Sample/ Introduction to the Guide to Aspects of the Mining ActSUMMARY This report is a collation of a series of Editorials which have appeared in the Exploration and Mineral Digest over the period from 1992 to 1995. The common theme is explaining selected legislative aspects of the 1990 Constitution, Mining Act (Chapter 146 of the Laws of Fiji) and of MRD's related administrative policies on these mineral related topics. Topics discussed include the requirements in order to obtain a partial waiver of pegging, priority in applications, performance and rehabilitation bonds, speculative activity, enlarging prospecting licences, exploring or mining for minerals other than those stipulated on the licence or lease, renewal of prospecting licences, continuity of tenure passed the expiry date and continuity of obligations, the timing of release of data on to open file, an unforeseen consequence of granting a mining lease (i.e. the remainder of the SPL is automatically cancelled), Government Protection Areas and Closed Areas, the current situation on mineral royalties, and the import and export duties on minerals and mineral products. Note that this report is not a comprehensive or definitive statement of the requirements of the Constitution of the Republic of Fiji, the Mining Act (Cap. 146) or the Customs Tariff (Amendment) (No. 2) Act, 1994 and should be read in conjunction with the appropriate legislation and any subsequent amendments. CONTENTS
WHEN DOES GROUND BECOME AVAILABLE FOR PEGGING? MRD's policy on applications for new licences is that the application will only be accepted once the area is free, i.e., the cancellation, surrender or expiry of any former licence has been notified in the Fiji Republic Gazette. Notices will also be posted on the notice board at MRD, Nabua. Both are as required by Regulation 79 of the Mining Act, Cap. 146. Priority on applications is outlined in Regulation 21 of the Mining Act, Cap. 146. WAIVER OF PEGGING REQUIREMENTS - PROSPECTING LICENCES MRD receives numerous applications for a waiver of pegging requirements from applications for prospecting licences. It is considered appropriate to inform and remind intending applicants of the requirements under the Mining Act and of MRD policy. Before application is made for a mining tenement (prospecting licence) the intending applicant, or his agent, are required to mark out the land. Requirements 9-14 inclusive, of the Mining Act, cover the requirements for pegging ground and obviously result from the historical practise of erecting corner posts, boundary posts, beacons, datum posts, etc. However, the Director may, at the request in writing of the intending applicant for such tenement, or his agent, vary or dispense with those pegging requirements (Regulation 19(3)). Such consent by the Director must be in writing before the intending applicant makes any application for such tenement. Intending applicants should note that they have the right to peg ground in the normal manner if they do not intend to apply for waiver of pegging requirements. The Director may call upon any applicant for a mining tenement to prove that he has the working capital and is in a position to carry on bona fide and efficient prospecting (Section 17). Inherent in any mining legislation is the expectation and understanding that it is the bona fide prospector, an individual or a company, that applies for a waiver of pegging requirement and followed by an application for a mining tenement. The Department normally grants only a partial waiver of pegging requirement. An intending prospector, an individual or a company agent is required to erect a datum post, inform the landowners concerned and offer the traditional sevusevu/or presentation etc. The prospector, individual or the company agent, who erects the datum post, is required to hold a Prospector's Right. It has been noticed in the recent past of some cases where accredited agents for companies hold Prospector's Rights (lawyers, accountants, etc.), but who do not erect the datum post. It is a requirement that the person undertaking the pegging should be clearly and directly responsible for his acts and omissions and this is best achieved by that person also being the holder of a Prospector's Right. PRIORITY Priority and what constitutes priority under the Mining Act are topics which cause considerable confusion with applicants when lodging applications for waiver of the pegging requirements and (special) prospecting licences. Undoubtedly, some clarification of the issues is necessary. Priority of consideration is covered by Regulation 21 of the Mining Act, Cap. 146. Simply, priority of consideration is obtained when Form 1, duly completed, is lodged at and accepted by MRD. Form 1 has the provision for the receiving officer at MRD to sign, date and record the time of lodgement. The emphasis should be noted - it is the successful lodgement of a duly completed Form 1 which is the determinant of priority. Interested parties should note that letters to the Director applying for (partial) waiver of the pegging requirements do not give the applicant priority. The Director has in the past and will again in the future if necessary grant (partial) waiver of the pegging requirements to more than one company for the same or overlapping areas. The date of application for such waiver or date of granting of such waiver is not regarded by the Director as relevant to the question of priority. Where companies are concerned over any time delay in obtaining a (partial) waiver of the pegging requirements, the alternative route of full pegging is always available - as detailed in Regulations 9 to 13 of the Mining Act. Regulations 14 and 15 cover defects in marking out the tenement and whether such defects are regarded as trivial or not. Secondly, due consideration must be given to that aspect of Form 1 being completed properly. Regulations 16 to 18 detail aspects that need to be covered at the time of lodging Form 1 with MRD, i.e., the application must be accompanied by payment of the appropriate fees and rental, plans and authorisation of the agent. Hence there may be a difference between simply having the form and accompanying paperwork accepted across the counter at MRD but where, upon closer inspection later, it may be found to be incomplete. It is in the interest of all parties concerned to pay attention to detail at the stage of lodging applications. Section 21 covers the case where more than one person applies for a mining tenement over the same piece of land - priority is to be given by the Director to the person who "has first correctly marked out the area and first applied for such mining tenement over such land in accordance with the provisions of these Regulations". Note that the emphasis includes many aspects, any one of which if not done correctly can cause an application to lose priority with respect to a competing application, i.e.: - on marking out the area first - on marking out the area correctly - applying first - applying in accordance with the Regulations. Where two applications for mining tenements over the same piece of ground are received simultaneously, the Director gives priority of consideration to the person who first marked out the land. |
