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Part D: Environment - 38. Environment | 38.9 Enforcement and Non Compliance

In addition to setting out the environmental obligations of mineral rights holders, a mining law should provide for a specific mechanism by which the government may oversee mining operations and compel mineral rights holders to follow through on those obligations and correct environmental problems through enforcement actions.

Many countries provide the government with a general authority to enforce the violation of any requirement, which may include environmental protection requirements. The effect of noncompliance can range from loss of the mineral right to civil liability to imprisonment of the mineral rights holder.

The penalties should be commensurate with the damage caused by taking into account the various types of applicable sanctions (administrative, criminal, civil), as well as affirmative environmental obligations. They should also be significantly dissuasive enough to avoid paying penalties being less costly than remediation of damage.

Companies should be encouraged to establish internal or community-level grievance mechanisms to facilitate the compliance with environmental regulations. Existing procedural rules should be applied for discovery of non-compliance or where rules do not exist, government should create general rules for such cases.

38.9. Example 1:

Article [_]

(1) The [Regulating Authority] may cancel or suspend any reconnaissance/prospecting right, exploration right, mining right or retention permit if the holder thereof:

(a) Is conducting any reconnaissance/prospecting, exploration, or mining operation in contravention of this [Act][Code][Law];

(b) Breaches any material term or condition of such right, permit or permission;

(c) Is contravening the approved environmental management program; or

(d) Has submitted inaccurate, incorrect or misleading information in connection with any matter required to be submitted under this [Act][Code][Law].

(2) Before acting under subsection (1), the [Regulating Authority] must:

(a) Give written notice to the holder indicating the intention to suspend or cancel the right;

(b) Set out the reasons why he or she is considering suspending or cancelling the right;

(c) Afford the holder a reasonable opportunity to show why the right, permit or permission should not be suspended or cancelled; and

(d) Notify the mortgagor, if any, of the reconnaissance/prospecting right, exploration right or mining right concerned of his or her intention to suspend or cancel the right.

(3) The [Regulating Authority] must direct the holder to take specified measures to remedy any contravention, breach or failure.

(4) If the holder does not comply with the direction given under subsection (3), the [Regulating Authority] may act under subsection (5) against the holder after having:

(a) Given the holder a reasonable opportunity to make representations; and

(b) Considered any such representations.

(5) The [Regulating Authority] may by written notice to the holder lift a suspension if the holder:

(a) Complies with a directive contemplated in subsection (3); or

(b) Furnishes compelling reasons for the lifting of the suspension.

Annotation

Drawn from South Africa’s mining law (2002), this provision empowers the regulating authority to terminate or suspend the mineral right in the event that the rights holder fails to comply with any requirement under the mining law, including environmental obligations. The rights holder may be directed to take certain corrective actions to remedy the environmental issues. The rights holder is also afforded the opportunity to present its case to the regulator as to why the right should not be ended.

This language is oriented toward motivating the rights holder to perform the work itself, rather than having the government assume the responsibility. The threat of rescinding the right is used to encourage the rights holder to comply with the government’s directions.

38.9. Example 2:

Article [_]

(1) The [Regulating Authority] may, with due regard to good reconnaissance/prospecting practices, good exploration practices or good mining practices by notice in writing addressed and delivered to the holder of a mineral license, give directions to such holder in relation to -

(a) The carrying on of reconnaissance/prospecting operations, exploration operations and mining operations, including the erection or construction of any accessory works;

(b) The protection of the environment;

(c) The conservation of any natural resources, including mineral resources, and the prevention of the waste of such resources;

(d) The construction, erection, maintenance, operation or use of accessory works;

(e) The removal of accessory works or other goods erected, constructed or brought on land in connection with the prospecting for, the exploration for, or mining or conveyance of, any mineral or group of minerals which is not used or intended to be used in connection with such prospecting, mining or conveyance;

(f) The discovery of any mineral or group of minerals;

(g) The taking, preservation and furnishing to the [Regulating Authority] of cores, cuttings or samples of any mineral or group of minerals obtained or which may be obtained in the course of reconnaissance/prospecting operations, exploration operations and mining operations;

(h) The submission to the [Regulating Authority] of reports, returns and other information, and the [Regulating Authority] may, if such holder fails to comply, within such period as may be specified in such notice or such further period as the [Regulating Authority] may on good cause shown allow in writing, with such directions to the satisfaction of the [Regulating Authority], cause such steps to be taken as may be necessary to comply with such directions, and may recover from such holder in a competent court the costs incurred in connection with the taking of such steps.

(2) Any holder of a mineral license who contravenes or fails to comply with a notice issued under subsection (1) shall be guilty of an offence and on conviction be liable to a fine not exceeding [fine amount] or to imprisonment for a period not exceeding [12 months] or to both such fine and such imprisonment.

Annotation

Drawn from Namibia’s mining law (1992), this provision, like South Africa’s in Example 1 above, permits the government to issue directions to rights holders for environmental protection purposes. The government has expansive powers to order corrective action and, if the rights holder fails to comply, recover the costs associated with the government performing the corrective work itself. Noncompliance is subject to civil and criminal penalties.

Whereas the primary threat to the rights holder in Example 1 is the loss of the mineral right, Example 2 directly raises the prospect of criminal penalties, including jail time, and the monetary costs of clean-up.