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Part B: Mineral Rights - Part B-6: Beneficiation - Processing, Trade & Transport - 35. Beneficiation – Processing, Trade and Transport | 35.11 Civil Violations and Penalties

Civil violations of the Act are those violations that do not involve criminal intent. A person may commit a civil violation of a requirement or obligation under the Act unintentionally. Thus, the failure to comply with reporting requirements or environmental mitigation, health and safety obligations of the licensee would constitute civil violations.

The burden of proof of the Government or the enforcement agency to show that a civil violation has been committed is not as high as the burden of proof for a criminal conviction. A civil violation may be found by an administrative body or tribunal rather than a court of law.

Civil violations of the law may be punishable (i) by a fine which may be assessed per violation or per day, week or month of continuation of a condition in violation of the Act, (iii) by an injunctive order to carry out corrective action, or (iii) by suspension or revocation of a licence. Civil violations are not punished by imprisonment; and they do not constitute part of a person’s criminal record.

In the interest of enforcement of the provisions of the Act, the relevant jurisdiction may incentivize citizens to report violations of the Act by granting them a share of the fines assessed and recovered for violations duly found by the administrative adjudicatory body.

35.11 Example:

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Any seller of development minerals who fails to comply with the requirement to either (a) furnish his purchaser with a certificate of quality or a certificate of origin of the development minerals or (b) sell the development minerals as uncertified with respect to quality or origin, will be subject to a fine in an amount not less than [_] and not more than [_] per transaction.

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Any holder of an Authorised Processing Facility, Authorised Trader/Dealer or Authorised Transporter licence who fails to record the information concerning all of his transactions in development minerals as required by section [_] above shall pay a fine of [_] per month until the holder’s recordkeeping is in compliance with the requirement.

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Any holder of an Authorised Processing Facility, Authorised Trader/Dealer or Authorised Transporter licence who fails to submit by the official deadline the annual report summarizing in the aggregate information on transactions recorded as required by Section [_] above shall be subject to a fine of [_] per day until the report is filed.

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Any holder of an Authorised Processing Facility, or Authorised Trader/Dealer licence who fails to report required pricing data as required by the terms of this Part by the statutory deadline shall be subject to a fine of [_] per [week] month until the report is filed.

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Any holder of an Authorised Processing Facility or Authorised Trader/Dealer licence who fails to comply with the applicable requirements to hire and train citizens of the jurisdiction in accordance with the regulations under this Part shall be subject to a fine of [_] per month until the licence holder is in compliance.

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Any holder of an Authorised Processing Facility licence who fails to timely submit or to implement a local procurement plan as required by Section [_] above shall be subject to a fine of [ ] per month until the required plan is submitted or implemented.

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Any holder of an Authorised Processing Facility licence who fails to comply with the requirements of Section [_] above and the implementing regulations regarding access to land shall be subject to a fine of [­_] per month until the licence holder is in compliance with such requirements.

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Any holder of an Authorised Transporter licence who hires a non-citizen of [Country] in connection with his development minerals transport business shall pay a fine of not less than [_] and not more than [_] per week of such employment.

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Any holder of an Authorised Processing Facility or Authorised Trader/Dealer licence who makes sales of development minerals or development mineral products outside of the territory within which such sales are authorised by the licence shall be subject to a fine of [_] per transaction or to the suspension of its licence for [one month] by the regulating entity that issued the licence or to both penalties.

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Any holder of an Authorised Trader/Dealer licence who fails to comply with applicable regulations on fair trade practices shall be subject to a fine of not less than [_] and not more than [_] per violation.

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Without prejudice to the provisions of any other applicable law and regulations, any holder of an Authorised Processing Facility, Authorised Trader/Dealer or Authorised Transporter licence who fails to comply with the requirements and regulations for the protection of the environment, security, safety and hygiene under this Part shall be subject to the suspension of the holder’s licence until the holder is in compliance.

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The regulating entity that delivered the licence to any holder of an Authorised Processing Facility, Authorised Trader/Dealer or Authorised Transporter licence may direct the licence holder to take any corrective action that it deems reasonably necessary in order to comply with the provisions of this Part and the regulations hereunder and within such timeframe as it reasonably deems to be appropriate. Failure of the licence holder to timely comply may result in the suspension of the licence by the regulating entity.

Article [_]

If a penalty of suspension of the licence of an Authorised Processing Facility, an Authorised Trader/Dealer or an Authorised Transporter is not lifted after [6 months/one year], or if a fine is not paid by the holder against whom it was assessed within [sixty (60) days] of notification of the fine, the regulating entity may revoke the holder’s licence.

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For any other violations of the provisions of this [Act][Code][Law] committed by an Authorised Processing Facility, an Authorised Trader/Dealer or an Authorised Transporter not provided for herein, the licence holder shall be subject to a fine not exceeding [$ ] to be paid to its licensing entity.

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(1) The penalties for civil violations of the provisions of this Part shall be ordered and levied by the regulating entity that issued the licence to the holder.

(2) Before imposing any civil penalty under the provisions of this Part, the regulating entity shall provide the licence holder with notification in writing of the nature of the violation and the potential penalty and a fair hearing at which the licence holder will have the opportunity to present a defence.

(3) All penalties ordered or levied by a regulating entity under this Part must be stated in writing with the reasons for the imposition of the penalty and delivered to the holder who is the subject of the penalty.

(4) Any penalty ordered for a civil violation of this Part will be subject to administrative appeal to the Administrative Reviewer within thirty (30) days after the notification thereof to the offending holder. The Administrative Reviewer shall issue its decision on appeal in writing stating the grounds thereof within sixty (60) days of the filing of the administrative appeal by or on behalf of the licence holder. The decision shall be recorded by the regulating entity, immediately notified to the licence holder and published.

(5) A final decision by the Reviewing Authority shall be subject to judicial review in accordance with the [Administrative/Civil Procedures Act] of [Country].

Article [_]

A person who notifies the [Regulating Authority] or the provincial/state regulating entity, as the case may be, of a suspected violation that is confirmed and results in the recovery of a fine by the [Regulating Authority] or the provincial/state regulating entity shall be entitled to receive payment of [50%] of the fine paid.

Annotation

The example articulates the penalties that apply to all of the various civil violations of the provisions of this Part that impose requirements or obligations on the holders of Authorised Processing Facility, Authorised Trader/Dealer and Authorised Transporter licences. In most cases, the penalties consist of fines that apply per transaction or per period of the continuation of the civil violation. In certain cases, the penalty consists of suspension of the licence.

The example also provides that a licence can be revoked if a suspension of a licence is not lifted or a fine is not paid within a certain timeframe.

It also provides that the regulating entity that issued the licence is authorised to impose the penalties for civil violations, provided that it does so in writing with justification after notice to the offending licence holder and a hearing. The orders of the regulating entity imposing penalties should be subject to appeal under the applicable Administrative Procedures Act of the jurisdiction, as stated in the example.

Finally, in order to incentivize enforcement by citizens, the last section of the example provides for the payment of 50% of the recovered fine to the person who notified the Regulating Authority or the regulating entity of the suspected violation that was confirmed and resulted in the collection of the fine.