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Part D: Environment - 39. Other Natural Resources | 39.1 Land

“Land” in the mining law context typically refers to the surface of the land and includes the seabed beneath territorial waters, where applicable. While land is often addressed in a separate act, it is important for a mining law both to reference the relevant legislation and to reiterate relevant rights, procedures and protections that impact land in and around mining sites. Some considerations that should inform this section are:

  • How land rights or ownership are organized within the country whether land is privately held, communally owned, publicly owned and managed at the central government or subnational government level
  • How land is acquired for the project whether pursuant to free prior informed consent, consultation with communities or expropriation
  • Compensation of landowners or users for loss of land or disturbance of use of land
  • Relocation and resettlement issues and the human rights issues that can be triggered
  • Coexistence and/or overlapping rights between mining projects and other types of users or uses
  • Resolution of disputes regarding these issues above.
  • The distinction between surface (land) and subsurface (minerals) rights;
  • The relationship between the landowner (or lawful occupier) and the mineral right holder (including compensation)
  • Procedures for acquisition of land subject to mining
  • Relocation and resettlement issues.

39.1. Example 1:

Article [_] Restrictions of rights of entry by holder of license or permit

(1) No person shall exercise any right conferred by a mineral license or permit upon any privately owned land -

a) (a) unless the person has given at least __ days’ notice of the intention to do so to the owner or lawful occupier thereof giving in such notice details of the area in which the right is to be exercised and the date of expiry of the permit or license.

(b) until such time as the person has:

(i) entered into a written agreement with the owner or lawful occupier of such land containing terms and conditions relating to the payment of compensation contemplated in section 4), or

(ii) the owner or lawful occupier of such land has in writing waved any right to such compensation; and

(iii) has submitted a copy of such agreement or waiver to the [Regulating Authority].

Article [_] Rights under license or permit to be exercised reasonably

(1) Subject to the terms of any agreement with the owner or lawful occupier of the land, the rights conferred by a mineral license or permit shall be exercised reasonably and, except to the minimum extent necessary for the reasonable and proper conduct of the operations, shall not be exercised so as to prejudice the interest of any owner or occupier of the land over which those rights extend.

b)(2)No holder of a mineral license or permit shall create unprotected pits, hazardous waste dumps or other hazards likely to endanger the stock, crops or other lawful activity of the owner or lawful occupier of the land over which those rights extend.

(3) (3) A holder of a prospecting license shall, unless the [Regulating Authority] otherwise stipulates, within sixty days of the expiry or termination of the mineral license or permit, remove any camp, temporary buildings or machinery erected or installed and repair or otherwise make good any damage to the surface of the ground occasioned by the removal, in the manner specified by the [Regulating Authority].

Article [_] Right of owner or lawful occupier to use and access land

(1)The owner or lawful occupier of any land within the area of a mineral license or permit shall retain the right to graze stock upon or to cultivate the surface of such land insofar as such grazing or cultivation does not interfere with the proper use of such area for reconnaissance/prospecting, exploration, retention or mining purposes.

b)(2)In the case of a mining area or a retention area, the owner or lawful occupier of any land within such area shall not erect any building or structure thereon without the consent of the holder of the mining license or retention license, as the case may be, which consent shall not be unreasonably withheld; provided that where such consent is unreasonably withheld, the [Regulating Authority] may grant it.

Article [_] Compensation for disturbance of rights, etc.

(1)A holder of a mineral license or permit shall, on demand being made by the owner or lawful occupier of any land subject to the mineral right, promptly pay the owner, or occupier fair and reasonable compensation for any disturbance of the rights of the owner or occupier and for any damage done to the surface of the land by the operations and shall, on demand being made by the owner of any crops, trees, buildings or works damaged during the course of the operations, pay compensation for the damage.

b) (2)In assessing the compensation payable under subsection (a), account shall be taken of any improvement effected by the holder of the mineral right or by the holder's predecessor in title, the benefit of which has or will endure to the owner or lawful occupier thereof.

c)(3) The compensation payable for damage to the surface of any land shall be the extent to which the market value of the land (for which purpose it shall be deemed saleable) upon which the damage has occurred has been reduced by reason of such damage, but without taking into account any enhanced value due to the presence of minerals.

d)(4) No demand made in terms of this section shall entitle the owner or lawful occupier to prevent or hinder the exercise by the holder of rights under the mineral right pending the determination of compensation to be paid.

e)(5) Where a holder of a mineral right fails to pay compensation when demanded under the provisions of this section, or where the owner or lawful occupier of any land is dissatisfied with any compensation offered, the dispute shall be determined by arbitration.

f)(6)A claim for compensation under the provisions of subsection (a) shall be made within a period of [_] years from the date when such claim has accrued, failing which, notwithstanding the provisions of any other written law, such claim shall not be enforceable.

Annotation

Inspired by Botswana’s mining law (1999), these provisions give preference to the interests of the owner of the land, while still providing some protection to mineral license holders. The mineral license holder does not acquire ownership of the land. He/she has to negotiate entry to the land and agree with the landowner on compensation to be paid for disturbing the landowner’s rights.

39.1. Example 2:

Article [_]

A holder of a prospecting license shall, unless the [Regulating Authority] otherwise stipulates, remove, within sixty days of the expiry or termination of the exploration license, any camp, temporary buildings or machinery erected or installed and repair or otherwise make good any damage to the surface of the ground occasioned by the removal, in the manner specified by the [Regulating Authority];

Article [_]

A small scale mining license confers on the holder exclusive rights to carry on mining operations in the mining area for minerals other than gemstones, and to do all such other acts and things as are necessary for or reasonably incidental to the carrying on of those operations.

Article [_]

(1) Without limiting the generality of subsection (1), a holder of a small-scale mining license may—

(a) enter into or upon the mining area and take all reasonable measures on or under the surface for the purpose of the mining operations;

(b) erect the necessary equipment, plant and buildings for the purposes of mining, transporting, dressing or treating the mineral recovered in the course of the mining operations; and

(c) conduct exploration within the mining area for any mineral.

Article [_]

(1) A holder of a license or permit shall not exercise any right under this [Act][Code][Law] or the license or permit without the written consent of the owner or legal occupier thereof or the duly authorized agent—

(a) upon any land which is the site of or which is within one hundred and eighty meters of any inhabited, occupied or temporarily uninhabited house or building;

(b) within forty-five meters of any land which has been cleared or ploughed or otherwise prepared in good faith for growing of farm crops or upon which farm crops are growing;

(c) upon any land which is the site of or is within ninety meters of any cattle dip, tank, dam or any private water as defined in the [Relevant Water Legislation]; or

(d) upon any land forming part of an aerodrome, other than an aerodrome referred to in sub paragraph (iv) of paragraph (a): Provided that where any consent required under this subsection is unreasonably withheld, the [Regulating Authority] may arrange for arbitration of the matter in accordance with section one hundred and thirty-one;

Article [_]

Subject to the terms of any access agreement, the rights conferred by a license or permit shall be exercised reasonably and, except to the minimum extent necessary for the reasonable and proper conduct of the operations, shall not be exercised so as to prejudice the interest of any owner or occupier of the land over which those rights extend.

Article [_]

Subject to the terms of any access agreement, the owner or occupier of any land within the area of a license or permit shall retain the right to use and access water and to graze stock upon or to cultivate the surface of the land in so far as such use, grazing or cultivation does not interfere with the proper working in the area for mining, prospecting or other operations to be carried on under the license or permit, but shall not erect any building or structure thereon without the consent of the holder of the license or permit. Provided that where such consent is unreasonably withheld, the [Regulating Authority] may grant it.

Article [_]

(1) Subject to subsection (2), a holder of a license or permit who requires the exclusive or other use of the whole or any portion of the exploration or mining area for the purpose of the license or permit may, in accordance with the laws relating to such acquisition, acquire a lease thereof or other right to use the same upon such terms as may be agreed between such holder and the owner or occupier of the land.

(2) Except with the consents of the appropriate authorities, the holder of a license or permit shall not purchase or obtain a lease of or other rights over any land:

(a) dedicated as a place of burial;

(b) containing any ancient monument or national monument;

(c) which is the site of or is within ninety metres of any building or dam owned by the State; or forming part of a Government aerodrome;

(d) occupied as a village;

(e) reserved for the purposes of any railway track or within one hundred metres of any railway track;

(f) within the boundaries, or within sixty metres of the boundaries, of any city, municipality or township;

(g) used as a forest nursery or plantation or as a timber depot, sawmill or other installation for working a forest;

(h) declared to be a national forest or local forest;

(i) used as a street, road or highway;

(j) comprised in a National Park.

Article [_]

(1) A holder of a mineral right shall, on demand being made by the owner or lawful occupier of any land subject to the mineral right, promptly pay the owner, or occupier fair and reasonable compensation for any disturbance of the rights of the owner or occupier and for any damage done to the surface of the land by the operations and shall, on demand being made by the owner of any crops, trees, buildings or works damaged during the course of the operations, pay compensation for the damage.

(2) In assessing the compensation payable under subsection (1), account shall be taken of any improvement effected by the holder of the mineral right or by the holder's predecessor in title, the benefit of which has or will endure to the owner or lawful occupier thereof.

(3) The compensation payable for damage to the surface of any land shall be the extent to which the market value of the land (for which purpose it shall be deemed saleable) upon which the damage has occurred has been reduced by reason of such damage, but without taking into account any enhanced value due to the presence of minerals.

(4) No demand made in terms of this section shall entitle the owner or lawful occupier to prevent or hinder the exercise by the holder of rights under the mineral right pending the determination of compensation to be paid.

(5) Compensation shall not be payable under subsection (1) in respect of any indigenous wood or timber taken—

(a) upon land that has been declared a local forest or a national forest under the provisions of the [Relevant Forests Legislation]; or

(b) upon other land that has not been alienated by the [President] in accordance with the [Relevant Land Legislation].

(6) Where a holder of a mineral right fails to pay compensation when demanded under the provisions of this section, or where the owner or lawful occupier of any land is dissatisfied with any compensation offered, the dispute shall be determined by arbitration.

(7) A claim for compensation under the provisions of subsection (1) shall be made within a period of three years from the date when such claim has accrued, failing which, notwithstanding the provisions of any other written law, such claim shall not be enforceable.

Annotation

Inspired by Zambia’s mining law (2008), these provisions give preference to the interests of mineral right holders, while still providing protection to landowners.