Introduction

Globally, two distinct legal frameworks or systems that regulate mining activities exist: whereas in common law countries, such as the USA and Australia, mines belong to the proprietors of the relevant mining lands (i.e. the landowners own the mines), in civil law countries, such as Turkey, the State and not the landowners own the mining lands where the mines are located.

In Turkey, as in other countries which have adopted the second system, mines belong to the State, regardless on whose land they are located.  In this case, the State which fully owns all mines either grants the right to operate these mines to private citizens and/or companies or the State operates some or all the mines itself.

Ownership of Mines in Turkey

The primary statute which regulates mining activities in Turkey is the Mining Law number 3213 (the “Mining Law”) which was promulgated in the Turkish Official Gazette dated 15 June 1985 and numbered 18785.  However it is the Constitution of the Republic of Turkey (the “Turkish Constitution”) which provides the main guideline pertaining to State-ownership of mines in Turkey.

Article 168 of the Turkish Constitution stipulates under the subtitle “Exploration and exploitation of natural resources” that:

“Natural wealth and resources shall be under the authority and at the disposal of the State.  The right to explore and exploit these belongs to the State.  The State may delegate this right to persons or corporate bodies for a certain period.  Of the natural wealth and resources, those to be explored and exploited by the State in partnership with persons or corporate bodies, and those to be directly explored and exploited by persons or corporate bodies shall be subject to the explicit permission of the law.  The conditions to be observed in such cases by persons and corporate bodies, the procedure and principles governing supervision and control by the State, and the sanctions to be applied shall be prescribed by law.”

The above-mentioned State-ownership principle which has been specified in Article 168 of the Turkish Constitution, is also reiterated and confirmed in Article 4 of the Mining Law.  According to Article 4 of the Mining Law, mines are subject to the authority (i.e. are the property) of the (Turkish) State and are controlled by the State.  Moreover, according to the same legal provision, in Turkish law, mines are not subject to the ownership regime of the relevant plots/pieces of land where such mines are located (i.e. the owner of a plot/piece of land where a mine is located cannot own the respective mine and all mines are fully owned by the State).

Moreover, Article 1 of the Mining Regulation which was published in the Turkish Official Gazette dated 21 September 2017 and numbered 30187 also clearly states that mine resources belong under the authority and control of the State (in other words, are fully owned and controlled by the State) and are not the property of the landowners who own the relevant mining lands.

Therefore, in Turkish law, no private person or legal entity other than the State can claim legal ownership over a mine.  The ownership rights of a landowner where a mine is located does not encapsulate any property right over the relevant mine.  To the contrary, natural persons and legal entities can be granted so-called “mining rights” by the State which owns all the mines in Turkey.[1]

The General Directorate for Mining and Petroleum Affairs of the Ministry of Energy and Natural Resources (the “General Directorate”) which is the governmental agency that is authorized to regulate mining activities, grants natural persons or legal entities mining licenses for the exploration and operation of mines: namely, Exploration Licenses and Operation Licenses as well as Operation Permits.[2]  The person or entity which exploits a mine only gains ownership over the extracted mine ores which, legally, are deemed as movable property.  In any case, the mine itself always belongs to the State.

If the landowner of a piece of land where mining activities are to be carried out and the holder of the relevant mining license (Exploration License or Operation License) are one and the same person and/or legal entity, it can be concluded that the respective property owner would be legally entitled to use all his/its property rights arising from his/its ownership of the mining land, i.e. real estate in question.  Additionally, the said natural person or legal entity landowner who/which is simultaneously the mining license holder, besides being the landowner, would also be legally authorized to fully utilize all his/its legal rights arising from the Mining Law and other relevant legislation because of the mining license he/it holds.  The statutory rights which the Turkish Constitution and the Mining Law as well as other relevant legislation grant to a mining license holder are independent of the same person or legal entity’s landownership/property[3] rights which arise from the Turkish Civil Code number 4721 (the “Turkish Civil Code”).

Conflicts of Interest

However a conflict of interest might arise between the mining license (Exploration License and/or Operation License) holder and the relevant real property owner/landowner if they are not the same person or entity.  In such case, different legal tools are available to the parties such as the right to request the imposition of a right of easement (servitude) or right of usufruct from the General Directorate in accordance with Article 46 of the Mining Law.

Moreover, the respective mining license holder may also request the expropriation of the relevant piece/plot of land (i.e. real property) by the Turkish State from the Ministry of Energy and Natural Resources, also in line with Article 46 of the Mining Law.  In such case, the Ministry of Energy and Natural Resources will expropriate the mining land in question if the said ministry concludes that public interest exists for the expropriation of the relevant plot of land.

The landowner, in turn, might exercise his/its statutory rights and utilize the following legal tools which are available to him if his right of land ownership gets challenged by a mining license holder and if the holder of the relevant mining license uses the private property belonging to the said landowner without obtaining proper authorization: in such case, the landowner/property owner may file a so-called possessory action (in Turkish: el atmanın önlenmesi davası) pursuant to Article 683 of the Turkish Civil Code.  The said lawsuit provides the landowner with a legal remedy to aid in maintaining or restoring the landowner’s possession/ownership when there has been an infringement or disturbance by a third party (in this case, the relevant mining license holder) upon the landowners ownership rights.  In certain cases, the landowner might also a file a lawsuit for compensation against the infringing mining license holder.

Furthermore, according to a ruling by the Turkish Court of Cassation/Appeals (in Turkish: Yargıtay), the landowner might also ask a court for compensatory damages from the respective mining license holder in accordance with Article 69 of the Turkish Code of Obligations number 6098, if the landowner’s property suffers any structural damage due to mining activities which are carried out by the mining license holder.

[1] Article 3 of the Mining Law defines mining rights as permits which have been granted for the purpose of exploring, discovering, developing and operating mines as well as financial initiatives that can be granted to those who assist in locating mines.

^[2] Operation Permits are permits which are required for commencing the operation of a mine (i.e. taking into operation a mine).

^[3] The Turkish Civil Code was published in the Turkish Official gazette dated 8 December 2001 and numbered 24607.