MINING TITLES REGISTRATION AMENDMENT BILL AN INDEPENDENT VIEW

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MINING TITLES REGISTRATION AMENDMENT BILLAN
INDEPENDENT VIEW

• Fred Cawood
• Wits University

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ISSUES TO CONSIDEREVOLUTION OF MINERAL TITLE

• HISTORICAL DEVELOPMENT
• Pre-colonial Customary Law Communal property
• Cape of Good Hope Roman Dutch Law Land and
  mineral rights
• British annexure English Law Reservation of
  certain minerals
• Discovery of diamonds onwards Severance of land
  and mineral rights
• Registration of title, leases and permissions at
  Deeds Offices and RMT
• NEW ORDER IN TERMS OF 1998 MINERAL POLICY
• Right to mine minerals revert to state without
  loss of security of tenure
• Constitutional constraint to be considered in
  phasing out private MR
• MPRDA allows for new system of rights in line
  with new order
• MPRDA allows for conversion and deregistration of
  old-order rights
• MPRDA allows for registration of new-order and
  converted rights at MTO
• MTRAB provides for registration of new-order
  rights and any transfer, cession, letting,
  subletting, alienation and encumbrance by
  mortgage over mineral and petroleum properties.

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ISSUES TO CONSIDERMINING TITLES REGISTRATION
AMENDMENT BILL

• THE BILL DOES NOT STAND IN ISOLATION
• Mineral and Petroleum Resources Development Act
• Regulations to MPRDA
• Deeds Registry Act
• Land Survey Act
• Royalty Bill
• REGISTRATION OF RIGHTS IS NOT A NEW CONCEPT
• Requirement for security of tenure
• Mineral rights, mineral and prospecting leases
  have always been registered at the Deeds Offices
  pursuant to 1937 Deeds Registries Act
• Deeds Offices have shortcomings in respect to
  mineral rights and registered mineral interests.
  However, the system of land registration is
  commendable, especially in the old Transvaal
• Registrar of Mining Titles registered old-forms
  of mining title pursuant to 1967 Mining Titles
  Registration Act

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HISTORICAL ISSUES1937 DEEDS REGISTRIES ACT

• DEFINITION IMMOVABLE PROPERTY (REPEALED)
• Any registered lease of rights to minerals and
• Any registered lease of land and
• A registered right of leasehold and
• A registered right of initial ownership
• DEFINITION OWNER, IN RELATION TO IMMOVABLE
  PROPERTY
• The person registered as the owner of immovable
  property
• DEFINITION REAL RIGHT
• Any right that becomes a real right upon
  registration
• DEFINITION REGISTERED
• Means registered in the Deeds Registry

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HISTORICAL ISSUES1937 DEEDS REGISTRIES
ACT(Repealed Sections)

• SECTION 70 RIGHTS TO MINERALS
• Separate registration of mineral rights from the
  land
• Separate registration of rights to different
  minerals
• Provision for certificates of mineral rights
  showing ownership
• SECTION 71 MINERAL RIGHTS CERTIFICATES
• Detailed description of mineral rights (with
  diagram)
• Registered against title deeds of the land above
• SECTION 74 UNDIVIDED SHARES IN MINERALS
• Persons may jointly hold certificate of mineral
  rights

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THE BIG (NEW) PICTURE

• Constitution
• Supreme Law
• PRINCIPLES
• People/Equality
• Environment
• Property
• Information

• Acts (MPRDA etc)
• Guides
• (Regulations)
• INSTRUMENTS
• Equal access
• EMP/MHS/SP/LP/CP
• Convert rights
• Disclose/Registration

Mineral Policy Vision INTENT Equal
opportunity Sustainable dev Change
system Optimal use
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1996 CONSTITUTION

• SECTION 25 PROPERTY
• No one may be deprived of property
• No law may permit arbitrary deprivation of
  property
• Property may be expropriated when in the public
  interest, which includes the commitment to bring
  about equitable access to natural resources
• Expropriation may only occur upon fair
  compensation reflecting an equitable balance
  between the public interest and those affected

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Response to Mineral Policy (1990 2001)
Mineral Policy
Elections
Three years before release of Mineral Policy
6581 contracts Three years after release of
Mineral Policy 11993 contracts
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HISTORICAL ISSUES1956 GENERAL LAW AMENDMENT ACT

• SECTION 1 UNLAWFUL USE OF ANOTHERS PROPERTY
• Any person who uses anothers property needs the
  consent of the owner
• SECTION 3 MINERAL LEASES
• Mineral leases and cessions only valid if
  registered against title deeds of land or the
  certificate of mineral rights

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HISTORICAL ISSUES1997 LAND SURVEY ACT

• DIAGRAMS
• All survey diagrams prepared by professional land
  surveyors and approved by the SG linked to
  Farm, No and Portion No
• Draft regulations do not refer to approved
  diagrams only to WGS84 system
• However, MTARB defines a diagram as one prepared
  by professional land surveyor and approved by the
  SG
• Competency requirements for sketch plans defining
  prospecting/mining areas? Likely to be
  professional land/mine surveyors

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IMPACT OF SURVEY DIAGRAMS ON SECURITY OF TENURE

• SAFETY AND HEALTH
• Accurate location of boundary pillars
• SECURITY OF TENURE
• Errors in transformation of old coordinates to
  WGS84 Inaccuracies result in insecurity of
  title Especially important for conversion of
  old-order rights
• Boundary disputes and overlapping areas
• 1967 Mining Rights Act required diagram of lease
  area approved by SG, which is the ideal

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2002 COMMUNAL LAND RIGHTS BILL

• INTENT (Affecting the new MPRDA)
• To give legal recognition to customary and other
  communal land tenure systems
• To provide for leases of communal land for
  commercial developmental purposes
• SECTION 22 COMMUNAL LAND REGISTER
• Registrar of Deeds must register Communal General
  Plan and open Communal Land Register
• SECTION 30 LEASES FOR DEVELOPMENT PURPOSES
• For previously called Trust Land, Minister may
  only act on behalf of community with the
  communitys consent

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FUNDAMENTAL PRINCIPLES2002 MINERAL AND PETROLEUM
RESOURCES DEVELOPMENT ACT

• State sovereignty over mineral resources
• Empower HDSA
• Provide for security of tenure
• Administrative justice
• Lawfulness, reasonableness fairness

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FOR THE EXPLORATIONISTS

• Applicant has
• Financial ability
• Technical ability
• Work programme
• Maximum duration
• 2 0 2 years
• May not be transferred, ceded, let, sublet,
  alienated, disposed of or encumbered by mortgage
• No registration requirement

RECONNAISANCE PERMISSION
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PROSPECTING APPLICATIONS

• M P R D Act (2002)
• Applicant has
• Ability
• Programme (Plus economic)
• EMP
• Maximum duration
• 5 3 8 years

• Minerals Act (1990)
• Applicant had
• Ability
• Plan (Technical)
• EMP
• Permission from MR
• Minimum duration
• 1 year

PERMIT
RIGHT
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THE IN-BETWEENER

• Applicant has
• Completed prospecting
• Completed feasibility study
• Not feasible
• EMP
• Maximum duration
• 3 2 5 years
• No exclusion, unfair competition
• or hoarding of rights

RETENTION PERMIT
MAY NOT BE TRANSFERRED, CEDED, LEASED, SOLD,
MORTGAGED OR ENCUMBERED IN ANY WAY!
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MINING APPLICATIONS

• M P R D Act (2002)
• Applicant has
• Successfully prospected
• Ability
• Mining, Finance, Social
• EMP
• Complied with Charter
• Maximum duration
• 30 30 30 years

• Minerals Act (1990)
• Applicant had
• Ability
• Plan
• EMP
• Permission from MR
• Minimum duration
• 2 years

LICENCE
RIGHT
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SMALL-SCALE MINING

• M P R D Act (2002)
• Issued if
• Life less than 2 years
• Area less than 1.5 ha
• EMP
• Maximum duration
• 2 (111) 5 years
• MAY NOT BE LEASED OR SOLD, BUT IS MORTGAGEABLE

• Minerals Act (1990)
• Issued if
• Mining on limited scale
• Plan
• EMP
• Permission from MR
• Maximum duration
• 2 2 2 years

PERMIT
PERMIT
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OLD ORDER RIGHTS OLD ORDER RIGHTS OLD ORDER RIGHTS OLD ORDER RIGHTS OLD ORDER RIGHTS
MINING MINING PROSPECT PROSPECT UNUSED
Rights Authorizations Former TBVC PRIVATELY-OWNED MINERAL RIGHTS INCLUDED IN OLD-ORDER CATEGORY Rights Authorizations Former TBVC PRIVATELY-OWNED MINERAL RIGHTS INCLUDED IN OLD-ORDER CATEGORY Rights Authorizations Former TBVC PRIVATELY-OWNED MINERAL RIGHTS INCLUDED IN OLD-ORDER CATEGORY Rights Authorizations Former TBVC PRIVATELY-OWNED MINERAL RIGHTS INCLUDED IN OLD-ORDER CATEGORY Rights Authorizations Former TBVC PRIVATELY-OWNED MINERAL RIGHTS INCLUDED IN OLD-ORDER CATEGORY
Valid and active Valid and active Valid but not active Valid but not active
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TRANSITIONAL ARRANGEMENTS

• OBJECTIVES
• Security of tenure for active properties
• Holders of old-order rights to comply
• Open access to (non-active) properties
• OLD-ORDER RIGHTS
• PROSPECTING Within 2 years Minister MUST
• MINING Within 5 years Minister MUST convert
• UNUSED Valid for 1 year, Minister MAY convert
• ALTERNATIVES

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REGISTRATION REQUIREMENTS

• Registration at Mining Titles Office
• Within 30 days after a new prospecting and mining
  right has been granted in terms of the MPRDA
• Surface right permits for the use of land are
  preserved but must be registered within one year
  after the MPRDA took effect
• MPRDA does not require registration of
• Reconnaissance permissions, mining permits and
  retention permits
• However, MTRAB provides for registration of all
  mineral and petroleum titles and all other
  related rights, deeds and documents

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2003 MINING TITLE REGISTRATION AMENDMENT BILL
PREAMBLE

• Amending Mining Titles Registration Act (Act 16
  of 1967), rather than drafting a new Act
• To regulate the registration of mineral and
  petroleum titles and rights connected therewith
• To align 1967 Act and other deeds records and
  documents with MPRDA of 2002

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2003 MINING TITLE REGISTRATION AMENDMENT BILL

• DEFINITIONS HOLDER, MINING RIGHT, MINING TITLE
• Old definitions referring to prior laws deleted
• New definitions only recognize rights as defined
  in MPRDA
• DEFINITION RIGHT
• Any right held by a deed registered in the Mining
  Titles Office

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2003 MINING TITLE REGISTRATION AMENDMENT BILL

• SECTION 2
• Establishing a Mineral and Petroleum Titles
  Registration Office (MPTRO or MTO)
• To register all mineral and petroleum titles,
  related rights, deeds and documents
• SECTION 3
• MPTRO is the responsibility of the
  Director-General Department of Minerals and
  Energy
• SECTIONS 4 - 6
• Administration duties of MPTRO officials

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2003 MINING TITLE REGISTRATION AMENDMENT BILL

• SECTION 7 CANCELLATION OF RIGHTS
• No registered deed conveying title to any right
  can be cancelled by DG without a court order and
• Upon cancellation, endorsements must be made on
  the deed, related documents and registers
• SECTIONS 8 - 10 ACCESS TO INFORMATION
• Any member of the public may inspect public
  registers and records in MPTRO
• Conditions apply To ensure proper access and
  preservation of records from damage and loss
• SECTIONS 11 - 12
• The DG must prepare, open and keep registers of
  rights/titles Long overdue

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2003 MINING TITLE REGISTRATION AMENDMENT BILL

• SECTIONS 13 - 18 REGISTRATION ISSUES
• Deemed registered upon date of signature by DG
• Transfer or cessions of rights must follow
  sequence of the successive transactions in the
  vesting of such rights
• Upon transfer or cession, transfer/estate duty is
  payable
• Only conveyancer can prepare and execute deed of
  transfer or mortgage bond to be registered
• Only notary public can prepare and attest a
  contract or deeds of cession of rights, other
  than a cession of a mortgage bond, to be
  registered by DG
• Deeds executed by the DG must state the full
  name, ID or registration number of the holder

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2003 MINING TITLE REGISTRATION AMENDMENT BILL

• SECTIONS 19 - 20 UNDIVIDED SHARES
• No transfer or cession of an undivided share in a
  right over a defined portion of land can be
  registered
• SECTIONS 31 - 40 MORTGAGE BONDS
• Registration and cancellation of debt secured
  over mineral properties
• SECTIONS 41 - 45 SERVITUDES/CONTRACTS
• Must be created by notarial deed
• Must contain definition, description and diagram
• Deed (with bond if applicable) to be filed in
  MPTRO

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2003 MINING TITLE REGISTRATION AMENDMENT BILL

• SECTION 47 LEASES AND SUB-LEASES
• Holders must notify DG upon termination
• SECTION 67 CONVERTED OLD-ORDER RIGHTS
• Must be lodged for registration within 30 days of
  conversion

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2003 MINING TITLE REGISTRATION AMENDMENT BILL

• GENERAL COMMENTS
• Detailed regulations required for registration
• Surveying Some areas in SA may not yet be on
  WGS84 Coordinate system must be clearly marked
• Closure certificate should include geotechnical
  report for the 0 240m zone - to be registered
  against the farm portion land development where
  restrictions apply
• Deeds Registry system used in old TVL allowing
  for 1 degree blocks have merits and could be
  expanded especially useful when names change
• Effective date should correspond with all the
  other Acts and regulations, not only MPRDA
  January 2005 sensible

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IN CONCLUSION

• Compulsory registration of mining and prospecting
  rights at Mining Titles Office
• Transfer, letting, subletting, alienation and
  encumbrance by mortgage must also be registered
• Such registration is not new holders of mineral
  contracts and rights were very active in
  registering rights recently, possibly to ensure
  Constitutional protection