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Part A: General Topics | 15. Implementing Regulations

In most jurisdictions, the mining law is not fully self-executing and requires the adoption and publication of implementing regulations. In cases where the law establishes principles to be fleshed out in the regulations, the latter may be quite extensive. In cases where the law itself is very detailed and largely self-executing, the scope of the implementing regulations may be limited to establishing forms for applications, reports, etc.

The Constitution may specify which matters can be established by regulation and which matters must be established by law. For example, usually taxes must be established by law rather than by regulation. Such restrictions must be respected.

As a general matter, it is desirable to set by regulation rules that may need to be changed in the foreseeable future, so that it is not necessary to seek an amendment of the law itself for that purpose. Laws that delegate extensive authority to the executive to establish the rules for mineral rights by regulation are often indicative of a lack of stability of the law. Mining investors have a strong preference for stable laws because of the long gestation period before mining investments become profitable, and the immobility of the assets. Furthermore, monitoring of the mining activities requires a stable regime as it takes time for the law to be comprehensively understood by the impacted communities and other stakeholders.

If regulations to implement the law will be necessary (as is the usual case), then the law should so state and authorize the executive power to enact those regulations, while limiting their scope. Regulations cannot legally contradict the provisions of the law or regulate matters outside the scope of the authority delegated in the law.

Ideally, regulations should be passed together with the law to ensure effective implementation of the law. Otherwise, a reasonable timeframe may be provided for issuing regulations to prevent significant delays that could affect effective implementation of the law.

15. Example 1:

Article [_]

Related matters which are not expressly provided for, defined or regulated by the provisions of the present [Code][Act][Law] shall be deemed to fall under the Mining Regulations.

Annotation

Drawn from DRC’s mining law (2002), this provision provides the scope of the regulation. The provision sets the scope of the regulation by stating in numerous articles of the law what additional details are to be established by regulation. The mining code of DRC defines the mining regulation as the group of measures for the execution of the provisions of the mining code, established by decree of the President of the Republic.

15. Example 2:

Article [_]

(1) The [Regulating Authority] may, by notice in the [Gazette], make regulations regarding –

(a)

(i) the conservation of the environment at or in the vicinity of any mine or works;

(ii) the management of the impact of any mining operations on the environment at or in the vicinity of any mine or works;

(iii) the rehabilitation of disturbances of the surface of land where such disturbances are connected to prospecting or mining operations;

(iv) the prevention, control and combating of pollution of the air, land, sea or other water, including ground water, where such pollution is connected to prospecting or mining operations;

(v) pecuniary provision by the holder of any right, permit or permission for the carrying out of an environmental management programme;

(vi) the establishment of accounts in connection with the carrying out of an environmental management programme and the control of such accounts by the [Regulating Authority];

(vii) the assumption by the State of responsibility or co-responsibility for obligations originating from regulations made under subparagraphs (i), (ii), (iii) and (iv) of this paragraph; and

(viii) the monitoring and auditing of environmental management programs;

(b) the exploitation, processing, utilization or use of or the disposal of any mineral;

(c) procedures in respect of appeals lodged under this [Act][Code][Law];

(d) fees payable in relation to any right, permit or permission issued or granted in terms of this [Act][Code][Law];

(e) fees payable in relation to any appeal contemplated in this [Act][Code][Law];

(f) the form of any application which may or have to be done in terms of this Act and of any consent or document required to be submitted with such application, and the information or details which must accompany any such application;

(g) the form, conditions, issuing, renewal, abandonment, suspension or cancellation of any environmental management programme, permit, licence, certificate, permission, receipt or other document which may or have to be issued, granted, approved, required or renewed in terms of this [Act][Code][Law];

(h) the form of any register, record, notice, sketch plan or information which may or shall be kept, given, published or submitted in terms of or for the purposes of this [Act][Code][Law];

(i) the prohibition on the disposal of any mineral or the use thereof for any specified purpose or in any specified manner or for any other purpose or in any other manner than a specified purpose or manner;

(j) the restriction or regulation in respect of the disposal or use of any mineral in general;

(k) any matter which may or must be prescribed for in terms of this [Act][Code][Law]; and

(l) any other matter the regulation of which may be necessary or expedient in order to achieve the objects of this [Act][Code][Law].

(2) No regulation relating to State revenue or expenditure may be made by the [Regulating Authority] except with the concurrence of the [Finance Regulating Authority].

(3) Any regulation made under this section may provide that any person contravening such regulation or failing to comply therewith, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding [six] months

Annotation

Drawn from South Africa’s mining law (2002), this example specifies the scope of regulations that the regulating authority is authorized to adopt. Significant aspects of this authorizing provision include:

  • The authority to make regulations is delegated to the regulating entity – not to the Government as a whole, the Prime Minister or the President, which assures the predominance of sectoral considerations;
  • The primary focus of the regulations is to be environmental protection;
  • General catchall provisions in subsections (k) and (l) expand the authority of the regulating entity considerably; and
  • Any regulation relating to State revenues or expenses requires the concurrence of the finance regulating authority.