2. Instruments regulating the mining sector
A Department of Inspectorate exercises authority on behalf of the state to ensure that operators comply with policy, legislation, regulation and the terms of mining licences or contracts. The instruments which the sector is regulated may vary between countries but will typically include:
- Mining law
- Other legislation
- Licenses and contracts
Explanatory notes and typical examples on each of these groups of instruments are given in the following pages.
The importance of effective legislation
The effectiveness of an inspectorate department is highly dependent on the existence and quality of enabling legislation. Provision should be made in legislation and regulations to empower inspectors to audit and inspect mining operations without obstruction, to give instructions within well-defined parameters to mine managers and officials and to impose or at least recommend penalties for non-compliance with regulations, contracts and lawful instructions.
Mining is primarily governed by mining law. The application of mining law is closely linked to the definition of “mineral” in the law. For example, coal oil and gas may be considered minerals in some countries and may therefore be the responsibility of the Ministry of Mines, but may be excluded in other countries.
The primary ministry responsible for administering mining law may be known differently in different countries. In this overview, it is referred to as the Ministry of Mines.
It is essential to be aware that mine operators are required to comply with ALL laws, not just the Mining Law. Other relevant legislation may include acts governing environmental protection, the use of land, water and energy resources, social protection, finance and taxation, customs and immigration and many other areas.
Monitoring of compliance with the full range of applicable legislation may be the responsibility of many different authorities at a national and local government level. The Ministry of Mines may have limited jurisdiction but may have a co-ordinating role between these authorities and an obligation to provide them with information and other forms of assistance.
Efficient co-ordination between authorities, together with simple, centralised structures create an investor-friendly environment which is attractive to companies.
Usually, regulations are in place to specify detailed requirements for complying with the law. As with the law, various authorities may be responsible for monitoring compliance with different regulations.
Mines inspectorates within the Ministry of Mines are usually delegated to enforce compliance with Mining Regulations. In some cases, there may be other regulations within their portfolio, for example, separate explosives regulations.
Other authorities such as a Cadastre Department may be responsible for aspects of the same instrument, for example aspects of mining regulations. Co-operation between different authorities is therefore essential.
Licenses or contracts
Mine operators act under formal authorisation from host governments, which may be in the form of licenses, contracts or both.
Authorities including Mining Inspectorates are responsible for enforcing compliance with the terms and conditions of mining licenses, which may be more detailed than, or additional to, the provisions of laws and regulations.
Contracts between governments and investors or mine operators may be the primary instrument granting mineral rights to an operator or may be supplementary to laws, regulations and licenses.
Contracts may govern many aspects of mining projects and operations, including timelines for mine construction and exploitation, production facilities and volumes, financial arrangements such as royalties and taxes, technical and environmental standards, employment conditions, procurement of materials and equipment and closure and rehabilitation.