Mining and metal industry in Turkey has shown a strong growth momentum parallel to the country’s economy. In the extraction and transportation of the underground riches, Turkey has proven itself with its logistics infrastructure, extensive infrastructure, and extensive logistics network extending from the westernmost part of Europe to the easternmost part of Asia.
Regionally and globally, companies located in the mining-extraction and processing operations in Turkey began to attract attention in the world. This situation draws the attention of companies that carry out their economic activities in the field of mining. In addition, in line with the government’s 2023 targets, a production capacity of 15 billion USD is targeted. Providing this capacity reveals that the Mining Law will develop and the disputes arising from the Mining Law will increase.
The support and incentives provided directly to the Mining Sector by the State increase the development of mining activities and their contribution to the economy.In addition, there are 56 mining engineering departments in Universities in 38 provinces. With the increase of these faculties opened in recent years, the number of Mining Engineers has increased by more than 50 percent since 2005, reaching 38,000 trained workforce. The provisions of the Mining Law with the growing competition brought about by the growth of the mining sector in Turkey will increase in disputes arising.
Mining Law Issues!
- Related Laws and Regulations,
- Latest changes and regulations in the field of Mining Law
- Right to obtain a mining license,
- Rights and limitations of domestic and foreigners arising from mining law,
- Operation, refining and enrichment of the mine area,
- Export of raw or processed mines,
- Transfer of rights arising in mining law and responsibility
- Rhodesian Convention,
- Ownership of the Mine Site
- Mine Site use authorization,
- EIA Report,
- Workers’ health and safety
- Administrative law aspects of Mining Law,
- Tax and State Rights Shares,
- Cancellation, Termination and Waiver of Mining License
What Are The Legal Regulations In The Field Of Mining Law?
According to Turkish law, Mineral Ores are under the authority and control of the state. In addition, mines are considered as part of the land on which they are located. Apart from the state tax payments from mines, it makes a separate deduction under the name of Mining State Right (4%). The real or legal person who has obtained a Mining License within the scope of Mining Law has not acquired the ownership of the Mine. The state gives the operation of mines to real or legal persons only with an administrative action. These rights can be limited or extended.
Within the scope of Mining Law, the procedures and principles regarding the determination of mines, preliminary activities, the right to acquire or waive mines with the operation of the mine are regulated within the scope of Mining Law No. 3213. In addition to this law, which regulates the main points in terms of Mining Law, there is the Mining Regulation published on September 21, 2017 and the Mining Activities Permit Regulation published on June 21, 2005.
There are some additional secondary regulations other than legal regulations listed above;
- Mining Areas and License Transfer Regulation,
- Implementation Regulation on “Group A Mines”,
- Mining Sites Tender Regulation,
- Reclaiming Lands Degraded by Mining Activities,
- Mining Waste Regulation,
What Are Other Laws Affecting Mining Activities?
Mining activities are in close contact with other legal fields such as forest law, environmental law, labor law, occupational health and safety law, criminal law and tax law. In addition, depending on the characteristics of the land subject to Mining Activities, some issues need to comply with other legislation issued by the Municipalities.
To Which Ministry and Which State Body Are Mines Affiliated?
The General Directorate of Mining Affairs (MIGEM), a unit of the Ministry of Energy and Natural Resources, is the main institution responsible for conducting mining activities, accepting applications and granting Mining Licenses. Other relevant institutions established by the Ministry by special-purpose organizations in the mining sector; General Directorate of Mineral Research and Development, is Turkey Coal Enterprises and Turkey Coal Institute.
Some additional brief information:
It should be noted that the permission or approval of other relevant administrations may be required if the mining area subject to the license is covered by agricultural areas, national parks, forest lands, protected areas and some environmental factors (For example: EIA Report). The main areas requiring permission are wildlife protection and support areas, pasture areas, coastal areas, protected cultural and nature parks, tourism areas and prohibited military areas.
What are the Required Steps and Permits for Mining Activities?
What is Mineral Exploration License and Its Scope?
According to Article 15 of the Mining Law, mining license holders can request a permit for exploration activity during their license period. If the mines are reported as “resource or reserve” with a technical report and this report is approved by MIGEM, the licensee is deemed to be the “person with a Mineral Exploration Permit”.
The transfer of the Mineral Exploration License is a right that is completely independent of the mining license right and can be transferred with or without a license. The owner of the exploration right can transfer the mine to be searched by another person or organization. Another issue is that Exploration activities can only be in question for certain mining groups.
With the latest changes made in mining activities, mining law may have this situation annotated in the mining license of the owner of the mine if the reserve is determined in the mine. This situation brings a new definition to the mining license as “the right to develop a significant reserve”. In the event that the mining license for the determined mine is transferred to other persons, a price may be requested. In addition, in accordance with Article 6 amended within the scope of Mining Law, exploration rights and visible reserve development rights are registered in the mine registry for information purposes.
A natural or legal person who wants to carry out mining activities and carry out preliminary studies for the extraction of the detected mine must have a mining exploration license by MIGEM. The natural or legal person who obtains the Mine Extraction License has the right to perform exploration activities for a certain period of time in a certain region under the mining law. Mineral Exploration activities consist of pre-exploration, general exploration, detailed exploration and feasibility period if appropriate. Depending on the mine type / group, exploration license terms can range from three to seven years. These periods can be extended upon request.
What Permits Are Required to Engage in Mining Activities?
Mine exploration license holders should apply to MIGEM for mining operation license in order to continue their mining activities and to carry out their activities beforehand. In some types of mines, it is possible to directly apply for a mining license to process and sell the Mine.
Depending on the mine type, the Operating License can be between 10 and 50 years. However, the Operating License for Group 1 / a and Group 5 mines can only be issued for five years. These periods can be extended upon request.
In addition to the operating license, a work permit is required to start production activities. The duration of the work permit is also limited and the same as the Mining License Period.
Is There Any Difference in Application Conditions for Different Mine Types and Lands?
The Mining Law basically separates mines in 5 different groups. There are some criteria in this distinction; It arranges according to their physical and chemical properties and usage areas;
- Group (Sand and gravel, some clays)
- Group (Stones and Rocks)
- Group (Some kind of salt, gas and water)
- Group (industrial, energy and metal minerals)
- Group 5 (precious and semi-precious minerals)
Types of licenses and related procedures vary according to mine groups. According to Article 16 of the Mining Law, Group 2 (some) can be explored with 3, 4 and 5 mining licenses. For the rest of the group, a direct operation mineral exploration certificate is issued.
In addition, with the Article 7 of Mining Law, restrictions for some areas and the way of obtaining additional permissions has been chosen. These are; Approval of the relevant authorities to carry out mining activities in special pre-production areas specified under specially protected environmental areas, national parks, wildlife protection areas, forests, coastal areas, SIT areas or power plants, an appropriate opinion by MIGEM allocated for purposes other than mining It is necessary to obtain permits before license applications for organized industrial zones, oil, natural gas and geothermal pipelines.
Who Can Get Mineral Exploration, Discovery and Operation License?
In accordance with Article 6 of Mining Law, mining activities are only; Turkish citizens can be done by companies and public institutions established in Turkey.
Can Foreign Companies and Foreign Real Persons Obtain Mineral Exploration / Operation License?
Foreign capital companies and foreign real persons cannot obtain a mining license directly. Only foreign-owned companies establish a company in Turkey if they can get this right.
Is There A Limitation In Mining License Transfers?
Pursuant to Article 82/11 of the Mining Regulation, in the event of a transfer of 10 percent or more of the Mining Operating License, this transfer is subject to the approval of the Ministry of Energy and Natural Resources.
Are There Restrictions on Transfer of Mining License, Operating License and Discovery Rights?
In accordance with Article 5 of the Mining Law, Mining (mining license and operating license) licenses, exploration rights and mining rights can be transferred to third parties capable of mining activities. Transfer of Mining License takes place with the approval of the Ministry of Energy and Natural Resources. Registration to the mine registry held by MAPEG is realized. Otherwise, the discretion will not be in accordance with the transfer procedure intended to be realized and it will not cause any rights for the parties.
The point to be considered here is the qualification of mining activities. This qualification is the ability of natural persons to afford the costs and bank guarantees determined by MAPEG. Another important point for legal entities is that it must be declared in their title and in the records of the Chamber of Commerce that mining activities will be carried out.
License holders can perform 2 different transfers. The first is the transfer of the mining license and the transfer of the other mining license to third parties with a Royalty Contract. In both cases, MAPEG has the obligation to approve the processes and register them with the Mine Registry.
Important point: Mining licenses are not an area that can be jointly divided into shares. To give an example, real persons cannot jointly have a mining license, in the same way they cannot have a mining license in a company with 2 different legal entities (the same provisions are released in the Mining License.). However, the fact that the partnership structure of the legal entities has multiple partners does not constitute an obstacle for the legal entity company to obtain the mining license.
Can the Rights Arising from Mining License and Operating License Be Mortgage?
Establishment of mortgages in 2 different ways on mines is stipulated and permitted in the Mining Law. The first of these is the placing of mortgages on the mineral reserves extracted from mines within the scope of Article 39 of the Mining Law. For example, each block extracted in a marble mine is shipped and followed up with referral slips issued by MAPEG. Therefore, it is possible to establish a mortgage on the mineral reserves extracted from the mine site.
In addition, in accordance with Article 42 of the Mining Law, it regulates that a mortgage can be registered on the mining license, provided that it is related to mining operation operations, and that a mortgage can be registered and a mortgage can be established in the mine to secure its debts or to secure possible debts for this purpose. Here, MAPEG does not directly examine the debt that causes the mortgage agreement, but if the licensee proves that the debt is not due to the transfer of the mine, the mortgage will not have any legal effect or result.
How Should Mine Site Surface Use Be?
Do those with exploration, exploration and operation license have the right to directly use the mine site?
According to Turkish Mining Law, exploration, exploration or operation licenses do not directly create possession or right of use to the license holder on the land where the mining site is located. According to Article 46 of the Mining Law, if the land is subject to private ownership, the license holder is required to receive a usufruct or easement right within the framework of the fee determined by MAPEG. The same procedure applies to State-owned land. However, the license holder does not have any payment obligation for such lands.
What are the Responsibilities of the Mine Exploration, Discovery and Operation License Holder Towards the Owner of the Private Property?
In case the land on which the mining activities will take place is subject to private ownership, the mutual obligations of the license holder and the landowner are determined by an agreement. The content of this agreement is determined according to the agreement basis determined between the parties. A lease agreement or contract between the parties may contain special terms and conditions in accordance with the lease agreement. Basically, the licensee is required to pay the price determined for the sale price or the lease in return for the right of use arising from the usufruct right or easement rights. On the other hand, the main obligation of the owner or legal occupant is to transfer the property right or rights of use.
Under what conditions is the land subject to private ownership expropriated?
Pursuant to Article 46 of the Mining Law, if the parties cannot agree on the privately owned property during the mining operation license and there is such a requirement for the operation activities, the said property may be expropriated by MAPEG upon the application of the license holder. However, this expropriation can take place after MENR’s decision that it is in public interest. The expropriation fee will be paid by the licensee.
The expropriated immovable is registered to the land registry in the name of the Treasury and then given to the license holder for use in mining activities.
Environmental Impact Assessment (EIA Report) Report in Mining Activities and Getting?
How to Get an EIA Report and What is the Legislation?
In accordance with Article 7/11 of the Mining Law, it is necessary to evaluate the environmental factors for mining activities that affect the environment, and then obtain an environmental impact assessment report. This evaluation report is an evaluation report that is required to be received and prepared in accordance with the Environment Law and Legislation of the Ministry of Environment and Urbanization. This report has been made compulsory to measure the impact of the consequences of mining activities on the environment and nature.
In accordance with Article 10 of the Environmental Law, activities that may cause adverse environmental impacts are required to obtain an environmental impact assessment (EIA) report. For this reason, the procedures and principles regarding the activities subject to the report are determined within the scope of the Environmental Impact Assessment Regulation.
Accordingly, the report is made with results such as “EIA Positive Decision” (revealing that the project has no adverse effects on the environment) or “EIA Not Required” (whether the activities will be subject to the EIA report obligation). In addition to the EIA regulation, the Mining Activities Permit Regulation provides special procedures and principles to determine whether mining affecting the environment is subject to EIA.
How to Prevent Pollution Caused by Mining Activities?
The Mining Waste Regulation regulates taking certain measures for the storage of wastes and other waste products generated during mining activities (exploration, extraction, preparation / enrichment or storage). In the storage or disposal of mine wastes, the most environmentally friendly and least harmful methods should be preferred. It is forbidden to pollute the environment by dumping mine wastes directly into the soil, seas, lakes, rivers and similar environments.
In addition, the most advanced technological methods should not be preferred for the storage or disposal of mine wastes.
How Should the Activities in the Mine Site be Suspended and Reinstatement of the Mine Site?
In accordance with the Regulation on Reclamation of Degraded Lands by Mining Activities, the license holder must follow this regulation in order to regain the nature in the region before the mining reserve area is closed. Obligations for recycling the Mine Site to nature include the removal of all construction and facilities, disposal of all waste in licensed facilities and environmental recovery of the area according to the environmental landscape recovery plan.
Is There a Need for Development or Planning for Mining Activities?
In accordance with Articles 7 and 12 of the Mining Law, if mining activities are to be carried out in the development areas, permission must be obtained from the local municipalities. However, this provision differs according to the date of inclusion in the development planning. If the mine license given for the mine site is issued before the development plan and afterwards the mine site is included in the development plan, then the permission is not required.
In addition, if mining activities are to be carried out on a land with forest quality; Necessary permits should be obtained for the use of the forest area and only an architectural plan is not required. Required usage permits for areas with forest quality should be obtained from General Directorate of Forestry. In addition, temporary facilities and structures to be established on lands that do not have a zoning plan will not be subject to a permit.
Is There A Constitutional Regulation For Mining Activities?
The state authority on metals and savings stems from Article 168 of the Constitution of the Republic of Turkey, accordingly, to investigate the natural resources belong to the availability and exploitation rights of the State. It can transfer these rights to real or legal persons. Transfer transactions are licensed for a certain period of time.
Are There any Local Arrangements for Mining Activities?
There are no different local regulations governing mining activities. Law and legislation are applied throughout the country.
Can Mineral Exploration, Discovery and Operation Rights Be Released? How to Quit Mining Activities?,
How to Quit Partially or Totally Mining Activities?
Article 32 of the Mining Law provides license holders with the right to apply for waiver. In such cases, the license holder who wants to leave the mine must take the necessary security measures in the field and submit the necessary information and documents to MAPEG within one year.
Is There An Obligation To Stop Mineral Exploration And Mining Activities After A Certain Period?
No, it is not possible to stop it after a certain period of time by the exploration right or the mining right owner. However, in accordance with Article 32 of the Mining Law, license holders whose licenses are released for any reason are also obliged to take the necessary security measures and submit the technical documents showing the latest status of the field to GDPC.
Is Mining License Canceled In Case Of Failure To Comply With The Provisions In The Mining Law?
According to the Mining Law, MAPEG has the right to cancel the exploration or operation licenses for which the necessary approvals or permissions have not been obtained or the required documents have not been submitted in accordance with the terms and conditions specified in the legislation, license fees are not paid at all or on time.
State Right and Tax
Is There A Special Rule For Taxing Mining Activities?
Pursuant to Article 13 of the Mining Law, exploration and operation license holders are required to pay license fee every year. Fees are determined by MAPEG every year, depending on the type / group of the mine and the size of the reserve area.
Is There a State Right Fee to be Paid to the State other than Tax?
In addition to the license fees, license holders will also pay the State Right / Share. The State Right is calculated and taken over the sale price of the mine extracted from the mine. The proportion of the State Right varies according to the mine groups and types.