In brief: mining rights and title in Ireland

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?

Ownership of mines and minerals in Ireland is regulated pursuant to legislation including the Irish Land Acts 1903–1923 (the Land Acts) and the Minerals Development Acts 1940–1999 and is also subject to the common law. The exclusive right to work or extract in commercial quantities almost all minerals (as opposed to the right to own minerals) vests in the Minister for the Environment, Climate and Communications (the Minister). This has occurred in two main ways. First, mineral rights were reserved to the state (subject to some provisions about existing workings) during the division of large estates carried out by a state agency, the Land Commission, under the Land Acts. These minerals owned by the state are referred to as state minerals under the 1940 Act and can be leased under that Act. Second, by statutory vesting under the Minerals Development Act 1979 (the 1979 Act), which provides that the exclusive right of working minerals is vested in the Minister except as provided in that Act. These minerals are leased or licensed under the 1979 Act to third parties such as exploration or mining companies. The exceptions are limited and relate to minerals being worked before 1979, of which there are very few. The Acts provide that all rights of ownership of minerals under the foreshore vest in the state, as do all mines of gold and silver.

Some minerals were compulsorily acquired under now-repealed sections of the 1940 Act. These are also state minerals, which can be leased under the 1940 Act by third parties such as exploration or mining companies. The recommended practice before commencing prospecting is to carry out extensive searches of the two registers of land ownership, the Land Registry and the Registry of Deeds to ascertain the position regarding the ownership of minerals.

What information and data are publicly available to private parties that wish to engage in exploration and other mining activities? Is there an agency, or securities commission regulating public companies, 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?

In the case of a six-year prospecting licence, the holder must submit a work report at the end of each two-year phase. Since 2000, the Exploration and Mining Division, which has now been reorganised and renamed the Geoscience Regulation Office (GRO), has released all of its non-confidential exploration data. The types of exploration data made available by the GRO include:

• prospecting licence ground status;
• exploration company reports;
• drill-hole data; and
• airborne geophysics data.

All prospecting licence holders in Ireland are required to submit exploration reports to the GRO normally every two years and such reports are released free online after six years or upon surrender of a licence if earlier. Publicly available prospecting licence area data consists of non-confidential company work reports, both on surrendered prospecting licences and on work more than six years old from current prospecting licences. This open-file data is available for viewing by members of the public from the Geological Survey of Ireland (www.gsi.ie).

The status of ground in relation to which exploration licences can be granted is available online through the GRO’s Interactive Maps.

In addition, as part of a regional exploration programme, Vedanta Exploration Ireland undertook a project to capture and digitise data from open file geochemistry map images. A series of datasets were produced including regarding deep burden samples, deep overburden profiling and roadside samples. The data from this project was publicly released in February 2020. The GRO holds airborne survey data flown by industry in Ireland since 1995, which is made available after six years to exploration clients by request. In March 2017, mine data from the Galmoy mine and the Lisheen mine became publicly available.

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 or more senior tenure? What are the requirements to convert to a mining licence?

The Acts provide that all rights of ownership of minerals under the foreshore vest in the state, as do all mines of gold and silver. The precise extent of the state ownership of minerals is unknown but it could be that a majority are state-owned. The exclusive right to work minerals vests in the Minister under the 1979 Act, subject to some exceptions.

Prospecting licences are allocated by a system of competitive bidding. The GRO publishes a list of the prospecting licence areas available for application by interested parties under equal competition, the most recent being the 1 February 2023 prospecting licence competition, with the deadline for the competition being 31 March 2023. Such competitions are normally held quarterly. Information including current licence area status can be found on the GRO’s website.

The 1940 Act prohibits the holder of a prospecting licence from working, selling, or otherwise disposing of any minerals lying on or under the land in respect of which such licence was granted. In this context ‘working’ in relation to minerals includes digging, searching for, mining, getting, raising, taking, carrying away, treating and converting such minerals. The 1940 Act specifically allows the licence holder to take and remove reasonable quantities of the minerals to which the licence relates for the purpose of analysis, test, trial or experiment.

An additional and separate licence is required under law including the 1940 Act if the company requires to ‘work’ the minerals in the area of land subject to the prospecting licence. Where the mining or extraction of minerals in commercial quantities is intended it will be necessary for the company to make a separate application pursuant to the 1940 Act to the Minister in respect of the grant of a state mining lease (in the case of minerals in state ownership) or a state mining licence (in the case of minerals in private ownership). As a matter of policy, the Minister will only accept an application for a state mining lease or state mining licence if the applicant is the holder of a valid prospecting licence. The discovery of minerals under a prospecting licence does not guarantee that the licence holder will be granted a mining lease or licence to exploit any minerals so found. On such a discovery of minerals, the Minister has the power to enter into an undertaking with the licence holder, which provides that on the Minister being satisfied the prospecting has been successful, the Minister will grant a mining licence or lease on terms to be agreed.

To proceed to production, all holders of prospecting licences are required to obtain planning permission from the relevant local authority along with an Integrated Pollution Prevention and Control licence from the Environmental Protection Agency (EPA).

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

On the expiry of a prospecting licence, normally at the end of six years, if the Minister is satisfied that the licence holder has fulfilled the obligations imposed by the licence and the holder will continue to satisfy the financial, technical, environmental and other requirements of the Minister, the Minister undertakes on the application made by the licensee in writing to grant a renewal of the licence. Such renewal is for a further term of such duration as the Minister may consider appropriate, provided that an application shall be made no later than the expiry of the licence or any term of renewal thereof and provided the holder undertakes to carry out a work programme acceptable to the Minister and can meet all associated expenditure as the Minister may require. Renewals are generally granted for a two-year period.

Prospecting licences provide that the holder cannot, without the prior written approval of the Minister, assign any rights granted by the licence to any person and cannot, without the prior written approval of the Minister, sub-licence or part with the possession of any of the rights thereunder. Any such consent would be conditional on the licence holder being in compliance with the terms of the licence, including all work programmes, having paid all amounts due to the Minister and having complied with the requirements to provide details of operations to the Minister. Compliance with relevant legislation, such as environmental, planning permission (prospecting is normally exempt from this) and health and safety legislation is also necessary.

The policy of the Minister is generally to allow a licence to be assigned to another member of the group of companies under common control with the licence holder provided that the Minister is satisfied that the new licence holder has the technical and financial ability (including insurance) to continue to carry out the obligations under the licence. The policy of the Minister is not to consent to the assignment of a licence outside of the same group of companies as the licence holder, other than pursuant to a valid joint-venture agreement approved by the Minister where such a transfer is required under the terms of the joint-venture agreement. The proposed assignee must satisfy the Minister that it has the technical and financial ability to continue to carry out the obligations.

Where there is a change of control of the holder of a prospecting licence or its parent, the approval of the Minister is not normally required and a notification generally suffices. In the case of a proposed change of control of the holder of a mining lease or mining licence, it would be advisable to obtain the prior approval of the Minister.

Planning permission required to commence mining activities will run with the land. The right of access required from the owner of the surface land will be subject to a private agreement to be negotiated between the parties.

The 2017 Act introduces the new concept of a retention licence, which can be granted where the Minister is satisfied that the holder of a prospecting licence, having carried out a programme of exploration, has discovered a mineral resource that cannot for the time being be developed due to environmental, access or other difficulties. The holder of a retention licence would be subject to a reduction or elimination of requirements with respect to the exploration programme and financial expenditures. A retention licence may be granted for some or all of the minerals the subject of the original licence or additional minerals if necessary. The area for which a retention licence is granted would be the area that covers the identified mineral resource and such other land as may be required for future mining operations and, therefore, would normally be only part of the area covered by the relevant prospecting licence.

What is the typical duration of mining rights? Is there a requirement to relinquish a portion of the mining rights to the government after a certain number of years?

Prospecting licences are normally granted for a period of six years subject to compliance with the obligations to maintain the licence in good standing and file work reports every two years. On the expiry of the licence or at the end of any additional term for which the licence is renewed, the Minister is satisfied that the licence holder has fulfilled the obligations imposed by the licence and the licensee will continue to satisfy the financial, technical, environmental and other requirements of the Minister, the Minister may undertake on an application made by the licensee in writing to grant a renewal of the licence. Such renewal will be for such duration as the Minister may consider appropriate, provided that an application shall be made no later than the expiration of the term of the licence or the expiry of any term of renewal of the licence and provided the licensee undertakes to carry out a work programme acceptable to the Minister and can meet all associated expenditure as the Minister may require for the further term of normally two years.

Prospecting licences provide that the licence holder must during the first two-year period carry out the scheme of prospecting including geological or geophysical survey and programme of test drilling agreed by the Minister. One month before the end of each subsequent two-year phase of the licence, if the holder wishes the licence to continue in force a work programme for the second or third two-year phase must be approved by the Minister.

Prospecting licences provide that failure by the licensee to comply with the obligations in the previous paragraph, complete approved work programmes or submit work reports satisfactory to the Minister one month before the end of each phase, may result in the immediate revocation of the licence. The licence authorises the Minister to revoke the licence if the Minister considers there are reasonable grounds for so doing. The 2017 Act provides for the renewal of a retention licence in the same way as for the renewal of a prospecting licence, provided that the circumstances that justified the granting of the retention licence still pertain.

As a matter of policy, the Minister will only accept an application for a state mining lease or a state mining licence from the holder of a valid prospecting licence and planning permission over the area in question. State mining leases and state mining licences are negotiated on a case-by-case basis under the relevant legislation. State mining leases are granted for periods of between 10 and 30 years, while state mining licences are granted for periods of between eight and 30 years.

The 2017 Act provides for a new permit being a mining licence to be granted in respect of minerals whether state-owned or privately owned, or a combination of the two. Currently, different instruments (state mining licences or state mining leases) apply to different categories of ownership. It also provides that a licensee has the right to work and sell minerals subject to the duties imposed on the licensee elsewhere under the 2017 Act, including the duty to pay compensation for any damage or nuisance caused. The duration of a mining licence would be negotiated on a case-by-case basis with the Minister.

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?

Irish law makes no distinction between mining rights that may be acquired by domestic and foreign parties. In practice, many joint ventures in relation to Irish mining assets include an Irish incorporated partner but this is often for the purpose of benefitting from Irish technical expertise or tax reasons rather than a legal requirement. However, under the 2017 Act, a mining licence can only be granted to a company that is incorporated under the laws of Ireland or another EU member state.

The Screening of Third Country Transactions Act 2023 regulates and monitors transactions involving parties based or incorporated in countries outside of the European Union or the European Economic Area (EEA). The Act is anticipated to commence in the third quarter of 2024. Under the Act, ‘notifiable transactions’ are required to be notified to the Minister for Enterprise, Trade and Employment not less than 10 days before the completion of the transaction. Notifiable transactions include the acquisition of a majority of the shares in certain companies or the interest in an asset. They also include an acquisition of an interest of from 25 per cent or less to more than 25 per cent in such a company or asset. Notifiable transactions could include such an acquisition of prospecting or mining assets or a company owning such assets. Following receipt of a notification, the Minister will issue a written ‘screening notice’ to the parties following the commencement of the review and will issue a ‘screening decision’ within 90 days from the date on which the screening notice in relation to the transaction is issued. The 90-day review period may be extended to 135 days. If notified, the test for the Minister to employ is whether the transaction would be likely to affect the security or public order of the state.

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

Ownership of mines and minerals in Ireland is regulated pursuant to legislation including the Land Acts and the Minerals Development Acts 1940–1999 and is also subject to the common law. In general, the exclusive right to work (as opposed to the right to own) minerals vests in the Minister for Environment, Climate and Communications. The agency responsible for the regulation of mining is the GRO. In general, all minerals and mines in their original position are part of the land and ownership thereof rests with the owners of the surface other than those minerals and mines that belong to the state and other than any minerals specifically reserved. In summary, ownership of the surface land, unless otherwise conveyed, includes everything beneath or within it.

The exclusive right to work minerals vests in the Minister under the 1979 Act, subject to the main exception: that minerals being worked or developed on 15 December 1978 may be worked or developed by the owners of such minerals. These minerals are known as ‘excepted minerals’ and ownership of such minerals must be registered by the Mining Board. A person developing a mine on 15 December 1978 must apply to register the minerals so mined as excepted minerals – these are rare. If an application for registration is rejected by the Board or withdrawn, the right to work minerals vests in the Minister.

An owner of land may prospect for minerals on his or her own land. In all other cases, to explore for minerals in the state it is necessary to obtain a prospecting licence from the Minister pursuant to the 1940 Act.

Disputes regarding the ownership of mining rights are referred to the regular court system, with the identity of the relevant court being determined by the value of the claim. Claims above €75,000 are subject to the jurisdiction of the High Court. On this basis, most such disputes will be referred to the High Court. All Irish courts are part of an independent judicial system that adheres to the rule of law and due process. Where the Minister proposes to grant a state mining licence or lease, he or she must publish notice of this in at least one national daily newspaper. The Minister is also obliged to give to every person who may appear to him or her to have an estate or interest in the minerals notice of his or her proposal to grant a state mining licence or lease. Any such person is entitled to a reasonable opportunity of making representations to the Minister concerning the proposal.

The Minister has the power to refer any representations received from such a person to the Mining Board, which is an independent statutory body and has the power to review the decisions of the Minister. The Mining Board also has powers to decide on compensation for landowners or owners of minerals. Only persons appearing to the Minister to have an estate or interest in the minerals can insist on the Minister referring their representations to the Mining Board. The Mining Board then considers the representations and is required to hold an inquiry. Along with the Minister, the following persons are entitled to be heard at any such inquiry:

• persons making representations;
• any person claiming to have an interest in the minerals; or
• any other person considered by the Mining Board to be substantially affected by the licence.

Referrals to the Mining Board are rare.

The recognition and enforcement of foreign arbitration awards in Ireland are governed by the Arbitration Act 2010 (the 2010 Act) and Order 56 of the Rules of the Superior Courts. The 2010 Act incorporates the UN Commission on International Trade Law’s Model Law on International Commercial Arbitration (the Model Law). As a signatory to the New York Convention 1958, an arbitral award, irrespective of the country in which it was made (provided that country is a signatory of the New York Convention) must be recognised and enforced in Ireland unless one of the grounds set out in the Model Law exists. It is also possible to enforce foreign arbitral awards in Ireland where no convention or treaty applies.

What types of surface rights may mining rights holders request and acquire? How are these rights acquired? Can surface rights holders oppose these requests or does the holder of the mineral tenure have priority over surface rights use?

A prospecting licence grants rights in relation to the exploration of the minerals and a mining licence or mining lease deals with the extraction or mining of those minerals. None provide for any right of the licence holder to have access to, occupy or own the land in respect of which the lease or licence is granted. As a result, it is the responsibility of the licence holder to obtain the permission of the owner of the relevant land. The licence holder will need to negotiate the terms of its access and occupation with the landowner usually in return for a fee agreed between the parties. In some cases, where a mining lease or licence has been granted, the holder will seek to purchase the freehold title to some or all of the relevant land. There is no provision in the legislation to compel a landowner to sell his or her land to the holder of a lease or licence and so the mining company must make the sale of the land attractive to the landowner.

A prospecting licence provides that a minimum of two weeks’ advance notice in writing must be given to the Minister of the proposed borehole and shaft sinking intended to reach a depth of more than 20 feet below the surface and a journal of such shaft or borehole and specimens must be kept for inspection by the Minister. No excavation of trenches can be carried out without the prior written approval of the Minister. All drilling and trenching must be carried out in such a way as to facilitate proper reinstatement of the land, and the licence holder must observe all written directions given by the Minister.

In addition to these, two main statutory permissions are required to use the surface land for mining activities (which are not normally required for prospecting or exploration activities):

• planning permission under the Planning and Development Acts 2000–2015 is granted by the planning section of the local authority in which the mine or interest is situated; and
• an Integrated Pollution Prevention and Control licence must be granted by the EPA pursuant to the Environmental Protection Agency Act 1992.

The Planning and Development Bill 2023 may result in planning and procedural changes when the legislation is finalised and enacted, as scheduled for later in 2024.

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?

Under the 1979 Act, the conditions attaching to a state mining lease or state mining licence may, with the concurrence of the Minister for Finance, include a condition giving the Minister the right to take a participating interest in the working of the minerals. Such a right is not always exercised although the Minister has wide discretion under the 1940 Act to charge the holder of a mining lease or mining licence an annual fixed (or dead) rent or a percentage royalty calculated on the proceeds of production subject to certain deductions including transportation costs, or both.

Under the 2017 Act, the Minister may, with the prior consent of both the Minister for Public Expenditure and Reform and the licence holder, take a participating interest in a state mining licence or provide in the licence for such a right in the future. It is not known to what extent this right will be exercised by the Minister or what the percentage of any participating interest might be.

There is no local listing requirement for a project company.

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

The Minister has the power to revoke or terminate a prospecting licence under the 1940 Act. Such a power could be exercised where the licence holder has failed to pay licence fees, becomes insolvent or fails to file work reports with the GRO. Such power of revocation is rarely exercised by the Minister and any such revocation would have to be exercised in accordance with natural and constitutional justice, which would require reasonable notice and an opportunity for the licence holder to make representations to the Minister. The Minister is also entitled to terminate a mining licence or mining lease in similar situations.

The 1979 Act deals with the compulsory acquisition of minerals. The starting point is that companies engaged in exploration must have reasonable certainty that if they discover minerals they will be allowed to mine them without risk of expropriation. Under the Irish Constitution, the right of a person to own private property, such as minerals, is protected. The 1979 Act vests in the Minister the exclusive right of working materials, save for any developments existing in 1979. The Irish Supreme Court upholds a limited right of the state to compulsorily acquire private property, such as minerals, where this can be demonstrated to be in the common good, subject to review in the courts so that the right to private property is upheld and provided compensation is paid. The amount of any compensation if not agreed with the Minister would be decided by an independent body, the Mining Board and any decision of the Board is subject to appeal to the High Court.

The 1979 Act sets out the financial criteria for the assessment of compensation payable to owners of land being what is fair and reasonable having regard to all the circumstances of the case. This will be based on such proportion of the net profits arising in consequence of the working of the minerals attributable to those minerals as they existed in the land in their natural condition prior to such working. It is thought that this would be applied to a mining company. Compensation will be determined in the form of periodical payments unless the Mining Board or the Court is satisfied that such form of compensation would not of itself be appropriate and in such case, the Board or the Court may award compensation being either a lump-sum payment or partial lump sum and partly periodical payments. Instances, where the Minister has exercised the right to compulsorily acquire minerals owned by a mining company or revoke mining leases or mining licences, are rare.

Are any areas designated as protected areas within your jurisdiction and which are off-limits to mineral exploration or mining, or specially regulated?

A standard term of all prospecting licences is that the holder must carry out all operations within the licensed area to avoid damage to the environment and the amenities in that area. This requires compliance with:

• the Wildlife Acts 1976 and 2000;
• the European Communities (Birds and Natural Habitats) Regulations 2011 (SI 477/2011);
• the European Communities Environmental Objectives (Surface Waters) Regulations 2009 (SI 272/2009);
• the European Communities Environmental Objectives (Freshwater Pearl Mussel) Regulations 2009 (SI 296/2009); and
• the National Monuments Acts 1930–2004 and regulations made thereunder.

Directive 92/43/EEC on the Conservation of Habitats, Flora and Fauna (the Habitats Directive), was transposed into Irish law by the Natural Habitats Regulations 1997 (SI 94/1997, as amended by SI 233/1998 and SI 378/2005). The main aim of the Habitats Directive is to contribute to the conservation of biodiversity by requiring EU member states to take measures to maintain or restore natural habitats and wild species designated with favourable conservation status. These are habitats and species that are considered threatened. Natura 2000 is an EU network of important ecological sites regulated under the Habitats Directive. The network is made up of special protection areas (SPAs), established under Directive 79/409/EEC on the conservation of wild birds, and species action plans (SACs), established under the Habitats Directive.

The environmental implications of mining that are likely to have an impact on any SAC have to be assessed irrespective of the location of the development. In some cases, this may require a full environmental impact statement. In summary, an assessment providing that a proposed mine would have a significant effect on a national monument, SAC or SPA should be identified at an early stage as it would materially impact a planning permission application.