KAZAKHSTAN Law and Practice Contributed by: Timur Odilov, Mikhail Abdulov, Olzhas Abubakirov and Dauren Sadykov, Haller Lomax LLP
Mining Licence A mining licence has the following features. • Granted for up to 25 years plus possible extensions for a period not exceeding the original term of the licence (unlimited times). • Licence area is exclusive and must be in the form of a rectangle or quadrangle where at least two opposite sides are parallel or, if impossible, a polygon with the least possible number of angles. No minimum or maximum size. • A security instrument for mine closure and reclamation to be furnished before commenc - ing mining activities. • Entitles holder to mine any minerals, except for uranium deposits. • No limit on the number of licences per person/company. Transferable, subject to national security review. • Retention status for up to five years with potential extension for a further five years. After the issuance of a subsoil use licence, if the RoK legislation, which governs relations in the field of subsoil use, introduces additional conditions for such licences, these conditions shall not be applicable to licences issued prior to the legislative amendment (except for changes of the legislation concerning national security, defence capability, environmental safety, health - care, taxation and customs regulation). The SSU Code delineates an exhaustive set of conditions under which a licence can be invali - dated, specifically: • providing the MIC with knowingly unreliable information that influenced its decision to issue a licence; • violations of the licence issuance procedure that led to an unjustified decision, as a result
of a malicious agreement between an official of the MIC and the applicant; • issuing a licence to a person recognised as legally incompetent, and who was such on the day of issue; and • if the issuance of a licence is not provided for or prohibited by the SSU Code. The authority to invalidate a licence rests with the court. The statute of limitations for disputes related to the invalidity of a licence is three months from the day when the plaintiff becomes aware, or ought to have become aware, of the circum - stances that constitute the basis for declaring the licence invalid. Also, note that APPC specifies the principle of “Protection of the Right to Trust”, which serves as a “guarantee” for the administrative author - ity that the adopted administrative act (such as a licence) is lawful and consistent. An admin - istrative act (licence) is considered lawful and justified until the administrative authority, public official, or court establishes otherwise in accord - ance with the RoK legislation. An error committed by the administrative author - ity (such as the MIC) cannot be turned against the party (subsoil user). At that, a subsoil user cannot invoke such a prin - ciple except in cases specified in Article 84.6 of the APPC (eg, when there is established deliber - ate falseness of a document or information pro - vided by a subsoil user). The Civil Code specifies that an individual/legal entity whose rights are violated may demand full compensation for the losses incurred, including actual damages and lost profits.
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