For those of us who have been immersed in the world of small-scale mining for years, it is common to ask this question while trying to understand the historical, economic, ethnic, environmental and social contexts that affect the idiosyncrasies of our people and determine their participation in the “State”.
Perhaps the answer requires that we first distinguish what is legal from what is legitimate. Legality refers to what fits within the law and is compliant with a legal framework. It limits us and determines what we can and cannot do according to the law. Legitimacy, however, involves following a correct, fair, genuine, moral and ethical path. Legitimacy is symbolized by what is achieved with justice, what is deserved, what is inherited. Legality, on the other hand, can be symbolized by an official seal.
To illustrate this in the mining context and to reflect on the social and environmental responsibility of the actors in mining, I bring up the following examples that we face on a daily basis.
In the small-scale mining sector it is legal that miners are usually migrants who seek to settle in new places. However, It is not legitimate for them to shield their sudden and unexplained wealth.
It is not legal for small-scale miners owning mining rights (of the subsoil), to temporarily transfer these rights to third parties (community members close to the operation) although it is legitimate for these people to claim their right to work freely on the site for at least one day a week.
It is legal for people in the community to form partnerships with miners from other places and I think that it is legitimate, to some extent, to expect that third parties will be interested in investing in these rich areas, knowing that sooner or later they will have to negotiate with the communities that have been living there for centuries.
Whatever the struggle between locals (natives) and migrants might be, it is true that what is legal in mining is linked, above all, to what is legally acceptable by the State. On the other hand, what is legitimate in the sector is rather linked to what is morally accepted by the local society (in many cases known as “uses and customs”).
Because of my urban nature, I tend to think that legality is more linked to the good management of natural resources, submission to the rules and achieving greater economic benefit for the general society that does not participate directly in the exploitation of the natural wealth. What is legitimate in our countries, in my point of view, tends to be a distortion of the meaning of the heritage of a common good, turned into a shield that justifies extortion, tax evasion, encroachments, pollution, child labor and informal mining.
Whether my point of view is correct or not, as long as we continue to see examples of this, we will continue to run in circles not knowing how to distinguish between legality and legitimacy. This is and making it impossible to decide on an absolute position on the matter while waiting for someone else to tell us what is best for the people and families engaged in mining. Hopefully someday our leaders will make it so that what is legal and what is legitimate in the mining sector join together in a more satisfactory manner for the benefit of all society.