The Mining Law Review: Senegal
New Mining Code
The Parliament of Senegal passed a new Mining Code, Act No. 27/2016 on the Mining Code, on 30 October 2016.
The new Mining Code (the 2016 Code) applies to new applications only; the provisions of the 2003 Mining Code (the 2003 Code) will continue to apply to existing permits.
Key changes from the 2003 Code to the 2016 Code are summarised below.
Length of mining permits
Under the 2016 Code, a small-mine permit will be issued for an initial term of five years (three years under the 2003 Code). The term may be renewed for three years at a time without any limit on the number of renewals.
A mining permit will be issued for an initial term of between five and 20 years (depending on the mineral reserves identified and the investment required); the maximum term for an initial permit under the 2003 Code is 25 years. Mining permits are renewable as many times as necessary until the resource is exhausted.
Changes to fees, royalties, taxes and tax relief
Under the 2016 Code:
- fees such as entry fees and quarry permits has been increased;
- an annual surface royalty has been introduced, which is payable by all mining title-holders;
- in 2012, most taxes relating to the mining sector were moved from the 2003 Code to the General Tax Code. This continues under the 2016 Code, except for the specific 'mining tax'. Under the 2016 Code, mining activities will be subject to a quarterly tax levied on the market value of the commercialised product. Rates for some common substances include iron ore (concentrate 5 per cent, locally processed 2 per cent), phosphate (calcium-aluminate and lime phosphate 5 per cent, phosphoric acid 1.5 per cent) and gold at 1.5 per cent; and
- the mining title-holder will continue to be exempt from all taxes and fees, including valued added tax (VAT) and the port charge levied by the Senegalese Shippers' Council (COSEC) during the period commencing on the date of entry into force of the mining permit (or small-mine permit) and ending on the first day of commercial production (investment period). However, the exemption will not apply to the statistical royalty, community solidarity royalty and other community taxes (rates for these taxes are not defined in the 2016 Code).
Production sharing agreements
The 2016 Code permits the state of Senegal and a mining company to enter into a production sharing agreement. This gives the mining company the exclusive right to research and mine a particular area and recover the cost of doing so from sale of the mined substance. The profits from the sale of the product are split between the state and the mining company in an amount specified in each individual agreement. Where a production sharing agreement exists, the mined substance will not be subject to the quarterly mining tax outlined above.
Local development funds
The 2016 Code introduces an obligation for mining title-holders to contribute annually to a local development fund:
- entry fees for the grant of small-mine permits and mining permits, and fees for research permits, semi-mechanised authorisations and quarry permits, will increase under the 2016 Code; and
- the 2016 Code introduces an annual surface royalty payable by all title-holders, including holders of research permits and quarry permits. This will be 50,000 CFA francs per hectare for a small-mine permit and 250,000 CFA francs per square kilometre for a mining permit.
Enhanced social and environmental obligations
The 2016 Code introduces an obligation for mining title-holders to contribute annually to a local development fund in the amount of 0.5 per cent of sales, minus annual fees (unspecified). The purpose of the local development funds is to promote the economic and social development of local communities around mining areas, and must include women's empowerment projects.
Under the 2016 Code, mining exploitation requires a prior environmental impact assessment, which will be approved by the Directorate of the Environment and Classified Establishments.
In addition, small-mine permit holders will be required to provide a guarantee as security for the cost of rehabilitating their mine site. Small-mine permit holders under the 2003 Code are not required to do this. Obligations for mining permit holders remain the same (to deposit funds in a trust account with a Senegalese bank that will be used to rehabilitate the mine site).
Under the 2016 Code, all mining title-holders are required to:
- respect, protect and implement human rights in areas affected by mining operations;
- respect the provisions of the Forestry Code where the mining title has been granted over a classified forest zone; and
- respect the principles and obligations under the Extractive Industries Transparency Initiative (EITI), such as declaring all payments made to the state to the EITI authorities.
The passing of the new law follows a three-year consultation and legislative drafting process and introduces many initiatives that have been used within the region.
The bill will now be presented to the president for promulgation and, after that time, it will be published in the National Gazette.
The 2003 Code was designed to attract and foster investment and development in mineral resources in the country. It embodies a transparent, predictable, simple, stable and non-discriminatory mineral regime. The country's Mineral Policy Statement sets out the main objectives for the development of the mineral resources to be found in Senegal and promotes the international principles necessary to encourage foreign investment inflows into the national economy. Application of the 2003 Code is designed to reduce transaction costs and the legal environment is based on the principles of clarity, flexibility, competitiveness and sustainability, provided that:
- diversification of mineral production and the beneficiation of mineral products before export is encouraged;
- the lawful rights and interests of investors are guaranteed;
- foreign investments are governed by the non-discriminatory principle, meaning that foreign investors will be treated no less favourably than comparable domestic investors;
- the protection of the environment and the sustainability of mining will be a key objective; and
- projects will be designed using a comprehensive information system for mineral resources management, integrated with other natural resources (such as land, forest reserves and water) with proper regard for environmental and social issues.
II LEGAL FRAMEWORK
Mining in Senegal is mainly regulated by:
- Act No. 27/2016 on the Mining Code dated 30 October 2016, enacting the 2016 Code;
- Decree 2017-459, implementing Act No. 2016-32 on the Mining Code;
- Act No. 2003-36, dated 24 November 2003, enacting the 2003 Code; and its implementation Decrees including Decree No. 2004-647, dated 17 May 2004, implementing the Mining Code (these acts are replaced by Act No 2016-32 but are still applicable to mining rights issued before its abrogation in accordance with the stability principle).
Apart from the Mining Codes, the mining sector is also regulated by:
- Regulation No. 18/2003/CM/WAEMU, dated 22 December 2003, enacting the West African Economic and Monetary Union (WAEMU) Mining Code;2
- the Environmental Code, No. 2001-01 of 15 January 2001;
- the Tax Code, No. 2012-31 of 31 December 2012;
- OHADA Uniform Acts on business law including, the Uniform Act of OHADA3 relating to general commercial law, dated 15 December 2010, the Uniform Act of OHADA on commercial companies and economic interested group dated 30 January 2014 and the Uniform Act on securities dated 15 December 2014;
- Act No. 2018-25, dated 12 November 2018, enacting the Forest Code and its implementing decree, dated 16 January 2019 ; and
- the exchange regulations in force in the member countries of WAEMU.
The main competent authorities in the mining sector are:
- the Presidency of the Republic;
- the Ministry of Mines and Geology;
- the Directorate of Mines and Geology;
- the Directorate of Control and Supervision of Mining Operations;
- the Directorate of Prospecting and Mining Promotion;
- the Directorate of General Administration and Equipment;
- the district mine departments (each of the 14 administrative districts in the country has a mining office);
- the Extractive Industries Transparency Initiative national committee; and
- the Directorate of the Environment and Classified Establishments.
III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS
All mineral substances contained in the ground and underground within the territory of the Republic of Senegal, its territorial waters and continental plateau are the property of the state. Mining title-holders acquire possession of the mineral substances that they extract.
Mining activities require prior mining titles issued by the Senegalese authorities. Mining titles are: mining permit (large-scale mining); mining research permit; mining permit; small-scale mining permit; a semi-mechanised mining permit; and artisanal mining permit.
Titles are transferable and transmittable subject to the prior approval of the Minister of Mines.
ii Surface and mining rights
Within Senegal, and in accordance with the Mining Code, the state can grant to one or many legal entities the right to undertake or conduct one or many mining operations relating to mineral substances contained in the ground or underground.
These legal entities must prove their technical and financial capacities to carry out all mining operations. The conditions under which mining operations can be carried out by these entities are defined by agreements (mining conventions) between the state, represented by the Minister of Mines and Geology (the Minister), and applicants.
No one can undertake or conduct a mining activity within Senegal governed by the 2016 Code without holding a mining title according to the terms of the mining legislation.
Three original copies of the application for a prospecting authorisation must be forwarded to the Minister, who must acknowledge receipt. The application must provide:
- the information and documents showing the identity of the person responsible for the work as set out under Article 4 of the 2016 Code;
- the aims of the planned prospecting, its scientific or economic character, its geographical location and its likely duration; and
- a brief description of the programme of work, the methods to be used, the anticipated results and supplementary technical information (in particular, the parameters for basic analysis of the initial state of the prospecting site and its environment).
A prospecting authorisation is granted for a period which cannot exceed six months and is renewable once, with no fee required. It does not confer any pre-emptive rights on its beneficiary. It is not transferable and does not give rise to any fiscal exemptions. The beneficiary is obliged to communicate the results of its research to the Director of Mines and Geology.
The beneficiary should first get approval for its research project and the budget. The applicant for an exploration permit should then submit three original copies to the Minister. The application must provide:
- the information and documents showing the identity of the person responsible for the work as set out under Article 4 of the Decree implementing the 2016 Code;
- a description of the mineral substances for which the application for the permit is being made;
- the coordinates of the exploration area;
- an estimate of the surface area of the exploration permit area being sought;
- an extract of the map of Senegal on a scale of 1:50,000 or 1:200,000 on which the exploration permit area being sought is indicated;
- a presentation of the planned exploration work and the methods to be used; and
- any supplementary technical information, such as the parameters for basic analysis of the exploration site.
An exploration permit is issued for a period not exceeding four years, renewable twice for periods not exceeding three years for each period. In the event of renewal, the exploration permit holder must relinquish part of the perimeter granted (generally 25 per cent) and gain approval of the programme and the budget for the renewal requested. In the event of competitive requests, priority is given to the tender offering the best conditions and guarantees for the state.
An exploitation permit is delivered by a presidential decree for a minimum period of five years and not exceeding twenty years. It is renewable and can be transferable. The applicant should include:
- three original copies of the application addressed to the Minster four months before expiry of the exploration permit;
- documents providing identification of persons and corporates, the reference of the exploration permit coordinates and surface area of the permit area being sought;
- a feasibility study indicating the characteristics and performance of mining production units, an economic and financial assessment of the project and its socio-economic impact;
- a report detailing the results of the exploration phase indicating, in particular, the reserves, grades, types of mineral deposits and metallurgic tests;
- a plan for the development and start of mining operations;
- an investment plan and a timing chart for the undertaking of the mining project;
- an environmental impact assessment concerning the mining operation (approved by the Ministry of Environment, which issues an environmental compliance certificate);
- a Memorandum of Understanding (MoU) in case of partnership between several natural persons or legal entities; and
- a draft of the convention between the state and the exploration permit holder if the demand does not derive from a current, valid exploration permit.
An exploitation company must be set up, under the provisions of the OHADA Uniform Act relating to commercial companies and economic interest groups, between the company with the exploration permit, or its designated subsidiary, and the state of Senegal. The parties will sign a shareholders' agreement to set out the terms and conditions for the establishment and management of the company.
The government takes its free carried stake during the exploitation phase, which represents 10 per cent of the mining company shares and may negotiate up to 25 per cent for itself or local applicants. In exceptional cases, the state may sell its right to acquire an additional interest in the mining company in exchange for an agreed sum of money.
The company is managed by a board of directors, the composition of which depends on the proportion of the shares in the exploitation company.
iii Additional permits and licences
Permits and licences mentioned above are required to conduct mining activities.
However, specific authorisations issued by the government may be required according to Senegalese laws including authorisations on land and environmental matters.
iv Closure and remediation of mining projects
Any holder of a mining title has obligation to rehabilitate sites when each mining title expires, except for the perimeters that are still covered by an exploitation mining title. To this end, the holder of a mining title must open an account in a commercial bank in Senegal into which funds are paid to cover the cost of the implementation of the restoration programme.
IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS
i Environmental, health and safety regulations
Each applicant for a mining permit must prepare, at its own expense, an environmental assessment and rehabilitation of mining site and quarry site in accordance with the Environment Code and the implementing decrees. All mining operations located in gazetted forest have to be performed in accordance with the Forestry Code.
Health and safety rules apply to prospecting, exploration and exploitation work, most notably in quarries, plants and laboratories, as well as the security rules relating to transport, stockpiling and use of explosives and dangerous products summarised by the Mining Code, the Labour Code and by decree.
Any accidents that occur during a mining operation, as well as any identified dangers, should be brought to the attention of the Ministry of Energy and Mines, the competent administrative authority.
All mining title-holders should abide by the preventative measures prescribed by the administration in charge of public security, hygiene and employee security, for preservation of their deposits, expanses of underground water, buildings and public roads.
ii Environmental compliance
The mining projects that are subject to realisation of an environmental impact assessment are the mining exploitation, the small mine exploitation and quarry exploitation. Consequently, the holders of exploitation permits, small-mine permits and quarry exploitation permits have to obtain the certificate of environmental compliance. The other mining operators do not need an environmental authorisation but rather they need only do a summary environmental assessment of their mining site before starting the works.
As previously noted, each applicant for these permits must prepare, at its own expense, an EIA to assist in this purpose.
The procedure for environmental compliance is the following:
- notice of project and compliance with terms of reference;
- realisation of an environmental impact assessment (EIA);
- examination of the EIA report by the technical committee;
- if the EIA report is in good standing, a public hearing will be done with populations located in and around the mining site; and
- issuance of environmental certificate and implementation of environmental management plan of the project.
If the application of environmental authorisation is in good standing, the time frame cannot exceed four months.
iii Third-party rights
The occupation of lands by the holder of a mining title, within or outside the perimeters granted, gives the owners or occupants of the lands the right to compensation for any losses suffered. The expenses, compensation and, in general, all charges relating to the application of land occupation clauses are borne by the mining title-holder.
V OPERATIONS, PROCESSING AND SALE OF MINERALS
i Processing and operations
Subject to exchange regulations, the holder of a mining title can freely:
- import, without financial settlement, any equipment belonging to it;
- import to Senegal any possessions and services necessary for such activities; and
- export the mineral-extracted substances, their concentrates, primary derivatives and all other derivatives after performing legal and regulation formalities for exporting these substances.
The mining exploitation permit confers to the holder the right to transport, pursuant to the applicable legislation, the substances extracted, as well as their concentrates or primary by products up to the storage, processing or loading site and use them on the domestic and foreign markets.
Free conversion and free transfer of all or part of any salary savings, subject to the payment of taxes and various fees, in accordance with the exchange regulations is guaranteed to foreign personnel resident in Senegal, employed by any mining title-holder.
ii Sale, import and export of extracted or processed minerals
Financial relations between the Republic of Senegal and abroad shall be free.
However, to protect national interests, Senegal may, by regulation, impose any restrictions on this freedom that are compatible with the international commitments entered into by Senegal. In particular, the government may make the import and export of gold and any other financial transaction with foreign countries subject to declaration, prior authorisation or control (Ordinance No. 94-29 of 28 February 1994 on Litigation for Exchange Control Offences).
iii Foreign investment
Some restrictions on the movement of capital and currency exchange exist under Senegalese law:
- to make investments abroad for residents is subject to the prior authorisation of the Minister of Finance;
- current payments shall be freely made subject to the submission of supporting documents for the operations concerned to the authorised intermediaries when the amount exceeds 500,000 CFA francs;
- imports of goods from countries other than those in the franc zone must be domiciled with an 'authorised intermediary' bank when their value exceeds 10 million CFA francs;
- exports of goods to countries other than those of the WAEMU must be domiciled with an 'authorised intermediary' bank when their value exceeds 10 million CFA francs;
- opening of foreign accounts in currencies other than the euro for the benefit of non-residents is subject to the prior authorisation of the central bank (BCEAO);
- opening of domestic accounts in foreign currencies in the name of residents is subject to the prior authorisation of the Minister of Finance, after approval by the BCEAO; and
- opening of foreign currency accounts abroad by WAEMU residents is subject to prior authorisation by the Minister of Finance, after approval by the BCEAO.
The holders of mining titles granted are submitted to the exchange regulation in force in Senegal. As such, they are allowed to:
- collect in Senegal all funds acquired or borrowed from abroad, including receipts from the sale of their share production;
- transfer abroad:
- the dividends and products of capital invested, as well as the product of clearings or realisation of their assets; and
- funds destined for the reimbursement of loans (capital and interest) contracted abroad, and payment of foreign suppliers of materials and services for mining operations; and
- import all funds acquired or borrowed abroad as are necessary for carrying out mining operations.
Foreign workers resident in Senegal, employed by any mining title-holder, are guaranteed the free conversion and transfer of all or part of their salary, subject to the payment of taxes and various contributions, in accordance with the exchange regulations.
Foreign bank accounts may be opened by mining title-holders in Senegal in currencies necessary to carry out transactions for mining operations. Nevertheless, foreign investors must comply with the WAEMU foreign exchange regulations. Where the amount to be repatriated is up to 500,000 CFA francs, it should be lodged with an authorised intermediary with supporting documentation. Payments abroad as capital transactions for the repayment of long-term debt should be subject to a request to the Minister of Finance for authorisation. Each request must be accompanied by supporting documentation attesting to the nature and circumstances of the operation.
The general guarantees granted by the state concern requisition and expropriation, the confidentiality of documents and information, non-discrimination, the free choice of partners, suppliers and subcontractors, the stabilisation of fiscal and customs regimes, and exchange regulation. A clause is inserted into each mining convention that protects mining title-holders from amendments to the taxation regime, in an attempt to maintain contract stability.
Constructed or acquired installations and infrastructures in the framework of mining operations cannot be expropriated or requisitioned by the state, except for reasons of force majeure or public necessity. In this case, the state will pay to the holder of the mining title fair compensation in accordance with the relevant legislation.
Foreign investments are subject to the provisions provided by the Investment Code dated 6 February 2004.
The new Mining Code provides the surface royalties and mining royalties.
The holder of a mining permit is subject to the payment of an annual surface royalty, the amount being set as follows:
- exploration permit at issuance and each renewal:
- first validity period: 5,000 CFA francs/km²/year;
- first renewal period: 6,500 CFA francs/km2/year;
- second renewal period: 8,000 CFA francs/km2/year.
- mining exploitation permit at issuance and each renewal: 250,000 CFA francs/km²/year;
- small-mine permit: 50,000 CFA francs/ha/year at issuance and each renewal;
- permanent quarry exploitation permit: 50,000 CFA francs/ha/year at issuance and each renewal; and
- semi-mechanised mining permit: 50,000 CFA francs/ha/year at issuance and each renewal.
To the exception of the exploitation activities subject to a production sharing contract, any minerals exploitation activity authorised in accordance with the Mining Code is subject to the quarterly payment of a royalty, the extent of which is the market value of the domestically commercialised product and the FOB value (the value of the mining products at the time of loading into the vessel for export, exlcuding insurance costs and transport) of the exported value.
The applicable market value of the crushed product for the settlement of the quarterly mining royalty for crushed quarry substances is the simple arithmetic mean of the sales price at three months from shipping from stock. The sales price index shall be set by joint Order of the Minister of Mining and the Minister of Trade.
The mining royalty fee is set as follows for all the concerned mining titles:
- calcium aluminate phosphate 5 per cent;
- lime phosphate 5 per cent;
- phosphoric acid 1.5 per cent;
- cement 1 per cent;
- concentrated ore 5 per cent;
- ore destined to local transformation into steel 2 per cent;
- base metals, radioactive substances:
- concentrated ore 3.5 per cent;
- ore destined to local transformation into refined products 1.5 per cent;
- raw 5 per cent;
- refined abroad 5 per cent;
- refined in Senegal 3.5 per cent;
- zircon, ilmenite and other heavy minerals 5 per cent;
- diamond and other gems:
- raw 5 per cent;
- cut 3 per cent;
- quarry substances:
- crushed quarry substances ;
- non crushed quarry substances and/or from picking;
- alcaline salts:
- other concessible substances: 3 per cent;
- 4 per cent of the market value of the crushed product;
- a royalty proportional to the volume of extracted or picked substances is set as follows:
- m3 for hard materials;
- 300F/m3 for soft materials.
The mining royalties' payment and collection modalities are specified in the enforcement decree of this Code.
The mining royalties referred to above cannot be the subject of any exemption and are payable for any minerals exploited from the ground or sub-ground of the Territory of the Republic of Senegal.
The holder of the mining exploitation title is liable for company tax, in accordance with the provisions of the General Tax Code.
Specific advantages are also granted during the exploration and exploitation phases.
During the mining exploration period, the company has the following benefits: exemption of VAT on the acquisition of goods and services provided under the exploration programme; exemption from patent; exemption from real property tax and land tax, excluding buildings used for living accommodation; and exemption of the flat-rate contribution to be paid by employers, the flat-rate minimum tax, tax on income from loans (Article 264 of the Tax Code).
During the investment period, the company benefits from the following advantages: VAT suspension; exemption of the patent; exemption from real property tax and land tax excluding buildings used for living accommodation; and exemption from the flat-rate contribution payable by employers.
During the mining exploitation period, the company benefits from the following advantages: tax credit on income; exemption from patent and flat-rate contribution payable by employers in the three first years following the first production (Article 264 and 322 of the Tax Code); exemption of real estate contribution and flat-rate minimum tax in the three years following the issuance of exploitation permit (Articles 39, 286 and 299 of the Tax Code).
In addition, the payment of registration fees are required within one month from the effective date or from the date of acquisition of ownership for transfers of ownership or possession of mining permits, which are understood to mean all exploration, exploitation and other authorisations having an economic advantage, granted in the field of mining or hydrocarbons in Senegal (Article 464 of Tax Code).
In 2012, the state created a new special contribution on mines and quarries at a rate of 5 per cent.
The holders of exploration permits, exploitation permits and small-mine permits are subject to the payment of statistic royalty, Community Solidarity Tax of the WAEMU, Community Solidarity Tax of the ECOWAS and all other Community Solidarity Taxes in the future.
The holders of exploration permits, exploitation permits and small-mine permits are exempt from all customs duties applicable on entry, including value added tax and COSEC fees relating to:
- equipment, materials, supplies, machines and spare parts not produced or manufactured in Senegal, and specific materials required for mining operations;
- fuel, oil products, materials and spare parts, and complements required for mining operations; and
- temporary admission to full exoneration from import and export taxes and duties in relation to materials, machines and equipment that, once used, may be re-exported or transferred.
The period expires once the Minister has been notified of the first production date. It may last no longer than two years for exploitation permits and one year for small-mine permits.
However, the importation of the following materials and equipment is not exempt: vehicles used for the transport of persons and goods other than mined products; materials and equipment of which the equivalent can be found manufactured in Senegal or available at conditions of price, quality, guarantee, among others, equal to those of the same goods of foreign origin; and furniture or other household effects.
iv Other fees
The grant, renewal, extension or conversion and the sale, transfer or farm-out of mining titles for exploration and exploitation are subject to the payment of fixed fees, as follows:
- exploration permit: 2.5 million CFA francs;
- exploitation permit: 10 million CFA francs;
- small-mine permit: 2.5 million CFA francs;
- permanent quarry exploitation permit: 2.5 million CFA francs;
- temporary quarry exploitation permit: 1 million CFA francs;
- semi-mechanised mining permit: 1.5 million CFA francs; and
- artisanal mining permit: 50,000 CFA francs.
1 Mouhamed Kebe is the managing partner of Geni & Kebe.
2 WAEMU is the economic union of eight African states with a common currency, the same reserve bank and the same business law: Benin, Burkina Faso, Guinea Bissau, Ivory Coast, Mali, Niger, Senegal and Togo.
3 The common business law system of 16 African countries: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Democratic Republic of the Congo, Equatorial Guinea, Gabon, Guinea-Bissau, Ivory Coast, Mali, Niger, Senegal and Togo.