What it’s worth : A review of mineral royalty information

This is the seventh annual tabulation of royalty information. It is also the first year in which some data have been deleted to make room for new data. The concept of royalties evolved from a time when the government owned all of the land, including mines, to the situation where free miners won the right to claim minerals but paid a portion of their production to the royal treasury. Today, a mineral royalty is a payment to the owner of the mineral rights for the privilege of producing the mineral commodity. However, some people incorrectly believe that the selling price and the royalty are the same thing. The contract between the owner (lessor) and the mining company (lessee) is the mineral lease. Some clauses that are common to mineral leases include: identification of property, granting clause, reservations, definitions, royalty rate, taxes and title, indemnity, termination, inspection, assignability, successors, and reclamation. There often are variations in royalty rates for a given commodity that reflect differences in location, quality, market conditions or public versus private ownership. History In the time of ancient Rome, the government owned the mining properties by virtue of conquest. It would lease the mines to favored citizens who would pay rent to the State. Various conditions of sovereign ownership of both land and mineral rights continued in Europe until the Renaissance. As the laws evolved for land ownership by private citizens, the concept that minerals belonged to the State (King, Crown, sovereign) continued until about the 15th century. Free miners challenged the notion of sovereign ownership and won the right to discover and claim minerals. But a portion of their production had to be paid to the sovereign - a royalty. So, the original concept of a mineral royalty was a tax on production that was due to the Crown or Church. The term mineral royalty, as it is known today, is a payment to the owner of the mineral rights (formerly the royal owner) for the privilege of mining and producing the mineral commodity. The owner of the mineral rights, the lessor, and the mine operator, the lessee, enter into an agreement to mine the property. The agreement is the lease. While this concept is common, there are some who do not understand that the royalty is a portion of production paid to the owner as agreed on in the lease document. This author has seen reports where the selling price of a commodity has been quoted as the royalty. ("They get 70 cents a ton royalty at their pit and the guy down the road only has a 65 cent royalty.") These reports have been authored by people not familiar with the mining industry. Lease clauses In addition to the amount to be paid the lessor, there are several other items to be addressed in the lease agreement. The following list may not be all inclusive, but briefly describes most of the common clauses any good mining lease should contain. Identification: This opening clause names the owner (lessor) and the operator (lessee), the address of each, and gives the legal description of the property. Granting clause: This part of the lease gives the time period or duration of the agreement and information about renewal periods. It also has language about the exclusive right of the lessee to mine the property. Reservations: If the owner wants to exclude any portion of the property or set some specific conditions about the operation, there needs to be a clause that describes these reservations. Definitions: This section should address some of the technical terms that the lessor may find confusing - short tons versus cubic yards, dollars versus percentage of average selling price, any escalator indices such as consumer price index or producer price index, and material mined versus material sold. Royalty: This section spells out what the royalty rate will be, how often it will be paid, if there is an annual minimum, the pay dates, and how the records will be kept. This section also describes the conditions under which the lessee is exempt from the annual minimum - natural disasters, strikes, governmental actions, or other causes referred to as force majeure. Taxes and title: The lease needs to identify who is responsible for the property taxes, severance taxes (if applicable), and other taxes that relate to the mining activity - taxes on equipment, improvements, or stockpiles. This is a good place in the lease for the owner to certify his ownership of the property and its mineral rights and also certify that no other leases are in effect. The lessees may want language that allows them to pay mortgages or other debts on the property to keep their lease in effect. Indemnity: This portion of the lease identifies that the lessee assumes the risks for lessee's mining operation. Lessor should expect indemnification by the lessee through standard insur¬ance policies - workers compensation, liability and property damage. Termination: Both the lessor and lessee want language that will allow them to terminate the lease. This section of the lease describes the conditions under which one of the parties may terminate the lease (failure of the