The following reflections do not refer to any particular country legislation but to the issue of "illegal mining" in general. Terminology used may therefore differ from specific national contexts. Furthermore, the analysis only refers to legality in relation to official, national laws, not to local, customary and traditional legal systems existing in parallel. This would be another, though closely related, subject.
To properly analyse this "trend of illegalisation", we first need some clarity on terms.
The Merriam Webster Dictionary defines "legalise" as "to make legal; especially: to give legal validity or sanction to", with examples like "The government has legalised the use of the new drug", which is in line with Wikipedia's description of "legalisation" as "the process of removing a legal prohibition against something which is currently not legal". Different to the above, Merriam Webster defines "formalise" as to "make formal" or "to give formal status or approval to". These definitions coincide with the customary understanding of ASM legalisation as the process of creating a legal framework for ASM and ASM formalisation as the process, promotion or enforcement of formal and factual compliance with an existing legal framework for ASM.
The topic of "illegal mining" can be seen from different perspectives. Firstly, in a strict application of the above terms, or under a generic perspective of the term "illegal":
Following the above definitions, ASM is illegal where it is (explicitly) prohibited. A general prohibition of ASM as such is however not a common legislative practice. In most cases prohibition is expressed in terms of extractive activities in general, implicitly including ASM, such as restrictions to mine in certain areas. Such areas are typically urban areas, national border areas, protected areas, riverbeds or/and similar, where other land use than mineral extraction is considered a national priority. Unless an exception is issued by authorities, mining in such prohibited areas is clearly "illegal mining", regardless of the size of operation. Additional considerations of legal precedence have to apply for areas where ASM was a traditional activity before the area was declared prohibited; this is a major cause of ASM-related conflicts in protected areas. Invasions of active mine sites also fall clearly into this category of illegal mining, while ASM by local communities in idle areas of large mining concessions has to be seen differently: mining corporations are not supposed to be granted large concession areas (often hundreds of square kilometres) to protect them against local communities, but to develop the mineral potential protected from competition by other mining corporations.
In areas where no prohibition is in place, ASM is consequently legal. The fact that many countries do not have a specific legislation regulating ASM (which allows or prohibits it) does not make ASM "illegal"; it is then just "unregulated". Laws and regulations apply and indicate the conditions and procedures for obtaining the permission to extract the minerals. By the above meaning of terms, obtaining approval and therefore formal status corresponds to Formalisation.
In practice, and particularly related to ASM, formalisation is a process rather than a singular event of obtaining a signed document. It starts with applying (either to the State or to an existing concession holder) for authorisation for mineral extraction and culminates when all requirements of applicable laws and regulations are met. In fact, large mining corporations maintain an entire permanent staff of lawyers for exactly the same purpose! Consequently, "informal ASM" comprises all those operations that do not have an explicit written authorisation to extract the minerals, all permits obtained and all required documents approved. Progress towards formalisation depends not only on artisanal miners' commitment; it also requires feasible and effective administrative procedures to be in place. In countries with no regulation on ASM, the entire sector may belong to the informal economy.
Secondly, a different perspective in a narrower sense is, to understand the term "legal" in the sense of "in accordance with the law". As laws and regulations indicate the conditions and procedures to be followed, any mineral extraction without corresponding authorisation is then understood as "illegal". The more appropriate term for such cases, used in many mining legislations, is however "illicit" (Merriam Webster: not permitted, unlawful), usually being considered an infraction or summary offence.
Nevertheless, this interpretation of the term "illegal" represents frequently the connotation of popular news and media reports on ASM, and in response the corresponding statements of governments and civil society organisations. Such media reports become easily biased, as legal compliance leaves a broad range of interpretation of illegality: E.g. An ASM operation without authorisation is called illegal. Had it obtained the right to mine, it would still be illegal if the environmental permit were to be missing. Once this permit is obtained, it would still be illegal if issues with taxes, social security, labour rights, etc. are pending. Once all these issues are resolved, it would still be illegal if some equipment has missed technical inspection, or even if the pickup gets a parking ticket. All these issues represent infractions of existing laws.
However, if we look at the interpretation of the terms "legal" and "illegal" under such a perspective, where do we draw the line between illegal and informal? Under such a perspective any noncompliance with legal requirements is considered "illegal", and there appears to be no need for the additional term of "informal".
Consequently, without the existence of a status of “informality” there is also no need for formalisation. But, does this leave room for constructive solutions, for example for communities traditionally involved in ASM, for miners who work under verbal agreements with concession owners, or for situations where artisanal miners are required to follow the same procedures as corporations that maintain for that purpose a staff of engineers and lawyers?
Thirdly, the discussion regarding "illegal mining" also needs to be understood under a wider perspective of conflict minerals and human rights abuses.
The past decade has seen a huge increase in the use of high value / low volume minerals (typical ASM resources) as an instrument for money laundering or directly financing violence and terrorism. Millions of people have died or suffered from such conflicts, many of them as forced labour in manual mineral extraction. But differently to ASM, which focuses on self employment and income generation by the local population, the (similarly manual) mining operations of drug and warlords have to be seen as "mining for illegal/criminal purpose", and are also simply called "illegal mining". For good reason, international initiatives (e.g. the Intergovernmental Conference on the Great Lakes Region (ICGLR), and the Organisation for Economic Cooperation and Development (OECD), etc.) started to work towards increased transparency in the minerals supply chain and on implementing due diligence mechanisms for eliminating criminal sources.
For obvious reasons this creates confusion: on one side we have criminal organisations behind "illegal mining" (for criminal purpose), on the other side we have authentic but informal ASM communities accused of "illegal mining", and finally we have "illegal mining" in the generic sense, e.g. in protected areas. It sounds alike, it looks alike, but it means very different things! Authentic ASM, also frequently called "Community Mining" can be a true blessing and a tangible local development opportunity, mineral extraction in protected areas can represent an issue of serious concern, while the presence of armed groups extracting Conflict Minerals represents a deadly threat for the local population.
This article could end here, but the best always comes last: reality is even more complicated.
Formal ASM operations in the form of community mining can sell their production transparently and officially into the legal supply chain; they are part of the formal economy. In the formal economy (e.g. gold is a globally traded commodity), they can expect to be paid close to real market prices.
Informal ASM operations, however, have to sell their gold to intermediaries, who take care of channelling it into the formal economy. Admittedly, in many cases these local gold shops play an important role as local marketplaces, and in many countries these shops are legal. But in most cases, the miners have no alternative but to accept the price offered by the local gold dealer.
Gold production from artisanal mining represents approximately 10 to 15 % of world production, or approximately 300 tons or 10 million troy ounces per year. At a price of 1,500 USD/oz, this makes 15 billion USD, and a quite attractive market for buying low from informal miners and selling high into formal markets. Adding diamonds and other minerals, the informal ASM market is even bigger.
It is therefore reasonable to assume that the players in this (grey) market will make every effort to maintain the current "status quo" of informal mining, as this is where the highest profit can be captured. One of the most efficient ways is probably to brand all ASM as "illegal" (with connotation of "criminal") and therefore not eligible for Formalisation. Others - those involved in mining for illegal purpose - are likely to join them in campaigning, as 30 million "illegals" represent a perfect decoy and hideout. Once the expression "illegal mining" is rooted in general language, even well intentioned professionals, politicians and serious institutions are then likely to repeat it without thinking about deeper implications.
We need to stop vindicating all ASM as illegal as we ultimately make it even harder for everybody to resolve the existing problems.
Illegal mining and illegal ASM are a reality, and where minerals are extracted in areas where such activity is prohibited, or where mining is carried out with criminal intent, it should always be called what it is: illegal; and all possible efforts should be undertaken to reduce these threats.
However, before putting informal and illegal mining, or even worse all artisanal mining, into the same basket of "illegal mining”, please think twice: who reaps the benefits of defining artisanal mining with these terms?
Written by Felix Hruschka, Standards Coordinator and Senior Advisor of the Alliance for Responsible Mining (ARM).