Part A: General Topics | 16. Regulating Bodies
Provisions which address what government agencies will issue licences, manage the license application process, provide oversight of issued licenses, and ensure license holders exploit minerals in ways that are consistent with a country’s laws, oversee the utilization of the mineral development-generated resources and other benefits or conduct research and manage knowledge and information on the sector are collectively referred to as ‘regulating bodies’ provisions. Mining codes may spell out the composition, function, and responsibility of each relevant bodies, including how they coordinate with one another to manage a country’s mining sector. The respective authority at the national, provincial and local bodies should also be made clear.
Also important to consider is provisions that allow for inter-ministerial or inter-agency coordination by all the bodies implicated in management of the sector to avoid inconsistencies, information silos and conflicts among the government bodies and agencies.
A key trend/consideration is separation of regulatory scope, i.e. those that grant the rights, those that monitor or enforce the obligations attached to licenses or rights granted, and those responsible for collection of revenues. The role of state-owned entities should be clearly defined. Good practice dictates against blending of regulatory, enforcement and commercial responsibilities in one entity to avoid any conflict of interest that may result. Good practice would be to restrict the role of state-owned companies to commercial responsibilities.
16. Example 1:
Article [_]
Chapter II of the First Title of the [Code][Act][Law] sets forth the respective authority of the regulating bodies in articles [_], covering the following:
Article 8: Of the Role of the State and its organs
Article 9: Of the President of the Republic
Article 10: Of the [Regulating Authority]
Article 11: Of the Provincial Governor and the Provincial Division Chief of Mines
Article 12: Of the Mining Cadastre
Article 13: Of the Directorate of Geology
Article 14: Of the Directorate of Mines
Article 15: Of the Service Responsible for Protection of the Mining Environment
Article 16: Of the Restriction of Authority
Annotation
Drawn from DRC’s mining law (2002), this provision sets forth the respective duties of the regulatory authorities in 8 articles and then states in Article 16 that no other public or state institution has authority to administer the provisions of the Mining Code and the related Regulations.
Within this framework, the Mining Cadastre is established as a semi-autonomous, self-financing entity under the supervisory authority of the regulating entity, responsible for administering the cadastral maps and registries and the intake and processing of all applications concerning mineral rights and related transactions.
16. Example 2:
Article [_]
Part [relevant section] of the [Act][Code][Law] of [Country], sets forth the duties and functions of the authorities responsible for administering the mining law of [Country] in the following 18 articles:
3. [Regulating Authority] to be responsible for administration of [Act][Code][Law]
4. Director to be responsible for implementation of [Act][Code][Law]
5. Duties of the Director
6. Powers of Director and authorised officers
7. Execution and delegation of functions of the Director
8. The Duties of the Director of Geological Survey
9. Execution and delegation of functions of the Director of Geological Survey
10. Authorised officers
11. Establishment of Minerals Advisory Board
12. Responsibilities of the Board
13. Meetings of the Board
14. Power to co-opt
15. Disclosure of interest
16. Annual Report
17. Obstruction of Directors or authorised officers
18. Indemnity of officers
19. [Regulating Authority] and officers prohibited from acquiring mineral rights, etc.
20. Prohibition against the disclosure of information
Annotation
Drawn from Sierra Leone’s mining law (2009), this provision, though too lengthy to be reproduced here, provides a good example of a chapter that sets forth the responsibilities of an Advisory Board and the key departments of the regulating body. However, the status and functions of the Mining Cadastre Office are set forth in another part of the Act.
