What are minerals? What are the penalties for illegal mineral mining in Vietnam?

Hello, Lawnet would like to answer as follows:

1. What are minerals? What is illegal mineral mining?

What are minerals?

According to the provisions of Clause 1, Article 2 of the Law on Mineral 2010, mineral mean useful minerals and mineral substances which are naturally accumulated in solid, liquid or gaseous form and exist underground or on the ground, including minerals and mineral substances at tailing sites of mines.

At the same time, Clauses 5 and 7, Article 2 of the Law on Mineral 2010 also stipulate that mineral mining means activities to recover minerals, including mine infrastructure construction, excavation, classification, enrichment and other related activities.

Mineral activities include mineral exploration and mineral mining activities; Mineral activities may only be carried out only after obtaining permission from competent state management agencies. (According to Clause 2, Article 4 of the Law on Mineral 2010)

What is illegal mineral mining?

According to Article 8 of the Law on Mineral 2010, prohibited acts in mineral activities are as follows:

- Taking advantage of mineral activities to infringe upon the interests of the State or the rights and legitimate interests of organizations and individuals.

- Abusing mineral exploration to exploit minerals.

- Conducting geological baseline surveys of minerals or mineral activities without permission of competent state management agencies.

- Illegally obstructing geological baseline surveys of minerals or mineral activities.

- Illegally providing mineral-related information classified as state secrets.

- Intentionally destroying valuable or rare and precious geological and mineral specimens.

- Other acts as prescribed by law.

Thus, according to the above regulations, illegal mining is the act of exploiting minerals without permission from a competent state management agency.

2. What are the penalties for illegal mineral mining in Vietnam?

Illegal mining can be subject to specific administrative or criminal penalties:

Administrative sanctions for illegal mineral mining

According to the provisions of Article 47 of Decree 36/2020/ND-CP, violations against regulations on mining of minerals (other than river, stream or river sand and gravel) without obtaining a mining license from the competent authority shall be subject to the following penalties:

(1) Fines shall be imposed for mining minerals used as common building materials without using industrial explosives.

To be specific:

- A fine ranging from VND 1,000,000 to VND 3,000,000 shall be imposed if, at the time of discovering the violation, the total volume of mined minerals is less than 10 m³;

- A fine ranging from VND 3,000,000 to VND 5,000,000 shall be imposed if, at the time of discovering the violation, the total volume of mined minerals is from 10 m³ to less than 20 m³;

- A fine ranging from VND 10,000,000 to VND 20,000,000 shall be imposed if, at the time of discovering the violation, the total volume of mined minerals is from 20 m³ to less than 30 m³;

- A fine ranging from VND 20,000,000 to VND 30,000,000 shall be imposed if, at the time of discovering the violation, the total volume of mined minerals is from 30 m³ to less than 40 m³;

- A fine ranging from VND 30,000,000 to VND 40,000,000 shall be imposed if, at the time of discovering the violation, the total volume of mined minerals is from 40 m³ to less than 50 m³;

- A fine ranging from VND 40,000,000 to VND 50,000,000 shall be imposed if, at the time of discovering the violation, the total volume of mined minerals is at least 50 m³.

(2) Fines shall be imposed for mining minerals which are used as common building materials by using industrial explosives or mining other minerals, except for the cases specified in Clause (1) and (3).

To be specific:

- A fine ranging from VND 70,000,000 to VND 100,000,000 shall be imposed on a household business for mining minerals used as common building materials;

- A fine ranging from VND 200,000,000 to VND 300,000,000 shall be imposed if the mining is licensed by the provincial People’s Committee, except for the cases prescribed in Point a of this Clause and Clause 3 of Article 47 of Decree 36/2020/ND-CP;

- A fine ranging from VND 300,000,000 to VND 500,000,000 shall be imposed if the mining is licensed by the Ministry of Natural Resources and Environment, except for the case specified in Clause 3 of Article 47 of Decree 36/2020/ND-CP.

(3) Fines shall be imposed for mining gold, silver, precious stones, platinum or toxic minerals.

To be specific:

- A fine ranging from VND 50,000,000 to VND 70,000,000 shall be imposed if the volume of mined crude minerals is less than 100 tonnes;

- A fine ranging from VND 100,000,000 to VND 200,000,000 shall be imposed if the volume of mined crude minerals is from 100 tonnes to less than 200 tonnes;

- A fine ranging from VND 300,000,000 to VND 400,000,000 shall be imposed if the volume of mined crude minerals is from 200 tonnes to less than 300 tonnes;

- A fine ranging from VND 500,000,000 to VND 600,000,000 shall be imposed if the volume of mined crude minerals is from 300 tonnes to less than 400 tonnes;

- A fine ranging from VND 700,000,000 to VND 800,000,000 shall be imposed if the volume of mined crude minerals is from 400 tonnes to less than 500 tonnes;

- A fine ranging from VND 800,000,000 to VND 1,000,000,000 shall be imposed if the volume of mined crude minerals is at least 500 tonnes.

(4) Additional penalties:

Confiscate all minerals which have not been sold, dispersed or destroyed; confiscate instrumentalities used for commission of administrative violations if any of the violations prescribed in Clauses (1), (2) and (3) is committed. (According to the provisions of Point b, Clause 22, Article 2, Decree 04/2022/ND-CP)

(5) Remedial measures:

The violator is compelled to:

- Adopt environmental improvement and remediation measures within areas where the mining was carried out; adopt measures to bring such areas to safe state.

- Pay the costs of expert examination, verification and measurement if any of the violations mentioned in Clauses (1), (2) and (3) is committed.

The maximum fines for the violations specified in Clauses (1), (2) and (3) shall be imposed for mining minerals without mining license within areas where the mining is prohibited or temporarily prohibited. Additional penalties are the same for those specified in Clause (4).

- Enforced return of the money equivalent to the value of minerals obtained from administrative violations in relation to violations specified in Clauses (1), (2) and (3) in case of the minerals which have been sold, dispersed or destroyed contrary to the law provisions. (Added at Point b, Clause 22, Article 2 of Decree 04/2022/ND-CP)

Offences against regulations on survey, exploration and extraction of resources

According to Article 227 of the Penal Code 2015, amended in 2017, individuals and organizations will be prosecuted for criminal liability when violating regulations on survey, exploration and extraction of resources as follows:

For individuals

Frame 1:

- Any person who violates regulations of the State on survey, exploration, and extraction of resources on land, islands, inland waterway, territorial waters, exclusive economic zones, continental shelves, and airspace of Vietnam without a license or against the license in any of the following circumstances shall be liable to a fine of from VND 300,000,000 to VND 1,500,000,000 or face a penalty of 06 - 36 months' imprisonment:

+ The illegal profit from the survey, exploration and/or extraction of water resources, petroleum, or other resources is from VND 100,000,000 to under VND 500,000,000;

+ The resources extracted are assessed at from VND 500,000,000 to under VND 1,000,000,000;

+ The offence causes ≥ 61% WPI for another person;

+ The offence causes a total WPI of 61% - 121% for more than one person;

+ The offender incurred an administrative penalty for any of the offences specified in Article 227 of the Penal Code 2015, amended in 2017 or has an unspent conviction for the same offence.

Frame 2:

- This offence committed in any of the following circumstances carries a fine of from VND 1,500,000,000 to VND 5,000,000,000 or a penalty of 02 - 07 years' imprisonment:

+ The illegal profit earned from survey, exploration, and extraction of water, petroleum or other natural resources is ≥ VND 500,000,000;

+ The resources extracted are assessed at ≥ VND 1,000,000,000;

+ The offence is committed by an organized group;

+ The offence results in an environmental emergency;

+ The offence results in the death of a person;

+ The offence causes a total WPI of ≥ 122% for more than one person.

Additional penalties:

The offender might also be liable to a fine of from VND 50,000,000 to VND 500,000,000.

For commercial legal entities

According to Clause 4, Article 227 of the Penal Code 2015, amended in 2017, punishments incurred by a corporate legal entity that commits any of the offences specified above:

- Any corporate legal entity that commits an offence specified in Clause 1 of this Article and earns an illegal profit of from VND 300,000,000 to under VND 500,000,000 or extracts an amount of resources assessed from VND 700,000,000 to under VND 1,000,000,000 or causes ≥ 61% WPI for another person or causes a total WPI of 61% - 121% for ≥ 02 people; earns an illegal profit of from VND 100,000,000 to under VND 300,000,000 or extracts an amount of resources assessed from VND 500,000,000 to under VND 700,000,000 while having incurred an administrative penalty for any of the offences specified in this Article or having an unspent conviction for the same offence shall be liable to a fine of from VND 1,500,000,000 to VND 3,000,000,000;

- A corporate legal entity that commits this offence in any of the circumstances specified in Clause 2 of this Article shall be liable to a fine of from VND 3,000,000,000 to VND 7,000,000,000 or has its operation suspended for 06 - 36 months;

In addition, The violating corporate legal entity might also be liable to a fine of from VND 100,000,000 to VND 500,000,000, be banned from operating in certain fields or raising capital for 01 - 03 years.

Thus, individuals who commit illegal mineral exploitation can be sentenced to up to 7 years in prison. Commercial legal entities that violate the above regulations may be suspended, banned from operating or prohibited from raising capital for up to 3 years.

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