Questioning OAG’s interpretation, the House proposed an amendment of the Mines and Minerals Management Act 1995

National Council members yesterday, proposed to initiate works to amend the Mines and Minerals Management Act 1995 (MMMA) to make it more relevant and aligned to the provisions in the Constitution.

Eminent member Tashi Wangyal and members from Samtse, Zhemgang, and Dagana said that the government has not kept its word to table the bill for amendment.

Members called for an amendment after Tashi Wangyal reported the government’s response to the Council’s recommendations on the Mineral Development Policy 2017 (MDP) and to cease renewal of lease until the Act is amended.

The economic affairs ministry in its response to the Council had stated that the government consulted the Office of the Attorney General (OAG), which clarified that the MMMA is the standing law to regulate the use and management of mineral resources including royalties for the sites.

“The OAG in its letter has not indicated any conflict between provisions of the MMMA 1995 and the Constitution,” the economic affairs ministry’s response stated.

“Further, the OAG also informed that they do not find the need to make a further determination on the issues as the MMMA is the standing law for the state action as required by the Constitution.”

“As the OAG has clarified that the MMMA 1995 is the standing law, the matter was put up to the economic affairs minister who has directed to implement the MDP 2017 in order to not hamper economic activities in the country,” the response stated.

Eminent member Tashi Wangyal said that OAG’s interpretation of the laws could not be considered final and correct citing instances of how OAG’s interpretations were overruled by the courts. “We’ve to remember that OAG is the legal advisor of the government,” he said.

He said that the government as a political party has to depend on potential donors, which in the case of Bhutan are mostly the mining conglomerates. However, he said the Council should keep the moral pressure on the government to act.

The Council recommended the government to stop the implementation of section 3.4.2 of the Mineral Development Policy 2017 stating that it is not in line with the Constitution. Section 3.4.2 states, “The lease tenure shall be issued for the expected life of the mines up to a maximum of 30 years”.

The ministry’s response to the Council states that the section is in harmony with the provisions of other policy and laws such as the Economic Development Policy 2017, the Land Act 2007, and the Mines and Minerals Management Rules 2002, which permit the lease of minerals or land up to 30 years.

Section 20 of the MMMA 1995 states that “a mining lease shall be given for a specific period and under terms and conditions as stipulated in the mining lease agreement” and section 37 of the MMMR 2002 provides that “a mining lease shall be given and renewed for such period as specified in annex four of these regulations…” Annex four of the existing MMMR 2002 allows the lease for a maximum period of 30 years.

The ministry’s response stated that in line with the above provisions and according to the Department of Geology and Mines (DGM), they have been entertaining mining lease for varying periods based on the size, type, viability of the mine but has never leased any mine for 30 years.

For instance, the two captive mines for Dungsam Cement project was leased for 25 years each, and Geerja Stone Quarry in Thimphu was leased for 20 years. Similarly, there are also mines leased for 15 years although most are leased for 10 years. So far most of the renewals of leases have been limited to five years only.

The Council had asked the government to urgently impose a moratorium on issuance of any new leases to private individuals and businesses until the MMMA 1995 was amended so that the main law governing the mining and mineral sector is in line with the Constitution, in particular, Article 1.12 and Article 9.7 and aligned to the vision of a just and harmonious society.

Tashi Wangyal said Article 1.12 of the Constitution vests rights and ownership over mineral resources to the State and requires the sector to be regulated by law; and Article 9.7 calls for development and execution of policies to minimise inequalities of income and concentration of wealth, among others.

In November last year, the DGM wrote to the Council that the Act could not be reviewed because of lack of budget.

Members said that the economic affairs minister Lekey Dorji, in the 19th session during a question-answer session, had said that the bill would be tabled soon but there was mention of an amendment in the response despite this session being the last session of the government.

Samtse NC member Sangay Khandu said in pushing the ball from one to another, the opportunity to table such an important bill is missed.

As proposed by Tashi Wangyal, Chairperson Sonam Kinga said that the Council secretariat would write to the ministry for a list of the lease issued since 2008 and applications for lease during this government’s term before this session ends.

He said the issue needs to be resolved quickly and the members would meet separately to decide on whether or not to initiate processes to table the amendment of the MMMA 1995 in the next session.

“This may be the last session of our term but there is enough time to prepare the bill to be tabled in the next session, if we decide to amend,” Sonam Kinga said.

Tshering Palden