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  • Population, mn: 77.3
  • GDP, US$bn: 36.7
  • GDP per capita, US$: 465.5
  • Inflation, CPI ave: 14.9
  • Budget Balance, % of GDP: -1.4
  • FX, LCY/US$: 964.4
  • Mining GVA, US$bn: 6.6
  • Mining Industry Value, US$bn: 4.0
Regulatory Risk Rating
27
0
100
Score: 27
Critical Risk
The DRC has proven to be a problematic jurisdiction in which to invest, as corruption is present and requires a very powerful and visible force to counter. Most of the risk is political, however, as the Mining Code itself does not offer a platform of expropriation - thus, problems that have arisen in relation to many companies, First Quantum being possibly the most notorious, have arisen through a combination of either skilful tactics or the rudimentary blunt edge of power in the President's Office. No Code, no matter how good, can protect against a government or its (formal or informal) agents that are determined to extract value from a project or economically expropriate its value. Corruption aside, the 2018 amendments to the Mining Code have created further challenges in what was already a highly challenging investment environment. The intention of the government is clear and one need only read the introductory text of the amendments to appreciate the primary motivation behind the changes. In the past, the DRC’s vast resource wealth has proved worthy of investment in spite of the many obstacles faced but one must wonder if the government has gone too far, tipping the balance so that the costs now outweigh the benefits!

NOTE THAT THE FOLLOWING ASSESSMENT HAS BEEN MADE ON THE BASIS OF THE MINING CODE 2002; THE MINING CODE AMENDMENTS 2018; AND THE MINING REGULATIONS 2003. NEW MINING REGULATIONS ARE PLANNED AS PART OF THE AMENDMENTS TO THE MINING CODE; NEW APPLICATIONS FOR MINING RIGHTS ARE SUSPENDED UNTIL THE REVISED REGULATIONS ARE ISSUED (ART. 335, MC). AT SUCH TIME OUR ANALYSIS WILL BE UPDATED.

Corruption Potential Index

Score: 15
Extremely High Corruption Potential

Corruption Risk Index

Score: 8
Extremely High Corruption Risk

Regulatory Risk Rating

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Environmental Overview Commentary plus sign

DEMOCRATIC REPUBLIC OF THE CONGO ENVIRONMENTAL REGULATION

GENERAL

The Democratic Republic of the Congo (DRC), located in central Africa, straddles the Equator and is the second largest country in Africa. The country has a narrow strip of land where the lower Congo River runs into the Atlantic Ocean, providing the country’s only outlet to the sea. The vast central basin is a low-lying plateau, while there are mountains in the east, and a dense tropical rainforest, which spreads throughout the central river basin and eastern highlands. The country has the greatest landmass of tropical rainforests in Africa, covering more than 100 million hectares.

The forests in the eastern sector are very diverse and are one of the few forest areas in Africa to have survived the Ice Age. About 45% of DRC is covered by primary forest, which provides a refuge for several large mammal species, driven to extinction in other African countries. Overall, the country is known to have more than 11,000 species of plants, 450 mammals, 1,150 birds, 300 reptiles, and 200 amphibians. Key environmental issues including poaching, water pollution, deforestation, and environmental damage from mineral mining.

PRINCIPAL LEGISLATION AND REGULATOR

From a general perspective the Law on Fundamental Environmental Protection Principles (Loi No. 11/009 du 09 Juillet 2011 portant Principes fondamentaux relatifs à la protection de l’environnement) (EP Law) emphasises the principle of sustainable development and public participation in decision-making. All development projects, including mining exploitation, are subject to an Environmental and Social Impact Assessment (ESIA) (Art. 21, EP Law). Industrial, commercial or agricultural installations whose exploitation presents a danger to health, safety, the environment, and conservation, or creates a nuisance, are classified according to the gravity of the anticipated danger or inconvenience (Art. 37, EP Law). Other relevant legislation includes the Conservation of Nature Law (Loi No. 14-003 du 11 Fevrier 2014 relative a la conservation de la nature), the  Forestry Code (2002) and the Land Law (Loi No. 73-021 du 20 Juillet 1973 portant Régime général des biens, régime foncier et immobilier et régime des sûretés, telle que modifiée et complétée par la Loi No. 80-008 du 18 juillet 1980). From the perspective of the mining industry, specific environmental requirements form a key part of the Mining Code 2002 (as amended in 2018) (MC) and the Mining Regulations 2003 (MR). As noted below, the MR are likely to be amended in the not too distant future and it is anticipated that additional social and environmental provisions will apply.  

Key administrative bodies and entities relevant to the environmental aspects of mining operations are the Environmental Agency (EA) and the Directorate for the Protection of the Mining Environment (Environmental Directorate), which are collectively responsible for defining and implementing the mining regulations related to environmental protection; overseeing the technical evaluation of the Mitigation and Rehabilitation Plan (MRP), the Environmental and Social Impact Assessment (ESIA, and the Social and Environmental Management Plan (SEMP); and offering an opinion to the Minister of Mines (Minister) on the granting of mineral rights.

EIA PROCESS AND OTHER PERMITS

Mining titleholders must seek to minimise the environmental impact of their operations; they are required to meet with local authorities to explain the nature, location, and schedule of mining works, and comply with municipal regulations and local customs. There is no environmental authorisation required for reconnaissance, but anyone undertaking mineral prospecting must comply with the code of conduct, as set out in the MR.

The 2018 amendments to the MC introduced the concept of an Environmental Certificate (EC), which is defined as an administrative document issued by the EA upon completion of the environmental and social appraisal attesting that the execution of the project and the operation of the facility comply with environmental and social protection principles (Art. 1(9), MC). Whilst holders of Exploration Licences will be issued with an EC, the 2018 amendments suggest that the authorisation is only a pre-requisite for a Mining Licence (see Art. 76, MC).

In the case of exploration, the EC will be issued based on a review of the MRP by the EA and the Environmental Directorate. Additional details on the requirements for the MRP will form part of the amendments to the MR, at which time this commentary will be updated.

Mining Licence holders will need to conduct an ESIA and submit the documentation, along with an SEMP, for approval prior to the granting of the licence (Art. 71, MC). The ESIA is described as “…a systematic process of identifying, predicting, evaluating and reducing the physical, ecological, aesthetic and social effects of a project […] and enabling an assessment of its direct or indirect consequences for the environment (Art. 1(19), MC). The SEMP must provide environmental specifications for the mining project and consist of a programme to implement and monitor the measures envisaged by the ESIA to eliminate, reduce and possibly compensate for the damaging environmental consequences of the mining project (Art. 1(41), MC). Pursuant to Article 204, MC, the ESIA must include a description of the ecosystem including flora and fauna, soil and topography, air quality, underground and surface water, and must also specify the aspects that may be qualitatively or quantitatively affected by the mining activity. The ESIA must also contain the measures planned for environmental protection, the elimination or reduction of pollution, and site rehabilitation, as well as the verification of the effectiveness of these measures (Art. 204, MC).

The EA and the National Fund for Promotion of Social Services, alongside the Environmental Directorate and, where applicable, any other State organisation which the project concerns, will examine the ESIA and SEMP, as well as the community development plan (Art. 42, MC). Summaries of the ESIA and SEMP must be published on the website of the Ministry of Mines within 15 days of receipt. Should the applicant have a website, it must also publish the documentation. Upon conclusion of the review the EA will, if the opinion is favourable, issue an EC. The opinion and the EC will be forward to the Minister (Art. 42, MC). The timeline for review of the ESIA and SEMP is six months (Art. 75, MC).

The Minister will take a final decision on the issuance of the EC and the subsequent granting of the Mining Licence (Art. 76, MC). Where the opinion on the EC is unfavourable, the Minister will reject the licence application (Art. 76, MC). At each extension of the Mining Licence, new ESIA and SEMP must be approved.

Licence holders are required to set aside funds for the rehabilitation of the site (Art. 258, MC) and provide a security to guarantee compliance with environmental obligations (Art. 204, MC). A community development fund must also be established (Art. 258, MC).

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Mining Overview Commentary plus sign

DEMOCRATIC REPUBLIC OF THE CONGO MINING REGULATION

GENERAL

The Democratic Republic of the Congo (DRC) has vast natural resource wealth and holds the world’s largest deposits of copper and cobalt. Article 9 of the Constitution provides that the State has permanent sovereignty over the soil, subsoil, water, forests, air spaces, rivers, lakes and sea and continental shelves. In addition, Article 3 of the Mining Code states that “deposits of mineral substances, including artificial deposits, underground water and geothermal deposits on surface or in the sub-soil or in water systems […] are the exclusive, inalienable and imprescriptible property of the State, based on his sovereignty over natural resources.” Widespread corruption and a lack of transparency, as well as substantial civil conflict and political instability, have impeded the development of the mining industry, which is the country’s greatest source of export income.

PRINCIPAL LEGISLATION AND REGULATOR

The primary minerals legislation in the DRC is the Mining Code 2002 (MC), which was substantially amended in 2018, and the Mining Regulations 2003 (MR), though new Mining Regulations are soon to be promulgated as part of the country’s ongoing reform of the regulatory framework. The text introducing the 2018 amendments states that reform of the MC was deemed necessary on the basis that the boom in the country’s mining sector failed to generate substantial revenues for the State’s economic and social development. In attempting to rectify this apparent issue, the government has enacted a complex set of new provisions which are likely to have a major impact on the mining sector.

The main bodies responsible for the administration of the mining industry are as follows: the President of the Republic, who exercises his powers by Decree and who has the ability to enact mining regulations in order to implement the Mining Code (Art. 9, MC); the Minister of Mines (Minister), who has jurisdiction over the granting, refusal, and cancellation of mining rights and who also exercises his powers by Decree (Art. 10, MC); the Mining Registry (Cadastre Minier), a public entity which carries out administrative proceedings concerning the application for, and registration of, mining rights and is supervised by the Minister of Mines (Art. 12, MC); the Directorate of Mines, responsible for health and safety and various administrative and monitoring tasks concerning applications and existing projects (Art. 14, MC); the Directorate for the Protection of the Mining Environment (Environmental Directorate), which, alongside the Environmental Agency (EA), defines and implements the mining regulations in relation to environmental protection and oversees the technical evaluation of certain processes and documentation, including the Mitigation and Rehabilitation Plan (MRP), the Environmental and Social Impact Assessment (ESIA), and the Social and Environmental Management Plan (SEMP) (Art. 15, MC); and the various provincial Governors, who are responsible for developing provincial level policies and overseeing the implementation of such policies (Art. 11, MC).

GRANT AND FORMS OF MINERAL TITLE

Mineral rights may be granted by way of application, save in certain pre-defined situations when a tender process may be used (Art. 33). Only legal persons, foreign or domestic, are able to obtain mineral rights (Art. 23, MC).  Applicants for exploration and mining rights will need to provide certain documentation including a written undertaking to declare in the DRC profits and income made, as well as a tax certificate, character reference and criminal record check (Art. 23, MC).

The following mineral rights are provided for:

 

  • Prospecting Certificate: To conduct mineral prospecting, persons must make a preliminary declaration to the Mining Registry, which is responsible for the issuance of a Prospecting Certificate. Within five days of the receipt of the declaration, the Mining Registry issues a Prospecting Certificate, which is valid for the range of an administrative territorial unit and for a duration of two years. While the Prospective Certificate cannot be renewed, an individual can obtain successive prospecting certificates for the same plot of land. If the Mining Registry fails to issue a Prospecting Certificate within the five-day time limit, the receipt for the declaration of prospecting is deemed a Prospecting Certificate. The Prospecting Certificate is not a mineral or mining right, is not exclusive, and does not confer any priority for obtaining mining or quarry rights. Any individual may freely carry out prospecting operations, which do not affect the local topography, within the area indicated on its Prospecting Certificate, including taking samples for analysis (see MR for quantity and volume applicable here).

 

  • Exploration Licence: Grants the holder the exclusive right to carry out exploration work for mineral substances covered by the licence, as well as associated substances providing an application is made (Art. 50, MC). Applicants for licences must satisfy a variety of criteria, including financial and technical competence requirements (Art. 35, MC; see also Art. 58, MC). Licences are granted for a period of five years, renewable only once for a further five-year period (Art. 52, MC). Applications for renewal must be made at least three months and no more than six months before the expiry of the existing term (Art. 62, MC); land shedding requirements shall apply (Art. 62, MC). Licences holders will need to obtain approval of an MRP prior to the commencement of works (Art. 50, MC). Work must begin with a period of one year (Art. 197, MC). The licence holder is entitled to obtain a Mining Licence providing a discovery of an economically viable deposit is made (Art. 63, MC). Licences may be transferred, in whole or in part, though approval must be obtained; registration fees will apply (Art. 185, MC).

 

  • Mining Licence: Grants the holder the exclusive right to carry out exploration, development, construction and mining works in connection with the mineral substances for which the permit was granted, and any associated substances in the event that the applicant applies for an extension (Art. 64, MC). Extensive application criteria apply; a feasibility study, local development plan, finance plan, ESIA and SEMP must all be provided (Art. 69, MC). Certain conditions must also be met, including the transfer of a 10% interest to the State (free of charge and non-dilutable), that 10% of the share capital be held by Congolese persons and that the applicant provide share capital to the amount of 40% of the value of the deposit (see Art. 71, MC for full details). The Licence is valid for up to 25 years, with renewals of up to 15 years possible (Art. 67, MC). Applications for renewal must be made at least one year and no more than five years before the expiry of the existing term (Art. 80, MC). Note that in respect of each renewal period 5% of the shares or stocks in the share capital must be transferred to the State (Art. 80, MC). Licences may be transferred, in whole or in part, though approval must be obtained; registration fees will apply (Art. 185, MC).

 

Other mining rights available under the MC include quarry authorisations (temporary and permanent), small-scale mining licences and artisanal mining cards.  

DEVELOPMENT CONSIDERATIONS

Both Exploration and Mining Licence holders will need to obtain an Environmental Certificate (Art. 42, MC). In the case of exploration, this will be granted following the submission and approval of the MRP. Applicants for a Mining Licence must submit and obtain approval of an ESIA and an SEMP (Art. 71, MC) in order to obtain the Environmental Certificate.

Article 281 of the Mining Code provides for compensation for the occupants of the land, which can be enforced through arbitration or settlement or through court proceedings. If any occupation of land deprives the rightful owners of enjoyment of the surface rights, or any modification renders the land unfit for cultivation, the rightful surface rights holders can request fair compensation from the licence holder. Fair compensation corresponds either to the rent or the value of the land at the time of occupation plus 50%. Amicable settlement can be made through compromise, settlement, arbitration, or before an Officer of the Judiciary Police or an Officer of the Public Ministry. In the absence of an amicable settlement within three months, compensation is to be determined by a competent court.

The 2018 amendments have introduced a vast range of provisions that will have a major impact on projects and operations in the DRC. For a detailed breakdown please see MineHutte’s full analysis. Notable tax provisions include a 50% tax on super profits; an ‘exceptional tax’ on remuneration of expatriate staff; and registration fees for mortgages. Share capital requirements apply, as do specific financing obligations. Processing must be carried out within the DRC, unless a special relief (for a period of one-year only) is granted by the government. Sub-contracting laws apply which essentially restrict operators to the use of Congolese entities. Numerous corporate social responsibility requirements exist, including that holders contribute towards the socio-economic and industrial development projects of local communities; that holders develop and obtain approval of social responsibility specifications; and that 0.3% of turnover be set aside as a community fund (Art. 285, MC);

Stabilisation agreements may be granted for a period of 5 years (Art. 276, MC).

ENVIRONMENTAL REGULATIONS

See the Democratic Republic of the Congo - Environmental Overview Commentary.

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