German mining law
German mining law emerged from medieval customary law . Since the 12th century at the latest, the German kings have been claiming the mountain shelf for silver and other metals, so that these were withdrawn from the landlord. Already in the late Middle Ages the mountain shelf passed from royalty to the sovereigns. At first, the mining law was only passed on orally or written down by private individuals. Since the beginning of the 15th century, it was issued by the sovereigns in the form of ordinances ( mountain regulations ), which often remained in force until the 19th century. A far-reaching new basis was created with the General Mining Act for the Prussian States of 1865 , which, with individual changes, was also adopted in Braunschweig (1867), Bavaria (1869), Württemberg (1874), Baden (1890) and other countries. With the exception of the Kingdom of Saxony, it became valid in all of Germany's larger states. Mining in the Kingdom of Saxony, on the other hand, was subject to the General Mining Act for the Kingdom of Saxony of June 16, 1868.
Mining law in the Federal Republic of Germany
Until 1982, the legislation of the individual federal states regulated mining, the laws of which were mostly based on the General Mining Act for the Prussian states , but had different regulations in detail. The situation was even more complicated in federal states such as Baden-Württemberg, which were merged from different countries after 1945. In the formerly independent regions of North Baden, South Baden, Hohenzollern, North Wuerttemberg and South Wuerttemberg, different regulations sometimes applied.
The Federal Mining Act (BBergG) has been in force in the Federal Republic of Germany since January 1, 1982, replacing the mining laws of the federal states and ensuring uniform regulations. On October 3, 1990, his area of activity was extended to the territory of the former GDR . It essentially summarizes the earlier state mining laws , such as the General Mining Act for the Prussian States of 1865 , the law on the development of oil and other mineral resources as well as the ordinance on the exploration and extraction of mineral resources of 1934 and replaces these regulations at the same time .
The Federal Mining Act is based on the principle of mountain freedom . As a result, all non-mined natural resources listed in the law (various metals, crude oil, natural gas, coal, salts, fluorspar and barite, etc.) are withdrawn from the property, so that the property owner only has the so-called land-based natural resources (e.g. sand, gravel, gypsum , Clay, roofing slate). The non-mined mineral resources, on the other hand, are initially ownerless, but ownership of them can only be acquired through a state-controlled lending process. Direct mine ownership by the state for certain raw materials, such as the mountain shelf of the king or sovereign that existed since the 12th century or the state reservation that existed in the 20th century, has ceased to exist in the Federal Republic since 1982. However, the law stipulates that ensuring the supply of raw materials takes precedence over other overriding interests of the common good .
The Federal Mining Act regulates the conflicts of interest between the holder of a mining license and the landowners concerned. The landowner is entitled to compensation if, for example, he has to cede his land for the construction of mining facilities. The geothermal energy ( geothermal energy ) is considered mountain free. The Federal Mining Act does not apply to some bulk raw materials , such as sand, gravel, natural stones or peat (natural mineral resources), as long as they are not extracted in civil engineering . Instead, such near-surface raw materials fall under excavation law . In the GDR, these raw materials were also considered free from mining. However, everyone is permitted to collect minerals that have not been mined for teaching purposes or for private collections.
The geological institutes of the federal states ( state offices ) are commissioned to research the federal territory for usable mineral deposits, to investigate them and to collect and process their results . They are subordinate to the Federal Minister of Economics.
The Federal Mining Act distinguishes between prospecting ( prospecting ) and the extraction of non-mined mineral resources. Anyone who is interested needs a permit to visit or to obtain a permit from the responsible mining authority . There he can also submit an application for the lending of mining property (corresponds to a permit, but the provisions of the civil code applicable to land must also be applied). Annual field fees are to be paid for the permit and subsidy fees for the permit . The maximum size of a lent field is 2.2 million square meters and extends to the eternal depth , that is theoretically to the center of the earth. The mine operator is liable for mining damage .
In addition to the prospecting, extraction and processing of mineral raw materials, including a few, certain fundamental natural resources, the Federal Mining Act also regulates the recultivation of the exploited opencast mines . The construction and operation of underground storage facilities (gas, mineral oil, compressed air, etc.) is also subject to mining law.
Discussion about mining law aspects of fracking
The hearing was based on four motions and bills from the opposition groups:
- the SPD parliamentary group is striving (motion 17/9560) for more transparency in mining law proceedings and a greater involvement of environmental protection.
- The left-wing parliamentary group demands (Motion 17/9034) that the interests of the environment and of the people affected by the extraction of natural resources are given due consideration.
- The Bündnis 90 / Die Grünen parliamentary group has introduced a bill (17/9390) which provides for a uniform subsidy tax of ten percent. However, the subsidy tax has been a uniform 10% of the market value of the raw material since the introduction of the federal law. In addition, the parliamentary group (Motion 17/8133) calls for a public balance of interests “between the potentially positive effects of mining on society and its negative consequences for the people affected”.
Mining law in Austria
In Austria, the legal basis is quite similar to German law. The primary legal basis has been the Mineral Raw Materials Act (MinroG) since January 1st, 1999 . Approval from the district authorities or, in the case of underground mining, the minister of economics is required for the prospecting, extraction and processing of mineral raw materials . Asbestos and quartz stone (not quartz sand ) are also part of the fundamental natural resources in Austria .
Mining law in Switzerland
In Switzerland, mining law is a cantonal sovereign right , still called Bergregal , and is regulated by cantonal legislation. In addition to cantonal laws, old customary law has also been retained. In Graubünden, the canton has transferred mining rights to the political communities .
In view of the minor and mostly historical significance of mining in Switzerland, legislation in most cantons was limited to principles until recently, and where cantonal mining laws exist, they are sometimes a hundred years old or more. At the inter-cantonal level, there was also the Concordat on the exploration and exploitation of oil, which was passed in 1955 by the cantons of the eastern half of German-speaking Switzerland and was valid until 2013 . In view of the increasing importance of the subsurface and, more recently, geothermal energy , several cantons have recently passed modern mining laws or initiated the corresponding legislative process. The canton of Aargau was the first canton to focus on the development of geothermal energy in its 2012 law on the use of deep subsoil and the extraction of mineral resources . In 2013, the cantons of north-eastern Switzerland drew up a model law that is intended to serve as a guide for the individual cantons for their new mining laws to be enacted.
There are mining laws in the cantons of Aargau (2012), Basel-Landschaft (1876), Bern (2003), Freiburg (1850 and 1960), Geneva (2017 and 1999), Glarus (1893), Jura (1978), Lucerne (2013 ), Neuchâtel (1935), Nidwalden (1979), Schwyz (1999), St. Gallen (1919), Thurgau (2015), Uri (1995), Waadt (1957) and Wallis (1856). Other cantons have so far left it with the tight provisions that contain their respective introductory laws to the civil code in the section on property law , namely Appenzell Ausserrhoden , Basel-Stadt , Schaffhausen , Solothurn , Zug and Zurich . Still others only know one passage in their cantonal constitution in which they claim the mountain shelf, such as Graubünden and Obwalden . The canton of Appenzell Innerrhoden has not issued any legal provisions on mining law, in the canton of Ticino a long outdated law has now been repealed without replacement.
Liechtenstein mining law
The mining law in Liechtenstein is restricted to a few raw materials (metallic ores, fossil fuels, luminous and related substances, such as graphite, anthracite, hard coal, lignite, shale coal, asphalt, bitumen and mineral oils, sulfur, sulfur ores, rock salt and brine springs ) and above all in Liechtenstein property law (SR), Art 484 to 497 SR.
As in Switzerland, mining is no longer of particular importance in Liechtenstein and the provisions in property law are largely only procedural basic provisions.
Anglo-Saxon legal family
In contrast to mining law in German-speaking countries, the principle of landowner mining mostly applies in Great Britain and the Commonwealth . The crown only claims gold and silver deposits. In exceptional cases (for example in the case of fragmented property), mining rights can be granted to third parties, whereby the landowners must be compensated. The miner pays the owner a lease , a fixed interest rate (dead rent) or a royalty . The rights to aboveground and underground mineral resources (usually quarries and mines) can be assigned separately.
In the Commonwealth of Nations (such as Canada , New Zealand , Australia , India , Pakistan , Malaysia , South Africa , and many others) minerals (except gold and silver) can be mined for an annual fee. The occupation of a field (claim) on public land usually takes place by finding, marking the location, staking out the field and finally by entering it in the official register. In Canada, the Minister of Natural Resources oversees mining and issues licenses and concessions. The prospecting license is valid for one year. A claim must be staked out within this period. After that, the prospector can acquire a prospecting or development license for another year. The next stages are the granting of preliminary mining rights and the final mining concession.
In the United States , too, mining law is based on English common law . Here the landowner is also the owner of all raw materials to the eternal depths. However, there is a state reservation for phosphates, nitrates, potash salts, asphalt, coal, oil shale and sulfur, and a right of appropriation (no right of ownership) of the state for oil and natural gas. Sand and gravel are under the Ministry of the Interior. The acquisition of mine property in the federal state is very similar to that in Canada, but additional exploration work (discovery shaft) must be carried out. On the other hand, on the land of the individual states, the claim is not transferred to full ownership, but only for lease.
French legal family
In France and Belgium , the Civil Code forms the basis for mining law. In a certain way it occupies a middle position between the German and the Anglo-Saxon legal tradition. Quarries (carrières) of natural stone, sand, gravel, kaolin and clay as well as opencast mines (minières) of iron ores, pyrite, bauxite and peat are part of the property. Only the underground mines of metals, arsenic , sulfur , alum , vitriol , coal, bitumen , crude oil, natural gas, rock and potash salt are excluded from the landowner's right of disposal. Both landowners and the state can grant mining permits and concessions. The finder has no special claim to a mining license. The state levies a field tax (redevance fixe) and a tax on the net income (redevance proportional) from the operator . The landowner receives a settlement.
In Portugal , Spain , Italy and Turkey the mining law is based on the Code Napoléon . Here, too, most of the aboveground raw materials belong to the landowner, the underground to the state. If certain conditions are met, the finder can obtain a license or at least have the right to compensation.
Since many of the so-called developing countries derive a large part of their income from the export of raw materials, the mining laws in these countries often show similar traits. Most of the time, all raw materials are subject to the control of the state. The particularly important main export products (mostly precious metals , energy resources, etc.) are reserved for the exclusive use of the state. The licenses granted are limited in time (following the North American model), subject to fees and often associated with numerous conditions for the foreign partner (minimum investment, employment and training of local residents, information requirements about the company, measures for environmental protection and recultivation, etc.). The state mining companies often insist on majority stakes in the foreign companies. However, local small-scale mining is usually only subject to registration and is free of conditions. The working conditions of local miners are therefore often catastrophic.
In the early 1990s, various South American countries reformed their respective mining laws in order to attract more foreign capital to their countries by easing restrictions. Together with the high gold price at the time , this actually led to a considerable boom in the mining sector. However, the long-term benefits for the respective economies remained mixed.
After the discovery of manganese nodules and ore sludge on the sea floor, interest in the exploitation of submarine deposits in the open sea has increased significantly. However, their legal position is still extremely unclear. Up to now, only the seaward expansion of the territories of more and more states has given a certain legal claim.
- Reinhart Piens, Hans-Wolfgang Schulte, Stephan Graf Vitzthum: Federal Mining Act . (BBergG). Comment. Kohlhammer, Stuttgart 1983, ISBN 3-17-007505-5 .
- Gerhard Boldt , Herbert Weller, Gunther Kühne, Hans-Ulrich von Maessenhausen: Federal Mining Act . De Gruyter, 2nd edition 2015 ISBN 978-3-89949-255-2 .
- Raimund Willecke: The German mining legislation. From the beginning to the present. Glückauf, Essen 1977, ISBN 3-7739-0210-7 .
- Eduard Kremer, Peter U. Neuhaus called Wever: Bergrecht. Kohlhammer, Stuttgart a. a. 2001, ISBN 3-17-016287-X .
- Julius Hesemann et al .: Investigation and evaluation of deposits of ores, usable minerals and rocks (= Vademecum 1). Geological State Office of North Rhine-Westphalia, Krefeld 1981, pp. 95–105: Section: Legal relationships (mining legislation) .
- Federal Mining Act ; PDF (308 kB)
- Piens et al., Pp. 140-145
- Environmental protection in specialist law: Mining Law , Federal Environment Agency , August 21, 2013, accessed on April 3, 2014
- Discussion about the mining law of the future. Retrieved July 23, 2012 .
- bundestag.de (PDF file; 78 kB)
- bundestag.de (PDF file; 148 kB)
- § 31 Funding tax. In: Federal Mining Act. Federal Republic of Germany, accessed on April 21, 2015 .
- 17/9390 (PDF file; 148 kB), 17/8133 (PDF file; 121 kB)
- Austrian Mineral Raw Materials Act - MinroG .
- Concordat on the prospecting and exploitation of oil of September 24, 1955. (PDF; 42 kB)
- Model Act on the Use of the Underground from December 2, 2013.
- Aargau: Law on the use of deep subsoil and the extraction of mineral resources of June 19, 2012 ; Basel-Landschaft: Law on the mining shelf of May 7, 1876 ( Memento of the original of July 12, 2018 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. ; Bern: Mountain Shelf Act of June 18, 2003 ; Freiburg: Law on the Operation of Mines of October 4, 1850 and Law on the Prospecting and Exploitation of Hydrocarbons of February 27, 1960 ; Geneva: Loi sur les ressources du sous-sol of 7 April 2017 and Loi sur les gravières et exploitations assimilées of 28 October 1999 ; Glarus: Law on Mining of May 7, 1893 ; Jura: Loi sur l'exploitation des matières premières minérales (Loi sur les mines) of October 22, 1978 ; Lucerne: Law on the Extraction of Natural Resources and Use of the Subsurface of May 6, 2013 ; Neuchâtel: Loi sur les mines et les carrières of May 22, 1935 ; Nidwalden Law on the Extraction of Mineral Raw Materials (Bergregalgesetz) of April 29, 1979 ; Schwyz: Law on Mountain Shelf and Use of the Underground of February 10, 1999 ; St. Gallen: Law on Mining of April 7, 1919 ; Thurgau: Law on the use of the underground of November 18, 2015 ; Uri: Law on Mountain Shelf and Use of the Underground of November 26, 1995 ; Vaud: Loi sur les hydrocarbures of November 26, 1957 ; Valais: Law on Mines and Quarries of November 21, 1856 .
- Appenzell Ausserrhoden: Law on the introduction of the Swiss Civil Code of April 27, 1969, § 229 ; Basel-Stadt: Law on the introduction of the Swiss Civil Code of April 27, 1911, § 158 ; Schaffhausen: Law on the introduction of the Swiss Civil Code of June 27, 1911. Sections 90–92 (PDF; 122 kB) Solothurn: Law on the introduction of the Swiss Civil Code of April 4, 1954 , plus the law of December 10, 1911 regarding the introduction of the Swiss Civil Code of December 10, 1907, § 260 ; Zug: Law on the introduction of the Swiss Civil Code for the Canton of Zug of August 17, 1911, Section 89 ; Zurich: Introductory Act to the Civil Code of April 2, 1911, Sections 148–150 (PDF; 256 kB; new decree currently  in the legislative process).
- Graubünden: Constitution of the Canton of Graubünden from May 18 / September 14, 2003, Art. 85 ; Obwalden: Constitution of the Canton of Obwalden of May 19, 1968, Art. 38 .