iPost

Mining in Protected Areas?

I. Introduction

Cambodia needs sound policy to manage its abundance of natural resources. This resource management policy should strike a good balance between resource conservation and resource utilization and take into account the values of different kinds of resources. This balanced and comprehensive policy is needed, for instance, to resolve the tension between the preservation of an ecosystem and the utilization of the minerals in the ground below it, so as to give maximum benefits to the people. To achieve this kind of policy, diverse stakeholders should be engaged, and the current legal framework needs to be reviewed at some point.

Focusing on the issue of mineral operations in natural protected areas, this article aims to offer a common point of discussion on this issue for diverse stakeholders and provide a general review of the issue’s legal framework. It does so by attempting to answer the question: Are mineral operations allowed in natural protected areas? First, key rules from key legal instruments are introduced. Second, relevant provisions of the Law on Natural Protected Areas are described. These provisions are described, in three groups, to demonstrate that although mineral operations are not entirely prohibited, they are highly restrained by law in natural protected areas. Finally, the rules described are synthesize to give a basic and general answer, and a few legal issues are recommended for further discussion.

II. Key Instruments

In 1993, per a royal decree signed on November 1, twenty-three protected areas were established nationwide.[1] They were classified into four management categories based on their values: national parks, wildlife sanctuaries, protected landscapes and multi-use areas. In 1994, the State Secretariat of Environmental Management—the agency responsible for managing these protected areas—issued a prakas prohibiting mineral exploration and exploitation in them.[2] In 2001, this ban was implicitly lifted by the Law on Management and Exploitation of Mineral Resources (“Mining Law”).[3] This law allows mineral operations to take place in protected areas, but requires the operator to obtain a written approval from competent authority.[4] In 2008, the Law on Natural Protected Areas (“Protected Areas Law”) was promulgated.[5] This law imposes a management zoning scheme and a set of conservation rules that limit the extent to which mineral operations may be permitted and carried out in natural protected areas.[6] No major change has happened since. Together with their supporting regulations, the Mining Law and the Protected Areas Law make up the rules governing mineral operations in natural protected areas.

III. Basic Rules from the Law on Natural Protected Areas

A. Terminology

For clarity, some terms need to be clarified. All uses of the phrase “natural protected areas” in this article refer to the estate identified in Article 2 or established under Article 7 of the Protected Areas Law. Article 2 states that the law applies to all natural protected areas established under:

  • 1996 Law on Environmental Protection and Natural Resource Management[7] (“Environmental Protection Law”);
  • 1993 Royal Decree on the Establishment and Determination of Natural Protected Areas;[8]
  • 2001 Royal Decree on the Establishment and Management of Tonle Sap Biosphere Reserve[9]; and
  • Other instruments.[10]

Besides the vagueness of “other instruments,” Article 2 also leads to some remarkable overlaps and ambiguities. As an example, the Tonle Sap Biosphere Reserve has three core zones that are regarded as “equivalent to national parks or wildlife sanctuaries.”[11] Confusingly, however, the three core zones lie inside the Tonle Sap Multiple-Use Area established under the 1993 Royal Decree, whereas the whole biosphere reserve envelops it. It is unclear how many natural protected areas there actually are in this case. Due to their potential complexities, these ambiguities are better discussed outside this article. Suffice it to say that there were at least 23 natural protected areas, and likely more, immediately after the Protected Areas Law became effective.

In 2016, twenty-one new natural protected areas were established under Article 7 of the Protected Areas Law.[12] Therefore, as of the currency date of this article (September 1, 2017), Cambodia had at least 44 natural protected areas, and likely more. This point forward, these natural protected areas are referred to as “NPAs”.

In this article, “mineral operations” is preferred over “mining” for a few important reasons. First, for those who are not familiar with the sector, “mining” could foster the simplistic view that it is all about digging, drilling, quarrying or similar activities that constitute different forms of mineral extraction. However, looked at in details, “mining” involves different stages that variably affect land surface and the underground. There are a huge number of “mining” techniques for various types of minerals. Some minerals that come in the form of ore also need processing before they can be profitably transported from the mine sites. Second, some necessary supporting activities are not per se “mining” by any stretch of the word’s definition. Most important among these is the building of supporting transportation infrastructure.

Last but not least, “mineral operations” is the phrase used in the Mining Law itself. Article 3 of the Mining Law defines “mineral operations” as “mineral prospecting, exploration and exploitation;”[13] and each of the three terms is further defined. “Prospecting” is a “preliminary” exploration that “minimally affects” land surface. “Exploration” involves “prospecting; geological, geophysical and geo-chemical analyses; and digging, drilling, transportation and analyses of the ground, silt, water, rock and ore samples.” “Exploitation” means the “extraction of mineral resources from a reserve and the processing, transportation, sales and exports thereof for commercial purposes.”

This article reserves the meaning of “mineral operations” as defined by law, but the discussion also involves necessary supporting activities, such as the building of supporting infrastructure. As seen below, the Natural Protected Areas Law affects supporting activities, as well as the mineral operations themselves.

B. Mineral Operations under NPAs’ Management Zoning Scheme

The first group of provisions of the Protected Areas Law that restricts mineral operations in NPAs are found in Chapter 4 (Determination and Categorization of Management Zones). Under this chapter, each NPA is divided into management zones, of which there are four types: core zones, conservation zones, sustainable use zones, and community zones.[14]

Core zones are identified by their high values for the conservation of threatened plant and animal species and fragile ecosystem. Entry into core zones is generally prohibited, except for two categories of enterers: officials of the Administration for Nature Protection and Conservation Administration (“ANPC”)—the agency established with the duties to implement the Protected Areas Law on behalf of the MoE—and conservation researchers who have obtained permission from the MoE.[15] Consequently, mineral operations of any kind are prohibited in core zones.

Conservation zones are “adjacent to core zones.” Entry into conservation zones is also prohibited unless the enterer obtains prior permission from the ANPC.[16] The law is silent as to whether any activities of the type of mineral exploration and exploitation may be authorized in conservation zones, but the answer tends to the negative because a conservation zone is “valued for its conservation capacity,” and even local communities’ subsistence harvesting of natural resources in these zones is required to not “significantly affect biodiversity” and is subject to “close monitoring” by the ANPC.[17] Inferably, then, any activity that significantly affects biodiversity is subject to higher monitoring, and possibly prohibition.

Complimentary to conservation zones, sustainable use zones are identified by its high economic values that serve, inter alia, “national economic development.”[18] No express authorization exists for mineral operations, but the Royal Government may authorize “development and investment” activities in these zones, upon request by the MoE after due consultation with relevant government institutions and the local communities.[19] At large, mineral operations reasonably qualify as “development and investment” activities. Thus, subject to procedures, they may be allowed in sustainable use zones.

Finally, community zones serve the economic and social development of the local communities, especially aboriginal communities, in NPAs. Land use structures in these zones includes dwellings, rice paddies and crop farms.[20] Neither express permission nor prohibition of activities of the type of mineral operations can be found. However, if they are allowed, they should satisfy the policy requirement for these zones, which is to improve the lives of the local communities.

Permissibility of mineral operations in sustainable use zones and community zones are supported by the Mining Law and its accompanying instruments, most notably the 2016 Sub-Decree on the Management of Mineral Exploration Licenses and Industrial Mining Licenses (“Sub-Decree 72”)[21]. Article 7, paragraph 2, of the Mining Law states, “Before entering areas owned by the State that have been determined as protected areas, reserved areas, or prohibited areas to explore for or exploit minerals, a licensee must have a written permission from the competent institution or an inter-ministerial institution charged with managing said areas.” Article 10 of Sub-Decree 72 clarifies and reiterates this point. It states that mineral exploration licenses and industrial mining licenses may be granted in natural protected areas, subject to compliance with the law and regulations governing these areas, and assent from the ministry or institution managing these areas. For mineral operations on private land, Articles 7, 25 and 26 set out the requirements and procedures for obtaining agreement and offering compensation to affected possessor or owner of the land.

In summary, mineral operations are prohibited from core zones and most likely prohibited from conservation zones; while they are permissible in sustainable use zones and community zones, subject to certain conditions, policy requirements, and certain procedures.

C. Administrative Decisions on Permissible and Prohibited Activities in NPAs Guided

It is introduced above that permissibility of mineral operations in parts of an NPA is subject to approval from competent authority. Depending on the approval in question, the competent authority can either by the ANPC, the MOE or the Royal Government. According to the most recent administrative changes, the ANPC has become the General Department of Administration for Nature Conservation and Protection (“GDANCP”).[22] In any case, their approvals are not entirely discretionary. They are guided by the Protected Areas Law itself, especially by Chapter 8 (Authorization, Prohibition, and Environmental and Social Impacts Assessment).

As a framework, Article 35 authorizes the Minister of Environment to issue permits and enter into agreements to conserve and manage natural resources in NPAs. To limit this power, Article 43 states that:

“No natural or legal person has the right to approve, whether directly or indirectly, the clearing of forest, possession of land, felling of trees, capturing of all types of wild animals, or any other activities to harvest products or derivatives of forests and natural resources in natural protected areas contrary to the provisions of this law.” (emphasis added)

The articles in between (Articles 36-42) provide substantive guidance. Article 36 prohibits the clearing of forests for the construction of public infrastructures through core zones and conservation zones. Impliedly, clearing of forests for the construction of private infrastructures in core zones and conservation zones is likewise prohibited. Otherwise, it would mean that private interests are ranked higher than public interests. This would be a legally absurd interpretation. This prohibition extends to most construction of infrastructures, which are large enough to require substantial forest clearing, necessary in supporting mineral operations.

Article 41 states, “Natural protected areas must be protected from such actions, and such actions must be prevented, which damage or negatively impact in natural protected areas (sic)”. Then a list is provided, from which activities related to mineral operations can be found. Items 3 (cutting down of trees), 5 (any form of depletion of water quality, including the use of chemical substances) and 7 (damages done to natural grassland, plants and wildlife habitats) may from time to time become part of or incidental to mineral operations.

Article 42 prohibits the processing of natural resources products and the presence of all types of “refineries.”[23] One may argue that this article prohibits mineral ore refineries in NPAs.

In tandem with Article 43, these substantive articles limit the extent to which mineral operations may be allowed in NPAs.

D. Natural Resource Offenses

Mineral operations in NPAs are also highly restrained by provisions regarding natural resource offenses. Article 45 states that all “natural resource offenses committed in natural protected areas are crimes of special characters as defined by this law.” These offenses are then listed along with their corresponding penalties in Chapter 10. Relevant offenses and corresponding information are listed in the table below.

Natural Resource Offenses that May Apply to Mineral Operations

No.

Article

Act

Natural Resource Offense Level

Remarks

1

Art. 57, item 5 Import of any means to explore for and transport natural resources I Needs authorization

2

Art. 58, item 6 Import of chainsaws or any machinery I
(plus extra fine)
Needs authorization

3

Art. 59,
items 1 and 2
Cutting down trees/plants I-II Highly Likely

4

Art. 59,
items 3 and 4
Transportation, collection and storage of natural resources or their derivatives I-II Needs authorization

5

Art. 60, item 1 Using any toxic substance that (negatively) impacts natural resources II Possible

6

Art. 60, item 3 Disturbing or destroying mating, spawning or nesting sites II Possible

7

Art. 60, item 5 Usage of any device that causes noise pollution, vibration, wave or smoke II Highly Likely

8

Art. 62, item 3 Import or storage hazardous waste that cause or may cause damage to natural resources IV Possible

9

Art. 62, item 5 Land clearing or digging or the extraction of rocks, gravels, sand or minerals IV Needs authorization

The column “Act” describes the acts that comprise a natural resource offense under the articles referred. There are four levels of natural resource offenses, with varying degrees of punishment in terms of fine and incarceration time, ranking from Level I the least serious to Level IV the most serious.[24] The corresponding offense levels are shown next to the acts. The column “Remarks” summarizes the potential limitations on the corresponding mineral operations.

All mineral operations will include the acts marked “Needs authorization” (Nos. 1, 2, 4 and 9) at some point. These acts become part of an offense only when they are not unauthorized. It is not stated from whom the authorization has to be sought in each case, but it can be inferred that such authorization must be obtained from the MoE or its subordinate units, and perhaps the Royal Government in some rare cases. Acts marked “Possible” (Nos. 5, 6 and 8) might or might not happen, depending on the type of mineral operations in question and how they are carried out. However, if any of the acts is committed, it constitutes a criminal offense regardless of whether any authorization is obtained. This means mineral operators must be diligent in avoiding these acts.

The highest legal risks are found in the items marked “Highly Likely” (Nos. 3 and 7). A majority of NPAs are forests. Depending on the NPA concerned, the cutting down of or damages to trees (No. 3) are highly likely for many mineral operations.  Noise and air pollution (No. 7) are also very likely, especially for exploitation activities. Based solely on Chapter 10, these acts constitute criminal offenses regardless of authorization.

Nonetheless, the law contains an internal conflict. Developmental activities are expressly allowed to be authorized in sustainable use zones by the Royal Government. However, almost all developmental activities of economic nature imply the necessity of some actions that are prohibited or criminalized by the provisions of Chapter 10 (e.g., clearing of forest land, construction of infrastructure). The conflict between these two sets of rules need to be reconciled. This point may reasonably be raised to defend activities that are prohibited or criminalized generally, but which may narrowly be carried out in sustainable use zones with the express authorization from the Royal Government. Absent clear jurisprudence, however, the risks of violating the law remain, and utmost cautions need to be taken by both investors and public officials to avoid violating the law.

IV. Putting It Together: Mineral Operations in NPAs under Protected Areas Law

Combining the rules regarding the management zoning scheme of NPAs (Chapter 4), general permission and prohibition of activities in NPAs (Chapter 8), and natural resource offenses in NPAs (Chapter 10), we can conclude that mineral operations are allowed, but to a very limited extent in NPAs, and are accompanied with legal risks:

  • Mineral operations are not allowed in core zones, because entrance is generally prohibited to anyone other than DGANCP officials and authorized researchers.
  • Mineral operations are most likely not allowed in conservation zones, partly because doing so would violate the management policy for the zones, partly because of the prohibitions of Chapter 8, and partly because the operators would risk committing natural resource offenses, without any legal protection available.
  • Mineral operations may be allowed, though with some legal risks, in sustainable use zones because they are developmental activities that are in line with the general management policy of the zones. The legal risks arise from the risks of committing natural resource offenses. Care must be taken to avoid activities that may comprise these offenses; and where necessary or when the rule is unclear, prior authorization must be obtained from relevant authorities, especially the MoE and its subordinate units, and at times the Royal Government.
  • It is unclear whether mineral operations may be allowed in community zones, but the answer tends to the negative. This is because mineral operations are not in line with the management policy for these zones, and there is no express authorization for the Royal Government to permit developmental activities in these zones. These factors heightened the legal risks of committing natural resource offenses in these zones on the operator’s side and the risk of violating Chapter 8 provision on the government’s side.

As said above, this answer is both basic and general. First, it treats “mineral operations” broadly as such, for the reasons already stated. Second, the answer here is based only on the Protected Areas Law. This leaves room for more clarification and discussion based on specific cases. The Protected Areas Law was promulgated in 2008, seven years after the Mining Law was promulgated. Since the Protected Areas Law does not have any transitional provisions, mineral operations that are affected by the change of law need to be looked at on a case-by-case basis.

Second, the many regulations are still needed to fill in the regulatory sockets left open in the protected areas law. Not all of these regulations are available, at least not to all relevant stakeholders. Also, some NPAs have not yet been divided into management zones. These regulatory vacuum leaves a varying degree of uncertainties from case to case, as to whether mineral operations can be allowed in the NPA concerned.

Another important point to consider is more policy-oriented. The Protected Areas Law focuses on the “preservation” side of resource management. While it does mention “development,” the law’s treatment of “development” is general and limited. For specific cases, incorporation of other sector’s laws and reliable assessment of the comparative values of the specific development activities are needed for a better analysis. Nonetheless, the basic answer this article provides is a starting point for more in-depth legal, as well as policy, discussion.

Disclaimer: This article is intended to share knowledge and foster discussion. No part of this article may be used as representation of or to infer the official legal opinion of the author or any other entity.

Suggestions for corrections and discussions are warmly welcomed!


[1] Royal Decree [no number] on the Establishment and Determination of Natural Protected Areas, dated November 1, 1993.

[2] Prakas No. 1033 បដ្ឋ.ន.ក.ធ [no title], dated June 3, 1994, Art. 4.

[3] Royal Statute NS/RKM/0701/09, dated July 13, 2001.

[4] Ibid., Art. 7, par. 2.

[5] Royal Statute NS/RKM/0208/007, dated February 15, 2008.

[6] Ibid., Ch. 4.

[7] Royal Statute NS/RKM/1296/36, dated December 24, 1996.

[8] Footnote 1.

[9] Royal Decree NS/RKT/0401/070, dated April 10, 2001.

[10] Read in conjunction with Art. 7 and definitions defined in the Annex, most likely refer to Ramsar Sites, and potentially buffer zones of national heritage sites.

[11] Royal Decree on Tonle Sap Biosphere Reserve (Footnote 9), Art. 3.

[12] Sub-Decrees 74-90 ANK.BK, dated May 9, 2016 (17 sub-decrees); Sub-Decree 100 ANK.BK, dated May 23, 2016; and Sub-Decrees 187-189 ANK.BK, dated September 13, 2016 (3 sub-decrees).

[13] Mining Law, Article 3.

[14] Protected Areas Law (footnote 5), Art. 11.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Sub-Decree No. 72 ANK.BK, dated May 5, 2016.

[22] Sub-Decree No. 135 ANK.BK on the Organization and Functioning of the Ministry of Environment, dated July 5, 2016, Art. 20.

[23] The Khmer word is “ឡ” which is remarkably open to interpretation. It is worth mentioning in this context because nothing in the text of the law prevents this article from being applied to mineral ore refineries.

[24] Protected Areas Law (footnote 5), Art. 56.

One thought on “Mining in Protected Areas?

  1. I’m a western lawyer working in Cambodia as a legal consultant to various organizations. I mainly work on development-related social and environmental impact issues including involving indigenous people. I want to better understand the law concerning mineral operations. I find your writings extremely helpful. Thankyou for them.

    May I ask: what if any environmental and/or social harms are now occurring because of mineral operations, that might be avoided by a better understanding and/or a more proper application of existing law?

    (Note re what you wrote above about the protected areas law: the law’s lexicon explicitly says “mining” is allowed in the SUZ.)

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s