Girones et a.l - Mining Rights Cadastre: Promoting Transparent Access to Mineral Resources

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Transparency and Accountability

Policy, Legal and Contractual Framework

Sector Organization and Institutions

Fiscal Design and Administration

Revenue Management and Distribution

Sustainable Development

Girones, et al., “Mining Rights Cadastre: Promoting Transparent Access to Mineral Resources”, (Washington D.C.: Oil, Gas, Mining Policy Division, World Bank, 2009)

The document takes stock of mining cadastre reforms in the past 10 to 15 years. The principle aim is to set out trends and practices currently being utilised in managing mineral resources, through Mineral Rights Cadastres (MRC’s), the central public institution that manages mining titles in a country. The authors introduce legal, regulatory, and institutional frameworks coupled with transparent procedures designed to aid in the management of a country's minerals sector in order to make them attractive to investors and add value to the development of the national economy.

In the view of the authors, any effort to spearhead a functioning mining sector should begin with a legal framework which concretizes key policies intended for the sector. Some of those core principles ingrained in national legislation should ideally guarantee the right of the state with regards to ownership of mineral resources and outline a clearly stated licensing regime. The authors review the pros and cons of alternative approaches to granting mineral rights, such as the first-come, first-served method as opposed to the auctioning method; mainly prevalent in petroleum licensing, the first-come, first-served principle is touted for introducing transparency into the granting process but may have the added consequence of creating “inadequate title holders". Furthermore, a legal framework should clearly distinguish the separation of mineral rights from general land rights (as well as conditions precedent to gaining access to such rights), elucidate geographic and time implications of ownership of mineral rights, guarantee a high degree of security of tenure for the holder of the mineral right (for example, one method might be to grant a single and unified concession for exploration and exploitation), and, finally, provide a transparency framework for the management of information.

Additionally, institutional frameworks need to be established and typically they should involve the creation of Public Mineral Institutions (PMIs), umbrella establishments which cover functions of the Ministry, the Mineral Rights Cadastre, a Geological Survey office, and a Mining Inspectorate. The document covers concepts and principles for mineral rights management through these key institutions, including a discussion of the conceptual basis as well as the main principles that should be adhered to in order to ensure effective management and MRC functioning. The authors lay down some specific duties and functions necessary for the successful implementation of the various administrations; they couple this with characteristics and required functionalities of each institution, alternatives for mineral rights management, and pros and cons of alternate approaches. They also emphasize the need to be cautious of local conditions, this includes the realization that country-specific circumstances must be taken into account when designing and administering PMI’s, for example, larger countries with semi-autonomous provinces need further study on how reforms may be undertaken to coordinate cadastre activities in the provinces with that of the central cadastre, such as was achieved in Argentina.

The authors conclude with case studies of mineral sector reform experiences in eight countries, namely: Algeria, Argentina, Democratic Republic of the Congo, Ghana, Madagascar, Mauritania, Mongolia and Zambia. Each case gives a brief historical background of the mining sector reform, issues associated with the legal frameworks, approaches to reform, and the results of the reform processes, including suggestions of areas for further development. It therefore guides law and policy-makers by giving examples of good practices. The country-specific challenges are particularly geared towards policy and law-makers who might jump at specific areas for addressing their own internal challenges.

 

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