Introduction
This brief discusses the ownership of minerals and legal provisions in sector legislation that are meant to facilitate the carrying out of mining operations as well as energy infrastructure construction and operation in Botswana. Both activities are capital-intensive projects
Pre-authorization ownership of minerals
It is helpful to appreciate the history of ownership of minerals in Botswana, as it is slightly different from some countries like South Africa where minerals have not been completely “nationalized”. Ownership can conveniently be discussed under two periods, pre-independence and post-independence.
Pre-independence period
Botswana gained independence, and self-rule, from Britain in 1966. More thorough research can confirm better. But we surmise that in pre-independence, mineral rights were held: (i) in so-called tribal territories by tribes, through their Chiefs; and (ii) in freehold lands, by the holders/owners of the lands. For instance, land in the Tati District was vested in the Tati Concessions Ltd under the Tati Concessions Land Act, Chapter 32:05 of the Laws of Botswana. Section 6 of the Act provides that the right to all minerals and precious stones in the Tati District is reserved for the Tati Concessions Limited. However, independence ushered a complete change.
Post-independence period
Around July 1967 various Chiefs entered into agreements with the State, represented by the President, by which they transferred all mineral rights in their tribal territories to the State. The agreements’ transfers were given legislative effects by the Mineral Rights in Tribal Territories Act. The Act, which entered force on the 29th of September 1967, transferred to the State mineral rights in seven (7) tribal territories. The Act transferred mineral rights in the balance of tribal territories. In freehold lands, mineral Rights were also ultimately abandoned in favour of the State through notarial deeds of abandonment of mineral rights. It seems that the landowners were “arm-twisted” through effective means. For instance, the Mineral Rights Tax Act of October 1972, imposed a “prohibitive” tax regime for even unascertained minerals. The Act provided that, effective the 1st July 1972, mineral rights holders (freehold landowners) were to pay an annual tax for their mineral rights. Hence, possibly landowners found it better to give up their mineral rights. But to be sure if minerals in a freehold land is not owned by the land owner (current or previous) one has to consult individual title deeds and related instruments.
And the Mines and Minerals Act attempts to put ownership beyond doubt. Its section 3 provides that all mineral resources in Botswana are vested in the State.
