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Part B: Mineral Rights - Part B-4: ASM Licencing - 27. Small Scale Licencing | 27.9. Suspension of License

This section provides for when a licence may be suspended and the conditions under which the suspension may be lifted. Suspension remedies may be triggered when the conditions under which the licence was issued have changed or are no longer being observed. This may include such circumstances as revelation of fraudulently acquired license ownership as required by the eligibility provisions, failure to rectify operational contraventions of provisions in the law such as false record keeping, use of child labour, breach of health and safety or environmental obligations.

The conditions and procedure under which suspension may be lifted should be specified. The procedure to appeal the suspension should also be provided for.

27.9. Example 1:

Article [_]

(1) The [Regulating Authority], or any person authorised by the [Regulating Authority], may, in writing, order reconnaissance, exploration or mining operations to be temporarily suspended on an emergency basis, regardless of whether such operations are authorized by a mineral right, until such arrangements are made that are in [Regulating Authority]’s opinion necessary to prevent danger to life, property or the environment or to comply with this [Act][Code][Law].

(2) The [Regulating Authority] may cancel or vary the terms of any temporary suspension order.

(3) The [Regulating Authority] shall have the power to confirm a temporary suspension order made by the [Regulating Authority] and may not delegate this power.

(4) A temporary suspension order shall lapse after twenty one days of its issuance, unless it is confirmed, in writing, by the [Regulating Authority].

Article [_]

(1) The [Regulating Authority] after consultation with the [Advisory Board] may suspend or cancel a mineral right if the holder-

(a) fails to make any of the payments required by or under this [Act][Code][Law] on the date due;

(b) fails to meet any prescribed minimum annual programme of work or work expenditure requirement;

(c) grossly violates health and safety regulations or causes environmental harm;

(d) employs or makes use of child labourers;

(e) fails to submit reports required by this [Act][Code][Law];

(f) contravenes any of the provisions of this [Act][Code][law] or the conditions of the mineral right or the provisions of any other enactment relating to mines and minerals;

(g) dies and his heir or successor in title is not qualified under this [Act][Code][Law] to hold the mineral right, unless an application is received from the heir or successor within ninety days of the death to transfer the right to a third party who is so qualified and accepts all duties under the right;

(h) becomes an un-discharged bankrupt or becomes of unsound mind;

(i) makes any statement to the [Regulating Authority] in connection with his mineral right which he knows or ought to have known to be false;

(j) fails to substantially comply with the terms of a community development agreement when required by this [Act][Code][Law] to do so;

(k) for any reason becomes ineligible to apply for a mineral right under article [_] (on restrictions on grants of mineral rights).

(2) The [Regulating Authority] shall, before suspending or cancelling any mineral right give notice to the holder in such a manner as shall be prescribed and shall, in such a notice require the holder to remedy in not less than thirty calendar days any breach of the conditions of the mineral right.

(3) If the holder of a mineral right fails to remedy any failure or contravention specified in paragraphs (c), (d) and (k) of subsection (1), the [Regulating Authority] may, by notice to the holder thereof, suspend or cancel the mineral right forthwith.

(4) On cancellation of a mineral right under this section the rights of the holder shall cease but without prejudice to any liabilities or obligation incurred in relation thereto prior to the date of cancellation.

(5) The [Regulating Authority] shall not later than seven calendar days after cancellation of a mineral right under this section, cause the cancellation to be recorded in the mining cadastre.

Article [_]

(1) Where an authorised officer considers any mining operation under a small-scale mining licence or anything, matter or practice in or connected with any such mining operation to be so dangerous or defective as in his opinion to be likely to cause bodily injury to any person, he may give notice in writing of it to the holder of the licence.

(2) A notice issued pursuant to subsection (1) may require the danger or defect to be remedied or removed, either immediately or within such time as may be specified, and if the authorised officer considers it necessary, order the mining operations to be suspended until the danger is removed or the defect remedied to his satisfaction.

(3) The holder of a licence to whom notice has been given under subsection (1), shall comply with the notice.

(4) If the holder of a licence intends to object to any requirement or order given by the authorised officer, he shall forthwith cease the mining operations or that part of the operations affected by the notice and appeal to the [Regulating Authority] against the order.

(5) On an appeal made to the [Regulating Authority] pursuant to subsection (4), the [Regulating Authority] shall inquire into the matter and his decision thereon shall be final.

Article [_]

(1) Any mining licence -holder who is required to prepare an environmental management programme shall in each calendar year after the first year in which commercial production first occurs submit in triplicate to the [Regulating Authority] an “Environmental Management Programme Report” covering each of the items listed in paragraph (b) of subsection (1) of article [_] indicating their current status.

(2) An Environmental Management Programme Report shall be sufficiently detailed so that the [Regulating Authority] can determine whether the environmental management programme is succeeding, and if the [Regulating Authority] determines that the plan is not succeeding, the [Regulating Authority] may suspend the licence until such time as measures are taken to insure its success.

Article [_]

(1) A holder of a mineral right shall not employ or in any way use child labour.

(2) A holder of a small-scale mining licence or large-scale mining licence shall carry out a scheme of training and employment of local employees in each phase and level of operations taking into account the requirements of safety and the need to maintain acceptable standards of efficiency in the conduct of the operations.

(3) The training programme shall provide appropriate instruction and training to ensure the advancement of [Country citizen] employees in the skilled technical, supervisory, administrative and managerial categories.

(3) Failure by a holder of a mineral right to comply with the provisions of subsection (1), (2) or (3) shall be regarded as a material breach and if such person is the holder of a small-scale mining licence or large-scale mining licence , the licence may be suspended or cancelled.

Annotation

Drawn from Sierra Leone’s mining law (2009), these provisions on suspension are extensive. They contemplate both:

  • Temporary suspensions pending the remediation of dangerous or potentially harmful conditions or compliance failures; and
  • Suspensions during notice of violations which, if not remedied during the suspension period, will culminate in the cancellation of the license.

The provisions include both general provisions applicable to multiple types of mineral rights and specific provisions applicable to SSM licenses.

Temporary suspensions are issued when necessary to prevent danger to life, property or the environment, or to comply with the mining law. Such suspensions lapse after 21 days unless confirmed by the authority supervising the Regulating Authority.

Suspensions that may lead to cancellation are pronounced by the Regulating Authority for the various reasons specified. Prior to pronouncing the suspension, the Regulating Authority must give notice of the grounds for the suspension to the licence holder and afford the holder the possibility to correct the situation within 30 days. If the grounds for suspension are either (i) gross violation of health and safety requirements or causing environmental harm, (ii) child labour, or (iii) ineligibility of the licence holder, and in each case if the violation is not cured within the thirty day notice period, then the Regulating Authority may either suspend or cancel the mineral right. In the case of other violations that are not remedied, the authority may suspend the license.

The specific provisions that apply to SSM authorize an authorized officer to order the suspension of SSM operations after giving notice to the licence holder if the officer perceives “such mining operation to be so dangerous or defective as in his opinion to be likely to cause bodily injury to any person” and immediate suspension is necessary. This provision contemplates significant hand-on policing of the mining SSM subsector in light of the high risk of dangerous operations. The provision includes an appeal process for the licence holder, subject to ceasing operations pending the appeal.

An additional general provision authorizes suspension or cancellation of a SSM licence if the Regulating Authority determines that the licence holder’s required Environmental Management Program is not succeeding. Yet another general provisions establishes that a SSM licence can be suspended or cancelled for violation of the prohibition on child labour or failure to comply with requirements to train and employ local labour.

In sum, this is a good example of the use of temporary suspension to require remedy of dangerous conditions and also the use of suspension with notice and an opportunity to cure violations as an intermediate sanction prior to cancellation of a SSM license, the latter being only the last resort when a cause of suspension has not been remedied.

27.9. Example 2:

Article [_]

(1) Subject to this section, the [Regulating Authority] shall cancel a mining right or non-mining right where the holder of the mining right or non- mining right—

(a) contravenes a condition of the mining right or non-mining right;

(b) fails to comply with any requirement of this [Act][Code][Law] relating to the mining right or non-mining right;

(c) fails to comply with a direction lawfully given under this [Act][Code][law];

(d) fails to comply with a condition on which any certificate of abandonment is issued or on which any exemption or consent is given under this [Act][Code][Law];

(e) is convicted on account of safety, health or environmental matters;

(f) in the case of a large-scale mining licence or large-scale gemstone licence , the holder has failed to carry on mining operations in accordance with the proposed plan of mining operations and the gross proceeds of sale of minerals from an area subject to such licence in each of any three successive years is less than half of the deemed turnover application to that licence in each of those years; and;

(g) is convicted on giving of false information on recovery of ores and mineral products, production costs or sales.

(2) The [Regulating Authority] may, before cancelling a mining right or non-mining right, suspend the mining right or non-mining right on such terms and conditions as the [Regulating Authority] may determine.

(3) The [Regulating Authority] shall not suspend or cancel a mining right or non-mining right on grounds referred to in any of paragraphs (a) to (c) of subsection (1) unless—

(a) the [Regulating Authority], as the case may be; has first served on the holder a default notice specifying the grounds on which the mining right or non-mining right may be suspended or cancelled; and

(b) the holder has failed within a period of sixty days from the date on which the default notice was served, or such longer period as the [Regulating Authority] may allow, to remedy the default specified, or where such default is not capable of being remedied, has failed to pay such compensation therefor as the [Regulating Authority] may determine.

(4) The [Regulating Authority] shall not suspend or cancel a mining right or non-mining right on the ground referred to in paragraph (d) of subsection (1) if, within a period of sixty days from the date on which the default upon which the default notice was served, or such longer period as the [Regulating Authority] may allow the holder, in addition to paying the amount overdue, pays interest on that amount at the prescribed rate.

(5) The [Regulating Authority] may, by notice in writing to a holder of a mining right or non-mining right, cancel the mining right or non-mining right on the occurrence of an event which, as provided by section seven renders the holder ineligible to hold a mining right or non-mining right.

(6) On the cancellation of a mining right or non-mining right under this section, the rights of the holder thereunder cease, but the cancellation does not affect any liability incurred before cancellation, and any legal proceedings that might have been commenced or continued against the holder may be commenced or continued against that holder.

Article [_]

(1) The [Regulating Authority and Regulating Authority] shall, prior to exercising any power conferred upon them under this [Act][Code][Law]—

(a) to terminate, suspend or cancel a licence or permit;

(b) refer the matter to the Mining Advisory Committee for its advice.

(2) The Mining Advisory Committee, shall in considering a matter submitted to it under subsection (3), consult any person, party or other stakeholder in the area to which the mining right or non-mining right relates who may be affected by the grant, termination, suspension, cancellation or renewal of the mining or non-mining right.

(3) Where the Mining Advisory Committee advises the [Regulating Authority] pursuant to subsection (3) and the [Regulating Authority] proposes to dispose of that matter other than in accordance with the advice of the Committee, [Regulating Authority] shall before disposing of the application, furnish the Committee with a statement in writing of the [Regulating Authority’s] reasons for doing so.

Article [_]

(1) Any person aggrieved by the decision of the[Regulating Authority]—

(a) to cancel or suspend any licence or permit held by the person;

(b) may appeal to the [Regulating Authority], who shall determine the appeal, consistent with the provisions of this [Act][Code][Law] and the circumstances of the case.

(2) A determination of the [Regulating Authority]under this section may include such directions to the [Regulating Authority] as the [Regulating Authority] considers appropriate for the disposal of the matter, and the [Regulating Authority] shall give effect to the directions.

Article [_]

(1) Any person aggrieved by the decision of the [Regulating Authority] may appeal to [Judicial Reviewer], which shall determine the appeal, having regard to the provisions of this [Act][Code][Law] and the circumstances of the case.

(2) A determination of [Judicial Reviewer] under this section may include such directions to the [Regulating Authority] as the Court considers appropriate for the disposal of the matter, and the [Regulating Authority] shall give effect to the directions.

Annotation

Drawn from Zambia’s mining law (2008), these provisions apply suspension only as an intermediate penalty that is subject to prior notice to the licence holder and an opportunity to cure the deficiency or violation within sixty days. The law authorizes suspension of mineral licenses by the Regulating Authority, but only within strict limitations.

The Zambian provisions require prior consultation with the Mining Advisory Board before the Regulating Authority or the Regulating Authority orders a suspension, and further requires the authority to furnish its reasons in writing to the Advisory Board if the authority decides, after consultation with the Board, to act contrary to the Board’s recommendation. Moreover, the Zambian mining law provides for a right of appeal of a licence holder aggrieved by an order of suspension. The holder can take an administrative appeal of a decision by the Regulating Authority to the Regulating Authority and, if not satisfied, can take a judicial appeal of the decision of the latter to the High Court.

These provisions appear to be carefully designed with a view to protecting the holders of mineral rights against arbitrary and discretionary decisions of the Regulating Authority.

All of the provisions on suspension of mineral rights in the Zambian mining law are GENERAL PROVISIONS that apply to all mineral rights. There are none that are specific to SSM.