Mining and Sustainable Development II - DTIE

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Mining Environmental regulation Six of the countries studied in detail require those who apply for small-scale mining rights to incorporate environmental protection plans that must be approved before a license is granted. Another four have addressed specific environmental problems associated with mining through specific provisions in the legislation itself. Some countries require bonds to be deposited in case of environmental damage, while Ghana and the Philippines levy a tax on small-scale mining output that is used to rehabilitate areas affected by the mines. Health and safety The Philippines is the only country studied that has separate safety regulations for small-scale mining, and this regulation was adopted only in 1997. Elsewhere, this matter is mostly covered by general health and safety legislation. Marketing There is no common approach to regulating the marketing of mineral products. Whilst a few countries have government controlled buying or licensing of traders, others include permission to market or export minerals as part of the individual license or permit to mine. Penalties and incentives A variety of penalties are in place for infringements of the laws. They range from cancellation of licenses to fines and imprisonment. Incentives are less common but include tax and royalty exemptions and government grants for prospecting. Decentralized regulation In five countries, local government is involved in regulation, either by issuing licenses or even managing the mineral resource itself. Licensing Systems Individual countries may have several types of licensing arrangement. The study identified six main forms. ◆ Informal. The laws allow mining without the need for separate applications. Landowners and indigenous people are the main beneficiaries of such provisions. Many countries’ arrangements include some form of this. ◆ Strata. Rights are provided to a certain depth. Five of the countries issue such licenses but the permissible depths set vary greatly. ◆Group. This simplified system giving rights over a specified area to cooperatives or other associations is used in the Philippines and for alluvial (riverbed) gold mining in Zimbabwe. ◆By type or name of mineral. This is the most common kind of license, especially for gold, diamonds and gemstones. ◆ Staggered and single. Most countries issue single licenses to cover exploration, development, extraction, processing and marketing. This is a simple process and is the most appropriate for small-scale mining. However, three countries issue separate licenses for each stage in a process (known as staggered licenses), a procedure that is normally Miners hoisting ore near Toma, northeastern Burkina Faso: There are few safety precautions with such operations. adopted only for large-scale mining. ◆ National systems. In every case except one, there is a single licensing system for the whole country, although this can be managed at local level. The exception is Brazil, where individual states can issue their own regulations and licensing procedures. In addition, there are three other key features of mining licenses; ◆ Duration. Most countries provide only shortterm licenses, for one to two years. Zambia and Ethiopia are the most notable exceptions, offering 10-year licenses. ◆Area. Most countries provide licenses for an area of 20 hectares or less; the area may vary according to the type of mineral being mined and the legal personality of the applicant. ◆Transfers of ownership. Small-scale mining licenses are normally treated as transferable assets. Impact of Regulations There is very little information on the impact of legislation. The accounts that are available are inconclusive. In Ghana, it does appear that a combination of new legislation (in 1986) and the subsequent establishment of systematic support to the sector did boost exports of some precious minerals and may have created several thousand jobs. In Brazil and Zimbabwe, however, it has been claimed that recent legislation has not led to significant improvements in the social and environmental consequences of small-scale gold mining. Difficulties in Legislating The main problems in legislating for small-scale mining operations occur in situations where large companies already hold permits to prospect in the areas concerned, or where permits for large-scale mining are granted in places where small-scale 52 ◆ UNEP Industry and Environment – Special issue 2000
Mining miners are already at work. Where governments have addressed the problems, it has generally been by encouraging the large companies to allow small-scale miners to work parts of the claim. In many countries it is mandatory for holders of large mining concessions to gradually reduce the size of their concessions as explorations progress: small deposits of no interest to the license holders then revert back to the government which can make them available to small-scale miners. There appear to exist conflicting provisions in some countries’ mining laws. The research indicates that external assistance is still needed to strengthen local capacities in drafting such legislation. South America: entire families are involved in small-scale mining Concluding Remarks Five main conclusions may be drawn from the study: ◆All of the 18 countries investigated in detail recognize the importance of the small-scale mining sector and the need for an appropriate regulatory framework. ◆ Most of the major issues to do with small-scale mining – including illegal trading, health and safety, environmental degradation, and taxation; but not labour matters – are addressed by the legislation. However, more research is needed to determine how effective such measures have been. ◆The current trend in policy making is to encourage integration into the formal mining industry. In general, though, promotion of the mining sector in developing countries remains biased towards large-scale mining, with the aim of attracting foreign investment. ◆ Large proportions of small-scale miners continue to operate outside the regulatory framework. This suggests that they do not see advantages from the legislation, or that legal and regulatory provisions are inappropriate, or that the institutional capacity to implement such provisions is lacking. ◆ Small-scale mining is generally seen as a national industry that should remain in the hands of nationals of the country concerned. However, the principal motive of some countries in legislating for the sector is to regulate or control rather than encourage it. This is reflected in restrictions on the use of explosives and machinery, the short duration of licenses and the limited depth allowed for underground workings, as well as in the lack of secure tenure for small-scale miners. Such provisions constrain technological and operational improvements, and discourage planning, enterprise and protection of the environment. The project has succeeded in its aim of making a preliminary assessment of the subject but more research will be needed before ‘good practice’ recommendations for small-scale mining legislation can be developed. This research should include field observation and data gathering in-country (to compensate for the paucity of documentary evidence) and should incorporate the following aspects in particular; ◆ Countries in Latin America, Francophone Africa and North Africa and the Middle East. ◆ Understanding of the links between small-scale mining legislation and other laws (for instance, those on environmental protection). ◆ The institutional and administrative capacities of government agencies required to implement legislation. ◆ The effectiveness and respective advantages of different licensing systems that have already been adopted (including those in North America). ◆ The influence of different stakeholders on the development of legislation. ◆ Regulatory frameworks’ effects on particular groups of miners (including particularly gender differences). Notes 1 Brazil, Burkina Faso, Chile, Ethiopia, Indonesia, Ghana, Guinea, Guyana, Laos, Mozambique, Malawi, Namibia, Papua New Guinea, Philippines, Tanzania, Uganda, Zambia, Zimbabwe. 2 There is very little information on the historical development of policy although the documents do indicate a growing consensus on the need to legalize and formalize small-scale mining. To obtain a copy of the full report (35 pp.), please contact Edmund Bugnosen at 73 Devonshire Road, London E17 8QH, U.K. ◆ UNEP Industry and Environment – Special issue 2000 ◆ 53
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