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Part B: Mineral Rights - Part B-4: ASM Licencing - 27. Small Scale Licencing | 27.12. Surrender of License

This section provides for when a licence holder gives up the mining right voluntarily before the duration of the licence has run out. Surrender can be by way of partial or whole relinquishment. Certain conditions would need to be satisfied for this to be permitted, and include environmental requirements being met.

Not all mining laws provide for surrender of SSM licences. Under mining laws in which the maximum surface area of a SSM licence is very limited and the term of the licence is rather short, such provisions may obviate the need for a surrender provision. Surrender provisions are important primarily for exploration licences under which the licensed area is very large and the goal of the licensee is to gradually narrow and focus the exploration effort, by process of elimination, and for exploration or exploitation licences that have terms longer than that which is necessary for the completion of the exploration or mining operations. In mining laws that provide for partial or total surrender of licence areas under a SSM licence, the applicable provisions are those that apply to surrender of area under any type of mineral right.

27.12. Example 1:

Article [_]

1) Subject to this [Act][Code][Law] and any condition of his mineral right, the holder of a mineral right may surrender the area covered by his mineral right or part of it by-

(a)giving the [Regulating Authority], not less than ninety calendar days’ notice of his intention to surrender the whole or part of the area concerned; and

(b) complying with such conditions as may be prescribed or stated in the mineral right.

(2) Upon compliance with paragraphs (a) and (b) of subsection (1), the [Regulating Authority] shall issue a certificate of surrender to the holder.

(3) If the application for a certificate of surrender is in respect of part only of the area covered by the mineral right, the holder shall-

(a)in his application-

(i) provide a reliable plan in a form and substance acceptable to the [Regulating Authority], of the area to be relinquished; and

(ii) submit detailed technical reports as prescribed containing all information, results, interpretation and data relating to the surrendered area from the commencement of the mineral right;

(b) if the application is approved, demarcate the remaining area in the prescribed manner.

(4) No surrender of any area covered by a mineral right shall be effective until the [Regulating Authority] has issued a certificate of surrender in respect of that area upon payment of the prescribed fee by the holder.

(5) A surrender of an area covered by a mineral right shall be without prejudice to any liabilities or obligations incurred by the holder in relation to the area surrendered prior to the date of surrender.

(6) On the issue of a certificate of surrender the [Regulating Authority] shall-

(a)if the surrender is in relation to the whole area covered by a mineral right, cancel such right; or

(b) if the surrender is in relation to part only of the area covered by a mineral right, amend the mineral right accordingly.

If the surrender was partial then the remaining mineral right will be amended to reflect the change.

Annotation

Drawn from Sierra Leone’s mining law (2009), this provision applies to SSM licences because they are “mineral rights” under the mining law. There is no specific surrender provision for SSM licences.

The surrender section in this example includes provisions that cover the following principles:

    1)Surrender is not automatic and self-executing. It requires the issuance of a certificate of approval by the Regulating Authority, which in turn requires advance notice.

    2)Surrender cannot be used as a way to avoid compliance with any conditions of the mineral right. Neither does it enable the licence holder to avoid any liability or obligations incurred prior to the date when the surrender becomes effective due to the issuance of the certificate by the Regulating Entity.

    3)In the case of partial surrender, the license holder must submit an acceptable map of the area to be surrendered, together with technical reports of the work performed on that area, and mark off the remaining area retained, once the surrender has been approved.

27.12. Example 2:

Article [_]

(1) The holder of a small-scale or large-scale mining license or a lease may, without prejudice to the rights of persons claiming under the license, surrender any such license or lease by giving to the [Regulating Authority], unless otherwise agreed, at least 12 months advance written notice.

(2) Any person who surrenders his license or lease right, pursuant to sub-article (1) of this Article, shall not be released from the liability of performing the duties imposed upon him and due to be performed during the term of the license or lease.

Annotation

Drawn from Ethiopia’s mining law (2010), this example refers specifically to the surrender of areas under SSM licences, although the provision applies equally to large scale exploitation licences. This example differs from the preceding example in the following ways:

    1) It appears to be automatic and self-executing, when the required advance notice is given to the Regulating Authority.

    2) The required advance of 12 months is much longer than the 90 days’ notice required in the preceding example.

    3) It only provides for surrender of the licence. The provision does not contemplate a partial surrender of area under the licence.

Like the preceding example, the provision in this example does not permit the licence holder to use surrender to avoid liability for performing any obligations due to be performed during the term of the licence.