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Part B: Mineral Rights - Part B-1: Mineral Licences - Prospecting/Reconnaissance - 24. Prospecting/Reconnaissance Licencing | 24.3 Licence Refusal Appeal Process

Because a prospecting/reconnaissance licence is the entry level licence for authorized mineral development activity, prior to which applicants will not have made any recognized significant investment based on any existing rights, many countries that require or provide such licences provide no recourse under the Mining law in the event that an application for a prospecting/reconnaissance licence is refused. In such cases, any recourse would have to be based on the provisions of general administrative law rather than provisions of the Mining law. However, there may not be any right to obtain a prospecting/reconnaissance licence under the Mining law in those situations – particularly if activity under a prospecting/reconnaissance licence is not required prior to application for an exploration licence. On the other hand, Mining laws typically provide a general appeal process that may cover the refusal of a prospecting/reconnaissance licence – especially where the prospecting/reconnaissance licence is a necessary prerequisite of an application for an exploration licence. For the purpose of a clearer legislative regime, it may be reasonable for mining laws to distinguish between the processes that apply to particular licences such that extensive processes that would apply to a large scale mining licence, could not be interpreted to apply to a prospecting/reconnaissance licence due to the general reference of the enumerated process to all mining licences.

24.3 Example 1:

Article [_]

A decision of the [Regulating Authority] denying the issuance of a prospecting/reconnaissance licence shall not be subject to reconsideration or appeal.

Annotation

If the mining law provides for the licencing of prospecting/reconnaissance activity but does not require that the applicant for an exploration licence (for the next phase of mineral resource development activity) have previously carried out work on the area under such a licence as a condition for obtaining an exploration licence, and does not grant the prospecting/reconnaissance licence holder an exclusive right to obtain an exploration licence for the subject area (in other words, if the law permits an applicant to forego the prospecting/reconnaissance phase without prejudice) then for the sake of administrative convenience and efficiency it may be reasonable to provide that decisions to reject applications for prospecting/reconnaissance licences are not subject to reconsideration or appeal, as in this example.

24.3 Example 2:

Article [_]

(1) A decision of the [Regulating Authority] denying the issuance of a prospecting/reconnaissance licence shall state the reasons for the decision. The party whose application for a prospecting/reconnaissance licence has been rejected may, within ten business days of receipt of notice of the decision, submit to the [Regulating Authority] a request for reconsideration of the decision, in writing, together with relevant documentation and arguments in writing.

(2) The [Regulating Authority] shall issue its decision on reconsideration, stating the reasons therefore, within thirty (30) days of the filing of a timely request for reconsideration.

(3) If the decision on reconsideration affirms the initial decision of denial, the applicant may appeal the decision on reconsideration in writing together with relevant documentation, to the [Administrative Reviewer] within fifteen (15) business days of receiving such decision.

(4) The [Administrative Reviewer] shall issue his or her decision on appeal in writing, stating the reasons therefore; and said decision shall be notified to the applicant within thirty (30) days of the filing of a timely appeal.

(5) If the decision of the [Administrative Reviewer] on appeal affirms the initial decision of denial, the applicant may, within 45 days of receiving notification of the decision on appeal, apply to the [Judicial Reviewer] for review of the decision and seek such remedy as the [Judicial Reviewer] is empowered to grant.

(6) The filing of a request for reconsideration or appeal of the initial decision of denial does not suspend the administrative decision denying the application unless so ordered by the [Regulating Authority] or the [Administrative Reviewer], as the case may be.

Annotation

If the mining law provides for a prospecting/reconnaissance licence as an exclusive right, and also provides that only the holder of that right is entitled to subsequently request and obtain a licence for the next phase of mineral resource development activity (e.g., exploration), then the denial of the prospecting/reconnaissance constitutes a barrier to entry into mineral resource development activity.

In such cases, for considerations of accountability, transparency, protection against corruption, and due process, best practice would require (1) reasoned written decisions for denials of applications for prospecting/reconnaissance licences, (2) an opportunity for reconsideration by the regulatory authority, (3) an appeal to a superior administrative authority, and (4) a judicial appeal of the administrative decision on appeal.

The example of such a best practice provision presented here is inspired by provisions of the mining laws of Uganda (2003) and South Africa (2002).