Mineral Legal Perspective | If you don't know the "net ore" transfer, you will be out.
Published:
2021-02-18
The "Opinions on Several Matters Concerning the Promotion of Mineral Resources Management Reform (Trial)" issued by the Ministry of Natural Resources (Natural Resources Regulation 2019) (hereinafter referred to as the "Opinions") was formally implemented on May 1, 2020. The "Opinions" clearly put forward the "net mine" transfer and strengthen the preparatory work for the transfer of mining rights. This is a major innovation in the mining rights transfer system.
The concept of "net ore" transfer.
"Net mining" is not a legal concept in the strict sense. The so-called "net ore transfer" means that the preparatory work before the transfer of mining rights has been handled in place, and the bidder does not need to be affected or restricted by the rights and interests of land, ground attachments and fixed assets, and can directly enter the site to carry out mine construction and other work, which is relative to the transfer mode of "gross mining rights" in the past.
Background of "net ore" transfer
In the past mining rights transfer process, due to the construction of roads, cleaning of surface attachments and compensation, occupation of land, construction of supporting facilities, etc., the relevant stakeholders around the mining area must obtain permission. However, for a long time, these problems have not been involved in the process of transferring mining rights, resulting in the situation that the bidder of mining rights can not start construction for a long time because of "no agreement" with the local villagers after the transaction. Some mining rights can not start mining operations for several years or even more than ten years after the transfer, which also makes many potential bidders worried and dare not participate in bidding easily, and the value of mineral resources is underestimated.
In order to better solve the problems existing in the transfer of mining rights, various localities have explored the transfer of "net ore" in the reform of mineral resources management. Zhejiang, Hubei, Guizhou, Fujian, Guangxi, Chongqing and other places have issued relevant regulations on the transfer of "net ore. On December 17, 2019, the Ministry of Natural Resources issued the "Notice of the Ministry of Natural Resources on the Implementation of the" Two Rights in One "Bidding, Auction, Landing and Transfer of Sea Sand Mining Rights and Sea Area Use Rights" (Natural Resources Regulations [2019] No. 5, hereinafter referred to as "Document No. 5"), for the first time clearly put forward the concept of "net ore transfer" from the central policy level.
This time, on the basis of fully summarizing and absorbing the experience of the "net ore" transfer policy in various places, the Ministry of Natural Resources has made special provisions on the transfer of "net ore" in the "Opinions" from the perspective of ensuring the normal exploration and mining of mining rights.
The significance of "net ore" transfer
The transfer of "net ore" is a major event. It is not only one of the specific actions to implement the requirements of the Party Central Committee and the State Council and deepen the reform of the mineral resources management system, but also one of the specific actions to promote the modernization of the national governance system and governance capabilities and enhance the government's credibility. The transfer of "net ore" is also a good thing, which plays an important role in safeguarding the rights and interests of national owners of mineral resources, the rights and interests of mining rights holders, and the rights and interests of the people in mining areas. For the government, a higher premium can be obtained through the transfer of "net ore", which greatly increases the added value of mining rights. For mining right holders, due to a lot of preliminary work done in the transfer of "net ore", the cycle of obtaining mining license will be greatly shortened, which will help to enhance investment confidence. For the people in the mining area, the preliminary work has also been done because of the "net ore" transfer, thus avoiding seesaw negotiations with the mine owner.
The main contents of the "net ore" transfer in the Opinions.
The "opinions" involved in the "net ore" transfer mainly includes four aspects:
1. Reflect the requirements of classified management, carry out the "net ore" transfer of direct transfer of mining rights such as sand, gravel and soil, and actively promote the "net ore" transfer of other minerals;
2. Strengthen the preliminary examination of the relationship between the establishment of mining rights and relevant planning, ensure the "clean" transfer of mining rights in the planning, circumvent the ecological protection red line and other prohibitions to restrict the exploration and mining areas in accordance with the law, avoid environmentally sensitive areas, etc., and reasonably determine the scope of transfer;
3. Do a good job in linking up with land use, sea use, forest use, grass use and other examination and approval matters, and ensure that mining enterprises can go through land use procedures in accordance with the law after obtaining mining rights;
4. To deal with the unfavorable problems of the transfer of "net ore", it is clear that if the mining right holder is unable to carry out the exploration and mining work as scheduled due to the preliminary work of the transfer of mining rights, the competent department of natural resources may withdraw the mining right and refund the collected fees such as the proceeds from the transfer of mining rights in accordance with the relevant provisions.
Proposal for "net ore" transfer
Regarding the "net ore" transfer, it is still in the exploratory stage. The "net ore" transfer cannot be like the "net land" transfer. It often faces various rights conflicts and institutional restrictions in the process of mineral resources exploration and mining. There are several ideas for net ore transfer.
1. The convergence of policies and regulations
Judging from the current situation, the transfer of "net ore" involves mineral resources, land, forests and grasses, and the ecological environment. Different laws and regulations such as the Mineral Resources Law, the Land Management Law, the Forest Law, the Grassland Law, the Environmental Protection Law, and the Nature Reserve Regulations are adjusted, and the policy requirements and standards of various departments are different. In the process of specific practical operation, different requirements of policies and regulations often bring various risks. Therefore, it is necessary to do a good job in the convergence of policies and regulations as soon as possible. The provisions of laws and their respective supporting regulatory documents on allowing, restricting and prohibiting the development and utilization of mineral resources in the exploration, development and utilization of mineral resources shall be set up uniformly and reasonably.
2. Coordination between departments
The whole process of mining rights mining involves a lot of examination and approval links. It is necessary to go through the project feasibility study, project filing, construction land approval, construction project planning permit, construction project construction permit, real estate right certificate, mining permit, etc., The departments of development and reform, ecological environment, natural resources, industry and commerce, safety supervision, quality supervision, water affairs, forestry and grass and other departments shall handle the necessary procedures according to their respective responsibilities. However, the requirements of the procedures between departments are different, and it is difficult for enterprises to communicate and coordinate. For this reason, it is very important to speed up the examination and approval procedures of various departments, and it is suggested that the integrated joint examination and approval procedure can be implemented as soon as possible.
3, "net ore" transfer must be classified management.
We believe that the issue of "net ore" transfer cannot be generalized. The "Opinions" stipulate the "net ore" transfer of direct transfer of mining rights such as sand, gravel and soil, and actively promote the "net ore" transfer of other minerals. This is precisely classified management. reflect. Before the transfer of "net ore", it is necessary to classify and deal with it according to the mining situation of the mineral species, the planning situation of the mining right, the ownership situation, the existing assets, and so on, and do not adopt a "one size fits all" approach.
4, to protect the mining rights and interests and other rights holders balance issues.
The problem of "net ore" transfer is to a large extent to solve the problem of balancing the interests between mining rights and related land use rights. We believe that several situations can be distinguished: the first type of mining rights to be transferred is located within the scope of state-owned land, the land use right belongs to the state, and the scope of mining land can be determined before the transfer of mining rights, mining rights and land use rights can be transferred at the time of transfer "two rights in one", together with the auction. The scope of the second type of mining land can be determined before the transfer of mining rights, or if it involves the occupation of collective land, the government can first go through the procedures for the expropriation of collective land in accordance with the provisions of the Land Management Law, and expropriate the collective land of farmers as state-owned. When the mining right is transferred, the land use right can be auctioned and listed together. If the third type does not meet the above two situations, because the specific land of mining land cannot be determined before the transfer of mining rights, or involves the occupation of farmers' collective land and does not fall within the scope of expropriation, the mining rights and land use rights cannot be transferred together, and other methods can be adopted to solve the problem. For example, according to the newly revised "Land Management Law", for collective business construction land, the land owner can hand it over to the mining right holder for use through land transfer, lease, etc., and the two parties negotiate and sign a written contract to agree on rights and obligations.
5, deal with the original fixed assets of the mine is conducive to the "net mine" transfer.
"Net mine" transfer often involves the disposal of the original fixed assets of the mine, if it is not clear before the transfer, the new mining right holder and the original mining right holder can not reach an agreement will easily lead to contradictions and disputes. Therefore, the fixed asset disposal scheme should be included in the "net mine" transfer scheme, so as to avoid the problem of fixed asset disposal becoming a difficult problem to solve.
At present, the transfer of "net ore" is indeed a major innovation in the transfer system of mining rights. In the process of promoting the transfer of "net ore", various localities have also encountered some obstacles and problems at the policy and operational levels, which need to be further studied and discussed.
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