3. The process for developing minerals and mining legislation
The following topics are covered in this section:
Legislative drafting approaches
Legislative drafting approaches
Each government should prepare legislation to accommodate its unique economic, social and political context, and with the overall aim of clearly communicating legislative guidance to all stakeholders. It is unlikely that one piece of legislation will achieve this objective and that, instead, a combination of legislation will best frame how the minerals and mining sector will operate, as shown in this table.
Just as one law cannot address all legal issues, even the most comprehensive of minerals and mining legislation cannot – and should not – address how every aspect mineral investments will be managed.
A combination of legislation will best frame how the minerals and mining sector will operate and ensure full coverage of the topics that are important to government, citizens and investors.
Generally, baseline legislation is established, followed by more comprehensive and detailed guidance or legislation.
See this table for some examples.
Typically, a first draft of legislation, particularly regulations and rules, will be prepared by experts engaged in the day-to-day implementation of the area it covers. Legal assistance may be provided but the technical expertise required to ensure full coverage is essential. Examples are provided in this table.
Intergovernmental-working group. Develop an inter-governmental working group, spearheaded by the lead government agency responsible for mining. This early institutional infrastructure will help to promote understanding, identify key issues, and build support for a policy tool that addresses many stakeholder needs to support successful implementation.
Map and Geological Data. Before and during the process of embarking on policy and legislative development relevant to minerals it is essential to have a general understanding of the mineral potential for the country. The location and general quality and quantity of reserves can provide basic guidance for policy and legislation-makers (e.g. the proximity of export routes, the type of equipment that may be required, potential environmental impacts).
Identification of Policy Issues. Before minerals and mining legislation is drafted, it is recommended that key legislative issues are identified that are relevant to the topic of the legislation. This is not an easy or quick process but helps to focus the issues and make decision-makers consider the consequences of possible legislative mandates.
Literature Review. Every government must develop its own set of Minerals and Mining Legislation principles, however, assessing “what’s out there” is a good first step to gaining insights to common and not so common issues that may be considered. A web-based literature review is a good first step to evaluating the policies pursued in other markets. In this instance, a combination of mineral and mining legislation review is recommended.
Note: It is important that the legislation reflects the actual market environment of the existing and planned-for mining jurisdiction and does not simply repeat other mining jurisdiction legislation. This will ensure that specific minerals and mining issues are reflected in legislation.
Draft Outline. A good first step in preparing the any level of minerals and mining legislation will be to prepare an outline or even a “Table of Contents” that clearly sets out the objectives of the legislation. With most legislation, developing a chapter by chapter approach to how legislative issues will be presented can help to organise the key content.
Included in each chapter may be sub-issues and specific legislative preferences of government. In some legislation, it is useful to divide content into clear “parts” under which multiple chapters and sections are included.
Distinguishing legislation from policy and strategy. A common result of legislative drafting is that the initial draft will include not only what may be typically considered as “legislation” but also “policy” and “strategy” directions. To ensure clarity in minerals and mining legislation, it is recommended that policy principles and strategy statements not be specifically stated in the legislation.
Legislative drafting. The drafting of minerals and mining legislation should be conducted by experts familiar with legislative drafting who have some understanding of the content. When a topic area is specific to a technical mine issue, for example, regulations may be prepared by Inspectorate staff, when a topic is specific to mining taxation, finance staff may prepare the draft. Ideally the drafting team will be a small working group of one to three people, but the technical inputs will require a variety of expertise on which the drafting team may call upon, for example:
Technical expertise (mining technology, exploration, exploitation)
Fiscal regime expertise (tax, customs, royalty, investment)
Environmental expertise (soil, water, air, mining methodologies)
Land use expertise (access, grazing/use issues)
Social expertise (community and economic benefits’ analysis, impacts)
Infrastructure expertise (transport, water, power)
Specific mining jurisdiction expertise (specific legal, fiscal, labour, community requirements, and other regulatory issues that should be harmonized)
“Upstream, mid/side-stream, downstream”. Understanding of what each phase of the minerals value chain requires will guide drafters on some fundamental issues. Some distinction amongst “upstream” (award of mineral rights/licences, actual exploration and exploitation), “mid/side-stream (transport, storage), and “downstream” (processing, cutting, exporting) issues is useful to address specific legislative issues adequately. What will the extent of legislative coverage be in each piece of legislation and what other legislation is required to cover various aspects relevant to optimizing the development of the minerals sector?
Institutional support. If viable institutions are not in place to implement minerals and mining legislation, the legislation will have diminished effectiveness. In preparing the legislation, it is essential to consider what government institutions, agencies and departments are presently in place, what additional support must be developed, and how will existing and new structures be harmonized. New skills and technical capacity will be required, i.e., to ensure transparent operations, to improve local participation, to manage revenues, to enhance technical inspections, etc. Minerals and mining legislation is an important starting point from which government can establish the institutional arrangements supporting the sector and to clearly define roles and responsibilities that may be further detailed in later legislative guidance.
Typically, there are four primary groups that should be consulted, through public and transparently conducted forums, ideally throughout the legislative drafting process. A list and description of these groups can be found here.
The role of media is important and should be considered in the legislative consultation processes. It is never too early for the responsible government agency to directly work with representatives from media to build their understanding of potential mineral sector developments and changes. Media training is recommended as well as regularised interaction with media covering the topic.
Government, notably the agency responsible for the development and regulation of the minerals sector, should be the driver and of legislative consultation processes. It is typical that at some stage in the legislative consultation process, additional government players including justice, finance, commerce and parliamentary levels will become involved and should be informed by legislative drafters of the rationale, intent and implementation potential of draft legislation.
How consultation is conducted will vary but most successful processes are regularised and generally will include:
Use of media through press releases and interviews with sector leaders to build awareness amongst the population.
Government meetings with leaders from various stakeholders as well as more broad meetings where larger membership may participate.
Publication of various documents explaining particular policy or legal developments that government is considering.
Workshops to improve stakeholders’ understanding of the developments and allow them to make informed decisions.
“Seeing is believing” – Government may facilitate site visits to active mine operations and present visual material (e.g. company videos on exploration and exploitation technologies and processes). These visits and viewings should not be limited to government representatives and should include key stakeholders.
Circulation of draft and final draft Minerals and Mining Legislation. It is advisable that draft and final draft stages of the Minerals and Mining Legislation be sent for a time-bound review by stakeholders. Comments will be accepted and available for public review to ensure transparent development of the law. Ultimately the role of legislative drafting and content is that of government’s but well-executed consultation processes have repeatedly proven to improve the environment for implementation of sector development and supporting legislation.