Mining Act 17/79

The purpose of this Act is to specify that the right to take minerals in Tanzania is vested in the United Republic and that no one shall take or explore for such minerals without first following the procedures specified by this Act.¹ A violation of this requirement is an offence with penalties for individuals of up to 10,000 Tsh. or imprisonment for a term not exceeding 2 years, or both, and for corporations, a fine not exceeding 100,000 Tsh. Specific penalties for other violations of the Act are enumerated therein. The policy goal of the Act seems to be maximum exploitation of minerals (see §13: A condition precedent to the grant of a mineral right is that the Minister is satisfied that it is the most efficient and beneficial use of the mineral resources of Tanzania). The Act divides mining into two categories: Small-scale mining and large scale mining and the analysis herein follows this approach.

Large-scale mining. Three stages are delineated for the large-scale mining process and each requires a license. First, section 26 specifies rights of reconnaissance license holders, including rights of entry into the reconnaissance areas, right to construct temporary buildings, camps, etc. Reconnaissance operations are defined by the Act as "the search for minerals by geophysical surveys, geochemical surveys and photo-geological surveys or other remote sensing techniques and surface geology in connection therewith."

The license may contain conditions of limitation by which the licensee must abide. Section 23 specifies the content of the reconnaissance license, which includes a description and plan of the area of land over which it is granted. Licenses are to be acquired from the Minister for Mines, who submits the application to the Mineral Rights Processing Technical Committee in Dodoma. Licenses are to be granted on the basis of technical and financial ability.

Second, a prospecting license may be acquired. "Prospecting" is defined as the "search means and to carry out any such works and remove any such samples as may be necessary to test the mineral bearing qualities of land" (§6). Thus, a prospecting license must be granted before someone may prospect. If a mineral license is granted over the same land which is covered by a prospecting license, the mineral license effectively cancels the prospecting license (§34). The rights and duties of the holder of a prospecting license are spelled out in §35-36.

Third, mining licenses can be acquired. To mine means "intentionally to mine minerals" and includes any operations directly or indirectly necessary for or incidental to mining minerals (§6). Mineral licenses can only be granted to: a) The registered holder of a "prospecting license" b) only in respect of land subject to the prospecting license, c) only if the registered holder has notified the Minister of discovery of minerals in commercial quantity. Section 41 gives the requirements for content of the license, including conditions and requirement that an appendix is included containing the program of mining operations. The registered holder of a mining license shall carry on mining and development operations in accordance with his program of mining operations.

Section 48 spells out restrictions on exercise of mining rights including requirements of special consent of the relevant Minister or management authority where mining licenses are sought in areas such as: a) Land set aside for a public purpose, b) Any reserved area or protected monument declared under the Antiquities Act, c) National parks, range development areas, or the Ngorongoro Conservation Area, cities/municipalities, etc. In certain cases, consent of the private occupier may also be required. Consent in any of these cases may be given with "conditions". Section 57 stipulates that licensees are subject to suspension or cancellation of a mineral right if they fail to use the license for designated purposes, the license was used in bad faith or they fail to comply with the Act, regulations or conditions of the License.

Applications for mining licenses must include, among other things, (§37(2)(h)(v)) "Proposals for the prevention or treatment of pollution, the safeguarding of fishing and navigation (if relevant), the progressive reclamation and rehabilitation of any land disturbed by mining, and for the minimisation of the effects of mining on water areas (if relevant)' Also, adjoining lands to mining or claim rights retain the right to graze stock upon or to cultivate the surface of the land, except if it interferes with any of the above operations. Lawful occupiers must get permission from holder of the mining license or claim before constructing or building a structure, and the mineral right should be exercised with as little as possible obstruction of the interest of any lawful occupier of the land. Under section 81, the occupier may receive compensation from the miner if the miner damages any crops, trees, buildings, stock or works thereon.

The Commissioner for Mines has enforcement authority, including power of entry, and right to enforce against licensees if violating the Act or permit conditions. Also, the Commissioner may "ascertain whether or not any nuisance exists upon any such area, land or mine or in any such premises or workings".

Tgiven the power to make regulations under §104, including the power related to:

1. Prospecting for minerals and the carrying on of operations, and the execution of works for that purpose, the methods which may not be used for that purpose and the duties of specified persons in relation to prospecting operations,
2. Mining for minerals and the carrying on of operations and the execution of works for that purpose, the methods which may or may not be used for that purpose and the duties of specified persons in relation to mining operations,
3. the regulation of matters relating to sanitation and health,
4. the exercise of rights in and duties to be performed (including work obligations) in relation to land subject to a claim or carrying on prospecting or mining operations.

While this is the general process for acquiring a mining right, it is also possible for the miner to enter into a mining agreement with the government to establish an additional framework of operations and security in a long-term investment period. In this case, the equivalent of an environmental assessment must be performed for the plan of operations before the agreement can be entered.

Small scale mining. The Act also establishes provisions for small-scale mining. Two steps exist in this process. First, a citizen of Tanzania may acquire a prospecting right from the Zonal Mining Officer. Prospecting rights are to be granted for a term of one year and are renewable, based on an interview with the prospector and payment of fees. Conditions may be imposed on the right and the right may be suspended or canceled for violation of the Act, regulations or conditions.

Second, claim titles may be granted to those holding prospecting rights. Where a prospecting right leads to a discovery of minerals, the prospector may "peg" a claim and then the validity of the prospecting right ceases. Prospectors have 30 days within which to register a claim after the claim is pegged. Claim titles are limited and dependent upon type of minerals and mode of occurrence.

In addition, special provisions are included in the Act to cover taking of building materials. Section 97 specifies that building materials may be taken in some cases without permission from the Minister. Thus, the Act does not preclude:

1. A citizen of Tanzania from taking, to the extent and in the manner which custom permits, minerals of any kind from land from which it has been customary to take minerals of that kind,
2. A person from taking, from land over which he holds a right of occupancy, building materials for the purpose of construction on the land of any dwelling house, factory, workshop or store, including the outbuildings or appurtenances thereof,
3. Any village registered under the Villages and Ujamaa Villages Act, building materials for any purpose referred to in paragraph (b) in relation to the land,
4. Any person engaged in the construction of tunnels, roads, dams, dams and similar public works of an engineering nature from utilising as building materials any minerals derived from a source approved by the Minister in writing.

1. Research indicates that the Mineral Trade Policy suggests that any one can sell minerals without accounting to the Ministry for Minerals. However, based on a legal analysis, the provisions of the Mining Act are the law and are what must be followed for businesses to be considered to be operating legally.