KEY TENETS OF MINERAL RESOURCE REGULATION. The regulation of minerals in the wake of clean energy technology. 3 5 April 2018

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Arlene Evans
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Seminar organized by the University of Cape Town and

University of Oslo With support from the Norwegian

1 KEY TENETS OF MINERAL RESOURCE REGULATION The regulation of minerals in the wake of clean energy technology. 3 5 April 2018 EVENING SEMINAR SERIES (4pm-7pm) Seminar organized by the University of Cape Town and the Scandinavian Institute of Maritime Law, University of Oslo With support from the Norwegian Centre for International Cooperation in Education Venue: Faculty of Law, University of Oslo, Kjerka, Karl Johansgt. 47.

2 ABOUT THE SEMINAR The transition to renewable energy around the globe, as well as technological advancements in energy storage batteries, the automobile and other industries, is escalating the demand for rare earth metals and minerals. As a result, the face of mining is changing, testing the boundaries of existing legislation. In the wake of this upcoming new gold rush, it is imperative that legal frameworks are in place to ensure that all stakeholders obtain maximum benefits and protection from these increased extractive activities, and that common interests and values are properly managed and preserved. The seminar will offer participants the opportunity to acquire and develop their knowledge of mining and minerals law, through a review of its key structuring principles related to ownership, acquisition of rights, exploitation models and environmental protection. Taking a comparative approach between Norway and South Africa, the two partners of the MENSA educational project, this seminar will build on practical illustrations from national regulation. Norway and South Africa both may be attractive to investors in the mining industry, but their legal framework is also put under pressure as a consequence of it. In Norway, the 2009 Minerals Act is the central applicable piece of legislation onshore, but new prospects of offshore discoveries have motivated the government to put forward in 2017 a law proposal for the exploitation of seabed minerals on the continental shelf. In South Africa, the Mineral and Petroleum Resources Development Act 28 of 2002 governs mining activities, assisted by a range of other supporting statutes dealing with environmental issues, ensuring transparency and accountability and also concerning taxation and decision-making. Recent concerns are related to the proposal to allow for expropriation without compensation, and to the requirements for shareholding of mining companies to be held by a percentage of historically disadvantaged South Africans. Attempts at developing and/or refining the regulatory frameworks for mining in both these countries are therefore ongoing. STRUCTURE The seminar series is structured around 3 specific aspects of mineral resource regulation, which are: Mineral tenure system and agreements: ownership, rights and investment protection; Social and environmental obligations; Offshore mining regulation. Participants can choose to participate to the whole seminar or just to attend the day(s) of their choice. TARGET AUDIENCE - Students eager to develop their carrier within energy and mineral resources law or to write a master thesis on the topic; - Lawyers; - Civil servants and decision makers. 2

PARTICIPATION The seminars are free of charge, but registration is mandatory.

ORGANISERS AND FUNDING The seminar is based on a cooperation project between the University of Oslo,

Mineral Law in Africa (MLiA). Further information is available on the project website: http://www.jus.

html PARTNERS University of Oslo (UiO), Faculty of Law, Scandinavian Institute of Maritime Law

3 PARTICIPATION The seminars are free of charge, but registration is mandatory. Registration form: Deadline for registration is 30 March ORGANISERS AND FUNDING The seminar is based on a cooperation project between the University of Oslo, Scandinavian Institute of Maritime Law and the University of Cape Town, Private Law Department, Mineral Law in Africa (MLiA). Further information is available on the project website: PARTNERS University of Oslo (UiO), Faculty of Law, Scandinavian Institute of Maritime Law University of Cape Town (UCT), Faculty of Law, Mineral Law in Africa (MLiA) FUNDING This project receives funding from SiU, the Norwegian Centre for International Cooperation in Education. 3

4 Day 1: MINERAL TENURE SYSTEM AND AGREEMENTS: OWNERSHIP, RIGHTS AND INVESTMENT PROTECTION Tuesday 3 April 16:00-16:10 Welcome and introduction to the MENSA-project. 16:10-16:40 Core property concepts in mineral law, by Hanri Mostert, UCT Mineral, Oil and Gas Ownership and cuius est solum Notion of severance Custodianship / Public Trusteeship 16:40-17:10 Interplay between Property Law and Administrative Law: Mineral Law within the Legal System, by Hanri Mostert, UCT Interplay between Private Law and Constitutional Law Role of Administrative Law and Property Law Government as allocator of rights / referee / watchdog / competitor Publicity and parliamentary scrutiny of the content and nature of foreign investment agreements Discretionary powers and administrative review Publicity of revenue obtained from the mining sector: Financial frameworks and flow of funds (exchange control regulations, taxation laws, mine royalty laws). 17:10-17:40 Ownership, Rights and Entitlements by Hanri Mostert, UCT Ownership options Acquisition of rights Negotiability of Rights Rights to Surface and Subsurface Use Expropriation and Compensation Dispute resolution measures 17:40-17:50 Coffee Break 17:50-18:30 International Investment Protection Considerations, by Ivar Alvik, UiO 18:30-19:00 Mineral Tenure Security, by Cheri Young, UCT 4

5 DAY 2: SOCIAL AND ENVIRONMENTAL OBLIGATIONS Wednesday 4 April 16:00-16:05 Welcome and introduction to the seminar. 16:05-16:45 Obligations in Respect of Society/Local Communities, by Cheri Young, UCT Consultation requirements Corporate social responsibility Social impact assessments Social licence to operate Indigenization/prescribed local content/empowerment laws 16:45-17:20 The OECD Due Diligence Guidelines for Meaningful Stakeholder Engagement in the Extractive Sector, by Ola Mestad, UiO 17:20-17:30 Coffee Break 17:30-18:00 Environmental Regulation of Mining Activities in Norway, by Ole Kristian Fauchald, UiO 18:00-18:40 Obligations in Respect of the Environment by Cheri Young, UCT Environmental impact assessment procedures Administration of environmental legislation in respect of mineral resources Constitutional alignment of the mining and environmental portfolios Right holder obligations (and sanctions) in respect of the environment Mine closure and rehabilitation Mining in relation to land use Waste disposal, water use licenses 18:40-19:00 Discussion 5

6 DAY 3: OFFSHORE MINING ACTIVITIES Thursday 5 April 16:00 16:05 Welcome and introduction to the seminar. 16:05-16:45 The International Seabed Authority: Legal Framework and State of Play, by Catherine Banet, UiO 16:45-17:20 International Law Requirements when Developing Offshore Mining Regime within National Jurisdiction, by Erik Røsæg and Catherine Banet, UiO 17:20-17:30 Coffee Break 17:30-18:10 The Law Proposal on Seabed Mineral Activities on the Norwegian Continental Shelf, by Helge Westborg, Ministry of Petroleum and Energy 18:10-18:50 Offshore Mining Legislation in South Africa, by Cheri Young, UCT. 18:50-19:00 Round-up 6

7 PRESENTERS (by alphabetic order) Ivar Alvik Professor, Dr. Juris, Scandinavian Institute of Maritime Law, Department of Petroleum and Energy Law, Faculty of Law, University of Oslo. Catherine Banet (contact person) Associate Professor, Dr., Scandinavian Institute of Maritime Law, Department of Petroleum and Energy Law, Faculty of Law, University of Oslo. Ole Kristian Fauchald Professor, Dr. juris, Department of Public and International Law, Pluricourts, Faculty of Law, University of Oslo. Ola Mestad Professor, Dr. juris, Head of the Scandinavian Institute of Maritime Law, Faculty of Law, University of Oslo. Hanri Mostert Professor, Dr., Head of the NRF/SARChI Chair for Mineral Law in Africa, Department of Private Law, University of Cape Town. Erik Røsæg Professor, Dr. juris, Pluricourts, Faculty of Law, University of Oslo. Helge Westborg Director, Oil and Gas Department, Norwegian Ministry of Petroleum and Energy. Cheri-Leigh Young Dr., Postdoctoral Research Fellow, Department of Private Law, University of Cape Town. * * * 7

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