Tanzania laws & regulations

Legislation and regulatory authorities

Mining in Tanzania is governed by the 1998 Mining Act. The current government is in the process of revising the document. According to Canada's Office of the Trade Commissioner in Tanzania, the new legislation is expected to be published in December of 2009. While no reliable information is available as to the upcoming changes, land tenure remains a hotly debated topic in the country, with some opposition ministers coming out strongly against activity by large mining companies.

During the election campaign of 2005, now-President Kikwete promised to review the mining legislation and address the outcry over what the Tanzanian media described as “a plunder of the country’s minerals.” This promise culminated in the 2007 creation of a Presidential Mining Review Committee, led by Justice Mark Bomani. The Committee has produced a report, including a series of concrete recommendations for the revision of the Mining Act. The report was debated in the Tanzanian Parliament before being given to the Ministry of Energy and Minerals to assist in the preparation of a new Mining Bill. As of December 2009 the bill has not yet been tabled, despite its April 2009 due date.

Also of importance is the 1997 Mineral Policy of Tanzania, a 32-page document outlining the governments intent with respect to the mining sector. At the time of publication, the Policy projected the country's mining and mineral "vision for the next 25 to 30 years".

Most current Mining Act and regulations

Shortly after the 1997 Mineral Policy was released, the government introduced the revised Mining Act, in August 1998. The Act is a complex document spanning 161 pages. The Act grants the Commissioner of Mining the ability to issue prospecting rights in all areas of the country, a concentration of power that has drawn criticism from numerous circles.

The Mining Regulations, 325 pages in length, were signed into law by then-Minister for Energy and Minerals, Abdallah O. Kigoda, in July 1999. The regulations comprise of three main sections: Information about applications and application forms (112 pages), Environmental Management and Protection (39 pages), and Safe Working and Occupational Health (172 pages). The first prospecting license is normally issued for three years and is renewable for two terms. If the company has not completed its explorations by then, the license can be renewed for two more years.

Under Division D of the Act, small-scale miners can obtain primary prospecting licenses for a period of 12 months, and primary mining licenses for a period of 5 years, up from only 12 months in the old Act. Both types of license are renewable. Only Tanzanian nationals are eligible for these licenses, and the licenses can be converted into a mining or special mining license, "usually by entering into a joint venture with a company that is able to meet the annual expenditure requirements."

The Act includes a short section on disputes, which states that the Commissioner of Mining has the power to "decide all disputes between persons engaged in prospecting or mining operations, either among themselves, or in relations to themselves and third parties" in connection with boundaries, compensation, etc.

The highest authorities for mining are the Minister Responsible for Minerals, and the Commissioner of Mining. Applications for prospecting licenses, “including an application in respect of land in an area reserved for applications by tender for prospecting licenses” are sent to the Minister. The Minister may then, on behalf of the United Republic, enter into a development agreement with the holder or applicant of the right.

The Commissioner for Minerals is appointed by the President and should be a “suitably qualified public officer." The Commissioner, or any official appointed to act on his/her behalf, is in charge of surveying, mapping, and demarcation of mining areas. The law says that “agreement should be made with the lawful occupiers of land and their written consent obtained to carry out mining or prospecting operations". The Mining Act defines a lawful occupier of land in the following way:

"Lawful occupier in relation to any land means a person who is in actual occupation of the land or any part of it and where there are more than one person, means that one of them who is the owner, or who is responsible or would be so responsible if the land were let at a rent or otherwise occupied in circumstances in which consideration or damages for such occupation would be payable."

According to the act,

“The holder of a Mineral Right shall not exercise any of his rights under his license or under this act [...] except with the written consent of the lawful occupier thereof, in respect of:”
(i) any land which is the site of, or any inhabited, occupied or temporarily unoccupied house or building;
(ii) any land within 50 metres of land which has been cleared or ploughed or otherwise prepared in good faith for the growing of agricultural crops or upon which agricultural crops are growing;
(iii) any land from which, during the year immediately preceding, agricultural crops have been reaped.

While this section of the Mining Act appears to give local people good protection, the ultimate power still lies with the central authorities. The acts states that if Minister and the Mining Advisory committee suspect that such consent is withheld “unreasonably,” the “need for the consent shall be dispensed with” and the paragraph “shall not have effect.” With widespread allegations that any person holding the commissioner post is in danger of becoming corrupted, many citizens do not trust the commissioner as someone who will treat conflicts between large mining companies and local communities in a fair way.

A few years after the Mining Act had been passed, the government saw the need in 2001 to publish a position paper on the legal framework for the development of the industry. The position paper was written by The Law Reform Commission of Tanzania, and emphasizes that although the mining industry is governed by the Mining Act, “there are other equally important legislation which impact on this sector that need to be harmonized”, such as the Land Act and the Village Land Act. The paper also states that “mining laws need to be reviewed and harmonized with other statutes being administered by other institutions that directly or indirectly affect the development of the mining sector to avoid unnecessary legal and institutional conflicts."

A comparison of the 1979 and 1998 Mining Acts has raised some concerns. For example, the provision that Ministry of Mines officials could not own shares in mining companies or mining licenses was dropped in the 1998 act. It was argued that this would "seem to open the door to an increased potential for ministry officials to act with private, versus state or public interests, in mind. It also created an additional avenue for influence or enticements directed at public officials by private mining companies.”

The commission refers to Section 14 of the act, which gives the Minister responsible for minerals, in consultation with the Mining Advisory Committee, the right to “designate any vacant area as an area exclusively reserved for prospecting and mining operation, if he determines that it would be in the interest of the orderly development of the Mining Industry in Tanzania.” Since the term ‘vacant area’ is not defined, it may potentially include village land and/or reserves. The position paper warns that due to lack of consultations, the many mining licenses may become “a breeding ground for litigations.”