The Law and Governance of Mining and Minerals

A Global Perspective

Ana Elizabeth Bastida

• Publisher: Hart Publishing
• Year: 2020
• Print ISBN: 9781509942589
• eBook ISBN: 9781782255680
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

This book explores a disciplinary matrix for the study of the law and governance concerning mining and minerals from a global perspective. The book considers the key challenges of achieving the goals of Agenda 2030 and the transition to low-carbon circular economies. The perspective encompasses the multi-faceted and highly complex interaction of multiple fields of international law and policy, soft law and standards, domestic laws and regulations as well as local levels of ordering of social relations. What emerges is a largely neglected, unsystematised and under-theorised field of study which lies at the intersection of the global economy, environmental sustainability, human rights and social equity. But it also underlies the many loopholes to address at all levels, most notably at the local level – land and land holders, artisanal miners, ecosystems, local economies, local linkages and development. The book calls for a truly cosmopolitan academic discipline to be built and identifies challenges to do so. It also sets a research agenda for further studies in this fast-changing field.

1

Understanding the Law of Mining and Minerals from a Global Perspective

A global perspective on specific legal disciplines entails shaping a vision of ‘what a genuinely cosmopolitan discipline of law must become’, ‘an overarching vision that understands the diversity of legal phenomena and the underlying challenges of the age (such as poverty, sustainable development and climate change) and what they mean for each discipline’.

William Twining¹

The shift to low carbon economies is likely to be materially intensive, and entail a shift from hydrocarbons to metals.² Minerals and metals are also at the heart of the Fourth Revolution. From the Stone Age to the Iron Age and on to the Bronze Age and through the Industrial Revolution, minerals and technology have been the basis for breakthroughs that have shaped the nature of life and lifestyles.³ Minerals are basically core inputs for components of most products fabricated, traded and used in the global economy. Thus, from the point of view of the organisation of the global economy, the mining industry, including the artisanal and small-scale mining (ASM) segment, represents ‘the beginning of the beginning’, the very first stage of the circuit of production and of the web of global production networks.⁴ Such fact provides a glimpse of the true value of metals as the material foundation of the entire society over thousands of years.⁵

Minerals and metals are scattered unevenly in the Earth’s crust. Because of the essential contribution of minerals and the economic opportunities created by mining, from a historical perspective mining has been considered as being intrinsically linked to development. Indeed, some countries have managed to capitalise upon mineral wealth to spur business and other economic activities.⁶ But in many others, particularly middle and low-income countries, the opportunities have dissipated partly due to the ‘enclave’ nature of large projects – their links with global rather than with local economies, the volatility of mineral prices,⁷ the environmental and social impacts of projects and, in certain contexts, their potential to trigger complex political dynamics that can undermine governance and lead to conflict.⁸

Minerals, ‘the third kingdom of nature’, are then both at the centre of an industry that is global by nature and of the core global challenges of our age. They are hailed as part of the solution to build the infrastructure required to deal with climate change – ‘the most systemic threat to humankind’⁹ – and for technological innovation. If managed well, mining – the process of extracting minerals from the Earth’s crust – can contribute very significantly to broader–based development and poverty eradication. On the contrary, it has been stressed that increased levels of extraction at ever lower grades threat to compound the problem of ecosystems’ loss and of imbalance of the systems that sustain the very stability and resilience of Earth, local communities’ disruption and inequity in global and local allocation of resources. Networks of actors are calling for a paradigm shift in the way minerals are produced, sourced and used in end products; indeed, there is a growing demand in some circles for a progressive phasing out from extraction with increased reuse, recycling and circular economy models.¹⁰

In historical terms, the search for minerals has long driven conquest and global patterns of investment and trade. For centuries, minerals have been part and parcel of land and territories in sovereignty claims, which have been considered primarily in the context of changes in territorial control or disputes.¹¹ Mining and minerals started to receive attention under international law and policy in the context of the global architecture emerging from the network of institutions established in the post-war period. They have been identified as an object of early claims over natural resources in pursuit of exercising economic self–determination and control by peoples of developing countries; conceptualised as the ‘common heritage of mankind’ and similar formulations when lying in the international seabed and other areas beyond national jurisdictions; and included most recently in global action plans to advance sustainable development. At the same time, developments in a number of fields of law, particularly those relating to international investment, trade, economics and finance, environment and human rights, and anti-corruption, have been redefining the contours of the internal space of nation-states in the exercise of their sovereign powers for regulating and allocating rights over minerals within their jurisdictions.¹² Each of these fields is embedded in different normative values that might result in framing minerals as commercial assets, commodities, raw materials, ‘commons’, fruits of nature or natural heritage, and in endowing the land where they lie as having special cultural and spiritual significance.¹³

At the level of nation-states, the definition of ownership, as well as the rules and conditions for governing and regulating mineral resources, are dealt with under mining laws. At its most basic, mining law stricto sensu is associated to mineral tenure regimes; it defines the rules and procedures to acquire mineral rights as well as the relevant rights and obligations of the parties involved.¹⁴ At their core, mining law regimes usually establish a nexus between three forms of ownership and property rights or entitlements: (i) primary ownership on minerals over the subsoil; (ii) property rights (or rights with proprietary characteristics) to explore and extract minerals (and rights over minerals themselves, once extracted); and (iii) the interface with the surface rights owners and holders to land, as well as entitlements to water and other natural resources. They also set the procedures for the allocation of those entitlements, and corresponding rights and obligations. The overarching principle of mining law has typically been public purpose or national interest, providing the grounds for ‘accessing’ territories, resources and land.¹⁵ The design of mining law regimes historically intended to reconcile the interests of the public authority and of the miner, while establishing precedence of mining over other land uses.

The overall legal framework of mining and minerals at national levels (mining law sensu lato), usually comprises the multi-layered framework governing mineral resources’ development and the relationships between the state, the miners and surface rights holders, local communities as well as other actors involved in the activity, and the regulatory procedures to obtain permission from different administrative agencies to operate, often at lower government levels. It also encompasses, more broadly, a whole range of contracts and those areas of law which have implications in the various aspects of mineral investment and development, financing, infrastructure, taxation, competition, planning and management.¹⁶

Being among the most ancient economic activities, mining law regimes are deeply embedded in laws and customs going back thousands of years. Their function has typically been to lay down rules for providing access or permission to miners to extract minerals, favouring mining over other land uses, and they have existed ever since there have been ‘structures of public government, economic interest in minerals and technical ability to extract them’.¹⁷ As in the fields of the law of energy and natural resources, systems of private property law have influenced the development of principles of mining law regimes in Western jurisdictions.¹⁸ Furthermore, the concept of mines as iura regalia, and the ancient customs of ‘free mining’ dating back to medieval Europe have had a significant, and often ongoing, impact.¹⁹ These systems have been the subject of wide diffusion with processes of colonisation and borrowing. In many cases, these systems have coexisted over time or have preceded systems crystallising a greater role of the nation-state or set straight within administrative law, which are dominant in most countries.²⁰ These have typically been a small but crucial piece of the ‘legal infrastructure’ set to facilitate the extractives industries.²¹

I.The Argument of this Book

The study of mining law has so far been mostly circumscribed to domestic legal systems and generally limited to national boundaries. It has not yet broadened systematically to encompass the international, transnational, regional, national and local levels of normative orderings of social relations concerning mining and minerals – what I call the law and governance of mining and minerals, or ‘mineral law’ when referring to mining law latissimo sensu. Unlike energy law, which has been the subject of academic enquiry and shifted from its domestic law locus to the field of international and transnational law studies,²² attention to this area has increased exponentially in recent years, but this has remained scattered, and international perspectives are only now starting to engage with the literature and framings on mining law as typically developed at domestic levels.

A first challenge in any attempt of systematisation of the discipline is encountered by the many ways of naming the very same phenomenon – ‘minerals and metals’; or ‘subsoil resources’ or ‘strategic resources’ from the point of view of the sites of extraction; or ‘sustainable production and consumption’ initiatives; or ‘raw materials’, ‘commodities’ or ‘critical substances’ from the point of view of global markets; ‘value chains’; or ‘responsible sourcing’ initiatives. They are also seen as ‘commercial assets’ from the perspective of investors; or ‘commons’, ‘fruits of nature’ or ‘natural heritage’ from perspectives that place emphasis on the value of nature. Furthermore, the land where they lie can be considered as accessory to mineral rights and interests in traditional patterns of mineral tenure, or as endowed of special cultural, spiritual and economic significance if viewed from the standpoint of indigenous peoples, peasant communities or rural women.

A second challenge is found, then, in the scope and breadth of the subject matter. The study of ‘mining’ or ‘mineral’ or ‘subsoil’ law has usually been undertaken in resource-rich countries at domestic levels and scholarship has usually focused on the analysis of statutory acts and precedents, and their relationship with other statutory and regulatory instruments, notably those concerning investment and the environment. From a global perspective, this comprises a crucial level of relations and legal ordering on mining and minerals – but not the only one.

This book calls for adopting a global perspective to the study of the law and governance of mining and minerals ‘as an academic discipline’,²³ and makes two closely connected claims. The first one advances that a global perspective will further our understanding of the breadth and the interdependence of the international, transnational, regional, national and local levels of normative orderings of social relations concerning mining and minerals – and of the countless networks of actors at all these levels. The second one posits that a global perspective implies engaging with sustainable development and sustainability as an objective of the global community and as a ‘conceptual matrix’ for integrating environmental sustainability and social and economic equity into decisions about economic projects at all levels, while it heightens awareness of th...

Table of contents

• Cover
• Dedication
• Title Page
• Preface and Acknowledgements
• Contents
• Abbreviations and Acronyms
• Table of Cases
• Table of Instruments
• 1. Understanding the Law of Mining and Minerals from a Global Perspective
• 2. Mining and Minerals, Actors and Governance from a Global Perspective
• 3. Mining and Minerals in International Law and Policy
• 4. Mining and Minerals in Fields of International Law and Governance
• 5. Mining and Minerals Regimes in the Global Commons
• 6. Mining Law Regimes at the Level of Nation-States (and their Interface with Local Levels)
• 7. The Law and Governance of Mining and Minerals from a Global Perspective: ‘An Overarching Vision’
• Selected Bibliography
• Index
• Copyright Page