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Part A: General Topics | 18. License Acquisition Procedures and Timelines

By setting forth in the mining law the procedures by which mining rights are acquired, the legislature establishes a basis for holding the issuing authority accountable for the process of issuing mining rights. This avoids the use of unchecked discretion and the related opportunities for corruption in the issuance of mineral rights.

The inclusion of timelines for compliance with license acquisition procedures is similarly important in holding the administrative authority accountable and in ensuring that efficient processing procedures are adopted in order to comply with the timelines. While the examples below indicate a “first come first served” rule, a “tender system” rule is equally valid for license issuance. See Part B for a more detailed discussion on mineral licensing regime.

18. Example 1:

Article [_]

In general, mining licences shall be granted according to a principle of "1st come, 1st served".

Article [_]

(1) Prospecting and operating licences shall be granted by [the regulatory authority], which may delegate these powers.

(2) Small-scale mining licences shall be granted by the relevant authority for the Province concerned, which may delegate this power.

Article [_]

(1) All applications for mining licences are to be made using the prescribed form available from the Ministry of Mines, a template of which shall be set out in the decree implementing the present [Code][Act][Law].

(2) After correctly completing the form, the applicant is to file their application at the relevant office, and retain the acknowledgement of receipt which indicates the date and time, to the hour and minute, that the application was filed, and is evidence of filing.

Article [_]

(1) Prospecting licences relating to a defined area shall be granted by a decision either of [the regulatory authority] or its representative, within no more than thirty (30) working days, to the first eligible person who filed an application which meets the conditions specified in [the relevant article] above.

(2) In cases where the applicant is applying pursuant to an exclusive permit to reserve an area, they are to attach said permit, duly endorsed by the authorities for the Provinces concerned, to their application.

Article [_]

(1) An operating licence for a defined area shall be granted, by a decision of [the regulatory authority] or its representative, to the holder of a prospecting licence or a small-scale mining licence for said area, as the case may be, who filed an application which meets the conditions provided for in [the relevant article] above during the period in which their licence was valid.

(2) All operating licence applications are to be filed together with an environmental impact assessment drawn up in accordance with the environmental protection regulations which are in force, and said report is to be sent by the Ministry of Mines to the department responsible for the mining environment, for assessment and approval from the relevant Authority.

(3) Operating licences shall be issued within no more than thirty (30) working days.

Article [_]

(1) A small-scale mining licence for a defined area shall be granted, by a decision of the relevant Authority for the Province concerned, or its representative, to the first eligible person who filed an application which meets the conditions provided for in [the relevant article] above.

(2) Where the applicant is applying pursuant to an exclusive permit to reserve an area, they are to attach said permit, duly endorsed by the relevant authorities concerned, to their application.

(3) All applications are to be filed together with an environmental impact assessment drawn up in accordance with the environmental protection regulations which are in force, and said plan is to be sent by the Ministry of Mines to the department responsible for the Mining Environment, and approved by the relevant Authority.

(4) Small-scale mining licences shall be issued within no more than thirty (30) working days.

Article [_]

The Ministry of Mines shall assess all mining licence application files and, within twenty (20) days, shall send the ones which meet the required conditions for granting the requested licence to [the regulatory authority] or the relevant Authority for the Province concerned.

Article [_]

The initial mining right shall be issued by the Ministry of Mines once the holder has paid the annual mining administration fees per square metre relating to the first year.

Annotation

Drawn from Madagascar’s mining law (1999), this example provides clarity as to the procedures and timeline for the issuance of mineral rights by establishing:

  • The general rule for issuance of mining rights: “first come, first served”;
  • The authority who issues each type of mining right;
  • The availability of application forms from the Office of the Mining Cadastre;
  • Where the completed application is to be filed (the Office of the Mining Cadastre);
  • The timeline for processing and decisions by the issuing authority;
  • The criteria for the decision to issue each type of mining right; and
  • The requirement to pay the first year’s administrative fees for the mining right area as a condition for delivery of the mining right.

18. Example 2:

Article [_]

(1) Any person who wishes to apply to the [Regulating Authority] for a prospecting right must lodge the application –

(a) at the office of the [Regulating Authority] in whose region the land is situated; (b) in the prescribed manner; and

(c) together with the prescribed non-refundable application fee.

(2) The [Regulating Authority] must accept an application for a prospecting right if

(a) the requirements contemplated in subsection (1) are met; and

(b) no other person holds a prospecting right, mining right, mining permit or retention permit for the same mineral and land.

(3) If the application does not comply with the requirements of this section, the [Regulating Authority] must notify the applicant in writing of that fact within [14] days of receipt of the application and return to the application to the applicant.

(4) If the [Regulating Authority] accepts the application, the [Regulating Authority] must, within 14 days from the date of acceptance, notify the applicant in writing –

(a) to submit an environmental management plan; and

(b) to notify in writing and consult with the land owner or lawful occupier and any other affected party and submit the result of the consultation within 30 days from the date of the notice.

(5) Upon receipt of the information referred to in subsection (4)(a) and (b), the [Regulating Authority] must begin consideration of the application.

(6) The [Regulating Authority] may by notice in the [Gazette] invite applications for prospecting rights in respect of any land, and may specify in such notice the period within which any application may be lodged and the terms and conditions subject to which such rights may be granted.

(7) Subject to subsection (4), the [Regulating Authority] must grant a prospecting right if –

(a) the applicant has access to financial resources and has the technical ability to conduct the proposed prospecting operation optimally in accordance with the prospecting work programme;

(b) the estimated expenditure is compatible with the proposed prospecting operation and duration of the prospecting work programme;

(c) the prospecting will not result in unacceptable pollution, ecological degradation or damage to the environment;

(d) the applicant has the ability to comply with the relevant provisions of the [Relevant Health Legislation]; and

(e) the applicant is not in contravention of any relevant provision of this [Act][Code][Law].

(8) The [Regulating Authority] must refuse to grant a prospecting right if –

(a) the application does not meet all the requirements referred to in subsection (1);

(b) the granting of such right will –

(i) result in an exclusionary act;

(ii) prevent fair competition; or

(ii) result in the concentration of the mineral resources in question under the control of the applicant.

(9) If the [Regulating Authority] refuses to grant a prospecting right, the [Regulating Authority] must, within 30 days of the decision, in writing notify the applicant of the decision with reasons.

(10) The granting of a prospecting right in terms of subsection (1) becomes effective on the date on which the environmental management programme is approved in terms of [relevant section].

Annotation

Drawn from South Africa’s mining law (2002), this provision clearly sets forth guidelines for prospecting rights:

  • The Authority with whom an application must be lodged;
  • The criteria for acceptance of the application;
  • The obligation of the Regional Manager to accept the application if it complies with the criteria;
  • The timeframe within which the Regional Manager is required to notify the applicant of the acceptance or rejection of the application;
  • The subsequent steps required of the applicant in order to complete the application process;
  • The obligation of the Regional Manager to forward the completed application to the [regulating entity];
  • The criteria based on which the [regulating entity] must accept or refuse an application; and
  • The timeframe within which the [regulating entity] must notify the applicant of the basis for her decision to refuse the application, if applicable.

Similar provisions apply to the acquisition of reconnaissance licenses and mining leases under other sections of the law.

These provisions allow the exercise of greater discretion by the granting authority than do those of Madagascar, but nevertheless provide a basis for holding the processing and issuing authorities accountable for the issuance or refusal of mineral rights in accordance with the law.