3. Conceptual and operational principles
The role of the mineral rights cadastre is to focus on protecting and guaranteeing the rights of both the state and the titleholders, for example, facilitating an understanding of tax units due for the state and ensuring security of ownership to titleholders. To achieve this balance, the design and functioning of a cadastre should consider the following:
The conceptual basis for licensing and operational principles should be properly applied and implemented through explicit, simple, fast and direct procedures, clearly prescribing the detailed requirements and preconditions for obtaining, maintaining, and terminating mineral rights. Procedures must define the maximum deadlines in order to avoid unnecessary and unlimited waiting periods. These conditions must be fulfilled for “first come, first served” licensing processes, as well as auctions.
Transparency in cadastral management should be ensured for both cadastral procedures and information. To guarantee transparency, the legal and regulatory texts must provide guaranties and prescriptions for:
- Any holder, applicant, or the public in general to access information about the requirements and eligibility conditions of applying for mineral rights and the criteria to maintain the validity of granted licences.
- Applications for new mineral rights to be registered in a registry book, with the date and time of application. This should be signed by the applicant and the cadastre agent, as shown below.
- Cadastral procedures should clarify minimum required conditions for an application to be accepted (receivability) and registered.
- Deadlines for specific timeframes within which applicants, titleholders, and cadastre agents are required to take certain actions or make certain decisions, for example, the maximum duration of granting procedures or the maximum time before expiration when a holder can apply for the renewal of a licence.
- Requirements for written notifications regarding any decision affecting applications or existing grants of mineral rights, followed by a hearing opportunity (including administrative or judicial procedures, if appropriate) before any significant action affecting solicited or acquired rights is taken.
To guarantee the transparency of cadastral information, the mineral rights cadastre office should be open for consultation and the cadastral maps and registries (at least the part considered “public”) should be accessible to applicants and license holders. The picture below shows the Mozambique cadastre office.
As a minimum, the following types of information should be made available to the public:
- The cartographic position of granted mineral rights as well as any pending applications;
- The cartographic position of areas where mining activity is restricted or prohibited;
- The registry book for verification of licence applications, sequence, and chronology; and
- Relevant cadastral information about any granted or applied mineral rights, (application date, name of the applicant, applied-for or granted mineral substances, and expiration date).
It is not possible to establish and effectively manage a mineral rights cadastre without transparency. Furthermore, international experience shows that a lack of transparency leads to corruption. During the last few years, many countries have taken advantage of available technology to disseminate cadastral information through the internet on public websites. This practice helps ensure that all potentially marketable data is freely accessible. This helps to eliminate potential black markets for “confidential” information.
Objective evaluation criteria
This principle implies the removal or minimisation of subjective evaluation criteria as preconditions for granting mineral rights. In practical terms, it means that all the criteria and parameters to be considered and evaluated for granting a licence must be objective and not subject to interpretation. This avoids the risk of discretion that would arise every time a rule or procedure needs interpretation and prevents the application of different interpretations to different applicants or holders.
Licensing procedures should apply identical criteria and grant the same conditions to any applicant, independent of nationality and company size, if they correctly fulfil eligibility conditions. This is particularly important in “contractual regimes”. These used to be very common, and still exist in some countries. In these cases, the conditions for granting mineral licences are variable and negotiable, and essential parameters such as the duration of validity or the value of rental fees differs from one licence to another. In general, it is advisable to avoid case-by-case negotiations that are discretionary, lack transparency, and can be a source of corruption.
Avoiding discretionary decision making can be achieved by predetermining the legal and regulatory framework and the standardised conditions for the granting of mineral licenses (duration, size, geometry, fees, conditions for renewal, and so on). Based on these legal provisions, the mineral rights cadastre should ensure that standard principles are applied to any type of applicant and holder.