A Review of the Concept of Security of Mineral Tenure: Issues and Challenges

Abstract

Being a decisive factor in the investment decision criteria, security of tenure has been a main concern in the wave of reform of mining laws aimed at encouraging private investment in developing countries. This article will review the interpretations of the concept and the issues arising from security of tenure, as discussed in the literature. It identifies various interpretations ranging from a rather narrow one as ‘a legal entitlement to extraction rights in the event of a successful discovery’, to ones addressing various uncertainties that may arise in carrying out mining projects profitably. To examine how such a wide concept of security of tenure has been incorporated into the design of specific legal regimes, the article will review the regimes of a group of South American countries. They are selected because they have strongly promoted private investment and emphasised the importance of security of tenure as a top priority in their legal regimes. Finally, the article will take into account a growing trend towards regulation of the environmental and social aspects of mining, and will explore the challenges lying ahead.