COTE D’IVOIRE - MINING REGULATION
Côte d’Ivoire, officially the Republic of Côte d’Ivoire, is a country in Western Africa, bordered by the Atlantic Ocean to the south, Ghana to the east, Liberia and Guinea to the west and Mali and Burkina Faso to the north. The country has faced long periods of instability following a coup d’état in 1999 and two subsequent civil wars from 2002-2007 and 2010-2011, which deterred foreign investment and slowed economic growth in the region for many years. While political instability and degrading infrastructure continue to pose economic problems, the country has experienced a recovery in recent years and is now considered to have a stable and growing economy.
The economy of Côte d’Ivoire is highly dependent on agriculture and it is the world’s largest producer and exporter of cocoa beans, as well as an important producer and exporter of coffee and palm oil, as such fluctuations in the price of such commodities can significantly impact on Côte d’Ivoire's economy.
The country’s natural resources include petroleum, natural gas, diamonds, manganese, iron ore, cobalt, bauxite, copper, gold, nickel and tantalum. Gold has been the primary focus of most foreign investment in the mineral sector.
PRINCIPAL LEGISLATION AND REGULATOR
The principal minerals legislation in Côte d’Ivoire is the new Mining Code (Loi no 2014-138 du 24 mars 2014 portant Code Minier), which replaced the previous 1995 Mining Code (Loi no. 95-553 du 17 juillet 1995). The new code aims to ensure adequate revenue for the state, profitability for private operators, socio-economic benefits for local communities, and enhanced environmental protection. The Council of Ministers adopted Decree No.2014-397 on the implementation of the new Mining Code on 25 June 2014.The relevant government bodies include the Ministry of Industry and Mines (since 2013) (Ministry); the Directorate-General of Mines and Geology (DGMG); the Ministry of Environment, Urban Sanitation and Sustainable Development; and the National Environmental Protection Agency (Agence Nationale de L’Environnement (ANDE)).
Article 3 of the Mining Code provides that all mineral substances in the soil, subsoil, territorial waters and exclusive economic zone on the continental shelf are property of the state. Article 5 provides that any person or legal entity, of Ivorian or foreign nationality, can conduct mining activities provided they have prior authorisation. Mining permit holders must create a corporation organised under Ivorian law whose exclusive purpose is to mine the deposit for which the permit was granted. The state retains 10% of the capital of the corporation for the duration of the life of the mine; this amount cannot be reduced through an increase in capital and the state may acquire up to 15% of the company at fair value. The Mining Code also encourages the participation of private Ivorian citizens in the capital of mining companies. The Mining Code includes specific provisions for particular substances, including diamonds (Kimberley Certification Process, to prevent trade in conflict diamonds), gold, radioactive substances and mineral waters.
GRANT AND FORMS OF MINERAL TITLE
The Mining Code provides for several types of mining rights, namely:
- Prospecting Authorisation: This authorisation from the Ministry confers the non-exclusive right to conduct prospecting for minerals. This does not confer any privilege for obtaining a mining title and does not confer the right to commercially dispose of any substances. The authorisation is valid for a maximum of one year, though it may be renewed under exceptional circumstances, and covers a maximum area of 2,000 km2. This authorisation cannot be assigned, transferred or leased.
- Exploration (or Research) Permit: An exploration permit confers the exclusive right, both surface and underground, to conduct mineral exploration. It also confers the exclusive right to request a Mining Permit at any time during the validity of the permit, provided the titleholder has fulfilled its obligations under the Mining Code, in the event of discovery of a mineral deposit(s) within the perimeter. The permit is valid for four years, renewable twice for three (3) year periods. An exceptional renewal of a further two years may be requested in order to finalise the feasibility study. The permit can cover an area between 1 km2 and 400 km2, which is decreased by one-fourth with each renewal unless the titleholder provides justification and makes a payment determined by decree. The permit holder can freely dispose of products extracted during exploration activities, provided the works are not of a commercial nature and the holder informs the DGMG and complies with the relevant tax laws regarding these samples. This permit is granted by decree to natural or legal persons under Ivorian law who fulfil the following criteria: at least two mining research projects in the previous ten years (research projects conducted by an associate in which the applicant owned at least 35% of the capital are included) or proof of 12 years of mining industry experience; a technical manager with at least seven years of professional mining research experience who has conducted or participated in the main phases of at least two mining research projects; and proof of sufficient financial capacity by the establishment of an escrow account in a leading financial institution in Côte d’Ivoire. The research permit is a personal, indivisible right, which cannot be leased, pledged or mortgaged.
- Mining Permit: The permit confers the exclusive right to exploit deposits within the perimeter, as well as the right to transport the extracted mineral substances, their concentrates or primary derivatives, as well as metals and alloys, to storage or processing, and dispose of them in domestic or foreign markets. The permit also authorises the establishment of treatment, packaging, processing, and refining facilities. The permit is an immovable, indivisible right that can be subject to mortgage after approval of the Minister.. It is granted for an initial period of up to 20 years, and is renewable for 10-year periods. This permit is accorded by decree of the Council of Ministers to exploration permit holders that demonstrate the existence of a deposit within the perimeter of the research permit through a feasibility study, provided the holder has respected its obligations under the Mining Code. Multiple Mining Permits may flow from a single Research Permit. Within six months of the issuance of the Mining Permit, the holder must provide proof of the availability of the following: engineering and geological miners with professional mining experience; a technical manager with at least seven years of experience and at least two prior research or mining projects; and an escrow account in a leading financial institution in Côte d’Ivoire. The titleholder must commence development works within one year from the issuance of the permit, and diligently continue the works. In the event of persistent adverse market conditions or force majeure, deferral or suspension of operations may be granted by order of the Minister at the request of the titleholder for a period of two years, renewable once for an additional year. Within 60 days of the issuance of a mining permit, the holder must sign a Mining Convention (convention minière) with the state, detailing the tax and customs obligations. The Mining Convention is valid for 12 years, renewable for 10-year periods, and is attached as an annex to the decree issuing the Mining Permit. Mining titles can be subject to revocation without compensation 60 days after providing notice for reasons such as the following: failure to provide proof of an escrow account within six months; use of child labour; failure to commence research or suspension of research or mining for more than six months; unauthorised transfer; or failure to uphold obligations related to environmental protection, site rehabilitation, community development.
Other authorisations are available for small scale operations, such as a semi-industrial mining authorisation and an Artisanal Mining Authorisation.
The Mining Code requires all mining title applicants (excluding artisanal) to submit a feasibility study, which includes the following: evaluation of the size and quality of the exploitable reserves; mining and construction plan; social and economic impact study; environmental impact study; financial projections; community development plan; and financing information. Mining title applicants must also submit an Environmental and Social Impact Study (EIES, in French), as well as a site rehabilitation and mine closure plan, which is subject to the approval of the DGMG and ANDE. Mining titleholders must open an escrow account in a leading Ivorian financial institution at the beginning of mining operations, which will be used to cover the costs related to the environmental management and mine closure plans. The Mining Code also requires adhesion to good governance principles, including the Principes de l’Equateur and the Conseil National ITIE (Extractive Industries Transparency Initiative) principles. Mining titleholders must issue ITIE reports.
The Mining Code details the relation between mining titleholders and surface rights holders. Legitimate occupants have a right to compensation. While the mere passage over the land does not entitle occupants to compensation if there is no damage, occupants are entitled to just compensation negotiated in the presence of competent administrative institutions if the repeated passage inconveniences, damages or disturbs the occupants. There are also provisions regarding compensation payable for execution of works inside the perimeter, and for arbitration before competent administrative institutions in the event of a dispute regarding the amount payable. Titleholders have the right to cut timber necessary for mining activities and use of water, subject to compensation, or potential fees or charges prescribed by law.
The Mining Code provides for community development, including an obligation for mining titleholders to respect, protect and promote human rights, and respect local populations and communities. Titleholders must have a community development plan in consultation with local communities and local and regional authorities, including precise objectives and an investment plan. The holder must establish a fund that is increased annually in order to fund socio-economic development projects for local communities; these figures are deductible from the tax on industrial and commercial profits. The mining authority organises a Local Mining Development Committee (comité de développement local minier) that is in charge of socio-economic development projects for the local communities.