1.― The purpose of granting of a Mining Permit, a Small Mine Exploitation License, and Exploitation License for Tailings or Authorization for Permanent Quarry Exploitation, collectively ref erred to (« mining and quarry rights ») is principally to grant to their titleholders the right to mine natural or artif icial deposits located above or below the concerned mining perimeter. Theses mining and quarry rights also conf er to their titleholders the right to construct, within the mining or quarry perimeter[1] (« perimeters »), facilities and infrastructures for mining operation, other industries relating to the mining activity of the titleholders, including facilities and social-housing facilities[2]. Therefore, one question should be raised and resolved: who is the owner of the natural and artificial deposits as well as the facilities and constructions built in the perimeters when the mining and quarry right are terminated? The answer to this question which derives from the philosophy of the mining law will appear from the definition of ownership of mines in the Democratic Republic of the Congo (« DRC ») (I) and from the consequences of the termination of mining and quarry rights on mining ownership (II).

I. Ownership of mines in the DRC

2.― Under article 1.29, the legislator defines mine as « any deposit or artificial deposit of mineral substances classified as mines, which can be exploited by means of open mining or underground mining, and/or any plant for the processing or transformation of the products of such exploitation located within the Perimeter of the mine, including the installations, movable equipment and fixtures used in the exploitation process ».

3.― On the basis of this definition, we have to note that the word mine concerns first the natural and artif icial mining deposit. Secondly, processing and transformation plants, including facilities, movable equipment and fixtures used in the exploitation process, and any industries relating to mining activity of the titleholder, among which residential facilities and other social-housing facilities. On the basis of this note, it would be expedient to define the owner of natural and artificial deposits (I.1) and owner of mining facilities, infrastructures and other industries built in the perimeter (I.2).

I.1. Ownership on natural and artificial deposits

4.― To accurately def ine the ownership on natural and artificial deposits in the perimeter covered by a mining and quarry right, it would be advisable to understand the meaning of natural and artificial deposit. Indeed, natural deposit means any natural mineral deposit, in other words, any anomalous natural content of mineral substances on the surface or at a depth of the earth’s crust, workable on a prof it basis in accordance with the existing economic conditions. The artif icial deposit means any artif icial mineral deposit, in other words, any artif icial concentration of mineral substances from the exploitation of mines and/or tailings resulting from the mineralurgical and metallurgical processing, workable on a profit basis in accordance with the existing economic conditions.

5.Natural or artif icial mineral deposits, which become natural or artificial deposits when they may be mined on a profit basis in accordance with the existing economic conditions are property of the State in accordance with article 3, paragraph 1 and article 8 of the Mining Code, which respectively states that: «the deposits of mineral substances, including artificial deposits, underground water and geothermal deposits on surface or in the sub-soil or in water systems of the National Territory, are the exclusive, inalienable and imprescriptible property of the State » and that « the State will ensure the development of the mineral substances it owns by resorting, in particular, to the private sector in accordance with the provisions of the present Code ».

6.Actually, the Mining Code, which sets f orth the conditions of granting mining activities, reflects the words of the Constitutional Act of the Transition dated April 9, 1994, in force when it was enacted, which stated in article 3 that: «the soil and subsoil belong to the State »[3]. This principle, established in the Constitutional Act, existed bef ore the Act [4] and has endured even after. The principle was used as basis for different mining laws, which governed Congolese mining activities[5].

7.The State’s ownership on mines, natural and artificial deposit, is an exclusive propriety because no Congolese or foreign natural person or legal entity may claim any whatsoever proprietary right and the State may not share the same with anyone as co-ownership. This proprietary right is absolute because it is the sole right, which can authorize the access to mining activity through particularly the granting of mining and quarry rights. Finally, such right is inalienable and indef easible because no one may apply the disposal therefore and, the State may not lose such right by any limitations.

I.2. Ownership on mining facilities, infrastructures and other industries constructed in the perimeter

8.― When exercising its ownership on natural or artificial mineral deposits, the State owner of these deposits may, based on the legislation and regulation in this matter, authorize any qualified person to carry out mining operations under mining and quarry rights duly granted and kept in validity of which the person is the titleholder.

9.― Eager for mining rights and interests in land related to its mining license or authorization, the holder of mining or quarry rights shall erect and construct within the perimeter covered by its rights, for carrying out its mining activities, mining facilities and infrastructures and other industries, which are related to its mining activity, including residential facilities and other social-housing facilities. In general, they are plants, facilities and machines for concentration, processing and transformation of mineral substances, which are, due to this, buildings by incorporation. Also, they may concern movables assigned to mining operation, which are actually fixtures in accordance with article 5 of law 73-021 of July 20, 1973 respecting general property regime, interest in land regime and immovable [6]. In fact, this real property is right in rem whose purpose is buildings as well as rights in personam to acquire or to recover a right in rem on a building[7].

10.―Since they concern the mining of natural or artificial deposits of mineral substances, mining or quarry rights are immovable rights in rem to the extent that they relate to an immovable by nature. The legislator for land clearly and def initely expressed it in article 3 of the law July 20, 1973 aforementioned in these terms:

«are all rights in rem in immovable property whose purpose is the buildings ». The legislator for mine is of the opinion of the legislator for land who has particularly conf irmed that mining and quarry rights are rights in rem in immovable property[8]. As a result, operations concerning mining rights such as transfers, leasing and security interests on mining and quarry rights are transactions in immovable property.

11.―The immediate effect of the right in rem in immovable property related to mining or quarry rights implies that the titleholder shall have an absolute right because the latter may oppose thereof to any person; a right to follow because the same enables the titleholder thereof to continue mineral substances, which have the nature of market products for which the titleholder is entitled and buildings erected or located in the mining perimeter whatever the owner and finally, a right of priority that enables the titleholder, in the event of competitive bidding with other persons, to buy out as the first bidder [9].

12.―With regards the right to f ollow, particularly when it is exercised on the mineral substances illegally extracted from the perimeter covered by the mining and quarry rights, the case law has, by means of decision made by the court of the first instance of Kasaï, altered, cancelling the decision to the contrary of the District Court of Kasaï dated March 6, 1956, which dismissed the restoration of stolen and seized diamonds to the statutory company in order to allocate them to the State, has considered that the Mining Permit grants to its titleholder the mining exclusive right. This is a right in rem, which prevails the right to follow enabling the transf eree to claim any mineral substance whose extraction is authorized by its permit whatever the owner. The Court justif ies its decision as follows:

«Whereas the legislator, having opted for the system of public domaniality of mines, separate property from the surf ace, substances from the mine shall technically pertain to the Colony;

The Colony has however reserved the right to depart from such rule; it perf orms the same, without granting the ownership right on mine, when it grants a mining permit that the legislator has established in right in rem; Since the holder of such right in rem may prove that substances have been extracted from the mine, under its Mining Permit, is the sole holder to extract; the latter will exercise on these substances its right to follow notwithstanding the fact the titleholder may be regarded as the mine owner;

Actually, when the Colony grants a Mining permit, the result of the structure of texts in this regard, that the ownership of the mine held is not essential f or the exploitation, which is regarded as the main fact;

Thus, the holder of mining permit, although not being the mine owner, shall have rights of occupancy of lands located in the polygon, right to water and even right of occupancy of lands outside the polygon, in addition to the right to mine and extract and the right on mining products, provided it concerns substances for which the permit has been granted;

In default of granting to the holder the right on mining product, the social and economic purpose desired by the legislator becomes irrelevant.»[10]

13.―Anyway, regarding the exercise of the right to follow through the case law, the Court of the first instance of Luluabourg has decided that precious substances from a granted deposit shall belong to the owner even without those precious substances being extracted. Applying to mines the principle with regards usufruct according to which fructus naturales are supposed to be collected even bef ore their stripping, the court considered in event of f raudulent extraction, these substances shall belong to the grantee and must be restored to the grantee and not to the State, owner of mines. These are the terms:

«Whereas, it should be checked if , according to law, the plaintif f party has to establish that stones are from one of its concessions, for the ownership by party to be recognized, or if , otherwise, the proof of ownership may result only of the additional proof of an effective seizure during mining work; if , in other words, the party aggrieved by the theft of diamonds in one concession, but outside the mining site, is the Colony, owner of mines, or the company holding a mining permit;

Both theories have been successively def ended by such office and are subjected to a study by Mr. Louveaux in the Journal of Courts of Overseas (1958, n° 92, pp. 17 to 20, 21 and 22);

The Court considers with the latter that the right in rem, which constitutes the mining concession is a right sui generis consisting in dividing the ownership right the Colony claims on mines (art. 1 of Order dated Sept. 24, 1937); this right sui generis may be reviewed as a broadened usuf ruct, on one side, because the granted is not obligated to keep the tenor of the mine (art. 82, 3°, a, Order dated Sept. 24, 1937) and therefore, shall not give any security, is limited on the other side, because it concerns only the granted substance (art. 66); (…)

That, the concession, which grants the exploitation has been, in addition, def ined by Mr. Halewyck «the granting by the public power … of a special right of user on public domain property; … this is the meaning in the colonial law, when the latter sets out rules, which govern mining …concessions» (t. II, n° 227); that, the right of user of f er, with usuf ruct, other dif f erence than the strict non-transf erability, which def ines the first(De Page, t. VI, p. 387, n° 477B); that, if we consider such non-transf erability does not exist regarding the mines concession (S. 71 of Mining Order), we may admit that the grantee’s right is comparable to an usufruct of a special type;

Regarding usufruct, De Page instructs, with the majority of the modern doctrine that the beneficial owner acquires natural rights through the separation whatever the author or the way such separation has been done (t. VI, p. 232, n° 299), but, Aubry and Rau specify that fructus naturales are supposed to collected… even bef ore their removal and this rule shall be applied to products f rom mines (T. II, p. 270, quoted by Mr. Louveau, loco citato);

Therefore, the court sufficiently considers the proof of right of property of the civil party, within the limits described above, and establishes the existence of a damage due to thef t of such stones;»[11]

14.―The Congolese legislator has conf irmed the right to f ollow of the holder of mining or quarry right with regard to mineral substances illegally extracted f rom the perimeter covered by such rights according to article 229 of the Mining Code, which stipulates that mineral substances illegally extracted shall be seized and their seizure should be decided on behalf of the State (concerning the perimeter covered by exploration mining or quarry right) or the holder of mining or quarry right.

II. Effects of the termination of mining or quarry rights on a mining property

15.― Mining and quarry rights are not granted by the State owner of deposits in perpetuity. As long as its permit is still valid, the holder of mining and quarry rights shall exercise rights related to its permit and shall be in f ull possession of property located in the perimeter until the termination of its right. Therefore, we should brief ly skim over the modes of termination of mining and quarry rights (II.1) in order to bring out the consequences of the extinguishment of its rights on assets located in the perimeter (II.2)

II.1. Modes of termination of mining and quarry rights

16.―Mining and quarry rights may be expired when the concerned rights extinguish (A), are waived by the titleholder (B), are cancelled in line with the f orf eiture process (B) and/or they are withdrawn or expropriated for public purpose or when the perimeter is classif ied or inserted in a protected area[12].

A. Expiration of mining and quarry rights

17.―Mining and quarry rights are granted f or a specif ied period. The same is valid f or the Mining Permit, which is granted f or a 30-year period to be renewed many times f or a 15-year period [13], Mining Permit for tailings f or a 5-year period to be renewed many times f or the same period [14], Mining Permit f or small mine for a valid period not exceeding ten years, including renewals [15] and the authorization of permanent quarry exploitation is granted for a five-year period renewal f or the same period [16].

18.― At the end of a validity period of the mining or quarry exploitation right, when the titleholder does not renew its permit, the mining or quarry exploitation right at issue shall expire [17]. In this case, CAMI shall immediately notif y the titleholder about the expiration of its title and shall send a copy to the Mines Directorate. The CAMI shall cross of f the perimeter report on the survey mining map [18]. In the event of expiration of the mining or quarry exploitation right in def ault of its renewal by its titleholder of the concerned surf ace area af f ected by the right at issue shall be immediately released and available for any application by third parties. The legislator’ viewpoint is naturally correct to the extent that the willful refusal or negligence of a titleholder to renew the right may not technically, except f or the event of f orce majeure duly approved, give rise to a dispute, which would make unavailable the mining perimeter.

19.― The mining or quarry exploitation right may also be expired when the application for renewal submitted by the titleholder is dismissed due to the decision to ref use the renewal made by the relevant Authority [19].

In this case, the Mining Registry shall cross of f the registration of the perimeter of the register of rights granted [20].

20.― As in the case of normal expiration without any application f or renewal when the mining or quarry exploitation right expires due to the decision to ref use the renewal means that the perimeter is released and available f or any application f rom the third parties. But, the holder of expired mining right shall have the right of priority if the latter succeeds with the case af ter the arbitral appeal process to be initiated by the holder within a thirty-day period ensuing the date of decision to ref use. In other words, the arbitral appeal submitted within such period actually prevents the third party f rom accessing to the perimeter as CAMI and the relevant authority may not receive, review and grant any whatsoever mining right to third parties as far as the holder of expired right keeps the right to priority on the same perimeter. The position of the legislator is an expression of equity and common sense because it enables to avoid conflict if , after the action for cancellation against the decision to ref use the renewal, the holder will be restored in its renewed right and the perimeter related thereto.

B. Relinquishment

21.―The relinquishment mentioned at this stage, is not an automatic relinquishment of the half of surface area of the mining perimeter when renewing the Exploration Permit [21]. Instead, it is a surrender of a right, and which is expressly operated through a unilateral act [22] when it concerns rights in rem. It concerns an act of disposal whereby a person voluntarily relinquishes a right already arisen f rom its asset, and abolishes such right [23].

22.― The holder of a mining or quarry exploitation right may, through declaration to the Minister of Mines [24] of the Provincial Department Head of mines[25] entirely or partially relinquishes the right covering its perimeter.

23.―In the event of total or partial relinquishment of the mining or quarry exploitation right, the perimeter covered is free, in full or in part as the case may require, from the last act from the Minister or Provincial Department Head of mines, or in def ault of acknowledging officially within 3 months, the declaration of relinquishment is deemed granted [26]. As in the case of usual expiration of the mining right under application for renewal, the viewpoint of the legislator regarding the future of the perimeter is natural. As far as the relinquishment is an unilateral act from the titleholder, it is accepted that the latter claims late any whatsoever rights on the perimeter f ormerly covered by the relinquished right.

24.― Finally, the total or partial relinquishment does not give to any reimbursement of duties and fees paid to the State for granting or keeping the permit. Also, the titleholder may not disclaim its environmental responsibility and commitment vis-à-vis the local community [27].

C. Cancellation

25.― To maintain the validity of its mining or quarry exploitation right, the titleholder must commence development and construction work of the mine within a three-year period for the mining permit, after issuing the title certif ying its right, one-year period for the Mining Permit for tailings and the Mining Permit for small mine and a six-month period for the authorization of permanent quarry exploitation. In addition, the titleholder must pay annual surf ace f ees right per annun within the prescribed time.

26.― Failure to these two obligations of maintaining the validity is penalized, af ter notif ication addressed either by CAMI with respect to the non-payment of annual surf ace fees right, or by the Directorate of mines respecting the non-commencement of development and construction work of the mine, is penalized by the forfeiture of the holder of a mining or quarry exploitation right concerned[28]. The forfeiture shall be decided by the Minister of Mines or the Provincial Department Head of mines which decision shall be notified to the titleholder by CAMI.

27.― The holder of mining or quarry exploitation right at issue may use an arbitral or administrative appeal within thirty days ensuing the posting of the decision in CAMI office. In this case, the mining or quarry exploitation right at issue shall remain valid for all the procedure, but keeping the decision on forfeiture and lodging an appeal by the titleholder against shall be recorded in the register of mining or quarry rights granted. The forfeiture of mining and quarry right by the titleholder is an important decision, which may not render the perimeter free and available for applications by third parties as far as the titleholder may exercise an appeal against grounds of its forfeiture. This actually concerns the protection of vested rights.

28.― When the holder of mining or quarry right concerned by the forfeiture decision has not exercised within a 30-day period as of the positing on the appeal or when the appeal is dismissed, or when any appeals are time-barred, the Minister of Mines shall cancel mining or quarry rights which the titleholder has subjected to the forfeiture process. In this case, the perimeter covered by the cancelled mining and quarry right shall fall to State public domain [29]. It is normal that the cancellation entails the release of the perimeter and reverts to the State public domain because it has been made due to another administrative decision of the forfeiture of the titleholder and the latter refrained from appealing or the same is time-barred or dismissed.

D. Withdrawal

29.―The withdrawal is a form of suspension of the mining or quarry right mentioned in article 10, paragraph (b) of the mining code, when mentioning the powers of the Minister of Mines. While the mining code has objectively set f orth the grounds and procedures of other forms of suspension of mining or quarry rights, it remains silent on the grounds and procedures of withdrawal of such rights, by fully refusing to take into consideration the principle of transparency and objectivity, which governs the mining right and underlies the reform doctrine of the mining code. Faced with such silence, it is reasonable that we use the administrative common law by considering the specif icity of the mining code as for the management of State mining domain.

30.―According to the Congolese administrative law, the withdrawal is the form of removal of the administrative deed, which consists in rescinding the deed by its author with effects, technically, ex tunc. The withdrawal is a cancellation of the deed due to unlawfulness and is operated ab initio, by the author. The cancellation of unlawf ul statutory administrative deeds is possible as an illegal penalty, and this, in accordance with the admissibility deadline of the action for cancellation for abuse of power, which is three months as of the total or partial dismissal of the prior claim 30]. In this regard, the Supreme Court of Justice has decided that the principle of inviolability of vested rights was not complied with and substantial forms were violated because the personal administrative deed establishing rights may be rescinded only if the deed is illegal or its withdrawal delivered within the time limit of administrative appeal [31].

31.―Although the cancellation is operated ex tunc, it is inappropriate to ascertain that the perimeter covered by the cancelled mining and quarry right must be free of any right and be available f or applications by third parties as from the withdrawal decision, as in the case of natural expiration or relinquishment of a mining and quarry right, which actually is the matter for the willingness or due to the holder of the mining right at issue. As far as the action for cancellation before the relevant court against such decision for unlawf ulness may result in cancellation of the withdrawal decision and, possibly in the restoration of the cancelled mining or quarry right or in the restoration of the titleholder in the mining perimeter, the occupying third party should reasonably release the perimeter. Therefore, we believe that, at this stage and by legal common sense and equity, the principle brought out by the legislator for the holder of mining or quarry right should be applied, which the renewal has been refused through the decision from the Minister and subjected to an administrative remedy against such decision by releasing the perimeter and rendering it available, subject to the priority for the titleholder who succeeds with the case after an arbitral remedy process duly initiated within thirty days ensuing the date of refusal decision [32].

32.―Similarly, the legal common sense and equity shall result in the application, in line with the management of the State public domain, of the principle for the forfeiture of the holder of mining right, despite the decision from the administrative authority, the mining right remains valid and the perimeter concerns thereof shall remains unavailable until the action for cancellation submitted by the forfeited be issued.

II.2. Effects of the termination of mining or quarry exploitation rights on the ownership of the mine

33.―The effect of termination of mining or quarry exploitation rights will be assessed with regard to the ownership of the State on natural and artificial deposits (II.2.1) and the right of titleholder on mining facilities, infrastructures and other industries erected or constructed in the mining perimeter (II.2.2).

II.2.1 The ownership of the State on natural and artificial deposits after termination of the mining or quarry exploitation right

34.―As demonstrated above, natural or artif icial deposits covered by the mining or quarry exploitation right are the exclusive, absolute, inalienable and imprescriptible property of the State. The State exercises on this asset a right in rem in immovable, which the latter divides into mining and quarry rights to be granted to qualified persons. When the mining or quarry exploitation right is terminated, it implies that natural and artificial deposits shall return to the State. In other words, they return to the State public domain. We should note that deposits, which return to the State are those located in perimeters entirely or def initely free of any rights of the third parties, as described above.

35.―The consequence of returning of these deposits to the State, owner implies that the latter may grant the mining or quarry rights on such perimeter only through normal process of awarding the mining rights. The State may operate only through an invitation for bid as far as it concerns deposits reviewed and documented based on the exploration work carried out by the third parties, former holder of mining and quarry exploitation rights. In which case, if they meet conditions of deposits whose mining and quarry rights are submitted to the invitation to tender, they shall be reserved and granted through invitation to tender.

With regard to such conditions, article 43 of the Mining Regulation stipulates that:

Are capable of being reserved f or and subject to a tender process, the rights in respect of deposits meeting the following conditions:

  1. be established as a / known deposit, of considerable value en situated within well identified squares / blocs or adjacent squares / blocs;
  2. have been the subject of studies, documentation or as the case may be of works carried out by the State or by its departments by virtue of a mineral or quarry mining right in the name of the State or of State entity; c) not be situated within a square / bloc being the subject of a mineral or quarry mining right in the name of a third party.

II.2.1 The ownership by the holder of mining or quarry exploitation right on mining facilities, infrastructures and other industries erected in the perimeter after termination of its right

36.―We would like to recall, the holder of mining and quarry rights has right in rem in immovable on mining facilities, infrastructures and other industries erected in the perimeter constructed by holder under its right.

Such right in rem implies the right to f ollow not only on the mineral substances, but also and especially on any buildings by incorporation and f ixtures based in the mining perimeters.

37.―When the mining right is terminated, the perimeter being def initely free of any right, available and returning to the public State, the titleholder remains the owner of these assets, which the latter may think best. According to the Mining Code, the State may not claim, as in the past, the right to mining facilities, and other buildings in the perimeter.

38.― In this regard, it would be advisable to recall that, under the f ormer Order 81-013 of April 2, 1981 umbrella legislation on mines and hydrocarbons, the normal expiration of a mining permit, without being renewed or transf ormed, in the event of cancellation or relinquishment, lands concerned shall be free of any rights resulting thereof . The State shall not claim any right to substitute or to buy out, if desired, mining facilities and inf rastructures and other buildings related thereto [33].

39.― In other words, on the normal expiry of a concession or in the event of relinquishment by the titleholder during the f irst period of validity, the concerned lands shall be free of any rights, as in the case of usual expiry of a mining permit, without being renewed or transf ormed, in case of cancellation. However, the State would substitute as of right for movables and buildings, in rem of the titleholder, especially to buildings, works, machineries of any whatsoever nature using directly or indirectly in extraction and mechanical, chemical preparation or others of ores. The State may also, if desired, buy out any or part of other assets of the grantee such as industrial f acilities, constructions and immovable adjustments in accordance with the commercial rules and practices applicable in Zaïre. Therefore, within five years at least, before the concession definitely expires, an agreement should be entered into between the State and the Grantee in order to define works to be carried on, on behalf of the mine, until the concession expires [34].

40.―Also, we would like to recall under Order of September 24, 1937 on mines in Congo-Belgium and Rwanda-Urundi, the recovery by the State of land granted and rights on movables and immovable related to the expiry of the mining permit or concession was free of charge. The Colonial Power assumed ownership, free of charge, of facilities using directly or indirectly in extraction and mechanical, metallurgical or chemical preparation of ores as well as crushing, concentration plants or any other ore transf ormation as far as such plants are required to make products saleable [35]. However, the Colony was supplied, against payment, with spare parts and materials suf ficient to carry on exploitation because it concerned movable property of the operator. Regarding this matter, according to the report from the Colonial Council on the Order of September 24, 1937 that:

« The Colony is entitled to claim, free of charge, apart from facilities used for extraction, workshops and sites of ore preparation for the beneficiation and which will enable the Colony to market products on local market or for export. If a metallurgical processing plant was near a mine, became the property of the Colony, the latter considered it as an opportunity for its enriched minerals. In addition, the colony could be the owner of a metallurgical processing plant, but in return for payment.

« working a deposit held by the Colony shall uninterruptedly continue and, for that, extraction and beneficiation facilities only are not enough; the colony had to use stocks, spare parts and other material, which are the working capital of any mining enterprise, but such working capital is a movable property of the operator; the Colony may require the transf er thereof , but by indemnifying the operator, according to the expert [36].

41.―Incidentally, the State, which has recovered the natural or artificial deposit at the moment of the transfer of a mining or quarry right and the definite release of the perimeter, may not grant real estate of the former titleholder on the site, through invitation to tender, or even by mutual agreement, to the third parties.