Tanzania: Who Is Who In The Mining Sector In Tanzania: The Institutional Framework And How It Work

Last Updated: 11 September 2018
Article by Amne Suedi

THE PRESIDENT OF THE UNITED REPUBLIC OF TANZANIA

The President of the United Republic has been given a key role through the new section 5 (a) of the Mining Act which vests the entire property and control of minerals to the President who holds this in trust of the citizens of the United Republic. The same is reiterated under section 4 (2) and 5 (2) of the Sovereignty Act. Previously, the minerals were vested in what I consider to be a lose term of the "United Republic". Section 5 (b) of the Mining Act gives the Government lien over the minerals and this was briefly discussed in "Shikana Mining Series No.1".

This provision of empowerment has really given the President the force and legal right to protect the minerals in its control and property, this is perhaps explaining the actions so far by the president who has commissioned investigations as well as summoned individuals in the mining industry to the State House for queries and discussions. Considering the current President's efforts to fight corruption and the numerous corruption scandals associated to the energy and natural resource sector, it would make sense to concentrate such a responsibility as holding the resources in trust by the President.

The President also has the power to declare any area which is subject to mining operations a "controlled area". The procedure is that the President consults with the Minister responsible for Local Government Authorities and that the controlled area is also gazette. Special conditions will be prescribed to the "controlled area" and contravention of these conditions will constitute an offence.

THE MINISTER OF MINERALS

Part III of the Mining Act which was entitled "Administration" was repealed and replaced by new provisions which specifically define the role of the Minister of Minerals, unlike the previous Act. Section 19 of the Mining Act provides that the Minister is responsible for preparing policies, strategies and legislative framework for the exploration and exploitation of mineral resources and monitoring the implementation of the same. The Minister further has the responsibility of monitoring all establishments with responsibility of the Ministers for minerals and report to the Cabinet. The Minister also has the duty to promote mineral resources in Tanzania for research and exploitation.

The Minister's powers are removed with regards to Special Mining Licenses, whereby the new Mining Commission is the entity that compiles the application and submits the same to the Minister who is responsible to present this to the Cabinet of Ministers for approval. Furthermore, the old section 10 of the Mining Act empowered the Minister to enter into Mining development agreements (MDAs) Development Agreements however, this has now been repealed.

THE NATIONAL ASSEMBLY

The National Assembly, also known as The Parliament of the United Republic of Tanzania, in accordance with section 12 of the Sovereignty Act and section 4 of the Contract Review Act, has the authority to review all mineral agreements and can also renegotiate any existing or future agreements. Section 5 of the Contract Review Act provides that all mineral agreements have to be submitted to the National Assembly.

This provision, particularly giving the power to the National Assembly to approve future agreements was heavily debated by parliament again under certificate of urgency back in September 5, 2017. It was suggested that the powers of the National Assembly to approve future contracts that dealt with natural resources generally should be removed since power of the National Assembly will be extended ultra vires. It therefore followed that the section 47 (5) of the Petroleum Act was amended and removed the power of the National Assembly to approve future Production Sharing Agreements as well as other similar agreements under the Petroleum Act. However the same was not made for the mineral agreements although it is understood that the intention was very strongly present. 

Previously, agreements entered into by the Minister were shrouded under secrecy therefore these provisions that empower the National Assembly to ensure checks and balances are met as well as the added procedure of the approval of licenses by the Cabinet of Ministers for strategic investments, such as those under Special Mining Licenses, are a real positive step towards transparency and reducing certain irregularities on the whole.

Section 6 of the Sovereignty Act states that it is unlawful to make any arrangement or agreement over natural resources except where the interests of Tanzanian citizens are approved by the National Assembly and fully secure.

MINING COMMISSION

This is a new institutional body that is created by the amended Mining Act. In reading the Mining Act and in particular the interpretation clause (section 4 of the Mining Act), it would seem that the Mining Commission has taken over the functions that were previously the responsibility of the Mining Advisory Board, the Commissioner of Minerals, the Zonal Mines Offices and the Tanzania Minerals Audit Agency. The Mining Commission is composed of the Chairman, Treasury, Ministry of Lands, Ministry of Defense, Ministry responsible for Local Governments, Attorney General, Federation of Miners Association in Tanzania and two individuals who possess knowledge on the mining industry.

There is exclusion of the small - scale miners and mineral dealers, the ministry of environmental protection and institution for higher education. The Ministries are represented by Permanent Secretaries and equally the Federation of Miners is also represented by its Secretary.

The Mining Commission's responsibilities are enumerated under section 22 (a) to (v) of the Mining Act. The functions are extensive and wide-ranging. The Mining Commission's functions include the review of special mining license applications before submission to the Cabinet; granting of prospecting and primary mining licenses; suspension and revocation of licenses; the monitoring of the mining operations (including then assessment of the quantity and quality of minerals produced); the audit of expenditures for tax purposes; the assessment of local content performance and investment in the local economy and the monitoring of environmental management. We will elaborate more on this as we will examine the environmental impact assessment in relation to Mining industry.

Other duties include to make regulations for the industry.

THE ATTORNEY GENERAL'S OFFICE

The Written Laws (Miscellaneous Amendments Act (No.3) 2017 that was passed on September 15, 2017 provides that the Attorney General shall have the right to intervene in any suit or matter instituted by or against the Mining Commission. This provision was added after and provides protection to the Mining Commission where it is suing or being sued. In this event, the Government Proceedings Act provisions shall apply to the proceedings of the suit or matter that is instituted against the Government.

MINISTER OF CONSTITUTIONAL AFFAIRS

The gatekeeper of the Natural Wealth and Resources Permanent Sovereignty Act of 2017 is the Minister of Constitutional Affairs. It is important to point out that the Written Laws Miscellaneous Amendments Act No. 3 of 2017 amends section 3 of the Sovereignty Act to include under the definition of "natural resources", mineral resources.

As such, the Minister of Constitutional Affairs has the duty to of making regulations that will prescribe the code of conduct for investors in natural wealth and resources. The Minister also has to develop the minimum guidelines for inspection, monitoring and evaluation of investments in natural wealth and resources; and create regulations that are incidental or conducive to the effective implementation of this Act.

The Minister of Constitutional Affairs also has the power to make regulations for the implementation of the Natural Wealth and Resources Contracts (Review and Re-negotiation of Unconscionable Terms) Act, 2017.

THE JUDICIARY OF TANZANIA

Typically, the jurisdiction clause in contracts governing minerals and natural resources generally provided for foreign international arbitration in the event of dispute resolution.

Section 11 (2) of the Sovereignty Act formally provides that for disputes arising from extraction, exploitation or acquisition and use of natural wealth and resources will be  adjudicated by judicial bodies or other organs established in the United Republic and in accordance with laws of Tanzania. Section 11 (3) of the Sovereignty Act goes further in providing that all contractual arrangements should include such provision regarding dispute resolution.

COMMISSIONER FOR MINERALS

Previously, the Commissioner for Minerals had extensive powers to administer the Mining Act, however the new Mining Act, section 20 reduces the functions of them Commissioner for Minerals to advising the Minister of Minerals on matters related to the mining sectors. In practice though, the Minister delegates the duty of foreseeing policy implementation to the Commissioner for Minerals as well as the role for promotion.

MINES RESIDENT OFFICERS

The Mines Resident Officers are responsible for the day to day monitoring and reporting of mining activities at mining sites and they are to be stationed at every mining site. The Mines Resident Officers have the task of also verifying records, information and production reports kept by the holder of mineral rights and they also have an oversight over the mineral storage facility at the mine as well as the mineral transportation to the Government Minerals Warehouse (section 27 of the Mining Act).

GEOLOGICAL SURVEY OF TANZANIA

Section 27A establishes the Geological Survey of Tanzania (the "GST"), which is responsible for all matters related to geological activities other than prospecting, exploration and mining activities. In particular, the GST shall;(a) advise the Minister on geological matters;(b) undertake the geological mapping of Tanzania, and may for that purpose, engage contractors;

(c) provide data concerning the geology and mineral resources of Tanzania, and generally assist members of the public seeking information concerning geological matters.

It has other extensive responsibilities such as promoting investment in the mining sector through the use of data, acquiring Geo-scientific data and information that will assist the Minister of Minerals in making its decisions, etc. The GST has the responsibility to establish the National Mineral Resources Data Bank.

Mining data is extensively regulated whereby the Mining Act explicitly states that the mineral data generated by the Mining Act, whether it is from the GST or the mining operators, is owned by the government (section 27F (2) of the Mining Act). Furthermore, the data which is submitted by the mineral rights holder is given free of charge to the GST (section 27F (4) of the Mining Act). The Mining Act provides however that the GST can allow the mineral right holders to market the use of data "on terms to be agreed" (section 27F (5) of the Mining Act).

Seeing as mining data makes up the value of the project, it is difficult to see how mineral right holders can be comfortable with such an arrangement.

A major change in the new mining act is the question of Indemnity. Previously all officers discharging duties under the mining act were exempt of liability. The new law provides that all officers are liable. This is encouraging and in line with the Government's fight against corruption.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Clyde & Co
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Clyde & Co
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions