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Part B: Mineral Rights - Part B-4: ASM Licencing - 28. Artisanal Mining | 28.14. Specific Violations and Penalties

This section focuses on violations that are specific to artisanal mining activities, and which will result in criminal penalties in the form of fines and/or imprisonment. This includes the following violations that are considered to present substantial risks in artisanal mining:

  • unlawful possession of precious minerals,
  • use of explosives, cyanide or mercury to isolate precious minerals, and
  • use of child labour.

Holders of AM licences and their agents, employees and tributers are subject as well to other generally applicable provisions on infractions in the mining law.

28.14. Example 1:

Article [_]

(1) The use of explosives and hazardous chemical substances, including cyanide and mercury, is prohibited in artisanal mining activities.

(2) Child labour is also prohibited in artisanal mining activities.

Article [_]

(1) The following shall be penalised with a fine of between [_] and [_] in [national currency] and a prison sentence of between of between [_] and [_] years, or only one of these two penalties: for anyone who uses explosives or dangerous substances in artisanal mining activities.

(2) In addition, the products, materials and means used shall be seized and their confiscation ordered.

Article [_]

The following shall be penalised with a fine of between [_] and [_] in [national currency] and a prison sentence of between [_] and [_] years, or only one of these two penalties: any recipient of an artisanal mining permit who tolerates or pretends not to be aware of the fact that minor children or schoolchildren are present on the site, or are working on the site, or any recipient who is aware of this but refrains from alerting the relevant administrative authorities, or from taking action to put an end to child labour.

Annotation

Drawn from Burkina Faso’s mining law (2015), this example includes the article on prohibitions that are specific to AM and the articles that make violations of those prohibitions subject to criminal penalties of fines or imprisonment or both.

The prohibitions apply against:

    1) the use of explosives or dangerous chemicals including cyanide and mercury in AM; and

    2) child labour in AM.

Separate articles establish the penalties for violations of each of those prohibitions. Under Burkina Faso’s mining law, the possible fines and/or prison sentences for violations of the prohibition against the use of explosives and dangerous chemicals are at least twice as large as those for violations of the prohibition against child labour.

The punishable violation of the prohibition against child labour is expansive. It includes the following acts by the holder of an AM licence:

  • toleration or feigned ignorance of the presence or work of minor children or schoolchildren; or
  • having knowledge of their presence, refraining from alerting the administrative authorities or from taking measures to put an end to it.

Thus, passive indifference by the AM licence holder to the existence of child labour in connection with the work conducted under the licence is a punishable offence. If an AM licence holder is aware of child labour in connection with his activities, he must report it to the authorities or put an end to it.

28.14. Example 2:

Article [_]

(1) Any person who is in possession of any precious mineral and who fails to prove that he is in lawful possession of such mineral commits an offence.

(2) For the purpose of subsection (1)-

(a) a labourer or tributer employed by the holder of an artisanal mining licence shall not be deemed to be in lawful possession of a precious mineral unless such mineral is in his possession within the actual workings in the mineral right area;

(b) the holder of an artisanal mining licence or its duly authorized agent as the case may be, shall not be deemed to be in lawful possession of the precious mineral unless such mineral is in its possession-

(i) within the actual workings of its mineral right area;

(ii) within its registered place of business; or

(iii) any other place used to exercise the rights vested in it in respect of such minerals by virtue of the licence.

(3) Subject to article [_](on the duties of persons who find precious minerals) and this section, no other person shall be deemed to be in lawful possession of a precious mineral unless such mineral is in possession under and in accordance with the terms of a valid mineral right or minerals licence issued under this [Act][Code][law].

(4) Any person who commits an offence under this section shall be liable on conviction to imprisonment for a term not less than three years.

(5) In addition to the penalty imposed in subsection (4) for an offence committed under this section, any precious minerals in connection with which the offence was committed shall be forfeited to the State.

Annotation

Drawn from Sierra Leone’s mining law (2008), this provision on unlawful possession of precious minerals applies to workers in AM licence areas and the holders of AM licences. The workers are in violation of the provision if they have precious minerals in their possession outside of the mine within the AM licence area. The AM licence holders and their agents are in violation if they are in possession of precious minerals unless they are at the mine within the licence area, or their registered place of business, or “any other place used to exercise the rights vested in [them] in respect of the minerals by virtue of the licence.” There would appear to be a need to supplement this exception to allow for transport of precious minerals from the mine site to the licence holder’s registered place of business, or to his storage facility or sales outlet.

The penalty for violation of the provision against unlawful possession of precious minerals is harsh: imprisonment for not less than three years.

In sum, this is an example of a violation specific to widespread AM exploitation of precious minerals, which is inherently difficult to police.