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Part B: Mineral Rights - Part B-5: Development Minerals | 34. Specific Violations and Penalties

This part deals with contraventions of the law and requirements relating to development minerals and provides corresponding penalties that seek to deter non-compliance. Depending on how the mining law is structured, the provisions of this part may form part of the main offences provisions of the law or be dealt with separately in the development minerals section. Some of the contraventions listed here also apply to dealings in minerals generally.

34. Example 2:

Notwithstanding any violations and penalties provided in any part of this law, any of the following shall constitute a violation under this part for which the stipulated penalty applies:

(a)For making a false statements knowingly or negligently pursuant to a provision of this law, a fine of [US$___] or [___ penalty/currency units];

(b)For failure to pay royalties, taxes, fees or charges imposed under this law, a fine of [US$___] or [___ penalty/currency units];

(c)For failure to comply with the minimum investment threshold requirement, a fine of [US$___] or [___ penalty/currency units] and/or suspension of licence for a specified period or until the breach has been remedied, and/or confiscation of minerals that are obtained illegally or in contravention of this law, and/or revocation of licence or rights granted under this law if a breach is not remediable or remedied within a specified period;

(d)For transfer or assignment of a right contrary to the provisions of this law, a fine of [US$___] or [___ penalty/currency units];

(e)For conduct of operations without appropriate authorisation, a fine of [US$___] or [___ penalty/currency units] and suspension of licence for specified period or until the breach has been remedied;

(f)For conduct of operations outside authorised areas or in prohibited areas, confiscation of minerals that are obtained illegally or in contravention of this law, a fine of [US$___] or [___ penalty/currency units] and/or suspension of licence for specified period or until the breach has been remedied;

(g)For failure or refusal to comply with a direction or order lawfully given under this law, a fine of [US$___] or [___ penalty/currency Units];;

(h)For obstruction of an authorised officer in the performance of the officer’s duties under this law, a fine of [US$___] or [___ penalty/currency units];

(i)For engaging in wasteful mining practices or operations that do not accord with good mining practice, a fine of [US$___] or [___ penalty/currency units];

(j)For acting with another person to commit the above breaches or contravene any provision of this law, a fine of [US$___] or [___ penalty/currency units].

Annotation

In cases where a regulatory authority is considered to have limited capacity or where one seeks to eliminate unfair use of discretion or bias in enforcing penalties, the provisions may be expressed more definitely by matching a specific penalty (or penalties) to a violation. In this way, the regulatory authority simply applies the law irrespective of the severity of the violation. A drawback of this approach is that the law tends to be rigid and may not account for less severe violations or the circumstances of each case.

34. Example 1:

Article [_] Specific violations [or breaches]

(1)Notwithstanding any violations and penalties provided in any part of this law, any of the following shall constitute a violation under this part:

(a)Making a false statement knowingly or negligently pursuant to a provision of this law;

(b)Failure to pay royalties, taxes, fees or charges imposed under this law;

(c)Failure to comply with the minimum investment threshold requirement;

(d)Transfer or assignment of a right contrary to the provisions of this law;

(e)Conduct of operations without appropriate authorisation;

(f)Conduct of operations outside authorised areas or in prohibited areas;

(g)Failure or refusal to comply with a direction or order lawfully given under this law;

(h)Obstruction of an authorised officer in the performance of the officer’s duties under this law;

(i)Engaging in wasteful mining practices or operations that do not accord with good mining practice;

(j)Acting with another person to commit the above breaches or contravene any provision of this law.

(2)Where a person commits any of the violations in [Article__], the [Regulating Authority] shall notify the person of the breach committed and impose an appropriate penalty subject to the severity of the breach:

(a)A fine not exceeding [US$______] or [___ penalty/currency units]

(b)Seizure of equipment used in commission of breach;

(c)Confiscation of minerals that are obtained illegally or in contravention of this law;

(d)Suspension of licence for specified period or until the breach has been remedied;

(e)Revocation of licence or rights granted under this law if a breach is not remediable or remedied within a specified period;

Annotation

This example attempts to provide an elaborate list of likely offences that can apply to dealings in development minerals. More or others may be added to the list depending on a country’s particular circumstances and the particular issues it wishes to prevent or discourage. It is also expressed widely to include conspirators in the commission of the breach and persons who without justification prevent an authorised officer from carrying out their duties under the law. In this example, the Regulatory Authority is authorised to determine the severity of the breach and to apply the appropriate penalty/penalties from a number of penalties provided in the law. It is important that notice is given of the breach and a reasonable time is given for the breach to be remedied before a more severe penalty like revocation is applied. This example does not provide an elaborate appeal process as this is normally provided in the mining law or is available under the general laws of a country.