Mining 2020 features 18 jurisdictions. This edition of Mining outlines the legal framework, environmental protection and community relations issues, climate change and sustainable development and taxation.
Last Updated: January 22, 2020
This is the 2020 edition of the Chambers Mining Global Practice Guide. The guide discusses a number of key legal factors for the mining lawyer, focusing on some of the most important mining jurisdictions around the world.
The mining industry is still trying to recover from one of the most difficult periods it has ever faced. The downturn in commodity prices and the volatility of the market, along with other factors, have caused mining companies to seek further efficiency, automation and reduction of costs.
In a very interesting paper, curators of the World Economic Forum have identified seven points that they believe will shape the mining and metals sector.
The first is the call for decarbonisation of the economies. They argue that, because low-emission energy and transportation systems are mineral-intensive, this trend may provide a great opportunity for the mining sector.
A second driver is the exposure mining companies will have to less well-developed and higher-risk jurisdictions, as they will be forced to search for reserves.
In the process of moving to frontier jurisdictions, the industry will have to find ways to limit risk, through new financing and production models.
They will also have to deal with geopolitics, having to navigate rising country risk and protectionism.
The World Economic Forum says a fifth challenge will be to ensure benefits for affected communities.
Transparency and data-sharing will continue to be a major area of debate, according to the World Economic Forum paper.
Lastly, new technologies and more automation will lead to a workforce with different skills and the need to deal with the transition of workers who cannot be absorbed into the operation as a result.
These trends illustrate very well that, despite being fundamental to today's way of life, the mining industry currently faces a number of questions. The scenario is more challenging than ever before for mining companies. Consequently, the job and role of the mining lawyer is likewise more demanding.
Many countries around the world introduce, from time to time, significant legislative or regulatory changes to their mining, royalty and tax legislation.
From an economic viewpoint, commodity price changes can affect the mining industry in many different ways. The availability of funds for exploration projects, investment decisions for the development of new operations or the expansion of existing ones, and job creation can all be influenced by the fluctuation of commodity prices in different manners. Over the years, it is clear to see the influence that prices have had in different markets and how they can affect countries and companies.
New technologies, climate concerns, decarbonisation, environmental requirements, community relations, human rights matters, and regulatory, tax, financing and social issues, among many other subjects, make this high-risk, long-term industry more a more daring prospect than ever before.
Hence, mining lawyers need to keep on top of the evolutions and features of a fast-changing environment and global order, the better to assist their clients as they navigate through a constantly changing world.
A deep understanding of the more traditional mining law matters, such as the different legal systems, sources of law, ownership of mineral resources, the role of the State, the legal nature of mineral rights, and the granting of mineral rights and security of tenure, just to name a few, remains a fundamental requirement for lawyers who wish to provide their clients with premium, top-notch services.
Additionally, lawyers must be fully updated and in control of the impact of taxes, duties, royalties, transfer tax and capital gains around the globe, as these are key factors to successful mining investments and operations.
Mining investment and finance legal matters play a dominant role in the work of a mining lawyer. It is crucial for the mining law practitioner to be fully informed about the legal aspects of investment attraction, special rules on foreign investment approval, and restrictions to foreign investment in the exploration and mining sectors. Multilateral and bilateral treaties that favour and protect investments in the exploration and mining are also of the utmost importance.
Knowledge of the main sources of finance for exploration, development and mining in different jurisdictions will certainly be a great advantage for a lawyer in this field.
The intricacies of domestic and international securities markets in the financing of exploration, development and mining in different parts of the world, as well as the legal features relating to security over mining tenements and related assets in the context of exploration, development and mining finance, are essential to a mining lawyer’s performance.
Environmental legal matters have been at the top of the list for mining lawyers for some time now. Mining companies are mostly very conscious of their environmental responsibilities. The majority of the significant players have very high standards and are prepared to adopt all necessary measures to deal with the environmental impacts arising from their mining operations.
However, what the mining industry in different jurisdictions wants is clarity of the rules and consistency in the application of these regulations at the environmental permitting stage and throughout the course of the operation. In addition to this, stronger, better-equipped and resourceful permitting authorities would add to the desired legal security to the mining industry.
These elements – clear and stable rules, consistent application of the law and trustworthy permitting authorities – would certainly be beneficial, not only to the mining industry, but also to the different mining jurisdictions in the world, particularly the less developed ones.
More recent issues, such as the impact of climate change, decarbonisation, human rights concerns, supply-chain standards, sustainable development policies, environmental protection and community relations, and prior and informed consultation of affected people on the ability of countries to exploit their mineral wealth, have become essential matters that need to be mastered by mining law practitioners.
The methods of relating to these features and taking a position are evolving very rapidly. For example, new ways of communicating, especially through social media and modern applications such as Facebook, Twitter and WhatsApp, have brought significant changes to the way information (true or false) is disseminated among society. These new tools have introduced tremendous differences in how communities, populations and groups of interest can mobilise, in favour of or against a certain mining project or operation.
The mining industry, which historically has been poor at communicating, now faces an incredibly challenging environment in which to get its message across.
The countries described in this guide have vast mineral potential. Great parts of territory still have to be properly prospected and explored. Hopes around the globe are for more sensible, less interventionist and more business-friendly policies.
Populations, in particular those from less developed countries, have high expectations.
I believe people from around the world are showing that they eagerly seek greater efficiency, fewer government interventions, privatisations, significant reduction of bureaucracy and a strong fight against corruption and social disparities.
If the leading mining jurisdictions are able to deliver on these demands, there will be great interest from investors in the exploration and mining sectors, which will in turn lead to economic and social prosperity.
This guide aims to provide a wealth of experience in the matters described in this introduction and elsewhere. The guides for each country were prepared by some of the most reputable and experienced law firms in the field of mining law, from a variety of jurisdictions around the world.
I hope you find this book interesting and useful for your work as a mining law professional.