An Analysis Of The Nigerian Mining Industry Viz-a-viz Environmental Regulatory Laws -By Oyetola Muyiwa Atoyebi & Jamilu Samaila

Introduction

Natural resources exist independent of human interference. The act of getting and refining them for social and economic reasons is mostly a human endeavour. For that purpose, countries endowed with massive and significant resources have developed frameworks for maximizing their efficiency. Nigeria, for example, has accomplished this. As one of the top nations in terms of natural resource volume beneath its soil, the country has enacted rules and regulations governing the mineral extraction and processing business.

In view of the aforementioned, Nigeria, in its efforts to ensure growth and investment in the mining sector, has commenced the amendment of the Nigeria Minerals and Mining Act 2007 (NMMA). This has become necessary in order to promote the industry to conform to the modern-day reality of global best practices and, by implication, hampers the growth and development of the mining industry.

Legislations that Regulate Mining industry in Nigeria.  

The Nigerian Minerals and Mining Act:

For the purposes of governing the exploration and exploitation of solid minerals in Nigeria, the Nigerian Minerals and Mining Act 2007 (the “Act”) abolished the Minerals and Mining Act No. 34 of 1999. The Nigerian Minerals and Mining Act is the primary piece of law that governs the mining industry in Nigeria. The Act gives the Nigerian Federal Government control of minerals. It states that the entire property and control of all mineral resources in, under, or upon any land in Nigeria, its contiguous continental shelf, all rivers, streams, and watercourses throughout the country, any area covered by territorial waters or constituency, and the Exclusive Economic  Zones are vested in the Federal Government for and on behalf of the people.[1]

The Minister for Mines and Steels’ development is generally vested with the authority to administer the Act. Section 4 of the Act provides a plethora of duties the Minister is to carry out in pursuance to the purpose of the Act, some of which include:

1. Ensuring the orderly and sustainable development of Mineral resources in Nigeria;

2. Developing a well-planned and coherent program of mineral resource exploitation that takes into account economic development, ecological and environmental factors;

3. Establishing the procedure for monitoring development in the solid minerals sector; and

4. Encouraging private sector investment in Mineral resources development, etc.[2]

The 1999 Nigerian Constitution, as amended: 

The constitution, being the Ground Norm provides a statutory position relating to mining. Section 44(3) provides thus:

“Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly”

Furthermore, the Constitution segments the mining in the Exclusive Legislative List of the Constitution;[3] that is, only the Federal Government of Nigeria has the power and authority to regulate and collect revenues from the industry.

The Minerals and Mining Regulations 2011

Section 21 of the Minerals and Mining Act of 2007, empowers the Minister of Mines and Steel Development to make a regulation in respect of any matter required to be prescribed by Regulation under the Act, as well as to give full effect to the provisions of the Act in general, including prescribing, amending, or withdrawing any form that may be required under the Act.

Flowing from the above, the Regulations generally cover the following aspects:

1. Defined the processes and procedures for the regulation of exploration and mining operations generally, including the acquisition of the titles to engage in such operations;
2. Prescribed safeguards to protect and ensure the safety of mining workers, the general public and mining environments;
3. Forms prescribed for use in applying the Regulations to any matters covered by them;
4. The processes and procedures for enforcing and complying with the provisions of the Act;[4]

Relevant Regulatory Bodies in the Mining Industry

The Companies and Allied Matters Act (CAMA) 2020/The Corporate Affairs Commission.

CAMA is the principal statute that governs corporate activities and stipulates regulations that must be complied with, before commencing business operations and during operations in Nigeria. Before the commencement of business operations, to incorporate a company in Nigeria, companies are required to comply with the requirements of the Corporate Affairs Commission (CAC).

Section 50 of the Minerals and Mining Act of 2007 provides that, in order to be eligible for the grant of a mining license, the applicant must be a corporate body duly incorporated under the Companies and Allied Matters Act. This effectively limits the exploration and extraction of mineral resources to companies duly registered under CAMA. 

The Ministry of Mines and Steel Development

The Ministry was conferred with the general duty of regulating the mining sector through the following departments, provided by the Mining and Minerals Act of 2007.

1. The Mining Cadastre Office

The Mining Cadastre Office is a body corporate with a legal personality, thus, having the power to sue and be sued in its corporate name. They are responsible for the administration of Mineral titles and the maintenance of the cadastral registers.[5] The Mining Cadastre Office is solely responsible for administering Mineral titles. They consider applications for mineral titles and permits, issue, suspend, and with the written approval of the Minister, revoke any mineral title. The Office also receives and disposes of applications for the transfer, renewal, modification and relinquishment of mineral titles or extension of areas, and as a major part of their operation, they maintain a chronological record of all applications for mineral titles.

1. The Mines Inspectorate Department

The Mines Inspectorate Department generally supervises all reconnaissance, exploration and mining operations to ensure compliance with the Act. Some of their responsibilities include the supervision and enforcement of compliance by mineral titleholders, with all mine health and safety regulations prescribed under the Act, and any other law in force. They handle the preparation and submission of records, reports and returns as required by the Minister or as prescribed by Regulations, among other things. The Inspectorate Department also take custody of mineral resources required by any Court to be forfeited to the government[6].

1. The Mines Environmental Compliance Department

The Mines Environmental Compliance Department reviews all plans, studies and “yuijbb,” reports required to be prepared by holders of mineral titles in respect of their environmental obligations under the Act. They monitor and enforce compliance by holders of mineral title with all environmental requirements and obligations, established pursuant to the Act, its regulations and any other law in force. It also periodically audits the environmental requirements and obligations established pursuant to this Act, its regulations, and any other law in force, among other things.[7]

1. The Artisanal and Small-Scale Mining Department

The Artisanal and Small-Scale Mining Department deal with cooperative societies and small-scale Miners as provided for by section 91 of the Act, who want to venture into mining operations. It is established in part VI of the Regulation of 2011. The department provides extensive services for Mining cooperatives and small-scale miners by organizing, supporting and assisting Artisanal & Small-Scale Miners in Exploration, Exploitation, Mineral processing entrepreneurial training. They also assist them in accessing the Solid Mineral Development Fund in compliance with section 34(2)(d) of the Act among other things.[8]

  Environmental Regulatory Laws

There are sets of rules and laws enacted in Nigeria for a healthy environment through the implementation of preventive and predictive measures, that forestall environmental pollution in the activities of extractive industries, in their quest to engage in economic activities by resource exploitation. As desirable as development is for humanity, it comes with its side effects some of which are environmental in the form of disruption of landscape, loss of biodiversity, pollution etc.

 In order to reduce the impact of these developmental projects, environmental planning tools such as the Environmental Impact Assessment (EIA) report are introduced to provide information to decision-makers, that will help them factor environmental protection into their decision-making process “prior to approval, rejection or modification of proposed project plans or activities”. Hence, the enactment of Environmental Impact Assessment (EIA) into law as part of the governance regime that regulates extractive industry activities, is aimed at achieving sustainable development in the natural resource sector of a country’s economy.[9]

Additionally, the Nigerian Minerals and Mining Act 2007 made it an implied condition for the maintenance of a Mining Lease, that lessees shall take due precautions in matters concerning pollution and environmental degradation, including the prevention of pollution of water or watercourses in the mining area in the course of mining or prospecting for minerals. Failure to comply with these requirements amongst other consequences will require the payment of compensation to the owner or occupier of land for damages, and pollution caused to the land or to water sources. In addition, the holder of a Mining Lease may be required by the Minister to restore any area in which mining operation has been carried out to its original position, by such methods as the replacement of the surface soil, filling of worked areas, removal of tailings, dumps and heaps caused by mining operations.[10]

It is pertinent to note that the aim of the Nigerian Environmental Impact Assessment Act (EIA Act) is to establish before a decision is taken, whether a project intended to be carried out by a person, federal state or local government is likely, to a significant extent, have environmental effects. This is to promote the implementation of policies that are in line with environmental protection, and to encourage information exchange among government organs and persons on the proposed projects that may have environmental effects.[11]

In summary, EIA serves three purposes namely: Integration of environmental concerns into planning and decision making; Environmental damage limitation through anticipation and minimization and; Public participation in decision making.[12]

Finally, the Act provides that no project (under the mandatory list) shall be carried out by any individual, the private or public sector, without prior consideration of the environmental impact of such a project—bitumen will fall into this category, judging by its industrial outlay necessary for exploitation.[13]

Environmental Considerations and Rights of Host Communities in Mining Sites

This heading provides for the mining of materials (such as salt, soda, potash or galena) by host communities in relation to areas covered by mining leases; the prohibition of mineral exploration in certain areas; the reservation of rights of the owner or occupier; payment of surface rents; assessment of various compensations and payment of same; restoration of mined land; reclamation; Community Development Agreements; Environmental obligations, include the preparation and submission of environmental impact assessment statements, and participation in the environmental protection and rehabilitation program.[14]

The Minister shall establish an Environmental Protection and Rehabilitation Fund, to guarantee the environmental obligations of Holders of Mineral titles as provided under the Act. The trustees appointed by the Minister shall operate the fund in accordance with the provisions of the Trustees Investment Act or amendments thereof.[15]

More so, the Act prohibits pollution of watercourse, alterations in water supply and provides that everyone who uses water in connection with mining operations, shall ensure that the water in use does not contain injurious substances in quantities likely to prove detrimental to animal or vegetable life. Also, no person shall, in the course of Exploration or mining, carry out operations, in or under any area held to be sacred or permit injury or destruction of any tree or other thing which is the object of veneration.[16]

Conclusion

Nigeria is now making significant progress in reviving its mining sector. Over the years, the industry functioned without environmental oversight or, at best, under an inattentive environmental system, until a few years ago. Recently, efforts have been made to remedy this anomaly through law and different programs. These initiatives recognize the significance of environmental protection in attracting foreign investment in the mining sector, as well as meeting national and international environmental requirements.

However, an important precursor to the enactment of the new Minerals and Mining Act has just commenced at the National Assembly, which, among other things, will update the current mining policy document to clearly reflect the current objectives and priorities of the government.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN.

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he also doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.

Mr. Atoyebi has expertise in and a vast knowledge of Corporate and Commercial Law and this has seen him advise and represent his vast clientele in a myriad of high level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

COUNTRIBUTOR:  Jamilu Samaila.

Jamilu is a member of the Corporate and Commercial team at Omaplex Law Firm. He also holds commendable legal expertise in Environmental Law.

He can be reached at jamilu.samaila@omaplex.com.ng

[1] Section 1(1)

[2] Section 4 (a)-(u)

[3]  Second Schedule, Part 1 Exclusive Legislative List of the 1999 Constitution

[4] Regulation 3 of the Minerals and Mining Regulation of 2011.

[5] Section 5(2) of The Act

[6] Section 17 of The Act

[7] Section 18 of The Act

[8] Regulations 230 & 231 of The Regulation.

[9]file:///C:/Users/Chinwendu/Downloads/Sustainable_Development_and_the_Exploitation of Bi.pdf<accessed 19^th March, 2022>

[10] Mineral and Mining Act 2007.

[11] file:///C:/Users/Chinwendu/Downloads/Sustainable_Development_and_the_Exploitation of Bi.pdf<accessed 19^th March, 2022>

[12] Ibid

[13] Ibid

[14] Sections 97 to 120 of the Act

[15] Section 121 of the Act

[16] https://www.mondaq.com/nigeria/mining/95916/an-overview-of-the-nigerian-minerals-and-mining-act-2007<accessed on 18^th March, 2022>