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Part D: Environment - 39. Other Natural Resources | 39.3 Water

Water is seldom defined in mining laws. From the context it can be deduced that water refers to any water body including rivers, streams, dams, underground reservoirs or watercourses, and the sea, where applicable. Water use for mining purposes is often dealt with in separate legislation and is not exclusively contained in mining codes. While addressing relevant rights, procedures and licensing (where applicable), the mining law should also reference the applicable related legislation. For this topic, it is advisable to balance the water needs of the surrounding community with the needs of the mining project in accordance and establish priority of use.

Some other key issues include:

  • depletion and/or diversion of water sources (including periodic monitoring of water efficiency in mining operations and ecosystem management)
  • periodic review of allocation of water during the life of the mining project
  • monitoring of and liability for pollution of water sources (including regular testing of water quality)
  • the necessary permits for required use
  • water rights that attach to the mining license
  • any additional permitting required as well as the identification of relevant authorities .

39.3. Example 1:

Article [_] Rights in waters and wetlands

Except as otherwise provided in this [Act][Code][Law], all rights in wetlands and in the waters of any spring, stream, river, watercourse, pond or lake on or under public land, are vested in the [Government]; and no such wetlands or water shall be obstructed, dammed, diverted, polluted or otherwise interfered with, directly or indirectly, except in accordance with the provisions of the [Relevant Water Act].

Article [_] Grant of water rights

(1) Every application for a mineral right shall indicate whether the applicant intends-

(a) To utilize for reconnaissance/prospecting, exploration and mining operations any water existing within the boundaries of his or her mineral rights;

(b) To utilize any natural source of water existing at the site to which mining products are conveyed for washing;

(c) To obtain and convey to the area of his or her mineral right from any natural water supply outside the boundaries of the mineral right, such specified volume of water as may be required for the relevant operations;

(d) To occupy any land that may be required for the construction of a dam, reservoir or pumping station and for the conveyance of such water to the area where the water is utilized, by means of pipes, duets, flumes, furrows or otherwise, and for such conveyance to have a right of passageway;

(e) To construct any works necessary for the collection, storage or conveyance of such water.

(2) The [Relevant Water Act] shall apply in relation to and for the purpose of acquiring the right to use water in any manner or for any purpose or object specified in subsection (1) of this section.

Article [_] Liability for pollution of water sources or other damages or losses caused

(1) When in the course of any reconnaissance/prospecting operations, exploration operations or mining operations, any mineral or group of minerals is spilled in the sea or in any water on or under the surface of any land or the sea or water is otherwise polluted or any plant or animal life, whether in the sea, other water in, on or under land, is endangered or destroyed or any damage or loss is caused to any person, including the State, by such spilling or pollution, the holder of such license or mining claim shall forthwith –

(a) Report such spilling, pollution, loss or damage to the [Regulating Authority];

(b) Take at his or her own costs all such steps as may be necessary in accordance with good reconnaissance practices, good exploration practices or good mining practices or otherwise as may be necessary to remedy such spilling, pollution, loss or damage.

(2) If the holder of a license or mining claim referred to in subsection a fails to comply with the provisions of paragraph a. within such period as the [Regulating Authority] may deem in the circumstances to be reasonable, the [Regulating Authority] may direct by written notice addressed and delivered to such holder to take within such period as may be specified in such notice such steps as may be so specified in order to remedy the spilling, pollution or damage or loss; and the [Regulating Authority] may, if such holder fails to comply with such directions to the satisfaction of the [Regulating Authority] within the period specified in such notice or such further period as the [Regulating Authority] may on good cause shown allow in writing, cause such steps to be taken as may be necessary to remedy such spilling, pollution or damage or loss and recover in a competent court the costs incurred thereby from such holder.

Annotation

Inspired by Uganda’s mining law (2003) and Namibia’s mining law (1992), these provisions addresses the following water related issues in the context of mining:

  • details of water sources to be used for mining purposes
  • reference to separate water legislation dealing with water rights
  • liability for water pollution.

39.3. Example 2:

Article [_]

(1) The Operating Permit for underground waters and geothermal deposits is granted by joint order of the [mining regulating entity]and the [hydraulics regulating entity] on the recommendation of the [mining regulating entity]. Operating Permits for geothermal deposits designate the volume which may be operated, by an area and two levels of depth. They may also limit the calorific content of what is extracted.

(2) Operating Permits for geothermal deposits may impose special conditions on the holder for extraction, use and reinsertion of heat-conveying fluid and products contained therein so as to preserve the deposits as much as possible. Operating Permits for underground waters designate the area of operations. They establish the maximum output which the holder may extract. Unless the Title’s granting instrument specifies otherwise, no holder of an Operating Permit for underground waters may, in any event, extract a flow that could compromise the regeneration of these waters. Operating Permits for underground waters may also limit the volume which may be extracted by two levels of depth.

Article [_]

The development of underground water and geothermal deposits must be conducted so as to ensure the rational exploitation of these resources. To this end, the holders of Exploration Permits and Operating Permits for underground waters and geothermal deposits must carry out the works using techniques approved by the hydraulic and energy

industry in order to protect the waters from any pollution in accordance with the provisions of this [Act][Code][Law], the [Water Code] and the [Environmental Code].

Annotation

Drawn from Guinea’s mining law (2011), this provision addresses some key water rights issues in the context of mining:

  • It ensures that any decisions relating to the allocation of water rights involve relevant regulating authority for water resources
  • It requires a particular volume of water to be designated to a mine, so that it does not have access to unlimited amounts of water from all available sources
  • The allocation of water is also limited by the physical availability of water – the amount of flow extracted cannot affect the ability of the underground water sources to regenerate.
  • Operating techniques must be approved by the relevant authority to limit water pollution. Environmental standards set out in the country’s environmental and water law are also referenced.

It is also essential that pollution or water standards are referenced at multiple points throughout a mining law in the reference to the relevant related legislation and as a part of license holder obligations.