Williams - Legal Reforms in Mining : Past Present and Future

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Transparency and Accountability

Policy, Legal and Contractual Framework

Sector Organization and Institutions

Fiscal Design and Administration

Revenue Management and Distribution

Sustainable Development

Williams, J.P., Legal Reforms in Mining: Past Present and Future, in International and Comparative Mineral Law and Policy, Trends and Prospects, Bastida, E., Wälde, T., and Warden-Fernandez, J. (eds.), (Netherlands: Kluwer Law International, 2005)

This paper offers a comprehensive examination of past and present features of mining law reforms around the world in order to draw conclusions on lessons learned from past reforms and ascertain trends among current mining law reforms.

The author examines four components of mineral law reforms including: the motivating set of goals and objectives; analysis of defects in existing law that needs to be corrected in order to achieve the given goals and objectives; the changes considered necessary to correct those defects; and, finally, the capabilities of bringing about those changes. With these key components as a guide, Williams traces the evolution of the reforms as they relate to the development of a country's mining sector keeping sight of their historical progress from pre- to post-World War II era to the advent of the Cold War with its tendency of splitting Eastern and Western mineral rights and ownership ideology and ultimately to the post-Cold War era towards a shift in dimension in favor of private ownership and promotion of investment and competition among key resource-rich states. The mining law reforms of the 1990’s, thus, were based on the belief that mineral resource development was more efficiently carried out by private enterprise under the competitive market than by the state. Analysis of the defects underpinning the reforms in the 1990’s, however, suggests that too much credence was given to the private sector especially as there was growing concern with the need to hold mining companies accountable for the social and environmental impact of their operations.

As noted by the author, the current theme is a re-orientation of the role of the state from owner-operator to regulator in favor of national political goals. This re-orientation stems from the lessons learned from the preceding decade but also from the increase of globalization and the proliferation of civil society interest groups. Governments are under more pressure to balance the needs of local communities with other developmental goals. Though such a shift is inevitable, it is argued that the success of any legal reform is dependent on the ability of policy makers to balance the needs of all interested parties as they work together to reduce the effects of these changes. 

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