NIGER MINING REGULATION
Niger is one of the poorest countries in the world, with agriculture providing livelihood for approximately 90% of the population. Niger shares a common currency (CFA franc) and a common central bank (Central Bank of West African States) with the seven other members of the West African Monetary Union. The national budget is heavily dependent on foreign aid and debt relief. Exports of minerals account for approximately 40% of total exports and the mineral sector accounts for approximately 3% of the GDP. Niger produces cement, coal, gold, gypsum, limestone, salt, silver, tin and uranium. It also has iron ore, phosphate and molybdenum resources. In addition, Niger has some of the world’s largest uranium deposits.
Future growth is possible through exploitation of gold, oil, coal and other mineral resources, with oil production having commenced in 2012. One of the major players in the uranium mining industry is French conglomerate Areva, which has three concessions in Arlit, Niger, all of which are joint ventures with the Niger government. The ventures include two mines that provide almost 10% of global uranium production annually. The government’s recent attempts to renegotiate extraction rights contracts may impact the mining sector. Further, investment may be hampered by security concerns due to the spill over from conflicts in Libya and Mali and extremist violence in Nigeria. Niger joined the Extractive Industry Transparency Initiative (EITI) in 2005, and the Fraser Institute Policy Perception Index ranked Niger 103rd out of 109 countries in its 2015 report.
PRINCIPAL LEGISLATION AND REGULATOR
The Constitution of Niger includes a section on the exploitation and management of natural resources and the subsoil. Article 148 of the Constitution of Niger states that the country’s natural resources and the subsoil are the property of the people of Niger, and under Article 149 the State exercises sovereignty over these resources. Exploitation of these resources, and of the subsoil, should be conducted transparently and take into account environmental protection, protection of the country’s cultural heritage, and protection of the interests of present and future generations. The Constitution also states that contracts for prospecting, exploration or exploitation of natural resources and the subsoil, including the revenue paid to the State, will be published in their entirety in the Journal Officiel of Niger.
The principal minerals legislation in Niger is the Mining Law of 1993 (“Mining Code”), as amended by Ordonnance no. 99-48 du 5 Novembre 1999 and Loi no. 2006-26 du 9 août 2006 portant modification de l’ordonnance no. 93-16 du 2 mars 1993 portant loi minière complété par l’ordonnance no. 99-48 du 5 novembre 1999. The law is supplemented by the Application Decree (Décret no. 2006-265/PRN/MM/E du 18 août 2006 fixant les modalités d’application de la loi minière), which provides details regarding the application process and requirements for each mining title, and Arrêté no. 00041/MME/DM du 2 mai 2007 portant application de l’article 58 de l’ordonnance 93-16 du 2 mars 1993 portant loi minière, which provides additional details regarding transfer of mining titles.
The Mining Code reiterates that mineral deposits in the soil or subsoil of the territory of Niger belong to the State. The Application Decree requires all mining title applicants to elect domicile in Niger. The exploration permit and exploitation permit are subject to a Mining Convention (convention minière), negotiated between the applicant and the Minister in charge of mines, which specifies the rights and obligations of the parties regarding the legal, financial, tax, business, administrative, customs and social aspects of the mining operations. The Mining Convention is signed by the Minister in charge of mines and the applicant, approved by decree of the Council of Ministers and cannot be modified except by mutual consent of the parties. The Mining Convention covers the period of exploration and the first period of validity of the exploitation permit, and has a maximum duration of 20 years. The document is renegotiated upon each renewal of the exploitation permit; a model Mining Convention is provided in the Application Decree.
The Application Decree requires that exploitation permit applications contain an environmental impact study (EIS) including an environment protection program and a site rehabilitation plan, as well as an Environmental Compliance Certificate. The mining industry is within the purview of the Ministry of Mines and Industrial Development. Following revisions of the Mining Code in 2006, the National Mine Research Office (ONAREM) was replaced by the Geological and Mining Research Centre and the Mining Company of Niger (SOPAMIN), which holds the State’s shares in existing uranium companies and engages in commercial transactions.
GRANT AND FORMS OF MINERAL TITLE
The Mining Code provides for the following mining titles:
- Prospecting Authorization: This title grants the right to conduct prospecting throughout the perimeter on a non-exclusive basis. The authorization is granted by the Director of Mines and confers a right of pre-emption on the area for the duration of the authorization. The authorization is valid for one year and renewable indefinitely for one-year periods, provided the titleholder has upheld its obligations under the Mining Code.
- Exploration Permit: This title confers the exclusive right to conduct exploration, for the minerals for which it was granted, within the relevant perimeter (not to exceed 500 km2) and to freely dispose of the extracted products. The permit is granted by the Minister responsible for mines, on the recommendation of the Director of Mines, to a petitioner who has presented an application and has the necessary technical and financial capacity. The permit is valid for three years, renewable twice for three-year periods, with the possibility of an additional extension of no more than one year. Each renewal is as of right, provided the titleholder has upheld its obligations under the Mining Code and the Mining Convention. The surface area of the permit is decreased by at least half for each renewal. The existence of an exploration permit prevents the granting of other mining titles for the same perimeter, though exploration permits for quarry materials or liquid or gas hydrocarbons may be granted, provided the activities do not interfere with the mining exploration. In the event of the discovery of marginal deposits within the perimeter, the Minister responsible for mines can extend the validity of the permit, until the economic conditions are favourable, for the exploitation of these deposits. The exploration permit is a movable, indivisible right and cannot be mortgaged. It can be assigned, transferred and leased with the approval of the Minister responsible for mines.
- Exploitation Permit: Exploitation permits are divided into large- or small-scale permits; the size is a function of certain parameters including: available reserves; level of investment; production capacity; and degree of mechanisation. Exploitation permits confer the exclusive right to conduct prospecting, exploration and mining work and to freely dispose of the mineral substances. The titleholder has the right to extend the title to include other substances. The exploitation permit is a divisible real property right that cannot be mortgaged. The permit can be assigned or transferred with the approval of the Minister responsible for mines, but cannot be leased.
- Small-scale Exploitation Permits are granted by Arrêté of the Minister responsible for mines, at the proposal of the Director of Mines, to exploration permit holders who have fulfilled their obligations under the Mining Code and the Mining Convention, presented an application, and provided proof of the existence of a commercially exploitable deposit within the perimeter. The permit is valid for five years and renewable for five-year periods until the exhaustion of the deposit.
- Large-scale Exploitation Permits are valid for ten years and renewable for five-year periods until the exhaustion of the deposit. In the event of very large projects, Loi no. 2008-30 du 3 juillet 2008 portant Avantages dérogatoires pour les investissements dans les grands projets miniers stipulates that the exploitation permit can be granted for a period of up to 20 years, renewable for 10 year periods.
- Artisanal Exploitation Authorization: This authorization confers the right to conduct artisanal exploitation within the perimeter. This is an indivisible right that cannot be mortgaged, transferred or leased. The authorization is valid for two years and is renewable as many times as necessary, provided the titleholder has upheld its obligations under the Mining Code. An individual card is delivered to each artisanal miner belonging to a cooperative and is valid for one year.
Mining titles are always granted subject to existing rights. Any attempts to assign agreements or transfer any rights or obligations, in whole or in part, are be subject to the prior approval of the Minister responsible for mines. Such actions will be allowed if the transfer does not prejudice national interests and is issued by a decree of the Council of Ministers.
Mining titles can be withdrawn for the following reasons: delay or suspension of activities for more than one year (exploration) or two years (exploitation) without legitimate motive; if a feasibility study demonstrated the existence of a commercially exploitable deposit within the exploration permit perimeter and no exploitation permit was requested for more than one year; violations of the Mining Code; or any activity for which the mining title can be declined. Revocation cannot take place without appropriate notice which is set at: one month for a prospecting authorization; two months for an exploration permit; three months for an exploitation permit. Mining titles may be forfeited for Mining Code violations including the following: noncompliance with hygiene and safety rules; obstruction of administrative supervision and technical control by engineers and agents of the Mines Directorate; non-payment of duties and taxes or their associated penalties in the event of late payment; noncompliance with environmental obligations; and noncompliance with contractual commitments. Forfeiture can only be pronounced after notice has been issued twice, with an interval of two months between each notice, with no effect.
The Application Decree requires that exploitation permit applicants submit an EIS, which includes an environment protection program and a site rehabilitation plan, as well as an Environmental Compliance Certificate. The environmental impact assessment process is overseen by the Environmental Impact Assessment Bureau (Bureau d’Evaluation Environnementale et des Etudes d’Impact (BEEEI), which was established by Décret no. 2000-269. The activities subject to an EIS are listed in Décret no. 2000-298, while the EIS administrative procedures are established by Décret 2000-397. Projects must receive an Environmental Compliance Certificate.
Furthermore, as much of the mining industry in Niger is focused on uranium, there are additional protections regarding radioactive material. These include Loi no. 98-011 du 7 mai 1998 portant création d’un établissement public à caractère administrative dénommé “Centre National de Radioprotection” as modified by Loi no. 2006-18 du 21 juin 2006 and Loi no. 2006-17 portant sûreté et sécurité nucléaires et protection contre les dangers des rayonnements ionisants and Décret no. 2007-532/PRN/MSP du 13 décembre 2007 fixant les modalités d’application de la loi no. 2006-17 and Décret no. 2007-531/PRN/MSP portant approbation des Statuts du Centre National de Radioprotection (CNRP).
Mining activities must be conducted in a manner that ensures the rational exploitation of natural resources and the protection of the environment, in compliance with relevant environmental legislation. Companies must conduct their work using the proven mining industry techniques and take proper environmental, waste management and water and forest conservation measures. The titleholder must indemnify the State or any other third party for any damages or prejudice caused by the titleholder. Mining titleholders can construct the necessary facilities for mining exploitation and establish conditioning, treatment and refining facilities in Niger. Mining installations cannot be expropriated by the State except in exceptional circumstances with payment of a just compensation, established by an administrative tribunal or arbitral tribunal, and paid to the exploitation permit holder within the established timeframe.
The surface landowner can open quarries for mineral substances that are not mining substances with the proper authorization. The existence of an exploration permit or exploitation permit is not an obstacle to execution of public works within the perimeter and the titleholder only has a right to compensation for any expenditures that are rendered useless by the abovementioned works. The mining titleholder is authorized, by joint order of the Minister in charge of mines and the Minister in charge of lands, to occupy the territory necessary to conduct its exploration or exploitation activities, both inside and outside the perimeter of the permit. Further, a joint order of the Minister in charge of environment and the Minister in charge of mines, authorizes the mining titleholder to cut wood necessary for its work, use water that is not reserved for other purposes, and to execute necessary works both inside and outside the perimeter.
The installations can be designated a public utility under the conditions foreseen in the relevant expropriation legislation for the public interest, under special conditions or additional complementary obligations which may be imposed on the titleholder, allowing for expropriation of surface land. The legislation governing expropriation for the public interest includes Loi no. 61-37 du 24 novembre 1961 réglementant l’expropriation pour cause d’utilité publique et l’occupation temporaire modifiée et complétée par la loi no. 2008-37 du 10 juillet 2008 and Décret no. 2009-224 du 12 août 2009 fixant les modalités d’application des dispositions particulières de la loi no. 61-37. Further, in the event that surface land occupation deprives the owner or titleholder of its customary right of land tenure for more than one year, or if the land is no longer fit for cultivation, the owner or customary land right holder may require the mining titleholder to acquire the land. The mining titleholder is also obligated to repair any damage caused by its works to the surface property.
Mining titleholders must conduct their activities according to the relevant health and safety regulations in order to guarantee the health and safety of their employees and of third parties. The engineers and agents of the Mine Directorate are in charge of the administrative and technical monitoring of the exploration and exploitation works. Mining titleholders must accord preference to Nigerien companies for all construction, supply and service contracts, where price, quantity, quality, and delivery are equivalent. Titleholders must also prioritize the hiring of Nigerien personnel and conduct activities in such a way as to advance the transfer of competences to benefit Nigerien companies and personnel.
Administrative tribunals in the relevant jurisdiction have the competency to hear all disputes concerning administrative acts taken under the Mining Code, except as provided in the sections governing relations with surface rights holders. In cases where disputes between individuals concerning encroachments on perimeter permits are brought before the civil court or arbitration tribunals, reports from the Department of Mines are considered expert reports.
See Niger Environmental Regulation.