KOTA KINABALU: A gold mining operation in Tawau district remains controversial, with questions being raised about whether Sabah or the Federal Government has the authority over its licensing.
Mining and minerals are under federal jurisdiction but the state retains control over land use and development, said senior lawyer Datuk Roger Chin.
He said the issue of authority over the regulation of minerals, including mining activities, involved a complex interplay between federal and state jurisdictions.
“It is an issue of federal versus state authority over minerals,” he said in reference to the legal questions arising over the Bukit Mantri gold mining operations, where a stop-work order issued by the federal Inspectorate for Mining under the Mineral and Geoscience Department since Nov 1 was not complied with.
The gold miners continued their mining operation with the licence issued by the state government under the Sabah Mining Ordinance 1960, which provides for the state Director of Lands and Survey to be the Chief Inspectorate of Mining in Sabah.
Chin, who is a former Sabah Law Society president, said that it is important to understand the distribution of powers between the federal and state governments as it is crucial in determining which level of authority prevails in matters concerning mining.
Under the Federal Constitution, the legislative powers are divided between the federal and state governments through Lists I (Federal List), II (State List), and III (Concurrent List).
The Federal List enumerates matters under the exclusive jurisdiction of the Federal Government, while the State List pertains to matters within the exclusive jurisdiction of the state governments.
“The Concurrent List includes matters where both federal and state governments can legislate but federal law prevails in cases of conflict,” he explained.
On matters related to mining and minerals, he said the Federal Constitution grants exclusive jurisdiction to the Federal Government under List I, specifically item 8, which includes “mines, minerals and mining, including oilfields, petroleum, and natural gas; government control of wells and mines”.
“This provision establishes federal supremacy in matters related to mining activities, encompassing the regulation, licensing, and development of minerals,” he said.
However, Chin said there are exceptions to federal jurisdiction, as the states retain residual powers over land matters, including land use and land administration, under List II of the Federal Constitution.
“This means that while the federal government has authority over mining, the state government still holds significant influence over land-related issues, including land tenure and land development,” he said.
In the case of Sabah, Chin said the state assembly has the power to enact laws on matters within its jurisdiction, including those related to land and natural resources, potentially including some minerals, as provided in the State List.
The Sabah Mining Ordinance 1960 is an example of a legislation enacted by the Sabah government to regulate mining activities within its territory, Chin said, noting that it was enacted before Malaysia was formed in 1963.
“Adding fuel to the fire, the Sabah Mining Ordinance predates the Federal Constitution, claiming authority for the state. Its (Mining Ordinance) current validity remains hotly debated,” he said.
He added that the Federal Government wields the Mineral Development (Licensing) Regulations 2016, allowing them to issue stop-work orders.
“Its legitimacy stems from the Constitution’s federal control over minerals.
“So, who wins? It’s complicated. The answer depends on factors like the mineral type, mining activity and even land ownership.
“The courts haven’t provided definitive answers in all cases, leaving each situation open to individual analysis,” he said.
However, he said the Federal Government’s authority over mining, as outlined in the Federal List, supersedes the state’s jurisdiction when there is a conflict between federal and state laws.
“In situations where federal and state laws clash, the federal law prevails, pursuant to the doctrine of federal supremacy,” he said.
Generally, he said federal law prevails over specific minerals or activities impacting national interests.
But for certain minerals, he said, both federal and state laws might apply, which requires careful dissection on how they interact.“If the activity strictly falls within the Tenth Schedule, particularly on native customary land, the state ordinance might hold sway,” he added.
