Mineral Concessions and Surface Rights (ss 60-64)

60.     Restriction on exercise of rights under a mineral concession

            (1) No holder of a mineral concession shall exercise any right thereunder-

     (a)     without the written consent of the President, upon-

           (i)       any land dedicated as a place of burial;

          (ii)       any land containing any ancient monument or national monument, as defined in the Cap. 59.03 Monuments and Relics Act; or

          (iii)       any land set aside or used for the purposes of Government;

     (b)     without the written consent of the owner or lawful occupier thereof-

           (i)       within 200 metres of any inhabited, occupied or temporarily unoccupied house or building;

          (ii)       within 50 metres of any land which has been cleared or ploughed or otherwise bona fide prepared for the growing of agricultural crops or upon which agricultural crops are growing;

          (iii)       upon any land from which, during the year immediately preceding, agricultural crops have been reaped; or

         (iv)       within 100 metres of any cattle dip, tank, dam or private water, as defined in the Cap. 34:01 Water Act:

                               Provided that where consent is unreasonably withheld the Minister may authorize the holder of a mineral concession to exercise all or any of his rights thereunder on such land, subject to such reasonable conditions as he may impose, including payment of reasonable compensation;

                               Provided further that a dispute over the level of compensation shall not preclude the exercise of the concession holder's rights while such dispute remains to be settled;

     (c)     in a national park, without permission obtained under section 10 of the Cap. 38:01 Wildlife Conservation and National Parks Act;

     (d)     upon any land reserved for the purposes of a railway track or within 50 metres of any railway track, without the written consent of the railway administration concerned;

     (e)     upon any land within, or within 200 metres of, the boundaries of any township, without the consent of the local authority concerned;

     (f)      upon any street, road, highway, public place or aerodrome, without the consent of the Minister or other authority having control thereof;

     (g)     upon any land on which industrial minerals are being mined on behalf of Government or a local authority, or by any person holding a permit under Part VII, without the consent of the Minister, such local authority or the holder of such permit, as the case may be; or

     (h)     upon land specified by the Minister, by order published in the Gazette, to be land upon which prospecting or mining is prohibited or restricted.

            (2) A person exercising any right under a mineral concession shall produce evidence of the possession of such concession to the owner or lawful occupier of any land upon which such right is to be exercised upon demand being made to him and, in default of such production, such person may be treated as a trespasser.

            (3) No person shall exercise any right under a mineral concession upon any land other than unalienated State land unless he has given at least 14 days notice of his intention to do so to the owner or lawful occupier thereof giving in such notice details of the area in which the right is to be exercised and the date of expiry of his permit or licence.

            (4) A notice given under subsection (3) shall be valid only for the period of validity of the mineral concession and the person giving such notice shall not exercise any right under such permit or licence in respect of the land to which the notice relates after the expiry thereof and, in the event of a renewal of such concession, he shall give fresh notice under subsection (3).

            (5) No consent applied for under this section shall be unreasonably withheld.

61. Right to graze stock, etc.

(1) The owner or lawful occupier of any land within the area of a mineral concession shall retain the right to graze stock upon or to cultivate the surface of such land insofar as such grazing or cultivation does not interfere with the proper use of such area for prospecting, retention or mining purposes.

(2) In the case of a mining area, a retention area or a minerals permit area, the owner or lawful occupier of any land within such area shall not erect any building or structure thereon without the consent of the holder of the mining licence, retention licence or minerals permit, as the case may be, which consent shall not be unreasonably withheld.

(3) The rights conferred by a mineral concession shall be exercised reasonably and so as to affect as little as possible the interests of any owner or lawful occupier of the land on which such rights are exercised consistent with the reasonable and proper conduct of the operations concerned.

(4) No holder of a mineral concession shall create unprotected pits, hazardous waste dumps or other hazards such as to be likely to endanger the stock, crops or other lawful activity of the owner or lawful occupier of the land covered by such mineral concession.

62. Acquisition of exclusive rights by holder of mining or retention licence or minerals permit

(1) The holder of a retention licence, mining licence or minerals permit may, if he requires the exclusive use of the whole or any part of the retention area or mining area or minerals permit area, and shall, if requested by the owner or lawful occupier of any part of such area, obtain a lease thereof or other rights to use the same upon such terms as to the rents to be paid therefor, the duration thereof or the extent or area of the land to which such lease relates as may be agreed between such holder and such owner or lawful occupier, or, failing such agreement, as may be determined by arbitration:

Provided that-

(i) the holder of a mining licence or such a permit shall not obtain a lease of or other rights over any land specified in paragraphs (a) and (c) to (g) inclusive of section 60(1) except with the consent of the persons specified in such paragraphs;

(ii) in the case of tribal land, any rents payable under this subsection shall be payable to the Land Board within the area in which the land is situated;

(iii) an arbitrator appointed in pursuance of this subsection may, on application by any interested party, apportion any rent payable under this subsection between the owner and any lawful occupier; and

(iv) no demand made in terms of this subsection shall entitle the owner or lawful occupier to prevent or hinder the exercise by the holder of rights under his concession pending determination of compensation to be paid.

(2) In assessing any rent payable under the provisions of this section, an arbitrator shall determine the matter in relation to values at the time of arbitration current in the area in which the mining licence or retention licence or minerals permit is situated for land of a similar nature to the land concerned but without taking into account any enhanced value due to the presence of minerals.

63. Compensation for disturbance of rights, etc.

(1) The holder of a mineral concession shall, on demand being made by the owner or lawful occupier of any land subject to such concession, promptly pay such owner or occupier fair and reasonable compensation for any disturbance of the rights of such owner or occupier and for any damage done to the surface of the land by such operations and shall, on demand being made by the owner of any crops, trees, buildings or works damaged during the course of such operations, pay compensation for such damage:

Provided that-

(i) payment of rent under the provisions of section 62 shall be deemed to be adequate compensation for deprivation of the use of land to which such rent relates;

(ii) in assessing compensation payable under this section, account shall be taken of any improvement effected by the holder of the mineral concession or by his predecessor in title, the benefit of which has or will enure to the owner or lawful occupier thereof;

(iii) the basis upon which compensation shall be payable for damage to the surface of any land shall be the extent to which the market value of the land (for which purpose it shall be deemed saleable) upon which the damage has occurred has been reduced by reason of such damage, but without taking into account any enhanced value due to the presence of minerals;

(iv) no compensation shall be payable to the holder of a state grant of land or his successors-in-title in respect of any operations under a mineral concession existing at the date of such grant; and

(v) no demand made in terms of this subsection shall entitle the owner or lawful occupier to prevent or hinder the exercise by the holder of rights under his concession pending the determination of compensation to be paid.

(2) If the holder of a mineral concession fails to pay compensation when demanded under the provisions of this section, or if the owner or lawful occupier of any land is dissatisfied with any compensation offered, the dispute shall be determined by arbitration.

(3) A claim for compensation under the provisions of subsection (1) shall be made within a period of four years from the date when such claim has accrued, failing which, notwithstanding the provisions of any other written law, such claim shall not be enforceable.

64. Compulsory acquisition of land

(1) Where the President considers that any land is required to secure the development or utilization of the mineral resources of Botswana, he may compulsorily acquire such land.

(2) Acquisition of land under this section shall be deemed to be for a public purpose in terms of the provisions of the Acquisition of Property Act and any acquisition under this section shall be effected in accordance with the provisions of that Act.