Introduction
Over the past 5 years, extractive industries in Tanzania, particularly the mining sector has undergone monumental legislative changes in a bid to, among others, promote Foreign Direct Investment (FDI) while at the same time placing public interest at the centre of the mining economy. Following the inadequacy of The Mining (Disputes Resolution) Rules, G.N. No. 224 of 1999 “the old Rules” – on 16 April 2021, the new Mining (Disputes Resolution) Rules, 2021 “the Rules” were published vide the Government Notice No. 323 revoking the old Rules. The new Rules intends to govern disputes resolution in the mining sector between persons engaged in prospecting or mining operations in Tanzania. This update therefore reviews the Rules to highlight the important procedural and compliance issues as well as provide necessary general legal information to our clients.
Power to Handle Mining Disputes:
The new Rules vest powers to adjudicate disputes arising out of mining operations and activities to the Executive Secretary of the Mining Commission who is appointed under Section 24 of the Mining Act, [Cap. 123 R.E. 2019] “the Act.” However, Rule 3(2) of the Rules makes it clear that the Executive Secretary’s powers to adjudicate mining disputes may be delegated to any Officer of the Mining Commission of a rank of Director.
According to Rule 3 of the Rules read together with Section 119 of the Act, such powers are in respect of: (a) the boundaries of any area subject to a mineral right; (b) the claim by any person to be entitled to erect, cut, construct or use any pump, line of pipes, flume, race, drain, dam or reservoir for mining purposes, or to have priority of water taken, diverted, used or delivered, as against any other person claiming the same; (c) the assessment and payment of compensation pursuant to the Mining Act, [Cap. 123 R.E. 2019]; or (d) any other matter which may be prescribed.
Lodging of Complaints:
Rule 4 direct that any person who wants the Commission to investigate and decide upon any matter listed under Section 119 of the Act, may pay prescribed fee (which fee varies depending on the nature of the licence) and lodge a Memorandum of Complaint to the Mining Commission through a prescribed Form as per the Second Schedule to the Rules. The Form shall briefly state the subject matter and relief sought and shall be registered and given a number: Rule 4 further directs that the Mining Commission shall, within 14 days from registration date, assess the competence of the Memorandum of Complaint to see whether the alleged complaints fall within its jurisdictional powers as set out under Section 119 of the Act.
The matter shall not proceed for hearing when the Mining Commission finds the Memorandum of Complaint to be outside its jurisdiction; and when the matter is found to be within the Commission’s jurisdiction, the Commission should proceed with the hearing within seven days. The Commission has a duty to direct the Complainant to serve the Respondent with the registered Memorandum together with a Notice to File Defense as per the Second Schedule to the Rules.
The Respondent is required, within fourteen days, to reply to the Memorandum and the same shall be submitted to the Commission and served to the Complainant, respectively.
Notice of Hearing According to Rule 6, the Commission is required to issue a Notice of Hearing by registered post, fax, emails, by dispatch or by other acceptable electronic means of communication. This Notice is essentially a prescribed Form as per the Second Schedule to the Rules.
Production of Evidence:
Even though the Commission is a quasi-judicial body, production of evidence before it, is strictly regulated, there is no ‘blank cheque’ left to the parties as to when and how the production of evidence is to be effected. Rule 9 makes it mandatory that at the first date of the proceeding of the case, all documentary evidence shall be submitted to the Commission by parties or their representatives; and no documentary evidence shall be received by the Commission at the subsequent hearing unless good cause is shown for failure to submit the same at the first hearing.
Witnesses
According to Rule 10, parties to the case can call their own witnesses to testify, and each party shall bear the costs of such witnesses appearing to support his case. However, the Rule makes it clear that such payment of costs by parties shall not waive the right of a decree holder to claim for costs. The Commission has discretionary powers to call any person to testify on the matter the subject of dispute, and the hearing will proceed even when the witness does not appear during the hearing.
Appearance and Non Appearance
Rule 11 empowers the Commission to dismiss a Complaint where the Respondent appears at two successive hearings and the Complainant does not appear at either hearing without sufficient cause. The dismissed Complaint shall not be entertained again. On the contrary, according to the Rule 11(2) where the Complainant appears, and Respondent does not appear at two successive hearings then the dispute shall proceed to hear one party (ex-parte hearing).
Setting Aside of Ex-Parte Judgement
Rule 12 empowers the Commission to set aside the judgment and re-hear the dispute upon being satisfied that the Respondent was not duly served with the notice to appear or that the Respondent was prevented from appearing by sufficient cause. However, what amounts to be a sufficient cause has not been defined by the Rules.
Recording of Proceedings
According to Rule 14, the Commission during the hearing, must take records of the proceedings which shall include parties present, date of hearing and evidence produced.
Judgement Order
As per Rule 15, after hearing of the Complaint the Commission must pronounce judgment and make order in written form which shall be dated and signed by it as of the date on which it was pronounced. The parties to any dispute are entitled to obtain a copy of the decision, order, record, and notes upon payment of the prescribed fees. The Rules do not indicate the procedural requirements for appeal processes by an aggrieved party – a party who is contemplating to appeal against the decision of the Commission should therefore resort to the Act where some procedural requirements have been indicated.
Conclusion
The new Rules are intended to facilitate the attainment of ‘mining justice’ and cost effective dispute resolution in the mining sector, as such, all stakeholders involved are encouraged to observe the letter and spirit of these Rules so that its intended objective can be achieved. There are a few legislative omissions and lacunae in the Rules (such as lack of lucid provisions on timeframe to institute the Complaint, appeal processes, issuance of judgment and time-limit within which the same must be collected by parties, to name just a few) of which the same can be cured by adding a provision which make reference to the application of the Civil Procedure Code, [Cap. 33 R.E. 2019] in cases of omissions and lacunae.
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