WHAT IS THE PENALTY FOR VIOLATIONS OF REGULATIONS ON ILLEGAL SAND MINING?

Recently, some provinces have seen an increasing number of “sand mafia”, losing a large amount of sand, leading to erosion of the bottom and exposing other shallow areas in the upstream area. In addition, the river has subsided, exposing the foot of the construction and quickly causing damage, causing landslides, affecting people’s lives.

Table of Contents:

1. What is mineral exploitation?

2. What is the penalty for violations of regulations on illegal sand mining?

2.1 Administrative sanctions

2.2 Criminal sanctions

1. What is mineral exploitation?

Pursuant to Clause 1, Clause 5, Clause 7, Article 2 of the Law on Minerals 2010, the provisions on the concept of minerals, mineral activities and mineral exploitation are as follows:

1. 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.

5. Mineral activities include mineral exploration and mineral mining activities.

7. Mineral mining means activities to recover minerals, including mine infrastructure construction, excavation, classification, enrichment and other related activities.”

Simultaneously, according to Clause 2, Article 3 of Decree 36/2020/ND-CP on administrative sanctions for violations in the field of water resources and minerals, there are regulations on mineral exploitation areas as follows:

“mineral mining area” refers to a space within the boundary of a mine defined in the investment project/technical- and economic-based mining report suitable for the permissible mineral reserves included in the mining design within the boundaries of coordinates, area and depth stated in the mining license.”

2. What is the penalty for violations of regulations on illegal sand mining?

2.1 Administrative sanctions

When an individual or legal entity exploits sand and gravel from rivers, streams, or lakes without a mineral exploitation license from a competent state agency and does not reach the level of criminal prosecution, that individual or legal entity will be subject to administrative sanctions according to Article 48 of Decree 36/2020/ND-CP on administrative sanctions for violations in the field of water resources and minerals, which stipulates the mineral exploitation area as follows:

Article 48. Violations against regulations on mining of river, stream and lake sand and gravel without obtaining a mining license from the competent authority

1. Fines shall be imposed for mining sand and gravel within the safety perimeters of irrigation works; safety corridors of channels; safety perimeters of channels or inland waterway infrastructure works without obtaining the mining license from a competent authority. To be specific:

a) 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 less than 10 m3;

b) A fine ranging from VND 30,000,000 to VND 50,000,000 shall be imposed if, at the time of discovering the violation, the total volume of mined minerals is from 10 m3 to less than 20 m3;

c) A fine ranging from VND 50,000,000 to VND 80,000,000 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;

dd) A fine ranging from VND 80,000,000 to VND 100,000,000 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;

dd) A fine ranging from VND 100,000,000 to VND 150,000,000 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;

e) A fine ranging from VND 150,000,000 to VND 200,000,000 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 sand and gravel outside the safety perimeters of irrigation works; safety corridors of channels; safety perimeters of channels or inland waterway infrastructure works without obtaining the mining license from a competent authority. To be specific:

a) 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 less than 10 m3;

b) 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 10 m3 to less than 20 m3;

c) A fine ranging from VND 30,000,000 to VND 50,000,000 shall be imposed if, at the time of discovering the violation, the total volume of mined minerals is from 20 m3 to less than 30 m3;

dd) A fine ranging from VND 50,000,000 to VND 70,000,000 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;

dd) A fine ranging from VND 70,000,000 to VND 100,000,000 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;

e) A fine ranging from VND 100,000,000 to VND 150,000,000 shall be imposed if, at the time of discovering the violation, the total volume of mined minerals is at least 50 m3.

3. Additional penalties:

Confiscate all cash-equivalent minerals; confiscate instrumentalities used for commission of violations if any of the violations prescribed in Clauses 1 and Clause 2 of this Article is committed.

4. Remedial measures:

The violator is compelled to:

a) improve and remediate the environment; adopt measures to bring areas where the mining was carried out to safe state; compensate for and pay the costs of repairing damage caused by the violations to dykes, other technical infrastructural constructions and civil constructions;

b) pay the costs of expert examination, verification and measurement if any of the violations mentioned in Clauses 1 and 2 of this Article is committed.

The maximum fines for the violations specified in Clause 1 of this Article 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 3 of this Article.”

2.2 Criminal sanctions

Individuals and legal entities who exploit sand and gravel from rivers, streams and lakes without a mineral exploitation license from a competent state agency and meet the elements of a crime will be criminally handled according to Article 227 of the 2015 Penal Code, amended and supplemented in 2017 as follows:

“Article 227. Offences against regulations on survey, exploration and extraction of resources

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 or recommits this offence despite the fact that he/she has incurred an administrative penalty or has an unspent conviction for the same offence 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:

a) The illegal profit from survey, exploration, extraction of water resources, petroleum or other resources is from VND 100,000,000 to under VND 500,000,000;

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

c) The offence causes 31% – 60% WPI for a person.

d) The offence causes a total WPI of 61% – 121% for more than one person;

dd) The offender incurred an administrative penalty for any of the offences specified in this Article or has an unspent conviction for the same offence .

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:

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

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

c) The offence is committed by an organized group;

d) The offence results in an environmental emergency;

dd) The offence results in the death of a person;

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

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

4. A commercial legal entity committing the crime specified in this Article shall be punished as follows:

a) 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;

b) 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;

c) 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, the crime of violating regulations on mineral and resource exploitation can be fined up to VND 1,500,000,000 and imprisoned up to 7 years for individuals. In case a legal entity commits this crime, it can be fined up to VND 7,000,000,000, banned from doing business, banned from operating in certain fields or banned from raising capital from 01 year to 03 years.