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Part B: Mineral Rights - Part B-2: Exploration - 25. Exploration Licensing | 25.11 Revocation of Licence

A provision in which a licence is withdrawn and/or taken away by the Regulating Authority is referred to as revocation of the licence. Whereas suspension or monetary penalties may be imposed for various failures to comply with health, safety, environmental protection and other qualitative obligations – thereby providing an incentive to comply while protecting workers and communities from the consequences of such breaches, revocation of the licence is the ultimate penalty, the grounds for which should be limited and clearly stated. The revocation provisions of the law should also state whether the ground for revocation is one that can be cured and, if so, within what timeframe after notice.

25.11 Example 1:

Article [_]

(1) The following shall be considered as failure to comply with administrative obligations by a rights holder: non-payment of annual surface area fees per square and failure to commence work within the time period provided for in the articles on these respective obligations.

(2) Subject to the provisions of Articles [_] of the present [Code][Act][Law] (on offences and penalties), the failures to comply as listed in Article [_] (on the non-payment of annual surface area fees and failure to commence work within the legal time period) shall constitute grounds for the Prospecting Licence, as well as [their Permanent Quarry Operating Permit] to be revoked.

(3) The Ministry of Mines shall immediately notify the holder of the decision to revoke the licence or permit and shall post an announcement in a room indicated in the Mining Regulations.

(4) Notification of the decision to revoke the licence or permit creates a right to appeal as provided for in Articles [_] (on arbitration appeal) of the present [Code][Act][Law].

(5) Such appeals must be brought within thirty days of the decision being posted in the Ministry of Mines with jurisdiction over the revoked right.

(6) Should an appeal not be brought within the time period given above, the decision to revoke the licence or permit shall be registered in the appropriate register and published in the [Official Gazette].

(7) Where an appeal is brought against a decision to revoke a licence or permit, the mining or quarrying right concerned shall remain valid for the duration of the proceedings. However, there shall be notice of the decision and the appeal proceedings which have been brought, in the register of granted licences and permits.

(8) The mining rights and [the permanent quarry operating permit] shall be cancelled by [the regulatory authority] when the holder has not brought an appeal against the decision to withdraw the licence or permit and when the time period for an appeal has lapsed or the appeal has been dismissed.

(9) The decision to cancel a licence or permit shall be made on the day the appeal is dismissed or the last day of the period within which the appeal should have been brought.

(10) The Ministry of Mines shall be notified of the decision of the to cancel the licence or permit and shall register it in the register of cancelled titles.

(11) The area which is the subject of a mining or quarrying right which has been cancelled shall return to and be held by the State.

(12) Holders of mining rights and [a permanent quarry operating permit] who have lost their rights and whose titles have been cancelled may not obtain new mining rights or a new [permanent quarry operating permit] for a period of five years from the date on which the cancellation was registered in the register kept by the Mining Cadastre.

(13) In addition, the cancellation of mining rights or [a permanent quarry operating permit] does not relieve the holder from their environmental and tax obligations.

Annotation

Drawn from DRC’s mining law (2002), this provision stipulates two clear grounds for the revocation of exploration permits: failure to pay the annual surface fees and failure to commence work within the required timeframe. Articles 287 and 288 set forth the procedure for establishing the facts that constitute failures to satisfy those obligations. Under Article 289, notice of the occurrence of grounds for revocation is given to the licence holder, who has the right to appeal the findings under other articles of the Code. Article 290 sets forth the revocation procedure that applies once the appeal period has lapsed without an appeal or the appeal has been denied. It further provides that the licenced area returns to the public domain of the State, free and clear of any rights of the former licensee.

Finally, article 291 sanctions the holder whose licence was revoked by making the holder ineligible for mineral or permanent quarry rights for five years. It also stipulates that the revocation does not liberate the licence holder from his environmental or tax obligations.

25.11 Example 2:

Article [_]

(1) Subject to subsections (2), (3) and (4), the [Regulating Authority] may cancel or suspend any prospecting/reconnaissance permission, exploration right, mining right, mining permit or retention permit if the holder thereof –

(a) is conducting any prospecting/reconnaissance, exploration or mining operation in contravention of this [Act][Code][Law];

(b) breaches any material term or condition of such right, permit or permission;

(c) is contravening the approved environmental management programme; or

(d) has submitted inaccurate, incorrect or misleading information in connection with any matter required to be submitted under this [Act][Code][Law].

(2) Before acting under subsection (1), the [Regulating Authority] must –

(a) give written notice to the holder indicating the intention to suspend or cancel the right;

(b) set out the reasons why he or she is considering suspending or cancelling the right;

(c) afford the holder a reasonable opportunity to show why the right, permit or permission should not be suspended or cancelled; and

(d) notify the mortgagor, if any, of the exploration right, mining right or mining permit concerned of his or her intention to suspend or cancel the right or permit.

(3) The [Regulating Authority] must direct the holder to take specified measures to remedy any contravention, breach or failure.

(4) If the holder does not comply with the direction given under subsection (3), the [Regulating Authority] may act under subsection (1) against the holder after having –

(a) given the holder a reasonable opportunity to make representations; and

(b) considered any such representations.

(5) The [Regulating Authority] may by written notice to the holder lift a suspension if the holder –

(a) complies with a directive contemplated in subsection (3); or

(b) furnishes compelling reasons for the lifting of the suspension.

Annotation

Drawn from South Africa’s mining law (2002), this provision provides broader grounds for the cancelation or revocation of an exploration licence (called “prospecting right”) than do the provisions of the DRC Code. However, the South African provision also provides due process safeguards in the form of notice of grounds for revocation (to the licencee and any mortgagees), an opportunity for the licencee to respond with justifications, and required instructions for curative measures. The revocation can only proceed if the cause is not cured within the allotted timeframe.