1. 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

2. Outline
1. Defining ASM
2. Identifying the primary concerns
3. Obstacles to formal regulation
4. Addressing the concerns
5. Further reading
http://practicalaction.org
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© Leonardus Gerber

3. 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.
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
 Some distinction between ‘artisanal’ and ‘small-scale’ – generally considered
mutually inclusive 3
© Leonardus Gerber

4. 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
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5. 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
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6. 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.
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7. 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
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8. 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
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9. 1. Defining ASM (cont.)
Phases in ASM
Operational intensity
Rush Operational Decline
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Time © Leonardus Gerber

10. 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
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© Leonardus Gerber

11. 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
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© Leonardus Gerber

12. 1. Defining ASM (cont.)
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
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© Leonardus Gerber

13. ASM (cont.)
13 http://www.ghana-mining.org

14. 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

15. 2. Primary concerns (cont.)
The effects of a low-income
revenue stream of ASM
Low revenue Low savings
from mining potential
Inability to
Low returns invest in tools
and equipment
Inability to
Low productivity meet H&S
Adapted from ICMM, Working Together: standards
How Large-Scale Mining Can Engage
with Artisanal and Small-Scale Miners) 15
© Leonardus Gerber

16. 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
16  Regulation may stifle ASM
© Leonardus Gerber

17. 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
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© Leonardus Gerber

18. 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_Sessio
n9_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.
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© Leonardus Gerber

19. 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
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Countries (Lisse, The Netherlands: Swets & Zeitlinger, 2003).
© Leonardus Gerber