GUIDE TO MINING

REGIMES IN AFRICA

Alliance of Leading Law Firms

Alliance des Cabinets de Premier Plan
Aliança dos Principais Escritórios de Advocacia

www.lexafrica.com
 www.lexafrica.co.za

Table of Contents
05 Angola 71 Mozambique

11 Botswana 79 Namibia

17 Burkina Faso 89 Nigeria

21 Cameroon 97 Republic of Guinea

31 Egypt 105 Senegal

37 Equatorial Guinea 113 South Africa

43 Ghana 119 Tanzania

51 Kenya 125 Uganda

57 Lesotho 133 Zambia

63 Mauritius 143 Zimbabwe

67 Morocco

Click the flag to view the country

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Introduction
About LEX Africa

Doing business in Africa is associated with diverse opportunities, challenges

and risks and must be founded on a strong legal base.

LEX Africa is an Alliance of leading African law firms founded in 1993 with over 700 lawyers in 29 African
countries. LEX Africa effectively covers the entire African continent and has a more than 30 year track record
of assisting and advising clients on their African business and other activities.

Each member is a full service business law firm with expert knowledge and experience in both local law and
the local business, political, cultural and economic environment. LEX Africa accordingly provides a “one stop
shop” and Pan African legal team for cross border and domestic African legal solutions to clients wherever
they wish to do business in Africa.

Africa is a key source of minerals for the world and mining remains a very import source of African revenue
and investment. Understanding the heavily regulated mining sector is vital for success in this sector and we
are proud to launch our updated 2025 Mining Guide which summarises the applicable laws and regulations
in 21 African countries.

Many thanks are due to all our contributors and editors. I trust the Guide will continue to assist mining
companies and others interested in African mining.

Chairperson of LEX Africa

Pieter Steyn
+27 11 535 8296
[email protected]

©LEXAfrica | All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any
means, whether electronic, mechanical, photocopying, recording or otherwise, without fully and clearly acknowledging the LEX Africa Guide to
Mining Regimes in Africa, as the source. The contents of this publication is intended for general information only and is not intended to serve as legal,
financial or any other advice. While all steps have been taken to ensure the accuracy of information, LEXAfrica shall not be liable to any person for any
inaccurate information contained in this publication. This guide has been updated as at 31 December 2024.

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Preface

Africa is well endowed with mineral resources. It harbours the world’s largest mineral reserves of platinum, gold, diamonds,
chromite, manganese, and vanadium. Mining in Africa is an integral and important part of the continent’s economy. Many
mining projects suffer extreme risks and difficult decisions and sound mining law is integral for an investment decision. The
purpose of the publication is to gain a better understanding of what makes up the various laws in each African jurisdiction.
The basic essence of mining law in most African countries is similar, being a state licencing system, but each country has
its own local laws, customs, practices and guidelines.

LEX Africa is the first and largest African legal alliance with a long history of assisting clients across the continent. It is hoped
that our insight into these issues will be both informative and practical. LEX Africa members have a full understanding of
mining law in their respective countries and the practice thereof. This edition of the Mining Guide sets the tone for the
African continent and establishes a guideline which is both informative and useful. There is no doubt that the key issues
raised in the guide will assist in gaining a better understanding of the various applicable mining regimes operative across
the continent.

We hope that you enjoy reading this guide as much as we have enjoyed compiling it.

Head of Mining & Resources

Chris Stevens
+27 11 535 8467
[email protected]

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ANGOLA
FBL ADVOGADOS

FIRM INFORMATION
Website address: www.fbladvogados.com
Languages spoken : English, Portuguese
Telephone : + 244 927 173 010, + 244 222 397 073
Address : Rua Cirilo da Conceição Silva, 2.º Andar, Edifício Kitanda Plaza,
Luanda, Angola
Contact : Neuza Melão Dias, Paulette Lopes
Email : [email protected], [email protected]

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ANGOLA | FBL ADVOGADOS

RELEVANT AUTHORITIES AND • Applications for access to mining rights are recorded and
decided according to order of entry, within the legally
LEGISLATION established time limits;
• Applications for the granting of mining rights shall be
What laws regulate mining? properly published;
The mining activities are regulated by the Mining Code • Unrestricted extraction of mineral resources during
approved by Law no. 31/11 of 23 September 2011. prospecting, except as expressly provided under the
standards of the mining code or additional legislation;
Which Government Bodies administer mining law? • Titles for mineral resource extraction are allocated on an
The Government bodies which administer the mining exclusive basis, and may be transferred pursuant to the
industry are (a) the Head of the Executive Power; (b) the provisions of the mining code;
Ministry of Mineral Resources and Petroleum and Gas, (c); • The necessary support from the government for the
the Ministry of Finance; (d) the Geological Institute of Angola execution of mining activities and respect for the rights
(indirect administration body of the State responsible for the inherent thereto; and
collection, storage, management, promotion and availability • The right to freely dispose of and market mining output,
of geological information of Angola); (e) the National Agency subject to the rules and procedures provided under the
of Mineral Resources (which performs the function of national mining code and additional legislation on the matter.
concessionaire, being responsible for the regulation,
supervision and promotion of the Angolan mining sector); (f) Pursuant to Presidential Decree 174/15 of 15 September,
ENDIAMA (a strategic company in the public domain, which, except for structuring projects that are manifestly technically,
amongst others, is entitled of planning, preparing and economically and financially viable, the granting of new
launching mining concessions for the free market, in view mining titles has been temporarily suspended until the
of the politically defined objectives, negotiate and manage geological mapping of the country and the National Geology
mining concession contracts, representing the interests of Plan (PLANAGEO) is concluded.
the Angolan State, monitor the execution of mining contracts,
perform the functions of certification and public procurement, The PLANAGEO is a geological mining research and
monitor the quality and content of minerals in Angola); (g) mapping that still in progress that is a very important tool
SODIAM – E.P (a public domain company inserted in the for the planning and diversification of the mining geological
Indirect Administration of the State and responsible for the activities in Angola.
strategic marketing of minerals); (h) the Diamonds Exchange;
and (i) the Kimberly Process National Commission. The However, projects with great impact to the Angolan Economy
National Kimberley Commission (CNPK) has aims to ensure which are technically, economically and financially viable,
the implementation and execution of the tasks related to the such as:
fulfillment of the postulate in the Regulation of the Kimberley • Prospecting or exploitation projects in large scale activity;
Process Certification Scheme, approved by the United • Long-term maturity exploitation projects;
Nations General Assembly, through the resolution No 55/56. • Projects involving large amounts of investment; and
• Projects involving state-owned companies, are not
The CNPK is, therefore, entitled to ensure the legitimacy subjected to this suspension.
and design of production and export of rough diamonds
produced in the country to the world market; to cooperate Mining investment projects submitted before September 15,
and ensure the methods of preventing and combating 2015 and by that time were pending for approval have not
conflict diamonds and illicit diamond trafficking; to monitor been affected by the above-mentioned suspension.
the evolution of the international market diamonds, etc.
The mining right holders are also entitled to the following:
• Obtaining geological/mineral information from competent
TYPES OF AND MANNER OF ACQUISITION supervisory authorities that are available for the area
OF RIGHTS subject to concession, or to consult such authorities
regarding such information;
• Obtaining the cooperation of administrative authorities for
What rights are granted to conduct reconnaissance, the execution of field work and the establishment of rights-
exploration and mining operations? of-way, pursuant to law;
Mining rights can be awarded pursuant to a public tender • Use of existing surface and groundwater in proximity to the
or upon request, being recognized through a mining concession area that is not used or covered by any other
investment contract or through a mining concession. Mining specific extraction title, without prejudice to third-party
Code describes the rights and obligations of the mining right rights and always subject to mining legislation;
holders which have the following legal guarantees: • Building and deploying infrastructure and facilities

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necessary for the execution of geological/mining activities; Any company that wishes to carry out petroleum operations
• Pursuant to pertinent legal and regulatory conditions, use in Angolan territory apart from the scope of its prospecting
of the land demarcated for the implementation of mining licenses may only do so together with the National
facilities, buildings and equipment; Concessionaire under the following terms:
• Pursuant to approved work plans and schedules and to • Subject to the prior consent of the Government, the National
the extent necessary for execution of mining operations, Concessionaire may associate with Angolan or foreign
to modify the natural configuration of areas subject to entities of recognized capacity, technical knowledge and
concession; financial capability; and
• Conducting geological/mining activities necessary to • Such association may take the forms of (a) corporation, (b)
the execution of approved work plans, without other consortium, or (c) Production Sharing Agreement.
restrictions other than those arising from legal standards,
the concession contract or by order of the regulatory body; Finally, regarding the applicable framework to the natural
• Extracting, transporting and benefitting from the mineral oil and gas sector, such resources are mainly regulated by
resources subject to contract, in accordance with the law; Petroleum Activities Law and may be conducted under the
• Disposing of extracted mineral resources and market them, assignment of a prospecting license or petroleum concession.
in accordance with the law; In addition to the above, please note that recently, on 2
• Through extraction proceeds, recouping expenses from March 2015, the Executive Decree 80/15 which approves the
investments made during the exploration, prospecting, Technical Regulations on the design, installation, operation,
surveying and evaluation phase; maintenance, repair and the Change of Liquefied Petroleum
• Receiving compensation for losses that may be incurred Gas Tanks, establishing its technical and security conditions
from any action limiting the exercise of mining rights, in and the Executive Decree 81/15 approving the Security
accordance with the law or the concession contract. Technical Regulation of Liquefied Natural Gas Autonomous
Units was also published.

OIL AND GAS On the other hand, other mining activities are mainly
regulated pursuant to the Mining Code which rights can only
What rights are granted to conduct oil and gas exploration be assigned through a concession regime.
and production?
Petroleum deposits existing in the available area of the
Angolan national territory, inland waters, territorial waters, INDIGENISATION REQUIREMENTS
exclusive economic Zone and continental shelf are an
integral part of public property of the Angolan State. Are there any requirements in relation to the holding of
Mining rights in the oil & gas sector shall be granted by ANPG equity in exploration and mining projects by indigenous
(National Agency of Oil and Gas) a public company that is peoples?
the National Concessionaire, under the terms of the law no. The Angolan Government is deeply committed in promoting
05/19 of 18 April (Law amending the Petroleum Activities Angolan companies. Moreover, Angolan companies must
Law). comply with several local policies designed to promote the
development of industrial infrastructures and the furthering
The rights granted to conduct oil and gas exploration and of the education levels of the people in Angola. The Angolan
production are for: local content policies aim to protect the domestic market over
• Prospecting; the products and services for the mining industry. The local
• Exploration; and content rules broadly aim to promote Angolan employment,
• production. Angolan ownership of business and the Angolan industry,
production and services.
Petroleum and gas operations may only be carried out under The Local content policies are reflected in different levels
a prospecting license or petroleum concession. including:

Prospecting licenses shall be issued by the Ministry of Mineral • The preferential treatment of Angolan companies in public
Resources and Petroleum, while the Government shall be tender processes;
responsible for granting concessions for the exercise of • The obligation of companies to maintain a work force ratio
mining rights. A prospecting license has a maximum duration of 30% of foreign employees to 70% of Angolan employees;
of three years. As regards the concession the duration is • The Mining and Oil companies are expected to source
determined in the concession decree. Although, whether it certain products and services exclusively from Angolan
is a license or concession its duration may exceptionally be companies; meaning companies with majority Angolan
extended, upon the request of the licensee or the National ownership; and
Concessionaire. Such extension is subject to the approval • The restrictions to the incorporation or acquisition of a
of the Ministry of Petroleum, upon verification of the reasons company in Angola by foreign investors.
invoked and certification checked that the licensee or the
National Concessionaire have performed their obligations.

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Are there any special rules or restrictions applicable to PROCESSING AND BENEFICIATION
foreign applicants?
There are no restrictions under the Mining Code, which
Are there any requirements to beneficiate minerals
provides a special regime that allows foreigners to invest
mined?
and carry out mining activities.
Holders of mining rights are entitled to dispose of the
The main types of investment in the mining sector are (i) the
minerals mined and have the power to sell the products
general investment regime, (ii) the investment in the strategic
of mining activities, subject to the limitations set out in the
minerals regime and (iii) the artisanal investment regime.
Mining Code. The Holder of the Executive Power is bound
In general, holders of mining rights must enter into an
to approve the rules related to trade in the strategic minerals
investment agreement with the Angolan State. Such mining
sector, in view of the specificities regarding each strategic
investment agreement shall be approved by the competent
mineral. The Mining Code determines that, when reasons of
Minister or, if the amount of the investment is equal or higher
public policy or national sovereignty are at stake, the Angolan
than USD 25.000.000 (twenty-five million United States
Government may create a particular institution to act as the
Dollars), by the Angolan Chief of Executive.
sole trade public body (as it happens already with diamonds).
It is also ensured that the holders of mining rights participate
Identify any rights that the State may have. Does the State
in the negotiation and in the draft of the trade agreements
have any rights to equity in mining projects?
related to strategic minerals that are produced in their mines.
The State’s participation in the mining sector can occur in
The Mining Code also foresees that the Angolan State may
several ways, including:
create one or more trading companies, aimed at acquiring
the strategic minerals directed to producers, in a free market
Shareholding
regime, whenever this is required by law or by an objective
The state is entitled to a direct stake in mining companies
need of State intervention.
operating in the country, often through Angola’s National
Diamond Company (Endiama). State participation can
Are there any restrictions on the export of minerals?
be done through public companies, which have shares
Export of mineral is subject to a previous license issued
in private companies or even in the capital stock of the
by the Ministry of Trade and an authorization issued by the
concessionaires of mining projects.
Customs authority.
Licensing and contracts
All minerals exported from Angola are subject to a certificate
The State has the authority to grant mineral exploration
of origin issued by the competent authorities. Also, internal
licenses to companies, both domestic and foreign. Such
rules adopted by the framework of the Kimberley Process
concession contracts may include clauses that guarantee
Certification Scheme (KPCS) apply to other strategic minerals.
the State’s share of the profits generated by the mines.
Additionally, a local certification process was implemented,
Royalties and taxes
in accordance with the KPCS.
In addition to the shareholding, the Angolan state receives
royalties and taxes from mining companies. These payments
are an essential part of the country’s public revenue and
reflect the contribution of the mineral sector to the national DISPOSALS OF RIGHTS AND CONTROLLING
economy. Taxation includes Industrial Tax, Production Tax, INTERESTS
among others.
Are there any statutory consents required to dispose of
Public-Private Partnerships (PPP) rights to explore and mine?
In some situations, the State may participate as a partner in The Mining rights can be transferred, granted as collateral
mining projects through public-private partnerships (PPP). In and can be subjected to judicial execution measures, subject
these partnerships, the State maintains control over strategic to the limitations set out in the Mining Code, which include
natural resources and can benefit from private investments, previous authorization from the competent authority. In case
maintaining participation in the operations. of insolvency of the mining rights holder, the mining rights
will not terminate but can be allocated to the creditor of the
Therefore, the State of Angola, through its institutions and holder that offers the best price (subject to a right of first
legal mechanisms, has a strong presence in the mining refusal of the Angolan State).
sector, ensuring a form of participation in projects that involve
the exploitation of its natural resources. Transfer of mining rights is subject to the payment of taxes.

Are there any restrictions on disposals of controlling

interests in entities holding exploration or mining rights?
There are no particular rules regarding restrictions or
disposals of controlling interests in entities holding
exploration or mining rights.

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USE OF SURFACE OF LAND INVOLVED IN NATIVE TITLE AND LAND RIGHTS

PROSPECTING AND MINING ACTIVITIES
Is there any native title which has any implication for the
What are the rights of the holder of an exploration right or exploration and mining industry?
mining right to use the surface necessary or incidental to No, but holders or owners of land have the right to an income
an exploration or mining operation? for the duration of activities corresponding to prospecting
The holders of mining rights have the right to use the and surveying, and such parties shall be compensated for the
surface necessary or incidental to the exploration or mining losses incurred, but they must properly consider the relative
operation. interest of mining production for the national economy,
refraining from creating unjustified barriers to geological/
mining research.
ENVIRONMENTAL
HEALTH AND SAFETY
What legislation governs environmental protection of
exploration and mining sites? What legislation governs health and safety in mining?
Pursuant to the Mining Code, holders of mining rights must There is specific legislation governing health and safety in
ensure the conservation and protection of nature and the general.
environment, complying with the respective legal standards.
Without prejudice to the provisions of specific environmental Pursuant to the Mining Code, the holders of mining rights
standards for mining activity, the exploitation of minerals must adopt measures to ensure hygiene, health and safety at
must be carried out in accordance with basic laws on the work, as well as to prevent professional risks and accidents
environment, biological and aquatic resources and water as at work, pursuant to regulations issued by competent bodies
well as with Environmental Impact Assessment standards. and necessary training programs in the realm of hygiene,
health and safety in the workplace must be promoted, as
Holders of mining rights are specifically required to observe well as the observance of proper use of machinery, materials
the following precepts: and working equipment.
• Fulfil the obligations arising from the Environmental
Impact Assessment and environmental management plan,
pursuant to the terms established therein;
• Take measures necessary to reduce the formation and CONSTITUTIONAL AND ADMINISTRATIVE
propagation of dust, debris and radiation in areas of LAW
extraction and surrounding areas;
• Prevent or eliminate water and soil pollution, using Is there a constitution which has an impact upon rights to
appropriate means for such purposes; prospect and mine?
• Neither reduce nor in any other way impair the normal Yes. The Constitution of the Republic of Angola, approved
supply of water to the populations; in 2010, is the fundamental norm that establishes the basic
•E  xecute mining operations to minimize soil damage; principles for the management of natural resources and the
• When using explosives in proximity to human settlements, conditions under which economic activities can be carried
reduce impact from noise and vibration to acceptable out. Although the Constitution does not deal directly with
levels, as determined by competent authorities; mining, it does provide for the right to property, environmental
• Refrain from discarding waste harmful to human health, protection and prior consultation with affected communities,
flora and fauna into the sea, water currents and lakes; and as well as guaranteeing the state’s sovereignty over the
• Notify authorities of any occurrence that causes or may be country’s natural resources.
capable of causing environmental damage.
Are there administrative appeals in the mining law?
In general, the mining operators must adopt internal rules The conflicts arising between state bodies and mining
of conduct on environmental matters that are compliant holders are subject to the general administrative law.
with legislation in force creating conditions to ensure The Code of Administrative Procedure (CPA) applies
that workers at all levels recognize their responsibility generally to all sectors of public administration, including the
in regard to environmental management, as well as that mining sector, when it comes to administrative processes
resources, personnel and training adequate to implementing involving the granting of rights, licenses and other permits
environmental plans are provided. within the mining area.
In collaboration with competent State bodies, they are
responsible for strengthening infrastructure, training Some of the main mechanisms for resolving conflicts
and qualifications of workers regarding environmental between holders of mining rights and state bodies under
management in mining operations. the Code of Administrative Procedure are Complaints and
Moreover, the environmental obligations are set forth jointly hierarchical appeals.
with the payment of an environmental guarantee.

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ROYALTIES AND TAXES

Are there special rules applicable to taxation of exploration

and mining companies?
All local and foreign entities that are engaged in mining
activities in Angola as well as abroad (to the extent that
Angola has the power to tax) are subject to the special tax
regime described in the Mining Code. They may be subject
to the following taxes: income tax (actually at the rate of
25%), royalties; surface tax; artisanal mining tax; and taxes
applicable to other activities conducted by the relevant
entities.
The provisions related to custom duties provide for certain
exemptions, in particular equipment used in connection with
the mining activities, and the conditions that apply to such
exemptions. Mining products can be exported directly or
indirectly by the mining right-holder without any additional
custom duties.

Are there any royalties payable to the State over and

above any taxes?
Yes, the mining operators must pay for the tax over the value
of the mineral resources.

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BOTSWANA
ARMSTRONGS ATTORNEYS

FIRM INFORMATION
Website address: www.armstrongs.bw
Languages spoken : English, Setswana
Telephone : +267 395 3481
Address : 2nd Floor, Acacia House, Plot 74358, Cnr Khama Crescent Ext
and P G Matante Road, New CBD
Contact : Sipho Ziga
Email : [email protected]

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BOTSWANA | ARMSTRONGS ATTORNEYS

RELEVANT AUTHORITIES AND The rights of a holder of a prospecting licence are more
restrictive and narrower compared to the rights under a
LEGISLATION mining licence. The MMA obliges the holder of a prospecting
licence to:
What laws regulate mining? • Commence prospecting operations within three months or
The relevant legislation that governs the system of mining such further period as the Minister may allow, of the date of
law in Botswana is the Mines and Minerals Act Cap 66:01 and issue of his licence;
the Mines, Quarries, Works and Machinery Act Cap 44:02. • Carry on prospecting operations in accordance with the
The mining of diamonds is also regulated under the Precious programme of prospecting operations as set out in the
and Semi-Precious Stones (Protection) Act [Cap 66:03]. prospecting licence; and
• Notify the Minister of the discovery of the mineral to which
Which Government Bodies administer mining law? his prospecting licence relates within a period of 30 days
The Department of Mines administered under the Ministry of of such discovery or discovery of any mineral deposit of
Minerals and Energy. economic value.

The holder of a prospecting licence shall not without the

TYPES OF AND MANNER OF ACQUISITION written permission of the Minister, remove any mineral from
OF RIGHTS a prospecting area except for the purpose of having such
mineral analysed, valued or tested in Botswana.
What rights are granted to conduct reconnaissance, The Minister is empowered to monitor compliance with
exploration and mining operations? the programme of prospecting operations as specified in
a prospecting licence however, in practice we note that
All Minerals in Botswana vest in the state. No person may compliance is reviewed at the time of licence renewal or
prospect, or mine minerals save in terms of a licence issued transfer. A licence may not be cancelled, even in the event
by the Minister for Minerals and Energy under the Mines and of non-compliance unless the notice has been given to a
Minerals Act Cap 66;01 (“MMA”). holder to rectify the default.
Prospecting License The holder of a prospecting licence can notify the Minister
Prospecting licences are issued for three years with two of proposed amendments to the programme of prospecting
options to renew, each period not exceeding two years and operations. Unless the Minister objects within 60 days of
the licences cover such area as provided for by a licence such notification, which in practice the Minister does not do if
which area shall not exceed 1,000km2 under the terms of the proposed amendments are reasonable, the amendments
the MMA. take effect automatically.
The Minister may renew a prospecting licence for additional The holder of a prospecting licence may at any time not
periods where a discovery has been made and evaluation later than three months before the expiry of the licence
work has not, despite proper efforts, been completed. This apply to the Minister for renewal thereof, submitting a
means that a licence is renewable beyond the 3 + 2 + 2-year report on prospecting operations carried out so far and the
periods. For example, if at the end of the 7-year period the costs incurred and a proposed programme of prospecting
holder informs the Minister that a discovery has been made operations to be carried out and the estimated cost thereof.
but evaluation work has not been completed, an additional
extension may be granted. The holder shall be entitled to a renewal provided that:
• It is not in default under the terms of the MMA or the licence;
Alternatively, the holder could apply for a retention licence and
and/ or mining license. Generally, retention licences entitle • The proposed programme of prospecting operations is
the holder to keep the area to which the licence relates for adequate.
future mining operations and to carry on prospecting within At the end of the period of the prospecting licence the
the retention area. They are granted for two periods not rights granted to the holder thereof under the terms of the
exceeding three years each. MMA and the licence cease, and the holder is required to
vacate the area to which the licence relates, taking such
In terms of the MMA the holder of a prospecting licence measures as are necessary to restore the land substantially
is entitled to enter onto any land to which its prospecting to the condition it was in prior to the commencement of
licence relates and may prospect thereon for the mineral to prospecting operations, the holder being obliged to make
which the prospecting licence relates, drill bore holes, make adequate on-going financial provision for compliance with
excavations, erect camps and put up temporary buildings for such obligations.
machinery necessary for prospecting purposes.

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Retention Licence • The interpretation and assessment of such studies, surveys

The holder of a prospecting licence may apply to the Minister and tests; and
for a retention licence in respect of the area and mineral • Submit annually to the Director of Mines an updated
covered by the prospecting licence. feasibility study and an audited statement of direct
expenditure if any, incurred in the retention area during the
A retention licence - for which an application must be year.
made no less than three months before the expiry of the
prospecting licence - is designed to bridge the gap between Mining Licences
(i) the expiry of a prospecting licence and completion of the A person wishing to obtain a mining licence is entitled to
prospecting programme and (ii) the time when, subject to the apply to the Minister and the Minister shall grant a mining
feasibility study, mining can proceed on a profitable basis. licence if he is satisfied that the applicant is the holder of
Retention licences are granted for two periods, not exceeding a prospecting licence, retention licence or a waiver issued
three years each and entitles the holder to: (if the area over which a mining licence is required has
• To retain the retention area to which the retention licence been sufficiently prospected and that no other person has
relates, for future mining operations; exclusive rights over that area).
• To carry on prospecting operations in the retention area
in order to determine from time to time the prospects of Under the terms of the MMA the holder of a mining licence,
mining any mineral to which the retention licence relates may enter upon any land to which his mining licence relates
on a profitable basis; and take all reasonable measures on or under the surface
• To remove any mineral or sample of a mineral for any to mine the mineral to which his mining licence relates,
purpose other than sale or disposal, from any place where it erect the necessary equipment, plant and buildings for the
was found or incidentally won in the course of prospecting purposes of mining, transporting, dressing, treating, smelting
operations to any other place within Botswana or, with the or refining minerals recovered, dispose of any mineral
permission of the Director of Mines, outside Botswana; and product recovered, prospect within his mining area for the
• To carry on, in order to determine, from time to time, the mineral for which he holds a mining licence and for any other
prospect of mining any mineral to which the licence mineral and stack or dump any mineral waste product in a
relates, on a profitable basis, such other investigations and manner approved by the Director of Mines.
operations, including erection of necessary equipment,
plant and buildings, in the retention area as may be The mining licence once granted is valid for a period as is
reasonably necessary for, or in connection with, any future reasonably required to carry out the mining programme but
mining operations or any prospecting operations. not exceeding twenty-five years.

The holder of a retention licence is obliged to: The Minister shall grant a mining licence if satisfied that:
• Demarcate and keep demarcated the retention area in the • The proposed programme of mining operations will
prescribed manner; ensure the most efficient and beneficial use of the mineral
• Obtain consent of the Director of Mines for any amendment resources in the proposed mining area;
to his intended work programme. • The proposed mining area is not the same as nor does
it overlap an existing mining area or retention area unless
Unless the Director of Mines otherwise stipulates: the holder of that area consents to the grant of a mining
• Back fill or otherwise make safe excavations made during licence, or in the case of a retention licence, has failed to
the course of his prospecting operations to the satisfaction make an application;
of the Director of Mines; • The proposed mining area extends to cover only that area
• Permanently preserve or otherwise make safe any borehole reasonably required for surface mining and treatment
in the manner directed by the Director of Geological Survey facilities and also to cover the proved, indicated and
and Director of Mines; inferred reserves;
• Remove within two months of the expiry of his licence, any • The applicant has or has secured access to adequate
camp, equipment, plant or building erected by him in the financial resources, technical competence and experience
retention area, and repair or otherwise make good any to carry on effective mining operations;
damage to the surface area of the grant occasioned by • The proposed financing plan submitted as part of the
such removal, to the satisfaction of the Director of Mines; feasibility study is in accordance with good financial
and practice, and provides for a debt-to-equity ratio of no more
• Furnish the Director of Geological Survey and to the than 3:1 unless the Minister otherwise agrees;
Director of Mines a quarterly report. • The parent company guarantees the performance of the
obligations of the relevant company; and
Furnish to the Minister by submitting to the Director of Mines, • The applicant is not in default under the terms of the MMA.
as soon as they become available:
• The results of all studies, surveys and tests including but not The holder of a mining licence has the following obligations:
limited to analytical, metallurgical, mineralogical, and geo- • To commence production on or before the date referred
physical work incidental to those prospecting operations; to in the proposed programme of mining operations in the

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mining licence application as the date by which he intends development licence is issued (the licence to produce
to work for profit; petroleum from the discoveries made by the exploration
• Develop and mine mineral covered by his mining licence licence.
in accordance with the programme of mining operations as
adjusted from time to time in accordance with good mining A development licence may be issued to a person who is
and environmental practice; not the registered holder of an exploration licence if he is
• Demarcate and keep demarcated the mining area in such satisfied that the area in which he intends to retrieve the
manner as may be prescribed and within three months petroleum does contain a petroleum reservoir or part of
submit to the Minister a diagram of the mining area; a petroleum reservoir and that area is not subject to any
• Keep and maintain an address in Botswana, full particulars exploration or development license.
of which shall be registered with the Minister to which all
communications and notices may be addressed; and
• Notify the Minister as soon as he begins to work his mining INDIGENISATION REQUIREMENTS
area for profit.
Are there any requirements in relation to the holding of
equity in exploration and mining projects by indigenous
OIL AND GAS peoples?
No.
What rights are granted to conduct oil and gas exploration
and production? Are there any special rules or restrictions applicable to
There are two pieces of legislations that are relevant to foreign applicants?
the production of gas, one is the Industrial Development No.
Act, Chapter 43; 01 and the Petroleum (Exploration and
Development) Act, Chapter 67:01. Identify any rights that the State may have. Does the State
have any rights to equity in mining projects?
The Industrial Development Act relates to the manufacture Upon the issue of a mining licence, the Government shall
(means to subject physical matter to any process which have the option of acquiring up to fifteen percent working
materially changes it or its packaging in substance, character interest participation and shall inform the applicant as to
or appearance and includes the assembly of parts), for whether or not it is exercising its option.
sale, any product. Product is defined as any article, thing If the Government does decide to exercise its option, it shall
or substance produced by any manufacturing enterprise to be issued a single P1.00 special share at par, which shall
which the Industrial Development Act applies but excludes carry the right to appoint up to two directors, with alternates,
any immovable structure at any place in Botswana. and to receive all dividends or other distributions in respect
of its working interest percentage and shall be obliged in the
The Industrial Development Act provides that no person same manner as other shareholders to contribute its working
shall manufacture any product at any place in Botswana interest percentage.
unless he is in possession of a licence to manufacture such
product, issued by a licensing committee. The application
for a licence to carry on a manufacturing enterprise shall be PROCESSING AND BENEFICIATION
made in the prescribed form to a licensing committee.

The Industrial Development Act does not list the types of Are there any requirements to beneficiate minerals
products that will require a licence under the Act therefore mined?
an enquiry has to be made to the licensing committee as to No. However, there is a provision in the MMA which provides
whether the product falls under the Industrial Development that the holder of a mineral concession issued under this Act,
Act. The second legislation is the Petroleum (Exploration shall, in the conduct of his operations under such concession,
and Development) Act which relates to the exploration and in the purchase, construction and installation of facilities,
and the production of petroleum. Petroleum under the Act give preference, to the maximum extent possible consistent
is defined as any naturally occurring, hydrocarbon; mixture with safety, efficiency and economy, to:
of hydrocarbons; or mixture of one or more hydrocarbons • materials and products made in Botswana; and
and any other substance, whether in gaseous, liquid or solid • service agencies located in Botswana and owned by
form, and includes petroleum which has been returned to a Botswana citizens or bodies corporate established under
natural reservoir but does not include coal or a substance the Companies Act.
which may be extracted from coal.
Are there any restrictions on the export of minerals?
Under the Petroleum (Exploration and Development) Act, two There are no restrictions in the export of minerals nor are
licences can be issued, the first one being the exploration we aware of any export permits or levies. We are aware in
licence, which from reading the Petroleum (Exploration practice that the Department of Mines is required to issue a
and Development) Act has to be issued prior to when a supporting letter to the exporter confirming that they have no
objection to the export of the minerals mined.

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DISPOSALS OF RIGHTS AND has determined which of the aforementioned interpretation

applies and consequently this is unsettled under Botswana
CONTROLLING INTERESTS Law.

Are there any statutory consents required to dispose of Our approach in dealing with this issue has been to address
rights to explore and mine? a letter to the Minister notifying him of the change in control
A prospecting licence or an interest therein or any controlling at the parents (or ultimate parent level) but informing him that
interest in the holder thereof may be transferred from one there is no requirement for such notification under the Act or
person to another, with the prior approval of the Minister. for his consent or approval to the transaction.
For the avoidance of doubt, a change in shareholding of
a company that holds a licence which does not result in To date we have not had any objection from the Minister to
a change in controlling interest in that company does not such approach. We should however caution that recently the
require approval of the Minister. Approval is subject only Department of Mines and Minerals has indicated that in its
to the Minister being provided with such details of the view the wider interpretation of Section 50 has application
proposed transferee as would be required in the case of and that it will advise the Minister accordingly. We cannot
an application for a prospecting licence and the transferee thus warrant or guarantee that the Minister will not adopt the
not being disqualified under any provision of the MMA from wide interpretation and insist on his consent for a change of
holding a prospecting licence. control at the parent company level.

No retention licence or any interest therein shall be

transferred, assigned, encumbered or dealt with in any other
way without the approval of the Minister.
USE OF SURFACE OF LAND INVOLVED IN
In any application to the Minister for his approval the applicant EXPLORATION AND MINING ACTIVITIES
gives such particulars concerning the proposed transferee,
assignee or other party concerned as would be required in What are the rights of the holder of an exploration right or
an application for a mining licence. The Minister shall grant mining right to use the surface necessary or incidental to
his approval for the transfer, assignment or other dealing an exploration or mining operation?
with any retention licence or interest therein provided the In Botswana, the grant of a prospecting licence, a
transferee is not disqualified under any provision of the MMA retention licence, a mining licence, an exploration license
from holding a retention licence and the Minister is satisfied or development license issued in terms of the MMA or
that the application is not in breach. Petroleum (Exploration and Development) Act does not give
exclusive surface rights in the area which is the subject of
No mining licence or any interest therein shall be transferred, the concession.
assigned, encumbered or dealt with in any other way without
the approval of the Minister. Section 62 of the MMA and section 70 of the Petroleum
(Exploration and Development) Act provide that where the
Are there any restrictions on disposals of controlling license holder requires exclusive use of the whole or any
interests in entities holding exploration or mining rights? part of the license area, he may obtain from the owner or
The restrictions on disposals of controlling interests in lawful occupier of the area, a lease for the exclusive use
entities holding exploration or mining rights are capable of thereof. The rental to be paid, the duration of the lease and
two possible interpretations, namely a wide and a narrow the extent or area to be covered may be agreed upon by the
interpretation. parties and failing such agreement, the said Acts provide for
the rental to be determined by arbitration. During prospecting
The narrow interpretation holds that no approval from the operations, it is not usual for leases to be entered into with
Minister is required for a change of control in the parent holders.
or ultimate parent of a license holders. The basis for this
interpretation is the definition of “interest” in section 50 (4) of In addition, both the MMA and the Petroleum (Exploration
the MMA. More particularly the fact that “interest” is defined and Development) Act contain restrictions on the use of
as meaning “in the case of a holder who is private company, surface rights in certain places without obtaining appropriate
a controlling interest in such holder”. consent, including sensitive land (e.g. places of burial,
monuments or government land), within proximity of
It has been interpreted as being limited to circumstances buildings, agricultural land or land used for water purposes,
where there is a transfer in the shares of the license holder national parks, railways, roads, land the subject of mining
and such transfer has the effect of changing the control in and any other restricted land specified by the Minister.
such entity.

The wide interpretation holds that the transfer of any interest,

whether direct or indirect in a mining license will require
approval from the Minister. To date no Court in Botswana

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ENVIRONMENTAL CONSTITUTIONAL AND ADMINISTRATIVE

LAW
What legislation governs environmental protection of
exploration and mining sites? Is there a constitution which has an impact on the rights
Sections 55 and 56 of the Petroleum (Exploration and to prospect and mine?
Development) Act imposes certain environmental obligations No.
upon a license holder when exploring, extracting or storing
petroleum including inter alia an obligation not to pollute Are there administrative appeals in the mining law?
underground water sources. No.

Section 65 of the MMA obligates the license holder to

undertake prospecting and mining operations with minimum ROYALTIES AND TAXES
impact on the environment and further requires the holder to
rehabilitate its license areas from time to time as well as at Are there special rules applicable to taxation of exploration
the end of prospecting and mining operations. and mining companies
The royalty’s payable shall be the following percentages of
There is the Environmental Assessment Act Cap 65; 07 the gross market value:
which is used to assess the potential effects of planned
developmental activities; to determine and to provide
mitigation measures for effects of such activities as may MINERAL TYPE PERCENTAGE
have significant adverse impact on the environment; and Precious stones 10%
to put in place a monitoring process and evaluation of the Precious metals 5%
environmental impacts of implemented activities.
The Environmental Assessment Act requires au Other minerals or mineral products 3%
thorisation prior to any holder of an exploration right or
mining right to conduct activities or an activity where there is The royalty shall be paid on a mineral or mineral product
an unanticipated irreversible adverse environmental impact. on receipt of each payment or other consideration for such
mineral or mineral product, and each royalty payment shall
be accompanied by full particulars of the mineral or mineral
product sold or disposed of and the terms of payment
NATIVE TITLE AND LAND RIGHTS therefor: Provided that any disposal for other than monetary
consideration or consideration deferred for a period beyond
Is there any native title which has any implication for the industry practice shall be referred to the Minister for the
exploration and mining industry? determination of the royalty.
Where the license area falls within tribal land, this may have
implications for a license holder in the sense that unless such Where it appears to the Minister that minerals have been
license holder acquires exclusive rights under section 62 of disposed of otherwise than in an arm’s length transaction, the
the MMA or section 70 of the Petroleum (Exploration and Minister shall determine the royalty payable based on prices
Development) Act, occupiers of land in the license area will ruling in the industry, and the royalty so determined shall be
continue to have customary and tribal land use rights with payable on demand: Provided that the royalty so determined
respect to the license area. Where a license holder requires and paid may be varied by court review or arbitration and the
exclusive use rights under the above sections, it will need to sum of any such variation shall thereupon become payable
negotiate not only with the tribal authority but also with each or repayable as the case may be.
of the relevant occupiers for exclusive use rights.

HEALTH AND SAFETY

What legislation governs health and safety in mining?
The Mines, Quarries, Works and Machinery Act Cap 44:02
regulates and governs health and safety and welfare of
persons engaged in prospecting, mining and quarrying
operations including any works which form part of and are
ancillary to mining and quarrying operations and to make
provision with respect to the inspection and regulation of
mines, quarries, works, and of machinery used in connection
therewith.

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BURKINA FASO
SCPA KAM & SOME

FIRM INFORMATION
Website address : www.scpa-kamsome.bf
Languages spoken : French
Telephone : +226 25 40 88 44 Mobile: +226 70 23 16 83
Address : 01 BP 727 Ouagadougou 01
Contact : Emmanuel Yonli
Email : [email protected]

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BURKINA FASO | SCPA KAM & SOME

RELEVANT AUTHORITIES AND Are there any special rules or restrictions applicable to
foreign applicants?
LEGISLATION There are no special rules or restrictions applicable to
foreign nationals in relation to the holding of equity in mining
What laws regulate mining? projects.
In Burkina Faso, mining is regulated by:
• the mining code which is made up of Loi n° 016-2024/ALT Identify any rights that the State may have. Does the State
portant code minier du Burkina Faso du 18 Juillet 2024 and have any rights to equity in mining projects?
its enforcement regulations; and Concession of an exploitation permit entitles the State
• the companies’ laws. to 15% (article 66 du nouveau code minier) free of charge
participation in the share capital of industrial exploitation
Which Government Bodies administer mining law? companies.
The Government bodies administering mining law are the
ministry in charge of Energy, Mining and Quarries.
PROCESSING AND BENEFICIATION
TYPES OF AND MANNER OF ACQUISITION Are there any requirements to beneficiate minerals
OF RIGHTS mined?
No. However, there is a provision in the MMA which provides
What rights are granted to conduct reconnaissance, Exploitation permit imparts to its holder, within the limits of his
exploration and mining operations? area, in surface and in depth:
• An exclusive right of research and exploitation of the
The research and exploitation of mineral substances in deposits therein, under the conditions set by the mining
Burkina Faso shall be authorized under mining titles or law;
authorizations: • A right to possess, hold, transport or have transported
• Research operations are conducted under a research extracted mineral substances to storage, processing or
permit; loading places;
• Exploitation operations are conducted under an exploitation • A right to display these products on internal and external
permit, which may be industrial or semi-mechanized markets places at prices set by free markets and exports
exploitation; them; and
• Prospecting authorization; • A right to establish in Burkina Faso, installations for
• Artisanal exploitation authorization; and conditioning, processing, refining and transforming mining
• Quarry substances research and exploitation authorizations. substances.

Are there any restrictions on the export of minerals?

OIL AND GAS There are no restrictions on the export of minerals.

What rights are granted to conduct oil and gas exploration

and production? DISPOSALS OF RIGHTS AND
There is no specific law regarding oil and gas exploration CONTROLLING INTERESTS
and production in Burkina Faso. Therefore, any investor
who might be interested is required to negotiate with the Are there any statutory consents required to dispose of
government the right to conduct these activities. rights to explore and mine?
The disposal of the rights to research and mine in Burkina
Faso are transferable subject to the prior authorization of the
INDIGENISATION REQUIREMENTS minister in charge of mining.

Are there any requirements in relation to the holding of Are there any restrictions on disposals of controlling
equity in exploration and mining projects by indigenous interests in entities holding exploration or mining rights?
peoples? There are no restrictions in relation to the disposal of
Burkina Faso’s mining law does not set up any requirement controlling interests in entities holding exploration or mining
in relation to the holding of equity in exploration and mining rights.
projects by indigenous peoples.

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USE OF SURFACE OF LAND INVOLVED IN CONSTITUTIONAL AND ADMINISTRATIVE

EXPLORATION AND MINING ACTIVITIES LAW

What are the rights of the holder of an exploration right or Is there a constitution which has an impact on the rights
mining right to use the surface necessary or incidental to to prospect and mine?
an exploration or mining operation? Yes, the Constitution of June 2, 1991.
The occupation of land for exploration or exploitation
activities shall entitle the owner or traditional occupant of the Are there administrative appeals in the mining law?
land to compensation. The mere passage across the land Yes, all decisions taken by the administration may be
does not entitle the owner or traditional occupant to any appealed.
compensation if no damage is incurred.

ROYALTIES AND TAXES

ENVIRONMENTAL
Are there special rules applicable to taxation of exploration
and mining companies
What legislation governs environmental protection of There are special rules applicable to taxation of exploration
exploration and mining sites? and mining companies in the mining code.
The mining activities shall be conducted in a way that
ensures environmental conservation, management and the Are there any royalties payable to the State over and
rehabilitation of the exploited sites according to standards, above any taxes?
conditions and modalities set by the regulation in force. Yes, there are royalties payable to the State.
Mining titles holders, prior to any field work likely to impair
the environment shall:
• Obtain a feasibility opinion from the ministry in charge of
the environment;
• Set up an environmental conservation and management
program including a rehabilitation plan of the exploited site;
and
• Open an account at the central bank or a commercial bank
and make a deposit in a trust fund to be used to cover the
implementation cost of the environmental conservation
and management program.

Note that the exploitation of radioactive minerals, the use of

radioactive sources must be subject to radiation monitoring.
In addition to these special provisions, mining is subject to
general environmental laws.

NATIVE TITLE AND LAND RIGHTS

Is there any native title which has any implication for the
exploration and mining industry?
There are no native land title implications on exploration and
in the mining industry.

HEALTH AND SAFETY

What legislation governs health and safety in mining?
Health and safety in mining is governed by:
• The mining code; and
• The labour code.

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CAMEROON
D. MOUKOURI AND
PARTNERS

FIRM INFORMATION
Website address : https://moukourilaw.com/
Languages spoken : English, French
Telephone : +237 233 422 544/233 082 334
Address : 357, Rue Toyota, opposite BGFIBank, Bonapriso,Douala, Cameroon
Contact : Barrister Danielle Rose Moukouri Mbango
Email : [email protected]

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CAMEROON | D. MOUKOURI AND PARTNERS

RELEVANT AUTHORITIES AND SONAMINES ensures on an exclusive basis, on the whole

national territory, the operation of the purchase and
LEGISLATION marketing of Gold and Diamonds following the terms and
conditions laid down by regulation, however:
What laws regulate mining? • SONAMINES has no competence over Hydrocarbons which
In Cameroon the law governing the mining system is Law falls under the competence of the National Hydrocarbon
n°2023/014 of the 19 December 2023 instituting the Mining Company (‘SNH”); or
Code. This law repeals provisions of Law N°2016/017 of 14 • over quarries, which fall under the jurisdiction of municipal
December 2016 establishing the mining code. councils as per the General Code on Decentralised
Territorial Collectivities instituted by law no. 2019/024 of
Which Government Bodies administer mining law? 24th December 2019
The Government Bodies in charge of administration of mining
law is the Ministry of Mines, Industry and Technological
Development and SONAMINES (National Mining Company)
created by Decree No. 2020/749 of 14 December 2020.
TYPES OF AND MANNER OF ACQUISITION
SONAMINES is a public company with legal personality and OF RIGHTS
financial autonomy placed under the technical supervision
of the Ministry of Mines and the financial supervision of the What rights are granted to conduct reconnaissance,
Ministry of Finance. exploration and mining operations?
Its mission is to develop and promote the mining sector, and
manage the interest of the State in the mining sector. In this Article 16 (1) of Law n°2023/014 of the 19 December 2023
light, its role includes the following: instituting the Mining Code provides that “Any natural or legal
• To carry out an inventory of mineral deposits in liaison with person may undertake or carry out an activity governed by
other competent administrations and organisations; this law on the public domain, the private domain of the
• To conduct studies in relation to the exploration and State, the national domain or the private domain of private
exploitation of mineral substances in liaison with other individuals.”
competent administrations and organisations;
• To carry out operations of purchase and marketing of Article 16 (2) of Law n°2023/014 of the 19 December 2023
mineral substances on behalf of the State; instituting the Mining Code provides that “Any mining activity,
• To carry out the exploration and exploitation of mineral with the exception of reconnaissance is subject to obtaining
substances; a mining title.”
• To promote the processing and packaging of mineral
substances; Non-industrial licence and non-industrial miner’s card
• To ensure the implementation of measures relating to the The collection of mineral substances can be handled only by
restoration, rehabilitation, and closure of mining sites, in natural persons of Cameroonian nationality. It is subject to
liaison with other competent administrations; the prior issuance of an individual non-industrial miner’s card
• To acquire shares in companies engaged in the exploration, by the authority in charge of mines for a renewable period of
exploitation, marketing, treatment, and processing of two years and a non-industrial mining licence.
mineral substances by means of contribution, partnership,
subscriptions, purchase of securities and/or corporate The non-industrial mining licence is granted by the authority
rights, alliance and/or joint venture; in charge of mines for a renewable period of two years and
• To participate in the negotiation and monitoring of the may be granted within an exploration permit. The holder of
execution of contracts between the State and mining a non-industrial miner’s card may mark out a non-industrial
companies in liaison with other competent administrations; mining perimeter within thirty days from the date the
• collecting and keeping documentation on mineral application for a non-industrial mining licence. (Articles 20 to
substances and mining activities in liaison with the Minister 23 of Law n°2023/014 of the 19 December 2023 instituting
of Mines; the Mining Code).
• To contribute to the promotion of transparency in the mining
sector; Licence for semi-mechanised non-industrial mining of
• To contribute to the promotion of geological and mining precious and semi-precious substances
information in liaison with other competent administrations; The licence for semi-mechanised non-industrial mining of
and precious and semi-precious substances is granted within
• To carry out all commercial, industrial, movable, immovable an exploration permit by the Minister in charge of mines
and financial operations related directly or indirectly to its after the prior approval of the President of the Republic of
corporate purpose or of such a nature as to promote its Cameroon for a period of two years renewable to any legal
development. person governed by Cameroonian law or company where

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the share of Cameroonians makes at least fifty-one percent months with effect from the date of notification of the permit.
of the shareholding. After this deadline, the minister in charge of mines issues a
The licence for semi-mechanised non-industrial mining of formal notice in writing.
precious and semi-precious substances is granted over
a total surface of land that shall not exceed twenty-one The exploration permit authorises its holder to:
hectares and shall be a single polygonal-shaped block • Access and occupy the surface area covered by the
within one or several cadastral units. The State deducts a exploration permit;
combined flat-rate mining tax of twenty-five percent of the • Extract, remove and dispose of rocks, earth, soil or
gross production of every semi-mechanised non-industrial mineral substances, excluding precious and semi-precious
mining site. (Articles 24 to 27 of Law n°2023/014 of the 19 substances in quantities allowed by the approved by the
December 2023 instituting the Mining Code). works schedule;
• Collect and use water situated on or flowing through the
Reconnaissance Permit said activity;
The reconnaissance permit is issued to legal persons • Carry any works deemed necessary for exploration of the
governed by Cameroonian law to conduct systematic and surface area; and/or
mobile surface surveys using geological, geophysical or other • Dispose of precious substances, and stones, found during
methods covering vast areas, for the purpose of detecting exploration works only where the said substances and
traces or concentrations of useful mineral substances. The stones have undergone physical and chemical analyses or
validity of a reconnaissance permit is a renewable period of other laboratory analyses, on authorisation of the minister
one year (Article 28 of the Law n°2023/014 of the 19 December in charge of mines.
2023 instituting the Mining Code). The total surface area for
which a reconnaissance permit is granted shall not exceed The holder of an exploration permit who, based on a pre-
one thousand square kilometers or equivalent in terms of feasibility study, has identified a deposit and has demonstrated
the number of cadastral units and must consist of a single to the Minister in charge of mines that he cannot mine the
polygonal block. (Article 29 of the Law n°2023/014 of the 19 said deposit within the set time limit, may apply for a change
December 2023 instituting the Mining Code). of schedule to continue exploration activities in the same
area for a further non-renewable period of two years.
The reconnaissance permit confers on its holder a
non-exclusive and non-transferable right to carry out Mining Agreement
reconnaissance within the reconnaissance perimeter, the The mining agreement is signed between the State (Minister
right to enter and set up appropriate facilities within the in charge of mines) and an exploration permit holder (by their
reconnaissance perimeter subject to the land, property, legal representatives) with a view to developing, mining, or
environmental and forestry law in force (Article 31 of the Law financing a new mineral deposit. The mining agreement shall
n°2023/014 of the 19 December 2023 instituting the Mining be established on the basis of an exploration permit deemed
Code). The holder shall carry out operations in line with his/ admissible and shall be signed before the granting of a
her works schedule and submit related periodic reports. small-scale or industrial mining permit and shall take effect
from the date of notification of the permit.
Quarrying is subject to obtaining a reconnaissance permit
for new sites or a site access permit for old quarries. (Article Mining Permit
59 (1)). A non-industrial or industrial mining permit is granted by right
to any holder of an exploration permit who has provided
Exploration Permit evidence of the existence of a deposit within his perimeter.
The exploration permit is granted to a legal person subject The granting of a non-industrial or industrial mining permit
to Cameroonian law by the Minister in charge of mines for entails cancellation of the exploration permit within the
the purpose of conducting exploration works; to locate and perimeter covered by the mining permit. Holders may
evaluate mineral deposits and to determine conditions for request, from the Minister in charge of mines, a change in the
commercial mining. originally approved work programme and may benefit from
special incentives when he undertakes to build a processing
It is issued for an initial maximum period of three years and plant for all or part of the mining production.
may be renewed no more than three times, each renewal
not exceeding two years. More than five exploration permits
cannot be issued to the same person. The area of land over OIL AND GAS
which an exploration permit is issued cannot exceed five
hundred square kilometers. The minister in charge of mines
approves the works schedule and the budget proposed What rights are granted to conduct oil and gas exploration
by applicants for an exploration permit. The holder of an and production?
exploration permit can, if need be, request a change of the In Cameroon, oil and gas is subject to:
current works schedule and start exploration in the area • law n°2019/008 of 25 April 2019 to institute the petroleum
covered by the permit within a maximum period of nine code. This law repeals provisions of law n°99-013 of 22
December 1999; and

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• law n°2012-006 of 19 April 2012 to institute the gas code 18 of the law n°2019/008 of 25 April 2019 to institute the
and decree n° 2014/3438/PM of October 27, 2014 setting petroleum code).
the terms of application of Law No. 2012/006 of April 19,
2012 on the Gas code. Authorisation for Prospection
The Authorisation for Prospection deals with areas not
In line with the legislation, the following rights are granted to covered by the Petroleum Contract and may be granted to a
conduct oil and gas exploration: natural person or a legal entity by decision of the Minister in
charge of mines, who prescribes its terms.
The Authorisation for Prospection confers upon its holder
OIL the non-exclusive right to carry out preliminary prospection
work within a specified area. Such authorisation does not
constitute a hydrocarbon mining title and is neither assignable
Concession Contract nor transferable. The State may also grant prospecting
Concluded prior to the granting of a Hydrocarbons Research authorisation solely for technical information collection
Permit, the Concession Contract sets out the rights and purposes. (Articles 27, 28 et 29 of the law n°2019/008 of 25
obligations of the State and the Holder during the period of April 2019 to institute the petroleum code).
validity of the Research Permit and, in case of discovery of
a hydrocarbon deposit which is commercially exploitable, Research Authorisation
during the period of validity of the associated Exploitation Known as the exploration authorisation, attached to a
Concession. petroleum contract may be either a hydrocarbons exploration
permit - in the case of a concession contract, or an exclusive
In the Concession Agreement, the holder assumes the exploration authorisation - in the case of a production sharing
Financing of Petroleum Operations and has Hydrocarbons contract. An exploration authorisation confers upon its holder
extracted during the period of validity of the said Contract, the exclusive right to carry out, at its risk and expense, all
in accordance with the Concession Agreement, subject to hydrocarbons prospection and exploration work within the
rights of the State to collect the fee in kind. (Articles 2 (12, 14, limits of the relevant area, and to an indefinite depth except
43) and 15 of the law n°2019/008 of 25 April 2019 to institute as may be otherwise provided for in the petroleum contract.
the petroleum code). It also confers upon its holder the right to dispose of its share
of hydrocarbons which may be extracted during exploration
Production Sharing Contract work and production tests, subject to a prior declaration to
By the Production Sharing Contract, the State, directly or the Minister in charge of mines.
through a duly mandated public body or unit, contracts
for the services of a holder for the purposes of carrying The exploration authorisation is granted for an initial
out exploration activities, on its behalf and in an exclusive maximum term of three years renewable twice for two
manner, within a specified area. In the event of a discovery years each. However, where necessary such term can be
of a commercial hydrocarbon field, the holder shall be extended to five years in the case of special petroleum
responsible for financing the petroleum operations. operations zones. Such authorisation is granted by decree.
Petroleum operations of a production sharing contract However, in the case of a production sharing contract, the
shall give rise, depending on their nature, to an exclusive signature of the contract by the parties amounts to the grant
authorisation for exploitation covering the exploitation of a of the exploration authorisation. (Articles 30 to 38 of the law
commercial hydrocarbon field. (Articles 2 (13), 16 and 17 of the n°2019/008 of 25 April 2019 to institute the petroleum code).
law n°2019/008 of 25 april 2019 to institute the petroleum
code). Provisional Authorisation to Exploit
The Provisional Authorisation to Exploit confers upon its
Risk Service Contract holder the right to operate productive wells on a provisional
A Risk Service Contract refers to a petroleum contract basis for a maximum period of two years during which the
attached to an exclusive exploration authorization, and as Holder is required to carry out the appraisal and delineation
the case may be, to an exclusive exploitation authorisation of the relevant deposit. The provisional exploitation
whereby the holder is responsible for financing petroleum authorisation lapses with the expiration of the exploration
operations and receives remuneration in cash. Within the authorisation for a specified area for any reason whatsoever
meaning of this code, a contract for the provision of services unless an application in proper form for an exploitation
that does not confer the exercise of exclusive rights for authorisation is filed within the time limit. (Article 39 of the law
hydrocarbon exploration and exploitation shall not be a risk n°2019/008 of 25 April 2019 to institute the petroleum code).
service contract.
Exploitation Authorisation
The State or a duly mandated public body shall, in a Risk The Exploitation Authorisation attached to a Petroleum
Service Contract, confer exclusive hydrocarbon exploration Contract can be either a concession in the case of a
and exploitation rights within a specified area on a qualified Concession Contract, or an exclusive authorisation of
person taking a financial risk. The holder of a Risk Service operation in the case of a Production Sharing Contract. The
Contract shall be remunerated in cash. (Articles 14 (c) and Exploitation Authorisation covers the surface projection of a

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commercial hydrocarbons deposit. It confers upon its holder environmental arrangements applicable to one or more gas
the exclusive right to carry out, at its own risk and expense, exploitation operations during its validity period. The Gas
all petroleum operations within the limits of the pertinent area Agreement is negotiated and signed on behalf of the State
and to an indefinite depth, as well as the right to dispose of by the Minister in charge of the downstream gas sector,
all or part of the hydrocarbons production, in accordance or by any establishment duly authorised to do so, and on
with the provisions of the petroleum contract. behalf of other party (ies) to the agreement, by their legal
representatives. The initial duration of the agreement is
The granting of an Exploitation Authorisation does not confer twenty-five years. However, the agreement may provide for
ownership of the deposits; it creates a right of limited duration a first renewal period not exceeding ten years. (Articles 3, 10
which is not mortgageable and that is distinct from the and 11 of the law n°2012-006 of 19 April 2012 to institute the
ownership of the surface area and said right is assignable and gas code.)
transferable. The initial term of the Exploitation Authorisation
cannot exceed twenty-five years for Liquid Hydrocarbons Concession
and thirty-five years for gaseous Hydrocarbons. Any activity of transportation and distribution of gas is subject
to obtaining a Concession. A Concession is a contract with a
The Exploitation Authorisation is renewed once on view to constructing, operating, maintaining, and developing
application by the holder for a maximum additional term of a gas transportation or distribution network on an exclusive
ten years. To be so entitled, the holder must have fulfilled basis within a given geographical area, for a specific duration,
its obligations and shown evidence of the possibility of and on the basis of specifications.
continuing commercial production of hydrocarbons beyond
the current period of validity. The conditions for such a The Concession is granted by the Minister in charge of the
renewal may be subject to negotiation of the terms of the downstream gas sector for a maximum of twenty-five years
petroleum contract. (Articles 40 to 48 of the law n°2019/008 renewable. The concession is valid only within the area for
of 25 April 2019 to institute the petroleum code). which it is granted. It defines, as the case may be, the rights
and obligations of the transporter, in the management of the
Authorisation for Inland Transport network under its responsibility.
The domestic transportation authorisation is granted
by decree upon an application by a holder during the Licence
term of a valid petroleum contract. Within the territory of The processing, storage, importation and exportation of
Cameroon, a domestic transportation authorisation confers gas, are governed by the licence system. The license
upon its holder the right to transport, using its facilities as is an instrument whereby the Minister in charge of the
well as those belonging to a third party, while maintaining downstream gas sector authorises an operator to exercise
ownership rights, the products of exploitation activities or its under the transparent and non-discriminatory conditions
share thereof, to major centers of consumption, collection, referred to above. A licence is granted for a renewable
processing, storage or loading. (Articles 49 to 56 of the law period of twenty-five years maximum for gas processing
n°2019/008 of 25 April 2019 to institute the petroleum code). and storage, as well as production of liquefied natural gas,
and five years maximum for an importation and exportation
licence. Applications for a licence shall be addressed to
GAS the Minister in charge of the downstream gas sector or any
other public entity so empowered. The license is granted
depending on the applicant, the technical capacities, and
In line with the law n°2012-006 of 19 April 2012 to institute financial resources. (Articles 3, 12 to 15 of the law n°2012-006
the gas code: of 19 April 2012 to institute the gas code.)
• An Eligible Customer is considered a legal entity. The
need for natural gas is continuous and regular, with an Processing Licence
annual gas consumption that exceeds a threshold set by The processing licence confers upon its holder the right to
regulation, along with the right to enter into gas purchase undertake gas processing activities in accordance with the
contracts with a producer, transporter or distributor and, provision contained in its licence and specifications. (Article
for these purposes, has a regulated right of access to the 22 of the law n°2012-006 of 19 April 2012 to institute the gas
transmission and distribution networks; and code.)
• An End Customer is considered a natural or legal person
who purchases gas for their own use and whose annual Storage Licence
consumption is below a threshold set by regulation. The storage licence confers upon its holder the right to build
and operate storage facilities in accordance with provisions
Gas Agreement contained in its licence and in the specifications. The Minister
The gas agreement is concluded between the State, directly in charge of the downstream gas sector may waive the
or through a public body duly authorised for that purpose, obligation for a processing licence holder to have a storage
and one or more gas companies. It shall specify the rights licence for storage facilities associated with its processing
and obligations of the parties relating in particular to the activity. Any operator may use the storage facilities of a
legal, economic and financial, tax, social, technical and

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licence holder on the strength of the principle of open access Code, only legal persons under Cameroonian law operating
against payment at a transparent and non-discriminatory rate in the mining sector shall be granted a mining title. Equally,
which shall be made public after approval by the Minister in non¬industrial mining shall be carried out only by natural
charge of downstream gas sector and determined on the persons of Cameroonian nationality. The Gas and Petroleum
quantities handled and the duration of the service. (Articles Codes do not expressly provide for nationality as a
23 and 24 of the law n°2012-006 of 19 April 2012 to institute requirement to grant a licence, permit or authorisation.
the gas code.)
Identify any rights that the State may have. Does the State
Authorisation have any rights to equity in mining projects?
An authorisation is the instrument whereby the Minister in The State shall hold ten percent of the total share capital
charge of the downstream gas sector or any other public of the small-scale mining company. As resource owner, the
establishment so empowered authorises an operator to carry State shall be entitled to the said shares free-of-charge and
out, under transparent and non-discriminatory conditions, without any encumbrances. Shares held by the State shall
one of the activities cited above. not be subject to dilution in the event of a share capital
increase. However, the State may increase its shares in the
The following activities are subject to authorisation: capital for profit purposes, by mutual consent of the parties,
• s ale of gas; in proportions not exceeding an additional ten percent,
• importation and installation of materials and equipment for and the remaining shares shall be open to subscription by
setting up gas transportation and distribution networks; national foreign investors.
•g  as storage centers, as well as
• measuring and safety devices to be used by operators and There are some conditions for the granting of a mining permit
customers. and these conditions apply automatically. However, the State
may request an addition to the ten percent mentioned above,
The authorisation is renewable for no more than three years. directly or through a public sector company, to increase its
However, the operator is bound to comply with the financial shares in mining companies under the terms and conditions
and technical criteria specific to the activity concerned and agreed by mutual consent of the parties. The aforementioned
defined by a separate instrument. (Articles 25 to 28 of the increase may not exceed twenty-five percent. Shares can
law n°2012-006 of 19 April 2012 to institute the gas code.) be transferred from one shareholder to another, and State
or public body designated for this purpose shall have a
preferential right on such shares. In this case, the State or the
INDIGENISATION REQUIREMENTS designated public body may transfer those shares to private
businesses or to a new strategic partner within a period not
exceeding five years upon an approval of the President of
Are there any requirements in relation to the holding of the Republic of Cameroon by a decree.
equity in exploration and mining projects by indigenous
peoples?
Upon the signing of the mining agreement, the State shall,
after consultation with the affected populations, grant to the PROCESSING AND BENEFICIATION
mining operator the lands necessary for the mining of the
discovery of mineral substances. Are there any requirements to beneficiate minerals
mined?
The indigenous population living around a small-scale Yes. The tapping of spring water, minerals and thermo-mineral
or industrial mine shall be entitled to compensation, water, as well as geothermal deposits, shall be subject to
which amount shall be deducted from the ad valorem tax. prior issuance of a permit by the Minister in charge of mines.
The population living around a semi-mechanised non-
industrial quarry, or an industrial quarry, shall be entitled to The issuance of the permit shall be subject to preliminary
compensation on the quarry product extraction. hydro-geological, geophysical, bacteriological, and physic-
chemical studies to determine the operating conditions and
Moreover, the development of mining resources and industrial water table vulnerability studies, to determine the protection
quarries must include a “local content” component which and security perimeters. The spring water, mineral or thermo-
shall specify the spin-offs of the selected mining and quarry mineral water or geothermal deposit permit shall be issued
projects on Cameroon’s economic, social, cultural, industrial, for a period of five years renewable in periods of three years.
and technological development. Mining companies shall
give priority to the recruitment of Cameroonians: Are there any restrictions on the export of minerals?
• in the majority for positions that require special skills; and Yes. Any mineral substance extracted from Cameroon’s
• ninety percent for positions that do not require special skills. subsoil for export purposes shall be submitted to the
expertise of the laboratory of the Minister in charge of mines
Are there any special rules or restrictions applicable to or any other laboratory approved by the Minister in charge
foreign applicants? of mines.
Yes. According to Article 15 (5) of the Cameroonian Mining

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Regarding gold, all export transactions, excluding those USE OF SURFACE OF LAND INVOLVED IN
carried out on a non-industrial mining site, shall be done on
alloyed gold.
EXPLORATION AND MINING ACTIVITIES

What are the rights of the holder of an exploration right or

mining right to use the surface necessary or incidental to
DISPOSALS OF RIGHTS AND an exploration or mining operation?
CONTROLLING INTERESTS Concerning the prospecting activities, the holder of an
exploration permit is authorised to access and occupy the
Are there any statutory consents required to dispose of surface area covered by the exploration permit, extract,
rights to explore and mine? remove and dispose of rock, earth, soil or mineral substances,
With the exception of non-industrial or semi-mechanised excluding precious and semi-precious substances, in
non-industrial mining licences, any right on a mining title may quantities allowed by the approved works schedules.
result in any form of transaction, notably farm-out, cession,
collateral and pledge. The cession and conveyance of Mining activities under a mining permit enroll the entry and
mining titles to any eligible person shall be free. Any direct occupation of the land respectfully with the undertaking
or indirect transaction on a mining title shall be subject to the related to the mining title concerned, the construction of
prior approval of the minister in charge of mines who shall treatment plant on the said land, the treatment of minerals
have forty-five days to decide. specified in the mining permit on the said land or elsewhere,
and declare other related substances, construction of any
The assignment, farm-out, conveyance, pledge, or mortgage facilities required for the treatment of waste, dumps and
instrument must be entered into the registry. At the time of residue, removal and take rocks, earth and minerals from
registration, a new permit shall be issued, and the rights and the land before and after treatment, collection and use of
obligations attached to the initial permit shall be transferred water found on the said land and flowing through it, for all
to the new holder. purposes relating to mining and treatment operations.

Non-industrial mineral substance mining licences and

reconnaissance permits shall be personal and not open to ENVIRONMENTAL
cession, farm-out, conveyance or pledge. (Articles 98 and 99
mining code) The exploration permit shall be a right open to
What legislation governs environmental protection of
cession, conveyance, farm-out and pledge.
exploration and mining sites?
The small scale mining permit and the industrial mining
Mining Code
permit shall confer on the holder a movable real right on the
Law n°2023/014 of the 19 December 2023 instituting the
substance and an immovable real right within the perimeter
Mining Code in Cameroon provided a chapter known as
during the period of the permit. Such rights shall be open to
chapter V Protection of environment from article 100 to
farm-out and may be pledged and mortgaged respectively.
article 106. Thus, further to the provisions of this law any
mining and quarry operation undertaken must comply with
Are there any restrictions on disposals of controlling
the laws and regulations in force relating to sustainable
interests in entities holding exploration or mining rights?
environment protection and management precisely the
The small scale mining permit and the industrial mining
Law N°96/12 of August 5, 1996, framework law relating to
permit may be subject to capital contributions. In the event
the management of the environment. Moreover, the granting
of cession, the transferee and transferor of a mining right
of mining titles, quarry licences and permits shall be subject
shall seek the opinion of the competent authorities. Except
to the prior conduct of an environmental and social impact
for ordinary stock exchange operations, any direct or indirect
assessment, a hazard and risk assessment and provisions of
transaction on a mining title shall be liable to a capital gains
an environmental management plan.
tax.
Petroleum Code
For petroleum: The domestic transportation authorisation
Law n°2019/008 of the 25 April 2019 instituting the
may be transferred to third parties by any holder subject to
petroleum code in Articles 91 and 92 provides that Holders
prior approval by the Minister in charge of mines.
shall carry out petroleum operations in such a manner as to
ensure, under all circumstances, the conservation of natural
resources. in particular hydrocarbon deposits, and due
protection of essential features of the environment. ln this
respect, holders shall take all the necessary measures to
preserve the safety of persons and property, and protect the
environment, natural surroundings, and ecosystems.

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Gas Code of 02 June 1972, amended and supplemented by Law no.

Law n°2012-006 of 19 April 2012 to institute the gas code 2008/001 of 14 April 2008, provides that ownership shall
in Article 30 provides that operators shall be bound to mean the right guaranteed to every person by law to use,
comply with environmental protection and safety laws and enjoy and dispose of property. No person shall be deprived
regulations in force, as well as with internationally accepted thereof, save for public purposes and subject to the payment
environmental protection and safety standards. of compensation under conditions determined by law. The
right of ownership may not be exercised in violation of the
public interest or in such a way as to be prejudicial to the
NATIVE TITLE AND LAND RIGHTS security, freedom, existence or property of other persons.
Every person shall have a right to a healthy environment.
Is there any native title which has any implication for the The protection of the environment shall be the duty of
exploration and mining industry? every citizen. The State shall ensure the protection and
The existence of a mining title shall not stop the landowner improvement of the environment.
from using the various materials on his land, or inhibit the
use of the various materials within the perimeter of the title. Are there administrative appeals in the mining law?
The operator shall be entitled only to the reimbursement of Administrative penalties are provided for in the context of
expenses made by him or rendered useless by the mining of offences or breach of obligations in the mining or execution
various materials and shall be compensate, if need be, with of the clauses of the chaired book of business. To this effect,
benefits which he can get therefrom. The landowner, or a the Minister in charge of mines may issue a formal notice
member of traditional council or the traditional council shall reminding them of their obligations and give them a time
be entitled to an allowance for the occupation of their land by limit to execute them. If, at the end of the delay, no action is
the holder of a mining title. However, a mere passage on the taken, the Minister in charge of mines shall declare the non-
land shall not give right to an allowance where no damages execution by the person concerned and withdraw the title or
resulted from such passage. Such passage shall be created authorisation. Where the obligation is pecuniary, the minister
under the best conditions of environmental preservation. in charge of mines shall impose on the owner of the right a
penalty corresponding to at least fifty percent of the amount
The occupation where appropriate shall imply the right to of the unfulfilled obligation.
cut wood needed for the mining activity and the use of free
waterfalls and ground water, within the perimeter specified
by title, subject of compensation, taxes or levies. The ROYALTIES AND TAXES
occupation shall be subject to the payment of compensation
except where the owner expressly decides otherwise. The Mining Code
operator shall be bound to repair damages which mining Law n°2023/014 of the 19 December 2023 instituting
works may cause to the owner. Similarly, he shall be bound the Mining Code in Articles 149 and 150 is subject to the
to repair damages caused by neighbouring structures. In implementation of the relevant provisions of common law,
such cases, he shall only be liable to pay compensation the following tax and customs benefits shall be granted to
corresponding to the value of the prejudice caused. any exploration or mining enterprise or company carrying
out its operations. The tax and customs benefit shall be
granted to mining title holders depending on the phases of
HEALTH AND SAFETY the mining project.

What legislation governs health and safety in mining? Gas Code

Chapter IV of Law n°2023/014 of the 19 December 2023 Article 57 provides that all gas companies are liable to taxes
instituting the Mining Code provides a framework in relation as defined by tax code and the Custom Code.
to health, safety and hygiene. According to this law, any
natural or legal person carrying out exploration and mining Petroleum Code
works shall be bound to do so according to standard Law n°2019/008 of the 25 April 2019 instituting the petroleum
practice and in accordance with the laws and regulation in code (Articles 100 to 119) provide that petroleum contract
force, in such manner as to safeguard the health and safety holders and their partner companies under the protocols or
of persons, workers of the mine and property. agreements with the State shall be liable to payment of the
taxes as defined by the Tax Code.

Are there any royalties payable to the State over and

CONSTITUTIONAL AND ADMINISTRATIVE above any taxes?
LAW Yes. Holders of titles and authorisations for mining, petroleum
and gas activities are liable during the validity of their
Is there a constitution which has an impact on the rights contracts, the payment of royalties.
to prospect and mine?
Law no. 96/06 of 18 January 1996 revising the Constitution

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Mining Code
Articles 131 à 133 of the Law n°2023/014 of the 19 December
2023 instituting the Mining Code provides for a value-based
royalty including the ad valorem tax on mining substances
and extraction tax on quarry materials shall be paid monthly
by mining licence or permit holders or during the shipment
of consignments by mining title holders upon filling out a tax
returns at the taxation authority.

Gas Code
Law n°2012-006 of 19 April 2012 to institute the gas code in
Articles 60 and 61 provides for the different operations and
corresponding amounts to be paid as royalties before the
award, renewal or transfer of a concession, a license, or an
authorisation.

Petroleum Code
Law n°2019/008 of the 25 April 2019 instituting the petroleum
code in Articles 103 to 113 provide for the payment of royalties.
The amount to be paid shall be appropriate to production
and shall be specified in the contract.

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EGYPT
MARGHANY ADVOCATES

FIRM INFORMATION
Website address : https://www.marghany.com/
Languages spoken : Arabic, English
Telephone : +20 2 2269 0794/5
Address : 5 Kamal Hassan Ali St., Suite 405, Sheraton Heliopolis, Cairo, Egypt
Contact : Mohamed Abdulazeem
Email : [email protected]

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EGYPT | MARGHANY ADVOCATES

RELEVANT AUTHORITIES AND OIL AND GAS

LEGISLATION
What rights are granted to conduct oil and gas exploration
What laws regAulate mining? and production?
In Egypt, the laws that govern the mining sector are: In Cameroon, oil and gas is subject to:
• Law No. 198 of 2014 on Mineral Resources and its • law n°2019/008 of 25 April 2019 to institute the petroleum
amendments; code. This law repeals provisions of law n°99-013 of 22
• Prime Ministerial Decree No. 108 for the Year 2020 on December 1999; and
issuing the executive regulation of the Law; • law n°2012-006 of 19 April 2012 to institute the gas code
• Law No. 27 of 1981 on Employment of Mining and quarrying and decree n° 2014/3438/PM of October 27, 2014 setting
workers; the terms of application of Law No. 2012/006 of April 19,
• The Mining and Quarries Law No. 66 of 1953, as amended 2012 on the Gas code.
by Law No. 86 of 1956 and its Executive Regulations issued
by Ministerial Decree No. 758 of 1972 (referred to as the In line with the legislation, the following rights are granted to
Fuel Materials Law); conduct oil and gas exploration:
• the Gas Market Activities Law No. 196 of 2017 and its
Executive Regulations issued by the Prime Ministerial
Decree No. 239 of 2018; OIL
• the ‘Oil Pipelines Law’ No. 4 of 1988 and its Executive
Regulations issued by the Ministry of Petroleum Decree No. The MoP is the governmental authority responsible for the
292 of 1988; regulation and development of the oil and gas industry
• Law no. 202 of 2020 on Waste Management; in Egypt. Based on the Egyptian constitution all oil and
• the Environmental Law No. 4 of 1994 (Environmental Law) gas resources are owned and controlled by the state and
and its Executive Regulations issued by Prime Minister therefore, only the state can grant rights for exploration and
Decree No. 338 of 1995; and exploitation of oil and gas resources for investors.
• Article 32 of the Egyptian constitution of 2014.
There are five governmental entities that operate under the
Which Government Bodies administer mining law? guidance of the Ministry:
The governmental body responsible for administrating • The Egyptian General Petroleum Corporation (EGPC);
mining law is the Ministry of Petroleum & Mineral Resources of • The Egyptian Natural Gas Holding Company (EGAS);
Egypt (the” MoP”) along with the Egyptian Mineral Resources • The Egyptian Petrochemicals Holding Company (ECHEM);
Authority (“EMRA”), additionally the Egyptian General • The South Valley Egyptian Petroleum Holding Company
Petroleum Corporation (EGPC) and The Egyptian Natural Gas (GANOPE); and
Holding Company (EGAS) work under the supervision of the • The Egyptian Mineral Resources Authority (EMRA).
MoP.
The EGPC was established in 1976 by virtue of law No.
20, the EGPC is responsible for concluding concession
TYPES OF AND MANNER OF ACQUISITION agreements with international oil companies in the form
OF RIGHTS of a production sharing agreement under the supervision
of the government. Nevertheless, the government grants
concessions in particular areas by virtue of a special law
What rights are granted to conduct reconnaissance,
that is issued by the Egyptian parliament, such law licences
exploration and mining operations?
the Minister of Petroleum to enter into agreements with the
contractors.
If a local company wishes to start operating in the mining
field it has an obligation to obtain a licence for exploration or
There are three popular types of agreements that the
licence for exploitation, the EMRA is the competent authority
governmental entities conclude with oil and gas companies
along with the Minister of Petroleum and natural resources
after the bid rounds:
who is responsible for awarding the licence of exploration
• Concession agreements, which is the oldest form when
and exploitation. The EMRA also conducts bidding rounds,
contracting with an oil and gas company, the state gives
however, the licence scheme is the most dominant.
the foreign company the right to own a vast area in order
to explore and exploit for oil and gas. The period of the
contract can be up to 75 (Seventy-five) years, and the
foreign company shall have ownership over the oil and gas
which is produced in the area of concession, the right to

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sell it inside or outside the state, and other rights that can According to the constitution and laws, there are different
be stated in the concession agreement upon the approval types of ownership with regard to this matter, nevertheless,
of the state and the company. The foreign company the ownership of the land and any natural resources are
becomes the owner of the oil and gas produced while the owned by the state, however, if a local entity obtained a
state only benefits in the form of tax and royalties derived licence for exploitation, they shall have ownership over the
from productive economic activities; ore extracted but they would have to pay a rental value for
• A Production Sharing Agreement is an agreement between their mines and quarries and this rental value is set out per
a foreign oil company and the host state or national oil km2. The rental value for mines under exploration is EGP
company on behalf of the state. The state remains the 25,000 per km2 and for white sand it is EGP 9 per km2. The
owner of the oil and gas produced, unlike in the concession rental value shall be reviewed every three years. Exploitation
agreement. The period of this contract depends on the host licences can be granted for up to a combined total of 15
state and other factors affecting the speed of exploration years.
and production. Therefore, the period of this contract is
negotiable. The host state remains the owner of the oil Are there any special rules or restrictions applicable to
and gas, however this ownership is partial, as there is a foreign applicants?
percentage from the oil produced called “Cost Recovery There are no restrictions with regard to foreign companies
Oil” which is given to the foreign oil company to recover its that operate in the field of mining, however, the previous
risks resulting from the production of the oil. Most contracts rules shall apply to the foreign companies as well as local
have a cost-oil limit of say 50 (fifty)percent of production. ones.
After deducting the Cost Recovery Oil, the remaining oil
produced is called “Profit Oil” and is split between the host Identify any rights that the State may have. Does the State
state and the foreign company, the percentage of the split have any rights to equity in mining projects?
depends on what is stated in the agreement, for example, The state has the right to carry out research and exploitation
60%:-40%. The foreign oil company is obligated not only to of mining ores on its own, and in this case, it has the right to
pay royalties but it is also subject to pay income tax on its request the preservation of the area in which these works
share of the profit oil; will be carried out, provided that a decision is issued for
• Service Contracts: This type can be defined as a foreign the preservation by the competent minister specifying its
oil company agreeing to perform a specific service for the duration, also has the right to incorporate companies to carry
host state in return of a fixed payment. There are different out research, exploitation and mining work, or to have equity
types of payment; in other company that carries out such work provided that
• Buy-Back service contract: The foreign company has the the state ownership shall exceed 25%, however the private
priority to buy a portion of the oil produced at a pre-agreed mining companies would not necessarily have to do so if
discount rate; their mining agreement were ratified by law.
• Technical service agreement: the company performs the
service in return for a fixed fee and does not receive any of
the oil produced; and PROCESSING AND BENEFICIATION
• In a Pure risk service contract, the contracted company
receives a share of the oil or gas revenues, however the
oil company or contractor shoulders all the exploration Are there any requirements to beneficiate minerals
expenses. This means that if no oil or gas is found, the mined?
contractor bears the cost. The host state remains the Yes, there are some requirements, for instance, in the case
owner of the area, as well as having massive control over of mining it’s prohibited to mine any other minerals except for
the operation of the exploration. In this type of contract, the the one the licence has been granted for. It is also prohibited
foreign oil company is a service contractor, it doesn’t share to waive the mining right without notation to the EMRA and
the oil produced with the host state. the fulfilling of the requirements set by law.

In the case of exporting of minerals mined, a licence must

be requested prior to exporting and this licence could be
INDIGENISATION REQUIREMENTS granted twice a year only.

Are there any requirements in relation to the holding of Are there any restrictions on the export of minerals?
equity in exploration and mining projects by indigenous It is not permissible to export any minerals, quarries unless
peoples? an approval from the EMRA has been obtained. Exporting
If a local company wishes to start operating in the mining raw materials of minerals that have strategic and industrial
field it has an obligation to obtain a licence for exploration or value may be prohibited except in the case of value-added
licence for exploitation. The EMRA is the competent authority work or the construction of industrial projects.
along with the Minister of Petroleum and natural resources
who is responsible for awarding the licence of exploration The request for export approval must be submitted twice a
and exploitation. year for the shipment that needs to be exported, and the
request must indicate the quantity, the sale price, the source

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of the crude and to whom it shall be exported. Moreover, area and scientific and educational institutions to conduct
the exported ores of mines and quarries must be extracted scientific experiments related to its activity in a manner that
under a valid licence with a production statement. does not conflict with the main activity of the licensing.

The surface must be used in accordance to the scientific and

DISPOSALS OF RIGHTS AND technical principles, the rules of mines, and the observance
of preventive health standards. The operator must permit
CONTROLLING INTERESTS waterways, canals, drains, pipelines, electricity, wires, roads
and public utilities.
Are there any statutory consents required to dispose of
rights to explore and mine? The operator must suspend and notify the EMRA and
The licensee may not assign, in whole or in part, the rights authorities of all found antiquities, archaeological buildings
and obligations arising from the licence granted to explore or artefacts, whether archaeological or non-archaeological,
and mine and without the written consent of the EMRA. To or geological phenomena within the boundaries of the mine,
be granted this consent an application shall be submitted to immediately after finding them, and may not resume work
the EMRA. without approval.

For this application to be accepted the licensee must: To operate fully, the operator shall pay an annual amount of
• Have fulfilled all his obligations stipulated in the licence at twenty-five thousand pounds in advance for each square
the time of assignment; kilometer of the exploitation area. If there is a fraction of a
• Ensure that the assignee is registered at the EMRA; kilometer, it shall be forced into a full square kilometer. The
• Ensure that the assignee has the requisite technical exploitation of white sand is an exception as an annual
competence and financial ability; advance rent of nine pounds per square meter must be paid.
• Ensure that the assignee abides by the requirements for
the licence;
• Ensure that the assignor pays twice the annual rental value ENVIRONMENTAL
to the EMRA when submitting the assignment request;
• Ensure that the assignee shall provide the insurance
required by the EMRA; and What legislation governs environmental protection of
• Ensure that the assignee shall submit a work program for exploration and mining sites?
the remaining period of the licence term.
In the event of a partial assignment, the assignor and the Law no. 202 of 2020 on Waste Management and Law no. 4
assignee shall be jointly responsible for all the obligations of 1994 on the Environment.
stipulated in the licences towards the EMRA, and in case of
selling all or some of the ownership shares, the EMRA must NATIVE TITLE AND LAND RIGHTS
be notified.
Is there any native title which has any implication for the
Are there any restrictions on disposals of controlling exploration and mining industry?
interests in entities holding exploration or mining rights? No. All ownership rights remain to the hosting state.
Prior to any action regarding the shareholding, the EMRA must
be notified, other than that there are no particular regulations
concerning the disposal of the controlling shareholding in a HEALTH AND SAFETY
company that obtains a mining licence.
What legislation governs health and safety in mining?
Law No. 27 of 1981 on Employment of Mining and Quarrying
USE OF SURFACE OF LAND INVOLVED IN Workers.
EXPLORATION AND MINING ACTIVITIES

What are the rights of the holder of an exploration right or CONSTITUTIONAL AND ADMINISTRATIVE
mining right to use the surface necessary or incidental to LAW
an exploration or mining operation?
According to articles 31, 34, and 50 of the Prime Ministerial Is there a constitution which has an impact on the rights
Decree No. 108 for the Year 2020 on issuing the executive to prospect and mine?
regulation of the Law, the holder of an exploration right Yes, article 32 of the 2014 Egyptian Constitution provides
can use the surface and establish the equipment and the route provided by law for the right to the exploitation of
infrastructure necessary for the exploitation operations. natural resources for a period that does not exceed thirty
During the use of the surface the operator must enable the years. The law also governs the right to exploit quarries, small
EMRA’s employees and inspectors to enter the licensed mines and salinas, or granting public utilities commitment, for
a period not exceeding fifteen years.

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Are there administrative appeals in the mining law?

There are no specific procedures for administrative appeals
relating to mining law.

ROYALTIES AND TAXES

Entities involved in the exploration of oil and gas are subject
to a corporate tax rate of 40.55%. Entities involved in the
exploration and mining field are obliged to pay a corporate
tax rate of 22.5%.

Are there any royalties payable to the State over and

above any taxes?
Entities involved in the mining field shall pay royalties of not
less than 5% and up to 20% from the value of the annual raw
production that the licensee exploits, to be paid in cash and
in local currency at a separate rate determined for each type
of ore extracted. The ER provides for the royalty schedules.
For example, the royalty for gold is 5%, phosphate is 10%,
zinc is 6%, copper is 8%, iron is 9% and white sand is 18%.
The royalty can be paid quarterly, in cash, or by cheque or
e-payment. The royalty is valued as per the local market
prices of the ore at the location of each ore and is determined
by a committee that will be formed by the Ministry.

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EQUATORIAL GUINEA
CLARENCE ABOGADOS
& ASOCIADOS

FIRM INFORMATION
Website address : www.clarenceabogados.com
Languages spoken : French, English
Telephone : +44 (0) 208 036 5004
Address : Av. de los Parques de Africa, Malabo
Contact : Abraham Abia
Email : [email protected]

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EQUATORIAL GUINEA | CLARENCE ABOGADOS & ASOCIADOS

RELEVANT AUTHORITIES AND • The period of provision of services by expatriate personnel

in the hydrocarbons sector in Equatorial Guinea (the “Order
LEGISLATION No. 1/2020”);
• Ministerial Order No. 2/2020, dated 15th of June, on
What laws regulate mining? Petroleum Operations in the Republic of Equatorial Guinea
The mining sector is regulated by Law No. 1/2019, dated 29 issued by the Minister of Mines and Hydrocarbons (the
November, regulating Mining in the Republic of Equatorial “2020 POR”); and
Guinea. This law sets out the legal framework for: • Law No. 1/2021 on Prevention and Fight against Corruption
• Prospecting, exploration, and exploitation activities of in Equatorial Guinea (the “Decree-Law N. 1/2021”).
mineral resources, categorised into four (4) groups: (a)
Metallic and non-metallic minerals, (b) Minerals from Which Government Bodies administer mining law?
industrial rocks and aggregates obtained in quarries, (c) Pursuant to article 36 of the Mining Law, any application
Radioactive and strategic minerals, (d) Precious stones and and procedure for the exploitation or use of mineral raw
metals, and (e) Groundwater. materials, whether at industrial, commercial or artisanal level,
• Prospecting, exploration, and exploitation activities of other as well as the exploitation of aggregates will be exclusively
geological resources, and channeled through the Minister of Mines and Hydrocarbons
• Regulating the activities related to the management of the (MMH), which will submit the proposal to the Government for
aforementioned resources and mining operations. approval, if appropriate.

However, the development and enrichment of radioactive Moreover, article 33 of the Mining Law states that the MMH is
mineral and the processing and use of precious stones or in charge, amongst other things, of:
noble metals are excluded from its scope of application. • Carrying out administrative procedures;
• Negotiating and signing the licenses, authorizations and as
Apart from the specific regulation for mining and oil and many contracts as necessary for this purpose, adjusting the
gas, since the above-mentioned law refers to an activity fiscal terms to the potential of each area; and
that could affect the environment, private property and the • Granting mining contracts to the interested parties for
working conditions of the workers involved on this activity, the prospection, exploration or exploitation of the mining
the following laws are also applicable: resources.

• Decree Law 173/2005 of 8 September 2005 on the With regards to oil and gas, as the regulator, the MMH has the
Environmental Inspections (the “EI Law”); sole right and authority to award contracts on behalf of the
• Law No. 7/2003 dated 27th of November regulating State. These contracts may be awarded after consideration
environmental laws in Equatorial Guinea(the “GEL”); of bidders in a competitive international public tender system
• Law No. 4/2021, dated December 3rd on the General or by direct negotiation.
Labour Law (the “GLL”);
• Law No. 121/2011 dated 5th of September, fixing the minimum
wage, as amended (the “Minimum Wage Law”);
• Law No. 4/2004 dates 28th of October on the General Tax
TYPES OF AND MANNER OF ACQUISITION
Code (the “GTC”); OF RIGHTS
• Fundamental Law of Equatorial Guinea dated 16th of
February 2012 (the “EG Constitution”). What rights are granted to conduct reconnaissance,
• Administrative Procedure Law dated 29th of August 2014 exploration and mining operations?
(the “APL”); Articles 39 and 40.2 of the Mining Law regulate this aspect.
• Forced Expropriation Law of the 16th of December 1954 Mining rights are granted through concessions, licenses,
(the “Expropriation Law”); authorizations, and contracts. And those rights are the below:
• Forced Expropriation Regulation of 26th of December 1957
(the “Expropriation Regulation”); The right of prospection
• Regulation 02/18/CEMAC/UMAC/CM of 21 December 2018 It is the right to carry out in a given area all searches for
(the “FX Regulation”); one or more mining substances, to the exclusion of any other
• Ministry of Mines and Hydrocarbons Order No. 1/2020 person.
dated the 13th of April 2020, limiting Ministerial Order
Number 1/2014, dated 26/9, which approves and adopts The right of exploration
the National Content Regulation enforcing Chapter XX of It is the right to carry out in a determined area all the
the Hydrocarbons Law of the Republic of Equatorial Guinea, necessary tasks, tending to the verification of the existence
Law No. 8/2006 dated 3 November 2006 (the “National of the deposit, the recognition of its characteristics, the
Content Regulation”);

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determination of its volume, quality and degree of mineral Contracts with the State shall be based on the Production
and its economic evolution. Sharing Contract (“PSC”) model approved by the Ministry of
Mines and Hydrocarbons (the “MMH”).
The right of exploitation
It is the right to exploit or produce, in a given area, one or As the regulator, the MMH has the sole right and authority to
more mineral substances and to dispose of the products award contracts on behalf of the State. These contracts may
extracted or separated from the deposit. be awarded after consideration of bidders in a competitive
• Foreign natural or legal persons, in order to be holders of international public tender system or by direct negotiation.
mining rights, must have a fiscal domicile in the national For a company to be awarded a contract with the State, the
territory (Art. 42 of Mining Law). MMH is required to perform a due diligence to ascertain
• The corresponding mining right is granted by means of an that the company has the suitable technical and financial
administrative decision (Art. 44 Mining Law). capability, as well as proven experience in the oil and gas
• There are prerequisites to be eligible for the mining rights: industry.
a) To be in prior possession of the licenses and authorisations
of the competent Ministries and bodies in the fields of It is important to note that a contract signed with the MMH is
the environment, labour and social security, water and not final in terms of its enforcement unless same is ratified
forestry, public works and others. by the President of Equatorial Guinea. Enforcement and
b) Submit to the Ministry the plans, reports and other application of the terms of the contract is also firmly linked
required documents related to the mining activity of to delivery of a written note to the contractor of the said
interest (Art. 45 Mining Law). ratification.
• The selection of companies wishing to engage in mining
activity will be made by public tender, and in areas reserved Furthermore, there are two rights under the Hydrocarbons
for the State, the State reserves the right to make a direct Law: the right to explore and the right to produce.
award.
Contractors are required to submit an annual Work Program
and Budget (“WP&B”) to the MMH for its review and approval
OIL AND GAS in compliance with the terms and conditions of the contract.
Petroleum operations cannot be performed without the
What rights are granted to conduct oil and gas exploration MMH’s prior approval of the annual WP&B.
and production?
Under the EG Constitution, EG can explore and exclusively Mining and hydrocarbon activities may involve the
exploit all mineral resources and riches as well as its expropriation of the land where such activities are to be
hydrocarbons. carried out, which will be decreed by the government in
accordance with current legislation on expropriations, and
Moreover, the Hydrocarbons Law, issued by the Ministry such expropriations may also be requested, on a temporary
of Mines and Hydrocarbons, provides that all hydrocarbon basis, by contractors, in certain cases.
reservoirs that exist in the surface and subsoil areas of EG,

including its inland waters, territorial waters, exclusive INDIGENISATION REQUIREMENTS

economic zone and Continental Shelf are the exclusive
property of the State. It goes further to stipulate that the State Are there any requirements in relation to the holding of
is the holder of all hydrocarbon exploration rights in EG and equity in exploration and mining projects by indigenous
that, in addition to performing petroleum operations on its peoples?
own or through national companies, the State may perform Articles 9 and 10 of the Mining Law only speaks of the
petroleum operations under an association with a contractor. Government’s obligation to adopt measures to guarantee,
promote and stimulate investment by national companies
Ownership of the hydrocarbons may pass to the contractor and Ecuadorian craftsmen in the sector. Nevertheless,
beyond the wellhead if the contract with the State so article 26 (on competence/ability to carry out national
provides. mining operations and activities) of the same law states that
individuals and companies, whether public, autonomous or
The activities of the contractors must be authorized and mixed, that have obtained the corresponding enabling title
regulated by contracts concluded with the State. from the competent authority can engage in national mining
activity and carry out mining operations.
When hydrocarbon production operations are carried out,
ownership of the hydrocarbons passes to the contractor in Decree72/2018, dated 18 April, Reviewing Decree 127/2004,
accordance with the provisions of the contract and, in any dated 14 September, introducing complementary rules
case, beyond the wellhead. to foment and guarantee foreign investment in business
activities only imposes equity restrictions in the oil sector.
At least 35% of the company’s shareholding must be held

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by nationals of Equatorial Guinea with 1/3 of management DISPOSALS OF RIGHTS AND CONTROLLING
control.
INTERESTS
Are there any special rules or restrictions applicable to
foreign applicants? Are there any statutory consents required to dispose of
Article 42 of the Mining Law requires that holders of mining rights to explore and mine?
rights, either individuals or corporations, must have a fiscal Article 31 of the Mining Law contemplates that to transfer rights
domicile in Equatorial Guinea, and shall receive the same granted by means of concession, license or administrative
treatment as that granted to any national individual or authorization under the Mining Law, the holder of such rights
corporation. must previously request and obtain authorization from the
MMH.
Article 82 of the Mining Law. Contractors and their foreign
partners shall be obliged to establish, within two (2) years Are there any restrictions on disposals of controlling
of signing the contract, branches in Equatorial Guinea, interests in entities holding exploration or mining rights?
which shall be governed by Equatoguinean law, register Article 31 of the Mining Law contemplates that to transfer rights
their partners with the Ministry and submit a bank guarantee granted by means of concession, license or administrative
for their registration as well as construct a building for the authorization under the Mining Law, the holder of such rights
installation of their national headquarters. must previously request and obtain authorization from the
MMH.
Article 83 of Mining Law. Obligation of the contactor to sell
minerals to the State in the quantities agreed in the contract
to cover the needs for such minerals in the country, and the USE OF SURFACE OF LAND INVOLVED IN
contractor may therefore only dispose of the surplus for PROSPECTING AND MINING ACTIVITIES
marketing or export.

Identify any rights that the State may have. Does the State What are the rights of the holder of an exploration right or
have any rights to equity in mining projects? mining right to use the surface necessary or incidental to
As per article 13 of the Mining Law, the State is the sole owner an exploration or mining operation?
of all mining resources. Nevertheless, the Mining Law speaks Pursuant to article 47 of the Mining Law, the concession,
of the creation of a public entity that may participate as a license or authorization to grant a mining right will always
partner or shareholder in companies conducting exploration include the general and specific conditions for carrying out
or exploitation of mining resources, as determined in the mining activities, which will also mention the determination of
respective agreements with the State (Art. 16 of Mining Law). the extension and delimitation of the affected area.

In the case of concessions, the administrative resolution shall

determine and delimit the surface area of the concession and
PROCESSING AND BENEFICIATION its extension may not be less than one hundred (100) hectares
or more than thirty thousand (30,000) hectares, depending
Are there any requirements to beneficiate minerals on whether prospecting, exploration or exploitation of
mined? mineral resources is involved (Art. 50 Mining Law).
Additionally, to carry out mining operations, both a sufficient
financial guarantee for the term and in the amount determined In relation to licenses, the area of the license for small and
by the competent authority and an insurance policy must be medium-scale mining will be a closed polygon and defined
obtained. by the UTM coordinates, its surface will vary between six (6)
to one hundred (100) hectares and will be well marked out on
Are there any restrictions on the export of minerals? the ground. Additionally, the small and medium-scale mining
Article 83 of the Mining Law contemplates that the exploitation license confers on the beneficiary exclusive
contractors can only dispose of the surplus (for marketing or rights to extract the mineral substances that are found within
export) remaining from the sale to the State of the quantity the limits of the area object of the license, under certain
of minerals agreed in the contract. Such obligation to sell conditions and to a depth compatible with the safety of the
minerals to the State is to cover the needs of such materials workers, in accordance with mining regulations and other
in the country. provisions that regulate the sector. (Art. 54.1 and 3. Mining
Law).

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ENVIRONMENTAL to the government. Once the appropriate price has been

ascertained, payment of the total amount should be made
to the affected person(s) within a period of six (6) months.
What legislation governs environmental protection of
If not compensated, the affected person has the right
exploration and mining sites?
to demand a revaluation of the property within 4 years
Law No. 7/2003, dated 27 November, Environmental Law of
from the date the correct price was ascertained from the
Equatorial Guinea, and the Mining Law.
Government.
Those interested in carrying out mining operations must
As indicated, the normal procedure requires that payment
submit to the guardian Ministry an environmental impact
be made to the affected person(s) first and then the land is
study and detailed approved environmental protection
expropriated by the State. There is nonetheless an “urgent
and sanitation plan by the Department in charge of the
procedure” which allows the State to expropriate first and
Environment (Art.6 Mining Law).
then make the payment to the affected person.
Mining activities must be carried out by properly managing
Unless the contract with the State provides otherwise, the
waste resulting from said activities and operations, restoring
Courts of Equatorial Guinea would have jurisdiction over any
and rehabilitating the space affected by the aforementioned
disputes that may arise.
activities and operations, and properly dismantling unusable
structures and facilities with their safe closure (Art.7 Mining
In practice, bodies contemplated by the Expropriation Law
Law).
1954 such as the “Jurados de Expropiaciones Provinciales”
do not exist in Equatorial Guinea and therefore, the correct
price (“justiprecio”) is not calculated. Forced expropriations
NATIVE TITLE AND LAND RIGHTS occur by means of a presidential decree which includes:

Is there any native title which has any implication for the (a) a declaration of the public utility or public interest in
exploration and mining industry? proceeding with the expropriation; (
Article 19.2 of the Mining Law says that the State shall b) the dimension of the forcibly expropriated land; and
protect the property and land tenure rights of any person (c) the full names of the registered proprietors of the forcibly
or community over the lands that may be affected by the expropriated land as indicated in the land registry. There
concessions, licenses or administrative authorizations are few instances in which the presidential decrees
granted to a contractor. And prior to granting any right to a stipulate the compensation that the State will pay to the
contractor, the State will carry out forced expropriation of the proprietors of the expropriated land. However, generally,
lands according to the applicable law. the presidential decree is silent on compensation.

The EG Constitution protects property and considers it The proprietors have the right to exploit the land until the
inviolable, except for causes of public utility and payment expropriation takes effect and also indicates that if once the
of the corresponding compensation. In this sense, subject public utility or public interest project has been completed,
to compensation, public utility is the trigger of forced the portion of the expropriated land which has not been
expropriations. There are certain conditions that must be utilised by the State returns to the proprietors. The latter
met before the State may forcibly expropriate property. If have the right to keep ownership of said land and continue
said conditions are not complied with, the expropriation can occupying it.
be declared null and void.
Generally, once the presidential decree has been issued,
To proceed with an expropriation, the State is required to: the affected landowners send an administrative application
letter addressed to the office of the presidency stating their
• Make a declaration of public utility or public interest by law, case and attaching the title deeds of the expropriated land
even if the expropriation is deemed necessary for urban to demonstrate ownership and their national identity cards.
planning. In all other instances, a generic declaration is The office of the presidency then issues an order confirming
used empowering the cabinet of ministers to specify the the rights of the proprietors to the expropriated land and
property that is to be expropriated; applicants follow up on the application. The order stipulates
• Declare the need to occupy the property or acquire rights the compensation per square meter that the office of the
over it on the basis of its public utility or social interest. This presidency has decided will be payable to the proprietor of
need must be indispensable for the expropriation. It is the the expropriated land and issues a cheque for said amount
responsibility of the cabinet of ministers to stipulate what to be paid to the proprietor of the expropriated land by the
is needed to complete the works and the properties that public treasury.
would be affected; and
• Ascertain the correct price (“justiprecio”). The latter is the Finally, mining and hydrocarbon activities may involve the
compensation that must be paid to the person affected by expropriation of the land where such activities are to be
the expropriation. The law gives considerable discretion carried out, which will be decreed by the government in
accordance with current legislation on expropriations, and

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such expropriations may also be requested, on a temporary The Hydrocarbons Law provides for minimum royalties of
basis, by contractors, in certain cases. 13%, which are payable based on the market price under the
applicable contract on a monthly basis or more frequently
and may be requested by the State, via the MMH, in kind
HEALTH AND SAFETY or in cash, fully or partially. But the State’s default position
unless specified otherwise is in cash and in full.
What legislation governs health and safety in mining?
Mainly the Mining Law and the Law No. 4/2021, dated 3
December on the General Labour Law (the “GLL”).

CONSTITUTIONAL AND ADMINISTRATIVE

LAW

Is there a constitution which has an impact upon rights to

prospect and mine?
Article 29 of the Constitution of Equatorial Guinea provides
that mining activities are reserved for the State, and this
aspect is also covered by the Mining Law. And as said above
the EG Constitution protects the private property, except for
causes of public utility and payment of the corresponding
compensation, which is the expropriation.

Are there administrative appeals in the mining law?

Yes, articles 33.11 and 33.18 of the Mining Law empowers the
MMH to solve administrative appeals, and article 37 of the
same law contemplates that such appeals can be regarding
any conflict arising amongst holders of concessions,
contracts, licenses or mining authorizations.

ROYALTIES AND TAXES

Are there special rules applicable to taxation of exploration

and mining companies?
The regime under the Tax Law is applicable to contractors,
in addition to surface fees, which will depend on the type of
contract, and royalties.

Royalties are defined by the Hydrocarbons Law as the State’s

entitlement to the hydrocarbons produced and saved from a
contract area and not utilised in petroleum operations, based
on percentages calculated as a function of daily production
rates as determined in accordance with article 58 of the
Hydrocarbons Law and the applicable contract.

Are there any royalties payable to the State over and

above any taxes?
From the first year of production, the contractor shall pay an
annual royalty of 3% to the State, which will be calculated
based on the gross market value of the ore depending on
the type of ore and in accordance with the percentages set
out in the respective production contract.

The Mining Law also provides that the MMH may negotiate a
different royalty only in exceptional cases.

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GHANA
BENTSI-ENCHILL,
LETSA & ANKOMAH

FIRM INFORMATION
Website address : www.bentsienchill.com
Languages spoken : English
Telephone : + 233 30 220 8888
Address : 4 Momotse Avenue, Adabraka, Accra
Contact : Seyram Dzikunu
Email : [email protected]; [email protected];
[email protected]

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GHANA | BENTSI-ENCHILL, LETSA & ANKOMAH

RELEVANT AUTHORITIES AND • Minerals and Mining (Licensing) Regulations, 2012 (LI 2176),
which prescribes the procedures for obtaining licences,
LEGISLATION maintaining licences and transferring licences;
• Minerals and Mining (Explosives) Regulations, 2012 (LI 2177),
What laws regulate mining? which regulates the use of explosives in the sector;
The laws which regulate mining in Ghana are constitutional • Minerals and Mining (Health, Safety and Technical)
and statutory. Regulations, 2012 (LI 2182), which regulates safety, health
and technical operation parameters in the industry;
The 1992 Constitution, the highest legal authority, mandates • Minerals and Mining (Ground Rent) Regulations, 2018 (LI
in Article 268, Parliamentary ratification of all transactions, 2357) which prescribes the ground rent payable by mineral
contracts or undertakings involving the grant of rights or right holders;
concessions for the exploitation of any mineral, water or • Minerals and Mining (Mineral Operations – Tracking of
other natural resource of Ghana. Key legislation relating to Earth Moving and Mining Equipment) Regulations, 2020 (LI
the sector includes the: 2404) which prescribes requirements for the registration
and tracking of earth moving and mining equipment used
• Minerals Commission Act, 1993 (Act 450), which establishes in mineral operations to ensure that they are only used in
the Minerals Commission, which is the regulatory body the specific area subject to the registration;
for the mining sector, provides for its composition and
prescribes its functions relating to the regulation and Minerals and Mining (Local Content and Local Participation)
management of the utilisation of minerals; Regulations, 2020 (LI 2431) which prescribes the minimum
• Minerals and Mining Act, 2006 (Act 703) (“Minerals and requirements for local content and local participation in the
Mining Act”), which is the parent legislation that consolidates mining industry value chain;
the law relating to minerals and mining;
• Minerals and Mining (Amendment) Act, 2015 (Act 900), • Environmental Protection Agency Act, 1994 (Act 490), which
which amends the Minerals and Mining Act in areas such consolidates the law relating to environmental protection;
as royalty payments and small-scale mining; • Environmental Assessment Regulations, 1999 (LI 1652),
• Minerals Development Fund Act 2016 (Act 912), which which prescribes the procedure for acquiring and
establishes a Minerals Development Fund to address the maintaining an environmental permit;
development challenges affecting mining communities • Environmental Protection (Mining in Forest Reserves)
by setting aside 20% of mineral royalties received by the Regulations, 2022 (LI 2462) which prescribes procedures
Government for development projects; for the environmental management of mining activities in
• Minerals Income Investment Fund Act, 2018 (Act 978) which forest reserves; and
establishes the Minerals Income Investment Fund (“Fund”) • Income Tax Act, 2015 (Act 896), which imposes a ‘mineral
to manage the equity interests of the Republic in mining income tax’ on income derived from mining operations and
companies, to receive mining related income due the establishes the framework for the tax.
Republic, including mineral royalties and to provide for the
management and investment of the assets of the Fund; Which Government bodies administer mining law?
• Minerals and Mining (Amendment) Act, 2019 (Act 995) which The Ministry of Lands and Natural Resources is the sector
amends the Minerals and Mining Act to cater for increased ministry with oversight responsibility for the mining sector.
penalties for buying or selling minerals without a licence
and for engaging in mining contrary to the provisions of the The Minerals Commission is the main regulatory body
Minerals and Mining Act; that administers mining laws in Ghana. Mandated by the
• Minerals (Royalties) Regulations, 1987 (LI 1349), which Constitution and set up by the Minerals Commission Act, 1993
provides for the payment of royalties by licence holders; (Act 450), the Minerals Commission is responsible for the
• Minerals and Mining (General) Regulations, 2012 (LI 2173), regulation, management of the utilisation and co-ordination
which prescribes guidelines for the mining industry on of policies in relation to mineral resources. An application
matters such as the disposal of minerals and general for a mineral right and licences to deal in minerals must be
requirements for reconnaissance, prospecting and mining submitted to the Minerals Commission for processing.
operations;
• Minerals and Mining (Support Services) Regulations, 2012 Another major regulatory body is the Environmental
(LI 2174), which regulates entities that provide auxiliary Protection Agency (“EPA”), which is the regulator for all
services to the mining sector; activities that have an impact on the environment. The EPA
• Minerals and Mining (Compensation and Resettlement) is mandated to issue environmental permits and every
Regulations, 2012 (LI 2175) which regulates the payment of undertaking in the mining industry is required to register with
compensation for lands, crops and buildings affected by the EPA and receive an environmental permit before it can
mining operations; commence operations. An Environmental Impact Assessment

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is mandatory for activities including mining and processing of Restricted licences, which are licences for the reconnaissance,
minerals in areas where the mining lease covers a total area prospecting and mining of industrial minerals such as clay,
in excess of 10 hectares. basalt, granite and sand, are mainly granted to Ghanaian
citizens. Nevertheless, a non-citizen may apply for a mineral
right in respect of industrial minerals provided the proposed
TYPES OF AND MANNER OF ACQUISITION investment in the mineral operations is US$ 10 million or
above. If the holder of the mineral right fails, within a period
OF RIGHTS specified

What rights are granted to conduct reconnaissance, in the holder’s programme of mineral operations which is
exploration and mining operations? given with the application, or further time permitted by the
Reconnaissance Licence - a reconnaissance licence confers Minister responsible for mines (“Minister”), to expend an
on the holder, or its authorised person, the exclusive right to amount equal to or greater than US$ 10 thousand (sic), the
carry on reconnaissance in the reconnaissance area for the Minister may suspend or cancel the mineral right.
minerals to which the licence relates and to conduct other
ancillary or incidental activity. For that purpose, the licensee A mining company whose planned capital expenditure
or its authorised person may erect camps or temporary exceeds the prescribed threshold must list at least 20% of its
buildings in the reconnaissance area. The licensee cannot, equity on the Ghana Stock Exchange (“GSE”) within 5 years
however, engage in drilling or excavation. after commencement of mining operations. The current
threshold is USD 100,000,000.
Prospecting Licence
A prospecting licence gives a licensee the right to enter the Are there any special rules or restrictions applicable to
land to which the licence relates and: foreign applicants?
• Prospect for the mineral in respect of which the licence is There are restrictions on the grant of a small-scale mining
granted; licence to a foreigner – a foreigner cannot engage in small
• Make boreholes and excavations that may be necessary for scale mining in Ghana and will, therefore, not be granted a
the prospecting purposes; small-scale mining licence.
• Erect camps and put up temporary buildings necessary for
the prospecting operations; and The Ghana Investment Promotion Centre Act, 2013 (Act
• Conduct other activities ancillary or incidental to the 865) (“GIPC Act”) mandates all enterprises in which foreign
prospecting operations. participation is permitted (including mining), to register
with the Ghana Investment Promotion Centre. Under the
Mining Lease GIPC Act, special rules relate to capital requirements for
A mining lease authorises the holder, its agents, employees operations. Where a foreign national enters a joint enterprise
and properly authorised persons to enter the lease area and: with a Ghanaian citizen, the foreign partner must invest not
• Conduct mineral operations including mining for the less than US$ 200,000 in cash or capital goods relevant to
specified minerals of the mining lease; the investment or a combination of both, by way of equity
• Erect equipment, plants and buildings for the purposes participation and the Ghanaian partner must not have less
of mining, transporting, dressing, treating, smelting or than 10% equity participation in the joint enterprise. Where
refining the specified minerals recovered during the mining the enterprise is wholly owned by the foreigner, the foreigner
operations; must invest a foreign capital of not less than US$ 500,000
• Take from the land, the specified minerals and dispose of in cash or capital goods relevant to the investment or a
them in accordance with the holder’s approved marketing combination of both by way of equity capital in the enterprise.
plan;
• Stack or dump a mineral or waste product as approved in As stated earlier, for the grant of licences for the
the holder’s Environmental Impact Statement; and reconnaissance, prospecting and mining of industrial
• Conduct other incidental or ancillary activity. minerals, a foreigner may only apply if its proposed
investment in the mineral operations is US$ 10,000,000 or
above.
INDIGENISATION REQUIREMENTS
The State’s rights to equity in mining projects
Are there any requirements in relation to the holding of Where a mineral right is for mining or exploitation, the
equity in exploration and mining projects by indigenous Government is entitled to a 10% free carried interest in the
peoples? rights and obligations of the mineral operations. This does
Articles 9 and 10 of the Mining Law only speaks of the Small not preclude the Government from any additional or other
scale mining is exclusively reserved for Ghanaians; hence a participation in mineral operations that may be agreed with
small-scale mining licence will only be granted to a Ghanaian. the holder. The free carried interest is held and managed
by the Minerals Income Investment Fund on behalf of the
Government.

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The Minister may also give written notification to a mining Restrictions on disposals of controlling interests in entities
company to issue to the Republic a special share in the holding exploration or mining rights
company for no consideration. The special share constitutes There are restrictions on the disposal of controlling interests
a separate class of shares and has the rights that the Minister in entities which hold mining rights. A person may not
and the company will agree on. In the absence of the become a controller of a mining company unless:
agreement, the special share has the following rights: • The person gives the Minister written notice of his intention
• The share is a preference share and carries no right to vote to become a controller of the mining company; and
but the holder is entitled to attend and speak at a general • The Minister has, within 2 months after being served with
meeting of the members of the company or a separate the notice, given the person written notice that there is no
meeting of the holders of a class of shares in the company; objection to the person becoming a controller of the mining
• The share may only be issued to, held by or transferred company; or the 2 month period has elapsed without the
to the President, the Minister or another person that the Minister having served the person with a written notice of
President or Minister may authorise in writing; objection.
• The share does not confer a right to participate in the
dividends, profits or assets of the company or a return of The notice served to the Minister loses effect if the person
assets in a winding-up or liquidation of the company; fails to acquire the controlling interest within 1 year from
• The holder of the share may require the company to the date of service of the notice. If the Minister considers
redeem the share at any time for no consideration or for a on reasonable grounds that the public interest would be
consideration determined by the company and payable to prejudiced by the person becoming a controller of the mining
the holder on behalf of the Republic; and company, the Minister will serve a written notice of objection
• A mining company, which for a period of 2 months, fails to on the person. If a person becomes a controller without
comply with a notice to issue a special share commits an giving the notice, the Minister will serve the person with a
offence and is liable on summary conviction to a fine of not written notice of objection within 6 months after becoming
more than the cedi equivalent of US$ 10,000. aware of that fact.

The Government also has the right of pre-emption of all Contravening these requirements is an offence punishable
minerals raised, won or obtained in Ghana and from any area on summary conviction to a fine of not more than the cedi
covered by territorial waters, the exclusive economic zone or equivalent of US$ 20,000 or imprisonment for a term not
the continental shelf and products derived from the refining more than 3 years or both.
or treatment of these minerals.
When a person becomes or remains a controller after
being served with a notice of objection, the Minister, acting
PROCESSING AND BENEFICIATION on the recommendation of the Minerals Commission may,
by Executive Instrument, order that specified shares must,
until further order is made, be subject to one or more of the
Are there any requirements to beneficiate minerals following restrictions:
mined? • A transfer of, or agreement to transfer, those shares or, in
There are no requirements to beneficiate minerals mined. the case of un-issued shares, a transfer of or agreement to
transfer the right to be issued with them shall be void;
Restrictions on the export of minerals • No voting rights shall be exercisable in respect of the
Minerals cannot be exported, sold or otherwise disposed of shares;
without a licence granted by the Minister for that purpose. • No further shares shall be issued in right of them or in
A licence issued is not transferable. Shipment of rough pursuance of an offer made to their holder; and/or
diamonds to and from Ghana is subject to prescribed • Except in a liquidation, no payment shall be made for sums
rules and regulations and must be in accordance with the due from the mining company on the shares, whether in
Kimberley Process Certification Scheme. respect of capital or otherwise.

The Minister may also apply to the High Court for the
DISPOSALS OF RIGHTS AND sale of specified shares.
CONTROLLING INTERESTS The specified shares subject to these measures are:
• Shares or rights to be issued with shares in the mining
company of which the person in question is a controller
Statutory consents required to dispose of rights to explore
which are held by the person or an associate of the person
and mine
and which were not held immediately before the person
A mineral right cannot, in whole or in part, be transferred,
became a controller; and
assigned, mortgaged or otherwise dealt in, without the prior
• Where the person in question became a controller of a
written approval of the Minister. The approval must not be
mining company as a result of the acquisition by the person
unreasonably withheld or given subject to unreasonable
or an associate of the person of shares in another company,
conditions.
to all the shares or rights to be issued with shares in that

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company which are held by the person or an associate of right in the area. However, where compensation has been
the person which were not held before the person became paid by the holder to the affected persons or claimants
the controller. outside the mining area but within the lease area, a person
or lawful occupier of land within that area shall not retain the
A person who ceases to be a controller of a mining company right to graze livestock, cultivate the land or erect a building
must notify the Minister in writing prior to or within 14 days of or structure without the consent of the holder of the mining
ceasing to be a controller. lease.

A mining company must also give written notice to the

Minister of the fact that a person has become or ceased to ENVIRONMENTAL
be a controller of the company. The notice should be given
within 14 days of the mining company becoming aware of
the relevant facts. Failure to give the required notice makes What legislation governs environmental protection of
the company liable to an administrative penalty of the cedi exploration and mining sites?
equivalent of US$ 1,000 payable to the Minerals Commission. Environmental protection of exploration and mining sites
The Minister may also, whenever considered desirable in is generally governed by the Minerals and Mining Act, the
the public interest, appoint one or more competent persons Environmental Protection Agency Act, 1994 (Act 490) and
to investigate and report on the ownership or control of a the Environmental Assessment Regulations, 1999 (LI 1652)
mining company. and Environmental Protection (Mining in Forest Reserves)
Regulations, 2022 (LI 2462). Before undertaking an activity
or operation under a mineral right, the holder of the mineral
right must obtain the necessary approvals and permits
USE OF SURFACE OF LAND INVOLVED IN required from the Forestry Commission, Environmental
PROSPECTING AND MINING ACTIVITIES Protection Agency for the protection of natural resources,
public health and the environment and a water use right from
What are the rights of the holder of an exploration right or the Water Resources Commission.
mining right to use the surface necessary or incidental to
an exploration or mining operation? The Environmental Assessment Regulations, 1999 (LI 1652)
The rights of the holder of a mineral right are subject to protect the environment by ensuring that a mining company
limitations on surface rights that apply under an enactment conducts an Environmental Impact Assessment of its
or reasonably determined by the Minister. activities before it can be granted an Environmental Permit
with which to conduct its business. Once an Environmental
The holder of a mining lease has the right to, within 30 days Permit is granted, the mining company must submit an
after the grant of the mining lease, designate an area within annual environmental report in respect of its undertaking to
the lease area as a mining area. This should be done with the the Environmental Protection Agency (EPA).
approval of the Minerals Commission and upon notification
and payment of the appropriate compensation to the The Environmental Protection (Mining in Forest Reserves)
affected persons. Regulations, 2022 (LI 2462) provide the criteria to address
environmental constraints, challenges and issues related to
The holder of a mining lease may, from time to time, vary mining within forest reserves and regulates the environmental
the boundaries of the areas designated as a mining area, management of mining activities in forest reserves through
subject to the approval of the Minerals Commission and efficient uses of natural resources and effective stakeholder
to the notification of affected persons and the payment of consultations. Civil society has raised concerns about
appropriate compensation to said affected persons. Once the usefulness of this legislation and has pressured the
compensation has been paid, no one can exercise surface government to revoke this law.
rights in such a designated area. However, the holder of a
mining lease cannot restrain or restrict any lawful occupier of
land outside the mining area from exercising surface rights NATIVE TITLE AND LAND RIGHTS
over that area.
Is there any native title which has any implication for the
Further, the owner or lawful occupier of land within a mining exploration and mining industry?
area needs the consent of the holder of the mining lease (or There are no native land titles with implications for the
if the consent is unreasonably withheld, the consent of the exploration and mining industry. However, the mineral right
Minister) before erecting a building or a structure. holder must at least 30 days before commencing operations
in a district, give written notice to the communities concerned
A lawful occupier of land within an area subject to a mineral on entry into the district to conduct mineral operations.
right retains the right to graze livestock on or cultivate the
surface of the land if the grazing or cultivation does not
interfere with the mineral operations of a holder of a mineral

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HEALTH AND SAFETY the parties, by reference to alternative dispute resolution

procedures to reach an amicable settlement. Thus, mutual
What legislation governs health and safety in mining? discussions are offered as a first option for dispute resolution.
A number of legislations control different aspects of health
and safety in mining.
ROYALTIES AND TAXES
The Minerals and Mining (Explosives) Regulations, 2012
(LI 2177) regulate the conveyance, storage, possession, Are there special rules applicable to taxation of exploration
manufacture and use of explosives for mining and substances and mining companies?
used for the manufacture of explosives. Generally, mining companies are subject to a higher corporate
income tax rate of 35%, and to the general withholding tax
The Minerals and Mining (Health, Safety and Technical) rates. In calculating the income of a mining company for a
Regulations, 2012 (LI 2182) is a comprehensive legislation year of assessment, gains from the realisation of a capital or
with extensive provisions on health and safety, including investment asset are included and taxed in accordance with
ventilation and dust prevention, the management of cyanide, the provisions of the Income Tax Act, 2015 (Act 896) (“ITA”).
discharge of dust, gas and fumes into the atmosphere,
conveyance, fire protection, first aid, provision of health Other taxes include:
facilities, mine rescue brigades and medical examination of • Value Added Tax (VAT) at a rate of 15% of the value of a
workers. taxable supply of goods and services;
• National Health Insurance Levy at the rate of 2.5% of the
The Environmental Assessment Regulations, 1999 (LI 1652) value of a taxable supply of goods and services;
protect the public health and safety by ensuring that a mining • Ghana Education Trust Fund Levy at the rate of 2.5% of the
entity conducts an Environmental Impact Assessment of its value of a taxable supply of goods and services;
activities before it can be granted an Environmental Permit • COVID-19 Health Recovery Levy at the rate of 1% of the
with which to conduct its business. Once an Environmental value of a taxable supply of goods and services; and
Permit is granted, the mining entity must submit an annual • Growth and Sustainability Levy at the rate of 1% of gross
environmental report in respect of its undertaking to the production (gross revenue from the sale of minerals).
Environmental Protection Agency (EPA).
A supply of machinery and parts of machinery specifically
The Fire Precaution (Premises) Regulations, 2003 (LI designed for use in mining as specified in the mining list,
1724) governs fire safety by requiring that a fire certificate are exempt from VAT and other levies. The mining list is a
be acquired for mining premises before work can be catalogue of mining machinery, equipment and consumables
commenced. The certificate is revocable if the fire agreed by the Minerals Commission, the Ghana Revenue
precaution measures on the premises cease to conform to Authority, and the Ghana Chamber of Mines to be exempted
the requirements of the Regulations. or charged a concessionary rate for customs import duties
and VAT.

CONSTITUTIONAL AND ADMINISTRATIVE The Minister may also, as a part of a mining lease, enter into
LAW a stability agreement with the holder of the lease to ensure
that the holder will not, for a period not exceeding 15 years
from the date of the agreement, be adversely affected by
Is there a constitution which has an impact upon rights to
subsequent changes to:
prospect and mine?
Constitution of the Republic of Ghana (“the Constitution”)
• The level of and payment of customs or other duties
requires parliamentary ratification of all transactions,
relating to the entry materials, goods, equipment and any
contracts or undertakings involving the grant of rights or
other inputs necessary to the mining operations or project;
concessions by or on behalf of any person including the
• The level of and payment of royalties, taxes, fees and other
Government of Ghana, to any other person or body of
fiscal imports; and
persons for the exploitation of any mineral or other natural
• Laws relating to exchange control, transfer of capital and
resource of Ghana.
dividend remittance.
Administrative appeals in Mining Law
The stability agreement is subject to parliamentary ratification.
There are no specific laid down procedures for administrative
appeals. However, mutual discussions to resolve disputes are
A mining company may apply for tax exemptions by following
encouraged by the Minerals and Mining Act. Where a dispute
the procedure stipulated under the Exemptions Act, 2022
arises between a holder of a mineral right and the Republic
(Act 1083) (Exemptions Act). Any grant of tax exemption that
in respect of a matter expressly stated by the Minerals and
does not follow the Exemptions Act is null and void. Also, a
Mining Act to be referable for resolution, all efforts should
person cannot negotiate or enter into an agreement to grant
be made through mutual discussion and if agreed between
an exemption, except with the prior written approval of the

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Minister of Finance. The Minister of Finance requires the

approval of Cabinet and Parliament to grant an exemption.

Royalties payable to the State over and above any taxes

Currently, a holder of a mining lease, restricted mining lease
or small-scale mining licence must pay royalty in respect of
minerals obtained from its mining operations to the state at
the rate to be prescribed by the Minister. The existing flat
royalty rate of 5%, which was introduced by section 1 of
the Minerals and Mining (Amendment) Act, 2010 (Act 794),
remains the same until such time as the rate is altered or
prescribed.

Annual ground rent, as may be prescribed must also be paid

to the owner of the land or successors and assigns of the
owner except in the case of annual ground rent in respect of
mineral rights over stool lands, which should be paid to the
Office of the Administrator of Stool Lands.

An annual mineral right fee is also payable to the Minerals

Commission, at the rate prescribed in the Minerals and
Mining (Licensing) Regulations, 2012 (LI 2176).

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KENYA
KAPLAN &
STRATTON

FIRM INFORMATION
Website address : www.kaplanstratton.com
Languages spoken : English, Swahili
Telephone : +254 (20) 284 1000/273 3919
Address : 9th Floor Williamson House, 4th Ngong Avenue, Upper Hill, Nairobi, Kenya
Contact : Ken Kamaitha
Email : [email protected]

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KENYA | KAPLAN & STRATTON

RELEVANT AUTHORITIES AND All other prospecting or mining operations that do not have
the above characteristics of a small-scale operation are
LEGISLATION classified as large-scale operations.

What laws regulate mining? Large Scale Operations

The primary legislation regulating mining in Kenya is the The following rights may be granted with regard to large
Mining Act, Cap. 306, Laws of Kenya (“Mining Act”) and the scale operations:
regulations made under the Mining Act. • Reconnaissance Licence - this licence grants the holder
a non-exclusive right to carry out reconnaissance activities
Which Government Bodies administer mining law? on the area specified in the licence. The licence is valid
The Cabinet Secretary for mining is responsible for the for a period of up to two years and covers an area not
general administration of the Mining Act and is supported in exceeding five thousand contiguous blocks. Any mineral
that function by the Mineral Rights Board, the Directorate of obtained under this licence is deemed the property of the
Mines and the Directorate of Geological Survey. National Government and cannot be removed from Kenya
without the written consent of the Cabinet Secretary.
The Mineral Rights Board advises and gives recommendations • Prospecting Licence - this licence grants the holder the
to the Cabinet Secretary on various matters in the exclusive right to carry out prospecting operations (defined
administration of the Mining Act. The Director of Mines is as operations carried out offshore and on land to search for
responsible to the Cabinet Secretary for promoting and and define the extent of a mineral deposit and to determine
regulating and supervising activities related to exploitation its economic value). The licence covers an area not
of minerals among other roles and functions. The Director of exceeding one thousand five hundred contiguous blocks
Geological Survey is responsible to the Cabinet Secretary for and may be granted for a period of up to three years. Any
providing geoscience expertise and data to the government mineral obtained under the licence is deemed the property
on all matters related to geology and the development of the National Government and is not to be disposed or
of minerals, undertaking geological and related surveys, removed from Kenya without the written consent of the
investigation and mapping aimed at determining the mineral Cabinet Secretary. The licence may be renewed for a
potential of Kenya as well as supporting the Director of further period of three years and may only be renewed
Mines in the administration and supervision of prospecting twice.
and mining operations among other roles and functions. • Retention Licence - this licence may be obtained where
the holder of a prospecting licence has identified a mineral
deposit that is of potential commercial significance within
TYPES OF AND MANNER OF ACQUISITION the prospecting area but the deposit cannot be developed
OF RIGHTS immediately due to temporary factors that are beyond the
reasonable control of the holder of the licence. The holder
has the exclusive right to conduct prospecting operations
What rights are granted to conduct reconnaissance, in the retention area and apply for a mining licence in
exploration and mining operations? respect of all or a part of the retention area. The licence is
Rights granted depend on whether a prospecting or mining issued for a period not exceeding two years and may be
operation is classified under the Mining Act either as a large- renewed for a further period not exceeding two years. The
scale operation or a small-scale operation. Separate from Cabinet Secretary may issue a written notice to a holder
these, the Mining Act also provides for rights that may be of a retention licence to apply for a mining licence before
granted to artisanal miners, that is, miners using traditional or the expiry of the period stipulated in the licence, if based
customary ways and means of mining. on an independent report it has become technically and
commercially viable for the mineral deposit, subject to the
A prospecting or mining operation is classified as a retention licenced to be mined.
small scale operation where, in the case of prospecting • Mining Licence - this licence may be granted to a holder of
operations, the proposed prospecting area does not a prospecting licence who has given notice to the Cabinet
exceed twenty contiguous blocks; or, in the case of mining Secretary of the discovery of minerals within the area
operations, the proposed mining area does not exceed two covered under a prospecting licence and who has also
contiguous blocks; or the prospecting or mining operations satisfied the application requirements prescribed under
do not employ specialised prospecting, mechanised mining the Mining Act. A mining licence grants the holder the
technologies, chemicals including mercury and cyanide or exclusive right to carry out mining operations in respect of
explosives; or the proposed prospecting or mining operations the mineral or mineral deposit specified in the licence and
do not involve an investment or expenditure which exceed within the area specified in the licence. A mining licence
an amount as may be prescribed by the Cabinet Secretary. may be issued for a period not exceeding twenty-five years
or the forecast life of the mine, whichever is shorter. The

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holder of the licence may apply for renewal of the licence Operational permits would be required for any of the
at least one year before the expiry of the licence and the following activities:
licence may be renewed for a period not exceeding fifteen • Drilling a well;
years or the remaining life of the mine, whichever is shorter. • Developing and producing petroleum;
The holder of this licence is required to notify the Cabinet • Constructing petroleum gathering systems in the field;
Secretary if any new minerals are discovered and which • Building a crude oil storage facility;
minerals (if any) do not relate to the current licence, within • Plugging or abandoning an individual well;
30 days of discovery. • Operating an underground injection control well;
• Converting an individual well to an underground injection
Small Scale Operations control well;
The following rights are available with regard to small scale • Decommissioning or abandoning an upstream petroleum
operations: facility;
• Reconnaissance Permit - this permits the holder non- • Developing, building, constructing or operating a gas
exclusive rights to conduct reconnaissance of the minerals processing facility; or
in the area covered under the permit. • Remediating and reclaiming upon the abandonment of a
• Prospecting permit - this may be issued for a period of up well or facility.
to five years and may be renewed for a further period of up
to five years. The area covered by this permit should not
exceed twenty-five contiguous blocks. INDIGENISATION REQUIREMENTS
• Mining permit - this may be granted to a holder of a
prospecting permit to carry out mining operations on a
small-scale in an area that does not exceed two contiguous Are there any requirements in relation to the holding of
blocks. The permit may be granted for a period of five years equity in exploration and mining projects by indigenous
and may be renewed for a further period of five years. peoples?
The holder of a mining licence whose planned capital
Artisanal Miners Operations expenditure exceeds an amount prescribed by the Cabinet
• Artisanal Miners Permit - this licence may only be granted Secretary would be required to list at least twenty percent of
to persons engaged in traditional and customary mining its equity on a local stock exchange within three years after
operations using traditional and customary ways and means commencement of production. The holder of the mining
and may not be granted in respect of land where any other licence may apply to the Cabinet Secretary responsible for
mineral right has already been granted. The permit may mining to execute an alternative mechanism to meet the
only be granted to a Kenyan citizen who has attained age listing requirement and the Cabinet Secretary may also after
of majority and any such person who may be a member of consultation with the National Treasury extend the period for
an artisanal mining cooperative or group. The term of the listing for reasons that the market conditions do not allow for
permit is limited to three years but may be renewed for an a successful completion of the offering in the stock exchange.
additional period of three years. The State is entitled to ten percent free equity participation
in large scale mining operations and in mining operations
relating to strategic minerals. The equity interest would
be held by the National Mining Corporation which is
OIL AND GAS the investment arm of the Government in respect of all
prospecting or mining operations.
What rights are granted to conduct oil and gas exploration
and production? For small scale operations, where the applicant is a body
The exploration and production of oil and gas is regulated corporate, at least sixty percent of the shareholding should
by the Petroleum Act, Cap. 308, Laws of Kenya (“Petroleum be held by Kenyan citizens.
Act”).
Rights to undertake upstream petroleum operations (which Are there any special rules or restrictions applicable to
include all or any of the operations related to exploration, foreign applicants?
development, production, separation and treatment, storage Where a mining right is to be granted to a company, the
and transportation of petroleum) may be granted under the company must be registered and established in Kenya, that
Petroleum Act by way of: is, it must be operating in the registered office subject to the
• a petroleum agreement entered into with the Government provisions of the Kenyan Companies Act Cap. 486, Laws of
of Kenya; or Kenya, and must be in operation within Kenya.
• a non-exclusive exploration permit and operational permit
granted by the Energy and Petroleum Regulatory Authority. Also, a holder of a mineral right and any agent appointed
by the holder must register an address in Kenya with the
An application for a petroleum agreement should be made principal secretary in the ministry of mining to which all
to the Cabinet Secretary responsible for energy and the communications and notices made under the proposed law
agreement should take the form prescribed under the to the right holder or its agent may be sent.
Petroleum Act.

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Identify any rights that the State may have. Competition Authority of Kenya to a proposed change of
The State is entitled to ten percent free equity participation control of a company.
in large scale mining operations and in mining operations
relating to strategic minerals.. The equity interest would
be held by the National Mining Corporation which is USE OF SURFACE OF LAND INVOLVED IN
the investment arm of the Government in respect of all
prospecting or mining operations. PROSPECTING AND MINING ACTIVITIES

What are the rights of the holder of an exploration right or

PROCESSING AND BENEFICIATION mining right to use the surface necessary or incidental to
an exploration or mining operation?
Holders of mining rights are generally conferred the rights to
Are there any requirements to beneficiate minerals use and erect equipment, plants and buildings as necessary
mined? within the land over which a mining right is granted in order
No. to carry on mining operations. More particularly, the Mining
Act confers the following rights to holders of mining rights
Are there any restrictions on the export of minerals? relating to the use of the relevant land covered under a
Minerals may only be exported out of Kenya in accordance specific mining right:
with an export permit granted by the Cabinet Secretary. An
export permit may only be granted to the holder of a mineral The holder of a reconnaissance licence under the Mining
right, a dealer’s licence or a diamond dealer’s licence. Act may, in exercising the rights conferred under the licence:
• Enter on or fly over the reconnaissance area to carry out
An export permit would be required for each export approved reconnaissance operations;
consignment and would be valid for thirty days from the date • Take and remove specimens and samples from the
of issue. reconnaissance area not exceeding such limit as is
reasonably required for reconnaissance purposes;
• Take timber and water from any lake or watercourse for the
DISPOSALS OF RIGHTS AND CONTROLLING purposes of reconnaissance operations;
INTERESTS • Erect equipment, plant and buildings necessary to carry out
the reconnaissance operations; and
• Remove on or before the termination of the reconnaissance
Are there any statutory consents required to dispose of operations, any camps, temporary buildings or installations
rights to explore and mine? which the holder may have erected in the licence area.
The consent of the Cabinet Secretary is required prior to the
assignment, transfer, mortgage or trade of a mineral right The holder of a prospecting licence may, in exercising the
or any part of the mineral right. The consent of the Cabinet rights conferred by the licence:
Secretary should be granted on the recommendation of the • Demarcate the areas that fall within the licence area;
Mineral Rights Board. • Enter the area of land specified in the licence and take all
reasonable measures on or under the surface of the land to
Within thirty days after receiving the consent of the carry out prospecting operations; and
Cabinet Secretary but prior to implementing the proposed • Erect equipment, plant and buildings necessary to carry out
assignment, transfer, mortgage or trade, the holder of the the prospecting operations.
mineral right must notify the Kenya Revenue Authority of the
proposed transaction. The holder of a retention licence may, in the exercise of the
rights conferred under the licence:
The Cabinet Secretary shall not register the interest of • Demarcate areas that fall within the licence area;
a transferee until the transferor provides evidence of • Enter the area of land specified in the licence and take all
compliance with relevant tax provisions. reasonable measures on or under the surface of the land to
carry out prospecting operations; and
Are there any restrictions on disposals of controlling • Erect equipment, plant and buildings necessary to carry out
interests in entities holding exploration or mining rights? the prospecting operations.
Under the Mining Act, any significant proposed change in
the ownership or control of a mining company involving any The holder of a mining licence may, in exercising the rights
single interest exceeding twenty-five (25) percent interest in conferred by the licence:
the licence must be approved in advance by the Cabinet • Demarcate areas that fall within the licence area;
Secretary. • Enter the area of land specified in the licence and take all
reasonable measures on or under the surface of the land to
There may also be a requirement under the Competition Act carry out prospecting operations; and
(Act No. 12 of 2010) to notify and obtain the approval of the • Erect equipment, plant and buildings necessary to carry out
the prospecting operations.

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ENVIRONMENTAL CONSTITUTIONAL AND ADMINISTRATIVE

LAW
What legislation governs environmental protection of
exploration and mining sites? Is there a constitution which has an impact upon rights to
The primary legislation governing environmental prospect and mine?
conservation and management in Kenya is the The Constitution vests all minerals and mineral oils in the
Environmental Management and Co-ordination Act, Cap. national government in trust for the people of Kenya. Under
387, Laws of Kenya (“EMCA”). the Constitution, the State is responsible for ensuring
the sustainable exploitation, utilisation, management and
The Mining Act requires holders of mineral rights to comply conservation of natural resources (including minerals) and
with any law on the protection of the environment and to ensure the equitable sharing of the accruing benefits.
makes the grant of a mining licence subject to the applicant The Mining Act was enacted to give effect to the relevant
having obtained an environmental impact assessment provisions of the Constitution relating to the exploitation of
licence in accordance with the EMCA and an approved minerals in Kenya.
environmental management plan.
The Constitution also provides for the protection of the right
to property and prohibits the State from depriving a person
NATIVE TITLE AND LAND RIGHTS of any interest in or right over property of any description
without prompt and just compensation.
Is there any native title which has any implication for the
exploration and mining industry? Are there administrative appeals in the mining law?
The Mining Act prohibits the granting of prospecting or Appeals against any decree, order or decision of the Cabinet
mining rights over community land without the consent of Secretary responsible for mining may be made to the High
either the authority responsible for the administration and Court of Kenya or the Environment and Lands Court, as
management of community land (County Government) or the applicable, within thirty days.
National Land Commission in respect of community land that
is unregistered.
Community land is defined under the Constitution of Kenya ROYALTIES AND TAXES
2010 (“Constitution”) as including land that is:
• Lawfully held, managed or used by specific communities as Are there special rules applicable to taxation of exploration
community forests, grazing areas or shrines; or and mining companies?
• Ancestral lands and lands traditionally occupied by hunter- There are special rules relating to income tax contained
gatherer communities; or in the Ninth Schedule of the Income Tax Act, Cap. 470 of
• Lawfully held as trust land by the county governments the Laws of Kenya. These rules relate to the deductions in
(but not including any public land held in trust by a county respect of mining operations in Kenya.
government); land lawfully registered in the name of group Also, the Value Added Tax Act 2013 provides for the
representatives under the provisions of any law and land exemption from VAT of taxable goods to be purchased or
lawfully transferred to a specific community by any process imported for direct and exclusive use in mining prospecting
of law. subject to the recommendation of the Cabinet Secretary in
charge of mining.

HEALTH AND SAFETY Are there any royalties payable to the State over and
above any taxes?
What legislation governs health and safety in mining? Royalties are payable in addition to other applicable taxes
The Occupational Safety and Health Act 2007 (“OSHA”) is at rates prescribed in the regulations to the Mining Act. The
the main legislation regulating the safety, health and welfare rates are based on the gross sales value of the relevant
of workers and persons lawfully present at all workplaces. minerals.

The Mining (Safety) Regulations made under the Mining Act

(“Safety Regulations”) also provide the safety standards,
precautions and measures that should be maintained at all
mines in Kenya. The Safety Regulations broadly prescribe
safety requirements and standards for surface protection,
opencast and underground workings, use of explosives,
machinery and poisonous substances, preparation of mine
plans and accident procedures.

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LESOTHO
WEBBER NEWDIGATE

FIRM INFORMATION
Website address : www.webbernew.com
Languages spoken : English
Telephone : +27 51 430 1340
Address : 2nd Floor, Metropolitan Life Building, Kingsway, Maseru, Lesotho
Contact : Pamela Bubb
Email : [email protected]

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LESOTHO | I&I LAW FIRM

RELEVANT AUTHORITIES AND • Make necessary excavations and drill boreholes; and
• Erect camps and put up temporary structures for machinery
LEGISLATION necessary for prospecting purposes.

What laws regulate mining? A prospecting licence is acquired by way of application

Lesotho’s mining industry is currently being guided by the to the Mining Board through the Commissioner of Mines.
adopted Minerals and Mining Policy, 2015 (the “Policy”). It is the Minister’s role to approve, issue, renew, cancel or
Further, there are multiple laws that regulate and/or affect suspend prospecting licences. In general, a prospecting
the mining industry. licence is valid for a period not exceeding two years from the
date of issue, and may be renewed, by way of application,
The Lesotho Constitution; the Land Act, 2010; Mines and for a further period not exceeding a year. The licence is
Minerals Act, 2005 (hereinafter “MMA”); and the Precious transferable subject to certain conditions in the MMA.
Stones Order, 1970 (hereinafter “PSO”) play an integral part It should be noted that where a discovery of minerals occurs
in the handling of land and minerals in Lesotho. In addition the licensee is obligated to acquire the written consent of
to these laws mentioned there are numerous regulations the Commissioner of Mines before the removal of minerals
promulgated under them. from the prospecting area.
The Constitution, among other laws and regulations,
provides that all land and mineral rights vest in the Kingdom Mining Lease
of Lesotho, and as such prospecting and mining can only be In general, a mining lease, issued in terms of the MMA,
undertaken with the relevant mineral concessions provided confers to the holder thereof the following rights:
by the Government of Lesotho. • The right to take all reasonable measures on or under the
The MMA, more specifically provides for rights to prospect surface to mine the mineral to which the lease relates;
and mine for minerals in the country. We note that the • The right to erect the necessary equipment, plant and
Government is currently working on a new regulatory buildings for the purposes of mining, transportation,
framework – so that mining is regulated in a manner dressing, treating, smelting or refining minerals recovered
consistent with the countries adopted Policy. by the lessee during mining operations;
The Environmental Act, 2008 (hereinafter “Environment • The right to dispose of any mineral product recovered;
Act”), further regulates mining and prospecting activities by • Prospect within the mining area for minerals for which the
making certain consents and licences peremptory in order lessee holds the mining lease; and
to obtain mineral concessions in the country, this is further • Stack or dump any waste product in a manner approved
discussed herein below. and in accordance with the Environment Act.

Which Government bodies administer mining law? A person wishing to obtain such a lease is entitled to apply
Predominantly, the Government Body tasked with the to the Mining Board through the Commissioner of Mines. It is
administration of mining law is the Ministry of Mining. In for the Minister of Mines to approve, issue, renew, cancel or
terms of the MMA, the Minister of Mining supported by the suspend mining leases. The mining lease is valid for a period
Commissioner of Mines and the Mining Board administer not exceeding ten years and may be renewed for a further
mining law in accordance with the MMA. period of ten years, by way of application, not later than one
For matters related to environmental law, it is the task of the year before the expiry of such lease. Such a lease may also
Department of Environment to regulate environmental issues be amended, by way of application, to include further mineral
in accordance with the Environment Act, with the assistance deposits found not included in the lessee’s mining lease. A
of the National Environment Council. mining lease is transferable subject to the approval of the
Minister of Mines and other conditions of the MMA.

TYPES OF AND MANNER OF ACQUISITION Mineral Permit

OF RIGHTS In general, a mineral permit, issued in terms of the MMA,
confers onto the holder thereof the following rights:
• The right to mine the mineral to which the permit relates;
What rights are granted to conduct reconnaissance, • The right to dispose of the mineral to which the permit
exploration and mining operations? relates; and
• The right to erect such temporary structures, other than
Prospecting Licence residential buildings, as may be necessary for the purpose
Subject to the provisions of Section 54 of the MMA, a of mining.
prospecting licence, issued in terms of the MMA,
provides the holder thereof the following rights: Mineral permits are provided to those who wish to conduct
• The right to prospect for minerals to which the licence small scale mining operations, over an area not exceeding
relates;

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100m2, for any mineral other than diamonds. Application for with its main focus on the export and cutting of diamonds.
a permit can only be made to the Mining Board by a citizen of Accordingly, no person may export diamonds mined in the
Lesotho. The permit is valid for a year from the date of issue Kingdom of Lesotho unless he/she is a licensed dealer or
and may, on application to the Mining Board, be renewed for producer or an accredited agent of such producer who holds
a further period not exceeding a year from the date of issue a permit to export that diamond. A permit in this regard is thus
of renewal. required. Further, all the rules and regulations governing the
export of diamonds are implemented in accordance with the
Kimberly Process Certification Scheme.
OIL AND GAS In terms of the Precious Stones Order, the Minister may
request a provider to make available a percentage of the
company’s diamond production for sale for local cutting and
What rights are granted to conduct oil and gas exploration polishing.
and production?
There are currently no rights granted to conduct oil and gas
exploration in Lesotho.
DISPOSALS OF RIGHTS AND
CONTROLLING INTERESTS
INDIGENISATION REQUIREMENTS
Statutory consents required to dispose of rights to explore
Are there any requirements in relation to the holding of and mine
equity in exploration and mining projects by indigenous
peoples? Prospecting licence
An individual cannot acquire a mining right in his/her own Transfer may be made by application to the Mining Board
name if that individual is not a major citizen of Lesotho. A to any person who meets the requirements to hold such a
company can acquire a mining right provided it is registered licence. Where the Minister is satisfied that the transferee is
and established in Lesotho. qualified to hold said licence, the Mining Board shall notify the
applicant of the approval of the transfer of the prospecting
Are there any special rules or restrictions applicable to licence or interests in the prospecting licence. Upon transfer,
foreign applicants? the transferee assumes all rights, obligations and liabilities
Apart from having to register a company under the laws of under the prospecting licence.
Lesotho, there are no restrictions or special rules relating to
foreign applicants. Mining Lease
A mining lease, or any interest in the mining lease, may only
Identify any rights that the State may have. Does the State be transferred with the approval of the Minister of Mines.
have any rights to equity in mining projects? Approval is acquired by way of application and is subject to
The Government may, through the Ministry of Natural the same requirements as an application for a mining lease.
Resources, acquire not less than twenty percent shareholding Upon transfer the transferee assumes all rights, obligations
in a proposed mine, and is required to inform an applicant of and liabilities in terms of the mining lease agreement
a mineral lease as to whether the Government is taking up transferred.
shareholding in the proposed mine.
Are there any restrictions on disposals of controlling
The shareholding of the Government with relation to diamond interests in entities holding exploration or mining rights?
mines are negotiated between the Government and the
proposed mining operation and subsequently reflected in Prospecting license
the mining lease agreement. There are currently no restrictions on the disposal of a
controlling interest in a prospecting operation.

Mining Lease
PROCESSING AND BENEFICIATION The regulations governing the transfer of a mining lease are
the same as those for the transfer of a controlling interest
Are there any requirements to beneficiate minerals held in a mining operation. As such, where a controlling
mined? interest in a mining operation is transferred the approval of
There are currently no requirements within Lesotho to the Mining Minister is required.
beneficiate minerals mined. The Government is currently
considering local beneficiation requirements.

Are there any restrictions on the export of minerals?

The Precious Stones Order, 1970 (hereinafter “Precious
Stones Order”), regulates the export of precious stones

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USE OF SURFACE OF LAND INVOLVED IN NATIVE TITLE AND LAND RIGHTS

PROSPECTING AND MINING ACTIVITIES
Is there any native title which has any implication for the
What are the rights of the holder of an exploration right or exploration and mining industry?
mining right to use the surface necessary or incidental to No native title is recognised to provide the holder thereof
an exploration or mining operation? the right to prospect or mine. Application for a mineral permit
The MMA provides that the holder of a mining lease may would be required.
take all reasonable measures on or under the surface, to
mine the mineral to which it relates.
HEALTH AND SAFETY
That being said, however, the MMA provides certain
restrictions to the exercise of rights under a mineral What legislation governs health and safety in mining?
concession over certain specific land (e.g. land dedicated The Mine Safety Act, 1981, was published to make provision
as a place of burial, land containing any ancient or national for the purpose of governing health and safety for persons
monument; land set aside for use by the Government, and employed at mines, and for connected purposes. In addition,
national parks). Further, it provides for consent of the owner Occupational Safety and Health Act, 2024, and certain health
or lawful occupier of l the and as a requirement for the and safety regulations in terms of the Labour Code Order,
exercise of any right over such land. Where such consent is 1992, must also be observed.
unreasonably withheld, authorisation can be acquired from
the Minister, subject to conditions he may impose, including
the payments of reasonable compensation. CONSTITUTIONAL AND ADMINISTRATIVE
The rights conferred by a mineral concession are required LAW
to be exercised reasonably and in a manner that affects the
interests of any owner or lawful occupier of the land covered Is there a constitution which has an impact upon rights to
by such mineral concession as little as possible. The mining prospect and mine?
lease agreement would dictate the extent of the right the Yes, the Constitution, 1993, provides that all land in Lesotho
holder thereof has with relation to surface rights. vests absolutely and irrevocably in the Basotho Nation. As
such, the Constitution affects the administration of minerals
in Lesotho.
ENVIRONMENTAL Further provisions may impact on rights to prospect and
mine such as the right to property.

What legislation governs environmental protection of Are there administrative appeals in the mining law?
exploration and mining sites? Lesotho currently has no specific procedures laid down for
The Environment Act, provides an overall legal and administrative appeals relating to mining law.
regulatory view of environmental standards, procedures, and Where a conflict may arise due to the failure of a holder of
compliance requirements. Observation of the Environmental a mineral concession, the Minister has the authority in terms
Act is peremptory for a mineral concession. of the MMA to suspend or cancel a mineral concession. The
Minister shall, however, provide the holder notice in writing,
The Environment Act requires that an environmental specifying the particular contravention and call upon the
impact assessment licence must be acquired for certain holder to remedy the contravention within a certain period,
listed activities. These activities, more specifically, include being not less than 30 days.
mining, mineral extraction including quarrying and open- This being said, certain administrative procedures may be
cast extraction of precious stones, minerals and metals, coal, agreed upon in a mining lease agreement.
stone and slate, aggregates, sand and gravel, clay, tunnelling, Although there are no set statutory procedures for
diamonds, limestone and dolomite, and base metals. administrative appeals, the judiciary, namely the High Court
and Court of Appeal, enjoy inherent powers of review and
The MMA further provides that all mining operations are appeal over administrative actions and decisions.
to comply with good mining industry practices and the
law in preserving the natural environment, minimising and
controlling waste or damage to natural and biological
resources, and to promptly treat pollution and contamination ROYALTIES AND TAXES
of the environment.
Are there special rules applicable to taxation of exploration
and mining companies?
Currently, entities involved in mining activities are subject
to taxes same as any other entity in terms of the Income
Tax Act, 1993. It should be noted that the Policy makes

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provision for special rules, however, to date none have been

promulgated. Regulations published in terms of the Income
Tax Act, 1993 do allow mining assets to be depreciated at a
rate of 100% per annum.

Are there any royalties payable to the State over and

above any taxes?
The MMA provides that the holder of a mineral concession
shall be liable for royalties to the Government on any mineral
obtained. The royalties payable are currently determined at
ten percent for precious stones and three percent for other
minerals or mineral products.

The royalty is calculated on the gross market value receivable

at the mine gate and is payable by the holder of the mineral
concession. A royalty may, in certain circumstances, be
remitted by the Minister in terms of the MMA.
The royalty rate on diamonds may be negotiated between
the holder and the Government in a lease agreement to a
rate not more than 10%.
In addition to a royalty, the holder of a mineral concession
is further obliged to pay an annual charge in respect of
a maineral concession through the Ministry of Natural
Resources.

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MAURITIUS
ERRIAH CHAMBERS

FIRM INFORMATION
Website address : www.erriahchambers.com
Languages spoken : English and French
Telephone : (230) 208 2220
Address : Level 2, Hennessy Court, Pope Hennessy Street, Port Louis, Mauritius
Contact : Dev Erriah
Email : [email protected]

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MAURITIUS | ERRIAH CHAMBERS

RELEVANT AUTHORITIES AND • Other minerals, including those used for their abrasive or
refractory qualities and asbestos, barytes, bauxite, china
LEGISLATION clay, crystals, fuller’s earth, graphite, laterite, marble, mica,
nitrates, pipeclay, potash, pumice, quartz, slate, soda,
What laws regulate mining? sulphur, talc, and all other substances of a similar nature to
In Mauritius, mining of ores is not a common activity in view any of them; and
of its volcanic origin. A few decades ago, lagoon sand • Precious minerals, including - precious stones (that is,
mining was carried out by sand miners and boat owners in diamonds, emeralds, opals, rubies, sapphires, turquoises,
the shallowest parts of the largest lagoons on the north and and such other stones as may be prescribed to be precious
east coast of the island. The extracted coral sand was used stones for the purposes of this Act) and semi¬precious
mainly as a raw material in the construction industry. Coral stones including amber, amethyst, beryl, cat’s eye,
sand extraction from the lagoon has been banned since chrysolite, garnet, and all other semi-precious stones,
October 2001. whether of the same kind as those enumerated or not and
precious metals.
In any event, in spite of the practically non-existent mining
activity, the principal legislation governing mining in Mauritius Minerals shall not include:
is the Minerals Act 1966 (the “Act”) which is still enforceable. • Pottery, clay or rock salt;
• Any materials, such as clay, sand, limestone, sandstone,
Which Government Bodies administer mining law? or other stones, commonly used for the purpose of road
According to the Act, the main governing body responsible making, building or for the manufacture of any article used
for mining and for authorising prospecting operations is the in the construction of buildings where such material does
Minister of Commerce and Consumer Protection. not contain any valuable metal or precious stone;
• Petroleum and associated substances as defined in the
Petroleum Act 1970.
TYPES OF AND MANNER OF ACQUISITION
OF RIGHTS
OIL AND GAS
What rights are granted to conduct reconnaissance,
exploration and mining operations? What rights are granted to conduct oil and gas exploration
The Act grants the right to prospect minerals, i.e., search for and production?
minerals, which also includes such working as is reasonably Oil and gas explorations and production are governed by
necessary to enable the prospector to test the mineral- the Petroleum Act 1970 (the “Petroleum Act”). Under the
bearing qualities of the land. Petroleum Act, petroleum is meant to include any mineral oil
or hydrocarbon, whether gaseous, liquid or solid, existing in
The Government shall have the exclusive right to prospect its natural condition in strata, including crude oil, casing head
for minerals in or under any land. Subject to the Act, and until spirits, ozokerite, asphalt and natural gas.
such time as the President may by regulations prescribe, no
person shall prospect for, mine or work minerals in or under The governing body shall be the Minister to whom the
any land in Mauritius whether he is the owner of the land or responsibility for the administration of the Petroleum Act is
not. The Minister may authorise in writing any person to carry assigned.
on prospecting operations in or under any land on behalf of
the Government. The Minister may:
• On application made in the prescribed manner;
It should be noted that under the Act, minerals include: • By auction or tender; and
•metalliferous minerals containing aluminum, antimony, • On being satisfied that the applicant, the bidder or the
arsenic, barium, bismuth, cadmium, cerium, chromium, tenderer, as the case may be, has sufficient technical
cobalt, columbium, copper, iron, lead, lithium, magnesium, knowledge, experience and financial resources to ensure
manganese, mercury, molybdenum, nickel, potassium, the proper prospecting and mining for petroleum, grant to
sodium, tantalum, tin, titanium, tungsten, uranium, vanadium, the applicant, bidder or tenderer a prospecting licence or
zinc, zironium, and all other substances of a similar nature to a mining lease.
any of them, and all ores containing them and combinations
of any of them with each other or with any other substance, A prospecting licence shall confer on the licensee exclusive
other than those occurring in the form of precious minerals; rights to conduct prospecting operations over the area
•Combustible carbonaceous minerals including – coal; comprised in the licence.
lignite, which includes brown coal and any coal which the
President may prescribe to be lignite;

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A mining lease shall be granted only in respect of an area Identify any rights that the State may have. Does the State
which has been comprised in a prospecting licence and in have any rights to equity in mining projects?
which petroleum has been found and shall confer on the As mentioned above, the property of petroleum shall be
lessee exclusive rights to prospect and mine for petroleum deemed to have always been vested in the State and as
and associated substances over the area comprised in the regards to minerals, the State shall have the exclusive right
lease. to prospect for minerals under any land.

A prospecting licence or a mining lease may be granted for

such consideration, over such area, for such period and such PROCESSING AND BENEFICIATION
other terms and conditions as the Minister may determine.
A prospecting licence or a mining lease may, on application
being made in the prescribed manner, be renewed for such Are there any requirements to beneficiate minerals
consideration, over such area, for such period and on such mined?
other terms and conditions as the Minister may determine. No, there are no requirements in local laws as to the
beneficiation of minerals.
Notwithstanding the above, the terms and conditions of any
prospecting licence or mining lease may provide for: Are there any restrictions on the export of minerals?
• The royalty or other payment to be made in respect of Yes, there are some minerals in Mauritius which are subject to
petroleum obtained in the exercise of the rights conferred export restrictions. Some minerals such as sand, limestone,
by the licence or the lease, the method of calculating the cement, and rough diamonds, require an export permit from
royalty or other payment, and its manner of payment; the Ministry of Industry, Commerce and Consumer Protection.
• The rent to be paid in respect of an area comprised in the
licence or lease;
• The working obligations attached to the licence or lease; DISPOSALS OF RIGHTS AND CONTROLLING
• The method of measuring petroleum obtained from an area INTERESTS
comprised in the licence or lease;
• Directions relating to the drilling, location and plugging of
Are there any statutory consents required to dispose of
wells, the avoidance of harmful methods of working, the
rights to explore and mine?
avoidance of interference with other activities in or about
The law does not provide for any disposal of exploration and
the area comprised in the licence or lease;
mining rights.
• Directions relating to – (i) the nationality of persons
employed by the licensee or lessee for the purposes of his
Are there any restrictions on disposals of controlling
operations under the licence or lease; (ii) the safety, health
interests in entities holding exploration or mining rights?
and welfare of such persons;
There are no such statutory restrictions.
• The supply of information by way of returns, reports,
notices, plans and records of operations carried out under
the licence or lease; and
• The terms and conditions under which the licence or lease USE OF SURFACE OF LAND INVOLVED IN
may be terminated. PROSPECTING AND MINING ACTIVITIES

What are the rights of the holder of an exploration right or

INDIGENISATION REQUIREMENTS mining right to use the surface necessary or incidental to
an exploration or mining operation?
Are there any requirements in relation to the holding of The holder of an exploration right or mining right shall have
equity in exploration and mining projects by indigenous all rights over the area for which mining leases or prospecting
peoples? licences have been granted.
Mauritius does not have any indigenous people. As regards
to petroleum, the property in petroleum existing in Mauritius
shall be deemed to be, and always to have been, vested in ENVIRONMENTAL
the State.
What legislation governs environmental protection of
Are there any special rules or restrictions applicable to exploration and mining sites?
foreign applicants? As per the First Schedule of the Environment Protection
As mentioned above, whether with respect to minerals and/ (Amendment) Act 2008, both offshore sand mining and rock
or petroleum, the Government has all exclusive rights thereto. quarrying are undertakings that warrant an Environment
Therefore, foreign applicants shall only be authorised to Impact Assessment licence (EIA). To date only two EIA
carry out prospecting operations with the authorisation of licences have been granted for rock quarrying and one
the Government. quarry site is presently operational. EIA licences are usually
granted subject to terms and conditions.

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The conditions attached to the EIA licence granted for rock ROYALTIES AND TAXES
quarrying also require the proponent to, amongst others:
• Provide for earth bunds to inhibit dust emissions and noise
Are there special rules applicable to taxation of exploration
propagation;
and mining companies?
• Provide for a buffer zone from public access road;
There are no special rules applicable to same. It should be
• Provide for the reinstatement of the quarry zone concurrently
noted however that a domestic company is taxable at the rate
with the progression of the quarry;
of fifteen percent on its income. Entities are usually set up in
• Exploit the quarry in conformity with the methodology
Mauritius with respect to mining activities outside Mauritius
proposed in the EIA report;
and these are set up as Global Business Licence (GBL).
• Submit an environmental monitoring plan prior to starts of
The latter are taxable at a maximum rate of three percent
works with subsequent monitoring reports.
after application of deemed foreign tax credit. This Deemed
Foreign Tax Credit regime available to companies holding
Use of explosives for blasting purposes is normally not
a GBL has ceased to apply as from 31st December 2018.
allowed except under the control and supervision of a
A partial exemption regime has been introduced whereby
special branch of the Police Force. Information pertaining to
eighty percent of specified income will be exempted from
the decommissioning of the project at the end of its life cycle
income tax.
and associated impacts and the reinstatement plan of the
quarry zone should also be submitted to the Department of
The exemption will be granted to all companies in Mauritius,
Environment for approval.
except banks, and shall apply to the following income:
•Foreign source dividends and profits attributable to a
foreign permanent establishment;
NATIVE TITLE AND LAND RIGHTS • Interest and royalties; and
• Income from provision of specified financial services.
Is there any native title which has any implication for the
exploration and mining industry? Are there any royalties payable to the State over and
The Government shall pay compensation to the owner or above any taxes?
occupier of the land in or under which prospecting operations Please refer to royalty payment provisions described under
are carried out for any: Section 3 above regarding petroleum products. The Minerals
• Disturbance of the rights of the owner or occupier; Act 1966 is however silent regarding royalties on minerals.
• Damage done to the surface of the land; or
• Damage caused to any crops, trees, buildings or works on
the land.

HEALTH AND SAFETY

What legislation governs health and safety in mining?
There is no specific legislation as regards health and safety
in mining. However, the Occupational Safety and Health Act
2005 governs health and safety in employment.

CONSTITUTIONAL AND ADMINISTRATIVE

LAW

Is there a constitution which has an impact upon rights to

prospect and mine?
Yes, Mauritius has a Constitution which has an impact upon
rights to prospect and mine.

Are there administrative appeals in the mining law?

No.

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MOROCCO
I&I LAW FIRM

FIRM INFORMATION
Website address : https://www.iilawfirm.ma/
Languages spoken : Arabic, French, English
Telephone : (+212)05.22.43.36.60
Address : 3, Av. 2Mars, Rés. Marwa, 4ème étage 20490 Casablanca, Maroc
Contact : Ghiyta Iraqi
Email : [email protected] / [email protected]

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MOROCCO | I&I LAW FIRM

RELEVANT AUTHORITIES AND June 2002. It is subject to the state supervision and financial
controls applicable to Moroccan public establishments. The
LEGISLATION Land Registry is in charge of the issuance of special titles
(titres spécial) relating to each mining title registered with it.
What laws regulate mining?
For more than 60 years, the 1951 Mining Code had governed
the sector, making it de facto obsolete. Law no. 33-13 of July
2015 and its implementing decree of April 2016 created a
TYPES OF AND MANNER OF ACQUISITION
new Code that is both realistic and ambitious. In July 2021, OF RIGHTS
the council of government had approved the draft law n°46-
20 which is currently by the House of Representations. What rights are granted to conduct reconnaissance,
exploration and mining operations?
The sector operates under a specific and detailed regulatory
framework, primarily based on the following key texts: Mines form part of the state’s public domain
A research permit and operating licence provide mining
• Law no. 33-13, which forms the backbone of the modern operators rights in rem (droits immobiliers) over mining
Mining Code; products excavated from underground or available on the
• Dahir No. 1-60-007, dated December 30, 1960, concerning surface.
the status of employees in mining companies;
• Dahir No. 1-99-340, regulating the exploration and These rights in rem are granted for a limited duration and
exploitation of hydrocarbon deposits; must be distinguished from the ownership of the land
• The Hydrocarbons Code (Law No. 21-90), as amended surrounding the mine, meaning that mining operators must
by Law No. 27-99, which governs the exploration and secure applicable occupancy rights separately from the
exploitation of hydrocarbon deposits; applicable mining title.
• Decree No. 2.57.1647 of December 17, 1957, which
establishes rules for implementing provisions of the Mining
Regulations, particularly regarding taxes related to mining OIL AND GAS
titles and the obligations of mine concessionaires and
permit holders;
• Law No. 39-89, which enabled the privatization of mineral Mining titles under the New Mining Code
exploration activities, signaling the progressive withdrawal Mining licences are limited real estate rights that may be
of the State from the exploitation and management of subject to mortgage but are distinct from the ownership of
mining companies. the land. Therefore, mining operators must always secure
applicable occupancy rights separately from the applicable
Which Government Bodies administer mining law? mining title.
The main authorities involved in the regulation of the
Moroccan mining sector are the: Exploration permit
• Ministry of Energy, Mines and Sustainable Development It is valid for a period of two years and renewable once for
(MEM). Under Decree No 2-20-413 Establishing Attributions a one-year period, for an area comprised between 100 km2
and Organisation Rules of the Mining and Energy and 600 km2. Applicants must enter into a contract with the
Department of the MEM dated 3 July 2020. The MEM has mining administration detailing the contemplated exploration
delegated authority to: and investment activities. An exploration permit can only be
o the Walis (representative of the central government in the granted to a legal entity. The exploration area depends on
local region) for the award of exploitation authorisations the works programme and the investments contemplated by
for projects of a value less than MAD200 million; and the applicant. It is not possible to hold.
o regional directors of the Energy and Mines Department
of the MEM for the award of research permits. Research permit
• National Office of Hydrocarbons and Mines (ONHYM). It is valid for a three-year term for a square area with sides of
ONHYM is a public establishment regulated by Law No at least 4 km in length and is renewable once for four years,
33¬01 promulgated by Dahir No 1-03-203 dated 11 November subject to a program detailing at least the contemplated
2003 and its Decree No 2-04-372 dated 29 December expenditures and work. The research permit confers to its
2004. It is subject to the state supervision and financial holder, under the conditions set out in the New Mining Code,
controls applicable to Moroccan public establishments. the exclusive right to search for the products of mines found
• Land Registry. The Land Registry (Agence Nationale de la within the perimeter covered by such permit, including by
Conservation Foncière du Cadastre et de la Cartographie) is carrying out geological, geochemical and geophysical
a public establishment (établissement public) regulated by studies and work, drilling holes and mining work, for the
Law No 58-00, promulgated by Dahir No 1-02-125 dated 13 purpose of determining the existence of a deposit.

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Mining licence convertibility regime provided for by the Moroccan foreign

The mining license grants its holder the exclusive right to exchange regulations, including in particular the Instruction
extract and/or develop mining products from a deposit Générale de l’Office des Changes.
with a view to obtaining merchantable mining products, in
particular by means of studies, preparatory work, exploitation
work and/or enrichment and/or beneficiation operations of PROCESSING AND BENEFICIATION
these products, as well as the realization of the infrastructure
necessary for such work.
Are there any requirements to beneficiate minerals
It is valid for a term of ten years and successively renewable mined?
for ten years periods until the reserves are exhausted. Moroccan law does not impose any specific restrictions on
Under the former regime, the license was only valid for four the processing of extracted mineral resources or on the sale,
years. Furthermore, the granting of a mining licence will now export or import of extracted or processed minerals.
revoke the research permit only for the area it covers. A
second exploration permit will be granted for the area that is
not covered by the same licence. TRANSFER OF RIGHTS
The discovery of a deposit gives the holder of the research
permit the exclusive right to apply for a mining license for the Participating interests held by an operator in an exploration
perimeter of the said discovery, the application having to be permit or in a concession can be transferred if:
filed before the expiry of the permit. These provisions imply
that an application for a license may be refused for reasons • the transferred interests apply to the totality of the area of
other than the failure to file the application within the validity interest covered by the applicable exploration permit;
period of the license. However, the New Mining Code does • It receives prior approval from the Ministry of Energy.
not provide for any guidance as to the reasons for such a
refusal. The approval is granted by the Ministry of Energy in the
Unlike exploration permits and research permits, which form of an order (arrêté) authorising the assignment. In a
do not specify any constraint relating to the nationality of transfer of participating interests, the assignee must assume
the holder, the beneficiary of a mining license must be a all the obligations initially undertaken by the assignor. If the
Moroccan law company. assignment is made in favour of a third party (that is, not
an affiliate of the assignor), the state is always entitled to
exercise a pre-emption right. Reconnaissance rights are not
INDIGENISATION REQUIREMENTS transferrable.

Are there any requirements in relation to the holding of

equity in exploration and mining projects by indigenous ENVIRONMENTAL
peoples?
Permits and concessions may not impede the rights granted What legislation governs environmental protection of
to indigenous persons (droits coutumiers) for the extraction of exploration and mining sites?
certain substances. However, permit or concession holders Law No 12-03 on environmental impact assessment
may be allowed to override those rights for all or part of the promulgated by the Dahir No 1-03-60 dated 12 May 2003
perimeter of their permit, if they agree with the indigenous (Law No 12-03) has implemented an EIA “Etude d’Impact sur
persons on the payment of compensation which, if they fail l’Environnement” process in Morocco.
to agree, is determined by the authorisation.
Under Article 2 of Law No 12-03, any project undertaken by
The three above-mentioned mining rights may only be legal or physical persons that, due to their nature, dimension
granted to legal entities. There is no restriction relating to or location could imply adverse effects for the biophysical
the nationality of the holder of the authorisation except for and social environment, are subject to an EIA. The exploration
mining licenses, which may only be granted to Moroccan and production of oil and gas is therefore subject to an EIA.
law companies. It must be noted that the exploration and
exploitation of phosphates are a monopoly of the Moroccan Under Article 6 of Law No 12-03, the EIA must include:
State.
• A description of the initial condition of site to be affected
Through the investment charter (charte d’investissement), by the project, including in particular its biological, physical
foreign investors may benefit from certain tax and regulatory and human features;
advantages, in particular if the investment meet certain • A description of the prominent components, features and
requirements (size, number of workers etc.). steps of the project, including the contemplated:
o production processes;
Investments which are made by foreign investors in o use of raw materials and energy resources;
foreign currency into Morocco benefit from the so-called

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o liquid, gaseous and solid emissions, releases and The holder must also take out insurance against any damage
disposals and waste generated by the project; caused to the environment. Under Article 33 of Decree No
• An evaluation of the positive and adverse effects of the 2-93-786, the holder of a reconnaissance authorisation,
project on the biophysical and social environment; exploration permit, or concession must:
• Proposed measures to mitigate adverse effects on the
environment; • Inform the Ministry of Energy and the local authorities of any
• A monitoring programme; serious accident.;
• A summary of the legal and regulatory framework applicable • Have sufficient supply of medicine and other indispensable
to the project; rescue materials at the location of the works.
• A summary of the assessment.

A project subject to an EIA must receive prior approval

from the relevant regional and/or national environmental
assessments committees in charge of delivering a
prior decision on environmental acceptability (decision
d’acceptabilité environnementale). This approval process
usually lasts about three to four months.

HEALTH AND SAFETY

What legislation governs health and safety in mining?
The holder of a mining title must operate mining activities
in compliance with laws and regulations related to health,
hygiene and environmental protection (Article 56, Mining
Law). Viziriel Order dated 18 February 1938 Forming Internal
Rules for the Exploitation of Mining Products Other Than

Combustibles Mining Products (as amended by Viziriel Order

dated 9 September 1953) sets out detailed health and safety
requirements for carrying out exploitation activities, including
obligations to:

• Maintain work areas in a constant state of cleanliness and

to respect the hygiene and sanitary conditions necessary
to preserve employees’ health;
• Make devices such as telephones or acoustic pipes
available in underground circulating areas to enable
discussions between employees, supervisors and
extraction technicians;
• Take measures to prevent water stagnation and the
accumulation of mud in the working area and galleries.

Under Article 32 of Decree No 2-93-786, the holder of

a reconnaissance authorisation, exploration permit, or
concession must:

• Respect the hygiene and health and safety requirements of

its employees and neighbouring habitants;
• Minimise social and ecological burdens;
• Avoid injury or damage to public or private properties.

In particular, the holder must take precautions to ensure the

protection of:
• Vehicular traffic and shipping navigation;
• Aquatic resources and the prevention of pollution of seas,
lakes, beaches, rivers and groundwater;
• Forests, farmlands and plantations.

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FIRM INFORMATION
MOZAMBIQUE
Website address
Languages spoken
: www.jlaadvogados.com
: Portuguese, English
JLA ADVOGADOS
Telephone : +(258) 21 317 159
Address : Rua dos Desportistas, n.º 691, Edifício Jat 6.1, 13.º Piso, Fracção Norte,
Maputo, Mozambique
Contact : Zara Jamal (Partner)
Email : [email protected]

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MOZAMBIQUE | JLA ADVOGADOS

RELEVANT AUTHORITIES AND MIREME is the central body of the State which manages and
ensures the execution of the Government policies relating
LEGISLATION to geological research and the exploration of mineral and
energy resources.
What laws regulate mining?
The Mozambique mining legal framework comprises the NDM is a body of MIREME with the authority to, among other
laws and regulations listed below: things, elaborate and propose strategies, programs, plans,
• Law no. 20/2014, of 18th August - The Mining Law (“Mining rules, guidelines and regulations for the development of
Law”); geology and mining activities and ensure its implementation,
• Law no. 28/2014, of 23rd September - Mining Tax and planning, coordinating, controlling and ensuring the
Incentives Regime, as amended by Law no. 15/2017, of 28th cataloguing of mineral resources in the country and ensuring
of December; the licensing of mining activities.
• Law no. 21/2014, of 18 of August – Petroleum Law;
• Decree no. 26/2004, of 20th August - Environmental INAMI is the regulatory authority of the mining industry, under
Regulation for Mineral Activities; the tutelage of MIREME.
• Decree no. 61/2006, of 26th December - Regulation on
Health and Safety for Mineral Activities; The Mining Law provides that a new authority, the High
• Decree no. 20/2011, of 1st June - Regulation for the Sale of Authority for the Extractive Industry (Alta Autoridade da
Mineral Products, as amended by Decree no. 34/2019, of Indústria Extractiva) (“AAIE”), will be created to oversee the
2nd of May; extractive industry, however, the Mining Law is silent as to
• Decree no. 63/2011, of 7th December - Regulation on the the powers and role of this High Authority.
Hiring of Foreigners for the Mining and Petroleum activities;
• Decree no. 28/2015, of 28th December - Regulations on In particular, it is uncertain as to whether the new authority will
the Mining Tax and Incentives Regime; be regulatory in nature or will take the role of ombudsman
• Decree no. 31/2015, of 31st December - Mining Law and/ or whether its role will conflict or overlap with INAMI.
Regulations, as amended by Ministerial Decree 65/2022, AAIE is yet to be formalised and created eight years after the
of 15th of June; creation of the Mining Law.
• Decree no. 63/2021, of 1st of September – Regulation for
the Sale of Diamonds, Precious Metals and Gemstones;
• Decree no. 13/2015, of 3rd July – Regulation of Mining Work;
• Decree no. 54/2015, of 31st of December – Approves the
TYPES OF AND MANNER OF ACQUISITION
Regulation for the Environmental Impact Assessment; OF RIGHTS
• Ministerial Diploma no. 189/2006, of 14th December - The
Basic Rules on Environmental Management for Mineral What rights are granted to conduct reconnaissance,
Activities; exploration and mining operations?
• Ministerial Diploma no. 92/2007, of 11th July - Rules and
Procedures on Activities report; Under the new Mining Law, a prospective investor may
• Resolution no. 21/2014, of 16th May – Approves the Policy of obtain the following types of concession contracts:
Corporate Social Responsibility for the Extractive Industry Exploration Licenses govern any exploration and prospecting
of Mineral Resources; and activities. Exploration Licences will be valid for:
• Ministerial Diploma no. 8/2017, of 16th January – Approves • 2 years for mineral resources being supplied for the
the Guidelines for the Implementation of the Policy of construction industry, and are renewable once for same
Corporate Social Responsibility for the Extractive Industry period; or
of Mineral Resources. • 5 years for other mineral resources, including mineral water,
and may be renewed once for an additional 3-year period.
Which Government Bodies administer mining law?
Several key bodies are currently responsible for regulating Mining Concessions provide the concessionaire
mining activities, namely the Council of Ministers, the Ministry (incorporated and registered under the Mozambique Laws)
of Mineral Resources and Energy (Ministério dos Recursos the right to extract, develop and process mineral resources
Minerais e Energia) (“MIREME”), the National Directorate of which are discovered under an Exploration Licence. Mining
Geology and Mines (Direccão Nacional de Geologia e Minas) Concessions will be valid for a period of 25 years and may
(“NDM”) and the National Institute of Mines (“INAMI”). be extended by another 25 years.

The Council of Ministers, the highest Governmental body Mining Certificates govern small-scale mining operations.
in Mozambique, includes the president, prime minister and Mining Certificates are only granted to Mozambican nationals,
other Government ministers and is responsible for creating in addition to legal entities and will be valid for a period of 10
primary legislation for the mining sector. years and may be extended by another 10 years.

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Mining Treatment Licenses In circumstances when the • Incentives in relation to increasing the value of the minerals
investor does not hold a valid Mining Concession, Mining to be extracted;
Certificate or Mining Pass which authorises such activities, • Corporate social responsibility requirements;
Mining Treatment Licences govern mining processes • Memorandum of understanding between the licence
through which usable ore and derivatives are recovered holder, the State and the community;
in valuable mining products by physical treatments. The • Disputes resolution mechanics, including provisions relating
treatment of radioactive minerals (e.g. uranium) will require to the settlement of disputes by way of arbitration; and
further authorisations in accordance with legislation • The way that the communities in the area will be involved
regarding atomic energy and radioactive materials. The and benefit on the undertaking.
Mining Treatment Licence is valid for a maximum of 25 years The Mining Law provides that Mining Contracts must be
and can be renewed once. published in the Mozambique’s Official Gazette and are
subject to the Administrative Court’s prior approval.
Mining Processing Licenses In circumstances when the
investor does not hold a valid Mining Concession, Mining
Certificate or Mining Pass which authorises such activities, OIL AND GAS
Mining Processing Licenses govern those processes
required to achieve ore concentrate by means of (among
others) physical, chemical and metallurgical treatments. What rights are granted to conduct oil and gas exploration
The processing of radioactive minerals (e.g. uranium) will and production?
require further authorisations in accordance with legislation
regarding atomic energy and radioactive materials. The Licensing Regime
Mining Processing Licence is valid for a maximum of 25 The four types of concession contracts prescribed in terms
years and can be renewed once. of the new Petroleum Law are the following:

Mining Products Commercialisation Licenses govern the Reconnaissance Concession Contract

activity of the sale and purchase of mineral products sourced Unlike in the old Petroleum Law, reconnaissance concession
from outside of Mozambique. We note that Mining Products contracts entered into under the new Petroleum Law:
Commercialisation Licences may be awarded to Mozambican • Can only be entered into on a non-exclusivity basis;
nationals in addition to legal entities. The Mining Products • Shall be for a non-renewable two-year term; and
Commercialisation Licenses is valid for a maximum of 5 • May not give rise to a right of first refusal in the granting of
years renewable. prospection and production concession.

Mining Passes govern “artisanal” mining operations Prospection and Production Concession Contract
generally being undertaken by individuals, and allow for the While under the old Petroleum Law prospection and
sale of mineral products arising from such small-scale mining production concession contracts were stated only to grant
activities. We note that Mining Passes may be awarded to exclusive rights to explore and produce petroleum and a
Mozambican nationals, in addition to legal entities. non-exclusive right to build and operate pipelines, under
the new Petroleum Law such concession contracts grant an
Save for Mining Passes and Mining Products exclusive right to conduct petroleum operations and a non-
Commercialisation Licences, only entities incorporated and exclusive right to build and operate the infrastructures used
registered in accordance with Mozambican law that are able in the production and transportation of petroleum.
to evidence their technical and financial capacity are eligible
for any licence under the Mining Law. As noted above, Mining Also, unlike in the old Petroleum Law:
Passes and Mining Products Commercialisation Licenses • The approval of the Government shall be required for joint-
may also be awarded to Mozambican nationals (i.e. natural bidding or joint-operation agreements;
persons). • The right to carry prospection activities cannot arguably
be extended beyond eight years even if necessary to
Mining Contracts complete the works;
Pursuant to the Mining Law, the Government of Mozambique • There is no specified term for the extension of prospection
may launch a public tender in respect of entering into public- activities in case a discovery is made; and
private undertakings in relation to mining activities with the • There is no specified term for the extension of the contract
holder of an Exploration License or a Mining Concession (a for the purpose of production.
Mining Contract).
Oil or Gas Pipeline System Concession Contract
The Mining Contract must contain clauses regarding: Previously covered in similar terms under the old Petroleum
• The level of participation of the Government of Mozambique Law. An oil pipeline or a gas pipeline system concession
in the undertaking; contract grants the right to construct and operate oil pipeline
• Minimum local content; or gas pipeline systems for the purpose of transporting crude
• Local employment and training requirements; oil or natural gas, in those cases that such operations are
not covered by an exploration and production concession

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contract. An oil pipeline or a gas pipeline system concession Under the Mining Law, preference should be given to goods
contract shall be accompanied by the relevant development and services purchased or obtained from Mozambican
plan, which is an integral part of the concession contract. individuals or entities. Further, the Mining Law requires that
goods or services, the value of which exceeds the amount
Infrastructure Concession Contract of 15.000.000,00 MT (fifteen million Meticais), must be
This is a concession contract for the construction and purchased by way of a public tender. Such public tenders
operation of infrastructures. Such concessions shall grant must be published in widely read newspapers in Mozambique
the right to build and operate infrastructures for petroleum and on the website of the relevant interest holder.
production, including liquefaction. Such concessions shall
only be required if the relevant infrastructures are not covered In addition, foreign entities that provide services to mining
by an approved plan of development for prospection and operations in Mozambique are required under the Mining
production. Law to ”associate with” Mozambican entities. Details of
how this obligation is fulfilled remain unclear and we expect
In addition to the four types of concession contracts above this to be detailed in future regulations and/or secondary
mentioned, the Petroleum Law also contains a provision in legislation.
respect to gas liquefaction, providing that the Government
may authorise concessionaires which have discovered Are there any special rules or restrictions applicable to
deposits of oil and non-associated gas to develop projects foreign applicants?
for the design, construction, installation, ownership, The Mining Law establishes that the Mining Contract must be
financing, operation, maintenance, use of wells, installations signed with companies that have the State as shareholder
and ancillary equipment, either onshore or offshore, for the and a minimum local content, meaning foreign applicants
production processing, liquefaction, delivery and sale of gas must have a minimum local content, which terms and
in the domestic or foreign markets. It is therefore now clear conditions will be soon regulated.
that liquefaction activities, either onshore or offshore can be
undertaken under EPCC´s, subject to Government approval, Identify any rights that the State may have. Does the State
but without the need for a separate agreement. have any rights to equity in mining projects?
The Mining Law establishes that the Mining Contract must be
All prospection and production concessions must be granted signed with companies that have the State as shareholder
by way of public tender and, unlike under the old Petroleum and a minimum local content. The Government must create
Law and as mentioned above, the types of concession mechanisms for the involvement of the national businessmen
contracts foreseen in terms of the new Petroleum Law now on the mining undertakings and promote the listing of mining
include a concession for the construction and operation of companies in the Mozambique Stock Exchange.
infrastructures.
Pursuant to the Mining Law, the State is required to
The State reserves the right to participate in petroleum progressively increase its participation in mining projects.
operations in which any legal entity is involved. The State Nevertheless, the Mining Law is unclear as to whether this
may also decide to participate in any given project and at means that the State shall be a larger participant in mining
any stage under the terms to be established by contract projects in the future, or whether the State is expected to
between the State and the holder of the rights. obtain greater interests in particular projects over time.

In addition to what was already established under the old

Petroleum Law, the new Petroleum Law provides that the PROCESSING AND BENEFICIATION
State shall promote a progressive increase of its participation
in all oil and gas ventures.
Are there any requirements to beneficiate minerals
mined?
The Mining Law establish that whenever the availability
INDIGENISATION REQUIREMENTS of resources and the economic feasibility so justifies the
processing and benefit of minerals mined in Mozambique
Are there any requirements in relation to the holding of must be undertaken within Mozambique territory.
equity in exploration and mining projects by indigenous
peoples? Are there any restrictions on the export of minerals?
The Mining Law establishes that the Mining Contract must be Mineral products are subject to a special export customs
signed with companies that have the State as shareholder regime, pursuant to the Mining Law and Customs Clearance
and a minimum local content. Laws and Regulations, holders of exploration licenses are
only allowed to export mineral samples for analysis and
The Mozambique Government must create mechanisms of testing abroad.
involvement of Mozambican companies or individuals on the
mining ventures and shall promote, gradually, the increase of Holders of mining concession are allowed to export mineral
the level of its participation on mining ventures. products they produced in the area covered by the title and

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exportation of mineral products are only permitted after domain, which are areas considered to be destined for the
payment of due Production Tax. satisfaction of the public interest.

Areas that are intended for nature conservation or

TRANSFER OF RIGHTS preservation activities and area for State security and
defence are considered total protection zones.
Are there any statutory consents required to dispose of The following areas are considered partial protection zones:
rights to explore and mine? • The bed of interior waters, the territorial sea and the
The transfer of title, rights and obligations under a mining exclusive economic zone;
licence, whether to an affiliate or a third party, may only take • The continental platform;
place two years after the commencement of the relevant • The strip of maritime coastline, including that around islands,
mining activities authorised by the mining licence. Such bays and estuaries, which is measured from the high tide
transfers must be in accordance with Mozambican law line mark 100 meters inland;
and will be subject to the approval of the Government of • The land strip of up to 100 meters surrounding water
Mozambique. sources;
• The land strip of up to 250 meters along the edge of dams
The Mining Law expressly provides that indirect transfers and reservoirs;
of participating interests, titles and/or mining rights, • The land occupied by public interest railway lines and their
notably by way of change of control of any licence holder, respective stations with a bordering strip of 50 meters on
shall be considered as a transfer of rights and obligations each side of the line;
under a mining licence and shall, therefore, require prior • The land occupied by motorways and four lane highways,
governmental approval. aerial, surface, underground and water installations and
conduits for electricity, telecommunications, petroleum,
Non-compliance to any transfer requirements results in gas and water, including a bordering strip up to 50 on
any such transfers being void and invalid. each side, as well as the land occupied by roads including
Such transfers of rights may also be subject to the payment of a bordering strip of 30 meters for primary roads and 15
capital gains tax. As of 1 January 2014, capital gains derived meters for secondary and tertiary roads;
from the sale of shares of a resident company by a non-tax • The 2 kilometer strip of land along the terrestrial border;
resident are taxable. • The land occupied by airports and aerodromes with
surrounding strip of land of 100 meters; and
• The 100 meters strip of land surrounding military or other
USE OF SURFACE OF LAND INVOLVED IN defence and security installations of the State.
PROSPECTING AND MINING ACTIVITIES
Special licenses may be issued for specific activities, which
will authorise the carrying out of any economic activity within
What are the rights of the holder of an exploration right or
total or partial zones.
mining right to use the surface necessary or incidental to
an exploration or mining operation?
The Mozambique State has priority over other land rights
The Mining Law states that the use and occupation of land
and the land rights may be extinct in favour of the State upon
for purposes of mining activities are regulated by law and
just indemnification paid by the applicants of the mining
that the pre-existing land rights are considered extinct after
exploitation.
payment of just compensation to land title holders and
revocation of such titles, under the terms of applicable laws.
When the area subject to concession, in part or whole,
The right of use and benefit from land obtained by the mining
is occupied by families or communities that imply the
title holder has a specific validity period and dimension
resettlement, the company/applicant is obliged to indemnify
established on the mining title.
such populations on terms to be regulated.
When the development, use and benefit of certain mineral
The mining right is distinct of the right of use and benefit of
resources is considered of public interest for the national
land or of any other pre-existing rights.
economy or for future development of the region were
occurring, the Government may declare that such land on
The attribution of the mining rights does not necessarily
which the mineral resources are located to be reserved for
imply the attribution of the right of use and benefit of land
preservation purposes, specifying the type of incompatible
or of other pre-existing rights, which are kept under the
activities and not permitted on such mining reserved area.
Mozambique State custody up to the closing of the mining
activities.
No rights of land use and benefit can be acquired in total
and partial protections zones, and the exercise of mining
After the closing of the mining activities the Mozambique
activities on such areas is subject to specific legislation.
State may attribute the right of use and benefit of land to
The total and partial protection zones are part of the public
other applicants.

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ENVIRONMENTAL over other land rights and these may be extinct in favour of
the State upon just compensation which must be paid by the
applicants of the mining rights.
What legislation governs environmental protection of
exploration and mining sites?
When the area subject to concession, in part or whole,
The main legislation is Decree no. 61/2006, of 26th December
is occupied by families or communities that implicate
• Regulation on Health and Safety for Mineral Activities and
the resettlement, the company/applicant is obliged to
Decree no. 26/2004, of 20th August - Environmental
compensate such populations on terms to be regulated in a
Regulation for Mineral Activities and Ministerial Diploma
memorandum of understanding.
no. 189/2006, of 14th December - The Basic Rules on
Environmental Management for Mineral Activities.
The just compensation must be executed by means of
memorandum of understanding between the Government,
Pursuant to the above legislation and prior to the
the company and the communities, and the memorandum
commencement of mineral operations, holders of mining
is pre-requisite for the granting of the mining exploitation
licenses are required to prepare and lodge security, health and
rights.
safety plans to the Ministry of Mineral Resources and Energy
and to the Ministry of Labour, including risk assessment,
potential sources of fire explosion, use and maintenance of
equipment, working conditions and measures to mitigate HEALTH AND SAFETY
and prevent risks, accidents and occupational diseases.
What legislation governs health and safety in mining?
Under the Mining Law, mining activities are classified under Labour Law and its regulations contemplate provisions and
the following categories: rules, of general application, dealing with health and safety.
• Category A: The activities exercised under the mining The Mining Law states in its Article 41(1) that persons who
concessions; extract mineral products under a permit as defined in this
• Category B: The mining activities in quarries, activities of Article, shall comply with all the regulatory provisions
exploration (prospecting and research) for the pilot project applicable to mining management, health and safety.
and activities under mining certificate; and
• Category C: The activities under mining passes and mineral Under that context, by the Decree no. 61/2006, of 26th of
exploration (prospecting and research) that do not involve December, the Government approves the Regulation on
mechanized equipment. technical safety and health for geological and mining activities.
Article 297 of this legal document provides guidelines for risk
It is important to note that each category will be subject to assessment to assure the safety of workers and equipment.
different types of environmental assessment processes, Companies, miners´ associations and the workers shall be
namely: involved in the discussion of the risk analysis.
• Category A – is subject to an Environmental Impact
Assessment (EIA); According to Article 313 of the referred Regulation, the breach
• Category B - is subject to a Simplified Environmental Impact of the provisions of the Regulation shall be penalised with
Assessment (simplified EIA); and a fine, which varies from five up to one hundred minimum
• Category C - is subject to an Environmental Management national salaries, without prejudice of the criminal procedure,
Program (PGA). in terms of Criminal Law, the companies that:
• Do not comply with the provisions of this Regulation
The Mining Law indicates that differing levels of regarding health, safety, transport, equipment in
environmental impact assessments are required for each underground or outdoor work;
classification of mining activities. That said, no further details • Incorrect use of the mercury while processing the gold; and
are provided as to the substantive requirements for each • Do not comply with the minimum limits of the oxygen
type of environmental impact assessment and how these concentration in the air, presence of pollutant gases, as
obligations may be fulfilled, given that these provisions are well as other chemical elements in concentrations above
regulated in specific legislation – Decree no. 54/2015, of 31st the maximum limits, which could influence the environment
of December. on site, endangering workers´ health.

NATIVE TITLE AND LAND RIGHTS CONSTITUTIONAL AND ADMINISTRATIVE

LAW
Is there any native title which has any implication for the
exploration and mining industry? Is there a constitution which has an impact upon rights to
The Mining Law states that the pre-existing land rights are prospect and mine?
considered extinct after payment of just compensation to The Constitution of the Republic of Mozambique of 2004
land title holders and revocation of such titles, under the states that natural resources on the soil and subsoil and in
terms of applicable laws. The Mozambican State has priority the offshore areas within the jurisdiction of Mozambique are

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owned by the State of Mozambique, and the access to such Concessions and Mining Certificates holders over the net
resources is subject to statutory provisions. cash flow resulting from the mining activity during the fiscal
year end and which revenue before Corporate Tax is equal
Are there administrative appeals in the mining law? or superior than 18%. Such tax is rated at 20%.
Administrative appeals are governed by specific
administrative legislation. Furthermore, the new tax regime provides tax stability for a
period of up to 10 years, counting from the date of production
and may be extended up to the termination of the primary
ROYALTIES AND TAXES concession, subject to the additional payment of 2% of the
Mining Production Tax.
Are there special rules applicable to taxation of exploration
and mining companies? Moreover, under the new mining tax regime the Corporate
Under the Mining Law, concessionaires shall pay, along with Income Tax liability of companies holding concession
any relevant specific taxes on petroleum operations: contracts will be calculated separately for each concession
• Income Tax; contract, as it was already provided in the general tax law.
•V  alue Added Tax; This means that a separate tax return has to be submitted for
•P  roduction Tax; each concession (mining activities are subject to ring-fencing
•S  urface Tax; principle, on a mineral right or license basis).
•M  unicipal Tax, when applicable; and
•A  ny other relevant taxes required by law. The law requires all mining companies in Mozambique
to comply with the local transfer pricing rules, under the
The Mozambique Parliament approved the enabling law in principle of independent entities and lists the specific
respect of Specific Regime of Taxation and Fiscal Benefits for transactions in which this principle is applicable, among them
Mining Operations (Law no. 28/2014, of 23rd of September), are the transactions that refer to different concessions held
which provides further specificities, in respect to specific by the same taxpayer.
taxes in the mining sector and repeals the previous regime
(Laws no. 11/2007 and 13/2007, both of 27th of June). The Law no. 28/2014 further establishes that mining rights are
Specific Regime of Taxation and Fiscal Benefits for Mining considered as immovable property and that all capital
Operations entered into force on the 1st of January of 2015. gains arising from the direct or indirect transfer of mining
rights, by non-resident entities with or without permanent
Such Law provides that the Production Tax applies to the establishment in Mozambique, irrespective of the place
extracted mineral product after treatment. If no treatment where such transaction is completed, will be taxed at a fixed
is required then the Tax is applied over the extracted rate of 32%. The capital gains tax shall become due and
mineral product. The value is calculated based on the price payable by the seller or transferor but the purchaser and the
at which the last consignment of mineral was sold by the Mozambican entity holding the mining rights has separate
mining holder and shall corresponds to international market and joint liability for the payment of the tax. In the case of
reference price. doubt on the price of the transaction, the tax authorities may
refer to the best international practices to determine the
Holders of mining rights are also subject to pay surface tax. price.
The Production Tax (royalty) is applied as follows:
•8  % for diamonds; In fact, the law sets out specific rules relating to the
• 6% for precious metals, precious and semi-precious stones calculation of gains, taxable income, deductible costs and
and heavy sands; amortization in the framework of mining activities, rules that
• 3% for basic metals, coal, ornamental rocks and remaining were previously established under the different concession
mineral products not included above points; and agreements. Another change introduced by this law is that
• 1 .5% for sand and stone. income from the provision of services rendered by non-
resident entities to Mozambican mining companies is subject
All mineral products utilised for the development of the local to a withholding tax at the rate of 10%.
industry benefits of reduction of 50% of the Production Tax.
Indirect transfers of participating interests, titles and/or Finally, the new mining tax regime grants exemptions from
mining rights, notably by way of change of control of any custom duties for a period of five fiscal years, particularly in
licence holder, shall be considered as a transfer of rights and relation to the importation of capital and goods. Note that
obligations under a mining licence, irrespective if within or such goods are subject to Value Added Tax.
outside of Mozambique territory, are subject to capital gains
rated at 32%. Mining companies are obliged to have audited accounts
duly certified by an independent, authorised auditor.
Law no. 28/2014, of 23rd of September and its subsequent
amendment created a new tax under the name of Tax over
the Mineral Resource Revenue, which applies to all Mining

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Are there any royalties payable to the State over and

above any taxes?
Law no. 28/2014, of 23rd September provides for a tax named,
Tax over the Mineral Resource Revenue which applies to all
Mining Concessions and Mining Certificate holders over the
net cash flow resulting from the mining activity during the
fiscal year end and is rated at 20%.

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NAMIBIA
CRONJE INC

FIRM INFORMATION
Website address : www.cronjelaw.com
Languages spoken : English, Afrikaans
Telephone : +264 81 319 8200
Address : 1 Jan Jonker Road, Klein Windhoek, Windhoek, 0000, Namibia
Contact : Christiaan Cronjé
Email : [email protected]

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 www.lexafrica.co.za

NAMIBIA | CRONJE INC

RELEVANT AUTHORITIES AND of 1992 (which are still applicable under the Labour Act 11 of
2007) also apply to all employment relationships in Namibia,
LEGISLATION including those in the minerals industry.

What laws regulate mining? Which Government Bodies administer mining law?
The Constitution of the Republic of Namibia of 1990 (the In Namibia, the mining sector is primarily regulated by the
“Constitution”) provides that all natural resources (including Ministry of Mines and Energy (MME), which oversees the
minerals) below and above the surface of the land and in administration of the Minerals (Prospecting and Mining)
the continental shelf and within the territorial waters and the Act, 1992, and is responsible for issuing licenses for
exclusive economic zone of Namibia belong to the State, reconnaissance, prospecting, and mining activities. The
unless they are otherwise lawfully owned. This includes Ministry also ensures compliance with mining regulations,
mineral resources. promotes sustainable exploitation of resources, and
maintains the country’s geological database. Within the MME,
Namibia’s mining industry is primarily governed by the the Directorate of Mines handles licensing and mine safety,
Minerals (Prospecting and Mining) Act, 1992 (Act No. 33 of the Geological Survey of Namibia conducts geological
1992) (“the Act”) which provides a comprehensive framework research, and the Directorate of Diamond Affairs regulates
for the reconnaissance, prospecting, and mining of minerals diamond-related activities.
within the country. This Act outlines the procedures for
obtaining various mineral rights, including non-exclusive Environmental compliance in the mining industry is
prospecting licenses, mining claims, reconnaissance administered by the Ministry of Environment, Forestry
licenses, exclusive prospecting licenses, mineral deposit and Tourism (MEFT), which enforces the Environmental
retention licenses, and mining licenses. Management Act, 2007. The MEFT issues Environmental
Clearance Certificates (ECCs) for mining projects, conducts
In 2008, the Act was amended by the Minerals (Prospecting Environmental Impact Assessments (EIAs), and monitors
and Mining) Amendment Act, 2008 (Act No. 8 of 2008) adherence to environmental management plans (EMPs).
to address evolving industry needs and regulatory Labor and workplace safety in the mining sector are
requirements. regulated by the Ministry of Labour, Industrial Relations and
Employment Creation, which ensures compliance with the
Environmental considerations in mining activities are Labour Act, 2007, addressing health and safety conditions in
regulated by the Environmental Management Act, 2007 (Act mines and resolving labor disputes.
No. 7 of 2007), and the Environmental Impact Assessment
Regulations passed in terms of thereof, which mandates The Namibia Revenue Agency (NamRA) manages the
environmental impact assessments and the issuance of collection of taxes and royalties from mining operations,
environmental clearance certificates for mining projects. ensuring compliance with national taxation laws. The Namibia
The Environmental Management Act provides for a process Investment Promotion and Development Board (NIPDB) plays
of assessment and control of activities which may have a key role in attracting and facilitating investments in the
significant effects on the environment; for example, no person mining sector, supporting both foreign and local investors.
may undertake a listed activity without an environmental Finally, the Namibian Ports Authority (Namport) oversees the
clearance certificate. Listed activities include mining and export of minerals, ensuring proper handling and regulatory
quarrying activities. The Minister of Mines and Energy may compliance at Namibia’s ports. Together, these government
not issue a mineral licence before the applicant has obtained bodies create a cohesive framework for regulating the mining
an environmental clearance certificate. industry, balancing resource utilisation with environmental
and economic considerations.
Labour practices within the mining sector are governed by
the Labour Act, 2007 (Act No. 11 of 2007), ensuring safe
working conditions and the protection of workers’ rights.
Additionally, the Diamond Act, 1999 specifically regulates the
TYPES OF AND MANNER OF ACQUISITION
diamond industry, covering aspects such as the possession, OF RIGHTS
purchase, and sale of diamonds.
What rights are granted to conduct reconnaissance,
Health and safety aspects relating to the minerals industry exploration and mining operations?
were passed in terms of the previous Mines, Works and
Minerals Ordinance 20 of 1968 (the “Ordinance”). The In Namibia, the rights to conduct reconnaissance, exploration,
Ordinance is still in force in terms of the Minerals Act and and mining operations are granted under the Act. These
will remain in force, until it is repealed. The general health rights are issued through specific licenses and permits, each
and safety regulations passed in terms of the Labour Act 6 tailored to different stages of mineral resource development.
Non-Exclusive Prospecting Licence (NEPL)

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This licence allows the holder to prospect for minerals and Production) Act of 1991, commonly referred to as the
over large areas without exclusivity. It is typically used for Petroleum Act. This legislation vests all rights to petroleum
preliminary investigations and does not permit the holder to resources within the state, regardless of land ownership.
claim rights to discovered resources. Consequently, any individual or entity seeking to engage in
petroleum operations must obtain the appropriate licenses
Reconnaissance Licence (RL) from the Ministry of Mines and Energy.
This licence grants the holder the right to conduct
geological and geophysical surveys over a specified area. The Petroleum Act provides for three primary types of
Reconnaissance is usually limited to non-intrusive methods, upstream petroleum licenses:
such as remote sensing or mapping, and does not include
drilling or excavation. It is valid for up to two years and is • Reconnaissance License: This non-exclusive license
non-renewable. permits the holder to conduct preliminary exploration
activities, such as geological and geophysical surveys, to
Exclusive Prospecting Licence (EPL) assess potential petroleum resources;
The EPL grants exclusive rights to prospect for specified • Exploration License: This exclusive license allows the
minerals within a defined area. It allows for detailed holder to carry out detailed exploration operations,
exploration activities such as sampling, drilling, and including drilling, within specified blocks. It grants the
geological studies. EPL’s are issued for a period of three years holder exclusive rights to explore for petroleum in the
and can be renewed for up to two additional two-year terms, designated area; and
provided the holder meets the stipulated requirements and • Production License: This license enables the holder
obligations. to undertake production operations, including the
development and extraction of petroleum resources within
Mining Claim the licensed blocks. It also permits the sale or disposal of
A mining claim grants rights to individuals or small-scale the recovered petroleum.
operators to extract minerals on a relatively small scale.
These claims are usually limited to specific types of minerals Applications for these licenses must adhere to the
and are available only to Namibian citizens or entities. The stipulations outlined in the Petroleum Act. Notably, there
holder must demonstrate an intention to develop and work are no prescribed application forms; instead, applicants are
the claim. required to compile their submissions in accordance with
guidelines specified in the Act.
Mining Licence (ML) It’s important to note that Namibia has transitioned from an
This licence is issued for large-scale mining operations open licensing system, where rights were granted on a “first
and grants the holder the exclusive right to mine specific come, first served” basis, to a more structured approach.
minerals within a defined area. A mining licence is valid for This shift aims to better manage the increasing interest and
up to 25 years and can be renewed. The holder must meet applications in the oil and gas sector, especially following
environmental, social, and economic obligations, including significant offshore discoveries.
submitting a feasibility study and obtaining an Environmental
Clearance Certificate (ECC).
INDIGENISATION REQUIREMENTS
Mineral Deposit Retention Licence
This licence allows a holder of an EPL or mining licence
to retain rights to a mineral deposit that is not currently Are there any requirements in relation to the holding of
economically viable to develop. It is valid for up to five years equity in exploration and mining projects by indigenous
and is renewable. peoples?
The Minerals Act does not provide for rights of indigenous
These rights are subject to strict regulatory requirements, people.
including environmental compliance under the Environmental
Management Act, 2007, and adherence to labour laws and Are there any special rules or restrictions applicable to
royalty payments. Holders of these licenses must also comply foreign applicants?
with reporting and performance obligations to maintain their The Foreign Investments Act 27 of 1990 (the “Foreign
rights. Investments Act”) provides for the promotion of foreign
investments in Namibia. It is generally considered to be
investor friendly. The Foreign Investments Act was repealed
by the Namibia Investment Promotion Act 9 of 2016 (the
OIL AND GAS “Namibia Investment Promotion Act”), which has not come
into force since it was passed by Parliament. When and if
What rights are granted to conduct oil and gas exploration the Namibia Investment Promotion Act will come into force is
and production? uncertain. The Foreign Investments Act therefore continues
In Namibia, the exploration and production of oil and to apply.
natural gas are governed by the Petroleum (Exploration

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As set out above, the mining sector is governed by the as a key component of its economic development strategy.
Minerals (Prospecting and Mining) Act of 1992, which allows While there are no explicit legal mandates compelling mining
both domestic and foreign entities to obtain mineral rights. companies to undertake beneficiation, the government
However, specific regulations and policies impose certain actively promotes this practice through various policies and
requirements and restrictions on foreign applicants. strategic initiatives.

Since April 2021, the Namibian government requires that In 2021, Namibia introduced its Mineral Beneficiation
all applications for new mining licenses include at least 15% Strategy, aiming to enhance local value addition across the
ownership by Namibian citizens. This policy aims to promote mining sector. This strategy seeks to create a conducive
local participation and ensure that the benefits of mining environment for investment in beneficiation activities, thereby
activities are shared with the Namibian populace. fostering industrialisation and economic diversification. It
outlines specific objectives, including increasing the level
Furthermore, foreign companies seeking mineral rights of mineral beneficiation activities along value chains and
must either incorporate a company under the Namibian facilitating economic diversification through various linkages.
Companies Act or register as an external company (branch) The government’s commitment to beneficiation is further
in Namibia. This ensures that foreign entities have a formal reflected in its broader economic policies, such as the Growth
and accountable presence within the country. at Home strategy, which emphasises industrialisation and
value addition to local resources. These policies collectively
Identify any rights that the State may have. Does the State aim to transform Namibia from an exporter of raw materials
have any rights to equity in mining projects? to a producer of finished goods, thereby maximising the
In Namibia, the state holds significant rights and interests in economic benefits derived from its mineral wealth.
mining projects under the Minerals (Prospecting and Mining)
Act, 1992 and related policies. All mineral resources within While not legally obligatory, mining companies operating
Namibia are considered state property, with the government in Namibia are encouraged to align with these national
having exclusive authority to grant, deny, or revoke mining objectives by engaging in beneficiation activities. This
and exploration licenses. While individuals or entities, alignment not only supports the country’s economic goals
whether local or foreign, do not own mineral resources but also enhances the sustainability and social responsibility
outright, ownership transfers under the terms of a license of mining operations within Namibia.
once extraction occurs. The state also actively participates
in mining projects, particularly through the Epangelo Mining Are there any restrictions on the export of minerals?
Company, a state-owned enterprise mandated to ensure Namibia has implemented specific restrictions on the export
government involvement in strategic mining ventures. This of unprocessed minerals to enhance local value addition and
participation often includes acquiring equity stakes in critical capitalise on the growing global demand for critical minerals
commodities such as diamonds, uranium, copper, and rare essential to clean energy technologies. In June 2023, the
earth elements. Namibian government announced a prohibition on the export
of certain unprocessed minerals, including crushed lithium
Additionally, Namibia enforces local ownership policies ore, cobalt, manganese, graphite, and rare earth elements.
requiring a minimum of 15% Namibian ownership in new This policy aims to encourage domestic processing and
mining projects. In some cases, the government declares beneficiation, thereby fostering industrialisation and
certain minerals as “strategic,” granting the state exclusive economic diversification within the country.
rights to their development, often through partnerships or
exclusive licenses to state-owned entities. Beyond equity Under this regulation, the export of these unprocessed
participation, the state benefits economically through minerals is generally banned. However, the Minister of
royalties and corporate taxes. Mines and Energy holds discretionary authority to permit
Recent revisions to Namibia’s the export of limited quantities for specific purposes,
Minerals Policy emphasize modernizing the regulatory subject to Cabinet endorsement. This provision ensures that
framework and enhancing local content, beneficiation, while the overarching goal is to promote in-country value
and state equity in mining projects. These measures are addition, there remains flexibility to accommodate particular
designed to ensure the state and Namibian citizens share circumstances that may warrant exceptions.
in the benefits of mining activities, while the government
retains strategic control over its valuable natural resources. The Namibian government’s stance is clear: to cease the
export of raw minerals and instead develop local processing,
refining, recovery, and recycling capacities. This approach
PROCESSING AND BENEFICIATION is intended to improve the sustainability of the extractive
industry and ensure that the country derives maximum
economic benefit from its natural resources.
Are there any requirements to beneficiate minerals
mined? In summary, Namibia enforces restrictions on the export of
Namibia has prioritised mineral beneficiation—the process unprocessed minerals, particularly those critical to renewable
of transforming raw minerals into higher-value products—

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energy technologies. These measures are designed to for these operations, such as buildings, plants, or other
stimulate local beneficiation and processing industries, structures. However, these rights are subject to obtaining the
thereby enhancing the country’s economic growth and self- necessary permissions from landowners or lawful occupiers
reliance in the mineral sector. in accordance with section 52 of the Minerals Act. If such
permissions are unreasonably withheld, the license holder
Certain limitations exist on the export of source material. can apply to the Minerals Ancillary Rights Commission to
No person may, except with the written permission of the obtain the required rights. This process ensures that while
Minister of Mines and Energy, export any source material license holders can access and utilise the surface land for
from Namibia. The exportation of diamonds are also strictly their operations, the rights of landowners are also considered
regulated in terms of the Diamond Act and the regulations and protected.
made in terms of the Diamond Act.

ENVIRONMENTAL
DISPOSALS OF RIGHTS AND
CONTROLLING INTERESTS What legislation governs environmental protection of
exploration and mining sites?
Statutory consents required to dispose of rights to explore The Constitution mandates the State to actively promote and
and mine maintain the well-being of people by taking measures aimed
at the conservation of ecosystems, essential ecological
Reconnaissance licenses and non-exclusive prospecting processes and biological diversity and the use of living natural
licenses are non-transferable and non-disposable. Mining resources on a sustainable basis for benefit of all Namibians,
claims, exclusive prospecting licenses and mining licenses both present and future; in particular, the Government must
(collectively referred to as ‘mineral licenses’), on the other take measures against the dumping or recycling of foreign
hand, may be transferred with the consent of the Minister nuclear and toxic waste on Namibian territory.
of Mines and Energy. In addition, no interest in a mineral
licence may be granted, ceded or assigned, and no person Further, the environmental protection of exploration and
may be joined as a joint holder of a mineral licence, without mining sites in Namibia is primarily governed by the following
the consent of the Minister of Mines and Energy. key pieces of legislation:

Are there any restrictions on disposals of controlling • Environmental Management Act, 2007 (EMA): This is
interests in entities holding exploration or mining rights? the principal legislation for environmental protection
There are no restrictions on the disposal of a controlling in Namibia. It mandates that all exploration and mining
interest in companies that hold exploration or mining projects undergo an Environmental Impact Assessment
rights. However, there is an obligation to notify the Mining (EIA) and obtain an Environmental Clearance Certificate
Commissioner of any change in ownership of more than 5% (ECC) before commencing operations. The Act aims to
beneficial shareholding in the licence holder. In practice, the ensure sustainable use of natural resources and to mitigate
Minister of Mines and Energy has interpreted ‘interest in a adverse environmental impacts;
mineral licence’ to include a controlling interest in the holder • Minerals (Prospecting and Mining) Act, 1992: This Act
of a mineral licence as well. includes provisions requiring mining companies to comply
with environmental obligations during exploration and
Under the Competition Act, 2003, any merger or acquisition mining activities. Operators must rehabilitate disturbed
that results in a change of control over a business, provided sites and adhere to environmental management plans as
certain monetary thresholds are met, necessitates approval part of their license conditions;
from the Namibian Competition Commission. This ensures • Water Resources Management Act, 2013: This legislation
that changes in control do not adversely affect market regulates the use and protection of water resources,
competition. ensuring that exploration and mining activities do not
pollute or excessively deplete water resources. Mining
companies must obtain permits for water use and
wastewater discharge;
USE OF SURFACE OF LAND INVOLVED IN • Pollution Control and Waste Management Bill (Draft):
PROSPECTING AND MINING ACTIVITIES Although not yet enacted, this draft legislation provides
guidelines on managing pollution and hazardous waste,
What are the rights of the holder of an exploration right or including regulations for the mining sector.
mining right to use the surface necessary or incidental to • Nature Conservation Ordinance, 1975: This ordinance
an exploration or mining operation? regulates the protection of wildlife and natural habitats,
Mineral license holders are entitled to enter land to conduct particularly where mining activities occur in or near
authorised reconnaissance, prospecting, or mining activities. protected areas; and
They may also erect or construct accessory works essential • National Heritage Act, 2004: This Act protects Namibia’s
cultural and archaeological heritage, which may be

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impacted by mining operations. Exploration and mining they influence how land access and use are negotiated in
activities must avoid disturbing heritage sites. communal areas.

Key Requirements for Environmental Compliance:

• Environmental Impact Assessments (EIAs): Required under HEALTH AND SAFETY
the EMA for all exploration and mining projects to identify
potential impacts and propose mitigation measures; What legislation governs health and safety in mining?
• Environmental Management Plans (EMPs): Detailed plans Occupational health and safety in the extractive and mining
outlining how environmental impacts will be managed industry is primarily governed by the regulations relating
during operations; and to Health and Safety of Employees at Work, made in terms
• Rehabilitation Obligations: Mining companies are required of the repealed Labour Act 6 of 1992, and the regulations
to rehabilitate disturbed land to its original or an agreed- made in terms of the repealed Mines, Works and Minerals
upon state after operations. Ordinance 20 of 1968 which, although the principal acts
Namibia’s environmental legislation emphasises sustainable have been repealed, continue to apply. New regulations
development, balancing mineral resource exploitation with have been drafted but are not yet in force.
environmental conservation. Non-compliance can lead to
fines, revocation of licenses, or operational suspension.
CONSTITUTIONAL AND ADMINISTRATIVE
NATIVE TITLE AND LAND RIGHTS LAW

Is there any native title which has any implication for the Is there a constitution which has an impact upon rights to
exploration and mining industry? prospect and mine?
In Namibia, the concept of native title as recognised in The Constitution states that all natural resources (including
jurisdictions like Australia, where indigenous peoples’ minerals) below and above the surface of the land and in
traditional rights to land are protected does not have a direct the continental shelf and within the territorial waters and the
legal equivalent. The Minerals Act does not recognise native exclusive economic zone of Namibia belong to the State
title. However, there are important considerations related to unless they are otherwise lawfully owned. Importantly, the
land rights, customary law, and communal land ownership Constitution protects the right to property (which extends
that can significantly impact the exploration and mining to mining titles), the right to fair treatment, the right to
industry. just administrative action, and the right to have disputes
determined by a court of law or by an independent and
These considerations are governed by the Communal Land impartial tribunal.
Reform Act, 2002 and related legal frameworks:
• Communal Land Ownership: Approximately 41% of Several constitutional principles and articles are relevant to
Namibia’s land is communal land, owned and managed by the mining industry:
traditional authorities under customary law. This land is held • Sovereignty Over Natural Resources (Article 100): The
in trust by the state for the benefit of local communities. Constitution explicitly states that all natural resources,
Mining or exploration activities on communal land require including minerals, are owned by the state unless
consultation and consent from the traditional authorities otherwise lawfully owned. This provision ensures that
and affected communities; mineral resources remain under the control of the Namibian
• Requirement for Surface Rights: While mineral rights are government, which has the authority to grant, regulate, or
owned by the state under the Minerals (Prospecting and revoke rights to prospect and mine;
Mining) Act, 1992, mining companies must obtain surface • Environmental Protection (Article 95(l)): The Constitution
rights or access agreements with landowners or occupiers, mandates the state to promote environmental sustainability
including traditional authorities in communal areas; and ensure the protection of Namibia’s ecosystems and
• Consultation with Traditional Authorities: Exploration natural resources. Mining activities must comply with
and mining license holders must engage in meaningful environmental laws and policies to uphold this principle,
consultation with traditional authorities and community including conducting Environmental Impact Assessments
members to secure consent for operations. Failure to do (EIAs) and adhering to regulations that mitigate
so can result in disputes and delays; environmental damage;
• Environmental and Social Impact: Projects on communal • Fundamental Human Rights and Freedoms (Chapter 3): The
land may face stricter scrutiny regarding environmental and Constitution guarantees fundamental rights, such as the
social impacts. Community concerns about displacement, right to property (Article 16), which impacts how land and
loss of grazing land, or environmental degradation can lead mineral rights are allocated and exercised. While the state
to challenges if not addressed proactively; and owns mineral resources, landowners’ and communities’
• Land Reform Policies: Namibia’s land reform initiatives rights must be respected, particularly in cases of communal
aim to address historical inequities in land distribution. or private land;
While these reforms do not directly impact mining rights, • Customary Land Rights: Although not explicitly mentioned

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in the Constitution, the recognition of customary laws income from a source or deemed source within Namibia
and practices in communal areas indirectly affects mining is taxable in Namibia unless a specific exemption applies.
operations. Mining companies must consult and engage The territory of Namibia, when used in geographical sense,
with traditional authorities and affected communities to includes the territorial sea as well as the exclusive economic
gain access to land for exploration and mining. zone and the continental shelf over which Namibia
• Equality and Equity (Article 23): Namibia’s Constitution exercises sovereign rights in accordance with its national
emphasises addressing historical inequalities, which has and international laws concerning the exploration and
influenced policies requiring local participation in mining exploitation of the natural resources of the sea-bed and its
projects. This includes mandatory local ownership or equity subsoil and the super-jacent waters.
stakes in mining operations; and
• Protection of Heritage (Article 95(k)): The Constitution also A mining company’s taxable income is determined in the
calls for the preservation of Namibia’s cultural, historical, same manner as any other trade except for prospecting,
and natural heritage. This provision impacts mining capital development and rehabilitation costs. However,
operations, particularly in areas of archaeological or cultural mining companies are subject to different tax rates than
significance. other companies. In other words, companies that derive
taxable income from the mining of any mineral or substance
Are there administrative appeals in the mining law? other than diamonds, or from services rendered by a
Any person who feels adversely affected by any act or company in connection with such mining on behalf of any
decision of the Mining Commissioner with respect to any person authorised to carry out such mining activities, are
provision of the Minerals Act may appeal such act or decision subject to corporate income tax at a flat rate of 37,5%. Mining
within 30 days of the date such act or decision was made companies that derive taxable income from diamond mining
known to that person, and thereupon the Minister of Mines or from services rendered by such companies in connection
and Energy may uphold, reverse, or amend such action or with diamond mining on behalf of a person authorised to
decision. carry out such mining activities, are subject to corporate
income tax at a rate of 50% plus a surcharge of 10%, which
Disputes involving access to surface rights or compensation corresponds to an effective tax rate of 55%.
for land use can be referred to the Minerals Ancillary Rights
Commission (MARC). The MARC is an independent body Namibia uses the royalty system combined with corporate
tasked with resolving disputes between mining license income tax to capture revenue, spreading the risk of mining
holders and landowners or lawful occupiers. Its decisions between the state and corporate entities.
may be appealed to the High Court if one of the parties is
dissatisfied with the outcome. Namibian Withholding Taxes
Non-residents who do not have a place of business in
The right to fair and reasonable administrative justice is Namibia may be subject to withholding taxes. Namibia
guaranteed in the Constitution. The Mining Commissioner has four types of withholding taxes (each of which will be
and Minister of Mines and Energy are administrative bodies, discussed in more detail below):
and any decision made by them can be brought before the • Non-resident shareholders tax (“NRST”);
High Court for review. However, if the decision has been • Withholding tax on services (“WTS”);
made by the Mining Commissioner, the High Court can • Withholding tax on royalties (“WTR”); and
suspend any application until the internal appeal has been • Withholding tax on interest (“WTI”).
exhausted. A withholding tax is a final tax, meaning that when it is paid,
no further tax arises on the amounts.
Decisions related to environmental compliance, such as the
issuance or denial of Environmental Clearance Certificates Non-resident shareholder’s tax
(ECCs) required for mining activities, can be appealed A NRST is levied on dividends received by a non-resident
under the Environmental Management Act, 2007. These shareholder. NRST is payable at a standard rate of 10% if at
appeals are reviewed by the Environmental Commissioner least 25% of the shares are held in the Namibian company
and, if necessary, the Minister of Environment, Forestry, and and the shareholder is a company. In all other cases, the
Tourism. NRST will be payable at 20%.

Withholding tax on services

ROYALTIES AND TAXES A WTS is applicable to any Namibian resident paying a
management, consultancy, director’s or entertainment fee
to a non-resident. The ITA specifically defines “management
Are there special rules applicable to taxation of exploration and consultancy fees” as “any amount payable for the
and mining companies? administrative, managerial, technical or consultative services,
Overview whether such services are of a professional nature or not” .
The statute imposing income tax in Namibia is the Income “Entertainment fees” are further defined as “any amount
Tax Act 24 of 1981 (the “Income Tax Act”). payable to an entertainer (including a cabaret, motion
Namibia has a source-based tax regime which means that picture, radio, television or theatre artiste and any musician)

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or a sportsperson, and includes any payment made to any qualify for the same 20% and 4% deductions. Note that the
other person in relation to such activity”. allowance is calculated on the cost of erection and not the
WTS is payable at a rate of 25% on directors’ fees and cost of acquisition. The allowance is also only calculated for
foreign entertainment. In all other cases a WTS is payable at a period of 21 years from the date of erection.
a rate of 10%.
Registered manufacturers can claim 20% of the erection
Withholding tax on royalties costs of the building in the year it is first brought into use,
WTR is payable when a Namibian company pays a royalty to and 8% for ten years thereafter (see Manufacturing in the Tax
a non-resident. The terms “royalty” encompasses payments credits and incentives section).
made for:
• the use of any patent, design, trademark, copyright or any Mining exploration expenditure incurred before
property of a similar nature; commencement of mining production is deductible in full in
• the use of any motion picture film; the first year that income is generated from the mine. Initial
• the imparting of any scientific, technical, industrial or development and subsequent developmental expenditures
commercial knowledge; or are written off in three equal annual allowances.
• the use of commercial, industrial or scientific equipment.
WTR is levied at a fixed rate of 10%. Capital allowances may also be deducted with respect to
patents, trademarks, leasehold improvements, etc.
Withholding tax on interest A recovery or recapture of allowances previously claimed
The Namibian ITA provides for two types of withholding should be included in the gross income of a taxpayer in the
taxes applicable to interest. event that the allowance is recovered or recaptured by way
• Firstly, in terms of section 34A of the ITA, a withholding of disposal, withdrawal from trade for non-trade purposes,
tax is payable at a rate of 10% on interest accruing to any or removal from Namibia. The recapture is calculated at the
person, other than a Namibian company, from a registered market value of the asset.
Namibian banking institution or unit trust scheme; and
• Secondly, section 34B of the ITA, provides for a withholding Start-up Expenses
tax on interest received by or accrued to non-residents. The Income Tax Act allows exploration and initial
development expenditure to be deducted in full during the
The scope section 34B overlaps to some extent with the year in which the mine commences with production. All
scope of section 34A but there is a presumption against exploration expenses incurred before the commencement
double taxation, and the scope of the types of interest to of mining is therefore deferred until such time that the mine
which each section applies prevents both taxes applying in commences production.
respect of the same amount. In terms of both sections, a WTI
is levied at a rate of 10%. Charitable contributions/donations
A specific deduction for donations is allowed, provided that it
Stabilisation is made to a registered welfare organisation or an approved
There are currently no specific tax stabilisation arrangements educational institution. It is a further requirement that a
in Namibia. Provisions for tax stabilisation could be introduced certificate should be issued by the welfare organisation/
as part of an investment agreement, but experience has educational institution in respect of the donation and
shown that the Namibian government is very reluctant to submitted with the entity’s tax return in order for it to qualify
enter into stabilisation arrangements by way of an agreement. as a deduction. However, this deduction may not create or
increase a tax loss.
Tax incentives
The Income Tax Act provides for special deductions related The setoff against taxable income of the balance of assessed
to the taxation of mining operations. loss incurred by the taxpayer in any previous year and
which has been carried forward from the preceding year of
Capital Allowances assessment is now limited to N$1,000,000, or 80% of taxable
The cost (including finance charges) of vehicles, machinery, income, whichever is the greater, before taking into account
equipment, and other articles used by the taxpayer to the provisions of Section 21 or Section 36 of the ITA.
generate income is deductible in three equal annual
allowances claimable from the date the costs were incurred Net operating losses
and not only when the asset was taken into use. No Assessed losses will not be allowed to be carried forward for
apportionment is allowed where an asset is held for less than a period exceeding 5 years in respect of any taxpayer, or 10
12 months. years in respect of entities in the mining, petroleum, or green
hydrogen industries. It is important to note that temporary
Buildings used by the taxpayer to generate income qualify for discontinuance in the carrying on of your trade will not affect
an initial allowance of 20% of erection costs in the year they the 5 / 10 years limit.
are first brought into use. Thereafter, an annual allowance
of 4% is deductible for the 20 following years. Additions to The balance of assessed loss accumulated before 01
existing buildings (not alterations, improvements, or repairs) January 2024 can be carried forward for 5 / 10 years. These

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amendments are effective for financial years commencing on Are there any royalties payable to the State over and
or after 01 January 2024. Assessed losses are also reduced above any taxes?
in the event of a compromise agreement with creditors. Namibia imposes ad valorem royalties which is based on
Namibian tax legislation does not provide for the carrying the value of the mineral produced. In its simplest form, an
back of tax losses. A recovery or recapture of allowances ad valorem royalty consists of a uniform percentage (rate)
previously claimed should be included in the gross income of the value (base) of the mineral in the products sold by the
of a taxpayer in the event that the allowance is recovered miner. The calculation of value-based royalty varies hence
or recaptured by way of disposal, withdrawal from trade for the percentages should not be taken at face value. For
non-trade purposes, or removal from Namibia. The recapture instance, Namibia’s royalty value is based on sales revenue
is calculated at the market value of the asset. minus some costs. In addition, alternative royalty rate can be
negotiated.
Namibia has entered into double taxation agreements
with the United Kingdom, South Africa, Mauritius, Malaysia, The Minister of Mines and Energy is granted a wide discretion
Sweden, France, India, Russia, Romania, Botswana, and to levy royalties on minerals mined. The holder of any mineral
Germany. licence may be required to pay the Mining Commissioner:
• for any rough and uncut mineral of the precious stone
Transfer of mineral rights group, a 10% royalty on the market value;
The Income Tax Act states that gross income in respect • for any rough or unprocessed mineral of the dimension
of any year or period of assessment for any person is the stone group, a 5% royalty on the market value; and/or
total amount, in cash or otherwise, received by or accrued • for any other mineral, a royalty that is determined by the
to or in favour of such person during such year or period Minister of Mines and Energy. Currently, royalties are
of assessment from a source within or deemed to be within collected at 3% for precious metals, 3% for base and rare
Namibia, excluding receipts or accruals of a capital nature, metals, 2% for semi-precious stones, 3% for nuclear fuel
but including amounts (whether of a capital nature or not) minerals, 2% for industrial minerals and 2% for non-nuclear
so received or accrued from (amongst other things) the fuels. All these royalties are levied on the market value of
alienation of a mineral licence or right to mine minerals in the minerals.
Namibia and a petroleum licence or right to mine petroleum.
Mineral licence or right to mine minerals Below is a brief overview of the royalties payable to the State
in addition to any taxes:
Any amount received by or accrued to any person by way of
an alienation of a mineral licence or right to mine minerals in GROUPSOF MINERALS ROYALTY %
Namibia and includes an alienation of interests in an entity
holding such mineral licence or right to mine minerals in Precious Metal / Base and rare metals 3%
Namibia (whether directly or indirectly). Semi-precious stones / Industrial metals / 2%
Non-Nuclear fuel minerals
In addition, such amount will be deemed to be from a source Nuclear fuel minerals 3%
within Namibia regardless of where the contract is concluded,
or payment of any such amount is made or where the monies Oil and Gas 5%
from which payment is made are held.
The State is granted wide discretion with regard to the rate at
Petroleum licence or right to mine petroleum which royalties are to be imposed. The Minerals (Prospecting
Any amount received or accrued by way of a sale, donation, and Mining) Amendment Act 8 of 2008 (“Amendment Act”)
expropriation, cession, grant or other alienation or transfer of amends the existing legislation by deleting the maximum
ownership of a petroleum licence, or right to mine petroleum percentage of royalties that the Minister can charge on all
in Namibia, and includes a sale, donation, expropriation, minerals excluding precious stones and dimension stone
cession, grant or any other alienation or transfer of ownership and introduces the possibility of a windfall royalty. The
of any share or member’s interest in a company that holds Amendment Act, therefore, confers discretion on the Minister
a petroleum licence or petroleum right, whether directly, to levy a windfall royalty on the holder of a mining claim, a
or indirectly, less any acquisition costs and exploration non-exclusive prospecting licence or a mineral licence, if
expenditure relating to the petroleum licence or right, and there is an increase in the market price or, alternatively, mining
costs of improving the value of the petroleum licence or operations are made more profitable by new technology or
right, but the acquisition costs, exploration expenditure and any other circumstances. These amendments concerning
cost of improvement of the value of the licence or right may windfall taxes are applicable to all minerals. The Amendment
not create a loss. Act also introduces a new type of royalty in respect of all
minerals other than precious stones and dimension stone.
Taxable gains are generally not taxable in Namibia, the It is not certain what the nature of this royalty is, but it could
above are one of the specific exceptions. possibly be a penalty royalty.

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NIGERIA
GIWA-OSAGIE
& COMPANY

FIRM INFORMATION
Website address: www.giwa-osagie.com
Languages spoken : English
Telephone : +234-1-2707433
Address : 2nd Floor, Wing A, Sapetro Towers, No. 1 Adeola Odeku Street
Victoria Island, Lagos
Contact : Mr. Osayaba Giwa-Osagie SAN
Email : [email protected]

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NIGERIA | GIWA-OSAGIE & COMPANY

RELEVANT AUTHORITIES AND mining operations.

LEGISLATION Nigerian Extractive Industries Transparency Initiatives
Act 2007
What laws regulate mining? This Act was enacted to monitor and develop a framework
The notable legislation governing mining in Nigeria are as for transparency and accountability by companies in the
follows: extractive industry in reporting and disclosures of revenue
due to or paid to the Federal Government.
The 1999 Constitution of the Federal Republic of Nigeria
(as amended) Companies and Allied Matters Act 2020
The Constitution is the primary law of the land and prevails This Act was signed into law in 2020 to govern the registration
over all other laws. Any law inconsistent with the provisions of companies in Nigeria. A company which intends to obtain
of the Constitution is null and void. The Constitution vests a mining license must be incorporated in Nigeria under this
all mineral resources in the Federal Government, which Act.
reserves the right to transfer the said resources subject to
compliance with extant laws. National Environmental Standards and Regulations
Enforcement Agency (Establishment) (Amendment) Act,
The Nigerian Minerals and Mining Act, 2007 2018
The Nigerian Minerals and Mining Act, 2007 (the “Mining It establishes an enforcement agency for environmental
Act”), serves as the cornerstone of the legal framework standards, regulations, rules, laws, policies and guidelines.
for solid minerals in Nigeria. It provides a comprehensive
regime for the exploration and exploitation of solid minerals, Environmental Impact Assessment Act Cap E12 LFN 2004
replacing the Minerals and Mining Act of 1999. Some of the This Act guides decisions that affect or may have an impact
key provisions of the Act include: on the environment. It stipulates that before a decision is
• Ownership and Control: The Act vests control of all taken by any person, authority or government to undertake
mineral resources in the Nigerian State, which holds these any activity that will affect the environment, an assessment is
resources in trust for the people. This framework ensures to be conducted.
that private individuals or companies do not own mineral
resources but can obtain licenses or leases to explore and Mines and Quarries (Control of Building etc.) Act 1969
mine them. This Act regulates quarrying activities that include granting of
• Licensing Regime: The Act establishes a structured quarrying license, inquiries and safety of quarrying activities.
licensing regime, which includes: Apart from the statutory and regulatory provisions, English
o Reconnaissance Permit: This permit allows holders to Common Law, Equity and Statutes of General Application are
conduct preliminary surveys without the right to remove important sources of Nigerian law.
minerals;
o Exploration License: Grants exclusive rights to explore The Business Facilitation (Miscellaneous Provisions) Act,
for specific minerals within a designated area; 2022
o Mining Lease: Permits commercial extraction of minerals This Act streamlines business registration and regulatory
following successful exploration; processes. It also reduces bureaucratic barriers, accelerates
o Small Scale Mining Lease: Intended to promote local the licensing and approval process, and offers tax incentives
entrepreneurship in the mining sector; and to mining companies. By implementing a single-window
o Quarry Lease: Grants the right to extract building registration system, the Act facilitates faster processing
materials. for mining operators, making it easier for foreign and local
• Environmental and Social Obligations: The Act mandates investors to engage in mining activities in Nigeria. Also, the Act
rigorous environmental protection and rehabilitation provides tax reliefs and incentives for businesses, including
measures. Companies are required to submit Environmental those in the mining sector, to encourage investment. It also
Impact Assessments (EIAs) and Community Development promotes the development of Special Economic Zones,
Agreements (CDAs), ensuring that mining activities benefit where companies engaged in mining activities can benefit
local communities and minimize impact on the environment. from enhanced infrastructure and regulatory support.

The Nigerian Minerals and Mining Regulations, 2011 National Minerals and Metals Policy 2009
These regulations provide further details on the The Federal Government of Nigeria issued the National
implementation of the Nigerian Minerals and Mining Act, Minerals and Metals Policy in 2009. The main thrust of
specifying the technical, financial, and operational obligations this policy is to promote a new legislative framework that
of mining companies. They cover licensing procedures, the encourages private sector-led growth and development of
handling of royalties, and environmental requirements for the sector. Some of the policy strategies include:

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• Ensuring compliance with environmental best practices; TYPES OF AND MANNER OF ACQUISITION
• The promotion of small-scale mining activities; and
• The formalization of informal mining activities.
OF RIGHTS

The Nigeria Investment Promotion Commission (NIPC) What rights are granted to conduct reconnaissance,
Act (1995) exploration and mining operations?
This Act provides the legal framework for foreign direct
investment in Nigeria. Under the Act, foreign investors in the The following are the types of mineral titles and rights
mining sector are entitled to certain incentives, such as tax granted by the MCO:
holidays, import duty exemptions, and guarantees against • Reconnaissance permit: This enables the holder to
nationalization, subject to complying with local laws. The carry out reconnaissance on a non-exclusive basis in an
Commission also plays a key role in promoting the mining environmentally and socially responsible manner and to
sector to potential foreign investors. compensate for any damage to crops or property in the
course of prospecting. This does not permit the holder
The Mining (Safety) Regulations (2010) to engage in drilling, excavation or other sub-surface
These regulations focus on ensuring safety standards in the techniques;
mining sector. They set forth safety protocols that mining • Exploration licence: An exploration licence is issued/
companies must adhere to in order to protect workers and granted within 30 days upon receipt of a valid application
minimize accidents on mining sites. It provides specific to the MCO. This licence will not be granted over any land
guidelines for managing hazardous materials, explosions, that is subject to an existing Exploration Licence, Mining
and other risks. Lease, Small Scale Mining Lease, Quarry Lease or closed
to prospecting/mining activity (e.g. forest reserves, military
The Nigeria Customs Service (NCS) Regulations areas, government development areas, national heritage
The NCS regulations govern the importation and exportation area etc.);
of minerals in Nigeria. Mining companies involved in the • Mining Lease: A mining lease confers on the holder (among
export of minerals must comply with customs requirements, other rights) the right to obtain access to and enter the
including the proper declaration of mineral exports and mining lease area and the exclusive use, occupation and
payment of export duties, if applicable. carrying out of mineral exploitation within the mining lease
area. A Mining Lease will not be granted in respect of any
Mineral Value Chain Regulations, 2021 area within an Exploration Licence area or a Small-Scale
It seeks to boost the country’s revenue through the local Mining area except to the holder of an Exploration Licence
development (processing and refining) of raw materials into or Small Scale Mining Lease covering such an area. The
refined products before export. lease area is determined in relation to the ore body as
defined in the feasibility study submitted in respect of the
Which government bodies administer mining law? Mining Lease together with an area reasonably required for
Pre-2023, the erstwhile Ministry of Mines & Steel Development the workings of the mineral resources;
(MMSD) oversaw the mining sector in Nigeria. However, in • Quarry Lease: A quarry lease confers on its holder the right
2023, the administration of President Bola Ahmed Tinubu, to carry out quarrying operations on the land within the area
split the Ministry into two (2) separate ministries namely the of the lease and to remove and dispose of any quarriable
Ministry of Solid Minerals Development (MSMD) with focus mineral specified in the lease. A quarry lease is granted in
on all minerals in the value chain of the mining sector other respect of a land area not exceeding 5 square kilometres
than steel, and the Ministry of Steel Development (MSD) and covers a 5-year period unless renewed; and
with the sole mandate to accelerate the development of • Water Use Permit: The area of land in respect of which
the country’s steel potentials. Both Ministries administer any water use permit is granted shall not exceed the area
the provisions of the NMMA as applicable. The following reasonably required for the purpose of the permit.
departments established under the NMMA, aid the Ministries
in performing their respective functions:
• Mines Inspectorate Department; OIL AND GAS
• Mining Cadastre Office;
• Mines Environment and Compliance; and What rights are granted to conduct oil and gas exploration
• Artisanal and Small-Scale Mining Department. and production?
• Concessions: Further to the enactment of the Petroleum
Industrial Act in 2021, the newly established Nigerian
Upstream Petroleum Regulatory Commission is responsible
for the grant of the following licences:
o Petroleum exploration licence, to explore for petroleum;
o Petroleum prospecting licence, to prospect for
petroleum; and

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o Petroleum mining lease, to search for, win, work, carry that regulates mining in Nigeria is the Nigerian Minerals and
away and dispose of petroleum. Mining Act.
• Production Sharing Contracts (“PSC”): The essence of a
PSC is that Nigerian National Petroleum Company Limited
(“NNPC”) engages a competent contractor to carry out INDIGENISATION REQUIREMENTS
petroleum operations on NNPC’s wholly held acreage.
The contractor undertakes the initial exploration risks
and recovers his costs if and when oil is discovered and Are there any requirements in relation to the holding of
extracted. This policy is designed to transfer exploration equity in exploration and mining projects by indigenous
risks and the funding of exploration and development peoples?
efforts on new acreage to interested oil companies. Under The Nigerian Oil and Gas Industry Content Development Act
the PSC, the contractor has a right to only that fraction of (Local Content Act) 2010 which provides for the development
the crude oil allocated to him under the cost of oil (oil to of Nigerian content in the oil and gas industry, only applies
recoup production cost) and equity oil (oil to guarantee a to the oil and gas sector. However, the Nigerian Investment
return on investment). He can also dispose of the tax oil Promotion Commission (“NIPC”) Act allows foreigners to
(oil to defray tax and royalty obligations) subject to NNPC’s hold 100 per cent equity in companies in Nigeria with the
approval; exemption of companies that carry out business in the
• Service Contracts: A Service Contract could be Risk- negative list. The mining sector is not on that list.
Service, Pure-Service or Technical Assistance Agreement.
In the Risk-Service arrangement, the host country owns Are there any Special Rules or Restrictions Applicable to
the concession covered by the arrangement as well as the Foreign Applicants?
petroleum discovered, while all risks are borne by the oil Section 78 of the Companies and Allied Matters Act,
company employed as a contractor in a certain area and 2020 requires every foreign company intending to carry
for a specific period. The contractor provides the upfront on business in Nigeria to incorporate a separate entity
money and furnishes the technical expertise for the (company) in Nigeria for that purpose. However, this section
operations and only gets fully reimbursed from the sale of does not apply to foreign companies who have been granted
the concessions of oil production. This type of contractual an exemption under the Act or granted exemption under any
arrangement is successful where there is commercial treaty to which Nigeria is a party. The Mining Act stipulates
discovery or upon other contractual terms. The Pure Service that a qualified applicant for a Reconnaissance Permit, an
contract or Technical Assistance Agreement is a simple Exploration Lease, a Small Scale Mining Lease and/or a
contract of work. All risks are borne by the government and Quarry Lease must be:
the contractor performs its stipulated services and is paid • A citizen of Nigeria with legal capacity and who has not
fees for its services; and been convicted of a criminal offence;
• Joint Venture Agreements: Also known as Joint Operating • A body corporate duly incorporated under the Companies
Agreements (“JOA”), JOA is the basic, standard agreement and Allied Matters Act 2020; or
between the NNPC and the operators. Under a JOA, one of • A mining cooperative.
the partners is designated the operator. The NNPC reserves
the right to become an operator. All parties are to share in Of note, Section 25 of the Nigerian Investment Promotion
the cost of operations. Each partner can lift and separately Commission (NIPC) Act guarantees foreign investments
dispose of its interest share of production, subject to the against expropriation by the Federal Government of Nigeria.
payment of Hydrocarbon Tax and Royalty. The operator is For a Mining Lease, a qualified applicant must be a body
the one to prepare proposals for the programme of work corporate duly incorporated under the Companies and
and budget of expenditure jointly on an annual basis, which Allied Matters Act 2020 or any other legal entity that has
is to be shared on a shareholding basis. Each party can demonstrated, under conditions stated in the Regulations
opt for and carry on sole risk operations. Technical matters that a commercial quantity of mineral resources exists in the
are discussed and policy decisions are taken at operating area. It is however a prudent business decision to have at
committees where partners are represented on the basis least a Nigerian as a shareholder.
of equity holding.
Identify any rights that the State may have. Does the State
Please see the manner of acquisition of rights described have any rights to equity in mining projects?
above. Applicants for any of the licences/leases in the oil The State does not have any free-carry or contributory rights
and gas industry are required to submit their relevant in mining projects. However, the Nigerian Minerals and Mining
application(s) to the Nigerian Upstream Petroleum Regulatory Act (NMMA) vests the control, regulation and ownership of all
Commission before they are granted the right to explore oil mineral resources in the Federal Government of Nigeria.
and gas licences/ leases. The primary law in this area is the
Petroleum Industry Act 2021.

In addition, an applicant for mineral rights is required to apply

to the MCO for such a right. Please note that the principal law

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PROCESSING AND BENEFICIATION The Mining Act provides a tax relief period of 3 years for any
company granted a Mineral Title under the Mining Act. The
tax relief period may be extended for a further period of 2
Are there any requirements to beneficiate minerals
years by the Minister on the fulfilment of certain conditions.
mined?
The tax relief period commences on the date that the licence
No. Please note that persons eligible for the fiscal regime
holder commences operations.
under the NMMA, include companies or enterprises engaged
in mining operations in Nigeria.
Section 30 of the Mining Act provides for the deductibility of
environmental costs. It specifically states that:
The Act provides for the following fiscal and tax incentives
• A tax-deductible reserve for environmental protection,
A licence holder is entitled to deduct a Capital Allowance of
mine rehabilitation, reclamation and mine closure costs
95% of Qualifying Capital Expenditure from its assessable
shall be established by companies engaged in the
profits incurred in the year in which the investment was made
exploitation of mineral resources, provided, however,
on all certified exploration, development and processing
that the appropriateness of the reserve is certified by
expenditure including feasibility study and sample assaying
an independent qualified person taking into account the
cost.
determination made under the provisions of this Act;
• the reserve is recorded in the audited financial statements
Infrastructure costs incurred regardless of ownership or
of the companies;
replacement
• tax deductibility will be restricted to the actual amount
The amount of any loss incurred by a licence holder shall be
incurred for the purpose of the reclamation; and
deducted as far as is possible from the assessable profits
• a sum equivalent to the reserve amount is set aside every
of the first year of assessment after that in which the loss
year and invested in a dedicated account or trust fund
was incurred, and insofar as it cannot be so made then from
managed by independent trustees appointed pursuant to
such amounts of such assessable profits of the next year of
the provisions of the Act.
assessment and so on up to a limit of four years after which
period any unregistered loss shall become lapse.
Section 32 of the Mining Act provides for Annual Capital Cost
Indexation. It states that the unclaimed balance of capital
All operators shall be granted the following benefits:
cost shall be increased yearly by 5 per cent for mines that
• Exemption from payment of customs and import duties in
start production within 5 years from the date of enactment of
respect of plant, machinery, equipment and accessories
the Mining Act.
imported specifically and exclusively for mining operations;
• Expatriate quota and resident permit in respect of the
The Mining Act provides that any mineral obtained in the
approved expatriate personnel; and
course of exploration or mining operations shall be liable to
• Personal remittance quota for expatriate personnel, free
pay royalty as prescribed in any regulations made under the
from any tax imposed by any enactment for the transfer of
Act. However, the Minister may also defer the payment of
external currency out of Nigeria.
royalty on any minerals for a specific period, on the approval
of the Federal Executive Council.
The machinery, equipment and accessories to be imported
shall be approved by the Mines Inspectorate Division. The
Are there any restrictions on the export of minerals?
plant, machinery, equipment and accessories imported
The applicant will need to apply to the Mining Cadastre
pursuant to this section may be disposed of by the holder
Office (MCO) for a permit to export minerals. The application
of the mineral title upon full payment of customs and import
is accompanied by a list of minerals to be exported and the
duties in respect thereof.
destination. The fee for exporting minerals for commercial
purpose is N10,000.00, whilst N1,000.00 is paid for a permit
The Central Bank of Nigeria (“CBN”) may permit a holder of a
to export minerals and samples for analysis purposes.
mineral title who earns foreign exchange from the sale of his
minerals to retain, in a foreign exchange domiciliary account,
a portion of his earnings for use in acquiring spare parts and
other inputs required for the mining operations which would DISPOSALS OF RIGHTS AND
otherwise not be readily available without the use of such CONTROLLING INTERESTS
earnings.
Are there any statutory consents required to dispose of
The Mining Act also guarantees free transferability of funds rights to explore and mine?
through the CBN in the convertible currency of payments in Yes. The holder of such right is required to seek and obtain
respect of loan servicing where a certified foreign loan has the consent of the Minister before disposal of such right and
been obtained by the holder for his mining operations. The the same will be registered with the MCO.
remittance of foreign capital in the event of sale or liquidation
of the mining operations or any interest therein attributable
to foreign investment.

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Are there any restrictions on disposals of controlling activities without prior consideration of the effect on the
interests in entities holding exploration or mining rights? environment.
The holder of a Mineral Licence/lease is required to seek
and obtain the consent of the Minister before disposal of The Harmful Waste (Special Criminal Provisions) Act. By
such right and the same will be registered with the MCO. In virtue of this legislation, activities relating to the purchase,
practice, disposal of controlling interest in entities holding sale, importation, transit, transportation, deposit or storage
exploration or mining rights is another way of transferring of harmful waste is a crime.
the exploration or mining right and as such will require
the consent of the Minister. Section 147(10) of the Mining The Climate Change Act, 2021. It seeks to achieve low
Act provides that no title mineral or rights therein shall be greenhouse gas emissions through inclusive green growth
assigned to a person to whom that mineral title could not and sustainable economic development.
have been granted under the Mining Act.
The National Environmental Standards and Regulation
The mineral title holder is required to make an application for Enforcement Agency (NESREA) Act: This imposes
approval for the transfer of a mineral title to the MCO in the obligations on operators in relation to the protection of the
prescribed format. Approval for a transfer of a mineral title is environment.
given by the MCO if the transferee is a qualified applicant,
provided that the application for transfer shall be deemed The Nigerian Minerals and Mining Act No. 20, 2007; and
automatically approved if not acted upon by the MCO within Nigerian Minerals and Mining Regulations 2011.
30 days from the official receipt thereof. No mineral title or
rights therein can be assigned to a person to whom that
mineral title could not have been granted under the Mining NATIVE TITLE AND LAND RIGHTS
Act.
Is there any native title which has any implication for the
exploration and mining industry?
USE OF SURFACE OF LAND INVOLVED IN Under the Land Use Act, (“LUA”) Cap L5, Laws of the
PROSPECTING AND MINING ACTIVITIES Federation, 2004, a Governor of a State is empowered to
revoke a statutory or customary right of occupancy granted
over a parcel of land, for mining purposes. In addition, section
What are the rights of the holder of an exploration right or 22 of the Mining Act provides that the use of land for mining
mining right to use the surface necessary or incidental to operations shall have priority over other uses of land.
an exploration or mining operation?
An exploration right enables the holder (among other rights) Section 1(2) of the Mining Act provides that all land in which
to obtain access and enter the mining lease area, for the minerals have been found in commercial quantities shall,
exclusive use, occupation and carrying out of mineral from the commencement of the Mining Act be acquired by
exploitation within the mining area. the Federal Government in accordance with the provisions
of the LUA.

ENVIRONMENTAL The Mining Act also recognises the fact that mining
operations will one way or the other affect the wellbeing
What legislation governs environmental protection of of the aborigines of the land upon which mineral title is
exploration and mining sites? granted. The Mining Act mandates the holder of a mining
The Constitution of the Federal Republic of Nigeria, 1999, lease, small-scale mining lease or quarry lease to, prior to
as amended (“Nigerian Constitution”). Chapter Two of the the commencement of any development activity within the
Nigerian Constitution, under Section 20, contains directive lease area, conclude with the host community where the
principles on the environment. operations are to be conducted in an agreement referred
to as a Community Development Agreement or other
The Environmental Impact Assessment Act, 2004. An such agreement that will ensure the transfer of social and
environmental impact assessment must be conducted for economic benefits to the community.
any project or activity that is likely to significantly affect the
environment. The Environmental Impact Assessment Act Section 29 of the LUA provides for compensation to be paid
requires that any person planning a project/activity, which may to the titleholder of land where such title is revoked by a State
or is likely to a significant extent, to affect the environment or Governor for mining purposes. Section 107 of the Mining Act
have an environmental effect on those activities, to prepare also makes provision for the payment of compensation to the
an Environmental Impact Assessment Report. Mineral Title holder of the land acquired for mining purposes.
The Report must set out the potential impact of the activity This is in addition to any other amounts payable.
on the environment and plans for preventing/mitigating the
same. In addition, the public or private sector of the economy In a bid to ensure improved collaboration between mining
shall not undertake or embark on or authorise projects or companies and their host communities, on November

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16, 2023, the Honourable Minister of Solid Minerals ROYALTIES AND TAXES
Development, Dr. Dele Alake, officially launched the
‘Guidelines for the Production of Community Development Are there special rules applicable to the taxation of
Agreement in the Solid Minerals Sector’ (the “Guidelines”). It exploration and mining companies?
was issued pursuant to Section 116 of the Nigerian Minerals There are rules applicable to the taxation of exploration and
and Mining Act, 2007 which stipulates that the holder of a mining companies. Under the Mining Act, a licence holder
Mining Lease, Small Scale Mining Lease, or Quarry Lease is enjoys a three-year tax relief period from the date of the
required to finalize with the host community, an agreement commencement of mining operations. At the end of the tax
known as a Community Development Agreement (“CDA” or relief period, the Minister may also extend the period for one
the “Agreement”) or such other agreement that will ensure further period of 2 years for any Mineral title holder.
the transfer of social and economic benefits to the host In addition, there are certain statutory incentives given to
community prior to the commencement of mining activities licence holders which include the following:
within the lease area. • deduction from their assessable profits capital allowance of
95% of qualifying capital expenditure incurred in the year in
which the investment is incurred;
HEALTH AND SAFETY • all certified exploration, development and processing
expenditure, including feasibility study and sample assaying
What legislation governs health and safety in mining? costs;
The Mining Act and Regulations made pursuant to the Mining • all infrastructure costs incurred regardless of ownership
Act. and replacement;
• exemption from payment of customs and import duties in
respect of plant, machinery, equipment and accessories
CONSTITUTIONAL AND ADMINISTRATIVE imported specifically and exclusively for mining operations;
• personal remittance quota for expatriate personnel, free
LAW from any tax imposed by any enactment of the transfer of
external currency out of Nigeria; and/or
Is there a constitution which has an impact on the rights • a holder of a mineral title is guaranteed free transferability
to prospect and mine? through the Central Bank in convertible currency payment
Section 44(3) of the Constitution of the Federal Republic of of a certified foreign loan obtained in respect of its mining
Nigeria (as amended) 1999 vests the entire property in and operations in Nigeria and the remittance of foreign capital
control of all minerals, mineral oils and natural gas in, under in the event of sale or liquidation of the mining operations
or upon any land in Nigeria or in, under or upon the territorial or any interest therein attributable to foreign investment.
waters and the Exclusive Economic Zone of Nigeria in the
Federal Government of Nigeria, which shall be managed Are there any royalties payable to the State over and
in such manner as may be prescribed by the National above any taxes?
Assembly.” Any mineral obtained in the course of exploration or mining
operations is liable to pay royalty as prescribed by the
Are there administrative appeals in the mining law? regulations made under the Mining Act; the Minerals and
Under the Nigerian Minerals and Mining Regulations 2011, Mining Regulations, 2011, specifies the royalties payable
any person aggrieved by any decision of the Ministry or by holders of mining rights. The applicable royalty rates
any of its agencies on any application or matter under the range from 3% to 5%, depending on the type of mineral.
Regulations, may within seven days after being notified However, the government can grant concession to a mineral
of the decision, appeal to the Minister for a review. The title holder to defer payment of royalty on any mineral for a
Minister may set up a committee to consider the appeal and specific period.
forward to the aggrieved person a report which shall include
its findings and recommendation. On receiving the report,
the Minister may uphold, set aside or vary the decision. A
notice of the Minister’s decision on the appeal may be sent
to the parties within seven days of the receipt. However,
any delay in issuing the notice will not nullify the decision
of the Minister. The mineral title holder, if not satisfied with
the outcome of the appeal to the Minister, may seek redress
from the Federal High Court.

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REPUBLIC OF GUINEA
THIAM & ASSOCIÉS

FIRM INFORMATION
Website address : https://www.thiam-associes.com/
Languages spoken : English, French
Telephone : +224 621 63 31 87
Address : Carrefour Kipe - Centre Emetteur, Commune de Ratoma BP 781 Conakry,
République de Guinée
Contact: : Abdourahim Bodeen Diallo
Email : [email protected]

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REPUBLIC OF GUINEA | THIAM & ASSOCIÉS

RELEVANT AUTHORITIES AND Which government organizations manage the mining

law?
LEGISLATION
The Ministry of Mines and Geology is the entity responsible
What laws regulate mining? for the promotion and control of prospecting and mining
In the Republic of Guinea, the mining sector is mainly activities in the Republic of Guinea. The same Ministry is also
governed by the Mining Code, adopted in September 2011 responsible for the elaboration of legislative and regulatory
(Law 2011/006/CNT of 9 September 2011 on the “Mining dispositions applicable to the mining sector. Article 9 of the
Code of the Republic of Guinea” as amended by Law N° Mining Code sets out the main governance structures of the
2013/053/ CNT of 8 April 2013). sector.

The Mining Code constitutes the legal framework for State The governance of the mining sector is provided by a central
intervention in the mining sector. It fixes the conditions and other deconcentrated departments and services forming
for obtaining a mining title or an authorization. It defines the Mining Administration.
the various types of mining and quarrying titles and their
characteristics. It describes the rights and obligations These include:
attached to the exercise of mining or quarrying activities by • the National Directorate of Geology;
the holders of mining titles, their relationship with the State • the National Directorate of Mines;
and with the Local Communities. It also constitutes the fiscal • the National Bureau of Expertise for Diamonds, Gold and
framework for the exercise of mining activities in Guinea. other Precious Materials (BNE);
• the Centre for Mining Promotion and Development (CPDM);
In addition, the ‘Mining Code’ is supplemented by several • the Study and Strategy Office (BES);
laws, decrees and orders, including (but not limited to): • the Precious Goods Anti-Fraud Brigade;
• Law N°L/2011/005/CNT of 11 August 2011 on the constitution • the Directorate General of Mining Projects;
and management of mining assets; • the General Inspectorate of Mines and Geology;
• Decree D/2014/012/PRG/SGG of 17 January 2014 on the • the Directorate General of Geo Services;
Management of Mining Permits and Titles; • the Mining project coordinators and deputy coordinators;
• Decree D/2014/013/PRG/SGG of 17 January 2014 on the • the Centre for Mining Promotion and Development (CPDM);
application of the financial provisions of the Mining Code; • the Guinean Mining Heritage Company (Soguipami); and
• Decree D/2014/014/PRG/SGG of 17 January 2014 adopting • the Bureau d’Etude et de Stratégie (BES).
a guideline for carrying out an environmental and social
impact assessment of mining operations; The attributions, composition, organization and functioning
• Decree D/2014/015/PRG/SGG of 17 January 2014 adopting of the said services are determined by a decree of the
a model standard mining agreement; President of the Republic. A National Mining Commission
• Order A/2016/5002/MMG/SGG of 1 September 2016 is created, made up of representatives of the State and the
establishing a new cadastral procedure; and other entities of the Nation, responsible for participating,
• Joint Order A/2016/6074/MEF/MGG/SGG of 26 September on the basis of the dispositions of the Mining Code, in
2016 setting the rates and tariffs of fixed fees, taxes and the examination of applications for the granting, renewal,
royalties relating to the granting, renewal, extension, transfer transfer, extension and withdrawal of mining titles. Its powers,
and/or amodiation of mining permits and authorizations. organization, composition and functioning are set by decree
of the President of the Republic.
Finally, other laws also have or are likely to have an impact
on projects and operations relating to mining resources. Similarly, a Technical Committee on Titles is created, an
internal committee of the Mining Administration responsible
These include: for examining applications for the granting, renewal, extension
• Law L/94/005/CTRN of 15 February 1994 on the Water and withdrawal of mining titles prepared by the CPDM. Its
Code; attributions, organization, composition and functioning are
• Ordinance n°1987-45/PRG of 28 May 1987 on the fixed by order of the Minister in charge of Mines.
Environmental Protection and Development Code;
• Ordinance no. 1992-19 of 30 March 1992 on the Land and
Property Code;
• Law no. 1999-13 of 22 June 1999 on the Forestry Code;
TYPES OF AND MANNER OF ACQUISITION
• Law no. 1995-51 of 29 August 1995 on the Pastoral Code; OF RIGHTS
• the General Tax Code; and
• Law L/95/046/CTRN of 29 August 1995 on the Livestock What rights are granted to conduct reconnaissance,
and Animal Products Code. exploration and mining operations?

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Article 15 of the Mining Code provides that: The terms and conditions of the award are as follows:
• for areas without geological information or with geological
“Any physical or moral person with the technical and financial information that does not allow a deposit to be identified:
capacity to carry out these activities may carry out the “the first applicant is granted title”; and
recognition of showings, the search for mining substances • for the perimeters already prospected, containing a known
or quarries, under the conditions of the present law. The deposit or arousing the interest of several companies, the
following may exploit mining or quarrying substances under award procedure will be that of competition by competitive
the conditions of this law: and transparent invitation to tender according to rules to be
defined in the regulatory texts, and approved by the National
• any physical or moral person, public or private, under Mining Commission. The tender must be concluded within
Guinean law, justifying the technical and financial capacities a maximum period of one year from the entry into force of
to undertake the requested exploitation. the Ministerial Order reserving the deposit to be tendered.
• any physical or moral person of Guinean nationality
duly authorized to engage in semi-industrial or artisanal On the proposal of the Minister in charge of Mines, a decree
exploitation. of the President of the Republic opens the invitation to
• A decree of the President of the Republic specifies what is tender:
meant by “technical and financial capacity. • The Exploration Permit for semi-industrial exploitation
• Persons or companies subject to international sanctions or will be granted exclusively to natural persons of Guinean
criminal investigations related to fraud, corruption or money nationality, to companies with capital held entirely by
laundering may not obtain Mining Titles or Authorizations”. Guineans and to nationals of countries granting reciprocity
to Guineans;
Furthermore, any mining activity in the Republic of Guinea • The acts that enshrine the attribution, extension, renewal,
is subject to the prior issuance of a mining title. Thus, in transfer, farm-out, withdrawal or renunciation of mining titles
accordance with Article 17 of the Mining Code, the right to must be published in the official gazette and on the official
engage in mining or quarrying activities can only be acquired website of the Ministry in charge of Mines, or any other site
by virtue of the following mining titles and authorizations. designated by the Minister. The opening up of geographical
areas for exploration must be widely publicized; and
Mining titles: • The placing on the market, by invitation to tender, of the
• research permit; Perimeters already prospected, with a view to the granting
• industrial and semi-industrial mining permits; and of an Exploration Permit, must be published in at least two
• mining concession. widely circulated newspapers, at least 45 days before the
deadline for the submission of bids.
Authorizations:
• authorization for the exploration of mining or quarrying Operating permits
substances; The Industrial or Semi-Industrial Mining Permit is granted by
• authorization to search for careers; right, to a company under Guinean law, by Decree issued
• authorization for artisanal exploitation of mining or quarrying by the Council of Ministers on the proposal of the Minister
substances; and in charge of mines, after a favourable opinion from the
• authorization for the exploitation of quarry substances National Mining Commission, to the holder of the Exploration
permanent or temporary authorization). Permit who has complied with the obligations incumbent on
him by virtue of the Mining Code and who has submitted
Research permits an application in accordance with the regulations, at least
The Exploration Permit is granted by order of the Minister, three months prior to the expiry of the period of validity of
on the recommendation of the Centre de Promotion et de the Exploration Permit by virtue of which the application has
Développement Minier (CPDM), after a favourable opinion of been made.
the Technical Committee on Titles, to the applicant who has
submitted an application that complies with the requirements The company holding the Exploration Permit shall, for this
of this Code and its implementing texts and who has purpose, create a subsidiary under Guinean law.
sufficient technical and financial capacity, as well as work
and expenditure commitments that are deemed acceptable. Composition and modalities of examination of the file
constituting the application for the granting of the
The CPDM is responsible for examining the application and Exploitation Permit
carrying out the cadastral evaluation. The technical and The application for an Industrial or Semi-Industrial Mining
environmental assessment and the related opinions are Permit must be accompanied by a dossier, the details of
the responsibility of the National Directorate of Mines and which are set out in the mining regulations, and which must
the Ministry of the Environment in relation to the Technical include, inter alia, each of the following elements:
Committee for Titles. The decision to approve or refuse
the Mining Title, its notification and publication are the • a copy of the valid Research Permit and proof of payment
responsibility of the Minister in charge of Mines. of taxes and royalties due; the report on the results of the

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investigations as regards the nature, quality, volume and discovery of a Mining Substance of a category other than
the geographical location of the identified mineral resource; that for which the Concession has been granted, the holder
• a plan of the first or second handover, as the case may be, will have a right of pre-emption for its exploitation. This right
accompanied by the results of the results of the research must be exercised within a maximum period of eighteen
work and corresponding to half of the previous area; months from the date of notification of the said discovery to
• a feasibility analysis including a plan for the development the State.
and exploitation of the deposit including, among others:
• a detailed Environmental and Social Impact Assessment, The examination of the application and the cadastral
complete with an Environmental and Social Management evaluation are carried out by the CPDM. The technical and
Plan, including a Hazard Plan, a Risk Management Plan, a environmental assessment and related opinions are the
Health and Safety Plan, a Rehabilitation Plan, a Relocation responsibility of the Direction Nationale des Mines and the
Plan for Populations Affected by the project and measures Ministry of the Environment in conjunction with the Comité
to mitigate negative impacts and optimize positive impacts; Technique des Titres and the Commission Nationale des
• the economic and financial analysis of the project and the Mines. The decision to approve or refuse the Mining Title,
plan for obtaining the necessary permits and authorizations; its notification and publication are the responsibility of the
• plans and estimates for industrial infrastructure; Minister in charge of Mines.
• a plan to support Guinean enterprises for the creation and/
or strengthening of the capacities of PME/PMI or enterprises A Mining Convention setting out the terms of exploitation of
owned or controlled by Guineans for the supply of goods the Concession shall be negotiated and signed in accordance
and services widely used in their activities and a plan to with the provisions of Article 18 of this Code. In the absence
promote the employment of Guineans, the minimum of of a valid Exploration Permit and for an identified Deposit,
which should be in line with the quotas set out in this Code; the Mining Concession is granted following a competitive
• the detailed timetable of the work to be carried out; and transparent tender procedure according to rules to
• a plan for community development annexed to the Local be defined in the regulatory texts. The call for tenders is
Development Agreement which covers, among other implemented by the Technical Committee on Titles in relation
things, training, medical, social, school, road, water supply to the National Mining Commission.
and electricity infrastructures. The signing of this Local
Development Agreement will take place upon obtaining Publication of acts relating to the Concession
the Title; and Acts granting, extending, renewing, transferring, amending,
• an architectural plan of the company’s headquarters withdrawing or renouncing a Mining Concession must be
together with a request for the allocation of a plot of published in the official gazette and on the official website of
land addressed to the competent Administration; the the Ministry in charge of Mines, or any other site designated
headquarters must necessarily be built within a maximum by the Minister. The placing on the market, by invitation to
period of three years from the granting of the Mining Permit tender, of the Perimeters already prospected with a view to
for iron ore, bauxite, gold and diamond. the granting of a Mining Concession, must be published in
at least two widely circulated newspapers, at least forty-five
For Semi-Industrial Permit holders, the environmental days before the deadline for the submission of tenders.
obligations and those relating to the Community Development
Plan will be specified in the decree establishing the permit. Authorization for recognition
The CPDM is responsible for the application and the cadastral The authorization for recognition is issued by the National
evaluation. Director of Mines on the proposal of the CPDM, after advice
from the National Directorate of Geology to applicants for
The technical and environmental assessment and related Exploration Permits in the areas referred to in Article 42, with
opinions are the responsibility of the Direction Nationale des the exception of the areas referred to in Articles 111 and 112
Mines and the Ministry of the Environment in conjunction of this Code.
with the Comité Technique des Titres and the Commission With regard to artisanal mining, an individual prospector’s
Nationale des Mines. charter is issued to any individual of Guinean nationality
wishing to prospect for minerals in an artisanal manner within
The decision to approve or refuse the Mining Title, its a given prefecture. This card is equivalent to an Artisanal
notification and publication remain subject to the provisions Reconnaissance Authorization. The procedures for issuing
of this Code and are the responsibility of the Minister. and renewing the individual prospector’s card are set out in
regulations.
Status of the Exploration Permit after award of the Mining
Concession Authorization for quarrying
The granting of a Mining Concession results in the The Authorization to search for quarries is issued in the same
cancellation of the Exploration Permit within the perimeter of form and under the same conditions as the Authorization to
the Mining Concession. recognize mining substances. The Authorization for quarry
However, research related to exploitation may continue. research is issued by the National Director in charge of Mines
Within the framework of this research, in the event of the through his deconcentrated services after a favourable

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opinion from the Technical Committee for Titles. The surface Identify what rights the state may have. Does the state
area for which an Authorization to Search for Quarries is have any equity rights in mining projects?
issued may not exceed the limits of the prefecture concerned. Under the terms of Article 150-I paragraph 1 of the Guinean
Mining Code: “From the date of entry into vigour of the
present Code, the attribution by the State of a Mining Title
OIL AND GAS immediately gives the right to a free participation of the
State, up to a maximum of fifteen percent (15%), in the capital
of the company holding the Mining Title”.
What rights are granted to conduct oil and gas exploration
and production activities? It appears from the above that the Guinean State is entitled
As a preliminary point, it should be noted that oil and gas to a free participation in the share capital of all companies
exploration and production activities are governed by Law holding mining titles in Guinea and that this participation of
L/2014/034/AN of 23 December 2014 on the Petroleum the State in the provision of mining resources is fixed at 15%
Code of the Republic of Guinea. and covers all substances. Also, notwithstanding the above-
mentioned right of free participation of the State in mining
According to Article 32 of the Petroleum Code: “The projects, it would be important to note that the Guinean
Petroleum Contract confers on the Contractor the exclusive Mining Code in its articles 137, 138 and 150 also grants the
right to carry out, within the perimeter defined by the said State in mining projects, the right of commercialization, the
contract, indefinitely in depth, research activities, as well as right of transport and an additional participation right.
exploitation activities in the event of a declared commercial
discovery and after approval by the Minister in charge of
Hydrocarbons of the development plan relating to the said
discovery.” TREATMENT AND ENRICHMENT

Thus, Article 35 of the same code in its paragraph 1 provides Are there any requirements for the recovery of extracted
that: “in the event of the discovery of Natural Gas, the State minerals?
and the Contractor must together evaluate the possible In accordance with Article 139 of the Mining Code of the
outlets, both on the local market and for export, as well as Republic of Guinea, the holder of an exploitation title, except
the means necessary for its commercialization, and consider for artisanal exploitation, or any other Guinean or foreign
the possibility of joint commercialization of the shares of the investor is exhorted to establish in the Republic of Guinea
Contractor and the State”. installations for the conditioning, treatment, refining and
processing of mining or quarrying substances, including the
elaboration of metals and alloys, concentrates or primary
INDIGENISATION REQUIREMENTS derivatives of these mining substances, in accordance with
the regulations in force.
Are there any requirements in relation to the holding of Thus, it should be noted that any mining title holder who
equity in exploration and mining projects by indigenous engages in the processing of ore benefits from the incentives
peoples? provided for in Article 161 of the Code relating to mining tax,
Based on the Mining Code and our experience in the field, in particular the application of reduced rates to finished
the local population does not have equity rights in mining products and the exemption from the increase in mining tax
projects. However, it should be noted that in accordance applied to title holders who have not invested in processing
with Article 130 of the Mining Code, any holder of a mining after an initial period.
title must enter into a local development agreement with the
local community residing on or in the immediate vicinity of its Are there restrictions for the exports of minerals?
mining title. The purpose of this local development agreement As a preliminary point, it should be noted that in accordance
is to create the conditions for effective and transparent with Article 141 of the Mining Code, the purchase, sale, import
management of the local development contribution paid by and export of mineral or fossil substances as well as the
the mining title holder, and to build the capacity of the local packaging, treatment, refining and processing operations,
community in planning and implementing the community including the production of metals and alloys, concentrates
development program. or primary derivatives of these mineral or fossil substances
carried out on the territory of the Republic of Guinea are
Are there any special rules or restrictions applicable to subject to prior declaration to the Minister.
foreign applicants?
In accordance with Article 15 of the Mining Code, only legal The export of precious materials (gold, diamonds, etc.) in
persons under Guinean law may be granted a mining title. Guinea is also subject to prior declaration to the BCRG.
Similarly, non-industrial mining activities can only be carried
out by natural persons of Guinean nationality. Also, in accordance with Article 137 of the Mining Code, the
State reserves a maritime transport right of fifty percent (50%)
on exports of the production.

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Mining substances extracted in Guinea by holders of a of the landowner, his assignees, with respect to activities
mining title exported in their raw state, without having first involving the surface or affecting it. The rights of the owners,
been processed into semi-finished or finished products in usufruct and occupants of the land as well as those of their
Guinea, are also subject to a specific export tax. assignees are not affected by the issuance of mining titles
and authorizations except as provided for in this section.

TRANSFER OF RIGHTS AND VOTING The holder of a mining title or authorization may occupy the
land necessary for his activities within the perimeter of the
RIGHTS title or authorization if he is authorized to do so by his title
or authorization or by order of the Minister. It may also be
Are there any statutory approvals required to dispose of authorized by the decree concerning the project of national
the exploration and mining rights? interest (PIN) or public utility (DUP). So, the holder of the
In accordance with Article 90 of the Mining Code, the mining title or authorization must pay compensation to any
Exploration Permit, being non-divisible, may not be assigned lawful occupants of the land required for his activities, to
or transferred in whole or in part, even in the event of death. compensate for the disruption of enjoyment incurred.
However, mining permits and concessions may be partially
or totally assigned or transferred.
ENVIRONMENTAL
Thus, when a Mining Permit or Concession has several
holders, the consent of all of them is required for the
assignment or transfer of the rights of one of them, and in What legislation governs environmental protection of
the event of the death of one or more of them, the consent exploration and mining sites?
of the successors is required. Any decision to assign, In addition to the provisions of the Mining Code on
transfer or lease out all or part of a mining title, and any environmental protection, any mining activity undertaken
formal acquisition of a mining title, must receive a favorable must comply with the legislation and regulations on
opinion or validation from the National Mining Commission environmental protection and management and on health.
before being submitted to the Minister in charge of mining Any application for a mining permit or title must include an
for approval. environmental and social impact assessment in accordance
with the Environmental Code and its implementing
In addition, any contract or agreement by which the holder regulations as well as international standards in this area.
of a mining title promises to entrust, assign or transfer, in
whole or in part, or entrusts, assigns or transfers, in whole The requirements of the administration are adjusted according
or in part, the rights and obligations resulting from a mining to the scale of the planned work, ranging from a simple
title must also be submitted for prior approval by the Minister Environmental Impact Statement for an Exploration Permit
in charge of Mines. This authorization is granted by Decree to a detailed Environmental and Social Impact Assessment,
with respect to transactions involving mining concessions. accompanied by an Environmental and Social Management
Plan, including a Hazard Plan, a Risk Management Plan, a
Are there any restrictions on the transfer of voting interest Health and Safety Plan, a Rehabilitation Plan, a Resettlement
in entities holder of exploration or mining rights? Plan for Populations Affected by the project and measures to
In accordance with Article 90 of the Mining Code, any mitigate negative impacts and optimize positive impacts for
change in the direct or indirect control of any holder of an an Exploitation Permit or a Mining Concession (article 142 of
interest in a mining title shall be subject to the approval or the Mining Code).
endorsement of the Minister in charge of Mines. Any direct or
indirect, partial or cumulative acquisition equal to or greater
than five percent (5%) of the capital of the company holding INDIGENOUS TITLE & LAND RIGHTS
the mining title must be submitted to the Minister in charge
of Mines for validation. Is there any native title which has any implication for the
exploration and mining industry?
To be lawful and enforceable under Guinean law, property
USE OF SURFACE OF LAND INVOLVED IN rights (land rights) must be registered in the cadastral plan,
PROSPECTING AND MINING ACTIVITIES and the land registry. However, a significant portion of
Guinean land, particularly in rural areas, has neither been
registered on the cadastral plan nor on the land register
What are the rights of the holder of an exploration right or and remains subject to customary laws. It should be noted
mining right to use the surface necessary or incidental to that the Land Code does not explicitly recognize customary
an exploration or mining operation? rights in the Republic of Guinea.
In accordance with Article 123 et seq. of the Guinean Mining
Code, mining rights do not extinguish property rights. No However, it should be noted that if there are persons (legal
right of exploration or exploitation is valid without the consent entities or individuals) who currently occupy a portion of the

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mining project site and can demonstrate that they occupy by the holder, the latter shall prevail. In this respect, he
that portion in person, peacefully, on an ongoing basis and is obliged to make and apply regulations in accordance
in good faith, it would be necessary to: with these standards to ensure optimal health and safety
• have such occupants register their rights in accordance conditions for workers”.
with the Land Code (a detailed procedure is provided for in
the Land Code); Local Content
• establish that such occupants have no property rights in the In the Republic of Guinea, Local Content is governed primarily
project site; or by Law L/2022/010/CNT on Local Content.
• enter into an agreement with such occupants whereby they
agree to relinquish any rights they may have in the relevant In accordance with its Article 1, local content is a set of
part of the project site. requirements linked to aspects of local development, and
the improvement of living conditions for local populations,
encompassing initiatives to promote the use of national
HEALTH AND SAFETY goods and services, the integration of the national private
sector, the employment of nationals and the development of
What legislation governs health and safety in mining? local workforce participation, and the transfer of technologies
With regard to the safety and health of employees in mining and skills throughout the project value chain.
companies, it is the Labor Code, in particular articles 231.1
and following which applies: Furthermore, in accordance with article 3 of the Local
• The first paragraph of article 211.1 provides that: “The drafting Content Act, with the exception of local micro, small and
of internal regulations is mandatory in all companies and medium-sized enterprises (MSMEs), all companies, whether
establishments usually employing at least twenty-five local or foreign, whatever their sector of activity, are subject
employees”. Article 211.2 provides in its first paragraph that to the provisions of this Act. This law applies to all projects,
“To protect the life and health of employees, the employer whether sector-specific or not, whether financed by public
is required to take all useful measures that are adapted to resources or carried out by operators under public-private
the operating conditions of the company. [...]”; partnership contracts or otherwise.
• This submission of mining companies to the labor code is
confirmed by Article 108 of the Mining Code, which provides
that: “The holder of a Mining Title or Authorization, as well CONSTITUTIONAL AND ADMINISTRATIVE
as the companies working on his behalf, must comply with LAW
the requirements of the applicable law with respect to labor
standards”;
• However, Articles 142 et seq. of the Mining Code set out the Is there a constitution which has an impact upon rights to
rules for health and safety protection in the mining industry; prospect and mine?
• In addition, Article 142 of the Mining Code provides that: As a preliminary point, it should be noted that since September
“In addition to the dispositions of the present law, any 5, 2021, the Guinean constitution has been suspended and
Mining Activity undertaken must obey the legislation and replaced by a transition charter. It should be noted that this
regulations concerning the protection and management of charter is a fundamental legal text, which applies to all and
the environment and health. [...]”; represents the constitution of the Republic of Guinea. It shall
• The second paragraph of this disposition provides that: remain in effect until the publication in the official gazette of
“The requirements of the Administration are modulated the Republic of the new constitution adapted by referendum.
according to the importance of the planned works, It is important to note that neither the Guinean constitution
varying from a simple Environmental Impact Notice for an nor the Transitional Charter directly impacts exploration
Exploration Permit to a detailed Environmental and Social and exploitation rights in the Republic of Guinea. However,
Impact Assessment, accompanied by an Environmental it should be noted that the right to property is subject to
and Social Management Plan, including a Hazard Plan, constitutional and legal protection in the Republic of Guinea.
a Risk Management Plan, a Health and Safety Plan, a
Rehabilitation Plan, a Resettlement Plan for Populations Are there administrative recourses in the mining law?
Affected by the project and measures to mitigate negative According to our in-depth research and experience in the
impacts and optimize positive impacts for an Exploitation domain, there are indeed possibilities for administrative
Permit or a Mining Concession”. appeals in the mining sector, including appeals against a
• In addition, the first two (2) paragraphs of Article 145 of the decree, an order or a decision to withdraw a mining title.
same code provides that: “Any holder of a Mining Title or
Authorization is required to respect the most advanced
health and safety standards as established by the Minister in
charge of Mines in collaboration with the Minister in charge
of Public Health, the Minister in charge of Labour and the
Minister in charge of the Environment. In the event that
these standards are lower than those observed elsewhere

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ROYALTIES AND TAXES • the tax on the industrial or semi-industrial production of

precious metals referred to in Article 161-1 of this Code;
• the export tax on mining substances other than precious
Are there special rules applicable to taxation of exploration
metals referred to in Article 163 of this Code; and
and mining companies?
• the export tax on precious stones and gems referred to in
In the Republic of Guinea, impositions in terms of taxes and
Article 163-II of this Code.
royalties on mining title holders vary according to the phases
of the mining projects.
In addition, holders of a Mining Title are subject to the
payment of environmental taxes and fees on classified
In the Research phase
establishments, in accordance with the provisions of the
During the research phase, research permit holders
Environmental Code and its application texts’.
benefit from the temporary admission regime for the import
of equipment, materials, machinery, raw materials and
Are there any royalties payable to the State in addition to
consumables necessary for the research phase. However,
taxes?
materials, spare parts of commercial vehicles, necessary
In addition to the royalties provided for in the CGI, the holder
for the operation of professional materials and equipment
of a mining title or authorization is subject, for its activities in
included in the mining list, are subject to the following duties
Guinea, to the payment of duties and royalties.
and taxes:
• the liquidation processing fee;
Thus, in accordance with the dispositions of Article 160 of the
• the registration tax;
Mining Code, any holder of a Mining Title or an authorization
• the Community levy; and
to exploit Quarrying Substances which gives him the right
• the additional cent.
to engage in Mining or Quarrying Activities, is subject to the
annual payment of a surface royalty, in accordance with the
Therefore, notwithstanding the exemptions mentioned
table below for Mining Substances, and a joint order of the
above, holders of a Research Permit are subject to the
Minister in charge of Mines and the Minister in charge of
common law reporting obligations set out in Articles 108, 238,
Finance for Quarrying Substances.
239, 241 of the General Tax Code as well as to the common
law reporting obligations set out in the Customs Code.
This surface royalty is proportional to the area described
in the Mining Title or Authorization. The modalities for the
In the operational phase
declaration and payment of this surface fee are set by a joint
In accordance with Article 176 of the General Tax Code
decree of the Minister in charge of Finance. These rates are
(Code Général des Impots “CGI”): “During the exploitation
updated by joint decree of the Minister of Finance and the
phase, the holders of a Mining Title are subject, according
Minister of Mines.
to the rules of common law, to all taxes other than those for
which they benefit from the exemption provided for in Article
175 of this Code, and in particular but not exclusively: FEES/ SURFACE AREA USD/KM2
• VAT, excluding VAT on the import of capital goods included NATURE OF GRANT 1ST RENEWAL 2ND RENEWAL
in the mining list referred to in the first category provided
for in Article 167 of this Code; Research 10 15 20
• Industrial and Commercial Profit Tax and Corporate Tax at permits
a rate of 30%; Industrial 75 100 200
• to income tax on securities at a rate of 10%; license
• registration duties on deeds relating to the creation of Semi- 20 50 100
the company, increase of capital by new contributions, industrial
capital contributions, incorporation of profits or reserves, or
merger; license 150 200 300
• the lump-sum payment on salaries; Mining 150 200 300
•w  ithholding tax on non-wage income; concession
•w  ithholding tax on salaries; Dredging 150 200 300
• the single tax on vehicles, with the exception of construction permit
vehicles and machinery, at the current rate;
• the contribution to vocational training or the apprenticeship
tax, as appropriate;
• the Local Development Contribution, referred to in Article
130 of this Code;
• the fixed duties and annual fees referred to in Article 159-II
of this Code;
• the surface fees referred to in Article 160;
• the tax on the extraction of mining substances other than
precious metals referred to in Article 161 of this Code;

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SENEGAL
MAME ADAMA GUEYE
& PARTNERS

FIRM INFORMATION
Website address: www.magp.sn
Languages spoken : French, English
Telephone : + 221 33 922 66 86
Address : Résidence Kër Diaba, Rue MZ 81 X Rue MZ 94, Mermoz Pyrotechnie Dakar,
Senegal
Contact : Me Mame Adama Gueye
Email : [email protected]

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SENEGAL | MAME ADAMA GUEYE & PARTNERS

RELEVANT AUTHORITIES AND in the same form, if the beneficiary has complied with its
obligations. The prospecting authorisation may be withdrawn
LEGISLATION or restricted for failure to fulfil the obligations provided for in
this Code.
What laws regulate mining?
In Senegal, mining activities are currently regulated by the Research License
following laws: The research permit is issued for a period not exceeding
• Regulation 18/2003 / CM / UEMOA of 23 December four years by order of the Minister of Mines, subject to the
2003 being the Community Mining Code of the member prior rights of third parties on the perimeter on which the
countries of the West African Economic and Monetary permit bears. It can be owned by any legal person. For the
Union (UEMOA); same substance, the same legal person may not possess
• ECOWAS Directive C / DIR 3/05/09 of 27 May 2009 on the more than two research permits.
harmonization of guiding principles in the mining sector
• Law No. 2016-32 dated November 8, 2016 on the mining The research permit is renewable twice, by order of the
code (local law); Ministry of Mines for consecutive periods not exceeding three
• Decree 2017-459 dated March 8, 2017 laying down the years each time. At each renewal, by order of the Ministry of
procedures for the application of Law N ° 2016-32 on the Mines, for consecutive periods not exceeding three years
Mining Code; each time. At each renewal of the research permit, its area is
• Law n°2023-15 of August 02, 2023 on the Environmental reduced by one quarter.
Code and its implementing decree;
• Law n. 2022-17 of May 23, 2022 on local content in the Mining Exploitation License
mining sector; and The mining title of exploitation concerns the mining license.
• Order defining the definition of gold panning corridors in It constitutes immovable property and must be compulsorily
Kédougou and Tamba. owned by a commercial company under Senegalese law. It is
subrogated in the rights of the holder of the research license
The above-mentioned legislation is in the process of being from which it derives. The operating permit is indivisible.
amended and a new one will be further enacted.
The mining license is issued by decree, for a minimum
Which Government Bodies administer mining law? period of five years and not exceeding twenty years, and is
There are six directorates under the Ministry of Mines and renewable. The period of validity of the mining exploitation
Geology who manage the mining sector in Senegal: is fixed according to the importance of the proved reserves,
• Director of Mines and Geology; which is highlighted in a feasibility study, and the investments
• Director of Careers; necessary for the development and the exploitation.
• Artisanal and Small-Scale Mining Directorate;
• Directorate of Regulations, Mining Production and Statistics; The mining permit may be renewed by decree, for one or
• Directorate of Control and Monitoring of Mining Operations; more periods, in the same form, until the deposit is exhausted.
and In case of exploitation of a mining license without renewal,
• Directorate of Geology. the mine and its dependents are transferred in full ownership
to the State, free of all charges, including its dependents.

TYPES OF AND MANNER OF ACQUISITION

OF RIGHTS OIL AND GAS

What rights are granted to conduct reconnaissance, What rights are granted to conduct oil and gas exploration
exploration and mining operations? and production?
The Law no 2019-03 dated February 1, 2019 being the new
The rights granted to conduct mining activities in Senegal Petroleum Code and its executive Decrees along with Law
are as follows: no. 2020-06 dated February 7, 2020 being the Gas Code
are the core legislation governing Oil and Gas activities
Prospecting Authorisation
Any legal person may engage in prospecting activities in The new Petroleum Code provides for four hydrocarbon
all or part of the territory, subject to the prior obtaining of mining titles that can be granted: (i) a permit for prospecting,
a prospecting permit issued by the competent departments (ii) a hydrocarbons exploration permit, (ii) an operation of
of the mines administration under the conditions fixed by hydrocarbon permit, and (iv) a transport, liquefaction and
decree. The authorisation is issued for a period not exceeding storage of hydrocarbons.
six months by the Minister of Mines. It is renewable once,

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Permit for Prospecting Concerning the provisional operation of a hydrocarbon

This title is granted under a Ministerial Order of the Minister permit, its holder may, upon request and during the validity
of Hydrocarbons for a period that cannot exceed two period of the hydrocarbon exploration permit, be authorized
years. It provides to its holder within the limit of its zone to exploit on a provisional basis the productive wells for a
the non¬exclusive right to conduct preliminary works of maximum period of six months, during which time the holder
hydrocarbons prospecting excluding drillings of more than shall continue the delimitation and the development of the
two hundred meters deep unless otherwise specified in the deposit.
permit for prospecting. The permit for prospecting cannot be
granted for a zone subject to an hydrocarbons mining title. The hydrocarbons resulting from the provisional operation
That permit can neither be transferred nor assigned to third of a hydrocarbon permit are subject to the fiscal provisions
party. and rules of sharing between the State and the contractors.
The provisional operation of hydrocarbon shall automatically
Several permits for prospecting may be granted concurrently lapse in the event of the expiration of the hydrocarbon
in the same area. A hydrocarbon title may be granted at any exploration permit unless an application for an exclusive
time, on all or part of the area under exploration. This permit operation of hydrocarbon is filed.
then lapses automatically on the surface concerned without
any compensation being due. Regarding the exclusive operation of hydrocarbon permit, it
confers on its holder, within the limits of its area, the exclusive
However, where applicable, the holder of the permit shall right to carry out all petroleum operations, according to the
be informed, thirty days in advance of the State’s intention stipulations of the production sharing contract attached to
to grant a title and to conclude a petroleum contract on the it. The holder of the exclusive operation of a hydrocarbon
surface concerned. permit is subject to the payment of a production bonus, non-
recoverable for oil costs and corporate income tax, the terms
The permit for prospecting does not confer on its holder any and conditions of which are set out in the production sharing
right or privilege to contract for the extraction or disposal of contract.
hydrocarbons discovered during the course of exploration
works. Any commercial discovery of hydrocarbons made by the
holder of a hydrocarbon exploration authorisation gives him
Hydrocarbons Exploration Permit the exclusive right, in the event of an application before the
A hydrocarbon exploration permit confers on the holder, expiration of such permit, to the granting of an exclusive
within the limits of its area, the exclusive right to carry out all operation of a hydrocarbon permit covering the area of the
works, including drilling in view of exploring and discovering commercial discovery.
hydrocarbon deposits, in accordance with the terms of the
petroleum contract attached to the said permit. The granting of an exclusive operation of a hydrocarbon
permit entails the cancellation of the hydrocarbon exploration
The permit is granted by decree for an initial period not permit within the granted area, but leaves it in force until its
exceeding four years but renewable upon request of its expiration outside this area, without modifying the rights
holder, with a maximum of two renewals each of which do and obligations deriving from the hydrocarbon exploration
not exceed two years. permit.

Any renewal shall be subordinated to the compliance by the The exclusive operation of a hydrocarbon permit is granted
holder with its obligations, and each part of the exploration to the holder for a maximum initial period of twenty years.
area is removed. At the end of this initial term, it may be renewed, once only,
by decree, at the request of the contractor, for an additional
An extension that could not exceed one year can be period of up to ten years. Renewal is not automatic.
exceptionally granted at the end of the initial period, or of
the first renewal, and provided the work has started and the Upon expiration of the exclusive operation of a hydrocarbon
technical evidence provided. The second renewal period permit, the State reserves the right to recover it for the
can be extended for the time necessary for the continuation benefit of its national oil company or to grant it according to
of the evaluation work following a discovery. the terms and conditions defined in the Code.

Operation of Hydrocarbon Permit Transport, Liquefaction and Storage of Hydrocarbons

Hydrocarbon deposits are operated under: We will distinguish between the authorisation to transport
• either a provisional operation of hydrocarbon permit hydrocarbons, on the one hand, and the liquefaction of
granted by order of the Minister in charge of Hydrocarbons; natural gas and the storage of hydrocarbons, on the other
or hand.
• an exclusive operation of hydrocarbon permit granted by
decree. Authorisation for the Transportation of Hydrocarbons
The contractor holds, during the period of validity of an

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exclusive operation of a hydrocarbon permit, the exclusive The Licensing Regime

right to transport the production resulting from its exploitation A license is granted to any legal entity under Senegalese law
activities. The authorisation to transport hydrocarbons is that can prove it has the technical and financial capacity to
issued by order of the Minister in charge of hydrocarbons. carry out import, export, re-export, aggregation, processing,
storage, supply of natural gas, and transport and distribution
It is issued exclusively to any legal entity under Senegalese of liquefied and compressed natural gas.
law that can prove it has the technical and financial capacity
to carry out hydrocarbon transport activities. This transport The license is awarded to legal entities under Senegalese
is made to the storage, processing, loading or consumption law through a call for tenders or direct consultation, by order
points, under the conditions defined by the Petroleum Code of the Minister in charge of hydrocarbons. The modalities of
and the texts taken for its application and in accordance with implementation of the call for tenders and direct consultation
the stipulations of the petroleum contract. as well as the conditions of admissibility of the request are
fixed by decree.
The hydrocarbon transport authorisation order entitles
the holder to build and operate hydrocarbon transport The license is accompanied by specifications defining the
infrastructures. The order of the Minister in charge of operator’s obligations.
Hydrocarbons sets the duration of the authorisation for the
transport of hydrocarbons. However, for transport facilities The Minister in charge of hydrocarbons grants or rejects
in the maritime zone, the authorisation for the transport applications for the licenses provided for in this Code, after
of hydrocarbons is issued by joint order of the Minister in receiving the opinion of the Regulatory Body. Reasons shall
charge of Hydrocarbons and the Minister in charge of be given for any rejection of a license application.
Maritime Affairs.
The license may be renewed by the Minister in charge of
The rights to transport hydrocarbons thus referred to may be hydrocarbons after the opinion of the Regulatory Body.
transferred to third parties, individually or jointly, by any holder
of exclusive exploitation rights under the conditions defined The Concession Regime
by the oil contract. This transfer is made in compliance with A concession is granted to any legal entity under Senegalese
the conditions set out in the Petroleum Code relating to the law that can prove it has the technical and financial capacity
construction and operation of the installations and pipelines to carry out natural gas transmission or distribution activities
and the terms of the petroleum contract. The transfer deed through pipelines.
is notified to the Minister in charge of hydrocarbons for
approval. The natural gas transmission or distribution concession is
awarded to legal entities under Senegalese law through
The holder of a hydrocarbon transport permit must accept a call for tenders or direct consultation. The terms and
the passage of hydrocarbons from other fields, subject to conditions of the call for tenders and direct consultation as
compatibility with the conditions of use of the transport well as the conditions of admissibility of the application are
infrastructures referred to in the Petroleum Code and within set by decree. The concession contract is signed by the
the limits of the excess capacity available. The use by third Minister in charge of Hydrocarbons and the applicant(s) for
parties of the transport infrastructures held by a transport the concession and is approved by decree and published in
permit holder gives rise to the payment of a tariff fixed by the Official Bulletin.
order of the Minister in charge of hydrocarbons.
The Minister in charge of hydrocarbons grants or rejects
In the event that several hydrocarbon discoveries are made applications for concessions provided for in this Code,
in the same geographical area, the operators shall join after having first received the opinion of the Regulatory
together for the construction and/or joint use of facilities and Body. Reasons must be given for any decision rejecting an
pipelines for the evacuation of all or part of the production application for a concession. At the request of its holder, the
of these discoveries. In the absence of an agreement, concession contract may be renewed by decree.
the Minister in charge of hydrocarbons shall request the
operators to associate themselves for the execution of the The Regulatory Body may make any general amendment to
abovementioned activities. the contracts and/or specifications, subject to the approval
of the Minister in charge of hydrocarbons. The conditions
Natural Gas Liquefaction and Hydrocarbon Storage of these modifications shall be specified in the relevant
The rules applicable for transporting hydrocarbons, exercise titles or specifications.
described above, are those that apply to natural gas
liquefaction operations and to the storage of hydrocarbons. Any modification made to the contracts and/or specifications,
with the exception of those induced by the legislation,
The Gas Code provides for two types of regimes: the in particular on labour and the environment, which affect
licensing regime and the concessions regime. the obligations of their holders, shall be accompanied by
measures tending to preserve the economic balance of the
contract.

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License or concession holders may assign or transfer their that the holder has fulfilled his obligations. The holder of
licenses or concessions to legal persons under Senegalese a processing license may engage in any direct activity of
law who have the required capacity. The holder of a license construction and operation of natural gas liquefaction or
or concession may, during the period of validity, relinquish regasification facilities.
said license or concession after approval by the Minister
in charge of hydrocarbons. In such a case, the licensee or Storage
concession holder has the obligation to ensure the continuity Any legal entity planning to carry out storage activities
of activities until the approval of the Minister in charge of shall first obtain a license from the Minister in charge of
hydrocarbons is obtained. hydrocarbons. The storage license is granted for a maximum
period of fifteen years. The license may be renewed in the
The Minister in charge of hydrocarbons requires that same manner for a period not exceeding five years provided
the obligations and commitments made in the license or that the holder has fulfilled his obligations.
concession, including those related to decommissioning
and rehabilitation costs, be fulfilled until the relinquishment Transportation by Gas Pipelines
application is approved. Any legal entity planning to carry out pipeline transportation
activities must first obtain a concession. A decree approves
In addition, the rights conferred by the Gas Code are as follows the contract attached to the pipeline transport concession.
for activities in the midstream and downstream segments of The pipeline transport concession is granted for a maximum
the gas sector, namely (i) aggregation, processing, storage, period of fifteen years. The concession may be renewed by
import, export, re-export and supply of natural gas in gaseous decree in the same manner for a period not exceeding five
or liquid form; (ii) pipeline transportation and distribution of years, provided that the holder has fulfilled its obligations.
natural gas; (iii) transportation and distribution of liquefied Only one concession may be granted for a clearly identified
natural gas; (iv) transportation and distribution of compressed transmission system.
natural gas:
The holder of a pipeline transportation concession is
Importation responsible for the operation, maintenance and development
Any legal entity planning to carry out natural gas import of the transportation network dedicated to it.
activities must first obtain a license from the Minister in
charge of hydrocarbons. The import license is granted for a The holder of the pipeline transmission concession
period of five years. It may be renewed for the same period concludes, with gas suppliers, aggregators, holders of
provided that the holder has fulfilled its obligations. pipeline distribution concessions, eligible customers
connected to its network and operators of gas storage
Exportation facilities, the contracts necessary for the performance of
Any legal entity planning to carry out export activities must first its tasks, according to competitive, non-discriminatory and
obtain a license from the Minister in charge of hydrocarbons. transparent procedures, in compliance with the tariffs in
The export license is granted for a period of five years. It can force. These contracts are submitted to the Regulatory Body
be renewed for the same period provided that the holder for its opinion before they are signed.
has fulfilled his obligations.
Distribution by Gas Pipelines
Re-export Any legal entity planning to carry out pipeline distribution
Any legal entity intending to carry out re-export activities activities must first obtain a concession. A decree approves
must first obtain a license from the Minister in charge of the contract attached to the pipeline distribution concession.
hydrocarbons. The re-export license is granted for a period The pipeline distribution concession is granted for a maximum
of five years. It can be renewed for the same duration period of fifteen years. The concession may be renewed by
provided that the holder has fulfilled his obligations. decree in the same manner for a period not exceeding five
years, provided that the holder has fulfilled its obligations.
Aggregation Only one concession may be granted for a clearly identified
Any legal entity intending to carry out aggregation activities distribution network.
shall first obtain a license from the Minister in charge of
hydrocarbons. The aggregation license is granted for a Supply
period of five years. It may be renewed for the same period, Any legal entity intending to carry out supply activities
provided that the holder has fulfilled his obligations. shall first obtain a license from the Minister in charge of
hydrocarbons. The supply license is granted for a period of
Processing five years. It can be renewed for the same duration provided
Any legal entity planning to carry out processing activities that the holder has fulfilled his obligations.
must first obtain a license from the Minister in charge of
hydrocarbons. The processing license is granted for a Transport and Distribution of Liquefied Natural Gas
maximum period of fifteen years. It may be renewed in the Any legal entity planning to carry out liquefied natural gas
same manner for a period not exceeding five years, provided transportation and distribution activities shall first obtain a

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license from the Minister in charge of hydrocarbons. The PROCESSING AND BENEFICIATION
license of transport and distribution of liquefied natural gas
is granted for a period of five years. It can be renewed for
Are there any requirements to beneficiate minerals
the same duration provided that the holder has fulfilled his
mined?
obligations.
Subject to foreign exchange regulations and the provisions
of the mining code, the holder of a mining permit may freely
Transport and Distribution of Compressed Natural Gas Any
export the extracted mineral substances, their concentrates,
legal entity planning to carry out compressed natural gas
primary derivatives and any other derivatives after having
transportation and distribution activities shall first obtain a
carried out all the legal and regulatory formalities for the
license from the Minister in charge of hydrocarbons. The
export of these substances.
license of transport and distribution of compressed natural
gas is granted for a period of five years. It can be renewed
for the same duration provided that the holder has fulfilled
its obligations. DISPOSALS OF RIGHTS AND
CONTROLLING INTERESTS

INDIGENISATION REQUIREMENTS Are there any statutory consents required to dispose of

rights to explore and mine?
Are there any requirements in relation to the holding of No statutory consents are required according to regulations
equity in exploration and mining projects by indigenous governing the mining operations, but the authorisation of
peoples? Minister in charge of Mines and the payment of the duties
The Government is to be awarded, for free, ten percent of and taxes normally due are needed.
the equity of the resource company that will have to operate
the exploitation. The Government can also negotiate for him Are there any restrictions on disposals of controlling
and/or the private national sector an additional twenty-five interests in entities holding exploration or mining rights?
percent equity interest. No

Petroleum contract holders and companies working on their

behalf must: USE OF SURFACE OF LAND INVOLVED IN
• Give national private investors having the technical and PROSPECTING AND MINING ACTIVITIES
financial capabilities, the opportunity to participate in oil
risks and operations;
• Give preference to Senegalese companies for all What are the rights of the holder of an exploration right or
construction, supply or service contracts, under equivalent mining right to use the surface necessary or incidental to
conditions in terms of quality, quantity, price, delivery time an exploration or mining operation?
and payment; Authorisation for prospection gives to its holder a non-
• Employ, with equal qualifications, Senegalese personnel for exclusive right of prospection available for targeted
the performance of petroleum operations on the territory of substances over the permitted area. Authorisation for
the Republic of Senegal; prospection is considered as movable property.
• Contribute to the maximum technological transfers towards
Senegalese companies with accompanying relations; Mining permits give the holder a right to occupy in the
• Deposit in a first rank financial institution the amount of the national territory to:
guarantee for the rehabilitation and restoration of the sites • Occupy the land necessary to carry out research and
in the conditions set out in the oil contract; and operations, the carrying out of the related activities and the
• Contribute to the professional training of Senegalese construction of personal dwellings;
managers and technicians through an annual training • Search and extract construction and stone materials;
program defined in the applicable oil contract. • Cut wood needed for this work; and
• Conduct surveys for water supply for staff, construction,
Are there any special rules or restrictions applicable to installations.
foreign applicants?
No, there are not. The holder of an operating permit may, both inside and
outside the perimeter assigned to him, occupy the land
Identify any rights that the State may have. Does the State necessary for the performance of his work, subject to the
have any rights to equity in mining projects? rights of third parties.
The Government is to be awarded, for free, ten percent of
the equity of the resource company that will have to operate
the exploitation. The Government can also negotiate for the
Government, and/or the private national sector, an additional
twenty-five percent equity interest.

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ENVIRONMENTAL The “mining tax” must be paid quarterly and deducted from
the market value of the marketed product, as follows:
What legislation governs environmental protection of
exploration and mining sites? Iron-ore Concentrated 5%
Exploration and mining sites are protected by any Treated 5%
environmental requirement imposed either by the mining
law or the Environment Code in addition to the fact that an Phosphate Calcium aluminate and lime 1,5%
environment impact survey should be first conducted. phosphate
Phosphate 5%
Gold Treated abroad 5%
NATIVE TITLE AND LAND RIGHTS Treated locally 3,5%

Is there any native title which has any implication for the Other substances 3%
exploration and mining industry?
Occupation of lands by the permit holder gives rights to Exemptions
landowners or occupants and makes provision for just and Between the date of grant of the mining title and the date
adequate reparation for any material prejudice caused. of commencement of commercial production (Investment
Period), the mining company is exempt from all taxes,
including value-added tax and port charges.
However, several taxes are not affected by this exemption,
HEALTH AND SAFETY including:
• the statistical fee;
What legislation governs health and safety in mining? • community levy; and
The mining law provides that any legal person carrying • other applicable Community taxes.
out the prospecting, research or exploitation of mineral
substances must respect the rules of hygiene and safety, in In addition, the exemption from the export tax has been
order to guarantee the safety of persons and goods in mines abolished.
and quarries. It is in this very sense that the duly authorised
sworn agents of the mining administration ensure that Fixed Entrance Fees
the holders concerned comply with the safety, health and The allocation, renewal, extension or transformation, as well
environmental protection measures defined in the legislative as the transfer or improvement of research and exploitation
and regulatory provisions in force. mining titles, are subject to the payment of fixed entry fees,
paid in one instalment, as follows:

ROYALTIES AND TAXES Research Licence 2500 000 F CFA

Area Royalties Operating licence 10 000 000 F CFA
The mining title holder has to pay annual “area royalties” as Permanent Quarry Permit 2500 000 F CFA
following:
Termporary Quarry 1000 000 F CFA
• Mining exploration permits and each renewal:
Operating Authorisation
o First period of validity: 5000 FCFA/Km2/ year;
o First period of renewal: 6500FCFA/Km2/year; and Authorisation to operate a 2500 000 F CFA
o Second period of renewal: 8000FCFA/Km2/year. small mine
• Mining operation permits and each renewal: Semi-mechanized mining 1500 000 F CFA
o 250.000 FCFA/Km2/year. authorisation
• Authorisation of exploitation of little mine:
Authorisation for artisanal 50 000 F CFA
o 50.000 FCFA/ha/ year at the delivery and each renewal.
mining
•P  ermanently quarrying permit:
o 50.000 FCFA/ha/year at the delivery and each renewal.
• Authorisation of exploitation of semi-mechanized mine:
o 50.000 FCFA/ha/year at the delivery and each renewal.

Mining Royalties
Most of the tax provisions of the old code were transferred
to the tax code in 2012 (pursuant to Law No. 2012-31 and
Law No. 2012-32 dated December 31, 2012). This is also the
case in the new mining code with the exception of surface
royalties, mining royalties and for certain taxes.

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SOUTH AFRICA
WERKSMANS ATTORNEYS

FIRM INFORMATION
Website address : www.werksmans.com
Languages spoken : English
Telephone : +27 11 535 8000
Address : The Central, 96 Rivonia Rd, Dennehof, Sandton, 2196
Contact : Nkonzo Hlatshwayo and Dale Adams
Email : [email protected] and [email protected]

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SOUTH AFRICA | WERKSMANS ATTORNEYS

RELEVANT AUTHORITIES AND searching for minerals other than petroleum. In order to
conduct prospecting for minerals (other than petroleum), an
LEGISLATION applicant has to apply for and be granted a prospecting right.
In order to procure the grant, the applicant must apply for an
What laws regulate mining? environmental authorisation and consult with interested and
South African Mining Law is regulated by the Mineral affected parties, including land owners and lawful occupiers.
and Petroleum Resources Development Act, 28 of 2002 The Minister is obliged to grant the prospecting right if the
(“MPRDA”) which is the predominant piece of legislation applicant has access to financial resources and technical
dealing with acquisitions or rights to conduct reconnaissance, ability, can conduct the prospecting in accordance with the
prospecting and mining. The MPRDA became effective on 1 prospecting work programme and if the prospecting will not
May 2004 and substitutes the erstwhile hybrid system of a result in unacceptable pollution, degradation or damage
common law system with statutory interference. There are to the environment. Prospecting rights are granted for a
several other pieces of legislation which deal with such maximum period of 5 years and are renewable once for
ancillary issues such as royalties (the Mineral and Petroleum period of up to 3 years. The holding of a prospecting right
Resources Royalty Act, 2008), title registration (the Mining grants exclusivity to the holder in regard to an application for
Titles Registration Act, 1967), and health and safety (the Mine a mining right.
Health and Safety Act, 1996).
What rights are required to conduct mining?
Which Government body/ies administer mining law? A person wishing to conduct mining for minerals (other than
The mining industry in South Africa is administered by the petroleum) needs to apply for a mining right in terms of
Department of Mineral and Petroleum Resources (“DMPR”), the MPRDA. In order for the application to be granted, the
the head office of which is situated in Pretoria, South Africa applicant has to lodge an application for an environmental
and each of the nine regions of South Africa have regional authorisation and consult with interested and affected
offices of the DMPR. There is also a mine health and safety parties, including land owners. The Minister must grant the
inspectorate which falls under the auspices of the DMPR. In right if the mineral can be mined optimally, the applicant has
addition, there is a Director General and a Deputy Director access to financial resources and technical ability and the
General both of whom have been delegated powers down mining will not result in unacceptable pollution, ecological
from the Minister to take various decisions as delegatee of degradation or damage to the environment. Furthermore,
the Minister. the applicant has to lodge a mining work programme and
a detailed social and labour plan. A mining right is granted
for a maximum period of 30 years provided that the holder
TYPES OF AND MANNER OF ACQUISITION is entitled to apply for renewal for periods not exceeding 30
OF RIGHTS years.

What rights are granted to conduct reconnaissance,

exploration and mining operations? OIL AND GAS

Reconnaissance is defined in South African law as “any What rights are granted to conduct oil and gas exploration
operation carried out for or in connection with the search and production?
for a mineral or petroleum by geological, geophysical and Exploration relates to searching for petroleum. Petroleum
photo geological surveys that includes any remote sensing relates to liquid, solid hydrocarbons or combustible gas but
techniques but does not include any prospecting operations excludes coal and bituminous shale. In regard to petroleum
other than acquisition and processing of new seismic data”. an applicant has to apply for exploration rights in terms of the
In order to conduct a reconnaissance an applicant needs Petroleum Chapter of the MPRDA. In regard to production an
to apply to the DMPR for a reconnaissance permission and applicant has to apply for a production right in terms of the
demonstrate that the applicant has financial resources, Petroleum Chapter of the MPRDA.
technical ability and has lodged a reconnaissance work
programme. Such rights are valid for one year and are not
renewable or transferable. The holding of a reconnaissance INDIGENISATION REQUIREMENTS
permission does not grant any exclusivity to apply for, or be
granted, a prospecting right or a mining right.
Are there any requirements in relation to the holding of
What rights are required to conduct exploration? equity in exploration and mining projects by indigenous
In South African law there is a distinction between peoples?
prospecting and exploration. Prospecting relates to There are no requirements for ownership by indigenous
persons or entities in entities holding prospecting rights

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or mining rights in South Africa. However, there was a The Amendment Bill referred to above provides that
requirement that at least 26% of the attributable units of every producer of designated minerals must offer to local
production of prospecting or mining projects should be beneficiators a prescribed percentage of its production
held by historically disadvantaged South Africans. A mining of minerals or mineral products in prescribed quantities,
charter dealing with the transformation of the mining industry qualities and timelines at the mine gate price or agreed price.
to assist the entrance of historically disadvantaged South
Africans into the minerals and mining industry applies to all Are there restrictions on the export of minerals?
holders of prospecting rights and mining rights. A mining There are restrictions on the export of certain minerals,
charter was published in 2004 when the MPRDA came such as diamonds in terms of the Diamonds Act, 1986 and
into effect but has been substituted by an amended mining precious metals in terms of the Precious Metals Act, 2005.
charter in 2010. The 2010 mining charter was substituted by Precious metals include gold, silver and the platinum group
the 2018 mining charter which currently applies. It requires, metals. A permit is required to export and export levies are
inter alia, that an applicant for a new mining right must be imposed.
owned by Historically Disadvantaged South Africans by an The Amendment Bill referred to above provides that
amount of at least 30%. no person other than a producer that has offered local
beneficiators the prescribed percentage of its production of
Are there special rules for foreign applicants? minerals may export designated minerals or mineral products
There are no special rules in South Africa in regard to without the Minister’s prior written approval.
foreign applicants. They have to comply with exactly same
criteria for the grant of a right as an indigenous applicant.
Prospecting rights and mining rights in South Africa can be DISPOSALS OF RIGHTS AND
held by foreign entities, whether natural or juristic. If a foreign
company conducts business in South Africa it would have CONTROLLING INTERESTS
to register at least as an external company in terms of the
Companies Act. Are there any statutory consents required to dispose of
rights to explore and mine?
State Equity The MPRDA contains restrictions on the ability to transfer
The State does not have free carry rights in relation to prospecting rights, mining rights, exploration rights and
prospecting or mining projects, nor rights to acquire production rights. The transfer of these or any interest in these
shareholdings. There is a State owned mining company through any method of disposal requires the prior written
which itself applies for prospecting rights or mining rights in consent of the Minister of Mineral Resources (“Minister”). The
accordance with the MPRDA. Minister is obliged to grant such consent if the transferee
In the petroleum industry, it is common in exploration rights satisfies the criteria for the grant of a right in the first place.
and prospecting rights for the parties to agree that the Disposals are given effect to by cessions of rights which are
State shall have an entitlement of a free carry (up to 5%) capable of being registered in the Mining Titles Office.
and options to acquire further shareholding provided that
such shareholding will be contributory. An Amendment Act Are there restrictions on disposals of controlling interests
of 2013 was approved by Parliament but has been sent in the entities holding exploration or mining projects?
back to Parliament for reconsideration because of several There are change of control restrictions applicable. A
controversial aspects and it has yet to become force of law. disposal of a controlling interest in a company holding a
The latest version of the Amendment Act provides for a 20% prospecting or mining right requires the prior consent of the
free carry in favour of the State with an option to acquire Minister. This does not apply to listed entities. The wording
contributory interest of up to 100%. in the MPRDA regarding disposals of controlling interests
is wide enough also to include the changes in controlling
shareholding of ultimate holding companies even offshore.
PROCESSING AND BENEFICIATION

Are there any requirements to beneficiate minerals RIGHTS TO USE SURFACE OF LAND
mined?
The MPRDA provides that before any person intends to What are the rights of the holder of an exploration right or
beneficiate any mineral mined in the Republic of South Africa mining right to use the surface necessary or incidental to
outside the Republic, the holder may only do so after written an exploration or mining operation?
notice and in consultation with the Minister. The holder of a The rights to use the surface of a holder of a right to conduct
mining right is entitled to process minerals mined under the prospecting or mining in terms of the MPRDA are extensive.
auspices of a mining right as the holder of a mining right.
However, there are further statutory provisions that are The holder may:
applicable to processing of precious metals and diamonds • Enter the land to which such right relates, bring his or her
and these requirements are regulated by the Precious employees onto the land and bring any plant, machinery or
Metals Act, 2005 and the Diamonds Act, 1986 respectively. equipment or build or construction or lay down any surface,

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underground or undersea infrastructure which may be right if there are zoning restrictions in the applicable area.
required for purposes of prospecting or mining; There may be a town planning scheme or municipal by laws
• Prospect or mine for his own account; having application over the relevant area which restricts
• Remove and dispose of such mineral; and prospecting or mining without a rezoning application.
• Use water in relation to prospecting or mining activities
and carry out any other activity incidental to prospecting
or mining. NATIVE TITLE AND LAND RIGHTS
What obligations does the holder of a reconnaissance Is there any native title which has any implication for the
right, prospecting right or mining right have vis-à-vis the exploration and mining industry?
landowner or lawful occupier? Native title or other statutory surface use rights do not have a
The holder of a reconnaissance right, prospecting right material impact upon reconnaissance, prospecting or mining
or mining right has duties towards the landowner or operations. Holders of such rights would be in the same
lawful occupier in terms of consultation, and the holder position as any landowner or lawful occupier in regard to
of a prospecting right or mining right has to compensate consultation by applicants and holders of prospecting rights
the landowner for loss or damage suffered as a result of or mining rights and the right to receive compensation in
the conduct of prospecting or mining activities. It is not the case of damage or loss. Communities owning land do
necessary for the holder of a prospecting right or mining have preferent rights to apply for rights to prospect or mine.
right to purchase land or even enter into an agreement to Furthermore, if any application for a mining right relates to
use the land with the surface owner. Where communities are land occupied by a community the Minister may impose
involved the consultation obligations are more extensive as such conditions as are necessary to promote the rights and
a result of recent court decisions which have held that the interests of the community. The obligations on a mining right
consent of members of the community must be obtained applicant or holder to consult with communities is more
before mining can take place. extensive than other landowners because of recent court
decisions which have held that the consent of members
of the community must be obtained before mining can
ENVIRONMENTAL commence.

What legislation governs environmental protection of

exploration and mining sites? HEALTH AND SAFETY
Currently the holder of a prospecting right or mining right is
required to have an approved environmental authorisation, What legislation governs health and safety in mining?
prior to the conducting of the relevant activities. In addition, There is a separate piece of legislation dealing with health
the right to use water is governed by the National Water Act, and safety in mining, namely the Mine Health and Safety Act,
1998. 1996. Previously, mine health and safety was dealt with in the
same ambit as the relevant mining law, namely the Minerals
What provisions need to be made for the closure of mines? Act, 50 of 1991 but it was removed and placed in a separate
The holder of a prospecting right or mining right must furnish piece of legislation as the purpose of the two pieces of
during all stages of the project sufficient pecuniary provision legislation is often in conflict. There is a chain responsibility
for rehabilitation which is reassessed on an annual basis. This that is set up in terms of statutory obligations under the Mine
is done in terms of a deposit with the DMPR, bank guarantee Health and Safety Act, 1996.
or a trust deed. The principle of pecuniary provision is that
there must be sufficient funds at all times in the hands of Are there obligations imposed upon owners, employers,
the DMPR apart from the mining company to attend to managers and employees in relation to health and safety?
rehabilitation if there is a premature closure of the mine. There are extensive obligations imposed upon owners,
employers, managers and employees in relation to health
What are the closure obligations of the holder of a and safety, including in relation to statutory appointments,
reconnaissance right, prospecting right or mining right? liability, committees, inquest and enquiries.
The holder of a prospecting right or mining right must apply
for a closure certificate within 180 days of ceasing the
relevant operation and lodge a closure plan. Furthermore, ADMINISTRATIVE AND CONSTITUTIONAL
the holder of a prospecting or mining right must comply with
all aspects of the environmental authorisation approved in ASPECTS
relation to the prospecting right or mining right in regard to
closure. Is there a constitution which has an impact on the rights
to prospect and mine?
Are there any zoning requirements applicable? There is a system of appeals against administrative decisions
Zoning requirements may be applicable and required to be in terms of the relevant mining legislation. One has to exhaust
obtained over and above the prospecting right or mining the internal remedies before going to court to set aside an
administrative decision on review in terms of the High Court

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rules. Appeals have to be brought within 30 days of gaining

knowledge of the relevant decision.

Is there a Constitution which has an impact upon rights to

conduct reconnaissance, prospecting and mining?
There is a Constitution in South Africa of 1996 which has
an impact upon rights to conduct prospecting and mining.
Section 25 of the Constitution protects property from being
expropriated without just and equitable compensation.
Property would include prospecting rights or mining rights
and is not limited to land. The law must be of general
application and there should be no arbitratory deprivation. It
must also be for a public purpose or public interest.

ROYALTIES AND TAXES

Are there special rules applicable to the taxation of
exploration and mining companies?
There is a system of appeals against administrative decisions
in terms of the relevant mining legislation. One has to exhaust
the internal remedies before going to court to set aside an
administrative decision on review in terms of the High Court
rules. Appeals have to be brought within 30 days of gaining
knowledge of the relevant decision.

Is there a Constitution which has an impact upon rights to

conduct reconnaissance, prospecting and mining?
There is a Constitution in South Africa of 1996 which has
an impact upon rights to conduct prospecting and mining.
Section 25 of the Constitution protects property from being
expropriated without just and equitable compensation.
Property would include prospecting rights or mining rights
and is not limited to land. The law must be of general
application and there should be no arbitratory deprivation. It
must also be for a public purpose or public interest.

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TANZANIA
FB ATTORNEYS

FIRM INFORMATION
Website address : www.fbattorneys.co.tz
Languages spoken : Kiswahili, English
Telephone : +255 22 2135994/5
Address : 8th Floor Amani Place, Ohio Street, Dar es Salaam
Contact : FAyaz Bhojani, Alyshah Bharwani
Email : [email protected] / [email protected]

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TANZANIA | FB ATTORNEYS

RELEVANT AUTHORITIES AND an ML is one relating to medium-scale mining operations

whose capital investment is between USD 5,000,000 and
LEGISLATION 100,000,000.00. GML are reserved for Tanzanian citizens
except in the case of joint ventures where 50% of the joint
What laws regulate mining? venture interest is controlled by a Tanzanian and PMLs are
The principal legislation regulating mining is the Mining Act, also restricted to Tanzanian citizens only.
Cap. 123 [R.E. 2019] (”the Mining Act”), as well as regulations
made under the Mining Act concerning mineral rights,
environmental protection, mineral beneficiation, safety
and occupational health, mineral trading and mining of
OIL AND GAS
radioactive materials.
What rights are granted to conduct oil and gas exploration
Which Government Bodies administer mining law? and production?
The mining industry is administered by the Ministry of The principal legislation regulating the exploration and
Minerals. The chief officer relating to mining regulation is the production of the oil and gas sector in Tanzania is the
Commissioner for Minerals, a presidential appointee whose Petroleum Act, 2015 (”the Petroleum Act”) which repealed
responsibility is to advise the Minister on all matters relating the Petroleum (Exploration and Production) Act, 1980.
to the mining sector. The Minister has a role to play as well, The Petroleum Act provides for regulations of upstream,
specifically concerning preparation of policies, strategies midstream and downstream petroleum activities.
and legislative framework for exploration and exploitation of
mineral resources as well as monitoring the implementation The Petroleum Act grants the National Oil Company (‘NOC”)
of the laid down government policies on minerals. There is the exclusive right over petroleum rights including licences.
also the Mining Commission constituted under the Mining Such licences are not transferrable. A private sector party
Act, with responsibility, among others, to the granting of is able to apply for a licence through one of the following
mining licences and related matters. processes:

The Mining Commission is responsible for the processing of The first one is a partnership with the NOC. The NOC may,
licence applications. It performs its functions through various subject to the Minister’s consent and on the advice of
committees and officers, such as Chief Inspector of Mines, Petroleum Upstream Regulatory Authority (‘PURA”), enter
Resident Mines Officers, Mines Resident Officers, Inspectors into partnership with a Tanzanian or foreign entity through an
of Mines, and other public officers for better implementation open tendering process or the direct award of a block. When
of the Mining Act. The Mining Commission has replaced private sector participants partner with the NOC, the licence
various institutions such as Mining Advisory Board, Tanzania requires the NOC to retain at least a 25% interest in any joint
Minerals Audit Agency, and Zonal Mines Officers that venture vehicle unless the NOC decides otherwise.
performed its current functions.
The second potential procurement process appears to be
related to the entry into Petroleum agreements. Petroleum
agreements shall not be entered unless a transparent and
TYPES OF AND MANNER OF ACQUISITION competitive public tendering process is completed. The
OF RIGHTS Minister causes to be published in a newspaper of wide
circulation, invitation of tender or the intention to initiate
What rights are granted to conduct reconnaissance, direct negotiations. Where all or part of the area tendered
exploration and mining operations? in a competitive public tender process for an award of an
agreement has not become effective, and it is for the public
The Mining Act does not contain provision for a right to interest, the Minister may, upon the advice of PURA and
conduct reconnaissance. A Prospecting Licence is required approval of the Cabinet, initiate direct negotiations with
to conduct exploration. However, exploration activities may qualified and eligible company
also be undertaken under the various mining licences in
addition to mining operations. Under mining operations, Also, the Petroleum Act requires a person intending to carry
there are four categories of mining licences. There are out reconnaissance surveys to apply for a reconnaissance
Special Mining Licences (‘SML”), Mining Licences (‘ML”), permit from PURA.
Gemstone Mining

Licences (‘GML”) and Primary Mining Licences (‘PML”). SMLs

are issued in respect of large scale mining operations
whose capital is not less than USD 100,000,000.00 while

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INDIGENISATION REQUIREMENTS Are there any restrictions on the export of minerals? There
is a general restriction for exportation of raw minerals and
mineral concentrates and thus a mining company needs to
Are there any requirements in relation to the holding of
obtain special authorisation from the Government for the
equity in exploration and mining projects by indigenous
exportation of raw minerals. The Mining Act also prohibits
peoples?
the selling, disposing or export of any raw gold or gemstones
In addition to restrictions of ownership of PMLs and GMLs
except by holders of a Dealer’s Licence. The export or import
to Tanzanians, there is a requirement that an indigenous
of any radioactive minerals must be in accordance with the
Tanzanian company should have at least 5% equity
Atomic Energy Act. Holders of mineral rights are not required
participation in a foreign company for such foreign company
to have a Dealer’s Licence in order to export their minerals.
to qualify for grant of a ML. The participating interest of an
indigenous Tanzanian company is not transferable to a non-
indigenous Tanzanian company. Further, mining–related
agreements/arrangements should guarantee the State and DISPOSALS OF RIGHTS AND
people’s participation in the mining vestures. CONTROLLING INTERESTS
Are there any special rules or restrictions applicable to Are there any statutory consents required to dispose of
foreign applicants? rights to explore and mine?
Except in the case of PMLs which are restricted to Tanzanians The holder(s) of a mineral right, with respect to SML; ML or
or companies and partnerships exclusively owned by any undivided proportionate part thereof is not allowed to
Tanzanians, and GMLs that are also restricted to Tanzanians assign mineral rights to another person without a written
in the case of an individual and if in a partnership or joint consent of the licensing authority. Please note the consent of
venture where a Tanzanian must have a fifty percent interest, the licensing authority is not required for an assignment to an
there are no special rules applicable to foreigners. affiliate, where the obligations of the affiliate are guaranteed
by the assignor or by a parent company approved by the
Identify any rights that the State may have. Does the licensing authority or a bank or other financial institution by
State have any rights to equity in mining projects? way of mortgage or charge given as security for any loan or
The Mining Act provides that in any mining operations under guarantee in respect of mining operations
an ML or SML, the Government of Tanzania is entitled to
not less than 16% non-dilutable free carried interest shares Are there any restrictions on disposals of controlling
in the capital of a mining company depending on the type interests in entities holding exploration or mining rights?
of minerals and the level of investment. In addition to such A company holding a mineral right needs the prior consent
free carried interest shares, in case of any tax expenditures/ of the Licensing Authority before it can transfer its shares
incentives enjoyed by the mining company, the Government if the effect of the transfer would be to give the transferee
has a right to acquire, in total, up to 50% of the shares of control of the company. The law provides that the licensing
the mining company commensurate with the total tax Authority’s consent shall not be unreasonably withheld.
expenditures incurred by the Government in favour of the
mining company. However, without distorting the intention
of minimum mandatory state participation, the Government
and ML or SML holders may establish a special arrangement USE OF SURFACE OF LAND INVOLVED IN
in view of ensuring the Government’s effective participation PROSPECTING AND MINING ACTIVITIES
in the mining operations as contemplated by the Mining Act.
What are the rights of the holder of an exploration right or
mining right to use the surface necessary or incidental to
PROCESSING AND BENEFICIATION an exploration or mining operation?
A mineral right holder may enter the mining area and take
Are there any requirements to beneficiate minerals all the necessary action to facilitate exploration or mining,
mined? may erect buildings, and any facility on the licence area and
Mineral rights holders are obliged under the Mining Act to stack or dump mineral waste in the manner provided for in
set aside not less than 20% of gold for local processing, the Environmental Management Plan subject to the consent
refining, smelting and trading in Tanzania unless there is an of various government agencies where the land is used
agreement with the government providing otherwise. The for any public purposes and purposes and the consent of
Mining (Mineral Beneficiation) Regulations, 2018 provide the private lawful occupiers. Surface rights users must be
for further procedures regulating beneficiation of mined compensated for damage to property or crops and if they
minerals. Besides, there should be commitments in mining- have to relocate the cost for relocation and that of properties
related agreements/arrangements to establish beneficiation or crop. Besides, prior consent from various institutions such
facilities in Tanzania. as Tanzania National Parks Authority (TANAPA) is required
before the mining companies commences its operations in
reserved lands.

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ENVIRONMENTAL • The Environmental (Hazardous Waste Control and

Management) Regulations, 2009
• Environmental regulations- Strategic Assessment; and
What legislation governs environmental protection of
• Environmental Management (Fees and Charges)
exploration and mining sites?
Application for SMLs, MLs or GMLs must be accompanied
by an environmental impact statement and an environmental
management plan as provided for under the Environmental CONSTITUTIONAL AND ADMINISTRATIVE
Management Act, 2004 and the Environmental Impact LAW
Assessment and Audit Regulations, 2005. The Minister
for Minerals may reject an application if the application for Is there a constitution which has an impact on the rights
a licence is submitted without an environmental impact to prospect and mine?
statement or an environmental management plan while the The Constitution of the United Republic of Tanzania
applicant is not exempted. Within seven days of the date of guarantees the right to private ownership of property and
submitting the application, applicants are obliged to publish state protection of that property and forbids nationalisation
their environmental impact statement in the prescribed of private property without due process of the law which
manner. The licensing authority shall not issue a licence until entails provision of a fair and speedy compensation.
the expiry of at least 60 days from the date of application. Are there administrative appeals in the mining law?
An application for a SML must be accompanied by the The Mining Commission has powers for the adjudication of
applicant’s environmental certificate issued in terms of the disputes between rights holders in relation to themselves of
Environmental Management Act.
third parties other than the Government. Person aggrieved
by the decision of the Mining Commission exercising quasi-
NATIVE TITLE AND LAND RIGHTS judicial powers under the Mining Act may appeal to the
High Court. However, the Mining Commission’s decisions
Is there any native title which has any implication for the resulting in cancellation or suspension of a mineral right can
exploration and mining industry? be challenged by way of judicial review. In relation to the
A mineral right holder cannot enter any occupied land without Mining (Local Content) Regulations, a person aggrieved by
approval of the surface rights holder including any land that the decision of the Mining Commission can lodge a complaint
is for public or various government uses such as; national to the Minister for Minerals.
parks, forest reserves, game reserves, conservation areas,
municipalities, townships, villagers or private lawful occupiers,
and after they have reached agreement for compensation ROYALTIES AND TAXES
through consultation with the local Government and village
council, where applicable. Are there special rules applicable to the taxation of
exploration and mining companies?
There is a special fiscal regime for mining companies as
HEALTH AND SAFETY detailed below:
• US$ accounting - mining companies may opt to maintain
What legislation governs health and safety in mining? their accounts in the US$ currency and their tax liability will
The principal regulation governing health and safety is be assessed and calculated in US$.
the Environmental Management Act No. 20 of 2004 and • Corporate income tax - corporate tax is payable under
its Subsidiary Legislation administered by the National the Income Tax Act, 2004, Cap. 332 [R.E. 2019] at rate not
Environmental Management Council. These include, in exceeding 30 per cent. Income is computed in the manner
addition the Occupation Health and Safety Act No. 5 of set out in the Income Tax Act, as may be amended from
2003. Other relevant safety and health regulations include: time to time.
• The Environmental (Registration of Environmental Experts) • Depreciation allowance for capital expenditure -
Regulation, 2005 depreciation shall be deducted at a rate of 20 per cent on
• The Environmental Impact Assessment and Audit capital expenditure for exploration and development.
Regulation, 2005 • Loss carry forwards - Losses may be carried forward
• The Environmental Management (Air Quality Standards) indefinitely until recovered against income. However,
Regulations, 2007 income of a person having chargeable income and
• The Environmental Management (Soil Quality Standards) unrelieved losses for the four previous consecutive years
Regulations, 2007 of income may only be reduced by reason of use of the
• The Environmental Management (Water Quality Standards) unrelieved losses, but not below 30% of that income before
Regulations, 2007 any reduction for losses.
• The Environmental (Solid Waste Management) Regulations, • Expenditure on another licence area - expenditure on
2009 prospecting and mining operations in respect of another
licence area may, for the purposes of ascertaining taxable

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income, be treated as though it was expenditure incurred

in respect of each mining licence. The law provides clearly
that each mineral right constitutes a separate mining
operation as part of ring-fencing rules under the Income
Tax Act.
• Withholding tax on dividends - withholding tax on dividends
is at a rate of 10 per cent
• Withholding tax on interest - withholding tax on the interest
on foreign loan is at the rate of 10 per cent and accrued
interest is deemed a payment, therefore, withholding tax
thereon is payable.
• Withholding tax on payment for technical services and on
management fees - withholding tax on the above is capped
at the rate of 5 per cent, where the technical service fee, or
the management fee is paid to a resident person or 15 per
cent on a non-resident person.
• Custom duty and on imports of mining equipment and
supplies - import duties under the terms of the Customs
Traffic Act by a mining company or its subcontractors are at
a zero per cent rate during exploration and in the first year
of operation, thereafter, will not exceed 5 per cent.
• Value Added Tax - VAT special relief has recently been
limited to cover only exploration and prospecting activities,
while excise duty exemption were abolished in 2009.
Holders of SMLs may enter into a Development Agreement
with the Government which may provide fiscal stability such
that the tax regime existing on the date of the Development
agreement is frozen creating a stable and predictable fiscal
regime over the life of the mine.

Are there any royalties payable to the State over and

above any taxes?
Royalties are chargeable on the gross value of minerals
produced under licence at the rate of 5% for uranium; 6%
for gemstone and diamonds; and 6% for metallic minerals
including gold, silver, copper and platinum group minerals;
and 3% in the case of other minerals, including building
materials, salt, all minerals within the industrial minerals
group. However, in the case of gold sold at refinery centres,
royalty is charged at the rate of 4%; and in the case of coal
used as industrial raw material, at the rate of 1%. Gross value is
defined under the Mining Act as the market value of minerals
at the point of refining or sale or in the case of consumption
within Tanzania, at the point of delivery within Tanzania,
provided that for the purposes of calculating the amount of
royalties payable, the Government is entitled to reject the
valuation if such value is steeply low on account of deep
negative volatility, unless the raw minerals are disposed of
for beneficiation within the United Republic; and where the
Government rejects the valuation, it has the option to buy the
minerals at the low value ascertained.

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UGANDA
KATENDE, SSEMPEBWA
& CO. ADVOCATES

FIRM INFORMATION
Website address : www.kats.co.ug
Languages spoken : English
Telephone : +256 414 233 770
Address : Radiant House, Plot 20 Kampala Road, Kampala, Uganda
Contact : Sim Katende
Email : [email protected]

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UGANDA | KATENDE, SSEMPEBWA & CO. ADVOCATES

RELEVANT AUTHORITIES AND rights holders and applicants for mineral rights and other
licenses are required to register as Portal users by submitting
LEGISLATION accreditation documents to the Director for verification
before being granted access to use the Portal.
What laws regulate mining?
There are various laws that govern the mining sector in The National Environment Act, Cap 181 (“NEA”)
Uganda. A holder of a mineral right, licence or permit is required to
Below is a summary of the key laws: preserve in as far as is possible, the natural environment
in accordance with the NEA. The NEA prescribes rules
The 1995 Constitution of Uganda that regulate the mining sector activities with regard to the
The Constitution vests the powers to make laws regulating principles and safeguards of environmental management.
the exploitation of minerals, sharing of royalties arising from
mineral exploitation, conditions of payment of indemnities Other Laws Include:
arising out of exploitation of minerals and conditions • The Companies Act, Cap 106 (“Companies Act”);
regarding the restoration of derelict lands in the Parliament • The Contracts Act, Cap 284;
of Uganda. The Constitution further provides that all minerals • The Employment Act, Cap 226;
are held by the Government of Uganda on behalf of the • The Land Act, Cap. 236;
people of Uganda. • The Income Tax Act, Cap. 338 (“Tax Act”);
• The National Forestry and Tree Planting Act, Cap 160;
The Mining and Minerals Act Cap 159 • The Occupational Safety and Health Act, Cap 231;
The Mining and Minerals Act, Cap 159 (the “Mining Act”) • The Partnership Act, Cap 110 (“Partnership Act”);
repealed and replaced the Mining and Mineral Act, 2022 (as • The Public Finance Management Act, Cap 171;
amended) on 1st July 2024. • The Public Private Partnership Act, Cap 111;
• The Registration of Titles Act, Cap. 240;
The Mining Act applies to: • The Trustees Incorporation Act, Cap 271; and
• All activities, operations and transactions related to • The Uganda Wildlife Act, Cap 315.
the prospecting, exploration, mining, development,
exploration, research and benefaction of minerals including There is also a Mining and Mineral Policy of 2018.
the processing, smelting, refining of minerals and trading of
mineral substances; Which Government Bodies administer mining law?
• Substances excluded from the definition of minerals and
exploited for commercial purposes including clay, marram, The Ministry of Energy and Mineral Development
sand, aggregate or any stone commonly used for building The ministry’s mandate is to create, advance, strategically
or similar purposes; and manage, and protect the rational and sustainable exploitation
• The extraction of geothermal resources for direct use. and use of energy and mineral resources for societal and
economic advancement. It is responsible for policy direction
The purpose of the Mining Act is among other things, to and accountable for the sector’s performance.
ensure the rational, integrated safe exploitation and use of
mineral resources and to strengthen the legal and regulatory The Directorate of Geological Survey and Mines (“DGSM”)
framework for the regulation and conduct of mining The DGSM is the technical branch of the Ministry of Energy
operations. and Mineral Development and oversees the regulation and
management of mineral and mining activities in Uganda
Notably, all existing mineral rights, licenses and permits through the departments of geological surveys, mines,
shall remain in force, subject to the Mining Act. Similarly, and geothermal resource. The Director DGSM is in charge
an agreement or similar arrangement made under the of granting the mining rights, licences, permits, and other
Mining Act, 2022 shall continue in force until terminated in authorisations.
accordance with the terms and conditions of the agreement
or arrangement. There are also other departments within the DGSM namely:
•
The Mining Cadastre Department The department
The Mining (Licensing) Regulations, No. 72 of 2023 administers mineral rights and maintains the cadastral
The Mining (Licensing) Regulations, 2023 (the “Regulations”) registers. It also receives, evaluates and processes
came into force on 7 August 2023, repealing the Mining applications for mineral rights, licences and permits
(Licensing) Regulations, No. 49 of 2019. The Regulations including applications for renewal, extension, reduction,
established the Online Mining Cadastre (“Portal”) for the transfer and abandonment of such rights, licences and
management of all mineral rights and mineral dealer permits. It then makes recommendations to the Director
operations in Uganda including licensing, communication, who decides whether to grant the mineral rights or not to;
reporting and payments. All existing and prospective mineral

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• The Mineral Exploration Unit Its purpose is to undertake to look for mineral occurrences of interest in Uganda. The
detailed exploration and evaluation of mineral occurrences Prospecting Licence is not renewable and lasts only one year
in order to de-risk mineral projects and attract competent from date of issue however an applicant is not prohibited
developers through competitive bidding; and from applying for another Prospecting License following
• The Mineral Protection Force The force is established by expiry of the first one. An application for a Prospecting
the Mining Act. Its purpose is to protect minerals against Licence is made by a company, duly incorporated in Uganda,
malpractices, and generally to enforce the laws governing to the Director DGSM in the prescribed form upon payment
mining in Uganda. of the prescribed fee.

The Uganda National Mining Company Exploration License

The Mining Act provides that a Uganda National Mining The license is exclusive and is granted for a duration of up
Company will be incorporated under the Companies Act to three years and the maximum area of exploration is two
and shall be wholly owned by the State. The company shall hundred and fifty square kilometers, except that a person
manage the State’s commercial holding and participating may hold more than one exploration licence, in which case
interests in mineral agreements, manage marketing of there shall be no amalgamation of the exploration areas for
the State’s share of minerals received, optimize value and purposed of discharging obligations under the Mining Act.
investigate and propose new mining ventures initially locally It is valid for a maximum period of four years from the date
but later internationally. of it being granted and may be renewed for a single period
not exceeding three years and the holder of the licence may,
Local Governments three months before the expiration of the licence, apply for
A local Government, among other roles, has the mandate renewal of the licence in respect of the exploration area.
to integrate publicly available mineral deposit information
provided by the DGSM into its development plan and It should be noted however that the Director of the DGSM is
participate in the implementation of mineral policies, laws obligated to receive applications for an exploration licence
and mineral related activities. on a first come, first serve basis. This means that applications
are considered, approved, or granted in the order of receipt,
where the application received first in time shall have priority
TYPES OF AND MANNER OF ACQUISITION over other competing applications, and the first person to
apply shall have priority over other competing persons.
OF RIGHTS
Retention License
What rights are granted to conduct reconnaissance, A Retention License is granted to an applicant who is an
exploration and mining operations? exploration license holder and has identified a mineral
deposit within the exploration area of potential commercial
Although the Government owns the rights to all minerals in significance but is unable to develop the resource
Uganda, a person can gain the right to prospect, explore for, immediately by reason of adverse market conditions and
mine, process, refine, smelt, manufacture, or dispose of any other factors beyond the applicant’s reasonable control
mineral in Uganda by doing so in conformity with the Mining which are temporary in nature. The license is only granted
Act. Any right of ownership that a person may have over the in respect of the exploration area granted in the Exploration
property on which the mineral right is granted is extrinsic to License and is granted for a maximum of three years,
the ability to grant a mineral right. A person seeking to acquire renewable for a single period of two years.
a mineral right, other than one associated with a prospecting,
exploration, or retention licence, must demonstrate that they Large Scale Mining Licence
have already acquired the surface rights to the property Large Scale Mining is the intentional mining of minerals in
where such mineral is located. mechanised operations, involving the excavation of large
surface pits, sinking of shafts, driving of audits or other
The mineral rights provided for in the Mining Act are a right to underground openings with limitations to extents of the
prospect, explore or mine for minerals under a Prospecting mining operation dictated by the extents of the ore body and
Licence, an Exploration Licence, a Retention Licence, a annual ore production volumes or throughput exceeding
Large Scale Mining Licence, Medium Scale Mining Licence one million tons.
or an Artisanal Licence.
An application for a licence is made to the Director of the
Prospecting Licence DGSM and is, among other things, accompanied by:
The right to prospect for minerals in Uganda is given to the • a plan of the area over which the licence is sought;
holder of a prospecting license and authorises participation • a statement giving details of the mineral deposits in the
in mineral prospecting. The holder of a prospecting license area of land over which a Large Scale Mining Licence is
enjoys a non-exclusive right to carry on prospecting sought; and
operations for any mineral. The right is not transferable. The • a report on the results of the exploration.
licence is not area specific and gives authority to the holder

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A Large Scale Mining Licence can only be granted to the The licence is valid for a maximum period of five years, and is
holder of an Exploration Licence, a Retention Licence, an renewable on application for a further period not exceeding
Artisanal Mining Licence, a Small Scale Mining Licence and three years at a time.
a Medium Scale Mining Licence in respect of an Exploration
or Retention Licence area and the maximum mining area is Artisanal Mining Licence.
fifty square kilometers. This licence is required in respect of an artisanal mining
area established by the Minister. An artisanal mining area is
A licence specifies the period of its validity which does not one within the limits of a set geographic area where, due
exceed twenty-one years, or the estimated life of the mineral to the features of certain deposits of gold, diamonds or any
body proposed to be mined, whichever is shorter, and can other mineral substance, technical and economic factors do
be renewed fifteen months before its expiry for a maximum not allow large-scale, medium-scale or small-scale mining
period of fifteen years, or the life of the mineral ore body for operations, but do allow artisanal operations. The mining
which renewal is sought, whichever is shorter. operations however should not exceed ten meters of the
specific artisanal mining area.
Medium Scale Mining Licence
This licence can only be granted by the Director of the The licence once granted is valid for a maximum period of
DGSM to a joint-venture or partnership registered in three years, renewable for a period not exceeding two years
accordance with the Partnership Act comprising of Ugandan at a time.
citizens and foreigners, or a solvent company registered and
incorporated under the Companies Act and is not subject to
winding up. It cannot be granted to an individual, cooperative OIL AND GAS
or association.

A Medium Scale Mining Licence cannot be granted over an What rights are granted to conduct oil and gas exploration
area of land which is the subject of a Large Scale Mining and production?
Licence and a Retention Licence unless the applicant is The Petroleum (Exploration, Development and Production)
the holder of the Retention Licence, a Small Scale Mining Act Cap. 161 provides for the following rights to conduct oil
Licence or an Artisanal Mining Licence and where an area of and gas exploration and production:
land is subject to a Medium Scale Mining Licence. No other
medium scale mining licence shall be granted in respect Reconnaissance Permit
of that area and the maximum surface area covered by the This permit is granted to persons who intend to carry out
license should not exceed fifty square kilometers. reconnaissance surveys, and such persons are required
to apply to the Minister for this license upon payment of a
A Medium Scale Mining Licence is valid for a maximum prescribed fee. The license shall be for a geographically
period of ten years, and is renewable on application made delineated area and is non-exclusive which means that it
to the Director DGSM for such further periods not exceeding may be granted to more than two persons in respect of the
seven years at a time. same area. The duration of this license is eighteen months.

Small Scale Mining Licence Petroleum Exploration Licence

A Small Scale Mining Licence can be granted on application The licence is granted to authorise exploration of
to the Director of the DGSM to an individual who is a citizen hydrocarbons in a specified area. The license can only be
of Uganda, a cooperative society or association registered applied for upon the Minister of Energy announcing in the
under laws of Uganda comprising Uganda citizens gazette the availability of areas for bidding. In exceptional
exclusively, a partnership registered in accordance with cases enumerated in the Act, the Minister may receive direct
the Partnership Act, Cap 110 comprising of Uganda citizens applications for exploration licenses. The duration for this
holding one hundred percent of the shares or solvent license is two years and it may not be renewed more than
company registered and incorporated under the Companies twice.
Act and having one hundred percent of its shares held by
Uganda citizens and is not subject to winding up. Petroleum Production Licence
The holder of a Petroleum Exploration Licence shall
The licence cannot be granted over an area of land which is have exclusive right to apply for the grant of a Petroleum
the subject of a Large Scale Mining Licence or a Retention Production License over any block following the discovery
Licence unless the applicant is the holder of the Retention of petroleum in their exploration area. The license is granted
Licence, a Medium Scale Mining Licence or an Artisanal for a period of twenty years and may be renewed.
Mining Licence and where an area of land is subject to a
Small Scale Mining Licence. No other such licence shall be
granted in respect of that area.

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INDIGENISATION REQUIREMENTS from the East African Community or member states of the
African Union;
• Commit to maximising technology transfer to Ugandans;
Are there any requirements in relation to the holding of
and
equity in exploration and mining projects by indigenous
• Organise research and training.
peoples?
Yes
The Petroleum (Exploration, Development and Production)
Act and the Petroleum National Content Regulations also
Exploration
have similar local content provisions in relation to petroleum
The Petroleum (Exploration, Development and Production)
activities.
Act provides that where goods and services required by
the contractor or licensee are not available in Uganda, they
The Petroleum National Content Regulations, 2016 mandate
shall be provided by a company which has entered into a
every licensee, operator, contractor, subcontractor and any
joint venture with a Ugandan company provided that the
other entity involved in petroleum activities in Uganda to
Ugandan company has a share capital of at least forty-eight
incorporate and implement national content as an important
percent in the joint venture.
element of their overall petroleum activities.
The Petroleum (Exploration, Development and Production)
The Petroleum National Content Regulations require every
(National Content) Regulations, 2016 (the “Petroleum
licensee, contractor and subcontractor to give preference
National Content Regulations”) require a Ugandan Company
to goods and services which are rendered by Ugandan
to obtain approval from the Petroleum Authority of Uganda
citizens and companies and where such goods and services
before entering into a joint venture.
are not available in Uganda, the goods and services shall
be provided by a Company which has entered into a joint
The Petroleum National Content Regulations also require a
venture with a Ugandan Company which holds at least forty-
Ugandan citizen, Ugandan company or registered entity to
eight percent in equity.
obtain approval from the authority to use any other company
where he/she/it lacks technical capacity or financial
Furthermore, the Petroleum National Content Regulations
competence.
also list certain contracts for goods and services to be
exclusively provided by Ugandan citizens and companies as
Mining
follows:
The Mining Act is silent on the equity requirements for
• Transportation;
indigenous peoples. However, the Mining Act mandates the
• Security;
shareholders of a company holding a Large Scale or Medium
• Food and beverages;
Scale Mining Licence to sign a shareholders’ agreement that
• Hotel accommodation and catering;
sets out the decisions which are to be made without the prior
• Human resource management;
agreement of the State.
• Office supplies;
• Fuel supplies;
The Mining Act also provides for a right of pre-emption
• Land surveying;
exercisable by the shareholders of a company in the event
• Clearing and forwarding;
the Government opts to sell its stake in the company.
• Crane hire;
• Locally available construction materials;
Are there any special rules or restrictions applicable to
• Civil works;
foreign applicants?
• Supply of locally available drilling and production materials;
Yes. A foreign individual applicant cannot be granted a
• Environment Studies and Impact Assessments;
mineral right in Uganda. However, a foreign company which
• Communication and Information Technology services; and
is duly registered under the Companies Act may be granted
• Waste management where possible.
a mineral right. The Mining Act also stipulates several local
content restrictions.
Identify any rights that the State may have. Does the State
have any rights to equity in mining projects?
The Mining Act requires holders of mineral rights, permits or
Yes. The Uganda National Mining Company manages the
licenses to:
commercial and participating interests of the State in mineral
agreements.
• Have recruitment, training and promotion plans to maximize
knowledge transfer to Ugandan citizens;
The grant by the Director of the DGSM of a Large Scale
• Hire Ugandan citizens and implement succession plans for
or Medium Scale Mining License may give the state an
the replacement of expatriates;
ownership interest at no cost of up to a maximum of a fifteen
• Prioritise goods produced in Uganda and services offered
percent non-dilutable stake in a Large Scale Mining License
by Ugandan citizens and/or companies owned by Ugandan
or a Medium Scale Mining License. The state may also
citizens. Where such goods and services are not available
acquire a supplementary participation in cash according to
in Uganda, such goods and services should be sourced

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the terms agreed with each relevant mineral rights holder Are there any restrictions on disposals of controlling
within the scope of a mineral agreement provided that the interests in entities holding exploration or mining rights?
total participation held by the state shall not exceed thirty- Yes. According to the Act, any person seeking to dispose of
five percent. any mineral right or share of the mineral right should seek
the approval of the Director DGSM before disposing of the
Identify any rights that the State may have. Does the interest. Similarly, the Petroleum (Exploration, Development
State have any rights to equity in mining projects and Production) Act prohibits a transfer of a licence without
No. the written consent of the Minister of Energy and Mineral
Development in consultation with the Petroleum Authority
of Uganda. The Petroleum (Exploration, Development and
PROCESSING AND BENEFICIATION Production) Act defines “transfer of licence” to include the
acquisition of control by the person to whom a licence under
this Act is transferred and “control” means the possession
Are there any requirements to beneficiate minerals directly or indirectly of the power to direct or cause the
mined? direction of management by that person, whether through
There are generally no mandatory legal requirements ownership of shares, voting, securities, partnership or
under the mining law or regulations to beneficiate minerals other ownership or participation interests, agreements or
mined. However, the President of Uganda issued a directive otherwise.
specifically barring the exportation of unprocessed copper
and iron ore to which there has been no value added or Therefore, the restriction to transfer a licence under the
beneficiation. There is also a presidential directive that Petroleum (Exploration, Development and Production)
prohibits the export of unprocessed gold. The directive Act applies to any direct or indirect transfer of interest
requires gold to be refined up to 99.9% before export. or participation in the licence including assignment of
shareholdings and other ownership shares which may
Are there any restrictions on the export of minerals? provide decisive control of a licensee possessing a
Yes. A person who is interested in exporting minerals must participating interest in a licence.
obtain a permit from the DGSM on conditions determined by
or under the Mining Act. Any person who exports any mineral
from Uganda without complying with the requirements of
the Mining Act commits an offence and may be liable, on USE OF SURFACE OF LAND INVOLVED IN
conviction, to a fine not exceeding UGX 200,000,000 PROSPECTING AND MINING ACTIVITIES
(approximately US$ 53,400) or imprisonment or both.
What are the rights of the holder of an exploration right or
Every holder of a mineral dealer’s licence is bound to pay mining right to use the surface necessary or incidental to
to the Government all royalties due on any minerals bought, an exploration or mining operation?
received or exported by them. In addition, the Mining Act, A holder of a mining licence has the exclusive right to carry
imposes a levy of US$ 100 for each kilogram of refined gold on exploration and mining operations in their mining area
exported from the country. and take all reasonable measures on and under the surface
of their mining area to mine and process the minerals to
which their mining licences relate.
DISPOSALS OF RIGHTS AND
CONTROLLING INTERESTS Where the holder of a mining licence discovers any other
mineral to which their mineral right does not relate in the
course of exercising their rights, they are required to
Are there any statutory consents required to dispose of immediately notify the Director of the DGSM in writing giving
rights to explore and mine? particulars of the deposits or minerals discovered, the site
Yes. Except for a prospecting licence that cannot be and the circumstances of the discovery.
transferred, the Mining Act prohibits the transfer of any type
of mineral right or a share of a right without the approval of The holder of the licence may apply to the Director of the
the Director of the DGSM and any purported transfer without DGSM to have the mining of the discovered mineral included
consent is illegal. in their mineral right, giving in their application a proposed
programme of mining operations in respect of the discovery.
Similarly, the Petroleum (Exploration, Development and The registered owner, customary owner, lawful occupant or
Production) Act prohibits a transfer of a licence without bonafide occupant of any land subject to a mineral right is
the written consent of the Minister of Energy and Mineral entitled to compensation under the Mining Act or to a share
Development in consultation with the Petroleum Authority of of royalties in accordance with the Mining Act.
Uganda.

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ENVIRONMENTAL duties of employees, and duties of the employer regarding

the health and welfare of employees, the standard at which
workplaces must be maintained and sets out general safety
What legislation governs environmental protection of
requirements that every employer must adhere to. It also
exploration and mining sites?
sets out the duties of the occupier.
According to the Mining Act, every mineral right is granted
with a condition that the holder of such a right takes all
necessary steps to ensure the prevention and minimization
of pollution of the environment in accordance with the CONSTITUTIONAL AND ADMINISTRATIVE
standards and guidelines prescribed in the NEA. LAW
Every holder of a mineral must carry out an Environmental Is there a constitution which has an impact on the rights
and Social Impact Assessment (“ESIA”) of his/ her proposed to prospect and mine?
operations in accordance with the NEA and procure a Yes. The Constitution of the Republic of Uganda, 1995
certificate of approval of his or her proposed operations from provides that minerals and mineral ores shall be exploited
the National Environmental Management Authority (“NEMA”). taking into account the interests of the individual landowners,
The holder is required to carry out an annual environmental local governments and the Government. The Constitution
audit and keep a record of operations describing how far the vests powers in the Parliament of Uganda to make laws
operations conform to the approved ESIA. regulating the exploitation of minerals, sharing the royalties
arising from mineral exploitation, the conditions of payment
The holder of a mineral right is required to submit to NEMA of indemnities arising out of exploitation of minerals and
an Environmental Management Plan indicating the type and conditions regarding the restoration of derelict lands.
quality of wastes to be generated from any exploration or
mining operations they are currently undertaking and the The Constitution further provides that all minerals are held by
method of final disposal. the government on behalf of the people of Uganda.

Every mineral right licence must have a condition that the Are there administrative appeals in the mining law?
holder submits an Environmental Restoration Plan of the Yes. The Mining Act provides that a person aggrieved by the
exploration or mining area that may be damaged or adversely decision of the Director of the DGSM is allowed to appeal
affected by his/her exploration or mining operations. within thirty days after being notified of the decision to the
Minister of Energy and Mineral Development. The Minister
is granted powers to either confirm, set aside or vary the
NATIVE TITLE AND LAND RIGHTS decision complained of.

Is there any native title which has any implication for the Judicial review of the Minister’s decision
exploration and mining industry? Any person aggrieved by a decision, order, act or omission
Article 244(2) of the Constitution of the Republic of Uganda of the Minister is allowed to apply to the High Court for
provides that minerals shall be exploited considering the judicial review.
rights of:
•L and owners and Tenants by Occupancy;
•S ubcounty or Town Council; ROYALTIES AND TAXES
•L ocal Governments; and
•T he Government. Are there special rules applicable to the taxation of
Landowners, Tenants by Occupancy, the Local Government, exploration and mining companies?
the Subcounty or Town Council and the Government Yes. The Income Tax Act Cap. 338 provides for a detailed
are entitled to a share in the royalties that accrue from taxation regime for mining companies and operations.
exploitation of mineral rights. The landowners and tenants by The tax rate for mining companies is thirty percent. Mining
occupancy of the land subject to mineral rights are entitled to operations are taxed per license area.
a five percent share, Subcounty or Town Council ten percent,
the Local Government fifteen percent and the Government Non-resident mining contractors are taxed at a rate of ten
seventy percent. percent of the gross amount of the service fee.

Mining companies are allowed up to one hundred percent

HEALTH AND SAFETY exploration expenditure as a deduction within the year it is
incurred but it is ring-fenced according to the licence area.
What legislation governs health and safety in mining? Where expenditure is incurred from more than one licensing
The Occupational Health and Safety Act, Cap 231 governs area, it must be apportioned accordingly. The expenditure
health and safety in mining. The Act generally sets out the must be of a capital nature and must be incurred in searching
standard regarding health and safety. It sets out the rights and for, discovering, and testing or winning access to deposits of
minerals in Uganda.

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Where expenditure incurred exceeds income, mining

companies are allowed to carry forward the loss to the next
year.

Royalties payable by a holder of a mineral right.

The Mining Act provides that all minerals obtained or mined
in the course of prospecting, exploration, mining or mineral
beneficiation operations shall be subject to the payment of
royalties on the gross value of the minerals based on the
prevailing market price of the minerals at such rates as shall
be prescribed.

The Individual Landowner, Local Government and the

Government are all entitled to a share in the royalties that
accrue from exploitation of mineral rights. Notably, the
Mining Act increased the rates of royalties payable. The
owners or lawful occupiers of the land are entitled to a five
percent share, Subcounty or Town Council to a ten percent
share, the Local Government to a fifteen percent share and
the Government to a seventy percent share.

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ZAMBIA
CORPUS LEGAL
PRACTITIONERS

FIRM INFORMATION
Website address : www.corpus.co.zm
Languages spoken : English
Telephone : +260 211 372 300/01/04
Address : Piziya Office Park, Stand No. 2374, Thabo Mbeki Road, Lusaka Zambia
Contact : Charles Mkokweza
Email : [email protected]

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ZAMBIA | CORPUS LEGAL PRACTITIONERS

RELEVANT AUTHORITIES AND Committee (the “Committee”), which, together, are

responsible for considering applications for mining rights
LEGISLATION and non-mining rights, including the grant, renewal or refusal
to grant or renew mining rights and non- mining rights.
What laws regulate mining? The Committee also concerns itself with the termination,
In Zambia, the mining industry is principally regulated by suspension or cancellation of mining and non-mining rights,
the Mines and Minerals Development Act No. 11 of 2015 (the as well as the amendment of the terms and conditions of
“Mines Act”) as amended in 2022 and by the regulations mining rights and non-mining rights.
issued thereunder, as well as the Environmental Management
Act No, 12 of 2012 (the “Environmental Management Act”) and The Environmental Management Act is administered by the
the regulations issued thereunder. The Mines Act provides Zambia Environmental Management Agency (“ZEMA”). ZEMA
the law relating to the exploration, mining and processing of is mandated among others, to monitor and enforce measures
minerals. It also provides for safety, health and environmental for the protection of the environment and the prevention
protection in mining operations and establishes the Mining of pollution under the Environmental Management Act, to
Appeals Tribunal (the “Tribunal”) to deal with any grievances issue and renew environmental licences and to provide
incidental to the Mines Act. environmental regulatory approval of any project which
is likely to have an impact on the environment. One of
The Environmental Management Act on the other hand is the critical environmental approvals which a developer is
the principal statute that governs environmental matters, expected to obtain from ZEMA, is that relating to an EIA,
prevention and control of pollution and environmental following which ZEMA issues a decision letter (the “Decision
degradation in Zambia. The Environmental Management Letter”), confirming whether a developer’s proposed project
Act provides for the protection and conservation of the has been approved or rejected.
environment and sustainable management and use
of natural resources. It also governs the conduct of
Environmental Impact Assessment’s (“EIA”) for proposed
projects likely to have an impact on the environment such
TYPES OF AND MANNER OF ACQUISITION
as, mining operations, hydro power schemes, electrification OF RIGHTS
projects and any other project likely to have an impact on the
environment. What rights are granted to conduct reconnaissance,
exploration and mining operations?
Which Government Bodies administer mining law?
The primary regulatory body in terms of processing All mining rights are acquired in accordance with the
applications is the Ministry of Mines and Minerals provisions of the Mines Act. A person may only prospect for
Development (the “Ministry of Mines”). The Ministry of Mines minerals or carry on mining operations under the authority of
has several departments that supervise the activities within a mining right granted under the Mines Act. All mining rights
the sector. The Mines Act establishes, for instance, the office are acquired pursuant to the provisions of the Mines Act, by
of the Director of Mines, who is the chief administrator and making an application in the prescribed manner, following
is responsible for supervising and regulating the proper and the payment of the prescribed fee by either an individual or a
effectual development of mines and the conduct of mining company. The Mines Act makes provision for the acquisition
operations in accordance with the provisions of the Mines Act. of both mining and non-mining rights. In this regard, the
The office of the Director of Geological Survey undertakes, mining rights which may be acquired under the Mines Act
among others, the geological mapping of Zambia, as well as include an exploration licence and a mining licence. Non-
exploration operations on behalf of the Republic, advising mining rights, on the other hand, include a mineral processing
the Minister of Mines on geological matters, provides data licence, a mineral trading permit, a mineral import permit, a
concerning the geology and mineral resources of Zambia mineral export permit and a gold panning certificate.
and assists members of the public on information concerning
geological matters. The office of the Director of Geological Large Scale Exploration Licence (“Exploration Licence”) An
Survey also maintains such laboratory and library and record application for an Exploration Licence is made to the Director
facilities as may be necessary for the performance of the of Mining Cadastre in the prescribed form upon payment of
functions under the Mines Act. a prescribed fee. In the case of an Exploration Licence, the
area over which an application is made must be represented
Matters relating to the environment, public health and safety by a minimum of three hundred and one (301) cadastre units
arising from exploration, mineral processing and mining (approximately 1005.34 hectares), and not exceeding fifty-
operations are generally supervised by the Director of nine thousand eight hundred and eighty (59, 880) cadastre
Mine Safety. The Mines Act also establishes the office of units (approximately 199999.2 hectares). Further, under
the Director of Mining Cadastre and the Mining Licensing the Mines Act, an Exploration licence shall be valid for an

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initial period of four (4) years and renewable for two further OIL AND GAS
periods, each not exceeding three (3) years. An application
for renewal shall be made six (6) months prior to the expiry of
What rights are granted to conduct oil and gas exploration
the license and the holder of the license shall relinquish fifty
and production?
percent of the exploration area at each renewal. The holder
All rights relating to natural gas and oil are acquired in
of the licence will not be permitted to hold a licence for more
accordance with the provisions of the Petroleum (Exploration
than ten (10) years from the time of the initial grant of the
and Production) Act No. 10 of 2008 (the “Petroleum Act”) as
licence, unless a cooling-off period of at least one (1) year
amended in 2021. A person may only conduct oil and gas
has elapsed.
exploration and production under the authority of a licence
granted by the Minister of Mines under the Petroleum
It is worthy to note that a company and its subsidiaries
Act. The rights that are granted to conduct oil and gas
are prohibited from holding a number of licences whose
exploration and production under the Petroleum Act are
accumulated total area is more than 299,400 cadastre
the Petroleum Exploration Licence (“Petroleum Exploration
units (approximately 9,999 km2). Further, a company that
Licence”) and the Petroleum Development and Production
accumulates an exploration area in excess of 149,700
Licence (“Production Licence”). The Petroleum Exploration
cadastre units (approximately 4,999 km2) must pay
Licence is acquired by application in the prescribed manner
prescribed additional fees.
and following the payment of the prescribed fee by either
an individual or a company, whose bid for the grant of a
Large-Scale Mining Licence
Petroleum Exploration Licence in respect of any block or
A Large-Scale Mining Licence confers on the holder thereof,
blocks specified in the notice circulated by the Minister of
exclusive rights to carry out mining operations in respect
Mines in two general newspapers of general circulation in
of the mining area and to do all such other acts and things
Zambia inviting bids for the grant of the Exploration Licence
as are necessary for or incidental to thee carrying on the
was successful.
operations for an initial period of 25 years. In the case of
a Large-Scale Mining Licence, the area over which an
The Production Licence is acquired by application in the
application is made must be represented by a minimum of
prescribed manner and following the payment of the
one hundred and twenty-one cadastre (121) cadastre units
prescribed fee by a holder of a Petroleum Exploration
(approximately 404.14 hectares), and not exceeding seven
Licence whose licence is in force in respect of a block in the
thousand four hundred and eighty-five (7485) cadastre units
exploration area in which a discovery of petroleum is located
(approximately 24999.9 hectares).
(“Discovery Block”) or part thereof. The application must be
made, within two years immediately following the date on
Small-Scale Mining Licence
which a commercial discovery was made, or such further
A Small-Scale Mining Licence confers on the holder thereof,
period as the Minister of Mines may allow. Further, a holder of
exclusive rights to carry out mining operations in a mining
a Petroleum Exploration Licence may during the term of the
area for minerals and perform all such acts necessary to
licence apply for the grant of a Production Licence in respect
carrying out mining operations for a period not exceeding
of any block which is not part of a Discovery Block within the
10 years and may not be granted in respect of radioactive
exploration area if they satisfy the Minister of Mines that the
minerals. In the case of a Small-Scale Mining Licence, the
block contains a petroleum reservoir or part of a petroleum
area over which an application is made must be represented
reservoir.
by a minimum of three (3) cadastre units (approximately 10.02
hectares), and not exceeding one hundred and twenty (120)
cadastre units (approximately 400.8 hectares).
INDIGENISATION REQUIREMENTS
Artisan’s Mining Right
An artisan’s mining right confers on a person on whom it is Are there any requirements in relation to the holding of
granted or the community concerned, exclusive rights to equity in exploration and mining projects by indigenous
mine the mineral specified in the permit for the initial period peoples?
of two years. An Artisan’s Mining Right like a Small-Scale Under the Mines Act, a small-scale mining licence can only
Mining Licence may not be granted in respect to radioactive be granted to citizen owned, citizen influenced or citizen-
materials. empowered companies. A citizen owned company means a
company where at least fifty-point one percent of its equity
Further, artisanal mining can only be undertaken by Zambian is owned by citizens and in which citizens have significant
citizens or cooperatives wholly composed of Zambian control of the management of the company. A citizen
citizens. influenced company, on the other hand, is one where five
to twenty-five percent of its equity is owned by citizens and
in which citizens have significant control of the management
of the company, while a citizen empowered company is a
company where twenty- five to fifty percent of its equity is
owned by the citizens. Further, Artisan’s mining right can also

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only be granted to a Zambian citizen or co-operative wholly Zambia’s natural resources and other endowments to
composed of citizens. develop a strong home base.

However, there are generally no requirements in relation to

the holding of equity in exploration and mining projects by PROCESSING AND BENEFICIATION
indigenous peoples, where the project company holds the
following mining rights: a large-scale exploration licence, a
large-scale mining licence and mineral processing licence. Are there any requirements to beneficiate minerals
The Mines Act, in this regard, requires that such licences mined?
be granted to companies registered in accordance with the There are no requirements placed on the holder of a licence
Companies Act (the “Companies Act”) No.10 of 2017 and to beneficiate minerals mined. However, a licence holder
under the aforementioned Companies Act, at least 50% of that intends to beneficiate the minerals mined must make an
the company’s directors, including the executive director are application for a mineral processing licence to the Director
required to be resident in Zambia. of Mining Cadastre in the prescribed manner and form upon
the payment of prescribed fees.
Are there any special rules or restrictions applicable to The holder of a mineral processing licence is granted
foreign applicants? exclusive rights to carry on mineral processing in the mineral
Save for the restrictions highlighted in the first paragraph in processing area of the minerals specified in the licence and
4.1 with respect to the acquisition of certain mining rights, is obliged by statute to:
there are generally no other restrictions in relation to foreign • Commence mineral processing operations if the holder
ownership of mining rights. However, the following persons of the mineral processing licence submits to the Mining
are disqualified from holding mining rights: Cadastre Office a decision letter in respect of the
• Individuals under the age of eighteen; environmental project brief or environmental impact
• Bankrupt individuals; assessment approved by ZEMA;
• Individuals who have been convicted, within the previous • Carry on mineral processing in accordance with the
five (5) years of an offence involving fraud or dishonesty; approved programme of mineral processing operations;
• A company in liquidation; and
• A company that is not incorporated under the Zambian • Submit reports to the Directors on:
Companies Act; o sources of ore, concentrates, tailings, slimes or any
• A company which has not established an office in Zambia; other mineral substances fed to the plant;
and o quantities and grade of feed to the plant;
• A company which has, among its directors or shareholders, o compliance with safety and environmental standards;
any person who would be disqualified under (b) and (c) o labour and production returns; and
above. o any other records, reports and other information as the
Director of Mines, Director of Mining Cadastre, Director
Identify any rights that the State may have. Does the State of Geological Survey or Director of Mines Safety may
have any rights to equity in mining projects? require concerning the operations of the mineral
The mining industry is private sector driven since the processing operations.
privatization of the mining sector and liberalization of the
Zambian economy, and therefore the government is not Once granted, a mineral processing licence is valid for
entitled to any carried interest or a free carried interest in a period of 25 years, and it may be renewed for a similar
mining projects. The government plays more of a regulatory period.
role but has little direct participation in terms of the direction
of mining operations or shareholding in mining right holders. Are there any restrictions on the export of minerals?
The Mines Act, however, permits the government to identify Generally, a person or company cannot import into or export
an area which is not subject to existing mining rights for out of the republic any mineral ore or mineral product without
Government investment. The mining rights will, however, a permit issued by the Director of Mines.
be granted to the Government investment company in There is, however, a government policy in place that
accordance with the Mines Act or any other relevant law. restricts the export of copper concentrate unless it can be
demonstrated that there is limited smelting or processing
The states contributory interest in exploration and mining capacity in Zambia.
projects is usually undertaken by an investment company
known as Zambia Consolidated Copper Mines Investment
Holdings Limited (“ZCCM”), which retains minority interests DISPOSALS OF RIGHTS AND
in mining projects. ZCCM contributory interest in mining CONTROLLING INTERESTS
projects is on a private partnership basis and not as a matter
of legal requirement. Further, another government investment
Are there any statutory consents required to dispose of
company, the Industrial Development Corporation, seeks
rights to explore and mine?
to invest in companies and industries that can leverage
The Mines Act provides, generally, that before a person

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can transfer, assign, encumber or otherwise deal with A holder of a mining right is generally entitled to exercise
a mining right, they should obtain the approval of the any surface rights reasonably, where it is necessary for the
Minister responsible for mines, and produce a tax clearance reasonable and proper conduct of the exploration or mining
certificate in that regard. A holder of a mining right or mineral operations. However, where another person has a right to
processing licence intending to transfer, assign, encumber the surface rights independent of the mining right, which
or otherwise deal with the mining right or mineral processing predate the mining right, the Mines Act provides that the
licence or any interest in it shall apply to the Minister for rights under such mining right may not be exercised without
approval in the prescribed manner and form upon payment the written consent of the owner or legal occupier of the land
of the prescribed fee. The Mines Act requires a holder of a or the duly authorised agent:
mining right or processing licence referred who wishes to
transfer any interest to provide the Minister with any details • Upon any land which is the site of, or which is within one
of the transferee that would be required in an application for hundred and eighty metres of any inhabited, occupied or
a mining right or mineral processing licence. temporarily uninhabited house or building;
• Upon any land within forty-five metres of any land which
The Minister is required, within thirty (30) days of the has been cleared or ploughed or otherwise prepared in
application, to approve the transfer of the mining right or good faith for growing of farm crops or upon which farm
mineral processing license or interest therein unless the crops are growing;
person to whom the transfer is being made is disqualified • Upon any land which is the site of or is within ninety metres
from holding a mineral right or non-mining right under the of any cattle dip, tank, dam or any private water as defined
provision of the Mines Act. in the Water Resources Management Act No.21 of 2011; or
• Upon any land forming part of an aerodrome, other than
Upon the transfer of a mining right or mineral processing any land forming part of a Government aerodrome;
licence, the transferee assumes and becomes responsible
for all the rights, liabilities and duties of the transferor Further, the rights under a mining right may not be exercised:
under the mining right or mineral processing licence for the
unexpired period of the mining right or mineral processing • Without the written consent of the Minister responsible
licence, as the case may be. for that matter or such public officer as the Minister may
authorise to give the requisite consent on his behalf
Are there any restrictions on disposals of controlling (“Appropriate authority”), upon:
interests in entities holding exploration or mining rights? o Any land dedicated as a place of burial whether in use
A holder of a mining right or mineral processing licence or not;
cannot register the transfer of any shares or share in the o Any land containing any ancient monument or national
company to any person or enter into an agreement with any monument, as defined in the National Heritage
person if the effect of doing so would be to give that person Conservation Commission Act, Chapter 173 of the Laws of
control of the company without the prior written approval of Zambia;
the Minister. An application has to be made to the Minister o Any land which is the site of or within ninety metres of
in the prescribed form and the Minister may call for and any building or dam owned by the Government; or
obtain any information which is necessary for purposes o Any land forming part of a Government aerodrome as
of the application. The Minister may approve or reject the defined in the Air Navigation Regulations made under
application within sixty (60) days of receipt of the application. the Aviation Act, Chapter 444 of the Laws of Zambia;
However, such approval will not be unreasonably withheld. • Land occupied as a village, without the written consent of
the chief and the local authority for the district in which the
village is situated;
USE OF SURFACE OF LAND INVOLVED IN • Without the written consent of the railway administration,
upon any land reserved for the purposes of any railway
EXPLORATION AND MINING ACTIVITIES track or within in one hundred metres of any railway track;
• Without the written consent of the appropriate authority
What are the rights of the holder of an exploration right or or the local authority concerned, upon any land within,
mining right to use the surface necessary or incidental to or within sixty metres of the boundaries of, any city,
an exploration or mining operation? municipality or district for which a council is established
In Zambia, surface rights and mining rights are clearly distinct under the provisions of the Local Government Act, Chapter
concepts, administered under separate and distinct legal 281 of the Laws of Zambia;
frameworks. Surface rights are granted under the Lands Act, • Without:
Chapter 184 of the Laws of Zambia (the “Lands Act”), while o the written consent of the Appropriate authority, upon
mining rights are granted under the Mines Act. There are any land used as a forest nursery or plantation or as a
two types of land tenure systems in Zambia: customary or timber depot, sawmill or other installation for working a
native tenure and state tenure, which must be taken into forest; and
account when exercising any surface rights for prospecting o due compliance with the relevant provisions of the
and mining activities. Forests Act No. 7 of 1999, upon any land declared to be

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a national forest or local forest, as defined in that Act; conduct exploration or mining activities is granted by ZEMA
• Upon any street, road or highway, without the written after such a person undertakes an EIA. That is, a person
consent of the Appropriate authority or the public body concludes and submits to ZEMA an environmental project
which has the control thereof; brief (“Project Brief”) or an environmental impact statement
• Upon any land comprised in a National Park or game (“EIS”) in accordance with the EIA Regulations.
management area without complying with the Zambia
Wildlife Act No. 12 of 1998; and A Project Brief is required before commencement of
• Upon any land that, under the Town and Country Planning exploration or mining operations. An EIS is required where
Act, Chapter 283 of the Laws of Zambia, cannot be an exploration or mining project is likely to have a significant
developed without permission, unless the requisite impact on the environment. ZEMA considers the Project Brief
permission is first obtained. or EIA and if ZEMA is satisfied that the project will have no
significant impact on the environment, or that the Project Brief
In the event of the owner of such land or Appropriate or EIA discloses sufficient mitigation measures to ensure the
authority unreasonably withholding consent to access the acceptability of the anticipated impact, ZEMA will issue its
area, the Director of Mines may require the matter to be Decision Letter approving the Project Brief or EIA either with
settled by arbitration. or without conditions.

The surface right holder is entitled on demand to a fair and Further, a person conducting mining operations may be
reasonable compensation from the mining right holder for required to obtain the following licences from ZEMA:
any disturbance of such surface right and failure to pay such
compensation by the mining right holder has to be referred Emission Licence
to arbitration for resolution. This licence is required where a holder of a mining right
is discharging, causing or permitting the discharge of, a
The provisions of the Mines Act also make it clear that a substance, physical agent, energy oral combination of
holder of a surface right or occupier thereof which is subject substances and physical agents that may contribute to, or
to a mining right can only retain, in a case where there is create a condition of, pollution into the environment if that
no building or structure on a pre-existing surface right, the discharge causes, or is likely to cause, harmful or detrimental
following rights unless an access agreement between the effect on the environment, whether actual or potential, that:
mining right holder and the surface right holder provides • Impairs, or may impair, human health; and
otherwise: • Results in, or may result in, an impairment of the ability of
• Right to use and access water; people and communities to provide for their health, safety,
• Right to graze stock; and cultural and economic wellbeing (“Adverse effect”).
• Right to cultivate the surface of the land.
Waste Management Licence
Such rights cannot, however, be exercised in such a way This licence is required if a holder of a mining right:
by the surface right holder that interferes with the exercise
of the mining right and any buildings or structures on such • Generates, pre-treats or treats hazardous waste;
surface right can only be erected by the surface right holder • Handles, transports or stores hazardous waste;
with the consent of the mining right holder. • Disposes of hazardous waste; and
• Transits, trades in or exports hazardous waste.
“Hazardous waste” is defined under the Environmental
ENVIRONMENTAL Management Act, 2011 as waste which is poisonous,
corrosive, irritant, explosive, inflammable, toxic or other
substance or thing that is harmful to human beings, animals,
What legislation governs environmental protection of plants or the environment.
exploration and mining sites?
Environmental protection of exploration and mining sites Hazardous waste licence
in Zambia is principally regulated by the Mines Act, the This licence is required if a holder of a mining right collects,
Mines and Minerals (Environmental Protection) Regulations, transports, sorts, recovers, treats, stores, disposes of, or
the Environmental Management Act, the Environmental otherwise manages waste in a manner that results in an
Management (Licensing) Regulations, 2013 (“Environmental Adverse effect or creates a significant risk of an Adverse
Regulations”) and the Environmental Protection and Pollution effect.
Control (Environmental Impact Assessment) Regulations No.
28 of 1997 (“EIA Regulations”). Pesticide and toxic substances licence
This licence is required if a holder of a mining right is
The Environmental Act prohibits any person from undertaking manufacturing, importing, exporting, storing, distributing,
any project that may have an effect on the environment transporting, blending, processing, re-processing or
without the written approval of the ZEMA except in changing the composition of a pesticide or toxic substance;
accordance with any conditions imposed by such approval and reprocessing an existing pesticide or toxic substance for
(“Decision Letter”). A Decision Letter authorising a person to a significantly new use.

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NATIVE TITLE AND LAND RIGHTS • Benefits accruing from the exploitation and utilisation of
the environment and natural resources shall be shared
Is there any native title which has any implication for the equitably amongst the people of Zambia;
exploration and mining industry? • Saving of energy and the sustainable use of renewable
As noted above, surface and mining rights are distinct under energy sources shall be promoted;
Zambian law, governed by separate pieces of legislation. • Reclaiming and rehabilitation of degraded areas and those
Therefore, where any portion of the land over which the prone to disasters shall be promoted;
mining right exists is under customary or native land, a holder • Unfair trade practices in the production, processing,
of a mining right may not conduct exploration or mining distribution and marketing of natural resources shall be
operations without the written consent of the legal owner, eliminated;
the chief and the local authority for the district in which the • Origin, quality, methods of production, harvesting and
village is situated. processing of natural resources shall be regulated;
• Equitable access to environmental resources shall be
promoted;
• Effective participation of people in the development of
HEALTH AND SAFETY relevant policies, plans and programmes; and
• Access to environmental information to enable people to
What legislation governs health and safety in mining?
preserve, protect and conserve the environment.
The main health and safety laws applicable to the mining
industry in Zambia are:
Are there administrative appeals in the mining law?
The Mines Act creates the Mining Appeals Tribunal (the
•T  he Mines Act and Regulations issued thereunder;
“Tribunal”) in order to enhance, among others, administrative
• The Mines and Minerals (Environmental Protection)
resolution of disputes before resorting to the formal courts of
Regulations;
law. The Tribunal, comprising five (5) members appointed by
• The Environmental Management Act and Regulations
the Minister, has been given the jurisdiction to, among others,
issued thereunder;
inquire into and make awards and decisions in any dispute
•T  he Factories Act, Chapter 441 of the Laws of Zambia;
relating to exploration, gold panning and mining under the
•T  he Ionising Radiation Protection Act No. 16 of 2005;
Mines Act, as well as inquire into, and make awards and
• The Occupational Health and Safety Act No 36 of 2010; and
decisions relating to exploration, gold panning and mining,
•T  he Workers Compensation Act No. 10 of 1999.
arising under the Mines Act.

The Mines Act places an obligation on the Tribunal, within

ADMINISTRATIVE AND CONSTITUTIONAL fourteen (14) days of determining an appeal, to inform the
ASPECTS appellant and the Minister of Mines of its decision and the
reasons for its decision, in writing. An appeal against a
Is there a constitution which has an impact on the rights decision of the Tribunal lies to the High Court, within thirty
to prospect and mine? (30) days of receipt of the decision thereof. The Tribunal is
The Constitution of the Republic of Zambia protects mining expected to be more efficient in resolving mining-related
rights by stipulating that property of any description can disputes when compared to the ordinary courts as it is
only be compulsorily acquired, under the authority of an expected to consist of a panel of experts and persons with
Act of parliament that provides for payment of adequate knowledge and experience in matters relevant to mining or
compensation. In addition to the above, the Constitution licensing. Additionally, the Tribunal is expected to enhance
stipulates the following principles for the management speedy determination of cases, compared to the traditional
and development of Zambia’s environment and mineral ways of resolving disputes before the national courts of law.
resources:
• Natural resources have an environmental, economic, social
and cultural value and this shall be reflected in their use; ROYALTIES AND TAXES
• The person responsible for polluting or degrading the
environment is responsible for paying for the damage done Corporate income tax
to the environment; Corporate income tax rate applicable to all companies,
• Where there are threats of serious or irreversible damage to including companies undertaking mining operations is 30%.
the environment, lack of full scientific certainty shall not be
used as a reason for postponing cost-effective measures to Value added tax
prevent environmental degradation; Subject to certain conditions, the export of goods from
• The conservation and protection of ecologically sensitive Zambia is considered to be a zero-rated supply. For the
areas, habitats, species and other environment shall be goods to be zero-rated, the commissioner general may
done in a sustainable manner; require evidence that export of goods from Zambia is by
• Respect for the integrity of natural processes and ecological or on behalf of a taxable supplier. Where such evidence of
communities; exportation is produced it is zero-rated.

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VAT Rule 18(1) of the Value Added Tax Act (General) Rules • A share issued by a company incorporated in Zambia or
2020 Gazette Notice No. 310 of 2020 provides that, unless by a company incorporated outside Zambia where the
the commissioner general shall otherwise allow, a taxable company directly or indirectly owns at least ten percent of
supplier claiming that a supply is zero-rated in accordance the shares in a company incorporated in Zambia. A share
with the Value Added Tax Zero-Rating Order, on the grounds includes a stock, certificate, warrant or equivalent rights,
that the supply is an exportation of goods, shall produce to and an interest in a mining right or an interest in a mineral
an authorized officer: processing licence;
• A mining right issued under the Mines and Minerals
• copies of export documents for the goods, bearing a Development Act, 2015.
certificate of shipment provided by the ZRA;
• copies of import documents for the goods, bearing a A mineral processing licence issued under the Mines and
certificate of importation into the country of destination Minerals Development Act, 2015; As such, on the transfer
provided by the customs authority of the country of of any of the mining or mineral processing right, property
destination or copies of transit documents for goods bearing transfer tax is payable to the Zambia Revenue Authority at
a certificate of transit provided by the Customs authorities the rate of:
of the country of transit or copy of the airway bill or road
manifest or goods train manifest or bill of lading: Provided • ten percent of the realised value in respect of a mining right
that the commissioner general may exempt an exporter for a mining licence;
from the requirements of this paragraph if it is shown, to • five percent of the realised value in respect of a mining
the satisfaction of the commissioner general, that failure right for an exploration licence;
by the exporter to obtain the import documents or transit • ten percent of the realised value in respect of a mineral
documents is wholly attributable to onerous procedures in processing licence; and
the country of destination or country of transit; • five percent of the realised value in respect of shares.
• tax invoices for the goods exported;
• documentary evidence proving that payment for the goods Are there any royalties payable to the State over and
has been made in the exporter’s bank account in Zambia; above any taxes?
and
• such other documentary evidence as the authorised officer Under the Mines Act mineral royalties payable are determined
may reasonably require, including a written order showing by the mineral concerned.
the name and address of exporter, name and address of
the customer, the description, quantity and value of goods, Where the base metal produced or recoverable is copper,
the delivery address and the date of expected delivery. the mineral royalty payable is applied at an incremental
value in each price range as follows:
Withholding tax • 4% when the norm price is less than $4,000 per tonne;
Tax required to be deducted from any dividend shall be • 6.5% applied to the next $1,000 from a norm price of $4,000
deducted at the rate of zero per cent per annum for any per tonne up to a norm price of $5,000 per tonne;
dividend paid by a company carrying on mining operations. • 8.5% applied to the next $2,000 from a norm price of
$5,000 per tonne up to a norm price of $7,000 per tonne;
Withholding tax applies at the following rates in respect of • 10% when the norm price is $7,000 per tonne or more.
other taxes:
• Dividend pay-outs and profits distribution by branches of The following royalties are applicable to the other minerals:
foreign companies at 15% for resident companies and 20%
for non-residents%; • 5% of the norm value in respect of energy minerals,
• Construction and haulage operations fees paid out to industrial minerals, and base metals (other than copper,
non¬residents at 20% and 0% for residents; cobalt and vanadium);
• Interest at 15% for resident and 20% for non-resident • 6% of the norm value in respect of precious metals and
companies; gemstones; and
• Commission for residents is 15% and non-residents at 20%, • 8 per cent of the norm value in respect of cobalt and
• And entertainment fees of 0% for residents and 20% for vandanium.
non-residents;
• Management and consultancy services paid out to resident For purposes of the Mines Act, the norm value is defined
consultants at 15% and non-residents at 20%. by the Mines Act as: (a) the monthly average London Metal
Exchange cash price per tonne of the metal or recoverable
Property Transfer Tax metal sold; or (b) the monthly average Metal Bulletin cash
Property Transfer Tax is payable on the transfer of any type price per tonne of metal or recoverable metal sold to the
of mining right from one party to another. extent that it is not quoted on the London Metal Exchange;
The Property Transfer Tax (Amendment) Act, 2022, as read or (c) the monthly average cash price per tonne at any
together with the Property Transfer Tax Act, now defines exchange market approved by the Commissioner General of
property to include the following: the Zambia Revenue Authority of metal sold or recoverable

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metal sold to the extent that it is not sold on the London
Metal Exchange or Metal Bulletin.

Furthermore, a person who is not the holder of a licence

and who is in possession of minerals extracted from Zambia
for which mineral royalty has not been paid is liable to pay
mineral royalty at the rates detailed above.

It is essential to note that royalty deferment is an option that

is available under the Mines Act, in that the Commissioner
General of the Zambia Revenue Authority may, on application
by the holder of the mining right, defer payment of royalty
due from the holder if, during any period for which a payment
of royalty is due the cash operating margin of the holder in
respect of mining operations in the mining area falls below
zero.

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ZIMBABWE
SCANLEN AND
HOLDERNESS LEGAL
PRACTITIONERS

FIRM INFORMATION
Website address : www.scanlenandholderness.com
Languages spoken : English
Telephone : +263 242 702561-8
Address : Cabs Centre, 74 Jason Moyo Avenue, Harare, Zimbabwe
Contact : Fidelis Manyuchi
Email : [email protected]

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ZIMBABWE | SCANLEN AND HOLDERNESS LEGAL PRACTITIONERS

RELEVANT AUTHORITIES AND Prospecting

The usual starting point in the acquisition of Mining Rights
LEGISLATION is obtaining a prospecting licence which entitles the holder
to prospect, peg and register claims in terms of the Act. A
What laws regulate mining? registered claim is a mining location where mining activities
The basic legislation regulating mining activities in Zimbabwe can take place.
is the Mines and Minerals Act, [Chapter 21:05] (“Act”) and
Regulations made thereunder. It is a 1961 piece of legislation Ordinary Prospecting Licence
which has had minor amendments over the years. A prospecting licence can be issued as an ordinary
prospecting licence which is valid for two years. The
prospectors’ licence itself is valid for five years. Both are
ADMINISTRATION renewable.

The administration of that legislation is the responsibility Exclusive Prospecting Licence

of the Minister of Mines who generally acts through Mining Additionally, it is prudent to obtain an exclusive prospecting
Commissioners for the various districts and, who in respect order which confers exclusive rights to prospect for specified
of major decisions, acts on the advice of the Mining Affairs minerals in any identified location within Zimbabwe. Exclusive
Board. prospective orders are issued for a maximum of six years,
being three years renewable for a period of three years.

TYPES OF AND MANNER OF ACQUISITION

OIL AND GAS
OF RIGHTS
What rights are granted to conduct oil and gas exploration
What rights are granted to conduct reconnaissance,
and production?
exploration and mining operations?
Coal, oil and gas mining rights are conferred by a special
grant, which are granted by the President of Zimbabwe.
Holding of Mining Rights
An application is made to the Mining Affairs Board which
Mining Rights are held in various forms. The simplest form
makes a recommendation to the Minister of Mines. The
is a mining claim which is a permit to mine. A single claim
Minister of Mines makes a recommendation to the President
will normally cover a very small area. It is common to have
of Zimbabwe. Only the President of Zimbabwe can sign a
several contiguous claims grouped into a block of mining
grant in respect of coal, oil and gas. After the grant has been
claims. The pegging has to be maintained, and annual
signed, the nature of the rights granted is the same as that in
reports have to be submitted to the Mining Commissioner
respect of any other mineral.
for the relevant district.

Lease
For ease of administration, several claims forming a block can INDIGENISATION REQUIREMENTS
be transformed into a mining lease through an application
made in terms of the Act. A mining lease generally confers Are there any requirements in relation to the holding of
longer term rights which are renewable in terms of the Act. equity in exploration and mining projects by indigenous
peoples?
Rights Conferred Following the change in government in November 2017, the
Basically, a holder of Mining Rights is entitled to the exclusive compulsory indigenisation policy was repealed, with the
right of mining any ore or deposit of any mineral which occurs exception of diamond and platinum mining companies. As
within the vertical limits of the area covered by his or her a result, foreign residents are now permitted to own up to
location. The only exclusion will be coal, oil and gas which 100% of shares in a Zimbabwean company.
are mined in terms of a Presidential Grant.
Foreign Nationals
Title Not Impeachable Transfer and allotment of shares in a Zimbabwean company
The title of a Mining Right holder is not impeachable. The law to a foreign resident requires prior exchange control
does not allow the impeachment of titles to mining claims approval. Approval has been granted in advance in respect
which have been registered for a period of two years or of securities in listed companies where a foreign resident
mining claims which have been consolidated into a mining may acquire up to 15% per counter and a group of foreign
location. residents may acquire up to 49% per counter.

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RIGHTS OF THE STATE of the Environmental Management Act, no mining operations

may commence unless an Environmental Impact Assessment
report has been prepared, measures to minimise adverse
Dominion
impact on the environment have been enumerated, and an
Dominion in all minerals vests in the President. Miners acquire
environmental agency established by statute has issued
rights to mine and such rights are protected by law. Where
a certificate allowing the miner to commence mining
rights are lost in terms of the law, the President’s residual
operations.
ownership is restored and is unfettered by any encumbrance
arising from the granting of the rights.

CUSTOMARY LAND RIGHTS

PROCESSING AND BENEFICIATION Is there any native title which has any implication for the
exploration and mining industry?
Are there any requirements to beneficiate minerals The Minister may reserve land held under customary land
mined? rights against prospecting and mining.
Local processing and beneficiation is required for certain
minerals including, diamond, platinum, chrome and lithium.
The Minister is empowered to prescribe, by notice in a
statutory instrument, the terms and conditions under which
HEALTH AND SAFETY
minerals may be beneficiated, processed or exported.
What legislation governs health and safety in mining?
There is environmental management legislation, factories
legislation, mining regulations and National Social Security
RESTRICTIONS ON SALE AND EXPORT OF regulations providing for details of health and safety
MINERALS requirements on mining operations.

The sale of minerals in Zimbabwe is facilitated by the

Mineral Marketing Corporation of Zimbabwe (MMCZ), a CONSTITUTIONAL AND ADMINISTRATIVE
parastatal entity established under Zimbabwean law. While LAW
the MMCZ is responsible for selling all minerals, miners may
obtain permits to sell minerals directly through contracts As pointed out above, the Constitution enshrines
approved by the MMCZ. Notably, the sale of gold is subject environmental rights. The Constitution demands transparency,
to additional regulation by the Reserve Bank of Zimbabwe honesty, cost effectiveness and competitiveness in the
(RBZ). Furthermore, the MMCZ is entitled to a commission on negotiation and performance of, inter alia, concessions of
all sales and exports of minerals. minerals and other rights.

DISPOSALS OF RIGHTS AND ROYALTIES AND TAXES

CONTROLLING INTERESTS
All miners pay royalties to the State for exploitation of
Mining rights cannot be transferred or alienated in any minerals because all minerals belong to the State. Royalties
manner without the approval of the Mining Commissioner. In are based on production and are payable over and above
the case of Mining Grants or Mining Leases, the approval of income tax payable by the miners. For certain minerals,
the President is required. The application goes to the Mining royalties can now be paid in actual minerals.
Affairs Board which make recommendations to the Minister
and the Minister makes recommendations to the President.

ENVIRONMENTAL

What legislation governs environmental protection of

exploration and mining sites?
The Constitution of Zimbabwe Amendment (No. 20) Act 2013
(“Constitution”) enshrines environmental rights demanding
that every person be afforded a right to an environment that
is not harmful to their health or wellbeing and to have the
environment protected for present and future generations
through reasonable legislative and other measures. In terms

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