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Part A: General Topics | 10. Prohibited Areas

Prohibited Areas or Protected Zones refers to provisions that prohibit exploration and/or mining activities in certain areas or outline special procedures that apply to certain areas. Often, these provisions safeguard environmentally, culturally or historically significant sites, particular buildings, burial sites, coastal areas, flora, fauna, or other nature reserves. The mining law should either specify those areas or state how such areas are determined and notified to interested parties. For example, some mining laws specify that mineral development activities are prohibited within a certain distance from buildings, cemeteries, railroad tracks, airports, roads, power stations, military facilities or restricted zones, national parks or natural reserves, and certain other sites. Some mining laws provide for such prohibited areas to be specified by an executive or regulatory authority. Since prohibited areas may be designated in the future, the question of whether and how existing operations in areas so designated will be grandfathered or compensated should be addressed in the law.

This could be included as a separate provision of the mining law and titled “decision to open an area for mining activities” or “designation of mining areas”. The provisions under this title should require that a decision to open an area up for mining related activity should be preceded by an analysis conducted by the government of the social, environmental, and economic costs and benefits of mining projects. These assessments are typically known as Strategic Impact Assessments and provide for public consultation to ensure that potentially affected communities are involved in the process for determining mining areas.

It is important that provisions also clearly address whether the prohibition extends to reference exploration as well as mining activities in the designated area. Lastly, to prevent potential disputes, provisions should also highlight where prohibitions exist under other laws that specify prohibited areas, if they exist and ensure consistency with such laws. relevant legislation.

10. Example 1:

Article [_]

(1) (Subject to possible special circumstances) no prospecting or mining work may, be conducted within 80m of:

(a) walled properties, or properties enclosed in a similar manner or by any demarcation which is in common use in the region concerned, any village, collection of dwellings, water sources, religious buildings, burial sites and places considered sacred or forbidden, without the prior written consent from the owner or the authorities for the Provinces concerned, as the case may be;

(b) on either side of transportation routes, watercourses, and generally around any work sites which are beneficial to the public at large including archaeological sites, cultural sites, listed cultural and tourist sites and works of art, without authorisation from the [regulatory authority] after the relevant authorities have given their approval.

Article [_]

(1) Additional protected areas may be declared, by order of [the regulatory authority], to protect buildings and towns, water sources, transportation routes, works of art and work sites which are beneficial to the public at large, at any point where it may be deemed necessary in the general interest, at the request of interested parties and after an investigation has been carried out. Within these areas, prospecting and mining may be subject to certain conditions.

(2) Mining licence holders who can prove loss with regard to their prospecting or operating rights being reduced due to an additional protection area being declared, have the right to compensation, and the value of said compensation shall be the fair value of the rights which were lost. The onus of proving the loss and the value of such loss lies with the holder. Compensation shall be payable by the [the regulatory authority], within six (6) months of a decision in favour of the holder.

Article [_]

In the event that the regulations do not adequately provide for protected areas or sensitive areas, the demarcation of additional safety areas to be added shall be set by sectoral regulations on environmental protection, in accordance with the opinion of [the regulatory authority].

Annotation

Drawn from Madagascar’s mining law (1999), this provision contains specific rules designating prohibited areas that require the consent of specified authorities before mineral exploration or exploitation activities may take place there. The Code also authorizes the regulating entity responsible for mines to designate additional protected areas, after an investigation, where minerals exploration and mining may be subjected to certain conditions. Article 106 provides for the indemnification of miners whose rights are impaired by such designations.

Finally, the Code assumes that the environmental legislation makes certain protected areas off limits to mining; and authorizes the creation of buffer zones around such areas in environmental regulations for the mining sector, subject to prior advice of the regulating entity.

10. Example 2:

Article [_] Restrictions on exercise of rights by holders of mineral licences

(1) The holder of a mineral licence shall not exercise any rights conferred upon such holder by this [Act][Code][Law] or under any terms and conditions of such mineral licence:

(a) in, on or under any private land until such time as such holder-

(i) has entered into an agreement in writing with the owner of such land containing terms and conditions relating to the payment of compensation, or the owner of such land has in writing waived any right to such compensation and has submitted a copy of such agreement or waiver to the [Regulating Authority]; or

(ii) has been granted an ancillary right as provided in [relevant section] to exercise such rights on such land;

(b) in, on or under any-

(i) town or village;

(ii) land comprising a proclaimed road, including such parts adjoining such road as may in terms of any law governing such road be regarded as the road reserve, aerodrome, harbour, railway or cemetery; or

(iii) land used or reserved for any governmental or public purpose, and otherwise in conflict with any law, if any, in terms of which such town, village, road, aerodrome, harbour, railway, cemetery or land has been established, erected, constructed or is otherwise regulated, without the prior permission of the [Regulating Authority] granted, upon an application to the [Regulating Authority] in such form as may be determined in writing by the [Regulating Authority], by notice in writing and subject to such conditions as may be specified in such notice;

(c) in, on or under any land in respect of which no person other than the holder of a reconnaissance licence is, by virtue of a notice issued in terms of [relevant section] entitled to carry on any prospecting operations or mining operations;

(d) in, on or under any private or State land-

(i) used as a garden, orchard, vineyard, nursery, plantation or which is otherwise under cultivation;

(ii) within a horizontal distance of [100] meters of any spring, well, borehole, reservoir, dam, dipping-tank, waterworks, perennial stream or pan, artificially constructed watercourse, kraal, building or any structure of whatever nature;

(iii) within a horizontal distance of 300 meters from any point on the nearest boundary of any land, as defined in [Relevant Related Legislation] if such land has been surveyed for the purpose of inclusion in a township as defined in that section; or

(iv) on which accessory works were erected or constructed under this Act and which existed at the time of the issue of the mineral licence in question, without the prior permission in writing of the owner of such land, and, in the case of land referred to in subparagraph (iv), of the holder of a mineral licence who has erected or constructed such accessory works on which it is proposed to exercise such right;

(e) in, on or under any land subject to a production licence, as defined in [relevant section] of the [Petroleum Legislation], which existed at the time of the issue of the licence in question, without the prior permission in writing of the holder of the production licence concerned; and

(f) which in any way will interfere with fishing or marine navigation, without prior permission of the [Regulating Authority] granted, upon an application to the [Regulating Authority] in such form as may be determined in writing by the [Regulating Authority], by notice in writing and subject to such conditions as may be specified in such notice.

Annotation

Drawn from Namibia’s mining law (1992), this language is protective of the typical public places such as roads, railways, ports, aerodromes, cemeteries, townships, water bodies, etc. It does not specifically refer to national parks or nature reserves as off limits to mining, but it includes, less typically, land which is being cultivated or used as a garden, orchard, vineyard, nursery or plantation and land under a petroleum exploration or production. Rights are also restricted on private lands unless the landowner agrees in writing that compensation and other terms have been satisfied or waived. In contrast, other mining laws authorize entry onto private lands but subject to negotiation and payment of compensation to the landowner.