New Exploitation License for Mining Operators in the DRC
New Exploitation license (environmental): new requirement for mining operators in the DRC
Esther-Rose LUFUTA BIDUAYA
and Eric TSHIMANGA MUKENDI
The consideration of environmental issues by the International Community, and its consequences on the life quality, with tangible effects, including reduction in biodiversity, soil, air and water pollution, has urged the International Community to adopt multilateral environmental agreements, which obligate the working-out of national laws, policies, plans and programs to regulate and supervise mankind’s activities and to mitigate their impact on the environment, which is the common heritage of all human beings, presents and futures.
In accordance with these agreements and the DRC Constitution (« DRC ») of February 18, 2013 as amended to-date, particularly article 123, point 15 that Law No 11/009 dated July 9, 2011 respecting basic principles on the Environment Protection, (“Environment Protection Law”) was passed. Based upon environment basic principles universally recognized, Environment Protection Law has enacted basic principles, which should serve as the basis for special laws in order to regulate different environmental sectors.
This Environment Protection Law has introduced some innovations, among others: the obligation to carry out an environmental and social impact assessment, environmental auditing, to establish an institutional framework, to reinforce a repressive regime.
In articles 21, subsection 1, and 22, Environment Protection Law indeed stipulates that “Any development, infrastructure and operation project of any industrial, commercial, farming, forest, mining, communication activity or other that may have an impact on the environment shall be subjected to a prior environmental and social impact assessment, accompanied with its duly approved management plan”. “Any industrial, commercial or farming facility of which operation may be hazardous for health, security, sanitation, environment or preservation of sites and monuments, or may be uncomfortable for the vicinity shall be categorized according to the severity of danger, inconvenient or discomforts thereof “.
“Regulated facilities shall be first subjected to a declaration, or an authorization certified by a national or provincial exploitation licence, as the case may require”.
Here are some concerned sectors: the mining sector is governed by Law No 007/2002 of July 11, 2002 relative to Mining Code (” Mining Code”) and Decree No 038/2003 of March 26, 2003 relative to (” Mining Regulation “), which establish a Mining and Quarry Regime accompanied with the following mining rights: (i) Mining Permit (” PE “), (ii) Small-scale Mining Permit (” PEPM “), (iii) Mining Permit for Tailings (” PER “) and (iv) Authorization for Permanent Quarry Exploitation (” AECP “), which are granted subject to previously established terms and conditions, among others, the submission of the Environmental Impact Assessment (EIA) and Environmental Management Plan of the Project (EMPP) and the approval thereof. These plans enable mining and quarry titleholders to consider environmental aspects of their projects, not only when constructing or developing the mine, including the setting-up of plants and other facilities, but also at the moment of actual operation of the mine.
These mining activities carried out under mining rights and authorization for Permanent Quarry Exploitation shall be now subjected to an Environmental Exploitation Licence established by Environment Protection Law, subsequent to the Mining Code and Decree on Regulated Facilities, subsequent to Mining Code and Regulation.
In addition to rights of mining titleholders, the Environmental Exploitation Licence is a new condition to be complied with by mining titleholders, which shall request and obtain Environmental Exploitation Licences, necessary for the construction and development of mines, plants and operation thereof. Therefore, we have to go through the legal basis of this Licence (I), before considering scheme of regulated facilities established by Decree on Regulated Facilities (II), to specify the competence regarding the issuance of this Environmental Exploitation Licence (III), to point out qualifying legal processes of said Licence (IV), and then, to note penalties in the event of operating regulated facilities without Exploitation Licence (environmental) (V).
I. Legal Basis of the Exploitation Licence (environmental)
The Environmental Exploitation Licence is based on article 37 of Environment Protection Law, which sets forth that “Any industrial, commercial or farming facility of which operation may be hazardous for health, security, sanitation, environment or preservation of sites and monuments, or may be uncomfortable for neighbourhood shall be categorized according to the severity of danger, inconvenient or discomforts thereof “.
In article 3, Decree No 13/015 of May 29, 2013 on the control of regulated facilities (” Decree on Regulated Facilities “) made pursuant to Environment Protection Law, describes the regulated facility as a «fixed or mobile source, whatever its owner or use, likely to cause nuisances and to affect the environment, including soil, sub-soil, water, air and forest resources. »
Under article 5 of the same Decree, « regulated facilities shall be first subjected to a declaration (declaratory scheme or prior declaration), or an authorization duly certified by a national or provincial exploitation licence (authorization scheme).
As far as mining titleholders and authorization for permanent quarry exploitation have to construct industrial facilities to be operated; besides obligations resulting from mandatory provisions of Mining Code and Regulation, they shall now request and obtaining the Exploitation Licence established by relevant provisions of Environment Protection Law and Decree on Regulated Facilities prior to setting up, converting, extending, moving or operating their mining facilities.
II. Scheme of regulated facilities
Regarded as “fixed or mobile source, whatever its owner or use, likely to cause nuisances and to affect the environment, including soil, sub-soil, water, air and forest resources”, regulated facilities shall be first subjected to the declaration (declaratory scheme or prior declaration) (II.1), or the authorization duly certified by a national or provincial exploitation licence (Authorization scheme) (II.2).
II.1. Declaratory scheme or prior declaration
The declaratory scheme means any person desiring to operate a regulated facility subjected to this scheme, shall file, against a notice of delivery, the prior declaration with the local Environment Authority, which shall then deliver a receipt slip within fifteen days after receiving it.
The declaratory scheme shall be actually applied to any activity, which, though regulated, is safe, does not have any serious inconvenient or discomfort for health, security, sanitation, in the vicinity, the preservation of sites and monuments.
It depends on the Category II of regulated facilities mentioned in the Schedule 2 of Decree on Regulated facilities.
II.2 Authorization scheme
The authorization scheme concerns any facility of which existence or exploitation is unsafe, causes inconvenient, or discomforts for health, security, sanitation, in the vicinity, the environment or the preservation of sites and monuments,
As for this category, in article 8, Decree on Regulated Facilities points out that regulated facilities subjected to an authorization fall within the category I, of which the category I a for activities the existence and operation of which are certified by a national exploitation licence, and the category I b for activities certified by a provincial exploitation licence.
According to the Schedule 1 of Decree on Regulated Facilities, mining facilities are part of regulated facilities in the category I subjected to a prior authorization certified by the national or provincial exploitation licence.
Further, the mining operator holding a valid Exploitation Licence should request for a new Exploitation Licence if: (a) the regulated facility is transferred to another place than the place determined by the licence or in the declaration, (b) the facility has not been operated within a 2-year period, whatever the category, (c) the facility is shut down for two years running, (d) the facility has been destroyed or decommissioned for more than two years due to an accident resulting from operation, (e) or the facility adds to the initial operation a new activity subjected to either scheme.
III. Competence to issue the Environmental Exploitation Licence
The Minister of Environment is empowered to issue the national exploitation licence, and the Governor of Province of the area is empowered to issue a provincial exploitation licence.
Therefore, the Minister of Environment is qualified to issue the Exploitation Licence of any regulated facility the existence of which may have an impact in the territory of many provinces whatever its category.
IV. Procedure for obtaining the Environmental Exploitation Licence
For its activities, the holder of mining rights and authorization for permanent quarry exploitation desiring to erect a facility for its mining activities, or to transform, to change, to move or operate said facility, or to change manufacturing methods likely to adversely affect the environment, shall apply for the Exploitation Licence to the provincial Environment Authority of the area, which will conduct public and technical investigations within a 15-day period.
Based on this viewpoint, we have to note the issuance of any Exploitation Licence for a regulated facility is subjected to a prior public investigation, of which the purpose is to (i) inform the general public and local population on the project or activity, (ii) to collect information on the nature and scope of rights, which third parties may have on the area affected by the project or activity, (iii) to collect assessments, suggestions and alternative proposals in order to enable the relevant authority have all information required for its decision. But, an environmental and social impact assessment shall be first carried out when the application for the licence concerns the facility of which activities may have an impact on the environment.
At the completion of these investigations, the provincial authority shall send the application file to the National Authority to check the compliance, prior to issuing the national Exploitation Licence by the Minister, or to the Governor of Province for issuing applied Exploitation Licences, this by means of payment of a tax for setting up which should be levied in accordance with the legislation in force in DRC. The Licence shall be issued within a month after accepting the file.
V. Penalty due to absence of the Environmental Exploitation Licence
In article 81, Environment Protection Law requires any person operating, converting or modifying a regulated facility or changing manufacturing methods that may cause dangers or inconvenient in breach of provisions and enforcement measures of law to pay a fine of one hundred million of Congolese Francs.
Furthermore, article 85 of Environment Protection Law has granted to existing facilities a period of 24 months as of its enactment and the publication of its enforcement measures, to request for a national or provincial Exploitation Licence, in order to be good standing.
The establishment of this new requirement regarding industrial facilities for mining, commercial or farming activities shows the clear commitment of the DRC Government to exploit its natural resources while making sure of mitigating social environment impacts particularly related to mining industries, in order to provide with a sustainable human environment.
 It concerns the following principles: (i) the sustainable development, (ii) the information and involvement of the public in decision-making process regarding the environment, (iii) the preventive and corrective action, (iv) the precaution, (v) the polluter-pay, (vi) the cooperation among States on the Environment et (vii) the integration.
 Article 7 of Decree on Regulated Facilities.
 Article 6 of Decree on Regulated Facilities.
 Article 12 of Decree on Regulated Facilities.
 Article 24 of Environment Protection Law and article 11 of Decree on Regulated Facilities.