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Part B: Mineral Rights - Part B-5: Development Minerals - 30. Development Minerals Exploration Licence | 30.6 Rights of a Licence Holder

Provisions that address what possession of an exploration licence allows the licence holder to do or what the licence holder may be entitled to are collectively treated as rights. The rights of an exploration licence holder are usually exclusive exploration rights at depth within the licenced area. Although the licence usually relates to specified minerals only, under most mining laws no other exploration or mining licence can be granted to another party over the same area.

The exploration licence entitles the holder to carry out exploration activities, as defined; but not to engage in mining. The exploration licence holder generally also has the exclusive right to apply for an exploitation licence over the same area, in whole or in part, during the term of the licence.

As a general matter, the rights of a SSM or artisanal licence holder within the licenced area are similar to those of a large-scale exploitation licence holder within its licence area, except that the SSM and artisanal licence holder’s right may be limited to a certain ma29mum amount of production or investment. In order to exceed that limit, the SSM or artisanal licence holder must convert the original licence to the type of exploitation licence under which the projected higher level of production or investment is authorized.

Depending on the defined nature of the exploration right, the licensee may have the right to pledge, mortgage or transfer the licence.

30.6 Example 1:

Article [_] Rights applicable to all development minerals licence holders

(1) Any licence holder of development minerals, regardless of the size of the operation, shall have the following rights:

(a) To enter the area of licence.

(b) To hold the exclusive right to explore for development minerals, as specified in its licence.

(c) To be protected from disturbance generated from third parties.

(d) To be able to explore the minerals it finds, after following the rules for that phase, included in this [Law][Act][Code].

(e) To freely dispose the products obtained during the exploration phase, with the purpose of geological essays.

(f) To transfer, mortgage or pledge the licence, with the consent of the [Regulating Authority]

Annotation

Inspired by Côte d’Ivoire’s mining law (2014), Tanzania’s mining law (2010) and Sierra Leone’s mining law (2009), this example includes a list of the rights that might apply to any development minerals licence, regardless of the size of the operation. Considering that this is an exploration licence, the approach might be useful to simplify the legislative process.

The exploration licence is eligible for pledge, mortgage or sublease with the approval of the Regulating Authority.

30.6 Example 2:

Section [_]

Article [_] Rights of large scale exploration licence holders.

(1) Subject to the provisions of this [Law][Act][Code] and the Regulations, an exploration licence confers on the holder the exclusive right to carry on exploration operations in the exploration area for minerals to which the licence applies.

(2) In the exercise of the rights conferred by this section, the holder may, subject to section [_] (on restrictions on the right of a mineral licence holder to enter land), either himself or by his employees or agents, enter upon the exploration area and erect camps and temporary buildings and may erect installations in any water forming part of the exploration area.

(3) The holder of an exploration licence for gemstones who in the course of carrying out exploration operations under the exploration licence recovers gemstones, may dispose of the gemstones by sale to a licenced dealer and shall promptly following any such sale submit particulars thereof to the [Regulating Authority], showing the name and business address of the dealer, a description of the stones, their weight and a copy of a receipt given by the purchaser for the price received.

(4) The holder of a an exploration licence for gemstones who recovers gemstones in the course of exploration operations shall for the purpose of holding the gemstones and selling them pursuant to subsection (3) be deemed to be a mineral right holder.

(5) The exploration licence holder is authorized to apply for a retention licence.

(6) The exploration licence holder is entitled to apply for and obtain a special mining licence or a mining licence, subject to compliance with the application requirements specified in other articles.

Article [_] The scope of an Operating Licence for Small-Scale Mining

(1) The provisions of Article [_] of the present Code shall govern the scope of an Operating Licence for Small-Scale Mining.

(2) An Operating Licence for Small-Scale Mining confers on the holder the right to convert their Operating Licence if the technical conditions for the operations warrant this.

Article [_]. The scope of the Operating Licence

(1) An Operating Licence confers on the holder an exclusive right, within the area of the licence and during its period of validity, to carry out work relating to prospecting, development, construction and operations to mine the mineral substances for which the licence was granted, and for related substances if the holder has applied for an extension in this regard. In addition, and without limitation, it enables the holder to:

(a) enter the operating Area to carry out mining operations;

(b) build facilities and infrastructure required for the mining;

(c) use resources, namely water and wood, located within the Mining Area, as required for the mining, in compliance with the standards defined in the EIA and the EMP;

(d) freely dispose of, transport and market their marketable products resulting from their mining in the operating Area for own account;

(e) carry out operations for technical or metallurgical processing or concentration, as well as for converting the mineral substances extracted from the deposit within the operating Area;

(f) carry out work for the extension of the mine.

(2) For as long as an Area is the subject of an Operating Licence, no other application for a mining or quarrying right for all or part of the same Area may be considered.

(3) However, where the Operating Licence holder has refused to give consent to an applicant who wishes to open a quarry in the Area, said applicant may apply for a Quarry Operating Permit over a part of the Area which is the subject of the Operating Licence but which is not being used for mining operations.

(4) Where applicable, the application shall be examined and shall be made the subject of an administrative dispute in which the holder and the applicant are involved, if, together with their application, the applicant submits proof that the holder refused to give consent in bad faith.

(5) The Mining Regulations shall determine the substantive and procedural rules for the dispute.

Article [_] The extent of an Operating Licence for Small-Scale Mining

(1) An Operating Licence for Small-Scale Mining confers on the holder a right to mine the mineral substances for which it was specially granted and for which the holder has identified a deposit and shown that said deposit exists.

(2) An Operating Licence for Small-Scale Mining may be extended to include related or unrelated materials in accordance with the conditions provided for in Article [_] of the present [Code][Act][Law].

Article [_] The nature of an Operating Licence for Small-Scale Mining

An Operating Licence for Small-Scale Mining is an immovable, exclusive right, and may be assigned, subleased and transferred in accordance with the provisions of the present Code.

Article [_] Rights of artisanal mining licence holders

An artisan's mining right shall confer on the person to whom it is granted, or in the case of a right granted in accordance with subsection [_] of article[_], on the community concerned, exclusive rights to mine according to its terms in respect of the mineral specified in the permit within the area for which it is granted.

Annotation

Drawn from Tanzania’s mining law (2010), from the Democratic Republic of the Congo’s mining law (2002) and from Zambia’s mining law (2008), this example provides different rules for each kind of mineral activity, classified by size. This approach might result useful in the sense that more complex operations (large scale) might require a different set of rules. However, in general, exploitation licence grants similar rights to all kinds of Licencees.