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Part A: General Topics | 8. Ownership of Mineral Resources

A mining law typically states at the outset (a) whether ownership of mineral resources (i.e. the mineral estate) is separate and distinct from ownership of land (i.e. the surface estate), and (b) who owns the mineral estate. The owner of the mineral resources is the entity, person or institution that has the authority to explore for and exploit those resources, or to grant to others the rights to do so. The mining law must be consistent with the Constitution as to ownership of the mineral resources.

In most cases, the Constitution states who owns the mineral resources. Some Constitutions may make a further distinction between different types of minerals. In such cases, ownership of minerals such as platinum, gold, diamonds, copper, etc. is separate from ownership of the land and is typically vested in the State or Republic or a province of the State, on in the President or the Government in trust for or on behalf of the people. By contrast, ownership of the development minerals may or may not be separate from ownership of the land on which they are located. In the latter case, the landowner may have the right to dispose of such minerals located on or under the land. However, there are cases in which all minerals including development minerals such as clay, sand, limestone, etc., may be deemed vested in the State on behalf of the people, especially if such minerals are discovered in large quantities and are expected to be exploited on a commercial basis.

In cases where the Constitution is silent as to the ownership of the mineral resources, the mining law can establish who owns the minerals if the Constitution recognizes or contemplates that matter as within the realm of legislative authority.

In some Common Law jurisdictions, the Constitution is silent as to the ownership of mineral resources. By tradition and jurisprudence in some such jurisdictions, the landowner is the owner of all mineral resources located on, in or under the land. This is however rare and more so non-existent in Africa.

Where applicable, tribal or customary law may include rules as to the ownership of mineral resources. In such cases, an agreement or consensus with the tribal or customary authorities may need to be reached before modifying such rules in the mining law (e.g., Botswana, South Australia), in order to avoid subsequent conflict.

If the Constitutional provisions on mineral ownership are not compatible with national goals of mineral resource development, it may be necessary to amend the Constitution prior to passing a mining law which may be inconsistent with the Constitution.

Some ownership provisions further obligate the President, Government or Minister, as actors of the State, to ensure that the minerals are developed in a sustainable manner and in the public interest.

8. Example 1:

Article [_]

Ownership of minerals and acquisition of mineral rights.

(1) Subject to the provision of the mining rights in [Tribal Territories Act], all rights of ownership in minerals are vested in the [Country] and the [Regulating Authority] shall ensure, in the public interest, that the mineral resources of the [Country] are investigated and exploited in the most efficient, beneficial and timely manner.

(2) Nothing in this [Act][Code][Law] shall prevent a member of any tribe from taking, subject to such conditions and restrictions as may be prescribed, minerals from any land from which it has been the custom of members of that tribe to take minerals and to the extent that this is permissible under the customary law of that tribe.

Annotation

Drawn from Botswana’s mining act (1999), this provision vests ownership of minerals in the Republic and mandates the Minister to act in the public interest in the management of the minerals. An exception is however made for tribal mineral rights which are guaranteed under a separate enactment as well as under a provision of the mining act (section 5(2)), which recognizes the right of tribes under customary law to take minerals from their land.

8. Example 2:

Article [_]

Subject to any right conferred under any provision of this [Act][Law][Code], any right in relation to the reconnaissance or prospecting for, and the mining and sale or disposal of, and the exercise of control over, any mineral or group of minerals vests, notwithstanding any right of ownership of any person in relation to any land in, on or under which any such mineral or group of minerals is found, in the State as custodian on behalf of the people of [Country].

Annotation

Drawn from Namibia’s mining law (1992), this provisions vests ownership of all minerals in the State as custodian on behalf of the people of the country.