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Part B: Mineral Rights - Part B-1: Mineral Licences - Prospecting/Reconnaissance - 24. Prospecting/Reconnaissance Licencing | 24.12 Surrender of Licence

Surrender provisions address instances where the licence holder gives up the mining right voluntarily before the duration of the licence has run out. As noted above with respect to suspension and revocation, prospecting/reconnaissance licences tend to be subject to general provisions on surrender rather than provisions specific to the prospecting/reconnaissance licence itself.

The mining law should clearly spell out the steps that must occur before surrender of the mining licence is recognized by the Regulating Authority.

24.12 Example 1:

Article [_]

(1) The holder of a mining right may, upon application in the form and manner prescribed in the Regulation, and upon meeting the conditions prescribed therein, surrender the mining right.

(2) The Mining Cadastre Office shall approve an application made under subsection (1) of this section to surrender the mining right if it is satisfied that-

(a) the holder of the mining right has submitted the request for surrender in the prescribed form and manner;

(b) the surrender will not affect any liability incurred by the mining right holder before the surrender of the mining right, including environmental obligation;

(c) all rents due and fees prescribed, if any, have been paid by the holder of the mining right; and

(d) the holder of the mining right has surrendered the original title document.

Annotation

Drawn from Nigeria’s mining law (2007), this example of a surrender provision establishes the right of the licence holder to surrender the mineral licence provided that certain conditions are met. Most importantly, the conditions require a finding that the surrender will not affect any liability of the licence holder, including environmental obligations, and that the holder of the licence has paid all fees and rents due. The provision applies to all mining rights (the language is not specific to prospecting/reconnaissance licences.)

24.12 Example 2:

Article [_]

(1) The holder of a mineral licence may surrender the reconnaissance area, prospecting area, retention area or mining area to which such licence relates by notice in writing addressed and delivered to the [Regulating Authority] and shall together with such notice return such mineral licence, whereupon –

(a) the [Regulating Authority] shall -

(i) cancel such mineral licence;

(ii) make an entry to that effect in the register of mineral licences referred to in

article [_] (on the register of mineral licences);

(iii) notify the person who was the holder of such mineral licence that such mineral

licence has been cancelled; and

(iv) notify the owner of the land on which such area was situated of such

surrender; and

(b) such area shall be deemed to have been surrendered on the date on which such mineral licence has been cancelled as provided in subparagraph (i) of paragraph (a).

(2) If a reconnaissance area, prospecting area, retention area or mining area is surrendered as provided in subsection (1), the holder of the mineral licence to which such area relates shall –

(a) demolish any accessory works erected or constructed by such person in such area, except in so far as the owner of the land retains such accessory, works on such conditions as may mutually be agreed upon between such owner and person, and remove from such land all debris and any other object brought onto such land;

(b) take all such steps as may be necessary to remedy to the reasonable satisfaction of the [Administrative Reviewer] any damage caused by any reconnaissance or prospecting operations and mining operations carried on by such holder to the surface of, and the environment on, the land in the area in question.

(3) The surrender of a reconnaissance area, prospecting area, retention area or mining area shall not affect any legal proceedings instituted against such holder or any obligation or liability of such holder in terms of the provisions of this [Act][Code][Law].

(4) Any person who contravenes or fails to comply with the provisions of subsection (2) shall be guilty of' an offence and on conviction be liable to a fine not exceeding [Maximum Penalty Amount] or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment.

Annotation

Drawn from Namibia’s mining law (1992), this example takes a different approach to surrender of the prospecting/reconnaissance licence. In contrast to the Nigerian example, which makes the administrative acceptance of a surrender subject to the fulfilment of certain conditions, this example makes surrender automatic upon the submission of a written request by the holder, together with the mineral licence. The Regulating Authority is required to enter the surrender in the register of mineral licences, to notify the surrendering licence holder of the cancellation of the licence and to notify the owner of the land covered by the surrendered licence.

Instead of imposing conditions precedent for recognition of a surrender of the licence (which is called “abandonment” in the Namibian mining law), this example imposes obligations on the surrendering licence holder after the cancellation of the licence. These obligations include:

  • Demolition and removal of any works erected on the prospecting/reconnaissance area, unless otherwise agreed with the landowner.
  • Remediation of any damage caused to the surface land and the environment, to the reasonable satisfaction of the Administrative Reviewer. The “Administrative Reviewer” as used in this example is the administrative authority that is the immediate superior of the Regulatory Authority in the administrative hierarchy.

Failure to comply with these post-surrender obligations is punished by a fine and/or prison term.

Whereas the surrender of the mineral licence is effective as of the date of cancellation by the Regulating Authority, the surrendering holder must retain whatever access rights have been secured with the owners of the land covered by the surrendered licence in order to accomplish the holder’s post-surrender obligations.

Like the previous example, this example stipulates that the surrender shall not affect any liability or obligation under the mining law, or any legal proceeding against the surrendering holder.

The advantage of this approach is that it speeds the process of making surrendered licence areas available to another applicant. The disadvantage is that enforcement of the post-surrender obligations may be problematic.