Every tenement under the Mining Act 1992 carries conditions. Section 142 is what happens when they are not met.
What the conditions are
| Source | Condition |
|---|---|
| ss 20(2)(b), 33(2)(b), 38(3)(b), 48(3)(b), 65(2)(c), 80(2)(c) | Compliance with the approved programme or the approved proposals — a mandatory condition of every tenement |
| The same sections | Any other conditions the Minister determines — and, for a special mining lease, conditions consistent with the mining development contract |
| s 159(c) | The terms of a registered compensation agreement or a Warden’s determination |
| s 16A(1)(b) | Recognition of the State participation rights for a Mining Project |
| s 85(4) of the Environment Act | Payment of compensation for land acquired and made available to a permit holder |
| ss 41, 51, 69, 84 | Rights exercisable in accordance with the Mining (Safety) Act |
Note that failure to lodge the security is expressly declared by section 150(2) to be a breach of a provision of the Act for the purposes of section 142(1)(a).
Section 142 — the show-cause procedure
(1) Where the holder breaches (a) a provision of this Act, or (b) a condition on which the tenement was granted, the Managing Director may, by written notice, require the holder, within the time specified in the notice, to show cause why the tenement should not be cancelled.
(2) Where the holder fails, in the opinion of the Minister after receiving a recommendation from the Council, to show cause in accordance with the notice, the Minister may cancel the tenement.
(3) Where a mining development contract has been entered into by the holder, the tenement shall not be cancelled unless the contract has been terminated.
The Managing Director issues the notice. The Council makes a recommendation. The Minister forms the opinion and decides. That layering is a protection for the holder, and it reflects the principles of natural justice in section 59 of the Constitution — the holder is told what the breach is and given a stated time to answer before anything is decided.
Section 142(3) is a further protection for the largest projects: where a mining development contract is in place, the tenement cannot be cancelled unless the contract has first been terminated.
Answering a show-cause notice
- Diary the time specified, and ask in writing for an extension if the evidence cannot be assembled.
- Identify precisely which breach is alleged — a provision of the Act, or a condition, and which one.
- Fix it. A remedied breach is the strongest cause that can be shown.
- Explain what happened and why, and what has been put in place to prevent recurrence.
- Where compensation is the issue, pay it or resolve the dispute — the terms are a condition under section 159(c).
- Attach the evidence — expenditure and work reports, monitoring data, correspondence, receipts.
- Where a variation is the real answer, apply for one: section 27 for an approved programme, sections 45, 54, 72 or 87 for approved proposals, and section 71 of the Environment Act for a permit.
The other consequences of non-compliance
| Consequence | Provision |
|---|---|
| Cancellation of the grant where rent or security is not paid within 30 days of grant | s 111(2) |
| No extension — the Council must advise that the holder has complied with the conditions and paid compensation | s 28(1)(a), (b); s 28(4) |
| Deduction from the security of fees, rent, royalty, compensation, penalties and the Authority’s costs | ss 139(2), 143(2), 144(2) |
| Surrender blocked until the Registrar is satisfied that the cessation and restoration conditions are met | s 139(1) |
| Liability survives surrender, cancellation and expiry | ss 140, 145(b) |
| Offence — general penalty where no other is provided: K3,000 or three months, plus K300 per day after conviction for a continuing offence | s 168(2) |
| Directors and officers guilty where the act or omission took place with their authority, permission or consent | s 168(3) |
| Cancellation of a ballot grant where the successful applicant was an associated person of another applicant | s 100(6) |
| Cancellation for non-compliance with an order resolving a petroleum conflict | s 164(4) |
Where there is no tenement at all
Section 142 deals with a holder who breaches. Where a person is not authorised at all, section 167 applies: the Managing Director may direct the person to cease, orally or in writing, and take whatever action is reasonably necessary to remove them from the land. The offence carries up to K10,000 or four years, and the Court may order rehabilitation of the land, recovering the cost as a debt to the State if it is not done.
And the environment permit runs alongside
Breach of a tenement condition does not affect the environment permit, and vice versa. Under section 72 of the Environment Act 2000 the Director may issue his own show-cause notice on six grounds — conviction, a materially false representation, breach of a permit condition, failure to perform an obligation, failure to notify harm under section 8, or unpaid compensation on application by a person entitled under section 87 — and may then suspend or cancel the permit.
Operating while a permit is suspended or cancelled carries up to K250,000 for a corporation under section 73(1). See how the two Acts fit together.
For landowners
- Know what the conditions are. The approved programme or proposals are conditions, and so are the compensation terms.
- Report breaches in writing to the Managing Director, the Chief Warden and the Registrar, with dates and evidence.
- Ask for a section 142 show-cause notice where the breach is serious or persistent.
- Object at extension under section 107, which applies to extensions as well as grants.
- Use the environment route too — it has its own show-cause procedure and a landholder can trigger it on unpaid section 87 compensation.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Mining Act 1992 — ss 16A, 20, 27, 28, 33, 38, 45, 48, 54, 65, 72, 80, 87, 100, 107, 111, 139–145, 150, 159, 164, 167, 168
- Environment Act 2000 — ss 8, 71, 72, 73, 85, 87
- Mining (Safety) Act (Chapter 195A)
- Constitution — s 59
Before relying on anything here, read the current text of the Mining Act 1992 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.