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Part B: Mineral Rights - Part B-4: ASM Licencing - 27. Small Scale Licencing | 27.8. Renewal of License

Renewal of licence provisions provide for the minimum and maximum duration of the licence renewal period and the number of renewals permitted. The limitations should be guided by consideration that there will be different sizes and types of mineral deposits available, and the capacity to exploit it in the time allowed.

Conditions are set under which renewal will be permitted and granted; and these may include:

  • Having met all the requirements of the licence during the preceding term such as fees, management of the environment, health, safety and mine development;
  • Submission of an updated environmental impact assessment and mitigation and rehabilitation plan;
  • Submission of an updated work program, if necessary;
  • There being enough resource to be exploited in the renewal period.

Renewal provisions typically require that an application for renewal be filed at least three months or more before the expiration of the initial term of the licence (or the prior term, where multiple renewals are allowed), so that the decision on renewal can be issued before the licence expires. The best renewal provisions provide for automatic extension of the licence until the decision on renewal is issued. Consideration should be given to even earlier deadlines for the filing of renewal applications, so that the licence holder has sufficient time to close operations, remove equipment, perform necessary site rehabilitation and vacate the site before the expiration of the licence if the renewal is denied.

27.8. Example 1:

Article [_]

Subject to the provisions of subsection (2), a minerals permit shall be valid for such period, not exceeding five years, as the [Regulating Authority] may determine and may, on application made to the [Regulating Authority], be renewed for further periods not exceeding five years at a time.

(2) An application for renewal of the minerals permit shall be submitted no later than such period of time prior to the expiration date of the minerals permit as the [Regulating Authority] shall establish by regulation.

(3) The application for renewal shall provide the information and accompanying documents required by Form [_] of the First Schedule, , which requires:

    a)Identification of the applicant and its partners/directors/members/shareholders,

    b)Description of the area applied for (including a map and coordinates),

    c)Particulars of the minerals for which the permit is sought,

    d)The period for which the permit is sought, and

    e)The proposed programs of work, including –

    (i)Details of the mineral deposit,

    (ii)estimated date by which applicant intends to work for profit,

    (iii)estimated capacity of production and scale of operations,

    (iv)nature of product,

    (v)envisaged marketing arrangements for sale of mineral product(s),

    (vi)Brief environmental impact assessment study and

    (vii)Brief environmental reclamation program.

Annotation

Drawn from Botswana’s mining law (1999), this provision enables the Regulating Authority to grant multiple renewals of a SSM licence for renewal terms of up to five years. This provides flexibility in light of the fairly short term (5 years) of the SSM license. However, in light of the definition of SSM in Botswana’s mining law, which includes limits on annual production and investment, it seems unlikely that a SSM licence holder will be able to obtain multiple renewals while retaining SSM status.

Nevertheless, the potential availability of unlimited renewals enables very small scale subsistence miners to maintain their rights for as long as they can continue to profitably produce marketable mineral products from their licensed areas while remaining within the definition of SSM. This reflects, in part, a poverty reduction strategy.

The renewal application is the same as the initial licence application, thus assuring that a renewal is justified by the nature of the deposit and the planned work program, and adjusting the related environmental protection measures accordingly.

The deadline for submitting a renewal application, if any, is set in the regulations. Unfortunately, the mining law does not contain a provision that automatically extends the validity of the SSM licence until the final administrative decision on a renewal application is issued.

27.8. Example 2:

Article [_]. Renewal of small-scale mining licence

(1) A holder of a small-scale mining licence may apply to the [Regulating Authority] at least sixty days before the expiry of the small- scale mining licence, for the renewal of the licence in the prescribed manner and form upon payment of the prescribed fee.

(2) Subject to subsection (3), the [Regulating Authority] shall, where an application for the renewal of a small-scale mining licence complies with the requirements of this [Act][Code][Law], renew the small-scale mining licence for a period not exceeding ten years, on such terms and conditions as the [Regulating Authority] may determine.

(3) The [Regulating Authority] shall reject an application for the renewal of a small-scale mining licence where-

(a) the development of the mining area has not proceeded with reasonable diligence;

(b) minerals in the workable quantities do not remain to be produced;

(c) the programme of the intended mining operations will not ensure the proper conservation and use in the national interest of the mineral resources of the mining area; or

(d) the applicant is in breach of any condition of the licence or any provision of this [Act][Code][Law].

(4) The [Regulating Authority] shall not reject an application on any ground referred to in—

(a) paragraph (a) of subsection (3), unless the [Regulating Authority] has given the applicant the details of the default and the applicant has failed to remedy the default within three months of the notification;

(b) paragraph (b) of subsection (3), unless the [Regulating Authority] has given the applicant reasonable opportunity to make written representations thereon to the [Regulating Authority] or (c) paragraph (c) of subsection (3), unless the [Regulating Authority] has notified the applicant and the applicant has failed to propose amendments to the operations within three months of the notification.

(5) The [Regulating Authority] shall, on the renewal of a small-scale mining licence, attach to the licence the approved program of mining operations to be carried out in the period of renewal.

Article [_]. Renewal of small-scale gemstone licence

(1) A holder of a small-scale gemstone licence may apply to the [Regulating Authority] at least sixty days before the expiry of the licence, for the renewal of the licence in the prescribed manner and form upon payment of the prescribed fee.

(2) Subject to subsection (3), the [Regulating Authority] shall, where an application for the renewal of a small-scale gemstone licence complies with the requirements of this [Act][Code][Law], renew the small-scale gemstone licence for a period not exceeding ten years, on such terms and conditions as the [Regulating Authority] may determine.

(3) The [Regulating Authority] shall reject an application for renewal of a small-scale gemstone licence where—

(a) the development of the mining area has not proceeded with reasonable diligence;

(b) minerals in workable quantities do not remain to be produced;

(c) the programme of the intended mining operations will not ensure the proper conservation and use in the national interest of the mineral resources of the mining area; or

(d) the applicant is in breach of any condition of the licence or any provision of this [Act][Code][Law].

(4) The [Regulating Authority] shall not reject an application on any ground referred to in—

a) paragraph (a) of subsection (3), unless the [Regulating Authority] has given the applicant the details of the default and the applicant has failed to remedy the default within three months of the notification;

(b) paragraph (b) of subsection (3), unless the [Regulating Authority] has given the applicant reasonable opportunity to make written representations thereon to the [Regulating Authority] or

(c) paragraph (c) of subsection (3), unless the [Regulating Authority] has notified the applicant and the applicant has failed to propose amendments to the operations within three months of the notification.

(5) The [Regulating Authority] shall, on the renewal of a small-scale gemstone licence, attach to the licence the program of mining operations to be carried out in the period of renewal.

Annotation

Drawn from Zambia’s mining law (2008), these provisions provide for a single renewal of a SSM or small-scale gemstone mining licence for a renewal term of up to ten years. As in the preceding example, the Regulating Authority is given the discretion to set the renewal term shorter than the maximum period established in the law. However, under Zambia’s mining law only a single renewal is contemplated, rather than multiple renewals. As in the preceding example, the renewal term is the same as the initial term of the license, but the term under Zambia’s law is twice as long as the term in Botswana.

The longer initial and renewal terms for both SSM and small scale gemstone mining (SSGM) reflect the Zambian policy orientation of creating special subsectors for SSM and SSGM reserved for Zambian citizens, in order to promote local mining entrepreneurship. (SSM and SSGM are not defined by production or investment limitations under Zambia’s mining law.)

In contrast to Botswana’s law, the Zambian mining law limits the grounds on which the Regulating Authority can reject a renewal application, and further requires the Regulating Authority to provide the licence holder with notice and an opportunity to remedy three of the four potential grounds for non-renewal. This provides some security of tenure to small scale miners. There is, however, a significant gap in this protection by omitting a requirement of notice and opportunity to remedy a “breach of any condition of the licence or any provision of” the mining law. Nonrenewal for a temporary breach of a minor condition under the act, with no opportunity to cure the breach, is a potentially harsh penalty. SSM licence holders in Zambia are vulnerable to nonrenewal on such grounds because the Regulating Authority has the discretion to deny renewal on any such breach.

Zambia maintains parallel licensing regimes for SSM and small-scale gemstone mining. The former requires the applicant for a SSM licence to possess an exploration licence (prospecting permit) for the area as a prerequisite to obtaining a SSM license. That is not required for a small-scale gemstone mining license. Small scale gemstone mining is often characterized by “rushes” of small scale miners to sites where someone else has made an initial discovery, so the lack of a prospecting permit requirement matches that reality with the objective of formalizing small scale gemstone mining activity as much as possible.

The provisions of Zambia’s mining law on the term and renewals of SSM licenses and small scale gemstone licenses are identical, however. In both cases the Regulating Authority is directed to attach the approved work program to the renewed license, such that it becomes a condition of the license.