Impact of the Laws and Regulations on the Environment
The Application and Impact of Mining Legislation
The various mining related legislation and policies considered in the preceding chapter are essential to maintain decorum in the mining space. The Nigerian Minerals and Mining Act 2007 in order to encourage mining activities, makes provisions for exemptions from customs duty and tax reliefs. stipulates conditions for the grant of a reconnaissance permit and the grant of an exploration license.
The Act also identifies two major mining activities namely: minerals exploration, mining and quarrying. The Act goes further to make specifications on the obstruction of the right of way by miners, small scale mining operations, possession and purchase of minerals, environmental considerations and rights of host communities.
An entire chapter of the Act has been devoted to mining offences and penalties. The Act prohibits illegal mining, false and misleading statements, the making of false declarations, non-declarations and smuggling. Section 131 provides inter alia that:
“a person who conducts exploration or mines minerals or carries out quarrying operations otherwise than in accordance with the provisions of the Act” or “removes, possesses or disposes of any mineral contrary to the provisions of this Act, commits an offence”
In penalizing this offence, section 133 reads
“a mineral title holder who is guilty of an offence under section 131 is liable to have his license revoked and on conviction at the first instance, to a fine not less than N20,000,000.00; and imprisonment of not less than five years, if the offence is a continuing one, whether or not it is a first offence, the person convicted shall, in addition, be liable to a fine of N20,000.00 in respect of each day during which the offence continues.”
The Nigerian Minerals and Mining Regulations 2011 empowers the Mining Cadastre Office under the Ministry to suspend or revoke mining titles, inspect mines, make inquiries into accidents and lay down procedures for storage and handling of hazardous materials, mine waste management and dumping operations. The Regulations also requires miners to conduct environmental impact assessment, pay compensation to affected persons, protect vegetation and landscape, submit community development agreements and file reclamation statements.
The overall application of the Act and the Regulation is seen first in the incentivizing of investors to come into mining operations. The second application is seen in the regulation of mining and quarrying operations, especially the meeting of industry and environmental standards and the prohibition of illegal operations.
This article further looks at the challenges with illegal mining and pollution management and the effect of the laws on miners. It 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.
While there may be gaps therein in terms of enforcement, the laws relating to mining in Nigeria are responsible for the increasing awareness of the potentials in the sector and the increasing operations of miners both legal and illegal. While the economy may have benefitted from those operations, perhaps not so for the environment.
THE BENEFICIAL IMPACT OF MINING
The economic environment may be benefitting a lot more than the physical environment from the operations in the mining sector. The November 2007 National Bureau of Statistics Nigerian Gross Domestic Report 2017 reports that the third quarter of 2017 saw the Mining & Quarrying sector (which consists of Crude Petroleum and Natural Gas, Coal Mining, Metal ore and Quarrying and other Minerals sub-activities) record a nominal growth of 101.36% (year on year), taking into account revised Q2 2017 data.
Crude petroleum and natural gas recorded a growth rate of 102.79%, Metal ore recorded 22.75% and Quarrying and other metals recorded 27.94% respectively maintaining strong year on year growth when compared with the corresponding quarter growth rates of 2016 at 4.09%, 17.11% and 16.46% respectively. The Mining & Quarrying sector contributed 11.17% to overall GDP in the third quarter of 2017, higher than the contributions recorded in 2016 third quarter and the previous quarter at 6.15%, and 9.08% respectively.
In real terms, the Mining and Quarrying sector grew by 25.44% (year-on-year) in the third quarter of 201773. Compared to the third quarter of 2016 and second quarter 2017, it was higher by 48.09% points and 21.93% points respectively. Quarter on quarter, growth rate recorded was 20.84%. The contribution of Mining and Quarrying sector to Real GDP in the third quarter of 2017 stood at 10.19%, higher than the 8.24% recorded in the corresponding quarter of 2016, and also higher than the second quarter result of 2017 which was revised to 9.19%.
The Negative Impact of Mining
While legislation appears adequate in terms of provisions prescribing, among other requirements, environmental impact assessment and community development agreements for miners as well as penalties for illegal or improper mining operations, the continuous degradation of the environment, as previously discussed and elucidated in case law below, shows that there are enforcement lapses in the extant legislation.
CASE LAW RELATED TO MINING
Disputes on Land Ownership
Land ownership conflicts with respect to solid minerals sites between states and the Federal Government has been prevalent in the industry. Many genuine minerals title holders are currently facing challenges in carrying out their legitimate businesses at the sites due to agitations from the locals. The recent court case between the Lagos State Government and the licensed dredgers operating in the state has added to the confusion in the sector. A Court of Appeal in Lagos issued a stop work order to duly licensed dredgers despite the earlier court pronouncement on the matter in favour of the federal government.
It has been suggested that there must be a change in policy to allow for state and communities’ participation in ownership of mineral titles in order to avoid conflict, particularly by giving the communities equity in the mining business. It has been noted that the same constitution that grants the Federal Government power to allocate mineral titles also recognizes state governments to issue certificate of occupancy for a land within its territory. Thus, some title owners have deployed to states for exploration but unknown to them the land where they have allocations belonged to someone else.
Disputes on Illegal Mining
A Jos Federal High Court II on May 16, 2018 granted bail to a miner, Abdullahi Adamu, alias Dan-China, 16 Chinese nationals and 9 other Nigerians who were being tried by the federal government for alleged illegal mining. Justice Musa Kurya, the presiding judge, who granted all the accused bail in the sum of N100 million, directed that they should also produce two sureties in the position of a director in the state civil service.
Mr Kurya also ordered, as pre-conditions, that the sureties must drop their international passports with the court registrar, as well as all the accused persons, pending the determination of the case filed by the Attorney General (AG) of the Federation and Minister of Justice.
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The award of the bail was sequel to an application made by Dan-China and 25 other accused persons through their counsel, Paul Erokoro, Joseph Danboyi and Gyang Zi, during the last sitting on March 28. The Federal Government had on August 14, 2017 arrested Dan-China and 25 others and charged them before Justice Kurya, on a four-count charge of illegal mining at Zurak in Wase Local Government Area of Plateau.
The government alleged that the accused persons had some time between 2015 and 2017, undertook some illegal mining activities and disposed of the minerals, thereby committing offences punishable under the Miscellaneous Offences Act of Nigeria, 2004.
The offences were also punishable under the Nigeria Minerals and Mining Act, 2007. In Alphonsus Nkuma, Joseph Odili v Nwapa Anene & Ors., The dispute leading to this appeal arose over the ownership of a parcel of land at a location near Oguta in Imo State. Between 1975 and 1976, the Nigerian Agip Oil company Limited (hereinafter described as AGIP) deposited in the office of the Divisional Officer, Oguta, the sum of Twenty-five thousand, one hundred and eighty Naira, thirty-two kobo (N25,180.32k). The money was intended as compensation for the use of the parcel of land now in dispute by AGIP which was using the land for its oil operations. The money was to be paid to the owners of the land.
This deposit led to the present dispute. The Ogwuma village community (represented by Nwapa Anene), now appellants, issued their Writ of Summons in 1977 against the Isukwa Village community (represented by Alphonsus Nkuma).’ On 11-12-97, the trial judge in his judgment preferred the evidence of traditional history called by the defendant. He gave judgment in favour of the defendant in these words:
“There will therefore be judgment for the plaintiff in suit No. HOG/37/78 i.e. judgment for Joseph Otunuya Odili against the Ogwuma people. Suit No. HOG/181/77 i.e. suit brought by Ogwuma people is hereby dismissed. Having found that the land belongs to Joseph Otunuya Odili, he is entitled to the compensation paid by the AGIP Oil Company Ltd. For its oil location on the land i.e. the sum of N25,180.32 which was deposited with the District Officer, Oguta District. This case was filed in 1977 and has had a chequered history.”
Dissatisfied, the Ogwuma people brought an appeal against the judgment of the trial court before the Court of Appeal, Port-Harcourt Division (hereinafter referred to as the ‘court below’). The court below in its unanimous judgment on 23-4-2001 dismissed the appeal and affirmed the judgment of the trial court. Still dissatisfied, the plaintiff came before the Supreme Court on a final appeal.
In the judgment delivered by Sylvester Umaru Onu, J.S.C., the court held:”
“The short answer I give to this extremely frivolous issue is that the pleadings upon which the trial court tried the case did not even remotely raise the issue of the autonomous community of either the plaintiff or the defendant. The court below did well by refusing to be drawn into a futile and fruitless exercise of deciding on ownership of land based on the nature of the community to which parties belonged.
In the final conclusion, this appeal fails. It is devoid of any merit. It is one which deserves to be discouraged through the award of punitive costs were it not for the limit ordinarily observed by this Court. I would award N10,000.00 costs in favour of the defendant/respondent against the plaintiff/appellant.”
Disputes on Resource Control
Although disputes with respect to resource control have often been with regard to oil and gas more than to solid minerals, the holding of the courts in any case have leaned in favour of state control. In the landmark Supreme Court case of Attorney-General of Abia State and 35 Others, the gravamen of the case was resource control rights concerning whether ownership right and control of mineral resources located off-shore 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.