X

Map Disclaimer

Information in this screening tool is provided for informational purposes only and does not constitute legal or scientific advice or service. The World Bank makes no warranties or representations, express or implied as to the accuracy or reliability of this tool or the data contained therein. A user of this tool should seek qualified expert for specific diagnosis and analysis of a particular project. Any use thereof or reliance thereon is at the sole and independent discretion and responsibility of the user. No conclusions or inferences drawn from the tool or relating to any aspect of any of the maps shown on the tool, should be attributed to the World Bank, its Board of Executive Directors, its Management, or any of its member countries.

The boundaries, colors, denominations, and other information shown on any map the tool do not imply any judgment or endorsement on the part of the World Bank concerning the delimitation or the legal status of any territory or boundaries. In no event will the World Bank be liable for any form of damage arising from the application or misapplication of the tool, any maps, or any associated materials.

Part B: Mineral Rights - Part B-2: Exploration - 25. Exploration Licensing | 25.3 Licence Refusal Appeal Process

In order for there to be accountability of the granting authority, there should not only be standards for the grant of licences that limit or eliminate the granting authority’s discretion, but also a procedure for independent review of the authority’s decision to refuse to issue a licence.

A due process review procedure would include an initial procedure for reconsideration by the granting authority and/or his or her hierarchical superior, followed by a judicial or quasi-judicial review of the ultimate decision on reconsideration.

If a competitive bidding procedure is used to award the exploration licence, the bidding rules (either in the Mining law or regulations, or in a separate law and regulations on public contracting) should include a clear statement of the procedure and criteria for challenging any awards of exploration rights. If the bidding procedure involves a two-stage process (i.e., a bidder qualification stage to narrow the field of eligible bidders and a bid evaluation stage to determine the prevailing bid, if any), then the rules should provide separate procedures for challenges of a determination of ineligibility, on the one hand, and challenges of an award of a licence, on the other hand. The grounds for a challenge of a decision in a competitive bidding process should be narrowly defined but should include, for example:

  • Conflict of interest or misconduct by one or more members of the bid review commission affecting the outcome;
  • Decision of the commission based on criteria or weighting other than those specified in the bidding rules;
  • Improper influence on the decision of the commission; and
  • Decision of the commission contrary to public policy established by law.

If a procedure other than competitive bidding is used to award the licence (e.g., first-come-first served, auction, or best offer), the licence refusal appeal process should be specified in the Mining law. That process should enable appeals of refusals by in the action as well as explicit refusals.

In order to enable appeals of licence refusals to potentially succeed, the licence granting procedure set forth in the Mining law should include clear statements of the following elements:

  • The criteria for the grant of the licence;
  • A registry and mapping of all applications for exploration licences, accurately recording the name of the applicant, the location of the exploration area sought, the mineral substances targeted and the date and time of filing the application;
  • The timeframe within which a decision to grant or refuse the licence must be made; and
  • The requirement that the reasons for the refusal of a licence must be provided by the granting authority to the applicant in writing;
  • The timeframe within which requests for reconsideration and appeals of refusals must be filed, and with which authority.

In jurisdictions that experience a high volume of applications for mineral rights, and an actual or potential high volume of disputes over mineral rights, it may be desirable and justifiable to establish a special adjudicatory tribunal to resolve such conflicts, including appeals of licence refusals. For example, such appeals could be submitted to a review board composed of members of a mineral resource development advisory commission consisting of representatives of government, industry, artisanal and small scale mining, civil society and authorities and community leaders from the affected areas.

25.3 Example 1:

Article [_] The end of the application assessment

(1) The assessment of an application for mining and/or quarrying rights shall come to an end on the day on which the applicant is notified of the decision to grant the application or the day of the judge's decision as provided for in Article [_] (on registration through legal channels) of the present [Code][Act][Law].

(2) In the event of a decision to refuse the application, and subject to the provisions of Article [_] (on the application of the common law appeals to a higher administrative authority) and Article [_] (on the shortening of time periods within which appeals may be brought) of the present [Code][Act][Law], the assessment of an application for mining and/or quarrying rights shall come to an end on the day on which the applicant is notified of the decision.

Article [ ] The application of the common law

Subject to the provisions of Article [_] (on registration through legal channels) and Article [_] (on matters which concern appeal proceedings) of the present [Code][Act][Law], an appeal against administrative acts decreed by administrative authorities in application of, or in violation of, the provisions of the present [Code][Act][Law], or those of the Mining Regulations shall be governed by the common law, in particular by the provisions of Articles [_] of the [Code of Judicial Organisation and Jurisdiction] and by the [relevant law] relating to procedure before the [Supreme Court], as amended and supplemented to date.

Article [_] The shortening of time periods

(1) Notwithstanding the provisions of the [_] Act mentioned above, the applicant's preliminary appeal, as a litigant before the Administrative Division of the [Supreme Court of Justice], to the authority which may set aside or amend the administrative act must be brought within thirty days of the date on which the decision was published or the applicant was personally notified of it. A request to set aside the decision is to be brought within twenty days from the day on which notification was given for the total or partial dismissal of the appeal.

(2) The time limit for filing the reply and the one for the administrative file shall be fifteen working days from the date of notification of the appeal. The same time limit shall apply for the opinion of the [Attorney General of the Republic]. An extension of the time limits imposed on the parties for sending in the appeal and the reply, which may possibly be decided on by a reasoned order of the President of the Administrative Division of the [Supreme Court of Justice], may not exceed 12 working days.

(3) The shortening of the time limits provided for in the preceeding paragraphs of the present Article only apply to refusals to grant mining and/or quarrying rights, and of the approval or perfection of mortgages.

(4) In all circumstances, the judgement of the [Supreme Court of Justice] shall be delivered within thirty working days of the deliberations relating to the case.

Annotation

Drawn from DRC’s mining law (2002), this provision provides for an expedited administrative and judicial appeal process in the case of refusal to grant a licence under the general procedures for judicial review of administrative decisions. It includes:

  • Filing a request for reconsideration with the granting authority within 30 days of the notification of the decision to refuse the licence.
  • Filing a request for judicial reversal within twenty days of the rejection of the request for reconsideration;
  • Filing of the briefs in opposition and the administrative record within 15 days of notification of the appeal;
  • Limitation of the power of the court to grant filing deadline extensions: 12 days maximum;
  • Issuance of the decision of the Supreme Court of Justice within 30 days of closure of the pleadings.

25.3 Example 2:

Article [_]

(1) Any person whose rights or legitimate expectations have been materially and adversely affected or who is aggrieved by any administrative decision in terms of this [Act][Code][Law] may appeal in the prescribed manner to –

(a) the [Regulating Authority], if it is an administrative decision by an officer of the [Regulating Authority]; or

(b) the [Administrative Reviewer], if it is an administrative decision by the [Regulating Authority].

(2) An appeal in terms of subsection (1) does not suspend the administrative decision, unless it is suspended by the [Regulating Authority], as the case may be.

(3) No person may apply to the court for the review of an administrative decision contemplated in subsection (1) until that person has exhausted his or her remedies in terms of that subsection.

(4) Sections [_] of the [Administrative Procedures Act], apply to any court proceedings contemplated in this section.

Annotation

Drawn from South Africa’s mining law (2002), this provision acknowledges a right of appeal under the Promotion of Administrative Justice act and imposes an obligatory internal administrative appeal (a request for reconsideration) as a prerequisite. It does not establish expedited deadlines in the manner that the DRC provision does.