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Part B: Mineral Rights - Part B-4: ASM Licencing - 28. Artisanal Mining | 28.5. Specific Obligations of a Licence Holder

The nature and extent of the obligations of AM license holders vary considerably, depending on a country’s type of AM licensing. In countries that authorize or permit AM only in designated zones under a locally administered permitting regime, the obligations of the holders of AM authorizations or permits tend to be quite limited to observance of rules regarding protection of the environment including site rehabilitation, security, health and safety. They may be required to contribute to a common fund to be used for site rehabilitation. Alternatively, a portion of the royalties paid in respect of the minerals that they extract and sell may be allocated for that purpose. In this context, the AM authorization holders are generally poor and illiterate individuals working in remote areas.

In some cases, holders of AM authorizations in a region may operate within the licence area of the holder of a large scale exploitation licence who consents to that. In such case the LSE licence holder is responsible to the State for the environmental consequences of the allowed AM activity and the obligations of the holders of the AM authorizations vis à vis the LSE licence holder are the subject of an agreement negotiated between the parties.

In countries that grant AM licences over specific licence areas under a more sophisticated application procedure administered by the Regulating Entity, the obligations of AM licence holders tend to more closely resemble those of SSM licence holders. In such cases, specific obligations of a licence holder often cross reference other laws such as Land and Environment, and may include:

  • management of the environmental impacts and site rehabilitation,
  • health and safety practices,
  • employment conditions,
  • social obligations,
  • prescribed land access procedures which may include compensation of rightful owners or occupiers of land for disturbance of their rights,
  • traceability of origin of the minerals,
  • observing the rights of other land users and mining right holders, and
  • human rights issues including prohibitions on child labour, forced labour, gender discrimination and money laundering.

In addition, the mineral production of artisanal miners is subject to an obligation to pay royalties and may be subject to an obligation to make local tribute payments. That payment obligation may be an obligation of the AM licensee or of the trader who purchases the AM production for resale. AM licensees are generally subject to other tax obligations as well. This section deals only with non-fiscal obligations, however.

28.5. Example 1:

Article [_]

(1) The holder of an artisanal mining licence shall–

(a)within the limits of its competence and resources, carry on in good faith, in the licensed area, exploration or mining operations;

(b)furnish the [Regulating Authority] with such information relating to its exploration or mining operations as the [Regulating Authority] may reasonably require or as may be prescribed;

(c)carry out promptly any directives relating to its exploration or mining operations which may be given to the holder by the [Regulating Authority] for the purposes of ensuring safety or good mining practices;

(d)if not personally supervising the exploration or mining operations under the licence , employ a Mines Manager for the purpose of supervising its exploration or mining operations provided that all such Mines Managers must be approved by the [Regulating Authority] and shall carry with them such means of identification as the [Regulating Authority] may direct;

(e)employ in the area in respect of which the licence is issued not more than fifty labourers or tributers per artisanal mining licence ;

(f)sell the minerals obtained in the artisanal mining licence area as prescribed;

(g)carry out rehabilitation and reclamation of mined out areas;

(h)keep accurate records of winnings from the artisanal mining licence area and such records shall be produced for inspection on demand by the [Regulating Authority] or a duly authorized officer; and

(i) submit such reports are may be prescribed.

Annotation

Drawn from Sierra Leone’s mining law (2009) this example pertains to an AM licensing regime administered by the Regulating Authority, as opposed to an authorization regime delegated to local authorities. The obligations of AM licence holders under this example are rather comprehensive and resemble those of SSM license holders. However, the section is drafted with some sensitivity to the limitations of even the relatively sophisticated AM license holder to which this section applies. Operations are to be carried on in good faith within the limits of the competence and resources of the licence holder, rather than based on state of the art or best practice standards.

The example contemplates that the AM licence holder may not personally supervise the mining operations. This reflects the phenomenon that AM facilitators tend to be urban merchants with capital available to hire, equip and pay workers to carry out the AM work within their licensed area. In such cases, an on-site Mines Manager with appropriate identification is required. A limit of 50 laborers or “tributers” at the mine site is imposed; and the licence holder is required to promptly carry out any directives of the Regulating Authority to ensure safety or good mining practices.

With respect to record-keeping and reporting, the obligations in the example are comprehensive but not inflexible:

  • Licence holders are to furnish “such information relating to its exploration or mining operations as the [Regulating Authority] may reasonably require or as may be prescribed”.
  • They must keep accurate records of their production and making those records available for inspection on demand by an authorized officer.
  • And they must furnish such reports as are prescribed.

These obligations may be reasonable and necessary from AM licence holders who are sophisticated business people; but they far exceed the capability of the often illiterate workers who work as itinerant artisanal miners to alleviate their poverty.

28.5. Example 2:

Article [_]

The Decentralised Territorial Administrative Division which issues artisanal miner's permits shall ensure that the artisanal miners concerned abide by the measures for health, safety and environmental protection which shall be defined in the regulations.

Article [_]

An Extension Office shall be responsible for providing technical assistance and training to artisanal miners and Decentralised Territorial Administrative Divisions, as regards artisanal mining and prospecting for precious and semi-precious materials, health and safety measures for mines, environmental protection, as well as on procedures to be followed in order to obtain artisanal mining permits.

Article [_]

The Extension Office shall be authorised to carry out any operation which is for the purpose of collecting the required information to control artisanal mining activities.

Article [_]

Holders of artisanal mining permits are to carry out their work in compliance with the specific environmental obligations specified in the regulations.

Article [_]

All artisanal mining permit holders shall pay the Decentralised Territorial Administrative Division which issued the permit an environmental contribution which shall be included in the granting fee, and shall undertake to carry out environmental rehabilitation and prevention work at the gold panning sites in accordance with the programmes established by the Decentralised Territorial Administrative Division.

Annotation

Drawn from Madagascar’s mining law (2005) this example is geared toward a decentralized system of AM regulation where local authorities grant AM authorizations and the AM authorization holders work in designated zones.

In this context, the local territorial administration that delivers the AM authorizations is responsible for ensuring that the miners to whom it has granted authorizations respect the rules on security, hygiene and environmental protection that are set for them in regulations.

In this context, the local territorial administration that delivers the AM authorizations is responsible for ensuring that the miners to whom it has granted authorizations respect the rules on security, hygiene and environmental protection that are set for them in regulations.

The national Extension Agency is given the responsibility for providing technical assistance and training to artisanal miners and local authorities with respect to exploration and exploitation of precious and semi-precious substances; mine security and hygiene; protection of the environment; and the procedures for the issuance of AM authorizations. The Extension Agency is also authorized to collect whatever information is necessary to increase understanding of artisanal mining.

The holders of AM authorizations have the explicit obligation to conduct their activities in accordance with specific environmental protection measures set for them in regulations. The fee that they must pay in order to obtain their AM authorization includes a contribution to an environmental clean-up fund; and they must agree to take prevention measures against environmental damage and carry out site rehabilitation in accordance with programs established by the local territorial administration.

These provisions offer an example of a pragmatic approach to improving the practices of widespread and sometimes chaotic AM activity in an environment of extreme poverty and isolation.