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Part B: Mineral Rights - Part B-4: ASM Licencing - 27. Small Scale Licencing | 27.3. Licence Refusal Appeal Process

In detailing the licence refusal appeals process, a mining law may include: Why a licence may be refused and the due process to be followed by the regulator. The reasons for refusal may also include non-eligibility and/or failure to meet the “requirements of the application.” The process of refusal must indicate the format in which refusal will be communicated, the days that are allowed to lapse before the communication is made, informing the applicant of their right to appeal the application refusal. The refusal process may also address what process the applicant can follow to appeal the refusal. Consideration should be given to provision of an expedited administrative appeal of any refusal to grant a small scale exploitation license, as a prerequisite to a subsequent judicial appeal if the administrative appeal is unsuccessful. In countries that have a Minerals Commission, Advisory Board or Minerals Consultative Body (the latter including representatives of Government, industry, civil society and mining communities, for example), it could be effective and efficient for appeals of refusals to grant small scale mining licence applications to be made to an adjudicative arm of such Commission, Board or Body, and for the decision of that institution on appeal to be binding except in very limited circumstances: e.g., misconduct, corruption or conflict of interest on the part of the adjudicatory panel, or a decision exceeding its review powers (i.e., similar to the typical grounds for vacating an arbitration award).

27.3. Example 1:

Article [_]

The granting of or refusal to grant an Operating Licence for Small-Scale Mining shall be governed by the provisions of Articles [_] of the present [Code][Act][Law] (on the granting of and justification for refusing to grant an Operating Licence).

Article [_]

Reasons are to be given in writing for the refusal of an operating license and gives the right to appeal as provided for in the provisions of Articles [_] of the present [Code][Act][Law] (on arbitration appeal).

Article [_]

(1) An Operating Licence may be refused only if:

(a) the feasibility study has been rejected;

(b) the applicant lacks sufficient financial ability;

(c) the EIA has been rejected in a final decision, in accordance with the below provisions.

(2) A feasibility study may only be rejected for the following reasons:

(a) it does not comply with the directive from [the Regulatory Authority] specifying its content in accordance with generally recognised international practices;

(b) the study contains an obvious error;

(c) it does not comply with the EIA.

(3) Proof of the applicant's financial capacity may only be rejected for one of the following reasons:

(a) the financing plan does not comply with the feasibility study;

(b) there is clearly insufficient proof of the likely availability of the financing which is to be obtained from the sources identified by the applicant.

(4) Proof of financial capacity may not be rejected if, in the case of external funding, the applicant has produced proof from the financial sources which were identified, demonstrating the feasibility of the financing within the parameters considered by the applicant, and, in the case of internal financing, the financial statements of the person or company certified by a Chartered Accountant or a Public Accountant recognised by the courts, demonstrating their self-financing capacity.

Article [_]

Subject to the provisions relating to appeals to a higher administrative authority and appeal proceedings, penalties and punishments provided for by the present [Code][Act][Law], disputes which may result from the interpretation or application of the provisions of the present [Code][Act][Law], may be settled through arbitration as provided for in Articles [_] of the present [Code][Act][Law] (on the terms for arbitration).

Article [_]

Subject to the provisions of Article [_] (on the registration of a mining right 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 law relating to procedure before the Supreme Court of Justice], as amended and supplemented to date.

Annotation

Drawn from the DRC’s mining law (2002), these provisions explicitly provide for a judicial appeal of the decision to refuse a SSM permit, through a series of cross references.

The first article provides that the issuance or refusal of a SSM permit is subject to the same articles 72 and 73 that apply to large scale mining permits. Article 72 establishes that the refusal to issue the permit gives rise to the appeals provided for in Articles 317 to 320 of the mining law. Article 73 limits the grounds on which the permit may be refused by the Regulating Authority.

Article 317 provides that arbitration is available for the resolution of disputes as to the interpretation or implementation of any provisions of the mining law, but that this is subject to the provisions on administrative and judicial appeals.

Article 313 is the general provision on such appeals. It provides that appeals of any administrative act by the administrative authorities in implementing the mining law are governed by the general law on judicial authority; and it goes on to specify the applicable articles of the relevant law.

Thus, the DRC mining law both specifies the grounds on which an application for a SSM permit may be denied and explicitly provides a right of appeal of the denial under the general statutes on judicial procedure, rather than leaving it up to the applicant, its counsel and the courts to determine whether an appeal is available and on what terms. This is, however, a rare provision among African mining laws. Most African mining laws do not specifically provide for an appeal of the refusal to grant a SSM permit. In those cases, whether and where an appeal would lie must be determined under the applicable general administrative procedures act.

27.3. Example 2:

Article [_]

(1) Subject to previous articles, the [Regulating Authority] shall grant or refuse to grant a small-scale mining licence.

(2) The [Regulating Authority] shall cause the applicant for a small-scale mining licence to be notified in writing of his decision on the application, and if the application is refused, the [Regulating Authority] shall give reasons for such refusal.

(3) Any person aggrieved by the refusal of the [Regulating Authority] to grant that person a small-scale mining licence may appeal to the Court, whose decision shall be final.

(4) The [Regulating Authority] shall not refuse to grant a small-scale mining licence on any ground referred to in subsection (3) unless he has-

(a) given to the applicant, notice of his intention not to grant the small-scale mining licence giving full particulars of the ground for refusal; or

(b) specified in the notice a date before which the applicant may make appropriate proposals to remove the ground for refusal, and the applicant has not, after that date made any such proposals.

Annotation

Drawn from Sierra Leone’s mining law (2009), this article provides a right to a judicial appeal of the refusal to grant a SSM licence similar to that provided by the articles of the DRC mining law set forth in Example 1, but in more succinct terms. The Sierra Leone article does not limit the grounds for refusal of the SSM licence as the DRC provisions do; but it offers the possibility that the Regulating Authority will inform the applicant of deficiencies in its application and provide an opportunity for the applicant to correct them.