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Part A: General Topics | 1. Preamble

A Preamble or, in francophone countries, Exposition of Motives provides a summary of the primary legislative intent underlying the new law that is useful in interpreting its provisions. The preamble or exposition of motives may or may not be part of the law. In the latter case, it is approved together with the new law and both are printed together in the Official Journal. The length may vary considerably from a very succinct sentence or paragraph immediately following the title of the new act to a very detailed separate exposition of motives espousing the intent behind each chapter or provision of the act. Additionally, a preamble may reference the country’s constitution, treaties, or other significant legal resources from which it draws authority (such as jurisdictional sources in federal states). The preamble can also reference a national policy or charter that has guided the design of the mining law.

Alternatively, a mining law may contain a section on fundamental principles and rules of interpretation of the law. If it contains both, care must be taken to ensure consistency and avoid duplicative pronouncements in different languages that may inadvertently create ambiguity and provoke litigation.

1. Example 1:

Article [_]

The purpose of this Act is to:

(a) repeal and replace the [Old Mining Law], with a new legislation on mining and mineral development, which conforms, and otherwise gives effect, to the relevant provisions of the Constitution;

(b) vest the ownership and control of all minerals in [Country Name] in the State;

(c) provide for the acquisition of mineral rights;

(d) adapt the mining law to the country’s present economic situation and to the recent developments in the mining sector, with a view to ensure competitiveness, transparency, protection of rights, and definition of the obligations of the mining holders, as well as to safeguard the national interest; and

(e) provide for other related matters.

Annotation

Drawn from Uganda’s mining act (2003) and Mozambique’s mining act (2014), the provisions convey in very succinct language that the act should be read as giving effect to the provisions of the Constitution of the country in effect at the time of enactment and confirms that ownership and control of all minerals in the country are vested in the state and therefore the procedure for obtaining mineral rights from the state is as provided in the mining act (paragraphs (a), (b), and (c)). It also provides insight into the legislative intent for making the law that is relevant to the interpretation of the law (paragraphs (d) and (e)). While paragraph (e) is a catch all phrase which may be deemed overbroad and imbued with discretion, paragraph (d) is more clearly articulated with parameters to the legislative intent.

1. Example 2:

RECOGNIZING that minerals are non-renewable natural resources;

ACKNOWLEDGING that [Country]’s mineral resources belong to the nation and that the State is the custodian thereof;

AFFIRMING the State’s obligation to protect the environment for the benefit of present and future generations, to ensure ecologically sustainable development of mineral resources and to promote economic and social development;

RECOGNISING the need to promote local and rural development and the social upliftment of communities affected by mining;

REAFFIRMING the State’s commitment to reform to bring about equitable access to [Country]’s mineral resources;

BEING COMMITTED to eradicating all forms of discriminatory practices in the mineral industries;

CONSIDERING the State’s obligation under the Constitution to take legislative and other measures to redress the results of past racial discrimination;

CONSIDERING the State’s commitment to take legislative and other measures to implement the [Africa Mining Vision];

REAFFIRMING the State’s commitment to guaranteeing security of tenure in respect of prospecting and mining operations; and

EMPHASISING the need to create an internationally competitive and efficient administrative and regulatory regime;

BE IT THEREFORE ENACTED by the [Legislative Authority], as follows:

Annotation

Drawn from South Africa’s mining law (2002), this preamble vests the ownership of the minerals in the nation while the state is only a custodian. It also refers to environmental and social goals common to most mining countries, other social goals that are specific to the country, and goals considered important by the mining industry. The law also contains a chapter on fundamental principles which states with greater specificity the key basic concepts underlying the legislation.

This preamble provides a more extensive approach with respect to legislative intent, going beyond the traditional objectives of mining, such as clarity of ownership, processing and investment attractiveness objectives, to include indication of a commitment to a regional mining framework, general environmental and social goals as well as societal aspirations that are specific to the country.