DEVELOPMENT TRENDS IN SUBSOIL USE LEGISLATION OF REPUBLIC OF KAZAKHSTAN
Dautalinov A.M.
2nd year Master
student, Department of Customs, Financial and Environmental Law, al-Farabi Kazakh National University
With the acquisition by Kazakhstan of the sovereignty
and independence, with the development of market relations it has become
necessary to develop a fundamentally new policy of using the potential of the
mineral complex. As a result of political and legal reforms, the formation of
new financial and economic institutions were established more perfect system of
use of mineral resources and development on its basis of high-tech industry. A
certain political stability, availability of educated human resources, large
amount of accumulated and verified the geological information, and a liberal
legislative framework has allowed to create in the country favorable investment
climate. All this contributed already in the first years of independence to
attract substantial international investment and the conclusion of important
contracts for subsoil use the subsoil rich in oil, gas, coal and other mineral
raw materials.
The formation and development of Kazakhstan law on
subsoil and subsoil use is characterized by an active legislative process.
Adopted a number of important legislative acts aimed at regulating relations in
the sphere of subsoil use. So, on 30 may 1992 was adopted the Code of RK
"On subsoil and processing of mineral raw materials" [1], which
provided for the possibility of granting subsoil not only for Kazakhstan
business entities, but also for companies with foreign participation and
foreign legal entity and physical persons on the terms of the contract or
concession. Wherein, the subsoil was provided to the specified entities, on the
basis of the contract on subsoil use, which specifically provided: the terms
and conditions of subsoil use, environmental requirements, quotas on the annual
volume of used mineral resources, the timing of fees and payments for subsoil
use, measures for the protection of the subsoil, special conditions for the
applied technology, provide privileges, etc.
Subsequently, in accordance with the "Regulation on the procedure on
licensing of subsoil use in the Republic of Kazakhstan", approved by the
Resolution of the Ministry of RK dated August 8, 1994, then in accordance with the
regulations of the same name, approved by the Resolution of Kazakhstan Government
dated August 16, 1996 [2], all of the resources were used on the
license contract basis. However, this combined form of granting the rights has
complicated the relations between the state and subsoil users, which ultimately
led to the repeal of the licensing system.
In 1995-1996, the President of the Republic of
Kazakhstan N.A.Nazarbayev, understanding the
importance of development in the sphere of subsoil use for the country and
nation, guided by granted him emergency powers, issued a number of Decrees
having the force of law, which were the Foundation of the legal base for
regulation of relations in the sphere of subsoil use in the new market
conditions. Those Decrees: "On licensing" of 17 April 1995, "On
oil" dated June 28, 1995, "On subsoil and subsoil use" dated 27
January 1996, "On taxes and other obligatory payments to the budget"
dated 24 April 1995 and others. Further, the Decrees were amended and received
the status of the laws of the country, there was adopted a number of other
legislative, governmental and departmental legal acts that regulate the
complicated relations in the sphere of subsoil use [3, 86].
In this way, practically for ten
years, a solid Foundation for further systematic development of the law on
subsoil and subsoil use was created, which allowed rising to a new level the
degree of social relations in the sphere of development of mineral resources
and attracting investment in this sector of the economy [3, 87].
It is not a secret that up to the present time
"locomotive" of the economy is the primary industries of the state
against the background of high world prices for hydrocarbons, which has
developed in the result of an attractive investment climate and the existing
positive legal framework. The sphere of subsoil use in Kazakhstan remains a
priority, which development affects to achieve success of the entire economy of
our country. At the beginning of 90-ies of the last century, involvement of
foreign investments in the sphere of subsoil use has allowed to solve difficult
problems in conducting socio-economic transformation. Now, when the Republic of
Kazakhstan reliably strengthened its political and economic status throughout
the Eurasian region and has successfully developed market institutions, the
economy continues to be the basis of economic security of the country [4].
An independent analysis of the current Law "On subsoil and subsoil
use" dated 24 June 2010, conducted by experts from the world Bank and the
University of Dundee (UK), showed that from the point of view of investment
attractiveness the current legislation of the Republic of Kazakhstan in the
sphere of subsoil use is fragmented, contains many uncertainties and are
subject to frequent changes, it is difficult to understand by investors,
inefficient, over-regulated and-most importantly – does not match the current
form of economic organization of our country [5].
This is primarily due to the fact that the legal
regulation of this sphere has inherited the Soviet experience, based on command
and planned economy, and since its inception in the early 90-ies of the last
century, developed empirically, based on the current problems of the industry,
largely ignoring the realities of the market economy. The attention of the
legislator mainly focused on the development of previously explored field of
hydrocarbons and solid minerals.
Thus, there is no doubt that the current legislation
on subsoil and subsoil use, including in primarily the Law on subsoil, having
fully implemented entrusted the historical mission for the development of
previously discovered fields and the formation of a system of General
regulation of exploration and mining of solid minerals and hydrocarbons, needs
to be replaced with a new, more progressive, comprehensive and systematic
legislation.
As noticed the President of the Republic of Kazakhstan
N.A. Nazarbayev in his address to the Nation of
Kazakhstan from January 31, 2017 "in the context of global demand slowdown
it is critical to enter new markets and expand the geography of supplies. Much
attention shall be given to expanding the mineral resource base. Active
exploration is necessary to be held. Further development of these industries
should be strictly linked to the deepening of raw materials complex processing"
[6].
In the legal system these tasks are being solved by
the systematization of relevant legislation in the form of codification.
Codification involves the adoption of a consolidated codification of
legislation that would set new standards that meet the needs of social practice
that resolves the accumulated gaps and contradictions in legal regulation. The
codification of the law on subsoil and subsoil use also implies unification and
systematization the time-approved norms in the mining sector and clarification
of their content. This ensures maximum completeness of regulation of relations
arising in connection with the use subsoil and its resources.
Code adoption will help transform the sphere of
subsoil use, bring it to a qualitatively new level, will give its regulation
complex and systemic nature, thereby creating the conditions for long-term
growth.
List of references
1. The Code of RK "On subsoil and processing of mineral
raw materials" of May 30, 1992 (invalid).
http://adilet.zan.kz/rus/docs/K920001000_
2. "Regulation on the procedure on licensing of subsoil use in the
Republic of Kazakhstan". August 8, 1994 (invalid).
http://adilet.zan.kz/rus/docs/P940000886_
"Regulation on the procedure on licensing of subsoil use in the
Republic of Kazakhstan". August 16, 1996
(invalid).
http://adilet.zan.kz/rus/docs/P960001017_
3. Yelyubayev Zh.S. Problems of legal
regulation of subsoil use: domestic experience and foreign practice. Almaty: Êîëåñî, 2010. 452 p.
4. Yelyubayev Zh.S. Controversial issues
in the practical application of the legislation of the Republic of Kazakhstan
on subsoil use.
http://online.zakon.kz/Document/?doc_id=31508698
5. The concept of the project of code of the Republic of
Kazakhstan on “subsoil and subsoil use”.
6.
The President of
Kazakhstan Nursultan Nazarbayev’s
Address to the Nation of Kazakhstan. January 31, 2017.