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Part B: Mineral Rights - Part B-4: ASM Licencing - 28. Artisanal Mining | 28.13. Transfer/Assignment of Rights

Transfer or assignment of rights provisions provide for whether a licence holder may hand over, sell, rent (either in part or in whole), encumber or place a lien on the licence for the benefit of another person or entity. The transfer should be aligned to the eligibility provisions of artisanal mining licenses.

Most mining laws provide that AM licences are not transferable or assignable in pledge; and they do not constitute real property rights that can be mortgaged (e.g., Burkina Faso, Côte d’Ivoire, DRC, Madagascar, Sierra Leone, Zambia). Since they are reserved for nationals of the host country and local companies wholly-owned by nationals, one concern is not to permit such licences to fall into the hands of non-nationals as a result of transfers, assignments or pledges. Another consideration is to avoid speculation in AM licences for purposes of trading them. Most governments are of the view that the limited size of the deposits, the short term and small licence area make AM licences unfit for transfer generally. However, in the context of the African Mining Vision objective of strengthening opportunities for national entrepreneurs to graduate from AM to SSM and eventually to medium or large scale exploitation, consideration should be given to creating an appropriate legal framework for such evolution, including opportunities to transform an AM licence into a SSM licence or to transfer an AM licence to a third party who is capable of transforming the licence and the mine to a SSM operation.

28.13. Example 1:

Article [_]

(1) Any license, other than a reconnaissance or retention licenses, may be transferred with the prior consent of the [Regulating Authority]

(2) No license may be transferred to:

(a) Any person who is un-rehabilitated insolvent, or is under a scheme of arrangement with creditors;

(b) a business organization which is in liquidation, other than a liquidation which forms a part of a scheme for the reconstruction of the business organization or for its amalgamation with another business organization;

(c) a non-citizen of [Country] or a group of people who are not registered as a cooperative society in accordance with the relevant law where it is for an artisanal mining license.

(3) Any transfer of license shall have no effect unless registered by the [Regulating Authority].

Annotation

Drawn from Ethiopia’s mining law (2010), this provision allows transfers of AM licences subject to the prior consent of the Regulating Authority. AM licenses can only be transferred to individual citizens of the host country, or groups of such individuals organized as a cooperative.

This example is unusual. Most mining laws provide that AM licenses are not transferable. AM licenses in Ethiopia are for a relatively long term – up to three years, renewable twice for three-year periods – and are not subject to any maximum size of the licence area specified in the law. Since AM licences in Ethiopia may be for larger areas and longer terms than under most mining laws, there may be more interest in transferability so that an artisanal miner who discovers a deposit larger or more complex than what can be mined manually can transfer his licence to a SSM miner who can transform the AM licence into a SSM licence and take the project to the next level..

28.13. Example 2:

Article [_]

(1) Artisanal mining permits may not be assigned.

(2) They may be subleased with authorisation from [the Regulatory Authority].

Annotation

Drawn from Burkina Faso’s mining law (2015), this provision states, in typical fashion, that an AM licence is not transferrable. However, it goes on to say that the AM licence may be rented or sublet to a third party upon authorization by the Regulating Authority. This provides greater flexibility to the licence holder than what is found in most mining laws that simply do not permit transfers of AM licences.