1 Legal and regulatory framework
1.1 Which legislative and regulatory provisions govern mining in your jurisdiction?
Law 1/21 of 15 October 2013 on the Mining Code of Burundi.
1.2 When was the mining legislation last reviewed?
The Mining Code of Burundi was last reviewed in 2013.
1.3 What other legislative and regulatory provisions have relevance for mining operations in your jurisdiction?
- Decree 100/193 of 16 June 2015 on Mining Rules;
- Decree 100/095 of 8 August 2018 on the Mission and Organisation of the Ministry of Hydraulics, Energy and Mines; and
- Decree 100/184 of 7 December 2018 revising Decree 100/112 on the Creation, Mission, Organisation and Functioning of the Burundian Mining and Carry Authority.
1.4 Are there any regional treaties or laws that need to be taken into account?
1.5 Which bodies are responsible for enforcing the applicable mining laws and regulations? What powers do they have?
The body responsible for enforcing the applicable mining laws and regulations is the Ministry of Hydraulics, Energy and Mines, through the Burundian Mining and Carry Authority.
The main tasks of the Ministry of Hydraulics, Energy and Mines are:
- to design and execute national policy on energy, geology and mines; and
- to promote geological research activities and the mining industry in general.
1.6 What is the regulators' general approach in regulating the mining sector?
Strict application of the law and support of investors in the mining sector.
2 Mining industry
2.1 How mature is the mining industry in your jurisdiction?
Most production in the mining industry is artisanal. The industrialisation of Burundi's mining industry is still embryonic. There are no plants to transform minerals into a final product.
2.2 What are the key minerals which are mined in your jurisdiction and where is mining activity typically based?
The most important minerals in the Burundian subsoil are cassiterite, nickel, vanadium, gold, iron, phosphates, carbonates, platinoids and rare earths.
Artisanal mining is concentrated in the northern provinces of Burundi: Kayanza, Cibitoke, Kirundo and Muyinga.
2.3 Are any minerals deemed strategic and, if so, what impact does this have?
Burundi has one of the largest nickel reserves in the world. The energy deficit for the mining industry and the transportation of minerals out of landlocked Burundi are the main challenges.
2.4 Who are the key players in the mining industry in your jurisdiction?
Some of the players in the mining industry include:
- CVMR Energy Metals Burundi Surl;
- Rainbow Mining Burundi SM;
- COMEBU SA;
- Burundi Mining Metallurgy International;
- Tanganyika Gold; and
- African Mining Limited.
2.5 In addition to exploration rights and mining rights, what other mining rights and titles exist (eg, artisanal or small-scale mining rights)?
The existing mining rights in Burundi are:
- mining title (exploration and exploitation licence);
- artisanal exploitation licence; and
- prospecting licence.
3 Exploration rights
3.1 What licences are required to undertake prospecting and exploration activities in your jurisdiction? Do these vary depending on the type of mineral or the location of the activity?
A prospecting licence, exploration licence or artisanal exploitation licence is required in order to undertake prospecting and exploration activities in Burundi.
3.2 What requirements must be satisfied to obtain a licence?
Only legal persons may hold an exploration licence.
In order to be hold an exploration licence, a legal person must have its registered office in Burundi before the title is issued.
The grant of a licence to search for mineral substances is subject to the technical and financial capacity of the applicant to conduct research on the substances for which it is requested.
3.3 What is the procedure for obtaining a licence? How long does this typically take?
The applicant must submit to the minister a file that complies with the regulatory requirements and includes in particular:
- a general programme of work corresponding to the duration requested and adapted to the geographical and geological characteristics of the area in question;
- information that will enable the minister to decide on the applicant's technical and financial capacity to carry out the programme, such as the CVs of experts with certified diplomas, and certificates of financial capacity; and
- an environmental impact assessment.
The process typically takes three months.
3.4 Who can own exploration rights in your jurisdiction? Do specific requirements or restrictions apply to foreign operators?
Exploration rights are granted only to legal persons with their registered office in Burundi.
3.5 What fees and other charges are incurred in obtaining a licence?
- Grant of an exploration licence: $10,000.
- First renewal of an exploration licence: $12,000.
- Second renewal of an exploration licence: $15,000.
3.6 What is the duration of a licence? What is the process for renewal?
The maximum duration of an exploration licence is three years from the date of its issuance. It is renewable twice for further two-year periods.
The request for renewal of an exploration licence must be submitted no later than three months before the expiry of the current period of validity.
The renewal of an exploration licence shall be granted in the same form as for the initial licence application.
3.7 What are the operator's rights and obligations under the licence?
Throughout its period of validity, the exploration licence confers on the holder, within its perimeter and with no in-depth limitation, an exclusive right to prospect and to search for the substances for which it is issued. It also allows the holder to dispose of the samples resulting from its work with a view to carrying out any necessary studies or tests, to the exclusion of all exploitation work.
The obligations of the holder of an exploration licence are as follows:
- to submit to the Ministry of Hydraulics, Energy and Mines a duplicate of the samples from its work with a view to carrying out any necessary study or test and excluding all operational work;
- to commence work within the timeframe specified in the exploration licence, which must then be continued diligently and without interruption. In the event of interruption, this may not exceed three consecutive months;
- to make a declaration to the minister in respect of any geophysical or geochemical measurement campaign, opening or closing of a worksite, research campaign, drilling, underground work or excavation for the purpose of searching for mineral substances, regardless of their depth, and any work, regardless of its purpose, the depth of which exceeds 10 metres;
- after any discovery that gives rise to a presumption of the existence of a deposit, delimit the deposit in order to assess its workability;
- make available to the minister without delay all means of access to worksites and accessible routes of work and all information on the status of the research, and have the minister's delegates accompanied on their visits by competent officials who can provide them with all useful information;
- in the event of the discovery of a deposit, submit, before the expiry of the validity of the licence, a bankable feasibility study containing, in addition to the technical and financial studies, a socio-economic impact study and an environmental impact study; and
- submit a quarterly and annual report to the minister.
3.8 Are there any requirements re relinquishment of an exploration licence or part of the area covered by an exploration licence?
The holder of an exploration licence must specify which area is being relinquished and provide a detailed report.
3.9 Can licences be transferred? If so, how and subject to what consents? Do any restrictions or taxes apply to direct or indirect transfers?
Licences may be transferred, provided that the transfer is approved by the Ministry of Hydraulics, Energy and Mines, after deliberation of the Council of Ministers.
3.10 Does an exploration licence give any priority when applying for a mining right?
Provided that the holder of an exploration licence meets the necessary conditions, it has priority when applying for an exploitation licence.
4 Mining rights
4.1 How is ownership of mining rights determined in your jurisdiction?
Ownership is determined by the mining title granted by the Ministry for Hydraulics, Energy and Mines.
4.2 What are the key requirements in order to apply for a mining right?
The mining right is granted to the holder of an exploration licence under the same condition as the exploration licence or another holder of an exploration licence after a tender procedure.
The grant of a mining right is subject to the technical and financial capacity of the applicant and to the presentation of:
- a bankable feasibility study approved by the competent authority;
- a socio-economic impact study approved by the competent authority;
- an environmental impact assessment approved by the competent authority;
- a programme of equipment works and preparation of the site with a view to its exploitation; and
- an operating plan in compliance with the Mining Code and the terms of the mining agreement.
4.3 What fees and other charges are incurred in obtaining a mining right?
- Grant or renewal of an exploitation licence: $7.5 per hectare, with a minimum of $50,000.
- Grant or renewal of an exploitation licence for an artisanal quarry: $200.
- Grant or renewal of an exploitation licence for an industrial quarry: from $1 per hectare with a minimum of $15,000 to $1,000 per hectare with a minimum of $10,000, depending on the type of quarry.
- Grant or renewal of an artisanal exploitation licence: $600 per hectare.
4.4 What is the duration of a mining right? What is the process for renewal?
The maximum duration of a mining right is 25 years from the date of issue. It is renewable for periods of 10 years thereafter.
The request for renewal of a mining right must be submitted no later than three months before the expiry of the current period of validity.
The renewal of a mining right shall be granted under the same conditions as those for the initial mining right application, provided that the mining right holder has complied with the terms and conditions of the Mining Code, the mining right and the mining agreement.
4.5 Who can own mining rights in your jurisdiction? Do specific requirements or restrictions apply to foreign operators?
No specific requirements or restrictions apply to foreign operators, save for the requirement to have a registered office in Burundi.
4.6 Do any indigenous ownership requirements apply in your jurisdiction?
Ten per cent of the shareholding of a mining exploitation company must be reserved to the state.
A mining agreement must provide for the possibility for Burundians to buy shares.
4.7 What role does the state play in the mining industry in your jurisdiction?
The state plays the role of regulator of the mining industry.
4.8 Are there requirements for the government to enter into a mining development (or similar) agreement in addition to the licences/permits? When is this required or available?
Simultaneously with the mining right, a mining agreement is signed between the state and the investor. It sets out the respective obligations and rights of both parties.
4.9 Can mining rights be transferred? If so, how and subject to what consents? Do any restrictions or taxes apply to direct or indirect transfers?
Mining rights can be transferred, provided that the transfer is approved by the Ministry of Hydraulics, Energy and Mines, after deliberation of the Council of Ministers.
4.10 Can security be taken over mining rights?
4.11 What provisions apply with regard to closure or abandonment of a mining right?
The holder of a mining right must undertake the following works:
- works for public safety;
- environmental protection works; and
- works for conservation of the site and the isolation of various permeable levels.
5 Surface rights
5.1 Does the law of your jurisdiction distinguish between mining rights and surface rights? If so, how does an owner of mining rights acquire surface rights?
A notarised agreement is signed between the landowner and the owner of mining rights giving the latter surface rights.
5.2 Where surface rights are acquired, what are the operator's rights and obligations as regards the landowner? And what are the landowner's rights and obligations as regards the operator?
The agreement sets out the rights and obligations of both parties. It must contain the following points:
- its duration, which cannot exceed the duration of the mining rights;
- the area covered and demarcation;
- measures for the rehabilitation of the site during and after exploitation; and
- the amount of compensation or rent payable.
5.3 Please give an overview of the process for any mandatory acquisition of surface rights (eg, process and time to enforce).
5.4 Are any native title issues applicable, either at the exploration licence stage or when a mining right is issued?
5.5 Are any other rights needed to use the land (eg, zoning permissions or planning requirements)?
The owner of a mining rights has the right to use the land for the exploration or exploitation of the site as agreed with the landowner.
6 Environmental issues
6.1 What environmental authorisations are required to undertake prospecting, exploration and mining activities in your jurisdiction? Do these vary depending on the type of mineral or the location of the activity?
All prospecting authorisation, exploration licence and artisanal exploitation permit applications must be accompanied by an environmental impact assessment, in the forms specified by regulation.
6.2 What environmental obligations must the operator observe while the mine is operational?
The holder of a mining licence must provide the Ministry of Hydraulics, Energy and Mines with an annual activity report detailing the environmental impact of the mining operations undertaken and the measures taken to address them.
The holders of other licences and prospecting authorisations must complete and submit an annual environmental impact statement to the Ministry of Hydraulics, Energy and Mines. The format of this notice is determined by regulation.
Six months before the expiry of a mining licence, regardless of cause, the holder of a mining licence must submit to the minister a plan for the proposed rehabilitation work. The minister will forward this plan to the Ministry of Hydraulics, Energy and Mines.
6.3 What environmental obligations must the operator observe in relation to closure of the mine?
The operator must rehabilitate the site upon closure of the mine.
6.4 What are the potential consequences of breach of these requirements – both for the operator itself and for directors, managers and employees?
A fine of 2% of the turnover of the owner of the mining title is payable in case of breach of these requirements.
6.5 Which bodies are responsible for enforcement of environmental obligations?
The Burundi Office for Protection of the Environment.
6.6 What is the regulators' general approach in regulating the mining sector from an environmental perspective?
Generally, the regulator attaches great importance to environment-related issues. Mining activities may not harm the environment.
7 Health and safety
7.1 What key health and safety requirements apply to operators in your jurisdiction?
- The prevention or mitigation of any negative effect due to their activities on health and the environment;
- The prevention or treatment of any spill or or discharge so as to neutralise or minimise its effect on nature;
- The promotion or maintenance of the living environment and the general good health of the population; and
- The prevention and management of HIV/AIDS at the local level.
7.2 What reporting requirements apply with regard to mining accidents in your jurisdiction?
Mining accidents must be reported to the minister within 24 hours.
7.3 What are the potential consequences of breach of these requirements – both for the operator itself and for directors, managers and employees?
Imprisonment for between two and five years and/or a fine ranging from BIF 5 million to BIF 10 million.
7.4 What best practices in relation to health and safety should operators consider adopting in your jurisdiction?
See question 7.1 and international best practices.
Helmets, boots, fluorescent jackets, face masks and gloves are among other protective equipment that operators should consider issuing to employees in Burundi.
7.5 Which bodies are responsible for enforcement of health and safety obligations?
The General Inspectorate for Labour and Social Security.
7.6 What is the regulators' general approach in regulating the mining sector from a health and safety perspective?
Generally, the regulator attaches great importance to health and safety-related issues. Mining activities may not harm health and safety.
8 Processing, refining and export
8.1 What requirements and restrictions apply with regard to the processing or refining (beneficiation) or minerals?
8.2 What requirements and restrictions apply to the export of minerals?
In order to export minerals, a mining counter-permit is required.
An application for such permit must contain the following:
- a certified copy of the articles of association of a company or the identity of a natural person;
- the name, address and full identity of the applicant's representative;
- a notarised decision appointing the representative;
- an extract from the register of commerce;
- a tax identification number;
- a certificate of non-indebtedness;
- the minerals concerned;
- the applicant's registered office or address;
- its most recent financial statements;
- bank references; and
- evidence of compliance with the technical and financial requirements.
9 Taxes and royalties
9.1 What taxes, royalties and similar charges are levied on mining operators in your jurisdiction? How are these calculated?
The holders of mining title are subject to an ad valorem tax based on the value of production.
The rate of the ad valorem tax on mining exploitation rights is set as follows:
- 4% for base metals;
- 5% for precious metals;
- 7% for precious stones; and
- 2% for other mineral substances.
9.2 Are any tax incentives available for mining operators?
Mining operators can benefit from tax incentives under the Investment Code and the Mining Code.
9.3 What other strategies might mining operators consider to mitigate their tax liabilities?
Mining operators should also consider double taxation treaties between Burundi and other jurisdictions.
9.4 Have there been any significant changes to the taxation rates applicable to mining companies in the last three years?
10.1 In which forums are mining disputes typically heard in your jurisdiction?
Mining disputes in Burundi are heard by the regulator; if they cannot be resolved, the case is the referred to the competent courts.
10.2 What issues do such disputes typically involve? How are they typically resolved?
Breach of obligations under the Mining Code, the licence or the mining agreement.
They are typically resolved by arbitration.
10.3 Have there been any recent cases of note?
11 Trends and predictions
11.1 What changes have there been to the mining landscape in your jurisdiction in the last five years?
Although the government introduced the latest mining regime from 2013 to 2015, several measures still need to be put in place.
11.2 How would you describe the current mining landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
It is expected that the government will continue its efforts to make the shift from artisanal to industrial mining while still addressing the different challenges facing the industry.
12 Tips and traps
12.1 What are your top tips for mining operators in your jurisdiction and what potential sticking points would you highlight?
Burundi seems to have substantial mining reserves which remains unexploited. This might be the right moment to consider Burundi as a mining destination.
Co-authored by Ms Ségolène Akimana, Legal Officer Legal Solution Chambers
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.