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Mining Law 2021 a Practical Cross-Border Insight Into Mining Law Eighth Edition

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Mining Law 2021 A practical cross-border insight into mining law Eighth Edition Featuring contributions from: ALRUD Law Firm Holland & Hart LLP RB Abogados Anderson Mōri & Tomotsune Jincheng Tongda & Neal Law Firm Reindorf Chambers Brooks and Knights Legal Consultants Lawson Lundell LLP Rubio Leguía Normand Cruz Marcelo & Tenefrancia Marval O’Farrell Mairal Wintertons Legal Practitioners Eric Silwamba, Jalasi and Linyama Milbank LLP World Association of Mining Lawyers (WAOML) Legal Practitioners Nupen Staude de Vries Inc. Table of Contents Expert Chapters Trade and Regulatory Developments Impacting the Mining Industry 1 Andrew Emrich, Holland & Hart LLP World Association of Mining Lawyers (WAOML): An Overview 4 World Association of Mining Lawyers (WAOML) Q&A Chapters Argentina Philippines 6 Marval O’Farrell Mairal: Luis E. Lucero 72 Cruz Marcelo & Tenefrancia: Patricia A. O. Bunye & Alpheus D. Macalalad Canada 15 Lawson Lundell LLP: Khaled Abdel-Barr & Russia Karen MacMillan 80 ALRUD Law Firm: Andrey Zharskiy & Timur Akhundov China South Africa 27 Jincheng Tongda & Neal Law Firm: 87 Nupen Staude de Vries Inc.: Lili Nupen, Guohua (Annie) Wu & Yingnan (Jason) Li Nicole Limberis-Ritchie & Chantal Murdock Ghana United Kingdom 34 Reindorf Chambers: Fui S. Tsikata & 94 Milbank LLP: John Dewar & Emily Whittaker Dominic Dziewornu Quashigah USA Japan 105 Holland & Hart LLP: Karol L. Kahalley 41 Anderson Mōri & Tomotsune: Hiroaki Takahashi Zambia Mexico 114 Eric Silwamba, Jalasi and Linyama Legal 49 RB Abogados: Enrique R. del Bosque Practitioners: Joseph Alexander Jalasi, Jr. & Eric Suwilanji Silwamba, S.C. Nigeria 58 Brooks and Knights Legal Consultants: Zimbabwe Adetayo Adetuyi & Nnanke Williams 122 Wintertons Legal Practitioners: Nikita Madya Peru 64 Rubio Leguía Normand: Xennia Forno & Miguel Ángel Soto 94 Chapter 14 United Kingdom United United Kingdom John Dewar Milbank LLP Emily Whittaker 1 Relevant Authorities and Legislation The exploitation of gold and silver is overseen by the Crown Estate and, in Scotland, the Crown Estate Scotland (together, TCE, established through the Crown Estate Acts of 1956 and 1.1 What regulates mining law? 1961) through Wardell Armstrong, the Crown Estate Mineral Agent. TCE also manages the seabed to the 12-nautical-mile Regulation of the mining industry follows the devolution of territorial limit and other rights including non-energy mineral certain powers relating to mining from the government of the rights out to 200 nautical miles in all parts of the UK. In this United Kingdom to the governments of Scotland, Wales and capacity, TCE grants licences for the extraction of marine sand Northern Ireland. As such, some law applies to the whole of the and gravel resources from the seabed, as well as such minerals as UK, while some applies only to a particular part of the UK. salt, potash and polyhalite occurring beneath the seabed. The principal sources of law in the UK are Acts of Parliament The Oil and Gas Authority (OGA), a State-owned company and associated statutory instruments, common law (essentially limited by shares, was formally established as an independent case law) and European Union law with effect in UK domestic law regulator under the Energy Act 2016 and is responsible for the (some of which will be replaced by new domestic law following licensing of offshore and onshore oil and gas operations in the the UK’s withdrawal from the EU). Mineral leases, planning UK, including exploration, production, decommissioning and consents and environmental consents will also contain terms and abandonment. conditions which mine operators need to comply with, and many In Northern Ireland, the Mineral Development Act (Northern of these will be tailored to the particular project and the nature Ireland) 1969 vested most minerals in Northern Ireland in the and location of the operations, imposing, for example, restrictions Department of the Economy. This enables the government of on traffic movements, limits on air and noise emissions and the Northern Ireland to grant exploration and production licences in need to decontaminate and restore the site after closure. its own name. The main exceptions to this right are (a) offshore The UK regulatory regime for mining also varies according to oil and gas deposits which are administered by the OGA, (b) gold the mineral in question. and silver which vest in the Crown, (c) “common” substances (including aggregates, sand and gravel), and (d) minerals which were being worked at the time of the 1969 Act. 1.2 Which Government body/ies administer the mining industry? As well as a licence to exploit minerals, planning consent is required to authorise any development works from the local mineral planning authority (MPA). The Government and to some extent local authorities set the The Health and Safety Executive (HSE), formed in 1975, policy framework within which the mining industry operates. enforces health and safety regulation in England, Wales and The general position under the law of property is that landowners Scotland, together with local authorities and other author- own the minerals beneath their land and are able to license the ised bodies. In Northern Ireland, health and safety regulation right to exploit them to third parties. However, in some cases, all is enforced by the Health and Safety Executive for Northern rights to search for and exploit minerals have been reserved for the Ireland. Crown; for example, all naturally occurring gold and silver (histor- Environmental regulation is undertaken by the national envi- ically referred to as Mines Royal) vest with the Crown, as well as ronmental regulators and, in some respects, the local authorities. oil and gas and all minerals occurring on and beneath the seabed The principal environmental regulator for England (and in some within 200 nautical miles of the coast. Licensing of exploration subject areas across the UK nations) is the Environment Agency and exploitation of these minerals is either conducted on behalf of (EA), formed under the Environment Act 1995; for devolved the Crown or by governmental bodies established for this purpose. matters in Scotland it is the Scottish Environmental Protection The ownership of the majority of unworked coal and coal Agency (SEPA), formed under the Environment Act 1995; in mines in the UK (excluding Northern Ireland) belongs to the Wales it is Natural Resources Wales (NRW) (established in 2013); Coal Authority. The Coal Authority, established under the and in Northern Ireland it is the Northern Ireland Environment Coal Industry Act 1994, is an executive, non-departmental Agency (NIEA), which has been established as an executive public body whose responsibilities include, amongst others, the agency within the Department of Agriculture, Environment and licensing of coal mining operations, the administering of coal Rural Affairs since 2016. Natural England additionally issues mining subsidence damage claims, and bearing the liability for licences under the wildlife and habitats conservation regime, as contaminated mine water caused by historic coal workings. The well as providing specialist input to other bodies. Coal Authority sometimes owns non-coal mines and minerals in coal mining areas. Mining Law 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London Milbank LLP 95 1.3 Describe any other sources of law affecting the granted since the beginning of 2019, including the Woodhouse mining industry. Colliery site in West Cumbria – the first deep coal mine to be opened since the 1980s, with more new applications underway. However, the Government remains committed to achieving its The principal legislation affecting the mining industry in the commitments in the Paris Agreement on climate change and UK includes: legally binding UK domestic climate change targets for emis- (a) the Coal Industry Act 1994 establishing the Coal Authority sions reduction, which have recently been increased with the and setting out the framework within which the coal ambition of achieving a 100% reduction – compared to the 1990 industry currently operates; figures – by 2050. Furthermore, the COVID-19 pandemic has (b) the Mines and Quarries Act 1954 governing the manage- had a significant impact on coal production, with coal produc- ment and control of mines and quarries; tion in the first quarter of 2020 falling to a record low of 434 (c) the Mining Regulations 2014 replacing and consolidating thousand tonnes, a drop of 27% compared with the same period the previous mine-specific health and safety regulations in 2019. If such trends continue, the Government could achieve into a single set that are centred around major hazards its targets as set out in the Paris Agreement sooner than origi- within the underground mining sector; nally expected. (d) the Health and Safety at Work etc. Act 1974 and a large Foreign Investment: The UK’s public interest intervention regime body of health and safety regulations of general application under the Enterprise Act 2002 allows the Government to inter- across all sectors, which includes the: vene in the merger control process (usually confined to competi- (i) Explosives Regulations 2014; tion review by the CMA or European Commission) when strictly (ii) Control of Substances Hazardous to Health Regulations defined public interest considerations arise in relation to specified 2002; categories of transaction. In 2018, the Government published (iii) Dangerous Substances and Explosive Atmospheres the National Security and Investment
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