Address by Peter Leon to the Commonwealth Law Conference, Cape Town, April 16 2013
INTERNATIONAL BEST PRACTICE FOR MINERAL REGULATION IN DEVELOPING COUNTRIES
It is trite that developing countries regularly complain that they are not obtaining a fair share of resource rents from the exploitation of a country's non-renewable resources by resource extractors, whether this involves mining or hydrocarbons. (While the focus of this talk is on mining, much of it is applicable to the oil and gas industry.) While the answer to this is ensuring an equitable balance between the interests of host states, resource extractors and communities in any mineral regulatory system or concession agreement, one should bear in mind that:
- mining is a high risk, capital intensive industry, with long lead times between discovery and production and, often, a significant lack of profitability in its early stages;
- profitability itself is subject to volatile cycles of supply and demand; and
- in many developing countries, productivity is subject to major domestic infrastructure constraints. (This is vividly illustrated by the logistics problems besetting Mozambique's coal industry in Tete province.)
Mining is thus an inherently high risk and long term business. Accordingly, the structure of any mineral regulatory regime should mitigate, as far as possible, the risk undertaken by mining companies.
This presentation will highlight a number of international best practice principles for the architecture of mineral regulatory regimes in developing countries which, by mitigating the risks of mining, encourage investment in the industry.
After doing so, the application of best practice principles will be considered in an African context, with particular reference to:
- the mineral regulatory regime in Botswana - a leading developing country example of international best practice;
- the mineral regulatory regime in South Africa - a country which has struggled with international best practice.
2. International best practice principles
In order to foster investment in the extractive industry, a mineral regulatory regime should provide certainty, stability and predictability to mining investors. In order to do so, the architecture of the regulatory regime should meet certain generally recognised principles. These include:
Equality before the law:
- The regulatory framework for the allocation and management of mineral rights should provide for equality before the law. In other words, the system should be non-discriminatory and should apply equally to all similarly placed participants.
- The terms and conditions that apply to mineral rights should be standardised as far as possible and preferably included in legislation or, failing that, subordinate legislation.
The rule of law, which includes the following principles:
- The law should be stated clearly and unambiguously:
- The legal framework governing the allocation and management of mineral rights should be clear and unambiguous.
- Mining investors should be able to ascertain accurately what is expected of them under the regulatory framework, and thus meet the relevant requirements without unnecessary difficulty.
- The law should limit administrative discretion:
- The mining code or law should limit, as far as possible, the discretionary powers of administrative officials. The law should be stated in objective terms, and the inclusion of subjective criteria should be limited as far as possible.
- Where the allocation of discretionary powers to officials is necessary, these powers should be appropriately guided and limited by the law.
- By limiting administrative discretion, investors are generally able to determine, with reasonable certainty, what is expected of them. In addition, it can also reduce the potential for corruption or bias.
Institutional responsibility should be well defined:
- The roles and responsibilities of different regulatory agencies which operate within the resources sector should be clearly defined in the regulatory framework and enforced in practice. This is necessary to ensure that there are no overlaps in regulatory functions while, at the same time, there are no gaps in regulatory responsibility.
Timeframes should be prescribed for licensing functions:
- Timeframes for actions taken under the regulatory regime should, ideally, be specified in primary legislation, subordinate legislation or, at the very least, be publicly set out by the agency responsible for the management and/or allocation of mineral rights.
- There should be timeframes for actions taken by the regulatory authority - for example, in the allocation of mineral rights - as well as for actions by mining companies.
- The provision of timeframes ensures the efficient and predictable performance of licensing functions.
Security of tenure should be protected:
- In order to reduce the risk assumed by resource extractors, mining legislation should protect the security of tenure of mineral right holders, and institutions should ensure that security of tenure is respected. Without this protection, an investor may simply not be willing to invest in a long term, capital intensive mining project.
- In particular, holders of prospecting rights should have the exclusive right to develop any mineral resource they discover in the licensing area.
- It is also important that there is proper tenure for all exploration and mining rights in order to give right holders adequate time to explore for and exploit the resource. Reasonable provision should also be made for the renewal of licences.
Mineral right holders should have access to administrative and judicial review:
- Resource extractors should be able to challenge decisions of a regulatory authority through administrative or judicial review. This right should be provided in the governing legislation. The independence of the judiciary in this regard is crucial to protect the company's rights and security of tenure.
a. Applying best practice principles to the granting of mineral rights
A critical process in the mining regulatory regimes is the allocation of mineral rights. This process which determines who is awarded mineral rights should obviously follow the general principles outlined above. In general, two processes are usually adopted for the award of prospecting or mining rights:
open mineral access:
- under this non-competitive approach, the first applicant to submit a compliant application which meets all specified technical and financial requirements, and has paid the requisite fees, will normally be awarded the mineral right over the area applied for (thus, this is known as the "first-in, first-assessed" or "FIFA" system);and
competitive resource tenders:
- under this competitive approach, a licence to prospect or mine a resource is put on auction and bidders are required to demonstrate compliance with certain criteria (which will include key financial and technical requirements). Bid evaluations are conducted simultaneously and ranked by the overseeing body. This is the model usually followed in the hydrocarbons sector where oil and gas blocks are auctioned. It is followed in the mining industry in Liberia, Kazakhstan and Mongolia.
Whether the open mineral access or competitive resource tender process is an appropriate method of granting an exploration or mining right really depends on the type of mineral involved, the information available about the resource, the deposit type, as well as the amount of interest that has been expressed by prospective investors.
A competitive resource tender process, on the other hand, is best applied in situations where relatively detailed information concerning a particular mineral deposit can be made available to prospective investors (where such information is obtained either by previous exploration or mining activities or as a result of scientific geological study).
Whichever process is adopted, the regulatory regime governing the process should comply with the best practice principles identified above:
- administrative discretion in the application process should be limited and applicants should be subjected to the same standard terms and conditions: open mineral access regimes should mandate the acceptance of the first application which meets defined objective criteria, and competitive resource tender regimes should provide for the evaluation of competing bids against predetermined, objective criteria; and
- mineral rights which are granted as a result of the process should provide for exclusivity and security of tenure to the successful applicant. Where a regime is making the transition from an open mineral access process to a competitive resource tender process, there should be provision for an appropriate "grandfathering" mechanism to protect the security of tenure of existing right holders who were awarded their rights under the previous regime (Liberia has made such a transition and has made provision for a grandfathering mechanism).
3. Botswana: a mineral regulatory regime which exemplifies international best practice principles
Botswana is a stand-out example among African mining jurisdictions In 1999, the government substantially revised Botswana's Mines and Mineral Act, 1977 ("the old Act"), to remove uncertain and unclear provisions while encouraging investment in the mining industry.
Consequently, under the Botswana Mines and Minerals Act, 1999 ("the Act"), the process of licensing - the grant, renewal and transfer of licences - is now predictable and clear.
The Minister of Minerals, Energy and Water Resources, who grants licences and performs other functions under the Act, has little or no administrative discretion; licensing conditions that may be imposed are explicitly stated and clearly set out in the Act. This ensures that applicants are treated equally under the Act's licensing provisions.
The Act also introduced the concept of a retention licence, an innovation which was designed to protect the security of tenure of explorers who, after discovering a mineral deposit, find that that it cannot immediately be mined economically. Under the old Act, such right holders would have lost their entitlement to the location if they were not able to bring the resource into production. The retention licence allows the explorer, subject to some qualifications, to defer development for two successive three year periods while retaining the exclusive right to mine the resource (this exclusivity is subject to some qualifications in the second three year period).
In addition, Botswana tries to set competitive internal administrative turnaround timeframes for: prospecting licences, within 60 days; diamond export permits, within two days; small-scale mining concessions, within 15 days; and large-scale mining concessions, within 20 days. (These timeframes are, however, not enshrined in legislation).
James Campbell, CEO of Rockwell Diamonds, has described the regime as follows: "The terms for doing business in Botswana are ... very clearly set out and implemented. You do not have to deal with issues such as the interpretation of some of the legislation".
Botswana's best practice mineral regulatory framework is evident in the latest 2012/2013 "Fraser Institute annual survey of mining companies" ("the Fraser Institute Survey 2012/2013"). The Fraser Institute is an international independent research and educational organisation which measures, studies and communicates "the impact of competitive markets and government interventions on the welfare of individuals". The survey - which records the responses of approximately 4100 exploration, development and mining related companies around the world - assesses "how mineral endowments and public policy factors such as taxation and regulation affect exploration investment". On the survey's crucial policy potential index ("PPI"), which measures the overall policy attractiveness of mining jurisdictions to investors, and takes into account various factors including regulatory certainty, Botswana improved its score (from 76.9 out of 100 in 2011/2012 to 78.1 in 2012/2013) while the average PPI score for Africa decreased. Botswana ranked 17th out of the 96 jurisdictions assessed. The country is - and always has been - the highest ranking jurisdiction in Africa.
In last year's edition (2011/2012) of the survey - in which Botswana enjoyed the same ranking - an anonymous president of an exploration company, who participated in the survey, is quoted as including Botswana in a limited number of African jurisdictions which are "proactive about attracting foreign investment". The executive remarked that Botswana's policies are "clearly defined" and that the process of obtaining mining licences "is relatively quick and straightforward compared to most countries worldwide".
4. South Africa: a mineral regulatory regime struggling with international best practice principles
South Africa, by contrast, appears to be struggling with international best practice in its mineral regulatory regime.
a. The current regime
The principal legislation governing the mining industry in South Africa - the Mineral and Petroleum Resources Development Act, 2002 ("the MPRDA") - is characterised by uncertainty, vague and ambiguous provisions, and overly broad discretion which is accorded to the Minister of Mineral Resources ("the Minister") to regulate the licensing process..
As the MPRDA is written in vague terms, key licensing conditions are rendered vulnerable to ‘back door' Ministerial discretion. As such, applicants do not know whether they will receive a licence, even if they comply with the statutorily prescribed conditions. Because these are couched as mandatory requirements, no indication is given of the actual criteria that must be applied when the Department of Mineral Resources exercises its regulatory functions, as can be seen below:
The MPRDA provides that a mining right must be granted if the granting of the right will further the objects in sections 2(d) and (f) of the MPRDA, which are to substantially and meaningfully expand the opportunities of historically disadvantaged South Africans in the mining industry, and promote employment and advance the social and economic welfare of all South Africans in accordance with the revised Mining Charter and the prescribed social and labour plan. The vagueness of such provisions means that the Minister is afforded a wide discretion to determine what constitutes compliance with its requirements, and makes it difficult for a mining company to know in advance whether or not it has complied. Although the original Mining Charter and the revised Mining Charter could and should have addressed such deficiencies, the vagueness of their provisions only added to the conundrum.
The uncertainty created by the MPRDA is also evident in its provisions as regards transferring mining and prospecting rights. Under section 11(1) of the MPRDA, only the transfer of a "controlling interest" in a company which holds a prospecting and/or mining right need obtain Ministerial consent before the right is transferred. The term "controlling interest" is, however, not defined in the MPRDA. The section also fails to make it clear whether "controlling interest" includes an indirect controlling interest in a company which holds prospecting and/or mining rights. This uncertainty makes it difficult for mining companies to assess in advance whether a transfer of an interest in a company requires Ministerial consent.
This regulatory uncertainty is compounded by the Department of Mineral Resources' ("the DMR") slow processing of mineral rights applications. In the DMR's annual report for 2010/2011, the departmentally prescribed target turnaround times are six months for the processing of prospecting rights and mining permits and twelve months for mining rights. According to the report, however, the department failed to comply with its prescribed timeframes in 63.5 per cent of cases. Similarly, the DMR's annual report for 2011/2012 observed that it missed its prescribed times frames for the grant or refusal of prospecting and mining rights in a staggering 82 per cent of applications.
This regulatory uncertainty has proved to be a deterrent to investment in the South African mining industry. This is recognised by the National Planning Commission, which was appointed by President Jacob Zuma in May 2010 and is responsible for developing a vision and strategic plan for South Africa's long-term development, in their "National Development Plan 2030" ("the NDP"). The NDP, adopted by the South African cabinet and ANC last year, sets out a "broad strategic framework" which is intended to form the basis of the South African government's future planning and policy. The NDP reports that, despite the longest sustained commodities boom in history between 2001 and 2008, the industry shrank by an average of 1 per cent per year, compared with an average growth of five per cent per year in the world's top twenty mineral exporting countries.
The NDP identifies "uncertainty in the regulatory framework and [as regards] property rights" as among the "central constraints" to growth in the industry.
The NDP accordingly identifies proposes interventions which include "passing amendments to the [MPRDA] to ensure a predictable, competitive and stable mining regulatory framework" and "ensuring certainty in respect of property rights".
South Africa's poor performance in this regard is reflected in the Fraser Institute Survey 2012/2013. In the survey, South Africa's PPI score dropped from 44.5 out of 100 in 2011/2012 to 35.0, and it fell 10 places in the rankings from 54th to 64th out of the 96 countries assessed.
b. South Africa's proposed new mineral regulatory regime
The recently released draft Mineral and Petroleum Resource Development Amendment Bill, 2012 ("the Bill"), seeks, among other things, to remove ambiguities in the current Bill and improve the regulatory system. Unfortunately, however, the amendments it proposes only seem to distance the MPRDA further from international best practice. In particular:
vague and ambiguous provisions:
a pervasive problem with the Bill is its lack of clarity on key mineral regulatory issues. The Bill is replete with instances of vague and uncertain language, and amplifies, rather than removes the uncertainty created by the MPRDA, thus ignoring the National Development Plan's counsel to fix the Act's regulatory problems;
the Bill requires the Minister to initiate the beneficiation of minerals and petroleum in South Africa and grants the Minister broad discretionary powers to do so. For example, the Bill allows the Minister, in her sole discretion, to set the levels required for beneficiation, the percentage per commodity and price that is required for beneficiation, as well as the percentage of raw mineral production to be offered to local beneficiators. The Bill also requires any person who intends to export "designated minerals", a term that it fails to define, to obtain the Minister's written consent prior to doing so and to comply with any conditions the Minister may determine.
timeframes for actions:
the Bill also deletes many of the time periods currently contained in the MPRDA, and replaces these with reference to a "prescribed period" to be determined by the Minister. The lack of time periods in the Bill has the potential to create further uncertainty, as there is no guidance as to when and how the relevant periods will be determined; and
order of processing applications:
the Bill deletes section 9 of the MPRDA, which deals with the order of processing of applications for mineral rights. Section 9, among other things, contains the "first-in, first assessed" principle, which South Africa has followed for over a hundred years. This important issue will now, according to the DMR, be dealt with in regulations to be published by the Minister, which will set the parameters within which the Minister must grant a right to one applicant over another. This amendment to the MPRDA consequently vests in the Minister a broad discretion to determine the order in which mineral right applications are to be processed, amplifying rather than reducing the uncertainty in the process..
the Bill provides for a fundamental change in the environmental regulatory regime that applies to mining and prospecting activities, envisaging that such environmental regulation will take place under the National Environmental Management Act, 2008 ("NEMA"), with the Minister as the responsible regulator, rather than under the MPRDA. The Bill, however, has not been developed in line with the provisions of either NEMA or the NEMA Amendment Act, 2008 ("the NEMA Amendment Act"), particularly as regards the latter's transitional provisions. While the NEMA Amendment Act also provides that the environmental regulation of mining and prospecting activities will be brought under the NEMA, it envisions that this will only occur incrementally over a three year transitional period with the Minister of Environmental and Water Affairs ultimately becoming the responsible regulator. Thus, the Bill's proposed amendments will leave the MPRDA in direct conflict with NEMA, creating considerable uncertainty.
The DMR has indicated that it intends to produce a comprehensive set of regulations which will deal with the lack of clarity in the Bill. In particular, it is envisaged that these regulations will prescribe the timeframes for licensing and other decisions. The publication of regulations, however, is not subject to the same constitutionally-mandated public participation process required for the enactment of legislation.
It should also be noted that the Bill, as discussed, is only in draft form. Hopefully, the DMR will address the shortcomings in the Bill revealed by the public participation process before it is introduced to Parliament this year.
The importance of the effective regulation of the exploitation of mineral assets cannot be overstated. As Paul Collier, a professor of economics and public policy at Oxford University, notes, the value of natural resource endowments to countries "is only potential. For natural assets to be valuable instead of being dissipated in competitive struggle, their ownership must be regulated."
As has hopefully been demonstrated by this presentation, the architecture of a mineral regulatory regime is of vital importance to the success of a mining jurisdiction. If a jurisdiction's mineral regulatory regime can - by complying with the international best practice principles considered above - create an environment of certainty, predictability and stability, it will promote investment and growth in the industry. By doing so, mining jurisdictions can comply with a simple formula Paul Collier believes all countries - and especially the poorest countries - must master to effectively harness their natural resource potential: "nature + technology + regulation = prosperity".
Peter Leon is Head of Africa Mining & Energy Projects, Webber Wentzel, Johannesburg, and Council member, International Bar Association Legal Practice Division
 N Mutemeri et al., "Granting mineral rights: A good practice note", EI SourceBook, December 2010, at 4.
 Ibid., at 8.
 "Policy, legal and contractual framework", EI SourceBook Online, at 5.3.2. and at 5.4.1.
 The rule of law, a foundational constitutional principle in South Africa, provides that legislation must be stated in clear and unambiguous terms. Under the principle, it was held by the South African Constitutional Court ("the Constitutional Court") in Affordable Medicines Trust v Minister of Health of RSA 2005 6 BCLR 529 (CC), at para 108, that the law should "indicate with reasonable certainty to those who are bound by it what is required of them so that they may regulate their conduct accordingly".
 "Policy, legal and contractual framework", op cit. 3, at 5.1 and 5.3.1; EO Girones, A Pugachevsky and G Walser, "Mineral Rights Cadastre", Extractive Industries for Development Series #4, June 2009, at 15.
 N Mutemeri et al., op cit.1, at 8; EO Girones, A Pugachevsky and G Walser, op cit. 5, at 15.
 The rule of law under South African law stipulates that legislation should appropriately guide the exercise of administrative discretion. As pointed out by the Constitutional Court in Dawood and another v Minister of Home Affairs (8) BCLR 837 (CC), at para 47, "if broad discretionary powers contain no express constraints, those who are affected by the exercise of the broad discretionary powers will not know what is relevant to the exercise of those powers or in what circumstances they are entitled to seek relief from an adverse decision".
 "Sector organization and institutions", EI SourceBook Online, at 6.1.
 N Mutemeri et al., op cit.1, at 6.
 "Policy, legal and contractual framework", op cit. 3, at 5.4.1.
 Ibid., at 5.4.2.
 N Mutemeri et al., op cit.1, at 8-9; "Policy, legal and contractual framework",op cit. 4, at 5.3.1.
 N Mutemeri et al., op cit.1, at 10.
 M Stanley and E Mikhaylova, 'Mineral Resource Tenders and Mining Infrastructure Projects Guiding Principles', Extractive Industries for Development Series #22, September 2011, at 6. The application process is driven by the applicant who, normally, is required to specify the mineral it wishes to extract and the area of land on which it plans to conduct mining operations.
 Ibid., at 6-7. Under this system, however, the government initiates the process: first, by identifying and announcing the availability of a particular concession and, secondly, by dictating the terms, which may vary between regimes, under which bids must be submitted. There is no concept of being "first past the post".
 Ibid., at 6.
 Ibid. at 9-7.
 See generally, N Mutemeri et al., op cit.1.
 Provision for a competitive resource tender process is made, and the relevant grandfathering provisions are included, in the (Liberian) Amended and Restated Public Procurement and Concessions Act, 2010. The ANC's State Intervention in the Mineral Sector report, published in February 2012, at 365, also recommended the transition to such a process in South Africa for all areas with "known" mineral resources. The report, however, failed to suggest an appropriate "grandfathering" mechanism for the transition, and it is unclear from the report whether the introduction of any such mechanism was envisaged.
 Prospecting licences are regulated by section 13 to 24 of the (Botswana) Mines and Minerals Act, 1999, and mining licences are regulated by sections 37 to 51. Sections 13 to 15 and sections 37 to 39 apply to the grant of mining and prospecting licences respectively.
 See sections 25-36 of the (Botswana) Mines and Minerals Act, 1999. In particular, see section 27.
The right to be granted a mining will remain exclusive subject to confirmation that viable development remains impracticable in the first three year period, while in the second three year period, third parties are allowed limited access to the area (see section 34).
 Mining Weekly, Minerals sector revenues to aid economic diversification, 25 February 2011; Miningmx, Botswana to dominate SA in diamond cutting, 2 November 2011.
 Miningmx, Botswana to dominate SA in diamond cutting, 2 November 2011.
 Fraser Institute Annual survey of mining companies 2012/2013, February 2013, at 2.
 Ibid., at 4-5.
 Ibid., at 14 and 43.
 Ibid., at 14.
 Fraser Institute Annual survey of mining companies 2011/2012, February 2012, at 45.
 Section 23(1)(h) of the Mineral and Petroleum Resources Development Act, 2002 ("MPRDA").
 MO Dale et al, South African Mineral and Petroleum Law "Commentary on the Mineral and Petroleum Resources Development Act 28 of 2002", Service Issue 12, LexisNexis Butterworths, October 2012, at paragraph 118.5.
 Annual Report: 2010-2011, Department of Mineral Resources, 2011, at 86.
 Ibid., at 81.
 Annual Report: 2011-2012, Department of Mineral Resources, 31 May 2012, at 68. The Annual Report for 2011/2012 does not contain any departmental timeframes. Presumably they remain the same as those listed in the Annual Report for 2010/2011.
 National Planning Commission, National Development Plan 2030: Our future - make it work, 15 August 2012, at 26. See also "About", NPC Online, accessed on 15 April 2013 at http://www.npconline.co.za/.
 South African Government Communications, Post-Cabinet Lekgotla media statement, 7 September 2012.
 ANC, 53rd National Conference Resolutions, 14-18 December 2012, at 22-23.
 National Planning Commission, op cit. 35, at 26. The NDP has been described by the President of South Africa, Jacob Zuma, as a "vision [for] the country for the next 20 years". (See State of the Nation Address by Jacob G Zuma, President of the RSA On the Occasion of the Joint Sitting of Parliament, Cape Town, 14 February 2013, at 14.)
 Ibid., at 146.
 Ibid., at 147.
 Fraser Institute Annual survey of mining companies 2012/2013, op cit. 27, at 14.
 The Preamble of the Mineral and Petroleum Resource Development Amendment Bill, 2012 ("the Bill").
 Examples of this include: clause 21 of the Bill which gives the Minister broad discretion regarding beneficiation and the export of minerals; clause 8(a) of the Bill which subjects the disposal of a right to those conditions which the Minister may determine; as well as the power afforded to the Minister under clause 15(a) to impose conditions over the removal of a mineral from a prospecting area.
 The Bill fails to specify, among others, the following time periods: the period within which an applicant must lodge a prospecting or mining right for registration (clauses 14(a) and 20(b) of the Bill), as well as the periods within which the Regional Manager must: notify an applicant that its application for a prospecting or mining right does not comply with the legislative requirements (clauses 11(a) and 17(b) of the Bill); grant a prospecting right (clause 12(a) of the Bill); and refuse to grant a mining right (clause 18(e) of the Bill).
 See clause 5 of the Bill which substitutes section 9 of the MPRDA. While it appears to be the intention of the Bill to remove the open mineral access granting process, sections 16(2)(c) and 22(2)(c) of the MPRDA, which were inserted by the Mineral and Petroleum Resources Development Amendment Act, 2008 ("the Amendment Act"), potentially ensure that the current "first-in, first-assessed" process is still in place.
 Clause 28 of the Bill amending section 37 of the MPRDA; section 32 of the Amendment Act inserting sections 38A and 38B; clause 67 of the Bill proposing the repeal of subsection 94(2) of the Amendment Act. Clause 67 of the Bill proposes the repeal of subsection 94(2) of the MPRDA, which does not in fact deal with environmental regulation. In view of the fact that there is no such subsection in the MPRDA, it is presumed that the Bill intended instead to repeal subsection 94(2) of the Amendment Act.
 Section 14(2) and section 13 of the National Environmental Management Amendment Act, 2008.
 Affordable Medicines, supra note 4, at para 109.
 On the public process required before the enactment of legislation, see sections 59(1)(a) and 72(1)(a) of the Constitution; Matatiele Municipality and Others v President of the RSA and Others (No 2) 2007 (6) SA 477 (CC); Doctors for Life International v Speaker of the National Assembly and Chairperson of the National Council of Provinces 2006 12 BCLR 1399 (CC); and Merafong Demarcation Forum v President of the RSA 2008 (5) SA 171 (CC).
 Paul Collier, The Plundered Planet, Penguin Books, 2010, at 4.
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