CHAPTER 9 THE INTERNATIONAL BAR ASSOCIATION'S MODEL MINING DEVELOPMENT AGREEMENT PROJECT

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment
(Apr 2011)
CHAPTER 9
THE INTERNATIONAL BAR ASSOCIATION'S MODEL MINING DEVELOPMENT AGREEMENT PROJECT
Carlos Vilhena (Moderator)
Pinheiro Neto Advogados
Brasilia
Michael J. Bourassa
Fasken Martineau
Toronto
Luke Danielson
Sustainable Development Strategies Group
Colorado
Peter S. G. Leon
Webber Wentzel, South Africa

CARLOS VILHENA is a partner at the law firm of Pinheiro Neto Advogados, in Brasilia, Brazil, where he coordinates the firm's mining law and government relations practices. In recent years he has given legal advice in all areas related to the mining sector, including policy, regulatory, M&A, land, community relations, infrastructure, indigenous populations, processing, sales, tax, environment, power, contracts, corporate, financing and litigation. For many years he has been appointed as one of the top practitioner in Brazil for mining legal expertise by The International Who's Who of Mining Lawyers published by Who's Who Legal, as well as the leading mining law practitioner in Brazil by the Latin Lawyer. In 2011, Chambers Global recognized Mr. Vilhena as the one of the most reputed mining lawyers in Brazil. Mr. Vilhena acts as the International Affairs Officer of the Brazilian Mining Association - Ibram. He also acts as Secretary of the Mining Committee of the Section on Energy, Environment, Natural Resources and Infrastructure Law of the International Bar Association. Mr. Vilhena holds an LLM degree in Natural Resources Law from the Centre for Energy, Petroleum, and Mineral Law and Policy at the University of Dundee, Scotland and an LLB in Law from the University of Brasilia Law School.

MICHAEL BOURASSA is a partner at Fasken Martineau and co-ordinator of the global mining group. Michael has been a director of the Prospector and Developers Association of Canada since 2003. He is also past-chair of the natural resources and energy law section of the Ontario Bar Association, a member of the mining executive committee for the International Bar Association, member of the Mining, Metals and Energy Financing Working Group of the Toronto Stock Exchange and a trustee for the Rocky Mountain Mineral Law Foundation (RMMLF). He is also co-chair of the mining programme for the 2011 international conference of the RMMLF. Michael was named in the 2005 to 2010 editions of the International Who's Who of Mining Lawyers, which also named him as "Mining Lawyer of 2010". Michael received his BSc in physical geography in 1976 from the University of Saskatchewan and worked in the uranium exploration industry for several years prior to graduating from law school in 1984. He was called to the Ontario Bar in 1986. He was made an Honorary Geoscientist in 2003 for his contribution to the Association of Professional Geoscientists of Ontario.

LUKE DANIELSON is a practicing lawyer and President of the Sustainable Development Strategies Group. He teaches courses related to sustainable development of natural resources at the University of Denver College of Law, Simon Fraser University, and a variety of other institutions. He is a Visiting Lecturer at the Centre for Energy, Petroleum, and Mineral Law and Policy, and author of a number of publications dealing with the development impacts of natural resource projects, and the potential for such development to play a role in poverty reduction. He was for eight years a member of the Colorado Mined Land Reclamation Board and was a principal author of Colorado's current permitting laws for mining. He taught for three years at the University of Chile in environmental law, including a specialized doctoral course on environmental legislation applicable to mining. He was a consultant to both the Chilean Ministry of Mines and CONAMA, the national environmental agency, in the development of environmental regulations applicable to the mining sector. Professor Danielson has assisted financial institutions with identification and management of risks at large natural resource development projects in several countries, and has consulted to a number of national governments, including the Peoples Republic of China, Romania, Peru, Chile, and Cuba in development of environmental regulations applicable to natural resource issues of various types. He has also consulted to both mining companies and nongovernmental organizations. He was the Director of the Mining Policy Research Initiative of the International Development Research Centre, in charge of funding and conducting research on the social, economic, and environmental aspects of mineral development in the 23 countries of Latin America and the Caribbean. He has recognized expertise in dealing with environmental, community and social concerns associated with mining development. Professor Danielson was the Director of the worldwide Mining Minerals and Sustainable Development Project at the International Institute for Environment and Development. He is a member of the Mining and Metallurgy Society of America, the International Consortium for Law and Development, a Trustee of the Lowell Institute for Mineral Resources at the University of Arizona, and a life member of the Wyoming Wildlife Federation.

PETER LEON is a partner with Webber Wentzel, where he co-chairs the firm's mining, energy and natural resources practice group. His principal areas of practice are public law, particularly natural resources law, black economic empowerment law ("BEE"), regulatory aspects of financial services law and international investment law. Appointments include: chairman of the mining law committee of the International Bar Association (2009 - 2011) and co-chair 2011-2012; independent regulatory expert appointed by the by the director-general of the South African Department of Mineral Resources to the mining, industry growth, development and employment task team ("MIGDETT") (2011-2012); chair of the ministerial advisory committee on local government transformation in South Africa (2000 - 2002). Peter Leon was also named, for the last four years as one of the world's leading mining lawyers in three international publications, as well as one of the hundred most influential people in the South African mining industry. He holds a BA LLB (cum laude) (Cape Town), LLM (Hons) (Cambridge), where he was elected Senior Scholar of Christ's College for academic merit. During South Africa's democratic transition, Peter Leon was chairman of Lawyers for Human Rights in Johannesburg, provincial leader of the Democratic Party as well as caucus leader in the Gauteng legislature (1995 - 2000) and, subsequently, minority leader in the Gauteng legislature (1999 - 2000).

MMDA 1.0

MODEL MINE DEVELOPMENT AGREEMENT

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MMDA 1.0 ADMINISTRATIVE COMMITTEE

Peter Leon, IBA Mining Law Committee Chair; Weber Wentzel, South Africa Bob Bassett, Project Coordinator; Holland & Hart, U.S. Elizabeth Bastida, University of Dundee, UK Michael Bourassa, Fasken Martineau, Canada Stephane Brabant, Herbert Smith, Paris Jim Cress, Holme, Roberts & Owen, U.S. Luke Danielson, Sustainable Development Strategies Group, U.S. John Grace, Grace Legal Party, Australia Barry Irwin, Allen Overy, Australia Charles Lawton, Arbitrator, UK Howard Mann, International Institute for Sustainable Development, Canada Rory Moriarty, Clayton Utz, Australia Rahamat Soemadipradja, Soemadipradja & Taber, Indonesia

Cover Photo:

Detail from St. Barbara's Cathedral, Kutna Hora, Czech Republic, 2005. Photo by Diane S. Bassett.

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MMDA 1.0

MODEL MINE DEVELOPMENT AGREEMENT

A Template for Negotiation and Drafting

April 4, 2011

NOTE:

This document should not be used to create legal relationships. It is intended only as a template for negotiating and drafting a mine development agreement. The text is merely illustrative, and the examples are taken from existing mine development agreements without modification. Neither the text nor the examples are sanctioned for use in any specific agreement by the authors or the International Bar Association.

View the MMDA 1.0 and share your experience using this document at www.MMDAproject.org.

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DISCLAIMERS

MMDA 1.0 AND ASSOCIATED COMMENTARY, WEB MATERIALS AND OTHER DOCUMENTS PRESENTED ON THE MMDA WEBSITE HAVE BEEN PREPARED ONLY AS A GUIDE FOR NEGOTIATION AND DRAFTING. THEY MAY NOT CONTAIN ALL OF THE NECESSARY OR APPROPRIATE PROVISIONS FOR ANY PARTICULAR TRANSACTION. EXAMPLES FROM EXISTING MINE DEVELOPMENT AGREEMENTS ARE PROVIDED AS ILLUSTRATIONS ONLY.

THESE MATERIALS ARE TOOLS THAT MAY AID NEGOTIATORS AND DRAFTERS IN DEVELOPING AGREEMENTS, OR MAY SERVE AS EDUCATIONAL MATERIALS. USING THESE MATERIALS TO DEVELOP ACTUAL AGREMENTS WITHOUT THE NECESSARY LEVEL OF SKILL AND EXPERIENCE, AND DEEP KNOWLEDGE OF THE LAW OF THE COUNTRY CONCERNED, AS WELL AS INTERNATIONAL STANDARDS, WOULD CREATE VERY SERIOUS RISKS FOR WHICH THE INTERNATIONAL BAR ASSOCIATION, ITS COMMITTEES, AND THE INDIVIDUALS WHO HAVE CONTRIBUTED TO THE DEVELOPMENT OF THESE MATERIALS ARE NOT LIABLE.

EACH ARTICLE OF THIS DOCUMENT SHOULD BE CAREFULLY REVIEWED BY COMPETENT COUNSEL EXPERIENCED IN SIMILAR TRANSACTIONS BEFORE IT OR ANY PART OF IT IS USED IN AN ACTUAL TRANSACTION. ANY ARTICLES, INCLUDING THE ARTICLES IN THIS DOCUMENT, MUST BE ADAPTED TO THE SPECIFIC FACTS AND CIRCUMSTANCES SURROUNDING THE PARTICULAR TRANSACTION AND THE RELATIONSHIP OF THE PARTIES. ADDITIONAL ARTICLES NOT PRESENTED HERE MAY WELL BE NECESSARY TO PROTECT THE PARTIES' RIGHTS.

PARTIES REFERRING TO THIS DOCUMENT SHOULD CONSULT WITH LEGAL, TAX AND ACCOUNTING ADVISORS EXPERIENCED IN SIMILAR TRANSACTIONS BEFORE FINALIZING ANY AGREEMENT ON MATTERS OF THE IMPORTANCE OF MINING DEVELOPMENT AGREEMENTS. PARTIES REFERRING TO OR USING THIS DOCUMENT OR ANY OF THE OTHER MATERIALS PRESENTED ON THE MMDA WEBSITE DO SO AT THEIR OWN RISK.

NO PARTY ASSOCIATED WITH THE DEVELOPMENT OF THIS DOCUMENT SHALL BE LIABLE FOR LOSSES OR DAMAGES THAT MAY RESULT FROM THE USE OF...