Already an IBA member? Sign in for a better website experience

Book review: The Law and Governance of Mining and Minerals: A Global Perspective

Tuesday 21 September 2021

Stuart R Butzier
Modrall Sperling, Santa Fe
sbutzier@modrall.com

Darrell W Podowski
Cassels Brock & Blackwell, Vancouver
​​​​​​​dpodowski@cassels.com

Bastida, Ana Elizabeth, The Law and Governance of Mining and Minerals: A Global Perspective (Hart Publishing 2020), ISBN 9781849463454 (hardback), published as Volume 3 of the series Global Energy Policy (P Cameron, P Bekker and V Roeben, series editors).

In her ambitiously conceived recent book, The Law and Governance of Mining and Minerals: A Global Perspective, Dr Ana Elizabeth Bastida, a senior lecturer at the University of Dundee’s Centre for Energy, Petroleum and Mineral Law and Policy, offers important and welcome new paradigms for contemporary studies and teachings about international mining law and governance, and for understanding mining’s place, promise and challenges during this time of transition, where such studies lie at the intersection of the global economy, environmental sustainability, human rights and social equity. The global perspective she offers is far from simplistically or singularly constructed from a guarded viewpoint; rather, in holding up the topic of mining law and governance to scrutiny from multidisciplinary angles described throughout the well-documented chapters of her book, she argues that the ‘complexification’ of issues and broadening of interested stakeholders have demanded ‘new forms of legal and normative ordering’ that emphasise collaboration and coordination as means of working towards sustainable futures. Her central theses are timely and transformational, and they insightfully capture a growing constellation of international norms and instruments that she usefully indexes along with key cases from international tribunals at the start of her book. The book also considers the key challenges of meeting the goals of Agenda 2030 and the ongoing transition towards lower carbon economies.

At once historical and forward-looking, Bastida’s scholarship examines mining at a time of critical need both for development of transitional minerals as the world re-tools to address climate change while (hopefully) emerging from the Covid-19 pandemic, and for sustainable development of the many local communities where those minerals may be discovered and serve as supply chains for increasingly integrated global economies and sophisticated investors and consumers. The multifaceted global perspective she advances on the law and governance of mining is a large first step toward meeting William Twining’s challenge of ‘shaping a genuinely cosmopolitan [...] overarching vision that understands the diversity of legal phenomena and the underlying challenges of the age’.

Drawing the reader in through the fascinating lens of mining through history, the first chapter frames the problem that mining law has developed and so far largely remained as a scattered product of nation states’ domestic legal regimes, with increasing international attention only starting to offer useful perspectives.  Bastida argues that a broader view is needed to understand multiple geographical levels of relations and legal orderings as a means of strengthening international cooperation as the way forward to addressing the profound political, economic, social and ecological issues of our age.

The next three chapters provide useful examinations of the mining industry itself: the actors and institutions that are forming international policy in relation to both the industry and concepts of territorial sovereignty; the global framework of sustainable development arising from soft law instruments; and the emergence of transnational standards and extraterritorial norms that potentially offer regulatory frameworks for coordinating activities. Other chapters of the book take intriguing and relatively deep dives into fundamental topics such as mineral rights, land tenure issues and actor decision-making, as well as specific issues involving the global (and even extra-global) commons. The final chapter seeks to consolidate findings and explore an 'overarching vision' for the future study of the law of and governance of mining from a global perspective.

Bastida’s book is highly recommended reading for the gamut of people and actors with diverse relationships to the worldwide mining industry, whether as lawyer, academic, governmental decision-maker, social catalyst or socially conscientious investor or consumer. As a foundational industry that promises to be at the core of both energy transition and economic development, mining deserves the thoughtful international study approaches she promotes, and the world deserves the promise of cooperation, collaboration and sustainable development that are the centrepieces of her consolidated global vision and perspective.