Results of Unauthorized Mining Activities 7 August 2014

Today, items such as clay, sand, gravel, limestone, rock, and the aggregate needed in constructions and similar activities are procured directly from agricultural lands by construction companies as a result of an agreement with the owners of such lands instead of construction companies buying the said materials elsewhere. However, since these materials are categorized as mineral under Mining Law, certain licenses and permits should be obtained for such activities.  Sanctions to be imposed against a company with regard to its mining activities on a third party’s land without obtaining due mining licenses should be evaluated under Mining Legislation, Law on Soil Protection and Land Use, and Civil Law:

1. The Mining Legislation

Article 4 of the Mining Law states that, “Minerals are under the sovereignty and disposition of the State, they are not under the proprietorship of the landowners of the land where they exist.” Article 6 of the same Law also states that “Mining rights shall be granted to the Turkish citizens that are qualified to enjoy civil rights, companies that are legal entities established in accordance with the laws of Turkish Republic and whose statute prescribes that mining is included in their field of activity, public economic enterprises that are authorized on this matter and their entities, affiliates and associates and other public institutes, establishments and administrations.” In accordance with the abovementioned Articles, in order to claim a right on a mineral, claimant must be authorized by the State in advance. The lack of such authorization may cause the termination of the activity, confiscation of the minerals, and an administrative penalty.

Indeed, the Article 12/5 of the Mining Law states that “In the event it is detected that production activities are performed without the required license or operation permission, all of the mining activities shall be terminated and civil authorities shall confiscate the produced minerals. Those people shall be subject to an administrative fine for an amount of three times the ex-mine sales price of the entire minerals produced under the content of this paragraph.” Similarly, Article 53 of the Implementation Regulation on Mining Activities asserts that “In the event it is detected by General Directorate, special provincial directorate or the officials authorized by civil authorities, that production activities are performed without license or operation permission, this situation gets reported with an official report. The report is constructed with information with the place of production, the name and the address of the producer, the type and the amount of the minerals and such. Civil authorities shall confiscate the produced minerals. Those people shall be subject to an administrative fine for an amount of three times the ex-mine sales price of the entire minerals produced under the content of this paragraph. The civil authorities shall sell confiscated minerals and the proceeds of which shall be transferred to the account of local administration.” Furthermore, the paragraph 4 of the Article 94 of the above-mentioned Regulation states that the provisions of the Misdemeanor Law shall be applied to the administrative fines imposed herein.

In the scope of the abovementioned Articles, clay, sand, gravel, limestone, rock and the aggregate are classified as minerals within the scope of The Mining Law and therefore such materials are under the sovereignty and disposition of the State. Companies which procure the said minerals from lands without obtaining due licenses and permits may be held liable and imposed administrative fines for buying these materials.

2. Getting a Permit in Scope of the Other Relevant Legislation

The Article 7 of the Mining Law states that “If the areas on which mining activities are conducted are subject to permission, it is mandatory to obtain required permissions under provisions of the related law.” In case the land in which the abovementioned minerals are extracted from is an agricultural land, along with the permissions and licenses required under the mining legislation, certain permissions in accordance with other legislation may be required. The article 35 of the Regulation on Mining Activities Permit regarding agricultural lands, state that;

“Absolute farmlands, farmlands for special agricultural products, planted farmlands and irrigated farmlands cannot be used for purposes other than farming. However, provided that there is no alternative land for the investment and the relevant soil protection project is conformed with, and the Soil Protection Board deems such usage appropriate, such usage can be permitted by The Ministry of Agriculture and Rural Affairs.

The lands that are not qualified as absolute farmlands, farmlands for special agricultural products, planted farmlands and irrigated farmlands can be permitted to be used for mining activities by the governorships, if the relevant soil protection project is conformed with them…”

In case the land of a third party is legally qualified as an absolute farmland, a farmland for special agricultural products, a planted farmland or an irrigated farmland, certain other requirements and obligations arise in order to carry out mining activities. The Article 13 of the Law on Soil Protection and Land Use states that absolute farmlands, farmlands for special agricultural products, planted farmlands and irrigated farmlands cannot be used for purposes other than farming, and provided that there is no alternative land for the investment, and the relevant soil protection project is conformed with, and the Soil Protection Board deems such usage appropriate, or if there is a need stated in the same Article, such usage can be permitted by respective Ministry. In case the land is not classified as any of the abovementioned land types, provided that the soil protection project is conformed with, such land can be permitted to be used for other purposes than agricultural purposes by the governorships.

In case the abovementioned permits for carrying out mining activities on an agricultural land is not obtained by the mining company and other conditions in this regard are not met, sanctions and administrative fines stated under Article 21 of The Law on Soil Protection and Land Use can be imposed on the company. Accordingly;

“…….

In the event of starting to use the non- agricultural land without permission or failure to comply with prepared soil conservation projects, following actions shall be taken, and sanctions shall be impsed:

a) In case it is detected that activities are started and continue to be carried out without operation permission, such activities shall be stopped by the Governorships, if the work is completed, it shall not be permitted to bring into use. If the land can be used for other purposes than agricultural purposes, a fine of one New Turkish Lira per square meter shall be applied, and if the required permits are obtained and the conditions in this Law are met, the activity shall be allowed to be completed, or used if completed.

Any unpermitted building constructed on lands which are reserved for agricultural purposes in land use plan shall be demolished and cleaned. The expenses for rehabilitating the land shall be claimed from the responsible parties. In addition, an administrative penalty of two New Turkish Liras per meter square shall be imposed for damaging the agricultural lands.”

3. Analysis Within The Scope of The Civil Law

In accordance with the Article 715 of the Civil Law; “Vacant lands and properties benefits of which belong to the public shall be under the sovereignty and disposition of the State”. The Paragraph 3 of the same Article states that “Terms and conditions of acquisition, maintenance, protection, operation and usage of vacant lands and properties benefits of which belong to the public shall be regulated under special statute provisions.” As mentioned above, within the scope of the Article 4 of the Mining Law, the minerals are under the sovereignty and disposition of the State; the fact that minerals are situated in the land of a third party does not remove the said right of the State..

Within the scope of the aforementioned Articles, minerals are considered as goods for public’s benefit and they are under the sovereignty and disposition of the State. In this respect, the owner of such land does not have a right or a disposition authority on the minerals; however, it is possible for someone to sell something that does not belong to that person. Nevertheless, in case a seller sells something to another person which actually does not belong to him, such person would not be able to transfer proprietary right which belongs to the owner. In this respect, even if the owner of a land sells the minerals to a construction company, the proprietary right of those minerals would still belong to the State. In that case, the State may bring possessory action in order to stop mining activities, and request the return of the minerals, the rehabilitation of the land, and the compensation from the construction company for the damages.

Türkçe Versiyonu İçin

http://www.kasaroglu.av.tr/tr/28030/Izinsiz-Madencilik-Faaliyetlerinin-Sonuclari