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Published online by Cambridge University Press: 28 July 2009
Shirley Zabel's account of the genesis of the Gold Coast Marriage Ordinance of 1884, published elsewhere in this Journal, demonstrates how much a legislative history can teach us about the way in which colonial law-makers went about tackling the formidable problems which had to be faced in what were still the early stages of modern British administration in West Africa. It is proposed in this article to turn to colonial Zambia and to look at the very different field of mining legislation, concentrating on the middle and later period of colonial rule before and after the Second World War. Compared with the early days in West Africa, bureaucratic techniques had been refined and communications greatly improved. This did not always lead to speed in the legislative process. Zabel has shown that the Gold Coast Ordinance was six years in the making; the Northern Rhodesia Mining Ordinance had a gestation period, including several miscarriages, of no less than thirty years prior to its enactment in 1958, despite the admitted need in the 1920s to replace obsolete legislation dating from the days of British South Africa Company rule. The span of time involved, however, has advantages for the legal historian—an opportunity to examine in relation to a single ordinance the colonial legislative process and the forces which, over an extended period, affected the shaping of a vital piece of legislation. It is hoped also that the fruits of this examination will serve as a useful background to studies of modern Zambian mining law.
1 See above, pp. 10 ff.
2 See below, p. 89.
3 For the modern law, see C. M. Ushewokunze, “The Legal Framework of Copper production in Zambia,” (1974) 6 Zambia L.J. 75. The provisions of the 1958 ordinance are examined in detail in Williams, H. M., The Mining Law of Northern Rhodesia, London, 1963.Google Scholar This article is based on research in the Public Records Office, London, (CO series) and the National Archives of Zambia, Lusaka (cited herein as NAZ) (permission to use material from these sources is gratefully acknowledged) and also draws on my unpublished London University Ph.D. thesis, The Northern Rhodesia Mineral Rights Issue, 1922–64.Google Scholar
4 Northern Rhodesia Order in Council, 1924. For the general historical background, see Gann, L. H., A History of Northern Rhodesia, London, 1964,Google Scholar and my “Commercial Concessions and Politics during the Colonial Period: the Role of the British South Africa Company in Northern Rhodesia, 1890–;1964”, (1971) 70 African Affairs 365.CrossRefGoogle Scholar
5 Art 17 of the Northern Rhodesia Order in Council, 1911. The High Commissioner was “wherever possible [to] have regard to any suggestions or requests made to him … by the British South Africa Company”.
page 85 note 1 Bennett, G., Kenya: a Political History, London, 1963, 50;Google ScholarBlake, R., A History of Rhodesia, London, 1977, 173 ff.Google Scholar
page 85 note 2 Kimble, D., A Political History of Ghana 1850–1928, London, 1963, 330–;357.Google Scholar
page 85 note 3 Rhodesia: Agreement between the Secretary of State for the Colonies and the British South Africa Company for the settlement of outstanding questions relating to Southern and Northern Rhodesia, dated 29th September, 1923, Cmd. 1984 (1923), clause 3 (G). See my thesis, 76 ff., and below, p. 95.
page 85 note 4 Mining Proclamation, no. 5 of 1912, issued by the High Commissioner for South Africa.
page 85 note 5 Sir H. Stanley, Governor, Northern Rhodesia to Colonial Office, 10 October, 1924, CO 795 51577; Colonial Office to Stanley, 20 December, 1924, ibid. Stanley, a former Resident Commissioner in Salisbury and Imperial Secretary in South Africa, was Governor of Northern Rhodesia 1924–;1927. Subsequently, he was High Commissioner for South Africa and Governor of Southern Rhodesia.
page 86 note 1 Stanley to Colonial Office, 16 May, 1926, CO 533 350. The Tukuyu conference was organised by Lord Delamere, the leader of the Kenya settlers, in order to co-ordinate policy among settlers in Kenya, Uganda, Tanganyika, Northern Rhodesia and Nyasaland towards closer union of the territories: see Bennett, op. cit., 61.
page 86 note 2 Mining Proclamation, 1912, s. 5.
page 86 note 3 For a useful survey of the contemporary position, see Imperial Institute, Mining Royalties and Rents in the British Empire, London, 1936. In certain areas, such as the Gold Coast Colony mineral rights remained vested in tribal authorities or their assignees. In Swaziland, Bechuanaland and Nyasaland extensive mineral rights were held in private European hands, but in the case of Northern Rhodesia, where virtually all such rights were held by one concessionaire, was unique in British Africa.Google Scholar
page 86 note 4 Minute by T. G. Trevor, Secretary for Mines and Works, Northern Rhodesia, of conversation with Stanley, 12th September, 1927, NAZ B1/1/A885.
page 86 note 5 Meek, C. K., Land Law and Custom in the Colonies, second edition, London, 1949, 291–2.Google Scholar
page 87 note 1 Minute by J. F. N. Green, 25th July, 1930, CO 795 35505/30. Green was then head of the department responsible for Northern Rhodesia. A staunch upholder of “native interests” after his retirement, in 1933, he was associated with the Labour Party's advisory committee on imperial questions. For Green's geological interests, see Sir Parkinson, G., The Colonial Office from Within 1909–1945, London, 1947, 27.Google Scholar
page 87 note 2 Memorandum by Trevor, 16th March, 1926, NAZ, ibid. Trevor, a former Inspector of Mines in the Transvaal, was Secretary for Mines in Northern Rhodesia, 1925–;1927. His South African background may be significant in the light of the views expressed here.
page 87 note 3 Unpublished autobiography of Dr. Vivian, Mss Brit Emp s. 345, Rhodes House Library, Oxford, 123. Vivian was appointed Inspector of Mines and acting Secretary for Mines, Gold Coast, in 1912; after war service and research work, he joined the Northern Rhodesia mines department shortly before succeeding Trevor as Secretary in 1927.
page 87 note 4 Drysdall, Alan, “Prospecting and Mining Activity, 1895–;1970”, in Bostock, M. and Harvey, G. (eds.) Economic Independence and Zambian Copper, New York, 1972.Google Scholar
page 88 note 1 S. 140.
page 88 note 2 Vivian minute, 10th January, 1933 NAZ B1/4/MG/4.
page 88 note 4 Vivian minute 13th January, 1933, ibid.
page 88 note 5 See p. 85 above, n. 5.
page 88 note 6 See memorandum cited p. 87 above, n. 2.
page 88 note 7 Maxwell to Colonial Office, 20th August, 1928, CO 795 35177/28: Colonial Office to Maxwell, 19th September, 1928, ibid. Maxwell was Governor of Northern Rhodesia 1927–1932. His previous administrative experience had been on the “West Coast”. The Hilton Young commission reported in 1929 (Cmd. 3234). The future of Northern Rhodesia was in the balance at this period. Although a majority on the commission favoured the status quo, the chairman favoured the dismemberment of the territory, joining the mining area to Southern Rhodesia.
page 89 note 1 Minute by Ormsby-Gore, 13th September, 1928, CO 795 35177/28. Ormsby-Gore (later Lord Harlech) was to be Secretary of State for the Colonies 1936–;1938.
page 89 note 2 Vivian autobiography, loc. cit.
page 89 note 3 The file containing the despatch has unfortunately been destroyed under statute. The East African precedent was consciously followed: Maxwell to Green, 24th January, 1930, CO 795 35505/30.
page 89 note 4 The Tanganyika Mining Ordinance, no. 19 of 1929, vested “the entire property and control” of all minerals in the Governor “in trust for His Majesty as Sovereign of the Mandatory Power” (saving existing express grants) (section 5) and empowered the Governor to make grants of prospecting licences and mining leases.
page 89 note 5 Trevor memorandum 1st October, 1927, NAZ B 1/1/A885. However, in later discussions with the Colonial Office, Chartered's representatives always pressed the precedent of the law of Southern Rhodesia rather than that of the “tropical African territories to the east and north”: Malcolm to Bottomley (C.O.), 3rd August, 1932 CO 795 36327/32.
page 89 note 6 Maxwell to Colonial Office, 28th January, 1930, CO 795 35505/30.
page 89 note 7 The Imperial (now Commonwealth) Institute was then concerned with the promotion and utilisation of the industrial resources of the Empire by the technical investigation of and dissemination of information about raw materials. The Institute's 1936 minerals survey is referred to above p. 86, n. 3. One of the responsibilities of the Institute's legal committee was the preparation of model mining ordinances for use in the dependent territories.
page 90 note 1 Below, p. 99.
page 90 note 2 Minute by J. F. N. Green, 19th January, 1933, recording meeting between Malcolm and Hely-Hutchinson (Chartered) and Secretary of State for the Colonies, Philip Cunliffe-Lister (later Lord Swinton), CO. 795 5515/33.
page 90 note 3 Minute by Green's successor, J. A. Calder, 25th September, 1934, CO. 795 25515/34.
page 90 note 4 Colonial Office to Sir Ronald Storrs (Governor of Northern Rhodesia 1932–1934) 8th February, 1933, CO 795 5515/33. McNair was paid a refresher of 5 guineas a day!
page 90 note 5 McNair to Duncan, Assistant Legal Adviser, C.O., 29th May, 1934, C.O. 795 22515/34. McNair had been secretary of the Coal Industry (Sankey) Commission in 1919. His subsequent distinguished career as an international lawyer is well-known: Judge of the International Court of Justice, 1946–1955 (President, 1952–1955), President of the European Court of Human Rights, 1959–1965. He died in 1975 at the age of ninety, but it is pleasant to note that in 1958, when, at long last as we shall see, Northern Rhodesia's new mining ordinance was enacted, he had not reached the state of decrepitude feared in his letter to Duncan!
page 90 note 6 Dougal Malcolm (K.C.M.G. 1938) had served in the South African Department of the Colonial Office 1900–;1905, and as private secretary to the High Commissioner, Lord Selborne, in South Africa, 1905–;1910. He joined the Chartered board in 1913.
page 90 note 7 Sir Roy in his autobiography recalled with relish Malcolm's description of him as a “would-be Hitler”: Sir Welensky, R., Welensky's 4000 Days, London, 1964, 32.Google Scholar
page 91 note 1 Maxwell to Colonial Office, 6th March, 1930, CO 795 35505/30.
page 91 note 2 Ibid., enclosure.
page 91 note 3 For more examples of such views, see my thesis (p. 84 n. 3 above), 113–;114.
page 91 note 4 Director, Imperial Institute, to Colonial Office, 24th January, 1930, CO 795 35505/30.
page 91 note 5 Chartered to Colonial Office, 15th October, 1931, CO 795 36027/31.
page 91 note 6 Ibid. Under the existing law, the terms of the special grant prevailed in the event of any inconsistency with statutory requirements, for example, concerning the pegging of mining locations: see ss. 5 and 53 of 1912 Mining Proclamation.
page 91 note 7 Maxwell (in London) to Under-Secretary of State, Colonial Office, 20th July, 1930, CO 795 35505/30.
page 92 note 1 Enclosure with Chartered to Colonial Office, 15th October, 1931, loc. cit.
page 92 note 2 Minute by Green, 6th April, 1932, CO 795 36327/32; Green's note of meeting with the Secretary of State, 6th December, 1932, ibid.
page 92 note 3 Memorandum by McNair, 25th February, 1932, ibid.
page 92 note 4 Submission by Green, Duncan and McNair to Secretary of State, 6th April, 1933, CO 795 5515/33.
page 92 note 5 Clause 8(1) McNair, February, 1935 draft on CO 795 45040/35.
page 92 note 6 Malcolm to Duncan, 24th April, 1933, CO 795 5515/33.
page 92 note 7 See above, p. 88.
page 92 note 8 Clause 28 of McNair 1933 draft on CO 795 5515/33.
page 93 note 1 Unsigned memorandum summarising mining bill negotiations on CO 795 25515/34.
page 93 note 2 Gann, op. cit., 250–;1.
page 93 note 3 Governor's Deputy (C. Dundas) to Colonial Office, 28th August, 1934, CO 795 25515/34.
page 93 note 4 McNair to Calder, 7th September, 1934, ibid.
page 93 note 5 Minute by Calder, 10th December, 1934, ibid.
page 93 note 6 Now replaced by ss. 56 and 59 of the Mines and Minerals Act, 1976.
page 93 note 7 S. 89 of the 1969 Act, now s. 93 of the 1976 Act.
page 93 note 8 See s. 64 of the Mining Ordinance (cap. 91, Laws of Northern Rhodesia, 1963 edition).
For foreiture provisions of the standard form of special grant, see Williams, op. cit., 201.
page 93 note 9 Maxwell to Colonial Office, 28th January, 1930, loc. cit.
page 94 note 1 Submission to Secretary of State by McNair, Duncan and Green, 6th April, 1933, loc. cit.
page 94 note 2 Minutes by Cunliffe-Lister 7th April, 1933 and 9th May, 1933, ibid. Clauses 26–;29 of the 1935 draft bill provided that the holder of a mining location had a right to a renewable 50 year lease of the surface; such a holder would have a right of appeal to the High Court if he considered that unreasonable conditions had been imposed by the government for the grant of the lease.
page 94 note 3 For example, Rhodesia Mines and Minerals “Act”, 1974, cap. 165.
page 94 note 4 For example, Nigeria Minerals Act, cap. 121, ss. 2 and 6.
page 94 note 5 Ibid., s. 5.
page 94 note 6 S. 2.
page 94 note 7 The Mining Amendment Ordinance, no. 11 of 1929, excluded limestone and other substances suitable for building, road metalling or agricultural purposes provided such substances were not sold for profit.
page 95 note 1 Above, p. 83.
page 95 note 2 McNair memorandum of 25th February, 1932, loc. cit.
page 95 note 3 For a detailed account, see my thesis, especially cap. VII.
page 95 note 4 Green/Duncan/McNair memorandum, 6th April, 1933, loc. cit.
page 95 note 5 Bottomley minute, 6th April, 1933, ibid.
page 95 note 6 McNair memorandum, 25th February, 1932, loc. cit.
page 95 note 7 This document is printed in The British South Africa Company's Claims to Mineral Royalties in Northern Rhodesia, Northern Rhodesia government white paper, Lusaka, 1964, p. 12.
page 95 note 8 The various Lewanika concessions are printed in T. W. Baxter, “The concessions of Northern Rhodesia”, National Archives of Rhodesia and Nyasaland, Salisbury, 1963, 13–;24.
page 96 note 1 Williams, op. cit., 45.
page 96 note 2 Baxter, loc. cit.
page 96 note 3 My thesis, p. 23 ff.
page 96 note 4 Ibid., p. 20.
page 96 note 5 Minute by Cunliffe-Lister, 7th April, 1933, CO 795 5515/33; Duncan to Malcolm, 19th April, 1933, ibid.
page 96 note 6 Clause 4 (a) of 1935 draft, CO 795 45040/35; and see s. 7 of Tanganyika ordinance, above, p. 89 n. 4.
page 96 note 7 W. F. Stubbs, D.C. Kawambwa, to Provincial Commissioner, Northern Province, [n.d.] October, 1936, NAZ SEC/NAT/147.
page 96 note 8 Clause 5 of 1935 draft, loc. cit.
page 97 note 1 Minute by Green, 26th August, 1932, CO 795 36327/32.
page 97 note 2 Malcolm to Green, 3rd October, 1932, ibid.
page 97 note 3 Above, p. 95.
page 97 note 4 Company to Colonial Office, 18th May, 1906, NAZ NWR/A2/1/1.
page 97 note 5 Fox to W. Milton, Administrator of Southern Rhodesia, 15th March, 1902, National Archives of Rhodesia A1/3/4.
page 97 note 6 Below, p. 101 ff.
page 98 note 1 Colonial Office to Young, 7th June, 1935, CO 795 45040/35. Sir Hubert Young, Governor of Northern Rhodesia 1934–;1938, was to take a particularly robust attitude to the mineral rights question. He had extensive Middle East experience and had been Governor of Nyasaland 1932–;1934. His last official post was that of Governor of Trinidad and Tobago, 1938–1942.
page 98 note 2 Calder to Malcolm, 22nd June, 1935, CO 795 45040/35.
page 98 note 3 Young to Sir J. Maffey, Permanent Under-Secretary of State, Colonial Office, urgent and confidential, 27th July, 1935, CO 795 45105/35.
page 98 note 4 Minute by Duncan, recording meeting attended by Young, Sir H. Grattan Bushe, (Legal Adviser, Colonial Office), and Sir C. Bottomley, 22nd December, 1936, CO 795 45105/36.
page 98 note 5 For detailed treatment, see my thesis, especially cap. IV.
page 98 note 6 Colonial Office to J. A. Maybin (Young's successor), 31st December, 1938, CO 795 45105/38; Northern Rhodesia Gazette, 10th March, 1939.
page 98 note 7 Bulawayo Chronicle, 3rd February, 1939.
page 99 note 1 Minute by Cohen, 11th January, 1946, CO 795 45367/46/7.
page 99 note 2 Ibid. In fact, discussions in Lusaka were now proceeding on the basis that vesting clause in favour of the company would be omitted: see below, p. 101.
page 99 note 3 Northern Rhodesia, Legislative Council Debates, 12th December, 1945, cols. 222–;7.
page 99 note 4 Colonial no. 206, H.M.S.O., 1946: FCB to Creech Jones, 24th January, 1947, Rhodes House Library, FCB Papers, 56/1.
page 99 note 5 C.S. (H. F. Cartmel-Robinson) to Governor, 8th December, 1946, NAZ SEC/MG/44; Commissioner of Mines (L. W. G. Eccles) to C.S., n.d., ibid.
page 100 note 1 BSA Co's Directors’ Report & Accounts, year ending 30th September, 1947.
page 100 note 2 The figure for the following year was £2.24 million. The Treasury had refused British government assistance in 1946: see Sir B. Gilbert (Treasury) to Sir S. Caine, Assistant Under-Secretary of State, Colonial Office, 4th May, 1946, CO 795 45367/46/7.
page 100 note 3 Malcolm, “The British South Africa Company's Mineral Rights in Northern Rhodesia”, pamphlet, London, 1949.
page 100 note 4 For the text see Colonial no. 282 (1951).
page 100 note 5 Of the ten members of the Executive Council in 1955, three were elected unofficial belonging to the UFP.
page 100 note 6 Dunlop to L. M. Serfontein, Commissioner of Mines, 2nd June, 1955, NAZ W/4912/1.
page 101 note 1 Roberts, A., A History of Zambia, London, 1976, 208–;211. After leaving government in 1961, Dunlop himself became for a time Northern Rhodesia Manager for Chartered.Google Scholar
page 101 note 2 Northern Rhodesia, Legislative Council Debates, 14th September, 1949, col. 123.
page 101 note 3 My thesis, p. 231.
page 101 note 4 T. W. Fraser, Assistant Secretary (Works), to J. C. Morgan, Colonial Office, 2nd September, 1957, NAZ MLM/4912/5.
page 101 note 5 See above, pp. 94ff.
page 101 note 6 After the 1950 Agreement had made the Crown in effect successor in title to the Company, there was no longer government interest in restricting the Company's claims in this regard.
page 101 note 7 Above, p. 96.
page 101 note 8 Serfontein to Dunlop, 1st November, 1956, NAZ W/4912/2.
page 102 note 1 Above p. 97.
page 102 note 2 L. P. Taylor, Coward, Chance & Co., Chartered's London solicitors, to C. Hely-Hutchinson (president of Chartered 1955–7) 12th February, 1957, enclosed with Robins to Dunlop, 22nd February, 1957, NAZ W/4912/3.
page 102 note 3 Note by Dunlop for Executive Council, 27th December, 1956, ibid.
page 102 note 5 Grenfell to Dunlop, 19th January, 1957, loc. cit.
page 102 note 6 Northern Rhodesia (Crown Lands and Native Reserves) Order-in-Council, 1928, articles 6 and 8.
page 102 note 7 H. M. Williams, Ellis & Co., solicitors, Ndola, to Secretary, Chamber of Mines, 29th September, 1954, Copper Industry Service Bureau Archives, Kitwe, file no. 7510.
page 103 note 1 Dunlop minute 18th May, 1957, NAZ W/4904/Conf.
page 103 note 2 Directors’ Reports and Accounts, 1955/6.
page 103 note 3 Robins to Dunlop, 22nd February, 1957, NAZ W/4912/3; Dunlop to Robins, 28th February, 1957, ibid.
page 104 note 1 S. 3 of the Mining Ordinance, 1958.
page 104 note 2 Dunlop's notes of meetings between Chartered and Northern Rhodesia Government representatives, 17th and 22nd October, 1957, NAZ MLM/4912/5.
page 104 note 3 Chamber of Mines to Dunlop, telegram 18th March, 1958, NAZ MLM/4912/6.
page 104 note 4 Dunlop to Executive Council, 27th December, 1956, loc. cit. Fraser to Morgan, Colonial Office, 13th September, 1957, NAZ W/4912/5, forwarding draft bill for consideration.
page 105 note 1 Note of meeting, 17th October, 1957, loc. cit., Mining Ordinance, 1958, ss. 57, 58, 86 and 87.
page 105 note 2 S. 39 (application to special grants) and s. 21 (disclosure of records of prospecting operations.
page 105 note 3 Sir A. Benson, Governor, Northern Rhodesia, to Colonial Office, 15th June, 1958, NAZ W/4912/7.
page 105 note 4 Note by Dunlop to executive council, 7th May, 1957, MLM/4912/4.
page 105 note 5 Northern Rhodesia, Legislative Council Debates, 27th March, 1958.
page 106 note 1 The Mining Amendment Act, no. 5 of 1965, modified the vesting section accordingly.
page 106 note 2 Independence Constitution, 1964, art. 18. The 1965 Act had also expressly preserved the position of all existing holders of prospecting and mining rights (including special grants).
page 106 note 3 Ushewokunze, loc. cit., gives a useful summary of the 1969 reforms.
