Mining rights and title in Democratic Republic of Congo

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?

Following the Constitution and the Mining Code, all deposits of mineral substances in the soil or subsoil are the exclusive property of the state.

The conditions under which corporate entities may be granted mining concession rights are determined by law.

Although any corporate entity can obtain mining rights without distinction of nationality as opposed to the provisions in the previous Mining Code, this extended eligibility, however, has its limits. Indeed, mining rights for non-artisanal research and exploitation are reserved for DRC nationals.

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?

Private parties willing to engage in exploration and other mining activities can have access to data publicly available through the authorities, agencies and organisations below:

• the Ministry of Mines (www.mines-rdc.cd);
• the Mining Registry (www.cami.cd or www.flexicadastre.com);
• the CTCPM (Cellule Technique de Coordination et de Planification Minière) (www.miningcongo.cd);
• the CEEC (Centre d’Expertise, d’Evaluation et de Certification des substances minerales précieuses et semi-precieuses), which frames the artisanal and industrial mining and marketing of precious and semi-precious mineral substances and provides valuations and certifications (www.ceec.cd). The CEEC also issues certificates for shipments of rough diamonds required under the Kimberley Process Certification Scheme;
• the CRGM (Centre de Recherches Géologiques et Minières), which promotes, carries out and coordinates scientific studies on Congo’s potential mineral resources and renders them available for consultation (www.drcmining.com);
• the University of Lubumbashi (Katanga) (www.unilu.ac.cd); and
• the Royal Museum on Central Africa (Brussels, Belgium), which has a very active geological department (www.africamuseum.be).

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?

The DRC’s legal framework allows for any corporate entity to engage in non-artisanal research or exploitation of mineral substances, as long as the private party holds a valid mining right.

Mining rights are acquired in two different ways:

• through a competitive bidding process organised by the government, through the relevant minister. Competitive bidding is governed by the Congolese legislation related to public procurement and the process cannot last more than nine months; or
• on a first-come, first-served basis, with a perimeter being divided into squares and registered in the chronological order of their filing.

The rights holder must begin exploration within one year (in the case of a research permit) or begin construction within one year (in the case of an exploitation permit) from the date the title was issued. The rights holder must also pay the surface duty per square over the counter at the Mining Registry.

In order to convert a mining licence, a research permit holder must, in particular:

• demonstrate the existence of an exploitable deposit;
• demonstrate the existence of the financial resources required to continue carrying out its project; and
• transfer 5 per cent of its shares to the state.

To obtain an exploitation permit, the applicant must demonstrate that he or she holds a valid research permit that covers the mining perimeter for which the exploitation permit is applied.

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

The regime for the renewal of and transfer of mineral licences is as follows.

Research permit

A research permit is valid for five years, and renewable once for another five years, for all mineral substances. The main conditions are detailed below. The holder of a research permit must:

• have complied with all obligations related to a research permit;
• submit a report on the research work carried out during the validity of the permit, as well as the validity of the period of the permit;
• submit a schedule for the execution of the research studies in question;
• have complied with the applicable tax liability and customs requirements;
• provide evidence of the opening of a research centre, recorded by the local authorities;
• determine the remaining phases to be carried out up to the final stage of certification of reserves and the development of feasibility studies; and
• present a supplementary budget for the research programme, corresponding to the remaining steps.

The request for renewal must be submitted to the mining registry between three and six months prior to the expiry of the permit. Every renewal requires the holder of the research permit to give up 50 per cent of the perimeter covered by its permit. If the minister does not respond to the renewal request within 30 days after submission, then the renewal is deemed granted. In case of refusal of a renewal, this refusal must be justified and is subject to appeal. However, this rule might be changed. Indeed, article 62 of Law No. 18/001, dated 9 March 2018, provides that this rule will be determined by the new ancillary regulation.

Exploitation permit

An exploitation permit cannot exceed 25 years and is renewable for another 15 years.

The main conditions are detailed below. The holder of an exploitation permit must:

• have complied with all obligations related to an exploitation permit;
• submit new feasibility studies showing the existence of recoverable reserves;
• demonstrate the existence of the financial resources required to continue carrying out its project;
• make a commitment to continue exploitation;
• demonstrate entry into the profitability phase of the project;
• have complied with the applicable tax liability and customs requirements; and
• transfer 5 per cent of its shares to the state at each renewal of the permit.

What is the typical duration of mining rights?

See question 11.

The Minister of Mines, who has, among other powers, jurisdiction over the granting, refusal and cancellation of mining rights, exercises his or her powers by way of decree.

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?

Whereas the previous Mining Code imposed nationality criteria, this was suppressed by the 2002 Mining Code, which established the grounds for wider eligibility criteria. Hence, no distinction is made between the mining rights that may be acquired by domestic parties and those that may be acquired by foreign parties. However, artisanal digging and trading can only be carried out by DRC nationals.

Furthermore, before engaging in the mining industry in the DRC, foreign companies must abide by some administrative obligations. For instance, they must incorporate a local company before applying for an exploitation permit and must also elect domicile with an authorised Congolese mining and quarry agent and always act through their intermediary. Moreover, 10 per cent of the mining company’s share capital must be held by Congolese natural persons.

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

The Mining Code provides for a recourse system for mining rights holders with three different possibilities for the resolution of disputes over mining rights:

• administrative;
• judicial; and
• national or international arbitral recourse.

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 holders can request and acquire from the governor of the province concerned and on the advice of the administration of mines the right to occupy within its mining perimeter the land necessary for its activities and industrial activities.

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?

The state is a direct or indirect shareholder (major or sole) in many mining companies. A company willing to acquire an exploitation permit must also transfer 10 per cent of its share capital to the state for free. Furthermore, 5 per cent of the mining company’s share capital must be transferred to the state for free at each renewal of the exploitation permit.

There is no specific local listing requirement for the project company.

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

The expropriation of licences is provided by the Mining Code according to which expropriation is conditional on exceptional circumstances and to compensation for the holder of the mining licence, who has the possibility to appeal.

The compensation must be paid at least six months prior to the compulsory execution of the decision to expropriate.

Within 48 hours following the date of notification of the decision to expropriate, the state will notify the affected holder of the proposed amount for compensation, and the precise or estimated date on which the actual expropriation will take place.

The expropriated holder must react within 10 days from the date of receipt of the state proposal, unless he or she requests an additional extension.

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

There are certain areas that are subject to specific regulations, such as those related to artisanal mining or those where mining is prohibited (for national security, environmental or safety reasons).