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The traditional focus of China’s environmental protection has been on the control and the prevention of air and water pollution, which explains why reclamation requirements have been dispersed across the above mentioned pre-existing laws and regulations in only general and ambiguous terms. For example, Art.32 in Chapter Four of MRL (enacted in 1986 and revised in 1996) provides that mining companies shall take relevant measures suited to the local conditions to reclaim and rehabilitate by vegetation or other possible methods, all farm land, grassland and forestry disturbed by mining operations.
The Regulations on Land Reclamation have overcome some of generality and fragmentation of the existing laws and regulations, but they are a product of the planned economy and are hardly operable in a market economy. China has long practised a single method of requisitioning damaged land by the state, with costs shared between the state and the mining companies (excluding TVCMs or private mines). No consideration has been given to the difficulties faced by the SOEs operating at a financial loss coupled with constrained budgets and heavy social burdens.[11] Some coal-mining enterprises have to squeeze funds from their production budgets to carry out reclamation. Therefore, what is commonly seen is ‘who reclaims bears the burden’ (Zhu, 1996); in other words, those SOEs who are willing to conduct reclamation may suffer consequences far in excess of the reclamation costs per se. As a result, the damaged lands are, more likely, requisitioned first and are then abandoned because of shortage of reclamation funds. Although the principle of ‘Whoever damages reclaims and benefits.’ is in place, it is generally realised that the Regulations on Land Reclamation neither identify explicitly and specifically the obligations and liabilities for those who damage, nor define the benefits for those who reclaim (Li, 1999). In particular, they do not cover the ownership of the land after it is reclaimed (Luo et al., 2000). In addition, ambiguity in the rewards and penalties, and the paucity of incentives add much to the difficulty of implementing the reclamation laws and regulations, but rather provide opportunities for corruption and undue discretion in the relevant authorities. All these disadvantages do and will drastically hinder those companies who are willing to reclaim, and further impede the enhancement of mine land reclamation performance.
It is notable that all these disadvantages have been fully recognised and that the RLR are being amended. The revised LAL in 1999 stipulates that all land-users shall be responsible for the reclamation of the land attributable to extraction, subsidence, and tailings dumping in accordance with relevant national laws on a basis of actual occupied amount. In other words, the amount of derelict land to be rehabilitated should be equal to what is practically occupied and used. For those who are unable to reclaim or fail to meet the reclamation requirements, a land reclamation fee is required, which will be earmarked as a reclamation fund (Art.31). All these basic principles would be more useful if they can be supported by the issuance of relevant implementation provisions that identifies clearly the obligations and liabilities of land-users, the responsibilities of authorities at various levels, the financial channels, and the subsequent ownership and uses of the reclaimed land. A good example of the impact of these deficiencies can support this argument. By the end of 2002, 13 local authorities in China had begun to impose a reclamation fee or a reclamation deposit, but the result was far from satisfactory. [12] The lack of due respect towards the whole program and resultant slow design of national operable standards, and existing rigid local criteria should all be responsible for the failure (Yu, 2005).
4.2. Regulatory structure and its effectiveness
Kenneth Lieberthal has once described China’s regulatory structure as a ‘matrix muddle’ of vertical and horizontal lines of authority and reporting (Andrews-Speed et al., 2003); (also see Fig.1).
Fig. 1. simplified hierarchy of the regulatory structure of Chinese government in the regulation of mine reclamation. NPC stands for the National People’s Congress, PC for People’s Congress, ERPC for Environment and Resources Protection Commission; MLR for Ministry of Land and Resources, BLRs for Bureaus of Land and Resources, OLRs for Offices of Land and Resources; SEPA for the State Environmental Protection Agency, EPBs for Environmental Protection Bureaus, EPOs for Environmental Protection Offices.
At the top is the National People’s Congress （NPC）, representing the supreme power of China, with one of its commissions—Environment and Resources Protection Commission (ERPC)—specially responsible for environmental-related affairs. The State Council, forming the second line of the structure, is the highest executive organ of state power and the highest organ of state administration underpinned by minis?tries and ministry-level organizations, and other key government agencies subordinate to the State Council. The Ministry of Land and Resources (MLR) and the State Environmental Protection Agency (SEPA) fall into this layer. EPRC, MLR and SEPA are then replicated at all three levels of government: provincial/autonomous regional, local municipal, and county with various names.
The task of regulating mine land reclamation seems to fall primarily on the MLR, which arose from the merger of the Ministry of Geology and Mineral Resources and the Bureau of Land Administration as part of the 1998 major structural reforms. It is empowered to take responsibility for the unified land administration, for minerals extraction, for water resources and for environmental protection. Vertically, all provinces have their bureaus of land and resources composed of local land bureaus, geological and mineral bureaus, and other sections related to minerals.[13] However, unfortunately, its national level ministries and agencies do not have regional and local level divisions or offices directly subordinate to the national administration but operate in parallel (in cooperation) with regional and local administrations. In other words, the national level agencies do not have a direct relationship to control administrations at regional and local levels (Asian Development Bank—ADB, 2000).
In terms of land use and protection, the provincial, municipal and county administrations all have the power to define their ‘organisations and responsibilities’ in line with relative provisions of the State Council (Art. 5, LAL). Through a hierarchical process, an Overall Land Use Plan is required from sub-national levels and to be approved for their territories according to the directives set forth in the corresponding higher level plans (Art. 17 and 18, LAL). Nevertheless, whether the conducted review and recommendations to the State Council should be based on compliance of the lower level plans with the higher-level directives is not stated in LAL (ADB, 2000). In addition, as is the case in the enforcement of other environmental policy and regulations in other developing countries, the lack of trained staff, funding and effective judicial decision-making process has also contributed to ineffective enforcement of reclamation regulations. [14]
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