1. The context for preparing minerals and mining legislation
The preparation and implementation of minerals and mining legislation is not conducted in a vacuum and should reflect the legislative context of the specific mining jurisdiction. Consideration needs to be given to certain fundamental issues in preparing and implementing legislation, including:
The legal system
Categories of legislation
The overall governance framework
International and regional commitments
See the following sections for details and illustrative examples.
The legal system and categories of legislation
Generally, there are three types of legal systems by which governments prepare legislation.
1. Common law - derived from custom and precedent
2. Civil law (Code Law) - historically influenced by the codes of ancient Rome. This codified legal system typically includes civil, commercial and criminal laws
3. Theocratic law - based on religious teachings
In some jurisdictions, a combination of these legal systems is in place.
The nature of the legal system will be a fundamental consideration in drafting legislation, as well as the requirement for coverage of the legislation in different categories of law.
Categories of law include:
1. Civil - a body of rules that delineate private rights and remedies and govern disputes i.e. in contracts, property, investment
2. Criminal - a body of rules that define and set forth punishment for those who commit crimes
3. Administrative / Public - law regulates operation and procedure of government agencies, the political and sovereignty capacity of a state, and governing relation between individuals and the government
4. Military - Law governing the armed forces
5. Religious - ethical and moral codes taught by religious traditions
It is essential that any legislative provisions applicable to mineral and mining activities are harmonised across all legislative categories, to ensure clear legislative understanding and enforcement.
Illustrative examples of how minerals and mining legislation may be applied across different legislative categories
A table that can be accessed here provides illustrative examples of how minerals and mining legislation can be applied across various legislative categories.
Overall governance framework
It is important to identify the overall governance framework in which minerals and mining legislation is to operate, as legislation fits into an overall governance framework on which government strategy is based.
Overall Minerals and Mining Governance Framework
+ Policy - Broad principals for mineral sector development
+ Law / Acts - Specific guidance for how the minerals sector will operate
+ Regulation, Rules - Very specific details on key aspects of mineral sector operations
= Strategy - What Government seeks to achieve by developing the minerals sector and how
Regional and international commitments
In addition to various economic, environmental, and human rights commitments, many regional and international programmes specific to minerals and mining developments have emerged. A list of these programmes can be found here. Mining jurisdictions which have entered into regional or international commitments need to consider how these obligations will be given effect in the preparation of legislation.
These regional or international programmes are included in the Guides section.