Local and indigenous communities’ land rights and interests in the new mining code : some progress.
The issue of preserving the land rights and interests of local populations deserves to be raised, in view of the current context marked by an ever-increasing demand for land by the mining industry and the significant increase in the number of mining permits awarded. The granting of mining permits or quarrying authorizations is accompanied by the transfer of vast tracts of land, under which the mining substances are found or on which the quarrying substances are located. To date, no less than 81,656.99 km² of land have been made available to holders of exploration and mining permits, equivalent to 17.17% of the national territory[1].
The place of community land rights and interests also raises questions with regard to the new legislation, drawn up in a current context of the search for non-oil financing to support growth compatible with the nation’s development needs.
From the outset, when reading the new mining code, the issue of land seems to be better dealt with than in the past. Access to land for mining and quarrying activities is better defined in the new mining code. The status of the land influences the way it is allocated for mining and quarrying activities such as semi-mechanized artisanal mining, semi-mechanized artisanal and industrial quarrying, and the exploitation of spring, mineral and thermo-mineral waters and geothermal deposits. For reconnaissance, research, artisanal mining, artisanal quarrying and domestic quarrying, temporary rather than long-term occupation permits are issued to operators.
In addition, areas used by communities, such as around built-up properties, villages, groups of dwellings, religious buildings, burial grounds and places considered sacred, are now protected. Mining and quarrying operations may not be undertaken within five hundred metres of these areas without the owner’s consent. This seems to demonstrate an awareness on the part of the legislator, beyond the resource exploited, of the importance of land for communities.
As for spin-offs, the new mining code, like the old one, provides for compensation for victims of expropriation in the public interest. Compensation for damage caused by works not declared to be in the public interest concerns the landowner as much as a member of a customary community or the customary community itself. The legislator in a way reiterates the tacit recognition and protection of customary land rights of local populations, in particular, those bordering mining projects.
Notwithstanding a certain advance on the protection of local communities’ land rights in the new mining code, it is important not to lose sight of the fact that the new code, like the old one, devolves ownership of mineral substances contained in the soil and subsoil of the national territory to the State. The granting of mining permits and quarrying authorizations mortgages land beneath or on which the mineral resource is found, depriving populations of productive potential.
Furthermore, the new legislation reiterates the principle of the availability of all land (surface and subsoil), including the water that extends over said land, for the award of mining titles. This principle which had already been enshrined in la loi n°001-2001 du 16 avril 2001 (article 4), portant code minier translates into making available to the operator not only, the surface and subsoil where the mineral resource is located, but also, other resources necessary for exploitation such as timber, free waterfalls and groundwater. Although the mining operator is required to comply with the relevant legislation, in particular by paying compensation and the taxes and royalties stipulated by the legislation and regulations in force, is the compensation commensurate with the losses suffered by the communities? Do they take into account the replacement value of endangered uses for populations ?
In addition, there is a lack of legal clarity regarding the economic spin-offs linked to the company’s presence on the land, for the benefit of the communities. These include surface royalties when a concession or lease is granted on land in the national domain. Under the new Mining Code, holders of mining and quarrying permits are required to pay the relevant fees to the relevant local land registry. However, the legislator is silent as to the share of this sum to be paid annually to local communities by holders of mining titles, mining operations and quarrying permits in return for the surface area occupied by the activity they carry out. However, in the land sector, the relevant legislation stipulates that a share of this sum, known as the “redevance foncière”, must be paid to village communities bordering agro-industrial projects.
While the new mining code makes some progress in ensuring that the land rights and interests of local communities are taken into account, the fact that mining projects are taking up large tracts of land is still a cause for concern, given the damaging consequences for communities that derisory indemnities and meagre compensation cannot remedy.
[1] Etude de base sur la Transparence et la Participation des communes et Communautés dans le processus d’attribution et de Gestion des Concessions foncières et minières (RELUFA, CANADEL. MAY 2016).
