Tawau gold mining op raises questions on state, federal legal boundaries, says lawyer

KOTA KINABALU: Sabah is walking a thin line by invoking the state’s mining law to legalise a controversial gold mining operation in east coast Tawau district, says a senior lawyer.

Former Sabah Law Society president Datuk Roger Chin said mining and minerals come under federal jurisdiction while the state retains control of land use and development.

“It is an issue of federal versus state authority over minerals,” he said when asked about legal questions arising from the Bukit Mantri gold mining operations.

A stop-work order issued by the federal Inspectorate for Mining under the Mineral and Geoscience Department (JMG) since Nov 1 was not complied with.

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The miners continued the operation under a licence issued by the state through the Sabah Mining Ordinance 1960, which provides for the state Lands and Surveys director to be the Chief Inspectorate of Mining in Sabah.

Chin said understanding the distribution of powers between the federal and state governments was crucial in determining which level of authority prevails when it comes to mining.

Under the Federal Constitution, the legislative powers are divided according to Lists I (Federal), II (State) and III (Concurrent), he noted.

The Federal List covers matters under the exclusive jurisdiction of Putrajaya, while the State List pertains to matters that are the exclusive jurisdiction of state governments.

The Concurrent List includes matters where both federal and state governments can legislate, but federal law prevails in case of conflict, Chin explained.

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“For mining and minerals, 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 were exceptions as states retained residual powers over land matters, including land use and land administration, under List II.

“This means that while Putrajaya has authority over mining, a state still holds significant influence over land-related issues, including land tenure and land development,” he added.

In the case of Sabah, Chin said the state assembly can enact laws on matters within its jurisdiction, including those related to land and natural resources, potentially including some minerals as provided in List II.

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The Sabah Mining Ordinance 1960 is an example of such legislation, enacted before Malaysia was formed in 1963, he noted.

“The Ordinance predates the Federal Constitution, claiming authority (over mining lies with) the state. However, its current validity is hotly debated,” he said.

At the same time, he said the Federal Government’s Mineral Development (Licensing) Regulations 2016 allows Putrajaya 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. Courts haven’t provided definitive answers in all cases, leaving each situation open to individual analysis,” he said.

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However, he said federal authority as outlined in List 1 supersedes state jurisdiction when there is a conflict between federal and state laws.

“(This is) pursuant to the doctrine of federal supremacy,” he added.

Generally, he said federal law prevails for specific minerals of strategic importance or activities impacting national interests.

For certain minerals or aspects, both federal and state laws might apply, he added, calling for careful study of how the two intersect.

“If the activity strictly falls within the (Constitution’s) Tenth Schedule, particularly on native customary land, the state ordinance might hold sway,” he added.