Kathmandu, Bhadra 08 - The proposed Mines and Minerals Bill, 2083 has left many questions about the extent to which the Parliament would be able to delegate lawmaking and rule-making powers to the federal government. The bill, which is meant to replace the existing Mines and Minerals Act, 2042, has 63 sections and aims to modernize the legal framework for conservation, exploration and extraction of mineral resources in the federal system in Nepal.
the proposed bill uses expressions such as “as prescribed” and “as determined” in 38 different provisions, leaving several significant matters to be decided later through regulations, directives, procedures or standards issued by the government. These include, but are not limited to, mineral exploration and extraction, licensing requirements, technical and financial considerations, resource conservation, royalties and local mineral use fees.
The proposed Mines and Minerals Bill, 2083 proposes that extraction of minerals will generally remain under the jurisdiction of the federal government. Provincial and local governments, however, might be able to start extracting minerals that have been designated to them in the Gazette notification.
Local governments would also be responsible for the mineral resources for which they would be responsible within their own jurisdictions. But a number of key operating and regulatory aspects would be dealt with in delegated legislation and not in the Act itself. The suggested framework has thus triggered debates on the scope of the executive's powers and the need for Parliament to specify it more clearly.
The bill also suggests the possibility of issuing mineral exploration licenses pursuant to provincial legislation and the federal government would be allowed to explore certain minerals through the Department of Mines and Geology. Several important aspects of the licensing system, including the qualifications of companies applying for exploration licenses, license conditions and the maximum number of explorations permits, would largely be determined through rules or other subordinate legislation.
This has raised the question over what would become of the substantive aspects of the mineral licensing regime until the government could provide new regulations and related legal instruments. The main issue that has been raised about the Bill is whether it is seeking to leave to the executive decision making after the Act is passed, issues which should be clearly delineated by Parliament in primary legislation.
Parliamentary committees have already expressed concern about the use of delegated legislation in Nepali laws in particular the bills where powers are delegated to the government without adequate specification of nature, scope, limits and potential impact of delegated powers. Delegation is not uncommon where legislative powers are concerned. Some flexibility is needed for the governments to define technical standards, administrative procedures, other implementation mechanisms. But if delegated powers include important policy decisions, rights and responsibilities, or financial implications, questions arise.
The debate surrounding the Mines and Minerals Bill is indicative of the overall problem with the legislative approach in Nepal. Laws often provide general guidelines and leave many details to following regulations, directions and procedures. There has been debate both among the legal profession and among parliamentarians that delegated legislation is essential for effective implementation, but that Parliament should retain control over major policy decisions and clearly define the boundaries within which the executive can exercise delegated powers.
This distinction is especially relevant for the mining sector as decisions made on mineral extraction, exploration licenses, royalties, conservation obligations and local government revenues can have economic and administrative impacts. As the Mines and Minerals Bill, 2083, moves through the legislative process, the debate is therefore more about the way mineral resources should be managed in Nepal, but also about how the discussions will be shaped. The question of how much authority can be delegated to the executive when establishing a new legal framework is also raised which is fundamental to the Nepal's law-making system.
Source: Online Khabar
