Legal Framework for Mining in Nigeria
As it concerns mining in Nigeria, the principal legislation includes the Nigerian Minerals and Mining Act (NMMA) 2007, the Nigerian minerals and Mining regulations 2011, the Land Use Act (LUA) 1978, the National Environmental Standards and Regulations Enforcement Agency, (NESREA) 2007 (replacing FEPA 2004) and the Environmental Impact Assessment (EIA) Act 1992.
THE NIGERIAN MINERALS AND MINING ACT (NMMA) 2007
The key features of the NMMA 2007 include the eligibility requirements of the Ministry of Solid Minerals Development to grant mineral titles and the grant of title on a “first come, first served” basis. The Act also requires the ministry to establish the Mining Cadastre Office (MCO) to issue mining titles, provided that holders of mineral title should prevent pollution of the environment resulting from mining operation, among others.
The 2007 Act vests the ownership, control and regulation of all mineral resources in all states on the federal government. Section 1 thereof 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) 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.”
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 (LUA) 1978
There is clearly a legislative relationship existing between the NMMA 2007 and the Land Use Act46 flowing from the key provisions of the NMMA. 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.
The Land Use Act 1978 to this effect 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 NATIONAL ENVIRONMENTAL STANDARDS AND REGULATIONS ENFORCEMENT AGENCY, (NESREA) ACT 2007
The NESREA Act 2007 established a body known as the National Environmental Standards and Regulations Enforcement Agency with the responsibility for “the protection and development of the environment, biodiversity conservation and sustainable development of Nigeria’s natural resources in general and environmental technology, including coordination and liaison with relevant stakeholders within and outside Nigeria on matters of enforcement of environmental standards, regulations, rules, laws, policies and guidelines.
The comprehensive functions of NESREA are provided in section 7 of the Act, stating that the Agency shall inter alia:
“(a) enforce compliance with laws, guidelines, policies and standards on environmental matters;
(d) enforce compliance with policies, standards, legislation and guidelines on water quality, environmental health and sanitation, including pollution abatiment;
(e) enforce compliance with guidelines and legislations on sustainable management of the ecosystem, biodiversity conservation and the development of Nigeria’s natural resources;
(h) enforce through compliance monitoring, the environmental regulations and standards on noise, air, land, seas, oceans and other water bodies other than in the oil and gas sector;
(i) ensure that environmental projects funded by donor organizations and external support agencies adhered to regulations in environmental safety and protection;
(j) enforce environmental control measures through registration, licensing and permitting systems other than in the oil and gas sector;
Section 8 goes further to specify the powers of the Agency, the most critical being the power to:
“8(d) prohibit processes and use of equipment or technology that undermine environmental quality;
8(e) conduct field follow-up of compliance with set standards and take procedures prescribed by law against any violator;
8(f) subject to the provisions of the Constitution of the Federal Republic of Nigeria, 1999, and in collaboration with relevant judicial authorities establish mobile courts to expeditiously dispense cases of violation of environmental regulations;
8(o) in collaboration with other relevant agencies and with the approval of the Minister, establish programmes for setting standards and regulations for the prevention, reduction and elimination of pollution and other forms of environmental degradation in the nation’s air, land, oceans, seas and other water bodies and for restoration and enhancement of the nation’s environment and natural resources;
Clearly, in terms of regulating the sector, the NESREA Act is the most structured with directions on how to control the environment as well as punish violators of the law. The Act also indicates the regulation of all environmental issues that related to the oil sector.
NATIONAL ENVIRONMENTAL (QUARRYING & BLASTING OPERATIONS) REGULATIONS, 2013.
The objective of these Regulations is to control and regulate quarrying and blasting operations and their adverse effects on the environment and human health. Specifically, the Regulations aims to prevent environmental degradation; ensure the use of environment-friendly technologies in quarrying operations; sustain the carrying capacity of the Nigerian Land in particular and environment in general; prevent the contamination of both surface and ground water; encourage the wise use and exploitation of natural resources and protection of the ecosystem; prevent air and noise pollution; ensure control and safe use of commercial (blasting) explosives; avoid any interference or obstruction of the natural drainage channel and ensure safety of workers in the quarry and the public in general.
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The Regulations provide that an EIA study must be conducted for all new quarries before the commencement of the operations as required by the EIA Act of 1992 and Environmental Impact Statement (EIS) submitted to NERSA. Environmental Audit (EA) to be conducted on all existing quarries every three (3) years.
NIGERIAN MINERALS AND MINING REGULATIONS OF 2011
The Nigerian Minerals and Mining Regulations were issued by MMSD in 2011 with the objective of establishing a more coordinated and viable solid mineral sector in the country and to stamp out the discretionary grant of mineral titles. The Regulation set out the rules, procedures and processes for the acquisition of mineral title thereby streamlining the procedures for granting licenses to investors (both local and foreign).
Specifically, the Regulations stated the obligations of Mineral Title holders in Section 154 to include:
- (a) Submission of signed and approved CDA before the commencement of operation
- (b) Submission of approved Environmental Impact Assessment (EIA)
- (c) Submission of approved environmental impact assessment statement
- (d) Submission of approved EPRP
- (e) Submission of approved EPR fund implementation timetable
- (f) Submission of an approved mine design to Mine Inspectorate Department with details of environmental concerns.
The regulation also empowers the Mines Environmental Officer of the ministry, or any other person empowered to enter and inspect any mineral title. The Regulations also stipulate that an Environmental Audit (EAu) Report of the impacts on the environment of any exploration, quarrying or mining operation shall be prepared by an independent and accredited consultant, to ensure compliance with the Environmental Management Plan in the EIA statement.
THE ENVIRONMENTAL IMPACT ASSESSMENT (EIA) ACT 1992
The EIA Act Cap E12 LFN 2004 sets out the general principles, procedure and methods to enable the prior consideration of environmental impact assessment on certain public or private projects.
The Act is the principal legislative instrument that makes the conduct of an EIA mandatory for all proposed major development projects and activities.
More specifically, the EIA Act places a restriction on commencing any public or private project without prior consideration of the likely environmental effects. Consequently, projects on the mandatory study list, which include mining, are expressly prohibited from being carried out without an approved EIA by the Federal Ministry of Environment.