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OWNERSHIP

GLOBAL PRINCIPLES AND PRACTICES IN MINING LAW DIANA DALTON PRESENTATION TO MINEX CENTRAL ASIA FORUM 2014 MARCH 31-APRIL 2, 2014 ASTANA , KAZAKHSTAN. OWNERSHIP. OWNERSHIP BY THE STATE EXCEPTIONS USA ON PRIVATE LAND WHY? THE ABILITY TO CONTROL EXPLORATION AND EXPLOITATION

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OWNERSHIP

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  1. GLOBAL PRINCIPLES AND PRACTICES IN MINING LAWDIANA DALTONPRESENTATION TO MINEX CENTRAL ASIA FORUM 2014MARCH 31-APRIL 2, 2014ASTANA, KAZAKHSTAN

  2. OWNERSHIP • OWNERSHIP BY THE STATE • EXCEPTIONS USA ON PRIVATE LAND • WHY? • THE ABILITY TO CONTROL EXPLORATION AND EXPLOITATION • TO CONTROL ACCESS BY ISSUANCE LICENCES AND DETERMINATION OF RULES OF EXPLOITATION • GIVES RIGHT TO COLLECT ROYALTIES, RENTS, BONUSES

  3. SECURITY OF TENURE • PRINCIPLE THAT THE HOLDER OF A RIGHT • WILL BE ABLE TO RETAIN THAT RIGHT OVER TIME • IN MINING LAW : (1)THE GUARANTEE FOR THE HOLDER OF AN EXPLORATION LICENCE TO HAVE FIRST RIGHT TO EXPLOITATION RIGHTS OF A DEPOSIT THEY HAVE DISCOVERED

  4. (2) ONCE A TITLE IS GRANTED IT CANNOT BE TAKEN ARBITRAILY AND WILL BE RENEWED AS LONG AS CONDITIONS HAVE BEEN MET EXAMPLE: (RENEWAL)NIGERIA MINING ACT SECTION 62 – AN EXPLORATION LICENCE WILL BE RENEWED IF THE HOLDER HAS COMPLIED WITH MINIMUM WORK REQUIREMENTS AND MET THE OBLIGATIONS OF THE LAW. SECTION 65 – NO MINING LEASE WILL BE GRANTED ON AN EXPLORATION AREA EXCEPT TO THE HOLDER OF THAT LICENCE.

  5. WHY IT IS IMPORTANT PROTECTS INVESTMENT MADE BY EXPLORER PROTECTS RIGHTS GIVEN TO EXPLORER GIVES CERTAINTY TO LENDERS HOW ACCOMPLISHED LAW STATES EXPLICITY THAT EXPLORER CAN PROCEED TO EXPLOITATION IN LICENCING PROVISIONS MUST DEMONSTRATE A TRANSFER FROM EXPLORATION TO EXPLOITATION

  6. EXCLUSIVITY • LICENCE HOLDER IS GIVEN EXCLUSIVE RIGHTS OVER THE AREA OR THE MINERALS IN AN AREA • GHANA BASED ON MINERALS APPLIED FOR IN AN AREA • PAPUA NEW GUINEA BASED ON AREA

  7. FIRST COME FIRST SERVED • THE FIRST TO APPLY IS GRANTED THE EXPLORATION LICENCE • FAIRNESS • AVOIDANCE OF DISPUTES • EASIER WITH ON-LINE APPLICATIONS

  8. ALTERNATIVE COMPETITIVE BIDDING • MORE APPROPRIATE IN BROWNFIELD SITUATIONS • MORE DIFFICULT IN GREENFIELD AREAS WHERE LITTLE OR NO GEOLOGICAL KNOWLEDGE

  9. NON-DISCRIMINATION • GOVERNMENT WILL TREAT FOREIGN AND DOMESTIC MINING ENTITIES EQUALLY • NO FAVOURITISM • SAME RULES APPLY TO ALL • CREATES MORE EFFICIENCY IN STATE OWNED COMPANIES AS THEY MUST COMPETE • ENHANCES TRANSPARENCY • CHILE – CODELCO – CHOOSE OWN DIRECTORS

  10. TRANSFERABILITY • ALLOWS A LICENCE HOLDER TO TRANSFER OR ASSIGN ALL OR PART OF LICENCE • SOME RESTRICT TIMING E.G. WESTERN AUSTRALIA - 1 YEAR • PROTECTS THE INVESTMENT OF THE COMPANY • BRINGS IN NEW PARTNERS • INFUSES ADDITIONAL FINANCING

  11. PROVIDE GREATER TECHNICAL EXPERTISE • SPECULATION AVOIDANCE REQUIRES REVIEW

  12. DISPUTE RESOLUTION • RULE OF LAW • INDEPENDENT JUDICIARY • ABILITY TO ARBITRATE DISPUTES • ACCESS TO INTERNATIONAL ARBITRATION – E.G. GHANA

  13. THE HOWS ARE IMPORTANT • SET ADMINISTRATIVE GUIDELINES TO DEAL WITH LICENCING E.G. WESTERN AUSTRALIA • FETTER MINISTERIAL DISCRETION E.G. SWEDEN • TRANSPARENCY – CADASTRE/REGISTRY OF TITLES PUBLIC/REPORTS/EITI • INTER-DEPARTMENTAL COOPERATION • ENVIRONMENTAL OVERSIGHT

  14. DEAL WITH CONFLICT OF INTEREST • “COOLING OFF” – TIME BEFORE A SENIOR EXECUTIVE CAN BE HIRED BY COMPANY OR LOBBY GOVERNMENT • E.G. CANADA – DEPUTY MINISTER /ADM– 5 YEARS BEFORE CAN DEAL WITH GOVERNMENT IN AREA YOU REGULATED

  15. A GOOD LAW IS ONLY AS GOOD AS ITS IMPLEMENTATION • REQUIRES ADMINISTRATIVE PROCESS • TRANSPARENCY IS ESSENTIAL • EFFICIENCY IN PROCESS NECESSARY • PRINCIPLES MUST BE CLEAR, CONCISE

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