The Mining Law Review: Ivory Coast
Since the implementation of Law No. 2014-138 dated 24 March 2014 establishing the new Mining Code (the Code), the Ivory Coast has been shaped by a constant desire to acquire and retain the substantial political and economic stability that in turn provides the perfect environment for the mining sector to grow in.
At the political level, the next presidential elections will take place in October 2020 and President Ouattara has officially confirmed that he will not run for a third mandate. The Ivorian civil society fears renewed tension around the upcoming presidential elections, still deeply affected by the electoral crisis in 2011.2 Uncertainties resulting from the upcoming presidential elections have impacted the mining sector as the level of investments drastically dropped in 2019 with a 49 per cent decrease.3
Nevertheless, the Ivory Coast continues to be one of the most dynamic economies in Africa. Since 2012, the country has enjoyed strong growth in its gross domestic product (GDP) and has a projected real GDP of 2.7 per cent in 2020 in the context of the coronavirus (covid-19) pandemic.4
Before undertaking an analysis of the mining legislation and its effects on the sector, an overview of the current status and context of the mining sector in the Ivory Coast is essential to evaluate its future prospects. The economic boost that the country has enjoyed since 2012 is supported by President Ouattara's government's strategic plan to promote the mining sector as the country's main source of economic and social development, which in turn depends on the Ivory Coast's capacity to attract international mining companies.
The legal framework enacted following the adoption of the new Mining Code aims to establish a balance between the interests of investors and the state, while complying with international local content requirements and factoring in social and environmental parameters.
The mining sector was very dynamic in 2019. The annual turnover was approximately 761.9 billion CFA francs in 2019, compared to 582.3 billion CFA francs in 2018. In addition, the number of individuals directly employed also increased, by 5 per cent. Tax revenues generated by mining companies totalled 94.6 billion CFA francs in 2019, up 43.62 per cent compared to 2018.5
The Ivory Coast has large untapped resources, with an estimated two-thirds of the territory covered with mineral resources. The country is currently exploiting nickel, bauxite, manganese, diamonds and gold but also has considerable reserves in steel, iron ore and coltan.
Gold mining remains at the forefront of the mining sector, with an increase of 35 per cent in 2019 to 32.6 tonnes of gold production. For instance, an agreement between IronRidge Resources Limited and Major Star for the acquisition of two gold exploration licences by the former has been reported in early 2020.6
II LEGAL FRAMEWORK
The Ivorian legal system has been strongly influenced by the French civil law tradition of codifying the law. Under the current Third Republic regime and the Fourth Constitution, the prerogatives of the executive power, although within the framework of a presidential regime, have been restricted. Within the entire national territory, the different sections of the Supreme Court (composed of the Court of Cassation and the State Council), the Courts of Appeal and tribunals are responsible for performing judicial functions.
The main laws applicable to mining activities are the Code, the decree dated 25 June 2014 implementing the Code, the Environment Code and the Labour Code. Additional regulation must also be scrutinised, such as the Order on Surface Royalty dated 26 March 2014 and proportional taxes in the mining sector. A draft of a collective labour agreement for the mining sector is being discussed among stakeholders.7
The Ivory Coast's economy is highly integrated within the West African region. It is a Member State of the Organisation for the Harmonisation of African Business Law (OHADA) and of the West African Economic and Monetary Union (WAEMU), which enacted a mining code in 2003. The WAEMU Mining Code governs any mining operation relating to the prospection, exploration, exploitation, detention, traffic, transport, treatment, trade and transformation of minerals within the territories of the WAEMU Member States. The amendment of the WAEMU Mining Code is being discussed among the WAEMU Member States. The Ministers of Mines of the Member States have already agreed on some guidelines, such as the non-stabilisation of issues relating to human rights, health, safety, employment, environmental and social aspects, improvement of the rules relating to sub-contracting and introducing mechanisms for allowing the national private companies to acquire participating interests in mining companies.8
The Ivory Coast is also a member of the Economic Community of West African States (ECOWAS), which enacted a Directive on the harmonisation of guiding principles and policies in the mining sector in 2009, the main objectives of which are to harmonise mining laws in the region, to improve transparency and to protect the environment and local communities. A Supplementary Act to the ECOWAS Mining Code was approved on 29 June 2019, which aims at ensuring that the local communities benefit from the revenues arising from mining operations.9
At the international level, the Ivory Coast has made good progress in terms of transparency. It joined the Kimberley Process Certification Scheme in 2013, with the aim of stopping the traffic of conflict diamonds. As a direct consequence, the embargo on diamond exports from the Ivory Coast was lifted by the UN Security Council on 29 April 2014. The Ivory Coast also joined the Extractive Industries Transparency Initiative (EITI) in 2006 and has created an agency with a similar agenda at national level. In May 2013, it was declared compliant with the 2011 EITI Rules and in May 2018 it was declared to have made 'meaningful progress' towards implementing the 2016 EITI Standard.10
According to the Code, the main regulatory bodies in the Ivory Coast are the President of the Republic and the Ministry of Mines and Geology (the Ministry), the department in charge of implementing mining policy. The current Minister of Mines and Geology is Mr Jean-Claude Kouassi.
These authorities require, inter alia, mining operators to provide reports and keep various documents available, depending on the nature of the permit issued. The main reporting requirements are in respect of statistics on performance, employment, advancement of exploitation and exploration operations.
III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS
The Code reaffirms the sovereign ownership of the Ivorian state of the natural underground resources located within its territory, including territorial waters and the continental shelf up to the international border. Subject to the provisions of the Code, the state may, however, grant a mining title (i.e., a permit or authorisation allowing an Ivorian or foreign company to undertake mining activities in the Ivory Coast).
ii Surface and mining rights
Mining substances are divided into two categories: quarry substances and ore substances. Focusing on ore substances, activities covered by the Code can be split into three standard phases: prospection, exploration and exploitation. Contrary to prospection and exploration activities, the legal framework for mining exploitation has been divided into two main regimes based on the type of deposit and the importance of the facilities involved. More specifically, the authorisation regime applies to semi-industrial and artisanal exploitation of ore (as well as to industrial or artisanal exploitation of quarry substances), whereas the permit regime applies to regular exploration activities and exploitation of ore. This chapter mainly focuses on the permit regime.
The exploration permit grants an exclusive right to explore within a perimeter, which cannot exceed 400 square kilometres, and to dispose of the products extracted during these operations. However, disposal is subject to a prior declaration to the Ministry and the payment of the applicable mining duties.
In addition, the permit holder is automatically entitled to request and obtain an exploitation permit at any time during the exploration period provided that it has carried out all its obligations and that a feasibility study has proven the existence of one or several deposits within the perimeter of the permit.
As to its legal nature, the exploration permit is a movable and indivisible right that may not be farmed out, pledged or mortgaged.
Conditions and procedure for granting
As described below, requirements and standards for eligibility are quite high and may exclude companies with limited experience, financial or technical capacities.
First, the applicant must be a national natural person or a legal person established under Ivorian law, thus excluding other investment vehicles such as branches. A minimum share capital of 20 million CFA francs is required for such legal entities, compared to one million CFA francs under the former Mining Code, which constitutes a drawback in the eyes of investors.
Second, to be eligible, any applicant seeking an exploration permit must meet specific technical and financial criteria. For instance, the applicant must have undertaken two exploration projects in the past 10 years and have recruited a technical manager with at least seven years' experience in exploration work. Furthermore, the applicant must have sufficient financial resources to provide for the exploration costs by paying a deposit into a bank account at a first-ranked financial institution in the Ivory Coast. A minimum exploration budget of 1.6 million CFA francs per square metre is also required for the first four years.
As to the procedure, the permit is officially granted by decree. The holder must then start the exploration work within six months of that date.
Duration and renewal
The duration of validity has been extended from three to four years and is renewable twice for successive periods of three years, which constitutes an increase of one year from the previous Code. The holder of the permit must apply for renewal at least three months before the expiry date and renewal is granted automatically if the applicant has fulfilled all its obligations. Exceptionally, an additional renewal for a maximum of two years may be granted if the reason for the request is a delay in finalising a feasibility study.
In principle, after each renewal, the size of the perimeter is reduced by one-quarter; however, the holder of the permit may keep the entire perimeter subject to payment of an option right and provision of proof that work will be completed over the entire perimeter.
Assignment and transfer
The exploration permit can be assigned or transferred upon obtaining approval from the Minister, which is automatically granted if the applicant has fulfilled all its obligations pursuant to the Code.
The holder of the exploration permit may be allowed, without penalty, to relinquish the rights granted by the exploration permit on all or part of the perimeter of the permit. The relinquishment must be approved by the Administration of Mines and is subject to full payment of the amounts due at the time of the relinquishment and the fulfilment of its obligations relating to the environment.
Withdrawal of permit
The exploration permit may be withdrawn, without compensation and following an unsuccessful 60 days' formal notice if the permit holder does not comply with all its obligations and commitments, such as providing proof of the constitution of the banking reserve, payment of taxes, royalties and duties, not carrying out exploitation activities within the exploration perimeter, or delaying or suspending exploration work for more than six months.
The holder of an exploitation permit has an exclusive right to exploit the deposits within the limits of its perimeter, and the right to transport or to arrange the transport of the extracted ore, the right to trade with the ore on the internal or external markets and to export it. It is also allowed to establish the necessary facilities to condition, treat, refine and transform the ore.
Unlike exploration permits, exploitation permits are indivisible, immovable rights that may be mortgaged subject to approval by the Minister of Mines and Industry.
Conditions for granting and procedure
The Code requires the exploitation permit holder to establish a company under Ivorian law, the sole purpose of which is to exploit the deposit located within the perimeter. The permit will then be transferred to this exploitation company.
The holder of the exploitation permit must prove within six months of delivery of the permit that its staff includes experienced engineers, mining geologist teams and a technical manager meeting the same requirements as for the exploration stage, and that it has paid a deposit into a bank account of a first-ranked financial institution in the Ivory Coast. The time limit to start development work has been reduced from two years, as stipulated in the former Code, to one year.
The Administration of Mines may put out to tender any perimeters not attributed and on which work has revealed the existence of potential mining assets.
A mining convention must be signed between the state and the holder of the exploitation permit within 60 days of delivery of the permit.
The convention's main purpose is to stabilise the tax and customs regime applicable to the exploitation operations; however, the Code does not limit its purpose, and other essential rights, obligations and conditions may be incorporated into the convention. A template convention may be provided by the state. The decree implementing the Code further provides for the main obligations to be included in the mining convention, in particular the rights and obligations of the title-holder and the undertakings of the state. In any case, the convention cannot derogate from the provisions of the Code and the decree implementing the Code.
The mining convention has an initial duration of 12 years, renewable for successive periods of a maximum of 10 years. The fact that the duration of a convention does not mirror the duration applicable to an exploitation permit as described below may create difficulties that should be carefully assessed and anticipated by the parties.
In exchange for the exploitation permit, the state is allowed to obtain a 10 per cent free-carry and non-dilutable participation in the share capital of the operating company. Any additional participation of the state in the company's operating share capital (which cannot exceed 15 per cent) may be negotiated at market conditions.
However, this percentage does not pertain to participation by state-owned companies. Therefore, any participation by SODEMI (Société pour le développement minier de la Côte d'Ivoire) in the share capital may indirectly increase the control of these entities on the operating company.
Duration and renewal
The exploitation permit is granted for the lifetime of the mine as indicated in the feasibility study, with a maximum duration of 20 years. It can be renewed for successive periods of a maximum of 10 years. Applications for renewal are made under the same conditions as for exploration permits.
In the event of persisting adverse market conditions or a force majeure event, the holder of the exploitation permit may request a postponement or suspension of the mine exploitation work, extending, if approved, the duration of the permit for a maximum of two years, which may be renewed only once.
Assignment and transfer
Assignment and transfer are made under the same conditions as for exploration permits.
The holder of the exploitation permit may be allowed, without penalties, to relinquish the rights granted by the exploitation permit on all or in part of the perimeter of the permit. The relinquishment is approved by the Administration of Mines and is subject to full payment of the amounts due at the time of the relinquishment and the fulfilment of obligations relating to the environment and the rehabilitation of sites (see Section IV).
The exploitation permit may be withdrawn, without compensation and following an unsuccessful 60 days' formal notice if the exploitation permit holder did not comply with its obligations and commitments. In particular, it may be withdrawn if the exploitation company does not provide proof of the payment of the deposit into the bank account in due course or if it has delayed or suspended the exploitation work without authorisation, or did not pay the relevant duties, royalties or taxes.
iii Additional permits and licences
The holder of a mining title remains subject to specific laws and regulations governing, in particular, environmental protection, construction, hazardous or unsanitary buildings or facilities and the protection of the forestry heritage.
iv Closure and remediation of mining projects
Any applicant for an exploitation permit must submit a closing and rehabilitation plan for the mine to the administration. This plan shall be approved by the administrations for mines and for the environment. The content of such a plan is further detailed in Section IV.
Furthermore, at the beginning of the exploitation, an escrow account for the rehabilitation of the environment must be opened with a first-ranked financial institution in the Ivory Coast. The aim of this account is to cover any costs relating to the environmental rehabilitation plan at the end of the exploitation operation. Funds in this account are recorded as costs when determining the tax base for business profits tax.
v Additional consideration
A main innovation of the Code is the extensive list of criminal and administrative sanctions attached to any infringement of obligations or requirements included in the Code. Criminal sanctions include a prison term of up to five years and fines of up to 50 million CFA francs. Administrative sanctions cover, in particular, annulment of the permit, closing of the exploitation perimeter or confiscating materials used to commit the infraction.
IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS
i Environmental, health and safety regulations
Before starting exploration or exploitation operations, the holder of the mining title must develop a specific set of rules relating to health and safety. During the operations, it must guarantee the safety of persons and goods in connection with the mining project by taking several measures, the details of which are provided by the decree implementing the Code. Any accidents occurring during mining activities must be reported in writing to the Minister of Mines, and appropriate measures must be taken to avoid future accidents of the same kind.
ii Environmental compliance
A permit holder must conduct mining operations in a way that ensures protection of the environment, rehabilitation of exploited sites and conservation of forest resources. In this respect, it must submit an environmental and social impact assessment (ESIA) for the administration to approve. The ESIA must include an environmental and social management plan comprising a site rehabilitation plan as well as addressing provisional costs.
The rehabilitation plan must take into account several aspects, such as the cleaning of the site, dismantling and removal of mining installations, the post-rehabilitation surveillance of the site, and suggestions of how the site could be reconverted. These matters must be addressed during the exploitation period and not just at the end of operations.
After the closure of the mine, any exploitation permit holder remains liable under civil law for damages and accidents on the site that could be caused by the former installations for five years following closure.
Mining activities also fall within the scope of the Environment Code, which notably requires investors to provide an environmental report assessing the environmental impact of the project.
iii Third-party rights
Some protected areas, such as closed properties, places of worship or cultural sites, cannot be subject to mining activities without the prior consent of the owners, occupants and concerned communities, as well as authorisation from the Minister of Mines.
In addition, the Code follows modern African mining legislation, which increasingly aims to protect the rights of local populations. The Code guarantees the right to a fair indemnity for the land's occupants and legal owners in the event of occupation of the land. This indemnity will be paid following the signing, under the supervision of the mining administration, of a memorandum of understanding by the exploitation companies, the occupants and the legal owners. The use of land required for mining activities and work completed on the land may be declared as being in the public interest upon satisfaction of conditions provided under the applicable law.
iv Additional considerations
Exploitation permit holders must draw up a community development plan jointly with local communities and administrative authorities and constitute a development fund for the benefit of villages identified as 'affected localities' by the ESIA. This fund is annually credited and will be used to realise socioeconomic development projects, the amount involved being deductible from the profit tax base. They must also instigate and conduct training for Ivorian small and medium-sized enterprises to increase their participation in the mining sector.
To enhance transparency, the Code prevents any member of the government, or a public servant of any kind, who has been involved in the mining administration, from obtaining financial benefits directly or indirectly from mining companies; this stipulation extends to the five years following the end of their duties. Furthermore, they have to declare any interests held in the mining sector in the period before they exercised public functions and declare themselves non-competent to participate in a decision process that could affect those interests.
The holder of a mining title must comply with the Equator and EITI principles and report to the national office of the EITI all mining revenues and social contributions paid to the state. In 2011, the Ivorian Council for EITI released a report showing that the government had received more than 152 billion CFA francs in taxes, fees and royalties from the oil, gas and mining sectors during the 2011 fiscal year. In 2012, the amount declared to the EITI rose to 511.6 billion CFA francs, mainly as a result of the increase in oil and gas prices and the inclusion of customs duties and employee contributions from 2012.
V OPERATIONS, PROCESSING AND SALE OF MINERALS
i Processing and operations
The Code does not contain detailed provisions regarding the processing and transformation of extracted ore. It merely provides that the holder of an exploitation permit has the right to transport the extracted substances to the storage and treatment location, and the right to establish the necessary facilities to condition, treat, refine and transform the ore.
Subcontractors of the holder of the exploitation permit must be approved by the administration. Modalities of this approval are set out in the decree implementing the Code. Permit holders must, in any case, give preference to local subcontractors subject to them providing equivalent services in terms of quality, price and quantity. As regards local employees, the permit holder must recruit local personnel as a matter of priority and develop and finance a training plan to help increase the employability of Ivorians.11
ii Sale, import and export of extracted or processed minerals
As stated above, the holder of an exploitation permit has the right to market the ore on the internal or external markets, and to export it.
More specifically, a gold exploitation permit allows the permit holder to market the ore and to proceed with any transaction dealing with crude gold or gold material. A crude diamond exploitation permit grants the same rights as for gold, provided that the Kimberley Certification Process Scheme is duly followed.
iii Foreign investment
The Code provides for various foreign investment-related rights granted to mining title-holders. They are allowed to open and operate accounts in local or foreign currencies in the Ivory Coast, to collect abroad all funds acquired or borrowed abroad, excluding revenues from the sale of their production (which must be repatriated in the Ivory Coast), and to transfer abroad dividends and income from the capital invested as well as from the income deriving from the liquidation or realisation of their assets.
The guarantee of free conversion from the national currency to foreign currencies and vice versa is governed by international treaties applicable in the franc zone and the WAEMU. For instance, WAEMU Rule No. 09/2010/CM/UEMOA on the external financial relations of the WAEMU Member States requires that any foreign exchange transaction, movement of funds or payments between a WAEMU member and a non-WAEMU country must be carried out through the Central Bank of West African States (the BCEAO), post offices or authorised agents.
In terms of investment protection, the Ivory Coast has ratified the Convention on the Settlement of Investment Disputes between States and Nationals of other States, and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In addition, the Code provides for the possibility of including an arbitration clause in mining conventions.
In view of the limited number of bilateral investment treaties ratified by the Ivory Coast, investors should ensure that the mining convention includes a well-drafted arbitration provision.
Order No. 2014-148 dated 26 March 2014 on surface royalties and proportional taxes, ratified by Law No. 2014-854 dated 22 December 2014, requires holders of mining titles to pay annual surface royalties assessed by square kilometres or hectares, which vary depending on the phase of the project (prospection, exploration or exploitation) and range from 1,000 CFA francs per square kilometre per year for the prospection phase to 250,000 CFA francs per square kilometre per year for the exploitation phase. The royalty must be paid 60 days before the anniversary of the mining title.
In addition to corporate income tax and other royalties and taxes required under the General Tax Code, the permit holder is subject to an ad valorem tax and the calculation is based on the turnover after the deduction of transportation costs (free on board price) and refining costs.
The rate of the ad valorem tax for gold exploitation varies depending on the price of the ounce of gold – from 3 per cent when the ounce is below US$1,000 to 6 per cent if the ounce is above US$2,000. The rate for other substances is fixed between 1 per cent and 5 per cent. The tax is payable quarterly.
Order No. 96-600 dated 9 August 1996 sets out several fixed duties. The main fixed duties are those payable for the award of exploitation permits (1 million CFA francs) and their renewal (2 million CFA francs). Fixed duties for the issuance of an exploration permit amount to 500,000 CFA francs.
There are additional fixed duties in the event of renewal, sale, transfer, farming out, mortgage or relinquishment of mining titles and authorisations. Other fixed duties are set out in the relevant decrees.
iv Tax incentives
Stabilisation of tax and customs regime
As mentioned previously, both the Code and the mining convention guarantee the stability of the tax and customs regimes during the exploitation phase.
Article 169(e) of the Code formerly provided for a total exemption from corporate income tax and from the minimum flat tax for the holder of an exploitation permit for the first five years after the beginning of commercial production. Ordinance No. 2018-144 has abolished this exemption.12 However, the Ordinance provides that (1) the mining convention in force and the exploitation permit granted prior to the entry into force of the Ordinance shall not be affected by the ending of the exemption, and (2) an exploitation permit granted in 2018 shall benefit from discounted rates on corporate tax for the two first years after the beginning of commercial production (a discounted rate of 75 per cent for the first year and of 50 per cent for the second year).
The Code also provides for other exemptions to the benefit of exploitation permit holders relating to customs duties, including value added tax, on various imported materials.
VII OUTLOOK AND TRENDS
The reform of the WAEMU Mining Code should be closely monitored as it will have an impact on the Ivorian legal framework. It will probably create additional obligations for mining companies operating in Ivory Coast. The WAEMU requirements in terms of exchange control are also key and should be clearly considered prior to any investment decision. The relevant authorities (including the central bank, BCEAO) are becoming stricter on compliance by international companies operating in the WAEMU area with such requirements.
Trends in the Ivory Coast mining industry point to positive outcomes. The government confirmed that the mining sector's place in the Ivorian economy should grow.
With major gold players such as Randgold Resources and Endeavour Mining planning to increase the life expectancy of their mines, gold mining should remain the principal driver of the mining sector in the next few years despite its slight decline in 2018. The government intends to double the gold production in the country by 2025.13
However, the success of the gold industry has a significant disadvantage: illegal gold panning is becoming more and more of an issue in slowing the industry down. Solutions have been proposed to overcome this problem, including the establishment of the Brigade de Répression des Infractions du Code Minier towards the end of 2018, which has already fined a number of individuals responsible for illegal mining activities,14 with 222 clandestine sites dismantled in 2019.15 In addition, the recent removal of the corporate tax exemption has sent a negative signal to the mining sector.
Despite that, the future of the mining sector should remain dynamic, although the political stability will be key and should be carefully monitored in the context of the upcoming presidential election.
Finally, the Ivorian authorities' objective is to raise the country's economy to the level of an emerging economy by 2020. This aim is currently being furthered by significant investments in infrastructure and power projects, which are likely to have a positive effect on the mining industry. The reform of the mining sector's legal framework was an instrumental step in this direction and reflects President Ouattara's ambition to transform the mining sector into one of the pillars of the Ivorian economy, joining cocoa and coffee production.
1 Emma France is an associate at Herbert Smith Freehills Paris LLP.
2 Jeune Afrique, 'Présidentielle en Côte d'Ivoire: face aux craintes de tensions, Alassane Ouattara joue l'apaisement', 11 January 2019.
3 Agence ecofin, 'Côte d'Ivoire: la perspective de l'élection présidentielle de 2020 fait baisser les investissements dans le secteur minier', 28 February 2020.
4 International Monetary Fund (IMF), 'World Economic Outlook (April 2020)'.
5 Publications by the Ministry of Mines and Geology dated 27 February 2020.
6 Mining Metal News, 'IronRidge Resources acquires gold exploration portfolio in Côte d'Ivoire', 2 March 2020.
7 Africa Mining Intelligence, 'La convention collective spéciale mines est presque prête', 8 January 2019.
8 Extract of the communication from the WAEMU Mining Ministers dated 29 June 2019.
9 Final release of the 55th session of the meeting between the Economic Community of West African States heads of state and government held on 29 June 2019.
10 Website of EITI.
11 However, preferences for Ivorian companies and employees may be considered as violating the WAEMU Treaty and the WAEMU Mining Code, which expressly provide that Member States' mining laws and regulations have to favour the free circulation of persons and the free provision of goods and services originating from the entire WAEMU area.
12 Ordinance No. 2018-144 dated 14 February 2018 modifying Article 16e of Law No. 2014-138 of 24 March 2014, establishing the Mining Code, published in the Official Journal dated 12 April 2018. The Ordinance has been ratified by a law in 2020.
13 Agence Ecofin, 'La Côte d'Ivoire veut doubler sa production d'or d'ici 2025', 10 December 2018.
14 Ministerial Council dated 10 April 2019. See also Echomedias, 'Côte d'Ivoire: Des amendes de 900 millions de Fcfa infligées à des orpailleurs clandestins', 17 June 2019.
15 Publication by the Ministry of Mines and Geology dated 27 February 2020.