The Moroccan Government, concerned to boost its mining sector, which represents 10% of its gross domestic product and employs around 40,000 people, has decided to modernise the Dahir dated 16 April 1951 enacting the mining code (1951 Mining Code),1 which is now seen as somewhat obsolete. The Government hopes that this reform will promote the potential of its mining sector and attract more investors to the sector.
The proposed reform is set out in the draft bill No. 33-13 relating to mines (Bill 33-13) which was approved by the Moroccan Council of Government on 17 July 2014.
Before becoming a law, Bill 33-13 must be approved by both chambers of the Parliament (the House of Representatives and the House of Councillors) and then enacted by the King through a decree known as a Dahir.
The House of Representatives adopted the bill on 4th February 2015. Next steps will therefore be a vote of the House of Councillors and then the enactment by the King through a Dahir.
The extension of the scope of the mining title to all minerals
Under Bill 33-13 a mining title will now be granted for all categories of mineral substances that can be used for industrial purposes and may exist on the surface or at depth in the relevant area with the exception of construction materials such as sand which continue to be governed by the laws relating to quarries. The new law will apply to phosphates (the most significant mined mineral in Morocco) and oil shale and oil sands.
This is a major change compared to the 1951 Mining Code which provides for a mining title only to be extended to one of the eight categories of mineral substances expressly mentioned in it. Under the 1951 Mining Code, different mining rights can be granted over the same area for different categories of minerals.
Reorganisation of the types of mining titles available
Under Bill 33-13, three different types of mining titles can be awarded. Two of these are new: the 'authorisation for exploration' (autorisation d'exploration) and the 'operating licence' (licence d'exploitation). The 'research permit' has been maintained whilst 'operating permits' (permis d'exploitation) and 'mining concessions' (concessions de mine) can no longer be awarded.
Authorisation for exploration (autorisation d'exploration)
The holder of this authorisation has the exclusive right to 'explore' within the relevant area. This kind of authorisation seems to be covering reconnaissance over large areas. It would appear that more in depth research for minerals needs to be covered by a research permit (see below). The authorisation for exploration is subject to certain conditions including the following:
- the holder of an authorisation for exploration must be a company,
- the authorisation for exploration confers on its holder the exclusive right to explore (exploration) for certain minerals within the related area,
- the authorisation for exploration should cover a continuous area,
- the holder of an authorisation for exploration will have the exclusive right to obtain a research permit over the relevant area and for all mining products provided that it has submitted its application before the authorisation for exploration expires,
- the authorisation for exploration may be granted over areas already covered by a research permit or an operating licence in which case the rights of the holders of the research permit or operating licence(s) prevail,
- the area covered by the authorisation for exploration may not be less than 100 square kilometres and may not exceed 600 square kilometres,
- the granting of such authorisation is subject to the prior conclusion of a mining agreement with the State setting out the nature of the work envisaged, the technical means to be employed and any investment forecast must be entered into with with the administration. no model form is attached,
- the authorisation for exploration will be granted for a two-year period and may only be renewed once for an extra year, if it appears that additional exploration is required based on any results obtained and programmed investment,
- it is not possible for one holder to hold more than four authorisations for exploration at the same time,
- exploration works must begin within three months from the granting of the title.
The main advantage of this title is clearly to enable investors to carry out reconnaissance programs over large areas.
Research permit (permis de recherche)
The Bill does not bring any major changes with respect to the research permit: it will still be granted for three years and renewable once for a four-year period, subject to the realisation of the minimum work program and to incurring the minimum expenditure during the initial period and approval of further works and expenditure for the renewal period.
The Bill authorises the holder of several adjacent research permits to request that they be merged together to be covered by the same permit, subject to the requirement that it must submit a new work and investment program.
Operating licence (licence d'exploitation)
This title is to be granted for ten years and renewable for successive periods of ten years until reserves are exhausted. This contrasts with the 1951 Mining Code under which, the operating permit is only granted for a four year period, renewable for a further three four- year periods. Under the new law, the holder of the mining operating licence will have to be a Moroccan legal entity (it should be noted that this condition of nationality is not required for the other two mining titles). However, there is no reference to restrictions on the Moroccan legal entity having foreign shareholders.
A mining operating licence can be requested by the holder of one or several contiguous research permits and can only be granted to the holder which has demonstrated the existence of one or several deposits in the area covered by its research permit(s).
The introduction of new authorisations
Authorisation for artisanal mining for waste rocks (haldes) and waste tips (terrils)
The holder of this authorisation will be entitled to enrich and to recover waste rocks and tips located in the area covered by the authorisation. Such authorisation cannot be granted over areas covered by a mining title. The authorisation will be granted for a maximum duration of 5 years, renewable for the same period, and will apply to an area which shall not exceed 1 square kilometre.
Any authorisation cannot be the subject of an assignment.
Research permits for cavities
For operations aiming to discover cavities to be used for the storage of gas, oil and chemical products, a research permit will be granted for a three year period, renewable once for a two-year period.
The operating licence for cavities
The exploitation of cavities will include any operation relating to the creation, development of their sites, storage and extraction of stored products, as well as the construction of underground access ways.
We understand that the length and perimeter of this title will be set out in the regulatory act which grants it.
Introduction of environmental obligations for the holder of mining permits
Bill 33-13 introduces a general principle according to which any mining operations must be carried out in accordance with the regulations currently in force regarding the preservation of the environment.
The holder of an operation licence will have to produce an environmental impact assessment as well as an abandonment plan. Further details of this process are to be included in the implementation decree.
Status of mining titles granted under the 1951 Mining Code
As set out above, 'mining concessions' can no longer be granted under the Bill 33-13. Bill 33-13 provides that mining concessions granted under the 1951 Mining Code and still valid on the day that the Bill 33-13 comes into force will remain governed by the legal provisions in force at the date of their granting, but cannot be renewed as mining concessions. Consequently, one year before the expiry of the mining concession, the holder will have to submit an application for an operating licence to cover the mineral deposit. Failure to do this will mean that the concession is revoked and the relevant area falls back into the public domain.
Holders of research permits and operating permits (permis de recherche and permis d'exploitation) awarded under the 1951 Mining Code shall within the year after the entry into force of Bill 33-13 apply for the renewal of their research permit or their conversion into an operating licence. If the holder fails to do this within the time period, the relevant permit will be revoked and existing rights over the area will be lost.
From the entry into force of Bill 33-13, mining concessions, research permits and operating permits in force and regularised will be extended to all mining products, with the exception of mining products explored or operated through a mining concession, research permit or operating permits, still in force and granted before the entry into force of the Bill 33-13.
We assume that once adopted, the Bill 33-13 will be more than likely be followed by the adoption of a implementing decree which will clarify some of the more unclear points, such as the process for filing the environmental impact assessment and abandonment plan, the documents and information that shall be attached to the application and renewal of a mining title and how mining titles and customary rights will coexist in the same area.