| dc.description.abstract | The purpose of this study was to determine whether it is possible to harmonize mining
legislation in the SADC region and if it is possible, to make recommendations how the
harmonization should take place to be inline with the terms of the SADC Mining
Protocol.
The Constitutive Act of the AU stipulates that member states should integrate and
harmonize policies to promote environmental protection. The African Charter on
Human and Peoples Rights stipulates coordination. The SADC's Constitutive Act
stipulates harmonization. The Treaty instituting the African Economic Community
stipulates harmonization, coordination and integration. The Mining Protocol of SADC
got similar stipulations.
Various forms of harmonization exist. For purpose of this study, minimum
harmonization is the most suitable form because with minimum harmonization a
standard is set which member states legislation must satisfy. Legislation does not need
to be identical and each country my still draft legislation to fit there own circumstances.
For the purpose of this study, harmonization can be defined as the exclusion of
opposites in mining legislation and the draft of a communal standard to which
legislation must comply. This way no state or person will be advantage or
disadvantage. International standards of sustainable development must be promoted
and the concept of state sovereignty must be kept in mind. The legislation must
'comply' with each other on the most important aspects in the mining process. This
will not come down as integration or coordination because harmonization does not aim
to bring legislation together as a hole.
There already exists attempts in the AU and SADC to harmonize mining legislation but
it is vague and not enforceable.
Mining legislation should not only be in accord with the AU and SADC environmental
rights and stipulations but a.lso with the constitutions of the different countries.
The Mining Protocol determine, among other things, that communication between
member states must be promoted and information must be exchanged, member states
undertake to adopt and develop international standards of health, mine safety and
environmental protection. One of the Protocol's purposes is to assure the sustainability of mineral resources and the protection of the environment. The Mining Protocol does
not set specific standards for legislation.
There exist international standards for the three phases of mining. Legislation must
comply with these standards.
Some of the legislation applicable to mining in South Africa is the MPRDA, NEMA and
there regulations. In Mozambique it is, among other, the Mining Law, Environmental
Regulations for Mining Activities en die Mining Law Regulations. In Tanzania it is,
among other, the Mining Act and the Environmental Management Act. There are
similarities as well as differences in this countries' legislation. Despite this, the
legislation must still be in line with the Mining Protocol.
A minimum standard must beset and all member states' legislation must comply to
that. The mining Protocol must be adapted to determine that all member states' must
comply with these minimum standards and their legislation must be adjust according
there to, within a specific time. | en_US |
