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Part A: General Topics | 3. Definitions/Interpretations

A key to clear and consistent drafting is the precise definition of terms and the consistent use of those defined terms. Most good mining laws contain in the initial or final chapter, extensive provisions setting out the precise definitions of important words or terms (which are usually capitalized), used in the law and the principles applicable in interpretation of the provisions of the law. Defined terms are particularly important where terms which might be employed in other relevant legislation may be used in the mining law but with a different meaning. For clarity, it is critical that words or terms, once capitalized and defined, be used consistently in their capitalized form throughout the law.

The definitions and interpretation chapter is normally the last part to be drafted as it seeks to explain and provide context for those words or terms as used in the law. Apart from the defined words and terms, the definitions and interpretation section may contain language that serve as guides to interpreting the mining law, especially where a country has no applicable interpretation laws or seeks to apply different rules of interpretation to the mining law.

3. Example 1:

Article [_] Definitions

(…)

“Development Minerals” means a subset of Minerals mined, beneficiated and consumed principally in domestic and regional markets as identified in the [Directive of the African Union Commission].

(…)

“"Mineral" means any substance, whether in solid, liquid or gaseous form, occurring naturally in or on the earth, formed by or subject to a geological process, but excluding petroleum as defined in the [Petroleum Act], and water as defined in the [Water Act].

(…)

Annotation

This suggested examples of a defined word/term demonstrate that defined words or terms should seek to be as precise as possible and should not use the definite word/term itself in the definition. Defined terms can be numbered but should definitely be alphabetically categorized.

3. Example 2:

Article [_]

(1) In this Act, unless the context otherwise requires —

(a) If for purposes of any provision of this Act any dispute arises as to the question whether any mineral falls within any group of minerals, the Minister shall have the power to determine in which group of minerals such mineral shall fall for such purposes, and any such determination shall be final.

(b) A word or term that is not defined in this [Law][Act][Code] and which is a word or term that is common in the international mining industry shall have the meaning that is attributed to it by the industry.

(c) When interpreting a provision of this Act, any reasonable interpretation which is consistent with the objects of this Act must be preferred over any other interpretation which is inconsistent with such objects.

Annotation

Drawn from Botswana’s mining law (1999), Namibia’s mining act (1992), Equatorial Guinea’s mining law (2006), South Africa’s mining act (2002), this is an example of an Interpretations section of the law which means that a word or term used in the law will have the meaning provided in the definitions unless the context in which the word or term is used requires that a different meaning is assumed. E.g. “mine” may be construed as a verb or noun depending on the context. Usually, it is clearer to indicate when the word or term has a defined meaning by capitalizing the word or term.

Paragraph (2) is also an interpretation clause that can provide further clarification on who may serve as an arbiter of right meaning should a dispute arise. Minerals are categorized into various groups according to definitions in the mining law. Defined categories include precious minerals, precious metals, industrial minerals, construction materials, etc. This example provides an arbiter in case a dispute arises regarding the categorization of a mineral and consequently proposes to resolve the issue without requiring an amendment of the law.

Paragraph (3) recognizes mining as an international activity and provides international industry norms as a general source than can serve as the arbiter for undefined terms and paragraph (4) seeks to promote interpretation of the law in accordance with the objects of the law. Thus, any interpretation of the mining law which is inconsistent with the objects (preamble or purpose in some laws) of the law is to be disregarded in favour of interpretations that are in accord with its objects.