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Part D: Environment - 38. Environment | 38.5 Conservation

This topic typically addresses general provisions regarding the protection of biodiversity, including animals, plants, and their habitat(s), through general prohibitions and/or regulation and permitting of any action that affects biodiversity. These provisions are particularly important when the activity at issue – like mining – has the potential to directly and indirectly make significant short- and long-term changes to the physical environment. The government should consider specific national laws, as well as obligations under international and regional legal instruments, with respect to this topic.

38.5. Example 1:

Article [_]

(1) Despite other legislation, no person may conduct commercial prospecting/reconnaissance, exploration or mining activities:

(a) In a special nature reserve or nature reserve;

(b) In a protected environment without the written permission of the [Regulating Authority] and [the Cabinet member responsible for minerals and energy affairs]; or

(c) In a protected area referred to in [relevant section].

(2) The [Regulating Authority], after consultation with the [Cabinet member responsible for mineral and energy affairs], must review all mining activities which were lawfully conducted in areas indicated in subsection (1)(a), (b) and (c) immediately before this section took effect.

(3) The [Regulating Authority], after consultation with the [Cabinet member responsible for mineral and energy affairs], may, in relation to the activities contemplated in subsection (2), as well as in relation to mining activities conducted in areas contemplated in that subsection which were declared as such after the commencement of this section, prescribe conditions under which those activities may continue in order to reduce or eliminate the

impact of those activities on the environment or for the environmental protection of the area concerned. (4) When applying this section, the [Regulating Authority] must take into account the interests of local communities and the environmental principles.

Annotation

Drawn from South Africa’s mining law (2002), this provision demonstrates a relatively straightforward way to draft a biodiversity conservation provision within a mining law. There are two general components: (1) a general prohibition of an activity within a specified area (designated as a nature reserve, for example); and (2) an exception from the prohibition provided that specific regulations, procedures, etc. are followed. The first component ensures that unregulated destruction or harm to biodiversity is generally illegal, thereby providing presumptive protection for the environment, and the second component allows for active government oversight over mining activities. This type of provision also requires the government to evaluate what areas require protection, to what degree, and what factors must be considered.

It is also important to specify and enforce penalties for violations of these provisions.

38.5. Example 2:

Article [_]

(1) No person shall at any time hunt, capture or destroy any of the species legally protected by the government.

(2) No person shall at any time, hunt or destroy:

(a) Young animals;

(b) Animals accompanied by their young;

(c) Any of the species protected by the government.

(3) Any person who contravenes any provision of the aforementioned regulation] shall be guilty of an offence and liable on summary conviction to a fine not exceeding [amount] or to imprisonment not exceeding [time period] or both.

Annotation

Drawn from Ghana’s mining law (2006), this provision is another relatively straightforward way to protect biodiversity and wildlife, either within a mining law or as a separate law or regulation. This approach focuses on a blanket prohibition of specific species or specified subgroups within species, as opposed to specifying protection of all species within a geographical area. This approach can be used either in combination with or in lieu of Option 2 above.

Similarly, language providing for non-prohibited harm or destruction of specific wildlife in Option 2 above could be incorporated with this Option 3. For example, the regulating authority could provide for some level of non-prohibited harm or destruction of specific wildlife or habitat to occur provided that the mining proponent obtains a permit and provides compensatory mitigation after review of the activity’s potential impact on such wildlife.