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Part B: Mineral Rights - Part B-4: ASM Licencing - 28. Artisanal Mining | 28.3. Licence Refusal Appeal Process

Provisions outlining the licence refusal appeal process should address:

  • Why a licence may be refused and the due process to be followed by the regulator. The reasons for refusal may include non-eligibility or a failure to meet a specific “requirements of the application”. The process of refusal must indicate the format in which refusal will be communicated, the dates that days that are allowed to lapse before the communication is made, informing the applicant of his right to appeal the application refusal, and
  • The process that the applicant can follow to appeal the refusal.

These provisions are often deferred to the regulations in light of the fact that the process of granting authorizations/permits for artisanal mining is often decentralized to a local level which may be subject to changes in organization of administration. In countries where artisanal mining is a major activity, the principles of the licence refusal appeal process might best be set out in the mining law. They are part of or cross referenced with the section that sets out the process of disposition of the application. Where a formal application is required, that includes where the application will be lodged, how it will be processed, the duration of the processing period, how the applicant will be informed of the regulator’s decision on the application, the option for which are: a) refusal, b) acceptance or c) requesting provision of additional information. In cases of authorization to work in designated artisanal mining zones, where no formal application is required, the processing is greatly simplified and the appeal process should also be simplified and avoid the necessity of formal writing.

28.3. Example 1:

Article [_]. Disposition of applications for artisanal mining licences

(1) The [Regulating Authority] may grant or refuse to grant an artisanal mining licence

(2) The [Regulating Authority] shall issue its decision on an application for an artisanal mining licence within [] days of the filing of an application that is complete.

(3) If an application that has been submitted is lacking in any essential information, the [Regulating Authority] shall, within [_] days of the submission of the application request the applicant to provide the missing information. The applicant must provide the requested additional information within [_] days of receipt of the request, failing which the application will be deemed withdrawn. The process will be repeated if necessary until the application is complete.

(4) A decision refusing to grant the artisanal mining licence shall be issued in writing stating the reasons for the refusal in accordance with the terms of this [Act][Code][Law]. The decision will be delivered to the applicant by the means stated in this [Act][Code][Law] within [_] days of the issuance of the decision and will inform the applicant of his or her right to appeal the decision, the authority to which any appeal is to be made, and the timeframe within which the appeal must be filed.

Article [_]. Appeals of a refusal to grant artisanal mining licence

(1) Any person aggrieved by the refusal of the [Regulating Authority] to grant that person an artisanal mining licence may appeal to [the Reviewing Authority].

(2) Any appeal under subsection (1) shall be in writing stating the reasons why the decision refusing the artisanal mining licence should be overturned, and shall be lodged with the [Reviewing Authority] within [_] days of the delivery of the decision of refusal to the applicant.

(3) The Reviewing Authority may decide the appeal on the basis of the written submission or may, within [_] days of the submission of the appeal, convoke a hearing on the appeal which shall take place within [_] days of delivery of notice to the applicant by the means stated in this [Act][Code][Law].

(4) The decision of the [Reviewing Authority] shall be issued in writing within [_] days of the date when the appeal was lodged or the date of the conclusion of the hearing, whichever is later, stating the reasons for the decision to uphold, overturn or modify the decision of refusal to grant the artisanal mining licence. The decision of the Reviewing Authority shall be final and not subject to further appeal.

Annotation

Drawn from Sierra Leone’s mining law (2009), this provision provides for the licence to be obtained at the level of the Regulating Authority, whilst the appeal is handled at the Ministerial level, both of which are within the same administrative structure.

This detailed appeal provision is designed for the more formal artisanal mining licence application procedure that is administered by the Regulating Authority, as opposed to a less formal authorization/permitting regime administered at the local level. Thus, decisions and appeals in writing are required, and strict timeframes for the processing of the application, the issuance and delivery of decisions and the lodging of appeals must be observed.

The procedure assumes that the application requirements are such that additional information may be required before the Regulating Authority considers the application to be complete; so provision is made for that contingency.

The example also assumes that a general provision elsewhere in the mining law specifies the means by which decisions are to be delivered to the applicant for a licence which could be either by regular mail, by electronic mail, by posting in a public information room, or by some other means that is appropriate to the context.

In this example, the possibility but not the necessity of a hearing on appeal is provided for. It is assumed that most appeals can be disposed of based on the written submission alone; but a hearing could be necessity if clarification is needed or if necessary to establish the identity and nationality of the applicant.

The decision of the Reviewing Authority on appeal is final in this example because it is unlikely that the applicant has the means to challenge the decision in court, and the applicant has not lost any investment due to the decision. If the refusal and denial on appeal are the result of corruption or misconduct on the part of the Regulating Authority and/or the Administrative Reviewer, those grounds for a judicial challenge should be available under another statute or under a general appeal provision in the mining law.

28.3. Example 2:

Article [_]

(1) Any decision by [the local permitting authority] refusing to grant an artisanal mining authorization/permit shall be issued in writing stating the reasons for the refusal in accordance with the terms of this [Act][Code][Law]. The decision will be delivered to the applicant by the means required for the delivery of administrative acts by such [local permitting authority] as stated in the applicable law and regulations. Such delivery shall be made within [_] days of the issuance of the decision and will inform the applicant of his or her right to appeal the decision, the authority to which any appeal is to be made, and the timeframe within which the appeal must be filed

(2) Any person aggrieved by the refusal of the [local permitting authority] to grant that person an artisanal mining authorization/permit may appeal to [the appeal board of the Regional Mining Commission, a consultative body composed of representatives of Government, the mining industry, local communities and civil society].

(3) A request for appeal under this Section shall be made to the appeal board of the Regional Mining Commission] within [_] days of the delivery of the decision of refusal to the applicant. The request need not be in writing.

(3) The appeal board of the Regional Mining Commission shall, within [_] days of the request for appeal, convoke a hearing on the appeal which shall take place within [_] days of delivery of notice to the applicant by the means required for the delivery of acts of the local permitting authority.

(4) The decision of the appeal board of the Regional Mining Commission shall be issued in writing within [_] days of the date of the conclusion of the hearing, stating the reasons for the decision to uphold, overturn or modify the decision of refusal to grant the artisanal mining authorization/permit. The decision of the appeal board shall be final and not subject to further appeal. It shall be implemented by [the local permitting authority] within [_] days.


Annotation

The above example provides for appeals of decisions of the Regulating Authority responsible for mines. This example provides for decentralisation of the appeal process, i.e. a local authority that reviews decisions of the local permitting authority. The reviewing authority should be independent of the permitting authority. In this case, the existence of a Regional Mining Commission composed of representatives of Government, industry, local communities and civil society is assumed, and that said commission has an appeal board. This provides artisanal miners with the assurance that they can appeal to an entity that is representative of various stakeholders concerned with mining and that is independent of the local permitting authority. It also provides a check on the power of the local permitting entity.

The example provides timeframes for decisions and actions; and it requires decisions of the local permitting authority and the appeal board to be in writing. It does not assume, however, that any application in writing was required for the artisanal mining authorization or permit; nor does the filing of a written appeal. This approach is designed for the case of simplified authorization or permitting of artisanal miners to work in designated artisanal mining zones.