The current legislative framework for mining under the existing Mines and Minerals Act [Chapter 21:05] dating back to 1983 has become antiquated and out of touch with the new national and international mining law developments. The Act has many flaws, and these are supposed to be addressed in a new Act hence the legislative intervention through the Mines and Minerals Amendment Bill H.B. 10, 2022.
The bill has been in the pipelines since 2012 and seeks to effect several changes to the old mining laws given current problems that have plagued the mining industry such as the non-recognition of artisanal and small-scale farmers, lack of local mineral beneficiation, failure to adequately resolve Famer-miner disputes and other disputes over mining titles etcetera. In this article, we highlight some of the major and significant changes sought in the Mines and Minerals Amendment Bill as follows:
- Recognition of Artisanal and Small-Scale miners –
The current mining law regime does not expressly recognize artisanal and small-scale farmers whose sector has rather been criminalized, even though they largely contribute to Zimbabwean gold production and to the economic development of the country. As such the new Bill has attempted to recognize artisanal mining by defining artisanal and small-scale miners as “a Zimbabwean citizen or permanent resident who –
- Is the holder of one registered mining location of not more than forty (40) hectares in extent, or of two or more registered mining locations which in aggregate do not exceed forty (40) hectares in extent.
- Does not, on his or her registered mining location or any of his or her registered mining locations, as the case may be;
- Employ at any time more than fifty (50) persons (including contractors) for periods (whether continuous or not) exceeding six months in a year; and
- Does not produce more than 1200 tons of ore a year.”
With this change maximum mineral resource beneficiation will be realized for the locals who are operating as artisanal and small-scale miners.
- Clarity on farmer and miner disputes–
The backbone of the Zimbabwean economy is agriculture and mining. There is, therefore, need for a delicate balance to be struck. Under the current mining regime, mining rights have priority over farming rights. Section 179 of the Act gives a landowner lesser rights than the miner’s rights. The Courts have already confirmed that in terms of section 179, the miner’s rights are superior to the farmer’s rights, thus where two competing rights exist, one of a miner and a farmer’s rights are subordinate or should accede to the miner’s rights. The former can only exercise his rights if such exercise does not interfere with the mining activities. For example, in terms of section 38 of the Act, miners are allowed to prospect on homesteads and communal land without the farmers being notified.
The new Bill seeks to rectify this anomaly by allowing the miners to carry out prospecting only where the farm owner or communal landowner gives its consent. This has been a well-accepted change as it means that those that are directly affected by the mining activities in this case the farmer is given the international right to give free, prior, and informed consent or reject the prospecting on the farming land.
Not only can the farmers now give consent, but they can through the applicable Rural District Council, apply to the Provincial Mining Director to declare a portion of their land as reserved land for farming, grazing or a combination of both farming and grazing, which land the miners cannot carry out prospecting activities. The Bill, therefore, seeks to balance the interests of both the miner and the farmer which are both key areas for economic growth and employment creation.
- Setting up and operation of a computerized Mining Cadastre Registry
A cadastre system is an up-to-date, computer-based land information system that contains records covering landowners’ rights, restrictions, and responsibilities. Until 2022, Zimbabwe was mostly using a manual system in the administration of mining titles.
The Bill aims to install and operate a Mining Cadastre Registry to promote transparency and accountability in the mining industry. This cadastral system is effective in that it will help in settling mining claim disputes as well as identifying the correct and rightful owner of a claim, the scope and the nature of such claim thus avoiding allocation of one claim to two different mining title holders which has been one of the recurring problems in the existing mining law regime. It will also ensure uniformity and simplicity of mining titles; the pegging of secondary reefs and the holding of extra-lateral rights are done away with.
- Beneficial Ownership
The Bill introduces the concept of beneficial ownership where every mining title holder must declare ownership of a mining right. This information alongside the name, location, extent, and scope of the mining title/right/interest, and date of registration shall be captured in the Mining Cadastre Registry which shall be made open for public inspection. This is a welcomed change as this promotes transparency and this would allow the citizens/public to hold the owners of such right/interests/ title accountable.
- Social Responsibility
The new Bill also seeks to address the issue on social responsibility through the use it or lose it policy which essentially means that a holder of a mining title/claim who has not used or exploited the mining title may lose the right to such mining title which will be liable to forfeiture. This policy seeks to ensure that holders of mining locations do not simply hold them for speculative purposes, but actually utilize these rights for the benefit of the Zimbabwean economy. The Bill, therefore, proposes to introduce a clause to the effect that for the miner to preserve its mining rights, it must within 30 days of registration, submit a work plan, an Environmental Impact Assessment report, and a Social Responsibility Certificate. This a welcome change as it includes the protection of the environment and how the social responsibility of the mining company will benefit the community and the economy at large.
- Protection of the Environment
The Bill further seeks to promote environmental protection by introducing an Environmental Rehabilitation and Occupational Health and Safety (EROHS) trust fund where miners will participate in the trust to restore the environment to a better state when their mining operations cease. This is necessary in that it will not only protect the environment from the adverse effects of mining but will also allow the land to be used for other activities such as farming if the land is efficiently restored.
- Introduction of strategic minerals
The Bill proposes to introduce strategic minerals which the Bill defines as any minerals deemed strategic by virtue of their importance to the economic, social, industrial, or security interests of Zimbabwe such as diamonds, rare earth minerals, lithium, copper, nuclear energy source materials such as uranium; mineral oils, gaseous hydrocarbons, coal, and nickel. The Bill sets out conditions on investors who seek to exploit strategic minerals, such as that the State and affected communities should have a defined interest or stake in the exploitation of these strategic minerals which will have a positive impact on the economy and social well-being of the communities.
The Mines and Minerals Bill is therefore a welcome legislative development considering the problems that have plagued the mining industry, including environmental degradation, farmer-miner disputes, forced relocations, and insufficient mineral beneficiation. These difficulties have mainly been attributed to the inadequacies of the current Mines and Minerals Act. Therefore, the Bill is a suitable response to recent national and international developments in the mining industry.
This article is provided for informational purposes only. Please seek legal advice from our Infrastructure and Energy team.