The crux of the dispute on the Mines and Mineral Bill 2020 between the two Houses was on the privatization of mines. Lifting the moratorium on mining may further complicate the matter.  While leasing of mine is authorized by the Mines and Mineral Act (MMA), 1995 and such a step promotes private sector growth and development, it raises a constitutional question of sovereign right over the natural resources as well as intergenerational equity and benefits to every Bhutanese.  

Article 1(10) of the Constitution nullifies “the provisions of any law, whether made before or after the coming into force of this Constitution, which are inconsistent with this Constitution.” This means, if any provision of MMA is inconsistent with the Constitution, this law in its entirety or provision becomes null and void. Kuensel reported that the revised Mines and Minerals Rules and Regulations 2022 was vetted by the Office of the Attorney General to ensure that it does not violate MMA, but it does not state if OAG is also vetted against Article 5 of our Constitution.

Article 5 (1) makes “every Bhutanese a trustee of our natural resources and environment for the benefit of the present and future generations.”  This Article also imposes the “fundamental duty of every citizen to contribute to the protection of the natural environment, conservation of the rich biodiversity of Bhutan and prevention of all forms of ecological degradation.”  Further Section 4 mandates Parliament to ensure sustainable use of natural resources and maintain intergenerational equity and reaffirm the sovereign rights of the State over its own biological resources.”  Thus, natural resources must be protected and maintained for intergenerational equity. This means, for example, mining must be such that all the benefits are not taken by the present generation, but the benefit is passed down to future generations. His Majesty the Fourth Druk Gyalpo, said, “when we hand over our country to our children, we should not only hand over a secure and sovereign country but an environmentally rich country.”  The chairman of the Constitution Drafting Committee noted, “intergenerational equity is a notion that is explicit in ecological sustainability. The Constitution holds that each generation should inherit the same diversity” so that there is fairness between different generations. Neither the MMA nor the revised Rules guarantee that right.

Article 5(4) also states that biological resources are sovereign rights. Sovereign rights are rights that rest with the state and are not available to private individuals or privatization. By this definition, natural resources cannot be privatized. Explaining the rationale behind 60% forest coverage, Drugyel Zhipa said “there are chances that political parties will exploit our forest to great extent by making various policy as they have only years tenure…if our government for maximizing revenue and to convince the people, cuts the forest and sells them, it will be a serious problem for our country.” Privatizing mines and minerals may benefit a handful of Bhutanese- against the spirit of the Constitution. How prepared is the government, if private entities drag the government to the court to recover their expenditure in case Parliament enacts the law retaining complete sovereign rights, cancelling all the lease agreements? Thus, this new development needs a thorough review before it is implemented, particularly intergenerational equity and benefit to every Bhutanese and vulnerability of such a scheme to political abuse or policy corruption in future. 

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.