As of January 1, 2012 a new Geological and Mining Law has taken effect (Journal of Laws of 2011, No. 163, item 981) (hereinafter the “Act”). The Act is a comprehensive revision of Polish geological and mining law.
One of the most important changes is the restoration of the previous model of mineral ownership rights. In recent years, issues have arisen as to whether the ownership of found mineral deposits should belong to the State Treasury or the landowner. The current Act removes this ambiguity and precisely enumerates the types of natural resources owned by the State Treasury regardless of their location. Therefore, by definition the remaining reserves and resources belong to the property owners.
Under the new Act, the entrepreneurs engaged in mining activities will also gain significant additional rights in dealing with property owners of lands rich in mineral deposits. These include:
- firstly, if a property or any portion of a property proves to be necessary to carry out mining activities, the entrepreneur can demand access to the necessary portion for a specified period of time provided the owner is compensated;
- secondly, the entrepreneur who hold an exclusive concession license to extract of hydrocarbons, coal, lignite or for the underground non-reservoir storage of hydrocarbons, can demand to purchase real estate or a portion of the real property, located within the mining area, necessary to carry out the mining operation.
The Act has also limited the scope of exclusive concession licensing of regulated activities. The concession licensing requirement now only applies to businesses prospecting or exploring for mineral deposits defined by statute, businesses engaged in the extraction of minerals from deposits and those utilizing underground bulk storage of substances and underground storage of waste. Concession licenses are not required in the carrying out of other such activities.
A noteworthy change also occurred in the specification of the number of persons who have the standing as a party in concession grant proceedings. Currently, this status is reserved for owners or perpetual users only if the activity governed by the Act is to be performed within the limits of their land. In order to expedite the administrative procedures a public notification provision has been added. Where the number of parties to the proceedings is greater than 20 persons, the parties can be notified of decisions and other actions by publication in the Bulletin of Public Information or in the manner customary in the community.
With respect to the right to use geological information, the Act has preserved this right for the State Treasury. The act has only slightly improved investors’ position with regard to the use of geological surveys. Under certain conditions and for specified periods of time, investors can now exclusively and without charge use information they have gathered.
The Act also introduced a number of other changes aimed at creating economic incentives for entrepreneurs. Only time will tell whether these changes will recreate el dorado for the Polish shale gas industry. At the moment, the liberalization of many requirements in the mining industry should be positively received.