ARRANGEMENT OF SECTIONS
1. Short title
Ownership of Minerals and Acquisition of Mineral Rights
3. Ownership of minerals vested in Republic
4. Act not to apply to petroleum
5. Acquisition of mineral concession
6. Restriction on acquisition of mineral concession
7. Power of certain officers to enter upon prospecting areas, etc.
8. Power to require production of records
9. Indemnity of officers
10. Recovery of fees, etc.
11. Retention of cores and samples
12. Preference for Botswana products, etc.
13. Application for prospecting licence
14. Consideration of application for prospecting licence
15. Notification of grant or rejection
16. Form and content of prospecting licence
17. Duration and renewal of prospecting licence
18. Discovery of minerals not included in prospecting licence
19. Size of prospecting area
20. Rights of holder of prospecting licence
21. Obligations of holder of prospecting licence
22. Amendment of programme of prospecting operations
23. Transfer of prospecting licence
24. Removal and disposal of minerals
25. Who may apply for a retention licence
26. Other holders to be notified of application
27. Grounds to be considered in application for a retention licence
28. Notification of grant or refusal
29. Form of retention licence
30. Duration and renewal of a retention licence
31. Rights conferred by a retention licence
32. Obligations of holder of a retention licence
33. Surrender of information on expiry
34. Third party access
35. Application for mining licence by authorized third party
36. Transfer or assignment of a retention licence
37. Who may apply for a mining licence
38. Application for a mining licence
39. Grant of a mining licence
40. Government investment
41. Form and content of mining licence
42. Duration and renewal of mining licence
43. Amendment of programme of mining operations
44. Rights conferred by mining licence
45. Obligations of holder of mining licence
46. Wasteful mining and treatment practices
47. Suspension of production
48. Export of radioactive minerals
49. Trading in mining areas
50. Transfer or assignment of mining licence
51. Negotiations over mining licence for diamonds
52. Application for a minerals permit
53. Permits for industrial minerals
54. Demarcation of area covered by a minerals permit
55. Duration, renewal and termination of a minerals permit
56. Rights under a minerals permit
57. Duties of holder of a minerals permit
58. Special rights with regard to industrial minerals
59. Transfer or assignment of minerals permit
Mineral Concessions and Surface Rights
60. Restriction on exercise of rights under a mineral concession
61. Right to graze stock, etc.
62. Acquisition of exclusive rights by holder of mining or retention licence or minerals permit
63. Compensation for disturbance of rights, etc.
64. Compulsory acquisition of land
65. Rehabilitation, reclamation etc
67. Remission of royalties
68. Deferred payment of royalty
69. Prohibition on disposal of minerals
70. Annual charges in respect of prospecting and retention licences
71. Annual charges in respect of mining licences and minerals permits
72. Interest on overdue payments
73. Security for compliance
Withdrawal of Applications, Surrender and Termination of Mineral Concessions, etc.
74. Withdrawal of applications
75. Surrender of area or part thereof covered by mineral concession
76. Minister's power to suspend or cancel a mineral concession
77. Assets on termination
78. Delivery of documents on termination
79. Pending applications
Offences and penalties
81. Imposition of penalty on holder of mineral concession
84. Summary imposition of penalties
Records and information
85. Records to be maintained by Minister
86. Certain records supplied to Minister to be confidential
First Schedule - Forms
Second Schedule - Fees
Act 17, 1999,
S.I. 54, 2005,
Act 19, 2007,
S.I. 126, 2010.
An Act to re-enact with substantial amendments the provisions that regulate the law relating to Mines and Minerals; to provide for the granting, renewal and termination of mineral concessions; to provide for the payment of royalties; and for matters incidental to and connected to the foregoing.
[Date of Commencement: 1st December, 1999]
Preliminary (ss 1-2)
This Act may be cited as the Mines and Minerals Act.
(1) In this Act, unless the context otherwise requires-
"associated company" means a company that directly or indirectly controls or is controlled by a party to the mineral project or a company which directly or indirectly controls or is controlled by a company which controls a party to the mineral project; for the purposes of this definition the term "controls" means ownership by one company of more than 50 per cent of the voting securities of the other company, or the power to direct, administer and dictate policies of the other company even where the voting securities held by such company exercising such effective control in that other company is less than 50 per cent; the term "controlled" 'shall be construed accordingly;
"associated mineral" means a mineral which occurs with a mineral resource in such circumstances that it is physically impossible to mine the mineral resource without also mining the mineral found in association with the mineral resource;
"authorised officer" means a person authorised by the Minister to exercise the powers conferred by section 7(1);
"default" means a breach of a mineral concession or of any provision of this Act or any related legislation, and the term 'in default' shall be construed accordingly;
"diagram" means a document containing geometrical, numerical and verbal representations of a piece of land, which has been signed by a land surveyor and which has been approved or certified by the Director of Surveys and Mapping or other officer empowered under the Land Survey Act, so to approve or certify a diagram;
"Director of Mines" means the officer for the time being occupying the position of Director of Mines in the Ministry responsible for minerals, energy and water affairs;
"Director of Geological Survey" means the officer for the time being occupying the position of Director of Geological Survey in the Ministry responsible for minerals, energy and water affairs;
"holder" or "holder of a mineral concession" means the holder of a mineral concession under this Act;
"industrial mineral" means barite, basalt, clay, dolomite, feldspar, granite, gravel, gypsum, laterite, limestone, mica, magnesite, marble, phosphate, rock, sand, sandstone, slate and talc, when used for agricultural, building, road making or industrial purposes and such other minerals as may be prescribed in the regulations to be industrial minerals;
"mine", when used as a noun, means any place, excavation or working wherein, whereon or whereby any operation connected with mining is carried on, together with all buildings, premises, erections and appliances belonging or appertaining thereto above and below the ground for the purpose of winning, or preparing minerals, obtaining or extracting any mineral or metal by any mode or method or for the purpose of dressing mineral ores;
"mine", when used as a verb, means intentionally to win minerals and includes any operations directly or indirectly necessary therefor or incidental thereto, and "mining" shall be construed accordingly;
"mineral" means any substance, whether in solid, liquid or gaseous form, occurring naturally in or on the earth, formed by or subject to a geological process, but excluding petroleum as defined in section 2 of the Petroleum (Exploration and Production ) Act, and public and private water when used for a primary, secondary or tertiary use, as defined in the Water Act;
"mineral concession" means a prospecting licence, a retention licence, a mining licence, or a minerals permit;
"minerals permit" means a permit issued under section 52;
"minerals permit area" means land subject to a minerals permit;
"mining area" means the land subject to a mining licence;
"mining licence" means a right to mine required under Part VI;
"ore" means a natural aggregate of one or more minerals which may be mined and sold at a profit;
"private land" means all land and all interests in land other than unalienated land or interests therein;
"programme of mining operations" means such programme approved on the granting or renewal of a mining licence and includes any amendment thereto made in pursuance of the provisions of this Act;
"programme of prospecting operations" means such programme approved on the granting or renewal of a prospecting licence and includes any amendment thereto made in pursuance of the provisions of this Act;
"prospect" means intentionally to search for minerals and includes determining their extent and economic value;
"prospecting area" means the land subject to a prospecting licence;
"prospecting licence" means a right to prospect acquired under Part IV;
"radioactive mineral" means a mineral which contains by weight at least one-twentieth of one per cent (0,05 per cent) of uranium or thorium or any combination thereof, including but not limited to the following-
(a) monazite sand and other ores containing thorium;
(b) carnotite, pitchblende and other ores containing uranium;
"retention area" means land subject to a retention licence;
"retention licence" means a right of retention over a prospecting area acquired under Part V;
"small scale mining" means the intentional winning of minerals other than diamonds in operations involving the mining and processing of less than 50 000 tonnes of raw ore per annum and in which the overall investment in fixed assets does not exceed P1 million.
"specially authorised officer" means an authorised officer specially authorised by the Minister to exercise the powers conferred by section 7(2);
"termination" means the extinguishment of a mineral concession whether by expiry of time, surrender or cancellation, and where any surrender or relinquishment is in respect of part only of the area covered by a mineral concession then the mineral concession shall be deemed to have been extinguished in respect of that surrendered or relinquished area;
"tribal area" has the meaning assigned to it under the Tribal Land Act;
"working for profit" means producing a mineral product with the intention of use or sale.
(2) Where in this Act provision is made for a matter to be referred to arbitration, the matter shall be referred to a single arbitrator appointed by the parties and finally resolved under the rules of the International Centre for the Settlement of Investment Disputes in force from time to time or in accordance with such other rules or procedures as the parties may agree.
(3) In the event of the parties being unable to agree on a single arbitrator, each party shall choose an arbitrator, and the arbitrators so chosen shall choose an umpire.
(4) Arbitration proceedings shall be conducted in accordance with the Arbitration Act and conducted in English and shall be held in Gaborone, unless the parties otherwise agree.
(5) Where in this Act any application, report or other document is required to be submitted to the Minister-
(a) in the case of a prospecting licence, such application, report or document shall be submitted through the Director of Geological Survey; and
(b) in the case of any other mineral concession and in all other cases, shall, except where otherwise stated, be submitted through the Director of Mines.
(6) The Minister may exercise any of his functions through the Permanent Secretary, the Director of Mines or the Director of Geological Survey.
Ownership of Minerals and Acquisition of Mineral Rights (ss 3-6)
Subject to the provision of the Mineral Rights in Tribal Territories Act, all rights of ownership in minerals are vested in the Republic and the the Minister shall ensure, in the public interest, that the mineral resources of the Republic are investigated and exploited in the most efficient, beneficial and timely manner.
No right to explore for or produce petroleum (as defined in section 2 of the Petroleum (Exploration and Production) Act) shall be granted or exercised under this Act.
(1) Subject to the provisions of this Act, the right to prospect for, to retain and to mine, minerals may be acquired and held only under and in accordance with the provisions of this Act, notwithstanding any right of ownership or otherwise which any person may possess in and to the soil on, in or under which minerals are found or situate.
(2) No person may prospect for or mine minerals except as provided in this Act.
(3) Nothing in this Act shall prevent a member of any tribe from taking, subject to such conditions and restrictions as may be prescribed, minerals from any land from which it has been the custom of members of that tribe to take minerals and to the extent that this is permissible under the customary law of that tribe.
(4) Notwithstanding the provisions of this Act, the Minister may, in the public interest and subject to such conditions as he may determine, authorize any person to undertake non commercial investigations into the geological resources of Botswana.
No mineral concession shall be granted to or held by-
(a) an individual who-
(i) is under the age of 18 years;
(ii) not being a citizen of Botswana, has not been ordinarily resident in Botswana for a period of four years or such other period as may be prescribed;
(iii) is or becomes an undischarged bankrupt, having been adjudged or otherwise declared bankrupt, whether under the laws of Botswana or elsewhere; or
(iv) has been convicted, within the previous 10 years, of any offence of which dishonesty is an element, or of any offence under this Act, any related or similar Act, or any similar written law in force outside Botswana, and has been sentenced to imprisonment without the option of a fine or to a fine exceeding P1000 or the equivalent thereof;
(b) a company-
(i) which has not established a domicilium citandi et executandi in Botswana;
(ii) unless, in the case of a mining licence, such company is incorporated under the Companies Act, and intends to carry on the sole business of mining under that mining licence;
(iii) which is in liquidation or under judicial management except where such liquidation or judicial management is a part of a scheme for the reconstruction or amalgamation of such company; or
(iv) which has among its directors or shareholders any person who would be disqualified in terms of paragraph (a)(iii) and (iv).
Administration (ss 7-12)
(1) An authorized officer may, at all reasonable times, enter upon any prospecting area, retention area, mining area, minerals permit area or any premises or workings thereon or thereunder, other than a dwelling-house, for the purpose of-
(a) generally inspecting such area, premises or workings and examining prospecting or mining operations or the treatment of minerals being performed or carried out thereon;
(b) ascertaining whether the provisions of this Act are being complied with;
(c) ascertaining whether any nuisance or breach of environmental obligations exists in such area, premises or workings;
(d) giving directions and taking steps to enforce any provisions of this Act, or to abate or remove any nuisance;
(e) taking soil samples or specimens of rocks, ore, concentrates, tailings or minerals situated upon such area, premises or workings for the purpose of examination or assay;
(f) examining books, accounts, vouchers, documents or records of any kind; or
(g) obtaining such information as he may deem necessary.
(2) A specially authorized officer may-
(a) enter at all reasonable times upon any land with such persons, animals, vehicles, appliances, instruments and materials as are necessary;
(b) break up the surface of such land for the purpose of ascertaining the rocks or minerals within or under the same;
(c) take and carry away samples and specimens of the soil, and of rocks or minerals found thereon, therein or thereunder;
(d) fix any post, stone, mark or object to be used in the survey of any such land;
(e) dig up any ground for the purpose of fixing any such post, stone, mark or object;
(f) enter into or upon any land through which it may be necessary to pass for the purposes of such survey:
(i) it shall not be lawful to fix any post, stone, mark or object within any walled or fenced garden or orchard without the consent of the lawful occupier thereof;
(ii) as little damage and inconvenience as possible shall be caused by the exercise of the powers conferred by this subsection and the owner or lawful occupier thereof shall be entitled to compensation for any damage sustained in the exercise thereof; and
(iii) before abandoning any land all excavations shall be backfilled or otherwise made safe.
(3) Authorised and specially authorised officers shall be appointed by the Minister by notice in the Gazette.
The Minister may direct the holder of a mineral concession to produce for inspection by an authorised officer any books, accounts, vouchers, documents or records of any kind concerning the mineral concession.
No public officer or other authorized officer or Government nominated director of any holder of a mineral concession shall be liable for anything done or omitted to be done bona fide in the performance or purported performance of any function vested in or delegated to him by or under this Act or in his capacity as a director as aforesaid.
Any fees, dues, rents, royalties or payments which may become due in respect of any mineral concession or under the provisions of this Act shall be a debt due to Government and recoverable in a court of competent jurisdiction.
(1) No core obtained in the exercise of rights conferred by a mineral concession shall be destroyed or otherwise disposed of except for the purposes of assay, identification or analysis without the permission in writing of the Minister, which permission shall not be unreasonably withheld.
(2) Where any core is retained for the purpose of complying with subsection (1), there shall be maintained a record in such degree of particularity as is sufficient for the identification of the core or sample and the location and geological horizon of its origin.
(3) Any person who destroys or disposes of core in contravention of subsection (1) or fails to maintain a record as required by subsection (2) shall be guilty of an offence.
(1) The holder of a mineral concession issued under this Act, shall, in the conduct of his operations under such concession, and in the purchase, construction and installation of facilities, give preference, to the maximum extent possible consistent with safety, efficiency and economy, to-
(a) materials and products made in Botswana; and
(b) service agencies located in Botswana and owned by Botswana citizens or bodies corporate established under the Companies Act.
(2) The holder of a mineral concession shall, in all phases of his operations, give preference in employment to citizens of Botswana to the maximum extent possible consistent with safety, efficiency and economy.
(3) The holder of a mining licence shall, in his operations, conduct training programmes in consultation with the Minister for the benefit of employees so that such employees may qualify for advancement.
Prospecting Licences (ss 13-24)
A person wishing to obtain a prospecting licence shall make application to the Minister by completing Form I set out in the First Schedule.
(1) The Minister shall grant a prospecting licence if-
(a) the applicant has, or has secured access to, adequate financial resources, technical competence and experience to carry on effective prospecting operations;
(b) the proposed programme of prospecting operations is adequate and makes proper provision for environmental protection;
(c) the proposed prospecting area is not the same as, nor does it overlap an existing prospecting area, retention area, mining area or minerals permit area in respect of the same mineral or associated mineral; and
(d) the applicant is not in default.
(2) The Minister may cause such investigations to be made or such negotiations or consultations to be carried on as he may deem necessary to enable him to assess whether or not the criteria in subsection (1) has been satisfied.
(3) Where an application is made for a prospecting licence in respect of an area over which a previous prospecting licence in respect of the same or an associated mineral has been held for seven years, no new prospecting licence shall be granted before a period of three months has elapsed since the expiry of the previous licence, and the Minister shall in the event of competing applications grant a prospecting licence to the applicant which in his opinion has the best proposed programme.
The Minister shall cause the applicant to be notified in writing of his decision on the application and, if the prospecting licence is refused, the Minister shall give reasons for such refusal.
(1) A prospecting licence shall be in Form II of the First Schedule.
(2) There shall be appended to a prospecting licence the programme of prospecting operations.
(1) Subject to this Act, a prospecting licence shall be valid for such period as the applicant has applied for, which period shall not exceed three years.
(2) The holder of a prospecting licence may, at any time not later than three months before the expiry of such licence, apply to the Minister by completing Form I set out in the First Schedule for renewal thereof stating the period for which the renewal is sought and submitting together with the application-
(a) a report on prospecting operations so far carried out and the direct costs incurred thereby; and
(b) a proposed programme of prospecting operations to be carried out during the period of renewal and the estimated cost thereof.
(3) Subject to this Act, the applicant shall be entitled to the grant of no more than two renewals thereof, each for the period applied for, which periods shall not in either case exceed two years, provided that-
(a) the applicant is not in default; and
(b) the proposed programme of prospecting operations is adequate.
(4) Before rejecting an application for renewal under subsection 3(a), the Minister shall give notice of the default to the applicant and shall call upon the applicant to remedy such default within a reasonable time.
(5) Before rejecting an application for renewal under (3)(b), the Minister shall give the applicant opportunity to make satisfactory amendments to the proposed programme of prospecting operations.
(6) Notwithstanding the provisions of subsection (3), the Minister may renew a prospecting licence for a period or periods in excess of the periods specified in that subsection where a discovery has been made and evaluation work has not, despite proper efforts, been completed.
(1) If, in the course of exercising his rights under a prospecting licence, the holder thereof discovers any mineral not included therein, he may apply to the Minister for an amendment of his prospecting licence to include such mineral.
(2) An application for the amendment of a prospecting licence under subsection (1) shall-
(a) specify the mineral discovered;
(b) give particulars of the situation and circumstances of the discovery; and
(c) have appended thereto a proposed programme of prospecting operations in connection therewith.
(3) Subject to the provisions of subsection (4), and provided that the applicant is not in default, the Minister shall permit the amendment of a prospecting licence to include the mineral concerned.
(4) An amendment of a prospecting licence under subsection (3) shall not be permitted if any person other than the applicant is the holder of a prospecting licence, retention licence, mining licence or minerals permit in respect of the mineral concerned or an associated mineral over the area in which it was discovered.
(1) Subject to the provisions of this Act, a prospecting licence shall cover such area, not exceeding 1000 km2, as is in accordance with the applicant's application.
(2) Subject to the provisions of subsection (4), the prospecting area shall be reduced in size to eliminate therefrom-
(a) at the end of the initial term of the prospecting licence, not less than half of the initial area;
(b) at the end of each period of renewal, half of the remaining area, or such lower proportion as the Minister may in any case agree; and
(c) the area covered by any retention licence or mining licence granted thereon.
(3) The holder of a prospecting licence shall designate, prior to the end of each of the periods referred to in subsection (2), the area or areas to be eliminated from the prospecting area and, in default thereof, the designation shall be made by the Minister.
(4) Where a person holds two or more contiguous prospecting licences covering the same period and the same mineral or minerals the Minister shall, for the purposes of the elimination, under subsection (2), of part of any of the areas thereof, permit the areas covered thereby to be deemed to be one area, the subject of one such prospecting licence.
(5) No compensation shall be payable to the holder of any prospecting licence arising out of reductions in area effected in terms of subsection (2).
Subject to the provisions of Part VIII, the holder of a prospecting licence may, in the exercise of his rights thereunder, enter upon any land to which his prospecting licence relates together with his servants and agents and may-
(a) prospect thereon for the mineral to which his prospecting licence relates;
(b) drill boreholes and make such excavations as may be necessary; and
(c) erect camps and put up temporary buildings for machinery necessary for prospecting purposes.
(1) The holder of a prospecting licence shall-
(a) commence prospecting operations within three months or such further period as the Minister may allow, of the date of issue of his licence;
(b) carry on prospecting operations in accordance with the programme of prospecting operations;
(c) notify the Minister of the discovery of the mineral to which his prospecting licence relates within a period of 30 days of such discovery;
(d) notify the Minister of the discovery of any mineral deposit of possible economic value within a period of 30 days of such discovery;
(e) backfill or otherwise make safe any excavation made during the course of his prospecting operations, to the reasonable satisfaction of the Director of Geological Survey;
(f) permanently preserve or otherwise make safe any borehole in the manner directed by the Director of Geological Survey and surrender to Government without compensation all such boreholes and any water rights in respect thereof on termination;
(g) unless the Director of Geological Survey otherwise stipulates, remove, within 60 days of the expiry or termination of his prospecting licence, any camp, temporary buildings or machinery erected or installed by him, and repair or otherwise make good any damage to the surface of the ground occasioned by such removal, to the reasonable satisfaction of the Director of Geological Survey;
(h) subject to the conditions of his prospecting licence and the provisions of section 22, expend on prospecting, in accordance with his prospecting programme, not less than such amount as may be specified in his prospecting licence; and
(i) submit to the Director of Geological Survey, at least quarterly, reports containing the information required under the licence and the Act both in digital and analogue form.
(2) The holder of a prospecting licence shall submit to the Director of Geological Survey not later than three months after the end of each year of the licence, an audited statement of expenditure directly incurred under the licence and any moneys required to be spent under the provisions of subsection (1)(h) and which are not so spent shall be a debt due to Government recoverable in a court of competent jurisdiction.
(3) The holder of a prospecting licence shall keep full and accurate records of his prospecting operations which shall show-
(a) boreholes drilled;
(b) strata penetrated, with detailed logs of such strata;
(c) minerals discovered;
(d) the results of any geochemical or geophysical analysis;
(e) the result of any analysis or identification of minerals removed under section 24;
(f) the geological interpretation of the records maintained under paragraphs (a) to (e) inclusive;
(g) the number of persons employed;
(h) any other prospecting work not listed above;
and shall supply, at least once in every three months, copies of such records to the Director of Geological Survey.
(4) Any person who fails to keep any record or information required to be kept under subsection (3) or who fails to supply any record to the Director of Geological Survey or who supplies any false or misleading record or information shall be guilty of an offence.
(1) The holder of a prospecting licence may, from time to time, notify the Minister of amendments he wishes to make to his programme of prospecting operations and such amendments shall, unless the Minister rejects the same within two months after being so notified, have effect after such period.
(2) The Minister may, on application being made to him by the holder of a prospecting licence, limit or suspend the obligation to carry on prospecting as required by section 21(1)(b), or to expend moneys as required by section 21(1)(h).
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