Mining rights and title in Thailand

Mining rights and title

To what extent does the state control mining rights in your jurisdiction? Can those rights be granted to private parties and to what extent will they have title to minerals in the ground? Are there large areas where the mining rights are held privately or which belong to the owner of the surface rights? Is there a separate legal regime or process for third parties to obtain mining rights in those areas?

Mining rights are granted by the Minister of Industry under the Minerals Act. Section 52 of the new Minerals Act states that no person shall mine in any area, regardless of any person’s right over the surface area to be mined unless a mining lease has been obtained. In Thailand, minerals belong to the state. Mining rights do not grant title to minerals in the ground. The mining license holder can sell minerals specified in the mining lease only. Other minerals acquired incidentally may be sold by the leaseholder only after receiving a licence from the Director-General of the DPIM. Under section 53 of the new Minerals Act, the Minister will issue a notification to classify mining into three categories:

• category 1 mining - mining in an area of no more than 100 rai (one rai equals 1,600m2), where the mining lease shall be issued by the LMIO on approval of the Provincial Mineral Committee in the province where the mining is operated;
• category 2 mining - mining in the area of no more than 625 rai (equal to 1km2), where the mining lease shall be issued by the Director-General with approval of the Mineral Committee; and
• category 3 mining - mining other than category 1 or category 2 mining, offshore mining and underground mining, where the mining lease shall be issued by the Director-General with approval of the Mineral Committee.

There is no limit on the number of mining leases (MLs) that may be acquired by one person. Therefore, in practice, it is possible to mine over a larger area than the prescribed area limits. The application process for an ML for the landowner of the land to be mined is the same as for those who do not own the property.

The maximum duration of mining rights is 30 years (compared with 25 years under the old Minerals Act).

Prospecting

The Act provides for the issuance of:

• prospecting licence, valid for one year;
• general exclusive prospecting licence, valid for not more than two years, with an area of not more than 2,500 rai; and
• special prospecting licence, valid for not more than five years, with an area of not more than 10,000 rai for onshore, and not more than 500,000 rai for an offshore area.

Mineral dressing and metallurgical processing

Licences may be issued, valid for no more than five years.

Cancellation, amendment and revocation of licences

There are provisions for dismissing applications, amendment of licences, penalties and revocation of licences.

Mineral royalties, fees and special contributions

Royalty rates are established under ministerial regulations. Rates are capped at 30 per cent (see question 19).

The Act includes a schedule of fees. The Minister has authority to reduce fees.

The Act includes provisions for civil liabilities, seizure and attachment, penalties and transitional provisions. Holders of mineral rights granted under the old Minerals Act should study the transitional provisions carefully, because in many cases they will be subject to rules prescribed under the new Minerals Act.

What information and data are publicly available to private parties that wish to engage in exploration and other mining activities? Is there an agency which collects mineral assessment reports from private parties? Must private parties file mineral assessment reports? Does the agency or the government conduct geoscience surveys, which become part of the database? Is the database available online?

Mining laws and regulations, information regarding the number of mines by kinds of minerals, number of licence holders and applicants for licences and mineral assessment statistics are publicly available in Thai via the DPIM website (www.dpim.go.th). The DPIM prepares mineral assessments by collecting mineral assessment reports submitted by licence holders. Database of DPIM is available online.

What mining rights may private parties acquire? How are these acquired? What obligations does the rights holder have? If exploration or reconnaissance licences are granted, does such tenure give the holder an automatic or preferential right to acquire a mining licence? What are the requirements to convert to a mining licence?

See question 8.

Major mining rights include exploration rights and mining leases. Mining rights are granted with certain conditions and validity as prescribed by the Minerals Act. The Minister of Industry has the power to revoke the rights if the holder fails to comply with the conditions attached to the granted right. The approval of mining rights is not specified in the law itself and can vary. To apply for any mining rights, the applicant must submit an application together with supporting documents and information required with the LMIO and pay the fees at the specified rate.

Exploration rights

For exploration activities, a prospecting licence must be acquired. In the case of overlapping applications for the same area, the first application to be submitted will be processed first. There are three kinds of prospecting licences that investors may apply for, namely, the general prospecting licence (GPL), the exclusive prospecting licence (EPL) and the special prospecting licence (SPL).

A GPL is a non-exclusive, non-renewable and non-transferable licence and is valid for one year. A GPL grants rights for mineral prospecting and exploration within a designated area of an administrative district or a province. The LMIO has the authority to issue a GPL. Mineral prospecting under this licence can be conducted only by geological, geochemical or geophysical surveys. Prospecting methods that directly collect mineral samplings, such as pitting, trenching and drilling are not allowed.

An EPL grants sole mineral prospecting and exploration rights within a designated area, and is valid for no more than two years. An EPL is issued by the Director-General and is non-transferable. An EPL is limited to an area not exceeding 2,500 rai. There are a number of conditions the holder of an EPL has to comply with, including:

• the filing of a report 180 days after the receipt of the EPL describing the first operations and works undertaken within 30 days from the end of that 180-day period; and
• filing a final exploration report 30 days before the expiry date of the EPL.

An SPL is issued by the Director-General with approval of the Mineral Committee, and is valid for a duration of five years and is non-renewable. The exploration area that may be granted under an SPL may not exceed 10,000 rai, except applications to explore offshore may be made for 500,000 rai each. An application for an SPL must include a work plan and an estimate of expenses for each year for the whole project, as well as an offer of ‘special benefits’ to the government. The special benefits will further bind the holder of the SPL upon receiving a mining lease for mining in the area for which the SPL has been granted. A progress report must be submitted to the DPIM every 180-day period commencing from receipt of a licence. An SPL is suitable for large projects entailing high-value minerals or substantial investment capital, and also in the event an applicant requires more time or a larger area for exploration. The prospector may relinquish areas he or she no longer wishes to prospect.

The SPL holder will generally get preferential rights to acquire a mining licence for the area the SPL covers. If there are multiple applicants, owners or possessors of such land obtain priority above all other applicants under the Land Code.

Mining rights

Upon discovery of a commercial mineral deposit, a prospector must apply for an ML in order to conduct mining activities. Generally, applications will be treated on a first come, first served basis.

The ML are divided into three categories. There is no limit on the number of MLs that may be applied for by one person. An ML is valid for a maximum of 30 years and may not be transferred without the approval of mining right issuers.

An applicant for an ML must provide a map showing the area to be mined, reliable evidence of the discovery or existence of the mineral to be mined, evidence showing acquisition of surface land rights, plans on the rehabilitation, proposals of special benefits to the state and other documents or evidences as prescribed in the ministerial regulation.

Special rules apply to underground mining, defined in section 4 of the new Minerals Act. Applications for underground mining (but not surface mining) now require that the applicant provide a restoration plan and security for restoration of the mining area, and remedies for persons affected by the mining (sections 81(8) and 81(9)). As regards ML holders for underground mining who do not provide the requisite security or insurance for any damages determined to have been caused by the mining activities within 15 days of notice of the same, the ML issuer has the power to issue an order to revoke the ML (section 90).

Special rules for offshore mining

In August 1978, the cabinet passed two resolutions regarding offshore mining of minerals at depths not exceeding 200 feet. The resolutions are summarised as follows.

Known deposits

After the expiry of the maximum mining lease period of 25 years, a foreign mining leaseholder may apply for a new ML to work an old deposit, provided that it realigns its equity interests so that Thai nationals hold at least 60 per cent of the total equity interest in the venture.

Unknown deposits

A company with foreign shareholders may apply for an ML to exploit a new deposit offshore, provided that Thai nationals hold at least 51 per cent of the equity interest initially, to be increased to 60 per cent within two years.

The above resolutions constitute administrative guidelines to be followed by the DPIM in its consideration of whether or not to grant or renew an offshore ML.

Other approvals required

Purchase of minerals

Any person who wishes to purchase controlled minerals must obtain a licence from the DPIM. A purchasing licence is valid for not more than five years from the issuance date. The holder of a purchasing licence may not purchase minerals at any place other than the place specified in the purchasing licence. Purchasing minerals outside the specified place of purchase requires an external purchasing licence, which will be valid for the same period as the purchasing licence. A holder of a purchasing licence must keep accounts of minerals bought and sold and minerals still on hand.

Transportation and storage of minerals

The transportation of minerals requires a mineral royalty be paid or guaranteed. For most minerals, an ore transport licence must accompany the transporting vehicle to the destination stated in the licence. Any person who wishes to store minerals outside a mining area or outside a designated place of purchase must also obtain a storage licence.

Ore dressing

Except for an ML holder undertaking mineral dressing within the mining lease area, no one can undertake ore dressing operations without a licence. The licence is valid for a maximum of five years.

Metallurgical processing

Except for an ML holder undertaking metallurgical processing within the mining lease area, no one can undertake metallurgical processing operations without a licence. A metallurgical licence is valid for a maximum of five years.

What is the regime for the renewal and transfer of mineral licences?

Exploration licences

All types of prospecting licences are non-transferable and non-renewable.

Mining licences

An ML is transferable in accordance with rules, procedures and conditions prescribed in a notification by the Minister. The application and required supporting documents requested for approval of transfer or renewal shall be submitted with the LMIO. Where the ML provides for a term of less than 30 years and the ML holder applies for renewal in accordance with the rules and regulations at least 180 days before ML expiry, the Minister of Industry may extend the terms of such an ML provided that the aggregate term does not exceed 30 years.

What is the typical duration of mining rights?

See question 8.

Prospecting

• GPL - maximum of one year;
• EPL - maximum of two years; and
• SPL - maximum of five years.

Mining

• category 1 mining - maximum of 30 years;
• category 2 mining - maximum of 30 years; and
• category 3 mining - maximum of 30 years.

Grounds for revocation are prescribed in a number of sections of the new Minerals Act.

Is there any distinction in law or practice between the mining rights that may be acquired by domestic parties and those that may be acquired by foreign parties?

Government policy is not to grant mineral rights to foreign nationals (including companies in which ownership by foreign nationals exceeds 49 per cent). However, it is possible to grant mineral rights to a foreign company under a special agreement. Majority foreign-owned companies wishing to operate a mining business must obtain a licence granted by the Minister of Commerce with the approval of the Thai cabinet as required under the Foreign Business Operation Act. The majority foreign-owned company can operate a mining business only if at least 40 per cent, or (with approval of the cabinet) 25 per cent of the capital is held by Thai nationals or Thai entities and at least two-fifths of the directors are Thai nationals.

The Land Code (1954) prescribes a ceiling on foreign ownership of 49 per cent or not more than half of their shareholders; there is no restriction on foreign nationals leasing land. In the case the land to be applied for mining business is National Reserved Forest, the company must have more than two-thirds of the shareholders or partners being Thai nationals holding more than half of the total number of shares. In the case the land is forest land, the company must have more than two-thirds of the shareholders or partners being Thai nationals holding more than half of the total number of shares and its authorised person (authorised director) must be Thai.

In the case of a change in shareholding structure or change of control in the licence holder or its parent company, the Minerals Act does not require the licence holder to submit any notice of such a change. However, in the event of a structural change that results in shares becoming majority-foreign owned, a foreign business licence would be required under the Foreign Business Operation Act (1999), the company would be prohibited from owning land under the Land Code and from obtaining licensing to use a forested area.

On 30 January 2018, the MOI issued a new notification restricting foreign ownership. The purpose of the notification was to prohibit foreigners from operating mining businesses through the use of ‘cover-up’ schemes in order to conceal ultimate foreign ownership. The notification is silent as to how its provisions will be applied to existing licensees. Regardless of an unclear application, a structure which is as inconsistent with the limitations that it prescribes could lead to disapproval or revocation of a mining application or cancellation of mining rights.

How are mining rights protected? Are foreign arbitration awards in respect of domestic mining disputes freely enforceable in your jurisdiction?

There is an independent court system in Thailand, including an administrative court to hear cases involving government agencies (such as the DPIM). Current government policy is that contracts with a government agency cannot include arbitration provisions, with exceptions approved by the cabinet. Under Thai law, judgments entered by a foreign court are not enforceable in Thailand. The foreign judgments can be introduced as evidence in an enforcement proceeding in a Thai court. A Thai court is free to examine new issues arising in the case. Foreign arbitration awards are enforceable under Thai law.

One factor that is often cited as an impediment to the mining industry’s development is the lack of ‘security of tenure’. The existing legal system does not expressly guarantee that the holder of an exploration licence will be granted an ML if it makes a commercial discovery. The government bureaucracy and the limited scope of the mining laws are not the sole causes of the inability to assure the right to mine prospected land; conflicts and restrictions from other authorities as well as subsequent land use conflicts complicate the issuance of rights.

One characteristic of the Thai bureaucracy that causes it to stand out is the divided nature of Thai administration. Government agencies in Thailand are divided into ministries, departments and bureaux, each of which are separate juristic entities, having independent contracting powers. Thus, the MOI is a separate legal entity from the MNRE and the DPIM, but the DPIM answers to the MOI administratively. Even though the DPIM is only one among many departments within the MOI, it can enter into contracts with a private party, independent of the Ministry. The director-general, as the head of the department, is the signatory to contracts. The question of whether the department or the director-general has the power to conclude contracts and the parameters within which this power can be exercised is governed by the law on public administration.

Each government agency is only concerned with administering its own law, even though that law may contradict other laws or may be inconsistent with national policy. This fact poses a major problem for the mineral industry in that the DPIM is not the agency that has the final say on whether or not an exploration or mining venture can be conducted. The ultimate decision may rest with the ONEP or with the Forestry Department, depending on where the land is situated.

Foreign investors often believe that once they have signed a contract with the DPIM and have paid the bonus, they may then proceed with the exploration and development work. In reality, the contract is only a grant of mineral rights, subject to negotiation with the other agencies concerned, and there is no guarantee that investors will be given all necessary approvals in the end. The Forestry Act, the Minerals Act and the Environmental Act all have equal standing. Therefore, the DPIM, the Forestry Department and the ONEP are of equal legal status in the sense that none has authority to dictate terms to the other. There is no ‘super agency’ to reconcile differences among departments, or hand down binding judgments in case of conflict.

Policies issued by the heads of various ministries and departments are the real modus operandi for government officials, and the failure of the officials to comply with policies may result in disciplinary action. These policies are internal directives and are not known to the public. In Thai legislation there are many provisions giving wide discretionary powers to permanent officials responsible for administering the law.

The new Minerals Act includes much more comprehensive provisions regarding regulations by two ministries (the MOI and the MNRE), a new National Mineral Administrative Policy Board and the role of the DPIM. A Mineral Committee and Provincial Mineral Committees have been established.

What types of surface rights may mining rights holders request and acquire? How are these rights acquired? Can surface rights holders oppose these requests?

Mining rights under the Minerals Act do not include any rights to the surface land. Surface rights over the mine vary depending on the type of land. Before applying for a mining lease, an applicant must acquire the right to use the surface land from the public or private owner, as the case may be. Negotiation with a private landowner is concluded by purchase or lease. If the land is owned by the government, a permit issued by the concerned government agency is required to be submitted along with the application for an ML before an ML is granted.

Ownership of private land is governed by the Land Code, the Civil and Commercial Code and regulations as set forth by the Land Department of the Ministry of the Interior. Under Thai law, foreign nationals may own land only if a treaty has been entered into between Thailand and their country or if permission is granted by the Ministry of the Interior. Presently, there are no such treaties between Thailand and any other country. A majority foreign-owned company is prohibited from owning land under the Land Code unless it obtains a Board of Investment (BOI) promotion certificate and an exemption to own land is granted. If the operator cannot own the land, it may consider a lease as another option. A lease agreement can be valid for a maximum of 30 years and must be registered with the Land Department of the Ministry of the Interior.

Non-private land can be categorised as forest areas, which are supervised by the Forestry Department under the Forestry Act (1941) and National Reserved Forest Act (1964), or agricultural land reform areas under the Land Reform for Agriculture Act (1975), which is under the supervision of the Agricultural Land Reform Office. Licences from the concerned authority must be obtained. There are some categories of reserved areas that have been declared closed to exploration and mining activities. These include wildlife reserves, national parks, forests (conservation forests and economic forests) and areas reserved for security purposes. Development activities, including mining, are strictly prohibited in category 1A watershed areas, and restrictions apply to mining activities in economic forest areas. Other areas in the country are classified as urban areas, water bodies and areas for settlement programmes.

A government resolution for watershed classification in May 1985 prescribed that without exception, all development activities would be prohibited in forest areas classified as category 1A. Development in watershed category 1B is subject to government approval on a case-by-case basis and mining operations are permitted in watershed categories 2-5. It is more complicated to obtain permission to operate a mine in any category of reserved forest because of the revocation of forest concessions countrywide in January 1989. The revocation of forest concessions resulted in a reclassification of the country’s forests, which are now classified as national parks, wildlife reserves, economic forests and land reform zones.

Does the government or do state agencies have the right to participate in mining projects? Is there a local listing requirement for the project company?

Although there is no prohibition on the government participating in mining projects, there is no precedent for such engagement by the government.

The new Minerals Act provides that its requirements do not apply to the DPIM, DMR or DMF for the propose of survey, testing, study and research. Currently no state enterprise is involved in mining operations. There is no local listing requirement for a mining company.

Are there provisions in law dealing with government expropriation of licences? What are the compensation provisions?

The MOI has the power to revoke a licence when the holder fails to comply with the regulations provided under the Minerals Act or the conditions and obligations attached to the licence.

The MOI is empowered to revoke an ML upon the occurrence of the following:

• it appears later that an ML was issued as a result of a prominent mistake or misunderstanding of material facts;
• the holder departs from the place of domicile or address and the LMIO is unable to communicate with him or her;
• the holder does not discharge all debts obligated under the Minerals Act within 90 days after receiving a written notice of payment from the LMIO; or
• the holder violates or commits an offence according to provisions under the Minerals Act, or fails to comply with the order of the LMIO or the conditions prescribed in the ML or related licence.

See Chapter 10 of the Minerals Act re dismissal, cancellation, amendment and revocation of mining leases.

There is no compensation for revocation. The Minerals Act itself has no provision regarding government expropriation of mining businesses or MLs.

There are guarantees against expropriation in the Investment Promotion Law (Board of Investment), ASEAN Comprehensive Investment Agreement and several bilateral investment treaties.

Are any areas designated as protected areas within your jurisdiction and which are off-limits or specially regulated?

There are a number of types of land that are prohibited for mining, as outlined in question 15.