Beruflich Dokumente
Kultur Dokumente
A Handbook
Fabien Nkot
www.im4dc.org
In collaboration with
Associate Professor Jill Howieson
Faculty of Law
The University of Western Australia
Melvin Sheriff
Head of Secretariat – Inter-Ministerial Concession Committee
National Investment Commission, Liberia
This work is copyright to the International Mining for Development Centre (IM4DC), a joint venture
between The University of Western Australia (UWA) and The University of Queensland (UQ), and is
funded by the Australian Government through an Australian Aid initiative. It may be reproduced in whole
or in part subject to the inclusion of an acknowledgement of the source and no commercial usage or
sale. Reproduction for purposes other than those indicated above require written permission from the
IM4DC Director, WA Trustees Building, Level 2, 133 St Georges Terrace, Perth, Western Australia 6000.
Contents
FOREWORD 5
PREFACE 6
PRE-PRE-NEGOTIATION 8
1 Know your asset 9
2 Know what you earn 10
3 Keep abreast of the international market 11
4 Know where your project sits on the costs curve 12
5 Make sure you have an appropriately crafted mining code 13
6 Develop a mineral title licencing system 14
7 What to do if there are competing investors and low risk 15
8 Exercise due diligence in the selection 16
9 Choosing the right company 17
10 Recognise ‘fake’ investors 18
PRE-NEGOTIATION 19
11 Be clear on why it is necessary to negotiate what you will be negotiating 20
12 Set up a negotiating team 21
13 Consider contracting international/external experts 22
14 Make sure that the local community is represented in the negotiation team 24
15 Draft your government’s positions-in-principle paper 25
16 Make sure that everyone in the negotiations can understand each other 26
17 Know what is negotiable and what is not 27
18 Ensure you have the necessary funds for the negotiations 28
19 Acquire strategic skills 29
20 Look behind the positions to the interests 30
21 Prepare for the forthcoming negotiations with your team 31
22 Select the location and venue for negotiation 32
IN NEGOTIATION 33
23 Some classical issues that you are likely to deal with 34
24 Have an agenda but prepare for timeouts and adjournments 35
25 Draft the minutes of all your meetings and update your hierarchy as you go 36
26 Thoroughly review infrastructure projects (rails, ports and power) 37
27 Equity 38
28 Develop social infrastructures that will benefit people and help increase their acceptance of the project 39
29 Foresee the labour aspects of the project 40
30 Reflect on a development plan to benefit the community 41
31 Engage and inform the community 42
32 Working with indigenous communities 43
33 Educate local communities about the obligations of the company 44
34 Consider whether the mineral proceeds can be transformed in your country 45
35 Take care of the future of your asset 46
36 Foresee disagreements that could lead to breakdown of negotiations 47
37 Make sure you have evidence that the company will gather the necessary funding for the project 48
38 Develop an implementation plan and monitoring strategy 49
39 Include periodic reviews and a dispute resolution clause 50
40 Stabilisation mechanisms 51
41 Proof read every article of the contract before signature 52
42 Get parliamentary approval/ratify the contract 53
43 Be as transparent and public as possible 54
44 Produce the contract or a summary or simplification of the contract for the community understanding 55
POST NEGOTIATION 56
45 Implement a timeline and monitoring strategy/plan 57
46 Monitoring compliance 58
47 Institute an aftercare committee 59
48 Develop yearly post impact studies/evaluations 60
49 Consider local shares participation 61
50 Renew contracts 62
AFTERWORD 63
Foreword
The governments of research rich countries The basic tenets provided in this
have a responsibility to be well prepared and Handbook include:
knowledgeable in contract negotiations for Be prepared
natural resource extraction and long-term
land leases – not just for the sake of securing Ask questions
a balanced financial deal, but to promote Seek assistance
high standards in labour and human rights,
Engage community
environmental protection, health, safety,
transparency and fiscal management. Be as transparent as possible
In this Handbook, we provide 50 pieces of Look for added and shared value
advice to ensure good governance, capacity
building and sustainable development for
your country.
5
Preface
6
6. After several months of discussions with 9. The Handbook is the result of a collective
the developing company, we were able to effort. Melvin Sheriff from the Minerals
sign a mining agreement. The President Investment Commission of Liberia and I
of Cameroon decided that the team of started the job. In fact, I first raised the idea
negotiators involved in the Mbalam-Nabeba of a handbook during the first meeting of
Iron Ore project should also deal with the the African Resources Negotiation Network
USD 5.0 billion Bauxite to Alumina Project (ARNN) in Yaounde in July 2013. Melvin
in the cities of Mini – Martap and Ngaoundal. spontaneously supported it. Among others,
Our involvement in this bauxite project was lawyers, Michael Blakiston and Glen Ireland
enlightened by the experience we gained made useful comments on the manuscript.
from the negotiations related to the Mbalam- Wendy Treasure and my assistant, Solange
Nabeba Iron Ore project. Since then, I have Yijika, were instrumental members of the
been involved in several other negotiations Handbook team. But the current Handbook
concerning international mining contracts. would not have been published without
7. This handbook comprises some of the the substantial input of my colleague
practical lessons learnt along the way. Jill Howieson of The University of Western
Its content addresses the tenets and Australia: she finally did… everything.
processes enumerated above and more. Ian Stachwell and the IM4DC team gave
It will provide an ‘uninformed official’ as I warm support for the project. However,
was then, with the necessary tools that will Helen Langley deserves a particular note
help him meet his country’s expectations. for editing this book with a special touch
that brought some brightness to it.
8. The rationale behind this Handbook is
that, if well managed, the exploitation 10. Of course, I should be the only one to
of minerals could improve the livelihoods blame about errors contained in the
of many people in countries around the document. That said, if ever this document
world. In that regard, a good negotiation is helpful to an official involved in the
of the mining contract with the developing negotiation of mining contracts, then
company is the key; however, it is the goal we set out to achieve has been
common knowledge that many officials in met. This handbook may not have been
developing countries will start negotiations necessary. I hope it won’t be useless1.
of mining contracts with experienced
Professor Fabien Nkot
international companies with good faith as
University of Yaounde II, Cameroon
their only too – which is not enough.
Senior Advisor to the Prime Minister of Cameroon
Vedel, G, 1949, Manuel Élémentaire de Droit Constitutionnel, Paris, Recueil Sirey, p.2.
1
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Pre-pre-negotiation
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1 PRE-PRE-NEGOTIATION
Learn about your asset. The starting-point for Know the fair and accurate value of any land
the development of any mineral resource or that may need to be acquired. Be mindful
mine is the estimation of the quantity, quality, that land can be acquired (preferably) by
continuity, and extent of the reserves and agreement, but also by compulsory acquisition.
resources. It is upon this information that the Know where the company is coming from to
mining plan and methods of extraction and create benefits for all. Have knowledge of the
processing are developed. Without an estimate benefits from the developer’s perspective,
of mineral resources and reserves, a mining as this will give a realistic understanding for
operation is impossible. You will need a more a mutually beneficial deal. If the company’s
detailed understanding as soon as the proposal projected rate of return is not met then the
is first raised and looks serious. project will not go ahead. Factor in the rate of
To this effect, ensure that you have a robust, return, discount from risks (political, financial,
transparent and accurate appraisal of the security, environmental) and royalty rates.
natural resources available for exploitation. This may all appear costly, yet it serves as an
You may need external expert assistance to investment. It enables you to know and better
ensure that you have this appraisal. If you appreciate your mineral resources as well as get
engage experts to assist you in this endeavour, a mutually beneficial deal that is sustainable
then ensure that you collaborate and build for all parties when proper negotiations begin.
capacity in your country to the best of your This will hold your country in good stead for the
ability. Aim to establish a comprehensive report future and will facilitate transparency.
on the asset that you can trust will provide the
foundation from which you can negotiate well.
You can use this report to determine the
projected economics of the asset. The report
should also put your asset in context with other
projects in your country, but also other projects
in the world, which are either producing or are
at similar stages of development.
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2 PRE-PRE-NEGOTIATION
You should be able to decipher from the The Extractive Industries Transparency
comprehensive report what the real worth of Initiative (EITI) is a global coalition of
the asset is, and what your country should governments, companies and civil society
receive from the mining deal. This will help working together to improve openness of
you to make sure that your country, as well as revenues from natural resources. You can refer
the local inhabitants of the asset area reaps a to the EITI for reports on the revenues from
fair share of the benefits associated with the extraction of the member countries’ natural
mining deal. It is risky to get to the negotiation resources since 1999.
table without a fixed idea of what your country http://eiti.org/countries/reports
has to offer in the deal and what you expect in
return. You may give up too much or negotiate
for too little.
You cannot rely on the initiating company to
tell you what you have in stock. They may give
you lesser figures in order to get maximum
profit from the deal. Even with the best
intentions, they may get the figures wrong.
Two heads are better than one so that you
can crosscheck each other. In the process
of validating the figures, you can also build
trust. Similarly, you cannot go to negotiations
without understanding what the real value of
the resource is, taking into account the costs
of construction and operations, the cost of
finance and a realistic view on the required
returned to compensate for the risk.
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Sometimes investors are in a country for These are just some of the known ways that
duplicitous reasons. You need to look at their fake investors work. Be sure to do a proper
record of accomplishment (or not) and focus on background check on potential investors before
whether there are any signs of corrupt activity getting into business with them.
and whether these investors are ‘fake’.
Some of the indicators of ‘fake’ investors
include the following.
• ‘Fake’ investors usually enter the country
from the top; that is, through the highest
authorities and not through the technical
ministries involved.
• Their falseness is often further portrayed
by the fact that they usually look for ways
of getting money paid into their escrow
accounts or receiving sovereign guarantees.
• They are usually impatient before and
during negotiations. This is because they
usually do not want to spend too much
time in negotiations and give you the
chance to discover their duplicity.
• Their profiles are often characterized by
some form of material misrepresentation
for example, misstating revenue figures
on the application by the business owner,
stealing the identification details of a
known business or business owner in order
to open credit in the victim’s name.
• Spruikers who have a history of acquiring
assets, doing little work on them and then
on-selling the assets for a premium.
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Pre-negotiation
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11 PRE-NEGOTIATION
Different names are used in different countries – contract, agreement, convention, etc.
2
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Setting up a negotiating team is important. highest levels of authority in the government will
This team will usually consist of a political make the different Ministers involved obliged to
committee and a technical panel, which will respond faster and more promptly to planning
generally include all the different stakeholders meetings thus enabling the project to proceed
in the project. It might also include a conflict smoothly. Furthermore, involving the President
resolution and communication team. Ensure or the Prime Minister at the helm of the project
the different arms of the negotiation team gives the project more weight in the eyes of
are co-ordinated and that there is a constant the investors and puts the emphasis on the
dialogue between them. importance of the project to your government.
This factor will strengthen your bargaining
At every given stage, make sure your chain of
power and force the investors to consider their
command approves of the composition of the
proposals carefully and to give greater respect
negotiating team. This will boost your confidence
to your country’s interests in the mining project.
to go ahead, as well as that of the members
In addition, these higher authorities are also in
of the team. It will also reduce your portion of
position to make strategic decisions.
blame in case the negotiations are not successful.
Further, ensure that the relevant minister or Set up a Technical Panel
technical people are present at meetings when
The technical panel should be composed of experts
they are needed.
in all of the different aspects of the project, from
The Inter-Ministerial (political) Committee the various ministries involved. The technical panel
plays a pivotal role in reviewing, analysing and
In case you do not have a permanent body in
evaluating the concession agreements as well as
charge of mining regulations, make sure this
handling day-to-day details relating to the project.
committee is placed at the level of the President of
the Republic or the Prime Minister. Key Ministries Communication and conflict resolution
include Mines / Land Development; Environmental
team members
Protection; Economy and Finance; Labour; Social
Security; Trade and Industrial Development. It is often a good idea to have team members
Representatives from all the ministries should be whose role is to provide the communication and
on the committee. conflict resolution expertise. This can consist of
one or more members whose responsibility is
Generally, the Minister of Mines will most likely to ensure that the communication channels are
have to call on his or her colleagues for meetings. always open within the negotiation team and
The Minister of Mines may face difficulties with between the negotiating parties. These team
some more powerful Ministers who may be members will possess excellent conflict resolution
reluctant to respond to orders. These difficulties skills (active listening, open questioning, etc.)
could be more acute if there is a conflict of interest to ensure that the negotiations stay polite,
between the Minister of Mines and other Ministers. respectful and dignified and that all the parties
Setting the coordination of the project at the are heard and their interests acknowledged.
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Consider contracting
international/external experts
Apart from the local experts, also consider Finding your expert: do your due diligence
contracting external advisors. Government Some professional associations such as the
negotiation teams rarely have in-house International Bar Association will probably not
experts on all of the skills necessary for the provide legal advice directly, but could provide
negotiation of these agreements. International references to help you find qualified legal
experts can assist and guide you towards specialists (but probably not other specialists).
making informed decisions that will satisfy However, you need to be cautious when you
all the different aspects of the project. source referral advice as the referring body
Generally, they could include technical, could have an agenda, which may not align
legal, economic and/or financial advisors. with the interests of the government or with
Identify the gaps the industry at large. You will need to complete
your relevant due diligences.
Most governments recognize the need to
contract external advisers to fill the gaps and If you do not thoroughly check out your
are willing to use government funds to pay for expert, instead of being part of the solution,
the outside expertise. However, it is important the expert may become part of the problem.
for you to identify the gaps in the skills of the For instance, some of the facts about the
members of the negotiation team. The members project may be confidential and foreign experts
themselves cannot be relied upon to admit might leak sensitive information about the
where their skills may be deficient, or may not project to the wrong people, or the expert
know that their skills are deficient. International might not have the appropriate inter-personal
experts can be engaged to fill these gaps. skills for the negotiation.
You will need to find sources to verify the
Be careful
credibility and suitability of the expert.
Please be careful when contracting experts. You could Google, look at some specialised
Take into account the geo-strategic factors, publications, or refer to the CCSI Portal below.
the colonial history of your country and ensure You could also find trustworthy connections in
that there is absolutely no conflict of interest other governments and ask them whom they
when contracting an external advisor. have used in the past.
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Paying for your expert Building capacity
It is better to pay well for good advisors than When there are international experts
get bad ones on the cheap and it is better if (financial, legal and technical), make sure
your government pays for the external experts that your local experts are also specialised
itself. If you cannot afford the best, then you in the same fields. The international experts
might want to look at other sources of support should be employed for terms of sufficient
including non-governmental organisations such length to enable experience to develop in the
as Revenue Watch Institute or the International local experts and to build national capacity.
Senior Lawyers Project. You could also approach Recognize that international experts will deal
some international organisations, such as the with many different types of contracts on a
World Bank, Regional Development Banks very regular basis – that is why they are so
(such as the Africa Legal Support Facility of skilled and why you want them.
the African Development Bank), United Nations
The Columbia Center on Sustainable
Development Program, International Monetary
Investment (CCSI) has developed a web-based
Fund, European Commission, and others.
portal, the Portal, which provides a matrix
These organisations will often pay for external
of available tools & resources and technical
(mostly legal) expertise.
support available to assist host governments
However, you do not always want to get a planning, preparing for, negotiating,
grant from an AID organisation for legal advice monitoring, and implementing large-scale
funding as the organisation could have its investment projects in the extractive industry,
own agenda. They also might put the call for land & agriculture and infrastructure sectors.
technical assistance out to tender, which might www.negotiationsupport.org/matrix
mean that you will not get the best advisor,
as the lowest bidder tends to win the tenders
to provide services.
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Alexander, N & Howieson, J, 2010, Negotiation: Strategy Style Skills ,2nd edn. LexisNexis Butterworths, ch.3
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Venue
The location and venue of the The venue should be chosen taking into
negotiations is important for consideration the number of negotiators
setting the tone of the negotiations on each side. The hall should have enough
and for assisting the negotiations room to accommodate everybody around the
to run smoothly. negotiation table and the table must be wide
enough to allow both sides to sit distinctly
at opposite sides of the table to confer
with each other briefly without being
overheard. This detail, if neglected, may make
negotiations frustrating or even painful,
especially if team members feel compelled
Location to withdraw themselves each time they need
The location depends upon the level of to confer with each other out of earshot.
discussions. If the negotiations are between Also, the venue should be quiet. The most
the CEO and the Head of State, then it may convenient type of venue will be a conference
need to be in country. If the negotiations do centre or a good resort that is withdrawn from
not need to be in country then both parties the urban centre, with coffee and other facilities
can agree on the location for the negotiations readily available. Having food and drink readily
(in terms of the city where the negotiations available can smooth the way for the ‘informal’
will take place). negotiations that take place in and around the
It is often a good idea to choose somewhere formal negotiation, so it is important there is
midway between the headquarters of the the appropriate level of catering.
company and the capital of your country. It is also good for the venue to have breakout
Midway helps you to get in the mood of areas and be close to the accommodation to
negotiations, since each party is giving ensure prompt starts and for the convenience
something to the other in terms of agreeing of getting to and from the venue.
to go somewhere that is neutral.
However, wherever you agree to hold the
negotiations, you will need to be flexible and
foresee the need for visa requirements, travel
access, internet, printing and other logistical
support. At the documentary closeout stage it is
more important to have proper office logistics.
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In negotiation
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• Will the infrastructure be for the exclusive use Red thread: Just as the opportunity exists in getting
of the project or will there be the opportunity the infrastructure right, getting it wrong can result
for multi user capacity? in conflict, issues of personal safety and political
instability. Plan the infrastructure projects carefully:
• Will the infrastructure be restricted to a
consider all the potential risks and opportunities.
specific commodity or will it have a public
service capacity? The Africa Mining Vision is a pathway, formulated
by African nations, that puts the continent’s long
If the government provides some of the term and broad development objectives at the
infrastructure then a number of considerations heart of all policy making concerned with mineral
need to be discussed in the negotiations. extraction. The African Mining Vision sets out
• How will the government satisfy the company’s how mining can be used to drive continental
requirements for timely delivery of the service development. www.africaminingvision.org
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Equity
When dealing with a mining company to Host states really need to think about
develop a mining project, states are often what that means throughout the life of the
interested in having a high-level equity share project. Would it be better to take a royalty
in the project. This is normal, but should be at the end rather than merely assuming an
handled carefully. equity interest? It is important to consider
For example, if your country is offered a that sometimes states who have an equity
40% equity share in a company that is share often want veto rights over costs and
developing the mine, you may think that if they get a royalty then they do not focus
this is a beneficial arrangement. However, so much on costs; this can create problems
foreign companies sometimes exploit this for the mining company. Also, the level of
arrangement and manage their business in equity will be affected by whether it is free
order to bring evidence at the end of the year carried, loan carried or contributing. The
that there were no benefits and that there creation of free carry and loan carry equity
is nothing to share among shareholders can have a substantial impact on both the
(which includes your country). financial viability and economics of the project.
Therefore, it is important to consider how
If you are dealing with bulk commodities the government will fund its equity share if
and there is a company to be created for the it decides to go that way, and whether any
management of railway infrastructure, it may financial support is needed from sponsor.
be wise to focus on what your country will
gain each time the train transporting the bulk
commodity uses the railway, rather than looking
for high level shares within that company.
The most important thing here is
that the government focuses on its
revenue stream and ensures that it
is stable to ensure long term social
and physical infrastructure.
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Many countries have experienced issues with You could consider including a clause in the
companies that come and sign contracts, are contract that states that after a certain period,
awarded mining permits but do not implement if the company is not bringing evidence of the
the project. To safeguard against this necessary funding for the project, then the
eventuality, firstly, you should have done your contract is null and void. However, being too
homework and checked the financial viability rigid with funding periods sometimes does
and bona fides of the company (i.e. checked not result in the best outcomes. Anything that
whether you are contracting with the parent locks in funding needs to be done with some
company or the subsidiary, and the company’s flexibility to cater for external circumstances.
history etc.). It is therefore a good idea to draft these
However, sometimes things happen beyond clauses so that they are hard on the bona fides
the company’s control: for instance, a global of the company but soft enough to recognise
economic crisis or a movement by foreign that sometimes, unforeseen things happen
banks to withdraw money from developing that can affect funding flows.
regions might occur. You need to prepare for For examples of clauses that you might want
these possibilities and remain flexible enough to include in the contract, see the Model Mining
to recognise that sometimes things occur Development Agreement (MMDA). Remember
outside the company’s control and you will though that these examples are provided for
need to deal with them. illustrative and comparison purposes only
and caution should be used when drafting an
appropriate clause for your circumstances.
www.mmdaproject.org/
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Stabilisation mechanisms
A stabilisation clause is a clause included in As the MMDA notes, stabilisation clauses are
the contract in order to make sure the very controversial and need to be treated
agreement reached by the company will not with caution. Currently Ghana, Sierra Leone,
change. For instance, 1) because the change Democratic Republic of Congo, Guinea
of the law in the country, or 2) because of the and other countries and are reviewing the
change of Government. It is often unique to a stabilisation clauses in their mining contracts.
project and to a host state’s history.
The issues that you need to keep in mind
Stabilisation clauses may take several different involve the scope of the stabilisation, the
forms. The type of stabilisation clause that is government’s policy position, and the impact
ultimately integrated into the contract requires that the stabilisation clause might have on
careful contemplation as the effects of the future negotiations.
various options vary from one to another. For
instance, one type of stabilisation clause could
be that the new legislation does not pertain
to the development of the minerals or sharing
of the benefits but the investor is entitled to
be rewarded for any injustice that might have
been caused by the appliance of the new
lawmaking regime.
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Once both parties are settled on the terms It is likely that your government will benefit
of the contract, the next thing will be the from a signing event in that it will use the
signing of the contract. This will no longer event to show the national and international
be behind closed doors. It will be a heavily community its willingness to carry out huge
media publicized event that will bring both projects leading to the economic and social
your government and the company into the advancement of the country. This event will
public eye. also send a strong signal to international
Be mindful that there will be opportunities investors about the country as a good
and risks with this. A publicised signing event investment destination.
will make the wider national community aware On the part of the company, the signing event
of the project. This may increase interest for will again make the company known to the host
employment and business opportunities, but community. Previous stakeholder consultation
may also bring criticism about ownership, will prepare the minds of the local community
environment, benefits etc. This is why it is good on what to expect once the project is afoot
policy to be as engaging and transparent as and this is another opportunity to make
possible throughout the negotiation process. public several aspects of the project. This is
important since it will help build the confidence
of the public opinion vis-a-vis the project.
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Post negotiation
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Monitoring compliance
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Because you are dealing with very important Take special care of the fact that the State
projects that require the involvement of and the investors are effectively meeting
highest authorities in the country, it is a the concerns of the local communities as
good idea for you to institute a Committee of scheduled. If you fail in doing this, you may
Ministers as an aftercare committee. This is jeopardize the whole project since you may
also a good idea to increase the awareness of face strikes and other protests. This may also
the Ministers since their representatives do discredit your government.
not always report to them faithfully.
Below is a link to Fact Sheet and case study
The aftercare committee should include setting out what happens to mine sites after a
community representatives to deal with issues mine is closed.
between the Company and the Community; www.miningfacts.org/environment/what-
and issues with other Government Agencies. happens-to-mine-sites-after-a-mine-is-closed/
This committee should also handle unforeseen
circumstances and be able to engage a
facilitator or mediator as necessary.
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Renew contracts
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Afterword
With this Handbook, we have provided advice Enhance value by promoting linkages
to assist you and your government to achieve Obtain a fair share of the revenue
all that is possible in negotiating mining
contracts. With this guidance we hope that you Improve public participation and
will be able to transform your country using accountability
mining as a catalyst. We conclude with the Pursue an integrated view of the rights
aspirations of the African Mining Vision, which of all the stakeholders: partner with
can equally be applied anywhere in the world. stakeholders rather than compete
Value your environmental resources and
always consider intergenerational equity
Use mineral revenue efficiently and
effectively and think into the future
Promote local development
Encourage regional cooperation and
harmonisation
Strengthen institutions and communities:
build capacity wherever possible
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