on the 1804 Napoleonic
Civil Code. The general characteristics of the DRC legal system are very similar to legal
systems in force in other French-speaking African countries.
At the apex of the legal system, the Congolese Constitution of 18 February 2006
is the first source of law, which sets fundamental pillars for the regulation of mining
activities. It also provides that the management and regulation of the state’s ownership
is determined by law.
In accordance with the Constitution, the DRC legislator enacted the Law
No. 007/2002 of 11 July 2002 on the Mining Code (‘the Mining Code’) and the
implementation measures of the Mining Code provided in Decree No. 038/2003 of 26
March 2003 on Mining Regulations (‘the Mining Regulations’). Both the Mining Code
and Mining Regulations form the law governing mining activities (together, ‘the mining
legislation’).
In accordance with Article 215 of the Constitution, international treaties and
conventions duly concluded take precedence over national law, provided they are also
applied by the other contracting party. For example, at the international level, the DRC is a
member of numerous international organisations such as the World Trade Organization,
the World Bank Group (including the International Financial Corporation), the
Multilateral Investment Guarantee Agency (‘MIGA’) and the Convention establishing
the International Centre for Settlement of Investment Disputes (‘ICSID’). Furthermore,
the DRC has concluded bilateral investment treaties (‘BITs’) with several countries,5
including the only double-taxation treaty in force with Belgium.6
At the regional level, the DRC is currently a member of the African Union, the
Southern African Development Community, the Economic Community of Central
African States, and the Common Market for Eastern and Southern Africa, and the
International Conference on the Great Lakes Region. In addition, the DRC is a member

3 Jean Felix Mupanda, General Director of CAMI, ‘Prospects for investment in the mining
exploitation in the DRC’, speech at Mining INDABA, Cape Town, 2011.
4 Emery Mukendi Wafwana, Droit minier Vol. I, principes de gestion du domaine minier, Bruylant,
Kinshasa, 2003.
5 BITs concluded with the United States, Switzerland, France and Germany are currently in force
(see UNCTAD, www.unctadxi.org).
6 The double-taxation treaty between the DRC and Belgium was signed on 23 May 2007 and
ratified in Belgium on 13 February 2009. By Law No. 11/023 dated 24 December 2011, the
DRC authorised the ratification of the double-taxation treaty, which entered into force on 24
December 2011, and is applicable to fiscal year 2013.

45
Democratic Republic of the Congo

of the Organization for the Harmonization of Business Law in Africa (‘OHADA’).7 It


completed its accession process to OHADA by filing the instrument of accession with the
Government of the Republic of Senegal on 13 July 2012. Consequently, in accordance
with Article 53, Section 2 of the OHADA Treaty, all provisions thereof, regulations and
uniform acts (‘OHADA Law’) came into force in the DRC 60 days after the effective
filing of the instrument of accession (12 September 2012).
Mining activities in the DRC may also be affected by foreign legislations such as
Section 1502 of the US Dodd-Frank Act imposing new disclosure requirements for US
public companies that use conflict minerals from the DRC or adjoining countries;8 the
US Foreign Corrupt Practices Act of 1977;9 or the UK Bribery Act of 2010.10
Finally, mining activities are subject to international voluntary principles that
promote transparency, accountability and good practice. For example, the DRC has
been granted the status of candidate country for the Extractive Industries Transparency
Initiative (‘EITI’) until 1 March 2013, by which time the DRC will be required to have
completed an EITI validation that demonstrates compliance with the 2011 edition of
EITI Rules.11
In the DRC, mining activities are regulated and managed by several political and
administrative entities, as well as technical services that assist such entities.12 Political
entities involved in the implementation of the mining legislation are the President of
the Republic13 and the Minister of Mines,14 and administrative entities are provincial

7 OHADA is an international organisation, created by a Treaty signed in Port-Louis, Mauritius,


on 17 October 1993, in order to strengthen the African legal system, by enacting a secure legal
framework for the conduct of business in Africa. The current member states of OHADA are
Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, the Republic of the
Congo, the Democratic Republic of the Congo, Chad, Ivory Coast, Gabon, Guinea, Guinea
Bissau, Equatorial Guinea, Mali, Niger, Senegal and Togo.
8 Section 1502 of the US Dodd-Frank Act was adopted on 22 August 2012 (www.sec.gov/rules/
final/2012/34-67717.pdf ).
9 US Foreign Corrupt Practices Act of 1977 (www.justice.gov/criminal/fraud/fcpa/docs/fcpa-
english.pdf ).
10 UK Anti-Bribery Act 2010, which came into force on July 2011 (www.legislation.gov.uk).
11 Extraction Industries Transparency Initiative (http://eiti.org/DRCongo).
12 Edmond Cibamba Diata, Cours de droit minier, Université Libre de Kinshasa, 2006–2007.
13 According to Article 9 of the Mining Code, the President of the Republic has the power to
enact the Mining Regulations to implement the Mining Code, to classify, declassify or reclassify
mineral substances as mines or quarry products, to declare, classify or declassify an area as
a prohibited area for mining activities or quarry works or a mineral substance as a reserved
substance and to confirm the reservation of a deposit which is subject to tender pursuant to
a ministerial decree. The President may exercise his or her power under the Mining Code by
decree after having obtained the opinion of the Geology Directorate or CAMI.
14 Article 10 of the Mining Code defines the powers of the minister of mines under the
Mining Code. Its power includes granting or refusal and cancellation of mining; granting of
authorisation to export raw mineral substances; and approval for constitution of mortgages.

46
Democratic Republic of the Congo

governors and heads of the provincial authority of mines.15 Technical services to the
mining administration are provided by CAMI, which is a state institution endowed with
legal personality and financial autonomy under the supervision of the Minister of Mines
and minister of finance. CAMI is responsible for registering applications for mining
rights, granting of mining rights, withdrawal, cancellation or expiration of mining rights
and transformation or lease of mining rights.16 In addition, other administrative entities
intervene in the implementation of the Mining Code within well-defined limits, such
as the Geology Directorate,17 the Mines Directorate18 and the Mining Environment
Protection Directorate.19

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
The DRC state exercises its permanent sovereignty over soil and subsoil. This principle
is enacted by Article 9 of the Constitution, which provides that ‘the State exercises its
permanent sovereignty over the soil, subsoil, water, forests, air spaces, river, lake and sea
as well as over Congolese territorial seas and continental shelves’. This principle of state
ownership is also recognised in Article 3, Section 1 of the Mining Code, which states
that ‘the deposits of mineral substances, including artificial deposits, underground water
and geothermal deposits on surface or in the subsoil or in water systems of the National
territory are the exclusive, inalienable and imprescriptible property of the State’.
The ownership of the deposits of mineral substances constitutes a real property
right that is separate and distinct from the rights resulting from the surface area.
Therefore, holders of surface rights may not claim any right of ownership over the
deposits of mineral substances contained below the surface area, whereas holders of
mining exploitation rights acquire ownership over all extracted products.

ii Mining rights
The mining legislation envisages different mining rights: PR; PE; PER; and PEPM.20
Mineral prospecting may take place throughout the entire country, except for in certain
protected or restricted areas.21 Any person that wishes to undertake mineral prospecting
must make a preliminary declaration to CAMI. Mining rights are granted following a
procedure set out in the Mining Code.22
All applications for mining rights must be made by eligible individuals or entities.
In accordance with Article 23 of the Mining Code, the following are eligible for mining

15 Article 11 of the Mining Code.


16 Article 12 of the Mining Code.
17 Article 13 of the Mining Code.
18 Article 14 of the Mining Code.
19 Article 15 of the Mining Code.
20 Article 1.14 of the Mining Code.
21 Article 17 of the Mining Code.
22 Article 32 of the Mining Code.

47
Democratic Republic of the Congo

rights: any individual of age who is a Congolese national or of foreign nationality; any
Congolese legal entity with a registered office in the DRC whose corporate purpose is
mining activities; any foreign legal entity; or any entity carrying out scientific activities.
Artisanal mining is, however reserved to Congolese nationals.23
All applications for mining rights must fulfil the following:
a information must be accurate, required by Article 35 of the Mining Code;
b payment of filing costs, proof of which must be supplied;
c compliance with Articles 28 and 29 of the Mining Code, as to the form and
location of the perimeter;
d the entire perimeter applied for under a PE must be located within the perimeter
of the PR; and
e proof of the applicant’s registration with the new commercial registry, if the
applicant is subject to this legal obligation.24

Once applications are filed and accepted, they are subject to three evaluations: cadastral
evaluation undertaken by CAMI, technical evaluation undertaken by the Mines
Directorate, and environmental evaluation undertaken by the services responsible
for the protection of the mining environment. CAMI centralises the opinions issued
from such evaluations and submits them to the competent authority. Subsequently, the
competent authority renders its decision and submits it to CAMI. In case of a favourable
decision, CAMI registers them, notifies the decision to the applicant, and displays it in
the premises set out in the Mining Regulations. In the event the competent authority
fails to submit its decision within the required time, the decision to grant the mining
right will be deemed to have been granted.
When a decision grants a mining right, CAMI issues a mining title to the applicant
evidencing the right, providing that the relevant annual surface rights have been paid.
The annual surface fees per quadrangle 25 must be paid for the first year, at the latest 30
days after the rights have been granted. Failure to pay within this time frame will render
the mining rights null and void.26

Research permits
A PR is a real property and exclusive right, conveyable and transferable. The right
is evidenced by a mining title called a ‘research certificate’. It is valid for four years,
renewable twice for periods of two years for precious stones, and for five years, renewable
twice for periods of five years for other mineral substances. An entity and its affiliated
companies cannot hold more than 50 PRs.
To apply for a PR, an applicant must follow the procedure set by Articles 35 to
42 of the Mining Code and needs to attach proof of minimum financial capacity to its

23 Article 26 of the Mining Code.


24 Article 38 of the Mining Code.
25 A surface area of 84,655 hectares.
26 Article 47 of the Mining Code.

48
Democratic Republic of the Congo

applications; this must be equal to 10 times the total amount of the annual surface rights
fees payable for the last year of the first period of the PR applied for.
The holder of a PR is entitled to obtain renewal of its PR provided that it has not
breached its obligations to maintain the validity of the permit; it submits an exploration
work report for the prior term of validity of its title with the results obtained; and the
renewal application is filed with CAMI at least three months before the PR expires.
At each renewal, the holder of the PR automatically relinquishes 50 per cent of the
perimeter covered by its permit.

Exploitation permits
A PE is a real property and exclusive right, conveyable and transferable. The right is
evidenced by a mining title called an ‘exploitation certificate’. A PE grants its holder the
right to extract the mineral substances for which it is specifically granted. Its term of
validity is 30 years, which is renewable for several terms of 15 years.
To apply for a PE, an application must be filed with CAMI along with the
following attachments:
a a copy of the valid research certificate;
b the report on the outcome of the research work with regard to the nature, the
quality, the volume and the geographical situation of the mineral substances;
c the feasibility study for the exploitation of the deposit;
d the technical framework plan for the development, construction and development
of the mine;
e the environmental impact study (‘EIS’) and the environmental management plan
of the project (‘EMPP’); and
f the report on consultations held with the authorities of the local administrative
entities as well as representatives of the local communities.

An application for a PE will be granted provided that the following conditions are
fulfilled: (1) proof of the existence of a deposit that can be economically exploited, (2)
proof of the applicant’s financial capacity in view of the contemplated exploitation, (3)
prior approval of the draft EIS and EMPP and (4) transfer to the state of 5 per cent of
the shares in the registered capital of the company applying for the PE.

Tailing exploitation permit


A PER is also a real property and exclusive right, conveyable and transferable. The right
is evidenced by a mining title called a ‘tailing exploitation certificate’. It is valid for five
years, and is renewable for several times. The applicant for an exploitation of tailings
prepares the application in accordance with Articles 38 to 42, as complemented by
Articles 74 to 75 of the Mining Code, and is filed with CAMI. The provisions relating
to the filing, instruction, granting, refusal, expiration, renewal and revocation of the PE
also apply to the PER.

Exploitation permit for small-scale mines


A PEPM is a real property and exclusive right, conveyable and transferable and grants its
holder the right to exploit a small mining deposit . The right is evidenced by a mining
title called ‘small-scale mining certificate’ and its term of validity is variable, but may not

49
Democratic Republic of the Congo

exceed 10 years, renewals included.27 In addition to the conditions related to the granting
of a PE, the granting of a PEPM is subject to the demonstration of the existence of a
deposit that would not allow economically viable industrial exploitation. In addition, any
foreign national wishing to apply for such a right must set up a Congolese corporation in
association with one or more Congolese nationals, whose participation in the capital of
the corporation must be at least than 25 per cent.28 The provisions related to the filing,
instruction, granting, refusal, expiration, renewal and revocation of the PE apply also to
the PEPM.29

iii Additional permits and licences


There are no additional permits and licences required for title holders to conduct mining
activities.

iv Closure and remediation of mining projects


The holder of mining rights must provide a financial security for the rehabilitation of
the environment in order to guarantee compliance with the environmental obligations,
in particular to cover the costs of the environmental rehabilitation measures detailed in
the environmental plan. The details of the financial security are specified in the Mining
Regulations.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


The mining legislation contains provisions that regulate the environmental, health and
safety aspects of mining activities. Environmental aspects are regulated by the Mining Code
and the Mining Regulations. For safety, hygiene and protection measures, the Mining
Code provides in Article 207 that such measures will be enacted by specific regulations.
International development initiatives such as the EITI (see above) and the Equator
Principles also affect environmental, health and safety aspects of the mining activities in
the DRC.

ii Environmental compliance
The environments obligations of title holders depend on the type of mining title.
Prior to commencing exploration works, holders of a PR must prepare a mitigation
and rehabilitation plan that needs to be approved by the DPEM.30 All applicants for
exploitation permits (PE, PER and PEPM) need to submit an EIS and an EMPP,
which need to be approved beforehand by the DPEM.31 The details of the different

27 Article 101 of the Mining Code.


28 Article 104 of the Mining Code.
29 Articles 105 to 108 of the Mining Code.
30 Article 203 of the Mining Code.
31 Article 204 of the Mining Code.

50
Democratic Republic of the Congo

environmental plans that need to be prepared and approved beforehand are specified in
the Mining Regulations.
The holder of a mining right will be liable for any environmental damages caused
by its activities only to the extent that it did not comply with the terms of its approved
environmental plan or violated any environmental obligations under the Mining Code
or title XVIII of the Mining Regulations.
A title holder is also subject to other environmental obligations such as (1) filing
an annual report in accordance with Article 458 of the Mining Regulations describing,
inter alia, the executed mining works and its environmental effects, (2) performing an
environmental audit in accordance with articles 459 and 460 of the Mining Regulations,
and (3) conducting an environmental audit in the case of closure of the mining site in
accordance with Article 473 of the Mining Regulations.
Furthermore, if mining rights are transferred, the transferor and the transferee
must carry out an environmental audit of the mining site. In accordance with Article 182
of the Mining Code, the title holder who acquires its mining right by transfer will assume
the environmental obligations with regard to the DRC on behalf of the transferor, unless
the transferor has obtained a certificate of discharge of its environmental obligations.

iii Third-party rights


The DRC mining legislation does contain not specific regulations for the protection of
local communities in relation to the exercise of mining rights, but if a mining project
requires the relocation of local communities, this would need to be analysed under the
environmental plan.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


As previously explained, deposits of mineral substances are the exclusive property of the
state, which grants to exploitation right holders the ownership of the mineral substances,
which are moveable assets, governed by civil and commercial law.32 Furthermore,
exploitation right holders have the exclusive right to dispose, transport and freely
commercialise the marketable products originating from their perimeters.33
The exploitation right holders are entitled to undertake concentration,
metallurgical or technical processing and transformation operations of mineral substances
extracted from deposits located within their perimeters without the need for any
additional authorisation.34 Subject to Article 10(J) of the Mining Code, the processing
or transformation of mineral substances may be conducted either by the exploitation
right holder or by a processing or transformation entity.35 Any person or entity that
wishes solely to transform mineral substances must apply for and obtain a processing or

32 Article 3 of the Mining Code.


33 Articles 64 line d and 88 of the Mining Code.
34 Articles 64 and 82 of the Mining Code.
35 Article 81 of the Mining Code.

51
Democratic Republic of the Congo

transformation licence, which is governed by specific legislation.36 Although the Mining


Code refers to this specific legislation, this matter is in fact governed by Ministerial Decree
No. 3163/CAB.MIN/MINES/01/2007 of 11 August 2007 regulating the activities of
processing entities and entities for transformation of mineral substances.

ii Sale, import and export of extracted or processed minerals


Exploitation right holders are entitled to sell their products to customers of their choice
at prices freely negotiated on the domestic or foreign markets.37
Furthermore, exploitation right holders are generally able to freely export all of
their production on international markets of their choice, but they must sign a document
governed by the regulations on change.38 Exportation of raw mineral substances outside
the DRC is, however, subject to an authorisation from the Minister of Mines. Such
authorisation will be granted only if the holder demonstrates that it is not possible to
process or treat the substances in the DRC at a cost that is economically viable for the
mining project, and it also shows the advantages for the DRC if the authorisation is
granted.39

iii Foreign investment


Foreign investments are, in principle, regulated by the Investment Code created by Law
No. 004/2002 of 21 February 2002, which sets the conditions, advantages and general
rules applicable to investments made in the DRC, but mining activities are excluded from
its application and are instead regulated by the mining legislation, which does not subject
foreign investment in the mining sector to any authorisation from the DRC government.
There are no restrictions on the import of capital or on the use of proceeds from
the export or sale of mining products and their conversion into Congolese francs;40
however, the Mining Code specifies that the holder who exports mining substances must
repatriate into its main DRC national account a minimum of 40 per cent of the receipts
from exportation. After having paid the corresponding taxes and charges, the holder
may then transfer revenue and capital for the benefit of non-residents, subject to certain
restrictions. First, the payment for any goods and services to foreign supplies are allowed
only if the holder was unable to find the same goods or services in the same quantity,
quality or price, and under the same conditions, on the Congolese market. Second, the
repayment of advances on shareholders’ accounts are authorised provided that the ratio
of the borrowed funds against stock capital does not exceed 75:25.41
In relation to the financing of mining projects, Articles 543 and 544 of the
Mining Regulations provide that holders are authorised to conclude one or more loan
agreements with foreign lenders provided that the terms and conditions of the loan

36 Article 82 of the Mining Code.


37 Article 85 of the Mining Code.
38 Article 266, Section 1 of the Mining Code.
39 Article 85, Section 2 of the Mining Code.
40 Article 263 of the Mining Code.
41 Article 264 of the Mining Code.

52
Democratic Republic of the Congo

agreement are similar or more attractive than the ones provided under normal domestic
market conditions. The holder must, however, file three copies of the loan agreement
with the mines directorate within 18 business days of the date of the signature of the loan
agreement for its review.

VI CHARGES

The Mining Code creates a specific, preferential and exhaustive tax and customs regime
applying to mining activities in the DRC. The tax regime is specific because it creates
certain taxes that are specific to mining activities, such as mining royalties or annual
surface area tax. It is preferential because it provides for reduced tax rates and exemptions
with comparison to the standard tax regime. It is also exhaustive because it lists all taxes,
royalties, duties or other fees applicable to mining activities to the exclusion of any other
form of taxation, except more favourable tax or customs provisions entering into force
after the Mining Code.42
The tax and custom regime of the Mining Code is applicable to holders of mining
title, their affiliate companies43 and subcontractors44 that carry out mining activities in
accordance with a contract concluded with the holder of the mining title.45 Furthermore,
the Mining Code provides for specific tax incentives to strengthen the competitiveness of
the mining sector in the DRC.
The tax and customs regime applicable to mining activities is also protected by
a stability clause. In this regard, Article 276 of the Mining Code provides that the state
will guarantee that the provisions of the Mining Code can only be modified if – and
only if – the Mining Code itself is the subject of a legislative amendment adopted by the
parliament. Furthermore, any amendment to the Mining Code adopted by parliament
will only come into force 10 years following its enactment, but more favourable tax and
customs provisions enacted after the date of the Mining Code are immediately applicable
to mining activities as of the date of their entry into force.46

42 Articles 220 and 221 of the Mining Code.


43 By affiliate companies, the Mining Code means, under Article 1.47, a company that holds
directly or indirectly more than 50 per cent of the voting rights in the company holding the
mining title or in the company in which voting rights are held directly or indirectly by the
holder.
44 By subcontractors, the Mining Code means, under Article 1.48, any person supplying
equipment or carrying out works or providing relevant services to the mining title holder within
the context of its mining activities pursuant to its mining title and, in particular, including
the construction of industrial, administrative, sociocultural and other types of infrastructure
necessary for the project, as well as all other services directly related to the mining project.
45 Article 219 of the Mining Code.
46 Article 222 of the Mining Code.

53
Democratic Republic of the Congo

i Royalties
The exploitation right holder is subject to mining royalties on all commercial products as
of the effective date of commencement of the activity.47 Mining royalties serve two goals:
(1) to provide the DRC state with income at the outset of the exploitation, even in the
case that the exploitation makes no profits; and (2) to contribute to the development of
local communities, as part of the royalties are redistributed to communities surrounding
the mining site. Mining royalties are 0.5 per cent for iron or ferrous metal; 2 per cent
for non-ferrous metals; 2.5 per cent for precious metals; 4 per cent for precious stones; 1
per cent for industrial minerals; and 0 per cent for standard construction materials. Solid
hydrocarbons and other substances are not specifically mentioned.48
Mining royalties are due upon the sale of the products and are calculated on the
value of sales made, less the costs of transport, quality control analysis of the commercial
products, insurance and any costs related to the sale transaction.49
Mining royalties are considered as deductible expenses for the determination of
corporate taxable income. Furthermore, according to Article 243 of the Mining Code,
holders of mining titles that sell their products to local processors benefit from a tax credit
equal to one-third of the mining royalties paid on the products sold to a transformation
entity located in the DRC.

ii Taxes
In general, taxes are direct and indirect. Direct taxes are subdivided between (1) asset-
based taxes, which include tax on real property and on vehicles and (2) income-based
taxes, which include tax on rental income, tax on interest and dividends, and professional
taxes, which comprise tax on profits and tax on salaries.
In the case of asset-based taxes, the holder of mining title is liable for tax on real
property in accordance with the general tax law, except on buildings located inside the
perimeter subject of a PR or PE, which are exempt from the tax on real property.50 The
holder of a mining title is liable for tax on vehicles in accordance with the general tax law,
except on vehicles used exclusively for mining activities, which are also exempt.51
The holder of a mining title is liable for the tax on rental income in accordance
with the general tax law, which sets the tax rate at 22 per cent. The holder of a mining
title is obliged to withhold the tax on interests and dividends in accordance with the
general tax law, which sets the tax rate at 20 per cent; however, providing that certain
conditions are met, interest paid by the holder by virtue of loans contracted in foreign
currency abroad are exempt, and, dividends and other distributions made by the holder
of mining titles are taxed at the preferential rate of 10 per cent.52

47 Article 240 of the Mining Code; Articles 523 et seq. of the Mining Regulations.
48 Article 241 of the Mining Code.
49 Article 255 of the Mining Code.
50 Article 236 of the Mining Code.
51 Article 237 of the Mining Code.
52 Article 246, Section 2 of the Mining Code.

54
Democratic Republic of the Congo

In terms of professional taxes, the holder is liable for a tax on profits, which is
payable on net profits made through its operational activity in the DRC. The Mining
Code provides for a preferential rate of 30 per cent on net profits instead of the general
tax law, which sets the rate at 40 per cent. Net profits consist of profits less all costs
incurred in the production of income during the year, based on general law and the
Mining Code. Specific provisions of the Mining Code provide for tax incentives that will
reduce payable professional taxes such as depreciation up to 60 per cent of the purchase
price of an asset during the first year,53 the potential to carry forward tax loss up the fifth
year following the year of the loss,54 and research and development expenses may be
capitalised during the exploration period and amortised for the first two years following
the granting of the PE.55
Furthermore, the mining title holder is obliged to withhold the tax on salaries in
accordance with general tax law. The mining title holder is also obliged to withhold the
exceptional tax on salaries for expatriate employees at a preferential rate of 10 per cent
instead of the standard rate of 25 per cent.
As an indirect tax, domestic turnover tax (‘ICA’) is payable on the gross amount of
sales of products or services made locally. The seller or service provider is the tax debtor and
adds the amount of ICA to its invoices and repays the collected ICA to the tax authority.
Different rates apply. First, for sales and services rendered by the mining title holder, the
following rates apply: products sold by the mining title holder to a transformation entity
located in the DRC are exempt from ICA; any other sales of products by the mining title
holder within the DRC are taxed at a preferential rate of 10 per cent; services rendered
by the mining title holder are taxed at the standard rate of 18 per cent. Second, for sales
and services rendered to the mining title holder, the following rates apply: a preferential
rate of 5 per cent is a payable by the holder for services rendered to it in connection with
its corporate purpose; and purchases of goods manufactured in the DRC and linked to
the mining activities of the holder are taxed at the rate of 3 per cent.

iii Duties
The Mining Code sets a preferential regime for import duties. In order for the mining
title holder to benefit from this preferential regime, a list, including the number and the
value of the moveable property, equipment, vehicles, mineral substances and other inputs
(which are governed by the preferential regime), needs to be approved by a joint decree
issued by the ministers of mines and finance before commencing the work.56 Prior to the
effective commencement of the exploitation work, importation of goods and products
that are strictly for mining use are subject to import duties at the preferential rate of
2 per cent, but from the effective commencement of exploitation work, importation of
goods and products that are strictly for mining use are subject to import duties at the
preferential rate of 5 per cent. Imports of fuels, lubricants, reagents and consumer goods

53 Article 249 of the Mining Code.


54 Article 251 of the Mining Code.
55 Article 252 of the Mining Code.
56 Article 225 of the Mining Code.

55
Democratic Republic of the Congo

destined for mining activities are subject to import duties of 3 per cent throughout the
duration of the mining project.
Goods imported under the preferential regime may not be transferred to any
other person without the prior consent of the customs authorities, otherwise the avoided
import duties will need to be paid.57
There are no export duties for the exportation of commercial products in relation
to mining projects;58 however, some royalties and fees are due as remuneration for services
rendered in connection with the export of commercial products or goods for temporary
export for improvement, but may not exceed 1 per cent of their value.

iv Other fees
To cover the costs for the management of mining titles provided by CAMI, mining title
holders are also required to pay fees on the surface area of the mining concession.59 As
provided in Article 196 of the Mining Code, non-payment of the annual surface area
fees in a timely fashion may affect the validity of the mining title. For holders of PRs,
the rates are in Congolese francs, equivalent to US$0.02 per hectare for the first year, to
US$0.03 per hectare for the second year, US$0.035 per hectare for the third year and
US$0.04 per hectare for subsequent years. For holders of PEs, the fees are in Congolese
francs, equivalent to US$0.04 per hectare for the first year, US$0.06 per hectare for
the second year, US$0.07 per hectare for the third year and US$0.08 per hectare for
subsequent years.

VII OUTLOOK AND TRENDS

The mining sector in the DRC is currently experiencing a period of growth. Following
the adoption of the Mining Code in 2002, the mining authorities have been deliberating
on ways to contribute to the development of the mining sector in order to achieve the
best socio-economic outcomes.
The changes one should expect to see in a near future are related, inter alia, to:
a ways of increasing mining tax revenue in the short term;
b ways of achieving better implementation of the mining legislation;
c strict application of the principles and criteria of the EITI;
d strengthening capacity building for the administrative and specialised services of
the Ministry of Mines to ensure more efficient management of mining rights;
e ensuring control of research activities and mining exploitations;
f provide efficient technical assistance and training to artisanal miners;
g increasing the mining sector’s contribution to the country’s economic development,
through restructuring of state companies;
h improvement of social and environmental conditions in mining areas.

57 Article 228 of the Mining Code.


58 Article 234 of the Mining Code.
59 Article 238 of the Mining Code.

56
Democratic Republic of the Congo

After 10 years of existence, the mining legislation will be revised this year. The goal
behind such revision is, according to the DRC mining authorities, to improve it and
correct its shortcomings.
Areas affected by the review will include handling of mining titles and mining
rights, social responsibilities of mining companies, and the percentage compensation to
be paid to the DRC state (the idea being to increase the state participation in mining
companies to compensate for all the fiscal and customs incentives given to mining
companies). The DRC believes60 that this is the only way for it to recover what it loses in
terms of taxes and customs fees not collected because of fiscal exemptions.
The mining authorities also wish to correct a few issues such as difficulties of
local communities in accessing mining properties; inadequate data on geological
infrastructure; the absence of a policy for promoting investment in the absence of
objective conditions of implementation or monitoring of exploration and exploitation
projects; and inadequate tax collection systems.
The mining authorities would also like to see more reforms that address the
proper application of legal principles to improve the governance of the sector and its
contribution to socio-economic development at both national and local levels.

60 Jean Felix Mupanda, General Director of CAMI, speech held at IPAD Mining and
Infrastructure, 2010, Kinshasa, DRC.

57
Chapter 6

ECUADOR
Jaime P Zaldumbide and Jerónimo Carcelén 1

I OVERVIEW

Although mining has taken place in Ecuador since colonial times, the exploitation of
mineral deposits has not played a major role in the country’s economic development.
Over the past five years, however, two very large deposits have been found in
the Ecuadorean Amazon region: a gold deposit (Aurelian-Kinross) and a copper deposit
(Ecuacorrientes, Tongling Nonferrous Metals Group Holdings Co and China Railway
Construction Corp). They involve international projects and, according to the holders of
the mining concessions, require substantial investment in the mining sector.
In connection with these two projects, negotiations for development and
exploitation contracts have concluded with Ecuacorrientes but are ongoing with Kinross;
other companies holding smaller projects are on the list to start negotiations once the
Kinross contract has been executed.

II LEGAL FRAMEWORK

A new Mining Law was enacted in January 2009. The General Regulations to the
Mining Law, the Environmental Mining Regulations and the Regulations for Small-
Scale Mining were issued in November 2009.
The Ministry of Non-Renewable Natural Resources is the authority responsible for
mining planning, and the Mining Regulation and Control Agency is the administrative
entity responsible for supervising mining activities.

1 Jaime P Zaldumbide is a senior partner at Pérez Bustamante & Ponce and Jerónimo Carcelén
is a senior partner of Carcelén & Cia – Abogados.

58
Ecuador

The new law created the state-owned Mining Enterprise, a public entity that
carries out mining activities either by itself or in associations or strategic alliances with
state-owned or private companies.
The Ministry of Non-Renewable Natural Resources is in charge of negotiating the
contracts for the exploitation of minerals.
Provincial or municipal authority does not overlap with the national regulations,
although they do have political influence on exploration and exploitation areas. Therefore,
they must be taken into account within the general business development strategy of the
concessionaires.
In the past, Ecuador has entered into international investment treaties with
different countries whereby it intended to protect the investments of nationals of the
signatory countries. Under such treaties, international arbitration was the selected dispute
resolution mechanism. Pursuant to the principles enshrined in the new Constitution
approved in 2008, however, the Ecuadorean state cannot submit its disputes to a foreign
jurisdiction; therefore, all the treaties providing for international arbitration are being
terminated. The Mining Law only recognises the validity of arbitration proceedings
carried out in Latin America; currently, the jurisdiction stipulated in oil and mining
contracts is Chile under UNCITRAL rules and Ecuadorean law.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
The subsoil is the exclusive property of the Ecuadorean state; it may issue a ‘mining title’
(a formal document equivalent from a legal standpoint to a concession) through the
Ministry of Non-Renewable Natural Resources, which enables its holder to carry out
exploration activities. Exploration and exploitation of minerals are open both to the state
and to private parties.
The initial exploration period may last for up to four years upon the prior
authorisation of the Ministry of Environment through the issuance of an environmental
licence (granted after approval of an environmental impact assessment (‘EIA’) and
management plan). Thereafter, the advanced exploration period may last four additional
years and the economic evaluation period may last for two years.
If the schedules are met, the holder of the mining title has the exclusive right
to pass to the next mining phase. In order to carry out exploitation activities, a service
contract or exploitation contract must be entered into by the state and the concessionaire.
Under service contracts, contractors may only receive compensation or a fee from the
government for the services performed. Although there are no precedents in the mining
area regarding this type of contract, this payment may be received in cash or in kind.
Under exploitation contracts, contractors assume the risk and make their own
investments, and pay royalties and taxes as established in the relevant laws. Those
contracts pertain to all minerals located in the concession area and will establish the legal
framework for development, construction and operation of mining projects.

59
Ecuador

ii Surface and mining rights


Mining rights are granted by the Ministry of Non-Renewable Natural Resources. In
order to file for a mining right the company must be registered with the Ministry. Mining
concessions for mineral exploration and exploitation are granted through public auction
for areas offered by the Ecuadorean state.
Mining rights are independent of the title to the land on which the concession
is located. Easements may be established for access, construction of camps, electric line
routes, etc. The term of such easements will be concurrent with the concession period.
Mining rights are protected by the Constitution in terms of judicial security of
administrative acts granted by public authorities. There is a restriction on activities by
foreign companies in national border areas, for national security reasons.

iii Additional permits and licences


Pursuant to the current laws, mining companies must first obtain an authorisation for
the use of water, which is granted by the National Water Secretariat. Permits are usually
granted for the duration of the mining project. Maintenance of rights is subject to payment
of yearly water use fees. There are no current projects for desalination plants for treatment
or self-supply of water or other water management mechanism introduced.

iv Closure and remediation of mining projects


According to the Environmental Regulations for Mining Operations, prior to the closing
and abandonment of a mining property, the contractor or concessionaire must conduct
and environmental audit, which should contain the environmental liabilities found in
the property and the remediation work to be conducted, including social works.
A performance bond needs to be in place guaranteeing the compliance of
the remediation work, which must be submitted for the approval of the Ministry of
Environment.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


According to the Constitution and the law, EIAs and environmental audits are mandatory
for all projects that may have an impact on the environment.
Also, extractive industry is forbidden within the territories included in the
National Protected Areas System (which includes national parks, nature reserves,
indigenous territories and protected forests).
There are regulations specific to health and safety in the mining industry.

ii Environmental compliance
An environmental assessment is mandatory prior to the execution of any mining activity.
A summary of the permissions process for the approval of EIAs is as follows:
a preparation the terms of reference of the EIA and approval by the competent
authority;

60
Ecuador

b acquisition of an ‘intersection certificate’ from the Ministry of Environment


confirming that the area does not interfere with the National Protected Area
System;
c approval of the EIA, which must include public consultations and presentation
of the EIA, an environmental management plan and a contingency plan for any
communities within the area affected by the project;
d issuance of the environmental licence by the Ministry of Environment once the
EIA is approved by the competent authority or by the Ministry of Environment;
and
e finally, establishment by the concessionaire of a third-party liability insurance
policy to protect third parties from any outcome resulting from the mining
activities that may affect such parties, as well as a ‘performance bond’ that
guarantees compliance with the environmental management plan.

There are no separate permits required for air, water and waste, although there are
independent parameters for each element.
Permits are required prior to the initiation of any mining project, including its
exploration phase. Depending on the project the environmental licence procedure may
take few or several months.
Preparation of the EIA must include a public consultation process in order to hear
all concerns and comments of the community within the area of influence of the project.
The NGOs are also entitled to participate in such consultation process.
Public consultation is a key element prior to approval of the EIA.

iii Third-party rights


A social participation process is mandatory (which is part of the process for obtaining
an environmental licence) before entering into any activity. Non-compliance with this
requirement may lead to suspension of mining activities, or even cancellation of the
exploitation contract.
Social participation processes are regulated by the Citizen Participation Law and
Executive Decree 1040, which regulates Article 28 of the Environmental Law.

iv Additional considerations
A very important consideration is the ‘social licence’, which is implicitly needed to
conduct mining operations in rural areas. Although public consultation is mandatory,
the community’s comments and observations are not binding, but in practical terms, it
will be very difficult to conduct mining activities in a given territory if there is major
opposition from its inhabitants.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


There are no limitations for the import of equipment and machinery of the mining
industry neither for the processing of extracted minerals. Regarding the use of foreign

61
Ecuador

labour, there is a limit of 20 per cent of foreign employees in a company – 80 per cent
must be Ecuadoreans.

ii Sale, import and export of extracted or processed minerals


There are no limitations on the sale, import and export of extracted or processed minerals
under the exploitation contracts.

iii Foreign investment


Foreign investment in the mining sector is permitted, and no previous authorisation is
required. Foreign nationals have the same rights and obligations as Ecuadorean nationals.
Ecuador’s legal currency is the US dollar, and there is a free exchange market in Ecuador.
Remittances abroad are permitted and are subject to 5 per cent tax on the amount
remitted. There is a free export market and companies are entitled to receive and retain
the foreign currency obtained from export sales or for directly servicing the external debt.

VI CHARGES

Mining concessionaires are required to pay the ‘conservation licence’ for each mining
hectare. For the initial exploration period, the conservation licence is equivalent to 2.5
per cent of one basic unified salary (around US$370). For the advanced exploration and
economic evaluation periods, the conservation licence is equivalent to 5 per cent of the
basic unified salary. For the exploitation period, the conservation patent is 10 per cent
thereof. As concerns royalties, the law provides that they must be at least 5 per cent of sales.
15 per cent of company profits must be distributed as follows: 3 per cent among
the workers and the remaining 12 per cent to the state, which will invest it through
sectoral entities for social projects in the area where the mining project is located.
Finally, a legal provision currently in force establishes a tax on windfall profits
obtained by companies that have entered into contracts with the state for exploitation
of non-renewable natural resources. For the purposes of such tax, windfall profits are
deemed to be those earned by the contracting companies from sales of minerals at higher
prices than agreed upon or provided for in the respective contracts. The windfall tax rate
is 70 per cent.

VII OUTLOOK AND TRENDS

At the time of writing, Kinross was still in the negotiation contract for its mega-gold
mine project with government authorities; negotiations have been ongoing for almost
two years, but a final deal is expected soon. A major problem that confronts the parties is
the application of the windfall profit tax described above. Setting the base price of gold
for the calculation of potential future taxes seems to be the main sticking point of the
deal. Because of this, the government has announced some changes in the regulation to
calculate and apply to the windfall tax.

62
Chapter 7

FINLAND
Tarja Pirinen 1

I OVERVIEW

In Finland, the mining industry has recently been experiencing a new boom with new
projects being developed, new mines being opened and planned, and existing mines
being expanded. Previously, mines were operated by state-owned companies that more or
less closed down their operations in the 1980s. Currently, mines are operated by private
companies and mining entrepreneurs. In most cases, such private companies are Finnish
subsidiaries of foreign mining companies.
In 2011 there were a total of 52 mines or excavations in Finland, which produced
33,262,625 tonnes of ore, the total amount of extracted material being approximately 72
million tonnes.2 In 2010, mining companies reported that they employed about 3,000
people, including their own personnel and subcontractors. In addition, construction of
the mines provides more employment. It has been estimated that mining will employ
as many as 5,200 people in the next decade. Extraction is estimated to increase to
approximately 155 million tonnes and ore mining to a maximum of 68 million tonnes
by 2016.3
Finland has significant potential for new mineral discoveries since geologically it
is located on the Fennoscandian shield, which can be compared with similar shield areas
in Canada and Australia. There are areas that have not been explored at all or only on
a small scale. Finnish society is very stable and the infrastructure that can be utilised in
exploration is very good. There are also good-quality geological databases available and

1 Tarja Pirinen is a partner at Hammarström Puhakka Partners, Attorneys Ltd.


2 Mining Industry Statistics 2011, the Finnish Safety and Chemicals Agency (‘Tukes’).
3 ‘Competitive Edge of the Finnish Retrieval Cluster’, The Research Institute of the Finnish
Economy (‘ETLA’), B252, Helsinki 2011.

63
Finland

the Geological Survey of Finland provides high-class geological and laboratory services
to exploration and mining companies.
The Finnish government’s mining policy has as its core message that mining has
a significant role in Finland. It has also made around €30 million available in the central
government’s budget for the development of the mining industry. The government also
participates in the construction of infrastructure for the mining projects and supports
technological development under the auspices of the Green Mining programme.
The new Mining Act that came into force on 1 July 2011 has brought new
requirements and procedures, the practical implications of which are yet to be seen.
The new Mining Act and its changes, together with the boom in the mining industry,
have caused the processing of exploration and mining permit applications to take longer
than previously. The environmental authorities are also being loaded with applications
and processes relating to exploration and mining projects. Since mining activities were
virtually closed down for many years in Finland, there has been little training for mining
experts and the current working personnel is ageing, so new training programmes have
had to be developed and commenced in order to increase sufficiency of trained personnel
for mines. Some companies have also trained their personnel themselves. In 2015 the
stringent sulphur limits that will be introduced with regard to Baltic Sea shipping will
increase the export costs of key client industries – metal processing and the chemical
industry – which may threaten their competitiveness in Finland.

II LEGAL FRAMEWORK

The legal system in Finland is civil law based and mining operations are regulated at
a national and EU law level. The main regulations covering exploration and mining
operations are the Mining Act,4 the Government Decree on Mining,5 the Decree of the
Ministry of Employment and the Economy on Hoisting Plants6 and the Government
Decree on Mining Safety.7 Also environmental laws such as the Environmental Protection
Act,8 the Water Act9 and the Waste Act10 are highly relevant to mining operations.
Finland has ratified the ILO 176 Safety and Health in Mines Convention of 1995 and
the Convention on Biological Diversity of 1992. Finland has not, however, ratified the
ILO 169 Indigenous and Tribal Peoples Convention of 1989.
The new Mining Act includes transitional provisions based on which matters
pending with the Ministry of Employment and the Economy prior to 1 July 2011 subject
to the old Mining Act must be handled in compliance with the requirements of the old
Mining Act. Also, the claims and mining permits that were in force prior to the new

4 10.6.2011/621.
5 28.6.2012/391.
6 21.12.2011/1455,
7 29.12.2011/1571.
8 4.2.2000/86.
9 27.5.2011/587.
10 17.6.2011/646.

64
Finland

Mining Act are subject to the old Mining Act, but there are exceptions to this pursuant to
the transitional provisions of the new Mining Act, which require that certain terms of the
new Mining Act apply to old permits that has an effect, for example, on the collaterals,
fees payable to landowners and reporting obligations. Therefore, mining companies are
currently acting under the obligations of both the old and the new Mining Act.
The most important regulatory agency for the mining industry is Tukes, which
acts as the mining authority under the Mining Act. Tukes grants permits and other
licences under the Mining Act and supervises and enforces compliance with the Mining
Act; however, mining permit matters relating to production of uranium or thorium under
the Mining Act and Nuclear Energy Act are handled and granted by the government.
The Ministry of Employment and the Economy is responsible for generally directing,
surveying and developing operations within the scope of the Mining Act compared to
the operative tasks carried out by Tukes.
An independent regulatory framework called the Fennoscandian Review Board
Standard (‘the FRB Standard’) has been adopted for use by the Finnish Association of
Extractive Resources Industry (‘FinnMin’) and SweMin in Sweden and the Norwegian
Mining and Quarrying Industries (‘Norsk Bergindustri’) in Norway. The FRB Standard
is based on ihe International Template for Public Reporting of Exploration Results,
Mineral Resources and Mineral Reserves, July 2006 prepared by the Committee for
Mineral Reserves International Reporting Standards (‘CRIRSCO’) in order to harmonise
international practice. The FRB Standard is subject to national laws. In addition to the
FRB Standard other reporting standards such as CIM Standards and the JORC Code are
used by mining companies.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
The privilege to exploit the deposit belongs to the finder of the deposit but the state
controls and supervises the mining operations through the granting and supervision of
the exploration permits, gold panning permits and mining permits.
An ore prospecting permit, mining permit and gold panning permit can be
transferred to another party that fulfils the requirements for the permit holder under the
Mining Act (see below). If the transfer of a mining permit relating to the production of
uranium or thorium is at issue the transferee also needs to have a permit for the mining
activities in accordance with the Nuclear Energy Act. A permit holder must apply for the
transfer of the permit from Tukes, which must approve the transfer in the event that all
the requirements set out for a permit holder are fulfilled, the necessary documentation
and confirmations are provided to Tukes, and there is no reason to prohibit the granting
of the permit in the first place.

ii Surface and mining rights


Prospecting for mining minerals can take place as prospecting work that partly corresponds
to the Finnish everyman’s right (meaning access to the land is free of charge and does not
require the landowner’s permission). An ore prospecting permit is needed, however, if the
ore prospecting cannot take place as mere prospecting work (the conducting of geological

65
Finland

measurements and making of observations and the taking of minor samples provided
that this does not cause any damage or more than minor inconvenience or disturbance)
and the landowner has not given permission for it. A prospecting permit is also required
if the activity poses any risk to people’s health, general safety or other industrial and
commercial activity, or causes any deterioration of the landscape or environment. Ore
prospecting to locate uranium or thorium always requires an ore prospecting permit. The
permit allows the holder to:
a explore the permitted area as well as the structures and composition of geological
formations; and
b carry out other exploratory operations in order to prepare for mining activities
and in order to locate deposits and investigate their quality, extent and degree of
possible exploitation.

It does not authorise exploitation of the deposit nor does it limit the property owner’s
right to use the area or to dispose of it. An ore prospecting permit allows its holder
to obtain a mining permit, which in turn provides the right to exploit the deposit.
Prospecting of gold deposits through panning in an area owned by the Finnish state
requires a permit for gold panning. From July 2020, gold panning will be permitted in
the Lemmenjoki National Park based on traditional methods only.
The mining operator can obtain title or a right of use to the area needed for
mining activity by contractual means. Alternatively, a party applying for a mining permit
in order to exploit the deposit in question can apply to the government for a redemption
permit for a mining area. This permit may be granted only if the mining project is
based on public need, the level of which is assessed on the basis of the impact of the
mining project on the local and regional economy and employment, and the social
need for supply of the raw material. The property owners nevertheless have a right to
claim redemption of real estate if the mining area or the area auxiliary to the mine cause
significant harm to its use.
A limited right of use or other rights to an area in the ownership of another
party (as an auxiliary area to a mine) can also be granted in the mining permit, unless
otherwise provided by law, and if the auxiliary area meets the requirements set down for
it under the Mining Act. Such a right can be granted only insofar as the placement of
functions planned for the area cannot be otherwise arranged in a satisfactory manner,
and at moderate cost. Auxiliary areas granted under the Mining Act cannot be used for
storage of tailing or gangue; rights to such areas are granted generally for roads, power or
water lines or transportation equipment.
Ore prospecting permits, gold panning permits and mining permits are granted
by Tukes, except for permits related to the production of uranium or thorium, which
are granted by the government. Permits can be applied for by natural persons of age that
reside within the European Economic Area (‘EEA’), who are not bankrupt and whose
competency has not been restricted, or a legal person that is either Finnish or EEA-
incorporated with a registered a branch office in Finland. Government institutions may
also apply for an ore prospecting permit.
An application and the respective exploration or mining project must fulfil the
requirements set out in the Mining Act. The application is handled by the permit authority,
which will request statements on the application from the municipalities, the Centre of

66
Finland

Economic Development, Transport and the Environment and the responsible authorities
or institutions within the area affected by the activities that are the object of the permit.
The parties involved are reserved an opportunity to lodge complaints concerning the
permit, and parties other than those involved will also be afforded the opportunity to
express their opinions. Any effects caused by the proposed activity on the rights of the Sami
as an indigenous people, to the Skolts and to reindeer herding must also be established
and evaluated in cooperation with the respective representative entities and the applicant.
The permit authority must publicise the application on its noticeboard and, when the
matter is of major significance, in at least one newspaper in general circulation in the
affected area. In addition, the parties and the municipalities involved must be informed
separately. A decision concerning an ore prospecting permit, mining permit, gold panning
permit or redemption permit for a mining area must be issued after public notice. The
time for the processing of permit applications has in recent years become longer and it is
not yet possible to say what the approximate length will be under the new process under
the Mining Act. Currently, there are many applications waiting to be processed at Tukes
and the handling times have recently been two years or longer. Activities based on a permit
cannot be commenced before the permit is legally valid and any required collateral has
been deposited.
Ore prospecting permits are valid for a fixed term but they may be extended
for three years at a time; in total, the permit may remain valid for a maximum of 15
years. Tukes can also decide that an ore prospecting or gold panning permit should
expire if operations have been continuously interrupted, for a reason attributable to the
permit holder, for at least one year. Mining permits remain valid until further notice
and are reviewed at minimum intervals of 10 years; permits may also be issued for a
fixed term of up to 10 years for valid reason. Gold panning permits may be granted for a
maximum term of four years. The validity of a gold panning permit may be extended for
a maximum of three years at a time. A redemption permit for a mining area is valid until
further notice or for a fixed period corresponding to the validity of the mining permit.
Tukes supervises the granting of mining rights, their validity and the permit
holders’ compliance with the requirements of the Mining Act. Its decisions can be
appealed to administrative courts and further to the Supreme Court. The decisions of
the government can be appealed to the Supreme Administrative Court. Compensation
payable to the landowner is defined in the proceedings establishing a mining area.
Decisions made in those proceedings can be appealed to the land court whose decisions
are appealed to the Supreme Court. Damage compensation claims, injunctions and other
temporary procedural remedies, as well as claims under the Penal Code, are handled by
the district courts.

iii Additional permits and licences


Other permits required for the construction of a mine are, for example, environmental
permits and building permits. A permit according to the Water Act may also be needed
if groundwater is affected by mining operations. Depending on the planning situation
at the location of the project a new land use plan or change of the existing land use plan
may also be necessary. Acquiring materials for the construction of a mine may require
a land extraction permit and separate arrangements such as building easements, and

67
Finland

servitudes may also be required for example for electricity or water lines. Use and storage
of explosives and certain other materials used in mining are also separately permitted.

iv Closure and remediation of mining projects


The mining operator is obliged to take care of restoring, cleaning up and landscaping the
mining district and the auxiliary area within two years of the end of mining operations;
the safety of the area must also be taken care of. The mining operator must submit
notification in writing to the mining authority immediately after the above tasks have
been finalised, at the latest two years from the end of operations. Tukes will arrange a
final inspection unless this is deemed unnecessary, and compiles an inspection report
thereof. The parties involved will be heard and a statement sought from the respective
municipality and the Centre of Economic Development, Transport and the Environment
and from other responsible authorities or institutions regarding the mining operator’s
accounts and the inspection report compiled on the final inspection. Tukes will make a
decision on the termination of the mining activity once the obligations of the mining
operator relating to the closure have been substantially fulfilled in a manner that protects
public and private interests. Once a decision to terminate mining activity has become
legally valid, the mining operator’s right of use and right of possession to the mining
area and the right of use and other rights to the auxiliary area of the mine based on the
Mining Act are terminated. If the areas have been used based on a redemption permit for
a mining area, the areas in question will be returned to the possession of the landowner,
free of charge.
When an ore prospecting or gold panning permit has expired or been cancelled
the permit holder must immediately take care of restoration, cleaning up, rehabilitation
and removal of temporary constructions and equipment, and restore the area to its
natural status as far as possible. The ore prospecting permit holder must submit a written
notification to Tukes, the respective landowners and other holders of rights once the
required tasks have been completed. A gold panner must make the same notification to
Tukes and the authority or institution responsible for management of the area.
The holder of a prospecting permit, mining permit or gold panning permit is
obliged to compensate in full for any damage and harm caused. The mining permit
holder must deposit financial collateral for the purpose of termination and rehabilitation
measures of mining operations; this collateral must be sufficient considering the nature
and extent of the mining activity, the permit provisions issued for the activity and
collateral required under other legislation. The ore prospecting permit holder must
deposit collateral for the purpose of offsetting potential damage and inconvenience,
as well as performing rehabilitation measures, unless this is deemed unnecessary. Gold
panners must deposit collateral for the purpose of offsetting potential damage and
inconvenience and performing after-care measures.
The permit authority will determine the type and quantity of collateral for
each permit in question, which must be deposited with Tukes. The costs necessary for
performance of the obligations laid down in the Mining Act or the permit in question,
can be paid from the collateral, and the mining authority will release the collateral when
the permit holder has fulfilled its obligations. Partial release of collateral is also possible.
Assignment of a permit will not release the collateral.

68
Finland

The closure and remediation of a mining operation are also dealt with in the
environmental permit process. The environmental permit includes terms regarding the
closure of a mine: for example, for the restoration of the environment and the prevention
of emissions. Final closure and restorative activities will be confirmed in a closure plan,
which is to be provided to the environmental permit authority for approval prior to the
end of operations. The environmental permit also includes the terms for the financial
assurance of the fulfilment of obligations relating to the closure of the mine.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


Development initiatives that relate to and affect mining projects include Finland’s
Minerals Strategy (7 October 2010) and the Green Mining Programme 2011–2016 by
Tekes (Finnish Funding Agency for Technology and Innovation), which aims to make
Finland a pioneering country in terms of eco-efficiency in the mineral industry by 2020.
The programme started in 2011 and has two main themes: new mineral reserves and
intelligent minimum-impact mines.
Mine safety matters are mainly regulated in the Mining Act and the Government
Decree on Mining Safety. Mining activity operators must take special care in relation
to the structural and technical safety of mines, as well as preventing or limiting the
damage caused by accidents. Mining safety is based on requirements set out for the
mining activity operator’s management system and supervision. The construction of a
mine and its productive operations are subject to a mining safety permit by Tukes. The
decree includes more detailed regulations on mining safety arrangements in practice, for
example, planning and building the mines and personnel training requirements. The
Decree of the Ministry of Employment and the Economy on Hoisting Plants sets out the
safety requirements for hoisting equipment.
The Safety at Work Act11 imposes general obligations on employers in order to
improve the working environment and working conditions, ensure and maintain the
working capacity of employees, as well as preventing occupational accidents and diseases,
and eliminating other hazards to the health of employees from work and the working
environment. There are also other statutes that are applicable to mining operations,
for example, the Chemicals Act and statutes concerning safe working conditions and
handling of explosives.

ii Environmental compliance
The nature and scope of the environmental review processes depends on the size and nature
of the project and the environmental impact thereof. The granting of an environmental
permit is covered by the Environmental Protection Act. A mining project generally
requires an environmental permit, which is granted by the regional state administrative
agency. Necessary water permits are generally applied for and handled simultaneously
with the environmental permit. Supervision of compliance with environmental

11 23.8.2002/738.

69
Finland

conditions imposed is carried out by the Centre for Economic Development, Transport
and the Environment.
In order to assess the environmental impact of the planned operation and to hear
the authorities and affected parties prior to applying for a mining permit, the applicant
will likely need to carry out an environmental impact assessment (‘EIA’) in respect of the
area of the mining operation, which is handled by the Centre for Economic Development,
Transport and the Environment. This process usually takes one to two years.
The environmental permit application is reviewed by the permitting authorities and
the parties involved (e.g., landowners, reindeer owners and the respective municipalities)
and other relevant authorities will also be heard. The applicant will have an opportunity
to address any comments made during the hearing process. Based on the environmental
authorities’ own estimates, obtaining an environmental permit for a new project should
take around 10 months but generally it takes about a year and a half because, in most
cases, further information is requested from the applicant. The length of the process is
also dependent on the size of the project and possible objections.
An environmental permit decision can be appealed to Vaasa Administrative Court
and to the Supreme Administrative Court. In both courts, the average time to reach a
decision is currently a year and a half. The permit can include a provision to start the
activities where a permit is appealed against and lacks legal validity. This right to commence
activities without legal validity of a permit must be applied for by the operator.

iii Third-party rights


In the Sami Homeland and in projects implemented outside the Sami Homeland that
are of considerable significance as regards the rights of the Sami as an indigenous people,
the permit authority must – in cooperation with the Sami parliament, the local reindeer
owners’ associations, the authority or institution responsible for management of the area,
and the applicant – establish the possible effects of the activity in accordance with the ore
prospecting permit, mining permit, or gold panning permit on the rights of the Sami, and
consider measures required for decreasing and preventing such damage. In the Skolt area,
the authority will request a statement from a Skolt village meeting concerning assessment
of the effects of activity under the permit on the sources of livelihood and living conditions
of the Skolt people. In special reindeer herding areas, the authority will, in cooperation
with the local reindeer owners’ associations, assess the potential damage to reindeer herding
through activity under the permit.

iv Additional considerations
If the mining operation is located close to the border of Finland and Sweden the project
and its environmental effects will also be evaluated from the Swedish point of view, and
the Finnish-Swedish Frontier Rivers Commission may need to be heard. In addition to
the limitations set out in the Mining Act on the areas as to where mining or exploration
activities are not allowed (such as within 150 metres of a building intended for residential
or work use, or comparable space, and any adjoining private yard) mining operations
may be limited or at least affected by nature protection areas or Natura 2000 European
protection network areas.

70
Finland

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


There are no specific limitations for the importation of mining equipment and machinery
into Finland but import is subject to general rules.
There are no specific limitations for the processing of minerals except for mining
and ore-processing operations, which are focused on the production of uranium or
thorium. In addition to the mining permit, such operations require a permit under the
Nuclear Energy Act from the government, which cannot be granted if the municipality
in which the mine or processing plant would be located objects to the permit.
Generally, foreign employees need a residence permit for an employed person if
they wish to work in Finland. A residence permit can be granted based on temporary or
permanent employment. Citizens of EU or EEA countries can freely work in Finland
for a maximum of three months, after which they need to register their right to reside
in Finland (there is, however, no need for a residence permit); they may also need a visa.
Generally, when considering the granting of a residence permit, the needs of the labour
market are taken into account as is the aim of ensuring that those already part of the
labour market are not prevented from finding jobs.

ii Sale, import and export of extracted or processed minerals


There are specific regulations regarding, for example, precious metals and diamonds,
which are to be followed in order to bring them into the market. The export of uranium
and thorium is regulated in more detail. The EU has concluded bilateral steel agreements
with Russia and Kazakhstan, the quotas of which may affect the import of steel.

iii Foreign investment


There are no foreign exchange controls or other restrictions on the importation of funds
for exploration, on extracting or using the proceeds from the business, and no restrictions
or permit requirements on foreign investments in domestic mining companies or mining
projects.

VI CHARGES

i Royalties
The Finnish government does not impose any royalties on the mining sector.

ii Taxes
Corporations carrying on mining operations in Finland are subject to the general income
taxation rules applicable to all corporations. There are currently no additional taxes for
mining in particular. The goods and services sold in Finland are subject to the general
VAT regulations unless they fall under a specific exemption. A transfer of assets tax is
payable in connection with the purchase of real property.

71
Finland

iii Duties
There are no mining specific duties in Finland.

iv Other fees
Permit holders must pay annual compensation to landowners in the prospecting area,
mining area and gold panning area. No annual compensation is payable to the Finnish
government.
The annual amount of the ore prospecting fee per property is €20 per hectare per
year for the first four years of validity of the ore prospecting permit. After four years the
fee will increase gradually. After the eleventh year, the fee is fixed at €50. A gold panner
must pay an annual gold panning fee to the authority or institution responsible for
management of the area, in the amount of €50 per hectare.
A mining permit holder must pay an annual excavation fee to landowners whose
properties are within the mining area. The annual amount of the excavation fee per
property is €50 per hectare. If the permit authority has postponed the expiry of the
mining permit prior to mining having started, or if it has been suspended, the excavation
fee is €100 per hectare until mining activities are commenced or resumed. The obligation
to pay an excavation fee commences when the mining permit or the respective decision
for commencing or continuing activities becomes legally valid.
In addition, an excavation fee must be paid of an amount of 0.15 per cent of the
calculated value of mining minerals included in the metal ores excavated and exploited
during the course of the year (calculated based on the respective year’s average price for
the metal and other products exploited from the ore), and taking into consideration the
grounds influencing the financial value of the mining mineral a reasonable compensation
for excavated and exploited mined mineral other than metallic minerals in accordance
with either an agreement between the property owner and the holder of a mining permit
or confirmation by Tukes.
Taking into account the factors influencing the financial value of the by-product,
the mining permit holder must also pay a moderate (if not agreed with the landowner, no
more than 10 per cent) annual property-specific compensation (by-product fee) to each
landowner within the mining area for the benefit gained from by-products of mining
activities that are used for purposes other than mining activity.

VII OUTLOOK AND TRENDS

The Finnish mining industry and its volumes as well as the mining cluster in its entirety
are expected to continue to grow. The new Mining Act and the related decrees have now
all come into force. The authority’s and court practices following the new rules are yet
to be seen. The mining industry is also going through a transition period with regard to
the regulations, as the mining companies currently follow the regulations of both the old
and the new Mining Act.

72
Chapter 8

GHANA
Innocent Akwayena and Enyonam Dedey-Oke 1

I OVERVIEW

Since the 1980s a key objective of Ghana’s mineral sector policy has been to promote
private investment into the mining sector through a liberalised economic system, while
at the same time strengthening the regulatory and monitoring role of the state. In line
with this policy objective, the government has progressively reduced, through outright
privatisation, its shareholding in mining ventures, thereby leaving the management and
operations of these mines to private enterprises. Further, the Mining Law2 currently
permits exemptions from payment of customs import duties and excise taxes on mining
equipment, plant and machinery that are imported exclusively for mining operations.3
The holder of a mining lease is also allowed to capitalise expenditure on reconnaissance
and prospecting approved by the Minister of Lands and Natural Resources (‘the Minister’)
on the advice of the Minerals Commission (‘the Commission’) when the holder starts
development of a commercial find.4 The holder of a mineral right may be granted the
following additional incentives:
a exemption of staff from the payment of income tax on furnished accommodation
at the mine site;
b an immigration quota in respect of the approved number of expatriate personnel;
and
c a personal remittance quota for expatriate personnel free from tax.5

1 Innocent Akwayena is managing consultant and Enyonam Dedey-Oke is a consultant at REM


Law Consultancy.
2 Minerals and Mining Act 2006, Act 703 as amended by the Minerals and Mining Amendment
Act 2010, Act 794.
3 Ibid. Section 29.
4 Ibid. Section 28.
5 Ibid. Section 29.

73
Ghana

In line with the policy of encouraging foreign investment in Ghana, the Mining Law
provides an investment dispute settlement procedure for disputes that may arise between
citizens and the Republic, or between foreigners and the Republic. The dispute settlement
provision requires parties to resort to mutual negotiation before referring a dispute to
arbitration.6 Provision is made in the Mining Law and various investment contracts for
both local and international arbitration of disputes between the government and the
holder of a mineral right who is not a citizen of Ghana.

II LEGAL FRAMEWORK

The legislative, regulatory and contractual framework for mining in Ghana is contained in
the 1992 Constitution7 and more specifically in the Mining Law.8 These legal provisions
establish a system of mineral ownership which vests the state with legal ownership of all
minerals occurring in their natural state within Ghana’s land and sea territory, regardless
of who owns the land upon which the minerals are situated. State ownership of minerals
ensures that the state, acting through political officeholders and other public officials,
remains the key participant in the mining industry. The government of Ghana, through
the Minister of Lands and Natural Resources in conjunction with the key regulatory
body, the Minerals Commission, acts on behalf of the government in dealings related to
minerals. Minerals are defined to include ‘any substance in solid or liquid form which
occurs naturally in or on the earth or under the sea bed formed by or subject to geological
process, including building and industrial minerals’;9 and mineral rights include the right
to reconnoitre for minerals, prospect for minerals, and mine or exploit minerals. Apart
from specifying the types of mineral rights that may be granted by the Minister, broad
provisions are made for the manner in which the Minister is required to exercise power
in relation to the negotiation, granting, revocation, suspension and renewal of mineral
rights, and the terms and conditions of each grant.10

6 Ibid. Section 27.


7 Article 257(6) of the 1992 Constitution of Ghana stipulates that every mineral in Ghana in its
natural state in, under or upon any land in Ghana, rivers and the exclusive economic zone, and
any area covered by the territorial waters and continental shelf, is the property of the Republic
of Ghana.
8 Act 703, Section 1 contains a similar provision to that of the Constitution, while Section 9 of
the same Law goes even further to provide that, regardless of any right or title that any person
may have to any land upon which minerals are situated, no person shall conduct reconnaissance
of, prospect for or mine any mineral in Ghana unless he or she has been granted a mineral right
by the Minister of Lands and Natural Resources in the form of a licence or lease, as the case may
be.
9 Act 703, Section 111(1).
10 Ibid., Section 5.

74
Ghana

The regime of mineral ownership is clearly distinct from the legal regime for land
tenure in Ghana. In terms of land ownership, there are four broad categories of land and
landowners in Ghana. These are:11
a state or public land that is owned by and vested in the state;
b ‘stool’ or ‘skin’ land that is owned by various traditional communities bound by
kingship ties and held in trust for the communities by the communal leaders;
c family land that is owned collectively by various traditional family groupings and
held in trust for them by the head of the family; and
d private or individual land that is vested in individuals or private entities.

In reality, much of the land in which minerals are situated in Ghana is not public
land. However, since the state owns and grants mineral rights, the grant of such rights
necessarily raises the issue of how to give legal access to the land upon which the mineral
is situated.
The Mining Law deals with this issue by providing that a mineral right granted
by the Minister is sufficient authority for the holder over the land and entitles the holder
to enter the land in respect of which the right is granted.12 This provision gives to the
grantee of a mineral right automatic legal access and a right of entry onto the land,
without the necessity of the grantee obtaining the express permission of the landowner
even when it is not public land that is involved.
Furthermore, the Mining Law anticipates a situation where the landowner
may not acquiesce in the grant of a mineral right in respect of his or her land and
the consequential automatic legal access to that land, and therefore provides that where
any land is required to secure the development of utilisation of a mineral resource,
the government may acquire the land, or authorise its occupation and use under any
applicable enactment for the time being in force.13

i The Minerals Commission


The Minerals Commission is the key mining sector regulatory institution. The
Commission, under the direction of the Minister, is responsible for the regulation,
management and development of mineral resources, and the coordination of policies.
In furtherance of this mandate, the Mining Law specifically requires that the exercise of
the powers of the Minister in relation to any mineral right be exercised on the advice of
the Commission.14
The Commission receives and accesses all applications for mineral rights, and
makes appropriate recommendations to the Minister. It also monitors the implementation
of mineral rights agreements signed between the Minister and grantees of licences.

11 Under the Land Title Registration Law 1986 (PNDC Law 152), Section 19.
12 Act 703, Section 13(9).
13 Ibid., Section 2.
14 Ibid., Section 100.

75
Ghana

The Commission is required to maintain a public register of all mineral rights,


as well as applications, grants, variations and dealings in and cancellation of mineral
rights.15 The register is open to public inspection for a fee.
The Commission also acts in collaboration with other public departments or
regulatory institutions whose functions have an impact on the mining industry, and
from whom other regulatory permits, approvals or licences may be required for mineral
operations. One of these institutions is the Environmental Protection Agency (‘the EPA’).

ii The EPA
The EPA is the regulatory body charged with the protection and management of the
environment in Ghana.16 It is tasked with enforcing environmental policy and legislation,
and prescribing standards and guidelines for the protection of the environment. The
EPA is also responsible for issuing environmental permits and pollution abatement
notices.17 All companies involved in mineral operations in Ghana are required to apply
for and be issued an environmental permit before they begin mineral operations.18 The
Environmental Assessment Regulations make it mandatory for companies engaged in
the mining industry to conduct an environmental impact assessment (‘EIA’) prior to the
issuance of an environmental permit.19
The Regulations also provide a comprehensive list of issues to be addressed within
an EIA and outline the steps to be followed.

iii Mineral reporting requirements


Holders of licences in relation to mineral operations are required under the Mining Law
to furnish reports to the appropriate public authorities.20 The reporting requirements
vary depending on the type of licence a holder has. The holder of a reconnaissance
licence21 is required to keep complete and accurate records of all activities related to its
operations. These include details of the minerals discovered in the area and results of
obtained geological analyses. The holder must provide details of all records kept in its
quarterly reports and must give a general description of the work done by the company
in the preceding quarter. The report should contain a description accompanied by a
sketch plan of the areas where gold and any other minerals were found, particulars of the
type of minerals found, and the number and weight of samples taken, if any. An annual
report is required to be submitted not later than 60 days after the end of each year in
such form as may be prescribed.

15 Ibid., Section 103.


16 Environmental Protection Agency Act 1994, Act 490, Section 2.
17 Ibid.
18 Environmental Impact Assessment Regulations 1999, LI 1652, as amended by LI 1703.
19 An EIA is required for mining and processing of minerals in areas where the mining lease covers
a total area in excess of 10 hectares.
20 These are the Minister, the Head of the Inspectorate Division of the Minerals Commission, the
Chief Executive of the Minerals Commission and the Director of Ghana Geological Survey.
21 Act 703, Sections 31 and 32.

76
Ghana

The holder of a prospecting licence22 is required to provide quarterly, half yearly


and annual reports. The quarterly and half year reports to be submitted must include
information relating to boreholes drilled and strata penetrated (with detailed logs of the
strata). In addition to the above, the half yearly report must also contain a summary of
the results of prospecting operations undertaken within the licence area. The annual
report is to be submitted at the end of the financial year to which the report relates, and
must contain a summary of the results of prospecting operations undertaken and, where
applicable, a description of the proposed operations for the following year.23 The holder
of a mining lease24 is required to submit monthly, half year and annual reports to the
Commission. The monthly report should be detailed and include all records required
to be kept by the company.25 The half yearly report is a summary of the results of the
company’s operations in the lease area as well as records required to be kept under the
law.26 The annual report is a summary of the results of the company’s operations in the
lease area during the financial year and should describe the proposed operations for the
following year, and indicate an estimate of production and revenue to be obtained from
the operations. The licensee is also required to submit a copy of its annual financial
reports, including a balance sheet, profit and loss account and all notes pertaining to the
records duly certified by a qualified accountant who is a member of the Ghana Institute
of Chartered Accountants.

iv Regulation at national level


State regulation of mining companies
Government regulation of mining companies is achieved through the requirement for
ministerial approval of a change in the controller of a mining company; the government’s
right to acquire a special share (‘golden share’) in a company;27 and the government’s
equity28 participation and right of pre-emption of minerals produced in Ghana.29 Since
1994, the Mining Law has been amended to give the government increased regulatory
control over any company that holds a mining lease, or whose subsidiary holds such a
lease or licence under the Mining Law. Any person who intends to become a ‘controller’
of a mining company30 must inform the Minister in writing of his or her intention to

22 Ibid., Sections 34 and 37.


23 Minerals and Mining (General) Regulations 2012, Regulation 16.
24 Ibid. Regulations 39 and 46.
25 Ibid. Regulation 23.
26 Ibid. Records required to be kept are the same as those contained in the monthly report in
Regulation 23(1).
27 Act 703, Section 60.
28 Ibid. Section 43.
29 Ibid. Section 7.
30 ‘Controller’ means any person who, either alone or with any associate or associates, is entitled
to exercise or control the exercise of more than 20 per cent of the voting power at any general
meeting of the mining company or of another company of which it is subsidiary.

77
Ghana

become a controller of the company.31 It is an offence for anyone to become a controller


without the consent of the Minister.
The government, acting through the Minister, is given a right to acquire at any
time a golden share in mining companies for no consideration.32 Such a golden share
may be agreed upon with the company, and is usually a preference share. It may have
attached to it such other rights as may be agreed upon with the company or, in the
absence of such agreement, the rights specifically provided for in the Law.33
The government also has the right to acquire a 10 per cent mandatory free carried
equity interest in mineral operations involving the right to mine or exploit minerals,34 and
has the option of acquiring a further interest as may be mutually agreed upon between
the government and the licensee. Further, the government has a right to pre-empt (i.e.,
purchase or take in-kind) all minerals won or obtained in Ghana. The pre-emptive right
extends to products derived from the refining or treatment of such minerals.
The price payable for minerals or products taken in the exercise of the right of
pre-emption is to be determined by agreement between the parties or, in the absence of a
written agreement, by the open market price of the mineral or product in question. If there
is no written agreement or open market price, the price payable would be determined
by arbitration. Significantly, since the introduction of the policy of liberalisation of the
mining sector in the mid-1980s, the government has never exercised its right to acquire
a golden share in a mining company or to pre-empt any minerals won in Ghana.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
All minerals in Ghana are vested in the Republic and held in trust for the people of
Ghana.35 The government, acting through the Minister, alone has title to underground
minerals and can grant a valid interest in or title to those minerals.36 Title to the minerals
remains vested in the Republic at all times; however, the interest granted or created
may be transferred37 or mortgaged subject to the prior approval by the Minister on the
recommendation of the Minerals Commission.

ii Surface and mining rights


To qualify for the grant of a mineral right an applicant must be a Ghanaian registered
body corporate established in Ghana under a law in force.38 Foreign registered companies
are therefore not allowed to hold licences within the mining industry without being

31 Act 703, Section 52.


32 Ibid. Section 60.
33 Ibid. Section 60.
34 Ibid. Section 43(1).
35 Constitution, Article 257(1).
36 Act 703, Section 5.
37 Ibid. Section 14.
38 Ibid. Section 10.

78
Ghana

incorporated locally. However, the Minister is empowered to make exemptions from


this qualification upon the advice of the Minerals Commission.39 Prior to making an
application, the prospective applicant must conduct an official search on the concession
map or Mineral Title Register at the Minerals Commission to ascertain whether the
targeted area is unencumbered. Standard application forms would then be obtained from
the Minerals Commission, duly completed and submitted for review.
An applicant for a mineral right is required to disclose technical and financial
information to satisfy the Minerals Commission of its capability to undertake the mineral
project it wants to acquire.40 The standard application form is therefore designed to
disclose background information about the applicant such as address and registered office,
principals (if any), the name and address of its bankers, and its previous record in mining.
Once received, the application is evaluated based on the financial and technical
capability of the applicant. It is required that a notice of the application be given to
the District Assembly for publication and display for a period of 21 days at specified
places in the district and locality where the land to which the application relates is
situated.41 The notice must be accompanied by the sketch plan for the area applied for.
The rationale for the publication of this notice is to ensure that any affected people
are given the opportunity to raise any objections about the application. Based on the
response received, the Minerals Commission technical subcommittee on mineral titles
would consider the application and make its recommendations. If a favourable report
is received, the Minerals Commission will make recommendations to the Minister for
the grant of the appropriate licence. The appropriate licence agreement is then signed
between the Minister and the applicant.
All agreements granting mineral rights are required to be stamped and registered
at the Land Title Registry.42 Additionally, unless specifically exempted by parliament,
contracts involving the grant of rights to exploit minerals must be ratified by parliament.43
Similarly, an assignment, transfer, mortgage or similar dealings in mineral rights also
require the prior approval of the Minister.44
Mining leases are generally granted for a maximum period of 30 years, or such
other term as may be agreed between the parties, subject to renewal.
Although all minerals in Ghana are vested in the government, the land surface is
usually owned by traditional authorities such as stool or skin, family or an individual.
The current legal regime for mining makes no provision for the express permission of the
landowner to be sought in order to gain access to land for purposes of mineral operations.
However, the procedure for accessing applications for mineral rights45 requires that notice
of an application for a mineral right be published in the particular locality to be affected

39 Ibid. Section 5.
40 Ibid. Section 11.
41 Ibid. Section 13.
42 See the Stamp Duty Act 2006, Act 689, as amended by Act 764, 2008.
43 Constitution, Article 268(1).
44 Act 703, Section 14.
45 See Section 2 of the Mineral Regulations of 1962 (LI 231).

79
Ghana

by the grant for a period of 21 days. The publication in the locality is expected to afford
landowners and the local community the opportunity to raise any objections they may
have to the application.
Nonetheless, the Minister is only required to take into consideration any
objections raised in deciding whether to grant the application. In practice, the grant
of compulsory legal access to land for mining purposes often brings the grantees into
conflict with indigenous landowning communities. Such communities view the grants
made by the Minister without their express consent as an intrusion on their legal rights
as the landowners. Consequently, in order to ensure their security of tenure, the grantees
are often compelled to negotiate and enter into some formal or informal arrangements
with the landowner to enable them to gain peaceful entry into the land for purposes of
their mineral operations.
Sometimes, this arrangement takes the form of a land lease that the landowner
purports to grant to the holder of the mineral right. Although it is arguable that such
land leases are legally unnecessary, they have become a practical tool for dealing with the
conflict that exists between grantees of mineral rights and landowners who resist central
government action giving access to their land without their express consent.
Where, as described above, the grantee enters into an agreement with the surface
owners, the term of the lease is negotiable. There is, however, a constitutional restriction
on the maximum term for a foreigner holding title to land in Ghana of 50 years.46 A
Ghanaian, however, can hold title to such lease for a period of 99 years. Both are subject
to renewal.

Protection of mining rights


Mining rights are generally protected in Ghana through the grant of a mineral right in
the form of a licence executed between the Minister and the applicant. The licence is
a contract between the government and the licensee, and usually contains clauses on
the rights and obligations of the licensee and government termination, rights upon
termination and dispute resolution. In the case of a mining lease for the exploitation of
a mineral, an applicant may enter into supplemental agreements with the government,
such as a deed of warranty stability agreement47 or a development agreement.48 These
agreements are generally intended to stabilise and protect large mining projects from
unilateral changes in the legal and fiscal regime pertaining to such investments during
the life of the project.

Restrictions on the acquisition of surface or mining rights by foreign parties


Apart from the constitutional requirement that limits the maximum term of a leasehold
interest granted to a non-Ghanaian citizen to 50 years, there is generally no legal
restriction on the acquisition of surface rights by foreign parties.
Under the Mining Law, mineral rights licences for small-scale mining are limited
to Ghanaian citizens only.

46 Constitution, Article 266.


47 Act 703, Section 48.
48 Ibid. Section 49.

80
Ghana

iii Additional permits and licences


The following regulatory authorisations or permits are also required for the exercise of
various categories of mineral operations.

Annual operating permit for minerals operations


This permit is required to be issued annually by the Chief Inspector of Mines to a holder
of a valid mineral right who has also obtained an environmental permit in respect of its
mining operations.

Permit for the diversion of water for mineral operations


This permit is required to be issued by the Water Resources Commission to a licensee of
a mineral right who needs to divert a river or a stream for its mineral operations.

Permit or licence for the export of minerals


This permit is required to be issued by the Minister to permit the export of minerals
from Ghana.

Permit to enter a forest reserve


A permit is required from the Forestry Commission where a proposed mineral licence
area falls within a forest reserve. As a result of increasing environmental awareness of the
negative impact of mining activity, current government policy has shifted towards a total
prohibition on the issuing of permits to new applicants for mining in forest reserves.

Certificate of Regional Lands Commission


This certificate is required under the Constitution49 to confirm that a proposed development
of stool land is consistent with the development plan drawn up by the relevant district
assembly. This certification is therefore required for any mine development on stool land.

Work permits and resident permits


Work permits50 and resident permits51 are issued by the Director of Immigration based
on an approved immigrant quota allowing a holder of a mineral right to engage a specific
number of foreign personnel to reside for a specified period in Ghana for purposes of
engaging in work or employment related to mining operations.

Central bank authorisation under the Import & Export Act (Act 503)
Bank of Ghana authorisation for the export of unprocessed minerals is also required
under Act 503. This authorisation is achieved by the completion of BOG Form A2,
which must be endorsed by an authorised bank in Ghana.

49 Constitution, Article 267(3).


50 See the Immigration Act 2000 (Act 573), Section 13.
51 Ibid. Section 28.

81
Ghana

iv Closure and remediation of mining projects


During the environmental permit application process, where the EPA determines that
a mining project requires a reclamation plan, the company will be required to post a
performance bond secured partly by a bank guarantee and partly by cash based on an
EPA-approved work plan for the reclamation. In such cases the reclamation and bonding
arrangements are set out in a mine reclamation and security agreement made between
the EPA and the holder of the mineral right.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


The Inspectorate Division of the Minerals Commission is the lead agency responsible for
conducting mine inspections and compliance enforcement in the country. The Division,
inter alia, enforces compliance of occupational health and safety regulations, and inspects
and tests mine equipment and machinery so as to ensure their safety and compliance.

ii Environmental compliance
An environmental permit is required for all mining projects. The law specifically prohibits
any person from starting any mineral operations unless an environmental permit has been
issued. Mining projects fall within the mandatory requirements for an EIA prior to the
issuance of a permit. The Environmental Assessment Regulations52 specify the issues that
need to be addressed within the EIA. The EPA, upon receipt of an application and any
other relevant information required, screens the application as an initial assessment. In
screening the application, the EPA takes into consideration factors such as the location,
size and likely impact of the undertaking, the technology intended to be used, as well
as any concerns of the general public, and in particular concerns of the local residents.53
An environmental permit is usually issued within 90 days from the date of receipt
of the completed application form. It might take longer in instances where a public
hearing is required, as is the case for large-scale mineral development projects.

iii Third-party rights


Compensation for landowners and lawful occupiers
The owner or lawful occupier of any land in respect of which a mineral right has been
granted and whose surface rights have been disturbed has the legal right to apply to the
licensee for compensation for such disturbance.54 Similarly, compensation may also be
demanded from the licensee for any damage done to the surface of the land, buildings
or works, or to livestock, crops or trees within the area of such mineral operations. The
amount of compensation payable is left to be determined by a negotiated agreement

52 Op. cit. 18.


53 Ibid. Regulation 5.
54 Sections 73 and 74 of Act 703 and the Minerals and Mining (Compensation and Resettlement
Regulations, 2012 (LI 2175) govern issues of compensation and resettlement.

82
Ghana

between the landowner or lawful occupier and the mineral right holder. If the parties
fail to agree on the amount of compensation payable, the matter must be referred to
the Minister for determination in consultation with the Land Valuation Board, which
is a public institution responsible for land valuation. Under new regulations that came
into force in June 2012, detailed procedures have been laid down for giving notice to
persons whose surface rights are affected by the grant of a mineral right, making of claims
for compensation by such persons, principles for assessing compensation payable, and
time limits for payment of agreed compensation and for the determination of disputes
relating to compensation.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


There are currently no legal restrictions on the importation of plant, equipment and
machinery for mining purposes. However, new regulations have recently come into force
that require the satisfaction of local content in the procurement of goods and services
by all licensees under the Mining Law. In this regard, holders of licences are required
to submit five-year procurement plans to the Minerals Commission for approval. Such
procurement plans shall reflect the licensees’ obligation to procure goods and services
with Ghanaian content to the maximum extent possible, and consistent with safety,
economy and efficiency. The Minerals Commission is required to publish a procurement
list that specifies goods and services with Ghanaian content that shall be procured locally.
Failure to comply with such local procurement list would make a defaulting licensee
liable to pay to the Commission the full customs duty on the imported item, as well as
a penalty.

Use of foreign labour and services


On the basis of an approved immigration quota, mining companies are permitted
to use foreign labour or expatriates if they satisfy the Minerals Commission that no
Ghanaian has the requisite qualification and experience to occupy the position for which
the expatriate is to be recruited.55 Every applicant for a licence under the Mining Law
is required to submit with its application particulars of proposals with respect to the
recruitment of expatriates, and employment and training of Ghanaians to replace the
expatriates within a specified period. Once the proposals are approved they constitute a
localisation programme. The Commission may approve the employment of additional
expatriates in exceptional circumstances, including instances:
a where specialised technology is required;
b where training of Ghanaians being carried out would require a longer period than
the transition period;

55 See the Minerals and Mining Regulations 2012 (LI 2173), Section 1(6); However, expatriates
cannot be employed in an unskilled or clerical position.

83
Ghana

c where a special project, including a new mine development expansion or


rehabilitation, is to be undertaken, provided that the duration of the project does
not exceed three years; or
d where Ghanaians are transferred to work as expatriates in the company’s operations
in other countries.

ii Sale, import and export of extracted or processed minerals


Only licensed persons may engage in the export, sale or disposal of a mineral.56 The
Mining Regulations57 set the application procedure for a licence for the export, sale or
disposal of minerals; such application must be accompanied with a refining contract and
a sales and marketing agreement. The licensee is also required to furnish the Minerals
Commission with particulars of the quantity and grade of the minerals to be shipped
before making any shipment, and provide access for samples to be taken by a government-
designated laboratory for assaying purposes.

iii Foreign investment


Under the Mining Law, a licensee who earns foreign exchange from mining operations
may be permitted by the Bank of Ghana to retain, in a designated account, a portion of
the foreign exchange earned for use in acquiring spare parts and other inputs required
for the mining operations.58 It provides further that the Minister of Finance may permit
the holder of a mining lease, where the net earnings from the holder’s mining operations
are in foreign exchange, to open and retain in an account an amount not less than 25 per
cent of the foreign exchange for:
a the acquisition of spare parts, raw materials, and machinery and equipment;
b debt servicing and dividend payment;
c remittance in respect of quotas for expatriate personnel; and
d the transfer of capital in the event of a sale or liquidation of the mining operations.

When opened, such an account is to be held in trust by a trustee bank appointed by


the licensee. A licensee is further guaranteed free transferability of convertible currency
through the Bank of Ghana or, in the case of a net foreign exchange holder, through the
trust account.

Stability and development agreements 59


Under the Mining Law, a stability or a development agreement may be entered into
between the government and the holder of a mining lease. Stability and development
agreements aim at protecting an investor from the adverse impacts of changes in laws.
The validity period for a stability agreement is for a maximum of 15 years, whereas
the law is silent on the maximum validity period for a development agreement, thus
implying that it is negotiable.

56 Act 703, Section 6(1) .


57 See the Minerals and Mining Regulations 2012 (LI 2173).
58 Act 703, Section 30.
59 Ibid. Sections 48 and 49.

84
Ghana

VI CHARGES

i Royalties
A licensee is required to pay royalties to the state at a flat rate of 5 per cent of total
revenue derived in respect of all minerals won from his or her mining operations. The
royalty payable is based on total revenue earned from the mineral operations.60

ii Taxes
Corporate income tax
The current corporate income tax rate is 35 per cent of net profits. The net profit is
determined after deductions of operating costs, allowable capital expenses and investment
allowances.

Capital gains tax


The capital gains tax rate is 5 per cent payable by any person on gains accruing from
the realisation of a chargeable asset. Chargeable assets are defined to include buildings,
business assets, land, rights, or interest in shares and stocks.

Value added tax (‘VAT’) and national insurance levy (‘NHIS’)


The supply of goods and services by mining companies that are not specifically exempted
under the VAT Act are taxable at the prevailing rate of 12.5 per cent for VAT, and a
further 2.5 per cent for NHIS.

iii Import duties


Currently, plant machinery and equipment imported for use exclusively in mineral
operations that are contained in an approved mining list are exempt from payment of
customs and excise duties.

iv Other charges and fees


Ground rent is payable annually to the owner of the land in respect of which a mineral
licence is granted. The amount payable is related to the size of the licensed area. The rent
is nominal and is currently determined per square acre. If the land in question is stool
land, this rent is paid to the Administrator of Stool Lands who acts as a public trustee for
incomes and revenues due from stool lands.

Consideration fees payable to the Minerals Commission


The Minerals Commission charges various fees for its services relating to its functions
of regulation and management of Ghana’s mineral resources. The fees rates applicable
usually differ for Ghanaian and foreign-controlled companies.61

60 Ibid., Section 25 as amended by the Minerals Royalties Act 2010, Act 794.
61 The current fees applicable to Ghanaian and foreign controlled companies (effective 1
September 2011) can be found at: www.ghana-mining.org/GhanaIMS/LinkClick.aspx?filetick
et=4aAA2XYnBm0%3D&tabid=36.

85
Ghana

VII OUTLOOK AND TRENDS

i Restrictions on foreign exchange withdrawals


The Bank of Ghana, which is the central bank, recently imposed restrictions on foreign
exchange withdrawals in Ghana in an attempt to stem the depreciation of the cedi. The
Bank noted that returns submitted by banks showed insignificant movements in forex
account balances of mining companies, which gave an indication that the companies
have not been releasing foreign exchange into the open market system, thus resulting
in the Bank drawing heavily on its foreign reserves to meet exchange requirements. The
Bank also noted that some mining companies enter into bidding transactions on foreign
exchange with banks under which they sell at the highest offered rate than that prevailing
on the market.

ii Proposed windfall tax


A proposed bill on a 10 per cent windfall tax is being considered for imposition on
mining companies. The introduction of the bill is a response by the government to
domestic stakeholder agitation to increase government revenue derived from mining
operations.

iii General mining fiscal regime review


The government has also embarked on a general review of the mining fiscal regime. The
rationale is to ensure that all mining companies are treated equally. Previously, mining
companies undertaking huge mine development projects could, in addition to the grant
of a mining lease, negotiate specific investment agreements that granted the companies
tax exemptions, lower rates of taxes and other benefits that were not necessarily enjoyed
by all other companies and that resulted in distortions in tax payment calculations. For
example, the Internal Revenue Service Act provides for a maximum 2:1 debt-to-equity
ratio for interest expense on intercompany debt to be deductible from taxable income.
However, some mining companies are subject to higher debt-to-equity ratios that were
negotiated and embodied in specific investment agreements between the companies and
the government. The government’s official position is to renegotiate such agreements with
the beneficiary companies so as to create a level playing field for all mining companies.
In addition, although the Mining Law currently exempts machinery and
equipment imported exclusively for mining operations from payment of import and
excise duties, the government is reviewing the mining list with a view to making it more
local content friendly. The objective is to reduce the loss of government revenue through
import and excise duty exemptions.

86
Chapter 9

MEXICO
Alberto M Vázquez 1

I OVERVIEW

Mexico is one of the largest silver producers in the world. Silver is produced by Mexico’s
primary and secondary silver mines as a by-product of base metal and gold operations.
According to the World Bank, Mexico ranks 12th in the world in terms of GDP and
has the fourth-largest per capita income in Latin America after Argentina, Chile and
Costa Rica.
Mexico has a long history of mining (going back more than 500 years). The
attitude of the government to any mining project generally depends on the area in which
it might be located; in the northern and central parts of Mexico, the mining industry is
in general terms very well established, whereas there is less activity in the south.
Exploration for mineral resources involves a high degree of risk. The cost of
conducting exploration programmes may be substantial and the likelihood of success is
difficult to assess. The prices of metals greatly affect the value of mining companies and
the potential value of their properties and investments, which are generally dependent in
Mexico on the equity markets as their sole source of operating capital.

II LEGAL FRAMEWORK

On 28 April 2005, Mexico’s Mining Law was amended to simplify the regulation of
mining concessions through the merging of the exploration and exploitation regimes
into one single regime; this amendment came into full force and effect on 1 January
2006.
A mining concession is an authorisation granted by the federal government. It
is a unilateral administrative act whereby a specific activity is authorised to be carried

1 Alberto M Vázquez is a partner at Vázquez, Sierra & García SC.

87
Mexico

out under particular rules or over public assets. By means of a concession, certain rights
may be exercised during a specified period by an individual or a private legal entity. The
general economic interests of Mexico prevail over the private interests of such individual
or private legal entity.2
Upon the granting of a concession, the government is no longer involved in the
carrying out of the granted activity, which will be performed by an individual or private
legal entity. The main activity that the government performs with respect to granted
concessions is to verify that the concessionaire complies with the obligations set out in
the respective laws.
By means of a mining concession, the Federal Executive (through the Ministry of
Economy) confers the right to explore, exploit and process concessible minerals or other
substances located within an allotted area to either:
a the first applicant with respect to a specific plot of land; or
b in a public bidding procedure, the best offeror with respect to land covered by
cancelled allotments or by mineral reserves that have been disincorporated.

A mining concession may be revoked or cancelled by the government in the case of non-
compliance with the obligations set out in the applicable legal provisions.
Mining concessions have a term of 50 years from the date on which the relevant
title is recorded in the Public Registry of Mining.
It is important to note that the Constitution acknowledges, on the one hand, the
source from which private property over surface land arises, and on the other, the exclusive
right of the government to concede rights for the exploitation, use and utilisation of
mineral resources located within Mexican territory. Article 27 of the Constitution sets
out the following:
Ownership of the lands and waters within the boundaries of the national territory is vested
originally in the Nation, which has had, and has, the right to transfer title thereof to private
persons, thereby constituting private property.
Private property shall not be expropriated except for reasons of public interest and subject to
payment of indemnity.

Therefore, the nation is the original owner of all the lands and waters located within
Mexican territory, and it is only when the nation transfers title thereof to private persons
that ‘private property’ appears.
The third paragraph of Article 27 of the Constitution also states that:
The Nation shall at all times have the right to impose on private property such limitations as
the public interest may demand, as well as the right to regulate, for the benefit of society, the
utilisation of natural resources susceptible of appropriation [...].

As such, the nation may impose certain limitations on private property in order to protect
the public interest, which will always take precedence over private interests. Therefore, if

2 Derecho Minero Mexicano; María Becerra, p. 111; first edition, published by Porrúa SA, Mexico
1963.

88
Mexico

mining activities are considered to be matters of a public nature and of public policy, and
as having preferential rights over any other use or utilisation of the land,3 the state may
validly establish any mining activity on private property, in consideration that such creates
various benefits to the community where the industry is established. The state (represented
by the federal government) also has the right to regulate the utilisation of mineral elements
and resources of a nature different to those of the components of the ground.
Article 27 of the Constitution also sets out the concept of differentiation between
private property, and the use and utilisation of natural resources such as mineral resources:
It corresponds to the Nation, the direct domain of all natural resources of the continental platform
and submarine shelves of the islands; of all minerals or substances which in veins, layers, masses or
beds constitute deposits whose nature is different from the components of the ground, such as the
minerals from which metals and metalloids used in industry are extracted; the deposits of precious
stones, rock salt and the salines formed directly by marine waters; the products derived from the
decomposition of the rocks, when their exploitation requires under ground works; the mineral or
organic deposits of materials capable of being utilised as fertilisers [...]
[T]he domain of the Nation is inalienable and imprescriptible, and the exploitation, the
use or utilisation of the resources concerned (minerals), by individuals or entities organised in
accordance with Mexican laws may only be carried out by means of concessions granted by the
Federal Executive in accordance with the rules and conditions set out in the laws. The legal
provisions relative to works of exploitation of the minerals and substances to which paragraph four
refers, shall regulate the execution and proof of works carried out or to be carried out from their
effective date, independently of the date of issuance of the concessions, and the non-observance
thereof shall cause their cancellation.

There is a clear constitutional differentiation between:


a surface land (ground) that may constitute private property when title has been
transferred to private persons (either individuals or legal entities); and
b the right to use, utilise and dispose of mineral resources located within the
Mexican territory, which may only be carried out by individuals or private legal
entities through the granting of concessions for such purposes by the Mexican
government.

As such, a landowner owns not only the surface of its property, but also (with some
limitations), in principle, the matter located under the land,4 as long as no minerals
or substances different from the components of the ground exist. In cases where such
minerals or substances exist, they belong to the nation, which alone is authorised to
grant one or more concessions for their exploration and exploitation. In view of this,
the exploration, exploitation and beneficiation of minerals or substances in veins, layers,
masses or beds that constitute deposits of a nature different to those of the components
of the ground are subject to the concession regime established in Article 27 of the

3 Article 6 of the Mining Law, published in the Official Daily of the Federation on 26 June 1992
(and amended in 1996, 2005 and 2006).
4 Mining Law and Regulations of Mexico, Fausto C Miranda and John C Lacy, p. 23; first edition
1992/1993, Rocky Mountain Mineral Law Foundation.

89
Mexico

Constitution. The Mining Law regulates Article 27 of the Constitution in the area of
mining and is applicable throughout Mexico.
While the Mining Law is the key legislation governing mining activities in
Mexico, other relevant legislation includes:
a the Regulations to the Mining Law (published in the Official Daily of the
Federation on 2 February 1999);
b the Federal Law of Waters (published in the Official Daily of the Federation on
1 December 1992);
c the Federal Labour Law (published in the Official Daily of the Federation on
1 April 1970);
d the Federal Law of Fire Arms and Explosives (published in the Official Daily of
the Federation on 11 January 1972);
e the General Law on Ecological Balance and Environmental Protection (published
in the Official Daily of the Federation on 28 January 1988) and relevant
Regulations; and
f the Federal Law on Metrology and Standards (published in the Official Daily of
the Federation on 1 July 1992).

Only the federal government is authorised to carry out exploration and exploitation of
any radioactive mineral that may be found in Mexican territory.
There is no limit as to any participation of foreign investment in the Mexican
mining industry. Foreign investors may participate in 100 per cent of the capital stock of
Mexican mining companies without the obligation to comply with any formalities other
than those relevant for incorporating a company in Mexico.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
Under Mexican law, mineral resources belong to the nation, and a mining concession
grants rights to mine rather than rights over the surface land where the concession is
located.
A party wishing to apply for a concession must first verify that the concession
is not located within a conservation area that is subject to special environmental
authorisations. An application for a concession must be filed with the mining agency
or mining delegation located closest to the area to which the mining application relates.
Once an application has been filed, the applicant and its mining expert may enter the
land where the concession is located to carry out surveys and other exploratory work.
These works must be filed with the relevant mining authorities within 60 calendar days
of the date of the application.
In certain, very specific cases, mining concessions may also be granted through
public auctions.

90
Mexico

ii Surface and mining rights


Mining concessions may only be granted to Mexican individuals domiciled in Mexico,
or companies incorporated and validly existing under the laws of Mexico whose objects
are the exploration and exploitation of minerals.
Holders of mining concessions must comply with various obligations, including
the payment of certain mining duties calculated per concession based on the number
of hectares of the concession and the number of years the concession has been in effect.
Failure to pay the mining duties may lead to cancellation of the concession.
Holders of mining concessions must carry out and provide proof of assessment
works in accordance with the terms and conditions set out in the Mining Law and its
Regulations. The Regulations to the Mining Law establish minimum amounts that must
be spent or invested on exploration and exploitation activities. A report must be filed in
May of each year regarding the assessment works carried out in the preceding year. The
mining authorities may impose a fine on the mining concession holder if one or more
proof of assessment works reports is not filed on time.
Concessions may be cancelled in the following circumstances:
a for using the mining concession to carry out the exploitation of minerals or
substances not subject to the Mining Law;
b for failing to perform and prove the assessment works contemplated in the terms
and conditions set out in the Mining Law and its Regulations;
c for failing to pay the mining duties or the discovery premium or economic
consideration, when applicable;
d by a waiver of rights filed by the titleholder or at the request of the titleholder, as
substitution of the mining title, due to a reduction of the surface area covered by
the concession or unification of two or more lots;
e through a decision by a competent court in Mexico;
f for grouping concessions covering non-adjoining mining properties for
the purposes of proving assessment works, when said concessions do not
either constitute a mining or mining-metallurgic unit from the technical and
management standpoint; and
g in order for the holder of a mining concession to lose its legal capacity to be such
holder.

In order to clearly understand the difference between surface owners and holders of
mining concessions located within Mexico, it is necessary to understand the reasons why,
according to Mexican law, the mining concession itself does not grant to its holder any
right over the surface land where the concession is located, and why ownership of real
property itself does not grant to the owner the right to explore or to exploit the mineral
resources that may exist therein.
In the following, we review the relevant concepts within the Mining Law that
regulate the rights granted by mining concessions to their holders with respect to
surface land; and the main characteristics of each of the legal mechanisms that the
Mining Law provides for access, possession, occupation and even ownership of surface
land that might be considered essential for the performance of mining works.

91
Mexico

The different burdens of or limitations to surface land that may be requested by a


mining concessionaire under the Mining Law are expropriation, temporary occupation
and creation of easement.

Expropriation
In general terms, expropriation it is the administrative act whereby the federal government
unilaterally imposes on individuals or private legal entities the transfer of their assets for
compliance with a matter of public interest, in consideration of an indemnity.5
Expropriation also cover the administrative procedure of public law by means of
which the federal government, unilaterally and in the exercise of its sovereignty, legally
proceeds, in particular, against an owner or possessor for the constrained acquisition or
transfer of an asset due to a cause of public interest and by means of a fair indemnification.6
The expropriation procedure may exceptionally be initiated by an individual or
private legal entity (in this case, the holder of a mining concession), when legitimised to
do so by virtue of the Mining Law, which expressly authorises the concessionaire to do so.
According to the Mining Law, expropriation enables the Federal Executive, upon
request of the holder or assignee of a mining concession and subject to payment of the
respective indemnification, to authorise in a presidential decree the mandatory transfer
of land essential to the miner for the carrying out of exploration, exploitation and
beneficiation, as well as for the deposit of dumps, tailings, dross and slag.

Temporary occupation
Temporary occupation is the administrative act whereby the Ministry of Economy (as a
legal entity of the Federal Executive), upon request of the holder or assignee of a mining
concession and by means of an annual indemnification at the expense of the latter,
authorises, for a certain period of time, the temporary use of land that is essential to
carry out exploration, exploitation or beneficiation works, as well as for the deposit of
dumps, tailings, dross and slag.
Whereas in the case of an expropriation the ownership of the surface land is
transferred to the mining concessionaire, in the case of a temporary occupation the
owner of the surface always retains the ownership of the land in question, and is only
dispossessed from the use and occupation of the same during a certain period of time,
in consideration of a determined amount of money to be received every year from the
holder of the mining concession, who in turn is authorised to carry out the mining
activities. Thus, upon the conclusion of the temporary occupation, the material and legal
possession of said land must be reverted to the surface owner.

Easement
In general terms an easement is a lien created over a real estate property in the benefit of
another property of a different owner.

5 Elementos del Derecho Administrativo, Luis H Delgadillo Gutiérrez y Manuel Lucero Espinosa,
p. 99; first edition, published by Editorial Limusa SA.
6 Derecho Administrativo; Andrés Serra Rojas; p. 315; second volume, 13th edition, published by
Editorial Porrúa SA, Mexico 1985.

92
Mexico

Sometimes the easement consists of granting a third party the right to perform
certain acts implying a use of the land, and in other instances it may consist of partially
preventing the owner of the land from exercising its own rights.7
The general content of the easement, as to the benefit or utilisation of the land
by the holder of the mining concession, and the limitation or restriction in the domain
of the servient tenement’s owner, gives ground to several kinds of easements that may be
created depending on the benefit or utilisation pursued.
For the purposes of the Mining Law, an easement may be requested on land
where the mining concession is located, or on adjacent land with respect to which access
is required; or otherwise, to provide a mining concession with services (e.g., water and
electricity supply) required for the performance of the works related to the concession
on such land.

Other mechanisms
In addition to the aforementioned legal mechanisms, which are acknowledged as rights
of the holder of a titled mining concession, a prior right to gain access to the surface land
covering the mining claim also exists: once an application to obtain a mining concession
has been admitted for study, and provided that other legal requirements are met, the
mining authorities shall issue an ‘identification certificate’, valid for a 60-day term, in
order for a mining expert to prepare survey works on the land where the lot is located.
The identification certificate contains a warning (as provided for in the Regulations
to the Mining Law, and in accordance with Article 57, Paragraph II of the Mining
Law) to the effect that any person without mining rights that prevents or hinders the
survey works on the lot that forms the subject matter of the application shall be fined
an amount of between 10 and 2,000 times the general minimum wage in effect in the
Federal District.
Mining concession holders are entitled access surface land, notwithstanding that
such land is private, ejido or communal property.
An ejido property is land that has been provided to a population or that is
incorporated into the ejido regime. Ejido properties are classified as:
a land for human settlement;
b parcelled land; and
c land of common use.

In the case of a private property, the Mining Law sets out the steps to be followed to
obtain a limitation or burden thereon.
In cases where the property to be accessed belongs to an ejido or agrarian
community, the application must be filed before the mining authorities. Once the file is
complete and the legal requirements are met, the file must be transferred to the Ministry
of the Agrarian Reform to continue the process in accordance with Articles 93 to 97 of
the Agrarian Law (and any other related and applicable articles).

7 Compendio de Derecho Civil II; Rafael Rojina Villegas, p. 135. 16th edition, published by
Editorial Porrúa SA, Mexico 1984.

93
Mexico

The Ejidatarios’ Meeting is the ejido body with the authority to classify such land
within the total surface of the land corresponding to the ejido; likewise, it is entitled to
approve the execution of agreements with the purpose of granting the use of common-
use land to third parties.
The rights on land of common use are considered as granted in equal parts to each
ejidatario or ejidataria, unless otherwise determined by the Ejidatarios’ Meeting based on
special circumstances.
The government is authorised to affect ejido or communal properties, but only in
circumstances where the public interest is superior to the social interest of the ejido or
of the community (as in the case of mining), and provided no other alternative land to
cover such needs exists.

Burden or limitation of ejido property


The public interest causes provided by the Mining Law for an ejido or communal property
to be expropriated for mining include:
a the creation and extension of industrial development areas;
b the exploitation of natural resources owned by the nation and the installation of
beneficiation plants related to such exploitations; and
c other causes provided by the Expropriation Law and by other laws.

The Agrarian Law acknowledges the importance of the mining industry, and also the
public interest in the exploitation of minerals located in the subsoil.
The Ministry of the Agrarian Reform is the authority competent to notify an
expropriation to the Ejido Commission. Such notification shall be made:
a through an official communication;
b through a publication in the Official Daily of the Federation; and
c through a publication in the official newspaper of the corresponding state.

In addition, the Agrarian Ministry shall request opinions from the governor of the
corresponding state, the Mixed Agrarian Commission of the entity where the lands are
located and the official (governmental) bank operating with the ejido.
It is also necessary to conduct an inspection visit to determine the veracity of the
data included in the corresponding application for expropriation.

Possibility to freely negotiate


There are great advantages and benefits in the fact that, in Mexico, the concessionaire is
entitled to approach the owner of the surface land where the concession is located, and to
freely negotiate and agree on the terms and conditions under which said concessionaire
may:
a obtain free access to the surface covering the mining concession for the
performance of mining works;
b occupy, use and possess (totally or partially) the surface land necessary to carry out
said works, or to establish those facilities considered important for its operations;
and
c acquire said surface land, totally or partially, through any of contractual
mechanisms of a private nature.

94
Mexico

The contractual means available for such purposes vary according to the applicable
Mexican laws; therefore, we mention only those considered as the most important, or at
least more frequently used, in mining:
a lease agreements;
b commodatum contracts;
c private agreements for the occupation and use of the surface land, or any other
similar purposes; and
d purchase agreements.

The form of the contract or agreement is not as relevant as its main purpose and the clear
determination of the rights and obligations acquired by each of the parties executing the
same.
From the practical standpoint, it is always advisable that the negotiations and
execution of contracts or agreements be made with the owners of the surface land in the
first stages of either the exploration works or the mining project itself given that, in our
experience, some mining companies working in Mexico have faced serious problems and
delays with non-existing agreements, or when trying to obtain such authorisation and
consent in the advanced stages of a project.
Furthermore, a lack of negotiations resulting in the execution of a contract or
agreement with the owner of the surface land may not only cause serious problems
and delays in the work programme, but may also incur costly additional expenses and
excessive lengths of time spent trying to find a solution to the problem.
It should also be noted that resolutions issued by the Mexican authorities upon
conclusion of expropriation, temporary occupation or creation of easement are not final;
the person considering him or herself as harmed by virtue of a resolution may file a revision
remedy in terms of Article 83 (and other related and applicable articles) of the Federal
Law of Administrative Procedure 8 or, if applicable, contest via an amparo proceeding, a
judicial proceeding aimed at protecting the individual guarantees contemplated by the
Constitution.
Those conflicts arising from the interpretation, execution or compliance with
contracts or agreements entered into by private parties (as in the case of a mining
concessionaire and the owner (or owners) of the surface land) shall be submitted to
the competent Mexican courts or, when permitted and agreed upon by the parties,
definitively settled by arbitration or through any of the alternative dispute resolution
means.
Should an administrative procedure declare that the requirements established in
the Mining Law, its Regulations and other applicable legal provisions have been followed,
and that the indemnification is within the prevailing values set out in the respective
appraisal and is actually paid, the revision remedy or the constitutional protection shall
not be granted. In such case, the expropriation, temporary occupation or creation of
easement shall be final, binding and enforceable.

8 Published in the Official Daily of the Federation on 4 August 1994, amended on 19 May 2000.

95
Mexico

iii Additional permits and licences


Explosives permits
The Federal Law of Fire Arms and Explosives (‘the LFAE’) administers the purchase,
storage and use of explosives in the mining industry; such Law is administered by the
Ministry of National Defence and is considered to be of national security.
Mining companies usually do not use explosives until the advanced exploration
stages. They must obtain an explosives permit before purchasing any explosive, and must
also comply with all of the requirements of the LFAE, including the construction of
special warehouses to store explosives and purchasing explosives only from authorised
distributors that are duly recorded by the Ministry of National Defence. One person will
be responsible for the explosives used by the company, and they must also be recorded
by the Ministry.

Water concessions
Mining companies usually buy water from concessionaires of the area where the
exploration works are being carried out at an early exploration stage.
As the construction or exploitation stage approaches, mining companies must
obtain concessions from the National Water Commission or purchase concessions
previously granted by such authority.
The National Water Commission has a policy of not granting any new concessions;
therefore, mining companies must negotiate with holders of water concessions that have
been previously granted.
Finally, under the Mining Law, mining concessionaires may use water obtained
directly from the mine.

iv Closure and remediation of mining projects


Environmental impact authorisations (‘EIAs’) are granted on a case-by-case basis, and
contain a section devoted to the closure and rehabilitation plan of the mine; such plan
is approved by the environmental authority prior to commencing exploitation activities.
There is no need to provide financial guarantees to cover all or a substantial part of
the plan’s costs. The authority may carry out audits as it considers convenient to verify
compliance with the obligations included in each EIA.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


The development projects and prospects of companies in Mexico are subject to Mexican
federal, state and municipal environmental laws, regulations and Official Mexican
Standards (‘NOMs’) for the protection of the environment.
The main environmental legislation applicable to mining projects is the General
Law of Ecological Balance and Environmental Protection (‘the LGEEPA’), of federal
jurisdiction, and its Regulations in Environmental Impact Matters (‘the REIA’), which
are enforced by the Federal Bureau of Environmental Protection (‘the PROFEPA’). Such
authority monitors company compliance with environmental legislation and enforces
Mexican environmental laws, regulations and NOMs.

96
Mexico

If warranted, the PROFEPA may initiate administrative proceedings against


companies that violate environmental laws; in the most extreme cases, such proceedings
may result in the temporary or permanent closure of non-complying facilities; the
revocation of licences, authorisations and permits; and other sanctions such as fines that
can rise up to 3,116,500 pesos. As such, under Article 28 of the LGEEPA, and the REIA,
an EIA must be obtained prior to the initiation of mining exploration and exploitation
activities.
Only in certain exceptions referred to in Article 31 of the LGEEPA, when all
the environmental impacts of an activity are regulated by a NOM, a partial urban
development plan or an ecological ordinance territory programme, or in the case of
constructions inside industrial parks that have already been approved, the Secretariat of
the Environment and Natural Resources (‘SEMARNAT’) can authorise certain activities
without the need to present an environmental impact statement (‘EIS’). In such cases,
a preventive report (‘PR’) will have to be presented instead for evaluation prior to the
initiation of the exploration and exploitation activities, or the processing of minerals.
NOM-120-SEMARNAT-2011 regulates the environmental protection measures
in place for direct mining exploration activities in specific areas (agricultural, farming or
virgin areas of dry climates, etc.), and any mining project that complies with such NOM
in the exploration phases will have to present a PR rather than an EIS.
Any individual that owns or holds real estate in Mexico that has suffered any kind
of pollution must remediate such pollution; this provision is applicable at any stage of
any mining project in Mexico.
Mexican environmental regulations have become increasingly stringent over
the last decade. The entry into force of the North American Free Trade Agreement in
1999 made clear Mexico’s need to reach a balance between the elimination of barriers to
international trade on one hand, and the preservation and protection of the environment
on the other.

ii Environmental compliance
Pursuant to the Federal Criminal Code, some crimes against the environment are
sanctioned with prison sentences. In some cases, such crimes are prosecuted under a
PROFEPA action.

iii Third-party rights


In general terms, mining concessions are granted to the first petitioner filing an
application to obtain such mining concession over free land (under the terms set out in
the Mining Law).
The only third-party rights that are recognised are the rights of the owners of
the surface land over which mining concessions are located, and with whom mining
concessionaires must negotiate.
We must also mention that if any free land (in terms of the Mining Law) is
located within the area populated by an indigenous community (and which is different
from an ejido or agrarian community), such indigenous community has a preferential
right to become the mining concessionaire.

97
Mexico

The right of first refusal is limited to the area covered by the land owned by such
indigenous community.
In general terms, mining concessionaires only need to negotiate access agreements
with the owners of the surface land over which their respective mining concessions are
located.
No third party has the right to request, or ask in any manner whatsoever, for
the closure of a process and the abandonment of any mining project, as environmental
concerns are a matter of administrative law. However, on 30 August 2011, certain
amendments to the Federal Civil Procedures Code were published in the Official Daily
of the Federation. These amendments mainly consist in establishing three categories
of collective actions, by means of which 30 or more people claiming injury resulting
from environmental harm, among other things, have sufficient and legitimate interest in
seeking through a civil procedure restitution, economic compensation or suspension of
the activities from which the alleged injury derived.

iv Labour issues
The Federal Labour Law (‘the FLL’) establishes that employees work a maximum of 48
hours per week. If an employee exceeds the number of authorised labour hours per week,
he or she is entitled to receive additional overtime payment.
Employers must register employees with the Mexican Institute of Social Security.
The employer must periodically deposit a sum equivalent to 2 per cent of each
employee’s salary into a banking account as a retirement fund. A housing fund of an
amount equivalent to 3 per cent of the employees’ salary must also be paid by the
employer.
Labour unions are recognised under the FLL in order to protect employees’
interests, and collective labour contracts are signed between the employer and the labour
union; such contracts are reviewed every two years.
The FLL acknowledges three work shifts: day shift (eight hours), night shift (seven
hours) and mixed shift (seven-and-a-half hours). Employees are entitled to one day of
rest with full pay after six labour days.
The FLL establishes different daily wages for each category of service to be
rendered, taking into consideration the respective geographical area where the services
shall be provided. Annual revisions of the salary are also considered in the FLL.
Employees have the right to a yearly vacation, which is not to be less than six
working days. For every year the employee continues to work for the employer, he or
she will receive an additional two working days. After four years, an employee’s vacation
period will increase by only two working days for every additional five years he or she
works for the employer.
Employees have the right to receive a vacation premium of at least 25 per cent of
their salary during such vacation period.
Employees are entitled to participate in the earnings of their employees, based on
the percentage determined by the National Commission for Workers’ Participation in
their Employers’ Earnings.

98
Mexico

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


Owners of processing plants in Mexico must process at least 10 per cent of their capacity
from small mines.
In terms of foreign labour, there is no restriction on the employment of foreigners
in positions of responsibility (such as management). There is, however, a requirement for
a ratio of at least 10 Mexicans to 1 foreigner to be employed for technical labour.

ii Sale, import and export of extracted or processed minerals


The Customs Law and the Foreign Trade Law regulate the importation and exportation
of goods. Depending on the type of commodity, there may be additional requisites in
special laws or regulations.
The Customs Law provides the proceedings regarding foreign trade, such as the
entry, exit, custody, storage, handling or holding of commodities. As a consequence,
any person who performs such activities is subject to this Law, including importers
and exporters, as well as their custom representatives, custom brokers, transporters and
possessors of authorised tax warehouses.
The Foreign Trade Law provides the proceedings to be carried out before the
Importation of commodities, especially regarding the compliance with non-tariff
regulations and restrictions.
Recently, foreign trade has become an issue of high importance to the Mexican
government.
In order to avoid illegal practices, such as customs fraud or using Mexico as a base
to export Asian products to the United States, penalties in such matters have become
especially strict.
In July 1988, Mexico converted to the Harmonized Tariff Schedule for
commodity classification and codification, making its import and export classification
system compatible with those of most countries with which it commonly trades.
The Official Gazette published a new Customs Law on 15 December 1995,
which became effective on 1 April 1996. The main purpose of the Law is not only to
provide legal certainty, but also to promote investment and exports and to comply with
the international commitments acquired by Mexico. One of its noteworthy features is
the incorporation of a number of tax rules and operational authorisations on specific
international operations.
A new General Import and Export Tax Law became effective on 1 July 2007. The
most significant changes relate to adjustments made by the Customs Council in terms of
subheading classification.
The Mexican government continues to apply a policy of gradual elimination
of import restrictions. In prior years, import permits (licences) had to be obtained for
most products from the Ministry of Economy. At present, licences are required for only
approximately 1 per cent of items or classifications in the customs tariff.
Regarding the clearance of commodities the most important actions are:
a presenting any commodity before the customs authorities with a customs
declaration;

99
Mexico

b activating the mechanism of automatic selection;


c the customs inspection; and
d the disposition of the goods.

Importers and exporters of commodities must file a customs declaration before


the customs authorities. Such declarations shall include several annexes such as the
commercial invoice of the commodity, documents evidencing compliance of non-tariff
regulations and restrictions (such as capacities, permits and NOMs), as well as those that
allow the identification, review and control of the commodity, and documents regarding
its origin, either to obtain the benefits of free trade agreements or to prove that the
commodity does not originate from a country that performs dumping.
In order to import commodities, it is necessary to register before the General
Customs Administration. In the event of importing a commodity that is sensitive
for national production, importers need an additional registration called a ‘Sectorial
Registry’ registration. Sometimes (e.g., in cases of temporary importation), registration
is not necessary.
Tax benefits that are granted by free trade agreements represent the possibility to
reduce or be exempted from tariffs according to the particular tariff preferential treatment
schedule of each agreement. Despite this, such agreements do not represent the chance to
avoid paying other taxes derived from the importation and exportation itself.
The Customs Law provides a list of goods that are exempted from paying duties
on foreign trade. Such goods include those exempted due to international treaties, or
because of their import for national defence or public safety purposes. Regarding other
kinds of taxes derived from the import, the possibility to obtain an exemption for each
kind of good should be revised separately.
General import or export taxes are calculated considering the customs value of the
commodity. In most importations, the customs value is based on the price that was paid
or the one that should be paid for the commodity, according to the commercial invoice
(the settlement value). If other expenses caused during the importation increase such
value, it would attract cost, insurance and freight rules.
In the event that there is no value, or if the price that has been or should be
paid for commodities cannot be considered as the valuation base, one of the secondary
methods derived from the Agreement on Custom Value of the World Trade Organization
would be applicable.
Currently, there are no legal rules in force or industry codes applying export
restrictions or duties.

iii Foreign investment


Most deals taking place involve Mexican mining companies in which foreign investment
is involved. Although mining concessions may only be granted to Mexican individuals
domiciled in Mexico, or companies incorporated in Mexico, such companies may be
wholly owned by foreign investors; there are no restrictions as concerns foreign investment
in Mexican mining companies. Mexican-incorporated mining companies must also be
recorded with the Public Registry of Commerce of their corporate domicile and with the
Public Registry of Mining.

100
Mexico

Mexican companies with foreign shareholders must register with the National
Registry of Foreign Investments of the Ministry of Economy and renew their registration
on an annual basis.

VI CHARGES

i Royalties
Royalties do not exist in Mexico, except in very specific cases in which the concession
is acquired through a bidding process directly from the government, and such royalty is
directly proposed by the interested party.
Currently, there are no legal rules in force or industry codes applying to royalty
obligations.

ii Taxes
In addition to the mining taxes referred to in Section V, supra, mining activities in Mexico
are generally subject to the same taxes applicable to other businesses. These include:
a federal and local payroll taxes;
b custom duties on the importation of machinery, equipment and ores and
concentrates;
c land transfer taxes;
d federal goods and service and local sales taxes; and
e municipal property taxes.

iii Duties
In general terms, mining concessionaires need only pay mining taxes (duties) that are of
a federal nature as determined in the Federal Law of Duties, and depending on the date
of issuance of the mining concession and, the number of hectares of each concession.

101
Chapter 10

MONGOLIA
Batzaya Bodikhuu and Enkhtsetseg Nergui 1

I OVERVIEW

Mongolia has considerable mineral resources that are largely unexplored and unexploited,
and it is estimated that only about 15 to 25 per cent of the country’s total area has
been fully mapped to determine mineral resources,2 which may likely include significant
deposits of uranium, gold, silver and lead.
Enacted in 1988, the Subsoil Law of Mongolia was the first law on minerals in
the country, and since 1990 Mongolia has started to explore and intensively exploit
the mineral resources of the subsoil and develop minerals policies. Between July 1997
and August 2006, Mongolian minerals policies and practices were governed by the
1997 Minerals Law. On 8 July 2006, the parliament enacted the 2006 Minerals Law,
superseding and replacing the 1997 Minerals Law. The 2006 Minerals Law became
effective as of 26 August 2006.
Since its transition into a market economy, Mongolia has pursued an active policy
to attract foreign investment. In 1996, the government declared foreign investment as a
main factor of the economic development of Mongolia3 and, accordingly in 1997, the
Minerals Law of 1994 was amended and restated, encouraging foreign investment into
the minerals sector.
Today the government has adopted a number of long-term programmes to explore
and develop promising mineral deposits, especially of gold, silver, copper, coal and oil.
Foreign investment and direct participation in a wide range of mining-related industries

1 Batzaya Bodikhuu is a partner and Enkhtsetseg Nergui is a senior associate at Anand & Batzaya
Advocates.
2 Ministry of Mineral Resources and Energy.
3 Mongolia National Development Plan of Action 1996–2000.

102
Mongolia

are actively encouraged, particularly in connection with the exploration, extraction and
processing of mineral resources.
Today, many of Mongolia’s largest foreign-invested entities have been operating
in the mining sector,4 because there are no major distinctions made between foreign and
domestic companies in the Minerals Law. The current Minerals Law specifies, however,
that only domestically registered foreign companies can have mining licences registered in
their name, which means that foreign investments associated with mining are channelled
through locally established entities.
Certainly, encouragement of foreign investment into the mining sector without
limitation has contributed to the economic development of Mongolia. In 2011, the
mining and quarrying sector accounted for 20.2 per cent of Mongolia’s GDP, 69.6 per
cent of the country’s industrial output and 89.2 per cent of its export revenue,5 and the
sector takes first place in the Mongolian economy.
At present, there are numerous foreign-invested companies and joint venture
operations active in the mining sector in Mongolia including the Erdenet Mine
producing copper concentrate,6 Mongolrostsvetmet7 mining fluorspar and Boroo Gold
Company mining gold ore.8 In particular, deposits of coking coal are currently being
exploited and sold internationally by Tavan Tolgoi LLC, Erdenes Tavan Tolgoi JSC and
Energy Resources LLC and Canadian-invested South Gobi Sands LLC. Oyu Tolgoi,
the largest unexploited copper and gold deposit in the world, is scheduled to begin
operations in early 2013. The investment agreement concluded between the government
and Rio Tinto and Ivanhoe Mines is the largest agreement in the sector.9

II LEGAL FRAMEWORK

The legal framework consists of the Constitution of 1992, the 1988 Law on Subsoil,
and the 2006 Minerals Law. Enacted recently, in May 2012, the Strategic Sector Foreign
Investment Law (‘the SSFIL’)10 set up certain limitations to the foreign ownership of
assets and access to use rights in natural resource extraction among other sectors.11

4 Statistical Yearbook 2011; Statistical Bulletin, December 2011.


5 Statistical Yearbook 2011.
6 Erdenet, Mongolian-Russian joint venture company established in 1978, pursuant to the
intergovernmental agreement between the USSR and the Mongolian People’s Republic.
7 The Russian-Mongolian joint venture Mongolrostsvetmet LLC was established in 1973.
8 Boroo Gold, Canadian-based gold mining and Exploration Company. It is the parent company
for Centerra Gold Mongolia (‘CGM’) and its Boroo Gold Company (‘BGC’), which operate
in Mongolia.
9 Investment agreement is available at www.ot.mn/sites/default/files/documents/Oyu_Tolgoi_
IA_ENG.pdf.
10 The full name of the law is the Law of Mongolia on Regulation of Foreign Investment in
Business Entities Operating in Sectors of Strategic Importance.
11 Article 4.1, 4.2 and 5.1 of the SSFIL.

103
Mongolia

The parliament also enacted supplementary implementation and procedural


legislation (the 2006 Implementation Law) to address various technical issues, including
issues on re-registration of exploration licences under the new 2006 Minerals Law.
Under the Constitution, natural resources are the property of the people under
the protection of the state.12 The Constitution, 1988 Subsoil Law, and 2006 Minerals
Law all grant the state exclusive property rights over its mineral resources.13 The Minerals
Law of Mongolia defines three types of mineral deposits – strategic, common and
conventional14 – and the means by which the deposits may be exploited. Subsequent
amendments to the Minerals Law, which were intended to boost foreign investment in
the sector, failed to pass in 2007 and 2008.15
The Nuclear Energy Law was passed in order to regulate all aspects of dealings
with nuclear materials, from uranium exploration and mining to the running of nuclear
reactors. Prior to the enactment of this law, radioactive minerals (i.e., minerals that
contain radioactive isotopes of the uranium or thorium families) were included under
the definition of ‘minerals’ in 2006 Minerals Law.
The Law on the Prohibition against Exploration and Mining in Headwater Areas,
Protected Zones of Water Reservoirs and Forested Areas (widely known as ‘the Long
Name Law’) of 2009 seeks to limit environmental damage caused primarily by placer
gold mining in and around forests and watersheds.
The Law on Banning the Issuance of New Licences for Mineral Exploration was
initiated by the President and adopted by Parliament in 2010. The temporary ban on
issuance of exploration licences was brought in to last from May to December 2010. It
has since been re-extended and will be in effect until at least the end of 2012.
The Ministry of Mining,16 restructured as a result of the division of Ministry
of Mineral Resources and Energy (‘the MMRE’),17 is charged with overseeing geology
and mineral resources policy, including minerals and petroleum, as well as extracting
industry and technology issues, and transparent and responsible mining policy.
Established in 1997,18 the Mineral Resources Authority of Mongolia (‘the
MRAM’)19 is a regulatory body, whose main objectives are to support the development

12 Article 6.1 of the Constitution of Mongolia 1992.


13 Article 6.1 of the Constitution of Mongolia 1992; Article 3 of the Law on Subsoil 1998; Article
5.1 of the Minerals Law 2006.
14 Article 6.1 of the Minerals Law 2006.
15 Nemelt uurchlult oruulah gej baisan tuhai medee, esvel tusul 2007, 2008.
16 Law on Cabinet Structure, 16 August 2012.
17 The MMRE was formed according to the Law on Cabinet Structure dated 17 September 2008.
From 2004 to 2008, mining sector was under the Ministry of Industry and Trade.
18 The MRAM was established in accordance with the 132nd Resolution of the Government of
Mongolia.
19 Under the 1997 law the MRAM was a subordinate agency of the former cabinet level Ministry
of Industry and Trade. In 2006, the Petroleum Authority of Mongolia was merged with the
MRAM, creating the Minerals Resources and Petroleum Authority of Mongolia. In December
2008, the government again made changes to its regulatory bodies in connection with the

104
Mongolia

of government policy in the mineral resources sector and to provide investors, customers
and other interested parties with quick, convenient and customer-oriented services.
The Nuclear Energy Authority (‘the NEA’) is the regulatory agency that oversees
the nuclear sector. It reports directly to the Prime Minister and under the Nuclear
Energy Law the agency has been tasked with regulating the nuclear energy sector in
Mongolia, including licensing, inspecting and monitoring. The NEA is assisted in its
duties by an ad hoc committee headed by the Prime Minister and the head of the NEA.
Additional assistance is provided by the Parliamentary Standing Committee and the
Central Intelligence Agency.
The 2006 Minerals Law defines a mineral deposit of strategic importance as a
deposit that may have a potential impact on the national security or the economic and
social development of Mongolia at the national and regional levels, or that generates or
has the potential to generate more than 5 per cent of Mongolia’s GDP in any given year.
The percentage of the state’s equity interest will be determined by an agreement
between the government (acting through a state-owned entity) and the private legal
entity based on the amount of investment made, or deemed to have been made, by the
state. The law provides no guidelines as to how much funding from the state budget is
required to trigger an increase in the state’s maximum equity interest from 34 per cent
to 50 per cent.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
Mineral resources naturally occurring on and under the surface in Mongolia are the
property of the state. The state, as the owner, has the right to grant exploration and
mining rights to private parties as set out in the terms and conditions of the Minerals
Law.20 Exploration and mining activities without licence are prohibited in Mongolia.

ii Surface and mining rights


A legal person may conduct reconnaissance for minerals without a licence or approval.21All
minerals exploration and exploitation, with the exception of common construction
material, must be conducted under a licence issued by the MRAM, and licences to
conduct exploration and exploitation of uranium are issued separately by the NEA. The
licence holder must be a registered Mongolian legal entity, and no part of the requested
exploration area may overlap with a reserve area or a special purpose territory, or with
an existing licensed area or a licensed area covered by a pending application.22 A person
who meets these requirements may submit an application to the MRAM, which will
review the application within 20 business days of its registration and make a decision on

mineral industry. The MRAM and the Petroleum Authority of Mongolia became separate
subordinate agencies of the Ministry of Mineral Resources and Energy.
20 Article 5.2 of the Minerals Law 2006.
21 Article 15 of the Minerals Law 2006.
22 Article 7.1 and 17.2 of the Minerals Law 2006.

105
Mongolia

granting or rejecting it, either fully or partly. Under the Minerals Law 2006, minerals
exploration licences are granted on a ‘first-come, first-served’ principle.23
According to the Minerals Law the maximum exploration period is nine years,
and the maximum period for a feasibility and environmental impact study is three years.
The maximum period for mining is 30 years, excluding the exploration and feasibility
study period.
The government may establish a ‘reserve area’ or a ‘special purpose territory’,
either of which may affect the mineral rights of a licensee. A reserve area is an area
previously under licence, which a competent authority takes under state control, thereby
suspending any reconnaissance, exploration or mining activities. A licensee determined
to be within a reserve area is not guaranteed compensation. A special purpose territory is
land taken by an authorised government entity for special public needs. Exploration and
mining are either restricted or prohibited in special purpose territories.24 Compensation
must be given to a licensee for the taking of a special purpose territory.
In accordance with the Subsoil Law and the Minerals Law, the licence holder
must have started use of the subsoil and – as determined in the sole discretion of the
MRAM – have either commenced mining operations or been allowed by MRAM to
continue advance mine development on the licensed area by the end of three years from
the date of expiration of the exploration licence.

iii Additional permits and licences


In Mongolia, the tonnage and grade of a mineral reserve that has been defined by
exploration activities must be recorded in official archives. Prior to the commencement
of mining activities, the mining licence holder is required to obtain final approval by
obtaining a Mine Commission Act.
After a mineral reserve has been defined and recorded, an exploration licence holder
may apply to the MRAM for a pre-mining agreement. During the term of this agreement,
which may not exceed three years, Mongolian law-compliant final feasibility studies must
be completed, mine facilities developed, and the mine brought into production.
During the pre-mining period, the licence holder is required to obtain a wide
variety of permits for construction, water use, settlement relocation, communications
and chemicals, and to conduct activities related to the development of its feasibility
study, the plan to use the minerals deposit, the construction of the mine and mining.
Upon completion of the pre-mining period, the licence holder must demonstrate to the
MRAM that it has met its legal requirements.

iv Closure and remediation of mining projects


A licence holder is required to take preparatory measures pursuant to the regulations
of the State Professional Inspection Agency (‘the Agency’) prior to closure of a mine.
At least one year prior to a mine closure, the licence holder must inform the Agency by

23 Article 18.1 of the Minerals Law 2006.


24 Law on Special Protected Areas 1994.

106
Mongolia

official letter that the mine will be closed in whole or in part and that it will implement
the following measures:
a take all necessary measures to ensure safe use of the mine area for public purposes
and reclamation of the environment;
b take preventive measures if the mine claim is dangerous for public use; and
c remove all machinery, equipment and other property from the mining area except
as permitted by local administrative bodies or the Agency.

Licence holders must prepare a detailed map showing dangerous or potentially dangerous
areas created by mining operations by placing necessary warnings and markings in the
vicinity of the mining claim, and submit the map to the Agency and the local governor.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


The minerals law regime places various environmental obligations on exploration and
mining licence holders.
Licence holders are required to prepare an environmental protection plan and
environmental impact assessment (‘EIA’) to assess any potential adverse impacts, which
needs to be updated annually to ensure that pollution caused by exploration activities
does not exceed the amount allowable.
A licence holder is obliged to carry out activities providing for the safety of
citizens of the relevant soum or district, and the labour safety and hygiene of employees.
The Safety Regulation for Open-Pit Mining must be followed by all mining companies
operating open-pit mines in Mongolia.
The Law on Occupational Safety and Health 2008 provides the requirements
for safety and health that should be followed by all industries, including mining. If a
company’s activities are proven to have an adverse impact on the health and safety of its
employees, the Agency or other authorised officials may take steps to force the company
to remedy the breaches. If the company fails to do so, it may be ordered to wholly or
partly suspend business activities until the labour safety and sanitation requirements are
satisfied. Additionally, failing to comply with labour safety and sanitation regulations,
causing or concealing an industrial accident or failing to pay adequate compensation
for an industrial accident may result in the imposition of administrative fines. In
extreme cases, criminal sanctions may be imposed for violating the applicable labour law
provisions.

ii Environmental compliance
All exploration licence holders must prepare an environmental protection plan and
report annually to the MRAM on its compliance with the terms of these plans, and the
licence holder is required to pay 50 per cent of its yearly environmental reclamation
deposit to the relevant soum budget fund. In the event the mining licence holder does not

107
Mongolia

properly conduct reclamation activities, the Minerals Law allows the state to undertake
those activities from the yearly deposit.25
A licence holder may not commence prospecting and exploration operations
without first obtaining written approval from the relevant environmental agency or
commence mining operations without permission.26
All mining projects undertaken in Mongolia are required to conduct a detailed
EIA according to the standards set out in the Environmental Impact Assessment Law.
The detailed EIA, as approved by the Ministry in charge of environmental matters, must
be submitted to the mining commissioning committee prior to the start of commercial
production.
The Long Name Law attempts to prohibit mineral exploration or mining in river
basins and forested areas determined by the government. To date, the government has
listed 1,782 licences subject to review under this law; according to the terms of the law,
existing exploration and mining licences in those areas will be revoked and the licence
holders compensated.

iii Third-party rights


Mongolia is a party to the United Nations Declaration on the Rights of Indigenous
People.
Local governors and representative assemblies may veto an approval of an
exploration licence application27 if the exploration area overlaps grassland, herder or
agrarian owned or possessed land.
As required by the Minerals Law, mining companies must conclude community
development agreements with local authorities on local infrastructure development and
job creation. Also, local people have a right to be involved in community monitoring on
the licence holders’ environmental reclamation compliance.

iv Additional considerations
The uncertain nature of Mongolia’s democracy can complicate foreign investment
projects. The frequent replacement of key personnel at the top levels of Mongolia’s
government has also caused concern, with the changes often accompanied by nationalist
rhetoric and populist promises to secure more control over the country’s assets. Analysts
also complain about the weakness of Mongolia’s political parties and its poor regulatory
capacity.
Corruption may also prove to be a long-term problem. Transparency International
rated Mongolia 116th in its 2010 corruption perception index, up from 120th in 2009
but down from 102nd in 2008.
Information on Mongolian individuals is hard to obtain, making it difficult for
companies to understand the track record, reputation and liabilities of potential business

25 Article 38.1.8 of the Minerals Law 2006.


26 According to Article 35.4 of the Minerals Law, a mining licence holder may commence its
mining activities after it has been accepted by a commission appointed by the MRAM.
27 Article 19.4 of the Minerals Law 2006.

108
Mongolia

partners. Many domestic news outlets are quietly controlled by politicians who inevitably
have a particular agenda. Allegations of corruption against business people or politicians
often appear in print with no further mention anywhere in the public record. Those
interested have to dig deeper in order to determine which allegations of corruption are
grounded in fact and whether any such claims in the press resulted in legal sanctions.
Lines between the public and private sector also remain blurry, and conflicts of
interest are common. Complicating matters further, investigators in Mongolia cannot
rely on the official public record to identify ownership and control of locally registered
businesses. It is also common to find that company control is quietly exercised by
powerful individuals from Mongolia’s neighbours, Russia and China.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


Equipment and machinery are some of the main products imported in Mongolia and
there are no limitations on their import. According to the Custom Tariff Law 2008,
equipments, machinery, raw materials, appliances, petroleum and diesel fuel imported
in accordance with a product-sharing agreement in the oil sector with the government
are exempt from customs duty.28
In accordance with the government policy of encouraging an export-oriented
manufacturing economy, the mining industry is identified as a leading sector. The
Mongolian parliament adopted on 31 January 2008 the ‘Millennium Development
Goals-based Comprehensive National Development Strategy of Mongolia’, a long-term
development strategy paper that called for intensive development of the mining industry
and the exploitation of mineral deposits of strategic importance as one of the priority
areas.
The government has adopted several long-term programmes to search for and
develop promising mineral deposits, especially gold, silver, copper, coal and oil.29 Foreign
investment and direct participation in a wide range of mining-related industries are
actively encouraged, particularly in connection with the exploration, extraction and
processing of mineral resources. Mongolia’s national policies concerning its mineral
sector are continuously under review to ensure that Mongolia remains a favourable
destination for foreign mineral investment, and competitive with other nations.
The Law on Working Abroad and Receiving Workers and Specialists from Abroad
was adopted on 12 April 2001. The purpose of this law is to govern and protect the rights
of Mongolian citizens being sent abroad as well as foreign citizens being employed in
Mongolia.

28 Article 38.1.8 of the Custom Tariff Law 2008.


29 ‘Guiding Directions on the Development of Geology and Mining Sector of Mongolia’ was
approved by the government on 24 May 2002. The government issued a resolution on
the encouragement of gold extraction on 13 April 2009. The ‘gold’ programme has been
implemented since 1991.

109
Mongolia

It details the general working conditions of foreign citizens when working in


Mongolia, and states that the company must pay a fee equal to twice the minimum
monthly wage when hiring a foreign citizen. Further, a mineral licence holder must
employ citizens of Mongolia and only a maximum of 10 per cent of its employees may
be foreign citizens.30 If the number of foreign citizens employed exceeds 10 per cent, the
licence holder must pay 10 times the minimum monthly salary31 for each foreign citizen
each month.32 This payment is allocated to the budget of the relevant soum or district and
is disbursed to the educational and health sectors; relevant procedures will be approved
by the Citizens’ Representatives Khural of the relevant soum or district.

ii Sale, import and export of extracted or processed minerals


There are no restrictions on the sale, import and export of extracted or processed minerals
under Mongolian law. The government prioritises exporting of minerals as intermediate
products and with added value, and such exports are more profitable for the economy
their exporting as raw materials.33
Copper concentrate, molybdenum concentrate, and coal, gold, iron ore, fluorspar
and flotation concentrate were the main exported products in 2010.34 These mineral
products accounted for 94.8 per cent of the export revenue of the country.35

iii Foreign investment


There are no capital movement controls or exchange controls in Mongolia. Investors
and foreign residents are free to exchange the Mongolian tugrug against other currencies
at market rates at any time. Also, there are no controls, restrictions or limits on foreign
participation in the money, capital and forex markets.
Until the enactment of the SSFIL in May 2012, foreign investment in the minerals
sectors was not subject to prior government review and Mongolian law did not expressly
impose any notification or approval requirements upon offshore transactions affecting
strategic sectors of the economy.
According to the SSFIL, the mineral resources sector has been identified as a
strategic sector and when shareholding of a foreign investor in a business entity operating
in this sector exceeds 49 per cent and the amount of the investment exceeds 100 billion
tugrugs (approximately $71.5 million), the parliament must approve or refuse the
investment as submitted by the Cabinet. In other cases, the Cabinet determines whether
to grant a permit.

30 Article 43.1 of the Minerals Law 2006.


31 Minimum wage per month becomes 140,400 tugrugs, pursuant to the Resolution No. 01 of
the Tripartite National Committee of Labour and Social Consent, dated 5 April 2011.
32 Article 43.2 of the Minerals Law 2006.
33 A complex programme to develop mining and heavy industry in Mongolia in 2010.
34 MMRE, mining production statistic.
35 MRAM and the National Statistical Office.

110
Mongolia

Mongolia has signed and ratified bilateral investment treaties with 42 countries,
which specifically enjoin both signatories from expropriatory acts against private property
and investments.
In addition, both the Constitution and Mongolian laws recognise private property
rights and the rights associated with their use and specifically bar the government from
expropriating such assets.36 The government of Mongolia may expropriate any property
or assets on the basis of exclusive public need with due compensation and payment.
Further, according to the Foreign Investment Law, in the event of a request by an
investor intending to undertake an investment project worth at least $20 million or the
equivalent in Mongolian tugrugs in Mongolia, the government may enter into a stability
agreement with such investor as a legal guarantee of a stable environment in which to
conduct business.37

VI CHARGES

Mongolia’s Tax Code specifies several taxes that apply to mining companies: minerals
royalties, general taxes such as corporate income tax, VAT, excise and customs duty, as
well as tax on transport vehicles. Other taxes and charges include payment for purchasing
geological information as well as stamp duties.
Mongolia has entered double-taxation treaties with 35 countries, including
China, Russia, Canada and Korea.38 Foreign companies and investors are subject to the
same legal regime imposed on domestic companies regarding taxes and duties. On 31
July 2012, the government announced that draft laws are currently before parliament to
cancel Mongolia’s double-taxation treaties with Luxembourg, the Netherlands, Kuwait
and the United Arab Emirates.

i Royalties
The Minerals Law provides for a royalty at a base rate of 5 per cent on the sales value of
minerals with the exception of domestically sold coal and common construction minerals

36 Article 16.3 of the Constitution of Mongolia 1992; Article 8 of the Foreign Investment Law
1993.
37 By the agreement of 24 February 1973 between the Government of the Mongolian People’s
Republic (former name) and the Government of USSR, the Mongol-Soviet commercial
partnership ‘MongolRosTsvetMet’ and ‘Erdenet’ was established. This agreement was amended
in 1988, 1991 and 2003. According to the agreement, Mongolia has 51 per cent and Russia have
49 per cent in two joint ventures. In 1998 The Mongolian government, through the Minister
of Finance, made two stability agreements: Stability agreement between the Government of
Mongolia and ‘Tsairt Mineral’ Company (JV of Mongolian and Chinese companies) on 13
May 1998; Stability agreement between the government and ‘Boroo Gold’ Company (JV
of Mongolian and British companies). In 2009, the government entered into an investment
agreement with Turquoise Hill Resources, formerly known as Ivanhoe Mines.
38 Ministry of Foreign Affairs archive.

111
Mongolia

that are sold, shipped for sale or otherwise used. The royalty rate for domestically sold
coal and construction minerals is 2.5 per cent.39
The Windfall Profits Tax Law of 2006 imposed a 68 per cent tax on the profits
from gold and copper mining, which attracted widespread criticism of the government for
its failure to realise its commitment to create an open, predictable and fair environment
for foreign direct investment. The windfall profits tax officially ended for all copper
concentrate and gold products in 2011.
To compensate for lost windfall tax revenue, the parliament amended the mineral
royalty rates on 25 November 2010. The new regime imposes a sliding scale of royalties
on a variety of mineral and metal products, which depends on the market price of the
commodity quoted on certain exchanges and the amount of minerals or metal products
processed in Mongolia. The more value added to the products in Mongolia, the less the
increase in the royalty to be levied on those products.

ii Taxes
Business entities established under the laws of Mongolia and their subsidiaries and
representative offices, foreign business entities that have headquarters located in Mongolia
and foreign business entities earning income or making profits in Mongolia and their
representative offices are all subject to income taxation according to the Corporate
Income Tax Law of Mongolia (2006).40
According to the Corporate Income Tax Law, taxable income includes all income
from business activities and income from the renting out or the sale of properties. The
tax rate to be charged against taxable income depends on the total amount of taxable
income and the nature and source of such income: a total annual taxable income below
3 billion tugrugs is taxed at a rate of 10 per cent; and total annual taxable income
exceeding 3 billion tugrugs is taxed at a rate of 300 million tugrugs plus 25 per cent of
the part of income exceeding the threshold.41
The value added tax (‘VAT’) rate is 10 per cent. VAT is imposed on the following
goods, work, and services:
a all types of goods sold in the territory of Mongolia;
b all types of goods exported for the purpose of sale, consumption, or use outside
the territory of Mongolia;
c all types of goods imported for the purpose of sale, consumption, or use in the
territory of Mongolia; and
d work performed and services provided in the territory of Mongolia.42

iii Duties
Prior to 1 January 2011, Mongolia did not impose stamp duty on a direct or indirect
transfer of exploration and mining licences in the Law on Stamp Duties 1993 (Old).

39 Article 47.3 of the Minerals Law 2006.


40 Article 5.3 and 5.4 of the Corporate Income Tax Law 2006.
41 Article 17.1 of the Corporate Income Tax Law 2006.
42 Article 7.1 of the Value-Added Tax Law 2006.

112
Mongolia

Under the new Law on Stamp Duties 2010, the following types of services with regard
to mining tenements are charged stamp duty of between 50,000 and 7 million tugrugs:
a review of a new application to issue a minerals licence;
b a licence transfer;
c the extension of validity of a licence;
d a licence pledge application;
e a licence transfer in accordance with a licence pledge;
f surrender of a licence area;
g a dispute on licence area boundaries;
h reissuance of lost a licence certificate; and
i other application concerning licences.43

iv Other fees
Under the Minerals Law 2006, holders of mining rights are required to pay a licence fee
annually in respect of mineral exploration and mineral mining rights. Non-compliance
of payment of licence fees is subject to revocation of the mining rights.44

Exploration licence fees


Exploration licence fees are payable for each hectare within the exploration area at the
following rates:45
a $0.10 for the first year of the exploration licence term;
b $0.20 for the second year of such term;
c $0.30 for the third year of such term;
d $1 for each of the fourth to sixth years of such term; and
e $1.50 for each of the seventh to ninth years of such term.

Mining licence fees


An annual minerals mining licence fee is payable for each hectare included in the mining
area at $15. For coal and other common mineral resources, however, the fee is reduced
to $5 for each hectare. The mining licence fee for the first year is payable within 10 days
of approval of the licence application.46

Exploration expenditure
An exploration licence holder is required to undertake reconnaissance and exploratory
work each year with expenses no less than the amounts specified below per hectare of
the licence area: (1) $0.50 for each of the second and third years of the term of the
exploration licence; (2) $1 for each of the fourth to sixth years of such term; and (3)
$1.50 for each of the seventh to ninth years of such term.47

43 Article 25.1.5 of the Law on Stamp Duties 2010.


44 Article 56 and 56.1.2 of the Minerals Law 2006.
45 Article 32.2 of the Minerals Law 2006.
46 Article 32.3 of the Minerals Law 2006.
47 Article 33.1 of the Minerals Law 2006.

113
Mongolia

Deposit in environmental protection funds


In order to ensure the discharge of its responsibilities with respect to environmental
protection, a minerals licence holder must deposit funds equal to 50 per cent of its
environmental protection budget for any given year in a special bank account established
by the governor of the relevant soum or district.48 The failure to deposit such funds does
not affect the validity of the relevant minerals licence, but will entitle the government to
take action to recover the funds from the licence holder or to prohibit the licence holder
from continuing with its activities.

VII OUTLOOK AND TRENDS

According to the National Development Strategy, the mining industry looks to be a


key sector in the Mongolian economy over the next decade. The conversation to change
the Minerals Law 2006 has already started, with several public discussions having been
conducted in the past few years,49 and policymakers have agreed to renew the legal
environment for the mining sector in general. At this time, however, it is unclear when
the Minerals Law will be changed.

48 Article 38.1.8 of the Minerals Law 2006.


49 Tsakhia Elberdorj, President of Mongolia, has initiated a change of minerals law in 2011. A
working group was formed in 2011 and public discussions and research have been carried out.

114
Chapter 11

MOZAMBIQUE
João Afonso Fialho and Nuno Cabeçadas 1

I OVERVIEW

On the verge of celebrating 20 years of peace, Mozambique is currently one of Africa’s


rising stars and a hotspot for mineral resources projects. An anticipated GDP growth
rate of 7.5 per cent for 2012 and 8 per cent for 2013 places Mozambique in the top 10
fastest-growing economies in the world and makes it the third-fastest growing country
in Africa, second only to Niger and Angola.
The mining sector plays a pivotal role in Mozambique’s development strategy.
The country is already established as a leading coal player, with huge reserves being
exploited in the central province of Tete. It is expected that by 2020 Mozambique’s coal
production will reach a figure in the region of 100 million tonnes, making it one of the
largest coal producers in the world.
For the past few years, Mozambique has been developing a mineral promotion
programme, primarily aimed at enhancing its depleted foreign exchange reserves. As
a result, some major industry players from South Africa, Russia, Australia, India and
Brazil have acquired interests in mining areas throughout the country, underlying the
importance of the mining sector in Mozambique. In contrast with some of its African
neighbours, Mozambique has so far adopted a rather careful strategy towards Chinese
investment in the mining sector. China does have a presence in some mining ventures,
but it is yet to venture into the most important projects.
The main challenge – which is, at the same time, the biggest risk – that mining
projects will face during the next few years is infrastructure development. A recent
World Bank report concluded that Mozambique will need to invest an annual amount
of $1.7 billion during the next 10 years to match the level of infrastructure development

1 João Afonso Fialho is partner and Nuno Cabeçadas is a senior associate at Miranda Correia
Amendoeira & Associados.

115
Mozambique

of other African countries. Some projects are already under way to back and support
the export of the mining output. These projects boost not only the mining sector, but
the country’s economy as a whole, having a significant impact in terms of job creation
and GDP growth. The most visible face of the anchor effect of the mining industry
in Mozambique is the upgrading of the Nacala Corridor Railway, which will greatly
enhance Mozambique’s competitiveness in the region, by connecting the inland to the
port of Nacala, east Africa’s deepest port.

II LEGAL FRAMEWORK

The mining industry is primarily regulated at a national level by nationwide laws (enacted
by the parliament) and implementing regulations (approved by the government). The
Mozambican mining legal framework comprises the following main statutes:
a The Mining Law, enacted by Law 14/2002 of 26 June 2002 – the Mining Law,
together with the Mining Regulations, sets out the legal framework on the
various mineral titles provided for exploiting mineral resources, the formalities
for their concession and respective time periods, as well as the rights offered to
investors who wish to work in the mining sector. The Mining Law is currently
under revision and amendments are expected to be enacted within the next few
months.
b Mining Regulations, approved by Decree 62/2006 of 26 December 2006 – these
further the provisions of the Mining Law and contain the models of each of the
licences, as well as the standard structure of the reports to be issued by licence
holders throughout the term of the licences. Furthermore, it contains the validity
periods of the licences, the rules on renewal and assignment and the grounds for
their cancellation.
c Regulations on Health and Safety for Mineral Activities, enacted by means of
Decree 61/2006 of 26 December 2006 – these set out guidelines and rules for
ensuring the health and safety of employees engaged in mineral operations.
d Environmental Regulations for Mineral Activities, approved by Decree 26/2004
of 20 August 2004 – these establish a set of rules aimed at preventing and
mitigating the adverse environmental effects of mineral activities.
e The Basic Rules on Environmental Management for Mineral Activities, approved
by Ministerial Order 189/2006 of 14 December 2006 – these apply to Level
I activities for environmental licensing purposes, defined as low-scale mineral
activities carried out by individuals or cooperatives, as well as reconnaissance,
prospecting and exploration licences that do not involve mechanical instruments.
f Regulations on Trade of Mineral Products, approved by Decree 20/2011 of 1
June 2011 – these govern the trade of mineral products and the procedures for
obtaining the respective licences.
g Rules and Procedures governing the Registration of Technicians Eligible to Draft
the Prospecting and Exploration Reports and Activities Report under a Mining
Project, approved by Ministerial Order 92/2007 of 11 July – pursuant to this
statute, only the holders of a clearance card (issued by the National Directorate of
Mines) are allowed to sign off the mandatory reports provided for in the Mining
Regulations.

116
Mozambique

h The Mining Tax Law, enacted by Law 11/2007 of 27 June 2007 – this sets out
the tax regime and defines the relevant exemptions and tax rates of the mining
production tax.
i The Mining Tax Regulations, enacted by Decree 5/2008 of 9 April 2008 – these
set out the main rules for the assessment of mining production tax and surface
tax.
j Regulations on the Hiring of Expatriates for the Petroleum and Mining Sectors,
approved by Decree 63/2011 of 7 December 2011 – these contain specific rules
for the hiring of expatriate personnel for the petroleum and mining industries.

The main regulatory bodies of the mining industry are the Ministry of Mineral Resources
(‘MIREM’), which is essentially responsible for awarding mining rights, and the
National Directorate of Mines, an administrative entity within MIREM, which oversees
all administrative procedures associated with mineral activities.
As regards international treaties, Mozambique has entered into a bilateral
cooperation treaty with Angola in 2009 and is in the process of approving regulations aimed
at incorporating the Kimberley Process Certification Scheme as local law. Mozambique
is also applying to become a member of the Extractive Industries Transparency Initiative.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
All mineral resources in the soil, subsoil and water are the sole property of the state. This
is a fundamental principle contained in the Mozambican Constitution and replicated in
the Mining Law. Private prospection, exploration and mining of mineral resources can
only be carried out under licence or permits granted by the government.

ii Surface and mining rights


Pursuant to the current legislation, mineral rights are awarded to the interested party that
submits an application to MIREM. A tender process is only opened if more than one
entity submits an application in respect of the same area. It should be noted, though,
that the draft of the new Mining Law introduces a new awarding system for mineral
rights. Under the proposed new rules, MIREM may decide to open a tender process for
granting mineral rights over areas:
a that have been the object of geological studies and are believed to have mineral
potential;
b in which mining operations have been previously carried out; and
c that have been declared as reserved for mineral activities.

If no tender process is opened, the awarding of mineral rights will be made on a first-
come, first-served basis.
There are five main types of mineral rights in Mozambique:
a reconnaissance licences;
b prospecting and exploration licences;
c mining concessions;

117
Mozambique

d mining certificates; and


e mining passes.

A reconnaissance licence permits a holder to survey an area on a non-exclusive basis;


a mining certificate enables a holder to carry out small-scale mining operations; and
a mining pass is issued to Mozambican nationals for unsophisticated, very small-scale
mining activities.
The most important and commonly awarded rights for medium and large-scale
operations are prospecting and exploration licences and mining concessions.
Prospecting and exploration licences permit the holders to access the licensed
areas and carry out all activities ancillary to prospecting and exploration, such as erecting
temporary structures and removing or selling samples and specimens. A prospecting
and exploration licence is exclusive to its holder, is initially valid for five years and may
be extended for up to five further years, after which time a new licence must be sought
or the licence converted into another type of licence – typically, a mining concession.
Prospecting and exploration licences may cover an area of up to 25,000 hectares, which
can be extended by submitting an application request to MIREM setting out the reasons
justifying the extension of the area. Holders of prospecting and exploration licences must
submit annual reports summarising the previous year’s activities and expenditure as well
as a work programme and budget details for the forthcoming year.
Mining concessions permit the holder to extract minerals from the licensed
area and carry out all activities ancillary to extraction, such as erecting structures and
selling the minerals. A mining concession is exclusive to its holder, is initially valid for
up to 25 years and may be extended for up to 25 further years. Mining concessions are
awarded in respect of the area necessary to carry out the operations and are extendable
on application to MIREM. In order to obtain a mining concession, a nominal fee
must be paid and certain information must be provided to MIREM, including a tax
clearance certificate, an economic feasibility study (including a mining production plan)
and details of the applicant’s technical expertise and financial resources to proceed with
extraction (including the experience of personnel in managing the proposed operations).
The mining production plan must include details of the ore deposit, mine site design, the
operations schedule, expected dates for commencement of development and commercial
production as well as environmental, health and safety plans.
It is also important to note that the holder of a mineral title may enter into a
mining contract with the government. There is no objective criteria set out as to when
a mining contract should be entered into but they are often used by the government for
large-scale mining projects. A mining contract can provide for modifications, variations
or exemptions from the various legislative requirements, taxes, custom duties, royalty
payments and expatriate hiring quotas.
As a rule, any Mozambican or foreign individual or corporate entity with legal
capacity is entitled to hold mineral titles, regardless of the nationality of its shareholders,
provided that the applicant provides evidence of technical expertise and financial resources
to undergo mineral operations. There are, however, three restrictions to foreign parties:
a mining certificates and mining passes may only be awarded to Mozambican
individuals;

118
Mozambique

b mining concessions may only be awarded to companies incorporated under the


laws of Mozambique, even though said companies may be 100 per cent held by
foreigners;
c mineral products trading licences (outside the scope of a mining concession) may
only be granted to Mozambican nationals.

At present, no further restrictions are set out in the law – currently, the mining framework
does not provide for any obligation of engaging the state or a domestic partner in mining
ventures. Nonetheless, the Law on Public Private Partnerships, Large Scale Projects and
Enterprise Concessions, approved by Law 15/2011 of 10 August 2011 sets out that a
participation right in mineral ventures – between 5 per cent and 20 per cent – must be
reserved to the state or to Mozambican nationals or entities.
As to the protection of mineral rights, it must be stressed that Mozambique has
an independent judicial system and observes the principles of the rule of law and due
process. Mineral right protection and enforcement can be made through the local courts,
although specific knowledge of technical mining issues is not always present. Litigation
in Mozambican courts tends to be an expensive and time-consuming exercise.
One possible alternative to local judicial courts is international arbitration.
Mozambique is a party to the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards of 1958 (‘the New York Convention’), having deposited its instrument
of accession with the Secretary-General of the United Nations on 10 June 1998. As
permitted by the New York Convention, when it acceded thereto Mozambique declared
that it would apply the Convention to the recognition and enforcement of awards made
only in the territory of another contracting state on the basis of reciprocity. Therefore, only
arbitral awards made in contracting states benefit from the more favourable recognition
and enforcement regime provided for in the New York Convention. Awards made in
non-contracting states will have to undergo a (more burdensome) judicial process of
review and confirmation before they can be enforced.

iii Additional permits and licences


Additional permits and licences are required for the mining phase of the venture and
must be obtained by holders of mining concessions. Before initiating extraction activities
the holder of the Mining Concession must obtain an environmental licence (as further
detailed below) and the right to use and exploit the land – the so-called ‘DUAT’. Both
must be obtained within three years of the date of issue of the mining concession and
prior to the commencement of extraction activities. Development must commence
within two years and production within three years of the grant of the environmental
licence or the DUAT, whichever is later.
The issues around access to the land and award of the respective rights are a topic
of particular concern, as obtaining a DUAT is often a cumbersome and time-consuming
process. It is critical to note that pursuant to both the Mozambican Constitution and
the Land Law – approved by Law 19/97 of 1 October 1997 – all land belongs to the
Mozambican state and cannot be sold, traded, mortgaged, pledged or by any other

119
Mozambique

means disposed of – and this is why projects requiring the use of land are subject to the
prior award of a DUAT. The award of DUATs is made:
a by the provincial government, where the mining concession area does not exceed
1,000 hectares;
b by the Minister of Agriculture, for mining concession areas between 1,000 and
10,000 hectares; or
c by the Council of Ministers, where the mining concession area exceeds 10,000
hectares.

iv Closure and remediation of mining projects


Both the Mining Regulations and the Environmental Regulations for Mineral Activities
contain a general principle that holders of mineral titles shall be responsible (upon
closure of the mine) for restoring the site where mineral operations were carried out.
The mineral title holder is required to provide an annual financial bond for activities
classified as Level II or Level III (as further described below), which may take the form of
an insurance policy, bank guarantee or bank deposit. This bond is intended to meet the
decommissioning costs of the operations.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


Pursuant to the Regulations on Health and Safety for Mineral Activities, prior to
commencement of mineral operations, holders of mineral titles are required to prepare
and submit security, health and safety plans to MIREM and to the Ministry of Labour,
including (1) risk assessment, (2) potential sources of fire or explosion, (3) use and
maintenance of equipment, (4) working conditions, and (5) measures to prevent risks,
accidents and occupational diseases.

ii Environmental compliance
Mineral title holders are subject to several environment-related obligations. For the
purposes of determining the specific applicable environmental requirements, mineral
operations are classified into three different levels according to the scope, scale and
sophistication of the equipment to be used, as follows.

Level I
If the activities carried out are deemed to fall under Level I activities, the holder is merely
subject to the Basic Rules on Environmental Management for Mineral Activities, aimed
at mitigating environmental damages and socio-economic impacts arising from mineral
activities, by ensuring same are carried out through simple methods intended to prevent
air, soil and water pollution, flora and fauna damage, and to protect human health.

Level II
Mineral operations falling under Level II activities, including operations in quarries or
extraction and mining of other mineral resources for construction, as well as exploration
and mining activities involving mechanised equipment, are subject to the submission

120
Mozambique

of an environmental management plan and an emergency and risk situation control


programme.
The environmental management plan must comprise a report on the initial
conditions of the area, a monitoring programme, a rehabilitation programme and a
mine decommissioning and closure programme. It also usually includes provisions on
backfilling, levelling and other measures as may be required to restore the land to its
original form. Where approved and signed by the relevant authority, the environmental
management plan is deemed a statement of environmental liability with which the
holder is required to comply.

Level III
Operations falling under Level III activities – typically mining concessions – are subject
to stricter environmental requirements. In particular, prior to commencing operations
the holder of a mining concession needs to obtain an environmental licence issued
by the Ministry for Coordination of Environmental Affairs (‘MICOA’). To obtain an
environmental licence an environmental impact assessment (‘EIA’) is mandatory. The
EIA report that sets out the findings from the EIA will also contain an environmental
management programme, as well as an emergency and risk situation control programme.
The environmental management programme is required to cover a five-year period and
contain an environmental monitoring programme and a mine decommissioning and
closure programme. Therefore, as a rule, the environmental management plan also
includes provisions on backfilling, levelling or other measures as may be required to
restore the land to its original form.
The procedure for obtaining an environmental licence involves a public
consultation process with the local communities and the title holder must ensure
that those local communities are given the opportunity to participate in the decision-
making process. Before the environmental licence is issued, the EIA report must
be approved MICOA following a technical review conducted in coordination with
MIREM. The environmental licence is valid for the period of the corresponding
mining concession, but is subject to review every five years and may be issued
subject to certain recommendations and conditions. In addition, the Environmental
Regulations for Mineral Activities encourage stakeholders to enter into a memorandum
of understanding for a five-year period to provide for the parties’ agreement on the
methods and procedures for the management of environmental, biophysical, social
and economic and cultural matters during the project and on decommissioning.
Furthermore, each year an environmental management report containing the results
of the environmental monitoring, both at a social, economic, cultural and biophysical
level, must be submitted to MICOA.

iii Third-party rights


Local communities affected by the conduct of mineral operations are entitled to
compensation or to be resettled into a new area, or both. Any resettlement shall, to
the maximum extent possible, restore the cultural, social and economic conditions
of the affected communities. For this purpose, a resettlement plan must be prepared
by mineral titles holders in accordance with the provisions of the Resettlement

121
Mozambique

Regulations, approved by Decree 31/2012, of 8 August 2012. A specific procedure for


consultation of stakeholders is also provided for in the law. This consultation aims to
assess the local community’s opinion on the mining project, including the expectations
and compensation measures required to implement the project in the target area
(notably in terms of community development projects). The procedure applicable to
the hearing of the local communities is set forth in the Regulations on Consultation
of Local Communities, approved by means of Ministerial Diploma 158/2011 of 15
June 2011.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


As regards the import of equipment and machinery, Mozambican law provides for
the existence of several customs regimes, including import, temporary import, export,
temporary export, re-import, re-export, customs transit, transfer, customs warehousing
and industrial free zones.
As a rule, holders of mineral rights benefit from customs (and valued added
tax) exemptions on the import of machinery, equipment and other goods to be used in
mineral operations. When such exemption does not apply (e.g., where the equipment
imported is not for use in mineral operations), the general customs regime applies.
For purposes of computing the customs duties and other charges due on the import
of equipment, machinery and other goods, values stated in foreign currency shall be
converted into the local currency (meticais). Customs duties and other taxes are based
on the Customs Classification of the goods under the Customs Tariff Schedule. Pursuant
to Customs Tariff Schedule, classification is made in accordance with the General
Rules on Interpretation of the Harmonised System of Designation and Codification
of Goods. Also, the customs value on importation of goods is that set out in Article
VII of the General Agreement on Tariffs and Trade of 1994 (‘GATT’) (Mozambique
adopted the WTO Customs Valuation Agreement in 2002). Mozambican law also
states that, regardless of the method of valuation used, the following elements must
always be taken into account for purposes of assessing the customs value: (1) cost of
transportation of the goods until the customs station, (2) manoeuvering costs and (3)
insurance of the goods (i.e., the cost, insurance and freight (‘CIF’) value).
Special rules apply to the employment of expatriate personnel. The rendering of
work in Mozambique by foreigners must take into account both labour and immigration
issues. As a general rule, foreign employees are only entitled to work in Mozambique under
a Mozambican law employment contract entered into with a Mozambican employer –
either a Mozambican company or the Mozambican branch of a foreign company.
The employment contract is subject to a Ministry of Labour authorisation –
which is normally a more cumbersome process – or to a quota regime based on a mere
notification procedure. The statutory regime is primarily set out in the Regulations on
the Hiring of Expatriates for the Petroleum and Mining Sectors.
Pursuant to the aforementioned Regulations, an employer may have a certain
number of expatriate employees depending on the total number of employees at its
service. To this end, the concept of employee also includes directors and branch managers.

122
Mozambique

Under this quota regime, in a company with more than 100 employees, 5 per cent may
be expatriates, in a company with more than 10 and less than 100 employees, 8 per
cent may be expatriates and companies with up to 10 employees can only employ one
expatriate. Expatriates hired under the quota regime are subject only to a notification
procedure to the authorities.
The hiring of expatriates in a number that exceeds the relevant expatriate quota is
also possible, but is subject to a special authorisation issued by the Ministry of Labour.
The employer will have to submit an application stating its name, head office and business
sector, the identification of the expatriate in question, his or her job function and the
grounds on which the employer is requesting the authorisation.
Finally, it is important to note that mining contracts entered into between the
government and the holder of mineral rights may provide for the possibility of hiring
expatriates above the quotas established in the general regime. In this case, holders of
mineral titles and their subcontractors are merely required to notify the labour authorities
of the admittance of those expatriates, but they must first obtain the favourable opinion
of the National Directorate of Mines.

ii Sale, import and export of extracted or processed minerals


The Customs Clearance Regulations, enacted by means of Decree 34/2009 of 6 July
2009, expressly states that mineral products are subject to a special export customs
regime, as provided for in law. Pursuant to the Mining Law, holders of prospecting
and exploration licences are only allowed to export mineral samples for analysis and
testing abroad. Holders of a mining concession, mining certificate or mining permit may
market and process the minerals they produce in the area covered by the title.
The sale, import and export of minerals by entities that do not hold a mineral title
is subject to licensing by MIREM, as provided for in the Regulations on Trade of Mineral
Products. Licences to trade mineral products may only be awarded to Mozambican
nationals.

iii Foreign investment


The Mining Law contains several guarantees to investors in the Mozambican mining
sector, including the safety and legal protection of property over the goods and rights
within the context of the authorised (and implemented) mineral activities. The
principles of limitation of public expropriation and mandatory compensation in cases of
expropriation or confiscation are also provided for. Such guarantees – and any other tax
and customs regimes provided under Mozambican law – are, however, only available to
title holders who directly invest a minimum amount of $50,000. The value of the foreign
direct investment includes costs incurred in the conduct of mineral operations, duly
calculated and confirmed by a competent and recognised auditing firm.
The following may, inter alia, qualify as foreign direct investment:
a freely convertible currency or cash in the case of direct national investment;
b equipment and relevant accessories, materials and other imported goods; and
c the value paid in a freely convertible currency for the acquisition of shares in
a company established in Mozambique (that holds mineral rights) or for the
acquisition of the mineral title in the case of partial or total assignment.

123
Mozambique

Holders of mineral rights are required to register the mineral titles with the Central Bank
of Mozambique and, subsequently, provide evidence of the amounts of foreign direct
investment made in the course of the prospecting, exploration or mining for purposes of
securing the guaranties and other incentives to foreign investment.

VI CHARGES

Other than value added tax and customs duties – which apply throughout the entire life
cycle of a mining project – duties, royalties and taxes vary in accordance with the phase
of the mineral operations.
Holders of prospecting and exploration licences are required to pay surface tax of
a fixed amount per square kilometre of land referred to in the licence. Surface tax is levied
on an annual basis and is payable one month prior to the anniversary of the licence.
Holders of prospecting and exploration licences are also subject to corporate income tax
– a profit-based tax – at a 32 per cent rate on any profits they may generate (although
not likely to generate profits during the exploration phase, holders of prospecting
and exploration licences are subject to the rules applicable to the carry forward of
accumulated losses set out in the Corporate Income Tax Law (approved by Law 34/2007
of 31 December 2007) and in the Corporate Income Tax Regulations (enacted by means
of Decree 9/2008, of 16 April 2008).
Holders of mining concessions, in turn, are also required to pay surface tax of a fixed
amount per square kilometre of land referred to in the concession and are further liable to
pay a production tax (royalty) based on the value of the mineral extracted, as follows:
a diamonds – 10 per cent;
b precious metals (gold, plate and platinum) – 10 per cent;
c semi-precious stones – 6 per cent;
d base minerals – 5 per cent; and
e other mineral products – 3 per cent.

The value is calculated based on the price at which the previous consignment of mineral
was sold or, if no mineral has yet been sold, the market value of the mineral. Production
tax is payable at the end of the month during which the mineral was extracted.
Holders of mining concessions are also subject to corporate income tax at the
same 32 per cent rate.

VII OUTLOOK AND TRENDS

A revision of the Mining Law is currently under way and is expected to be concluded
within the next few months. Industry players have been given the opportunity to
comment on the draft in the context of a public consultation process that the government
decided to carry out.
The main goals that the legislative revision seeks to achieve are the development
of a national mining industry – at exploration or mining and services levels – and the
maximisation of the state’s gains in terms of taxation of deals involving the direct or

124
Mozambique

indirect assignment of mineral rights. This is expected to be translated into two new
fundamental sets of rules:
a a strict – some would say severe – local content regime; and
b a new change of control regime that will limit the use of deal structures falling
outside Mozambique’s tax jurisdiction.

The impact of these proposed changes on the country’s mining industry is uncertain.
What does seem to be certain is that Mozambique’s mining potential will continue to
attract the most important companies in the world and new key players are expected
to target the country as new areas for mineral activities are made available by the
government.

125
Chapter 12

NAMIBIA
Axel Stritter 1

I OVERVIEW

The Namibian government developed a minerals policy2 to contribute to the creation


of an environment that attracts both foreign and local investment in mining, and the
development of opportunities for the Namibian people to benefit from their country’s
mineral resources in line with the government’s policy on socio-economic upliftment.
In the foreword of the Minerals Policy of Namibia it is stated that: ‘The Government
of the Republic of Namibia is committed to the development of the Namibian mining
industry, as demonstrated in this Mineral Policy, within a free market environment.’ The
Namibian government recognises the significant contribution of the mining sector to
Namibia’s export earnings, public revenues and employment.
In 2011,3 the figures produced by the Central Bureau of Statistics for 2010 showed
that the mining industry directly accounted for 8.8 per cent of GDP (down from 10 per
cent in 2009 according to the Annual Review of the Chamber of Mines of Namibia),
with diamond mining contributing more than non-diamond mining. Mineral products,
excluding cut and polished diamonds, accounted for 54 per cent of Namibia’s total
merchandise exports. The mining sector contributed more to total fixed investment than
any other sector of the economy, including the government, accounting for just under
25 per cent of all fixed investments in Namibia.
It is also estimated that the exploration and mining businesses directly employ in
excess of 14,000 people, and taking into account the multiplier effect for each employee,
this is a significant figure considering Namibia’s total population of approximately

1 Axel Stritter is a partner at Engling, Stritter & Partners.


2 Minerals Policy of Namibia
3 Mark T Dawe, Mining Industry Review for 2011, 22 May 2012

126
Namibia

2.3 million. It was estimated that in 2004 every N$1 million increase in mining output
gave rise to a N$1,568 million increase in output elsewhere in the economy.4
On 21 July 2011, the Minister of Finance issued a press release indicating
proposed amendments to the tax laws of Namibia, which were reviewed and set out in a
further press release, issued on 17 August 2011. The Ministry of Finance stated that the
broad principles underlying the proposed amendments are:5
• Contribution of the tax system to incentivize domestic value addition to raw materials and
bring about an appreciable level of industrialization in the economy, particularly in the
natural resources sectors. This in turn is seen to have positive multiple effects on job creation;
• Contribution of the tax system to address equity and the skewness in the distribution of
wealth and social welfare;
• Deepening and diversifying the revenue base for the purpose of strengthening revenue
collection in an environment of increased trade liberalization and regional economic
integration and reduce revenue from the SACU pool;

When introducing these measures Government is taking into consideration the ability to pay by
the tax payer, national competitiveness and efficiency costs to the economy.

The aforementioned review of the proposed tax amendments resulted in the Chamber
of Mines of Namibia calling for a meeting of all industry representative bodies setting
up a Mining Tax Committee, which engaged the Ministry of Finance. In the Mining
Industry Review for 2011, the President of the Chamber of Mines of Namibia states
that he was ‘most encouraged by the open and consultative spirit with which the GRN
[the Government of Namibia] engaged this Chamber’, referring to the consultations
between the Ministry of Finance and the Chamber Tax Committee, which resulted in
the government revising its proposed tax amendments by desisting with its intention to
increase the income tax rate for mining companies and abolishing the value added tax
zero-rating on the export of raw minerals.
In a press release, it is stated that new policy developments would be ‘subjected
to thorough stakeholder consultation to ensure that efficiency costs to the economy and
impact on businesses remain reasonable’.6
The Cabinet at its fifth meeting in 2011 declared certain minerals as controlled
and high-value or strategic minerals and that the right to licences for strategic minerals
(uranium, gold, copper, coal, diamonds and rare earth metals) should only be issued to
state-owned companies, which may enter into joint ventures with interested parties for
exploration and development, but that existing exploration and mining licences would
not be affected. In respect of pending applications for exploration and mining licences,
it was stated that licence holders often seek capital funds in exchange for shareholdings

4 Insight Mining Brief, ‘Ten things everyone in Namibia should understand about the mining
industry’ by Robin Sherbourne, Insight Namibia cc, November 2011.
5 Ministry of Finance, press release, ‘Review of amendments to tax laws and the introduction of
an export levy’, 17 August 2011.
6 Ibid.

127
Namibia

from investors, in which regard it was indicated that conditions might be imposed in
terms of which the licence holders would be required: ‘to give the first rights of refusal of
shareholding to the GRN before they can approach other parties’. The media statement
concluded with a statement that to implement this Cabinet decision, a change in
legislation would be effected.7

i Economic empowerment
Article 23 of the Namibian Constitution prohibits discrimination, except under an act of
parliament expressly providing for the advancement of persons who have been socially,
economically or educationally disadvantaged by past discriminatory laws.
In December 2010, the Chamber of Mines officially presented its proposal
on empowerment in the form of a draft Mining Charter for Sustainable Broad Based
Transformation to the Prime Minister and the Minister of Mines and Energy.
On 19 October 2011, the Cabinet adopted the New Equitable Economic
Empowerment Framework (‘the NEEEF’).8 Legislation is envisaged to be implemented
as per the NEEEF, which does not have the force of law, but is a policy framework.
The NEEEF is based on voluntary business practice but government will use all the
legitimate market mechanisms at its disposal, in the form of procurement programmes
and licensing regimes, to promote transformation and empowerment. The NEEEF
stipulates that companies applying for licences would receive the NEEEF rating and
would be required to score a minimum of 10 points in three of the five empowerment
pillars. These three mandatory pillars would be ownership, management and control,
and skills development.
The Minister of Mines and Energy is entitled to grant mineral licences under
terms and conditions, in addition to those that constitute the terms and conditions that
apply to any mineral licence under the Minerals (Prospecting and Mining) Act of 1992,
and, in some instances in the past, imposed a condition stipulating that the applicant
allocate shares in the entity holding the licence to previously disadvantaged Namibians.
It was not stated what percentage of share ownership would be required to meet this
condition. Whether a condition of this nature can be imposed under the Minerals Act
has not been judicially considered, but this practice has not been followed since about
2010.
In the President’s Report of the Chamber of Mines of Namibia9 it is stated that
the chambers engaged the Prime Minister in respect of the NEEEF, who stated that the
position is flexible in respect of the requirement of ownership by previously disadvantaged
Namibians, on condition that the mining companies: ‘honestly embraced the NEEEF
principles and that the targets would eventually be met’.10

7 See also Section II.i of the Namibia Capital Markets chapter.


8 Government of the Republic of Namibia: Office of the Prime Minister, New Equitable
Economic Empowerment Framework (NEEEF), 19 October 2011.
9 Mining Industry Review for 2011.
10 See also ‘Economic Empowerment‘ in Section II.i of the Namibia Capital Markets chapter.

128
Namibia

ii Local beneficiation
The government intends to introduce an export levy on raw materials, thereby encouraging
local beneficiation. The Chamber of Mines proposed the establishment of a joint Value
Addition Committee to consider this further, to be equally represented by the Ministry
of Mines and Energy, Ministry of Finance and the Chamber of Mines. The President
of the Chamber of Mines stated11 that it is hoped that, on the recommendations of
this committee, an export levy would be introduced at rates ranging between zero and
2 per cent depending on the type of raw materials exported, ‘based on a jointly agreed
assessment of what can realistically be achieved in terms of downstream beneficiation
with each product taken on a case-by-case basis’.
The Minerals Act authorises the Minister of Mines and Energy to impose a
further royalty if the Minister is of the opinion that, inter alia, addition to the value
of the mineral in question is possible in Namibia. The Minister is obliged to afford a
mineral licence holder the opportunity to make representations in respect of an intended
imposition of such royalties prior to implementing same.

II LEGAL FRAMEWORK

The mining industry is mainly regulated in terms of the Minerals Act, which is
administered by the Ministry of Mines and Energy (‘the Minister’) who directs the
activities of the Ministry of Mines and Energy and carries out the functions assigned to
him or her by the Minerals Act; the Minister appoints the Mining Commissioner.
Within the Ministry of Mines and Energy, there exist the directorates of Mines,
Geological Survey, Diamond Affairs, Energy, and Administration and Finance. There is
also a Chief Inspector of Mines and a Diamond Commissioner.
Important further Ministries include the Ministry of Environment and Tourism
(concerning compliance with environmental clearances for prospecting and mining
projects), the Ministry of Finance, the Ministry of Labour (labour relations including
dealings with trade unions and health and safety requirements), the Ministry of Health
and Social Services, and the Ministry of Agriculture, Water & Forestry.
With respect to mining for nuclear fuel minerals, the Atomic Energy Board and
the National Radiation Protection Authority are of relevance.
The main legislation, other than the Minerals Act, concerning mining includes:
a the Constitution of the Republic of Namibia (1990);
b the Diamond Act 13 of 1999;
c the Minerals Development Fund of Namibia Act of 1996 (Act 19 of 1996); and
d the Minerals Policy of Namibia.

The Namibian Stock Exchange (‘the NSX’) has adopted the South African Code for the
Reporting of Exploration Results (‘SAMREC’), which sets out the minimum standards,
recommendations and guidelines for public reporting of exploration results, mineral
resources and mineral reserves in South Africa. The NSX has accepted this code as best

11 Ibid.

129
Namibia

practice at present, but would also accept the JORC and National 43-101 competent
persons reports from Australia and Canada.
In relation to prospecting operations, the holders of mining licences and
prospecting licences are required to keep proper records of, and submit to the Mining
Commissioner, quarterly returns in respect of exclusive prospecting licences, and
biannual reports, in respect of mining licences, concerning inter alia:
a the nature, location and results of all photogeological studies, imaging, geological
mapping, geochemical sampling, geophysical surveying, drilling, pitting and
trenching, sampling and bulk sampling carried on in the course of prospecting
operations;
b the results of all analytical, metallurgical and mineralogical work;
c the interpretation and assessment of the studies, surveys and work referred to
under points (a) and (b) above; and
d the nature, mass or volume and value of any mineral or group of minerals found,
sold or otherwise disposed of and the full names and address of any person to
whom such minerals were sold or otherwise disposed of.

The holder of an exploration licence is further obliged to submit at the end of the
currency of such licence or together with an application for the renewal thereof or with
an application for a mining licence, a report containing the information contained in the
records referred to above and an estimate of the mineral reserves.
The holder of a mining licence would also have to, in respect of any mining
operations, submit monthly returns including:
a the nature, appraisal and results of all mining operations; and
b the nature and mass or volume and value of any mineral or group of minerals won
or mined, sold or otherwise disposed of and the full names and address of any
person to whom such minerals were sold or otherwise disposed of.

The holder of a mining licence is further obliged to submit an annual return containing
a summary of the information contained in the records referred to above, an estimate of
the remaining mineral reserves, and particulars of any proposed mining operations and
prospecting operations during the succeeding year, together with a forecast of the source
of such mining operations in terms of delineated reserves.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
Since the passing of the Minerals Act, the exercise of control over any right in relation to
the reconnaissance or prospecting for any mineral, and its mining and sale or disposal,
vests in the state rather than in the owners of the land.
These rights may be conferred to persons in terms of the Minerals Act in that
the Minister of Mines and Energy issues licences entitling the holders to carry out such
reconnaissance, prospecting or mining operations in the area to which such licence
relates and in respect of the mineral specified in the licence.

130
Namibia

The Minerals Act stipulates that prior written approval from the Minister of
Mines and Energy is required where any mineral licence is transferred, or interest in any
mineral licence is granted, ceded or assigned, or any person is joined as a joint holder.
The transfer of shares in a company that holds mineral licences does not require the
Minister’s approval. A company that is the holder of mineral licences is, however, obliged
to notify the Mining Commissioner of any change in the beneficial owner of more than
5 per cent of the shares issued by such company.
The Minister may grant such licences and renewals thereof on such terms and
conditions as may be determined by him or her, including conditions supplementary to
those contained in the Minerals Act.
Because the prospecting or mining licences confer rights that are more in the
nature of personal rights than real rights, the holder continues to hold the licences only
to the extent that it complies with the provisions of the Minerals Act. These rights can,
therefore, not simply be amended, sold or transferred at the instance of the holder. An
application for a new licence, the renewal thereof or a transfer of the licence requires prior
consent of the Minister, who exercises administrative discretion in granting or refusing
it. That discretion must be properly exercised, acting fairly and reasonably complying
with the requirements imposed by the Minerals Act, the common law and the Namibian
Constitution, failing which, an aggrieved person may seek redress before a competent
court or tribunal.
The Minerals Act provides for the following licences: reconnaissance licences
(‘RLs’), exclusive prospecting licences (‘EPLs’), mineral deposit retention licences
(‘MDRLs’), non-exclusive prospecting licences (‘NEPLs’), mining claims (‘MCs’), and
mining licences (‘MLs’). RLs, EPLs, MDRLs, and MLs are described as ‘mineral licences’.

ii Surface and mining rights


Acquiring and maintaining surface and mining rights
In order to acquire an EPL or an ML, a formal application is lodged with the Ministry
of Mines and Energy including:
a a plan of the area to which the application relates;
b a geological description of the area of land setting out the minerals applicable,
an estimate of the mineral reserves (in respect of an application for an ML), and
reports that the applicant was required to submit in respect of its prospecting
operations referred to above (in respect of an application for an ML);
c particulars of the condition of the environment;
d an estimate of the effects that the proposed operations or mining operations may
have on the environment and the proposed steps to be taken in order to minimise
or prevent any such effects;
e a technical report on the proposed development, mining and ore treatment
activities (in respect of an application for an ML), particulars of the technical and
financial resources of the applicant to carry on the operations, particulars of the
programme of the prospecting or mining operations, the estimated expenditure
in respect thereof, and a forecast of capital investment, operating cost, income
and profits and particulars of the means of financing (in respect of an application
for an ML).

131
Namibia

MLs are granted for the development and operation of a mine following the discovery
of a commercially viable deposit. Successful applicants must show they have sufficient
technical and financial capacity to develop and operate a mine.
An ML will not be granted:
a in respect of an area larger than an area that in the opinion of the Minister of
Mines and Energy would be required, having regard to the available minerals, to
carry on mining operations;
b if the holder is contravening any provisions of the Minerals Act, or any condition,
direction or order given under such act; or
c unless the Minister is on reasonable grounds satisfied that:
• minerals are contained that may be won or mined in the particular area,
and sold on a profitable basis;
• the proposed programme of mining operations to be carried out and the
expenditure to be expended will ensure efficient, beneficial and timely use
of the mineral in question, and adequate protection of the environment;
and
• the applicant has the technical and financial resources to carry out such
mining operations.

Refusal to grant an ML on any such grounds (except for that in point (a)) is only possible
if the Minister has given notice to the applicant of the grounds of refusal and then given
the holder an opportunity to make representations or required the applicant to remedy
such matter and the applicant failed to make representations or failed to remedy.

Surface rights or land access


The holder of a mineral licence may not exercise any rights conferred on such holder
under the Minerals Act in, or under, any private land12 until such time as (1) the licence
holder has entered into an agreement with the owner of such private land, containing
terms and conditions relating to the payment of compensation, (2) the owner has in
writing waived its right to such compensation, or (3) the licence holder has been granted
an ancillary right under the Minerals Act.
The Minerals Act does not require any kind of land use agreement to be concluded
in respect of state land. Further requirements do need to be adhered to where the mineral
licence area falls within communal land or conservancies.
The holder of an ML may not exercise any rights conferred upon it in, on or
under any town or village, or land comprising a proclaimed road without the prior
permission of the Minister of Mines and Energy, neither may it exercise those rights
within a horizontal distance of 100 metres of any spring, well, borehole, reservoir, dam,
waterworks, perennial stream or pan, building or structure of whatsoever nature, without
the prior permission of the owner of such land.
‘Game parks’, ‘nature reserves’, ‘conservancies’ and ‘wildlife councils’ are dealt
with under the Nature Conservation Ordinance No. 4 of 1975. The Minerals Act and

12 Land other than state land.

132
Namibia

the Nature Conservation Ordinance No. 4 of 1975 do not deal with the interaction
between the two pieces of legislation. The Minerals Act merely refers to ‘state land’; it is
not entirely certain whether the holder of a mining licence within a ‘park’ requires any
kind of authorisation from the Minister of Environment and Tourism in respect of its
mining operations or to erect accessory works.
If a mineral licence is located in a game park or nature reserve, this would affect
the environmental approval process, and more stringent conditions would be imposed in
the environmental contract that the holder of a mineral licence is required to conclude
with the Ministry of Mines and Energy and the Ministry of Environment and Tourism.
It would also have an effect on the required environmental impact assessment (‘EIA’) and
management plan.
It is a condition of every mineral licence that the holder thereof is obliged to
exercise any of its rights reasonably and in such a manner that the rights and interests
of the owner of any land are not adversely affected, except to the extent to which such
owner is compensated.

Mining rights granted subject to conditions


A holder of an ML is entitled to carry on mining operations in the area to which such
licence relates and in respect of the mineral specified in the licence, to carry on in such
mining area any prospecting operations in relation to any mineral or group of minerals,
and to remove any mineral other than a controlled mineral (‘controlled minerals’ include
any mineral that is specified in the nuclear fuel minerals group) for any purpose other
than sale or disposal.
With prior permission from the Mining Commissioner, the holder of an ML
is also entitled to remove any mineral that is not a controlled mineral for any purpose,
including sale or disposal, and carry on such other operations, including the erection or
construction of accessory works, as may reasonably be necessary for, or in connection
with, its mining operations or the sale or disposal of minerals.
The Minister may grant an ML, or the renewal of an ML, on such terms and
conditions as may be determined by him or her, including conditions supplementary to
those contained in the Minerals Act.
Under the Minerals Act, in addition to any term contained in an ML, the holder
must:
a in the employment of employees, give preference to Namibian citizens;
b carry out training programmes;
c make use of products or equipment manufactured or produced in Namibia but
with due regard to the need of ensuring technical and economic efficiency; and
d prepare an EIA for the approval of the Mining Commissioner and an environmental
management plan (‘EMP’).

Duration and validity


A mining licence can be issued for up to 25 years or any shorter period that the Minister
of Mines and Energy feels represents the estimated life of the mine. A licence may be
renewed for further periods, not exceeding 15 years at a time that, in the opinion of the
Minister, represents the estimated remaining life of the mine.

133
Namibia

The Minister may not refuse to grant a renewal of an ML if the holder has complied
with its terms and conditions, and the proposed programme of mining operations. In
addition, the licence holder would also have to have expended the required amount in
respect of such operations.
The Minister must also be satisfied, on reasonable grounds, with the proposed
programme of mining operations or expenditure for such operations, and that the person
concerned has the technical and financial resources to carry out such mining operations.
A renewal of a mining licence would only be granted if the Minister of Mines and
Energy is satisfied that the mineral to which the licence relates can still be won or mined
and sold on a profitable basis; the Minister must also be satisfied with the proposed
mining operations and expenditure to be carried out or expended during the renewal
period.
An exclusive prospecting licence is valid for no more than three years, as may be
determined by the Minister at the time of granting the licence, and may be renewed
for further periods of no longer than two years, and may not be renewed on more than
two occasions, unless the Minister deems it desirable. The Minister must, on reasonable
grounds, be satisfied with the manner in which the programme of prospecting operations
have been carried on, or the expenditure in respect of such operations.
The prospecting area would be reduced to 75 per cent of the area of the original
licence, and 50 per cent in respect of the second and subsequent renewals unless approval
is granted by the Minister for a larger area.
The Minister may not summarily refuse a renewal application on the grounds that
the holder has contravened or failed to comply with any provision of the Minerals Act or
any term and condition of such licence. The Minister must inform the holder by notice
of his or her intention to refuse the application for renewal, setting out the particulars
of such contravention or failure, and requiring the holder to make representations to
the Minister in relation to such failure or to remedy such contravention or failure on or
before the date specified in such notice, and the holder fails to remedy such contravention
or failed to make representations.
In accordance with the Minerals Act, a mineral licence will not expire during the
period in which the application for its renewal is being considered.

Protection of mining rights


The holder of a licence may only hold the licence to the extent that it complies with the
provisions of the Minerals Act.
When it is reasonably necessary for the holder of a mineral licence, a non-
exclusive prospecting licence or mining claim to obtain a right to enter land in order
to carry on operations authorised by its licence on such land,13 but the owner of the
land in question refuses to grant such right, or demands terms and conditions that
are unreasonable, the holder may apply in writing to the Minerals Ancillary Rights
Commission, which is established in terms of the Minerals Act to grant any such right
to the holders of the said licences.

13 Including the right to erect or construct accessory works, and to do anything else in order to
exercise any right conferred upon it by such licence.

134
Namibia

There are no particular restrictions on the surface or mining rights that may be
acquired by foreign parties.

iii Additional permits and licences


Reference is made to authorisations that are required to be obtained in terms of
environmental and health and safety laws, and which are referred to above and below.

iv Closure and remediation of mining projects


The Minerals Policy of Namibia stipulates that before a mining licence is granted, a final
mine closure plan must exist, together with a funding mechanism that describes how
the company will deal with matters such as groundwater pollution, soil degradation,
wind pollution and infrastructure, which would be achieved by ensuring compliance
of approved environmental management plan contracts. The government is also
investigating the establishment of mandatory mechanisms for the funding of final mine
closure plans (see below).
The Minerals Policy of Namibia stipulates that mineral development may only
commence in ‘protected areas’ (national parks and game reserves) – approximately 13.6
per cent of the land surface of Namibia – when rehabilitation is guaranteed.
The Minerals Act provides that if a mineral licence has been cancelled or has
expired, the Minister may direct the licence holder to take all such steps as may be
necessary to remedy, to the satisfaction of the Minister, any damage caused by any
prospecting operations and mining operations carried on by such holder to the surface
of and the environment in such area.
When mineral licences are issued, the licence holders are required to enter into
environmental contracts with the Ministry of Mines and Energy and the Ministry of
Environment and Tourism, which generally stipulate that the government reserves
the right to demand at any time a guarantee to restore the environment or mitigate
environmental damage, or itself undertake such measures, and recover the costs from the
holder and claim compensation. The licence holder is also obliged to ensure that sufficient
funds are available to affect appropriate rehabilitation of any environmental damage.
In terms of the regulations under the Environmental Management Act of
2007 (Act 7 of 2007), a draft management plan must accompany a licence holder’s
application for an environmental clearance certificate (‘ECC’), which must include, as
far as is reasonably practicable, measures to rehabilitate the environment to its natural or
predetermined state, or to a land use that conforms to the generally accepted principle
of sustainable development.
In the strategic environmental assessment (‘SEA’) of the ‘central Namib Uranium
Rush’,14 it was recommended that uranium mines must be closed and mine sites stabilised

14 In 2009, the Southern African Institute for Environmental Assessment (‘SAIEA’) was contracted
by the government of Namibia, with funding provided by the German government through
the German-Namibian Technical Cooperation Project of the German Federal Institute for
Geosciences and Natural Resources (‘BGR’) and the Geological Survey of Namibia (‘GSN’), to
undertake an SEA for the ‘central Namib Uranium Rush’.

135
Namibia

and rehabilitated in a way that corresponds to established international and national


procedures and standards for mine closure and mine site stabilisation and rehabilitation,
as per international IAEA guidelines and reflected in Namibian regulations.
The Chamber of Mines of Namibia has now drafted the ‘Namibian Mine
Closure Framework’ (‘the NMCF’) for the purpose of providing a guidance for the
Namibian mining industry in how to develop relevant, practical and cost-effective
closure plans and to lay down minimum requirements for the members of the Chamber
bound by its code of conduct and ethics.15 The NMCF was developed by the Chamber’s
Rehabilitation and Closure Committee based on the Australian Strategic Framework
for Mine Closure.16

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


The pillars of empowerment provided for in the NEEEF include human resources and
skills development, entrepreneurship development and community investment.17
The following legislation is also considered relevant to environmental and health
and safety considerations:
a the Environmental Management Act of 2007 (Act 7 of 2007) (‘EMA’);
b the Mines, the Works and Minerals Ordinance, No. 20 of 1968;
c Regulations promulgated under the previous Labour Act, No. 6 of 1992, relating
to the Health and Safety of employees at work;
d the Atmospheric Pollution Prevention Ordinance, No. 11 of 1976;
e the Hazardous Substances Ordinance, No. 14 of 1974;
f the Nature Conservation Ordinance, No. 4 of 1975;
g the Environment Investment Fund of Namibia Act 2001 (Act No. 13 of 2001);
h the Forestry Act No. 27 of 2004;
i the National Heritage Act 2004 (Act No. 27 of 2004);
j the Atomic Energy and Radiation Protection Act, No. 5 of 2005;
k the Water Act 54 of 1956;
l the Water Resources Management Act, No. 24 of 2004 (yet to come into
operation);
m the Pollution Control and Waste Management Bill (still in draft form);
n the Policy for Prospecting and Mining in Protected Areas and National
Monuments (1999);
o the Draft Management and Development Plan for Namib-Skeleton Coast
National Park (third draft: 28 January 2009); and
p the Policy for the Conservation of Biotic Diversity and Habitat Protection (1994).

15 The Chamber of Mines of Namibia, Namibian Mine Closure Framework – final report, May
2010.
16 ANZMEC/MCA 2000, Australian and New Zealand Minerals and Energy Council, Canberra,
and Minerals Council of Australia, Canberra.
17 See also the discussion of the NEEEF in the Namibia Capital Markets chapter.

136
Namibia

ii Environmental compliance
In addition to the terms and conditions of the mineral licence, the holder must prepare
for the approval of the Mining Commissioner:
a an EIA indicating the extent of any pollution of the environment before any
prospecting or mining operations are carried out and an estimate of any pollution
likely to be caused by such operations; and
b if any pollution is likely to be caused, an EMP indicating the proposed steps to
be taken in order to minimise or prevent any pollution of the environment in
consequence of any prospecting or mining operations.

In practice, the Minister has required EIAs for EPLs only in respect of protected areas
and where the EPLs are for certain minerals in respect of which the prospecting activities
have a material impact on the environment. The Environmental Management Act 2007
(Act No. 7 of 2007) provides that a person may not undertake a listed activity18 without
having obtained an ECC.
If a person (‘the proponent’) wishes to undertake a listed activity, the environmental
impact assessment procedure as provided for in the Environmental Impact Assessment
Regulations (‘the EIA Regulations’)19 is triggered.
When applying for an ECC the proponent must conduct an EIA, for which
the proponent must appoint an environmental assessment practitioner (‘EAP’). The
EAP is responsible for undertaking and facilitating the entire assessment process. The
application must be made on the prescribed form. After submitting the application form
to the environmental commissioner, the EAP, on behalf of the proponent:
a conducts an public participation process;
b opens and maintains a register of interested and affected parties (‘IAPs’);
c considers all objections and representations received from IAPs;
d prepares a scoping report;
e gives all registered IAPs an opportunity to comment on the scoping report; and
f submits the scoping report and environmental management plan to the
environmental commissioner.

Upon receipt of a scoping report, the environmental commissioner decides whether a


detailed assessment is required and notifies the proponent of such decision. In the event
that a detailed assessment is not required, the Environmental Commissioner issues the
ECC.
In the event that a detailed assessment is required, the EAP, on behalf of the
proponent, must undertake a detailed EIA.

18 The Minister of Mines and Energy has, in terms of the Environmental Management Act of
2007 (Act 7 of 2007) issued a notice listing activities which may not be undertaken without
an environmental clearance certificate which includes mining and quarrying activities, waste
management, water resource developments, hazardous substances treatment, storage and
handling, and the construction of infrastructure.
19 General Notice 30/2012 (Government Gazette 4878 of 6 February 2012).

137
Namibia

The EIA Regulations contain a number of requirements pertaining to the content


of a scoping report and a full EIA, as well as details regarding the public participation
process. Upon completion of the EIA, registered IAPs are once again afforded an
opportunity to be provided with a copy of the draft EIA and EMP in order to lodge
objections or make representations in the final document(s), which is then lodged with
the Environmental Commissioner for determination. In the event that the commissioner
is satisfied with the application, an ECC will be issued to the proponent.
It is a standard condition of a mineral licence that the licence holder enter into
an environmental contract with the Ministry of Environment and Tourism and the
Ministry of Mines and Energy (‘environmental contracts’).
An environmental contract requires a licence holder to undertake necessary and
adequate steps to ensure that environmental damage is reduced to a minimum and
prevented insofar as is practicable. Generally, environmental contracts stipulate that in
the event of the licence holder not carrying out its obligations, it would be liable for any
environmental damage. A further term that is generally stipulated is that on completion
or suspension of its operations, the holder is obliged to ensure that any effect on the
environment is minimised and that every reasonable and practicable step is undertaken
to ensure that the environment is left in a reasonable state. The licence holder would also
be obliged to submit regular environmental reports every six months.
The Nature Conservation Ordinance No. 4 of 1975 also makes provision for
the control of picking, removal and transportation of protected plants and permits or
licences in regard thereto, and deals with the protection of indigenous plants.
The Minister may, by regulation, under the Forestry Act No. 27 of 2004, declare
any plant or species of plant to be protected and impose conditions under which that
plant will be conserved, cultivated, used or destroyed by any person.

iii Third-party rights


All communal land areas vest in the state in trust for the benefit of the traditional
communities residing in those areas. Every person who wants to carry out any prospecting
or mining operations as contemplated in the Minerals Act on communal land must
notify, prior to the making of any application under the Minerals Act, the chief or
traditional authority of the community and the Communal Land Board, of its intention
to apply as aforementioned.

iv Additional considerations
In the SEA of the central Namib Uranium Rush, it is stated that, while the Policy on
Mining in Protected Areas allows mining and prospecting in Protected Areas, it is also
possible in terms of the Nature Conservation Ordinance No. 4 of 1975 for the Ministry
of Environment and Tourism and the Ministry of Mines and Energy to agree to withdraw
certain areas from mining.
One of the recommendations of this SEA was that certain biodiversity, tourism
and heritage hotspots be given ‘red flag’ status, which means that the area is by default
unavailable for mining or prospecting unless an extraordinary mineral deposit of national
importance is located in the area. This could limit the expansion of the exploration and

138
Namibia

mining operations in respect of certain areas. An EIA and EMP may have to take into
account the recommendations that were made in the SEA.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


As previously mentioned, it is a condition of any mineral licence that the holder of
such licence give preference to Namibian citizens who possess appropriate qualifications,
expertise and experience for the purposes of the operations to be carried on in terms of
such mineral licence; carry out training programmes in order to encourage and promote
the development of Namibian citizens employed by such holder; with due regard to the
need to ensure technical and economic efficiency, make use of products or equipment
manufactured or produced, and services available, within Namibia; and cooperate with
other persons involved in the mining industry in order to enable such citizens to develop
skills and technology to render services in the interest of that industry in Namibia.

Affirmative action
The Affirmative Action (Employment) Act, 1998 (Act No. 242 of 1998) requires an
employer with more than 25 employees to prepare and implement an affirmative action
plan, inter alia, specifying measures to be instituted in order to ensure that such persons
are equitably represented in the various positions of employment.
This act provides that the employer must be in possession of a valid affirmative
action compliance certificate if it wants to enter into contracts with or on behalf of the
state or any relevant employer or guarantee, or wants to receive any loan, licence, grant
or concession made, issued, granted or awarded by or on behalf of the state.
The basis of an affirmative action plan is that employers must give preferential
treatment to suitably qualified persons of designated groups (racially disadvantaged
persons, women or disabled persons).

Use of foreign labour


Foreign labourers require an employment permit issued in terms of the Immigration
Control Act 7 of 1993. The Immigration Selection Board will not grant an application
to issue an employment permit unless the expatriate satisfies the board that, inter alia,
the employment concerned is not, or is unlikely to be, employment in which a sufficient
number of persons are already engaged in Namibia.

Beneficiation
See Section I.ii, supra.

ii Sale, import and export of extracted or processed minerals


The permission of the Mining Commissioner is required to remove any mineral or group
of minerals, for purposes of sale or disposal, and to sell or otherwise dispose of any such
mineral or group of minerals. A specific permission is required in respect of nuclear fuel.
The Hazardous Substances Ordinance 14 of 1974 provides that no person may
sell any hazardous substance, declared as such, unless he is the holder of a licence issued

139
Namibia

by the Permanent Secretary of the Ministry of Health and Social Services, being a licence
to carry on business as a supplier of such substances.
Except when such activity is explicitly authorised by a licence, no person may
import into or export from Namibia; transport of any radiation source or nuclear material
requires notice to be given to the director-general of the National Radiation Protection
Authority, who must give authorisation to perform the act specified in a notification.

iii Foreign investment


Restrictions on movement of capital and currency exchange 20
The Foreign Investment Act No. 27 of 1990 provides that no enterprise, or part of an
undertaking carried on by an enterprise, or interest in or right over any property forming
part of such undertaking, may be expropriated except in accordance with the provisions
of Article 16(2) of the Namibian Constitution.
The state may expropriate property in the public interest subject to the payment
of just compensation, in accordance with requirements and procedures to be determined
by an Act of Parliament.
In terms of Exchange Control Regulations, no Namibian entity may open a
foreign banking account without the prior approval of the Bank of Namibia.
Local commercial banks, as authorised dealers of the Bank of Namibia, may open
single customer foreign currency accounts (‘CFC accounts’) for entities that are involved
in import or export transactions, as well as providers of services. The proceeds of exports
and services may be retained for a limited period whereafter such foreign currency must
be converted to Namibia dollars by the bank. The opening of CFC accounts for any
other purpose requires prior approval from the Bank of Namibia.

VI CHARGES

i Royalties
The Minerals Act makes provision for three different types of royalty.
The first is a royalty levied at a rate as may be determined by the Minister from
time to time: the Minister may impose different percentages of royalties on different
mineral licence holders, irrespective of the type of mineral, without a limitation.
On 1 April 2009, the following rates had been determined:

Percentage of market value of


Group of minerals Holder
minerals leviable as royalty
Precious metals 3% Any
Base and rare metals 3% Any
Semi-precious stones 2% Any

20 Reference is also made to ‘Exchange control requirements‘ in Section II.iii of the Namibia
Capital Markets chapter.

140
Namibia

Percentage of market value of


Group of minerals Holder
minerals leviable as royalty
3% Any
Nuclear fuel minerals
6% Rössing Uranium Mine Ltd
Industrial minerals 2% Any
Non-nuclear fuel minerals 2% Any

A further royalty to be imposed if the Minister is of the opinion that (1) addition to the
value of the mineral in question is possible in Namibia, (2) the minerals are sold at less
than their international market value, or (3) the fees, charges or levies deducted from the
selling price were not in conformity with the rates charged in international markets. The
Minister must afford a mineral licence holder an opportunity to make representations in
respect of an intended imposition of royalties prior to its imposition.
A third royalty, called a ‘windfall royalty’, may be levied if the Minister is of the
opinion that market prices have increased to such an extent that the operations have
become significantly more profitable than similar operations are in normal circumstances;
or new technology or other unforeseen circumstances have made operations significantly
more profitable.
This royalty may only be imposed if the Minister gives notice to the affected
licence holders of the intention to levy this royalty, and afforded them the opportunity
to make representations in respect of proposals relating to the investment of such profits
in new or improved operations or infrastructure.

ii Taxes
Income tax
Mining companies, other than diamond companies, are liable to pay 37.5 per cent
income tax. Diamond mining companies and diamond mining services companies are
required to pay 55 per cent. Natural oil, oil and gas extraction is dealt with separately
under the Petroleum Taxation Act 1991, and would pay 35 per cent plus additional
profits tax, and companies that are not in the mining industry pay 34 per cent income
tax.
Under the Income Tax Third Amendment Act, 2011, the definition of ‘gross
income’ has been amended to include:
Any amount received or accrued from another person as consideration or the open market value by
way of a sale, donation, expropriation, cession, grant or other alienation or transfer of ownership
of a mineral licence as defined in the Minerals (Prospecting and Mining) Act, 1992 (Act No. 33
of 1992), or right to mine minerals in Namibia, and includes a sale of shares in a company for a
licence or right to mine minerals in Namibia.

Income tax would thus be payable on the income that is earned from a sale as aforesaid.
The Namibian Receiver of Revenue has been asked to clarify the extent and meaning of
this provision, as it is not clear whether a subscription of shares would fall within the
ambit of this provision.

141
Namibia

Withholding tax on management services


A withholding (final) tax calculated at the rate of 25 per cent will be levied on all
entertainment, management or consultancy, or directors’ fees payable by a Namibian
resident to a non-resident person without a permanent establishment in Namibia.
Services rendered by the non-resident in Namibia or outside Namibia to the Namibian
resident will be subject to this tax.
This tax has been introduced in terms of the Income Tax Third Amendment Act
2011, and the Namibian Receiver of Revenue has been asked to clarify the effect of
double-taxation agreements with regard to this tax.

Withholding tax on dividends


A company that declares dividends to its non-resident shareholders is required to
withhold and pay a non-resident shareholder’s tax (‘NRST’) at the rate of 10 per cent, if
the foreign shareholder holds at least 25 per cent of the capital of the Namibian company,
and 20 per cent in all other cases, subject to treaty relief.

Value added tax


In terms of the Value-Added Tax Act 2000, VAT is levied at a standard rate of 15 per
cent on the value of a supply of goods or services in the course of furtherance of a
taxable activity carried on by that person in, or partly in, Namibia. The importation of
goods and services are also subject to VAT. Services imported and utilised or consumed
for the making of taxable supplies, however, are not subject to VAT. The Act contains a
list of the supplies of goods or services that are taxed at a zero rate, primarily regarding
exports, and certain goods are exempt from VAT on importation.

iii Other fees


Every mineral licence holder is obliged to exercise any of its rights reasonably and in such
a manner that the rights and interests of the owner of any land are not adversely affected,
except to the extent to which such owner is compensated.

VII OUTLOOK AND TRENDS

In its amended press release of 17 August 2011, the Ministry of Finance indicated
proposed amendments to the tax laws of Namibia. Other than those that have been
introduced in terms of the Income Tax Third Amendment Act 2011, these include the
intention to introduce an export levy at rates between zero and 2 per cent depending on
the type of raw materials exported calculated on the open market value of the export of
raw minerals.
The Ministry of Finance intends to levy transfer duty on the sale of shares in a
company or membership interest in a close corporation owning immoveable property.
These transactions would be subject to the same rates that are currently applicable when
natural persons or juristic persons acquire immoveable property.

142
Namibia

The current income tax rate of 37.5 per cent in respect of the non-diamond
sector may be amended in future so the rate operates in conjunction with a formula-
based surcharge with the intention of capturing additional mining revenue during more
prosperous economic periods.21

21 Ministry of Finance, press release, ‘Review of amendments to tax laws and the introduction of
an export levy’, 17 August 2011.

143
Chapter 13

NIGER
Daouda Samna Soumana 1

I OVERVIEW

Recent years have seen significant development within the Nigérien mining sector. For
more than 40 years, mining was mainly limited to uranium, which accounted for 72 per
cent of the exports out of Niger.
The diversification of the mining partnerships initiated in recent years by the
Republic of Niger has allowed new investors into this sector (due to the opening up of
de facto competition), prospecting for other resources including, gold, phosphates and
coal, and more recently oil and gas. This has led to the arrival of new South African, UK,
Canadian, Russian and Chinese investors.

II LEGAL FRAMEWORK

Mining activity is regulated by a national legal system in Niger, but supranational


regulation also applies.
The main national legal provision is Ordinance No. 2006-26 of 3 August 2006,
amending Ordinance No. 93-13 of 2 March 1993 on mining law (‘the Mining Law’), and
supplemented by Ordinance No. 93-48 of 5 November 1993. In addition, Act No. 2008-
30 of 3 July 2008 grants advantages as regards to investments in large mining projects.
The following laws also apply:
a Decree No. 2006-265-PRN of 18 April 2006 laying down the procedures for the
enforcement of mining law;
b Decree No. 009/MTP of 1969, No.69-13/MPTF of 14 January 1969 on explosive
substances; and
c Order No. 49/MTP/TM of 8 September 1970.

1 Daouda Samna Soumana is a partner at SCPA Mandela.

144
Niger

At the supranational level, the following West African Economic and Monetary Union
(‘WAEMU’) regulations are relevant:
a the Community Mining Code (Regulation No. 18/2003/CM WAEMU of 23
December 2003);
b Regulation No. 09/98/CM/UEMOA of 20 December 1998, relating to financial
relationships between WAEMU Member States and foreign countries; and
c the Regulation relating to the Community’s solidarity levy.

The provisions of the various OHADA2 Uniform Acts also apply.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
Under Article 2 of the Mining Law, natural mineral or fossil substance deposits contained
in subsoil or existing on the surface are property of the state of Niger and cannot be,
under the provisions of this Act, subject to any form of private ownership.

ii Surface and mining rights


Article 7 of the Mining Law sets out that any qualified persons (Niger or foreign nationals)
or legal entities – constituted as corporations under Nigérien or foreign law – are able to
prospect, search or to exploit mineral substances.
There are several types of mining licence: exploration licences, prospecting
permits, mining permits (small-scale or large-scale, together ‘operating permits’) or
artisanal mining licences.
The permit allows its holder, within its perimeter and to indefinite depth, the
exclusive right to explore and research the mineral substances for which the permit is
issued. The Minister for Mines will usually decide on any applications.
Applications should indicate:
a the mineral substances for which the permit is sought;
b a description of the defined boundary and the administrative districts concerned;
c the required duration of the licence;
d financial and technical resources of the applicant;
e the amount that the applicant is committed to investing;
f if the application is submitted by a legal person, a certified copy of the power of
attorney or memorandum of understanding;
g the location of the area for which the permit is requested, indicating the vertices
and the limits of the perimeter and geographical points that define them on a map
extract of a scale of 1:200,000;
h the general programme and the timing of the work that the applicant intends to
carry out during the period of the licence;
i the receipt for the payment of the right;
j the mining agreement entered into between the state and the applicant; and

2 Organisation for the Harmonisation of Business Law in Africa.

145
Niger

k a commitment to submit to the Director of Mines the programme of work for the
remainder of the current year and before 31 December of each year, the programme
of work for the next year, and the quarterly report of research carried out.

Upon receipt of an application, the Minister has three months to make a decision.
Exploration permits may be granted only for areas that are available, meaning
areas for which there is no prior mining title (but where there may be other authorisations
to prospect). The permit can be extended to cover other substances, but only under the
same conditions. Exploration permits last for three years and the area may not exceed
500 square kilometres in size. They are renewable under certain conditions.
An operating licence entitles its holders to exclusive rights of prospecting, research,
exploitation and the free disposal of mineral substances within the perimeter for which
it is issued. It is issued for a period of five years, renewable for the same periods until the
exhaustion of deposits. On the other hand, the large-scale mining permits are issued for
10 years and are renewable for five-year periods.
When an operating permit is acquired following the grant of an exploration
permit, as is usually the case, it should be entirely situated within the perimeter of the
exploration permit from which it is derived, but it can also in some cases cover partially
several exploration permits of the same holder if the deposit encompasses certain parts
of these permits.
The issuance of an operating permit necessarily results in the creation of a
company in accordance with the provisions of the Uniform Act, and in which the state
is awarded 10 per cent of the capital assets of the operating company.
Exploration permits and operating licences are both transferable, but as a result of
the provisions of the Mining Law and Article 29 of the sample mining agreement, even
indirect assignment of rights or obligations of a mining title is subject to the approval of
the Minister for Mines. In practice, however, as part of their assignment operations, the
mining title holders often flout such a requirement, especially as regards such indirect
transfers as a change of control where shares are transferred among parent companies
whose registered offices are outside Niger. The state of Niger wants, by this provision, to
ensure that the mining title cannot be transferred without consent or knowledge. In the
course of practice, however, this provision is ineffective because no sanctions are foreseen
and often indirect transfer agreements evade the application of state law. Usually, the
parties to the assignment submit to other legislation.

iii Additional permits and licences


Generally, the use of public infrastructure is free, but the following must be taken into
account:
a The use of the Tahoua–Arlit road for mining operations requires the operating
company to participate in its maintenance (Article 18 of the sample mining
agreement). As such, companies adhere to the maintenance agreement of the
Tahoua–Arlit road, adopted by Decree No. 2002-019/PRN/MEH/AT dated 15
February 2002.

146
Niger

b Use of water reserves is permitted by the Ministry of Mines in conjunction


with the Ministry of Hydrology. The mining company submits an operating
programme for use of water reserves to the Minister of Mines for the benefit of
the Ministry of Hydrology; the use of reserved or unused waterfalls is authorised
by a joint order of the Minister of the Environment and the Minister of Mines
(Section 114 of the Mining Act).

Individual mining agreements generally deal with all of these issues.

iv Closure and remediation of mining projects


Under Section 59 of the Mining Law, mining titles established under this ordinance may
be removed by the authority that issued them for any of the following reasons:
a when activity is delayed or suspended for more than a year as regards exploration
and more than two years as concerning operations, or if it is severely restricted,
without any legitimate reason to the detriment of the public interest;
b when a feasibility study demonstrates the existence of a commercially exploitable
deposit within the perimeter of the exploration permit without being followed by
an application for an operating permits within one year;
c for infringement of any of the provisions of this legislation; or
d for any cause of revocation provided for in Section 60 of the Mining Law (dealing
with revocation of a licence.

Withdrawal of a licence can take place only after notice from the Minister of Mines,
taking effect after:
a one month for the prospecting permits;
b two months for the exploration licence and the artisanal mining authorisation;
c three months for the operating permits.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


Niger is quite aggressive in its protection of the environment and health with regard
to mining activities. Such legislation includes Act No. 2006-17 of 21 June 2006 on
nuclear safety and security and protection against the dangers of ionising radiation,
whose objective is to regulate the activities and practices related to the use of nuclear
materials and substances, as well as other sources of ionising radiation in all sectors.
It determines the means of reducing the risks resulting from this use and assuring
nuclear safety and security. Decree No. 2007-5321PRN II MSP of 13 December 2007
specifies the conditions whereby this law applies. One could also point to the following
orders:
a Law No. 98-56 of 29 December 1998 establishing a framework for environ­
mental management;

147
Niger

b Order No. 121MMH, which sets out the safety and hygiene rules to which
holdings of quarries and underground mines are subject, other than those
of solid mineral fuels and developed mining oil by survey, as well as their
dependencies;
c Decree No. 70-31MTPIM I U, which lays down the administrative rules to
which the relevant establishments are subject;
d Order No. 41 1MTPIT II U on the rules for safety and hygiene; and
e Order No. 2661 MSPILCE on the rules controlling authorisation, reporting and
practice of inspections involving ionising radiation sources.

In addition, relating to hygiene, the sanitation code resulting from Ordinance No.
93-13 of 2 March 1993 applies, establishing a hygiene code and other relevant
provisions.

ii Environmental compliance
The issuance of an operating permit is subject to possession of a certificate of environmental
compliance. The decision to grant an environmental compliance certificate is issued after
validation of the environmental review.
For any mining project, an environmental review is made by the Nigérien Review
Office, which verifies the compliance of the project with the applicable environmental
standards in Niger.

iii Third-party rights


Mining titles are granted always subject to the respect of third parties rights, meaning
that the owner of a mining right is bound to respect third parties. Consequently, it must
compensate, where necessary, the occupants or rural rights owners.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


Although generally, there are no licences or permissions specific to the import of project
equipment or materials (Section 14 of the WAEMU Regulation No. 18/2003/CM/
UEMOA on community adoption of a Mining Code and Article 106 of the Mining
Code), permission to import and use explosives must, however, be sought. The company
must also obtain an exemption certificate for exemption from duties and taxes provided
for in Articles 94 and 95 of the Mining Act.
The question of the use of foreign labour is governed by Article 20 of the sample
mining agreement, which states that incumbents and their subcontractors may hire
expatriate staff for their activities only if there are no qualified Nigérien personnel to
do the same job. The state facilitates the acquisition of permits of stay and permissions
required for expatriate staff (and their families), including entry and exit visa, work
permit and residence permit. The state reserves the right, however, to ban the entry or
residence of nationals from countries hostile to Niger or individuals whose presence
would likely compromise security or public order.

148
Niger

The conditions of entry and residence of aliens are governed by the Decree
87‑076/PCMS/MI/MAE/C of 18 June 1987, who (at risk of revocation of their visas):
a must be in a possession of a passport bearing a Nigérien visa (which can be
obtained from any Nigérien consulate abroad);
b have an international vaccination certificate; and
c guarantee their return by a return ticket or consignment to the Treasury or Bank
of a sufficient amount to buy the return ticket;

Foreigners over 15 years old must deposit a copy of the residence permit application
with the nearest police station to their residence. In terms of work, contracts of foreign
workers must be approved by the National Agency for the Promotion of Employment
(‘ANPE’).
It should be noted that the Mining Convention provides that companies must
commit to implementing a programme of training and local staff promotion so as to
replace the expatriate staff over the course of time.

ii Sale, import and export of extracted or processed minerals


Niger is bound to the Republic of Benin through the 1975 Cotonou Agreement treaty
for transit. This agreement follows the 1965 UNCTAD Convention on Transit Trade
of Land-Locked States. In addition to this agreement, Benin is a Member State and
signatory of the WAEMU Treaty.
Under the terms of Articles 28 et seq. of the WAEMU Community Mining Code,
during the course of the validity of operating mining titles, holders of mining titles
benefit from exemption of duties and taxes; the only exception is the static fee payable on
petroleum products. Accordingly, no tax or duty is charged on the export of ore.
In addition, Article 22.2.4 of the Mining Convention provides that ‘[w]hen
exported, products are exempted from all export taxes and duties for the entire period of
validity of mine titles’.
No permission is required for the transport and export of ore.

iii Foreign investment


This question is governed by Regulation No. 09/98/CM/UEMOA, the Mining Law and
the sample mining agreement.
The Mining Law provides in its revised Article 105 that the holder of a mining
title is subject to the regulation of foreign exchange of the Republic of Niger, and that
it may:
a have bank accounts in Niger for the repatriation of the proceeds from sales;
b collect all funds acquired or borrowed abroad, including the revenue from sales of
its production, in Niger.
c transfer the dividends and the capital invested products abroad, as well as the
product of the liquidation or the realisation of their assets; and
d pay foreign suppliers of goods and services required for the conduct of mining
operations.

149
Niger

The text goes on to state that minerals must be sold in US dollars and that the state
then guarantees to the foreign holder of the mining title free conversion of the national
currency into foreign currencies.
The sample mining agreement provides in Article 24.1 the following:
Subject to the foreign exchange regulations in force in Niger, the State shall give the company, the
mining company, their suppliers and their subcontractors, the following guarantees:
a) free conversion and transfer of funds intended for the payment of debts (principal and
interest) related to mining operations in Niger, to non-Nigérien creditors;
b) free conversion and transfer of net profits to be distributed to non-Nigérien shareholders, after
payment of all duties and taxes payable; and
c) free conversion and transfer of profits and proceeds from liquidation of assets, after payment
of all duties and taxes payable.

Section 24.2 provides the same facilities for expatriate staff of the company, the
operating company, their suppliers and subcontractors applicable to the savings on
wages, on the proceeds of the liquidation of investment in Niger, or on the sale of
personal property.
With regard to Regulation No. 09/98/CM/UEMOA, Article 7 requires the use
of an authorised intermediary (primary banks approved by the Minister of Finance)
for payments abroad, which are subject to a request for authorisation of submitted to
the Minister of Finance, with attached supporting documents showing details of the
operations.

VI CHARGES

Generally, the legislation allows exemptions to companies mining holders from tax and
customs (Articles 28 to 34 of the WAEMU Community Mining Code and the revised
Articles 92 and 93 of the Mining Act), but some rights, taxes and fees remain due during
the course of creation, operating and financing of the company. Such details are set out
in Article 22.2.1 of the Mining Convention, concerning:
a fixed fees in connection with the mining title, at rates fixed by the Budget Act;
b annual area tax, denominated in CFA francs per square kilometre;
c mining fees;
d registration, stamp and land registration fees;
e taxes on the classified factories;
f taxes on industrial and commercial profits;
g tax on income from stocks and shares;
h differential tax on motor vehicles (vignette) (except for mine and quarry machines,
and vehicles specifically used for mining operations);
i single tax on insurance contracts, payable on insurance contracted with companies
based in Niger;
j the statistical royalty (customs tax) payable on petroleum products intended for
the production of energy, extraction, transport and processing of the ore as well as
operation and maintenance of infrastructure, social and health; and

150
Niger

k the Community solidarity levy for tool collection, spare parts excluding those
intended for passenger vehicles and for any vehicle for private use, materials and
equipment intended to be integrated permanently in the works.

There is, however, also an exemption from duties and taxes on interest and other products
are used by the operating company for the purpose of equipment or its operation.
Some taxes and fees became due after a certain period of time, such as:
a value added tax (from the date of first production); and
b the contribution of the patents, the apprenticeship tax and the tax on profits
(from three years from the date of first production).

VII OUTLOOK AND TRENDS

A better system is required in this area in order to allow access to information to foreign
investors. Certainly, the diversification of investors would be wise, but it would also
involve risk when not operated under objective criteria and in the interests of the state.

151
Chapter 14

NIGERIA
Oladotun Alokolaro 1

I OVERVIEW

Organised mining in Nigeria commenced in 1903 with the mining of minerals such as
tantalite, columbite and coal. This growth in mining activities necessitated regulation, and
as such in 1946 the Minerals Ordinance was passed, followed by the Coal Ordinance of
1950.2 These enactments provided the basis for the establishment of various government
agencies such as the Nigerian Coal Corporation. The discovery of oil in 1958, and its
almost immediate economic benefit, in conjunction with the nationalisation policy and
the energy crisis of the 1970s, hastened the decline of mining activities in the solid
minerals sector, as the federal government’s attention shifted to the petroleum sector.
In recent times, the government, in its quest to diversify the nation’s economy
through, inter alia, the exploitation of solid minerals, created the Ministry of Solid
Mineral Development, which has now evolved into the Ministry of Mines and Steel
Development (‘the MMSD’). The Ministry has the responsibility of creating policy for
the exploration and exploitation of the numerous mineral resources in Nigeria. In order
to attract foreign direct investment to the solid minerals sector, the federal government
has sought to increase exploration activities through the creation of a National Geological
Survey Agency3 to conduct a comprehensive geophysical survey of the country. It also
created the Mining Cadastre Office (‘the MCO’) for the purposes of administering

1 Oladotun Alokolaro is a senior partner at Advocaat Law Practice.


2 Scoping study on the Nigerian Mining Sector, prepared by the Geological Survey of Denmark
and Greenland in association with the Bureau of Minerals and Petroleum (Greenland), Minre
Associates (Nigeria) and Meyetty Nigeria Limited (Nigeria) October 2011.
3 The Nigerian Geological Survey Agency (‘NGSA’) was established in July 2000 and commenced
operations in May 2003.

152
Nigeria

mining titles on an open transparent basis4 and enacted the Nigerian Minerals and
Mining Act of 2007.5 Finally, it introduced the National Mineral and Metals Policy in
20086 and the Minerals and Mining regulations in 2011.7
The continuation of democratic governance in Nigeria has ensured that perceived
political risk arising from political instability, which could hinder the flow of foreign
investment into the solid minerals sector, has been addressed and is no longer a primary
issue. The government has also intensified security efforts, particularly in the northern
region, where there is presently some unrest. In addition, to ensure the viability of mining
projects, the federal government continues to invest heavily in infrastructure projects
such as electricity, improved road networks, revamped rail networks and increased port
capacity in various parts of the country.
The occurrence of solid minerals is widespread across the entire breadth of
Nigeria, with evidence of 34 different minerals in various regions. Some of the known
minerals include the following: gold, coal, bitumen, iron ore, tantalite, columbite, lead,
zinc, sulphides, barytes, cassiterite, gemstones, talc, feldspar and marble.
It is important to understand, however, that the solid minerals sector in Nigeria
is dominated mainly by artisanal and small-scale mining. Large-scale operators, such
as cement manufacturers and construction companies, which do not focus primarily
on mining activities, operate quarries mainly for the production of limestone or stone
aggregates for their own consumption. Except for these two types of operator, much
of the mining in Nigeria is undertaken by smaller operators, with only a few mining
operators exploring metalliferous minerals (gold, lead, zinc and tantalite), industrial
minerals (gypsum, barite, diatomite and bentonite) and gemstones having been engaged
in mining on a larger scale, similar to that of the cement manufacturers and construction
companies.
Recent information from the Ministry of Mines and Steel Development indicates
that about 38 foreign investors holding 421 exploration licences have commenced mining
exploration activities in Nigeria. Some of these investments include investments made by
Australian stock exchange-listed companies such as Energio Limited, which is developing
the Agbaja Iron Ore Project, and Australian Mines Limited, which is developing gold
projects in the Yargarma and Kasele areas, located in the gold province of north-west
Nigeria. There are other notable agreements signifying intent to invest in Nigeria’s solid
minerals sector such as the recent memorandum of understanding executed between the
federal government and Glencore International plc for Glencore to invest $1 billion in

4 The MCO was formed in accordance with the provisions of the Nigerian Minerals and Mining
Act 2007. In 2009 it resumed the issuance of mineral titles after suspending same for the
purposes of a revalidation exercise.
5 The Minerals and Mining Act No. 20 2007 replaced the Minerals and Mining Act of 1999 and
is the principal legislation relating to the management of solid mineral resources in Nigeria.
6 The National Mineral and Metals Policy is a policy document of the MMSD, which provides
guidance on the management of mineral resources and metals.
7 The Minerals and Mining Regulations 2011 provide the guidelines for operations in the solid
minerals sector.

153
Nigeria

the Nigerian mining industry. In addition China-based Shenzhen Investment and some
private investors are looking at injecting approximately 7 billion naira into the Zamfara
Minerals Processing factory, in Zamfara State, northern Nigeria.

II LEGAL FRAMEWORK

The principal legislation for the regulation of the mining industry in Nigeria includes
the Minerals and Mining Act of 2007 and the Mineral and Mining Regulations 2011.
This legislation is administered by various government agencies such as the Ministry of
Mines and Steel Development, which has subsumed within it the Mines Inspectorate
Department (‘the MID’), the Mines Environmental Compliance Department
(‘the MECD’) and the MCO. Other important legislation that affects the mining
industry includes the Environmental Impact Assessment Act,8 the Land Use Act,9 the
Explosives Act,10 the Nuclear Safety and Radiation Protection Act,11 and the National
Environmental Standards and Regulations Enforcement Agency (Establishment) Act.12
These are administered by various government agencies and departments, including the
Federal Ministry of Environment, the Nigeria Nuclear Regulatory Agency and the state
government ministries of land and environment.
For the purposes of a legal classification system for reporting mineral resources
and mineral reserves, Nigeria does not have any specific legal code, although mining title
holders are expected to meet the prescribed reporting requirements as provided in the
Minerals and Mining Regulations 2011.13
With respect to international treaty obligations relating to the mining industry,
Nigeria is not a signatory to any mining specific treaty obligations. However, for the
purposes of protecting foreign investments generally, Nigeria is a signatory to several
international treaties, which also apply to the protection of investments in the mining
industry. These treaties include but are not limited to the Convention of the Recognition
and Enforcement of Foreign Arbitral awards, Multilateral Investment Guarantee Agency
(‘MIGA’) Convention and the Treaty on the International Centre for the Settlement
of Investment Disputes. Nigeria has also entered into various bilateral investment
agreements to facilitate the development of its mining sector, notably with countries
such as China, Turkey and South Korea.

8 The Environmental Impact Assessment Act No. 86 of 1992 CAP E12 Laws of the Federation
of Nigeria 2004.
9 The Land Use Act No. 6 1978 CAP L5 Laws of the Federation of Nigeria 2004.
10 The Explosives Act No. 34 1967 CAP E18 Laws of the Federation of Nigeria 2004.
11 The Nuclear Safety and Radiation Act No.19 1995 CAP N142 Laws of the Federation of
Nigeria 2004.
12 The National Environmental Standards and Regulation Enforcement Agency (Establishment)
Act No. 92 2007.
13 Schedule 5 of the Minerals and Mining Regulations 2011.

154
Nigeria

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
The ownership of all minerals occurring beneath or upon any land in Nigeria including
its continental shelf and territorial waters are vested in the federal government.14 Private
parties may lease mining rights through an application to the MCO. Mining titles are
usually granted on a priority basis but may be granted through competitive bidding. For
the granting of mining titles through competitive bidding, the Minister determines the
areas to be designated for the bidding exercise and these must be areas free of any existing
mineral titles.

ii Surface and mining rights


The following are the licences that a private party may acquire for the exploration and
exploitation of solid minerals in Nigeria:
a Reconnaissance permit, which allows, on a non-exclusive basis, reconnaissance
activities on all land within Nigeria that is available for mining operations. The
permit is issued and valid for a period of one year and may be renewed upon a
satisfactory application. Although the permit is granted for reconnaissance on
all land in Nigeria available for mining operations, it does not cover land that is
already the subject of a mining exploration licence, small-scale mining lease or
mining lease.
b Exploration licence, which permits the holder to exclusively conduct exploration
activities on land within the area specified on the licence. The area for which
an exploration licence can cover may not exceed an area measuring 200 square
kilometres. The licence is for a three-year term and is renewable for two consecutive
periods of two years each, culminating in a total licence period of seven years.
c Mining lease, which confers on the holder, inter alia, the exclusive occupation
and use of the licence area for the purposes of exploiting mineral resources. The
duration of a mining lease can either be as specified by the applicant or for 25
years, and may be renewed for consecutive 25-year periods subject to satisfactory
compliance with the minimum work obligations and any commitments that may
be specified by the MMSD.
d Small-scale mining leases, which allow the holder of the lease to conduct artisanal
mining operations that do not include the extensive and continued use of
explosives, toxic chemicals or agents. The lease is granted for a period of five years
and may be renewed for another five years.

The foregoing rights, once granted, are protected by the judicial system, which is
independent of both the executive and the legislative arms of government.
The applicants for mineral titles are required to demonstrate to the MCO evidence
of sufficient working capital to conduct mining operations. Upon the grant of the
mining title, holders are under an obligation to carry out exploration and or exploitation
of mining operations in a safe and skilful manner, taking all necessary precautions in

14 Section 1 of Minerals and Mining Act No 20 of 2007.

155
Nigeria

respect of safety, environmental degradation and pollution. They are to minimise and
manage any environmental impact resulting from the mining activities and are required
to rehabilitate and reclaim all disturbed land to its natural or predetermined state, or
such state as the laws and or regulations may prescribe. In this regard, an applicant
is required as part of the application for mining rights, to submit an environmental
protection and rehabilitation programme as part of its environmental impact assessment
report to the MECD. The environmental protection and rehabilitation programme must
provide for specific reclamation and rehabilitation actions, citing the estimated cost and
timetable for such rehabilitation. The programme must be approved by the MMSD
before the issuance of any mining title.

iii Additional permits and licences


In addition to the foregoing, quarry leases are granted for the quarrying of all quarriable
minerals such as asbestos, china clay, gypsum, marble, limestone, sand, stone and gravel.
A quarry lease is granted in respect of an area not exceeding 5 sq/km for a five-year period.
In addition, a water use permit may be granted. This is a right granted to a mining
title holder to obtain water for use in mining exploration and exploitation. The permit is
granted for the period for which the mining title is granted.

iv Closure and remediation of mining projects


A mineral title holder seeking to abandon or cease operations in a leased area is required
to provide notice to the MID and MECD detailing the intended abandonment plan
and the operations of the mine up until the notice for such abandonment or cessation
of operations was issued. Upon receipt of the notice, recommendations are made to the
Minister and, should the title holder still seek to abandon the mining site, it would be
required to seal and cover every mine shaft, make safe all tailings and water retention
areas, and demolish or seal all potentially hazardous buildings, structures, plant or
equipment.
Under mining laws and regulations, every mineral title holder is also required
to contribute to a fund (the Environmental Protection and Rehabilitation Fund) to
guarantee that the environmental obligations of mineral title holders, such as mine
closure and remediation, are met.15

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


There are a number of regulatory instruments in force that could have a direct impact on
mining projects and these include the following:
a the National Environmental (Mining and Processing of Coal Ores and Industrial
Minerals) Regulations 2009, which seek to minimise pollution from the mining
and processing of coal, ore and industrial minerals;

15 Section 121 of the Nigeria Minerals and Mining Act No. 20 2007.

156
Nigeria

b the National Environmental (Permitting and Licensing System) Regulations


2009, which seek to ensure the consistent application of environmental laws,
Regulations and Standards in all sectors of the economy, including the mining
industry and geographical regions; and
c the National Environmental (Access to Genetic Resources and Benefit Sharing)
Regulations 2009, which seek to make provisions for the conservation, monitoring
and control of activities that may have an impact on the ecosystem, exotic species
and genetic resources.

There are no specific health and safety regulations for the mining industry, although the
provisions of the Minerals and Mining Regulations of 2011 require the submission of
health and safety procedures by applicants for licences and permits.

ii Environmental compliance
Environmental and social considerations for mining operations in Nigeria are principally
governed by the Nigeria Minerals and Mining Act, the Minerals and Mining Regulations,
the National Environmental Impact Assessment Act,16 National Environmental (Mining
and Processing of Coal Ores and Industrial Minerals) Regulations 2009, the National
Environmental (Permitting and Licensing System) Regulations 2009, the National
Environmental (Noise Standards and Control) Regulations 2009 and the National
Environmental Standards and Regulations Agency (Establishment) Act. These laws
are administered by the MMSD, the Ministry of Environment and the National
Environmental Standards and Regulations Agency. The laws provides that, prior to
embarking on a mining project, a mining title holder must submit an environmental
impact assessment report to the Ministry of Environment for approval. Upon submission
of the report, the Ministry will seek the view of all public stakeholders as to the siting of the
mining project and what adverse effects if any, such a project would have on its immediate
environment. Where there is likely to be a significant impact on the environment with no
possibility of mitigation, the project may be referred for mediation or to a review panel,
which will be the final arbiter as to whether the project will be permitted. Subsequent
to the approval of the Ministry of Environment, the environmental impact assessment
must be submitted to the MECD before the commencement of mining operations or as
the case may be, upon application for renewal of mining titles.
The National Environmental (Mining and Processing of Coal Ores and Industrial
Minerals) Regulations 2009, National Environmental (Permitting and Licensing
System) Regulations 2009, and the National Environmental (Noise Standards and
Control) Regulations 2009 are aimed at minimising environmental pollution from
the mining and processing of coal, ores and industrial minerals. They prescribe the
permitting requirements for mine emissions and noise above specified levels and for the
discharge of effluent from a facility. These regulations are administered by the National
Environmental Standards and Regulations Enforcement Agency. The time frame for the

16 The Environmental Impact Assessment Act No. 86 1997 CAP E12 Laws of the Federation of
Nigeria 2004.

157
Nigeria

entire environmental review process for mining projects varies and may take up to one
year.

iii Third-party rights


Mining titles in Nigeria are not granted to cover areas that have been historically deemed
by communities as ‘sacred sites’. Where mining activities affect such sites, the mining
title holder may be liable to pay compensation to the community where such site lies.
Sacred sites are determined by the MCO on the advice of the Mineral Resources and
Environmental Committee. Lawful occupiers of any land that is the subject of a mining
title are entitled to fair compensation for any disturbance of their surface rights and for
any damage done to the land including damage to crops, trees and buildings. Failure to
pay such occupiers compensation may lead to the revocation of a mining title.

iv Additional considerations
The payment of compensation to occupiers of land is also applicable where the land is
compulsorily acquired for mining purposes. It has also been the case that the holder of a
mining title is required to provide security for the payment of compensation in the form
of a deposit or to reimburse the federal government for any compensation paid to any
state government or lawful occupier in respect of any land that is the subject of a mining
title. The lawful occupier of any land within an area subject to a mining lease retains
the right to graze livestock upon, and to cultivate the surface of, the land insofar as the
grazing or cultivation does not interfere with mining operations in the area.

V OPERATIONS, PROCESSING AND SALES OF MINERALS

i Processing and operations


All machinery and or equipment imported for mining activities are subject to inspection
at the respective port of entry. Such machinery and or equipment are, however, not
subject to payment of customs and import duties; to qualify for the exemption from
payment of customs and import duties, the MID must approve such machinery or
equipment prior to its importation.
Any mining title holder seeking to employ foreigners for its mining operations must
obtain an expatriate quota grant in accordance with the provisions of the Immigration
Act.17 This grant allows a company registered in Nigeria seeking to employ foreigners
to do so. Upon engagement, their terms of employment and welfare are regulated by
the Labour Act.18 The Act, in regulating employment relations and welfare, restricts the
employment of women and prevents children under the age of 16 from working in
underground mines.

17 The Immigration Act CAP 11 Laws of the Federation of Nigeria 2004.


18 Labour Act No. 21 1974 CAP L1 Laws of the Federation of Nigeria 2004.

158
Nigeria

ii Sale, import and export of extracted or processed minerals


Upon commencement of the production of minerals, the mining title holder is
unrestricted from processing and exporting minerals extracted subject to the payment
of the requisite royalties. For the purposes of being able to export the minerals, the
mining title holder must register with the Nigerian Export Promotion Council, obtain
an export clearance from the MMSD (evidence of payment of the requisite royalty must
be presented as a condition for its grant) and comply with any Nigeria Customs Service
requirements. The minerals to be exported must also be inspected by the officials of the
MID before export approval is granted.

iii Foreign investment


For the purposes of mining activities, foreign investors are required to import their
proposed operating funds through an authorised dealer in the autonomous foreign
exchange market established by the Foreign Exchange (Monitoring and Miscellaneous
Provisions) Act.19 The importation of operating funds by these means allows for the
unconditional repatriation to the home country of the title holder of dividends, profits
and interest earned on such funds imported into the country.
In conducting mining operations, the common business structure often adopted
by foreign investors seeking to operate in the mining sector in Nigeria is a limited liability
company, which must be registered in accordance with the provisions of the Companies
and Allied Matters Act, the principal law that regulates businesses in Nigeria.20 Owners
of such mining operations may be able to access financing for their mining operations on
a debt or equity basis, or both, from both local and international lenders.

VI CHARGES

i Royalties
Royalties payable on minerals obtained from mining activities are prescribed by the
Minerals and Mining Regulations of 2011.21 Where minerals are sought to be exported
solely for the purposes of analysis or experiment, the Minister may waive the payment
of royalty on such minerals. Furthermore, the Minister may also defer the payment of
royalties’ payable on minerals for any prescribed period.

ii Taxes
The mining taxation policy in Nigeria prescribes that mining companies are liable to a
corporate tax of 30 per cent on their taxable profits. The corporate tax and royalty rates is
no different for foreign and local mining companies and applies equally to both.

19 The Foreign Exchange (Monitoring and Miscellaneous Provisions) Act No. 17 1995 CAP F34
Laws of the Federation of Nigeria 2004.
20 Section 54 of the Companies and Allied Matters Act CAP 20 Laws of the Federation of Nigeria
2004.
21 Schedule 4 of the Minerals and Mining Regulations 2011.

159
Nigeria

iii Other fees


All holders of mining titles are required to pay annual service fees for their titles. In
particular, holders of mining leases are required to pay surface rent at a yearly rate as may
be prescribed by the Minister for their mining operations.

iv Incentives
Mining title holders are also entitled to various tax advantages and incentives and these
are as follows:
a capital allowance of 95 per cent of qualifying expenditure incurred on exploration,
development and processing;
b exemption from customs and import duties on approved plant and machinery,
equipment and accessories imported specifically and exclusively for mining
operations;
c a tax holiday for the first three years of operation, which may be extended for
another two years;
d annual indexation of the unclaimed balance of capital expenditure by 5 per cent;22
e an expatriate quota and resident permit in respect of expatriate quota personnel;
f personal remittance quota personnel for the transfer of external currency out of
Nigeria;
g free transfer of dividends or profits, payment in respect of servicing foreign loans
and foreign capital in the event of sale or liquidation of mining operations, in any
convertible currency;
h freedom from expropriation, nationalisation or acquisition by any government
unless such act is in the national interest or for a public purpose as provided
by law for which the investor shall be entitled to prompt, fair and adequate
compensation; and
i the right to a dispute settlement procedure under the UNCITRAL Rules.

VII OUTLOOK AND TRENDS

There have been various developments in the mining sector, which have all contributed
to the renewed vigour of investors. The federal government’s efforts to attract investors
to the sector has resulted in the following:
a increased exploration activities since the creation of the Nigerian Geological
Survey Agency;
b the creation of the MCO, which has allowed for the streamlining of mining titles;
c increased capacity of the Ministry of Mines and Steel Development, allowing for
effective execution of designated functions by the various departments; and
d the enactment of relevant laws and regulations such as the Minerals and Mining
Act, the Minerals and Mining Regulations, the National Minerals and Metals
Policy, National Environmental (Mining and Processing of Coal Ores and

22 This is only applicable to mines that commence production within five years of the enactment
of the Minerals and Mining Act.

160
Nigeria

Industrial Minerals) Regulations 2009, the National Environmental (Permitting


and Licensing System) Regulations 2009 and the National Environmental
(Noise Standards and Control) Regulations 2009, all of which are required to
regulate mineral exploration and exploitation on a transparent basis and minimise
environmental pollution arising from the mining activities.

161
Chapter 15

PERU
Giannina Assereto 1

I OVERVIEW

The current government has defined its policy for the mining sector as ‘modern mining
with social inclusion’, which involves the development of large and medium-scale
mining, as well as small-scale mining within a legal framework that promotes arm’s-
length national and foreign investments, respecting the environment and the people of
the areas affected by mining projects. This current policy also includes the regularisation
of ‘illegal mining’.
The most important current mining projects include BHP Tintaya, owned by
Xstrata Copper plc; Toquepala-Cuajone, owned by Grupo México; Antamina, also
owned by Xstrata Copper plc in association with BHP Billiton and Mitsubishi; Cerro
Verde, owned by Freeport Mac Moran Copper; Yanacocha owned by Buenaventura and
Newmont; Lagunas Norte and Pierina, owned by Barrick Gold Corp; and Cerro Corona
owned by Goldfields.2 In 2011, mining companies invested amounts that exceeded $6
billion in Peru, which greatly exceeds the $1 billion invested in 2000.3
Further, according to the Ministry of Energy and Mines (‘the MEM’), as of
August 2012, the estimated mining investment portfolio comprises 48 main projects,
which include exploration and expansion projects totalling around $53 billion.4

1 Giannina Assereto is a partner at Zuzunaga & Assereto Abogados.


2 Sources: Institutional Portal of the Ministry of Energy and Mines, August 2012: p. 18 of the
2011 Annual Report of the National Society of Mining, Oil and Energy of Peru.
3 Source: p. 18 of the 2011 Annual Report of the National Society of Mining, Oil and Energy of
Peru.
4 Source: Institutional Portal of the Ministry of Energy and Mines, August 2012; the MEM
indicates in its report of Projects Portfolio for 2012, that it is an estimated investment and that
the information has been obtained from the mining title holders.

162
Peru

The highest risk factor in Peru is the social one; the current government, in
application of Convention 169 of the ILO, has approved the Law of Prior Consultation
in order to inform communities in advance about the legislative or administrative
measures that could affect them, so projects can be executed in a manner facilitating
relations between companies, communities and the state.

II LEGAL FRAMEWORK

The exploitation of natural resources is regulated by the Political Constitution5 and


the Organic Law for the Sustainable Use of Natural Resources,6 which establish that
resources belong to the nation, and the state is sovereign in their exploitation.
These rules, together with the General Mining Law (‘the LGM’),7 the Framework
Law for the Growth of Private Investment and the law granting a Legal Stability Regime
to Foreign Investments, have since the 1990s created a legal framework that favours and
promotes private investment8 in balance with economic growth, population development
and conservation of natural resources and the environment, through the granting of
guarantees. Rules are enacted to establish a quick and transparent system in the granting
of concessions, and the state has relinquished such entrepreneurial work and transferred
it to the private sector.9
The rules include the LGM and its Regulations,10 which establish the main
obligations of mining holders, including the payment of the good-standing fee, the
compliance with the annual minimum production quota, submission of the annual
consolidated statement and the report of sustainable development activities.
The governing body in the sector is the MEM,11 which acts together with the
Ministry of the Environment (‘MINAM’)12 on issues of environmental audit, protected
natural areas, etc.; with the Ministry of Labour and Promotion of Employment (‘the
MTPE’) for the audit on occupational health and safety matters; and, with the Supervisory
Agency of Investment in Energy and Mining (‘OSINERGMIN’) regarding the audit of
mining infrastructure, facilities and operations. Notwithstanding the foregoing, mining

5 The Peruvian Constitution of 1993.


6 Law 26821.
7 Legislative Decree 109, amended by Legislative Decree 708, whose unique revised text was
approved by Supreme Decree No. 014-92-EM.
8 Legislative Decrees 757 and 662.
9 Source: Presentation of the Minister of Energy and Mines PDAC 2012.
10 Supreme Decree 03-94-EM, Decree 018-92-EM, Supreme Decree 055-2010-EM and Supreme
Decree 024-93-EM.
11 Law 29158, Organic Law of the Executive Agency; except in the case of small-scale mining and
non-industrial mining, where the bodies in charge are regional governments, according to their
jurisdiction.
12 For this purpose, MINAM has subordinate institutions, such as the Agency of Environmental
Assessment and Audit (‘OEFA’) and the National Service of Protected Natural Areas
(‘SERNANP’).

163
Peru

activity also requires other related permits and authorisations, for which it must apply to
other entities (see Section III.iii, infra).
On environmental matters, the legal framework applicable is the General Law
of the Environment;13 the Law of the Environmental Impact Assessment System (‘the
SEIA’)14 and its Regulations;15 the Environmental Regulations for Mining Exploration
Activities16 and the Regulations for Environmental Protection in Mining-Metallurgical
Activity.17
Finally, as previously mentioned, Peru has signed Convention 169 of the ILO and
approved the corresponding law.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
As previously noted, all natural resources within Peruvian territory constitute national
patrimony and minerals belong to the state; this property is non-transferable. Use
of mineral resources is granted to private parties through a system based on mining
concessions.
Mining activities include claiming, prospecting, exploring, exploiting, general
works, beneficiation, transportation of minerals and commercialisation. Except for
claiming, prospecting and commercialisation, a concession is needed in order to develop
any activities.
A mining concession grants its holder the right to develop mining activities in
compliance with certain requirements.
According to Peruvian legislation, mining concessions are real rights, different and
separate from the property (surface) where the concession is located. They are granted by
the Geological Mining and Metallurgical Institute (‘INGEMMET’) upon completion
of an administrative procedure where the technical and legal feasibility of the concession
is assessed. This procedure takes approximately 90 business days from the filing of the
application.18
In order to facilitate fulfilment of any obligations arising from the mining
concessions, they may be grouped into administrative and economic units (‘UEAs’). For
that purpose, concessions must be located within a five-kilometre radius, be of the same
type and nature, and have an approving resolution from INGEMMET.
The only restriction applicable in these cases is to foreigners, who cannot have
access, individually or through associations, to any concessions located within 50

13 Law 28611 and its amendments.


14 Law 27446, and its amendments.
15 Supreme Decree 019-2009-MINAM.
16 Supreme Decree 020-2008-EM.
17 Supreme Decree 016-93-EM, and its amendments.
18 Supreme Decree 018-92-EM and its amendments.

164
Peru

kilometres of the Peruvian border, except where specific exemptions are granted by the
government.19
According to Peruvian regulations it is not obligatory to register mining
concessions in the Public Property Registry but is recommended, as any further act with
respect to such mining concession will only be opposable to third parties – including the
government – after its registration.20
Mining concessions are transferable between private parties through a transfer
agreement regulated by the LGM.21 They can also be subject to mining assignment and
option agreements as well as to joint ventures.22

ii Surface and mining rights


According to the Peruvian Civil Code, the ownership of land extends to the respective
surface and the subsoil, but such ownership does not imply a right to exploit any natural
resources of the subsoil, which requires a concession. The surface and the mining
concession may belong to different parties. The titleholder of the mining concession
must obtain permission from the owner of the land to develop mining activities.
The Law of Lands23 regulates the use of land by holders of mining concessions.
According to this law, mining activities require a prior agreement with the owner of the
land or the completion of a mining easement before the MEM.
In the case of an agreement with the owner, although it is not legally required to
register such agreement with the Public Registry, it is recommendable to do so in order
to be able to enforce said rights against third parties. A legal analysis of the property titles
in the area is also recommended, which will determine if the corresponding land is clear
of any liens, encumbrances, etc.
If the relevant agreement is not reached with the owner of the land, the
aforementioned mining easement proceeding before the MEM needs to be started.
The LGM states that holders of mining rights may request authorisation from
the MEM to establish mining easements on the land that are needed to operate mining
projects. The General Directorate of Mining of the MEM (‘the DGM’) is in charge of
the proceeding. In practice, this procedure has seldom been used by mining companies,
as the MEM has been reluctant to authorise such easements in order to avoid any social
unrest.
Other ways to acquire the use of the land is through agreements regulated by
the Civil Code, such as: (1) the establishment of easements (i.e., civil easements, as
opposed to mining easements), which are rights that impose limitations on real property
to benefit another real property; (2) usufructs, which allow the use of the respective
properties, including the revenues generated by such use; and (3) surface rights, which

19 Article 71 of the Peruvian Constitution of 1993.


20 Article 107, 126 and 163 of LGM.
21 Article 164 of the LGM.
22 Articles 165 and 166 of the LGM.
23 Law 26505, amended by Law 26570 and its Regulations, Supreme Decree 011-96-AG, and its
amendments.

165
Peru

enable the titleholder to construct infrastructure on the land, which will be transferred to
the owner of such land at the end of the agreement. All of these rights can be registered
at the Public Registry and so are opposable to third parties.

iii Additional permits and licences


Start or restart of mining activities
According to a recent modification of the Regulations of Mining Procedures24 for the
commencement of mining exploration and exploitation activities, the holder must
request a permit from the DGM for the start or restart of activities.
A series of documents must be attached to this request, including (1) the
resolution approving the corresponding environmental impact assessment (‘EIA’); (2) its
work schedule; (3) documents proving that it is the owner of the surface rights or that it
is authorised by the holder of the lands to use them for the mining activities mentioned;
and (4) updated environmental monitoring.
After the corresponding evaluation, the DGM may or may not authorise the start
or restart of activities.
For the start or restart of development (construction), preparation, exploitation
(which includes the mining plan) activities, the amending rule sets out that in addition
to the requirements indicated, the mining holder must submit certain technical
information, including a locational plan of the mine facilities, the mining plan, the
engineering study, the pit design or the mining works design for underground mining,
the dump design, hazardous material storage facilities and electric substations, as well as
the authorisation for the use of explosives, occupational health and safety measures, and
a timetable of activities.
These permits are obtained through the electronic procedures that the MEM has
implemented in its extranet service and the mining holder must be registered in order
to use them.

Others
In addition, the titleholder must consider that Peruvian legislation has established the
obligation to request permits, authorisations or licences for the use of resources for the
development of mining activities or for products required for their execution, such as:
a water rights;
b protecting archaeological remains;
c use and generation of electricity;
d use of hazardous materials;
e use of radioactive material;
f use of restricted chemicals;
g use of explosives; and
h use of hydrocarbons.

24 Supreme Decree 020-2012-EM.

166
Peru

iv Closure and remediation of mining projects


The corresponding law25 establishes objective liabilities related to environmental and
conventional damages caused by ‘risky or dangerous’ activities and subjective liabilities
for damages to the environment by non-risky or non-dangerous activities in cases of
gross negligence or wilful misconduct.
In both cases, the liabilities imply the obligation to adopt measures to restore,
rehabilitate or reclaim any damage and to pay a just and fair indemnification.26
In accordance with the Law on Mine Closures (‘the LCM’) and its regulations,27
within one year of the approval of the EIA, mining projects have the obligation to submit
their closure plan to the MEM. In addition to the thorough consultation included in
the EIA approval process – which must contain specific references to the closure of the
respective mine – closure plans must undergo their own public consultation process before
being approved by the MEM, under which any persons can submit their observations or
concerns in writing and expect them to be considered by the authority in its evaluation.
The LCM states that the implementation of the closure plan must be executed
in a progressive fashion throughout the life of the mine. In order to assure completion
of the closure plan, mining operators must establish a financial guarantee. In addition,
they are obliged to report their progress in the execution of the plan to the MEM every
six months.28 This biannual report keeps the control and follow-up process informed of
environmental impacts, currently assessed by monitoring programmes (performed by
the operator) and environmental audits conducted by the authority.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


The environmental legislation establishes limits on how the mining project may interact
with the different components of the environment. The relevant regulations indicate
that the government recognises and protects patrimonial rights and the knowledge,
innovations and traditional practices of farming, native and local communities. Areas
where the value of biodiversity, culture and landscape is significant are protected by means
of natural protected areas. Within these areas and their buffer zones, the environmental
legislation imposes prohibitions or restrictions on certain economic activities in order to
preserve the protected values.29
Two years ago MINAM was created to guide and establish policies for the
protection of the environment, regulate and approve environmental licences, and impose
sanctions on those that infringe the environmental legislation.30 For this final purpose,

25 Law 28611, General Environmental Law.


26 Articles 142, 144 and 145 of the Law 28611, Environmental General Law.
27 Law 29090, amended by Laws 28234 and 28507, and its Regulation, approved by Supreme
Decree 033-2005-EM, amended by Supreme Decrees 035-2066-EM and 045-2006-EM.
28 Article 29 of the Supreme Decree 033-2005-EM.
29 Law 26834 and its Regulation, Supreme Decree 038-2001-AG and its amendments.
30 Legislative Decree 1013, amended by Legislative Decree 1039.

167
Peru

there is a specific agency within MINAM called the Environmental Assessment and
Oversight Agency.
Peruvian legislation imposes obligations on proponents of mining projects to
evaluate potential environmental and social impacts, and proposes relevant prevention,
mitigation or compensation measures in an EIA, which must be approved by the
relevant authority (in this case, the MEM). This is a condition for the commencement
of the construction (and therefore, operation), or the improvement or expansion of the
project. Where projects entail activities that are regulated by two or more ministries,
the most relevant ministry will oversee the area from which the project will obtain
most of its income.
On 2012, the MEM approved the Occupational Health and Safety Regulation,
which promotes a culture of risk prevention in mining activities and the participation of
employees, employers and the state.31
The Regulation applies to all mining activities without exception and to all related
services, including civil construction, and auxiliary and complementary facilities. Any
person, company – private or public – carrying out mining activities or related activities
must comply with this Regulation, and its Annexes.
Finally, the Occupational Health and Safety at Work Law and its Regulations has
been approved. This Law transfers the competence of supervising the mining companies
in the field of occupational safety and health from OSINERGMIN to the MTPE.32
OSINERGMIN has, however, reserved responsibility for the audit of mining activities
regarding infrastructure, facilities and operations.33

ii Environmental compliance
The EIA should address, in reasonable detail (i.e., a feasibility study) the way in which
the projects could interact with the environment. Closure is assessed only at a theoretical
level, it only being necessary to complete the analysis in the mine closure plan (see
Section III.iv, supra).
Public participation is required both before and after the EIA is filed for
approval. Therefore, the organisation of workshops and a public information strategy
are required from the early stages of the EIA process. Public participation is a key factor
in the EIA approval process as it will determine how well informed the stakeholders
are regarding the project, which is an issue of the utmost importance for the evaluators
at the MEM.34 Another procedure also now takes place: the prior consultation (see
Section IV.iii, infra).
The approval process for the EIA before the MEM can take between six and 10
months, taking into account the intervention of other ministries with administrative
authority over project components that are not specifically mining activities (access

31 Supreme Decree 055-2010-EM.


32 Law 29783.
33 Law 29901 and OSINERGMIN Res. 185-2012-OS/CD.
34 Supreme Decree 028-2008-EM and Ministerial Resolution 304-2008-MEM/DM.

168
Peru

road and port construction, etc.) and of the specific environmental areas affected by the
construction or operation of the project (fresh water, coastal waters, air, etc.).
Mining activities must satisfy the LMP regarding mining and metallurgical
effluents and gas emissions,35 and the ECA.36 The LMP and the ECA are environmental
instruments that protect and measure environmental quality and public health.
Any modification to the project (as a consequence of, inter alia, extension of
the area of beneficiation, expansion of the installed capacity or the construction of new
tailing impoundment or leaching facilities) will entail modification of the EIA.37

iii Third-party rights


The Law of Prior Consultation and its Regulations38 aim to develop the content,
principles and procedure of the right of indigenous or native peoples to be consulted on
any new legislative or administrative measures that may affect them directly.
The types of measure that must be consulted are plans, programmes, and projects
of national and regional development, as well as legislative or administrative measures
that may affect their collective rights, physical essence, cultural identity, quality of life or
development.
Andean, native and Amazonian communities are also identified as indigenous or
native people in accordance with legal standards.
The purpose of the consultation is to arrive at an agreement, or gain consent
between the state and indigenous or native people, through a dialogue that guarantees
their inclusion in the decision that is to be taken. The Law does not grant a right of
veto for the communities; the state can make a decision contrary to the view of the
indigenous or native people, but it must take their rights into consideration.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


A beneficiation concession is needed to process minerals. The applicant must file an
application in order to obtain a concession that grants its holder the right to process and
concentrate the valuable part of an amount of disseminated minerals and melt, purify
or refine metals. This concession is issued by the DGM after a three-stage administrative
proceeding:
a the petition is evaluated and a notice published;
b the authorisation to build the beneficiation facilities (e.g., metallurgical plant,
leaching facilities, tailings impoundment facilities, if applicable) is issued; and
c the resulting facilities are inspected in order to obtain the authorisation to operate.

35 Supreme Decree 010-2010-MINAM.


36 Supreme Decrees 002-2008-MINAM and 003-2008-MINAM, which regulate the ECA for
water and air, respectively.
37 Article 7.2 of the Supreme Decree 016-93-EM.
38 Law 29785 and Supreme Decree 001-2012-MC.

169
Peru

The procedure is carried out through the extranet system of the MEM.39
Among others, an important requirement for the application for this concession
is the EIA (see Section IV.i, supra). Additionally, the applicant must prove that it is the
owner of the surface rights of the area that will be occupied by its facilities or that it has
obtained authorisation from the holder thereof. Real estate must be registered with the
Public Registry or the party must have the corresponding notarially recorded instrument.
Any of these documents must indicate the UTM coordinates of the real estate.
An additional proceeding must be followed before the DGM should the
beneficiation concession need to be modified due to:
a expansion of the area;
b expansion of the installed capacity;
c additional installations without expanding the installed capacity;
d a new tailing basin deposit or the expansion of the existing one; or
e a new lixiviation pad or expansion of the existing one.

Although, according to the LGM, it is not mandatory to register beneficiation concessions


in the Public Property Registry, its Regulations establish the contrary.40 In our opinion
such registration is recommended, as any further act with respect to such beneficiation
concession will only be binding on a third party, including the government, after its
registration.41
There are no limitations on the use of foreign labour or services. The hiring of
foreign specialists or consultants is very common, and neither are there limitations on the
execution of internationally used agreements such as EPCM (engineering, procurement,
construction management) or EPC (engineering, procurement and construction).
Under the EPCM, the contractor agrees to provide services to the owner of a
mining project and to manage, administer and supervise the construction of the project
to obtain the final product sought by the owner; in the EPC, however, the purpose is the
delivery of a finished work to the owner of the project. In the EPCM the mining holder
has a direct relationship with the ‘mining contractors’ – the companies that execute the
mining works – whereas in the EPC it relates with them legally.
Mining contractors, according to Peruvian legislation, are those that execute
mining activities (mineral exploration, exploitation, development or beneficiation
works) and they must be registered with the Register of Mining Contractors kept by the
DGM.42
There are three types of import procedures regulated by the General Customs
Law43 relating to the import of equipment and machinery that may be necessary for
mining activities. In order to determine which applies, the purpose of the asset to be

39 Supreme Decree 020-2012-EM and Annex A.


40 Article 38 of Supreme Decree 018-92-EM.
41 Articles 107, 126 and 163 of the LGM.
42 Supreme Decree 005-2008-EM, amended by Supreme Decree 013-2010-EM.
43 Legislative Decree 1053 and its Regulations, Supreme Decree 010-2009-EF.

170
Peru

imported must be analysed: whether it is import for consumption44 (also called ‘definitive
import’); a temporary import for re-export in the same condition;45 or reimport in the
same condition.46
There are no restrictions on the import of machinery and equipment intended
for mining activities, but there are restrictions on the import of chemical inputs and
supervised products and explosives (see Section III.iii, supra).

ii Sale, import and export of extracted or processed minerals


The sale of minerals is free, internally and externally, as provided by the LGM and,
as previously indicated, the trading of minerals does not require the granting of any
concession. However, said Law sets out that mineral products must be purchased from
persons authorised to dispose thereof; a purchase from someone who does not have this
authorisation is not claimable and it subjects the buyer to the corresponding liability.
The LGM sets out that the buyer must verify the origin of the mineral products that it
obtains in order to determine that it does not come from illegal sources.47
No restrictions have been established on the export of minerals.48

iii Foreign investment


In Peru, the measures related to promoting and protecting private investments provide
the investor with the ability to enter into tax stability agreements under the Legislative
Decrees 662 and 757 and under the LGM.
In the mining business, the tax stability regime described under the Legislative
Decrees 662 and 757 applies to foreign investors willing to invest a minimum amount of
$10 million in Peru for at least two years. Legal stability applies to the rules of income tax
for the receiving company of the investment, and the rules of income tax on distribution
of dividends apply to the investment company. PROINVERSION49 is the entity that
enters into these legal stability agreements with investors on behalf of the Peruvian state,
which generally last for 10 years.
The tax stability under the LGM consists of freezing, on a certain date, the
tax regime (taxes only) applicable to the investments made in the concessions that
are subject to the respective agreement. No tax rules issued after the ‘stability date’
that are related to the stabilised taxes, or any new taxes imposed will not apply to
said investments. This stability lasts 10 or 15 years depending on the amount of the
investment – 10 years for investment of $2 million, and 15 years for investment of $20
million from new companies and $50 million from existing mining companies. Under
the LGM, the income tax rate is set at the current rate plus two percentage points, and

44 Resolution Nos. 063-2010/SUNAT/A and 491-2010/SUNAT/A.


45 Resolution Nos. 062-2010/SUNAT/A and 579-2010/SUNAT/A.
46 Resolution No. 090-2010/SUNAT/A.
47 Articles 3, 4 and 5 of the LGM.
48 Annex 1 of the Single Text of Products of Prohibited Export was approved by Supreme Decree
070-93-EF, as amended.
49 The Private Investment Promotion Agency.

171
Peru

the ability to pass on general sales tax and excise tax to third parties is guaranteed, but
the rate is unchanged.

VI CHARGES

i Royalties, taxation and duties


From 1 October 2011, mining companies must pay the following specific taxes, in
addition to the general taxes applicable to legal persons,50 which are all determined on a
quarterly basis over the operating profits of the company:
a the special mining tax, which is taxed at cumulative progressive rates from 2 per
cent to 8.4 per cent;
b the amended legal royalty, which is taxed at cumulative progressive rates from 1
per cent to 12 per cent; and
c the special mining charge, which is taxed at cumulative progressive rate of between
4 per cent and 13.12 per cent.

Once paid, each is deductible as an expense against the income tax of the mining
companies. The latter is applicable to mining companies that voluntarily agree to pay
it and commit to do so by executing the corresponding agreement with the Peruvian
government, this payment having the nature of a public resource originating from
the exploitation of non-renewable natural resources, and being applicable to mining
companies with projects with tax stability agreements in force.
Other taxes include (1) the social security contribution with a tax rate of 9
per cent levied on the salaries of the companies’ employees; (2) the contribution for
administrative regulation that mining companies must pay, which may be no more than
1 per cent of annual turnover, after general sales tax; (3) the employee contribution to
the Supplementary Retirement Fund for Mining, Metallurgical and Steel, which has a
tax rate of 0.5 per cent and is levied on an annual basis on mining companies’ annual net
income before taxes.
Peru has signed agreements with members of the Andean Community of Nations
to avoid double taxation; and there are also agreements in force to avoid double taxation
with the governments of Canada, Brazil and Chile.
Mining concessions holders must pay a good standing fee (‘GSF’) on an annual
basis, from the date of its application, which is equivalent to $3 per hectare per year.
The holders of beneficiation concessions must pay an annual GSF from the date
of its application, which depends on the installed capacity:
a up to 350 MT/day51 – 0.0014 of 1 tax unit (‘UIT’) per MT/day;
b more than 350 MT/day up to 1,000 MT/day – one UIT;

50 Taxes are generally levied at central, regional and local level, and include income tax, the
temporary net assets tax, the financial transactions tax, general sales tax, excise tax, customs
duties, vehicle ownership tax, real property transfer tax and municipal contributions.
51 MT/day refers to the installed treatment capacity and, in the case of expansions, will be paid
only on the increase in capacity.

172
Peru

c more than 1,000 MT/day up to 5,000 MT/day – 1.5 UIT; and


d per each 5,000 MT/day in excess – 2.00 UIT,

Non-payment of such fee for two consecutive years will result in the cancellation of the
beneficiation concession.52

ii Other fees
Peruvian legislation contemplates the polluter-pays principle, broadly applied by
international law and according to which the person who pollutes must makes reparations.
According to General Environmental Law the person who causes damage to the
environment must take restorative, rehabilitative or remedial measures or, if that is not
possible, compensate (in environmental terms) for the damages caused, notwithstanding
other administrative, civil or criminal liabilities that may apply.53
The General Environmental Law sets out liabilities for environmental damage
and as a coercive measure, it establishes that the competent regulator may impose fines
of no more than 10,000 UIT.54 On the other hand, the Regulations applicable to mining
activities establish that in case of environmental damage, the fine will be 50 UIT.55
Finally, non-compliance with the environmental provisions in mining exploration,
exploitation and closure matters will be sanctioned by fines from 5 UIT up to 10,000
UIT.56

VII OUTLOOK AND TRENDS

A Bill was submitted to Congress on the initiative of the Executive Agency on 27 August
2011, and may create the National Environmental Certification Service (‘SENACE’), a
public entity attached to MINAM, which would be in charge of reviewing and approving
detailed EIAs.
The Bill also foresees an exception to the EIA system where such assessments
are expressly excluded by Supreme Decree with the approving vote of the Council of
Ministers. The projects that the Bill considers are those that comprise public or private
or mixed-capital investment projects, of national or multi-regional scope, which involve
activities, constructions or works and other commercial and service activities that may
have a significant impact on the environment.
If this Bill is approved, this new entity will be in charge of the evaluation and
approval of the EIAs of large investment projects and the MEM will no longer be
competent for these cases.
Finally, according to the records of the MEM, there are currently 25 mining
projects at an exploratory stage, including Tia Maria (Grupo México (Southern Copper

52 Legislative Decree 868 that modifies article 46 of the LGM.


53 Articles VII and IX of Law 26811.
54 Article 136.1 of Law 28611.
55 Ministerial Resolution 353-2000-EM-VMM.
56 OSINERGMIN Resolution 211-2009-OS-CD.

173
Peru

Corp)), El Galeno (Jianxi Copper), Corani (Bear Creek), Quechua (Mitsui Mining),
Michiquillay (Anglo American), Magistral (Grupo Milpo), Chucapaca (Canteras del
Hallazgo SAC) and La Granja (Rio Tinto).

174
Chapter 16

PHILIPPINES
Roderick R C Salazar III and Geraldine S Meneses-Terrible 1

I OVERVIEW

Being naturally endowed with a substantial number of mineral resources,2 the Philippines
has recognised the benefits to be derived by it from mining activities, economic or
otherwise. This fact is supported by a provision of the 1987 Philippine Constitution
allowing the exploration, development and utilisation of mineral resources3 through
the grant of an exploration permit (‘EP’),4 mineral processing permit (‘MPP’) mineral
agreements such as mineral production sharing agreements (‘MPSAs’),5 joint venture

1 Roderick R C Salazar III is co-managing partner and Geraldine S Meneses-Terrible is a senior


associate at Fortun Narvasa & Salazar.
2 Based on Statistics on Philippine Mineral Production as of June 2012 of the Philippine Mines and
Geosciences Bureau (‘the MGB’), the following quantities of metallic minerals were produced
in 2011: (1) gold: 31,120kg; (2) silver: 45,530kg; (3) copper: 63,835 metric tonnes; (4) nickel:
22,794 metric tonnes; (5) metallurgical chromite: 25,483 dry metric tonnes; (6) zinc: 37,354 dry
metric tonnes; and (7) iron ore: 126,177 dry metric tonnes (www.mgb.gov.ph/Files/Statistics/
MetallicProduction.pdf ). MGB also claims that out of the Philippines’ 30 million hectares total
land area, 9 million hectares have been identified as having high mineral potential.
3 Section 2, Article XII of the 1987 Philippine Constitution.
4 Section 20 of the Mining Act provides that an EP grants the right to conduct exploration for
all minerals in specified areas and is recognised under the Mining Act IRR as the initial mode
of entry.
5 Section 31 of the Mining Act IRR defines an MPSA as ‘an agreement wherein the Government
grants to the Contractor the exclusive right to conduct mining operations within, but not
title over, the contract area and shares in the production whether in kind or in value as owner
of the minerals therein. The Contractor shall provide the necessary financing, technology,
management and personnel’.

175
Philippines

agreements (‘JVAs’),6 co-production agreements (‘CPAs’),7 and financial or technical


assistance agreements (‘FTAAs’).8 As of 31 August 2012, the Mines and Geosciences
Bureau (‘the MGB’) reports that there are 340 MPSAs in place covering a total area of
602,630 hectares while there are six FTAAs over a total area of 108,872 hectares. Small-
scale mining permits are granted only to Filipino citizens or cooperatives composed of
Filipino citizens.
Based on the mining industry statistics9 released by the MGB on 2 August
2012, total mining investment in 2011 was $618.5 million and the aggregate mining
investment from 2004 to 2011 has been more than $4 billion.10 Also, the total taxes, fees,
royalties and charges collected from the mining industry as of 2010 amount to around
13 billion pesos.11 Clearly, the mining industry has made significant contributions to the
Philippine economy.
However, with the current policy and pending legislation involving mining,
such figures will definitely change, presumably with an increased contribution from
raised revenue schemes. The Philippine mining industry will remain unsettled until all
uncertainty is resolved by the implementation of new mining policy and legislation.

II LEGAL FRAMEWORK

i Mining legislation
There are three laws governing mining in the Philippines:
a Republic Act No. 7042, otherwise known as the Philippine Mining Act of 1995
(‘the Mining Act’) and its Implementing Rules and Regulations embodied in
Department of Environment and Natural Resources (‘DENR’) Administrative
Order (‘AO’) No. 2010-21 (‘the Mining Act IRR’);
b Republic Act No. 7076 or the People’s Small-Scale Mining Act of 1991 (‘the
Small-Scale Mining Act’);12 and

6 Section 31 of the Mining Act IRR defines a JVA as ‘an agreement where a joint venture
company is organised by the Government and the Contractor with both parties having equity
shares. Aside from earnings in equity, the Government shall be entitled to a share in the gross
output’.
7 Section 31 of the Mining Act IRR defines a CPA as ‘an agreement between the Government
and the Contractor wherein the Government shall provide inputs to the mining operations
other than the mineral resources’.
8 Section 5(ak) of the Mining Act IRR defines an FTAA as ‘a contract involving financial or
technical assistance for large-scale exploration, development and utilisation of mineral
resources’.
9 http://mgb.gov.ph/Files/Statistics/MineralIndustryStatistics.pdf.
10 http://mgb.gov.ph/Files/ItemLinks/ThePhilippineMineralsIndustryAtAGlance.jpg.
11 $319 million at the current exchange rate.
12 Presidential Decree (‘PD’) No. 1899 approved in 1984 establishing a small-scale mining as a
new dimension in mineral development also remains in force albeit at a much reduced level of
implementation.

176
Philippines

c Executive Order No. 79 entitled Institutionalising and Implementing Reforms


in the Philippine Mining Sector, Providing Policies and Guidelines to Ensure
Environmental Protection and Responsible Mining in the Utilization of Mineral
Resources (‘the Mining Policy’) and its Implementing Rules and Regulations
embodied in DENR Administrative Order No. 2012-07 (‘the Mining Policy
IRR’).13

The Mining Act is the main mining legislation in the Philippines and governs large-scale
exploration, development and utilisation of mineral resources; the Small-Scale Mining
Act, as its title suggests, regulates small-scale mining and limits the same to Filipino
citizens. The Mining Policy is an executive fiat recently enacted on 6 July 2012. It makes
several innovations on the Mining Act, specifically in the following areas: expansion of
areas closed to mining applications, establishment of mineral reservations, competitive
public bidding for areas open to mining, and compliance with the ‘social acceptability’
requirement of the communities affected. It also calls for the strict implementation of the
provisions of the Small-Scale Mining Act and prohibits the use of mercury in small-scale
mining activities.
Along with the mining laws, the DENR also strictly enforces various
environmental laws through its Environmental Management Bureau (‘the EMB’) to
ensure that the mining industry adheres to the protection of the environment. Some
of the other environmental laws that would have application to the mining industry
relate to the Philippine environmental policy, pollution control, environmental impact
statement (‘EIS’) system and environmental compliance certificate (‘ECC’) system, clean
air policies, and water environmental policies.
The Philippines has not entered into any international treaty involving mining.

ii Regulatory body
The MGB under the DENR is the agency tasked with implementing the Mining Act
and its IRR. It accepts, evaluates, reviews and recommends to the DENR Secretary the
approval of applications for exploration permits and mineral agreements.14
The environmental laws and standards are implemented by the EMB.
The Mining Policy also created a Mining Industry Coordinating Council (‘the
MICC’), which is an interagency body15 tasked, inter alia, with implementing the
Mining Policy and conducting an assessment and review of all mining-related laws, rules
and regulations, issuances and agreements, so as to be able to make recommendations
to improve the allocation of revenues and risk between the government and the mining
sector.16

13 The MICC revised Sections 3, 7 and 9 of the Mining Policy IRR and released the revised
versions of said provisions on 24 September 2012. Such revisions, as of this writing, are pending
approval by the President of the Philippines.
14 Section 9 of the Mining Act.
15 Section 9 of the Mining Policy.
16 Section 10 of the Mining Policy.

177
Philippines

iii Mineral reporting requirements


The Philippine Mineral Reporting Code (‘the PMRC’) was recently adopted by the MGB
and the Philippine Stock Exchange in setting the minimum standards and requirements
for reporting exploration results, mineral resources and ore reserves. The PMRC
imposes a mandatory system for classification of tonnage and grade estimates according
to geological confidence and technical and economic considerations. The PMRC is
based on the JORC Code (2004) of Australasia and is likewise compatible with the
international codes of Australia, South Africa, the European Union and Canada, neither
is it incompatible with the international reporting template (2006) formulated by the
Committee for Mineral Reserves International Reporting Standard (‘CRIRSCO’).

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
The Philippines follows the Regalian Doctrine. Under Section 2, Article XII of the 1987
Constitution, all natural resources, including minerals, are owned by the state. The state
may however, enter into agreements such as MPSAs, FTAAs, CPAs and JVAs for the
exploration, development and utilisation of natural resources.
Title to minerals cannot be transferred to private parties, specifically the permit
holders and mineral agreement grantees. The permits and agreements contain a
stipulation that the grant thereof does not bestow beneficial ownership of the minerals
to the holder or grantee.17
Also, pursuant to the Regalian Doctrine, the state owns all mineral lands that are
considered inalienable.18 Thus, a private individual or entity, whether a Filipino citizen or
otherwise, cannot own mineral lands. Patented titles to mineral lands perfected under the
Philippine Bill of 1902 shall, however, continue to be owned by the grantees thereof.19

ii Surface and mining rights


Acquisition of mining and surface rights
The procedures for acquisition of mining rights depends upon the type of permit or
agreement applied for.20

EP
To apply for an EP, certain documentary requirements should be submitted to the
MGB regional office (‘RO’). Upon submission of the documentary requirements to the
MGB RO concerned, the application must be evaluated and the area applied for will
be plotted to determine if it conflicts with other mining areas or is within areas closed

17 Sections 22(p) and 39(af ) of the Mining Act IRR.


18 Section 3, Article XII of the 1987 Constitution.
19 Atok Big-Wedge Mining Company v. Hon Intermediate Appellate Court and Saingan, G.R. No.
63528, 9 September 1996.
20 MGB primers for EP, MPP, MPSA and FTAA.

178
Philippines

to mining applications. Should there be no conflict on the area applied for, the MGB
issues an area status clearance, and a notice of application. Upon issuance thereof, the
applicant must secure a certification precondition or certificate of non-overlap from the
NCIP and publish, post or announce the notice of application on the radio. After this
period of publication, the applicant must secure a certification from the DENR Panel
of Arbitrators as to whether any opposition has been filed against the application or an
adverse claim on the area applied for. Should there have been no claim or opposition,
the MGB RO will again evaluate the application and endorse the same to the MGB
Central Office (‘CO’), which will make a final evaluation of the application and approve
or deny the same. Upon approval of the application by the MGB RO after clearance
by the MGB CO, the EP will be numbered, registered and released by the MGB RO
to the applicant, now holder, thereof. Section 7 of the Mining Policy IRR directs the
MGB to issue an approval or disapproval of an EP application within six months from
the date of acceptance thereof. Further, it stated that requirements such as area status
clearance, certificate of non-overlap or certification precondition, certificate of posting
and certificate of (no) adverse claim or protest shall be deemed waived if the government
agency concerned are not able to issue them within the prescribed deadlines.21

MPP
Upon filing of an MPP application by the mining company, the MGB RO makes a
preliminary evaluation of the requirements supporting the application for MPP. If the
project costs less than 200 million pesos, the application will be evaluated and approved
by the MGB RO. If it costs more than 200 million pesos, the application shall be
forwarded to the MGB CO within five days for review. If the MGB CO finds that
the project costs more than 500 million pesos, it will endorse the same to the DENR
Secretary for his or her final evaluation, and approval or denial. The MPP application
will otherwise be evaluated, and approved or denied by the MGB Director. The approved
MPP shall be numbered by the MGB CO and registered with and released by the MGB
RO to the grantee thereof.

MPSA
The MPSA application is carried out in much the same way as that for the EP. Once the
MGB RO has endorsed the application to the MGB CO, however, this body will then
endorse the application to the DENR Secretary for final evaluation and approval or
denial thereof. Upon approval of the application, the MPSA shall be numbered by the
MGB CO and registered and released by the MGB RO to the contractor.

21 Area status clearance should be issued within one month from the date of acceptance; certificate
of non-overlap within three months from date of filing of the application or certification
precondition within six months from date of filing of the application; certificate of posting
within one week of the last day of completion of posting; certificate of (no) adverse claim or
protest within one week from the date of filing of the request.

179
Philippines

However, the Mining Policy has suspended the grant of new mineral agreements
such as the MPSA until legislation rationalising existing revenue-sharing schemes and
mechanisms has taken effect.22

FTAA
The initial application process is again identical to that of EPs and MPSAs. After the
MGB CO has endorsed the application to the DENR Secretary for final review, the
Negotiating Panel23 and the FTAA applicant will then negotiate the terms of the FTAA.
Once the Negotiating Panel is satisfied with the terms and conditions of the proposed
FTAA, it shall recommend its execution and approval to the President. The President will
then approve the FTAA and notify the Congress of such within 30 calendar days. The
approved FTAA will be transmitted to the MGB CO for numbering, and registered and
released by the MGB RO to the contractor.
The new Mining Policy does not include the acceptance of applications for
FTAAs in the moratorium that is presently in place in the Philippines. The new Mining
Policy IRR allows national government-owned mining assets to be the subject of FTAA
applications, which will be awarded through competitive public bidding.24

Validity or term of mining and surface rights


An EP is valid for a period of two years from the date of issuance, but is renewable for
further similar periods, not exceeding a total term of four years for non-metallic mineral
exploration or six years for metallic mineral exploration.25 During the term of the EP,
the feasibility study must be conducted and a declaration of mining project feasibility
(‘DMPF’) filed. If these are not completed in the six-year term, a further extension of
two years may be applied for and granted for the specific purpose of completing the
DMPF.
The term of an MPP is five years from the date of issuance, renewable for further
similar periods but not exceeding a total term of 25 years.26
Both the MPSA and the FTAA have terms not exceeding 25 years from the date
of execution, and are renewable for another term not exceeding 25 years.27
Should the parties fail to agree on the terms of renewal in accordance with the
provisions of the Mining Act, the MPSA or the FTAA will be considered an expired
mining tenement and the grant thereof will be subject to competitive public bidding.
Mining contractors with tenements expiring from 1 September 2012 to 30 April 2013 are

22 Section 4 of the Mining Policy.


23 The Negotiating Panel is composed of representatives of the DENR, MGB, Board of
Investments or Department of Trade and Industry; National Economic Development
Authority; Department of Finance; DENR’s Field Operations Office; DENR’s Legal and
Legislative Affairs Office; and MGB RO concerned (Section 58 of the Mining Act IRR).
24 Section 7 of the Mining Policy IRR (as revised).
25 Section 21 of the Mining Act and Section 18 of the Mining Act IRR.
26 Section 109 of the Mining Act IRR.
27 Sections 32 and 38 of the Mining Act and Sections 34 and 52 of the Mining Act IRR.

180
Philippines

required to file their renewal applications within 30 calendar days from the effectiveness
of the Mining Policy IRR, whereas mining contractors with tenements expiring after 30
April 2013 are required to file their renewal applications at least six months prior to the
expiry of their mining contracts or agreements.28

How mining rights are protected


During the term of the permits and mineral agreements, the holder or grantee has the
right to conduct the activities allowed therein without interference as long as it complies
with the terms and conditions of the permit or mineral agreement. EP holders are
given the right of first refusal to develop and utilise minerals in their exploration area
upon approval of their declaration of mining project feasibility and effectiveness of new
legislation on mining. Failure to put the area into operation within the period provided
in the EP shall result in automatic loss of the priority right, and the government can open
the areas for bids.29

Restrictions on the surface or mining rights that may be acquired by foreign parties
Only qualified persons are allowed to hold and be granted permits and mineral
agreements. The Mining Act and its IRR defines ‘qualified person’ as:30
[…] any Filipino citizen of legal age and with capacity to contract; or a corporation, partnership,
association or cooperative organised or authorised for the purpose of engaging in mining, with
technical and financial capability to undertake mineral resources development and duly registered
in accordance with law, at least sixty percent (60 per cent) of the capital of which is owned by
Filipino citizens: Provided, that a legally organized foreign-owned corporation shall be deemed
a Qualified Person for purposes of granting an Exploration Permit, FTAA or Mineral Processing
Permit only.

Thus, only Filipino citizens or corporations, partnerships, associations or cooperatives 60


per cent of the capital of which is owned by Filipino citizens are qualified to be granted
an MPSA; however, legally organised foreign-owned corporations are qualified to hold
and be granted EPs, MPPs and FTAAs (see Section V.i and iii, infra).

Maximum allowable areas


For an EP, the maximum area that mining companies may apply for or hold is as follows:
a onshore, in any one province – 200 blocks or approximately 16,200 hectares;
b onshore, in the entire Philippines – 400 blocks or approximately 32,400 hectares;
or
c offshore, in the entire Philippines, beyond 500 metres from the mean low tide
level – for corporations, 1,000 blocks or approximately 81,000 hectares.31

28 Section 3 in relation to Section 9 of the Mining Policy IRR (as revised).


29 Section 7 of the Mining Policy IRR.
30 Section 3(aq) of the Mining Act and Section 5(cg) of the Mining Act IRR.
31 Section 22 of the Mining Act and Section 18 of the Mining Act IRR.

181
Philippines

The maximum area for an MPSA, however, is:


a onshore, in any one province – 5,000 hectares for metallic minerals and 2,000
hectares for non-metallic minerals per final mining area;
b onshore, in the entire Philippines – 5,000 hectares per final mining area; or
c offshore, in the entire Philippines, beyond 500m from mean low tide level – 500
blocks or approximately 40,500 hectares, and for the Exclusive Economic Zone,
a larger area to be determined by the DENR Secretary upon the recommendation
of the MGB Director.32

The maximum FTAA contract area that may be applied for by or granted to a qualified
person in the whole of the Philippines is:
a 1,000 meridional blocks or approximately 81,000 hectares onshore;
b 4,000 meridional blocks or approximately 324,000 hectares offshore; or
c a combination of 1,000 meridional blocks onshore and 4,000 meridional blocks
offshore.

Capitalisation
The minimum capitalisation requirement for an EP or an MPSA applicant or holder is
2.5 million pesos.33 The applicant or holder of an FTAA is required to have authorised
capital in the amount of $4 million or its Philippine peso equivalent.34 Note also that
an FTAA contractor is required to invest at least $50 million for the infrastructure and
development of the mining area.

iii Additional permits and licences


Under Section 7 of the Department of Finance Local Finance Circular No. 02-09, in
relation to Sections 147 and 151 of the Local Government Code, an individual or entity
must secure a business permit from the relevant local government unit prior to the
commencement of mining operation.
Further, MPSA and FTAA contractors or grantees are required to obtain an
ECC, a permit to operate air pollution control equipment,36 a wastewater discharge
35

permit,37 a permit to operate electrical and mechanical installation,38 a licence to use and
purchase cyanide,39 a permit to purchase and use explosives,40 a tree-cutting permit and

32 Section 28 of the Mining Act and Section 33 of the Mining Act IRR.
33 Sections 19(d) and 35 of the Mining Act IRR.
34 Section 53(c) of the Mining Act IRR.
35 Sections 35 and 56 of the Mining Act IRR.
36 DENR AO No. 2000-81.
37 DENR AO No. 2005-10, 16 May 2005.
38 Section 150 of the Mining Act IRR.
39 DENR AO No. 1997-39, 23 December 1997.
40 Executive Order No. 58, 1 January 1987 entitled ‘Rationalising Fees and Other Charges on
Firearms, Explosives and Explosive Ingredients, Security Agencies and Security Guards’

182
Philippines

water permit and such other relevant permits as may be required by specific laws relevant
to the nature of the mining project.41

iv Closure and remediation of mining projects


The contractor or permit holder is required to formulate a final mine rehabilitation
(‘FMR’) or decommissioning plan (‘DP’) or a mine closure plan, which will be
integrated to its environmental protection and enhancement programme. The FMR/
DP will consider all possible mine closure scenarios and contain cost estimates for the
implementation of each, taking into consideration expected inflation, technological
advances and the unique circumstances faced by the mining operation. The estimates
shall cover the full extent of work necessary to achieve the objectives of mine closure,
such as decommissioning, rehabilitation, maintenance and monitoring, and employee
and other social costs, including residual care, if necessary, over a 10-year period.42
A Final Mine Rehabilitation and Decommissioning Fund is required to be
established by each operating contractor or permit holder and must be deposited as a
trust fund in a government depository bank and be used solely for the implementation
of the approved FMR or DP.43

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


Holders of permits and grantees of mineral agreements are required to strictly comply
with all the rules and regulations relating to mine safety and health standards embodied
under DENR Administrative Order No. 2000-98.44
The MGB regional director concerned must conduct a safety inspection of all
installations in mining operations and monitor the safety and health programme of a
contractor or permit holder.

ii Environmental compliance
Mining contractors, prior to the development stage of the MPSA or FTAA are required
to obtain an ECC and go through an environmental impact assessment (‘EIA’).45

41 Presidential Decree No. 1067, ‘Water Code of the Philippines’.


42 Section 187 of the Mining Act IRR.
43 Section 187-B of the Mining Act IRR.
44 Section 142 of the Mining Act IRR.
45 Section 3(h), DENR Administrative Order No. 2003-30: ‘Environmental Impact Assessment
(EIA) – process that involves evaluating and predicting the likely impact of a project (including
cumulative impact) on the environment during construction, commissioning, operation and
abandonment. It also includes designing appropriate preventive, mitigating and enhancement
measures addressing these consequences to protect the environment and the community’s
welfare. The process is undertaken by, among others, the project proponent and/or EIA
Consultant, EMB, a Review Committee, affected communities and other stakeholders.’

183
Philippines

Upon completion of the documentary requirements, the contractor must submit


these to the EMB, which will determine the completeness of the documents. If the
documents are complete, the ECC applicant or contractor will be required to pay the
filing and processing fee and review fund. Thereafter, the application will be referred to a
case officer who will convene the Environmental Impact Assessment Review Committee
(‘the EIARC’) for substantive review, including site inspection. The EIARC will then
prepare and submit its report and recommendation to the EIA chief, who will review it
as well as the process documentation. The EIA chief will endorse the matter to the EMB
director, who will approve or deny the same. If the application is approved, the EIA
Division of the EMB will release the ECC. Alternatively, if the application is denied, the
matter is referred to the DENR Secretary for review and final decision on ECC issuance
or refusal.46
The ECC must be processed within a period of 120 working days from the time
of payment of filing and processing fee.47 The ECC application is deemed automatically
approved if the EMB fails to render a decision on the ECC application within this
period.48
Failure to commence the mining project within five years from issuance of the
ECC will result in its automatic expiration.49
Mining tenement applicants or owners and, in the case of corporations applying for
or holding mining tenements, the officials thereof shall be permanently disqualified from
acquiring mining rights and operating mining projects if they have a record of violation
of environmental standards and have failed to implement remediation measures.50

iii Third-party rights


Prior to the issuance of any permit or mineral agreement, the mining applicant shall
undergo the free and prior informed consent (‘FPIC’) process.51
The FPIC process starts with the endorsement of the project by the MGB to the
NCIP Regional Office concerned, which will then conduct a field-based investigation
(‘FBI’) to ascertain whether the area applied for falls within an ancestral domain. If this
is not the case, the NCIP will issue a certificate of non-overlap, provided that the mining
applicant executes an undertaking for the conduct of FPIC should it later be discovered
that the area does in fact overlap with an ancestral domain.
In the event that an area does overlap with an ancestral domain, the NCIP must
conduct two community assemblies.
During the first, the following matters shall be taken up:
a orientation on IPRA and FPIC process;
b validation of the FBI report and the areas affected;

46 Ibid.
47 Ibid.
48 Section 8.2, DENR Administrative Order No. 2003-30.
49 Section 5.4.3, DENR Administrative Order No. 2003-30.
50 Section 5 of the Mining Policy IRR.
51 Section 59, Indigenous Peoples Rights Act (‘IPRA’).

184
Philippines

c census of IPs, migrant IPs or non-IPs;


d identification and validation of IP elders and leaders;
e determination of the decision-making or consensus-building processes;
f consensus on the involvement of non-government organisations;
g validation of the members of the FPIC team representing the community;
h presentation of the agreed work and financial plan;
i option, selection and invitation of independent experts to conduct EIA or give
their expert opinions;
j arrangements for conflict or dispute resolution mechanisms by the chosen or
elected IP elders or leaders;
k date and place of second community assembly; and
l other matters that may be necessary and pertinent.

Thereafter, a second community assembly will be held to discuss the project and the
concerns of the IPs.
Following the second community assembly, the ICCs and IPs concerned will
discuss the advantages and disadvantages of the proposed mining project. After this, the
duly authorised elders or leaders will communicate their decision to the FPIC team. If
they are amenable to the project, the mining applicant and the ICCs and IPs concerned,
through their community representatives, will negotiate the terms and conditions of their
memorandum of agreement, the provisions of which will be explained to the community
by the FPIC team in a language they speak and understand.
Once the memorandum of agreement is finalised, the ICCs and IPs will issue a
resolution of consent and the applicant will post a bond with the NCIP to answer for
damages that the ICCs and IPs may suffer on account of any violation of the terms and
conditions of the agreement. The NCIP will then issue a certification precondition in
favour of the mining applicant.
Should the project not be acceptable to the ICCs and IPs concerned, a resolution
of non-consent will be prepared, signed and released. The applicant can file for a
reconsideration of this resolution within 15 days of its receipt. If the ICCs and IPs
affirm the resolution of non-consent, no FPIC process for any similar proposal may be
undertaken within six months from its issuance.
Unless specifically stated in the memorandum of agreement with the ICCs and
IPs concerned, the FPIC process is required to be complied with for every stage of the
mining project (i.e., exploration, development and operational stages).52

iv Additional considerations
Republic Act No. 7160, otherwise known as the Local Government Code of 1991 (‘the
Local Government Code’), requires prior consultation with or approval of the local
sanggunian 53concerned prior to implementation of any project or programme that may

52 AO No. 3-2012, Revised Guidelines on FPIC and Related Processes of 2012, which took effect
on May 31, 2012.
53 Legislative body of local government units in the Philippines.

185
Philippines

cause pollution, climate change, depletion of non-renewable resources, loss of crop land,
rangeland, or forest cover and extinction of animal or plant species.
In compliance with the aforesaid provisions of the Local Government Code,
DENR Memorandum Order No. 2004-09 requires mining applicants to present proof
of consultation or project presentation.
Prior approval or endorsement in the form of a resolution or certification by at
least a majority of the local government units concerned is required in support of mining
application for immediate development or utilisation activities and of applications for
approval of the DMPF under the development and construction or operating periods
of mineral agreements such as an MPSA or FTAA. Thus, prior to the development and
operation stages of a mining project, the contractor is required to submit to the MGB
favourable resolutions of the project from a majority of the local government units
concerned.54

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


Import of equipment and machinery
While the Mining Act and its IRR do not prohibit the importation of equipment
and machinery to be used in mining, a contractor or permit holder is required to give
preference to products, services and technologies produced and offered in the Philippines
of comparable quality; specifically, contractors and permit holders are required to
purchase Philippine household equipment, furniture and food.55

Processing of extracted minerals


There is no law requiring mining contractors to process extracted minerals in the
Philippines only. Individuals or entities that plan to engage in mineral processing apart
from mineral development should, however, be in possession of an MPP.56
The new Mining Policy directs the DENR and other relevant government agencies
to develop a national programme and roadmap, based on the Philippine Development
Plan and a National Industrialisation Plan, for the development of value-adding activities
and downstream industries for strategic metallic ores with an aim of discouraging direct
shipping of ore.57

54 So, if there are three local government units (e.g., province, municipality or barangay (barrio))
affected by the mining activity, the favourable resolutions of two local government units will be
deemed sufficient compliance with the requirements of the Local Government Code.
55 Section 138 of the Mining Act IRR.
56 Section 5(be) of the Mining Act IRR.
57 Section 8, EO 79 of the Mining Policy.

186
Philippines

Use of foreign labour and services


A mining contractor is required to give preference to Filipinos in all types of mining
employment for which they are qualified.58 Employment of foreigners must be limited to
technologies requiring highly specialised training and experience. Foreign executives may
also be employed, provided that a Filipino understudy can be trained for such position.59
Foreigners can hold the positions of mine manager, vice-president for operations or
other equivalent managerial position in charge of mining, milling, quarrying or drilling
operations.60 The MGB Director may also allow foreigners to be employed in mining
operations for a period of no more than one year.61
The foregoing notwithstanding, a mining company holding an MPSA may elect
foreigners to its board of directors in proportion to the foreign equity participation
therein.62 This limitation is not applicable to mining companies holding EPs, MPPs
and FTAAs, as they are allowed to have 100 per cent foreign equity, unlike in mining
companies holding MPSAs where only 40 per cent foreign equity is allowed since
activities conducted under an MPSA are considered partly nationalised.

ii Sale, import and export of extracted or processed minerals


For minerals extracted pursuant to an MPSA or FTAA, the Mining Act and its IRR
allow the sale of the minerals locally and their exportation, provided that the minerals
and by-products produced are sold at the highest market price and lowest commercially
achievable commissions and related fees under market conditions, and to negotiate for
sales terms and conditions compatible with world market conditions. The contractor may
enter into long-term sales and marketing contracts or foreign exchange and commodity-
hedging contracts for its minerals and mineral products. Marketing contracts and sales
agreements with foreign or local buyers involving commercial disposition of minerals and
by-products shall be subject for approval by the DENR Secretary upon recommendation
of the MGB Director. The approved marketing contracts and sales agreements shall be
registered with the MGB, and must remain confidential.63
The Philippine mining laws do not have a provision regarding the importation
of minerals.

iii Foreign investment


Foreign Investment is defined as ‘an equity investment made by a non-Philippine national’.
If the foreign investment consists of at least 40 per cent of the outstanding capital of a
domestic mining company, this should be registered with the Securities and Exchange
Commission. Further, for foreign investments in the form of foreign exchange or assets

58 Section 39(h) and 56(j) of the Mining Act IRR.


59 Section 39(o) and (p); Section 56(q) and (r) of the Mining Act IRR.
60 Section 140 of the Mining Act IRR.
61 Section 141, Mining Act IRR.
62 Section 2-A of Commonwealth Act No. 108 otherwise known as the ‘Anti-Dummy Law’.
63 Sections 33(l) and 56(n) of the Mining Act IRR; Stipulations in standard MPSA and FTAA
contracts.

187
Philippines

actually transferred to the Philippines to be repatriated, it should be registered with the


Central Bank of the Philippines (‘the BSP’).64 Only foreign investments registered with
the BSP are entitled to full repatriation of capital and remittance of dividends or profits
using foreign exchange sources or the local banking system.
Repatriated foreign investment is not subject to tax. In addition, one of the
investment guarantees of the Mining Act to foreign investors is the right to repatriate
the entire proceeds of the liquidation of the foreign investment in the currency in which
the investment was originally made and at the exchange rate prevailing at the time of the
repatriation.65
Earnings from foreign investment may also be remitted in the currency in which
the investment was originally made and at the exchange rate prevailing at the time of
remittance.66 These earnings, which will be in the form of dividends, whether cash or
property, will, however, be subject to tax.
Foreign investments in mining companies are entitled to the following protection:
a freedom from expropriation except for public use or in the interest of national
welfare or defence and upon payment of just compensation;
b freedom from requisition of investment except in the event of war or national
emergency and only for the duration thereof, provided that any just compensation
paid may be remitted in the currency in which the investment was originally
made and at the exchange rate prevailing at the time of remittance; and
c information that is agreed as confidential by the government and the contractor
shall be treated as such during the term of the project.

The Philippines has entered into 30 bilateral investment treaties (‘BITs’) with various
countries, thus obliging it to protect foreign investments including those in mining
projects.67 BITs normally apply to investments brought into, derived from or directly
connected with investments brought into the territory of a contracting state by nationals
or companies of the other contracting state, which are qualified for registration and are
duly registered.68

64 Section 1(e) of Implementing Rules and Regulations of the Foreign Investments Act.
65 Section 229(a) of the Mining Act IRR.
66 Section 229(b) of the Mining Act IRR.
67 www.unctadxi.org/templates; In the list maintained by the United Nations Conference on Trade
and Development (UNCTAD) in its website, the 29 countries with which the Philippines has
entered into BITs are Argentina, Australia, Austria, Bangladesh, Belgium, Cambodia, Canada,
Chile, China, the Czech Republic, Denmark, Finland, France, Germany, Italy, Myanmar, the
Netherlands, Pakistan, Portugal, the Republic of Korea, Romania, the Russian Federation,
Spain, Sweden, Switzerland, Thailand, Turkey and the United Kingdom. Saudi Arabia also lists
the Philippines as among the countries with which it has entered into a BIT.
68 See, for instance, Article II of the Agreement between the United Kingdom and the Republic
of the Philippines for the Promotion and Protection of Investments entered into force on
2 January 1981.

188
Philippines

VI CHARGES

i Royalties, taxes, duties and other fees


The Mining Act imposes a royalty of at least 5 per cent of the market value of the gross
output of the minerals or mineral products extracted or produced from the mineral
reservations, exclusive of all other taxes. Thus, those holding mineral agreements outside
of mineral reservations are not required to pay royalties to the Philippine government.
MPSA contractors pay the 2 per cent excise tax on mineral products based on the
actual market value of its gross output at the time of removal, where they were locally
extracted or produced.69
The other taxes and duties payable by mining companies are the following:
a contractors’ income tax – 32 per cent of taxable income derived during each
taxable year from all sources within and without the Philippines;
b customs duties and fees on imported capital equipment – rates vary as provided
for under the Tariff and Customs Code;
c value-added tax on imported goods and services – 12 per cent of value added;
d withholding tax on interest payments on foreign loans – 15 per cent of interest
payment;
e withholding tax on dividends to foreign stockholders – 15 per cent of a dividend
subject to tax treaty rates, if applicable;
f documentary stamps taxes – rates vary depending on the type of transaction;
g capital gains tax – for stocks not publicly traded, 5 per cent on the first 100,000
peso gain and 10 per cent on the excess gain over 100,000 pesos, for real property,
6 per cent of the selling price or fair market value, whichever is higher;
h royalties to indigenous peoples, if in ancestral lands – minimum of 1 per cent of
the gross output from minerals;
i special allowance and royalty to ICCs and IPs granted pursuant to agreements
entered into by the contractor and concerned parties;
j local business tax – the rates for this vary depending on the local government
concerned;
k real property tax – 2 per cent of the fair market value of the property;
l community tax;
m occupation fees – 50 pesos or 100 pesos per hectare per year, depending on
whether the mining area is in a mineral reservation;
n registration and permit fees – depending on the licence or permit applied for; and
o all other national and local government taxes, royalties and fees as of the effective
date of the FTAA.

Further, an FTAA contractor or grantee is required to pay a basic government share


consisting of all the aforesaid taxes paid for by an MPSA holder and an additional
government share. The additional government share shall be payable after the recovery
period and if the basic government share is less than 50 per cent of the net mining

69 Section 217 of the Mining Act and Section 151 of the National Internal Revenue Code.

189
Philippines

revenue. The additional government share shall be the difference of 50 per cent of the net
mining revenue and the basic government share during the calendar year.70
The EMB may also impose fines and penalty in case of violation of the terms and
conditions of the ECC covering the operations of an MPSA or FTAA. It can also issue
cease-and-desist orders to prevent serious or irreparable damage to the environment.71

VII OUTLOOK AND TRENDS

With the recent passing of the Mining Policy, the Philippine mining industry is
undergoing changes. The Mining Policy directed the adoption of legislation rationalising
revenue-sharing schemes and mechanisms. Thus, mining companies should expect
an increase in government share as stated above and some variation in the extent of
economic incentives that may be given and availed of. In the meantime, a moratorium
on the acceptance of applications and grant of mineral agreements is in place, except for
FTAAs and permits.
Further, the Mining Policy has added areas that are considered closed to
mining applications given the government’s increasing concern for the protection of
the environment and the shift in concentration to other industries to be developed.
Moreover, it required the review of existing mining operations and of existing mining
contracts and agreements for possible renegotiation of the terms and conditions thereof.
Notably, the Mining Policy granted reprieves to mining companies affected by
local government legislation prohibiting the conduct of mining activities, as it enjoined
local government units to exercise their powers and functions in a manner consistent with
regulations, decisions and policies promulgated by the national government, particularly
the Mining Act and its IRR, with respect to the management, development and proper
utilisation of natural resources.
Given the seemingly stringent provisions of the Mining Policy, the mining
industry is anxiously anticipating how the Mining Policy will finally be implemented.

70 DENR AO No. 2007-12, 20 June 2007. ‘Net mining revenue’ refers to the gross output less
deductible expenses. On the other hand, ‘recovery period’ is defined as a maximum period of
five years or at a date when the aggregate of the net cash flows from the mining operations is
equal to the aggregate of its pre-operating expenses, reckoned from the date of commencement
of commercial production, whichever comes first.
71 Section 16 of DENR AO No. 2003-30.

190
Chapter 17

PORTUGAL
Rui Botica Santos and Luis Moreira Cortez 1

I OVERVIEW

Currently, both foreign investment and the mining industry are declared priorities for
the Portuguese government.
With the international crisis, the problem of the Portuguese debt and the
consequent difficulties experienced by Portuguese banks, foreign investment is considered
to be essential for the development of the economy and for the necessary increase of the
Portuguese GDP.
In this regard, mining has been considered one of the areas with more investment
potential in Portugal, and the government (notably the Ministry of the Economy) has
been dedicating very significant attention and resources to the development of mining
projects by private investors.
Very recent significant discoveries in certain areas of the country have attracted the
attention of the media and the general public to the mining industry and, despite some
recent changes to the royalties calculation formulae, which were not to the liking of all
investors, the development of the mining industry has become one of the government’s
priorities.
Regarding the risk factors to be taken into consideration by investors, it must be
stressed that Portugal is a country where the rule of law prevails, in which both political
and legal stability and the independence of the courts are guaranteed. This fact, together
with the increasing attention and support that the government has been giving to the
mining industry (and to its investors), reduces the risk factors that are per se inherent in
mining activities and common to all states where the rule of law prevails.

1 Rui Botica Santos is a senior partner and Luis Moreira Cortez is a senior associate at CRA –
Coelho Ribeiro & Associados.

191
Portugal

The territory of Portugal covers 50 per cent of the Iberian Pyrite Belt (‘the IPB’),
which is considered to be the main metallogenic province of the EU. The IPB is the
primary source of base metals in the EU.
Somincor, a company owned by the Lundin Mining Group, operates the Neves
Corvo mines, which are among the largest European copper mines. They are located in
southern-central Portugal, within the IPB. This copper project is considered to be the
most important mining project in Portugal and one of the most important investments
in Portugal.
In addition to the Neves Corvo and Aljustrel mines (which are both copper and
zinc projects), there are significant mining operations in central Portugal (Panasqueira).
As far as mining projects with short-term potential are concerned, the Petaquilla
investment group has an ongoing gold project in Jales-Gralheira, Colt Resources has a
project in Montemor (gold), and MTI and CPF are currently developing iron projects
in Moncorvo and Carviçais.
Portugal’s mineral potential is considered to be far from being fully exploited. The
local geological resources are diverse and of a complex nature:
a in northern Portugal there are tungsten and tin deposits (associated with the
contact between granite and metal sediments), and also precious metals, and
uranium and lithium deposits;
b northern-central Portugal has a predominance of granitic rocks;
c in southern-central Portugal (in addition to gabbros, diorites, serpentinites,
anorthosites, granodiorites, tonalites and granites), the most important mineral
occurrences are base metals associated with the Cambrian-Ordovician volcanic
sedimentary complex, precious metals, tungsten and tin, as well as the potential
presence of chrome, nickel, cobalt, platinum, and basic and ultra-basic rocks.
Present non-metallic minerals include ornamental rocks and marble, in particular;
d in the south, acid volcanic rocks in the volcanic sedimentary complex form the
metallotect of the polymetallic massive sulphides deposits that are typical of the
IPB; and
e non-metallic resources also include sands, gypsum, clay, kaolin, limestone,
diatomite and salt.

II LEGAL FRAMEWORK

The main legal sources are EU law and national laws. As an EU Member State, Portugal
follows and complies with EU directives and regulations. Since they are part of the
public domain, mineral resources are subject to laws passed in parliament, government
legislation (decree-laws) and secondary legislation (i.e., specific regulations produced
at either government or ministerial level). The ministry with responsibility for this
sector is the Ministry of the Economy, but other ministries such as the Ministry of
Health, the Ministry of the Environment, and the Ministry of Labour and Social
Security, may also have a role whenever the laws or regulations in question impinge
on their areas of responsibility. There are no local or municipal regulations applicable
to mining activity, but administrative acts of a local nature also require local authority
authorisations or licences.

192
Portugal

Mining activity in Portugal is essentially regulated by two laws, both of them


dating from 1990, and which have not been amended since they came into force.
Decree-Law No. 90/90, of 16 March introduces the ‘General Legal Framework
for the Discovery and Use of Geological Resources’.
This Decree-law is complemented by Decree-Law No. 89/90, of 16 March (‘the
Mineral Deposits Regulation’).
There is, however, other complementary legislation that affects mining activity,
including:
a Decree-Law No. 162/90, of 22 May, which approves the General Health and
Safety at Work in Mines and Quarries Regulation;
b Ordinance No. 598/90, of 31 July, as amended by Decree-Law No. 897/95, of
17 July, which establishes the fees payable with regard to the conduct of exploration
for and operation of geological resources;
c Decree-Law No. 544/99, of 13 December, which lays down provisions for the
construction, operation and closure of landfills of waste resulting from the mining
activity;
d Decree- Law No. 69/2000, of 3 May, as amended by Decree- Law No. 197/2005,
of 8 November, which approves the legal framework governing environmental
impact assessments (pursuant to Council Directives 85/337/EEC and 97/11/EC,
and Directive 2003/35/EC of the European Parliament and of the Council);
e Decree-Law No. 194/2000, of 21 August, which transposes Council Directive
96/61/EC, of 24 September, regarding the prevention and control of pollution,
into Portuguese law;
f Ordinance No. 330/2001, of 2 April, which establishes technical rules governing
the structure of the proposed definitions of the scope of the environmental
impact assessment (‘EIA’) of the principal development area, and the technical
rules regarding the structure of EIAs;
g Decree-Law No. 198-A/2001, of 6 July, which establishes the legal framework
governing the environmental rehabilitation of degraded mining areas;
h Decree-Law No. 152/2002, of 23 May, which establishes the legal framework
governing the issue of licences, and the installation, operation, closure and post-
closure maintenance of landfills of waste disposal, and which transposes Council
Directive 1999/31/EC, of 26 April, regarding the deposit of waste in landfills,
into Portuguese law;
i Decree-Law No. 165/2002, of 17 July, which establishes the powers and duties
of the bodies involved in protection against ionising radiation and in general
protection principles, and transposes the corresponding provisions of Council
Directive 96/29/EURATOM, of 13 May, which establishes basic safety standards
for the protection of the health of the general public and workers against the
dangers of ionising radiation, into Portuguese law; and
j Implementing Decree No. 8/2003, of 11 April, which approves the Industrial
Activity Licensing Regulation.

The Ministry of the Economy is the main government body that defines, implements and
evaluates the geological and energy policies, and issues the main administrative decisions
on the licensing, granting and claiming of mining concessions though its Energy and

193
Portugal

Geology General Directorate (‘the DGEG’). The Ministry of Environment is responsible


for matters such as environmental impact and assessment, territorial planning and
regional development policies as well as pollution issues. Labour protection and health
and safety matters fall under the auspices of the Ministry of Labour.
There is no standard classification for public reporting of mineral resources and
reserves. According to international practice, the reporting terminology is as follows:
‘inferred’, ‘indicated’ and ‘measured’ for mineral resources; and ‘probable’ and ‘proved’
for mineral reserves.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
Paragraph 84 of the Portuguese Constitution provides that ‘mineral deposits, mineral
and medicinal water sources and natural subterranean cavities below the ground, save for
such rocks, ordinary earth and other materials as may habitually be used for construction’
belong to the public domain (i.e., to the state).
Therefore, all mineral deposits and occurrences in Portuguese territory and in its
marine exclusive economic zone that, due to their rarity, high specific value or importance
in terms of the industrial application of their content, may be of special interest to the
Portuguese economy (ore deposits, hydro-mineral and geothermal resources) vest in
the state. Mineral masses (rocks and other mineral occurrences not qualified by law as
mineral deposits) can, however, be privately owned.
If a specific geological resource fulfils both classifications, the legal framework that
confers the highest economic importance and permits a better development of all of its
potential benefits is applicable.
Title to mineral deposits cannot be transferred to private parties, but Paragraph 9
of Decree-Law No. 90/1990, of 16 March, provides, with regard to the rights in respect
of resources belonging to the public domain, that the following rights may be granted:
a) Exploration, allowing operations with a view to the discovery of resources and the
determination of their characteristics, until the confirmation of the existence of economic
value;
b) Exploitation, allowing the execution of activities following exploration, i.e. the commercial
exploitation of resources.

The exploratory works may be carried out directly by the state, or granted to private
individuals or companies by means of administrative contracts (licences or concessions).
Recently, and particularly with regard to the commercial exploitation of uranium
(of which there is a legal monopoly), the state has operated via EDM, which is a publicly
owned company.
For the purposes of the confirmation and commercial exploitation of resources,
Portuguese territory and the Portuguese exclusive economic zone are classified as either:
a reserved areas over which there are exploration rights or rights derived from
commercial exploitation licences; or
b the remaining available areas.

194
Portugal

Prospecting and exploration rights, and commercial exploitation rights, can be granted
in respect of both types of area.
The commercial exploitation of mineral resources is subject to the prior issue of
establishment licences, which are issued to the landowner, or to a third party if there is a
prior commercial exploitation contract between the third party and the landowner. The
Ministry of the Economy keeps a record of all identified mineral resources as well as of
prospecting, exploration and commercial exploitation concessions.

ii Surface and mining rights


Procedures for acquisition of mining rights
Mining rights are acquired through a licence for exploration or concession (exploitation)
contracts with the state.
Applications for exploration and exploitation rights must be submitted to the
DGEG, together with the supporting documentation required by law.

Exploration licence
Once a submitted application has been checked and is found to be in order (i.e., all the
required documents have been submitted, and compliance with the objective conditions
governing the grant of the rights applied for are confirmed), and provided that there are
no reasons to reject the application summarily, the DGEG notifies the applicant to post
a provisional bond.
At this stage the applicant must present at least the following documents:
a an application addressed to the Ministry of the Economy;
b a geographic map that identifies the proposed area;
c a summary description of the application for the exploration and research rights
that identifies the minerals included in the application;
d a general plan of the works to be done;
e the amount of the proposed investment and the type of finance; and
f evidence of the trustworthiness, and technical and financial capacity, of the
applicant.

Once the provisional bond is posted, the application must be published in the Official
Bulletin, national newspapers and newspapers in the proposed concession area, giving
public notice of the application and inviting interested parties to submit substantiated
objections within 30 days.
After this period, the DGEG may request the applicant to provide additional
information regarding the conditions proposed.
Once the procedure has been concluded, the DGEG must, within 90 days,
submit the application, together with its own opinion, to the Minister of the Economy
for a decision.
The Minister of the Economy may order a call for proposals for prospecting
activities in defined areas and with regard to specific resources by means of an open or
limited public tender.
If a public tender or limited tender (among those companies that have expressed
an interest in the area) is launched, the procedure for the grant of prospecting rights may

195
Portugal

take from six to 12 months. Should this not be necessary, the procedure is shorter and
can be completed in just two months from the publication of the application.
Generally, the prospecting and research contract establishes the royalties that will
be payable in the event that an exploration contract is signed.

Experimental concession
If, during or after the expiry of the validity period of an exploration licence, there are
indications of the existence of a mineral deposit in an area, the licence holder may request
the detachment of the area and an experimental concession. Experimental concessions
are usually granted for two years, and allow surveys and works involved in the testing and
surveying of the mineral.
An experimental concession has the advantage of not requiring annual releases
of areas, and is the stage that immediately precedes the granting of an exploration
concession. This stage is not, however, mandatory, and an exploration concession may be
granted without a prior experimental concession.

Exploitation concession
The procedure for the granting of an exploitation concession is similar to the exploration
concession procedure. However, the documents that must be filed with the application
are much more extensive, as the applicant has to prove the existence of a mineral deposit
and compliance with all required conditions.
The following must be submitted in support of the application, in addition to the
documents referred to above with regard to the prospecting and surveying licence:
a a brief description of the mineral deposit;
b an indication of the person responsible for the technical management of the
future operations;
c the applicant’s commercial registry certificate;
d an undertaking signed by the proposed technical manager;
e a detailed report including a description of the mineral deposit, and the drawings
necessary in order to understand the same;
f a topographic map;
g a plan showing the mining and minerallurgic facilities, and the antipollution and
land reinstatement measures to be implemented; and
h a pre-feasibility exploitation study.

A concession can be granted directly, upon application by the interested party, or via a
public tender or some other administrative procedure to that end.
Depending on the type of award (i.e., direct or by public tender), the procedure
takes between six and 18 months.

Conditions for the granting of the rights


Concession contracts provide that the concessionaire assumes the obligation to make
a specified minimum investment and to create jobs. Typically, these investments are
required to be secured by bank guarantees (or some other reliable means, as agreed with
the DGEG).

196
Portugal

Prospectors, operators and grantees of an exploitation concession must commence


the works within three months of the signing of the contract, and must indemnify third
parties with regard to loss and damage directly caused by their activities.
Furthermore, prospectors and operators must:
a work according to the approved plan; and
b implement all prescribed safety measures.

Grantees of an exploitation concession must:


a ensure that there is constant activity on-site, unless otherwise authorised;
b comply with the health and safety at work and environmental protection rules;
c use the resources in accordance with adequate technical norms and in the best
public interest, and refrain from dangerous mining practices;
d whenever possible, and provided that exploitation compatibility exists, to operate
public domain resources with a confirmed economic value in the delineated area;
and
e report data regarding the nature and status of the resource, within the timing
stipulated by the grantor.

Grantees of an experimental exploitation concession must, in addition to the obligations


referred to above, carry out the works to correctly identify the resources within the agreed
terms. A bank guarantee to secure the working programme expenditure is also required.
The amount of the guarantee varies depending on the extent of the investment. The
guarantee is released once the conclusion of the proposed and contractual investment has
been confirmed by the relevant Portuguese authorities.

Term of the award of the rights


Exploration licences are generally granted for an initial period of three years, extendible
for two additional one-year periods. According to the law, the total term of exploration
licences, including extensions, cannot exceed five years, except in certain duly justified
cases.
The law establishes no maximum term for exploitation licences, which usually
have a 30-year term, renewable for an additional 20 years.

Protection of mining rights


The Constitution and the law provide a stable legal framework. Access to the courts is
unrestricted, apart from the usual legal restrictions. The mining sector is supervised by the
Ministry of the Economy and its administrative decisions or penalties may be appealed
against to the Administrative Court. The performance of concessions is governed by the
general law.
Private parties may acquire the right to explore or to exploit the public domain by
administrative contract. Such contracts contain the following provisions:
a mutual rights and obligations;
b the area and identification of the land;
c the commencement and termination dates;
d the renewal conditions;
e the operations programme;

197
Portugal

f the investment plan; and


g other specific legal clauses.

Subject to lease, the private parties may also occupy buildings in the area granted that are
recognised by the government as necessary for the operations.
Private parties that have either previously owned a quarry, or made a quarry
contract with the owner of a mineral mass or spring water, must obtain an establishment
licence and may occupy non-public domain areas that are necessary for the temporary
prospecting and exploration, subject to the payment of rent and a collateral fee. Areas
subject to exploration or exploitation contracts, and surrounding areas may be subject
to public easement.
There is no difference between the rights granted to Portuguese parties and those
granted to foreign parties. Parties that are not resident in the EU must first have been
established in accordance with the law of a Member State of the EU.

iii Additional permits and licences


In order to conduct exploratory works, concessionaires must conduct a prior
environmental impact study (‘EIS’) in order to obtain an environmental licence.

iv Closure and remediation of mining projects


There are environmental obligations that have to be secured after the closure of a mining
project, particularly environmental recovery obligations.
Depending on the nature of the exploitation, and the areas and infrastructure
covered, the obligations relating to the closure of the mine can be quite demanding, both
technically and financially.
Guarantees to secure mine closure obligations are provided via the creation of a
mine closure fund, to which annual transfers are made in accordance with the closure
costs and the lifetime of the mining project. The contributions to this fund may be
treated as costs for the purposes of the calculation of the mine operator’s net income.
The fund must be subject to restrictions that limit the use of the fund assets to the
purpose for which the fund was created.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


The main provision is Decree-Law No. 90/90, which provides that all direct and indirect
safety, health and environmental interests of workers must be protected.
The main regulatory bodies are the Ministry of Labour and Social Security, the
Ministry of Health and the Ministry of the Economy. Decree-Laws Nos. 274/89, 162/90,
441/91, 26/94 and 141/95, 82/99, and Implementing Decree No. 34/92 (regarding
uranium), develop and complement the primary provisions.

198
Portugal

ii Environmental compliance
The regulatory bodies are the Ministry of Environment and the Ministry of Labour and
Social Security. The primary legislation is Law No. 11/87, which creates the general legal
framework governing the environment, and Decree-Laws Nos. 90/90 and 88/90, which
are complemented by the following Decree-Laws:
a Decree-Law No. 69/2000 (as amended by the Decree-Laws Nos. 74/2001 and
197/2005);
b Decree-Law No. 209/2008;
c Decree-Laws Nos. 78/2004 and 276/99 (regarding air pollution); and
d Decree-Law No. 251/87 (as amended by Decree-Law No. 292/89) and Decree-
Law No. 182/2006 (regarding noise).

Portugal complies with the EU environment directives and regulations. Mining projects
require environmental permits. Both the operation and closure of geological resources
are subject to technical rules, and environmental protection, sustainability and landscape
recovery measures (i.e., those included in plans approved by authorities such as the
environment and municipal authorities). Decree-Law No. 69/2000, as amended by
Decree-Laws Nos. 74/2001 and 197/2005, provide that mining projects are subject to
an EIA, which includes an EIS, in order to determine the direct and indirect effects
and consequences of the project on the environment, and to recommend sustainable
remedies to compensate for or minimise those effects.
An environmental licence is also required. An environmental licence is an
administrative instrument that ensures that the best industrial techniques available are
used, including remedies to minimise waste production, and air, noise, water and soil
pollution (as per Decree-Law No. 194/2000, which transposes EU Council Directive
96/61/EC into Portuguese law). This licence takes into account the content of the EIA.
The time involved in obtaining a permit varies, but normally takes eight to 12 months.

iii Third-party rights


There is a strong body of equity legislation in Portugal, although there are no specific
legal provisions regarding indigenous, aboriginal, or other currently or previously
disadvantaged, peoples, which affect the acquisition or exercise of mining rights.

iv Additional considerations
There are no other social, environmental and political considerations that could have a
direct impact on mining rights or mining projects.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


There are no special provisions or limitations with regard to the import of equipment
and machinery, other than those in the EU Health and Safety Regulation.

199
Portugal

There are also no general restrictions or limitations on the processing, export or


sale of metallic minerals, although the government reserves the right to monitor the
processing, export and sale of metallic minerals for statistical and auditing purposes.
Regarding the use of foreign labour and services, the general Portuguese labour
rules apply, under which a foreigner must be duly authorised to work in Portugal (i.e.,
possess a work visa). There are no specific provisions applicable to mining operations.

ii Sale, import and export of extracted or processed minerals


There is a specific legal framework governing the mining, sale and export of uranium.
Otherwise, there are no general restrictions or limitations on the import, export or sale
of processed minerals.

iii Foreign investment


There are no restrictions or limitations in Portugal on the imports of funds for mining
activities, or on the use of proceeds from the export or sale of metallic minerals. There are
no restrictions on foreign investment, and no difficulties in capital repatriation. Foreign
investment in mining companies or mining projects is not subject to government review.
Although the government may require evidence of the technical and financial
capacity of the concessionaires of mining projects, the criteria applicable to foreign
investors are the same as those applicable to Portuguese investors.
Depending on the existing programmes, it is possible to obtain financial and
fiscal incentives for the development of mining projects. These projects are managed by
AICEP.2

VI CHARGES

i Royalties
Royalties are defined in the concession agreements entered into by the state and
concessionaires.
Royalties were, until recently, generally calculated on the basis of two calculations,
at the discretion of the state:
a a percentage of the mine head value of the ore (1 per cent to 3 per cent); or
b a percentage of the net smelter return on sales (up to 10 per cent).

The state, however, has changed its approach with regard to royalties, and the government’s
current position is that they should be variable and be calculated in accordance with a
progressive formula linked to the net smelter return on sales, with a minimum of zero
per cent and a maximum of 25 per cent. The higher rates up to 25 per cent apply only to
cases in which the markets operate with speculative prices.

2 www.portugalglobal.pt.

200
Portugal

ii Taxes
Two taxes apply directly to the companies under Portuguese Law: corporate income tax
and a municipal tax.
The standard rate of corporate income tax rate is currently 25 per cent. However,
this tax rate may be up to 30 per cent in the case of companies with a taxable income of
over €10 million.
The municipal tax is fixed yearly by the municipal authority and applies to
companies trading within the area of the municipality. The rate of this tax is up to 1.5 per
cent of the company’s taxable income.

iii Duties
There are no specific provisions with regard to the duties applied to minerals.

iv Other fees
Under exploitation contracts, holders of exploitation rights are required to pay a yearly
fee to the state for the duration of the contract. This fee varies in accordance with the
area of the concession.

VII OUTLOOK AND TRENDS

Other than the change of government policy with regard to the calculation of royalties
(see Section VI.i, supra) (which applies only to new contracts or in the renegotiation of
existing contracts, but is not unilaterally applicable to existing contracts), the government’s
general policy of strategic support of the mining industry has been implemented, and is
expected to continue to be implemented, via the increased flexibility of administrative
procedures and by increasing the technical support provided by the DGEG, rather than
changes to mining law and regulations.
There appear to be no plans to significantly alter the existing laws and regulations.

201
Chapter 18

SOUTH AFRICA
Modisaotsile Matlou 1

I OVERVIEW

South Africa has a mature mining industry that started with the discovery of gold and
diamonds in the late 1800s. This mining industry has seen an evolving regulatory framework
over the past 140 or so years. Currently, the South African mining industry is regulated
by a hybrid regulatory regime, which combines features of public administration as well as
private contractual arrangements. At the heart of the regulatory framework is an attempt to
balance mineral development on the one hand as well as the protection of the environment
on the other. This balance is encompassed in the concept of ‘sustainable development’.2
The mining industry has been the cornerstone of the South African economy
and, in fact, is the bedrock upon which the modern South African economy is based.
Government policy in relation to the mining industry in South Africa seeks to, inter alia,
encourage and promote economic development, responsible mining, environmental
protection, transformation of the mining industry (owing to the discriminatory political
system that was in place in South Africa until early 1994) and community development.
Government policy seeks to promote and sustain the mining industry for national benefit
while at the same time encouraging international investment.3

1 Modisaotsile Matlou is a director at ENS (Edward Nathan Sonnenbergs). The author would like
to thank Busani Dhladhla, a candidate attorney in the mining department, for her assistance in
researching this chapter.
2 For a historical discussion of the South African mining industry, see John Lang, Bullion
Johannesburg: Men, Mines and the Challenge of Conflict (Jonathan Ball Publishers, Johannesburg,
1986).
3 The government’s mining and minerals policy was first published in October 1998 in the
White Paper: ‘A Minerals and Mining Policy for South Africa’. This policy led to the passing
and promulgation of the Mineral and Petroleum Resources Development Act 28 of 2002.

202
South Africa

According to the 2012 World Investment Report published by the United


Nations Conference on Trade and Development, foreign direct investment into sub-
Saharan Africa jumped by 25 per cent in 2011.4 Foreign direct investment inflow soared
from $29.5 billion in 2010 to $36.9 billion in 2011. In South Africa’s case, foreign direct
investment in 2010 was $1.3 billion and in 2011 it was $5.81 billion, making South
Africa the second-largest foreign direct investment destination on the African continent
after Nigeria in 2011.
In 2002 the legislature passed the Mineral and Petroleum Resources Development
Act 2002 (‘the MPRDA’), the principal regulatory framework for the mining industry.
The MPRDA provides that mineral resources are a common heritage of the
people of South Africa and the state is the custodian of those mineral resources.5 Under
the MPRDA, various types of statutory authorisations are provided for. In the case
of mineral resources (as opposed to petroleum resources) prospecting rights, mining
rights and mining permits are the main titles issued under the MPRDA. Prospecting
and mining rights are limited real rights,6 which are administratively granted by the
state to applicants who meet predetermined requirements. Mining permits are designed
for small-scale and short-term mining operations and are administrative authorisations
issued by the state once the prerequisites are met by an applicant.7
South Africa has a diverse mineral resource portfolio and is home to the largest
platinum group metal deposits and still has significant gold and diamond deposits. In
addition to these, South Africa has a well-established and mature coal mining industry,
as well as an array of base metals and mineral industry. In particular, South Africa has
significant chrome, manganese and iron ore deposits. New and significant mining
projects have been established in the manganese industry, the iron ore industry as well
as the base minerals and metals industries. Between 1995 and 2010, many new mining
projects have been established in South Africa.
Since its readmission into the world community of nations in 1994, South
Africa has concluded a number of bilateral investments treaties as well as other trading
and cooperation agreements with various nations in relation to its mineral resources.
Significant agreements include the following:

Country Type of agreement Subject of agreement Date


India Cooperation agreement Geology and mineral 1999
resource
India Protocol of the Second Geology and mineral 1999
IndoSA Working Group resource

4 See www.unctad.org.
5 Section 3(1) of the MPRDA; see also the fourth clause of the Freedom Charter 1955, which
proclaims that: ‘The National wealth of our country, the heritage of South Africans, shall
be restored to the people; The Mineral wealth beneath the soil ... shall be transferred to the
ownership of the people as a whole.’
6 See Section 5(1) of the MPRDA.
7 See Section 27 of the MPRDA.

203
South Africa

Country Type of agreement Subject of agreement Date


People’s Republic of Cooperation agreement Minerals and energy 2007
China
Angola Cooperation agreement Geology and mining 2007
People’s Republic of Letter of intent and Mineral and geology 2008
China cooperation

South Africa has seen keen interest from foreign investors in its mining sector. Notable
recent transactions in this regard include the acquisition of the South African public
company Metorex Limited by a Chinese Consortium led by Jinchuan Group Co Ltd,
the takeover of the South African gold producer, Gold One Africa Limited, by a Chinese
Consortium – as well as significant investments by Australian, American, Indian and
Canadian companies in the South African mining industry.
South Africa is in the top percentile of countries ranked by the ease with which
business is conducted in the respective countries.8 In this regard, South Africa ranks
ahead of world giants such as Russia and China. Consequently, the South African mining
industry is well placed and continues to be well placed for foreign direct investment.
The South African mining industry is subject to the normal risks of investment,
including political risk, social risk, and security of tenure risk. In particular, and owing
to the strength of the organised labour movement in South Africa, South African
employees enjoy protection from employment legislation.9 Second, and owing to the
history of land distribution in South Africa, and the transformational restitution of
land to indigenous South Africans, security of tenure of surface use remains a risk. This
risk can be mitigated by entering into formal land leases and other types of surface use
agreements and arrangements. The other risk that South Africa faces is directly linked to
its administrative system of granting prospecting and mining rights; because applicants
are always subject to the discretion of the regulator, and because of bureaucratic
incapacity, it takes relatively longer for prospecting and mining rights to be issued. This
is a major issue if one looks at countries like Zambia, where a mining licence is granted
in about two months. This is one of the reasons why the South African government is
currently studying the possibility of migrating the regulatory framework to a licensing
system, which would enable the state to grant rights quicker and to respond quicker to
the administrative process.
Allegations of corruption have led to a legal battle between Sishen Iron Ore
Ltd and ICT 69 (Pty) Ltd in the matter of Sishen Iron Ore Company (Pty) Limited and
Another v. Minister of Mineral Resources and Others,10 which is currently pending before
the Supreme Court of Appeals.

8 See www.doingbusiness.org.
9 Employment legislation includes the Labour Relations Act 66 of 1995, the Employment
Equity Act 55 of 1998, the Basic Conditions of Employment Act 75 of 1997 and the Skills
Development Act 97 of 1998.
10 Unreported GNP case No. 28980/10, 20 December 2011.

204
South Africa

Perhaps the single most important risk facing South Africa today is under supply
of electricity. The power cuts that characterised the South African mining industry
between 2008 and 2010 cost the mining industry millions of rands.11 Although plans
are afoot to increase the national grid, the reality is that South Africa does not have
much more capacity to provide electricity for new developments. In this regard, it is
increasingly likely that new projects will rely on private–public partnerships for power
generation.
Despite its challenges, and because of its vast mineral resources, South Africa
remains a critical mining destination for international as well as domestic investors.
South Africa also has over 140 years of expertise in the mining industry and some of the
world’s leading professionals in the industry. South Africa also has a relatively developed
infrastructure as well as capacity for project development. These factors make South
Africa an important mining destination.

II LEGAL FRAMEWORK

The South African mining industry is regulated by various pieces of legislation and
regulations. The principal statute is the MPRDA. Some of the more important pieces of
legislation include the Precious Metals Act 2005, the Diamonds Act 1986, the National
Water Act 1998 (‘the NWA’), the National Environmental Management Act, 1998
(‘NEMA’), the National Environmental Management: Air Quality Act 2004 (‘the Air
Quality Act’), the National Environmental Management: Waste Act 2008 (‘the Waste
Act’), the Mineral and Petroleum Resources Royalty Act 2008, (‘the Royalty Act’) the
Mine Health and Safety Act 1996 (‘the MHSA’) and the Mining Titles Registration Act
1967. In addition to these pieces of legislation, and because South African mining law
is not codified, the body of the common law remains applicable.12 In addition, South
Africa has concluded various international treaties relating to mining.
The Department of Mineral Resources (‘the DMR’) is the primary department that
administers the mining industry on behalf of the state. The three important divisions of
the DMR for purposes of mineral regulation are the following: the Directorate, Mineral
Development; the Health and Safety Inspectorate; and the Mining Titles Registration
Office.
All applications for the various types of mining authorisations must be made to
regional office of the DMR and are processed in the regional offices before they are sent
to the Head Office for granting. Once prospecting and mining rights have been granted
and notarially executed, they must be registered at the Mineral and Petroleum Titles
Registration Office. This office serves as a specialised registry in relation only to mining
titles and documents incidental thereto. The Inspectorate of Health and Safety is charged

11 The Impact of the Electricity Price Increases and Rationing of the Economy of South Africa,
HSRC Report 2008.
12 For a discussion of mining law principles in South Africa, see the seminal works Franklin &
Kaplan, The Mining and Mineral Laws of South Africa (Butterworths, 1982) and Dale et al.,
South African Mineral and Petroleum Law (LexisNexis, 2005).

205
South Africa

with the responsibility of ensuring that mining operations and mining works are both
safe and healthy.13
Under Sections 21 and 28 of the MPRDA, holders of prospecting and mining
rights are required to submit certain prescribed information in relation to their activities
to the DMR. This information includes prescribed monthly returns regarding mining
and prospecting operations as well as audited annual financial reports and annual reports
in relation to compliance with the requirements to introduce historically disadvantaged
South Africans to the minerals industry (the Black Economic Empowerment (‘BEE’)
requirements). In addition, and in terms of the standard terms and conditions of mining
rights, holders of such rights are required to maintain books, plans and records in regard
to mining operations and to furnish such reports as the DMR may require. Every holder
of a mining right is supposed to furnish monthly returns in accordance with the MPRDA
and also give the DMR plans for future mining activities.
Section 3 of the MPRDA provides that the state, acting through the Minister
of Mineral Resources, shall be the custodian of the nation’s mineral and petroleum
resources. The mining industry is, therefore, regulated at national level. If South Africa
were a federation, the mining industry would be regulated at federal level. However,
because of the constitutional framework of South Africa, in terms of which different
spheres of government have different competences that affect the mining industry,
mining companies must comply with regulations made in each sphere of government.
For instance, in terms of planning legislation, which is a competence of the provincial
(or state) government, mining companies must comply with planning by-laws and
regulations. This position was laid down in the recent judgment of the Constitutional
Court in the case of Maccsand.14 The dispute in Maccsand involved a dispute in the
implementation of legislation at national and provincial levels, which had the effect
of requiring mining companies to comply with onerous regulations administered by
different spheres of government. The court held that the dispute was, in essence, a
cooperative governance issue, which must be resolved in accordance with Chapter 3 of
the Constitution 1996.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
The MPRDA provides that mineral resources are a common heritage of the people of
South Africa and that they belong to the nation. This concept of common heritage and
custodianship creates significant jurisprudential questions since ‘the nation’ is not a legal
person and cannot take ownership of anything.15 The MPRDA came into force on 1 May
2004 and replaced the Minerals Act 1991, in terms of which it was possible for private
individuals to hold mineral rights or title to minerals.

13 The inspectorate is charged with implementing and administering the MHSA.


14 Maccsand (Pty) Limited v. City of Cape Town and Others (CCT 103/11) [2012] ZACC 7; 2012
(4) SA 181 CC.
15 See Dale et al., page MPRDA-121 to 127.

206
South Africa

Under the MPRDA it is not possible for individuals to own any title to minerals
since all the titles to all the minerals belong to the nation and the state is the custodian
thereof. Prospecting and mining rights are transferable to either individuals or companies
subject to the consent of the Minister.16

ii Surface and mining rights


In order for an applicant to be granted prospecting and mining rights, an applicant must
apply in the prescribed manner.17 The applicant must apply at the regional office of the
DMR in the region in which the land to which the application relates is situated. The
essential requirements for applying for a prospecting right are that an applicant must
prove both financial and technical ability to conduct prospecting operations optimally
in accordance with the prospecting work programme. In addition, the applicant must
show that the prospecting operations will not lead to environmental degradation. This
is normally done by way of an environmental management plan, which is approved by
the DMR. The procedure for applying for mining rights is similar to the aforementioned
procedure. The main difference between the two procedures is that in respect of mining
rights, an applicant must also give effect to the BEE requirements and also have a social
and labour plan as part of the application process. The social and labour plan is a document
designed to transform the South African mining industry from its discriminatory past
and to counter the reality that when most mining operations shut down, the host areas
go from being vibrant economies to very marginalised economies – these are referred to
in South Africa as ‘ghost towns’. Mining companies must have programmes designed to
transform and empower employees as well as the host communities from a developmental
as well as a socio-economic point of view to make sure that the host community can
sustain itself after the end of life of the mine.
The MPRDA does not impose deadlines by which the DMR must have granted
prospecting and mining rights. It only has deadlines by which an applicant must have
taken certain administrative steps before its application can be assessed. This is an
inherent weakness in the MPRDA and, consequently, it takes the DMR anything from
a couple of months to a couple of years to grant or refuse applications.
Section 5 of the MPRDA provides that prospecting and mining rights are limited
real rights, binding throughout the world. These rights are notarially executed and are
registrable at the Mineral and Petroleum Titles Registration Office. These rights are subject
to standard terms and conditions that are not negotiable and have been predetermined
by the DMR. By and large, the terms and conditions of prospecting and mining rights
follow the MPRDA provisions but, as can be expected, the terms and conditions tend to
go beyond the statutory provisions.

16 This is provided for in Section 11 of the MPRDA. Section 11 is very difficult to interpret. See
Dale et al. at page MPRDA-161 to 176(7). See also cases cited there.
17 Sections 16 and 17 apply to applications for prospecting rights while Sections 22 and 23 apply
to applications for mining rights.

207
South Africa

Prospecting rights are granted for a period of anything between 12 months and
five years. These rights are renewable. Mining rights are granted for a period up to 30
years and are also renewable.
Since prospecting and mining rights are limited real rights, they enjoy all the
benefits of real rights and are attended by the legal incidents attaching to real rights.
For instance, and in terms of the doctrine of constructive notice, once prospecting and
mining rights are registered at the Mineral and Petroleum Titles Registration Office, the
whole world is presumed to know of their existence and registration.
South African law does not impose any restrictions on the acquisition of surface
or mining rights by foreign parties. The only limitation imposed by law is that a holder of
a mining right must have a minimum of 26 per cent BEE shareholding.18 This limitation
is designed to transform the mining industry by introducing historically disadvantaged
South Africans into the mining industry. Apart from this limitation, foreign parties are
not restricted in any way from holding mining rights in South Africa.

iii Additional permits and licences


There are various additional permits and licences that are required by different types of
mining operations in South Africa. Some permits are sector-specific and others are of
general application.
Depending on the nature and type of the mining operations in question, it may
also be necessary for the holder of the mining rights to obtain a separate environmental
authorisation in terms of the NEMA, as well as various other environmental permissions
(see Section IV, infra). In addition, and in terms of the NWA, the holder of a mining right
requires a water use licence to be able to use water for purposes of mining operations.
Mining companies are required to have a certificate in respect of explosives for
manufacturing site, should they have an explosives manufacturing site. In addition, they
are required to have an explosives licence if they have an explosives magazine.
Depending on their operations, mining companies may also require a nuclear
installation or vessel licence and the certification of registration under the Nuclear
Regulatory Act.
Mining companies are also required by the Air Quality Act to have an atmospheric
emissions licence.
Various provincial and local government town planning laws may also require
mining companies to have a zoning for purposes of mining before they conduct mining
operations on a specified piece of land.19

iv Closure and remediation of mining projects


A holder of a mining right is obliged to have an environmental management programme
that ensures that the mining operations will not result in unacceptable pollution,
ecological degradation or damage to the environment. Second, a holder of a right must
make financial provision for the rehabilitation or management of negative environmental

18 See the Broad-Based Socio-Economic Empowerment Charter, as amended, September 2010.


19 Refer to the Maccsand case; see footnote 13, supra.

208
South Africa

impacts caused by mining operations. There are a number of methods that are prescribed
for making the requisite financial provision. A holder may choose to contribute an
amount into an approved environmental rehabilitation trust established in accordance
with Section 37A of the Income Tax Act 1962. A holder may alternatively procure a
financial guarantee from a South African-registered bank or other bank or financial
institution approved by the Director General guaranteeing the financial provision
relating to the environmental management programme. A holder may also deposit the
financial provision into an account specified by the DMR. Last, the holder may use
any method of financial provision that the Director General may approve from time to
time. In practice, mining companies have bought financial instruments from insurance
companies to support their rehabilitation obligations. The DMR has approved some
of these products and mining companies can use them without further dealings with
the DMR. In all other instances where mining companies wish to procure financial
instruments from insurance houses, it is prudent for them to seek prior approval from
the DMR before they do so. The most popular methods of financial provision are the
establishment of the environmental rehabilitation trust or financial guarantees by banks
or registered financial institutions.
The holder of a mining right remains responsible for all environmental liability,
pollution or ecological degradation and the management thereof until the Minister has
issued a closure certificate to the holder concerned;20 for this, the holder must apply to
the Minister. The holder of a mining right can apply for a closure certificate upon the
occurrence of any of the following:
a the lapse, abandonment or cancellation of the mining right in question;
b the cessation of mining operations;
c the relinquishment of any portion of the land on which mining operations
occurred; or
d completion of the prescribed closing plan to which the mining right relates.

If the holder of a right wants to apply for a closure certificate upon the completion
of mining operations, the prescribed closing plan must be completed, after which the
holder must apply for a closure certificate within 180 days. Such application must be
accompanied by a prescribed environmental risk report.
The closure plan must contain the following:
a description of the closure objective and how the objective relates to the operations
and its environmental and social setting;
b a summary of the results of the environmental risk report detailing and identifying
the residual and latent impacts;
c a summary of the results of progressive rehabilitation undertaken;
d a description of the methods to decommission each operation and the mitigation
or management strategy proposed to avoid, minimise and manage residual or
latent impacts;
e details of any long-term management and maintenance expected;

20 Section 43 of the MPRDA.

209
South Africa

f details of proposed closure costs and financial provision for monitoring,


maintenance and post-closure management; and
g technical appendices supporting the closure plan.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


The MPRDA provides that any prospecting or mining operation must be conducted in
accordance with generally accepted principles of sustainable development. Sustainable
development requires that social, economic and environmental factors be integrated into
planning and implementation of prospecting and mining projects in order to ensure that
exploitation of mineral resources serves present and future generations. The MPRDA
further provides that certain principles set out in NEMA (which include considerations
relevant to sustainable development) serve as a guideline for the interpretation,
administration and implementation of the environmental requirements of the MPRDA.21
The protection of the health and safety of employees and other persons at mines
is provided for in the MHSA and its regulations. An applicant for a prospecting or
mining right must show the ability to comply with the provisions of the MHSA. The
right holder is required to implement the procedures prescribed by the MHSA, which
regulates all matters pertaining to the health and safety of any person at a mine or within
a mining area. The definition of ‘mining area’ and ‘mine’ are sufficiently wide to cover
adjacent and non-adjacent areas on which operations incidental to mining take place.22

ii Environmental compliance
In the case of a prospecting right, an applicant must submit an environmental management
plan to the relevant regional manager. The environmental management plan must be
submitted within 60 days from the date on which the regional manager instructs that it
be submitted. In the case of a mining right, an applicant must conduct an environmental
impact assessment and submit an environmental management programme to the
regional manager. Such an environmental management programme must be lodged for
review and approval within 180 days of the date on which the regional manager instructs
that it be submitted.
A holder of a prospecting right cannot commence prospecting operations without
an approved environmental management plan. Similarly, a holder of a mining right
cannot commence mining operations without an approved environmental management
programme. Sometimes prospecting and mining operations require the undertaking of
additional activities that may not commence without prior approval in terms of the
various environmental laws. In terms of NEMA, an environmental authorisation must
be obtained from the Department of Environmental Affairs in order to undertake certain
listed activities.

21 See Section 37 of the MPRDA.


22 See the definition of ‘mining area’ in Section 1 of the MPRDA.

210
South Africa

Depending on the nature and size of the activity, either a basic assessment or
scoping and environmental impact assessment must be undertaken in order to obtain
environmental authorisation. The NWA requires that a water use licence be obtained
from the Department of Water Affairs for undertaking certain water uses. A waste
management licence from the Department of Environmental Affairs is required under
the Waste Act in order to undertake waste management activities. Where there will be
a release of atmospheric emissions, an atmospheric emissions licence must be obtained
under the Air Quality Act.
Further to legislation directly related to environmental management, there is
legislation such as the Hazardous Substances Act, 15 of 1973 (‘the HSA’), which governs
matters that may indirectly have an effect on the environment. In terms of the HSA,
a licence is required where certain hazardous substances will be sold, used or installed.

iii Third-party rights


Extensive provision is made for consultation of interested and affected parties.23 The
MPRDA requires an applicant that prepares an environmental management plan
or programme to investigate, assess and evaluate the impact of the proposed mining
operations on the socio-economic conditions of any person who might be directly
affected by mining operations. NEMA requires that the interests, needs and values of
interested and affected parties be taken into account. The concerns raised by interested
and affected parties must be reported on and addressed.
Furthermore, the MPRDA requires that the owner or occupier of the relevant
land be notified and consulted prior to the commencement of mining operations or any
incidental work.

iv Additional considerations
Duty of care
The environmental laws create a duty of care towards the environment to which a
prospecting or mining right applicant or holder must adhere at all times.

Social considerations
The MPRDA recognises the need to promote local and rural development and the social
rise of communities affected by mining. An applicant for a mining right is therefore
required to compile a social and labour plan that includes a human resources development
plan, a local economic development plan, as well as a process for managing downscaling
and retrenchment. The purpose of a social and labour plan is to:
a promote employment and advance the social and economic welfare of all South
Africans;
b contribute to the transformation of the mining industry; and

23 See Bengwenyama Minerals (Pty) Limited and Others v. Genorah Resources (Pty) Limited and
Others 2011 (4) SA 113 (CC) and Meepo v. Kotze and Others 2008 (1) SA 104 (NC) and
Sections 5(4)(c), 16(4)(b) and 24(4)(b).

211
South Africa

c ensure that holders of mining rights contribute towards the socio-economic


development of the areas in which they are operating.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


Use of foreign labour and services
There is no general prohibition against the use of foreign labour and service in the
South African mining sector, but the normal human capital restrictions that apply to
the employment of foreigners are applicable in South Africa. For instance, every foreign
person who seeks employment in South Africa must apply for and be granted a work
permit. Generally, work permits are not granted to those jobseekers whose skills are easily
obtainable in South Africa.
The South African economy is regulated by a fairly liberal set of regulations, which
impose a limited number of restrictions. Consequently, there is nothing to stop mining
companies from procuring services from foreign entities or persons. The only limitation
is found in the procurement provisions of the mining charter in terms of which mining
companies must procure 70 per cent of their services from ‘BEE entities’. This means
that foreign services providers who do not have BEE ownership can only participate in
30 per cent of the procurement opportunities available.

Processing of extracted minerals


In relation to the processing of extracted minerals, any operations conducted to process
minerals must comply with the national environmental, water and air quality laws
designed to protect the environment against the adverse effects of mineral processing
operations. This means that any processing operations must have some form of
environmental management authorisation (under the MPRDA or under NEMA), a
water use licence under the NWA as well as an atmospheric emissions licence under the
Air Quality Act.
The processing of precious metals as well as diamonds may require a beneficiation
or similar licence in terms of the Precious Metals Act as well as the Diamonds Act.

Import of equipment and machinery


The Broad-Based Socio-Economic Empowerment Charter applicable to the mining
industry requires international suppliers of capital goods in the mining industry to
contribute 0.5 per cent of their South African annual profits to a social development
fund aimed at developing mining communities. This requirement imposes a restriction
on the ability of the international or multinational suppliers of capital goods in regard to
the enjoyment of the profits they make in South Africa.
In addition to this, and in terms of the Customs and Excise Act,24 multinational
suppliers of capital goods must pay a customs duty, which is a percentage of the value of
the goods.

24 Act No. 91 of 1964.

212
South Africa

There is no general regulation regarding the importation of machinery in South


Africa. The South African Bureau of Standards obviously imposes various standards on
all machinery that is imported into the country. Further, all used or second-hand goods
(including machinery) are subject to import control measures.

ii Sale, import and export of extracted or processed minerals


There is no general restriction in relation to the sale of extracted or processed minerals
in South Africa. The pro forma standard terms and conditions of mining rights in South
Africa have a clause dealing with conditions and disposal of minerals; the holder of the
mining right must dispose of all minerals or products derived from the exploitation of
the minerals at competitive market prices (i.e., non-discriminatory prices or non-export
parity prices).
In addition, the government has made beneficiation of minerals in South Africa
a priority matter. Section 26 of the MPRDA provides that any person who intends to
beneficiate any mineral mined in South Africa outside the country may only do so after
written notice and consultation with the Minister. The intention here is to promote local
beneficiation. In addition to this, there are various tax incentives for local beneficiation.
Concomitantly, mining companies may pay an increased tax rate for beneficiating
minerals abroad.

iii Foreign investment


South Africa has a system of exchange control regulation.25 The system is not unique
to South Africa but very few countries now operate a system of exchange control. The
exchange control regulations in South Africa control the flow of money both in and out
of South Africa. They affect every transaction, regardless of what amount is transferred
and who the sender or recipient of the money is. The Reserve Bank of South Africa is the
repository of the power in relation to exchange control and oversees all capital in and out
flows; it has designated power to authorised dealers to oversee and regulate the market
on behalf of the bank.
The following are the key features of the exchange control regulations: (1) they
apply to transactions of any size; (2) no South African resident may effect a transfer of
money without prior approval; (3) no company or legal entity may effect transfer without
prior approval; (4) only authorised dealers are allowed to effect currency transfer; and (5)
all outward payments may only be made for permissible reasons and under conditions
that are approved by the authorised dealers on behalf of the Reserve Bank.
Although there is no general prohibition of money transfer, all money transfer
transactions are subject to the approval of authorised dealers.
All domestic and foreign investment in South Africa enjoys the same protection.
There are no special features or categories of protection afforded to foreign investment.
In addition to the normal investment protections applicable generally in South Africa,
and under the Royalty Act, the Minister of Finance is empowered to enter into fiscal

25 Exchange control is regulated under the Currency and Exchange Act 9 of 1933 and the
Exchange Control Regulations 1961.

213
South Africa

stability agreements that guarantee investors that the royalty rate applicable at the time of
entering into the stability agreement will remain in place for the term of the investment.
This protection is a usual protection in mineral jurisdictions across the globe.

VI CHARGES

i Royalties
Section 3(2) of the MPRDA provides that the state may determine and levy a fee or
consideration payable by holders of mining companies for the exploitation of the
mineral resources. In 2008, parliament passed the Royalty Act, which gives effect to
Section 3(2)(b) of the MPRDA.26 The Royalty Act thus implements the concept of state
custodianship of mineral resources in that it provides compensation sometimes referred
to as a ‘resource rent’, to the state (as custodian) for the country’s permanent loss of non-
renewable resources.
Section 2 of the Royalty Act provides that a person that wins or recovers a mineral
resource from within South Africa must pay a royalty for the benefit of the National
Revenue Fund in respect of the transfer of that mineral resource, which applies only to
resources recovered in South Africa. The obligation to pay this royalty is only triggered
by first transfer of the mineral resource. The requirement that the mineral resource must
have been won or recovered has the consequence that no royalty will be imposed in
respect of unmined mineral resources in the ground when land is transferred or when
a prospecting right, exploration right, mining right or production right is transferred
because in those circumstances the mineral resources have not yet been won or recovered
from the land.
There is no fixed royalty percentage. Instead, a formula-based royalty is imposed
by Section 4 of the MPRDA. Section 9 provides rollover relief where a mine of which a
mineral stockpile or a residue stockpile forms a part or where such a mineral stockpile
or residue stockpile that, in itself, constitutes a going concern, is disposed of as a going
concern or as part of a going concern that is capable of separate operation.
The Royalty Act does not contain any exemption, set-off or deduction of royalties
that continue to be payable to communities or certain other persons in terms of Item 11
in Schedule II to the MPRDA, against state royalties. The origin of the royalties payable
to communities is that the communities were the holders of the mineral rights in respect
of their land. As such they conferred on mining companies the right to mine for minerals
on their land in return for a royalty, this being achieved in various ways such as mineral
leases or cessions of mining leases.
Item 11 in Schedule II to the MPRDA makes a special arrangement insofar as
communities (and certain other persons) are concerned: royalties payable to communities
continue to be payable notwithstanding that the communities’ mineral rights were
taken away and notwithstanding that the mineral resources that previously vested in the
communities now fall under the custodianship of the state. In essence, therefore, the state

26 See the discussion of the Royalty Act in MO Dale, ‘Mining Law’, Annual Survey of South
African Law, 2007 and in Dale et al. op. cit. at page MPRRA-1 to 33.

214
South Africa

stipulated that the mining companies should, instead of paying the state as custodian of
the mineral rights, pay the state’s creditors – the communities – the royalties of which the
state had deprived the communities and thus now owes to the communities.
Until recently, South African mining companies used to pay private royalties to
the holder of old order mineral rights. Since the old order mineral rights are now extinct,
the basis for paying private royalties has also fallen away.

ii Taxes
In the period between 2002 and 2010, a number of new mining laws have been
introduced or revised. New legislation has been introduced for precious metals and the
existing legislation for diamonds has been amended. The health and safety legislation has
also been amended and the MPRDA has been passed as the new principal regulatory
legislation in the mining industry. In addition, new mineral royalty legislation has also
been passed. All of this necessitated an alignment of the tax legislation to respond to the
new mineral regulatory regime. This resulted in various amendments to the Income Tax
Act 1962 between 2004 and 2011.
Most of the tax provisions for the mining sector are outlined in the Income Tax
Act. Its key provisions are the following:

Income tax
The standard corporate income tax rate for all mining companies except gold miners
averaged 28 per cent between 2008 and 2011. Until recently, mining companies were
also required to pay secondary tax on companies of 10 per cent of the net amounts of
dividends declared. This tax has now been replaced by a withholding tax on dividends
paid to shareholders.
A gold mine’s taxable income is derived from a formula that takes account of the
ratio of profits to revenue. As profits rise, the state takes a larger portion in tax; if the
company makes no profit (or low profits at around 5 per cent of revenues), the state
receives no tax but shareholders can still receive dividends during this time.

Capital expenditure allowance


South African law offers generous capital expenditure allowances to mining companies.
Considerable capital expenditure by mining companies can be fully deducted against tax
including spending on prospecting, mining equipment and shaft sinking, development,
general administration and management prior to commencement of production.
Mining companies are allowed to deduct this capital expenditure in the year in which
they occur. The Income Tax Act also provides further capital allowances for gold mines,
which are deducted against capital expenditure and which serve as an incentive for new
mining development. The allowance is calculated as a percentage of capital expenditure
ranging from 10 to 12 per cent per year, depending on the mine. Mining companies can
also offset against their taxes the obligatory environmental rehabilitation expenditure.
Mining companies can also carry forward any losses for an indefinite period and set these
off against future profits. There are new restrictions on the repatriation of profits.

215
South Africa

Ringfencing
The Income Tax Act has ringfencing provisions that allow capital expenditure in relation
to a mine to be restricted to a taxable income of that mine and not to other mines owned
by the same company. The Minister of Finance can, however, rule that company costs
can be offset against another mine. In such event, mining companies can then transfer
up to 25 per cent of the capital expenditure from unprofitable mines to offset income
from profitable ones.

VAT
Value added tax is applied at the standard rate of 14 per cent but all exports are zero-
rated. Since most mineral production is exported, this means that mining companies not
only pay no VAT on those exports but are also entitled to a refund for all the input taxes
paid by them. This is a major gain for gold and diamond companies, for instance, who
export virtually 100 per cent of their products.

Diamonds
As part of the government’s beneficiation strategy, and to promote local beneficiation,
there is a 5 per cent export duty on rough diamonds that are being exported for processing.

iii Duties
Mining companies pay normal duties (such as transfer duty for the transfer of prospecting
and mining rights), custom duty for importing goods and the like.

iv Other fees
Holders of mining rights are required to pay the royalty in terms of the Royalty Act.
In addition, holders of rights are expected to make financial resources available to
implement their social and labour plans.
In addition to this, and in terms of the regulations to the MPRDA, various fees
are payable in respect of applications for rights, administrative appeals in terms of the
MPRDA, prospecting fees, renewal fees and the like.

VII OUTLOOK AND TRENDS 27

i Size of the industry


The mining sector accounts for over 7 per cent of the country’s GDP, it provides
employment to close to 500,000 workers and has mineral resources estimated at $2.5
trillion, the largest in the world.28

27 The following is an abridged version of an article by Modisaotsile Matlou published as ‘South


African Update – Investing in South Africa’s Mining Industry’ by the Institute for the Study of
Cross-Border Investment and M&A; http://xbma.org/forum/south-african-update-investing-
in-south-africas-mining-industry/
28 See ‘Facts and Figures of the South African Mining Industry (2010, 2012)’, published by the
Chamber of Mines.

216
South Africa

South Africa’s mining industry’s income in 2010 was 424 billion rand, while
expenditure was 441 billion rand: 228.4 billion rand was spent on purchases and
operating costs; 78.4 billion rand was paid on salaries and wages for mine employees;
49 billion rand on capital expenditure; 17.1 billion rand in tax; 16.2 billion rand in
dividends, 38 billion rand on depreciation and impairments and 13 billion rand on
interest. The Chamber of Mines of South Africa (‘the Chamber’) estimates that only
about 34 billion rand or 8 per cent of the total expenditure is moved offshore. 29

ii Main resources (minerals)30


The main minerals are gold, platinum group metals, silver, iron ore, manganese, nickel,
coal, chrome and copper. In addition to these, there are mineral deposits of rare earths,
andalusite, base minerals and metals.
South Africa is home to about 80 per cent of the world’s proven platinum and
manganese reserves. South Africa’s fluorspar reserves exceed 30 million tonnes; this is
the third-largest reserve in the world and accounts for around 30 per cent of the western
world’s and about 10 per cent of all known reserves. Also to be found in South Africa
are the following:
a 9 per cent of the world’s iron ore reserves;
b 80 per cent of the world’s known manganese ore deposits;
c 8.5 per cent of the world’s nickel reserves;
d 3.5 per cent of global deposits of zinc;
e 22.1 per cent of the world’s known zircon reserves;
f approximately one-third of the world’s vanadium ore reserves;
g about 40 per cent of the world’s reserves of vermiculite ore.

The Richards Bay titanium reserves are the fourth-largest in the world, and silver is an
important constituent to be found in gold and platinum ores in South Africa and in the
ores of the base metals (zinc, lead and copper).

iii Main players


The Chamber is a prominent industry employers’ organisation, which exists to serve its
members and promote their interests. The members of the Chamber include financial
corporations, contractors, associations and mining companies (Anglo American,
Anglogold Ashanti, BHP Billiton, Harmony, De Beers, Gold Fields and Lonmin, etc.).

iv Investment climate 31
According to the Chamber, in the first half of 2011, steel production stood at an
annualised 1.5 billion tonnes, and is likely to be a record production year.32

29 Ibid. See also the official website of the South African government www.info.gov.za/aboutsa/
minerals and www.southafrica.info/business/economy.
30 See www.bullion.org.za/content/?pagename=Education&pid=81.
31 Ibid.
32 See ‘Facts and Figures of the South African Mining Industry’ 2012.

217
South Africa

Nearly 100 per cent of South Africa’s cement and building aggregates are made
locally and 80 per cent of the country’s steel is made locally from locally mined iron
ore, chrome, manganese and coking coal using furnaces that are 95 per cent powered by
electricity from coal-fired power stations (the 20 per cent imported steel is speciality steel
products not made locally). Over 30 per cent of the country’s liquid fuels are produced
within the country from locally mined coal and 95 per cent of electricity is generated in
power plants that use locally mined coal.
Most domestic chemicals, fertilisers, waxes, polymers and plastics are fabricated
using locally mined minerals and coal and 20 per cent of the world’s platinum catalytic
converters are made in South Africa. The Chamber estimates that another 200 billion rand
in sales value and 150,000 jobs can be attributed to the local downstream beneficiation
sectors. All South Africa’s gold and platinum group metals are refined locally and more
than 50 per cent of diamonds by value are sold locally into the downstream diamond
cutting and polishing industry.

v Nationalisation
The calls by the Youth League of the African National Congress for the nationalisation of
mines were arguably the most talked-about issue relating to mining during the past year.33
The ANC directed a team to look into the merits of nationalisation and the team’s report
effectively ruled it out and called for a possible increase in mining taxes.34 Nationalisation
is not government policy and the Chamber, which represents most of the players in the
mining industry, opposes it. The Chamber is committed to working towards finding the
best alternatives. On the balance of evidence, nationalisation will not take place.

vi Noteworthy projects
Gold One 35
Gold One’s flagship operation is the Modder East mine, the first new mine to be built
in South Africa’s gold-rich East Rand region in 28 years. With a currently defined ore
reserve of 1.53 million ounces at 4.0 grams per tonne and a 13-year life of mine. The
mine’s first tonne of gold was poured in May 2010, 10 months after its commissioning.
At the end of the 2010 financial year, the mine recorded a maiden profit of A$19.35
million before taxation. For 2011, Gold One anticipates increasing gold production by
80 per cent and has forecast annual production of 120,000 ounces.

Kalagadi manganese 36
Kalagadi Resources is in the process of establishing a manganese mine, coupled with a
sinter plant, near Hotazel in the Northern Cape. The main shaft has holed through the
lateral developments to the ventilation shaft at a depth of 281 metres, the production
level of the 11 billion rand project, on which only equity funding has so far been spent.

33 See the ANCYL’s ‘Towards the Transfer of Mineral Wealth’ document, August 2010.
34 See the ANC’s ‘State Intervention In the Minerals Sector’ document, March 2012.
35 See www.gold1.co.za.
36 See www.kalahariresources.co.za

218
South Africa

The project includes Kalagadi constructing a high-carbon ferro-manganese smelter in


Coega’s industrial development zone near Port Elizabeth, which will create the steel-
making ingredient ready for consignment to foreign and local factories.
The three-million-tonne-a-year mine will provide the ore for the production of
2.4 million tonnes a year of sinter, 700,000 tonnes of which will be sent to the ferro-
manganese smelter and 1.7 million tonnes a year of which will be marketed. The smelter
will have a capacity to produce 320,000 tonnes per year of high-carbon ferro-manganese.
Commissioning is scheduled for the third quarter of 2012, with the mine, sinter plant
and smelter expected to employ 2,200 people. Kalagadi is targeting a 50 per cent female
employee complement. Kalagadi has secured both rail and port capacity from Transnet
Freight Rail and power supply from Eskom. Kalagadi is currently generating its own
power for the project from diesel-fuelled generator sets.

Chinese entrance
At the 2011 Mining Ministers Forum in Tianjin, the Minister assured potential Chinese
investors that South Africa offers a competitive mining sector. ‘[...] my government is
committed to creating a favourable and globally competitive mining sector in South Africa’.
According to the Chamber, in 2010, global diamond retail sales rose by 2.5 per
cent to $60 billion, global jewellery sales rose by 7 per cent to $150 billion and polished
diamond prices improved by about 6 per cent. The strong price recovery was driven by
restocking and a rebound in the global diamond market, particularly with the rise in
polished demand from China and India.37
Most of the recovery and growth in global steel production is attributable to
China’s phenomenal growth with non-Chinese production not yet recovering to pre-
crisis levels. China is currently producing 46.5 per cent of global steel, driven by its own
substantial industrialisation and urbanisation requirements.

37 See ‘Facts and Figures of the South African Mining Industry’ 2010.

219
Chapter 19

TANZANIA
Charles R B Rwechungura, Cyril Pesha and Pendo Marsha Shamte 1

I OVERVIEW

i The Tanzania Mineral Policy of 2009


The Tanzania Mineral Policy of 2009 was formulated as a result of an evaluation
conducted during the 10 years of implementation of the Mineral Policy of 1997. The
Mineral Policy of 2009 aims at:
a strengthening integration of the mineral sector with other sectors of the economy;
b improving the economic environment for investment;
c maximising benefits from mining;
d improving the legal environment;
e strengthening the capacity for administration of the mineral sector;
f developing small-scale mining operations;
g promoting and facilitating the addition of value to minerals; and
h strengthening environmental management.

The government remains the regulator and facilitator of the mineral sector, and will
participate strategically in mining projects.

ii Ownership of mines, licences and projects


An individual or an entity can own mineral rights in Tanzania either:
a by conducting exploration or mining operations under a mineral right granted
under the Mining Act 2010 (‘the Mining Act’) and the Mineral Rights Regulations.
Mineral rights are in the form of primary mining licences, prospecting licences,

1 Charles R B Rwechungura is the managing partner, Cyril Pesha is a principal partner and
Pendo Marsha Shamte is an associate at CRB Africa Legal.

220
Tanzania

mining licences and special mining licences, all of which entitle the holder to
ownership of the gold extracted from the relevant licence area; or
b buying minerals from a licensed broker or an authorised miner.

It is mandatory to apply for and obtain one of these licences from the Ministry of Energy
and Minerals (‘the MEM’) in order to prospect for and mine gold. The nature of the
various mineral rights granted under the licences is as follows:
a Primary mining licences are granted to Tanzanian small-scale mining operations.
Primary mining licences for all minerals cannot be granted to an individual,
partnership or body corporate unless the individual is a Tanzanian citizen or, in
the case of a partnership, it is composed exclusively of Tanzanian citizens or, in
the case of a company or body corporate, its members and directors are Tanzanian
citizens and control over the company, both direct and indirect, is exercised from
within Tanzania by persons who are all citizens of Tanzania. However, under a
farm-in agreement, a non-Tanzanian person or a foreign-owned company can
prospect for gold in a primary mining licence area.
b Under Tanzanian law, prospecting licences may be granted to eligible individual
persons, groups of persons or corporate entities. Both Tanzanian and non-
Tanzanian nationals and entities are eligible for the grant of prospecting licences.
The Mining Act confers upon a prospecting licence holder the exclusive right to
carry on prospecting operations in the prospecting area for minerals to which the
licences apply.
c Under Tanzanian law, mining licences and special mining licences may be granted
to eligible individual persons, groups of persons or corporate entities. Both
Tanzanian and non-Tanzanian nationals and entities are eligible for the grant of
mining licences. Once the mining licences and special mining licences have been
issued to an individual or an entity, mining operations can commence, and the
individual or entity becomes the owner of the minerals extracted (it should be
noted that a royalty of 4 per cent of the gross value of mined gold is payable to
the government).

iii Division of mineral rights


In Tanzania, mineral rights are divided as follows:
a Division A – prospecting licences and retention licences;
b Division B – special mining licences and mining licences;
c Division C – primary mining licences; and
d Division D – processing, smelting and refining licences.

iv Notable developments
To date, there have been no significant trading agreements regarding minerals in Tanzania.
Large-scale mining companies may enter into agreements with the government
that guarantee the fiscal stability of a long-term mining project with respect to the
range and applicable rates of royalties, taxes, duties, fees and other fiscal taxes, and the
manner in which liability thereof is calculated (‘development agreements’). Development
agreements acquire legislative effect upon execution, and any tax concessions contained

221
Tanzania

therein will also acquire legislative effect without any further requirement. However, the
government is currently seeking to renegotiate mining contracts, and in future this will
no longer be the case.
It is not mandatory under the law that the government have shares in mining
companies. However, the law does contemplate that the government, through the
Minister for Energy and Minerals (‘the Minister’), may enter into a mining development
agreement with the holder of, or an applicant for, a special mining licence.

II LEGAL FRAMEWORK

i Legislation
The mining industry in Tanzania is principally governed by the Mining Act, as well as
various regulations made under the Mining Act, as follows:
a the Mining (Mineral Rights) Regulations;
b the Mining (Mineral Trading) Regulations;
c the Mining (Mineral Beneficiation) Regulations;
d the Mining (Environmental Management and Protection) Regulations;
e the Mining (Radioactive Minerals) Regulations; and
f the Mining (Safety, Occupational Health and Environment Protection)
Regulations.

Other laws that impact on the industry include the various tax laws, labour and industrial
relations laws and environmental laws.

ii International treaties
Tanzania is a signatory to various international treaties and conventions, but none has
direct relevance to the mining industry. The Convention on Recognition and Enforcement
of Foreign Arbitral Awards (the New York Convention of 1958) is relevant in respect of
all foreign investors. Although Tanzania has not adopted any provisions based on the
UNCITRAL Model Law, the Tanzania Investment Act 1997 allows investors to adopt,
among others, the UNCITRAL rules and procedures.

iii Regulatory agencies


The mining industry is regulated at the national level.
The MEM is the overall supervisor of the minerals and energy sector in Tanzania.
There is a Commissioner for Minerals (‘the Commissioner’) within the Ministry
appointed by the President; the Commissioner supervises and regulates the proper
and effectual carrying out of the provisions of the Mining Act. There is also a Mining
Advisory Committee constituted pursuant to the Mining Act, which is responsible for
advising the Minister on matters concerning the mining sector generally.

iv Mineral reporting requirements


The holders of any mineral rights have to submit quarterly and annual reports to the
relevant authorities. Primary mining licence holders have to submit quarterly reports to

222
Tanzania

the Zonal Mines Officer. Prospecting licence holders are required to submit quarterly
and annual financial reports to the Commissioner within three months of the end of
each financial year. Mining licence and special mining licence holders are required to
submit quarterly reports to the Minister.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
The government has the title to underground minerals, but the title to the minerals can
be transferred to any individual or entity in Tanzania (see Section I.ii, supra, for further
information). Mineral rights can also be transferred from one individual or entity to
another by applying for the transfer to the Commissioner and paying a fee of US$200
for transfer of a primary mining licence, US$500 for a transfer of shares in a primary
mining licence and US$3,000 for transfer of mineral rights other than those granted
under a primary mining licence.

ii Surface and mining rights


Private parties as prescribed in the Land Act 1999 may acquire surface rights. All land
in Tanzania is public land vested in the President, who grants (via the Commissioner for
Lands) rights of occupancy of specified periods of 33, 66 or 99 years, subject to renewal.
There is a central land registry in which all title deeds for granted rights of occupancies are
registered. One copy of the title deed is kept at the registry and the other remains in the
possession of the owner. Any mortgages or charges, or similar third-party rights against
the property, or transfers of the right of occupancy, are endorsed on the two copies of
the title deeds and provide ready proof of the position. There are zonal land registries,
which are administratively answerable to the central land registry. The Commissioner for
Lands is the principal administrative officer and adviser to the government with respect
to land matters, and he or she is a presidential appointee. Some land is also owned under
customary rights, but it remains held for purposes of surface use only. Foreigners may
hold land only for the purpose of investment.

Application for mineral rights


Mineral rights are applied at the relevant issuing authorities. Applications for primary
mining licences have to be made to the Zonal Mines Officer at the Zonal Mines Office
and a fee of US$35 is applicable. There is no specific time on how long it takes for the
primary mining licence to be granted. Primary mining licences are granted for a period
of seven years.
Application for prospecting licences are made to the Commissioner for Minerals
at the MEM and a fee of US$300 is applicable. There is no specific time on how long
it takes for prospecting licences to be granted. Prospecting licences are granted for four
years for the initial period and can be renewed twice: three years for the second period
and two years for the third period.
Applications for mining licences and special mining licences are made to the
Minister at the MEM and a fee of US$2,000 and US$5,000 respectively. Again, the
law does not specify the timetable for mining licences or special mining licences to be

223
Tanzania

granted. The maximum initial period for which mining licences and SMLs may be
granted is 10 years. The Minister may renew mining licences or special mining licences
for a period not exceeding 10 years.

iii Additional permits and licences


Further permits are required from the relevant authorities to export minerals and
gemstones. Such permits include:
a export permits for minerals and samples of minerals;
b export permits for minerals from a gem trade fair;
c export permits for processed, smelted and refined minerals; and
d special export permits for minerals that are given to non-residents of Tanzania.

iv Closure and remediation of mining projects


The Mining (Safety, Occupational Health and Environment Protection) Regulations
2010, prior to a mine closure, requires every holder of a special mining licence or mining
licence to prepare and submit a mine closure plan to the Chief Inspector of Mines, which
must contain the following:
a a programme to reclaim and rehabilitate land and water courses to an acceptable
use that considers previous and potential use;
b a programme to support socio-economic activities to provide an alternative
livelihood to local communities beyond the mine life;
c comments of the district authorities and surrounding local communities or a
district mine closure committee;
d the cost of providing statutory and any other benefits to employees beyond the
mine life; and
e the cost of reclaiming and rehabilitating the mining area in the event that the
mine is closed.

The Minister may require a licence holder to post rehabilitation bonds, in the form of
escrow accounts, capital bonds, insurance or bank guarantee bonds, pledging and assets,
or any other form of bond.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


The principal environmental, health and safety laws are contained in the Mining
(Safety, Occupational Health and Environment Protection) Regulations 2010. The
Chief Inspector of Mines appointed pursuant to the Mining Act and working under the
Commissioner administers the environmental, health and safety laws. The Environmental
Management Act No. 20 of 2004 is also relevant. Schedule 3 to this Act lists mining
as an investment sector activity that is subject to an environmental impact assessment
prior to commencement of work. Section 232 of the Act elevates the Environmental
Management Act above the provisions of the regulations issued pursuant to the Mining
Act. It stipulates that if the provisions of the Environmental Management Act are in
conflict or otherwise are inconsistent with the provisions of any other law relating to

224
Tanzania

environmental management, the provisions of the Environmental Management Act


shall prevail to the extent of such inconsistency.

ii Environmental compliance
All applications for special mining licences, mining licences or gemstone mining licences
must be accompanied by an environmental impact statement and an environmental
management plan. The Minister may reject an application if the application for a licence
is submitted without an environmental impact statement or environmental management
plan if the applicant is not exempted. Within seven days of the date of submitting the
application, applicants are obliged to publish their environmental impact statement in
the prescribed manner. The licensing authority shall not issue a licence until the expiry
of at least 60 days from the date of the application. The licence holder is obliged to
submit a report reviewing the progress and status of the environmental management
plan or amendment within two years of grant or renewals, and thereafter at intervals not
exceeding five years.

iii Third-party rights and additional considerations


The rights conferred by a mineral right have to be exercised reasonably and may not be
exercised so as to injure the interests of any owner or occupier of the land to which those
rights extend.
The lawful occupier of land in a mining area may not erect any building or
structure in the area without the consent of the registered holder of the mineral rights
concerned, but if the Minister considers that the consent is being unreasonably withheld,
he or she may give consent to the lawful occupier to do so.
Where, in the course of prospecting or mining operations, any disturbance of the
rights of the lawful occupier of any land or damage to any crops, trees, buildings, stock
or works thereon is caused, the registered holder of the mineral right by virtue of which
the operations are carried out is liable to pay the lawful occupier fair and reasonable
compensation.
Where the rights conferred by a mineral right cannot reasonably be exercised
without injuring the interests of any owner or occupier of the land to which those rights
extend, the mineral right holder has to:
a advise the owner or occupier of the land to vacate the area, and consult the
relevant local government authority on an amendment of the land use plan; or
b submit a proposed plan on compensation, relocation and resettlement of the
owner or occupier of the land as per the Land Act.

The procedures established under the Land Act and the Village Land Act with regard
to establishing the market value of land shall apply in determining fair and reasonable
compensation of land.

225
Tanzania

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


There are no restrictions on the importation of machinery and equipment required for
mining activities. The Mining Act provides for the sale or processing of minerals outside
Tanzania only by authorised dealers.
Foreign labour is restricted only in the sense that a foreigner can only be employed
as an expatriate. A foreign employee has to apply for and obtain a Class B resident permit.

ii Sale, import and export of extracted or processed minerals


The Mining Act prohibits any person from selling or disposing of, or exporting, any raw
gold or gemstone unless that person is an authorised dealer. However, the authorised
dealer must obtain a permit from the Commissioner before it can export, sell or otherwise
dispose of any minerals within or outside of Tanzania.

iii Foreign investment


There is no restriction on the importation of funds to finance mining activities, or on the
use of the export proceeds from mining products. Tanzania enjoys a highly liberalised
foreign exchange regime. There is complete market freedom, foreign exchange at market
prices is available and domestic foreign currency accounts can be opened, and there
is no restriction on current account transactions. However, the Bank of Tanzania still
regulates the establishment of offshore bank accounts by residents. Locally incorporated
companies wishing to establish offshore bank accounts for purposes of depositing export
proceeds or foreign loan proceeds must apply to the Bank of Tanzania for its approval.

VI CHARGES

i Royalties
The law requires all authorised miners to pay a royalty to the government on the gross
value of minerals produced under their licences at the rates shown below:
a uranium – 5 per cent;
b gemstones and diamonds – 5 per cent;
c metallic minerals such as copper, gold, silver and platinum group minerals – 4 per
cent;
d gems – 1 per cent; and
e other minerals, including building materials, salt, all minerals within the industrial
minerals group – 3 per cent.

ii Taxes
Withholding tax on dividends
Withholding tax on dividends is set at a rate of 10 per cent. Other sectors pay withholding
tax on dividends at a rate of 20 per cent, except for companies holding certificates of
incentives issued by the Tanzania Investment Centre, which pay the same rate as mining
companies.

226
Tanzania

Withholding tax on interest


Withholding tax on the interest on foreign loans is set at a rate of 15 per cent and accrued
interest is deemed a payment; therefore, withholding tax thereon is payable.

Withholding tax on payments for technical services and on management fees


The withholding tax on these is capped at the following rates:
a 3 per cent, where the technical service fee or the management fee does not exceed
2 per cent of the amount claimed as a deduction from income in respect of
operating expenses incurred in mining operations; and
b 20 per cent for any excess amount.

Value added tax


Value added tax (VAT) special relief has recently been limited to cover only exploration
and prospecting activities, while excise duty exemptions have been abolished following
the 2009 proposed budget review. These amendments are due to be enacted into law
shortly after being approved by parliament.

iii Duties
There is a special fiscal regime for mining companies as detailed below.

US dollars accounting
Mining companies may opt to maintain their accounts in US dollars, and their tax
liability will be assessed and calculated in US dollars.

Customs duty on imports of mining equipment and supplies


Import duties under the terms of the Customs Tariff Act on a mining company or its
subcontractors are at a zero per cent rate during exploration and in the first year of
operation; thereafter, they will not exceed 5 per cent.

Corporate income tax


Corporate tax is payable under the Income Tax Act 2004 at a rate not exceeding 30 per
cent. Income is computed in the manner set out in the Income Tax Act (as amended
from time to time).

Depreciation allowance for capital expenditure


Depreciation shall be deducted at the rate of 100 per cent on capital expenditure for
exploration and development.

Loss carry forward


Losses may be carried forward indefinitely until recovered against income.

Expenditure on another licence area


Expenditure on prospecting and mining operations in respect of another licence area may,
for the purpose of ascertaining taxable income, be treated as though it were expenditure
incurred in respect of the mining licences.

227
Tanzania

iv Other fees
Annual rents payable for all mineral rights other than minerals under Division D are as
follows:
a for a prospecting licence for metallic minerals, energy minerals and kimberlitic
diamonds for initial period – US$100 per square kilometre;
b for a prospecting licence for building material – US$100 per square kilometre;
c for a prospecting licence for gemstones excluding kimberlitic diamonds – US$100
per square kilometre;
d for first renewal of a prospecting licence – US$150 per square kilometre;
e for second renewal of a prospecting licence – US$200 per square kilometre;
f for a retention licence – US$2,000 per square kilometre;
g for a special mining licence – US$5,000 per square kilometre;
h for a mining licence for metallic minerals, energy minerals, gemstones and
kimberlitic diamonds – US$3,000 per square kilometre; and
i for a mining licence for building materials and industrial minerals – US$2,000
per square kilometre.

Annual rents for minerals under Division D are as follows:


a for a primary mining licence for all mineral rights other than gold, kimberlitic
diamonds and gemstones (subject to a minimum of US$25 for each licensed area
having less than 2 hectares) – US$7 per hectare; and
b for a primary mining licence for gold, kimberlitic diamonds or gemstones (subject
to a minimum of US$51 for each licensed area having less than 2 hectares) –
US$2,000 per hectare.

VII OUTLOOK AND TRENDS

Global leading companies in the mining industry are acquiring mineral rights in Tanzania.
The conversion of primary mining licences to prospecting licences, mining licences and
special mining licences also enables foreign-owned companies to hold mineral rights.
There is more interest in the tailing processing industry and subsequent applications for
processing licences.
There are new mining operations by Shanta Gold in Chunya, Mgusu, Songea and
Singida areas in Tanzania. Canaco Resources also has a mining project in Handeni in the
Tanga region of Tanzania. Many mergers and acquisitions of smaller mining companies
and their mineral rights by leading global mining companies have also taken place.
There has also been a recent change on fee rates for annual rents and applications,
which has previously been covered in this chapter.

228
Chapter 20

TURKEY
Safiye Aslı Budak and Merve Nazlı Kaylan 1

I OVERVIEW

With its natural resources and active business environment, the Turkish mining sector
is increasingly attractive to investors. In May, 2012, the Turkish Ministry of Energy and
Natural Resources (‘the Ministry’) noted that mining contributed 40.88 per cent of the
overall investment in 2012, and was ranked as the second-largest area of investment. The
Turkish government has also acknowledged the increasing foreign and local interest in
the sector by enacting certain amendments to the existing legislation, and has for the first
time provided governmental incentives (as further detailed below). As is the case for most
sectors in Turkey, the government welcomes foreign investment in the mining sector.
With the aid of the recent amendments in the legislation and governmental incentives,
the mining industry is expected to prosper in 2012.

II LEGAL FRAMEWORK

The principal regulatory body that governs the mining sector is the General Directorate
of Mining Affairs (‘the GDMA’), a unit of the Ministry. The GDMA regulates mining
activities, and issues relevant mining licences and permits for different areas of mining
activities. The GDMA is also responsible for keeping the records of the Mining Registry
in accordance with the Regulation Regarding the Implementation of the Mining
Activities (‘the Implementation Regulation’). According to Article 38 of the Mining
Law, all mining rights and any other rights attached thereto must be registered with
the Mining Registry. The Mining Registry further maintains all technical and financial
details of the mining rights and activities that are conducted at different mining sites.

1 Safiye Aslı Budak is a partner and Merve Nazlı Kaylan is an associate at Hergüner Bilgen Özeke
Attorney Partnership.

229
Turkey

Even though it is a ‘public’ registry, the Mining Law provides that the records kept by
the Mining Registry may be reviewed only by ‘concerned persons’. The Implementation
Regulation specifies these concerned persons as holders of the relevant mining licences,
or potential buyers of the licence.
The main piece of legislation governing activities in the mining industry is Mining
Law No. 3213 (‘the Mining Law’). The Mining Law has been amended a number
of times, most significantly in 2004 and 2010. The Mining Law sets out the general
principles and procedures applicable to the exploration and exploitation of minerals,
the permission and licensing frameworks, and other general issues regarding mines and
mining activities.
The Mining Law intends to unify all of the regulations regarding the extraction of
the vast majority of minerals that have economic and commercial worth, but petroleum,
natural gas, geothermal and water resources are excluded from its scope. The Mining
Law applies to all minerals found naturally on the earth or in the water. Petroleum and
natural gas are regulated respectively under Petroleum Law No. 6826 and Natural Gas
Law No. 4646. Activities concerning petroleum and natural gas are regulated by the
Energy Market Regulatory Authority. Geothermal and water resources are subject to
Geothermal Resources and Natural Mineral Water Law No. 5686, and are regulated by
the Ministry and the GDMA.
Details of the procedures outlined in the Mining Law are regulated under the
Regulation Regarding the Implementation of the Mining Activities. The Implementation
Regulation comprehensively covers licence and certificate applications, exploration and
exploitation activities, mining activities, and other procedures referred to under the
Mining Law.
In addition to the main legislation, a number of laws and regulations related to
the environmental aspects of the mining industry are in force, including Environment
Law No. 2872 (‘the Environment Law’) and the Environmental Impact Assessment
(‘the EIA’) Regulation and the Environment Permit and Licence Regulation; and the
Regulation on Reinstatement of Lands Disrupted Due to Mining Activities, Forest
Law No. 6831, the Regulation on Implementation of Article 16 of the Forest Law,
the Regulation on Control of Excavation, Construction and Demolition Wastes, the
Environment Inspection Regulation, the Regulation on Classification, Packaging and
Labelling of Hazardous Chemicals and their Products, the Regulation on Restrictions
on the Production, Sale and Use of Certain Hazardous Substances and Mixtures, the
Regulation on Preparation and Distribution of Security Information Forms in Relation
to Hazardous Substances and Mixtures, the Regulation on Inventory and Control of
Chemicals, the Subterranean Waters Law and the By-laws on Subterranean Waters.
Health and security conditions of employees working at mining sites are ensured by
the Labour Code, the Regulation on the Health and Safety Conditions in Underground
and Surface Mine Enterprises, as well as the Regulation on Health and Safety Conditions
in Mining Exploration Enterprises through Drilling (collectively, ‘the Health and Safety
Regulations’). These regulations focus primarily on the employer’s obligations to protect
the health and security conditions of its employees.
In addition to these pieces of legislation, there are various international treaties
and agreements between the Turkish government and foreign governments. These are
generally in specific form in respect to the types of mine, investment and the area.

230
Turkey

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
As in other civil law countries, in Turkey, the state has exclusive and imprescriptible
ownership of mineral resources. The Mining Law provides that land does not grant
ownership over the mines that are located on the land. Mineral or mining rights are
separate from surface rights, and are not obtained through the standard method of
acquiring property, but through a unilateral administrative state act, namely, the issuance
of mining licences entitling the holders to explore and exploit minerals for a specific
period of time.

ii Surface and mining rights


If privately owned land is necessary for the conduct of the exploitation activities, and the
owner of the land and the licence holder cannot reach an agreement, the Ministry may
expropriate such land in accordance with the Turkish Expropriation Law, and in due
consideration of the general public interest.
In addition, the holder of an exploration or exploitation licence may also request
the establishment of a servitude or usufruct right over the privately owned land during
the licence period by applying to the Ministry. The scope of these rights must be limited
to the purposes of mining activities, and the licence holder must vacate the land after
having rehabilitated its environment. In addition, if the field is damaged during the
activities, the licence holder must pay an indemnification determined by the judicial
authorities to the owner of the land, and to leave the field in a condition fit for use.
The Mining Law prohibits foreign companies from direct engagement in the
Turkish mining sector. Both the mining rights – exploration licences and exploitation
licences – may only be granted to Turkish citizens, Turkish legal entities or competent
governmental authorities. Nevertheless, legal entities established in accordance with the
provisions of the Turkish Commercial Code are considered to be Turkish legal entities
even if 100 per cent of the share capital of such companies is held by foreign investors;
this allows foreign mining companies to indirectly engage in mining activities in Turkey
through a Turkish subsidiary.
The steps to obtain mining rights vary depending on the groups of mines. The
licences or documents that exploration activities necessitate vary according to the
group of the concerned minerals.2 While fifth group minerals necessitate exploration

2 First group minerals are (a) sand and gravel used in construction and road building, and (b)
brick and clay; second group minerals are (a) aggregate (composite), crushed stones or rocks that
are used after a rock milling process, such as calcite, limestone and granite, and (b) stones that
are produced in blocks, such as marble; third group minerals include salts that are dissolved in
the sea, lake and spring water, carbon dioxide (except for geothermal, natural gas and areas that
have petroleum), hydrogen sulphur (except that falling under the provisions of Petroleum Law
No. 6326 and dated 7 March 1954), gas and water, used for various purposes and containing
the fourth group minerals dissolved therein, and which are not within the scope of Law No.
5686; fourth group minerals are (a) industrial raw materials, (b) energy raw materials and

231
Turkey

certificates, second group, as well as third, fourth and sixth group minerals necessitate
exploration licences. For first group and second group minerals, it is possible to apply
directly for an exploitation licence. Licences are granted on a first-come, first-served
basis, and a licence issued for a specific group of minerals does not provide any rights for
other mineral groups. The term of an exploration licence depends on the mineral group
for which it is issued.
Applications for the licence must be made to the GDMA, and must include a
form with the geographical coordinates of the area in question, and a receipt evidencing
the payment of the application fee, plus a signed undertaking form. If an application
is rejected or is deemed invalid, the application fee will not be returned, and the area
subject to the application will become available for other applications. Following an
initial application filed with the GDMA, the licence holder has two months in which to
provide a project report that includes a detailed time schedule for the exploration process
and other necessary documentation to the GDMA, as well as to pay the licence fee
and security deposit. If the project involves exploration activities within environmentally
sensitive areas, coastal areas, protected areas and areas in proximity to military zones, the
applicant will be granted a period of one year in which to obtain the necessary approvals
from the relevant authorities, provided that the licence fee and security deposit are paid
within the initial two-month period.
The security deposit is calculated at 1 per cent of the annual licence fee, per
hectare. The total security amount must be at least 10,000 Turkish lira. If the applicant
fails to pay the fee or the security deposit, the area that is subject to the application will
summarily become available to other applicants.
Licences for the same mineral group may not be granted for overlapping areas,
but licences of different mineral groups may be granted, even for overlapping areas,
provided that the acquired rights of the relevant licence holders are protected. Licences
become effective on the date they are registered with the Mine Registry.
The Mining Law sets out three different phases of the mining exploration
process. The first year from the granting of the exploration licence is considered as the
initial exploration period. Before the expiry of the initial exploration period, licence
holders will have to prepare mining exploration project reports confirming that all
exploration activities have been completed in line with the timetable provided in the
project report. After submitting the report, the licence holder will enjoy a period of
general exploration, during which global geological characteristics of the reserve will be
determined. Thereafter, the licence holder must prepare a report setting out the activities
being conducted, otherwise, the related licence will be cancelled. During this period, the
licence holder provides the GDMA with a detailed annual report on the proven reserve,
as well as the investment costs in connection with the exploration activities carried out.
This provision is designed to ensure that the market players are active participants in
mining activities, instead of failing to invest, or acting as ‘phantom licence holders’.

(c) metallic minerals; fifth group minerals are precious and semi-precious minerals; and sixth
group minerals are radioactive minerals and other radioactive materials.

232
Turkey

During the exploration licence period, the GDMA may grant permission for the
production and sale of minerals worth up to 10 per cent of the proven reserve to licence
holders that comply with the relevant exploration activity reports. Nevertheless, the goal
of the production activity must be limited to technological studies, development, pilot
studies and market research.
By the end of the exploration period the exploration licence holder needs to have
applied for an exploitation licence. If the holder does not apply for an exploitation licence
at the end of the exploration licence term, the exploration licence will be terminated
and the security deposit returned. The exploitation licence will only be granted over
the proven, probable and possible reserve area detected during the exploration period.
Holders of exploitation licences may continue their exploration activities within the
licensed area. Any licensed areas covered by the exploration licence that may not be
turned into proven and probable reserves within the time limits set out in the Mining
Law for each group of minerals are simply removed from the licensed area.
In order to commence the exploitation activities, the exploitation licence holder
must obtain an exploitation permit, which can only be granted over a proven reserve
area. An exploitation licence covers the area in which the mining activities will be
generally conducted, and provides the legal right to use the licensed area (e.g., conducting
exploration activities), whereas, the operation permit gives the exploitation licence holder
the right to operate a specific mine.
Once the necessary permits for the operation of a mine have been issued, an
exploitation permit will be granted. The holder of the exploitation permit must
commence the operation of the mine within a year of the date of the issuance of the
exploitation permit. If not, the holder of the exploitation permit must pay an annual
state royalty of 10 per cent of the production quantity specified in the project report.
A licence holder is considered to have discovered the mines that have been declared
as proven reserves in the technical reports prepared during the term of exploration and
exploitation licences; a certificate of discovery may be issued to the licence holder upon
request. If a mine is operated by someone other than the person who discovered it,
the discovery rights that have accrued over the ores that have been produced from this
field will be paid to the rightful holder of such right by the persons performing the
productions in this field to the end of June each year; this is called a discovery right,
which amounts to 1 per cent of the annual per quarry sales price. The discovery right
expires when the proven reserves run out.

iii Closure of mining projects


Pursuant to the Mining Law and the Implementation Regulation, a mining licence may
be revoked by the GDMA, inter alia, on the following conditions:
a violation of the provisions with respect to the EIA procedure, workplace opening
and operation licence, ownership rights or distance requirements with respect to
buildings and lands, three times within a period of three years;
b preventing implementation of the Mining Law, and acquiring rights through
having made false or misleading declarations, three times within a period of three
years;

233
Turkey

c non-compliance with the additional guarantee payment requirements as may be


requested by the GDMA;
d failure to submit the exploration reports (preliminary, general or detailed
exploration activity reports) by the due dates;
e failure to obtain the necessary permits required under Article 7 of the Mining
Law to conduct exploitation activities; and,
f failure in production activities (except for force majeure events and unexpected
circumstances) during a term of a minimum of three years out of a five-year
period, in total, as follows – (1) non-production; or (2) production of less than
10 per cent of the annual production threshold.

Upon the occurrence of such event, the GDMA is entitled to confiscate the performance
bond, revoke the licences and halt the activities.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


Employment in mining activities requires special attention. In this respect, the Labour
Code regulates certain issues relating to mining activities (the calculation of mining
employees’ work hours, minimum age limit for male employees, and prohibition of
female employees of all ages from working in mines). Furthermore, the Health and
Safety Regulations provide minimum standards for the health and safety conditions of
employees working in mine enterprises, depending on the type of activity conducted
within a specific mine.
In order to ensure the safety and health of workers, both regulations impose a
similar set of measures to be implemented by the employers. Some of these measures are
listed as follows:
a workplaces must be designed, constructed, equipped, commissioned, operated
and maintained in such a way that workers are able to perform the work assigned
to them without endangering their safety and health or the safety and health of
other workers;
b the operation of workplaces must be under the supervision of a person in charge;
c specific works involving special risk must be performed only by competent staff
and carried out in accordance with the instructions given;
d all safety instructions must be prepared in a way that is comprehensible to all the
workers concerned;
e appropriate first-aid facilities must be provided; and
f relevant safety drills must be performed regularly.

ii Environmental compliance
As a general rule, mining activities in Turkey are subject to strict environmental
regulations to ensure that no environmental pollution or damage will occur due to such
activities. Prior to the commencement of mining activities, and upon the issuance of
the respective mining licences, the mining companies are obligated to undergo detailed
environmental processes and obtain various permits and licences depending on the scope

234
Turkey

of the activity. Mining licence holders are further required to take all steps necessary to
reinstate and rehabilitate the lands that are disrupted through the mining activities on
their cessation. Only upon determination by the respective authorities that the respective
lands have been completely reinstated will the sum that was deposited as a guarantee for
environmental compliance be returned to the licence holder.
Apart from the following permits, other specific permits and licences are required
with respect to mining in areas such as forests, wild life protection zones and pasture
lands. There may also be some additional requirements regarding chemicals.

Environmental impact assessments


According to the Environment Law and the EIA Regulations, facilities conducting
certain activities indicated in the EIA Regulation must carry out an EIA. If a facility’s
activity falls within the scope of Annex I or Annex II of the EIA Regulation, then it will
be subject to an EIA procedure (including preparation of an EIA report or a project
presentation file, depending on the activity).3
For projects within the scope of Annex I of the EIA Regulation, an EIA report
must be prepared and submitted to the Ministry of Environment and Forestry (‘the
MoE’) for approval. The MoE will then decide whether the relevant facility’s impact on
the environment is acceptable within the framework of the applicable legislation.
For projects within the scope of Annex II of the EIA Regulation (projects that are
subject to election and assessment criteria), an EIA presentation file must be submitted
to the MoE or relevant authority, which will assess whether preparation of an EIA report
is required for the specific project. If an EIA procedure is not required, the applicant may
directly commence its activities.
Following the relevant filing, the MoE or relevant authority decides whether the
facility’s impact on the environment is acceptable within the framework of the applicable
laws and regulations. In practice, the EIA process may be lengthy, but the Mining Law
provides for a maximum time limit within which the EIA process must be finalised
by the respective state authorities: three months following the application. It should,
nevertheless, be emphasised that the legislation does not foresee any sanctions for non-

3 The following mining-related activities are listed under Annex I of the EIA Regulation: (1) open
pit exploitation and ore preparation facilities located over at least 25 hectares of land; (2) coal
extraction and ore preparation facilities by way of open exploitation procedure, located over
150 hectares of land; (3) ore enrichment facilities by way of biological, chemical, electrolytic or
heat treatment procedures; and (4) asbestos mineral-related facilities, and enrichment facilities.
The following mining-related activities are listed under Annex II of the EIA Regulation: (1)
extraction of minerals (that are not included within the scope of Annex I); (2) extraction and
storage of methane gas in an amount of at least 1 million cubic metres per year; (3) facilities for
extraction, storage and processing of carbon dioxide and other gases with a minimum capacity
of 10,000 cubic metres per year; (4) ore preparation and enrichment facilities (that have not
been included within the scope of Annex I); and (5) following the exploration activities, incisive
exploration activities over 500 cubic metres per hectare and mineral exploration drilling over a
total area of 5,000 square metres.

235
Turkey

compliance of the respective authorities with such time limit; thus, in practice such
three-month target is often not met by the respective authorities.
As per the EIA Regulation, the legal entity that is granted an exemption from the
EIA procedure will be observed by the MoE to determine whether it is duly performing
its undertakings. Such a legal entity is obliged to submit an audit report to the relevant
authority with respect to the commencement, construction, operation and post-operation
periods. As per the Mining Law, the facilities that commence activities without a positive
EIA decision or exemption will be closed, and the surety will be forfeited. Violation of
the permit requirements three times will result in the revocation of the licence.

Environment permits
The Environment Permit and Licence Regulation sets out the procedures under the
Environment Law to obtain the permits and licences for activities listed in Annexes 1
and 2 of the Regulation. Under the Environment Permit and Licence Regulations, the
environment permit covers the emission, discharge, noise control, deep sea discharge and
hazardous waste discharge; and the environment licence refers to the technical sufficiency
in relation to the collection, recycling and disposal of waste.
The environment permit and licence certificate is a unified ‘umbrella’ certificate
within the context of the Environment Permit and Licence Regulations. Facilities that
are listed in the Annexes of the Environment Permit and Licence Regulations must
obtain either an environment permit or an environment permit and licence, depending
on the scope of their activities.
The applicant must initially file an application with the Regional Directorate of
the MoE for a temporary activities certificate, valid for a term of one year. The temporary
activities certificate is required for the temporary activities of the facility prior to the
issuance of the environment permit or the environment permit and licence. Within
six months of the issuance of the temporary activities certificate, the applicant must
finalise the actual application process for the issuance of the environment permit or the
environment permit and licence.

Excavation, construction and demolition wastes


Producers of excavation soil and construction or demolition wastes are required to obtain
the necessary permission from the administrative authorities prior to commencement
of their activities and generation of waste. Waste producers are obligated to transport
the wastes produced with vehicles with transportation permits. Furthermore, producers
of excavation soil and construction or demolition waste (if the amount of such wastes
exceeds 2 tonnes) are required to obtain a waste transportation and acceptance certificate
in relation to the transportation and storage of waste, and request provision of a temporary
collection container on site.
Taking into consideration the physical nature of mining activities, mining
companies are required to comply with the Construction Wastes Regulation to the
extent that they are involved in construction, excavation or demolition work within
their facilities.

236
Turkey

Environment inspection requirements


Under the Environment Law, facilities that may endanger the environment as a result
of their activities are required to establish an environment management department
and employ an environment manager, or procure relevant environmental services from
certified entities.

iii Third-party rights


Generally, there are no specific indigenous or community issues that need be addressed
with respect to mining in Turkey. However, it must be emphasised that in Turkey, mining
activities are likely to create public sensitivity and attract press and public attention.
Therefore, potential reputational risks must also be taken into consideration.
In connection with such opposition risks, one should expect that administrative
lawsuits may be filed by interested parties for the revocation of permits issued in
connection with mining activities, including positive EIAs or EIA exemptions. As the
issuance of such permits is one of the preconditions for the issuance of a mining licence,
there may be risks associated with the revocation of such permits, such as forfeiture of the
any guarantee and termination of the actual exploration or exploitation licences.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


Import and export activities require the acquisition of certain permits in Turkey based
on the nature of the exported or imported goods. Additionally, importation of certain
products is subject to the acquisition of a licence. Licence requirements may either arise
from the nature of the goods, or the countries from which the goods are imported to
Turkey.
Pursuant to the Regulation on Importation, all real and legal persons holding
a Turkish tax number or persons who do not have a legal personality but who may be
engaged in legal transactions may conduct importation transactions. Some additional
conditions may be enacted under the relevant legislation of certain goods. Turkey has
recently adopted a standardisation policy with the aim of bringing import legislation
in line with EU legislation. A number of communiqués are published annually by the
authority concerned that list the characteristics that every good to be imported into
Turkey must bear for the protection of the public safety, health, environment and
consumers. Accordingly, every good is subject to the eligibility review before being
imported into Turkey, and must acquire a certificate confirming that the goods have
eligibility for importation or a control certificate.
As a general note, equipment, machinery and other goods that are imported for
mining activities are subject to general customs procedures in which they should be
evaluated separately. However, based on the assumption that some explosive substances
may also be required, there are some additional health and safety requirements for their
importation.
Most importantly, pursuant to the Parliamentary Decree on Situations on
Exemptions and Exceptions of Customs Duties No. 2000/53, capital goods and other
equipment imported into Turkey for the reasons of economic activity are exempted from

237
Turkey

customs duties; this explicitly states that the mining activities are within the scope of the
exemption. The capital goods and equipment should have been used for at least the past
12 months within their country of domicile, and should also be used for the same purpose
in Turkey. Likewise, any foreign entity wishing to benefit from this exemption must fully
terminate their activities in their country of domicile and transfer those to Turkey. Also,
the activities should be transferred to Turkey within six months of termination in the
country of domicile.
Also, for mining investments benefiting from governmental incentives (which
are provided for the first time) machinery and equipment that is being imported for the
purpose of mining activities will be exempt from customs duties. In general, the Turkish
incentive system tends to categorise investments under four groups: general, regional,
large-scale and strategic. Apart from these special types of incentive, investments can
benefit from general incentives in the event that they are over the 1 million Turkish lira
threshold.
Work permits for foreigners are regulated under Law No. 4817 and the Work
Permit Regulation. Foreigners are required to obtain a work permit before they commence
working in Turkey unless otherwise provided under bilateral or multilateral agreements
to which Turkey is a party, or they are exempt from obtaining a work permit under Law
No. 4817. There is no provision that provides an exemption to mine employees, or
which sets out any special provision for the sector.

ii Sale, import and export of extracted or processed minerals


There are several minerals that are mined within Turkish boundaries, and exported to
foreign countries in order to be processed or used in industry. The Turkish government
has now attempted to increase the processing and utilisation of mined minerals within
Turkey as well as for export. For this purpose, there is no generally implemented
limitation or restriction in the amount of the minerals, but the relevant authorities may,
at any time, implement restrictions for health and safety reasons, if a facility endangers
the environment.
According to the Decree on Protection of the Value of the Turkish Currency No.
32, the import and export of the precious mines (gold, silver, platinum and palladium)
is legal. For standard, unprocessed precious metals, only members of the Precious Metals
Exchange and the Central Bank of Turkey are entitled to export. With regard to the sale
and purchase of precious metals, stones and goods, their sale and purchase is legal. In
general, the sale and purchase of the precious metals that have been mined or in any
way produced from an ore mine in Turkey are subject to regulations and conditions to
be determined by the Istanbul Gold Exchange. Accordingly, the Central Bank of Turkey
and the precious metal intermediary agencies can follow the purchase and sale operations
of their unprocessed mines only through the Istanbul Gold Exchange.

iii Foreign investment


Please refer to Section II of the Turkey Capital Markets chapter.

238
Turkey

VI CHARGES

In consideration for the licence granted, the licence holder shall pay a royalty to the
state at a certain rate on all minerals produced by the licence holder in the licensed area.
The royalty share is determined as 2 per cent of the per quarry sales price for the fourth
group of minerals (except for gold, silver and platinum) and 4 per cent for the third,
fifth and sixth group of minerals and gold, silver and platinum. As to the first group, and
paragraph (a) of the second group minerals,4 their quarry sales price should be accepted
as their sized sale price,5 and the royalty will be 45 per cent of this amount. In addition,
for the rest of the second group minerals, the royalty varies between 1 per cent and 2 per
cent. The royalty is calculated in proportion to the sales revenue amount declared by the
licence holder. Consequently, these declarations are controlled by the Ministry.
The Mining Law provides that mining activities may benefit from certain
investment incentives determined by the Council of Ministers. The Mining Law also
offers an incentive for producers who process their minerals in facilities located in Turkey
by exempting them from 50 per cent of the royalty.
For mining activities in fields owned by the state, the licence-holder is obliged to
pay an increased royalty of a further 30 per cent. The Council of Ministers may apply the
maximum of a 25 per cent discount in the royalty rates in certain situations, for example,
depending on the type of mineral or the region of production.
Moreover, if mining activities are performed within municipality borders, licence
holders are obliged to pay 0.2 per cent of the per quarry sales price to the relevant
municipality.

VII OUTLOOK AND TRENDS

Pursuant to the sectoral analysis conducted by the Prime Ministry Investment Support
and Promotion Agency (which provides general information to foreign investors about
Turkey) in July, 2010: ‘Turkey holds 2.5 per cent of the global industrial mineral reserves,
72 per cent of global boron reserves, 33 per cent of global marble reserves, 20 per cent
of global bentonite reserves, and more than half of the global pearlite reserves.’ Further,
pursuant to this data, many of the minerals that are mined out of Turkish reserves are
used as raw materials in the manufacturing industry, as well as being exported. Marble
and boron are the leading mining export materials of Turkey.
Pursuant to recent investigations of the Istanbul Union of Mine Exporters, the
mined exports have, for the first time, exceeded the $400 million threshold and reached
$411.8 million in June, 2012. It is correct to say that Turkey, having at least 77 of the
90 types minerals that are traded worldwide, is not reaching its full potential in terms of
mining. Mine processing numbers lag behind export numbers, which end up outside the
normal use of mined out minerals, instead of being used in Turkish industry. The Turkish

4 See footnote 2, supra.


5 This term refers to ‘boyutlandırılmış fiyat’ under the Mining Law and means the processed
minerals rather than raw minerals.

239
Turkey

government is now discussing whether to impose amendments to increase the local use
of minerals as raw materials in the Turkish manufacturing industry.
From a general perspective, the players in the mining sector comprise both local
and foreign investors. Pursuant to the Ministry of Finance, the total number of foreign
investment companies in the mining sector was 627 between 1954 and 2011, and this
number increases in each year. When compared with recent years, the Turkish mining
sector is now more liberal and privatised and, therefore, welcomes foreign investment in
every way possible.

240
Chapter 21

UNITED STATES
Robert A Bassett, Karol L Kahalley and David I Stanish 1

I OVERVIEW

i Government policy towards mining and international investment


The US government values the mining industry for its production of domestic raw
materials, strategic minerals and high-wage jobs, despite its reputation for creating a
burdensome permitting and environmental regulatory regime. Federal, state and local
governments receive billions of dollars annually in taxes, royalties and fees from the
mining industry. The United States seeks and attracts international investment, including
financial investment and direct investment in mining operations.
US law generally permits foreign investments in US industries, including mining.
The US government places few restrictions on such investments, unless they are deemed
to have national security implications. Projects involving the export of particular
minerals, such as uranium or rare earth elements, can receive greater scrutiny when
foreign companies are involved. Foreign investors are increasingly looking to the United
States as a secure source of investment in mineral projects and to obtain reliable sources
of minerals. According to Canada’s Natural Resources Department, over 12 per cent of
Canada’s mining assets abroad are now located in the United States, while South Korean
state utilities and steelmills, and Japanese trading houses and power generators, have
sought equity in thermal and coking coalmines to secure long-term supply.

ii Risk factors
Security of title and tenure for mining claims, leases and licences is key to attracting
foreign investment in US mining. There is little risk of expropriation of mining
operations by government seizure or political unrest. The US political landscape is

1 Robert A Bassett is a partner, Karol L Kahalley is of counsel and David I Stanish is an associate
at Holland & Hart, LLP.

241
United States

characterised by inaction in the area of mining law reform; Congress has been working
towards comprehensive mining law reform for many decades, but the General Mining
Law has remained relatively unchanged since its passage in 1872. Thus, there is little risk
that title to land for mining operations will be threatened by government intervention as
long as all required fees, rentals and royalties are paid in a timely manner.
Perhaps the biggest risk in US mining ventures is the delay caused by the
environmental review, compliance and permitting of a project. These steps can be very
costly and time-consuming, and even without protracted litigation, it is not unusual
for a major mining project to require in excess of 10 years to obtain all the necessary
environmental approvals.

iii Mine ownership


Ownership of the US mining industry is in private hands: there are no government-
owned mines or mining companies. Many companies operating US mines are based
in the United States, such as Newmont Mining Corporation (gold), Peabody Energy
Corporation (coal), US Steel (iron ore) and Freeport-McMoRan (copper). Many other
operations in the United States are owned by foreign companies, including Barrick
Gold’s numerous mines (gold) and Rio Tinto’s subsidiaries such as Kennecott Utah
Copper Corporation (copper-molydbenum).

iv Significant trading agreements concerning minerals


Many international treaties of general application apply to mining industry investment
by foreign persons into the United States, but none specifically address investments in
the mining industry or trading in various minerals. However, one failed transaction of
note was the attempted acquisition by Chinese National Offshore Oil Corporation of
the rare earth element at Mountain Pass, California (then owned by Unocal), which was
blocked by the US government on national security grounds in 2005.

v Notable developments
Most major US mining deals in 2011 focused on energy minerals, such as Alpha Natural
Resources’ acquisition of Massey Energy (coal) and Energy Fuel’s acquisition of Denison
Mines Corp’s US assets (uranium). Many smaller mergers or acquisitions also occurred,
including Newmont’s acquisition of Fronteer Gold and Cliffs Natural Resources’
acquisition of Consolidated Thompson Iron Mines (taconite). In addition, many new
mining projects are in development in the US, such as IC Potash’s mine in New Mexico
(potash) and Augusta Resources’ Rosemont mine in Arizona (copper).

II LEGAL FRAMEWORK

i Introduction
The US legal system consists of many levels of codified and uncodified federal, state
and local laws. The government’s regulatory authority at each level may originate from
constitutions, statutes, administrative regulations or ordinances, and judicial common
law. The US Constitution and federal laws are the supreme law of the land, generally

242
United States

pre-empting conflicting state and local laws. In many legal areas, the different authorities
have concurrent jurisdiction, requiring regulated entities to comply with multiple levels
of regulation. Mining on federal lands, for example, is generally subject to multiple layers
of concurrent federal, state and local statutes and administrative regulations.
Federal and state governments have developed comprehensive mining regulatory
schemes. Although the United States is a common law nation, practising US mining
law often resembles practising mining law in civil law countries because the regulatory
schemes are set out in detailed codifications.2 However, these mining law codifications are
subject to precedential interpretation by courts pursuant to common law principles (and
in some situations by quasi-judicial administrative bodies). As such, US mining law may
originate from federal, state and local laws, including constitutions, statutes, administrative
regulations or ordinances, and judicial and administrative body common law.
Determining which level of government has jurisdiction over mining activities
largely depends on surface and mineral ownership. A substantial amount of mining in
the United States occurs on federal lands where the federal government owns both the
surface and mineral estates. Federal law primarily governs mineral ownership, operations
and environmental compliance, with state and local governments having concurrent
or independent authority over certain aspects of federal land mining projects (e.g.,
permitting, water rights and access authorisations). If the resource occurs on private
land, estate ownership is a matter of state contract law, but operations and environmental
compliance are still regulated by applicable federal and state laws. Estate ownership on
state-owned land is regulated by state law, and operations and environmental compliance
are regulated by applicable federal and state laws.

ii Regulation of the mining industry


The General Mining Law of 1872 (‘the GML’)3 is the principal law governing locatable
minerals on federal lands. The GML affords US citizens the opportunity to explore
for, discover and purchase certain valuable mineral deposits on federal lands open for
mineral entry. Locatable minerals include non-metallics (asphaltum, bog iron, cement,
diamonds, feldspar, granite, marble, salt, slate, umber, uranium, etc.), and metallic
minerals including copper, gold, lead, nickel, silver and zinc. Locating these mineral
deposits entitles the locator to certain possessory interests:
a unpatented mining claims, which provide the locator an exclusive possessory
interest in surface and subsurface lands, and the right to develop the minerals; and
b patented mining claims, which pass title from the federal government to the
locator, converting the property to private land. However, a mining patent
moratorium has been in place since 1994 and no new patents are being issued.

2 See, e.g., 43 CFR Sections 3000.0-3936.40 (US Bureau of Land Management (‘BLM’)
minerals management regulations).
3 30 USC Sections 21 to 54, and Sections 611 to 615, as amended.

243
United States

The Federal Land Policy and Management Act of 1976 (‘FLPMA’)4 governs federal land
use, including access to and exercise of GML rights on lands administered by BLM
and the US Forest Service (‘USFS’). FLPMA recognises ‘the Nation’s need for domestic
sources of minerals’,5 and provides that FPLMA shall not impair GML rights, including,
but not limited to, rights of ingress and egress.6 However, FLPMA also provides that
mining authorisations must not ‘result in unnecessary or undue degradation of public
lands’.7 BLM and USFS have promulgated extensive FPLMA mining regulations.8
The National Environmental Policy Act (‘NEPA’),9 requires federal agencies
to prepare an environmental impact statement (‘EIS’) for all major federal actions
significantly affecting the quality of the human environment. Mining operations on
federal lands or with a federal nexus generally will involve an EIS or a less intensive
environmental assessment (‘EA’) examining environmental impacts. The NEPA process
will involve consideration of other substantive environmental statutes.
The United States Securities and Exchange Commission (‘the SEC’) regulates
mineral resources and reserves reporting by entities subject to SEC filing and reporting
requirements. The SEC’s reporting classification system is based on the SEC’s 1992
‘Industry Guide 7’, which provides for declaration only of proven and probable reserves.
The SEC generally does not recognise other reporting codes, such as the Committee
for Mineral Reserves International Reporting Standards, which provide additional
disclosures and which are used by many other mineral-producing nations.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
In the United States, land generally can be severed into surface and subsurface estates,
creating a split estate where the surface and mineral rights can be held by different
parties. The ability to sever the unified estate depends on land ownership. Federal land
mineral interests are regulated by federal law, and title cannot be transferred to private
citizens until the minerals have been severed. Under the GML, locatable mineral claims
may be patented, transferring title to the locator, but there has been a patent moratorium
in place since 1994. Unpatented GML claims provide the locator exclusive possessory
surface and mineral interests, but the locator does not obtain title to the mineral estate.
Ownership of state-land minerals is controlled by state law and varies by state. State
laws generally are similar to federal laws, in that title remains with the state until the
minerals are severed pursuant to statutory procedures. Severance of private land estates
is governed by state law, and generally private citizens are free to split their surface and
mineral estates.

4 43 USC Sections 1701 to 1787.


5 43 USC Section 1701(a)(12).
6 43 USC Section 1732(b).
7 43 CFR Section 3809.411(d)(3); see also 43 USC Section 1732(b).
8 See, e.g., 36 CFR Sections 228.1-228.110; 43 CFR Sections 3000.0-3936.40.
9 42 USC Sections 4321-4370.

244
United States

Once the mineral estate is severed and enters the private market, title to the
minerals can be bought, sold, leased or rented as a matter of contract law, subject to
reservations in the severance document and applicable laws. The federal government,
particularly in the western United States, may have reserved the mineral estate to itself
when it transferred ownership of the surface lands to private citizens or state governments,
which could affect the surface owners’ ability to alienate the minerals.

ii Surface and mining rights


The process for developing locatable minerals rights on federal lands under the GML
involves:
a discovery of a ‘valuable mineral deposit’, which under federal law means that a
prudent person would be justified in developing the deposit with a reasonable
prospect of developing a successful mine, and that the claims can be mined and
marketed at a profit;
b locating mining claims by posting notice and marking claim boundaries;
c recording mining claims by filing a location certificate with the proper BLM
state office within 90 days of the location date and recording pursuant to county
requirements;
d maintaining the claim through assessment work or paying an annual maintenance
fee; and
e additional requirements for mineral patents (as mentioned above, there is a
moratorium on patents).

The Mineral Lands Leasing Act of 192010 provides US citizens the opportunity to
obtain a prospecting permit or lease for coal, gas, gilsonite, oil, oil shale, phosphate,
potassium and sodium deposits on federal lands. The process for obtaining a permit or
lease involves filing an application with the federal agency office with jurisdiction over
the affected land. Depending on the type of permit or lease applied for, applicants may
be required to:
a pay rental payments;
b file an exploration plan;
c pay royalty payments based on production; or
d furnish a bond covering closure and reclamation costs.

These permits and leases are often subject to conditions and stipulations directed at
protecting resource values.
The Materials Disposal Act of 194711 provides for the disposal of common
minerals found on federal lands, including, but not limited to, cinders, clay, gravel,
pumice, sand or stone, or other materials used for agriculture, animal husbandry,
building, abrasion, construction, landscaping and similar uses. These minerals may be

10 30 USC Sections 181 to 287, as amended,


11 30 USC Sections 601 to 615, as amended.

245
United States

sold through competitive bids, non-competitive bids in certain circumstances or through


free use by government entities and non-profit entities.
Although the GML and Mineral Lands Leasing Act require mine claimants,
permittees and lessees be US citizens, a ‘citizen’ can include a US incorporated entity that
is wholly owned by non-US entities or corporations. There generally are no restrictions
on foreign acquisition of these types of US mining rights through parent-subsidiary
corporate structures.

iii Additional permits and licences


Additional permits and licences required to conduct mining activities may include:
a a mine plan of operations;
b a reclamation plan and permits;
c air quality permits;
d water pollution permits (pollutant discharge elimination system permit, storm
water pollution prevention plan, spill prevention control and countermeasure
plan);
e dam safety permits;
f artificial pond permits;
g hazardous waste materials storage and transfer permits;
h well drilling permits;
i road use and access authorisations;
j right-of-way authorisations; and
k water rights.

iv Closure and remediation of mining projects


FLPMA requires BLM and the USFS to prevent ‘unnecessary or undue degradation’ of
public lands.12 Casual use hardrock mining operations on BLM lands that will result in
no or negligible surface disturbance do not require any reclamation planning. Notice-
level exploration operations requiring less than five acres of surface disturbance must
meet BLM reclamation standards and provide financial guarantees that the reclamation
will occur.13 Plan-level operations require a plan of operations that includes a detailed
reclamation plan.14 BLM reclamation standards include saving topsoil for reshaping
disturbed areas, erosion and water control measures, toxic materials measures, reshaping
and revegetation where reasonably practicable, and rehabilitation of fish and wildlife
habitat.15 Mining in BLM wilderness study areas additionally requires surface disturbances
be ‘reclaimed to the point of being substantially unnoticeable in the area as a whole’.16

12 43 USC Section 1732(b).


13 43 CFR Sections 3809.320, 3809.500(b).
14 43 CFR Sections 3809.11, 3809.401.
15 43 CFR Section 3809.420.
16 43 CFR Section 3802.0-5(d).

246
United States

Mining activities on National Forest lands must be conducted ‘so as to minimise


adverse environmental impacts on National Forest System surface resources’.17 Operators
must take measures that will ‘prevent or control on-site and off-site damage to the
environment and forest surface resources’, including erosion control, water run-off
control, toxic materials control, reshaping and revegetation where reasonably practicable,
and rehabilitation of fish and wildlife habitat.18
State laws may also include closure and reclamation requirements, including,
for example, water and air pollution controls, recontouring and revegetation, fish and
wildlife protections, and reclamation bonding requirements. Mining projects can often
address both federal and state requirements through a single closure and reclamation
plan and financial guarantee.

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


NEPA is the principal environmental law implicated by mining on federal lands. NEPA
requires federal agencies to take a ‘hard look’ at the environmental consequences of
projects before action is taken. An agency must prepare an EIS for all major federal
actions significantly affecting the quality of the human environment. An agency may first
prepare an EA to determine whether the effects are significant. If the effects are significant,
the agency must prepare the more comprehensive EIS. If the effects are insignificant,
the agency generally will issue a finding of no significant impact, ending the process.
NEPA does not dictate a substantive outcome; however, the analysis generally requires
consideration of other substantive environmental statutes and regulations, including
the Clean Air Act,19 the Clean Water Act20 and the Endangered Species Act.21 NEPA is
administered by the federal agency making the decision that may significantly affect the
environment.
The Clean Air Act regulates air emissions from stationary and mobile sources. The
Clean Air Act is administered by the Environmental Protection Agency and states with
delegated authority. The Clean Water Act regulates pollutant discharges into the ‘waters
of the United States, including the territorial seas’.22 The Clean Water Act is administered
by the Environmental Protection Agency, US Army Corps of Engineers and states with
delegated authority. The Endangered Species Act requires federal agencies to ensure
their actions are not likely to jeopardize the continued existence of any threatened or
endangered species, or to destroy or adversely modify designated critical habitat, and
prohibits the unauthorised taking of such species. The US Fish and Wildlife Service and
National Marine Fisheries Service administer the Endangered Species Act.

17 36 CFR Section 228.1.


18 36 CFR Section 228.8(g).
19 42 USC Sections 7401 to 7671.
20 33 USC Sections 1251 to 1387.
21 16 USC Sections 1531 to 1544.
22 33 USC Section 1311(a).

247
United States

The Federal Mine Safety and Health Act23 requires the Mine Safety and Health
Administration (‘MSHA’) to inspect all mines each year to ensure safe and healthy work
environments.24 MSHA is prohibited from giving advance notice of an inspection, and
may enter mine property without a warrant.25 MSHA regulations set out detailed safety
and health standards for preventing hazardous and unhealthy conditions, including
measures addressing fire prevention, air quality, explosives, aerial tramways, electricity
use, personal protection, illumination and others.26 MSHA regulations also establish
requirements for testing, evaluating and approving mining products; miner and rescue
team training programmes; and notification of accidents, injuries and illnesses at the
mine.27
Currently, there are no specific mining sustainable development regulations in the
US. However, issues of socio-economic impacts, cumulative effects and environmental
impacts often are addressed during a NEPA review.

ii Environmental compliance
Mining projects on federal lands, or that otherwise have a federal nexus, likely will have
to go through some level of NEPA environmental review. State laws may also require
environmental analysis. Where analysis is required by different agencies, it may be
possible to pursue an agreement among the agencies to allow the operator to produce
one comprehensive environmental review document that all agencies can rely on.
There is no statutory deadline for federal agencies to complete their NEPA review.
Small mine project reviews may take in excess of a year to complete. Larger project
reviews likely will take longer. Third parties may sue the federal agency completing the
review to ensure that the agency considered all relevant factors and rationally related the
decisions made to the facts found. Prosecuting the litigation would extend the project
approval time, and if the agency loses, additional time would be required for the agency
to redo its flawed NEPA analysis. In some instances where mines were proposed in
especially sensitive areas, it has taken decades to obtain approval.

iii Third-party rights


The US contains numerous reservations comprised of federal lands set aside by treaty
or administrative directive for specific native American tribes or Alaska natives. Tribal
reservation title generally is held by the United States in trust for the tribes, and the US
Bureau of Indian Affairs administers the reservations. Alaska native lands are owned
and administered by Alaska native corporations. Mineral development within the
tribal reservations and Alaska native lands requires negotiation with the appropriate
administrator.

23 30 USC Sections 801 to 965.


24 30 USC Section 813.
25 30 USC Section 813.
26 See, e.g., 30 CFR Sections 56.1-56.20014 (safety and health standards for surface metal and
non-metal mines).
27 30 CFR Sections 5.10-36.50, 46.1-49.60, 50.10.

248
United States

Tribal cultural interests are considered through NEPA, the National Historic
Preservation Act (‘the NHPA’),28 and the Native Graves Protection and Repatriation Act
(‘NAGPRA’).29 NEPA analysis will include social and cultural impacts, and may require
tribal consultation. Section 106 of the NHPA requires federal agencies to inventorise
historic properties on federal lands and lands subject to federal permitting, and to consult
with interested parties and the State Historic Preservation Office. 16 USC Section 470f
NAGPRA imposes procedural requirements that apply to inadvertent discovery and
intentional excavation of tribal graves and cultural items on federal or tribal lands.

iv Additional considerations
Not all federal lands are open to mineral entry, including national parks, national
monuments, most Reclamation Act project areas, military reservations, wilderness areas,
and wild and scenic river corridors. Project proponents should research mineral access
when considering exploration activities on federal lands.
Federal mining laws do not require community engagement or corporate
responsibility. Those projects that require NEPA review, however, will be subject to
public notice and comment requirements, and the review will involve consideration of
the project’s cultural, societal and economic impacts. State laws may impose a ‘public
interest’ standard for projects requiring state approval. For example, mining operations
that require state water rights may need to show that the use of the water is in the ‘public
interest’, which may include consideration of wildlife, fisheries and aquatic habitat values.

V OPERATIONS, PROCESSING AND SALE OF MINERALS

i Processing and operations


US mining laws do not restrict or limit importing mining equipment or machinery. If the
equipment has dual military-civilian use, it is on the Commercial Control List and may
be licensable by the Department of Commerce pursuant to the Export Administration
Regulations30.
Foreign employees are governed by general US immigration laws and are required
to obtain a work visa or other authorisation. A limited number of visas are available
for skilled workers, professionals and non-skilled workers, but these workers must be
performing work for which qualified US workers are not available.31

ii Sale, import and export of extracted or processed minerals


There are no restrictions or limitations on the sale, import or export of extracted or
processed minerals, unless deemed a national security risk by the US Department of
Homeland Security or State Department.

28 16 USC Section 470.


29 25 USC Section 3001 to 3013.
30 15 CFR Sections 730.1, 774 Supp. No. 1.
31 8 USC Section 1153(b)(3)(C).

249
United States

iii Foreign investment


US mining laws generally do not restrict or limit foreign investment. As discussed
in Section III.ii, supra, although there is a US citizenship requirement for obtaining
locatable and leasable minerals on federal lands, foreign companies are free to rely on a
US subsidiary to secure such rights.
Foreign investments are subject to US national security laws. The Committee
on Foreign Investment in the United States, for example, is an inter-agency committee
chaired by the Secretary of the Treasury that has authority to review foreign investments
to protect national security, and make recommendations to the President to block the
same.32 The President may exercise this authority if the President finds that the foreign
interest might take action impairing national security, and other provisions of the law do
not provide the President with appropriate authority to act to protect national security.33

VI CHARGES

i Royalties
There are generally no royalties levied on the extraction of federally owned minerals,
with the exception of fuel minerals and other minerals governed by the Mineral Leasing
Act. Many states, however, charge royalties on mineral operations on state-owned lands
and taxes that function like a royalty on all lands, such as severance taxes, mine licence
taxes or resource excise taxes. These functional royalties can differ depending on land
ownership and the minerals extracted.

ii Tax considerations
There are no federal taxes specific to minerals extraction (see above regarding state mining
taxes as functional royalties). General federal, state, county and municipal taxes apply to
mining companies, including income taxes, payroll taxes, sales taxes, property taxes and
use taxes.
Federal tax laws generally do not distinguish between domestic and foreign mining
operators. However, if a non-US citizen acquires real property, the buyer must deposit
10 per cent of the sale’s price in cash with the US Internal Revenue Service as insurance
against the seller’s income tax liability. The cash requirement can be problematic for a
cash-strapped buyer that may have purchased the mine property with stock.
There are no federal tax advantages or incentives specific to mining.

iii Duties
There are no federal duties on minerals extraction.

32 50 USC Appendix Section 2170.


33 50 USC Appendix Section 2170(d)(4).

250
United States

iv Indemnification
Locatable minerals claimants must pay an annual maintenance fee of $140 per claim in
lieu of performing assessment work required pursuant to GML and FLPMA.34 Failure to
perform assessment work or pay maintenance fees will open the claim to relocation by a
rival claimant as if no location had been made.35 Certain waivers and deferments apply.
Leasable minerals permittees and lessees must pay annual rent based on acreage.
The rental rates differ by mineral and some rates increase over time.36 Prospecting permits
automatically terminate if rent is not paid on time; BLM will notify late lessees that they
have 30 days to pay.37
State laws may also include closure and reclamation requirements, including water
and air pollution controls, recontouring and revegetation, fish and wildlife protections,
and reclamation bonding requirements. Mining projects often can address both federal
and state requirements through a single closure and reclamation plan and financial
guarantee.
Federal and state laws generally require financial guarantees prior to commencing
operations to cover closure and reclamation costs. These reclamation bonds ensure
that the regulatory authorities will have sufficient funds to reclaim the mine site if the
permittee fails to complete the reclamation plan approved in the permit.

VII OUTLOOK AND TRENDS

Mining stands out in the US economy as a producer of long-term, high-wage jobs. The
mining industry is predicted to account for over 128,000 US jobs (new positions and
replacements) by 2019. Significant gains in the mining industry are due in large part
to the increased value of mineral production in the US in recent years. US domestic
metal production increased 23 per cent in 2011. The value of non-metallic minerals also
showed growth, although at a smaller rate of 3 per cent, and significantly, for the first
time in several years an increase in value occurred in that sector.
Despite these trends, the United States remains dependent on foreign sources for
more than 50 per cent of domestic consumption of 43 mineral commodities in 2011. As
a result, legislation has been introduced in Congress aimed at encouraging more efficient
and expedited development of strategic minerals on public lands.
Through its participation in the Extractive Industries Transparency Initiative (‘the
EITI’), the United States has joined 35 additional countries in a global effort to improve
transparency and accountability in the mining industry. Participation in the EITI could
further elevate public scrutiny of land use and the environmental impacts of mining for
the US mining industry.

34 43 CFR Sections 3834.11(a), 3830.21.


35 43 CFR Section 3836.15.
36 43 CFR Section 3504.15.
37 43 CFR Section 3504.17.

251
Chapter 22

UZBEKISTAN
Eldor Mannopov, Anna Snejkova and Ulugbek Abdullaev 1

I OVERVIEW

Uzbekistan is rich in mineral resources and precious metals, including gold, copper,
lead, molybdenum, silver, tungsten and zinc. Metallurgy is one of the largest domestic
industries, and the most-mined minerals are copper, uranium and gold. There are two
dominant state mining enterprises: the Almalyk Mining and Metallurgy Complex
(‘AGMK’) and the Navoi Mining and Metallurgy Complex (‘NGMK’).
The Uzbek government attaches great importance to the mining industry, and
most of the mining projects in Uzbekistan are carried out by AGMK and NGMK. The
government also strives to attract more foreign investment by creating a favourable
investment climate; however, no allocation of big mining projects to foreign investors
has occurred recently. Nevertheless, it seems that foreign investment will be particularly
welcomed for the exploration and development of solid minerals mining projects
involving deep processing of minerals.2
Under Uzbek law, all subsoil is strictly under public ownership. The state holds
title to all subsoil, and all types of subsoil use are subject to licensing.3
Any review of the Uzbek mining industry will involve consideration of AGMK
and NGMK. AGMK is Uzbekistan’s only copper producer, and also produces 90 per
cent of the country’s silver and 20 per cent of its gold. NGMK is the only uranium
producer in Uzbekistan, and also produces 80 per cent Uzbekistan’s gold. AGMK carries
out geological explorations of non-ferrous metals and associated minerals in Uzbekistan,
as well as supplementary exploration and exploitation surveys of precious metal fields.

1 Eldor Mannopov is a managing partner, Anna Snejkova is an associate and Ulugbek Abdullaev
is a junior associate at Avent Advokat.
2 Decree of the Cabinet of Ministers No. 142 dated 26 May 2008.
3 For more information on licensing, see Section III.ii, infra.

252
Uzbekistan

NGMK carries out explorations of precious metals, uranium and associated natural
resources within the entire territory of Uzbekistan.
AGMK recently accepted Outotec GmbH’s proposal to implement a project to
construct a sulphuric acid shop at its copper smelting plant; the new shop would have
a capacity to produce 500,000 tonnes of sulphuric acid a year. Among other projects,
AGMK is planning to start new mining projects, and to reconstruct and expand existing
projects; in total, AGMK has 15 projects scheduled for the period running up to 2015, at
a total cost equivalent to $798 million. Similarly, from 2012 to 2020 NGMK is reported
to be investing in the development of gold and uranium production, and an expansion
of raw bases up to $3.2 billion.
Regarding uranium production, NGMK has been cooperating with Nukem Inc
on uranium supply since 1992. According to the 1992 agreement, the US firm had the
exclusive right on the supply of Uzbek uranium until 2011. However, it was recently
announced that this arrangement may be extended. In 2011, NGMK concluded a
10‑year off-take agreement for uranium with ITOCHU (Japan).
One of the latest foreign investment agreements was signed in 2008 between a
South Korean investor and the State Geology Committee to carry out exploration and
subsequent mining works of quartz and quartzite. The agreement led to the establishment
of a joint venture that commenced production of technical silicon in August 2012.

II LEGAL FRAMEWORK

The mining industry is generally regulated by international agreements of Uzbekistan,


laws, presidential and governmental decrees, as well as other by-laws (instructions,
standards, etc.). Uzbekistan is not a signatory to any specific international treaties on
mining. The primary law on the field is the Law on Subsoil,4 which lays down the basic
legal principles on mining and regulates principal issues of possession, use and disposal
of the subsoil. The general structure and directions of regulation over the mining sector
are usually initiated by presidential decrees, and then incorporated into more detailed
decrees of the Cabinet of Ministers (government).
All subsoil operations in Uzbekistan are subject to licensing. There are several
regulations on licensing depending on what underground mineral is located in the
subsoil. These regulate the conditions, requirements and procedure of licensing. All
taxation questions are regulated principally by the Tax Code.
There are three groups of regulatory bodies in the mining industry: the Cabinet
of Ministers, local government bodies and specially authorised bodies.5 The Cabinet of
Ministers is the primary regulating body in the industry. It decides on the award of subsoil
to mining companies, and adopts policies for the development of the mining sector and
licensing procedures, in addition to other matters. Local government bodies carry out
supervising functions over the use and conservation of resources, and the prevention
of unauthorised use of subsoil. The specially authorised bodies are the following

4 Law of the Republic of Uzbekistan No. 2018-XII ‘On Subsoil’ (new edition) dated 23
September 1994.
5 Article 7 of the Law on Subsoil.

253
Uzbekistan

three agencies: the State Committee on geology and mineral resources (‘the Geology
Committee’), the State Committee on nature protection (‘the Nature Committee’)
and the State Inspectorate for geological studies, safety in mining industry under the
Cabinet of Ministers (‘the Inspectorate’). Among them, the Geology Committee is the
main executive body responsible for the development of mining policies, and is also the
licensing and compliance monitoring body. The Nature Committee coordinates issues
of environmental protection, standards for mining operations and waste management.
The Inspectorate carries out functions related to control over compliance with technical
rules and regulations.

III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS

i Title
It is a general principle under Uzbek law that the title to underground minerals and to
the land belongs to the state. Nevertheless, a limited range of rights to the subsoil can
vest in private entities.
The law also grants limited mining rights to land-users in relation to allotted
land plots. A peculiarity of Uzbek law is that land can be allotted only together with a
permanent fixture (existing or projected) on it. In essence, a person acquires property
rights in relation to the immoveable property and also acquires certain rights (but not
title) on the land. Land-users are allowed to mine within the boundaries of the land
allotted to them, provided that the available minerals are not included in the state balance
of mineral deposits and the mining does not involve any explosive works.6
Subsoil title generally vests in the state. Furthermore, the law places a prohibition
on the sale, purchase, gifting, inheriting, depositing, pledging or disposal of the subsoil
in other forms. Under Uzbek law, the transfer of rights is possible only by two means,
namely through the award of a public tender or through the conclusion of a product
sharing agreement (‘PSA’). In practice, mining rights are usually awarded after a tender
rather than through a PSA.

ii Surface and mining rights


Licensing
All types of subsoil use are subject to licensing under Uzbek law.7 As a rule, each
type of subsoil use requires the obtaining of a special licence.8 Nevertheless, there is
no limitation on the number of licences that the same person may obtain.9 Under the
licensing regulations, both legal and natural persons are entitled to apply for usage rights
on subsoil.10 The licence term for mining and use of technogenic mineral formations
depends on the term established based on a feasibility study.

6 Article 31 of the Law on Subsoil.


7 Article 26 of the Law on Subsoil.
8 Section 2 of the Decree PP-649, Section 3, Decree PP-1524.
9 Article 26 of the Law on Subsoil.
10 Article 20 of the Law on Subsoil.

254
Uzbekistan

Licences are issued pursuant to the results of public tenders or direct negotiations.11
A public tendering may last eight months, or more, depending on the project. First,
the licensing body publishes information on the tendering three months in advance
of the closing date (six months for big projects). The interested parties prepare and
submit documents, pay the participation fee and register for the tender. Within 20
days of submission, they are notified as to whether their documents have been accepted
or rejected for participation (shortlist). Provided that they are accepted, participants
receive relevant geological and other information on the subsoil, and simultaneously
sign a confidentiality agreement. Each participant shall then prepare and submit
consolidated technical and economic calculations (if applying for a geological study),
and a pre-feasibility study, together with information on the financial capabilities of
the participant, within the term specified by the tender documentation. The tender
commission examines the calculations, pre-feasibility study and financial information,
and decides within 20 calendar days on the awarding of the tender. The decision of the
tender commission is subject to approval by the government within 30 calendar days.
After the government’s approval is given, the licence shall be issued to the winner within
the following 30 calendar days.

Mining rights protection


The law guarantees the right of the subsoil user to operate without interference from state
bodies. The right to remedy against the damages (including lost profit) resulting from
such interference (i.e., unreasonable limitation, suspension or termination of the right
to use the subsoil) is also guaranteed.12 Such company may apply to court for relevant
compensation or other type of remedy.
There are also additional guarantees for subsoil users that have financed the
geological exploration of mineral resources.13 They shall have the exclusive right to obtain
licences to mining on the explored field. If the financing person chooses to reject the
guaranteed mining right, such right is provided to another person following a public
tendering in accordance with the general provisions, and the expenses of the financing
person are subject to compensation by the person that acquires the right to mining.14

iii Additional permits and licences


In addition to the licensing requirements, there are several other permits and procedures
that precede mining operations.15 Once the licence is granted (see above), the licensee
should also obtain a report on the estimated reserves of minerals (duly approved by the
State Resource Committee). The mineral deposit is then transferred to the licence holder
for industrial exploitation. The licence holder also needs to prepare and have the project

11 Article 27 of the Law on Subsoil.


12 Article 47 of the Law on Subsoil.
13 Article 26 of the Law on Subsoil.
14 Section 32 of the Decree PP-1524.
15 Section 3 of the Law Uniform Rules of Subsoil Protection for Development of Mineral
Deposits, Annex 4 to Decree of the Cabinet of Ministers No. 20 dated 13 January 1997.

255
Uzbekistan

for the construction, renovation or expansion of the mining enterprise approved by the
controlling bodies and passed by state environmental experts.
In order to obtain land usage rights, the licence holder needs to obtain the mining
allotment from the Inspectorate and duly register its right of usage to the land with the
cadastre bodies. If applicable, the licensee may also need to obtain a permit for special
use of water or water consumption.

iv Closure and remediation of mining projects


Both the liquidation and conservation of mining enterprises are usually carried out on
the basis of a special technical project16 that has to be approved and agreed to by the
Inspectorate and any interested bodies.17

IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS

i Environmental, health and safety regulations


Environmental regulations
Currently there is no special law on environmental requirements for mining activities.
In general, irrespective of the type of activity, all companies must comply with the
environmental regulations. The legal basis for environmental control is laid down by
the Law on Environmental Protection. Compliance with environmental regulations is
supervised by the Cabinet of Ministers and the Nature Committee.18
In cases where harm is caused to the environment (e.g., unintended use, subsoil
pollution by chemicals, fertility deterioration), the right to use the land may be revoked
by the state.19 Moreover, any company involved in an activity that produces waste (in
the course of extraction or processing) must comply with sanitary and environmental
standards, monitor levels of waste that are hazardous for the environment and people,
provide conditions for safe waste utilisation and avoid waste disposal within unauthorised
territories.20 More detailed rules are elaborated in the Uniform Rules of Subsoil Protection
for Development of Mineral Deposits. According to these rules, a company involved in
mining must, at its own expense, conduct recultivation of the land after termination of
all works on all lands suitable for farming, forestry or any other agricultural activity, or
for the fishing industry. It is the company’s responsibility to maintain necessary facilities
and equipment for the prevention, control and remediation of waste products. Besides,
it is strictly forbidden to start mining works if a company does not operate the above-
mentioned facilities.21

16 Article 44 of the Law on Subsoil.


17 Section 7 of Uniform Rule 20.
18 Articles 9, 11 of the Law on Environmental Protection, dated 9 December 1992.
19 Article 36 of the Land Code.
20 Article 15 of the Law on Wastes, dated 5 April 2002.
21 Sections 3, 9, 10 and 12 of the Uniform Rules of Subsoil Protection for Development of
Mineral Deposits, dated 13 January 1997.

256
Uzbekistan

Health and safety regulations


Uzbek law does not segregate health and safety regulations depending on the company’s
type of activity. Therefore, all types of health and safety regulations and other correlated
legislative instruments have to be observed by mining companies. In 2009 special rules
were adopted for labour accidents. According to the present rules, an employer insures
its liability for any harm that may be caused to an employee’s health as a result of a
work-related injury, professional illness or other damage caused during the employee’s
employment.22
Supervision by the regulatory bodies administering the observance of laws on
safety precautions may be divided into external and internal control. External control is
performed by the Cabinet of Ministers,23 and the Ministry of Labour and Social Protection
of Population, while internal control is carried out by the company’s employees or trade
union, or both.24

Health regulations
The labour law requires the employer to provide preliminary (pre-employment)
and periodical (throughout employment) medical examinations for some groups of
employees. Such medical examination is compulsory for the following groups:25
a underage employees;
b male employees over the age of 60 and female employees over the age of 55;
c disabled people; and
d people working under challenging environments, during the night and in work
related to transportation.

The frequency of such periodical medical examinations depends on the character of the
employee’s professional duties under the employment agreement and the position he or
she holds. Such medical examination is regulated by order of the Minister of Healthcare.
Employees engaged in mining activities are required to be medically examined by a
physician, neurologist, ophthalmologist, surgeon, psychiatrist, STD specialist and
skin specialist. However, it is vital for employers to take into consideration the fact
that there may be other employees whose duties correlate to mining in some way (e.g.,
transportation, supply works).26 For the purpose of provision of medical services to
employees, the employer may freely enter into a contract with a competent medical
institution of its choice. At present, the health insurance system is underdeveloped in
Uzbekistan due to the absence of any specific law regulating this field. However, based

22 Section 3 of the Rules on Compulsory State Insurance of Employer’s Civil Liability, No. 177,
dated 24 June 2009.
23 Article 3 of the Law on Labour Safety, dated 6 May 1993.
24 Articles 22 and 23 of the Law on Labour Safety.
25 Article 214 of the Labour Code of the Republic of Uzbekistan, dated 21 December 1995.
26 Order of the Minister of Healthcare No. 300 on Improvement of Preliminary Medical
Examination at Hiring and Periodical Medical Examination of the Employees, dated 6 June
2000, registered by the Ministry of Justice No. 937, dated 26 June 2000.

257
Uzbekistan

on a company’s internal policy, it is possible to apply on a voluntary basis to an insurance


company to provide the company’s employees with health insurance under a scheme that
runs for a period of one year only.27

Safety regulations
Any company operating in Uzbekistan, irrespective of its type of activity, has to observe
health and safety rules. In cases where the number of employees equals or exceeds 50
persons, the employer must establish a special department or position responsible for
health and safety compliance. Moreover, if the company possesses 50 or more vehicles,
an analogous department for traffic safety must be organised within the company. In
cases where the number of employees or vehicles is less than 50, the employer may
assign such duty to one of its senior managers.28 The specialists in the health and safety
department and traffic safety department are responsible for internally controlling the
observance of the health and safety rules by the employees.
All employees of the company must be properly informed by the employer on
labour conditions and professional risks before conclusion