Analysis of the Mines and Minerals (Amendment Bill) 2015 By Lenin Tinashe Chisaira (Twitter: @LeninChisaira)Environmental Lawyer/Researcher, ZELAFor Presentation at the Publish What You Pay Zimbabwe CampaignMedia Sensitisation WorkshopMonomotapa Hotel, Harare/ 19 May 2016

Introduction

ZELAZELA is a public interest environmental law organisation, working with lawyers, economists, political analysts, journalists for the protection and conservation of the environment.www.zela.org @ZELA_Infor Mines and Minerals Amendent BillPurpose of the Bill is to amend the Mines and Minerals Act [Chapter 21:05]First Draft – 20 July 2015Second Draft – 28 July 2015

Some Questions???

Is there a separation of powers in granting title? Is the mineral licensing regime competitive and clear? Can Parliamentary veto a granted right or title? Does the law address the rights of small scale and artisanal

miners, informing them about both their rights and responsibilities?

Does the law contain provisions on relocation of communities including upholding the rights of community members in mining communities?

Does the law provide for environmental protection?

Zimbabwe Environmental Law Associaion (ZELA)

General Issues- Mining Titles & RightsSection 14 of the Billmining title” means— an exclusive prospecting licence; or an exclusive exploration licence; or special grant for exploration.

General Issues- Mining Titles & Rights“mining right” means— (a) a certificate of registration of a block of precious metal claims; or (b) a certificate of registration of a block of precious stones claims; or (c) a certificate of registration of a block of base mineral claims; or (d) a certificate of registration of a site mentioned in section 47; (e) Special mining lease; or (f) Mining lease; or

1 :Mining Titles & Rights use it or lose it principle. Section 19 - first come first serve basis. FALLS SHORT: Introduction of competitive bidding process for

exploration licences making competitive tenders the norm.

Title Minerals Area

Requirements

Granting Authority

Duration

Exclusive Prospecting Licence

Minerals and mineral oils, Natural Gas, nuclear energy minerals

4 blocks within area specified

Over 18 Permanent residentCompany registered in ZimbabwePBC ActForeign company registered under Companies act

Cadastre Registrar 12

months

Exclusive Exploration Licence

Coal, Minerals Oils and Natural Gases

Precious stones excluding diamond

Any other

130000 ha

2600ha

65000ha

Any personpay the prescribed application fee to the Cadastre Registrar; andfurnish the Board with such information as to—his or her financial status; andthe minerals which he or she wishes to explore; andthe nature and extent of the exploration operations he or she intends to carry out within the exclusive exploration reservation; andMin area 2600ha

MAB Maximum 3 years can be extended once not more than 3 years

Mining RightsName Area Requirements

Authority Duration

Mining leases

4 or more contiguous blocks

Cadastre registrar after authorisation of the president

25 years can be transferred to a person approved by the Board

Special Mining Lease

4 or more contiguous blocks

President 25 years

A crowded field of many players??

Cadastre Registrar (Mining Commissioner) Minister MAB PresidentUnclear provisions and terms to be met e.g. National interest provision for granting of EEL

2:Composition of Mining Affairs Board Section 7: Secretary, Principal Directors, Dir of Geological Survey, two

Ministry officials, six others (Chamber of mines-2, Small –scale miners -1,farmers-1,ICAZ-1,professional-1)

Need for opening up for other persons not members of the Board to sit in Committees, .e,g. Civil Society, media, labour unions and academia to be included in the Mining Affairs Board-

in Ghana a committee established to monitor management of oil revenue includes all these constituencies

3:strategic minerals Section 5A- mineral deemed strategic on account of their importance

to economic, social, industrial and security development of the country

3) Unique conditions as may be provided for under this Act shall attach to the exploration, ownership, exploitation, beneficiation, marketing and development of the minerals - non exclusive right to mine strategic minerals

4 : Split licensing regime

Mines Bill- President, MAB, Cadastre Registrar, such a split licencing regime also presents administrative challenges

and leaves loopholes for manipulation, corruption and ineffective use of already scarce resources

Solution….model contract

“A purposeful government that acquires the expertise to deal foreign companies on its own terms need not have a fear of domination by foreign companies, however large they may be. The important word is purposeful – and I believe our government has been able to put together strong negotiation teams, has backed them up with well-worked out negotiation mandates, and has then overseen the implementation of our major agreements with detailed care as well.” - Masire, late Vice-President of Botswana and first Minister of Finance and Development Planning.

5: Mining and farming

Relocations -the Rural District Councils are expected to express the communities’ voice and concerns on many issues including relocations related to Communal land

Falls short…Free, prior and informed consent (FPIC)

Mining and farming (Cont’d)Compensation Section 65-compensation for prospecting within 9 metres of a

permanent farm building except on payment of agreed compensation Section 85 - owner or occupier of ground who is injuriously affected.

Compensation

Section 72 asw 74 82 (5) to resolve farmer-miner conflicts, miners be compelled to buy the land on which they propose to mine. It must be noted that for land under a 99 year lease, the farmer will be compensated for the value of improvements made on the land and the prospective economic loss to the farmer based on previous performance. In order to for a land owner on communal land or private land to benefit from this clause they will have to register the land as arable land as per Section 77 of the Bill

Miner farmer relations

Section 85 of the Bill places a requirement on a miner to fence off his mining location

clauses are likely to only be applicable to private landowners. - where the miner fails to fence off it is highly unlikely that communal land occupiers would have the wherewithal to fence off the mining location, let alone recover the cost from the miner.

6:Environment Matters EPL subject to environmental considerations s20(4)(d) EEL authorised by the President before EIA report is provided

by EMA Section 257 states that the Cadastre Registrar shall take into account

the need to conserve the natural resources in deciding whether or not to grant a mineral right or title. –EIA

Directors and members of corporations to be held responsible -PPP

Environment (Cont’d) Polluter-Pays

The Bill goes further and states that the directors of a company or members of a close corporation or syndicate are jointly and severally liable for any unacceptable negative impact on the environment, including damage, degradation or pollution advertently or inadvertently caused by the company or close corporation or syndicate which they represent or are represented

Environment (cont’d) Riverbed Mining Riverbed Mining Second Schedule sets out standards for Riverbed mining

Environment: SHR Fund

Safety, Health and Rehabilitation Fund Section 48 of the Environmental Management Act provides for the

establishment of an Environmental Fund

7. Indigenisation and Value addition

Section 307 of the Bill - no mineral shall be exported raw or unprocessed - The Minister can prescribe exemptions and applicable taxes Section 393 of- no shareholder of a company holding a mining right or title shall sell,

dispose of or transfer a Zimbabwe registered security to a non-indigenous person without the written approval of the Minister thereof

- -local financial institutions

8. Local Content

no clear provisions on local content Operational and mine development commitments-the proposed

legislation must contain provisions for local content, i.e. local procurement, local employment and infrastructure development.

Local Content (cont’d)

Botswana (1) The holder of a mineral concession issued under this Act, shall, in the conduct of his operations under such concession, and in the purchase, construction and installation of facilities, give preference, to the maximum extent possible consistent with safety, efficiency and economy, to— (a) materials and products made in Botswana; and (b) service agencies located in Botswana and owned by Botswana citizens or bodies corporate established under the Companies Act. (2) The holder of a mineral concession shall, in all phases of his operations, give preference in employment to citizens of Botswana to the maximum extent possible consistent with safety, efficiency and economy. (3) The holder of a mining licence shall, in his operations, conduct training programmes in consultation with the Minister for the benefit of employees so that such employees may qualify for advancement.

Zimbabwe Environmental Law Association (ZELA)

9. Women’s rights

Section 6 of the Bill that deals with the establishment of a Mining Affairs Board provides for 50% representation from women on the Board.

Besides this provision, there seems to be nothing to proactively promote women’s participation in the mining sector.

10.Children’s rights

Section 403 of the MMAB states that the Minister shall revoke any mining right or title once the holder contravenes the provisions of the Labour Act [Chapter 28:01] in relation to child labour.

11.Artisanal and Small Scale Mining sector As noted in the AMV, artisanal and small-scale mining represents a

special challenge, and as such different and tailor-made approaches to address the challenges peculiar to the sector should be proposed.

The MMAB might also need to pay special attention to ASM given its centrality to gold production in the country, the levels of employment in the sector and the need to effectively regulate the sector.

Zimbabwe Environmental Law Association (ZELA)

recommendations

Transparency and information disclosure. Clarity on environmental funds Clarity on rural development levies (Sec 75 vs 95/96 of RDC Act)

Zimbabwe Environmental Law Association (ZELA)

Other Questions

Where is the role of Parliament?-contract negotiation, disclosures What of annual reports or audit reports to the PPC on Mines

and Energy and/or PPC on Public Accounts?

Some Questions???

Is there a separation of powers in granting title? Is the mineral licensing regime competitive and clear? Can Parliamentary veto a granted right or title? Does the law address the rights of small scale and artisanal

miners, informing them about both their rights and responsibilities?

Does the law contain provisions on relocation of communities including upholding the rights of community members in mining communities?

Does the law provide for environmental protection?

What’s the role of Journalists in Mining Communities?

Thank You