MINING LAW LECTURES 9&10

CERTAIN RESTRICTIONS ON THE

EXERCISE OF THE RIGHTS OF
MINERAL LICENCE HOLDERS
 RESTRICTIONS ( CONT’D)
• On grant of mineral rights to a mineral rights holder, such rights are not
absolute as their exercise is always subject to certain legal restrictions ie
common law( neighbour law) and statutory as spelt out in the provisions of the
Minerals( Prospecting and Mining) Act,No. 33 of 1992; These statutory
restrictions are contained in the following provisions of the Act: Sections 52 (1)-(
6); Part xv, Sections107-113 ( dealing with ancillary rights); and Section 57(1)
( a)-( h) - ( 2) ( specification of the power of the Minister to give written
directives to all holders of mineral licences regarding their operations, taking
into account good practices in relation to matters such as the erection or the
construction of any accessory works,the protection of the environment, the
conservation of any natural resources, the removal of accessory works, the
discovery of any minerals or groups of minerals, the preservation and
forwarding to the Mining Commissioner of any cores, cuttings or samples of any
minerals or group of minerals which may have been obtained in the course of
reconnaissance or prospecting)
•
 RESTRICTIONS(CONT’D)
• S.52(1)-(7) contains very detailed restrictions on the holder of a
mineral licence vis a vis the rights of other landowners;
• No holder of a mineral licence shall exercise any of his rights with
respect to the owner of a private land until he has concluded a
written agreement with such owner containing terms and
conditions on the payment of compensation except where the
owner of the private land has waived his right to compensation;
In either case, a copy of either the agreement or the waiver must
be submitted to the mining Commissioner; Alternatively, the
holder of a mineral licence may exercise his rights with respect to
private land if he has been granted ancillary rights in accordance
with the provisions of S.110(4) ( See S. 52(1) ( a)( i)- (ii);
RESTRICTIONS( CONT’D)- ANCILLARY RIGHTS,
PART XV SECTIONS 107-113 OF THE ACT
• S. 107 of the Act authorizes the holder of a mineral
licence to be able to enter a private land and
exercise any of his rights subject to the payment of
compensation; The provision is in pursuance of the
provisions of Article 16 (1) and (2) of the Namibian
Constitution;
• Section 108 of the Act provides for the
establishment of a Minerals Ancillary rights
Commission which shall consist of three members
appointed by the President of the Republic;
 RESTRICTIONS (CONT’D)- THE FUNCTIONS OF
THE MINERALS ANCILLARY RIGHTS COMMISSION
• These functions are spelt in Section 109 of the Act as follows: It is to consider applications
submitted by mineral licence holders in the following circumstances:
• Where they wish to gain entrance into private land in order to exercise their rights
authorized under their licences such as to carry out operations,to erect or construct
accessory works on the land, to obtain a supply of water or any material required for the
operations, or to dispose of water obtained from the operations and they have been
prevented from doing so on account of the refusal of the owner of the private land to
grant them permission, which refusal is unreasonable or raises a dispute in relation to the
interpretation or application of an order by the commission in terms of section 110(4),
they may submit a written application to the commission for the grant of the right;
• Alternatively, where due to the number of owners orpersons competent to grant the right
or the existence of a conflict of interest among them, they are unable to grant such right,
the holders may also apply to the Commission to be granted the right;
• Similarly,where the owner or person is absent from Namibia, or his whereabouts are
unknown, or he is a minor or of unsound mind or any disability to grant such right, the
holder may apply to the Commission to be granted such right. ( See S. 109(1) ( a) – (e)(i),
(ii) and (iii) of the Act)
 RESTRICTIONS ( CONT’D)
• THE PROCEDURES TO BE FOLLOWED BY THE COMMISSION IN CONSIDERING APPLICATIONS:
• These are spelt out in the provisions of Sections 109(2)- (3),110-111 of the Act;
• THE QUESTION OF COMPENSATION PAYABLE TO THE OWNER OF PRIVATE LAND: This
issue is dealt with in sections 112 and 113 ( which provides for an appeal to the High Court
of Namibia where the private land owner is dissatisfied with the amount of compensation
determined by the Commission in terms of Section 112( 1) &( 2) of the Act; For the
purposes of the appeal to the High Court, the decision of the Commission shall be deemed
to be a judgment of a magistrate’s court;
• This latter section states that where the parties fail to agree on the amount of
compensation payable, it is the duty of the Commission to determine an amount which in
the opinion of the Commission “ represents JUST COMPENSATION for the right so granted
which shall be paid by the holder concerned in respect of such right.”
• According to S. 112 (2), the holder of a mineral right shall not be entitled to exercise any
rights in respect of the land until the amount of compensation determined by the
Commission has been paid to the private land owner by the holder ; See: Namibia Grape
Growers and Exporters Association and Others v Ministry of Mines and Energy and Others,
(SA 14/02), [2004] NASC 6 ( 25 November 2004);
 RESTRICTIONS( CONT’D)
• Other restrictions with to towns, villages, lands
reserved for government or public purposes,
private or state lands used as a garden orchard,
vineyard, nursery, plantation etc have been set
forth in S. 52( 1) ( b) – ( 7) and S. 53 ( dealing
with the drilling of boreholes on the surface of
the land-This can only be done where the holder
of the mineral licence has obtained permission
from the Mining Commissioner to do so.
 THE VARIOUS WAYS OF TERMINATION OF
MINERAL LICENCES
• The various ways of terminating mineral licences are regulated by the provisions of
Sections 54( 1)- ( 4 )( dealing with abandonment of the mineral licence), ( 55)( 1)-
( 4) ( dealing with the cancellation of the mineral licence by the Minister in a
written notice addressed to the holder of the mineral licence), 56 ( 1)-( 5)( dealing
with Vis major or act of God), 57(1)-(2) ( Dealing with the powers of the Minister to
issue written notices to the holders of mineral licences directives with due regard
to good reconnaissance, prospecting and mining practices; these written notices
may deal with the erection or construction of any accessory works, the protection
of the environment, the conservation of any natural resources including mineral
resources and the prevention of their waste, the removal of any accessory works
or goods erected or constructed on the land in connection with reconnaissance,
prospecting or mining operations; the discovery of any minerals or group of
minerals; the taking, preservation and furnishing to the Commissioner of cores,,
cuttings or samples of any mineral or group of minerals obtained or which may be
obtained in the course of reconnaissance, prospecting, or mining; the submission
to the Mining Commissioner of reports, returns or any information