CHINA Trends and Developments Contributed by: Guisheng Yang, Qi Zhu, Yonghui Wang and Ranran Shi, Beijing Dacheng Law Offices
Breakthroughs and Diversified Paths in the Mining Land Use System The New Mineral Resources Law makes systematic provisions on mining land use, constructing a land use system that is commensurate with the characteristics of the mining industry. It effectively solves the long- standing industry problem of “legal mineral rights but illegal land use”, reflecting the transformation of the governance concept from “separation of mineral and land management” to “coordinated management of mineral and land”, and creating a more stable, trans- parent and predictable land use environment for the The New Mineral Resources Law clearly requires that in drawing up the territorial spatial plan, the actual needs of the land used for the exploration and mining of mineral resources shall be considered. This means that the mining activity is no longer a passive adapter to land use planning, but is incorporated into over- all arrangements at the territorial spatial plan layout stage. development of the mining industry. Innovations at the planning level Drawing up the territorial spatial plan shall take into account factors such as resource distribution, geo- logical conditions and ecological environment, and properly handle the relationship between mineral development and control lines such as ecological pro- tection red lines and permanent basic farmland, so as to avoid and minimise the overburdening of mineral resources. This concept of “planning first” provides stable spatial guarantees for the implementation of mining projects and a more predictable development environment for investors. Transformation in land supply methods The New Mineral Resources Law breaks the previous single model dominated by assignment, and allows administrative departments of natural resources to supply the lawful use of the land for mining through multiple methods such as assignment, lease or capital contribution at the appraised value. Mining enterprises can choose flexibly according to the characteristics of the project, and even adopt a combination of multiple methods. More importantly, enterprises can not only obtain the right to use state-owned construction land, but also obtain land use rights through rural collective-
ly owned commercial construction land marketisation, expanding the channels for land use sources. This reform fully takes into account the special attrib- ute of mining land use – that is, the construction land use right for the land used by mining shall be disposed of concurrently with mineral rights – and solves the dilemma of being unable to carry out mineral develop- ment due to failure to obtain land use rights. For stra- tegic mineral resources, the New Mineral Resources Law makes special institutional arrangements, clarify- ing that where land collectively owned by farmers is genuinely needed for the mining of strategic mineral resources, it may be expropriated according to law. Breakthroughs in temporary land use On the basis of continuing the temporary land use system for exploration, the New Mineral Resourc- es Law innovatively allows the temporary land use for opencast mining of strategic mineral resources. Where the land use is suitable for simultaneous mining and reclamation, upon scientific demonstration, the land may be used temporarily upon approval from the administrative departments of natural resources under the people’s governments at or above the provincial level. Where agricultural land is used temporarily, the planting conditions shall be restored. This not only meets the needs of opencast mining for a short construction period and relatively flexible land use, but also ensures ecological security through strict approval and reclamation requirements. Innovations in Protecting the Rights and Interests of Mineral Rights Holders State expropriation and requisition: balancing public interests and private rights Before the duration of the mineral rights expires, the original mineral rights assignment authority may recover the mineral rights according to law for the sake of public interests, but it must provide “fair and reasonable” compensation. This provision establishes a mechanism for balancing public interests and individual rights and interests. It ensures the realisation of major national construction projects and public interests, while maintaining the normal order of the mineral rights market, reducing the
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