Environment

Principal applicable environmental laws

What are the principal environmental laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?

The principal environmental health and safety laws applicable to the mining industry are the Environmental Act, the Occupational Health and Safety Act No. 36 of 2010, the Mines and Minerals (Environmental) Regulations No. 29 of 1997 and the Environmental Protection and Pollution Control (Environmental Impact Assessment) Regulations SI No. 28 of 1997 (EIA Regulations).

The principal regulatory bodies responsible for administration of the environmental, health and safety protection regulatory framework are ZEMA, the Ministry (Mines Safety Department) and the Occupational Health and Safety Institute.

Environmental review and permitting process

What is the environmental review and permitting process for a mining project? How long does it normally take to obtain the necessary permits?

The EIA Regulations specify that any person who, or entity that, proposes to undertake a new project which under the EIA Regulations requires an environmental impact assessment (EIA) to be undertaken must have an EIA conducted before the commencement of the project. The EIA Regulations provide that mining operations require an EIA to be undertaken. The nature of the project will determine whether the developer should prepare an environmental project brief (EPB) or an environmental impact statement. The EPB should set out the objectives and nature of the project, the main activities to be undertaken before, during and after the commencement of the project, the socio-economic impact of the project on the people that will be affected, and also the perceived socio-economic impact of the particular project on the environment, following the procedures set out in the EIA Regulations.

Where an EPB is submitted, it is considered by the ZEMA, which determines whether the project is likely to have a significant impact on the environment, and shall, within 40 days of receiving the EPB, approve it if satisfied that there will be no significant impact on the environment or that the EPB discloses sufficient mitigation measures to ensure the acceptability of the anticipated impact. If ZEMA determines that the project is likely to have a significant impact on the environment, it will require the developer to prepare an EIS. ZEMA shall assess the EIS in accordance with the procedures in the EIA Regulations and eventually issue a decision stating that the project is approved, rejected or approved subject to the developer meeting certain conditions.

The process of obtaining the approval of the mining project can take between six weeks and several months owing to the time required for public hearings and the relevant notifications and waiting periods related thereto.

Closure and remediation process

What is the closure and remediation process for a mining project? What performance bonds, guarantees and other financial assurances are required?

The closure procedure of a mining project is fully set out in the Mines and Minerals (Environmental) Regulations (the Regulations). Under the Regulations, closure of a mine can only occur where the applicant has applied to the Director of Mines safety for a partial or complete closure of a mine. The application must include an audit report on the environment surrounding the mine site prepared by an independent person.

A mine site should stand closed within 60 days of an application. Once all the conditions of closure under the Regulations have been met, the Director of Mines safety is required to issue a closure certificate for any mine closed and the mining right or permit or part thereof is to be cancelled by the Minister.

The Mines and Minerals (Environmental Protection Fund) Regulations provide for refunds to holders of licences, on application, when a mine site is closed. In accordance with the act, this amount would be less any monies owing. The Director of Mines Safety may use any part of the contribution to the fund of a licence holder for the purposes of rehabilitating the site.

Restrictions on building tailings or waste dams

What are the restrictions for building tailings or waste dams?

One requires a licence from ZEMA as provided under the Environmental Management (Licensing Regulations) 2013 before building tailings or waste dams. The site upon which a dam is constructed should be solid ground. In the case of tailings the Department of Mines Safety under the Ministry of Mines would not approve construction near wetlands to avoid contamination of surface and underground water bodies in an area. There are no specific professional qualifications required for the professionals in charge and management of the dam waste. The facilities are routinely inspected by the Department of Mine Safety. The installation of an alarm is mandatory to prevent unauthorised entry to the dam site. Dams are supposed to be constructed away from human settlement. In case of an emergency, there are drills; however, these are mainly for staff members. There are also mandatory reporting obligations in the case of an accident. However, there are no expressly stated responsibilities to rescue people in case of a dam failure.

Health & safety, and labour issues

Principal health and safety, and labour laws

What are the principal health and safety and labour laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?

The main health and safety and labour laws applicable to the mining industry include:

Health and safety and labour laws

Administering authority

Mines and Minerals Development Act

Ministry of Mines and Mineral Development

Factories Act

Inspector of Factories

Environmental Management Act

Zambia Environmental Management Agency

Public Health Act

Inspector

Food and Drugs Act

Health Inspector

Ionising Radiation Protection Act

Radiation Protection Authority

Workers’ Compensation Act

Workers’ Compensation Commission

Energy Regulation Act

Ministry of Energy and the Energy Regulation Board

Industrial and Labour Relations Act

Labour Commissioner

Employment Act

Labour Commissioner

Occupational Health and Safety Act

Occupational Health and Safety Institute

Management and recycling of mining waste

What are the rules related to management and recycling of mining waste products? Who has title and the right to explore and exploit mining waste products in tailings ponds and waste piles?

Rules and regulations related to the management of waste are provided for by the Environmental Management Act No. 12 of 2011. The act imposes the following obligations in relation to waste management:

  • a person shall not collect, transport, sort, recover, treat, store, dispose of, or otherwise manage waste in a manner that results in an adverse effect, or creates a significant risk of an adverse effect occurring;
  • a person who produces, collects, recovers, transports, keeps, treats or disposes of waste shall take all reasonable measures to prevent any other person from using waste in a manner that causes an adverse effect on the environment; and
  • a person shall not dispose of waste in such a manner that it causes litter.

ZEMA may, upon application, issue a waste management licence that permits the holder to conduct the following activities:

  • reclaim, re-use, recover or recycle waste;
  • collect and dispose of waste from industrial, commercial, domestic or community activities;
  • transport waste to a disposal site;
  • own, construct or operate a waste disposal site or other facility for the permanent disposal or storage of waste; and
  • transit, trade in or export waste.

The holder of such a licence therefore has the right to explore and exploit waste products.

Further, under the Mines Act the term ‘mineral’ is defined to include ‘any substance occurring in tailing dams, slag dumps, waste rock dumps, residue waste rock dumps, residue stockpiles or residue deposit’. A person who wishes to explore and exploit minerals from tailing dams and other waste piles for commercial purposes is required to obtain a mining licence or a mineral processing licence from the Ministry of Mines.

The Mines and Minerals Development Act further provides that a holder of a mining licence is required to undertake the management of the environment in the mining area for which a licence has been granted, which includes waste management. The holder of a mining licence therefore has the right to explore and exploit mining waste that is produced as a result of the mining activities carried out pursuant to the licence granted.

Use of domestic and foreign employees

What restrictions and limitations are imposed on the use of domestic and foreign employees in connection with mining activities?

Companies carrying out mining operations are legally obliged under the Mines Act to give preference to the employment of citizens with relevant qualifications or skills and train citizens of Zambia for the transfer of technical managerial skills. Immigration rules require a party seeking to recruit foreign employees to justify such recruitment prior to the grant of immigration permits.

Anti-bribery and corrupt practices

Local legislation

Describe any local legislation governing anti-bribery and corrupt practices.

The Anti-Corruption Act No. 3 of 2012 (the ACC Act)

The ACC Act provides for the prevention, detection, investigation, prosecution and punishment of corrupt practices and related offences in public offices. The act further defines offences based on the rule of law for the promotion of transparency, accountability and management of public affairs and property.

The Public Procurement Act No. 12 of 2008

The Public Procurement Act revises the law relating to procurement so as to ensure transparency and accountability in public procurement, as well as regulating and controlling practices related thereto.

The Financial Intelligence Centre Act No. 46 of 2010

This act creates the Financial Intelligence Centre, which is tasked with, inter alia, receiving, requesting, analysing and disseminating the disclosure of suspicious transaction reports. Suspicious transaction reports are defined as reports submitted on suspected or attempted money laundering, financing of terrorism or other serious offences.

The Prohibition and Prevention of Money Laundering Act 2001, as amended by the Prohibition and Prevention of Money Laundering (Amendment Act No. 44 of 2010)

This act provides for the constitution of the Anti-Money Laundering Authority and the Anti-Money Laundering Investigations Unit. The act also provides for the forfeiture of property of persons convicted of money laundering and the cooperation of international organisations in the investigations, prosecution and other legal processes related to money laundering.

Foreign legislation

Do companies in your country pay particular attention to any foreign legislation governing anti-bribery and foreign corrupt practices in your jurisdiction?

Generally, Zambian law firms would not advise clients on foreign legislation, however, companies with a connection to the US or the UK (eg, incorporated company or parent company, share listings, employees and employers in either or both jurisdiction) are advised to take cognizance of the UK Bribery Act of 2010 and the US Foreign Corrupt Practices Act (FCPA).

The UK Bribery Act prohibits paying bribes to any foreign public official with the intention of influencing the official, or to obtain or retain a business advantage, if the official is not permitted or required by law to be so influenced.

A foreign public official includes:

  • anyone who holds a foreign legislative, administrative or judicial position;
  • anyone who exercises a public function for a foreign country, territory, public agency or enterprise; and
  • any official or agent of a public organisation (eg, UN or the World Bank).

The UK Bribery Act provides broad authority to prosecute individuals and commercial organisations for conduct outside the UK.

Offences that occur in the UK are covered, in which case the nationality or place of incorporation is irrelevant. Even if no act occurs in the UK, there will still be liability if the person has a close connection with the UK (ie, UK citizen or resident or UK-incorporated company, among others).

This captures the activities of UK-incorporated entities abroad (eg, in Zambia). It also captures foreign nationals who commit bribery abroad, if they are also residents of the UK. Corporate offences include failure to prevent bribery and are extended to commercial organisations incorporated in the UK, or any other body corporate that carries on all or part of its business in the UK and any partnerships that carry on all or part of their business in the UK.

The FCPA’s anti-bribery provisions prohibit US persons and companies from paying bribes or providing anything else of value to ‘foreign officials’ in order to obtain or retain business, or to secure an improper business advantage. The FCPA only covers public bribery (ie, government officials), although commercial bribery may be covered by other laws. Officers, directors, employees, agents, distributors and shareholders acting on behalf of a corporate entity may subject it to liability. The anti-bribery provisions apply to the following:

  • US persons and companies;
  • non-US companies that have listed US securities or are Security and Exchange Commission-reporting companies; and
  • anyone acting in the territory of the US.

Zambia has also ratified the United Nations Convention against Corruption as well as the African Union Convention on Preventing and Combating Corruption, which require Zambia to establish a wide range of criminal offences for both public and private sector entities in the event of corruption.

Disclosure of payments by resource companies

Has your jurisdiction enacted legislation or adopted international best practices regarding disclosure of payments by resource companies to government entities in accordance with the Extractive Industries Transparency Initiative (EITI) Standard?

Since becoming fully compliant with the EITI in 2012, Zambia has recorded increases in revenue, according to the Ministry of Mines. This is attributed to the increase in the number of tax haven-based management firms.

There is, however, no legislation requiring disclosure of payments by resource companies to government entities. The government is nonetheless considering the enactment of an EITI Act.