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Part B: Mineral Rights - Part B-3: Large Scale Exploitation - 26. Large Scale Exploitation Licensing | 26.13 Surrender of Licence

A provision in which the licence holder gives up the mining right voluntarily before the duration of the licence has run out is referred to as surrender of the licence. Surrender of a large scale exploitation licence may be total or partial. Partial surrender will require the issuance of a new licence for the area not surrendered. Surrender may be automatic at the option of the licence holder upon notice to the Regulating Authority, or it may require a decision of the issuing authority.

26.13. Example 1:

Article [_] Abandonment of land subject to mineral rights

(1) The holder of a mineral right who wishes to abandon all or any part of the land subject to licence shall apply to [Regulating Authority], not later than ninety days before the date on which he wishes the abandonment to have effect, for a certificate of abandonment.

(2) Subject to this section, [Regulating Authority] shall issue to the applicant a certificate of abandonment either unconditionally or subject to such conditions relating to the abandoned land as [Regulating Authority] may determine.

(3) An application under this section-

(a) shall identify the land to be abandoned and, if the application applies to only a part of the land subject to the licence, shall include a plan clearly identifying both the part to be abandoned and the part to be retained;

(b) shall state the date on which the applicant wishes the abandonment to take effect;

(c) shall give particulars of the operations which have been carried on under the licence on the land to be abandoned; and

(d) shall be supported by such record and reports in relation to those operations as [Regulating Authority] may reasonably require.

(4) A certificate of abandonment shall take effect on the date on which it is granted to the applicant, and-

(a) where the certificate relates to the whole of the land subject to the holder`s licence, the licence shall be cancelled with effect from the same date; and

(b) in any other case, the licence shall be amended to take account of the abandonment.

(5) The abandonment of any land does not affect any liability incurred before the date on which the abandonment has effect in respect of the land, and any legal proceedings that might have been commenced or continued in respect of any liability against the applicant for the certificate may be commenced or continue against that applicant.

Annotation

Drawn from Tanzania’s mining law (2010), this provision requires the acceptance of the surrender by the issuing authority. The reasons why the issuing authority may decide not to accept the surrender and not issue the certificate are not specified. It would be preferable to state those grounds in the law. They might include:

  • The proposed partial surrender of area does not comply with cadastral rules as to the size and form of the retained area and the surrendered area;
  • Failure to remove installations and equipment as required; and
  • Inadequate demonstration of required site rehabilitation or of the absence of needed rehabilitation due to lack of work on the site proposed for surrender.

Note that the Tanzanian provision stipulates that acceptance of the surrender of area does not affect any liability incurred before the date of surrender. Drafters may wish to go further and clarify that the acceptance of the surrender does not release the licence holder from liability for subsequently discovered damage caused by activity of the holder.

26.13. Example 2:

Article [_]: Surrender of a mineral right

(1) A holder of a mineral right who wishes to surrender all or a part of the land subject to the mineral right shall apply to the [Regulating Authority] for a certificate of surrender not later than two months before the date on which the holder wishes the surrender to take effect.

(2) An application under subsection (1) shall be in accordance with prescribed Regulations.

(3) Subject to subsection (4), upon an application duly made under subsection (1), the [Regulating Authority] shall issue a certificate of surrender in respect of the land to which the application relates.

(4) The [Regulating Authority] shall not issue a certificate of surrender

(a) to an applicant who is in default,

(b) to an applicant who fails to give records and reports in relation to the applicant’s mineral operations,

(c) where the [Regulating Authority] is not satisfied that the applicant will surrender the land in a condition which is safe and accords with good mining practice, or

(d) in respect of land, if the remaining area of the land after the surrender would not be less than one block.

(5) Where a certificate of surrender is issued under this section, the [Regulating Authority] shall, where only part of the land subject to the mineral right is surrendered, amend the relevant licence accordingly or cancel the mineral right where the surrender is in respect of the whole area covered by the mineral right.

(6) Land in respect of which a certificate of surrender is issued, shall be treated as having been surrendered with effect from the date on which the certificate of surrender is issued under subsection (3).

(7) The surrender of land under this section shall not affect a liability incurred by a person in respect of that land before the date on which the surrender took effect.

Annotation

Drawn from Ghana’s mining law (1999), this provision, though similar to the previous example, goes further in several areas. In particular, it details conditions under which the Regulating Authority may not permit surrender of a mineral right and also provides for amendment of the area size under any relevant licence where surrender has occurred over some, but not all land under the licence.