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Defining that which does not want to be defined:
Artisanal and Small-scale Mining
Leon Gerber
International Comparative Mineral Law
10 November 2011 © Leonardus Gerber 1
Outline
1. Defining ASM
2. Identifying the primary concerns
3. Obstacles to formal regulation
4. Addressing the concerns
5. Further reading
http://practicalaction.org
2 © Leonardus Gerber
1. Defining ASM
What is ASM and why is it a problem?
Flexible nature of ASM makes it notoriously difficult to define
Different countries, different definitions – depth, infrastructure, numbers etc.
Some distinction between ‘artisanal’ and ‘small-scale’ – generally considered mutually inclusive
3
Ghana "small-scale gold mining operations" means the mining of gold by a method not involving substantial expenditure
by an individual or group of persons not exceeding nine in number or by a co-operative society made up of ten or
more persons.
Article 21, Small-scale Gold Mining Act, 1989
Uganda "small-scale operations" means prospecting or mining operations which do not involve expenditure in excess of
five hundred currency points or the use of
specialised technology.
Article 2, The Mining Act, 2003
© Leonardus Gerber
1. Defining ASM (cont.)
Traditional ASM
Characteristics:
Communities have ready access
Replaces other grassroots activities
Family trait?
Development out of own accord
Difficulties:
Consider extraction a right
LSM concessions an infringement
4 © Leonardus Gerber
1. Defining ASM (cont.)
Seasonal ASM
Characteristics:
Secondary means of livelihood
Individuals/group migration
Means of offsetting risk
Difficulties:
Migratory nature makes engagement difficult
Regulation hampered by changing jurisdiction
5 © Leonardus Gerber
1. Defining ASM (cont.)
Permanent co-habitation
Characteristics:
Often develops in proximity to LSM
Recovery operations / abandoned areas
Regular influx of miners whom might settle
Outlive LSM operations?
Difficulties:
Mostly potential for illegal activities – trespassing, infringement of rights, theft, damage etc.
6 © Leonardus Gerber
1. Defining ASM (cont.)
Shock ASM
Characteristics:
Sudden changes in economic / geographical factors
• large scale economic collapse, unemployment, retrenchment
• Natural disasters, continued draught
Can be temporary for duration of factors
May develop into complete substitute
Difficulties:
Similar to Influx
7 © Leonardus Gerber
1. Defining ASM (cont.)
Influx ASM
Characteristics:
Sudden establishment of ASM due to discovery
Contrast with shock ASM – absence of external economic / geographical factors
Gold Rushes – Australia, South Africa, Brazil
Miners might work together for specific buyer or pursue individual extraction
Difficulties:
Considerable concern to governments – large numbers vs small area
Overwhelming of existing capacity for service delivery & infrastructure
Difficult to engage & monitor – first stage of mining, disorganised
8 © Leonardus Gerber
1. Defining ASM (cont.)
9
Phases in ASM
Rush Operational Decline
Op
era
tio
na
l in
ten
sity
Time © Leonardus Gerber
1. Defining ASM (cont.)
Importance of phases
Engagement with ASM dependent on phase
Rush:
Lack of coordination between AS Miners
Need for LSM to engage?
Declination:
Little incentive to conform to compliance – short term benefits
10 © Leonardus Gerber
1. Defining ASM (cont.)
So what is ASM?!
Common characteristics:
Regardless of variation in size operates outside of traditional legal corporate structures
Resources extracted includes all but most difficult – tendency towards precious stones, gold & coal
Methods and processes – manual labour, rudimentary equipment, low/no capital input
Typically operate on fringes of law – when not subject to formalisation, exclusion per implication vs inclusion in broad legislation
Significant presence in developing countries – 13-20 mill, 100 mill
11 © Leonardus Gerber
1. Defining ASM (cont.)
12
Definition
Extraction activities that tend to be subsistence based,
technologically, mechanically and capital poor, although containing a
large labour-intensive element, and which often operates on the
border of the law
© Leonardus Gerber
ASM (cont.)
http://www.ghana-mining.org 13
2. Identifying the primary concerns
Majority of ASM illegal – more than 50% in some countries
Criminal element debate – legality issue
Must be recognised before it can be regulated
Prohibition against engagement?
Continued growth of ASM expected given high mineral commodity prices
Governments do not recognise ASM as an economic sector
Biased towards development of large scale mining
ASM either ignored or stifled
Lack of trust in authority, especially in the case of subsistence miners
14
© Leonardus Gerber
2. Primary concerns (cont.)
15
Low savings potential
Inability to invest in tools and equipment
Inability to meet H&S standards
Low productivity
Low returns
Low revenue from mining
The effects of a low-income revenue stream of ASM
Adapted from ICMM, Working Together:
How Large-Scale Mining Can Engage
with Artisanal and Small-Scale Miners)
© Leonardus Gerber
3. Obstacles to formal regulation
Interrelated nature of concerns
Lack of resources available to ASM
Opposition from LSM
Lack of state capacity
Lack of political interest
Lacunae identified in existing regulation:
Delineating ASM
No land available for ASM
Regulations are too complex
Implied application in over-arching legislation
Lack of institutional capacity to implement regulations
Regulation may stifle ASM
16 © Leonardus Gerber
4. Addressing the concerns
Specific legislation:
Framework needs to be sound and appropriate
Simple, transparent process
Have to provide for SHE matters in particular
Provision for a single, well-resourced agency to regulate, as well as facilitate
Encourage legal ASM operations, i.e. tax concessions or forgoing royalties
Include community issues via secondary regulations
Various publications exist, but focus on particular aspect of ASM:
African Mining Vision
CASM and World Bank projects (specifically Africa, Asia and China)
DFID: Livelihood and policy studies in Artisanal mining
ICMM: Working Together – How Large-scale mining can engage with ASM miners
ILO Report: Social and Labour Issues in Small-scale Mines
MMSD: Breaking New Ground
17 © Leonardus Gerber
5. Further reading
UNECA, Compendium of Best Practices in Artisanal and Small-Scale Mining, http://www.uneca.org/sdd/Compendium%20on_best_practices_in_%20smallsacle%20.pdf.
Andrews-Speed, P., Zamora, A., Rogers, C.D., Shen, L., Cao, S., and Yang. M. (2002). "A framework for policy formulation for small-scale mines: the case of coal in China," Natural Resources Forum, 26, pp. 43-52.
Communities and artisanal & small-scale mining. A global partnership for action (CASM, 2008) at http://www.artisanalmining.org/userfiles/file/9th%20ACC/10th%20Session/CASMSept10PM_Session9_GotthardWalser_AnnualProgressReport.pdf.
Banchirigah, S.M., How have reforms fuelled the expansion of artisanal mining? Evidence from sub-Saharan Africa, 31 3 Resources Policy (2006) 165.
Certification and Artisanal and Small-scale Mining: An Emerging Opportunity for Sustainable Development (CASM, 2008) at http://www.artisanalmining.org/userfiles/file/casm-fairtrade.pdf.
Ali, S.H., Mining, the Environment, and Indigenous Development Conflicts (Tucson, USA: University of Arizona Press, 2003).
Aryee, B.N.A et al, Trends in the small-scale mining of precious minerals in Ghana: a perspective on its environmental impact, 11 Journal of Cleaner Production (2003) 131.
18 © Leonardus Gerber
5. Further reading (cont.)
Artisanal and Small-Scale Mining (ASM), CommDev, World Bank at http://commdev.org/section/topics/artisanal_mining.
Hentschel, T., et al, Artisanal and Small-Scale Mining: Challenges and Opportunities (MMSD, 2003) at http://commdev.org/content/document/detail/1044/.
AngloGold Ashanti, 2006 Annual Report: AngloGold Ashanti’s approach to artisanal and small-scale mining at http://www.anglogold.co.za/subwebs/informationforinvestors/reporttosociety06/artisanal-mining.htm.
Vlassenroot, K et al (eds.), Artisinal diamond Mining: Perspectives and Challenges (Gent, Belgium: Academia Press, 2008).
Barrick Gold Corporation, Porgera Joint Venture - Illegal Mining at http://www.barrick.com/CorporateResponsibility/KeyTopics/PorgeraJV/IllegalMining/default.aspx.
CASM: Small Stories – 12 Stories about Small-Scale Mining () at http://www.artisanalmining.org/userfiles/file/CASMshortstoriesBooklet_FINAL_low.pdf.
EITI, Advancing the EITI in the Mining Sector: A consultation with stakeholders (2009) at http://eiti.org/files/MINING%20Compressed.pdf.
Hilson, M. (ed), The Socio-Economic Impacts of Artisanal and Small-Scale Mining in Developing Countries (Lisse, The Netherlands: Swets & Zeitlinger, 2003).
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© Leonardus Gerber