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Part A: General Topics | 11. Resource Research/Non-Commercial Activities

A mining law, due to public interest or other reason, may allow an individual, a university, or a research institute to study the geological structure and mineral resources of a defined area as long as no deposits are used for financial gain. Research/non-commercial activities typically are not treated as a separate form of license, but may require authorization from the regulating body or government official who oversees the country’s mining sector. If not provided elsewhere in the national legislation, the responsibility for or the creation of a government agency or department for collection and management of geological data should be included.

It is desirable to provide in the mining law terms for non-commercial geological and related research activities by the national geological service or department, domestic and foreign universities and/or technical schools, often in collaboration with bilateral, regional or international institutions, for the purposes of increasing knowledge of and data on the country’s geology, seismology, hydrology, etc. The issues to be addressed in this regard include:

  • Establishing the authority to reserve or assign areas for such purposes;
  • The procedures for reserving areas for such purposes;
  • The terms and conditions for maintaining such reserves or assignments and for their eventual release; and
  • Whether and under what conditions non-commercial research may be conducted within areas subject to prospecting, exploration or mining licences.

11. Example 1:

Article [_]

The prospecting and reconnaissance activities as well as the discovery or retrieval of fossils, for scientific purposes, from the second-order fossiliferous beds referred to in [the relevant article] of the present [Code] [Act] [Law], shall be carried out in accordance with the relevant permit issued in accordance with the provisions of the present [Code] [Act] [Law].

Article [_]

Authorisation to remove fossils, for scientific purposes, from second-order fossiliferous beds, shall be granted, on an individual basis, to scientific organisations which may appoint natural persons as their representatives.

Article [_]

The Government may declare that certain areas are restricted and reconnaissance, prospecting and archaeology are prohibited for the reasons, and following the procedures, set out in the present chapter and may be, subject either to the availability of the relevant area, or to written agreement from the rights holder for the area. Areas may be declared temporarily restricted in the cases provided for in Articles [_] below.

Article [_]

(1) For geological studies, [the regulatory authority] may, on request from the department in charge of geological studies, issue an order declaring that the area relating to the studies is reserved, subject to the reservations provided for in [the relevant article] above.

(2) Said declaration must include: an identification square meters and cadastral markers which constitute the reserved area; details of the programme for the studies to be carried out inside the reserved area, and the period of time required for said studies.

(3) The initial period of the area reservation may not exceed eighteen (18) months, which may be extended only once, for a maximum period of six (6) months.

(4) The report on the geological studies carried out must be provided to [the regulatory authority] to be published and made available to the public, at least fifteen (15) days before the reservation of the area lapses.

Article [_]

(1) Where it has been found that the reasons for which an area was classified as reserved are no longer valid, the relevant authorities may at any time issue a decree cancelling the reservation.

(2) Areas which are released once work, studies or training have been completed shall be returned to the initial rights holders of the formerly reserved areas.

Article [_]

(1) Where second-order fossil beds containing rare species are found in various geological strata, such fossil beds may be the subject of permits for scientific studies and sampling.

(2) Once the studies have been completed, the permit holders are required to send technical reports on the work carried out to the Authority which granted the permit.

Annotation

Drawn from Madagascar’s mining codes (1999 and 2005), these provisions address non-commercial research in the following detail:

  • A special authorization for the extraction of a certain class of fossils by scientific organizations;
  • Government authority to reserve certain areas for specified purposes, including areas subject to mining licence provided that the holder gives written consent.
  • Authority of the regulating entity to reserve areas for up to 18 months (extendable for an additional 6 months) for geological studies.
  • The release of the reserved areas once the reservation is no longer justified.
Requirements for the delivery and publication of reports on the scientific studies undertaken in the reserved areas.

11. Example 2:

Article [_]

Notwithstanding the provisions of this Act, the [Regulating Authority] may, in the public interest and subject to such conditions as he may determine, authorize any person to undertake non-commercial investigations into the geological resources of [Country].

Annotation

Drawn from Botswana’s mining law (1999), this provision in contrast with Example 1 contains a general mandate for the regulating entity to authorize “any person” to conduct non-commercial geological research. As the law does not provide any further detail this provides for broad discretion on the part of the regulating entity which may lead to inconsistent use of the authority or at worst, imposition of inappropriate terms and conditions.