The legal perspective of mineral resources. An analysis of the withdrawal procedure of mining rights in nature reserves in Shandong Province.

According to Article 20 of the Law on the People's Republic of China and Mineral Resources, "without the consent of the relevant competent departments authorized by the State Council, mineral resources shall not be mined in the following areas: (5) Nature reserves and important scenic spots designated by the state, places of historical relics and places of interest that cannot be moved under national key protection".

It can be seen from this provision that mineral resources shall not be mined in the nature reserves designated by the State. According to statistics, there are 3343 mining rights distributed in 427 national nature reserves in China, with an overlapping area of 117800 square kilometers, accounting for 12.2 percent of the national nature reserves. This is faced with the problem of clearing and withdrawing mining rights in nature reserves.

On July 5, 2017, the former Ministry of Land and Resources issued the ''Work Plan for the Cleanup of Mining Rights in Nature Reserves''. Subsequently, various provinces, cities, and autonomous regions formulated the ''Mining Rights Withdrawal Plan in Nature Reserves'', requiring the end of 2020 Complete the withdrawal of mining rights in all nature reserves. On August 2, 2017, the former Shandong Provincial Department of Land and Resources and Shandong Provincial Forestry Department issued the ''Notice on Further Doing a Good Job in the Withdrawal of Mining Rights in Nature Reserves at All Levels in the Province'' (Lu Guotuzi [2017] No. 250), according to the spirit of the document "Notice on Printing and Distributing the Comprehensive Remediation Plan for Outstanding Environmental Protection Issues in 2017" (Lu Ting Zi [2017] No. 35), do a good job in the province's nature reserves at all levels within the mining rights withdrawal work. On December 11, 2019, the General Office of the People's Government of Shandong Province issued the Notice on Further Regulating and Promoting the Withdrawal of Mining Rights in Nature Reserves (Lu Zheng Ban Zi [2019] No. 198) to further regulate and promote the orderly withdrawal of mining rights in nature reserves in accordance with the law.

The withdrawal of mining rights in the nature reserves involved in the regional scope of Shandong Province mainly involves the following aspects:

1. basic requirements

1. All mining rights owners who have obtained prospecting rights and mining rights in nature reserves shall stop prospecting and mining activities and withdraw in an orderly manner within a time limit.

2. The prospecting rights and mining rights that existed before the establishment of the nature reserve, as well as the prospecting rights and mining rights that have been established with the consent of the competent department of the nature reserve after the establishment of the nature reserve, propose differentiated compensation and Withdrawal plan, withdraw from the nature reserve in accordance with the law.

3. The prospecting and mining rights that have been set up in the nature reserve can be used as a national mineral reserve.

4. It is strictly forbidden to set up new exploration rights and mining rights in the nature reserve, to carry out mining, sand digging, quarrying and other activities in the nature reserve, to crack down on illegal exploration and mining, and to effectively safeguard the construction of ecological civilization.

2. exit method

1, deduction avoidance. If the mining right overlaps with the nature reserve, it may be disposed of by deducting the overlapping part.

2, the overall write-off. If all or most of the resource reserves are in nature reserves and it is not appropriate to implement deduction and avoidance withdrawal, the overall cancellation and withdrawal shall be implemented.

If the scope of the nature reserve is adjusted according to law, the disposal method may be adjusted according to the facts.

3. Exit Procedure

The withdrawal of mining rights shall be carried out in accordance with the relevant requirements of the rectification plan for the implementation of the supervision feedback opinions of the central environmental protection supervision group in Shandong Province. Each city shall carry out the withdrawal work plan formulated by itself and the procedures determined by the withdrawal implementation plan of "one mine, one policy". If the relevant plan is not formulated or perfect, the following procedures shall be referred to in principle:

1. The county-level government of the place where the mining right is located (hereinafter referred to as the "local government") issues the "Notice of Withdrawal within a Time Limit" to the mining right owner, informing the withdrawal period, procedures and requirements.

2. The mining right owner shall prepare a statement on the investment in exploration and mining, the payment of proceeds (price) from the transfer of mining rights, the payment of relevant fees, assets and liabilities, financing and guarantees, the diversion and resettlement of personnel, the restoration of the geological environment of the mine and land reclamation (hereinafter referred to as "mine governance"), submit an application for withdrawal and report to the local government.

3. The local government entrusts a third-party agency to evaluate and account for the relevant matters in the application for withdrawal of mining rights, and organize the preparation of relevant reports.

4. If compensation should be made in accordance with the law, the local government shall sign a compensation agreement with the mining right owner to clarify the compensation plan and the responsible party for mine management.

5. The mining right holder shall isolate and close the shaft and roadway project within the scope of exit, remove relevant facilities and equipment, block or fill the shaft, and eliminate potential safety hazards. Drainage system, power supply system and other related shaft works (including chamber) and facilities shared with other areas are not within the scope of disposal.

6. According to the compensation agreement, the responsible party for mine governance organizes the preparation of governance plans and fulfills governance obligations.

7. For those who apply for the change or cancellation of registration of licenses such as exploration or mining licenses, the relevant competent departments shall change or cancel them according to law; if no application is submitted, the relevant competent departments may, in accordance with the opinions of the municipal, county (city, district) government, revoke their exploration or mining licenses and other relevant licenses in accordance with the law.

8, mining rights to apply to the local government for initial inspection, after the initial inspection reported to the local municipal government acceptance and issued acceptance opinions, acceptance through the report to the provincial natural resources department and other relevant departments for the record.

9. If a compensation agreement is signed, the local government shall pay compensation funds to the mining right owner according to the acceptance opinion.

4. Mining Right Withdrawal Acceptance Criteria

Each municipal government shall carry out acceptance and issue acceptance opinions on the withdrawal of mining rights in accordance with the following standards:

1. The exploration and mining activities in the nature reserve have been stopped.

2, the nature reserve directly used for exploration and mining facilities and equipment have been removed, exploration wells, shafts, etc. have been blocked or filled, set up eye-catching closure signs.

3, the relevant license change, cancellation procedures have been completed, the scope of mining rights and nature reserves do not overlap.

4. Major safety and environmental hazards have been eliminated, and obvious warning signs have been set up on the surface. Due to objective issues such as seizure and freezing by judicial organs, payment of proceeds (price) from the transfer of mining rights, mine management, etc., the survey or

5. If the mining license is changed or canceled, the mining right may apply for acceptance after making a written explanation and written commitment.

5. Withdrawal Compensation Issues

1. Is the policy withdrawal compensated?

If the legal mining rights established before the establishment of the nature reserve or the mining rights with complete procedures after the establishment of the nature reserve need to be deducted or withdrawn as a whole, the local government shall compensate in accordance with the law. The provincial government and the municipal government combined with the production capacity and other policies to give appropriate awards.

2. Who will set the compensation standards and programs?

The governments of all cities and counties (cities and districts) may, in the light of local conditions, refer to the compensation standards for de-capacity and formulate specific compensation standards or compensation schemes.

3. What factors are considered in the compensation scheme?

On the basis of investigation and verification, the local government takes into account the mining right owner's investment in exploration and mining, payment of proceeds (price) from the transfer of mining rights, depreciation of equipment, performance of mine governance obligations, financing and guarantees, etc., and negotiates with the mining right owner to determine the amount of compensation and sign a compensation agreement. Where the local government undertakes the work of mine treatment, the amount of compensation shall be deducted from the cost of mine treatment borne by the local government. If the transfer proceeds (price) should be refunded in accordance with the provisions, the refund shall be organized in accordance with the relevant provisions; if it is necessary to make up the payment, the unpaid part shall be deducted from the refund price or the agreed compensation amount depending on the circumstances, and no further call shall be made.

4. Which situations are not compensated?

(1) Prospecting rights fully funded by all levels of finance. (2) The mining right does not have the conditions for continuation or natural termination. (3) Before the withdrawal of mining rights is carried out, the illegal acts are included in the scope of banning according to law.

5. Guarantee the placement of workers

On the issue of proper diversion and placement of employees, the enterprise is the first responsible subject and bears the overall responsibility for the placement of employees. It is necessary to organize and carry out job transfer training to stabilize jobs. Large group companies should try their best to divert and resettle employees through multiple channels within the group company. For general enterprises that meet the conditions for stable post return, 50% of the unemployment insurance premiums actually paid by their units and their employees in the previous year can be returned. For enterprises in coal and other industries that meet the conditions for stable post return and are included in the national, provincial and municipal capacity reduction plans, 70% of the unemployment insurance premiums actually paid by their units and their employees in the previous year can be returned. Where the state and the province make other provisions on the policy of stable post return, if the withdrawal of the enterprise meets the conditions, it shall be returned in accordance with the provisions. The above-mentioned return expenses shall be used by the enterprise for the expenses related to the living allowance of employees, transfer training and so on. For employees who are within 5 years of the legal retirement age and have difficulties in reemployment, after free choice, the enterprise agrees and signs an agreement, internal retirement will be implemented. During the internal retirement period, basic pension insurance premiums will continue to be paid in accordance with regulations, and those who reach the legal retirement age will be required Go through retirement procedures. If the enterprise or the main body of the enterprise that does not have the ability to be transferred and resettled dies, the labor contract with the employee shall be terminated or terminated in accordance with the relevant provisions, and economic compensation shall be paid.

6. Enjoy tax policy

Within 5 years from 2019, for mining enterprises that have ceased production or closed due to the withdrawal of mining rights in nature reserves, in line with the ''Notice of the Ministry of Finance and the State Administration of Taxation on the Policy of Deproduction Capacity and Structural Adjustment of Real Estate Tax and Urban Land Use Tax'' (Caishui [2018] No. 107), the property tax and urban land use tax shall be exempted according to regulations, through budgetary arrangements, it is all used to support the placement of enterprise employees, debt disposal and project construction.

6. departments linkage guarantee responsibility

All levels and departments should attach great importance to the withdrawal of mining rights in nature reserves, strengthen leadership, implement responsibilities, strengthen cooperation and linkage, and form a joint force.

1. The municipal and county (city, district) governments are responsible for coordinating the withdrawal of mining rights.

2. The Provincial Department of Natural Resources and other departments should simplify the application materials and approval procedures for the change and cancellation of relevant licenses such as exploration or mining licenses, and speed up the approval progress; for those that meet the requirements for the adjustment of the nature reserve plan, the plan shall be adjusted in accordance with laws and regulations.

3. The Provincial Emergency Department, the Provincial Energy Bureau, and the Shandong Coal Mine Safety Supervision Bureau shall, in accordance with the division of responsibilities of the departments, guide and urge the governments of relevant cities, counties (cities, districts) to formulate and improve the safety production supervision plan and emergency plan for the withdrawal of mining rights, and organize safety The cancellation of production licenses in accordance with the law strengthens the safety supervision or supervision of the whole process.

4. The provincial local financial supervision bureau, together with the Shandong Banking and Insurance Regulatory Bureau, the Qingdao Banking and Insurance Regulatory Bureau, and the Jinan Branch of the People's Bank of China, urged the relevant municipal and county (city, district) governments to formulate and implement financial risk mitigation and prevention and control plans, coordinate the repayment of relevant financial debts, and effectively prevent and resolve financial risks.

5. The Provincial Department of Human Resources and Social Security guides and urges the governments of relevant cities, counties (cities, districts) to formulate work plans for the gradual diversion and resettlement of personnel, make full use of social security and reemployment policies, and actively and steadily do a good job in diversion and resettlement.

6. The provincial SASAC should take the initiative to connect with relevant departments and urge provincial enterprises to properly do a good job in employee placement and debt disposal.

7. The Provincial Department of Finance will do a good job in the refund of the proceeds (price) from the transfer of mining rights at the provincial level, study and formulate policies for the withdrawal of mining rights from the provincial level, and guide and urge the governments of relevant cities, counties (cities and districts) to do a good job in the work of withdrawal compensation.