AN ASSESSMENT OF WITHDRAWAL OF LEGISLATION IN NIGERIA AND THE IMPACT ON THE ENVIRONMENT
ABSTRACT
All over the world, resource control is a grave issue that has led to economic growth from a positive perspective and to civil, economic, and social strife from a negative viewpoint. In Nigeria, this is a clear truism. The Nigerian Minerals and Mining Act and the Land Use Act clearly vest the right of ownership and control over the mineral resources of the country in the government, to hold on behalf of the people. As it is with commercial activities, there is often a neglect of social and welfare considerations that are as important as the commercial activities themselves. Successive governments have assayed to move from oil-dependence to solid minerals, steel and agricultural development to attain economic sustainability. In the mining sector, with the impetus of legislation aforementioned, this has recorded some successes. However, an analysis of the impact of the commercial undertakings in the sector on the environment has diminished any recorded achievements. Referenced local, regional and global legislation allude to mining operations being required to contribute to sustainable development. This sustainability suggests at least a balance between the contribution to Gross Domestic Product (GDP) of mineral development and the incidence of degradation of the environment by reason of mineral exploration. Sadly, this balance has not been attained from data and reports considered. There is often a negative incidence of pollution and other environmental degradation, with resolution possible through a persistent prevention framework or responsive post-event management. Illegal mining, corruption and mismanagement are the regular culprits of the disaster that now looms in the sector, for which a coherent analysis of extant legislation, policy and practices in the industry has been undertaken by this research. The devastation occurring in the environment is a breach of the fundamental human rights of citizens as well as a breach of the fundamental objectives of State policy. Using the doctrinal and analytical methods of research, this work explores extant laws relating to mining and their impact on the environment and proffers solutions to mitigate negative impact of mining. Mining legislation relating to the protection or preservation of the environment is inadequately enforced. Thus, any evident economic benefit is overshadowed by the negative environmental demerits. However, the work concludes that there is a great opportunity for improvement in the management of the sector, policy and related law. Recommendations proposed include a robust awareness drive for local governments and host communities, mining operators, the Ministry of Mines and Steel Development, MIREMCO and civil society on the impact of mining operations on the environment and the rights of indigenous people. It has also been proposed that a database of endangered flora and fauna be generated for the notice of industry operators, a cohesive plan designed for illegal miners to address their situation, genuine strengthening of enforcement mechanisms of government and the creation of a centralized pool of case law and other legal resources on mining and the environment to foster easier settlement of industry disputes.
CHAPTER 1
1.0 GENERAL INTRODUCTION
1.1 BACKGROUND TO THE STUDY
For several years in Nigeria’s history, the country has depended on the exploration and sale of crude oil as its major source of revenue. The exploration of solid minerals did not get as much attention perhaps until 1999 when the Minerals and Mining Act[1] was enacted. That Act was not without shortcomings which led to its repeal by the Nigerian Minerals and Mining Act (NMMA) 2007. The 2007 Act vests the ownership, control and regulation of all mineral resources in all States on the federal government.
The NMMA 2007 provides that “1(1) The entire property in and control of all Mineral Resources in, under or upon any land in Nigeria, its contiguous continental shelf and all rivers, streams and water courses throughout Nigeria, any area covered: by its territorial waters or constituency and the Exclusive Economic Zone is and shall be vested in the Government of the Federation for and on behalf of the people of Nigeria[2] . (2) All lands in which minerals have been found in commercial quantities shall, from the commencement of this Act be acquired by the government of the federation in accordance with the provisions of the Land Use Act (3)
The property in mineral resources shall pass from the Governor to the person by whom the mineral resources are lawfully won, upon their recovery in accordance with this Act.”
There is clearly a legislative relationship existing between the NMMA 2007 and the Land Use Act[3] flowing from that provision. That relationship ultimately guarantees the right of acquisition by the Federal Government in all lands in which commercial quantities of mineral resources have been found.
Furthermore, section 22 of NMMA 2007 provides that the use of land for mining operations shall have a priority over other uses of land for overriding public interest and further that where a mining lease has been granted over a land subject to an existing and valid statutory or customary right of occupancy, the Governor of the state within which such rights are granted shall within sixty days of such grant or declaration revoke such right of occupancy in accordance with the provisions of section 28 of the Land Use Act.
The Land Use Act 1978 LFN 2004 to this effect[4] defines overriding public interest in the case of a statutory right of occupancy to mean inter alia the requirement of the land by the Government of the Federation for public purposes of the Federation or the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.
The key features of the NMMA 2007 include the eligibility requirements of the Ministry of
Solid Minerals Development[5] to grant mineral titles and the grant of title on a “first come, first served” basis. The Act also required the ministry to establish the Mining Cadastre Office[6] (MCO) to issue mining titles and provided that holders of mineral title should prevent pollution of the environment resulting from mining operation[7] , among others.
This is the core element of this research which is that the intent of regulation to give ample opportunity for mining operations is laudable but does not jettison the protection of the
environment. Inextricably woven in the protection of the environment is the fundamental objective of state policy[8] leaning strongly to the right of the citizen to a clean and pollution free environment. Where this objective falls below expectation and injury is caused to the environment and consequently to the citizen.
Indeed, it is a sub-regional concern that mining serves a commercial purpose that should lead to sustainable economic development based on government’s role in creating policy framework for policies and regulation.
“CONSCIOUS that exploitation and transformation of the Mining Product is essential for the socio-economic development of the Member States and that benefits from these activities should be equitably shared among present and future generations.
RECOGNISING that governments of Member States should play the lead role in creating a framework for policies and regulations for the mining industry and contribute to sustainable development.”[9]
Sustainable development has been defined popularly as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”[10]
This suggests at least a balance between the contribution to Gross Domestic Product (GDP)[11] of mineral development and the incidence of degradation of the environment by reason of mineral exploration. Sadly, this balance has not been attained. Reports indicate increasing degradation of our environment from mining activities and consequently a depletion of our natural and human resources.
1.2 STATEMENT OF THE PROBLEM AND RESEARCH QUESTIONS
A key problem has been identified; the inadequate attention being paid to the environment by stakeholders in the mining sector in spite of existing legislation. The queries that arise include: Have the laws been adequate in their provisions and implementation to (a) encourage mining (b) protect the environment from mining operations and (c) provide social comfort (including compensation, employment, health, and pollution prevention and clean up) to host communities and Nigerians?
It appears that beyond setting policies and reminding of the provisions of the law on mining and on the environment, there has been little traction in the mining sector over the past few years. There are, however, recent topical issues in the mining sector that have all contributed to the renewed vigour to transform the sector and these include the following:
- clarity as to surface rights and mineral rights;
- derivation among the mineral-producing states in Nigeria;
- eradication of illegal mining;
- revalidation and revocation of mining licenses by the MCO;
- the constitutional provision for a protected and improved environment enunciated as a fundamental objective of state policy in chapter II of the constitution, raising the query of its non-provision as a fundamental right in chapter IV.
1.3 AIM AND OBJECTIVES OF THE STUDY
The aim of this research is first to show that there are gaps in the legislation and policy framework for our mining sector particularly as it relates to environmental and social issues and secondly to present a thesis that would hold the most recent and useful material and solutions that will galvanize the efforts of industry players towards ensuring a more sustainable sector.
1.4 SCOPE AND LIMITATION
The scope of the study is the mining industry in Nigeria. However, some co-relation will be done with the global and regional industry. In analyzing the local mining environment, the scope is restricted to legislation, case law and law books related to the topic. Key issues will flow from an analysis of the relevant legislation namely the Nigerian Minerals and Mining Act (NMMA) 2007, the Constitution of the Federal Republic of Nigeria (CFRN) 1999 as amended, the Land Use Act, the Environmental Impact Assessment Act (EIA) CAP E12 LFN, 2004 and the National Environmental Standards and Regulations Enforcement Agency Act, (NESREA) 2007.
1.5 SIGNIFICANCE OF THE STUDY
The importance of the research is the formulation of a road map to change the narrative given by present statistics on (a) growth of the mining sector -exploration (b) improvement in mining revenue (c) ease of access to mining (d) incidence of environmental abuse from mining. An analysis is to be done juxtaposing the effects of increased mining operations against the effects of environmental hazards from mining.
For instance, when it released the gross domestic product (GDP) figures for the second quarter of 2017, the Nigerian Bureau of Statistics indicated that the economy had grown by 0.55 per cent, largely attributed to improved performance in not only the oil and gas sector but also other economic activities, such as mining. Mining contribution to GDP at the end of 2017 was reported to be N3.5bn, with the mining sector having grown by 2.24 per cent in that quarter and projected to grow by 2020 at an average annual growth rate of 8.54 per cent[12] . For Q1 2018 the contribution of mining and quarrying to the nation’s GDP stood at 23.54 per cent [13] .
Figure 1: Mineral Production in Nigeria, 2006. Source: National Bureau of Statistics[14]
Figure 2: GDP growth in mining (2015-2018)
Table 1: GDP Statistics for 2018 Q1
| Nigeria GDP | Last | Previous | Highest | Lowest | Unit |
| GDP from mining | 1418073.13 | 1547119.11 | 2406675.90 | 1228692.98 | NGN
Million |
Figure 3: Areas with children affected by lead poisoning, 2012
However, while the sector appears to be doing well, the environment suffers. There is recorded incidence of pollution to air, water and land, damage to vegetation and natural landscape, ecological disturbance, geological hazards, radiation
hazards, socio-environment problems and attendant health problems[15] .
The environmental issues in the mining sector shares similarity with the oil and gas sector. Not much attention was paid to environmental issues until the Koko toxic experience16, which led to the Nigerian Military Government promulgating the Federal Environmental Protection Agency (FEPA) Decree 1988 No 58 (later Act 1992). That legislation was the first of its kind since Nigeria’s Independence in 1960 and in line with the 1972 Stockholm Conference on Environment which Nigeria was a signatory. FEPA has since been replaced with the NESREA Act 2007.
1.6 RESEARCH METHODOLOGY
The research method or approach is mostly doctrinal and analytical and considers the pros and cons of extant legislation, critically analyzing them via juxtaposition against realities in the sector. The approach utilizes the investigative tool by looking critically into primary and secondary sources of data and delving into systems and institution that govern the mining sector and environment to the end that possible methods of remedying identified lapses are brought to the fore. However, in an attempt to analyze how well mining consultants and members of mining host communities understand the mining sector and related laws, its impact and the role of government, the author utilized a non-doctrinal approach via the use of field questionnaires to get current perspectives.
1.7 LITERATURE REVIEW
By reason of the subtle blend of the doctrinal and the non-doctrinal approaches in this research, the review of literature has been interspersed. Doctrinal literature review of legislation, policy and case law has been undertaken. Other writers on the subject concur that vegetation in form of natural forest or crop plantation is usually the first casualty to suffer total or partial destruction or degradation during the exploration and exploitation of minerals in a locality. The vegetation damage is more extensive at the time of mine development and mining operations and is more expensive when crop plantation is affected.
Pradeep Mehta[16] in his writing describes mining as the cause of ‘imbalances’ that adversely affect the environment. Mehta introduced the issue of “pollution havens”, a term that describes the poorest countries which receive a disproportionately high share of resource seeking investment. While such investments have profound impact on the development paths of these countries and spill over benefits, yet those host countries pay a high cost. According to him,
“there could be misallocation of the scarce natural resources, environmental damages and displacement of local producers”
- E. Norgate and W. J. Rankin (2000)[17] under the Commonwealth Scientific and Industrial Research Organisation (CSIRO) of Australia, conducted an assessment of minerals of Australia which used the Life Cycle Assessment methodology to estimate the life cycle emissions of greenhouse gases from copper and nickel production, including mining. This assessment found
that “Life Cycle greenhouse gas emissions from copper and nickel production range from 3.3 kilograms (kg) of CO2 per kg of metal for copper produced by smelting to 16.1 kg of CO2 per kg of metal for nickel produced by pressure acid leaching followed by solvent extraction and electrowinning.” What the assessment found in essence was that metal mining generates more than 1 kg of greenhouse gas for every 1 kg of metal that is produced, and this does not take into account lost carbon uptake of cleared forests.
Makua Pretty and Kola Odeku (2007)[18] have remarked in their work that the right to a clean environment is daily being violated by mining companies whose activities cause irreparable damage to the environment. They noted that if mining is done irresponsibly, it can devastate local ecosystems and destroy traditional cultures and livelihoods. The writers concur with other scholars to say that “bad mining practices can ignite fires which can burn for decades, releasing fly ash and smoke laden with greenhouse gasses and toxic chemicals.” They also noted an increased risk of chemical contamination of ground water when minerals in upturned earth seep into the water table. Agreeing with Dontala et al (2015) Pretty and Odeku also noted that bad mining practices cause Pneumoconiosis, also known as the black lung disease or coal worker’s pneumoconiosis (CWP), common in miners is caused by breathing in coal dust and carbon, which harden the lungs.
Albert K. Mensah, Ishmail O. Mahiri et al[19] have corroborated Pretty and Odeku by pointing out that increased mining activities have resulted in disproportionate contamination of major water bodies leading to loss of aquatic organisms, destruction of the biodiversity, removal of vegetation, depletion of soil resources and loss of farmland.
Neal R. Haddaway, Steven J. Cookeet al[20] put it succinctly when they said “Mining activities, including prospecting, exploration, construction, operation, maintenance, expansion, abandonment, decommissioning and repurposing of a mine can impact social and environmental systems in a range of positive and negative, and direct and indirect ways. Mining can yield a range of benefits to societies, but it may also cause conflict, not least in relation to
above-ground and sub-surface land use. Similarly, mining can alter environments, but remediation and mitigation can restore systems.
Aigbedion[21] and Adekoya[22] separately in their works have elucidated on the negative impact of mining activities on the environment including geological hazards, degradation of the natural landscape, socio-environmental problems, radiation hazards, air, water and land pollution, damage of vegetation and ecological disturbance. According to Aigbedion:
“Earth resources are the essential basis for an economy of a country and well-being of her citizens. Their exploitation is a key factor in economic growth and development of the nation, but one that can have serious negative environmental and socio-economic impacts.
With respect to gold mining, Adekoya noted how the socio-economic problem of “ghost towns” have arisen because of the peculiarity of the mineral industry. Since minerals are exhaustible and unrenewable commodities, the life of a mine and, consequently, the mining activities in a place have a limited time. The stoppage of mining activities imposed by depletion of the available reserves often leads to migration of people from the mining areas to other places. He cited the example of Sofon Birnin Gwari a town that once thrived on gold mining between 1914 and 1938, which was abandoned due to exodus of miners and prospectors to the Plateau tin fields in the early forties. Incidentally, the miners are currently returning to the Gwari area as a result of a new discovery of gold deposits in the place (Adekoya, 2003).
Both authors in their writings and studies regarding environmental impact of the limestone mining and cement industry in Sagamu have revealed a declining kola nut output from the plantations within a few kilometers radius of the cement factory (Aigbedion, 2005; Adekoya, 2003).
Both writers (along with others whose works were similarly reviewed in this research), have focused on a sustainable approach to the problem of environmental degradation arising from mining activities. Aigbedion puts its succinctly:
“To fulfill the requirement of sustainable development, the efficiency with which resources are utilized has to be improved. The main concerns associated with earth resources,
therefore, are generally the costs and environmental impacts of extracting, transporting, and refining them. The economics of earth resources deals with the supply, demand and allocation of the resources.” [23]
The authors explanation of the mining industry and the impact, often negative, of mining operations in the country is restricted. While they have offered some solutions that may well be useful if implemented, little or no analysis has been done by them on the legislation relating to the mining industry and legal solutions for the problems caused by mining. It is in this regard that this work differs from the work of the other authors. This work carefully looks at mining and mining related legislation and literature and offers solutions that are legally sustainable. Furthermore, no prior empirical framework of questionnaire inquiries of field studies particularly administered to mining consultants were available, which this work has been able to design, administer and present.
1.8 SYNOPSIS OF THE CHAPTERS
Chapter one opens with an introduction of the research. It presents Nigeria’s mining sector and the key sections of mining and mining related legislation, emphasizing the mining-environment relationship.
Chapter two discusses the concept of minerals and mining in Nigeria, its international outlook and regional concerns on mining of mineral resources. The chapter notes that thirty-four (34) solid minerals are found in commercial quantity and are spread across the 36 States of Nigeria and Abuja. Out of these, seven (7) strategic solid minerals are being prioritized and promoted for private sector participation and investment by the Federal Government of Nigeria. The selected solid minerals are gold, coal, bitumen, limestone, iron ore, lead/zinc and barytes[24] .
Figure 4: 34 Essential Solid Mineral Distribution in Nigeria[25]
The chapter does justice to the analytical discourse on principal mining legislation in terms of their purpose and relevance and the contributions of other writers on the usefulness of mining legislation and related environment legislation. Chapter three goes beyond purpose to the impact of the said legislation and to their effects, particularly on the environment. The chapter particularly looks at mineral sector development and the challenges with illegal mining and pollution management and assesses whether the positive outcomes of mining operations are diminished by the negative impact the operations have on the environment and the rights of citizens to a clean environment. Chapter four looks at the legal framework for mining in Nigeria and brings to the fore new developments and thinking that are associated with managing and improving the mining sector, particularly the impact of mining operations on the environment. The chapter further begins to hint on the type of solutions that can remedy the dearth in management of the sector, while chapter five summarizes these recommendations and concludes on the entire research.
[1] No. 34 of 1999
[2] In addition to this is the landmark Supreme Court case of Attorney General of the Federation v. Attorney General of Abia State (No. 2) [2002] 96 LRCN, 559; [2002] 6 NWLR (Part 764), 542 – 905; AG Fed. v. AG Abia State & 35 Ors. [2001] 11 NWLR, (Part 725). 689; [2001] 89 LRCN, 2413. The gravamen of the case is resource control rights concerning whether ownership right and control of mineral resources located offshore of the eight littoral states of Akwa Ibom, Bayelsa, Cross River, Delta, Edo, Lagos, Ondo and Rivers vest in the littoral states or the Federal Government of Nigeria. The Supreme Court stated that by virtue of section 44 (3) of the Constitution of the Federal Republic of Nigeria, the Federal Government has exclusive resource control and ownership rights over such mineral resources. The case also raised the issue of the principle of derivation, particularly as it relates to the revenue accruing to the Federation Account directly from any natural resources of which section 162 subsection (2) of the Constitution of the Federal Republic of Nigeria 1999 empowers the National Assembly to determine the formula for the distribution of funds into the Federation Account.
[3] Section 1 of the Land Use Act vests all land in any state of the federation in the Governor of that state to hold in trust and be administered for the use and common benefit of all Nigerians
[4] Section 28
[5] Now the Ministry of Mines and Steel Development
[6] Section 147
[7] Section 111
[8] The constitution in section 20 provides that the protection and improvement of the environment is a fundamental objective of state policy and not essentially a fundamental right of the citizen. The non-justiciability of section 20 leaves room for excuses in the implementation of this noble provision.
[9] The preamble to the ECOWAS Directive on the Harmonization of Guiding Principles and Policies in the Mining
Sector
[10] See Report of the World Commission on Environment and Development: Our Common Future, 1987, p.383 at http://www.un-documents.net/our-common-future.pdf (Also known as the Brundtland Report in recognition of former Norwegian Prime Minister Gro Harlem Brundtland‘s role as Chair of the World Commission on Environment and Development (WCED), was published in 1987 by the United Nations through the Oxford University Press.)
[11] Gross domestic product is the the monetary value of all the finished goods and services produced within a country’s borders in a specific time period. See definition at https://www.investopedia.com/terms/g/gdp.asp
[12] See http://www.miningweekly.com/article/nigerian–minings–gdp–contribution–seen–increasing–sixfold–to-3cautious–optimism–takes–hold–in–south–africa–2018–02–23 and https://www.vanguardngr.com/2017/12/miningministry-generates-n3-5bn-2017-fayemi/
[13] S.P. A. Ajibade & Co: Nigeria: Repositioning The Nigerian Mining Sector Through Improved Regulatory And Incentives Framework, as recently reported by the Nigerian National Bureau of Statistics; http://nigerianstat.gov.ng/;http://nso.nigeria.opendataforafrica.org/gwqnrlg/gross–domestic–product (accessed 12th June 2018).
[14] Referenced at http://article.sapub.org/10.5923.j.mining.20170601.01.html
[15] Aigbedion I and Iyayi S.E: Environmental Effect of Mineral Exploitation in Nigeria, 2007, International Journal of Physical Sciences Vol. 2 (2), pp. 033-038, February, 2007 at http://www.academicjournals.org/app/webroot/article/article1380203149_Aigbedion%20and%20Iyayi.pdf 16 The small fishing village of Koko, Delta State, Nigeria, made international headlines in 1988 when it was discovered that two Italian firms had arranged for the storage of 18,000 drums of hazardous waste with Koko residents. The containers were disguised as building materials and offloaded into a local man’s vacant yard for $100 per month. By the time Nigerian authorities identified the scheme, the drums were leaking, and people were getting sick. 28 percent of the waste contained polychlorinated biphenyl (PCB); a combustible that could produce a highly toxic compound called dioxin. See more at https://timeline.com/koko-nigeria-italy-toxic-waste-
159a6487b5aa
[16] Pradeesh Mehta: The Indian Mining Sector: Effects on the Environment and FDI Flow; OECD, CCNM Global Forum on International Investment, February, 2002
[17] T. E. Norgate and W. J. Rankin (2000) “Life Cycle Assessment of Copper and Nickel Production, Published in Proceedings, Minprex 2000, International Conference on Minerals Processing and Extractive Metallurgy, pp133-138. http://www.minerals.csiro.au/sd/CSIRO_Paper_LCA_CuNi.ht
[18] Makua M. Pretty and Kola O. Odeku (2017). Harmful mining activities, environmental impacts and effects in the mining communities in South Africa: a critical perspective. Environmental Economics, 8(4), 14-24.
doi:10.21511/ee.08(4).2017.02
[19] Albert K. Mensah, Ishmail O. Mahiri et al: Applied Ecology and Environmental Sciences, 2015, Vol. 3, No.3, 81-94 Available online at http://pubs.sciepub.com/aees/3/3/3 © Science and Education Publishing DOI:10.12691/aees-3-3-3
[20] Neal R. Haddaway, Steven J. Cooke et al: Evidence of the impacts of metal mining and the effectiveness of mining mitigation measures on social–ecological systems in Arctic and boreal regions: a systematic map protocol, (2019) 8:9 https://doi.org/10.1186/s13750-019-0152-8
[21] Aigbedion, I.N. (2005) Environmental Pollution in the Niger-Delta, Nigeria. Inter-Discplinary Journal of Enugu-Nigeria, 3, 205-210.
[22] Adekoya, J.A. (2003) Environmental Effect of Solid Minerals Mining. J. Phys. Sci. Kenya, 625-640.
[23] Op cit
[24] nipc.gov.ng and neiti.org
[25] nipc.gov.ng and neiti.org
AN ASSESSMENT OF WITHDRAWAL OF LEGISLATION IN NIGERIA AND THE IMPACT ON THE ENVIRONMENT