LEGISLATIVE ENVIRONMENT FOR MINING AND OWNERSHIP ISSUES IN SADC REGION.

1.0 The Legislative Environment

Legislation regulates the behaviour of actors in any environment. Mining legislation in particular determines the way mining companies will behave and it also in the long run influences the level of investment in the sector. While investment is desirable it is also important to ensure that safety is a cardinal for people working in the industry.

A. Malawi

Mining activities in Malawi are regulated by the Mines and minerals Act 1981, the mines and Minerals (mineral Rights) Regulations 1981 and the Petroleum (Exploration and Production) Act 1983. In the Mines and Minerals Act, the entire property in, control over, minerals in land in Malawi are vested in the President on behalf of the people of Malawi. Since this legislation was passed under the Kamuzu regime, there has been an attempt to revise the law. After adopting the new constitution in 1995, the Mines and Minerals Act was also amended to include environmental concerns. The Act now requires that an Environmental Impact Assessment (EIA) be submitted to the Department of Research and Environmental Affairs for review with each mineral right application.

Malawi uses three types of mining licences. These include mineral permits or rights, exclusive prospecting licences and mining licences.

B. Namibia

The Namibian mining industry operates under the provisions of Minerals Act of 1992. This Act provides for issuance of Environmental Contracts, the production of Environmental Impact Assessments and production of Environmental Management Plans. Namibia also has environmental legislation enacted in December 2007. The Ministry of Environment and Tourism is responsible for implementation of the Act. According to Mote (2010), there is inadequate legislation to address mine closure, mine rehabilitation and after care. This is exemplified by the 240 abandoned mining sites where the responsibility for rehabilitation now rests with the State (Minerals Policy (2002).

C. South Africa

In South Africa, the constitution has included clauses aimed at protecting the environment for the benefit of future generations. Mining is regulated by several laws though. The most important are the Minerals Act (Act 50 of 1991) and the mine health and Safety Act (Act 29 of 1996). The general administration of the industry falls under the department of Minerals and Energy. The industry is also subject to the National Environmental Management Act of 1998. Most regulations affecting the industry are made under this law.

Under the Minerals Act, all operating mines are required to have an Environmental Management Plan (EMP). The EMP must be approved by the Department of minerals and Energy. The aim of the EMP‟s is to regulate the industry from the start to the end. This is referred to as the “cradle to the grave approach”. The EMP‟s are also supposed to assist companies in complying with the law. The EMP describes the pre-mining environment, the aim and description of the project, the environmental impact assessment (EIA) and an indication of how the impacts will be managed. Once approved by the Department of Minerals and Energy, the EMP becomes a legally binding document. If and when the EMP is violated, it is cause for suspension or withdrawal of the mining licence or even prosecution of the licence holder. The Mining Act also requires that all surface mining working areas be rehabilitated after mining has stopped. When mining has stopped, a closure certificate will only be issued after satisfaction that the EMP has been fully implemented.

The other important piece of legislation is the water permit which regulates water use and discharge. This must be obtained from the Department of Water affairs and Forestry. The water permit is important because one of the major operations in mining is dewatering. Tailings management and the management of dust and other emissions. There is also the Chamber of Mines code of practice for the rehabilitation of strip mining for coal drawn up in 1996.

The other piece of legislation important for the management of mineral resources in South Africa is the Mineral and Petroleum Resources Development Act of 2002. The main objective of the Act is to entrench the States role as owner and custodian of South Africa‟s mineral rights system so that all mineral rights are exclusively State owned and the government has greater authority in granting of legal rights on minerals and petroleum properties. The other dimension of the Act is to ensure that historically disadvantaged south Africans (HDSA) can start benefiting from the country‟s mineral wealth and resources.

Despite all these laws and regulations, there is still public concern about mining projects and their possible impacts on the environment. The impacts are discussed in another module.

D. Tanzania

Tanzania is currently supporting private sector-led mining development. The country formulated its Mineral Policy in 1997 to ensure that wealth generated from mining supports sustainable economic and social development and minimises adverse social and environmental impacts of mining activities.

Mining in Tanzania is regulated by the 1998 Mining Act and the Mining (environmental management and Protection) regulations of 1999. These Acts are administered by the Ministry of Energy and minerals. The Act also makes provision for the preparation of an Environmental Impact Assessment (EIA) for each mining project. The EIA must be approved by the government before the mining project can commence. The approval process of the EIA involves the consultation of regional and local authorities and the public. The EIA is then reviewed after every two years.

E. Zambia.

Zambia launched the national Conservation Strategy in 1985. before that mining companies had no obligation to conserve the environment. Thus the National Conservation strategy was the first step to protection of the environment. It laid the basis for future legislation. In 1990, the Environmental Protection and Pollution Control Act (Act N0. 12 of 1990) was enacted. The law provided regulations for environmental protection and pollution control as well as created supporting institutions including the Environmental Council of Zambia (ECZ). The ECZ has a broad mandate which include monitoring of possible environmentally damaging activities as well as demanding environmental impact assessment for each project.

In 1992, the ministry of Environment and natural Resources was established to reinforce compliance. In 1995, the government also passed the Mines and Minerals Act which regulates the mining industry. As far as the physical environmental impacts of mining are concerned, air and water pollution pose major problems. Air pollution includes dust from waste dumps and tailings and sulphur dioxide emissions from smelter stacks. There are other impacts of mining such as displacement of people (kansanshi), urbanisation and its demand for social services which if poorly provided leads to diseases such as cholera, dysentery and typhoid. The current scenario where essential services are no longer provided by the mining companies but by local governments has proved problematic.

The Mines and Minerals Act 1995 contextualises the legal framework in which all mine development is based. The mining regulations also provide the standards required to be followed in mining. In operational terms, mining regulations constitute the blue print of standards and guide on mine operations. These are contained in the Mining Regulations 1971 (Statutory Instrument N0. 107 of 1971) and Mining (Amended) Regulations 1973 (Statutory Instrument N0. 95 of 1973). These Acts and statutory instruments provide the legal framework for mine operations. The financial side of mining however is regulated by the Income Tax Act and its amendments

F. Zimbabwe

In Zimbabwe, mining is regulated under the Mines and Minerals Act (Cap 21 of 2005). The Minister of mines and Minerals development is responsible for the implementation of the Act. The Act provides for :

a) approval and issuance of exclusive prospecting licences

b) amendment, transfer, suspension and or cancellation or termination of such licences

c) registration of mining blocks and mining locations

d) issuance of mining leases and certificates of legislation

e) issuance of rights to erecting or removing of temporary buildings and structures

The Act also makes provision for environmental protection. The principle Act for environmental protection are contained in the Environmental Management Act (Cap 20). Zimbabwe has gone further to enact the Indigenisation and Economic Empowerment Act (Cap 14). The main objective of the Act is to make provision for the indigenisation of the mining industry. The spirit of the Indigenisation Act have filtered through the Mines and Minerals Act as amended in 2007. Some interesting provisions include clauses on ownership. That by the fifth year of operation after 2007, 26 percent of the shares of a mining company should be owned by the State or one or more indigenous Zimbabweans.

G. The Democratic Republic of Congo

The Democratic Republic of the Congo has various laws to regulate activities in the mining industry. The mining Code is one of the most recent developments for regulating the mining industry. Under the DRC‟s mining code, it is required to formulate an Environmental Management Plan before any mining project can be implemented. This must demonstrate how the company will manage or minimise possible damage to the environment through its activities. This is also supplemented by article 204 in the Mining code which states that „any applicant for an exploitation licence, an exploitation licence for tailings, a small scale mining exploitation licence or an authorisation for quarry exploitation must submit an impact study together with an environmental impact of the project before approval can be given.